Posted by: lokahipath | July 12, 2010

No Easy Answers

Excerpted from:

Sunday, July 11, 2010

No Easy Answers

Joan Conrow

Mayor Bernard Carvalho yesterday wasn’t able to get the County Council to go along with his plan, which is becoming increasingly inexplicable, to pick up a new easement to Larsen’s (Lepeuli) Beach from Waioli Corp.

Following an executive session that spanned nearly two hours, deputy county attorney Ian Jung made a power point presentation that came off like a campaign ad for Bernard, portraying him as aggressively seeking out another easement across Waioli land.

What the presentation didn’t make clear is why that easement is even needed. The county already owns an access that runs roughly parallel to, and eventually joins up with, the one the mayor is now seeking to add. The county hasn’t maintained that trail, however, and so in parts it’s impassable. But several knowledgeable people testified that it could easily be restored, and is in fact less steep than the trail now on the table. After all, it was created by former state forester Ralph Daehler, who knew what he was doing.

Further, the new access would simply be an easement across Waioli’s land, which means Waioli would have the ability to revoke or close it for various reasons. If that happened, the public would be left without any access.

So the big question remains, why doesn’t the county just clean up the existing trail it owns rather than essentially abandon it in favor of another one over which it has less control?

The Garden Island’s article this morning has mayoral assistant Beth Tokioka saying any improvements to the county-owned trail would require it to meet ADA requirements. But the county’s own ADA coordinator said the law doesn’t apply to trails, or to other projects that aren’t connected to pavement or structures, which is the situation at Larsen’s.

That’s not the only discrepancy. Waioli attorney Don Wilson claimed during his testimony that the lateral trail — which the Sproat family of Kalihiwai says is part of an ancient alaloa, and which many frequent beachgoers want the county to acquire because it easily delivers them to the north end of the beach — “was never offered and will not be offered. It was never on the table.”

Funny, that isn’t what I heard from several people in the know. Don then went on to say he’d made numerous attempts to talk with the Sproat’s attorney “but he refused,” which is also contrary to what I heard from the Sproats and their attorney.

So at best, there’s a major communication problem here. Overall, unfortunately, this issue has been muddled by deception, distortions and misrepresentations on all sides, which is probably why it just keeps getting more convoluted and polarized.

I must say that as listened to the testimony I was struck by comments that referenced making Larsen’s beach accessible to the elderly and keiki, as well as bicyclists, and connecting it to the county’s coastal Path. “It’s restrictive,” said Hope Kallai, claiming the county’s existing access and the one it wants to acquire from Waioli are too steep. “It eliminates user groups.”

While I’m a big fan of beach access, I think that in the case of Larsen’s – one of the few wild beaches left on Kauai and site of numerous drownings – it’s a mistake to encourage easy access. If no effort is required to reach a place, that tends to cheapen its value and intensify its use, often to the point of degradation. We already have plenty of beaches that families and those with physical infirmities can and should use, in part because they have lifeguards. We have very few beaches that are still considered remote, and IMHO, so long as there’s some kind of access, they should be left alone, not opened wider.

It’s also important to note that the access was initially created back in the 1970s to ensure access for fishermen and limu pickers, not for general recreation.

Still, there’s another side to that particular point. Waioli’s lessee, Bruce Laymon, will be able to give easy beach access to his friends and family via a road that runs through the cattle pastures, and that’s what really grates on a lot of folks. The way they see it, some people – or more specifically, locals — will be in and the haoles, with their trash-leaving, body-baring ways, will be out.

That deeper issue of who has access to which beaches is also a factor in the dispute over vacation rentals, which have caused large numbers of tourists to be dumped onto beaches that previously were pretty much the domain of local residents. As a result, fishermen have been pushed out and local residents have stopped using some beaches because they’ve been taken over by tourists.

As for the alaloa, I have no doubt that one used to run along that coastline and that Linda Akana Sproat and her family used to be able to walk from Anahola to Kalihiwai. That issue is now the subject of judicial and administrative proceedings initiated by Native Hawaiian Legal Corp on behalf of the Sproats, whose primary concern, as I understand it, is keeping Bruce’s cattle from getting too close to the beach, which could harm the reef ecosystem.

But pushing the fence back would hinder Waioli from blocking off the lateral access, which it wants to do to prevent people from walking across its land. Waioli officials and Bruce Laymon have said they’re happy to provide access for “bonafide Hawaiians” exercising their traditional and customary practices. That’s good, and as it should be. But use of an alaloa couldn’t legally be restricted to Hawaiians. It seems that unless some intense negotiations get under way soon, the alaloa question will end up by being decided by the courts, which is one reason why the Council deferred action on the easement.

During the testimony, Councilman Tim Bynum said it really bothered him to see easements on the map that the public can no longer access. Yes, that is troubling, and if he and the mayor are truly concerned about access, it would be nice to see them get to work on re-establishing some of these “lost” accesses and even condemning land to acquire new ones. And if they’re so worried about liability, they just might want to give a little thought to the liability exposure the county is creating for itself by funneling tourists staying in vacation rentals onto beaches with no lifeguards.

The Garden Island presented this very complex issue as a split between two families, but it’s much more than that. It also touches on the deeper questions of stewardship, private property rights, liability, mauka-makai access, transparent government processes, citizen involvement in access issues and the kind of a future we want for Kauai.

It’d be nice to think that simply getting an easement would resolve things, but unfortunately, there’s quite a bit more to it than that.



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