Disconnecting the Dots

There were two articles in today's Honolulu Star-Advertiser (Oct. 21) dealing with unrelated beach and ocean problems that should be connected: regulation of commercial use of  our oceans, and control over what can or cannot be done with our shorelines. But if you read those two stories back-to-back, you'll start to get a headache trying to track all the federal, state and county agencies that have overlapping responsibilities. For instance, who is responsible for addressing beach erosion? Under Hawaii's convoluted system, there is split jurisdiction that is literally based on a shifting high water mark -- and both the State and counties often cite the murky lines of demarcation as excuses to not do anything about the very real threat of rising sea levels and ongoing shoreline management issues.

Ever since I got involved with the public beach access movement a few years ago, I have experienced firsthand the futility of attempting to get State or county action on protecting beach rights of way and doing something about shoreline "creep" by property owners on Oahu, who are rebuilding oceanfront structures closer to the sea (I can't call them "homes" because they look more like mini-hotels). I suggest those"homeowners" (often out-of-state investors) take a good look at what's happening on the North Shore before they decide to spit in Mother Nature's face and erect mansions as close as legally possible to the sea.

Anyhow, in today's beach erosion article about "regulatory woes" the reporter got some good quotes from Dolan Eversole, who works for Sea Grant and has done a lot of studies about erosion and shoreline management options. His suggestion is there should be a single coastal commission. It would have authority over the shoreline and coastal waters, and eliminate split jurisdiction. Makes sense, right? Except the article then goes on to quote various people from the existing agencies/departments that are currently not doing a very good job of addressing longstanding problems, and of course, those people say a coastal commission would be a bad idea because it could add another layer of bureaucracy. Um,  I think they missed the point. THEY are the added layers that need to be streamlined.

Okay, I'm not sure if the reporter phrased the question in the wrong way, or these government employees are simply too dense to understand the concept -- a coastal commission isn't meant to be an "added" layer of anything. It would be done to eliminate or consolidate a myriad of departments, agencies and ad hoc "advisory" groups that have been meeting for years and years, in order to simplify the regulatory process. It would create a single office that looks at the big picture from molasses spills to beach access and whether commercial kayak operations can be allowed on beaches in Hawaii. But if you broach the subject with a government lifer, all they will see is a threat to their individual jobs and benefits. Rarely will you ever hear a government worker admit their job or department does stuff that is redundant or could be eliminated to save taxpayer money, while making things more efficient.

And this is why we wind up with people who distrust government or say they want to dismantle Big Government... until their homes are threatened by beach erosion, commercial development or global climate change, and all of a sudden those same people are squawking that government isn't doing enough. The real problem though, is how government does things. They manage from crisis to crisis, instead of coming up with a long-range plan, then sticking to it.

BTW, in 2009 I asked Rep. Chris Lee to introduce a proposal for a joint State and counties task force to consider creating a Hawaii Coastal Commission. At that time, testifying against the proposal before State representatives was Sam Lemmo (DLNR) and Chip Fletcher, a UH researcher who is quoted as now saying an "overall agency" to take charge of coastal land use should be "studied." Apparently they thought the DLNR was doing just fine on its own. When will all these different factions start connecting the dots, and see that the ocean and beaches need to be treated as Hawaii's most valuable resource -- not as some lines on a map or organizational flow chart to be divvied up among the DLNR, CZM, MACZAC, DPP, EPA, even DOT (yeah, the molasses spill was the Dept. of Transportation's jurisdiction, believe it or not), along with each island's county councils and zoning/planning/parks departments. It's a shame because there are many well-meaning people trying to do their jobs... except they're like a bunch of people on a canoe, each paddling in different directions.

Idiots Building CLOSER to the Ocean

As I predicted a couple of years ago, wealthy buyers of oceanfront property on Kailua Beach were going to use Oahu's lax shoreline setback rules as an opportunity to rebuild closer and closer to the sea in order to "leap-frog" other houses that were being rebuilt by people who don't even live in these ugly box-like mini-hotels. All this while there is growing evidence of climate change and melting glaciers, which is contributing to rising sea levels across the planet.

Don't believe me? I recommend you watch CHASING ICE, a harrowing documentary about a National Geographic photographer who embarked on a difficult mission to photograph what's happening with melting glaciers around the world. Anyone who thought Al Gore was possibly exaggerating the threat in AN INCONVENIENT TRUTH a few years ago should be forced to see this movie. Now. It turns out, no one foresaw that global warming is happening faster than anyone could predict. CHASING ICE is available on Netflix through instant streaming. See it.

Meanwhile, in Kailua Beach the news media has been preoccupied with major beach erosion that has been going on at the south end towards Lanikai. Yes, that's alarming. The causes aren't clear though, and could be part of a natural cycle. However, what has already been documented is the fact that allowing houses or artificial barriers such as sea walls -- or even vegetation -- to encroach on the shoreline, hastens erosion. We've seen it in Kahala Beach and Lanikai. Now property owners are doing the same thing on the north end of Kailua Beach, but the news media ignores it. Why?

Simple reason, really: there's no parking near the only public beach access at that end, so reporters and cameramen would have to hike a fair distance to do a story on it. And since the lack of access results in far fewer beach-goers at that end, there's less attention paid to the ongoing desecration of what used to be a stable shoreline because the older homes were built far back enough to allow the natural sand dunes to adjust to natural changes and conditions.

Here's some photos to show you what's been happening. The first is from a couple of years ago:



See the newer house on the right? It leapfrogged a newly-rebuilt house to the right of it that is pictured below, and cut off the views of the older house on the left with the "For Sale" sign.



Flash forward to the present. Remember that older house with the "For Sale" sign? Well, looks like someone bought it and decided turn-about is fair play! And you can probably guess what will happen next: that house to the left of the older one under construction now, will probably be sold to someone who will rebuild right next to the other two... closer to the ocean.

Honolulu Weekly Article: Deja Vu

 

The Honolulu Weekly has another dispiriting update on shoreline setbacks and public beach access, related to oceanfront property owners who are using vegetation as a sneaky land grab method... which in effect, is being sanctioned by the State DLNR. As I've written before, because of split jurisdiction between the counties and State, there is no uniformity on building setbacks and zoning requirements to protect what's left of Hawaii's beaches.

On one hand, I applaud the persistence of Caren Diamond, a Kauai activist for beach access. And hats off to Joan Conrow for her continued reporting on this issue. On the other hand, it sickens me that we have to keep reliving these same battles year after year, decade after decade, while the State's largest -- and only -- daily newspaper and Honolulu TV news media give the subject cursory coverage. They've never really done an in depth series on possible solutions or even options that could address the growing concerns about preserving our shorelines and controlling commercial activities on our beaches, and in our ocean waters. Sigh.

For what it's worth, here is the link and some excerpts from the Honolulu Weekly piece. Read it and weep...

High Tide - A pending Supreme Court case pits public access against wealthy landowners and the State

By Joan Conrow

Environment / Caren Diamond thought the Hawaii Supreme Court had settled the issue when it ruled in her favor–the public beach extends to the highest seasonal wash of the waves.

The landmark case Diamond v. State of Hawaii was supposed to put a stop to the State’s use of planted vegetation to determine the shoreline, which becomes the starting line for a building setback. The practice tends to favor the landowner, especially when the plants have been cultivated.

But when the State continued to set shorelines that weren’t based on the highest wash of the waves, “We went back to the Supreme Court,” said Diamond, who lives on the North Shore of Kauai, not far from the coastline she has fought for decades to protect. The high court held oral arguments on April 4 and has not issued a decision.

Diamond is again challenging how the State Department of Land and Natural Resources (DLNR) sets the shoreline. This time she’s contesting its “single-year snapshot” approach, in which the state surveyor is guided solely by what’s visible the day of the site visit, even if historical photographs indicate differently.

“If there’s no history, then there’s no future,” Diamond said. “By manipulating the vegetation, landowners gain control, use and ownership of what rightfully are public trust resources.”

Stealing beauty

The case was brought by Kauai attorney Harold Bronstein on behalf of Diamond and Beau Blair, who have long argued that landowners are manipulating the shoreline by intentionally cultivating and irrigating naupaka and other vegetation, which impede the highest wash and hide the debris line. In this particular case, the State’s own survey had initially set the shoreline 20 feet farther mauka...

To read the rest of the article, click here.

 

Lepeuli, Kauai Update

Richard Spacer sent a link to his commentary posted on the Hawaii Reporter website about the current situation at Lepeuli, Kauai -- also known as Larsen's Beach. He wrote a guest blog for Beach Access Hawaii back in August 2011, which you can read by clicking here.

Since then, he's continued to fight for public access, going through State DLNR and county channels. The upshot of his efforts is that he needs a land surveyor to help him with Boundary Identification. So if you know an honest, affordable surveyor who is willing to go to Kauai, please contact Richard at  rspacer@yahoo.com.

To read his entire Hawaii Reporter piece, click here. Below are some excerpts:

... Fast forward to 2009 at Lepeuli, Kauai where a cattle rancher named Bruce Laymon applies for state and county permits for his beef cattle ranch company called Paradise Ranch. Laymon, beneficiary of a highly questionable Hawaii sweetheart deal system known as "after-the- fact" permitting, applied for these permits after the public informed land regulators that he was clearing brush mauka of the public beach there without a permit. The beach, commonly known as Larsen's Beach,  is a healthy breeding ground to federally endangered Hawaiian Monk Seals and green sea turtles... The beach never really gets busy, 20 people all day is typical... The property to which Laymon has an exclusive lease is 541 acres in size owned by Waioli Corporation, a non-profit public charity. It was purchased by Abner Wilcox, a missionary teacher, from Kamehameha III in 1850.

Laymon has an air of entitlement to the property. In March of 2010, while clearing vegetation with a brush hog in violation of his permit, Laymon told beachgoers he was going to run the f-----g  haoles out of there. How is someone going to RUN the public off a public beach? That is invasion of privacy, harrassment, and terroristic threatening. Those are all crimes for which the perpetrator can and should be arrested. It is also hate speech, stating he will run out an entire class of persons based on their race. A complaint was made to the FBI, the Kauai Police, and the former Kauai Prosecuting Attorney. No arrests were made...

The most contentious part of Laymon's permit applications was his intent to fence off the lateral, coastal trail at Lepeuli, that many believe is an ancient, historic, ala loa trail. This trail runs from ahupua'a to ahupua'a parallel to the shore. It is clearly depicted on 1833 and 1878 Registered Maps on file with the State Surveyor. Laymon, his attorney, and landowner Waioli Corporation dismiss the existence of the trail on their property.

Laymon's state Conservation District Use Permit allowed him to fence 110 feet mauka of the shoreline, inside the state Conservation District regulated by DLNR. The State of Hawaii claims a trail in fee simple in Lepeuli and this is stated in letters from 2000, 2011, and 2012. The 2012 letter is from the Attorney General to the Kauai Na Ala Hele Trail Advisory Council. It states that there is a trail in Lepeuli the State owns, but the State does not know exactly where it is, and they are not going to do anything about the trail. The State Historic Preservation Division of DLNR asked to enter the property to survey where the trail was, and landowner Waioli Corporation denied permission. That is why the State says they don't know the location of the trail, but everyone else does. Native Hawaiian sworn declarations are on file stating they or their family members walked the trail to fish and gather limu. Likewise, Patricia Hanwright in the adjoining ahupua'a of Kaakaaniu, denied permission to enter. Hanwright is united with Waioli Corporation in the position there is no trail on the properties. Since the State still claims the trail it owns, and the Highways Act says such trails are forever public, one would think raising this objection to the land regulators would end the matter. Perhaps on the mainland, but alas, there is no Highways Act on the mainland...

In May 2011 Laymon installed fencing across the lateral, coastal trail in violation of the county SMA permit. A public trail that was open for hundreds of years was suddenly closed. The state and county failed to protect the public trust and allowed private entities to take over public property that belongs to all the residents and taxpayers. How do public servants we all pay allow this to happen?

In June 2011 I appeared before the Kauai County Planning Commission where a petition I submitted was heard. I submitted a petition for An Order to Show Cause and requested the commission find Laymon in violation of the condition of his county SMA permit that forbade closing of the trail and order the fencing removed and impose fines. A memo from DLNR Chairperson William Aila was received the day before by the commission and planning department stating that the State can claim roads and trails in land-courted property...

At about the same time the State Land Use Commission issued a Boundary Interpretation for Lepeuli. This document was created by utilizing the map submitted by Paradise Ranch to Kauai County Planning and DLNR. The LUC drew on it their belief of where the boundary between the state Conservation District and state Agricultural District is. Why is that important? Because Laymon, with the backing of Les Milnes in the Kauai County Planning Department, stated the May 2011 fencing is legal, as it is totally inside the state Agricultural District, and OUT of the state Conservation District, where Laymon no longer has permission to work. Of course, Milnes is ignoring the county SMA permit condition saying the trail cannot be blocked.

Laymon's surveyor, Alan Hiranaka, depicted the lateral, coastal trail, and the fencing that blocks it, entirely outside the state Conservation District. Community members with GPS devices disagree, opining that part of the fence is clearly inside the state Conservation District, and all of it that blocks the trail. The LUC feels the same way, their line is considerably more mauka of where Hiranaka placed the line. According to the LUC, the lateral, coastal trail is entirely inside the state Conservation District.

When the attorney for Waioli Corporation, Don Wilson, learned the Boundary Interpretation was issued, he rhetorically asked if it was accompanied by a current shoreline certification survey. It was not, as the Boundary Interpretation was requested by the Kauai Sierra Club, not the landowner, and the landowner did not have any such survey done, nor would they. The Land Use Commission rescinded the interpretation. The rules for shoreline certification surveys state only the landowner or authorized representative can request a shoreline certification survey...

During the summer of 2012 several sections of the fence came down, allowing access again. Beachgoers used the lateral, coastal trail as they always did. Toddlers, mothers with baby carriages, the elderly, bike riders, even someone on crutches. For months there was no response from Laymon.

On December 1, 2012 Laymon re-built the fence, this time extending it dramatically to enclose a two acre area the Kauai Planning department permitted as a "Seabird Protection Area". Thomas Kai'akapu of the DLNR Division of Forestry and Wildlife office in Lihue provided consultation. The same planning department that said the lateral, coastal trail could not be blocked in the SMA permit valid "forever", now grants permission for fencing that blocks the trail in not one, but two places! Of course, the only purpose of the fencing is to keep people off the trail. The seabird protection area is the latest scam to propagate this desire of Laymon and his landlord.

On December 1, 2012 while Laymon was re-building the fence, the Kauai Police Department had three officers there, in an apparent show of solidarity with Laymon. They arrested a 68 year old homeless camper named James Decker aka "Catman"on Waioli property.

Beachgoers leaving Larsen's Beach the afternoon of December 1 noticed multiple pick up trucks in the cattle pasture with guys standing on the beds with long-armed guns (rifles or shotguns) in view of the beach access road. One beachgoer spoke with one of the guys who showed him a dead pig he said he just killed. So this show of guns to hunt pigs on the same day Laymon re-builds the fence is a coincidence? One "hunter" was even parked on the county beach access road with his weapon clearly visible. This apparently was a show of force meant to say "This is mine, public keep out!" Instead of stopping Laymon from violating his SMA permit a for second time, the Kauai Police stood by making sure no one interfered. They also did nothing about all the guns in plain view of the public. The public did not feel safe using this public property resource, the beach. I filed a complaint with the Kauai Police Commission regarding the KPD actions of December 1. The commission  ruled that my complaint that the KPD stood by while a violation took place was unfounded.

I am actively interviewing surveyors and attorneys for resolving this issue in the interest of the public. If you would like to help with your professional services, please contact me, Richard Spacer, at rspacer@yahoo.com

Papaikou Trail Commentary

NOTE: Thanks to the anonymous commenter who sent the response below to an earlier post about the debate over Big Island beach access at the Papaikou trail.

From Papa'ikou Resident:

I live in Papa'ikou, and personally know both these owners and some of the protestors.

Yes, the public access point is extremely close to the owner's house. The owners also have an issue with people making beach fires, from which the smoke goes in their house.

Both side have valid points in this issue. It should also be noted that the owners did transform this access into an easy to use trail at their own expense, which is was not before.

I doubt that Steve Shropshire would approve the alternate trail. Charlene Prickett adamantly opposed his development proposal, so not sure that he is motivated to help her. That said, I don't know his mind, although I believe he would like to earn good will from the public so that he can get some new variation of development approved for his land.

I also do not think the eminent domain acquisition will ever get though the process (and I have some reason to think that, but I'm not able to attribute a quote on this).

Ultimately, I hope the landowners and the public will find a way to meet on this. The public in this area are passionate about this access. It should be noted that there IS access from dawn to dusk, but the night access for fishermen is not resolved as far as I know.

The issue in Papa'ikou also involves a dispute over who owns the Mill Road, which is lined with homes deeded by the sugar company to its workers. The mill included the road in its sale to Waugh and Prickett, but the former employees say they were given an undivided interest in the road decades ago.

There really is no parking and no place to create any. There is not even parking for the residents as long as the owners maintain they own the road.

One possible solution is if the owners of Pinky's store agree to allow some parking on their private lot, which they might do, but I don't know if it would only be for local users.

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Any other Big Island residents who want to weigh in? Please keep us posted on developments or news related to this case! Mahalo.