BY RICHARD SPACER – Kauai – For centuries Native Hawaiians in the ahupua’a of Lepeuli, on the windward or Koolau side of Kauai, have lived their lives, fished and grew taro from the streams there as noted by early missionarys and sailors. They walked from their settlements in Lepeuli to other Kauai ahupua’a along the ala loa trail, a lateral, coastal trail that runs along near the sea. Long before the idea of the H-1 in Honolulu, or Kuhio Highway on Kauai, Hawaiians of old used THEIR highway system, the trails, to get from A to B. They were public infrastructure, no less so than any street or highway today. The Hawaiian cultural concepts of sharing and general lack of private ownership was no threat to these trails being open and accessible. Not so today.
The arrival of Captain Cook and the cataclysmic transformation of society in Hawaii that followed, squelched not only traditional cultural practices like speaking their Hawaiian language, dancing the hula, and surfing, but public access. The introduction of the European and American concept of private property to Hawaii, especially when Kamehameha III initiated private land ownership to Hawaiians in 1848 and to all comers in 1850, was intended in principle to economically empower the local population. That, in fact, it has greatly benefited non-Hawaiian interests was no small reason Queen Lili’ uokalani, in the last year of her legislature in 1892, passed the Highways Act. It is incorporated now as Hawaii Revised Statutes 264-1, in other words, the law of the land today. This brilliant, forward thinking act is used today, but not often enough, as a powerful tool to acquire public trail access.
Fast forward to 2009 at Lepeuli, Kauai where a cattle rancher named Bruce Laymon applies for state and county permits for his beef cattle ranch company called Paradise Ranch. Laymon, beneficiary of a highly questionable Hawaii sweetheart deal system known as “after-the- fact” permitting, applied for these permits after the public informed land regulators that he was clearing brush mauka of the public beach there without a permit. The beach, commonly known as Larsen’s Beach, is a healthy breeding ground to federally endangered Hawaiian Monk Seals and green sea turtles. Above, Laysan Albatross fly in winter. The beach never really gets busy, 20 people all day is typical. Two dangerous rip currents, cuts in the reef by old streams, which are now intermittant, have taken at least 13 lives there. The reef offshore is pristine, and fishing is a favorite pastime. The property to which Laymon has an exclusive lease is 541 acres in size owned by Waioli Corporation, a non-profit public charity. It was purchased by Abner Wilcox, a missionary teacher, from Kamehameha III in 1850.
Laymon has an air of entitlement to the property. In March of 2010, while clearing vegetation with a brush hog in violation of his permit, Laymon told beachgoers he was going to run the f—–g haoles out of there. How is someone going to RUN the public off a public beach? That is invasion of privacy, harrassment, and terroristic threatening. Those are all crimes for which the perpetrator can and should be arrested. It is also hate speech, stating he will run out an entire class of persons based on their race. A complaint was made to the FBI, the Kauai Police, and the former Kauai Prosecuting Attorney. No arrests were made.
When Laymon applied for his after-the-fact permits, he denied the existence of the animals named above, and denied archaeology was on the property. Community members noticed an archaeological feature at the northwest end of the beach and reported it to the State Historic Preservation Division of DLNR. Nancy McMahon, at the time the Deputy State Historic Preservation Officer, replied that it was the site of three human burials. There are three burials on the property, but they are at the opposite end a half mile from the archaeology.
The exact location of the burials is unknown, except that McMahon said they were re-interred mauka of where they were discovered, which would put them inside an area where cattle were planned to graze. Dr. David Burney of the National Tropical Botanical Institute on Kauai, identified the feature as likely the foundation of a structure, radiocarbon dated from just before the arrival of Europeans. Laymon’s permit applications also denied any Native Hawaiians lived on, or had claims to the property since 1850, when Abner Wilcox purchased it. A letter of Abner Wilcox on file with the Kauai Historical Society from 1864 states.. ..”the natives have the good of the land.” meaning it did not bother Abner if they lived there. Later maps into the 1930’s show multiple kuleana lots in Lepeuli.
Lepeuli had a Hawaiian school and church, establishment of which was part of the deal for Abner Wilcox to receive the land. An 1850 survey map at the State Archives shows the school and church location. The residents of Lepeuli studied and prayed at that school and church well into the Twentieth Century. Generations of Hawaiians are buried in the grave yard there. The 1963 John Wayne movie Donovan’s Reef depicts the old school and church.
The most contentious part of Laymon’s permit applications was his intent to fence off the lateral, coastal trail at Lepeuli, that many believe is an ancient, historic, ala loa trail. This trail runs from ahupua’a to ahupua’a parallel to the shore. It is clearly depicted on 1833 and 1878 Registered Maps on file with the State Surveyor. Laymon, his attorney, and landowner Waioli Corporation dismiss the existence of the trail on their property.
Laymon’s state Conservation District Use Permit allowed him to fence 110 feet mauka of the shoreline, inside the state Conservation District regulated by DLNR. The State of Hawaii claims a trail in fee simple in Lepeuli and this is stated in letters from 2000, 2011, and 2012. The 2012 letter is from the Attorney General to the Kauai Na Ala Hele Trail Advisory Council. It states that there is a trail in Lepeuli the State owns, but the State does not know exactly where it is, and they are not going to do anything about the trail. The State Historic Preservation Division of DLNR asked to enter the property to survey where the trail was, and landowner Waioli Corporation denied permission. That is why the State says they don’t know the location of the trail, but everyone else does. Native Hawaiian sworn declarations are on file stating they or their family members walked the trail to fish and gather limu. Likewise, Patricia Hanwright in the adjoining ahupua’a of Kaakaaniu, denied permission to enter. Hanwright is united with Waioli Corporation in the position there is no trail on the properties. Since the State still claims the trail it owns, and the Highways Act says such trails are forever public, one would think raising this objection to the land regulators would end the matter. Perhaps on the mainland, but alas, there is no Highways Act on the mainland.
When notice of the state permit application was published, a wide cross section of the public opposed the permit. The Sierra Club, Surfrider, various Kauai huis and individuals all wrote opposing it. No public hearing was scheduled, despite this being a commercial operation (a beef cattle ranch) with widespread community interest, two criteria for a public hearing. Gary Hooser of Kauai, at the time Senate Majority Leader, even offered his personal assistance to provide transportation to Kauai for Honolulu DLNR staff for a site visit. This was rebuffed. Laura Thielen, DLNR chairperson at the time, approved the departmental permit. Kauai resident and Native Hawaiian Linda Sproat petitioned for a Contested Case hearing with the Board of Land and Natural Resources. She was represented by Native Hawaiian Legal Corporation attorney David Kimo Frankel. Non-Hawaiian opponents of the permit were represented by attorney Colin Yost. After submission of the legal briefs, Paradise Ranch surrendered their state permit, rather than endure a public Contested Case hearing, a move the Board of Land and Natural Resources called “unprecedented”.
Shortly afterward, Laymon stated again his desire to fence off the lateral, coastal trail. He said he did not need a state permit as he still had a county permit. However, one of his county permit conditions states the lateral, coastal trail must be kept open.
Since Laymon could not work any longer inside the state Conservation District, having surrendered his state permit, his fencing would have to be 300 feet from the shore, not 110 feet. This is because at Lepeuli the state Conservation District extends to 300 feet mauka of the shore. This boundary is set by the State Land Use Commission.
A major failing of the activists was focusing almost all attention on the state permit process, while ignoring the county permit, which is still valid today. When Les Milnes of Kauai County’s Planning Department was asked how long it is valid, he answered “forever”. This, despite it saying two years on the permit itself.
In May 2011 Laymon installed fencing across the lateral, coastal trail in violation of the county SMA permit. A public trail that was open for hundreds of years was suddenly closed. The state and county failed to protect the public trust and allowed private entities to take over public property that belongs to all the residents and taxpayers. How do public servants we all pay allow this to happen?
In June 2011 I appeared before the Kauai County Planning Commission where a petition I submitted was heard. I submitted a petition for An Order to Show Cause and requested the commission find Laymon in violation of the condition of his county SMA permit that forbade closing of the trail and order the fencing removed and impose fines. A memo from DLNR Chairperson William Aila was received the day before by the commission and planning department stating that the State can claim roads and trails in land-courted property.
In fencing the trail, Laymon was relying on a 2009 memo from Doris Moana Rowland, a DLNR abstractor, that said since the landowner registered the Lepeuli property in the Land Court back in 1943, the State could not today claim a pedestrian access. William Aila stated Ms. Rowland’s memo did not represent the position of DLNR regarding roads and trails in Registered Land. The June 2011 memo was signed by Aila and two Deputy Attorneys General. Aila also noted DLNR approval for the fence location was not given, a condition of the county SMA permit. Upon advice of Michael Dahilig, current Kauai County Planing Director, my petition was indefinitely deferred.
At about the same time the State Land Use Commission issued a Boundary Interpretation for Lepeuli. This document was created by utilizing the map submitted by Paradise Ranch to Kauai County Planning and DLNR. The LUC drew on it their belief of where the boundary between the state Conservation District and state Agricultural District is. Why is that important? Because Laymon, with the backing of Les Milnes in the Kauai County Planning Department, stated the May 2011 fencing is legal, as it is totally inside the state Agricultural District, and OUT of the state Conservation District, where Laymon no longer has permission to work. Of course, Milnes is ignoring the county SMA permit condition saying the trail cannot be blocked.
Laymon’s surveyor, Alan Hiranaka, depicted the lateral, coastal trail, and the fencing that blocks it, entirely outside the state Conservation District. Community members with GPS devices disagree, opining that part of the fence is clearly inside the state Conservation District, and all of it that blocks the trail. The LUC feels the same way, their line is considerably more mauka of where Hiranaka placed the line. According to the LUC, the lateral, coastal trail is entirely inside the state Conservation District.
When the attorney for Waioli Corporation, Don Wilson, learned the Boundary Interpretation was issued, he rhetorically asked if it was accompanied by a current shoreline certification survey. It was not, as the Boundary Interpretation was requested by the Kauai Sierra Club, not the landowner, and the landowner did not have any such survey done, nor would they. The Land Use Commission rescinded the interpretation. The rules for shoreline certification surveys state only the landowner or authorized representative can request a shoreline certification survey.
All of this drama could have been avoided had the planning director at the time, Ian Costa, required Paradise Ranch to obtain such a survey as part of their county SMA permit application. He waived the requirement. Coastal parcels for which permits are applied for normally require a shoreline certification survey to determine setback. When the LUC Boundary Interpretation was sent to DLNR’s Office of Conservation and Coastal Lands, and they were asked if they were convinced Laymon’s fence constituted a violation inside the state Conservation District, Kimberly Mills, a staff planner in that office, replied “not yet”.
During the summer of 2012 several sections of the fence came down, allowing access again. Beachgoers used the lateral, coastal trail as they always did. Toddlers, mothers with baby carriages, the elderly, bike riders, even someone on crutches. For months there was no response from Laymon.
On December 1, 2012 Laymon re-built the fence, this time extending it dramatically to enclose a two acre area the Kauai Planning department permitted as a “Seabird Protection Area”. Thomas Kai’akapu of the DLNR Division of Forestry and Wildlife office in Lihue provided consultation. The same planning department that said the lateral, coastal trail could not be blocked in the SMA permit valid “forever”, now grants permission for fencing that blocks the trail in not one, but two places! Of course, the only purpose of the fencing is to keep people off the trail. The seabird protection area is the latest scam to propagate this desire of Laymon and his landlord.
On December 1, 2012 while Laymon was re-building the fence, the Kauai Police Department had three officers there, in an apparent show of solidarity with Laymon. They arrested a 68 year old homeless camper named James Decker aka “Catman”on Waioli property.
Beachgoers leaving Larsen’s Beach the afternoon of December 1 noticed multiple pick up trucks in the cattle pasture with guys standing on the beds with long-armed guns (rifles or shotguns) in view of the beach access road. One beachgoer spoke with one of the guys who showed him a dead pig he said he just killed. So this show of guns to hunt pigs on the same day Laymon re-builds the fence is a coincidence? One “hunter” was even parked on the county beach access road with his weapon clearly visible. This apparently was a show of force meant to say “This is mine, public keep out!” Instead of stopping Laymon from violating his SMA permit a for second time, the Kauai Police stood by making sure no one interfered. They also did nothing about all the guns in plain view of the public. The public did not feel safe using this public property resource, the beach. I filed a complaint with the Kauai Police Commission regarding the KPD actions of December 1. The commission ruled that my complaint that the KPD stood by while a violation took place was unfounded.
I am actively interviewing surveyors and attorneys for resolving this issue in the interest of the public. If you would like to help with your professional services, please contact me, Richard Spacer, at firstname.lastname@example.org
Richard Spacer submitted this editorial as a guest opinion piece.