BOARD TALK: Wainiha Fence, Camp at Honolua Bay

Dispute Over Wainiha Shoreline Fence
Now Subject to a Contested Case Hearing

Last year, officials with the Kaua`i Planning Department told Dave Smith he wouldn’t get county approval to place a chain-link fence where he proposed to, along the most recent certified shoreline. Desperate, he says, to keep out trespassers, vandals, thieves, and reckless ATV riders, Smith built the fence anyway.

Although the county issued a notice of violation last June 20 ordering Smith to remove the fence or face judicial action, it has decided to hold off enforcement pending the outcome of the state’s case against Smith, which has become the subject of a contested case hearing.

Last June 22, the state Department of Land and Natural Resources issued its own notice for the fence, which recommended immediate removal. Smith did not comply. In January, the DLNR’s Office of Conservation and Coastal Lands asked the Board of Land and Natural Resources to fine Smith $2,000 for constructing a shoreline fence in the Conservation District without a permit plus $200 in administrative costs. The OCCL also recommended that Smith remove the fence within 30 days of a shoreline determination by staff.

Over the past few years, enforcement of Smith’s illegal activities — which in addition to the fence construction includes planting and irrigating his shoreline and cutting trees – has highlighted the persistent problem of determining jurisdiction along the shoreline. Counties control activities within Special Management Areas, which are typically landward of the shoreline, and also enforce shoreline setback regulations. The state governs activities within the Conservation District, which is seaward of the shoreline.

The problem is that shorelines move. To help determine jurisdiction, a current certified shoreline is useful. The state issues the certification, usually at the request of the property owner who needs to know where the shoreline is for setback purposes. Under state law and DLNR rules, the shoreline is to be certified at the “upper reaches of the wash of the waves … at high tide during the season of the year in which the highest wash of the waves occurs…”

Shoreline certifications are good for only one year. For Smith’s property, the last shoreline certification was done in November 2000. According to Smith’s attorney, Bernard Bays, the fence “closely follows along” that shoreline.

Lacking a current certified shoreline, it is unclear whether the fence violates state Conservation District or county SMA rules, or both. (In any case, the fence most likely violates county setback rules that prohibit structures of any kind within 40 feet of the shoreline.)

Still, Bays stated in testimony to the Land Board, “Both DLNR and the County of Kaua`i cannot have jurisdiction over the same subject matter, and fine Mr. Smith separately for the same action. If DLNR intends to pursue this matter, the jurisdictional issue needs to be resolved so that Mr. Smith will not be subject to double jeopardy as a result of the County of Kaua`i and DLNR’s assertion of jurisdiction.”

To OCCL coastal expert Dolan Eversole, who assists in shoreline certifications, the state clearly has jurisdiction. Eversole told the Land Board that according to his observations, the fence was ten to 20 feet seaward of the high wash of the waves.

Bays asked the Land Board to defer taking action for one year, during which time the jurisdictional issues could be resolved and Smith could seek a temporary variance for the fence. If the board refused to defer, Bays said he would request a contested case hearing.

“Wouldn’t it be easier to pay the fine, take down the fence, and apply for a permit? You’ve already spent $2,200 on these two pieces of paper,” Land Board member Tim Johns told Bays, referring to the two thick exhibits Bays had submitted to the board supporting his case.

While he conceded that may be true, Bays repeated that the fence was not in the Conservation District but ran along it.

Kaua`i activist Caren Diamond testified that if the Land Board deferred the matter, she would request a contested case hearing. Diamond, along with fellow north shore residents Beau Blair and Barbara Robeson, say that the fence creates a coastal hazard and endangers the public during the high surf season. In testimony submitted to the Land Board on January 12, they asked that the board “require the immediate removal of this fence and impose the maximum fines with increased daily penalty for continued noncompliance. We further ask that all naupaka plantings, irrigation and landscaping activities cease, and their removal be required to restore this beach to its natural state.”

Kaua`i Land Board member Ron Agor proposed a compromise: Accept the OCCL’s recommendation to fine Smith $2,200, but give Smith 45 days to move his fence to a point where both the state and county would allow it to be. After the board unanimously approved Agor’s motion, Bays requested a contested case hearing. Diamond asked to be a party to the case.

“I don’t think 45 days is enough. To do anything takes 180 days,” Bays said.

The fence will remain in place until the case is resolved.

A Maui family that set up camp and began requesting donations from people wanting to cut through its property at Honolua Bay is arguing that it was only trying to protect the land and family iwi buried there from the public and landscapers from Maui Land and Pineapple who had begun cutting vegetation in the area.

Narciso “Jimmy” Billianor, whose family is one of many landowners surrounding Honolua Bay, is facing a fine of $300,000 for unauthorized residential use within the Conservation District, plus $1,350 in administrative costs. In a January 12 report to the Land Board, the OCCL proposed the fines and recommended that the Billianor family immediately clear its camp, which at the time included five tents, two latrines, a dining tent, and a rabbit hutch. The report states that the camp had been expanded after the DLNR issued a cease and desist order to the Billianors on July 20, 2006.

At the board’s January 12 meeting, family members said they didn’t know the property was in the Conservation District, which prohibits commercial uses and requires a permit for residential use. What’s more, they disputed the state’s ability to fine them because they believe the land is governed by the Kingdom of Hawai`i.

“Our property has been destroyed. It has been brutalized by the general public. We go to take care of the property and we get busted for it,” Billianor’s 17-year-old daughter told the Land Board.

A January 12 report to the board by the OCCL states that one of the parcels occupied by the Billianors had been cleared with a bulldozer by the nephew of another landowner, Gilbert Chee. The OCCL has not proposed fining the nephew, Gilbert Shim, for the unauthorized clearing because the Billianors have prohibited its staff from fully inspecting the property, OCCL administrator Sam Lemmo told the board.

The report states that the camp occupies two parcels; one owned by Chee, and the other owned by a hui of 14 owners, including Jimmy Billianor’s mother. Two adjacent parcels, where the toilets have been placed, are owned by Maui Land and Pineapple, which has a permit from the state to do landscaping, the report states.

With regard to the family’s motives, the OCCL report suggests that the Billianors were doing more than just protecting their land. Although it did not propose a fine for unauthorized commercial use, the OCCL noted that on June 23, after receiving complaints that commercial operations were occurring on the property, a DLNR enforcement officer found a stand on the hui parcel where the Billianors were selling pineapple, chips, drinks, old coconuts, and were renting snorkeling equipment.

Although Mr. Billianor removed the stand at the officer’s request, the camp remained. As a result, the OCCL proposed a maximum fine of $2,000 per day from the day the cease and desist notice was issued until January 12, for a total of $300,000. Other alleged or possible violations, which the OCCL or other DLNR divisions will pursue once they are allowed to fully inspect the property, include stream channel alteration, disruption of archaeological sites, and fishing within a Marine Life Conservation District.

On behalf of the Billianors, Majesty Akahi Nui served the Land Board with documents asserting that he is the king of the Hawaiian islands and that the state of Hawai`i is an illegitimate government.

“You guys don’t have jurisdiction. What gives you the right to charge this man $300,000? You guys are going to have to take us to court,” Akahi Nui told the board.

The board advised them that they were entitled to request a contested case hearing, a court-like proceeding through which state departments settle disputes. The Billianors then requested a contested case hearing, preempting the Land Board from taking action on the matter.

— Teresa Dawson

Volume 17, Number 9 March 2007