Monday, June 11, 2012

Ninth Circuit upholds permits for weddings on Hawaiian beaches, denying First Amendment challenges

June has long been a perennial favorite of blushing brides and nervous grooms (apparently June, August, September, and October are the most popular months for weddings).  In step with the season, on June 6, 2012 the Ninth Circuit issued an intriguing decision, Kaahumanu v. Hawaii, (slip opinion here, or at 2012 WL 2018171), that will affect anyone out there planning to offer vows on a Hawaiian beach at sunset.  In short, you will need a permit.

The case also has less romantic, but no less important, offerings for land use lawyers.  In particular, it deals with the interplay of First Amendment rights and the regulation of shorelines in a case I think must be one of the few appellate decisions where those lines of law intersect. 

The case was brought by a Native Hawaiian pastor and professional wedding event coordinators who objected to the State's permit requirement for any commercial activity, including weddings, on the State's 200 "unencumered beaches."  In particular, the regulations applied only to State jurisdiction on such beaches, which extended from the "water's edge" to the "hightide line," defined in a previous Hawaiian case as the "upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of waves."

The permit terms were outlined by the court, in part, as follows:

Terms and Conditions provide that a permit can reserve a “right-of-entry area” for no more than two hours. The fee for a permit is $0.10 per square foot of the requested beach area, with a minimum of $20 per “event.” An applicant for a permit must obtain “comprehensive public liability insurance,” naming the State of Hawai‘i as an additional insured, of “at least $300,000 per incident and $500,000 aggregate.” An applicant must also agree to indemnify and hold harmless DLNR for loss or damage arising out of actions by the applicant. No alcoholic beverages are allowed in the permitted area. An applicant must agree to restore the beach to its original condition after the event.

Although the court concluded that "wedding ceremonies are protected by the First Amendment," the court upheld the permit regulations under a variety of First Amendment challenges, even though they applied to weddings as few as three people (the bride, groom, and officiant).  Interestingly, the court did hold that another term, which allowed the State to revoke permits or add to permits' terms and conditions with "unbridled discretion," violated the First Amendment.

While the lengthy decision is too detailed to summarize here, those interested in the regulation of commerce at the water's edge--perhaps your mind turns to Nollan or public trust cases among others--will find this case of interest.  Those interested in the interplay of the First Amendment and land use will also be rewarded.   

Stephen R. Miller

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