Island Watch

Bishop Estate Defies Order Requiring Parking for Trail Access

Bishop Estate has informed the Board of Land and Natural Resources that it will not comply with an order the board issued in November 1995 requiring the estate to allow public parking along a road in the Conservation District. The parking is needed to accommodate hikers on the Wiliwilinui Ridge trail above the Waialae `Iki subdivision.

In November 1995, following months of wrangling, the Land Board required the Gentry Company to build an eight-car parking area at the end of a gated subdivision to accommodate hikers, pursuant to terms of a Conservation District Use Permit obtained in 1979. In addition, spillover parking was to be allowed along the shoulder of a 12-foot-wide paved access road in the Conservation District leading to a Honolulu Board of Water Supply reservoir serving the subdivision. Finally, the subdivision was required to provide parking to hikers along Oko`a Street.

In May 1996, the chain gate at the end of Oko`a Street was locked, thus preventing parking along the BWS road. There ensued several meetings involving staff of the Department of Land and Natural Resources, Bishop Estate, the Board of Water Supply, and subdivision representatives. By June, an agreement had been reached that called for relocating the chain gate about 100 yards mauka. According to the staff report presented to the Land Board on December 13, 1996, “Because the road was still owned by [Kamehameha Schools/Bishop Estate], KS/BE staff agreed to bring the matter to the attention of the Bishop Estate trustees. Although KS/BE staff and their legal counsel appeared to support the plan to move the gate 100 yards mauka and to allow limited parking along the shoulder of the BWS access road, the KS/BE trustees decided to decline the BLNR’s directive requiring vehicular parking along the shoulder of the BWS access road.”

The DLNR was informed of the trustees’ decision in a letter dated November 6, 1996. That letter, signed by Alika Neves, Bishop Estate’s commercial projects manager for West Honolulu, says that it is the feeling of the trustees that the 1979 Conservation District permit requires Bishop Estate to provide pedestrian access only. “Expansion of the original intent at this time to include parking would set a precedent for other CDUA approvals that may have been issued for other KSBE subdivisions.”

In December, DLNR staff brought to the Land Board a proposal to find Bishop Estate in violation of its 1979 permit and, following up on the Land Board’s decision in 1995, the staff recommended that the board revoke that original 1979 permit and that it require removal Bishop Estate to remove, within 30 days, the BWS reservoir and access road.

At the December 13 meeting, Bishop Estate, represented by attorney William Yuen, suggested that the requirement to provide parking was nothing short of a constitutional “taking” of property without compensation. Attorneys for owners of subdivision lots objected to the staff recommendation, arguing that it would not punish Bishop Estate so much as it would create incredible hardships for homeowners served by the BWS reservoir.

Hiker after hiker testified that without parking, the requirement that Bishop Estate provide access was meaningless. With up to 80 hikers using the trail on some days, the parking areas provided within the subdivision were inadequate. Without parking at or near the trail head, people intent on hiking would be forced to walk more than a mile along a steep, asphalt road through the subdivision.

At the end of two hours of testimony, the Land Board deferred action. To assauge the concerns of the subdivision homeowners, board members generally agreed that whatever approach they eventually took, they would not use the water tank as a “bargaining chip.”

The Pacific Legal Foundation, which describes itself as “a voice for mainstream America before the courts,” has received a substantial grant from the Harold K.L. Castle Foundation to enable the group to set up shop in Hawai`i. According to the PLF’s spring 1996 “Guidepost” newsletter, the Castle Foundation made a four-year grant totaling $90,000 in December 1995. Other documents obtained by Environment Hawai`i indicate that Castle & Cooke, Alexander & Baldwin, and the Estate of James Campbell, among others, have pledged to support PLF establishing a “full litigation office” in Hawai`i.

To raise the $300,000 annually that PLF estimates is needed to run this office, it has proposed creating a “Kama`aina” group, made up of donors who pledge $10,000 a year for at least three years. For those who can’t afford that level of support, PLF suggests donations of $5,000 or $1,000, depending upon their level of interest in the issues PLF takes on.

PLF, whose headquarters are in Sacramento, California, has intervened in several Hawai`i cases. Perhaps most notably, it attempted, through an amicus brief, to get the U.S. Supreme Court to hear the appeal of two Hawai`i Kai sewage treatment plant operators convicted of criminal violations of the Clean Water Act. PLF’s argument was that the operators should not be found guilty because they did not know they were breaking the law (even though, as PLF acknowledges in the brief, “some of the dumping occurred at night” and the defendants “made some incriminating statements to both their subordinates and the government”.)

What appears to have prompted PLF to take the step of establishing a more visible presence in Hawai`i is the state Supreme Court’s 1995 decision in Public Access Shoreline Hawai`i/Pilago v. Hawai`i County Planning Commission. That decision, PLF has written, is “a classic case” of judicial challenge to “the continued certainty of established rules of property rights.”

(In that case, the Supreme Court remanded to the Planning Commission a request by groups whose memberships included Native Hawaiians for a contested case hearing on developer Nansay Hawai`i’s efforts to build a shoreline resort on the Kona coast. The court determined that the commission had failed to consider Native Hawaiians’ rights in its denial of the contested case hearing request. (Since the PASH/Pilago decision, Nansay has withdrawn its request for county permits needed to develop the resort. In mid-December, the Kohanaiki parcel was one of two Nansay properties on the Big Island that were auctioned to pay back property taxes.)

According to PLF, in the PASH/Pilago decision, the Hawai`i Supreme Court “obliterated hundreds of years of established American property law in favor of a system that legitimizes trespass or ‘gathering’ rights by descendants of native Hawaiians on private property. In a single ruling, that court transformed private property into public property without compensation.”

“This case,” PLF goes on to say in its spring 1996 newsletter, “if allowed to stand, will not only serve as a precedent in Hawai`i, but will set an example for redefinitions of private property in other states where legal theories such as the ‘public trust doctrine’ and ‘native sovereignty rights’ are being argued to impose public uses on private property. PLF will be participating before the U.S. Supreme Court urging the justices to hear and reverse this case.

“Claims of native populations, public trust arguments, extortionate development fees, regulatory takings, and condemnation activities are just a few of the components of a regulatory magma that threaten to develop individual and economic freedom in both Hawai`i and the mainland.”

Endangered Species Opposition

A list of cases in which PLF intervened in 1995 appears in the spring 1996 “Guidepost.” According to that list, PLF “actively participated” in 145 cases. Not all “cases” involve litigation; some are proposed agency regulations on which PLF submitted comments.

Of those 145, seven involve opposition to interpretations or requirements of the federal Endangered Species Act. Eight cases involve opposition to regulations inhibiting the development of wetlands. In six instances, the PLF intervened in opposition to restrictions on timber operations (outside of those imposed by the Endangered Species Act).

Other matters on which the PLF commented in 1995 include capital punishment (favoring same), mining and mineral rights (favoring liberal interpretations of same), and water rights (opposed to restrictions on private parties’ use of water in order to supply wilderness areas).

In what might be surprising to PLF supporters in Hawai`i (which include the Land Use Research Foundation, an ardent opponent of zoning by initiative), PLF defended citizens’ rights to legislate through initiative in at least two cases in 1995.

According to PLF’s most recent filing with the Internal Revenue Service, it received more than $3.4 million in contributions, gifts, and grants in 1995 and spent about $3.3 million. Of that, 20 percent, or $673,792, was spent on fund-raising, while approximately 14 percent ($460,316) was paid to Arthur Anderson LLP for accounting services.

The county of Kaua`i has announced it is no longer seeking permits to build a seawall alongside the Wailua municipal golf course. The county’s efforts to build the seawall were the subject of extensive reports in last month’s Environment Hawai`i.

Instead, according to Steve Oliver, of the county Department of Public Works, the county will remove the boulders along the beach and will work with ocean engineers to design a long-term management plan for the Wailua shoreline. Management options include landscaping, beach replenishment, and possibly realignment of some of the golf course features. The decision to pursue options other than a seawall or revetment was made after University of Hawai`i coastal expert Chip Fletcher had given the county a report on shoreline management options, Oliver said.

That decision also came on the heels of a notice from the Federal Emergency Management Agency that it would withhold payment to the county of the approximately $1 million that had earlier been allocated for the seawall. The state director of Civil Defense was advised by FEMA regional officer Richard Hazlett on October 17, 1996, that, “Due to the difficulties encountered on this project to date … I would like to suggest that the transfer of funds for [the seawall] be held at the state pending a review of the revised scope of work.” Four days later, the county was informed by the office of the Director of Civil Defense that the state would be following FEMA’s suggested approach.

Oliver said that in early December, he received from the Army Corps of Engineers a waiver from any permit requirements that might otherwise be needed for excavating boulders from the tidal area. The county had buried boulders in the tidal zone last August in expectation of the boulders being used as toe stones in a 3,100-foot-long revetment to protect the golf course.

Now, Oliver told Environment Hawai`i, the county was negotiating with Doreen Sanchez-Rego, the contractor on the project, to work out a price for removing those boulders and other boulders and debris that remain on the beach from a botched seawall project undertaken in 1987. Cost of work so far is about $250,000, he said.

The U.S. Fish and Wildlife Service has announced it intends to begin collecting entry fees at Kilauea Point National Wildlife Refuge and 12 other refuges across the country. The fees at Kilauea Point will be $2 per person. Residents may purchase annual passes for $10.

The new fees, along with increases in user fees at other refuges, are part of a demonstration program mandated by Congress, according to a news release issued by the service.

The fees will be used at the sites where they are collected. The money will go toward such things as nature trails, spotting scopes, and coordination of volunteers.

According to the Fish and Wildlife Service, people who have purchased a Duck Stamp can continue to have free access to all national wildlife refuges. Also, holders of Golden Age, Golden Eagle, and Golden Access passes will be able to present those passes for entrance into any refuge, national park, or Bureau of Land Management site.

Volume 7, Number 7 January 1997