(Photo above: fisherfolk camping in state Conservation District at Lepeuli Beach Sept. 16, 2011. Vehicles access beach via permission of landowner Waioli Corporation and/or their lessee Bruce Laymon through Waioli property.)
Obtaining enforcement from the Kauai County Planning Commission and the state Department of Land and Natural Resources Office of Conservation & Coastal Lands to order the illegal fencing at Lepeuli removed would be made much easier if the Kauai County Planning Director at the time that granted Paradise Ranch the SMA Permit, Ian Costa, had required a current Shoreline Certification survey done for Lepeuli as a condition of the SMA permit. The most recent one is the link below, from 1978.
State and county planning regulators understandably wish to know with precision where one area of responsibility begins and ends. The Kauai County Planning Department, in Lepeuli, has responsibilty for the SMA Area, which for purposes of this explanation, runs from 300 feet mauka of the shoreline inland to a certain point. The state enforces its Conservation District regulations from that 300 foot line seaward (makai). So, obviously, all involved need to know where 300 feet from the shoreline is in Lepeuli.
In February 2011 the local chapter of the Sierra Club requested the state Land Use Commission, LUC, to create a Boundary Interpretation document for Lepeuli so we could know exactly where this boundary line is. To do this the LUC could have made a site visit or relied on a survey map and mark the boundary on it. Only the state can do that with certainty, not a private surveyor. They took the survey created by Alan Hirnaka and placed their boundary upon it. The only shoreline data available was from the 1978 survey. The LUC issued the Boundary Interpretation June 25, 2011. Click the link below to view it.
They determined the boundary seperating the Conservation District area from the SMA Area was significantly more mauka than where surveyor Hiranaka placed it. The practical result is that the lateral, coastal trail is, according to the Land Use Commission, entirely within state, not county, jurisdiction, as is a significant amount, but not all, of the fencing installed May 21, 2011. Since there has been erosion at this location since 1978, any boundary line based on current shoreline data would be even more mauka.
This conflicts directly with the statement of Les Milnes, a Kauai County Planner, who stated in a Field Investigation Report dated May 25, 2011 "The installed ag field fencing is mauka (inland) of Cons./Ag district line as sighted by surveyor on 1/20/11." The county position is that ALL fencing installed May 21, 2011 is county responsibility and is in the SMA Area in the Agricultural District.
After the Boundary Interpretation was issued and distributed to those who requested it, it was rescinded on the grounds that a current (within one year) Certified Shoreline survey did not accompany the request. The Boundary Interpretation was stamped with the endorsement
"APPROXIMATE STATE LAND USE AGRICULTURAL/CONSERVATION DISTRICT BOUNDARY (FOLLOWS 300 FT. SETBACK AND SHALL BE SUBJECT TO A VALID CERTIFIED SHORELINE SURVEY)"
We have a situation in Hawaii where only the landowner can request a Certified Shoreline survey. And a Certified Shoreline is needed for a valid Boundary Interpretation. So, what if an island planning department waives the requirement for such a survey? What if the landowner refuses to get such a survey, as is the case here in Lepeuli? The mess we have today is the result. In 2012 the legislature is going to be asked to correct this loophole. The shoreline belongs to the PEOPLE, not private landowners. It only seems logical the People should be able to have it surveyed if need requires. And here in Lepeuli is an obvious need.