KOLOA — A Kauai judge has ruled in favor of a Southside resident after a decade’s long tussle over a new subdivision.
Judge Kathleen Watanabe recently ruled that the state, County of Kauai and the Eric A. Knudsen Trust violated laws preserving and protecting Hawaiian rights and cultural resources when the developer’s Village at Poipu Phase One subdivision was approved in 2009, according to a release from the Native Hawaiian Legal Corporation.
Her ruling vacates the county’s approval of the final subdivision plans, according to her summary judgment, meaning they have to go back through the permitting process with Planning Department.
Ted Blake, a Koloa resident, sued in 2009, shortly after the Planning Commission approved the subdivision, in an effort to protect the trail and the intact remnants of the Koloa Field System, an ancient and unified network of irrigated fields that once covered over 700 acres of land distant from water sources.
“I am happy the court agrees that cultural and historic preservation laws were violated by the state, the county, and the developer, Knudsen Trust,” Blake said. “Vacating Knudsen’s subdivision approval sends a strong and clear message to would-be violators.”
Blake sued the Planning Commission, Planning Department, the Department of Land and Natural Resources and Eric A. Knudsen Trust on eight counts, including breach of public trust, failure to investigate and protect Native Hawaiian rights, violation of Hawaii Administrative Rules, irreparable injury to historic sites, noncompliance with objectives, policies and guidelines, failure to require a supplemental EIS for the Hapa Trail Breach, public nuisance and negligence.
“Protecting wahi pana (sacred places) means everything to me,” he said. “Doing so is a sacred obligation because they house actual evidence of how our kupuna harnessed and work with nature to sustain the land and themselves.”
The Office of the County Attorney said the court’s ruling was based on technical deficiencies in the process and not a substantive failure to protect either historic properties or recognized traditional and customary rights, but declined further comment, saying the case was still ongoing.
Because counts one, two and five are not against Knudsen Trust, Watanabe’s summary judgment was granted in favor of the trust. As for counts seven and eight, the summary judgment was denied “because there are genuine issues of material fact,” Watanabe wrote.
In her summary judgment, Watanabe said there was no documentation that the county initiated a Cultural Impact Assessment and that no assessment was reviewed by the SHPD.
“As such, there is nothing in the record to support a finding that the county defendants fulfilled their statutory and constitutional duty to preserve and protect customary and traditional native Hawaiian rights,” she wrote.
Watanabe continues: “It is undisputed that the county defendants failed to make a written delegation to the SHPD for the significance determination in the historic preservation review process. Because there was no written delegation from the County Defendants to SHPD, the court finds that no agency made a significance determination.”
Watanabe ruled that the county did not abide by procedures laid out by Hawaii Administrative Rules governing the preservation of historic properties.
The proposed neighborhood isn’t the only part of the plans some Southside residents object to.
As a way to enter the neighborhood, developers wanted to take control of Hapa Trail, a non-vehicular extension of the county’s Hapa Road that runs from St. Raphael Church and ends at Poipu Road.
In 2010, Judge Randal Valenciano ruled the state owns Hapa Trail, stating Hapa Road is a state road. But for years before, the county laid claim to the stretch of land.
Michael Tom, a Honolulu-based attorney who represents Eric A Knudsen Trust, said Watanabe made no findings against Knudsen Trust in regards to destruction of cultural sites.
“He did not find that Knudsen Trust had destroyed anything, much less ancient sites and did not find that Knudsen damaged Hapa walls,” he said “These matters are left for determination at trial.”
Watanabe also ruled the defendants did not abide by chapter 13-284, which requires a review process for projects built on historical sites in which a license, certificate, land use change, or subdivision approval is required.
“A historic preservation review may involve up to six procedural steps in order to determine if significant historic properties are present, and, if so, to develop and execute a detailed mitigation plan,” the chapter reads.
Steps include identification and inventory to determine historic properties, evaluation of significance and impact determination.
“Because the court finds that the historic preservation review process was flawed, the county defendants cannot rely on the historic review process to satisfy their requirement to give full consideration to historic values,” Watanabe wrote.
Watanabe’s ruling didn’t mention several items, Tom said.
“The court made no findings about the Koloa Field System, Hapa Trail, Blake’s use of Hapa Trail, the condition of any sites or that Hapa Trail walls are ancient,” he said. “The court found that there are issues of fact relating to the Koloa Field System and left that determination and others for trial.”
The case has been litigated in the Hawaii Supreme Court and in circuit court.
Blake said he was inspired to get involved in the fight against the Village at Poipu by the residents of Koloa.
“My kupuna, my ohana, and lifelong residents who, like me, know that historic sites link the past to the present,” he said. “When cultural resources like these are preserved, they educate and inspire new generations. All of that is lost when these sites are bulldozed and destroyed.”