SUBHEAD: It is a good time to let the DLNR revisit this issue, after Lingle's laura Theilen is gone and under Abocrombie's new chairperson pick, William Aila.
By Paul Curtis on 11 December 2010 for Garden Island News -
(http://thegardenisland.com/news/local/article_380d2a08-05bf-11e0-a69f-001cc4c002e0.html)
Image above: Teddy Blake explains some of the historical aspects of Hapa Trail. Photo by Dennis Fujimoto from original article.
Fifth Circuit Judge Randal Valenciano on Tuesday ruled the state owns the historic Hapa Trail on the South Shore.
For years the county had claimed ownership, even to the point of approving a controversial breach of the trail to allow access to a residential subdivision in Po‘ipu.
While the case of citizens suing the county and other entities claiming that allowance of access was illegal appears to be out of court for now, attorneys on both sides of the dispute are still at odds over what Valenciano’s rulings actually mean.
Deputy County Attorney Ian Jung said Valenciano dismissed the lawsuit, Theodore K. Blake versus the County of Kaua‘i Planning Commission et al. But David Kimo Frankel, staff attorney of the Native Hawaiian Legal Corporation representing Koloa resident Blake, said he isn’t sure if he needs to appeal Valenciano’s decision because he’s not sure the judge actually dismissed the lawsuit.
State court records show Valenciano made three decisions on several motions brought in the civil case:
— Hapa Road is a state road;
— No final agency action has happened (Frankel said that means no final subdivision approval has been issued, a statement disputed by Jung);
— The court does not have subject matter jurisdiction as to all counts (Jung reads that to mean case dismissed; Frankel disagreed).
Valenciano told Linda Chow, state deputy attorney general representing DLNR, to prepare the orders.
Chow could not be reached for comment by press time.
Stacey Wong, Knudsen Estate trustee, said he was told by his attorney, Honolulu-based Michael Tom, not to discuss the matter with the media.
Tom could not be reached by telephone or e-mail. Blake deferred comment to Frankel.
Contacted parties all agreed that any request by Knudsen, developer of the Village at Po‘ipu subdivision, to breach Hapa Trail must now be made to DLNR.
Hapa Trail is a non-vehicular extension of the county’s Hapa Road that runs from St. Raphael Church to its terminus at Po‘ipu Road.
That breach represents the only vehicular access to the subdivision to hook up with Kiahuna Plantation Drive. No direct access to Po‘ipu Road is allowed.
“The judge ruled that because the state of Hawai‘i did not yet grant an easement over Hapa Road Mr. Blake’s claims were not ripe,” Jung said in an e-mail.
“The judge further ruled that given the state of Hawai‘i is the owner of Hapa Road the Knudsen Trust will have to pursue obtaining an easement from the Board of Land and Natural Resources or reconfigure the roadway lots,” he said.
Frankel basically agrees with those two claims.
“The Village at Po‘ipu Phase One subdivision approval remains valid,” Jung said.
Frankel disputes that statement, saying final subdivision approval has not been issued, something he said Valenciano concurred with in his second ruling on 11 motions that had been filed in the case.
Others named as defendants in the suit are the County of Kaua‘i Planning Department, former Planning Director Ian Costa, the state Department of Land and Natural Resources, Laura Thielen as former DLNR and state Board of Land and Natural Resources chair, and the Eric A. Knudsen Trust, owner of the land on the makai side of the trail.
Blake’s lawsuit contends that:
— The process of considering the Village at Po‘ipu development proposal violated the state public-trust doctrine;
— In the process of considering the trust’s application for final subdivision approval of phase one of the development, defendants failed to thoroughly investigate and protect Native Hawaiian rights;
— Defendants failed to comply with the requirements of state administrative rules governing the review process the state DLNR State Historic Preservation Division is to follow in making comments to state and county agencies on entitlements affecting historic properties;
— The development threatens to cause irreparable injury to burial sites and other historic sites;
— Defendants failed to comply with the objectives, policies and guidelines of certain state law, specifically the protection, preservation and restoration of historic and prehistoric resources in the coastal-zone-management area that are significant to Hawaiian history and culture;
— A supplemental environmental impact statement is required to address a plan to cross Hapa Trail with a street.
While defendant Blake on advice of Frankel would not talk about Tuesday’s court action, Louie Abrams, president of the Koloa Neighborhood Association, would.
“We had some strong opposition to the breach of Hapa,” he said, and voiced those concerns to the Planning Commission repeatedly.
When the commission denied the breach would do irreparable damage and approved permits for the development, Blake sued.
At issue are Native Hawaiian customary, cultural and gathering rights, and preservation of a unique archaeological and agricultural area that archaeological experts said is one of a kind in all the Pacific Rim, said Abrams.
SHPD had no idea it was a historic road, said Abrams. If SHPD knew it was a historic road maybe they should have fought for trail protection, he added.
Abrams said it is “distressing” that a lot of volunteer work on a traffic-circulation system for the Koloa and Po‘ipu areas might be all for naught if the trust is allowed to build a vehicular road over the top of Hapa Trail.
“We were trying to designate it as a trail” because when the county Department of Public Works hears the word “road” they start making plans to allow subdivisions to use the road for access purposes, he said.
“We really see this as a very important matter for this community” in terms of traffic and pedestrian circulation, said Abrams.
“Now maybe we have a foothold, somebody to listen to us,” he said.
“Nobody figured out that Hapa was a historic road until two months before permits were issued. Even we didn’t know it was a historic road then.”
The late Dorothy Tao and the late Grace Blake wanted the road and trail preserved, he said.
“It is not settled and it is not clear. There’s hope,” said Abrams, adding that the association is seeking grants for mapping of important sites. “Otherwise those sites will just sit, or get bulldozed.
“I was ready to give up, and Hapa was really the only identity that this community has,” he said.
.
By Paul Curtis on 11 December 2010 for Garden Island News -
(http://thegardenisland.com/news/local/article_380d2a08-05bf-11e0-a69f-001cc4c002e0.html)
Image above: Teddy Blake explains some of the historical aspects of Hapa Trail. Photo by Dennis Fujimoto from original article.
Fifth Circuit Judge Randal Valenciano on Tuesday ruled the state owns the historic Hapa Trail on the South Shore.
For years the county had claimed ownership, even to the point of approving a controversial breach of the trail to allow access to a residential subdivision in Po‘ipu.
While the case of citizens suing the county and other entities claiming that allowance of access was illegal appears to be out of court for now, attorneys on both sides of the dispute are still at odds over what Valenciano’s rulings actually mean.
Deputy County Attorney Ian Jung said Valenciano dismissed the lawsuit, Theodore K. Blake versus the County of Kaua‘i Planning Commission et al. But David Kimo Frankel, staff attorney of the Native Hawaiian Legal Corporation representing Koloa resident Blake, said he isn’t sure if he needs to appeal Valenciano’s decision because he’s not sure the judge actually dismissed the lawsuit.
State court records show Valenciano made three decisions on several motions brought in the civil case:
— Hapa Road is a state road;
— No final agency action has happened (Frankel said that means no final subdivision approval has been issued, a statement disputed by Jung);
— The court does not have subject matter jurisdiction as to all counts (Jung reads that to mean case dismissed; Frankel disagreed).
Valenciano told Linda Chow, state deputy attorney general representing DLNR, to prepare the orders.
Chow could not be reached for comment by press time.
Stacey Wong, Knudsen Estate trustee, said he was told by his attorney, Honolulu-based Michael Tom, not to discuss the matter with the media.
Tom could not be reached by telephone or e-mail. Blake deferred comment to Frankel.
Contacted parties all agreed that any request by Knudsen, developer of the Village at Po‘ipu subdivision, to breach Hapa Trail must now be made to DLNR.
Hapa Trail is a non-vehicular extension of the county’s Hapa Road that runs from St. Raphael Church to its terminus at Po‘ipu Road.
That breach represents the only vehicular access to the subdivision to hook up with Kiahuna Plantation Drive. No direct access to Po‘ipu Road is allowed.
“The judge ruled that because the state of Hawai‘i did not yet grant an easement over Hapa Road Mr. Blake’s claims were not ripe,” Jung said in an e-mail.
“The judge further ruled that given the state of Hawai‘i is the owner of Hapa Road the Knudsen Trust will have to pursue obtaining an easement from the Board of Land and Natural Resources or reconfigure the roadway lots,” he said.
Frankel basically agrees with those two claims.
“The Village at Po‘ipu Phase One subdivision approval remains valid,” Jung said.
Frankel disputes that statement, saying final subdivision approval has not been issued, something he said Valenciano concurred with in his second ruling on 11 motions that had been filed in the case.
Others named as defendants in the suit are the County of Kaua‘i Planning Department, former Planning Director Ian Costa, the state Department of Land and Natural Resources, Laura Thielen as former DLNR and state Board of Land and Natural Resources chair, and the Eric A. Knudsen Trust, owner of the land on the makai side of the trail.
Blake’s lawsuit contends that:
— The process of considering the Village at Po‘ipu development proposal violated the state public-trust doctrine;
— In the process of considering the trust’s application for final subdivision approval of phase one of the development, defendants failed to thoroughly investigate and protect Native Hawaiian rights;
— Defendants failed to comply with the requirements of state administrative rules governing the review process the state DLNR State Historic Preservation Division is to follow in making comments to state and county agencies on entitlements affecting historic properties;
— The development threatens to cause irreparable injury to burial sites and other historic sites;
— Defendants failed to comply with the objectives, policies and guidelines of certain state law, specifically the protection, preservation and restoration of historic and prehistoric resources in the coastal-zone-management area that are significant to Hawaiian history and culture;
— A supplemental environmental impact statement is required to address a plan to cross Hapa Trail with a street.
While defendant Blake on advice of Frankel would not talk about Tuesday’s court action, Louie Abrams, president of the Koloa Neighborhood Association, would.
“We had some strong opposition to the breach of Hapa,” he said, and voiced those concerns to the Planning Commission repeatedly.
When the commission denied the breach would do irreparable damage and approved permits for the development, Blake sued.
At issue are Native Hawaiian customary, cultural and gathering rights, and preservation of a unique archaeological and agricultural area that archaeological experts said is one of a kind in all the Pacific Rim, said Abrams.
SHPD had no idea it was a historic road, said Abrams. If SHPD knew it was a historic road maybe they should have fought for trail protection, he added.
Abrams said it is “distressing” that a lot of volunteer work on a traffic-circulation system for the Koloa and Po‘ipu areas might be all for naught if the trust is allowed to build a vehicular road over the top of Hapa Trail.
“We were trying to designate it as a trail” because when the county Department of Public Works hears the word “road” they start making plans to allow subdivisions to use the road for access purposes, he said.
“We really see this as a very important matter for this community” in terms of traffic and pedestrian circulation, said Abrams.
“Now maybe we have a foothold, somebody to listen to us,” he said.
“Nobody figured out that Hapa was a historic road until two months before permits were issued. Even we didn’t know it was a historic road then.”
The late Dorothy Tao and the late Grace Blake wanted the road and trail preserved, he said.
“It is not settled and it is not clear. There’s hope,” said Abrams, adding that the association is seeking grants for mapping of important sites. “Otherwise those sites will just sit, or get bulldozed.
“I was ready to give up, and Hapa was really the only identity that this community has,” he said.
.
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