POSTED: 1 Feb 2004 - 9:00am

Is Beach Access a Civil Rights Issue?

A beach accessed only by permit on south shore

by Walter Lewis on 1 February 2004
Let's get back to some basic American values: Life, liberty, and the pursuit of happiness. Granted, the nation's founding fathers may not have included everyone in their writing, but constitutional articles pursuant to the "Big 10" Bill of Rights prove that they intended to include all Americans in those rights. That's what we've founded American patriotism on, anyway: equal protection under the law.

Equal access cases abound in support of these fundamental principles. Regarding our Kauai beaches, as well as the mountain streams and panoramic vistas, which give us so much happiness and the feeling of being alive and free; isn't equal access to these a civil rights issue at heart? Isn't the freedom to enjoy Mother Nature an inherent human right? This is common sense, that is why the constitution of Hawaii declares that all beaches are public.

Thomas Paine, who wrote the 1776 pamphlet entitled, Common Sense, said in an essay called The Crisis, "these are the times that try men's souls." He wrote at the time of the American Revolution, during which the above-mentioned inherent rights of Americans were written, not in stone, but on hemp paper. These are again soul-trying times, with great challenges: spiritual, environmental and social. These are times when citizens are being denied equal access to land we all share.

At the same time, the desire to protect private property is understandable. We can work out our differences and achieve our common goals, with grace and respect for one another instead of lawsuits and dissension.

Let's begin to treat public access as a civil rights issue, work within the existing system, as we are still a state at this writing. Let us be the best Americans we can be: stand up and declare your right to equal access. It is a notion as American as apple pie and satisfying as poi. The best way to preserve the homeland is to participate in caring for it.

Nature, the `aina, Earth, our shared homeland is the source of liberty, life and all our pursuits. Let all citizens be equally protected in the right to access their Source. Let our patriotism embrace the Aloha Spirit in the name of freedom and justice for all.



POSTED: 5 January 2004 - 8:00am

Beach Access Issues: Guest Editorial

The beaches of Kaua'i are at the heart of the bountiful benefits provided by our island to our citizens and visitors and may well be Kauai's most valuable asset. Hawaiian law directs that all beaches shall be publicly owned, and it is essential that there be reasonable public access to them. In most cases the access required is across lands having private ownership.

To the growing list of matters where our County government is not serving the best interests of its residents is the failure to identify, maintain and enforce the necessary access so that the intended public enjoyment of our magnificent beaches can occur.

Where property adjoining the beach areas is privately owned the beach access must occur under easements or rights of way traversing the privately owned lands. These easements can arise in several ways. The most certain means are from documents describing the entry path and allowed use and which are recorded with State land records. Easements can also be created through historic use or by prescriptive rights. Access at reasonable intervals to our beaches is to be provided but it is not requisite that multiple routes exist or that any particular route be mandated.

HRS 46-6.5 , adopted in 1973, required each County to adopt within one year an ordinance requiring a developer or subdivider to grant easements for public access to shorelines. The County failed to make a timely enactment of the specified ordinance and it is likely that many accesses were unprotected. In 1974 HRS Section 115 was enacted and found RS Section 115HRaaaa that miles of shorelines and other areas are inaccessible due to absence of public rights of way and such absence is an infringement on the fundamental right of free movement in public space. The section guarantees the right of public access to the sea and shorelines and provides for the purchase and maintenance of public rights of way. Although failing to adopt the required access ordinance as required, in 1984 Kaua'i and the state issued a beach access guide listing 72 accesses on Kaua'i. In 1993 a beach access update study found another 142 and listed a total of 214 shoreline trails and access points.

Under Hawaiian law easements may, as noted, be created in various ways. The 1993 update identified 102 accesses that were based on documents. Another 43 accesses were listed in the update as having permit approval conditions but no other documentation or cases where the permit applicant had agreed to provide access, 73 cases where there was public use and it was considered desirable that valid accesses be recognized, and 6 cases where easements were thought inappropriate.

In 2002 the County adopted a Charter amendment which mandated a fund in the County budget importantly including amounts for acquisition of accesses and specified that the County adopt ordinances for the expenditure of moneys in the fund. This implementation has not occurred.
Although it appears from its initiation of the 2002 Charter amendment that the County may be well intentioned about the existence of beach accesses, it has been abject in its failures. Some of the actions that the County has not taken are:

It has not provided adequate public information about the location and route of documented beach accesses.
It has failed to mark the initial point of many access trails.
It has not taken any action to establish or confirm the 116 undocumented accesses recommended by the 1993 report
Under state law the maintenance of access trails is a County duty. Trails are not being maintained.
It has not properly instructed the County Attorney or the Police as to access enforcement.
It has not applied the fund created in the 2002 Charter amendment for its intended purposes relating to beach accesses.

The consequences of the ambivalence and neglect by the County are well illustrated by the recent Papa'a Bay incidents. In that situation, according to news reports, the Mayor referred to the County Attorney a request for a "title search" relating to the Papa'a Bay easement. This was essentially a futility because that access was regarded as undocumented and such a search would not disclose unrecorded usage. It seems simply a maneuver to escape accountability.

A meaningful request would direct the County Attorney to assist in a program to assure the validation of the now undocumented accesses. A group of residents believing in good faith that they were entitled to use a trail that had historically given access to the beach were met at the site by an owner who claimed to be protecting his property rights and denied passage. The resultant confrontation was escalated by a County directive to the police to support the landowner and arrest persons trespassing on his property. Under this authority several arrests were made, although it is not clear whether any actual trespass occurred. The police should have been instructed that members of the public were entitled to peacefully assemble on public property and no trespass, civil or criminal, could exist until there was an actual entry on private property. The controversy is, according to news reports, now compounded by the filing of a lawsuit by the owner claiming slander of title and tortuous injury.

The public policy of the State is well established that reasonable beach access should be promoted, but the County seems headed in the other direction supporting wealthy landowners who seek to prevent access. While private enforcement of access rights has been judicially approved, such proceedings are difficult and expensive and it would be far better if the County would perform the responsibilities it properly has and take steps so that our beaches are, as they should be, available for public use through well recognized, documented and identified pedestrian access trails



POSTED: 1 January 2004 - 2:20am

A Brief History

Kauai Beach Access – Thirty Years of Neglect…..and Continuing


Public interest in beach access was heightened in 2001 during the great debate at the County Council over whether Kauai County should accept a gift of a section of the coast at Kealia by the developer of Kealia Kai with many conditions, some quite onerous, especially the one allowing the developer to maintain his own private security guards on the public beach.  At the end of a string of tumultuous debate, at the beginning of which then Councilman Bryan Baptiste swore he wouldn’t change his mind – about accepting the gift with the conditions – “no matter what anybody says!”, the Council voted, unanimously, to reject the gift with the conditions.  The developer immediately retreated, deleted the onerous conditions; and the County accepted the gift of coastal land and access ways.
Some of us pursued the subject further by looking into the history and status of beach access around the whole island, discovering a thirty-year history of neglect, malfeasance, intrigue and general official apathy.  The only way, short of purchase or condemnation, the public can acquire access to the shore and to the mountains is through the subdivision permitting process, the legal basis for which was established by Hawaii Revised Statutes (HRS) Chapter 46 – 6.5 in 1973.  I quote here, verbatim, the first two sub-sections of this important statute, because the language is very simple and clear, without any ambiguity, even though county officials managed to neglect, mis-interpret, mis-represent, misquote almost the entire statute.

HRS 46-6.5  Public Access
(a)   Each county shall adopt ordinances which shall require a subdivider or developer, as a condition precedent to final approval of a subdivision, in cases where public access is not already provided, to dedicate land for public access by right-of-way or easement for pedestrian travel from public highway or public streets to the land below the high-water mark on any coastal shoreline, and to dedicate land for public access by right-of-way from a public highway to areas in the mountains where there are existing facilities for hiking, hunting, fruit-picking, ti-leaf sliding, and other recreational purposes, and where there are existing mountain trails.
(b)   These ordinances shall be adopted within one year of May 22, 1973.
Our county adopted the mandated ordinance in 1987 – fourteen years after the original state law –but
with some pretty basic changes, as we discovered in 2002 upon studying the history.  The Planning Commission had changed the all-important word “shall” to “may”, and did not stipulate “as a condition precedent to final approval of a subdivision.”  So the county did not have to require access and did not have to require the access through the whole permitting process all the way to the final permit approval.  The public demanded corrections to the ordinance.  The Planning Commission came back with a semantic puzzler, by changing “may require” to “shall consider requiring”, and theCounty Attorney’s Office was split on the question of whether the requirement is precedent to final subdivision permit or preliminary subdivision permit.  Apparently nobody in the Planning Commission, the Planning Department and the County Attorney’s Office bothered to read the original statute.

After further coaxing, accompanied by much chuckling at Council sessions, the Planning Commission in late 2002 finally cleaned up the ordinance – twenty-eight years after the mandated implementation of HRS 46-6.5.  How many opportunities for acquiring beach and mountain access were lost nobody knows.  One may, however, glean some idea of lost opportunities by referring to the last time the county bothered to take a look at the status of public ac cuss in a report prepared by a consultant in 1990 and published in 1993.  This report listed 214 beach accesses in four categories

“E”  Existing  
“P”  Potential
“D”  Desirable
“X”  Excluded

Only accesses in the E Category are supported by easement documents which may or may not have been recorded.  Of the 214 access that have a history of having been used by the public, only102 are in the E Category.  How many of these 102 are currently still open to the public nobody knows.  But who is in charge'  Apparently not the Planning Dept or the Commission, since these bodies have done less than nothing in the past three decades other than paying a consultant to do the 1990 survey.
In the wake of the Kealia Kai fight and the struggle with the Planning Commission to get the language right in the access ordinance the Council adopted a Charter Amendment the voters passed in November 2002, to set aside half a percent of the real property tax revenue each year (which amounts to about $235,000 this year) to establish a fund for acquiring and maintaining public access and open space.  True to the customary pace of the Council and this government in general, nothing has been done to set up the mechanism for implementing this charter amendment.  For a government that doesn’t blink an eye to spend $65,000 to buy thirty desk top computers for the secretaries (who already had computers), or to allow the unbudgeted expense for our solid waste management to rise from $4 million to $7 million a year in three years, this reluctance to spend on something the general public seems definitely interested in seems quite inexplicable.  Even the setting up of an official body – commission or committee or task force or whatever – to work on this access problem has gotten nowhere since the subject was first raised three months ago, other than to fund a new position in the Planning Department.  This last seems to be an act of unbounded faith in a department that has already lost uncounted access opportunities in thirty years.
In the mean time this government has done absolutely nothing to put a stop to the practice of private parties using vigilantes to keep people off their “private beaches” along the shores inKilauea.  This practice was apparently first condoned by Mayor Kusaka when her friends the Hughes’ installed their private beach guards.  Now the practice is spreading.  An association of home owners along Kauapea Road, which runs along the shoreline between the Light House and Kalihiwai, has been formed which imposes fees on members to support the hiring of private guards armed with cameras to harass beach goers these home owners deem unsuitable for “their private beach.”  Is Mayor Baptiste simply following the tradition established by his predecessor?
It seems that while our government is fiddling, or continuing its thirty years of fiddling, we are not only losing access to the beach but are losing the beach even after we get there!  Between the Might Military and the Wealthy Friends of our officials the poor taxpayers are being given the royal squeeze!


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