In one important regard, the dispute over ownership of an old road running through the Hawai’i Tropical Botanical Garden at Onomea Bay, island of Hawai’i, has pretty well been resolved. As Environment Hawai’i reported in the [url=/members_archives/archives_more.php?id=1273_0_30_0_C]April 1994 Conservation District Column[/url], the state surveyor determined that a fair portion of the road used by HTBC for shuttling visitors to the floor of Onomea Valley overlies a much older government road.
In another very important regard, however, ownership of the shuttle road remains in dispute. On May 17, 1994, the Hawai’i County Council’s Committee on Human Services and Public Works considered a resolution (No. 220 94) that calls for abandonment by the county of the old government road. The resolution states that the road that leads from the Mamalahoa Highway to the banks of the Onomea Stream (through property owned by HTBG founder Daniel J. Lutkenhouse, Sr.) has fallen into disuse, “partially fallen away, continues to erode and fall down the cliff into the sea, and is therefore no longer safe nor usable for transportation purposes for the general public.” The resolution goes on to find that since the road is no longer maintained by the state, it has become a county highway, subject to disposal by the county.
The gist of the resolution is that the road poses safety concerns; it is in the county’s interest to abandon it; after an appraisal is made to determine a fair price “for purposes of sale or exchange,” the county shall dispose of its fee interest in the land under the road.
No Transportation Use
Supporting the resolution is a letter to Kalani Schutte, chairman of the County Council, from Corporation Counsel Richard D. Wurdeman. That letter, dated April 28, 1994, states: “Research into the history of the road remnant at Onomea, which traverses the Tropical Gardens, indicates that it was laid out prior to 1892, and is therefore a government (county) road. As large portions of it have fallen away into the ocean, it is no longer of any use for transportation.”
Lutkenhouse has proposed trading an adjoining 20-acre parcel for the land under the old road. The parcel would be turned over to the state, Lutkenhouse has said, “for public use and access to the shoreline.” An old road referred to as the Donkey Trail (which originally connected, via a ford to the shuttle road) crosses this property. The public’s right to use this trail has been pretty well settled.1
As several people pointed out in testimony to the county Public Works Committee, however, there is no safe shoreline access provided by the Donkey Trail, which ends atop a peninsula surrounded on three sides by cliffs. Ed Johnston, for example, pointed out that safe access to the beach at the Alakahi Stream mouth is provided only by the Shuttle Road, public use of which has been denied since Lutkenhouse took ownership of the garden area in the late 1970s and erected a gate across the road close to its junction with Mamalahoa Highway. Moreover, Johnston told the committee, even now, Lutkenhouse was apparently continuing to discourage public use of the Donkey Trail; photographs he showed to the council indicated “no trespassing” signs once more had been posted inside the trail area and were present as recently as May 15.
Disputed Claim
The state may not be willing to allow the county to claim ownership of the road. According to Dawn Chang, a deputy attorney general, the state regards the portions of the Shuttle Road that make up the Old Government Road as part of a system of public rights-of-way, as defined by Chapter 264-1 of Hawai’i Revised Statutes.
There, “trails and other non-vehicular rights-of-way in the state declared to be public rights-of-ways by the highways act of 1892… are declared to be public trails. A public trail is under the jurisdiction of the state board of land and natural resources unless it was created by or dedicated to a particular county.” No state trail can be sold by any county. Rather, the disposal of state trails must occur in accordance with Chapter 171, the statute that governs matters concerning state-owned lands.
In addition, though not mentioned by Chang, there is the public trust doctrine, which holds that government may not alienate property held in the public interest unless that action promotes a greater public interest. As described by Valerie J. Lam, writing in the Hawai’i Bar Journal, “In Barba v. Okuna,… Hawai’i’s Third Circuit Court made a connection between access and the public trust doctrine when it stated, ‘Any alienation or abandonment of an established public right-of-way by the Defendant State of Hawai’i which leaves the public without reasonable access to Kawa Bay and the adjacent shoreline would constitute a breach of public trust.’”2
Deferral
The county Public Works Committee decided to defer any action on the proposed sale of the Shuttle Road until members of the committee had the chance to visit the site. In addition, the Board of Land and Natural Resources still has not acted on the request of the Pele Defense Fund for a contested case hearing on remedies proposed for certain Conservation District violations at the Hawai’i Tropical Botanical Garden.
Waikane Valley Placed In ‘No-Golf’ Subzone
On March 23, 1994, the Land Board decided to place 326 acres of land in Waikane Valley, on O’ahu, into the resource subzone. Until January 27, 1992, the land had been in the state’s agriculture district. On that date, the state Land Use Commission, upon the request of the owner, SMF Enterprises (a Japanese-owned development company), put the land in the Conservation District.
Immediately following LUC action, in May 1992, SMF filed a Conservation District Use Application for an 18-hole golf course, swimming pool, driving range, club house, and a “golf technical institute on the redistricted parcel as well and adjoining land, also in the Conservation District”. As SMF was told in a letter July 6, 1992, from William Paty, then Land Board chairman, no CDUA could be processed until the land had been placed in a subzone.
At the public hearing on the rezoning as well as the March board meeting, representatives of the Wai’ahole-Waikane Community Association testified in support of adopting rules placing the land in the protective subzone, where restrictions on uses are strongest. A spokesman for the Kahalu’u Neighborhood Board noted that that organization was on record as opposing placement of the land in anything other than the protective subzone. A concurrent resolution passed by the Legislature in 1992 supported putting the land in protective as a means of defending the area’s natural and cultural resources. Others supporting the inclusion of this parcel in the protective subzone included County Council member Steve Holmes, Senator Mike McCartney, Honolulu Managing Director Jeremy Harris, Representative Ululani Beirne, and Donald Clegg, director of Land Utilization for Honolulu.
At the board meeting, however, Roger Evans, administrator of the Office of Conservation and Environmental Affairs, warned of dire consequences should the land go into protective. If this occurred, the Land Board would be facing a petition for the adjoining parcel to go into the protective subzone, Evans argued, and then the one next to that, and before you know it, all conservation land on O’ahu – and, eventually, all two million or so acres of Conservation District land statewide – would be locked up in protective. In the discussion that followed, this view was referred to as the domino theory of conservation land.
The board went along with Evans’ recommendation. Board Chairman Keith Ahue attempted to explain to the audience packing the usually empty board room “the concerns that some of the board members have raised.”
“The criteria that’s stated within the request for protective is broad enough that it could probably be applied to thousands if not millions of acres statewide,” Ahue said. “Anybody else who wants to come in and use the same criteria that’s generically stated here – archaeological sites, watershed, so forth – anybody on any island can use the same facts… and create protective subzones on private property as well as state property everywhere.”
In the end, although the Land Board placed the land in the resource subzone, it added language prohibiting the use of this property for a golf course. Whether such an unprecedented, site-specific prohibition in department rules can withstand court challenge remains to be seen. That will probably have to wait until SMF emerges from bankruptcy.
1 Efforts by Lutkenhouse to keep the public off the Donkey Trail have been described in the March 1992 Environment Hawai`i article [url=/members_archives/archives_more.php?id=806_0_32_0_C]”Questionable Actions at Garden Bring Expansion Plans to a Halt”[/url] and the October 1992 [url=/members_archives/archives_more.php?id=1129_0_32_0_C]Island Watch[/url] column.
2 Valerie J. Lam, “Beach Access: A Public Right?” Hawai`i Bar Journal, XXIII:1, p. 85. Barba v. Okuna was decided in 1980.
— Patricia Tummons
Volume 4, Number 12 June 1994
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