Musings: A Better Way

When Koko and I went out walking this morning, we headed straight toward the Big Dipper, Waialeale hulking in the distance, off to the left. My ears were filled with the music of crickets and the sounds of a pig, or maybe two, crashing through the brush alongside the road. The fragrance of citrus blossoms wafted past my nose.

The birds woke just as the stars were fading from the sky, which turned first robin’s egg blue, bordered with soft rose, and then darker blue, bordered with gold. Darkness departed and Waialeale emerged, crowned by a curl of cloud, and waterfalls could be seen streaking down Makaleha.

And then the sky drained pale, waiting for the sun.

While I hold no illusion that today’s conclusion of the post I started yesterday will be as brilliant as the sun, I do hope it will shed a bit of light on the larger issues associated with the controversy over access to Ka`aka`aniu (Larsen’s) Beach.

As I mentioned yesterday, there’s the liability issue, which is driving how both the county and landowner Waioli Corp. are dealing with this matter. But there’s another issue, too, and it revolves around traditional Native Hawaiian access rights.

In this case, there's a trail that runs parallel to the beach, a trail that cattle rancher Bruce Laymon initially planned to block as part of a fencing project. When I talked to Bruce last Saturday, he said the fence now likely will be placed further mauka, due to topographical constraints, which would leave much, if not all, of the trail open. But even without a fence, Waioli Corp. and Bruce are now actively discouraging people from using the trail.

Bruce believes the trail is a relatively new creation because it, and others crisscrossing the property, correspond with fence lines installed when Meadow Gold had cows there.

Others in the community, most notably the highly respected Linda Sproat, who is the plaintiff in an appeal of Bruce’s permit filed by Native Hawaiian Legal Corp., maintain the coastal trail is an alaloa that has been used for generations. As The Garden Island reported:

“They [her family] talked about how they used to walk from Anahola to Ka‘aka‘aniu to pick limu. That was just the way we did it in the old days before we had roads and cars,” Sproat said. “People used to walk all the way from Kilauea Point. It’s not as if we don’t know what we’re doing and we haven’t used the place.”

“So if it’s an alaloa, don’t you have to keep it open so Hawaiians can exercise their traditional access and gathering rights?” I asked Waioli attorney Don Wilson, who was also at the beach last Saturday.

Don, while noting that “nobody’s ever suggested we wouldn’t allow Native Hawaiians to exercise their rights,” said “the law hasn’t been developed sufficiently to determine what’s included in traditional cultural rights — does it include hiking? – and how it all works in with private property rights.”

Now, that's a rather glaring legal puka.

There’s also the question of the alaloa’s alignment. While old maps do show a trail, it’s hard to pinpoint if it’s exactly the same as the dirt road/trail in use now.

“So how do you determine the route of an alaloa?” I asked Don.

“I don’t know,” he said, again noting that the law doesn’t outline a process. “I’m certain Native Hawaiians who have used that would think they would have some idea.”

But would that be enough to satisfy the courts? As I’ve seen in following the Naue burials issue, and other situations involving traditional rights and practices, the Hawaiian approach often doesn’t jibe with the Western legal/political system. And when push comes to shove, the latter invariably prevails.

When I wrote about the dispute over access in an earlier post, a reader left this comment:

Did you know (or do you even care) that if I want access guaranteed to me by the PASH laws, all I have to do is call the landowner. 

I have never had my rights violated and have always been given access. Who are you people trying to protect, yourselves or Hawaiians?

Don told me that Waioli is open to such an approach.

“We won’t keep Native Hawaiians off, but you’ve got to let me know,” he said. “We can’t just leave it open. But nobody’s gonna deny them, honestly and truly, if they call and ask permission.’

Not all Hawaiians, however, like the idea of having to call someone to ask before they go. When I discussed it with a few Hawaiian fishermen, they expressed doubt that all landowners would be receptive, and said they don’t even know who owns some of the land now. And they chafed at the idea of having to plan ahead, instead of just being able to go when they had the time and the conditions seemed favorable.

And then there’s the issue of whether alaloa access rights would apply only to Native Hawaiians engaged in traditional practices, such as fishing or gathering limu, or to everyone. Proponents of the latter argue that in the old days, anyone could use an alaloa, so there’s no reason to believe it would be any different now.

Except that now we have a lot more laws, a lot more lawyers, a lot more concerns about liability and a lot more emphasis on "mine."

Which brings me to my point. We’ve got laws that were set up to give the general public and Native Hawaiians certain rights and protections, and politicians make a great deal of hay out of how much they support access and the perpetuation of traditional practices. But the laws they've drafted aren’t always as clear and specific as they should be. So citizens are pushed into seeking legal clarification and/or redress, a process that is not only costly, but lengthy — if they can find attorneys who are willing and/or able to take a case that isn’t likely to make them much, if any, money.

And in the meantime, access can be denied, development can be completed, landscapes and cultural resources can be obliterated, burials can be covered in concrete and a lot of bad blood can be made.

Sigh. Isn't there a better way?

As I was walking up from Ka`aka`aniu on Saturday, I ran into a local fisherman, and we got to talking about the access issue. While he doesn’t usually take the lateral access, he didn’t like the idea of a fence. He said it likely would be repeatedly cut “because people have been going that way for a long time now,” and that prospect caused him to worry about police, confrontations, security guards, “a bad scene.”

He shook his head, then asked if I’d seen the glass in the parking lot.

“That was from my truck,” he said, explaining that someone had broken in a few days ago while he was down fishing. He shook his head again.

“It’s getting so you can’t even enjoy yourself anymore,” he said and walked away.