Island Breath: Paapa Beach

SUBJECT: PAPA`A BEACH ACCESS

SOURCE: RAY CHUAN rchuan@verizon.net

POSTED: 10 JUNE 2004 - 9:00pm HST

Mayor's Report Indicates Public Access to Papaa Bay

Papaa Stream as it reaches the beach

Mayor Releases Papa'a Beach Report

Research indicates the existence of public access.

Kauai Mayor Bryan Baptiste today released the results of legal research performed by the County of Kauai which he said supports the existence of public access to Papa'a Beach.

"Our research found there is a public road leading to Papa'a Beach across the property called the Widemann Reservation," said Baptiste.

A 10-page report titled Facts Found in Public Sources Relating to the Ownership and Use of Certain Roads at Papa'a was also made public.

The Mayor, however, cautioned that the alignment of the public access must be established and the public should not assume the access is through existing driveways or roads on the property.

"We want to meet with the landowner to discuss the location of the public access," Baptiste said. "The County is committed to taking the steps necessary to maintain public access to Papa'a Beach for the people of Kauai."

The Office of the County Attorney issued the report, which is based on legal research by the office and outside counsel. Copies of the report are available from Public Information Officer Cyndi Mei
Ozaki.

The report answers three questions:

1) Is there a public road or public access that runs across the Widemann Reservation to Papa'a Beach?

2) What additional sources of information are available to clarify the uncertainty?

3) What procedure is available to determine whether the road shown on the 1931 Towill map is a public
road or is subject to public use?

The Widemann Reservation is a parcel of land owned by Mandalay Properties Hawaii LLC, which has asserted that there is no public access across the parcel of land. Critics of Mandalay Properties have said the landowner has blocked public access through the parcel, in effect making Papa'a Beach difficult or impossible to reach by land. In December of 2003, four people were arrested for trespassing for trying to enter land at the end of a public road where the landowner had placed a gate. The case was later dismissed in court.

According to the report released today, "Information can be found in public sources that reveal the existence of public roads at Papa'a lying on the easterly (makai) side of the Main Government Road and at points on and across the Widemann Reservation. In the past, government officials, including County officials, claimed these roads as public roads. In 1932, County officials secured the ownership
of some of those roads in Equity 80 ... The material facts relevant to the County's claim to the roads have not changed."

The report also contains several attachments, including historical and legal documents about Papa'a, a 1900 map and more.

For more information contact...

Cyndi Mei Ozaki
Public Information Officer
County of Kauai, Office of the Mayor
4444 Rice Street, Suite 245, Li¯hu'e, Kauai, Hawaii 96766
Tel 808.241.6303 Fax 808.241.6877 Email cozaki@kauaigov.com

SUBJECT: PAPA`A BEACH ACCESS

SOURCE: JUDY DALTON dalton@aloha.net

POSTED: 10 JUNE 2004 - 9:00pm HST

Sierra Club Responds to Access News

Pool along Papaa Stream

by Judy Dalton on 9 June 2004

The news is spreading like wild fire that the County has announced the existence of a public road leading to Papa`a Beach!

Tom Finnegan of The Garden Island left a message on my answering machine earlier today asking for Sierra Club's response to the news release in his article which will be in Friday's Garden Island newspaper. This comment may not have been received in time, so here are our comments:

"Papa`a Beach is among Kauai's most treasured natural assets and we're very pleased that the attorney hired by the County has acknowledged the existence of the government road leading to this idyllic beach. Sierra Club's Access Committee has devoted several hundred hours of volunteer time and invested hundreds of dollars into thoroughly investigating public access to Papa`a Beach. All research indicates that there is a government road leading through the old Wideman reservation. Everyone is looking forward to soon being able to enjoy this lovely beach without hindrance." Kaua`i Group of the Sierra Club Access Committee.

Tom also called Bill Young, the editor of The Kaua`i newspaper who got sued by Guber, the owner of the land surrounding Papa`a Bay and emailed Bill the news release which is quickly making the email rounds.

Nani Rogers also called me and said she had this comment for The Garden Island, "Tell the Mayor we said thanks for telling us something that we already know!" Right you are, Nani! Tell it like it is.

Post Mortem on Papa`a "Celebration"

detail of Papa`a Bay: oil on canvas by Patrick Conley

First, who won or lost what:
by Ray Chuan on 12 January 2004

The Mayor –
Won some future votes by proclaiming that he was all for public access to the beach all around the island.

Demonstrated his political adroitness by first proclaiming his neutrality with: “I neither condone nor condemn the move to gain public entry to the beach at Papa`a. I have ordered a title search”, followed by ordering his police to arrest people who trespass on private property at Papa`a, thus winning brownie points with the rich and powerful. The mayor further cemented his cordial relationship with the police by reportedly rewarding the arresting officers with a day off to play golf at Puakea on Dec 30, two days after the incident at Papa`a.

Challenged by the Council, at its Jan 8 meeting, to explain how his acclaimed Ka Leo Kauai project got involved in the affair and if and how much the County might be exposed to legal liability as a fallout from the lawsuit filed by the owner of the estate at Papa`a.

The Police –
In a department with 25 unfilled budgeted positions, was able to muster a large force of uniformed officers and swat team (the ones in black shirts and pants) to arrest a small number of civilians for trespassing on private property, while arrestors and arrestees were all standing on public land. Some explanation is in order here. In this whole mess with Papa`a Bay and the mysterious and invisible promoters of the Celebration there is one single fact uncontested by all parties; namely, that there is a public road (commonly referred to as the Government Road) that runs off Papa`a Road (a county road) into the Papa`a Estate for some distance with no apparent purpose. According to the owner of the estate this public road ends at a piece of private property several hundred feet from the beach, a fact not disputed by the County, as there is a map at the Planning Dept which describes the property in the usual terms. As a matter of fact, a gate had recently been erected at this juncture of the public road and the private property. The Celebration took place outside this gate, on public land; and the arrests for trespassing apparently took place at this location. The Police, several days after the arrests, asserted that a line of orange cones had been place across the government road, before the Gate, marking the “true” private property line, a line that is apparently not shown in the official map at the Planning Dept. Somehow the length of the government road between the Cones and the Gate became private property – hence the basis for arresting certain individuals of trespassing on private property. But not all those standing in the newly created zone, apparently. Thus the Police, and the County, stand to lose in the end when the arrestees sue for false arrest! This possibility was not raised by the Council in its interrogation of the personnel from the Administration.

The Organizers –
The leaders of the "Celebration" apparently became invisible a few days before, during and after the Celebration. The Invisible Leaders were not among the arrestees. TheGarden Island, in reporting, on December 29, the Incident at Papa`a, mentioned that one of these presumably invisible leaders had asked the reporter not to reveal the person’s identity. During the Council interrogation no one from the Adminsitration admitted to knowing the identity of the Invisible Leaders or, more specifically who put up the legal advertisement in the Garden Island on December 14, which, presumably, moved the Owner of Papa`a estate to bring a lawsuit in federal court and which cause great concern in the Council that the County might somehow be caught up in the suit because of this Legal Ad.

Let’s digress a while from the Invisible Leaders to take a look at this Legal Ad. Here, in its entirety, is the now infamous ad:

LEGAL NOTICE
Notice of Public Intent to Reclaim Legal access to Papa`a Bay
NOTICE is hereby given to all persons involved with the sales transactions of TMK 4-4-9-6-5, 4-4-9-5-6, known as Papa`a Bay Ranch, and any other parcels owned by Mandalay Properties LLC located at or near Papa`a Bay that legal documents were sent in mid-November to Mandalay and Coldwell Banker/Bali Hai Realty which certified that the 30-foot government road running through the property and to Papa`a Bay has been legally identified as the official public access to the public beach, and that gates illegally constructed on the road were requested to be removed by December 1, 2003.

Mayor’s Ka Leo Kauai Anahola Community Group, and The Island Access Coalition.(December 14, 2003)

Coldwell Banker/ Bali Hai Realty was named in this public notice presumably because it is the broker in a potential or ongoing deal to sell the Papa`a Bay property

According to theGarden Island report on the lawsuit, the defendents are named as William Young and others. The two organizations placing the legal notice – Mayor’s Ka Leo Kauai Anahola Group and The Island Access Coalition – were not specifically named among the John Does. But that clearly did not assuage the Council from its concern that the County could be dragged into the lawsuit; hence its interrogation of the Administration at the December 8 meeting. When asked, a Deputy County Attorney answered the County did not know what person placed the ad, nor who was Mayor’s Ka Leo Kauai Anahola Community Group or The Island Access Coalition. The report on the lawsuit mentioned that one of the charges was “tortuous interference”, a legal term clearly implying that the owner of Papa`a Bay thought a purpose of the legal notice was to throw a road block into the ongoing or potential sale of the property. The critical question underlying this whole affair seems to be the validity of “….that legal document which certified that the 30-foot government road running through the property and to Papa`a Bay has been legally identified as the official public access to the public beach..”

The only published document from theCounty of Kauai on this subject is a 1993 report by a consultant hired by the County to identify and classify beach access on the island. The report identified 214 accesses of which 102 were deemed legally established with appropriate recorded documentation. These were classified as “Existing” – Accesses for which there are legal documents which give the public the right to use the access, or easement documents are so close to being recorded that recordation is imminent. This category also includes accesses which have easement documents executed (signed), but not recorded.

The other categories – the remainder 112 sites – are classified as “Potential”, “Desirable” and “Excluded”, in descending order of existence of legal documentation. One of the 102 accesses in the “E” category is Papa`a Kai, which begins on the bluff south of Papa`a Bay proper and rounds the southern tip of the bay, enters the bay to a point directly above the sandy beach to which it descends along a rocky slope. At the present time, if one drives up Papa`a Road off Kuhio Highway to the end of the paved portion there is seen a sign “:Beach Access” pointing to the right. Not among the 102 is Papa`a Bay, classified “D”, meaning “Accesses which are being used by the public, with or without authorization or restriction, along with areas which would be desirable to obtain for public access use in the future.”

This was apparently the object of the Celebration. But, there seems to be some discrepancy between the official County document on beach access to Papa`a Bay and that of the Mayor’s Ka Leo Kauai people. What then is the “legal document” cited by the entities placing the legal notice?

It is a conveyance document executed in 1860 to convey several pieces of land in the Ahupuaa of Papa`a. The document contains the usual surveying data (“metes and bounds”) defining five allotments. Since none of the five pieces had direct access to the only road (the government road) connecting to Kuhio Highway, easements were provided in the conveyance document to allow passage to the road through a neighboring property (referred to as Allotment 1-B). In each of the conveyances in question there was the phrase, after describing the metes and bounds, “Together with an easement for a right of way ten feet wide, now in use, over and across Allotment 1-B to the Government Road thirty feet wide, leading to Papa`a Beach.”

The County’s 1993 report apparently did not regard this easement statement in the 1860 document as meeting the criteria for listing the access to the beach through Papa`a valley in the “E” category. The current County Attorney apparently had the same opinion as that of the consultant group who did the survey in the 1993 report when shown the Document offered by the Name-less Leaders of the Celebration. (I have shown the Document to several lawyers who all opined that it did not constitute a legal or official easement to the beach at Papa`a Bay.)

A perusal of the maps accompanying the 1860 conveyance would indicate that the properties in question lay nowhere near the beach, being much closer to Kuhio Highway at an elevation of 160 feet. How the Leaders of the Celebration came to regard their document as “irrefutable” proof that the public has the right to the beach, without a legal reading by a lawyer, is a central question as matters now stand. Whether those arrested on December 28 were trespassing or not, by contemporary documents, is really only peripheral to the central questions behind this affair.

Essentially nothing illuminating came out of the December 8 Council meeting regarding the Celebration, other than the not exactly re-assuring assessment by the County Attorney that the County probably would not be sued. Some people think the plaintiff could ask for blood and get into the County’s deep pocket instead of the pockets of the Leaders. Trouble is: The County’s deep pocket is the taxpayers’ not so deep pockets!

Speaking of Ka Leo Kauai, does anybody actually go to these monthly meetings around the island? I’m taking a sort of informal survey to see what the participation is. I know that the Hanalei Ka Leo Kauai meetings are now attended by about three people who are not from the County government. I quit going after suffering through three of them. An interesting interlude in the history of the Hanalei Ka Leo meetings was when the facilitators (paid by us taxpayers) decided the “mana” at the Hanalei School was not conducive to civil discourses and moved the meetings to Waipa first, then to Hale Halawai Ohana O Hanalei ( Kauai’s only non-county funded and operated Neighborhood Center, because, in the minds of the officials, the North Shore, being, still, the land of wealthy haoles and hippies, didn’t need a county supported neighborhood center), and finally back to the Hanalei School, presumably after the highly paid coordinator from the Mayor’s office, did some mana fixing.

Let’s hope that, with election season fast approaching, we’ll see some real action coming out of this Council, such as, for instance, the long over-due audit of the operation of this County’s government.