The future of beach access to Papa‘a Bay rests in a judge’s hands. With the arrival of a new lawsuit, the question is which judge will make the decision. Lawyers in the County of Kaua‘i Office of the County Attorney
The future of beach access to Papa‘a Bay rests in a judge’s hands. With the arrival of a new lawsuit, the question is which judge will make the decision.
Lawyers in the County of Kaua‘i Office of the County Attorney filed a lawsuit last week against Mandalay Properties, the owner of Tara Ranch, asking a Fifth Circuit Court judge to rule that a road through the ‘Aliomanu property is a public, government road that leads to the beach.
But Mandalay owner Peter Guber, through his Honolulu attorney Paul Alston, is already suing the county in federal U.S. District Court in Honolulu, contending that the road stops well before the secluded beach.
So the question becomes which judge will hear the case.
While the federal lawsuit was dismissed in November, U.S. District Court Judge Susan Oki Mollway will have the first chance to hear the case in court, as Alston’s firm, Alston, Floyd, Hunt and Ing, has filed a motion to reconsider, scheduled for a hearing February 22. Alston said that date might get moved up in light of the new lawsuit.
When reached for comment yesterday, Alston said it was the first he’d heard of the county lawsuit. While he said he would not speak about possible strategy without first talking to Guber, his client, he did say that he was slightly surprised by the county’s actions.
“It was surprising only in the sense that the county is (now) saying there’s a real controversy,” said Alston. “The county’s position is the same as ours.”
When the lawsuit was dismissed in February, Mollway wrote in the decision that one of the main reasons for the dismissal was the inaction by the county to claim the access. Kaua‘i Mayor Bryan J. Baptiste only released a statement saying there is access to Papa‘a through Tara Ranch, adding that the public should not use the access until the exact boundaries were set.
“If Kaua‘i took concrete action, such as initiating legal action to establish the existence as a public right-of-way, Mandalay’s claim would ripen into a valid claim,” Judge Mollway wrote.
So, why would the county attorney’s file the legal action to ripen the claim? And, after 13 months of lawsuits and court appearances, both on Kaua‘i and Honolulu, why would the county choose the first few weeks of 2005 to file a claim?
County officials weren’t talking yesterday.
The county attorney’s office phone rang repeatedly without answer yesterday, and the only message was that the answering machine was off.
Public Information Officer Cyndi Mei Ozaki was called repeatedly for comment throughout the day yesterday, but she said she refused to answer questions without first consulting with the Deputy County Attorney Laurel Loo, who apparently didn’t return her phone calls.
According to Fifth Circuit Court documents, county officials contend that their lawsuit “venue is proper, because the real property that is the subject of this action is located within the boundaries of Fifth Circuit Court.”
The dispute, county attorneys say in the complaint, arises from a 1932 Fifth Circuit Court Decree, where Moloa‘a Hui lands were partitioned.
On the map, a line intersects the county road. County officials contend the line cut the Widemann Reservation off from the Hui lands, because the reservation was not part of the decree. According to the county lawsuit, Mandalay owners believe the decree does extend to the Widemann Reservation and the line declares the end of the public road and the beginning of the private road.
The county lawsuit asks that the judge decide the 1932 decree does not extinguish the title or rights to roads within the Widemann Reservation, and to declare those roads public.
An existing public access to the remote beach is over rugged terrain requiring a long walk from a parking area in Aliomanu Estates. The entire argument is moot, according to one Native Hawaiian activist.
“The government has been ignoring our inherent sovereign gathering rights which is supported by the Supreme Court of the United States of America,” said Ka‘iulani Edens-Huff. “Do we not deserve access to our beaches?”
Edens-Huff, who was arrested for trespassing in 2003 when she and three others tried to enter Papa‘a Bay through a Tara access gate, said she has still not received word that charges against her were dropped, despite the county prosecutors’ public statements that they would be.
“At first, the county arrested me for trespassing, and now we’re on the same side, but I’m still facing trespass charges,” she said. “I am waiting for my good name to be cleared.
“I am glad that the county is finally taking action. It’s long overdue,” Edens-Huff added.
She asked, though, with the state of the access in limbo, what would happen if she tried to use the disputed access.
“Do I get to go down to the beach now, or am I going to get arrested for trespass again?” she wondered. “I never touched this guy’s property, according to what the county is saying.
“When we go to the beach, that’s when we all feel like millionaires. That’s what makes living here worthwhile,” she continued. “It’s the last thing we have left.”
Tom Finnegan, staff writer, may be reached at 245-3681 (ext. 252) or tfinnegan@pulitzer.net.
