What the law says about staking a claim to that hot new stuff.
Jun 4 2018, 3:00pm
Lava meets the ocean. Image: Flickr/Kurt Johnson
Hawaii is among the smallest states in America, but that doesn’t mean the archipelago isn’t growing over time.
The Big Island’s volcanic eruption this month, for instance, covered 2,400 acres of existing land with new lava. More could be added to the island’s coast as lava reaches to ocean, cooling and hardening, though the United States Geological Survey isn’t willing to say how much yet.
Kilauea is the Big Island’s most active volcano, and has expanded the island for millennia. Its 1960 Kapoho eruption added nearly 500 acres of fresh turf to the Big Island’s southeastern tip. Between 1983 and 2013, Kilauea’s lava flows added another 500 acres—marking the prolific thirty-year-long eruption of Pu‘u ‘Ō‘ō, a volcanic cone that’s still active today. And an additional five acres were added to the island’s shoreline in 2016.
So, here’s question for the modern era: Who owns all that new land?
The short answer? The state.
“‘New’ land belongs to the state, such as land formed by cooling and therefore hardening lava spilling into the ocean,” David Callies, a law professor at the University of Hawaii at Manoa who specializes in land use, told me in an email.
These areas are called “lava extensions,” and were central to a 1977 Hawaii Supreme Court case in which Big Island residents Maurice and Molly Zimring sued the state over 7.9 acres of new land formed by a 1955 Kilauea eruption.
Since the 1955 lava abutted property purchased by the Zimrings, they assumed it belonged to them.
“The deed for the property…described the original pre-1955 parcels and contained no description of the new land… The Zimrings paid property taxes, planted trees and shrubs, and even had a portion bulldozed, fully believing they owned the 1955 lava extension,” the USGS explained in a 2008 blog post:
After the 1960 Kapoho eruption, the state ordered the Zimrings to vacate the lava extension, and they took the issue to court, winning the initial trial. The decision, however, was eventually overturned by State Supreme Court Chief Justice William Richardson.
“Rather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee,” the Court ruled, adding that lava extensions are for the “use and enjoyment of all the people.”
In 2008, this precedent was cited to determine that a Big Island man unlawfully built a pavillion on a lava extension in Puna on the southeast coastline. Furthermore, lands covered by fresh lava flows don’t change hands. So the dozens of Big Island land owners whose homes were tragically destroyed this month won’t lose their properties, for example.
“Same applies to federal land—like Hawaii Volcanoes National Park—and kuleanaparcels [land granted to Native Hawaiian tenant farmers between 1850 and 1855, and shared today by their descendents], often if not usually ‘owned’ by several people in co-tenancy,” Callies added. “The lava flow on these lands changes nothing in terms of ownership.”
But culturally speaking, it’s not so cut and dry. The modern idea of property ownership is relatively new to Hawaii, and Native Hawaiians saw (and still see) themselves as stewards, not masters, of their environment. Ahupua’a, or land divisions, stretched from the ocean to the mountains (under a chieftain’s rule), ensuring the people’s access to a multitude of resources.
As D. Kapua‘ala Sproat, an assistant law professor at the University of Hawaii at Manoa who specializes in indigenous rights, wrote for Business Law Today:
Land was not an object to be bought or sold, but was a responsibility to be cared for in perpetuity…In the mid-1840s, King Kauikeaouli instituted a process that imposed fee simple land ownership. Culminating in the Māhele of 1848 and Kuleana Act of 1850, even these earliest distributions of land were subject to the rights of the maka‘āinana, or native tenants, to continue subsistence lifestyles.
In 1893, Hawaii’s Queen Lili‘uokalani was overthrown by businessmen and sugar barons with the backing of the American military, and in 1959 Hawaii officially became part of the United States.
So, no: Someone can’t just stake a claim to the land created by a volcano. People have tried, and failed. Still, it’d be kind of cool, though.