Island Breath: Public Access

SUBJECT: BEACH ACCESS

SOURCE: NOLA CONN nolaconn@hotmail.com

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.

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.