Impending Development Intensifies Effort to Designate Historic Coastal Trail on Kaua`i

posted in: Access, Development, February 2014 | 0

A young tourist couple walks up the worn, sloping trail that Paradise Ranch, LLC, fenced off in 2011 to keep people out and its cattle off Lepeuli beach on Kaua`i’s North Shore.

The two carefully slip over the top of the fence. The pronounced sag in the wire suggests many have done the same. And in fact, the couple says an old man told them that this was the way to go.

Later, a fisherman emerges from the steep, winding county easement everyone is supposed to use. Standing in the beaming afternoon sun, he says he’s done for the day.

“I’m tired of walking up and down the trail,” he says.

Still a bit later, two women come up the old way, the easy way, even though they say they know they’re not supposed to.

But is that true? Are they really not supposed to?

Patricia Hanwright, Waioli Corporation, and Falko Partners, LLC – owners of lands in the adjacent ahupua`a of Ka`aka`aniu, Lepeuli, and Waipake, respectively – would say so.

The state might, also. Officials with the Department of Land and Natural Resources and the Department of the Attorney General have said an historic, coastal trail, sometimes referred to as the Ala Loa, runs across those ahupua`a. And under the Highways Act of 1892, it is a public trail owned by the state.

However, the state’s attempts years ago to survey and officially document the trail were rebuffed by the landowners, and the DLNR has chosen not to pursue the matter without their consent.

But that “makes no sense,” says Native Hawaiian Legal Corporation attorney David Kimo Frankel, explaining that if the state owns the trail, it doesn’t need to get permission from the owners of the surrounding lands to access it.

It’s a matter worth litigating, he says, but without a client, he can’t do anything about it. In the meantime, Falko Partners is moving forward with developing some 80 agricultural lots at Waipake, causing panic among some community members that their chance to preserve the historic trail is slipping away.

Some have expressed hope they can secure Maui attorney Tom Pierce, whose client, Public Access Trails Hawai`i, recently sued the state and Haleakala Ranch Company to prove the state’s ownership of the historic Bridle Trail. But so far, there’s been no lawsuit for the coastal Ala Loa on Kaua`i.

“I’m waiting for it,” says Nelson Ayers, manager of the DLNR’s Na Ala Hele program, which manages the state’s trail system.

 

The Spark

It all started with Moloa`a, located immediately south of Ka`aka`aniu. In 1932, the territorial government relinquished ownership of the trail across the seaward portion of this ahupua`a, currently owned by Moloa`a Bay Ranch. However, a covenant in the ranch’s deed allowed the DLNR in 2007 to establish a perpetual public easement using portions of what was believed to be the historic trail plus new segments.

The easement runs along Moloa`a Bay, ending at a fence at Ka`aka`aniu.

In a March 2007 letter to Hanwright, Curt Cottrell, then-head of Na Ala Hele, informed her that the historic trail crosses her property as well and that it is owned by the state.

“However, the exact location on the ground must be identified and requires reconnaissance by qualified staff of DLNR and potentially previous traditional users from the area,” he wrote.

He asked to meet with her and her counsel to discuss a number of issues:

  • “The possibility of identifying the actual location of the historic trail delineated in the registered government survey maps in your parcel.
  • “Determining the physical integrity of the trail if identified, and, in consultation with DLNR Historic Preservation Division, determine if it merits ‘Preservation’ status.
  • “Reconciling the historic trail alignment with current topography and public safety issues.
  • “Private property and liability issues associated with re-establishing public use along the historic trail – or a negotiated alternative alignment.
  • “Upon determination of route, develop a trail management strategy that was inclusive of minimizing impact to the seasonally nesting [Laysan] albatross population.”

She did not cooperate. In fact, her attorney, Laura Barzilai, has argued that the trail does not exist and threatened prosecution against anyone caught trespassing on Hanwright’s property. Hanwright has erected fences along her property, in part, to protect the albatross that reportedly nest near the purported trail route.

 

Domino Effect

Hanwright wasn’t the only one disputing the DLNR’s determination that the Ala Loa runs laterally along the coast. In August 2009, Paradise Ranch applied for a Conservation District Use Permit to build a fence, landscape, and raise cattle on land in the Conservation District it leased from Waioli Corporation at Lepeuli. The fence would cut off access to what many, including the state, considered to be the northward continuation of the Ala Loa past Hanwright’s property.

The ranch disagreed with their assessment. In an August 5, 2009 letter, ranch attorney Lorna Nishimitsu submitted a photo to Na Ala Hele program abstractor Doris Moana Rowland, suggesting that the Ala Loa was located along the Kaua`i Belt Road, not along the coast.

Rowland countered in a letter a day later that a 1932 reference to the trail (“in Liber 1174, Page 315”) identifies the Ala Loa as being near the sea. But, in correspondence a month later, she concluded that the state forfeited its right to the trail when the property was placed in the Land Court system without description of the Ala Loa.

The DLNR then basically dropped its pursuit, but a handful of community members soon picked it up when, in February 2010, then-DLNR director Laura Thielen granted Paradise Ranch its CDUP.

Thielen granted the permit administratively and not at a full public hearing before the Board of Land and Natural Resources, despite pleas from community members who used the trail.

They quickly objected. In March 2010, longtime area resident Linda Sproat, the Surfrider Foundation, and Malama Moloa`a filed petitions for a contested case hearing.

Sproat’s petition, filed by the NHLC’s Frankel, noted that she is a native Hawaiian who, with her father, grandfather, and other family members, “used and would like to continue to use a trail that parallels the shoreline and traverses through several ahupua`a in order to gather resources and to observe ocean conditions. They did not just gather from the sea. They also gathered plants on the land.”

In a declaration appended to the petition, Sproat states the trail, which they called the “limu trail”, stretched across the ahupua`a of Pila`a, Waipake, Lepeuli, Ka`aka`aniu, and Moloa`a.

“Depending on what we were looking to gather, we met and visited with many others who were exercising the same traditional and customary practices,” she stated.

The petition noted that in the 1980s, Sproat and then Na Ala Hele staff member Deborah Chang (who now sits on Environment Hawai`i’s board), recorded interviews with kupuna about their gathering activities in Lepeuli and their use of the trail.

It added that the DLNR’s files “are replete with evidence that a historic trail ran through this ahupua`a,” including pre-1900’s maps showing a trail parallel to the shore.

Frankel argued that Rowland was wrong in her determination that the state no longer owned the trail, a position with which the Deputy Attorney General’s office later concurred.

In any case, “[b]y failing to assert the public’s ownership interest in this trail – and by failing to fully investigate the state’s ownership interest – the chairperson violated her duties to protect the ceded lands trust,” he wrote.

On May 13, 2010, the Land Board considered their appeals. Its staff had recommended denial, noting that the board was limited to determining whether its chair, Thielen, had acted arbitrarily or capriciously when she approved the CDUP.

At the meeting, ranch manager Bruce Laymon explained that the fence was needed to prevent vagrancy, illegal dumping, and to keep its cattle from wandering down the hillside.

Waioli Corporation attorney Donald Wilson presented aerial photos from the 1970s and ’80s suggesting that what people were calling a historic trail was actually created by Meadow Gold dairy in 1973. However, Sproat, her husband, and her daughter testified to their use of the trail long before then.

Wilson again referred to an old scaled map that suggested that the Ala Loa followed a road located 1,000 feet inland. At-large Land Board member Samuel Gon and Hawai`i island member Robert Pacheco countered that, in their experience, as a scientist/natural resource manager (Gon) and a naturalist/hiking guide (Pacheco), old maps don’t always reflect what’s on the ground.

Even so, because the board was limited to determining whether or not Thielen’s decision was arbitrary and capricious, the board voted unanimously to deny the appeal.

Sproat appealed the board’s decision in Circuit Court, but the case was eventually dismissed in January 2011. After Sproat filed her appeal, DLNR staff and the Attorney General’s office eventually came to agree that she might be entitled to a contested case hearing. That change of heart led Paradise Ranch to abandon its CDUP, opting instead to put the fence in the Agriculture District.

“They basically decided it was too much trouble,” said state deputy attorney general William Wynhoff told the Land Board on January 13, 2011.

By this time, the county had accepted an easement from Waioli for the steep, winding trail that the some members of public had begun to use.

 

Condition 6

Although the CDUP was now void, a Special Management Area permit for the fence issued by Kaua`i County in September 2009 still required the fence to be approved by the DLNR and Na Ala Hele “to ensure public access to and along the lateral coastal trail.” The permit also required the ranch to “[p]rovide the department a location map as approved by those agencies prior to the installation of the fence.”

Because the fence in the Agriculture District would block the coastal trail, both Frankel and activist Richard Spacer raised this issue with Kaua`i Planning Director Michael Dahilig in early 2011. Spacer went so far as to submit a petition for an Order to Show Cause why the SMA permit should not be revoked.

But in a January 31, 2011 letter to Dahilig, Wilson and Nishimitsu argued that Paradise Ranch had met Condition 6 of the SMA permit. They argued that the Thielen’s approval of the CDUP (despite being voided) and Na Ala Hele’s September 2009 determination that the state was unable to claim an interest in the trail satisfied this condition.

Wilson and Nishimitsu continued that because the county required Condition 6 when the fence was to be in the Conservation District, “it is in that context that Condition 6 must be read. Now that the fence has been moved entirely out of the state Conservation District, and even if the existing responses of the two state agencies are in question (which we do no concede), Condition 6 is now moot.”

They added that Waioli and Paradise Ranch have “no issue with qualified native Hawaiians who wish to reasonably exercise their customary and traditional rights on the Lepeuli property and access for those purposes will not be denied as long as reasonable procedures are in place that protect the legitimate interests of both parties.”

Dahilig later approved the fence in the Agriculture District and indefinitely deferred Spacer’s petition. This despite having received a letter from the DLNR clarifying that Na Ala Hele’s September 2009 memo does not represent the state’s position on trail ownership.

“The excuse by the planning director is the state has not moved on the Ala Loa. That is a non sequitur,” Spacer says.

 

‘We Tried’

With the state again claiming it owns the historic coastal trail, in an August 2011 letter, Wilson asked DLNR director William Aila to notify Waioli Corporation if and when the DLNR undertook any “investigations, studies or actions” on Waioli’s property, as well as any claims or requests regarding alleged public access rights through the property.

Aila responded that it is the DLNR’s policy to notify landowners of department actions, and that his staff is required to request permission to enter private property, except when public health and safety issues are involved. However, he added, he would not inform Wilson of every alleged claim or request for public access.

In November, then-DLNR land deputy Guy Kaulukukui visited the trailhead above Lepeuli to discuss access issues with activists Spacer and Peter Waldau, but not did not meet or speak with anyone from Waioli Corporation. The move rankled Wilson, and in a January 2012 letter, he asked Kaulukukui to confirm that before anyone from DLNR did anything regarding “the property” that Wilson or Waioli be contacted first “so that DLNR may have access not only to the property itself but also to all relevant and accurate information regarding the property.”

“With all due respect to Mr. Spacer and Mr. Waldau, they are insistent on acquiring access rights through Waioli Corporation’s private property which we do not believe are legally existent or justified based upon our extensive research into the history of the area. Listening only to one side of this issue will not provide any public official with a complete understanding of the situation,” he wrote.

That summer, Na Ala Hele’s Rowland had the DLNR’s surveyor prepare a map showing the makai trail through Ka`aka`aniu, Lepeuli, and Waipake, but the investigation didn’t appear to go much further. According to Ayers, the DLNR asked permission to access Waioli’s property to determine the alignment of the Ala Loa and was denied.

“We tried to go and visit the site, but because the landowners were receiving a lot of public sentiment, they said we cannot go on the property. So that’s where we are right now,” he says.

 

The Last Stand?

Since then, the state has issued a number of letters to various interested people stating that, yes, the DLNR believes it owns a coastal trail in the area under the Highways Act of 1892, but, no, it doesn’t have plans to pursue it at this time.

That’s been frustrating for not only activists, but for the Kaua`i County Council as well. For the past several months, the council’s Planning Committee has been wrestling with whether or not to accept a proposed mauka-makai beach access easement at Waipake that Falko Partners has offered as a condition of its county subdivision approval. In addition to the fact that the beach access ends not at the beach but at a 12-foot vertical cliff, one of the main sticking points has been how the existence of the Ala Loa might affect the easement.

At a Planning Committee meeting last August, county counsel Ian Jung stated that should the county accept the easement, it would become an interested party and likely a defendant in any quiet title action brought either by the Falko Partners or the state regarding the Ala Loa.

He noted that while the DLNR had no plans to pursue the trail, the state in a 2008 Circuit Court stipulation reserved its “right, title, interest and claim” to a 10-foot wide section of the Ala Loa located on a .37-acre kuleana parcel located near the shore at Waipake.

“Wouldn’t it be prudent for us to determine where that Ala Loa is before we do this type of agreement … that may result in a lawsuit down the road?” asked committee member Mel Rapozo.

“Prudence is in the eye of the beholder,” Jung replied. Should the county accept the easement, it would need to apply for a CDUP for the portion that lies within the Conservation District and that would also trigger a review from the state Historic Preservation Division, he said. Members of the public have also said it would require review by the Office of Hawaiian Affairs, which supports the designation of the Ala Loa.

Jung added that the easement was originally proposed for the west side of Waipake, but the DLNR’s Office of Conservation and Coastal Lands, which administers all CDUPs, had asked that it be moved to the east side, in part, to avoid disturbing Laysan albatross and the endangered Hawaiian monk seal in the area.

“Access is a double-edged sword,” especially on an island that attracts one million tourists a year, committee member JoAnn Yukimura said.

In September, Hope Kallai of Malama Moloa`a and Rayne Regush of the Kaua`i group of the Sierra Club wrote to Aila and Ayers, respectively, again asking the DLNR to establish the coastal Ala Loa before the area is fully developed.

This is a new request to locate the Ala Loa in a different ahupua`a, with imminent development and sales-determined need for action by the state,” Kallai wrote.

In response, DLNR staff visited the area with Falko Partners manager (and former acting Land Board member for Kaua`i) Shawn Smith on October 9.

“We anticipate [the mauka-makai easement] will satisfy the public’s concerns regarding access to the coastline. As a result, DLNR has no current plans to take action regarding this trail,” then-DLNR Division of Forestry and Wildlife administrator Roger Imoto wrote in a November 6 letter to Smith. DOFAW administers the Na Ala Hele program.

When the county Planning Committee met in December to discuss the easement, some members continued see a need to establish the Ala Loa first and expressed frustration with the DLNR’s position.

Committee member Tim Bynum argued that once people move onto the subdivided lots at Waipake, it will be more difficult for the state to establish a historic trail.

“There will be takings issues, compensation,” he said. “That’s what will happen in the future if we try to get the lateral access.”

“Yes, sir,” attorney Dennis Lombardi, representing Falko Partners, replied.

Even so, committee member Ross Kagawa reminded the committee of the DLNR’s decision not to take any action on the trail.

“It may be frustrating to us [but] what can we do? We’re not their bosses,” Kagawa said.

Lombardi noted that Larry Bowman of Falko Partners was willing to extend the county easement a few dozen feet so it reaches an existing fishing trail to the beach. Given that, the committee decided to defer the matter until April, to allow time for the extended portion to be cleared and staked and for the county’s and Falko’s attorneys to prepare the documents needed for the county to accept the addition.

 

The Way Forward

The Highways Act of 1892 says the state owns the trail, Ayers says. But even though his program has in the past led much of the effort to establish the trail, the property is currently unencumbered state land, he said.

“For a trail to be adopted under the [Na Ala Hele] program, it has to go through Land Board procedure and environmental and cultural surveys. … The Land Division, they own vast state unencumbered lands. They’re not doing anything,” he says. “We’ve tried. When Guy [Kaulukukui] was here, we tried, but the stars didn’t align.”

With regard to the arguments that the state has admitted that at least a portion of the Ala Loa is located where the kuleana on Parcel 10 used to be, Ayers says “that was just a 10-foot section that is on paper, but we have not recognized that on the ground.”

He also says he doesn’t believe the proposed mauka-makai easement is going to cross the Ala Loa, nor does he see an urgent need to designate given the pending development.

“It’s just people’s claims,” he says.

In any case, “It doesn’t make sense to fragment it, like a hallway,” Ayers says, referring to the resistance from the landowners at Ka`aka`aniu and Lepeuli.

“The only way this will work is if the three landowners agree with us working with them. That’s the only way it will work,” he said.

More than once during the county Planning Committee’s meetings on the easement, members of the public, including Regush and Waldau, mentioned that Maui attorney Tom Pierce has expressed his willingness to help negotiate the establishment of the historic trail.

Regush says community members have talked with Pierce but could not say whether a lawsuit is planned or, if so, whether it would address all three ahupua`a or just Waipake.

 

Unpublished Inventory

On January 23, Ayers delivered some disappointing news to members of the Na Ala Hele Kaua`i Advisory Council and the public who have been seeking a resolution to the apparent standoff over the Ala Loa.

That day, Ayers denied the council’s November 2013 request for DLNR’s surveys and historic maps of the Ala Loa at Ka`aka`aniu, Lepeuli, and Waipake because the trail was what is part of the DLNR’s “unpublished” trail inventory.

According to a 1992 opinion from the Office of Information Practices, amendments made by the 1990 Legislature to Hawai`i Revised Statues Chapter 92, allow the DLNR to “withhold public access to the unpublished portions of the Inventory under section 92F-13(4).”

“The council was really upset and voted unanimously to get an AG’s [Attorney General] opinion,” wrote Kallai, who attended the council meeting, in a broadcast email.

“Mr. Ayers was asked why he would deny document access.  He said he had no opinion,” Kallai wrote.

“Our ancient cultural byway around the whole island of Kaua`i is now a private secret of O`ahu DLNR, not to be talked about.  If this ancient cultural byway can become an ‘Unpublished Trail,’ no trail in Hawai`i Nei is safe from being taken, secretized and privatized,” she wrote.

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