Hawaiʻi County Sued in Federal Court Over Closure of Waipiʻo Valley Road
Hawaiʻi County mayor Mitch Roth announced on February 24 that he was immediately closing the only road leading into Waipiʻo Valley to all but residents and farmers for the next three years. He said he based the decision on an engineering report that put the risk of pedestrian deaths due to falling rocks along the steep, narrow road at one in 18,000. With more than 50,000 pedestrians using the road annually, that translates to 2.8 deaths per year, or 14 deaths in five years. Given that no pedestrian deaths have ever been reported on the road, the report’s conclusions have been widely criticized.
Roth’s decision left businesses that conduct tours high and dry. They were not notified in advance of the emergency declaration. According to a federal lawsuit filed against the county on March 25 by several of those businesses, “Roth called plaintiffs on the morning of February 28, 2022, and told some of the plaintiffs that he had not been aware of their businesses operations and that he would ‘work on solutions.’” Yet a month later, the lawsuit notes, “defendants have not proposed any measures or amendments” to Roth’s declaration.
What’s more, the lawsuit alleges discriminatory enforcement of the emergency rule. At times, police at the road check-in “have been selectively enforcing the emergency rule to prevent plaintiffs from accessing the road while allowing others to freely access the road who are not permitted by the rule, some of whom are profiting offering paid tours of Waipiʻo Valley.”
“If defendants were truly restricting access to the road for safety purposes, they would not allow for exceptions with unlimited use, both in frequency of trips and number of passengers, and would have commenced repairs immediately,” the lawsuit alleges.
The plaintiffs – Waipiʻo Valley Artworks, Waipio Ohana Corporation, Na ʻAlapa Stables, and Michael Olival – also allege that their property has been taken without compensation, that their due process rights have been violated, and ask the court to void the emergency declaration and award damages in amounts to be proven at trial. The county, Roth and county parks director Maurice Messina are named as defendants.
State, Federal Courts Hear ʻAina Leʻa Cases
As Environment Hawaiʻi reported in January, the embattled owner of the proposed ʻAina Leʻa development in the Big Island district of South Kohala has appealed the decision of 3rd Circuit Judge Wendy DeWeese to allow one of its several creditors to move forward with foreclosure proceedings.
Hawaiʻi County, which was named as a third-party defendant in a countersuit by ʻAina Leʻa, Inc., remains a party to the litigation and as such regularly receives copies of all filings in the case.
On March 29, the attorneys involved received by email notice of a document that had been filed in the case. The document was not in itself remarkable. What is worth noting is the email address of the county’s chief civil lawyer, Corporation Counsel Elizabeth A. Strance. It is not a hawaiicounty.gov address, where her deputies received the filing. Instead, it was the email associated with her private law practice, strancelaw.com.
A charitable interpretation is that Strance has failed to update her email address on Judiciary Electronic Filing System (JEFS) since taking her position with the county more than a year ago. Strance confirmed to Environment Hawai‘i that this is indeed what had occurred. “I needed to update my email address in JEFS,” she wrote in an email. “My oversight has been corrected as the result of your bringing this to my attention.”
In 2012, Strance, then a judge on the 3rd Circuit Court bench, overturned the decision of the state Land Use Commission to revert from the Urban land use district to Agricultural the 1,000 or so acres where ʻAina Leʻa intended to develop housing, a shopping center, and other amenities. Strance’s decision was ultimately upheld by the state Supreme Court.
Since Strance assumed the post of corporation counsel under Mayor Mitch Roth, the county Planning Department has softened its position with respect to setting conditions on ʻAina Leʻa before allowing further construction on the site. That, however, did not prevent the county being named as a third-party defendant in the foreclosure action.
Meanwhile, litigation in federal court continues over DW ʻAina Leʻa’s claim against the state for millions of dollars in damages. In February, the state filed a motion for summary judgment. In response, DW ʻAina Leʻa, which preceded ʻAina Leʻa, Inc., as developer of the land, has suddenly claimed losses relating to properties that, among other things, are outside the development area, were conveyed to the successor ʻAina Leʻa, Inc., or were denied by DW ʻAina Leʻa itself in earlier sworn testimony by its principal, Robert Wessels.
— Patricia Tummons
DOH, Sierra Club Agree To Drop Greenhouse Gas Case
On March 30, the Intermediate Court of Appeals approved the state Department of Health’s decision to drop its appeal of Environmental Court decisions in 2020 and 2021 in favor of the Sierra Club of Hawaiʻi. The group sued the agency in May 2020 over apparent violations of 2007’s Greenhouse Gas (GHG) Emission Act, which, among other things, required that statewide GHG emissions had to be less than or equal to 1990 levels by 2020.
In January 2020, the DOH denied the Sierra Club’s request for a contested case hearing on a Greenhouse Gas Emission Reduction Plan submitted by AES Hawaiʻi, LLC, one of the largest greenhouse gas emitters in the state. Under the plan, the company anticipated that it would increase, rather than decrease, its GHG emissions.
When the Sierra Club filed its lawsuit months later, the department had not ruled on any of the emission reduction plans it had received. The group asked the court to order the Health Department to “expeditiously render a final decision on all greenhouse caps deemed achievable by the affected source … if the owner or operator of an affected source failed to submit an adequate reduction plan, or if a facility-wide emissions cap cannot be mutually agreed upon.” It also wanted DOH to “promptly establish, and incorporate into the applicable covered source permit, a facility-wide Greenhouse Gas Emissions cap as required or the lowest Gas Emission Reduction Plans that have been submitted to it, subject to the right of parties requesting contested case hearings,” the complaint states.
In October 2020, Environmental Court Judge Jeffrey Crabtree granted in part and denied in part the Sierra Club’s motion for summary judgment. He agreed with the group that the Health Department director was required by law to set emission reduction measures, including caps, by 2020.
In September of last year, Crabtree ruled that the DOH had to pay the Sierra Club $11,379.81 in attorney fees and costs.
The DOH appealed both decisions in November 2021. On March 23, however, it proposed a stipulation for dismissal that had been signed by attorneys for both parties.
Under the stipulation, the appeal would be dismissed with prejudice and the DOH would pay the Sierra Club an additional $1,194.76 in attorney’s fees.
— Teresa Dawson
(This article has been amended to reflect the correct amounts the court required the DOH to pay the Sierra Club. Our original article incorrectly implied that the DOH had to pay only $1,194.76 and not the $11,379.81.)
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