{"id":11832,"date":"2019-10-01T19:05:31","date_gmt":"2019-10-01T19:05:31","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=11832"},"modified":"2019-10-27T20:49:09","modified_gmt":"2019-10-27T20:49:09","slug":"pohakuloa-ruling-spurs-motion-for-reconsideration-in-kahala-case-2","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=11832","title":{"rendered":"Pohakuloa Ruling Spurs Motion For Reconsideration in Kahala Case"},"content":{"rendered":"\n

UPDATE:<\/strong>\u00a0The judge has denied the motion for reconsideration.\u00a0SEE\u00a0OUR EH-XTRA\u00a0ITEM<\/a>.<\/p>\n\n\n\n

On October 1, 1st Circuit Judge Jeffrey Crabtree was scheduled to hear arguments on David Kimo Frankel\u2019s latest motion in his fight against a revocable permit the Board of Land and Natural Resources issued in November 2018 to ResortTrust Hawai\u2018i, LLC for use of a beachfront parcel fronting the Kahala Hotel & Resort. <\/p>\n\n\n\n

Despite holding a permit that allowed for recreational and maintenance purposes only, the hotel had for years been conducting what most would consider to be commercial uses on the property: renting beach cabanas and other equipment, placing a portion of a restaurant in the area, and hosting weddings. <\/p>\n\n\n\n

Last month, Environment Hawai\u2018i <\/em>reported on how Judge Crabtree largely rejected Frankel\u2019s arguments that an environmental review would need to be done and a Special Management Area use permit obtained in advance of the Land Board\u2019s award of the permit. The judge also disagreed with Frankel\u2019s claim that the board needed to draft better rules to govern the issuance of its revocable permits. <\/p>\n\n\n\n

With regard to Frankel\u2019s claim that the\nboard had breached its public trust duties\nin issuing the permit \u2014 which allowed\nfor the setting and possible renting of\ncabanas, loungers and other equipment\non the parcel \u2014 Crabtree stated that the\nHawai\u2018i Supreme Court has only applied\nthe public trust doctrine to water and lands\nin the Conservation District, which this\nparcel was not.\n<\/p>\n\n\n\n

\u201c[T]here is no recognition under Hawai\u2018i\nlaw that the public trust doctrine applies to\nthis urban parcel,\u201d Crabtree wrote in a July\nminute order.\n<\/p>\n\n\n\n

But in its August 23 ruling in a case involving the Land Board\u2019s management of its lease for the Pohakuloa Training Area (PTA) on Hawai\u2018i island, the state Supreme Court held that under the state constitution, \u201call public natural resources are held in trust by the state for the common benefit of Hawai\u2018i\u2019s people and the generations to come. Additionally, the constitution specifies that the public lands ceded to the United States following the overthrow of the Hawaiian Monarchy and returned to Hawai\u2018i upon its admission to the Union hold a special status under our law. These lands are held by the State in trust for the benefit of Native Hawaiians and the general public. Accordingly, our constitution places upon the State duties with respect to these trusts much like those of a common law trustee, including an obligation to protect and preserve the resources however they are utilized.\u201d <\/p>\n\n\n\n

The court also held that the state had a\nduty to reasonably monitor \u201ca third party\u2019s\nuse of the property, and that this duty exists\nindependent of whether the third party has\nin fact violated the terms of any agreement\ngoverning its use of the land.\u201d\n<\/p>\n\n\n\n

The court\u2019s ruling led Frankel, an attorney for the plaintiffs in the Pohakuloa case, to ask Crabtree to reconsider his ruling regarding the application of the public trust doctrine to the Kahala parcel. <\/p>\n\n\n\n

Frankel\u2019s motion for reconsideration, filed September 6, is one of the first motions \u2014 if not the <\/em>first motion \u2014 relying on the high court\u2019s decision, which found that the Land Board had breached its trust duty to protect lands leased to the U.S. military as part of the PTA (see related story in this issue). <\/p>\n\n\n\n

The area covered by ResortTrust\u2019s revocable permit has been identified by the Department of Land and Natural Resources (DLNR) as ceded land. <\/p>\n\n\n\n

\u201cThe Supreme Court\u2019s recent decision\nin the Pohakuloa case demonstrates that\nthe BLNR defendants do in fact have trust\nduties in managing the beachfront parcel,\u201d\nFrankel argued.\n<\/p>\n\n\n\n

He pointed out that Russell Tsuji, administrator for the DLNR\u2019s Land Division, stated in a declaration that the Land Board had never authorized commercial use of the permit area. Despite the fact that ResortTrust admitted that at certain times between July 1, 2016, and June 30, 2018, it rented clamshell lounge chairs and cabanas, sold and served food and alcohol, and hosted weddings (for which it charged thousands of dollars), the state\u2019s attorneys refused to concede that commercial use occurred on the property during that time. <\/p>\n\n\n\n

The hotel has since removed all cabanas and clamshell loungers and its restaurant from the parcel and no longer holds weddings there. Even so, Frankel argued that the Land Board allowed a \u201cmulti-million dollar corporation to illegally profit off of public land with impunity. It was unreasonable, and a breach of its trust duties, for the BLNR defendants to ignore obvious commercial uses of Lot 41 and fail to collect additional rents and fines for the unauthorized uses.\u201d <\/p>\n\n\n\n

In light of the Pohakuloa decision, Frankel asked the judge to grant his motion for summary judgment with regard to his claim that the Land Board breached its trust duties. If the motion is granted, the Land Board will either have to initiate an enforcement action or justify to the court why it did not pursue one. \u2014Teresa Dawson <\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

UPDATE: The judge has denied the motion for reconsideration. SEE OUR EH-XTRA ITEM. On October 1, 1st Circuit Judge Jeffrey Crabtree was scheduled to hear arguments on David Kimo Frankel’s latest motion in his fight against a revocable permit the Board of Land and … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":11829,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[459],"tags":[],"class_list":["post-11832","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-october-2019"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11832","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=11832"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11832\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/11829"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11832"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11832"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11832"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}