In the Conservation District

Waialae `Iki Owners Sue Land Board Over Wiliwilinui Ridge Trail Access

The Waialae `Iki V Community Association has filed suit in First Circuit Court, charging that the Board of Land and Natural Resources has no legal right to require public access through the subdivision where its members live. The lawsuit is an appeal of the board’s decision of November 17, 1995, affirming the public’s right to use the roads of the gated subdivision to gain access to Wiliwilinui Ridge trail in the Ko`olau mountain range.

In the suit, filed December 29, 1995, the association’s attorneys, Sherrie T. Seki and Edward R. “Randy” Brooks, argue that the Land Board has no jurisdiction over any roads and streets, and therefore it is unable to force the association to require access over its roads. Also, the lawsuit challenges the Land Board’s rejection of the association’s request that it be allowed to require waivers of liability from all hikers or other trail users traversing the private roads through the subdivision.

In addition, the suit claims that the Land Board failed to comply with the legal requirements of a contested case hearing (although none was requested and none was held) in making its decision. Finally, the attorneys argue that the requirement that the association provide a parking area for trail users amounts to an unconstitutional taking: “The BLNR effectively engaged in the unlawful taking of land in requiring parking on private land outside of its jurisdiction. … [T]he BLNR is without authority to require Waialae `Iki V and Bishop Estate – to whom the Conservation District Use Permit was first granted, in 1979 to bear the financial burden associated with the creation of said parking.”

A Waiver Anyway

In its November decision on the case, the Land Board specifically refused to grant the landowners’ request that trail users be required to sign a waiver of liability in favor of the landowners. Board member Chris Yuen argued that having to sign a waiver for trail access was akin to having to sign a waiver for beach access. The very need for such a waiver, Yuen stated, stemmed from the landowners’ decision to turn their subdivision into a private, gated community. “People in neighborhoods where it’s a public street, no gated community, if an accident happens on their street, it’s the City and County’s problem,” Yuen said.

Yet in January, people hiking the Wiliwilinui Ridge trail began to be handed notices when they passed through the guard shack at the entrance to the subdivision, informing them that “THE ASSOCIATION IS NOT LIABLE IF YOU GET HURT OR FOR LOSS OR DAMAGE TO YOUR VEHICLE (INCLUDING ACCESSORIES) OR PERSONAL PROPERTY IN THE VEHICLE OR OTHERWISE FROM ANY CAUSE WHATSOEVER.”

The notices also informed hikers that they were “being given permission” by the Waialae `Iki V Community Association to use the subdivision’s roads, and that unless a camping permit was displayed on the dashboards of cars parked near the trail head, cars parked “after permitted hours” would be towed, as would any car parked in areas of the subdivision deemed off-limits to hikers by the association.

The notices have prompted representatives from hikers and other outdoor groups to protest to the association, registering their objection to the statement in the notice that the hikers are there by permission of the association, rather than as by right. “The word ‘permission’ is just not applicable in this situation and could in the long term serve to obfuscate the public’s rights,” they noted.

Also, to tow cars that are parked after hours “is an uncivilized act toward a hiker or hikers that could be experiencing physical injury or be lost,” the groups said.

The groups made no demands, but merely asked the association to advise them “as to actions you take or do not take in response to the above.”

(For background on the Conservation District Use Permit that is case, consult the [url=/members_archives/archives_more.php?id=1148_0_29_0_C]December 1995 Conservation District column[/url] of Environment Hawai`i.)

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Engelstads Sue Board Over Lanikai Permit

Ralph and Betty Engelstad have filed suit in First Circuit Court, asking the court to overturn the BLNR’s termination of their Conservation District Use Permit to build a house on the slopes above Lanikai, O`ahu.

As reported in the [url=/members_archives/archives_more.php?id=1148_0_29_0_C]December 1995 conservation column[/url] of Environment Hawai`i, the Land Board at its October 27 meeting refused to grant a second time extension for completing construction of their large house. The Engelstads claim that pending litigation with the City and County of Honolulu over issuance of a Special Management Area permit for the driveway to the house prevented them from moving forward with construction. They allege that “the board’s refusal to grant [their] request for an extension of time and its revocation of [their] CDUP constitutes a ‘taking’,” and they ask the Circuit Court to reverse the board’s decision and to award them court costs and attorney’s fees.

In August 1995, the Board of Land and Natural Resources approved an easement across state-owned land in the Conservation District that allows a koa logging company access it needs to cut and mill koa logs on more than 6,000 privately owned acres in the mountains of South Kona. The easement was given on the condition that the logging company, KoaAina Ventures, agree to a management plan that calls for logging only trees that are dead, fallen, or dying.

According to reports made to Environment Hawai`i by knowledgeable sources, the logging crews take any koa trees larger than 18 inches in diameter. A former worker said that when the staff from the Department of Land and Natural Resources’ Division of Forestry and Wildlife made an inspection earlier, “everything was okay,” but since then, “things have changed.”

In addition, this worker said, KoaAina has routinely dumped onto the ground waste oil collected during the maintenance of its on-site equipment, including tractors and the saw mill. When workers complained about this and other practices, Environment Hawai`i was told, most of them were dismissed in early December and a new crew was brought in from the mainland United States.

Because the site is so remote, it is difficult for responsible agencies to confirm the allegations. Under the conditions of the grant of easement, KoaAina is prohibited from causing or permitting “the escape, disposal, or release of any hazardous materials,” which are defined to include oil. “If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of hazardous materials by the Permittee [KoaAina], then the Permittee shall be responsible for the reasonable costs thereof,” the conditions state. “In addition, the Permittee shall execute affidavits, representations and the like from time to time at the state of Hawai`i’s request concerning the permittee’s best knowledge and belief regarding the presence of hazardous materials on the premises placed or released by the Permittee.”

(For further background on the BLNR’s initial approval, consult the [url=/members_archives/archives_more.php?id=1102_0_29_0_C]September 1995 Conservation District column[/url] of Environment Hawai`i.)

In 1995, the Board of Land and Natural Resources held 21 meetings. (The norm is 22, but the second meeting of July was cancelled owing to lack of a quorum.) By law, the board must approve minutes of its meetings within 30 days of the date the meeting was held. By the year’s end, however, the board had approved minutes for just 10 meetings.

For the first six months of 1995, in fact, the BLNR approved no minutes for any meeting held that year. The pace picked up a bit in July, when the January 13 and March 10 minutes were approved. In August, minutes were approved for the January 27, June 9 and July 14 meetings. September was a banner month, with approvals for minutes of meetings held February 10, April 13, April 28, and August 25.

Things have slowed since then. In October, minutes for the February 24 and September 29 meetings were announced on agendas for both board meetings; only the September 29 minutes were approved, while copies of the February 24 minutes were unavailable for board action.

Minutes for the February 24 meeting appeared again as an agenda item on November 17; once more, however, the minutes were not available by the time the board met.

No minutes were approved at the board meetings of December 15 or January 12, 1996.

At the year’s end, then, no minutes were available for BLNR meetings of February 24, March 24, May 12, May 26, June 23, August 11, September 15, October 13, October 27, November 17, and December 15. (The May 12 and September 15 minutes appeared on the agenda for the January 26 meeting, however.)

Not only are minutes lacking in quantity, they are also lacking in quality — at least when compared with minutes of board meetings going back to the mid-1980s. Minutes of the sort approved in 1995 are from two to three pages in length; in fact, they are so short that they do not contain a full reference to the agenda item up for discussion. Instead, a copy of the meeting agenda is attached as an appendix, so that anyone who wants to know the subject referred to in, say, agenda item H-3 must refer to the attachment. And, instead of the substance of people’s testimony being described — as was done in previous years — the minutes provide merely a list of people testifying and a cursory summary of board action.

Reorganization of the Department of Land and Natural Resources has resulted in the Office of Conservation and Environmental Affairs, which handles Conservation District matters, being folded into the Division of Land Management. Beginning in January, Roger Evans, the longtime administrator of OCEA, no longer makes the staff presentation on Conservation District matters to the board. Taking his place is Dean Uchida, administrator of the DLM.
The Division of Water and Land Development also has been incorporated into the Division of Land Management, and, in addition, has undergone a name change. Henceforth, it is no longer DOWALD but WALDO — the Water and Land Development Office. In another major change, longtime DOWALD administrator Manabu Tagomori has retired.

Finally, Governor Benjamin Cayetano is proposing to place under the DLNR’s administrative wing the Coastal Zone Management Program (now in the governor’s office, as part of the soon to be disbanded Office of State Planning) and the Office of Environmental Quality Control (now administratively under the Department of Health).

Volume 6, Number 8 February 1996