Musings: Don't Shut Us Out

Delightedly, I fell asleep and woke to the sound of rain, which was still dripping from leaves and eaves when Koko and I went out walking in the dwindling darkness of a new moon night. The sky wore a black cap, pulled down low, but yellow, pink and silver light was leaking out around the edges.

The rain returned mid-way through our walk, then pulled back, leaving tendrils curling on the Giant and rivulets running on both sides of the road. It’s just what we’ve needed, these few days of soaking rain.

I’ve finally gotten a much-needed break from the paying work and deadlines that have kept me from the blogosphere, and just about everything else recently, save for a Saturday morning visit to Larsen’s Beach — or Ka`aka`aniu, as it’s identified in Pukui’s “Place Names of Hawaii.”

I took the time to go because I wanted to see for myself what was happening down there, after hearing allegations of illegal clearing, people being barred from accessing the beach and heated confrontations between beach-goers and Bruce Laymon, who is proceeding with a cattle-fencing project on land that the nonprofit Waioli Corp. owns adjacent to the beach.

The visit, which coincided with a clean up by Bruce and a site visit by the Waioli board, served to dispel, correct or at least provide another perspective on allegations that have been made. It also reassured me that safe access does indeed still exist, although folks walking on the lateral trail very likely will be told to move onto the beach if Bruce’s crew happens to be out there working.

This project has been fraught with skirmishes, some of them overblown, and I don’t want to get into them here, other than to say I really hope that the folks involved can calm down and cool down and sit down and talk, as it appears, at least to me, that resolution is possible without protracted legal battles or other nastiness.

Because I’m concerned that two extremely important issues — how liability is affecting public access, and gaps in the law regarding the exercise of traditional Hawaiian rights — are in danger of being submerged as attention is instead focused on more manini points, such as whether Bruce had a confrontation with a naked guy or mowed some naupaka.

Right now, the county has a legal access to Ka`aka`aniu that it doesn’t want because it’s rough and rugged and has liability written all over it. But instead of fixing the access or negotiating with Waioli for a new one that the county would maintain, it wants Waioli to provide another access, and assume all the liability. And since Bruce’s permit for the fencing project includes a condition requiring him to resolve the access issue, Waioli is faced with either acquiescing to the county’s demands or abandoning a fence that it thinks is necessary to keep people from camping on its land, and thus exposing it to liability.

Now you may think that strong arming approach is fine and good if it forces Waioli to provide access, but what kind of message is it sending to other private landowners who have accesses that the public wants? What incentive do they have for granting access if they have to bear the liability? Yes, there is a state statute that is intended to provide private landowners with some protection, but what it basically does is allow them to use that as a defense if someone is killed or injured. It does not prevent them from being sued.

And what does the county’s approach to the Ka`aka`aniu situation tell us about its overall commitment to maintaining accesses when the liability can’t be foisted off onto a private landowner? The fact is, the county regularly passes on accesses that have high potential for liability, which is why it refused to accept an access to third beach at Kauapea (Secret) Beach that a landowner was willing to provide and turned a blind eye to access acquisition recommendations made by the Open Space Commission.

I understand the county has a responsibility to the taxpaying public to reduce liability exposure and the potential for costly lawsuits. But it also has the responsibility to ensure that people have access to the coast and mountains. Decisions regarding accesses are too important to be made in private by Mayor Carvalho and his assistant, Beth Tokiok, with no public discussion or review.

The county's fear of incurring liability through public accesses is even more vexing since it does not act to uniformly shield the taxpayers from costs related to liability exposure. KPD was not prohibited from using Tasers, which have been the subject of numerous lawsuits, most recently one involving the death of a California man, and the public continually pays to defend the county from its misdeeds and ineptitude, such as the sexual discrimination suits now pending.

Beth tell us, in regard to the Ka`aka`aniu access, that the county will be announcing a decision soon. But what she and other members of the county administration seem to forget is that they are dealing with public money and public accesses.

So stop shutting us out, from our accesses and the liability concern-driven decision-making processes regarding them.

And since I have to leave now for an appointment, I'll get into the second issue, gaps in the law regarding the exercise of traditional Hawaiian rights, in tomorrow's post.