What rights does the public have to the use of old government roads?
That question lies at the center of two disputes that have arisen on the island of Hawai’i over the last several years. One, near Pu’uwa’wa’a, appears to be on its way to a resolution that satisfies nearly everyone’s concerns. The other, involving roads that cross the Hawai’i Tropical Botanical Garden north of Hilo, is the subject of a contested case request before the Board of Land and Natural Resources.
Perpetual Right of Access Across Pu’u Lani Subdivision
In the area of Pu’uwa’wa’a, the gentleman-farmer estate subdivision of Pu’u Lani Ranch Phase II is well on its way to completion. Running through the subdivision, without respect to the lot plan, is an old government road, title to which remains with the state.
In the past, when confronted with such situations, the state responded by selling the road to the adjoining landowner for a token fee. In this case, too, the Department of Land and Natural Resources, the state’s landlord, seemed well on the way to selling the old roadway. In fact, at its meeting October 23, 1992, the Board of Land and Natural Resources approved the recommendation of the DLNR’s Division of Land Management that it “approve the direct sale of the [road] remnants to the applicant,” F. Newell Bohnett, the developer of Pu’u Lani Ranch.
As luck would have it, board action preceded announcement of the intended sale in the Office of Environmental Quality Control Bulletin, which did not carry the required notice until December of 1992. Following that notice – whose delay was the result of an oversight by the DLM – public comment was received that has resulted in the establishment, in principle, of a public hiking, bicycling, and equestrian trail through the subdivision.1
Most comments concerned the loss of resources represented by the sale of a public amenity to a private developer. The letter of Judy Graham, of Kamuela, is typical. She noted that the road “remnants” proposed for sale “are part of a longer, historic roadway… characterized by retaining walls for the roadbed built in the 19th-century Hawaiian fashion.” In addition, Graham wrote, privatizing the public roadway “curtails beneficial uses of the environment for the long term. There is a growing consensus among Waimea and Kona residents concerning the need to establish bikeways and greenways for public access in these days of rapid development.”
To be sure, the road was not all that it once was. A letter from Don Hibbard, director of the state Historic Preservation Division (part of the DLNR), in July of 1992 pointed out that the road had already been bulldozed in several areas proposed for sale to Pu’u Lani Ranch. Stone walls along the road had also been partially grubbed and graded, Hibbard informed the County of Hawai’i Department of Public Works.
In any event, after months of discussion involving the private trails groups E Mau Na Ala Hele and Peoples Advocacy for Trails Hawai’i, the state trails organization, Na Ala Hele, representatives of Bohnett and others, an agreement in principle was developed that provides for a perpetual easement to be granted to the public for access through the Pu’u Lani Ranch Phase II. The easement proposed by Bohnett will not follow the old Waimea Hu’ehu’e Road alignment, but instead will run along a new subdivision road.
Escalating Dispute Over Roads at Onomea
Readers of Environment Hawai’i will know that neither F. Newell Bohnett, developer of Pu’u Lani Ranch, nor Daniel J. Lutkenhouse, director of the Hawai’i Tropical Botanical Garden, is a stranger to controversy. But while the absorption of the old road traversing Bohnett’s subdivision was resolved more or less satisfactorily, there seems no similar end in sight for disputes concerning the old government roads that cross Lutkenhouse’s land.
Twenty-five years ago, when Hawai’i Tropical Botanical Garden was little more than an idea in the mind of Lutkenhouse, he met with then -Hawai’i County Planning Director Sidney Fuke, Bill Thompson, director of the DLNR, and others. In a follow-up letter, dated July 20, 1978, Fuke wrote Lutkenhouse: “As explained to you then [at the prior meeting], we are generally supportive of the concept to have that area turned into a botanical garden. Our primary concern; however, is more in relation to access to the shoreline area. We realize that the shoreline does not have a beach. However, shorelines have and continue to serve a variety of other functions, such as fishing. As such, we had informed you that your proposal should try to show an appreciation of that public access concern.” (Fuke was wrong about there being no beach along the shore. Alahahi Beach, while small, used to be accessible by an old government road.)
When Lutkenhouse came before the Board of Land and Natural Resources for permission to develop the garden, he was required to provide public access to the shore. Over the years, however, first one road then another became closed effectively to use by the public.
By 1991, it all became too much for Calvin K. Mukai, a young man who had lived his entire life in the nearby town of Papaikou. In a letter of August 30, 1991, Mukai asked the help of Merle Kai and Takashi Domingo, two members of the County Council, in restoring public access to Onomea Bay. “For years and years I have fished, swam, and surfed here. So has my family and friends, even my father as a young boy. Now the area is fenced up and has barbed wire with ‘No Trespassing’ signs. I realize that the area is private property, but doesn’t the shoreline remain open to the public? Shouldn’t there be access to the beach and ocean?”
Just about the same time as Mukai was writing, Lutkenhouse was seeking a Special Management Area (Minor) use permit for expanding the garden. In commenting on the permit application to then-Mayor Lorraine R. Inouye, Nelson Ho, conservation chair of the Moku Loa group of the Sierra Club, wrote: “Access to the botanical garden is presently gained through a road which appears to be a portion of the 1884 coastal road…. HTBG closed this road to the public some years ago and uses the road to transport the paying public to the botanical garden. Now, HTBC would like a permit to develop yet another road traditionally used by the public to gain access to Onomea, the ‘Old Donkey Trail.’ [A] cable has appeared across the opening of the donkey trail with a sign saying that trespassers will be prosecuted.”
By January of 1992, the Department of Land and Natural Resources had received several complaints regarding the matter of access to public areas. Not only had Lutkenhouse posted the Donkey Trail with signs indicating it was private property, as Mukai had reported, but kayakers reported Lutkenhouse had strung razor wire along the shoreline, creating a serious safety threat.
Lutkenhouse withdrew his expansion plans, but following inspections related to the complaints about lack of public access, the DLNR found that certain improvements had been made to the garden without appropriate Conservation District permits. This led Lutkenhouse to file for an after-the-fact permit in late 1992, covering existing as well as proposed structures. In addition, the Department of Land and Natural Resources, responding to concerns of its trails division, Na Ala Hele, requested a state survey of the garden area in an effort to learn the extent of old government roads crossing the land.
Lutkenhouse Conservation District Use Application required a public hearing, which was held in Hilo on March 24, 1993. At that time, Ed Johnston, a former employee of the garden, asked for a contested case hearing on the application.
Board action on Johnston’s petition for a contested case may not occur for several months. In the meantime, the scope of the issues before the Board seems to have expanded. Lutkenhouse’s use of the 1884 coastal road – a steep road along the face of a cliff, used now exclusively for park visitors – has been brought into question, since it is the only access to Alahahi Beach. (Lutkenhouse refers to this as the “Jeep Road.” It is also called the “Shuttle Road,” since it is the route taken by the park shuttle carrying visitors from the parking area to the garden.)
Lutkenhouse has contended he should be able to purchase what he describes as “road remnants.” According to an agenda Lutkenhouse prepared for a meeting June 14, 1993, with Hawai’i Mayor Steve Yamashiro and County Planning Director Virginia Goldstein, Lutkenhouse appears to have urged Yamashiro to “suggest that the state abandon or sell their alleged claim or interest in both the Donkey Trail and Jeep Trail as remnants.” (He also asked Yamashiro to “urge the DLNR to reject the contested case filed by our disgruntled employee. This they can do, discuss with Sandy Schutte thus saving the Government and HTBC future red tape and expenses.” Schutte is Lutkenhouse’s attorney.)
Should Yamashiro be unwilling to go along with the idea he recommend the sale of the roads to Lutkenhouse, Lurkenhouse presented him with “a last alternate regarding ‘Access’ via the Donkey Trail.” Yamashiro, he suggested, would recommend to the state that such access “be controlled,” apparently to minimize liability.
1 For a more detailed discussion of events up to this point, readers may turn to a February 1993 article of Environment Hawai`i, [url=/members_archives/archives_more.php?id=1156_0_31_0_C]”Sale of Roads to Bohnett Raises Outcry”[/url].
Volume 4, Number 4 October 1993
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