The Board of Land and Natural Resources has approved a mediated settlement to resolve several issues surrounding Conservation District violations at the Hawai`i Tropical Botanical Garden, near Hilo. But within days of the board’s action, the garden was accused once more of breaking faith with the public and violating the clear language of the settlement by erecting a gate across the public’s path down an old government trail. Despite immediate protests to the garden and its attorney, the gate remained up for more than a week.
The agreement was the product of six weeks of intensive negotiations involving the ad hoc group, Share Onomea Access, and its spokesman, Ed Johnston; the garden’s attorney, Sandra Schutte; the state’s attorney, Dawn Chang; and the appointed mediator, former Judge Shunichi Kimura. In a final gracious note, Kimura waived his fees.
Although controversy over the garden’s violations led to a degree of acrimony in previous board discussions, the mood of all parties to the negotiations was cordial when the matter was brought to the Land Board for approval at its October 27 meeting, held in Hilo.
The settlement allows unimpeded, 24-hour-daily pedestrian access over the old government road that had been used exclusively by the garden since 1982.
In addition, the public is to receive access from the road to the beach at the mouth of Alakahi Stream. Documents found by Rick Warshauer, a member of the Share Onomea Access group, indicate clearly that the state is the owner of part of the land previously claimed by the garden. Although the full extent of state-owned land remains vague at this point, it seems clear that the state owns at least a corridor of land running along the north side of Alakahi Stream, connecting the government road to the beach at the shore. This discovery gave weight to the demand of the state and Share Onomea Access that the garden allow pedestrian access to the beach at the mouth of Alakahi Stream. Until a survey of government land is completed (another element of the settlement), the public is to travel along the more difficult terrain of the south (Hilo) side of Alakahi Stream. The access path is to be cleared and fenced as soon as possible, with state providing the labor and the garden providing the fencing as an in-kind payment of fines assessed for Conservation District violations.
Signage, to be installed by the garden before the end of the year, is to clearly indicate areas where the pedestrian public may travel without fear of trespass. Also, the county of Hawai`i has agreed to establish public parking areas for at least three vehicles along the Old Mamalahoa Highway (also known as the Scenic Route).
Dissent
Not everyone was satisfied with the agreement. In his testimony to the board, Rick Warshauer objected to the placement of the public path along the south side of Alakahi Stream to the shore. Rather than place the path on what is private property, the state should insist on the path going along what is almost certainly public property on the stream’s north side. This, Warshauer said, made much more sense, even given the fact that the pathway is subject to relocation following the state survey and determination of state property in the area.
Warshauer also objected to closing the road to vehicular access by the public. “Onomea is one of the best places to put in kayaks” along the eastern side of the Big Island, he noted. “Vehicular access should be available” for kayakers and “also for kupuna” who might have difficulty getting to the shore otherwise.
“Right now, the only people who get to use the road as a road is the garden,” Warshauer told board members. “And you guys are sanctioning that if you agree to that. They can legally drive down, and we can’t. And they can lock the gate at the end of the day, as they do every working day, and lock everybody else out. And that’s not fair. What’s good for the goose is good for the gander. If we can’t drive, they can’t.”
Garden’s Woes Grow With Injury Lawsuit
In 1991 and 1992, the Land Board began receiving complaints that Lutkenhouse had lined the shores of Onomea Bay with razor wire in an effort to prevent access to his garden by people in kayaks or boats. The razor wire was initially placed on fence posts set into cement within the shoreline area, according to eyewitness reports. At first, Lutkenhouse said he had only placed razor wire at his property line, to prevent plant thefts and vandalism, denying that he had attempted to block shoreline access. However, he later told Dave Smith of The Hawai`i Tribune-Herald that “one little strand” of razor wire had rusted away from a post on a bank between the ocean and his property, and later still, acknowledged other “remnants” of razor wire had been removed.
Now, the razor wire is coming back to haunt Lutkenhouse. On October 18, two brothers, Todd and Glenn Loa, sued the garden, Lutkenhouse, Lutkenhouse’s wife, Pauline, and the Lutkenhouse trust, seeking damages for injuries sustained by Todd Loa in late 1993. Todd Loa was injured, the lawsuit says, when he encountered a “booby-trap” of razor wire in vegetation he went through while trying to get around Lutkenhouse’s gate across the government trail.
The suit seeks unspecified real and punitive damages. A jury trial has been requested.
— Patricia Tummons
Volume 6, Number 6 December 1995