Musings: A Different Animal

Going outside at 11 p.m., I was treated to a bowl full of stars descending into a layer of thin clouds that swirled around the mountaintops and cut off part of the crescent-shaped setting moon, turning it into a golden hoof that hung above the misty pastures where the cows huddled together in the cold.

After prolonged wrangling with the community, cowboy Bruce Laymon of Paradise Ranch has dropped his controversial plan to build a pasture fence along the shoreline at Lepeuli (Larsen’s) Beach.

Facing a request for a contested case hearing on the agenda of this Thursday’s Board of Land and Natural Resources, Laymon’s attorney, Lorna Nishimitsu, yesterday sent a letter to the Board surrendering the Conservation District Use Permit that former Board Chair Laura Thielen had approved on Feb. 16, 2010.

As a result of Laymon abandoning that part of his fencing project, landowner Waioli will not be able to block off use of a lateral trail along the beach, as it had desired. Kilauea resident Linda Sproat had challenged the permit, saying it would result in closing a traditional alaloa, or coastal trail, and thus impinge on her rights as a Native Hawaiian. Surfrider Foundation and Malama Moloaa also opposed the permit.

Both Sproat and the conservation groups had petitioned for a contested case hearing on the permit, which Thielen had denied, prompting the Native Hawaiian Legal Corp. to file a lawsuit on Linda’s behalf appealing the denial of her request.

But there’s a new chair in town, William Aila, and Laymon and his attorney apparently read the writing on the wall after reviewing the staff submittal that recommended the contested hearing be granted not only to Sproat, but the two conservation groups:

Staff, together with the Department of Attorney General, believes that Ms. Sproat has raised serious questions as to whether she is entitled to a contested case hearing in order to determine and consider her Native Hawaiian rights.

Staff believes that holding a contested case in this matter is appropriate, given the high level of public interest and the difficult legal issues raised in the lawsuit. Holding a contested case would in no way determine or admit that the chair abused her discretion by awarding the departmental permit, that Ms. Sproat is entitled to a contested case (the issue would be moot), or that the Board’s previous action was incorrect.

Apparently realizing that he could lose the contested case, which in any case would rack up some sizable legal fees, Laymon decided to drop the controversial part of his fencing project. The letter surrendering his permit states that no fencing or maintenance activities will occur within the Conservation District, save for cleaning up debris and trash. It goes on to state:

While Paradise Ranch and the landowner, Waioli Corporation, sincerely believe that its original proposal of engaging in habitat management and maintenance of the section of land adjacent to the sandy beach was in the best interests of all concerned, which would have provided a safe environment free of debris and litter, this long and costly battle involving the landowner’s rights to preserve and protect its property while encouraging agriculture can no longer continue. Paradise Ranch has been waiting far too long to fence the makai section of its leased lands to expand its pasture area and needs to attend to confining its livestock while providing it the best forage possible.

Although surrendering the permit saves Laymon time and money, it also leaves unresolved some of the bigger issues surrounding this project, including whether the trail is, indeed, an alaloa, and what sort of rights are associated with such a designation.

As I wrote in a March 17, 2010 post:

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.

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.

Apparently those questions will be wait to be answered another day.

In the meantime, the reversal on this issue seems to indicate that the DLNR under William Aila will be quite a different animal.