Over the last two years, the Board of Land and Natural Resources has had several meetings where people from Moloka`i have spoken bitterly about Moloka`i Ranch’s refusal to allow public access to shoreline areas favored for fishing and recreational use. Yet public vehicular access to at least one of those areas — Hale o Lono Harbor — has been a required element of a license granted by the state nearly 40 years ago, when Hale o Lono Harbor was developed.
The Land Board recently became aware of the existence of this license condition, but twice this year has deferred any action to require Moloka`i Ranch to comply with it.
And, discussion before the Land Board indicates that if 1998 rolls around and the lease expires before the requirement for a dedicated public access is obtained, Moloka`i Ranch may forever be off the hook — at least in terms of complying with this condition.
Bitter History
The matter of shoreline access came before the board in November 1994 and again in May 1995, when the board’s agenda included the matter of a proposed shoreline access required as a condition of an after-the-fact Conservation District Use Permit, issued in April 1988, for subdivision of a large lot, parts of which lay within the Conservation District. People of Moloka`i complained on both occasions that the proposed alignment led them nowhere they wanted to go. Rather than having the pedestrian easement terminate at the mud flats of Ho`olehua, residents sought to have the easement extend westward to Halena and the nearby Hale o Lono Harbor. Many of those testifying told of times past, when not just pedestrian access was available, but vehicular access as well. Since the sale of Moloka`i Ranch to a New Zealand firm, however, public access has been denied.
On January 12, 1996, the Land Board considered a request from Ameron HC&D, successor to the company that was issued the harbor license in 1958, that it be allowed to transfer the license to Moloka`i Ranch. “HC&D no longer has any interest in the operation of the harbor and desires to transfer all control to the Ranch,” according to the staff report to the board. “The Ranch concurs with the assignment and agrees to maintain the harbor in accordance with the terms of the License.”
After lengthy questioning of David Parsons, administrator of the Department of Land and Natural Resources’ Division of Boating and Ocean Recreation, the board unanimously voted to defer action on the matter until some clarification on access could be obtained.
On February 23, 1996, the proposed license transfer again came before the Land Board. This time, a spokesman for the ranch was present to provide his views on the subject. In the end, the board once more deferred any decision on the subject.
Observed in the Breach
Neither HC&D nor Moloka`i Ranch — then owned by Libby McNeill & Libby — paid anything for the license, which was issued so that HC&D could mine sand, rock, and cinders from the area. In lieu of payment, the state was to get public access and the free use of land fronting the harbor for such improvements as the state may have desired to make.
Condition 8 of the license, signed on April 10, 1958, reads as follows: “The Ranch and HC&D will make available without cost to the Territory of Hawai`i shores adjacent to the east and west edges of the proposed harbor frontage site … for the purpose of construction by the Territory of additional harbor frontage facilities to be used by the public under such rules and regulations as promulgated by the Board and the Territory of Hawai`i.” According to a map attached to the license, the shoreline property to be available to the territory (now the state) extended a distance of about 2,000 feet on either side of the HC&D barge pier, for a total of 4,800 feet, and going inland as far as the 130-foot contour.
Condition 9 states: “The Ranch and HC&D will dedicate for public use such land designated by the Board as is reasonably necessary to insure the general public ingress to and egress from the harbor, harbor frontage site and wharf, and they will upon request deed to the Territory of Hawai`i, free of charge, al right-of-way to be mutually agreed upon by the Board, the Ranch, HC&D, and Libby, McNeill & Libby of Honolulu, Limited, over land belonging to the Ranch, for a public road at least fifty (50) feet wide from the harbor frontage site to the nearest of the public roads on the Island of Moloka`i.”
Access — by Boat
DOBOR’s staff report to the board in January referred fleetingly to the public access requirement. At-large board member Colbert Matsumoto picked up on it and asked Parsons about it.
“Under the license, Moloka`i Ranch was required to provide public access — and they still do provide public access for all the canoe races that originate there,” Parsons said.
But when Big Island board member Chris Yuen noted that on a day-to-day basis, public access was denied, Parsons agreed.
“Has anybody looked at this to see this specific point, to see whether public access is required under terms of the original agreements to build this harbor?” Yuen asked. “It seems to be a sore point on Moloka`i.”
Parsons: “We haven’t investigated that since it came under our division’s jurisdiction. I can’t say for sure whether or not it had come up or been resolved previously.”
Yuen: “In what way is Hale o Lono public?”
Parsons: “It’s public in that it’s used by transient boaters to go back and forth. The boating public is not excluded from it… It’s public as far as access from the sea is concerned.”
Yuen: “I think we ought to take a close look at this whole situation to see if there is a way of opening up public access to Hale o Lono on the basis of this 1958 agreement. Because it really is a sore point with the people down there… There’s a whole area of the shore leading east of Hale o Lono that they want to get to, but they have to get to Hale o Lono first. This is very closely tied with some of the issues that came up at the very contentious meetings of this board. So I think we ought to take a very close look at that 1958 agreement — and not necessarily take Moloka`i Ranch’s word for how this was supposed to work.”
One Month Later
At the January meeting, the Land Board decided to defer any decision on transferring the license until the issue of public access was clarified. In February, the Division of Boating and Ocean Recreation brought the harbor license transfer again before the board for decision-making.
This time, Harold Edwards, vice president of community development for the ranch, attended the meeting to explain the ranch’s position. Defending DOBOR’s position (identical to that of the ranch) was Larry Cobb, DOBOR property manager.
According to Cobb, the ranch is willing to provide the land required for a roadway, under the harbor license terms, but building the road on that land is the responsibility of the state. Cobb said he had checked with the state Department of Transportation, which informed him that “building a road down there isn’t a high priority…. There hasn’t been any public demand that would necessitate the state going in and developing the road at this point.”
Yuen noted that most people wanting access probably aren’t looking for “a DOT standard two-lane road.” He asked Edwards whether it might be possible to allow the public to use the existing road.
Not possible, Edwards said, since the existing road “goes across land other than Moloka`i Ranch’s land.”
So, Yuen asked, “when is the alignment going to get deeded? When is that going to be determined? Because the license expires in 1998. Any subsequent lease will require a roadway, and it seems the state will need to have the alignment in place before the expiration of the existing lease.”
The Boating Division and Moloka`i Ranch argued that construction of a roadway should hinge on development of marina facilities at the harbor — something not likely to be done under the existing license.
Yuen responded: “What I’m hearing is, true public access to Hale o Lono harbor would not happen unless a private commercial marina is permitted at the harbor, and perhaps other development on Moloka`i Ranch land in the four miles from the existing road to the harbor.”
Edwards agreed that, “short of the state coming in and building a road, that would seem to be the case.”
Yuen: “In a situation where there has been, for the last 40 years, a requirement that there be dedicated land for a right-of-way for a public road, and there is a road in existence — I’m concerned about taking care of people who want to get to Hale o Lono harbor now, or maybe in the next five years or the next 10 years. And if we go along with this concept, we don’t have public access unless and until this marina is built and there’s all this other development.”
In February, the board once more deferred a decision on the request for transfer of the license to Moloka`i Ranch. No date was set for taking the matter up again.
Security, Liability
Separately, Edwards informed Environment Hawai`i that the ranch maintains the requirement in the harbor license for public access doesn’t kick in until the harbor reverts to the state — or, in other words, in 1998. “Philosophically,” he said, “we agree that getting public access down to Hale o Lono is a wonderful thing — something we’re working at getting accomplished. The hard part is that there’s three and a half miles of road that’s unimproved, which creates some liability issues for us, and we’re also trying to run 6,000 head of cattle out there.”
Under the license as he reads it, Edwards said, “our obligation was to make an access available at the time the harbor reverts to the state.” At that time, he said, the ranch hopes to give the state not just a 50-foot-wide right of way, as called for in the license, but a standard 100-foot right of way. By then, too, Edwards said, he hopes that the security and liability issues will have been worked out.
In the meantime, he said, the ranch is trying to work out some way to accommodate pedestrian access and perhaps limited vehicular access for local residents. “I’m guessing in the next two to three months it’ll be worked out,” he said.
Future Plans
At its January meeting, the Land Board asked Parsons if his division had begun planning for subsequent use of the area by the state. Parsons indicated his division would be seeking to have the submerged lands subdivided and set aside by executive order to DOBOR, for management as a small boat harbor. After that, he said, the area would be leased out “for boat harbor and harbor development.”
Again, the question of access to the land came up. Deputy Attorney General Bill Tam indicated that the state would have to have at least an easement to get to its own facility. Yuen noted, also, that if the state wanted to lease the harbor operations to a concessionaire, no one other than the ranch could bid on any lease if Moloka`i Ranch were to continue to deny public access.
Parsons then indicated that in discussions with Moloka`i Ranch, he had raised this point. “That’s what we would intend to address in the lease, that there would have to be public access dedicated by Moloka`i Ranch — they fully understand that,” Parsons said. “I think it would be the state’s responsibility to ensure the continuation of dedication of public access, and Moloka`i Ranch in the discussions I’ve had with them fully understands that they will have to provide public access. And they are planning right now on road construction to the area….
“Their plans are also to have recreational boat slips in there, a certain amount. They like the idea of its use for the Moloka`i-O`ahu [canoe] races, and so forth, and they’re planning on putting in facilities to accommodate that purpose now. It’s pretty consistent with our thinking of recreational use for the facilities.”
County Commitments
The existence of the public access provision of the harbor license was news to the Land Board. But in 1994, the Final Report of the Governor’s Moloka`i Subsistence Task Force called for, among other things, the opening of Hale o Lono Harbor to public vehicular access, with additional vehicular access permitted from the harbor eastward to Halena and westward to Pu`u Hakina. Included as an appendix to the report were pertinent pages of the 1958 harbor license, making reference to the requirement for public vehicular access.
Also in 1994, Maui County held hearings on a proposed Moloka`i Community Plan, which also called for public vehicular access to Hale o Lono Harbor. On November 8, 1994, Moloka`i Ranch testified to the Moloka`i Planning Commission on the draft plan. In response to the call for opening up access to Hale o Lono, the testimony stated: “We are in agreement with the need for a public access to Hale o Lono Harbor and are willing to dedicate to the state a mutually agreed upon 100′ right-of-way from Maunaloa to the harbor upon completion of a public road built to state standards. Development of such a road would allow free and convenient access for a number of public uses in the Hale o Lono area.”
Volume 6, Number 10 April 1996