Readers of Environment Hawai`i have been treated regularly to discussions of one or another of the several problems that the Hawai`i Tropical Botanical Garden has had in complying with terms of its Conservation District permit. In April 1995, in an effort to remedy one such problem, the Board of Land and Natural Resources required the garden to open to the public a Hawaiian trail that was used for years exclusively to shuttle paying visitors to the garden. When the deadline for the garden to comply with the BLNR order was at hand, the garden went to court to obtain a restraining order prohibiting the public’s access.
When Dan Lutkenhouse, founder and director of the Hawai`i Tropical Botanical Garden, purchased the land on which the garden now sits, an unpaved trail extended down the face of a cliff, connecting the Old Mamalahoa Highway to the valley formed by the Alakahi and Onomea streams. Old maps and the recollection of long-time residents of the area indicate that the trail, called the Shuttle Road by Lutkenhouse, was used by the public since time immemorial for access to the valley.
Since 1982, public access to the valley has been closed. By that year, Lutkenhouse had erected a simple gate at the top of the trail. In later years, the gate became more elaborate, evolving into a metal drop-down gate, surrounded by razor wire and rebar spikes, and decorated with a host of no-trespassing and private-property signs. The visible razor wire around the gate has been removed. The razor wire in the grass around the gate has been replaced recently by barbed wire. But the public’s use of what is demonstrably a public trail remains as only a memory to some, or a vivid hope to others.
Their hope was bolstered on April 28, 1995. On that day, the state Board of Land and Natural Resources ordered Lutkenhouse within two weeks to clear a three-foot-wide path around the gate, which would allow members of the public pedestrian access down the trail leading to Onomea Stream. In addition, all no-trespassing signs were to be removed.
One of the conditions of the garden’s original Conservation District Use Application was that there be some provision of access to the shoreline. However, the board deferred action to enforce that requirement for 120 days, during which time Big Island Board Member Christopher Yuen was to attempt to work out among all parties involved — community groups and Lutkenhouse, primarily — some accommodation for shoreline access, which would involve travel over private property for a few yards.
Eleventh-Hour Reprieve
Shortly after the board’s action, Lutkenhouse asked Yuen about the exact deadline for compliance with the board’s order. In his response, dated May 1, 1995, Yuen informed Lutkenhouse as follows: “Roger Evans, who is the administrator of the Office of Conservation and Environmental Affairs [of the Department of Land and Natural Resources] informs me that when the BLNR does not set a specific time for compliance, his practice is to require compliance by the close of the business day. Under his practice, the deadline would be 4:30 p.m., Friday, May 12, 1995.”
Friday morning, Sandra Pechter Schutte, attorney for Lutkenhouse, filed a motion for a temporary restraining order prohibiting enforcement of the Land Board’s order for public access. By noon, Third Circuit Judge Riki May Amano had signed the TRO, staying any enforcement of the board’s action until 4:30 p.m. on Monday, May 15, 1995. At the same time, a court hearing on the garden’s request for an injunction extending the stay of enforcement was scheduled for May 15 at 2 p.m.
At the appointed hour, Judge Amano’s courtroom was filled with about 30 people, all of whom were eager to see the temporary restraining order lifted. After an hour-long meeting of attorneys with the judge in chambers, Dawn Chang, deputy attorney general representing the Land Board, emerged to inform the gathered crowd that Lutkenhouse’s lawyers had offered to allow, in lieu of seeking a permanent injunction pending a full trial on the merits of the case, limited public access between the hours of 7 a.m. and 5 p.m. No one present agreed to accept this.
In the end, a two-day hearing on the injunction was scheduled before Judge Amano on May 23 and 24.
Ancient Trail
Demands of the public to use the trail date back to 1991. However, Lutkenhouse appears to have been informed as early as 1978, the year he purchased the land, that the trail was a public access route. In a letter bearing the date July 20, 1978, then-Hawai`i County Planning Director Sidney Fuke wrote Lutkenhouse that the primary concern he and others had “is more in relation to access to the shoreline… [W]e informed you that your proposal [for a garden] should try to show an appreciation of that public access concern.”
A few days later, Lutkenhouse’s attorney, Stuart H. Oda, was asking Ed Harada, chief engineer for the county, about the possibility of purchasing an “old government roadway” across the land proposed for the garden. “I note that there is a ‘government’ road from the main highway toward the beach area along the cliff,” Oda wrote. “If the ‘roadway’ is owned by the county, would the county be willing to convey the same to my client if he purchased the property?” Harada replied on July 28, 1978: “We have no record of any government right-of-way or unimproved roadways” on the garden land. “As far as we know, the only government roadway existing within the vicinity of the area is the Old Mamalahoa Highway, which the county still maintains as a scenic route…. We suggest that the State Survey Office be contacted whether they may have maps that show the ‘roadway’ in question.”
In 1982, Lutkenhouse obtained from the county a Special Management Area permit for the garden. Condition No. 6, as originally written, required Lutkenhouse to provide a shoreline access plan. But in light of Lutkenhouse’s objections and the DLNR’s own finding that lateral, continuous access along the shoreline would be dangerous if not impossible, Fuke (by letter dated September 1, 1982) revised Condition 6 to read as follows: “Public access to and along the shoreline shall not be impeded by the applicant, his heirs or assignees.”
Land Board Concerns
Earlier, the Board of Land and Natural Resources had expressed similar concerns about public access. At its hearing on Lutkenhouse’s request for a Conservation District permit, then-Board Chairman Susumu Ono asked OCEA Administrator Evans specifically about public access: “Will you make a special effort to find out who has what rights pertaining to the public access?”
Evans responded: “That’s an excellent question, and our staff will get that input and have it analyzed in our analysis, Mr. Chairman.”
When the staff report was submitted to the Land Board on June 25, 1982, however, the question was given only cursory treatment. Notice was taken of a publicly used trail (known as the Donkey Trail) across an adjoining parcel. “[T]he only other access to the bay would be through the applicant’s property,” the report continued. “It is not clear whether the applicant will permit users of the bay to pass over his property for access to the beach area.”
The information did not satisfy board members, who, according to minutes, pressed the matter. One board member said he “would like to know more about the public access on the adjoining property. Is it usable and safe? If it is not, then the applicant should provide that public access to the beach because there really is no way to get down there, and it should be marked, ‘public access.'” The Donkey Trail (whose use by the public was vigorously protested by Lutkenhouse once he purchased the land) provides access to one small portion of the Onomea Bay shoreline at Onomea Beach. There, the trail connects via a ford across Onomea Stream to the trail that crosses the garden property — that is, the Shuttle Road.
As an OCEA staff submittal prepared for the March 24, 1994, meeting of the Land Board states, “It is clear to staff that the intent of the Board in approving this application was to preserve public access to the shoreline — whether it be through the garden parcel or the adjacent property.”
Conservation Conditions
Bearing out that interpretation, the Conservation District permit originally granted in 1982 contains three conditions regarding public access. Condition No. 26 provides that the DLNR “shall reserve the right to assess the safety of the existing established public access to the shoreline, and shall determine upon completion of a field investigation the need to impose a requirement for provision of additional public access.”
Condition No. 27 stipulates that if the access to and use of the shoreline is found to be safe, Lutkenhouse shall provide a public access plan to be used in the event that access across another trail over a parcel to the north of his property (a trail known as the Donkey Trail) becomes unusable.
Condition No. 28 reads, in its entirety: “That should continued access to and use of shoreline be found to be safe, the public shall be permitted to continue to utilize the aquatic resources present in Onomea Bay.”
Renewed Demands
For more than a decade, Lutkenhouse’s gate (erected without permission of the DLNR, it seems) kept out members of the law-abiding public — although Lutkenhouse continues to complain of frequent thefts and acts of vandalism. In addition, it would appear that Lutkenhouse desired to curtail public use of the Donkey Trail — the same trail he had acknowledged as a public access a decade earlier — by erecting a cable gate across its entrance and posting no-trespassing signs. He also started to claim that the Donkey Trail was dangerous, contradicting his 1982 assertions. Nor was access by water to be allowed: kayakers in 1992 found razor wire dangling in the water along the shore, well outside the limits of Lutkenhouse’s privately owned land.
Starting in 1991, a few residents began to inquire about what happened to their previous rights to use the old trail. Those inquiries combined with mounting public complaints, a new Special Management Area Permit application and a new Conservation District Use Application Lutkenhouse submitted (to allow for expansion of the garden northward, over the parcel crossed by the Donkey Trail) to bring the garden’s compliance with its original CDUA conditions under intense scrutiny by the DLNR.
In 1993, as a result of that scrutiny, Lutkenhouse submitted an amended permit application to cover several after-the-fact improvements. From March 1993 to March 1994, that application was under DLNR consideration, as well as a request for a contested-case hearing. In March 1994, the contested case request was denied, but the permit amendment application was approved, subject to payment of $2,500 in fines for the improvements built before permits were received.
Separately, the Land Board received a report from its staff on alleged violations of the original CDUA conditions. When the Pele Defense Fund requested a contested case hearing on the matter of condition compliance, however, the Land Board deferred any action to enforce the original conditions.
For yet another year, then, Land Board action was stalled as the Department of the Attorney General considered the legal standing of the Pele Defense Fund. All the while, though, the public’s demands for access down the Shuttle Road were mounting. Ongoing research into the matter of road ownership continued to yield more and more evidence in favor of public access.
Frustration
On April 28, 1995, the Land Board voted to deny the Pele Defense Fund its request for the contested-case hearing. The staff submittal, prepared by Catherine Tilton, staff planner at the DLNR’s Office of Conservation and Environmental Affairs, recapped many of the areas of concern by the community and the board. She concluded by recommending fines of $2,000 each for four violations of the garden’s Conservation District permit (for failure to comply with the historic sites reporting requirement; for failure to provide a site plan; for failure to provide public access; and for failure to complete work within the three-year deadline established in the permit).
Tilton also proposed that the Land Board amend or delete several conditions. With respect to public access, the board was asked to approve requirements that the garden work with the state trail agency, Na Ala Hele, to develop within 90 days a shoreline management plan. In addition, Tilton recommended that the garden be required to “remove any portion of the entrance gate … that encroaches onto the state-owned trail within sixty days.”
The board held off on imposing fines and amending conditions of the permit. As noted earlier, Board Member Chris Yuen was authorized to work with the garden and the public over the next four months, in an effort to come up with an access plan acceptable to all parties.
But the Land Board did take one bold step, ordering the removal, within fourteen days, of all no-trespassing and private-property signs, and the establishment of a pedestrian path around the gate and down the Shuttle Road. Within hours of the deadline for compliance, Lutkenhouse’s attorneys obtained the temporary restraining order. A court decision on whether to allow access pending a full court trial on the merits of the case had not been reached by press time.
Road or Trail?
The existence of a government trail following generally the alignment of the Shuttle Road seems to be acknowledged now by all parties, including Lutkenhouse. In the last few years, the state has conducted a title search as well as a survey by the Department of Accounting and General Services. The title search found clear references to a government road in parcel descriptions done in 1889. The state surveyor was able to identify at least the mauka boundary of the old trail. While in places it had eroded down the cliff face, enough remains intact to allow safe pedestrian access across the valley floor.
As early as October 1991, Ross Cordy of the DLNR’s Historic Preservation Division noted (in a letter to the Hawai`i County planning director) that “1860s grant maps clearly show that the main coastal trail connecting Hilo and Hamakua (the ‘alanui aupuni’) did pass through the project areas. Based on other areas in Hilo and Hamakua where 1840s-1850s documents label this trail the ‘alanui aupuni,’ this trail was the late prehistoric to early 1800s coastal trail. Later, this came to be called the ‘Hilo & Hamakua Road’ in the 1880s.”
Ed Johnston, who unsuccessfully sought a contested case hearing in 1993, has done additional research, finding that in 1873, Isabella Bird described the village of Onomea as “a native village … picturesquely situated,” with “a passable road” running through the valley. In 1913, historian Henry Walsworth Kinney wrote, “the Onomea settlement [is] one of the most easily accessible typical Hawaiian villages… Trails lead down into it on both the north and south side, it being possible to ride down one, through the settlement, where a small stream must be forded, and up the other.”
By 1994, Lutkenhouse seemed to admit defeat on the issue, acknowledging that the Shuttle Road was not part of his private property. Apparently regarding the County of Hawai`i as a friendlier venue than the state Land Board, Lutkenhouse attempted to get the county to assert its ownership over the road. This would set the stage for formal abandonment of the road by the county, with Lutkenhouse then able to purchase the property from the county.
In April 1994, Corporation Counsel Richard Wurdeman forwarded a letter to County Council Chairman Kalani Schutte, claiming that research indicated that the road belonged to the county. “As large portions of it have fallen away into the ocean, it is no longer of any use for transportation.” Attached to Wurdeman’s letter was a draft resolution of abandonment. The county Public Works Committee had a hearing on the resolution, but in the face of public testimony against it, the resolution was held in committee. (For details on this episode, see the June 1994 edition of Environment Hawai`i, “[url=/members_archives/archives_more.php?id=1282_0_30_0_C]Hawai`i County Considers Selling to Garden Road Claimed by State[/url]”.)
State Challenges
On May 18, 1994, the state of Hawai`i challenged Wurdeman’s claim of county ownership over the road. The state, wrote Deputy Attorney General Dawn Chang, “objects to the county of Hawai`i’s position and has, in fact, determined that said roadway is a state public trail, and accordingly, owned by the state pursuant to section 264-1(b) of the Hawai`i Revised Statutes.”
In a follow-up letter dated June 27, 1994, Chang elaborated: “We believe that the Old Government Road/Jeep Trail [the Shuttle Road] and the Donkey Trail are part of the Ala Loa coastal trail system of the island of Hawai`i. The Ala Loa coastal trails served as the main coastal public routes in prehistoric-early historic times and usually encircled each island along the shore. Registered Map 1649 prepared by A.B. Lobenstein in 1889 shows the Old Government Road and the Donkey Trail as one continuous road, passing over a ford at Onomea stream…
“It is undisputed that the subject right-of-way was in existence prior to the Highways Act of 1892 and, in fact, was in existence in 1862… Consequently, the trail system qualifies as a public trail pursuant to section 264-1(b), HRS, as it was declared a public right-of-way by the Highways Act of 1892. Moreover, since the trail has not been dedicated to the county of Hawai`i it is under the jurisdiction of the Board of Land and Natural Resources.”
Contrary Claims
Whether the Shuttle Road is under state or county jurisdiction is a matter that figures prominently in the complaint that Lutkenhouse has filed against the state over the Land Board’s order to allow the public to travel over the road. Attorney Schutte included the County of Hawai`i as a defendant, inasmuch as she asserts it to be “the owner of the government roadway remnants.” Appearing to ignore evidence to the contrary (including the letter from Ed Harada, county engineer, in 1978), Schutte claims that the roadway “had been owned and controlled by the county since 1892.”
In a responding brief, Deputy Attorney General Chang argued that the Shuttle Road was a “public trail” and therefore state property. “To constitute a ‘public trail’ under section 264-1, HRS, a trail must either: (1) have been declared a public right-of-way by the Highways Act of 1892, or opened, laid out, or built by the government, or otherwise created or vested as a non-vehicular public right-of-way at any time thereafter … or (2) opened, laid out, or built by private parties and dedicated or surrendered to the government.”
Takings? By Whom?
One of the arguments cited by Sandra Schutte in her complaint against the state is that the Land Board’s action was an unconstitutional taking of private property. Chang rebuts this point by noting that since Lutkenhouse has not complied with the Land Board’s order, “there can be no damages for taking private property.” “On the contrary,” she continues, “Plaintiffs have not paid the state a cent, not one penny, for use of state land.” Chang quotes Land Board Michael Nekoba’s statement to Lutkenhouse at the March 24, 1994, board meeting on this point: “I guess the one concern I have is that for 16 years, whether it [the road] is owned by the county or by the state, you’ve denied public access, use of this road; in a sense, treated it as your own. My concern is the 16 years of the public not being able to use that, [that the public] is not going to be ever compensated in any of this.”
— Patricia Tummons
Volume 5, Number 12 June 1995
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