Saturday, September 24, 2011

Whose Shoreline Is It, Anyway?

(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


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.

Friday, September 9, 2011

Trail To Nowhere: Na Ala Hele Trail Moloaa-Kaakaaniu

A pedestrian trail held as a perpetual public easement makai of Moloaa Bay Ranch runs from Moloaa Beach north to Kaakaaniu. It is administered by the Na Ala Hele program, a part of the Hawaii Department of Land and Natural Resouces. One is able to walk along the trail from Moloaa to Kaakaaniu, which offers stunning views of Moloaa Bay and occasionally sea turtles below, until you reach an abrupt end at a fence at the boundary of Kaakaaniu, owned by Patricia Hanwright. The easement trail is part of a state trail and access program, but it is not yet on the Na Ala Hele website or correctly identified with official state trail signage. The first sign pictured above at the beginning of this entry, installed by a private party, doesn't even have anything written on it. This is just behind Moloaa Beach as you start on the trail north.
This sign fell down, or was pushed down.

Above: Dead bird. Probably killed by an unleashed dog. Below images show fencing blocking end of trail. Fences erected under authority of Patricia Hanwright, owner of three parcels of land in Kaakaaniu ahupua'a.

Fence post and fencing cuts off Moloaa-Kaakaaniu trail here at Kaakaaniu boundary. Fencing runs mauka uphill and right, parallel to sea. In this photo immediately above, boulders lead down to sea. I am not going to walk there, that is unsafe and will result in injury. Yet, Patricia Hanwright says if people want to access the coast this is how they have to go. This is illegal. State law allows for lateral transit in which you do not endanger your safety. Chapter 115 of the Hawaii Revised Statutes, Section 9 states:

§115-9  Obstructing access to public property; penalty.  [Repeal and reenactment on June 30, 2013.  L 2010, c 160, §7.]  (a)  A person commits the offense of obstructing access to public property if the person, by action or by having installed a physical impediment, intentionally prevents a member of the public from traversing:
     (1)  A public right-of-way;
     (2)  A transit area;
     (3)  A public transit corridor; or
     (4)  A beach transit corridor;
and thereby obstructs access to and along the sea, the shoreline, or any inland public recreational area.
     (b)  Physical impediments that may prevent traversing include but are not limited to the following:
     (1)  Gates;
     (2)  Fences;
     (3)  Walls;
     (4)  Constructed barriers;
     (5)  Rubbish;
     (6)  Security guards;
     (7)  Guard dogs or animals; and
     (8)  A landowner's human-induced, enhanced, or unmaintained vegetation that interferes or encroaches within beach transit corridors.
     (c)  Obstructing access to public property is a misdemeanor.
     (d)  Minimum fines for violation under this section shall be as follows:
     (1)  $1,000 for a second conviction; and
     (2)  $2,000 for any conviction after a second conviction.
     (e)  As used in this section:
     "Landowner" means the record owner of the property or the record owner's agent, including a lessee, tenant, property manager, or trustee.
     "Person" means a natural person or a legal entity.
     "Public recreational area" means public lands or bodies of water opened to the public for recreational use. [L 2004, c 169, §2; am L 2010, c 160, §4]

In Hawaii, people have the right to access the beach and ocean. Hawaiian Kingdom laws, Territorial Laws, and State Laws today (as above) all guarantee this right. Private landowners, from the mainland mostly, especially those holding choice coastal parcels, value their privacy and many have a sense of entitlement that by virtue of their birth, status, wealth, who they know, or geneology, they seek to push upon the community. Who was it that said laws are for the "little people"?

Patricia Hanwright has erected two visible sets of fencing in Kaakaaniu. One is depicted in the photos you have just seen at the Moloaa end of her property. The State of Hawaii Na Ala Hele program claims a trail right through that fencing as it feels that trail is part of an ancient ala loa trail. The second set of fencing done on Patricia Hanwright's property is visible from the Lepeuli public trail by looking southeast. These are the three images above. The bottom image (immediately above) is a close-up of the fencing.

The fencing in these photos is illegal as Patricia Hanwright never obtained a state Conservation District Use Permit (CDUP) to install the fencing. The fencing depicted above at the Moloaa-Kaakaaniu boundary, also needed a Conservation District Use Permit for construction. However, that violation is more serious as it actually cuts off pedestrian access according to Hawaii Revised Statutes (HRS). Patricia Hanwright is well aware of where the state Conservation District Boundary line is on her properties in Kaakaaniu, as a Shoreline Certification was performed by surveyor Dennis Hashimoto and signed by the Chairperson of the state Department of Land and Natural Resources May 7, 1992. This document (above, click to enlarge) shows the Conservation boundary line at 300 feet mauka of the shoreline. My photographic evidence depicts both sets of Kaakaaniu fencing within 300 feet of the shoreline. Patricia Hanwright is clearly in violation.

In 2011 Patricia Hanwright apparently engaged the services of a surveyor again. Survey stakes were observed marking her property line at the Lepeuli end of Kaakaaniu. A vandal subsequently removed many of her stakes, and she contacted the Kauai Police Department and filed a complaint. The police report of that complaint is at the link below. Kauai Naturists opposes the use of illegal behavior to protest the illegal acts of others. We encourage legal means such as letter writing, petitions, hearings, lawsuits etc. to achieve these ends. We certainly do urge all members of the community to speak up for what is right, but not to break the law.

The link above describes the legal procedure for how the State of Hawaii obtains historic trails. This is from the website of the Na Ala Hele Trails Program, a part of the state Department of Land and Natural Resources, Division of Forestry and Wildlife.

The link below is a list of the members of the newly-reactivated Kauai Na Ala Hele Trail Advisory Council.

Contributed by Richard Spacer.

Tuesday, September 6, 2011

Intimidation & Lying Rule Of The Day On Kauai

Naturists at Lepeuli (Larsen's) Beach are fighting cattle rancher Bruce Laymon and his landlord Waioli Corporation for keeping safe, lateral beach access open for all, naturists and non-naturists, the public, to this beautiful place. Bruce Laymon and his Paradise Ranch intentionally violated their county-issued Special Management Area Permit by violating Condition 6 and blocking the lateral coastal trail.

In the pursuit of our goal to maintain safe, gentle, access for all beachgoers, we have learned things about a beachfront neighbor named Patricia Hanwright, who owns three shoreline properties in the adjoining ahupua'a of Kaakaaniu. This is the land directly southeast of Larsen's you can see from the trail up high between the parking lot and the start of the steep trail. As you face the ocean this is on your right with the Larsen's parking lot behind you.

Kaakaaniu owner Patricia Hanwright has created a few signs advising where trails are and where protected plants are, and posted such signs on fencing between the County of Kauai public right-of-way to the beach and a remnant portion of Waioli Corporation property, located between the public trail and Kaakaaniu, on Waioli Corporation fencing, and on an ironwood tree on county property. We are perplexed as to why this person is placing signs on trees and fences that are NOT on her property. Who exactly is authorizing this?

The white sign immediately above, with "beach access" and a left arrow, points to the steepest of the three trails to Lepeuli Beach. This steep trail, which was obtained as an easement by Kauai County from Waioli Corporation in 2010, is not able to be used by a significant percentage of the community due to its steepness. Please click on the link below and read page 3 of the actual Grant of Pedestrian Access Easement document at point 3. "Improvements Within Easement Areas". The right is reserved to construct and install the following improvements: walls and fences are among those listed. Why would the Kauai community want a beach public access easement the landowner reserves the right to wall or fence?!

What Patricia Hanwright does NOT tell you by signage, is that just to the RIGHT of the ironwood tree her sign is on, lies another trail to Lepeuli. This trail, owned by Kauai County in fee-simple, obtained from Waioli Corporation in 1979 for $6,900., has been allowed to fall into neglect. Trees overgrow the trail, as does thick brush. It was even fenced off for years. How can a public trail be fenced off!? In 2010 the fencing blocking this PUBLIC trail was finally cut. However, the County of Kauai, in its nonfeasance, has not restored this 1979 trail to safe, walking condition, complying with its duty of care to the public. The county cannot legally allow its roads, highways or trails to be neglected. Obtaining the 2010 easement trail does NOT absolve the county of maintaining the 1979 trail. Neither of these two trails is maintained by the county. Why is that? When a public works employee was asked when the steep 2010 trail was going to be weed-cleared, he said 'We have been told to do no more work on this trail." Since that time Hanwright confidante and neighbor Steve Frailey has stated it is he who maintains the trail! How can that possibly be? This is county responsibility.

 Besides creating artsy signs, Patricia Hanwright, from Ketchum, Idaho, has been busy with her mainland attorney Laura Barzilai in denying that any ancient, lateral ala loa trail ever existed in her three coastal parcels. This foolish position is in union with the opinion of Waioli Corporation, landowner of the land mauka (inland) of Larsen's Beach at the ahupua'a of Lepeuli. Ms. Barzilai lacks the knowledge and cultural sensitivity to work in land law here. Any Hawaii real estate attorney that lacks understanding of the Highways Act of 1892 and its derivative statutory law today should not be in business. Any real estate attorney practicing law in Hawaii must understand that coastal trails encircled each island for tax collection purposes for centuries, and that such trails were also used as lookouts for residents to scan the ocean for invading warriers on canoes from neighbor islands. These trails existed in 1892 at the time of the passage of the Highways Act, which guaranteed that public and even private ways in existence at that time would remain public, and accordingly, they are public trails today. These trails were the highways of the day when residents did not use canoes to travel from one part of the island to the other. Before there was Koolau Road, which was the Government Road until Kuhio Highway was built, there was the ala loa trail.
The following two emails from attorney Laura Barzilai reveal her attitude, and the attitude of her client Patricia Hanwright, to public access to lateral, coastal trails.
"Further, I would like to add that there is no Kaakaniu Public Lateral Trial and there never has been.  All communication on this issue will be between Mrs. Hanwright and Ron Agor, Kauai representative of the State Land Board."  (Email, Laura Barzilai to Richard Spacer June 28, 2010 6:55 AM)
"Aloha Jerry,
Thank you for taking my call regarding the issue involving Hope and Richard Spacer.  As I said, I wanted to advise KKCR that it was reported to me by my client and her neighbors that on or about July 14, 2010, Hope and Richard Spacer were guests on the Blue Grass Radio Show, during which time they instructed listeners to commit the crime of trespass upon my client’s private property on non-existent trails southeast of Larsen’s Beach.  Any and all trespassers found on my client’s property will be immediately reported to the Kauai Police Department and prosecution will be pursued.   We now intend to report Mr. and Mrs. Spacer’s instructions to the police. Thank you for following up with your on-air programmers regarding this issue, and thank you again for your attention. 
Laura Barzilai."
(Email, Laura Barzilai to Jerry Brocklehurst July 22, 2010 2:54 PM) Jerry is the general manager of public radio station KKCR.
Neither Hope Kallai, Tim Kallai, or myself have been arrested over this matter. We cannot be. We said nothing illegal. It has been 13 months since we were on air. The police chief knows how to find us. He has my email and the contact details of the Kallai's. We did not instruct anyone to tresspass. A complete review of the audio of the two KKCR shows on July 6, 2011 and July 13, 2011 by those interested will confirm this. Hope Kallai and myself were on the July 6, 2011 show. Hope and Tim were on July 13. I was not on air July 13th. There is no Mrs. Spacer as Laura Barzilai alleges. Please ask KKCR for copies of the audio for you to review yourself and make your own decision. You may be charged for them. Below is a link to the complaint letter I sent to the entity that regulates attorneys in Hawaii. It is a complaint form against Hanwright attorney Laura Barzilai. If you read it it is self-explanatory.

The reply from the state Bar Association to the above complaint form is pathetic. A friend of mine once said lawyers belong to a white collar union called the bar association in their state. They all cover each other like the police do, right or wrong.

The non-akamai Laura Barzilai is engaged in bullying and intimidation by trying to silence First Amendment free speech protected public discussion by myself and others of the fact that the State of Hawaii claims a lateral trail through Kaakaaniu.

Patricia Hanwright apparently thought she would own free and clear without drama and complications her three Kaakaaniu parcels when she bought them. She is wrong. The Kaakaaniu Hanwright properties are not even land-courted, unlike the Lepeuli property owned by Waioli Corporation, something I learned researching at the Bureau of Conveyances in January 2011 during a trip to Honolulu. Patricia Hanwright confidante and neighbor Steve Frailey, also a friend and supporter of Bruce Laymon, told activists in the autumn of 2009 that "all these properties are land-courted." Meaning Patricia Hanwright's coastal properties and Steve Frailey's. I checked in January 2011 and they are not. And we learned June 27, 2011 at a meeting of the Kauai County Planning Commission that being a land court property does not make you immune from a state claim for a public trail, per DLNR Chairperson William Aila's memo to Kauai County Interim Planning Director Michael Dahilig. This memo was countersigned by two Deputy State Attorneys General named William J. Wynhoff and Donna H. Kalama.

Contributed by Richard Spacer.