POSTED: 27 June 2004 - 12:00pm

A walk along Papaa Beach

"Incident at Papa`a" video to be presented

by Carol Bain on 27 June 2004

A TV show produced by The Benefit Network, "Incident at Papa`a" will show on Hoike channel 52 on Kauai Time-Warner Cable.

Friday, July 9 at 11:30pm
Saturday, July 10 at 2:45pm &
Sunday, July 11at
2:45pm & 8:00pm

Program opens with an edited (23 minute) review of the Dec. 28, 2003, Papaa Beach Celebration, where about 75 people attempted to access Papaa Beach, and documents the arrest of 2 of the 4 who were arrested that day. Remainder of the program is an in-studio open dialog with 3 of the 4 arrested: Ka'iulani Edens-Huff, David Denson, and Evelyn de Buhr. Each describes how the experience has affected their lives, and the importance of beach access and public participation.

Total time is 1hr 8 minutes

Encourage others to watch it.



POSTED: 19 June 2004 - 6:00am

A well maintained public access with cement walk and stairway in Florida

I hate to be a wet blanket again, but...

by Ray Chuan on 19 June 2004
After I sent out my commentary about Papa`a Bay last week one of my friends on the Westside suggested I would get a flood of responses, good and bad. He was right; and I did, of course, anticipate some comments to what I had prefaced my message with the only-half-in-jest words “I may be a wet blanket…”

Looking reality in the face and talking about it often elicits “wet blanket” talk. Well, after the responses of the past week I have decided this week to be really the Wet Blanket. In fact, one of my friends opened her response with “Ray, You are a WET BLANKET!”

Let me just begin by saying that all these highly emotionally charged exhortations to acquire beach access are essentially futile, for the simple reason that there ain’t anything left for acquisition.

The legal basis for the acquisition of access to the beach and mountains in this state was established in 1973 through Hawaii Revised Statutes Chapter 46 – 6.5. I quote below some of the language of this piece of legislation:

(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 a public highway or public street 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.
(There are three more sections to this piece of legislation, which I won’t go into, because the two above contain the keep points I wish to bring out. One other point needs to be noted; and that is that these rules applied only to the subdivisioning of six or more lots.)

Note the key words are:
"Shall adopt… shall require"
As a condition precedent to…
Within one year….

During the controversy surrounding the issue of private security guards from Kealia Kai on the public access the Kealia Kai developer was to dedicate to the County I did some research and discovered that the “Ordinances” that HRS 46-6.5 mandated to be adopted within one year contained the words “The Planning Commission may require…..”, and did not contain the words “precedent to…”

Apparently the County exercised the discretionary language implicit in the word ‘may’ and did not require access. Under pressure from the Council and the public the Planning Commission came out with the curious words “The Planning Commission shall consider the requirement of public access…..”, meaning it must consider but not necessarily decide to require… And there was debate within the County Attorney’s Office whether the access condition could be applied up to the Preliminary Approval or Final Approval. Obviously, nobody in the County Attorney’s Office bothered to read HRS 46-6.5. Amazing, but true! With further pressure and, to some degree, teasing them for the funny language, the Commission finally put all the right words in the amended ordinance. In 2002 – twenty-eight years too late!!

Over those twenty-eight years all the available and desirable coastal and mountain access points had been gobbled up by developments. We were left with an empty and meaningless ordinance.

What other means are there by which the public can acquire access? The authoritative document on this subject is a Law Review article by Valerie Lam entitled “Beach Access: A Public Right?”

Before going into the Lam document, however, I would like to offer an alternative to what many are doing now with respect to places like Papa`a Bay. In 1984 the County of Kauai published a booklet listing 93 beach access points island-wide. In 1992 the County of Kauai contracted with a consultant to do a survey on the status of beach access around the island. The report listed 214 access ways in several categories of legal standing. At the top of the list are 103 sites which are officially recognized, recorded and on the map as dedicated easements. The access from Aliomanu to Papa`a Bay is one the 103. The big question is how many of these 103 sites are still open to the public. Nobody seems to know, certainly not the County which just recently advertised in the newspapers for a person specializing in public access to apply for a job in the Planning Dept. As far as I know there’s been no announcement on the County filling this position.

It seems to be the energy of those who are keen on seeing public access to the beach becoming a reality can be more productively spent checking on the status of each of the 103 listed legal access. For examples, of the two access to Kau`apea (Secret) Beach in Kilauea one has been closed, by the property owner for more than ten years; and the other has been altered more than once by the owner of one of the lots adjacent to the trail. Hawaiian Revised Statutes (HRS) Chapter 115 further delves into the matter of public access. HRS 115-3.5, for example, defines how a legal access can be closed or its use restricted:

“A county may restrict passage over a public right-of-way by resolution or ordinance, provided that the resolution or ordinance sets forth criteria for determining that the restriction is in the public interest.”

Three years ago then Mayor Kusaka illegally (Meaning she did not have Council resolution or ordinance) closed the access to Queen’s Bath (Waimaumau) in Princeville, one of the most popular spots visited by tourists who read about this place in all the tourism literature. Of course, neither the Council nor the County Attorney’s Office took note of this illegal action. A citizens group did, and proceeded to re-open the trail and the parking area for the public using this trail, with the help of the then Deputy County Engineer who sent the necessary heavy equipment (unofficially, of course) to remove the concrete blocks covering the parking area. The group duly notified the County Council after re-opening the access, citing HRS 115-3.5. That access has remained open ever since, neither the current mayor nor Princeville management having taking further action on the matter.

The closed access to Kau`apea Beach would seem to be an appropriate target for reclamation.

As for other ways of acquiring beach access, other than through the subdivision permitting process which is essentially lost, entirely through County negligence if not deliberate sabotage, are the following, according to Lam:

1. Judicial and legislative treatment of beach access. (Not operable for all practical purposes)

2. The prescriptive theory, and the custom doctrine.

There is, of course, the eminent domain doctrine (not cited by Lam) under which the government can purchase access by condemnation. No one would believe this government would go this way.

So that leaves acquisition of beach access by prescription or public doctrine.

The prescription process is somewhat similar to the doctrine of “adverse possession” whereby one, by proving habitual and continuous use of property (without objection by the owner or tacit approval) over a long period of time, goes to court for a judgement to possess the property. The application of such doctrine to beach access is disputed, according to Lam, though there have been cases where the court accepted prescription. The establishment of prescription depends, of course, on the testimony of a large number of people and accepted by the court, that they have used some particular access uninterrupted over many years. This is difficult and requires competent legal assistance. To my knowledge, no group on this island has attempted this process. One must caution that Native Hawaiians, by court ruling generally under the heading PASH Rights, apparently have the right to access the shoreline; but this privilege does not extend to non-Hawaiians. The PASH ruling depended in considerable extent on using the Custom Doctrine which requires the exercise of a right over a long continuous period of time. The time period which may be acceptable to the court essentially and practically leave out non-Hawaiians in this state.

So I honestly believe the only productive efforts at gaining beach access should go to the investigation of the current status of the 103 established access points for which the County has the necessary legal supporting documentation. The example of Queen’s Bath should encourage us to move in that direction.

Since the County is already in the process of hiring an access specialist for the Planning Dept why not make it his/her first assignment to investigate the status of the 103 access ways.



POSTED: 15 June 2004 - 8:00am

Looking north across Papaa Bay to Peter Guber's estate Tara, and his beachside mansion

I hate to be a wet blanket, but...

by Ray Chuan on 15 June 2004

I hate to be the wet blanket in this Papa`a Bay issue.  The fact is that the highly touted report that the public can get from the Mayor for $9.50 has no more info than what the activists already know - that  "there is a road towards the beach." No map, no metes and bounds, nothing more than a phrase in certain old court documents that  basically says "That's the way to the beach."  I haven't the vaguest idea how Bryan will proceed from this point.
Was it for the protection of the public that the mayor mobilized his Police Force, including the Acting Chief, one of his lieutenants, many officers and the Swat Team, all in a long convoy through the front  gate of Tara down to the "government road?"  And was it for the  protection of the public that the Mayor, obviously pleased with the performance of his Police Force, gave the Acting Chief and a couple of officers a day off on the following Tuesday to play golf at Pua Ko?
The reality over which there is no dispute is that there is this nuisance jutting into an otherwise beautiful estate by the sea - namely the "government road" or, as Kusaka put it in her communication to the Council two years ago asking that the County sell the "remnant government road" to Guber - to relieve this "nuisance", no doubt.  Any owner of any kind of property large or small would not want to have a  public road going through or into his property, but going nowhere.  This puts the County in an excellent position to bargain with Guber to provide an easement along either boundary of his property down to the bay. 

While Gary was on the Council this, indeed, was the course being followed. The choice was to be along the southern boundary following a line along the  direction of the existing Papa`a Road.  The question was "at what point to cut a way down to the beach."  What Guber offered was at a point beyond his property on the bluff rather than at a lower elevation.  That happened to be the point at which the existing (on the map) official easement from Aliomanu to Papa`a Bay reaches the bluff above the bay.  Beyond this point one had to climb down a rocky slope, which people never really liked, but used  nevertheless for many years until the trail head was cut off by the Aliomanu Estate people a couple years ago, an action the County did not object to, apparently.  As a matter of fact, if you drive up Papa`a Road from Kuhio Highway you will notice, at the point where the paved road ends, a sign pointing to the right saying “Beach Access”, meaning the trail leading northward towards Papa`a Bay but the trail head of which is blocked, because the County , as usual, did not protect its (the public’s) interest when the developer blocked the trail head.
If, instead of turning right at this sign, you continue up Papa`a Road, now unpaved, beyond the point where the much talked about “Government Road” takes a sharp left turn down into the valley above Papa`a Bay, you come to the dead-end of Papa`a Road at the boundary of private property.  During the off-and-on discussion between the County and Guber two years ago Guber had offered to buy a strip of this private land so that an easement could be created between the end of Papa`a Road and the top of the bluff where the trail from Aliomanu ends.  One would still have to negotiate his way down the rocky slope to the beach below.  The attached fotos show the end of the Aliomanu Trail leading to Papa`a Bay.  The much talked about Remnant Government Road ends somewhere in the vegetation to the right and above the big beach house shown in the image below.

View from the end of the Remnant Government Road to rocks along Papaa Bay
Apparently this early proposal of Guber did not materialize.  It was reported, but I cannot confirm it, that the owner of the land either would not sell a strip to Guber or asked for too much money.  In any event, back to the discussion about the County being in a good bargaining position with Guber.  All the publicity accompanying the issue of how the public wants to get to the beach at Papa`a Bay, and the existence of the un-disputed fact that a public road goes into the heart of this beautiful valley given the name of Guber’s wife Tara, seem to be the ideal setting for the County of Kauai and Mr. Guber to sit down and work things out, instead of Guber suing people for “tortuous interference” and the County trying, in vain so far, to find some legal description of how the “Government Road” actually reaches the beach at Papa`a Bay.
I have spoken to both Gary Hooser and the Mayor about this way of looking at the issues.  Basically it removes the dagger from the side of Tara Ranch and the bone from the County’s throat.  Instead, both sides should seek an alternate route to the beach along either the southern or northern boundary of the Guber property, recognizing that by either approach one has to deal with the question of how, near the end of the easement, to reach the beach.  Either the County or Guber, or the two jointly, could pay for the construction of some reasonably safe descent trail or steps or ladder of some kind.  I have not heard from either Senator Hooser or Mayor Baptiste on this suggestion.  I hope there may be some kind of non-public negotiation going on along this line.  After all,Kauai County is good at conducting its business in secret (though calling it Executive Session.)  (Have you noticed that, of late, some times two pages of the County Council’s meeting agenda are taken up with Executive Sessions while the open sessions take up less than a page?)
The cynical part of me is not holding its breath!  That part of me also keeps wondering if, after all the hard work, lawsuits and hundreds of thousands of dollars spent on “Outside Counsel”, any number of non-Native Hawaiians would actually go to the beach at Papa`a Bay.  Or is this just turning into another one of these Sacred Cows like the Around the Island Bike Way?  But I sure hope the Great Papa`a Beach Access will not cost $30 million dollars (for just the first seven miles of the Great Bile Way!)

For additional background material click here...

Island Breath: PapaaBay 2
Island Breath: PapaaBay 1


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