'Ohana

Following the submission of the parties’ briefs in this case, appellants brought the recent decision of the Hawaii Supreme Court in Public Access Shoreline Hawaii v. Hawaii County Planning Comm’n, 79 Hawai'i 425 , 903 P.2d 1246 (1995) (“PASH II”), to our attention pursuant to F.R.A.P. 28(j). Appellants relied heavily on the reasoning of this new opinion at oral argument. Prior to the close of oral argument,' we thus requested supplemental briefing regarding the PASH II decision, and deferred our decision in this case until receipt of the supplemental briefs.

Having now reviewed the parties’ supplemental briefing, we affirm substantially for the reasons given by Judge Ezra in his excellent opinion. We write briefly to clarify our determination in light of PASH II.

Native Hawaiian tenant rights indisputably derive from three distinct sources. Article XII of the Hawaii Constitution protects “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua’a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State tp regulate such rights.”…