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HomeMy WebLinkAbout2014-3-13 Open Space Commission Minutes Approved PUBLIC ACCESS, OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES MARCH 13, 2014 The regular meeting of the Public Access, Open Space & Natural Resources Preservation Fund Commission of the County of Kauai was held at the L-lhu` e Civic Center, Mo' ikeha Building, Meeting Room 2A/2B . The following Commissioners were present: Joseph Figaroa, Chair (arrived at 1 :37 p .m.) Patrick Gegen, Vice Chair Theodore Blake (arrived at 2 : 00 p .m.) Linda Dela Cruz Dorothea Hayashi Luke Evslin Maurice Nakahara The following Staff members were present: Planning Department Staff Nani Sadora and Duke Nakamatsu; Deputy. County Attorney Jung; and Boards and Commissions Staff Commission Support Clerk Mercedes Youn. A. CALL TO ORDER Vice Chair Gegen called the meeting to order at 1 : 04 p .m B. APPROVAL OF AGENDA The Commission acknowledged the approval of the agenda. C. ANNOUNCEMENTS Vice Chair Gegen announced that he had to leave the meeting at 2 : 30 p .m. and would not be attending the meeting on March 27"' because he will be off the island. In addition, Commissioner Nakahara noted that he would also be off the island and would not be attending the meeting. D. APPROVAL OF MEETING MINUTES Vice Chair Gegen noted that since he was not at the last meeting, he would abstain from voting. Page 1 of 17 Commissioner Hayashi questioned a statement made by Council Chair Furfaro at the last meeting that the ownership of water in the Kaloko ditch does not belong to anyone in particular•, it was her understanding that the water belonged to the State. Deputy County Attorney Jung explained that the public can basically testify to whatever they want to whether it' s factual or not, but for clarification the State does own the water as a public trust resource. On a motion made by Commissioner Dela Cruz and seconded by Commissioner Hayashi to approve the minutes as circulated, the motion carried unanimously by voice vote (4: 1 abstention). This motion does not carry — 5 affirmative votes required. E. RECEIPT OF ITEMS FOR THE RECORD There were no items for the record. F. UNFINISHED BUSINESS 1 . Review and discussion on past recommendations and prioritization of the Commission' s work plan/timeline of events and activities. Deputy County Attorney Jung stated that based on the discussion at the last meeting, it is his understanding that Staff was going work on a schedule to visit the Kilauea River. He informed the Commission that if two members were to do the site visit, the Commission would need to form a permitted interaction group where both members may discuss between themselves about matters relating to official board business and then report its findings to the body, but if everyone decides that they want to go then Staff would have to post an agenda in accordance to the Sunshine Law. Commissioner Evslin asked if it could include a visit to Papa` a Bay for members that were not present at the last field trip. Deputy County Attorney Jung stated now is the time for the Commission to discuss whether it wants to collaborate the visits to include the old County road to Papa` a Bay. As for seeing the public access easement in Waipake, although the area is not open, the Commission could still see where the easement begins . Vice Chair Gegen asked if it was possible to include a visit to the area where the questionable twelve foot steep drop is located. Deputy County Attorney Jung stated that it was possible however, it is a lot of ground to cover in just one morning because the Commission would have to go through the current access at Larsen' s beach through the Waiole Beach Properties, which could take the entire day. Ms. Sadora stated that she would prefer the Commission narrow the site visits to two areas because the last time the Commission added more sites it realized that there Page 2of17 was not enough time to cover all of the sites in an in-depth way the Commission would have wanted to . Commissioner Evslin commented that the visit to the Kilauea Falls by the way of the Rock Quarry would not entail a lot of walking because the Commission would be going only to the entrance of where the trail used to be. Deputy County Attorney Jung stated whether the Commission chooses to go by the way of Rock Quarry or from the other side on Waiapa Road either way the Commission would still have to walk about a half a mile to a mile to get down the river. Commissioner Nakahara stated that if the Commission wants to see a view plain of the Kilauea Falls he could ask his friend (who lives above the waterfall) for permission to walk into his backyard. Deputy County Attorney Jung stated that if possible he would like to avoid going onto private property because it would entail having to obtain a right-of-entry, which means that the Commission would be operating under County authority. The Commission received public testimony from Mr. David Jenner. Mr. Jenner stated that relative to Commissioner Nakahara' s offer that he could provide the Commission with a view plain of the Kilauea Falls, he would like to add two more suggestions, one of which is to use Wailapa Street to get a view plain of the whole valley and wear a good pair of shoes. Commissioner Hayashi asked if the Commission would be able to see the conservation easement. Deputy County Attorney Jung replied that the Commission would be able to see the conservation easement from either Waiapa Road or the Rock Quarry, but not up to Kilauea Falls. Vice Chair Gegen asked the Commissioners if they would like to see all three sites or keep it to just two sites as suggested by Ms. Sadora. Deputy County Attorney Jung stated that the Commission could take Koolau Road to get to the Waipake access, which is scheduled to be on the Council' s agenda on April 16ffi for further discussion and review. However with the new procedure in place, the issue is now before the Open Space Commission for discussion, and a possible recommendation to both the Planning Department and the Planning Commission relative to where the accesses should be located. Commissioner Evslin asked if it was worth it to see the alleged alaloa or at least see where the trail intersects with the Waipake access . Vice Chair Gegen noted although he was not at the last meeting when the issue regarding the Kilauea Falls was being discussed, he feels whatever the Commission needs to see there, it should. In regard to Waipake, it is his understanding that the issue is on-hold. Deputy County Attorney Jung noted that the trail is currently being cleared all the way down to the conservation easement area. Page 3of17 Commissioner Evslin stated that the Commission could traverse along the shoreline to avoid going onto private property. Vice Chair Gegen noted that if the Commission really wants to see the area Staff could arrange it, and also figure out how long it would take. He stated that at this point, the site visit has been narrowed down to the Kilauea River, which includes walking the full access easement down to Papa` a Bay. Deputy County Attorney Jung stated that he estimates it would take about an hour to two hours depending how fast the Commission gets up and down the access .easement to Papa` a Bay. Vice Chair Gegen asked how long will it take to get down to the Kilauea River to see the Kilauea Falls to which Deputy County Attorney Jung replied it would depend on how fast the Commission can move, which would include a spot check of the conservation easement to see how the river meanders towards easement Pl . But before that can happen he would have to ask CZM Inspector Les Milnes to go to the area to see if he can locate the P1 easement. Commissioner Evslin asked if it would be better to go through Larsen' s Beach and Papa` a Bay and just look at the Rock Quarry. Vice Chair Gegen stated at this point, the Commission should concentrate on the three hottest issues, which are the Kilauea River, Papa` a Bay and Waipake. Deputy County Attorney Jung stated that he would work with Ms. Sadora to see if they can fit all three sites into the schedule. Commissioner Evslin commented that the Commission could walk down to Papa` a Bay, and then if someone is motivated enough they could walk along the rocks . He stated that the last time, the Commission went above Papa` a Bay and never got to see the path along the rocks, but this time someone could actually go down and walk along the rocks. Vice Chair Gegen asked if there was a timeline relative to the Kilauea Falls and what' s happening over at Planning. Deputy County Attorney Jung stated that although there is no time limit he still feels that the Commission should respond within the next two meetings and then do the site visits soon thereafter. He explained that the matter was referred to the Open Space Commission to decide whether to expend funds to create an access to the Kilauea Falls . After a lengthy discussion, the Commission narrowed the dates down to April 10th or 24th Ms . Sadora noted that she would need to check on the availability of the bus for those dates. For clarification, Vice Chair Gegen noted that the following sites have been selected : 1 ) Papa` a Bay; 2) Kilauea River; and 3) Waipake. 2 . Update on recommendation to County Council for condemnation resolution for a portion of TMK (4) 2-6-003 : 017 to obtain a pedestrian -public beach access easement to Kukui` ula Bay through the former Hoban property and discussion on alternative pedestrian public beach access options to Kukui `ula BU. Page 4 of 17 Vice Chair Gegen noted that a memorandum was sent to the County Council for placement on their agenda, but no date has been set. 3 . Discussion on historical roads and access issues to Papa` a BU. Deputy County Attorney Jung explained for clarification that the item was left on the agenda in case more discussion was needed relative to Papa`a Bay. He stated that he could provide the Commission with both sides of the briefs that ultimately ended with a settlement agreement out of the federal court to which the County filed an appeal. However, it would depend on how far in-depth the Commission would like to go on the issue, but by the order of the court the road ends at an angular position before the Wedeman's Reservation, which is before the beach. Commissioner Evslin asked hypothetically if the Commission were to make a recommendation (after doing an appraisal) to condemn the easement through the middle of the old government road and it went to court is there a chance the court could rule that the current County access was adequate and you cannot condemn the land at any price, or is it about haggling for a price. Deputy County Attorney Jung stated that he would need to do the research, but normally with an eminent domain the County would have to justify its use, which could conceivably lead to an argument that there is an existing access for recreational purposes in that area, which could lead to litigation on what' s the best use depending on how the lawsuits are filed. Commissioner Evslin stated that it is his understanding that the court had already made a ruling that the current access to Papa` a Bay was adequate. Deputy County Attorney Jung explained for clarification that the court did not touch the issue concerning the road however, the access issue has been established where there is an access easement to Papa` a Bay. Commissioner Evslin asked if there was documentation on the ruling to which Deputy County Attorney Jung replied that he was not aware of any documentation relative to the discussion, but the results of the case is that road ends at Wedeman' s Reservation. Vice Chair Gegen noted that the real issue is whether or not there is continuous access to the ocean because based on ruling the County access ends at the fence, which leads to the question of what can or should the Commission do, if anything. The Commission received public testimony from Mr. Tim Kallai relative to Item 1 . Mr. Kallai stated relative to the discussion on selection of the site visits, he asked if the Commission would consider a visit to the Somer' s residence/property because it deals directly with the Kilauea Falls access issue. He also asked that the Commission take the Kahili Quarry road instead of Waiapa so that they could Page 5 of 17 have a better understanding on just how the maintenance on that particular road seems to be a bit in the arrears. Vice Chair Gegen asked Staff if they could provide the Commission with documentation relative to the maintenance schedule so that they may have a better understanding on how the road is supposed to be maintained should the Commission decide to visit the area. Mr. Jung noted that any discussion relative to access to Kilauea Falls should be taken under Item 4 , Mr. Kallai noted that he would also like to give testimony on Item 3 . He suggested that the Commission go to the end of the access road because there are questionable aspects on the maintenance of the road, and whether the County has allowed or through negligence allowed the road to stop short of what is supposed be at least two to three hundred feet of road. He added that there also seems to be a lack understanding on their part on whether a facility for a parking lot was going be built, or if the plans to build it was delineated by the County. Vice Chair Gegen asked Staff to provide the Commission with the information on legal requirements relative to the maintenance of the County access road leading down to Papa` a Bay. Deputy County Attorney Jung explained for clarification that DPW' s focus is to maintain only the roads that are highly utilized by the public. In regard to the parking lot, he explained because the County has only one surveyor it is at the County Engineer' s discretion to decide whether to send the surveyor to stake out the area for a parking lot. Vice Chair Gegen pointed out the reason he asked for the information is because he wants the Commission to know what the conditions are, whether the conditions are being adhered to, and if not, make the necessary recommendations or voice their concerns to the Administration. Deputy County Attorney Jung noted that there is no particular area set aside for a parking lot on the old government road but there is a parking requirement off of the Aliomanu Beach Estates for the developer to build a parking lot. Commissioner Nakahara asked if it would be appropriate for the Commission to make a request relative to Mr. Kallai ' s concerns about the loss of the County access road. Deputy County Attorney Jung replied the Commission should make the request to the County Engineer, but effectively it is a road that leads to nowhere. Commissioner Nakahara noted that he wants to find out what the actual length of the old road was rather than hearing that the access road ends at a specific point. Deputy County Attorney Jung noted that the Commission could visit the area and then make a recommendation if necessary. In regard to the Kilauea Falls, Vice Chair Gegen asked Ms. Sadora if she could prepare the necessary documents for a right-of entry to which Ms. Sadora referred the question to Deputy County Attorney Jung. Page 6of17 Deputy County Attorney Jung noted that Commissioner Nakahara should ask his friend and if he agrees then he would work with the property owner on completing the request for the right-of entry. Due to the arrival of Chair Figaroa, Vice Chair Gegen announced that he would turn the meeting over to the Chair. The Commission received testimony from Ms . Hope Kallai. Ms . Kallai recalled at the last meeting she asked the Commission before making any decisions relative to Papa` a Bay that they connect with the historical trails system and networks that are already in place. She proceeded to provide the Commission with background information relative to the Papa` a Bay lawsuit including the judge' s findings that the Commissioners in 1932 were supposed to convey two right-of-way mauka/makai access into the Moloa` a forestry reserve to the territory. Deputy County Attorney Jung pointed out that it was his understanding that she wanted the issue placed on the agenda to which Ms. Kallai replied yes, but it' s the Papa` a findings relative to the suit that has brought the issue to light for the Kilauea Neighborhood Association who now brings the issue to the Commission. 4. Discussion on a request from Council Chair Jay Furfaro dated February 5 , 2014 _ re arding access to Kilauea Falls located on TMK 5-2-0- 12 : 05, being placed on the Open Space Commission list of priority recommendations . Deputy County Attorney Jung pointed out that the issue has already been discussed under Item 1 in which the Commission decided to schedule their site visits to the Kilauea River/Falls, Papa`a Bay and Waipake on April IWh or the 24`h depending on the availability of the bus. Commissioner Evslin asked if there could be more discussion prior to the Commission going on the site visits especially if it plans to place the Kilauea Falls on its list of high priority as a possible acquisition; what would be the timeframe as far as identifying the trail and getting an appraisal. Chair Figaroa stated that it is his understanding that the issue is already in motion where the Commission could proceed to snake contact with the property owner. Deputy County Attorney Jung stated that the Commission could proceed, but there is a distinction between the permitting process and the Commission' s decision on whether it wants to recommend to the County Council to utilize the Open Space Fund to go after the acquisition to get to the waterfall. He added before that can happen, the Commission will need to work through the criteria first and then be ready visualize the area in conjunction with the other site visits. He explained that there were two points of discussion, one of which was to go to the current P1 easement which could become a recommendation for condemnation that would include the extension of the P1 easement, or as suggested by Page 7of17 the public go to the top of a trail that bends down to Kahili Quarry road. He noted that it may be preemptive to do the acquisition before the Commission sees the area, but if that is what the Commission wants to do, he could draft something. Commissioner Evsiin stated that if the Commission decides to see the P 1 easement it would only see the entrance to where the trail used to be, which makes him wonder whether seeing it would illuminate the issue for the Commission. He stated that the Commission already knows what the issue is, which is to provide access to the Kilauea Falls. In regard to setting up the conservation plan, if the landowner agrees to provide access for the public once or twice a week the Commission could then drop the issue, but at the same time stress to the landowner that the Commission will move ahead with the condemnation unless something changes relative to the conserrvation plan. In the meantime, the Commission should continue its discussion on getting the appraisal done relatively soon. Chair Figaroa stated that it is his understanding that the process is in motion mainly because the Planning Commission has referred the issue to the Open Space Commission for a recommendation. Deputy County Attorney Jung explained for clarification that the Planning Commission is aware that the Open Space Commission cannot go after the access because it was decided in the original permit so rather than using the exaction formula as was done in the past, in this case, there is no nexus on the exact area for a small project to build an extra home. The other option is to use the Open Space Commission funds to acquire, purchase, or recommend condemnation to include access to the Kilauea Falls. Deputy County Attorney Jung further explained the two conditions relative to access, one of which is to preserve all customary and traditional access rights given to the native Hawaiians, and from the standpoint of customary and traditional practices the Planning Commission preserved the aspect that the native Hawaiians would have to work with the landowner. The other condition is that access to the Kilauea Falls would be permitted only at the applicant' s discretion. Deputy County Attorney Jung stated that he does not want to speak for the Planning Commission, but based on the discussion they cannot do the land grab; however, the Open Space Commission could snake a recommendation for condemnation. Chair Figaroa asked whether the Commission could proceed with condemning the area leading up to the waterfall if it chooses to . Deputy County Attorney Jung stated that it is his understanding that the Kilauea Neighborhood Association attempted to work on getting an informal agreement with the Hawaiian Island Land Trust and the landowner, which would allow the public access to the waterfall twice a week, but KNA did not prevail. Chair Figaroa asked if it was possible for him to get in touch with HILT to see if there were other issues going on to which Deputy County Attorney replied yes. Page 8of17 Commissioner Evslin stated that because there is no initiative on the part of the landowner to allow access to the waterfall he felt part of the Commission' s mission is to give the landowner some type of incentive. He stated that the Open Space Commission has the right to make a recommendation for condemnation, which could kick start the process. Deputy County Attorney Jung noted that the litigation on this issue is going to be a huge fight, and since the Commission already has a condemnation in process it really should consider prioritizing its needs. Commissioner Evslin stated that it is his understanding that Council Chair Furfaro supports the Commission's efforts on acquiring an acquisition; therefore he feels that the Commission should move forward in a timely manner. Vice Chair Gegen stated that if the Commission decides to go with the condemnation it would have to through a lengthy process, but as previously mentioned by Commissioner Evslin the Commission could ask the Council to set aside $50,000 to do an appraisal for a possible condemnation, or at least put out an RFP for an appraisal. But the actual direction the Commission decides to take can be determined in a month or so . Deputy County Attorney Jung stated that the last time the Commission took that route through the dossier process they were scolded by Council, and then were instructed to do an acquisition plan. At this point, the Commission is asking the County Council to front the money to do an appraisal, which they may not be interested in doing. Vice Chair Gegen asked if they could somehow start the process because in order to start the process, the Commission needed to know if they had Council' s support, and if they are willing to utilize a portion of the funds to build a dossier which would include an appraisal. Deputy County Attorney Jung stated that although the Commission is allowed to use 5 percent of its funds for administrative expenses it cannot just do an appraisal on a piece of property because it would need delineate an area where it wants the access . He pointed out how critical it is that the Commission analyze the maps first and then determine what is the best, shortest, or the most feasible route that is less intrusive to the landowner because the big issue is the severance. Vice Chair Gegen asked if it was possible to do the steps in parallel by first informing the Council that the Commission is looking at securing access to the Kilauea Falls and may need money to do an appraisal . He pointed out that the issue may not be on the Council 's agenda for another two weeks, but if it was approved it would be after the Commission' s next meeting or right before going on the site visits. Deputy County Attorney Jung stated that it is part of the due diligence process, but another option is to invite the Council Chair back, or have two Commissioners meet with the him, to find out where he stands on this issue, and where he thinks is a good location to place a potential access. Commissioner Evslin indicated that the existing trail would be his first choice because the P 1 easement was never meant to make it all the way Page 9of17 up to the waterfall . He asked at this point, what would be the best route for the Commission to take; would it need to identify a route, and then pay to get the route surveyed and then appraised. Deputy County Attorney Jung replied that the appraisal can be done by reviewing the map. Commissioner Evslin stated that if the Commission is successful in identifying potential access then maybe at the next meeting the Commission could ask for community input on what they felt was the best route using the map . Deputy County Attorney Jung stated the five most important things to do first: 1 ) locate the access; 2) do the due diligence; 3 ) start work on the acquisition plan; 4) get the appraisal; and 5) do an analysis on liability. He explained that most County accesses go straight to the beach and ocean, which the State law affords the County to be exempt from liability from natural ocean conditions. But in the case of liability issues relative to the waterfall the County is not allowed the same exemption, and therefore the County Council will be looking at potential liability issues relative to the Kilauea Falls. Chair Figaroa asked if it was possible to invite the landowner to one of its meetings to discuss access to the Kilauea Falls : Deputy County Attorney Jung replied that the Commission can make the request, but it is not mandatory for the landowner to come before the Commission. Commissioner Blake suggested that maybe a stronger body such as the Planning Commission could talk to the applicant first before coming to the Open Space Commission. Because at this point, there would be no reason for the applicant to appear before the Commission because it can only make recommendations. Commissioner Evslin stated that regardless of what happens with the conservation plan he feels that the Commission should start to move ahead in terms of a recommendation. Vice Chair Gegen pointed out because the conditions in the original permit give the landowner the discretion to allow access to the Kilauea Falls he is not in violation of anything if he chooses not to allow access. He stated what bothers him the most is the applicant may grant access for one or two days, and then erect a fence without notice. Commissioner Evslin noted that it seems to him the trail that has always been in use is the trail the Kilauea community wants to see condemned unless there was something else that weighs heavily against it other than it being a longer trail. He asked once the trail is identified, how the Commission can identify how safe it is . Deputy County Attorney Jung explained that there are two ways to do it, one of which is to request for a right-of-entry that would allow the Department of Public Works entrance to the property. But if the property owner rejects the request, the Commission' s next step is through the discovery process, followed by a condemnation lawsuit where basically the Commission could then ask to get onto the property to do the inspection, which is independent from the lawsuit. The Commission received testimony from Hope Kallai for Items F3 and F4. Page 10 of 17 Ms. Kallai stated that the parking lot at the `Aliomanu Subdivision was previously laid out with metes and bounds as part of the criteria during the development. She stated that the Kilauea Falls Ranch project has three distinct access issues, one of which is the Kilauea Falls, and the second is the P 1 easement which is recorded unlike Kauapea. She noted if anything was going to happen to the P 1 easement that a survey must be done to connect the dots because no one really knows for sure where the easement is located. She expressed her support to obtain access to the Kilauea Falls, but is frustrated because the community is not able to access the County road leading down to the Kilauea River due to the lack of road maintenance by the developer. She explained to the Commission that Kilauea used to be a walking community and there was no problem with access to Kauapea and Kahili Quarry road, but now the accesses are no longer usable, which has crippled the Kilauea community in so many ways , Deputy County Attorney Jung read Condition 12 of Class IV Zoning Permit Z-IV- 008-6. (On file) Commissioner Nakahara asked what is the applicant' s reason for not adhering to the conditions in the permit to which Deputy County Attorney Jung replied that the applicant has five (5) years to fulfill his obligations, but based on a discussion, it is his guess that when any developer does a project of this magnitude they don 't want to ruin the road with the heavy equipment so they usually wait until after the project is completed before doing improvements to the road. Deputy County Attorney Jung asked if the KNA was opposed to having the road paved to which Ms . Kallai replied yes, and noted that the original condition calls for the developer to cover the road with crushed coral. Chair Figaroa asked what happens if the applicant exceeds the five (5) years to which Deputy County Attorney Jung replied it becomes an issue for the Planning Commission to deal with, but the applicant still can come in for an extension but it depends on the substantial construction done so far. Commissioner Evslin asked Ms . Kallai about the road leading to Kilauea Falls to which Ms . Kallai replied the last time she saw the road it was turned into a two lane road for the movie set from the point where the P 1 easement intersects with the road leading to the waterfall. Commissioner Evslin asked if it would be feasible to utilize the existing P1 easement by extending it all the way to the waterfall to which Ms. Kallai replied yes, and noted another option to consider involves a piece of land on Kahili Quarry Road that has been dedicated as an Ag park. She stated that the proposed area that is being considered for condemnation connects to the Ag Park, which would make is a shorter distance to the waterfall instead of going all the way to the end of the beach. Commissioner Evslin asked if the Commission were to put off its discussion until after the field trip would it bring the issue into light after seeing where the actual easement exists to which Ms . Kallai replied yes, and noted the other option is to paddle up the river, but only to a certain point. Deputy County Attorney Jung gave a general explanation of the law pertaining to privately owned land and water owned by the State. Page 11 of 17 Commissioner Hayashi asked if it was appropriate to ask Ms. Kallai to be present during the site visits. Deputy County Attorney Jung explained for clarification that the public is entitled to go along on these site visits just as long it is feasible for them to get there, which is why he wants to avoid going onto private property so that the public can come along on these site visits. Commissioner Evslin noted the next step that the Commission needs to do is identify the paths, which he thinks will be a complicated process; however reviewing the maps and receiving additional public input could help the process. Deputy County Attorney Jung stated that due to his overwhelming schedule he was not able to do the research, but would provide the information by the next meeting. He noted that the Commission needs to decide its plan of action relative to its visit to the Kilauea River. The Commission received public testimony from Tim Kallai. Mr. Kallai stated that he spoke with Shannon Smith of the National Fish and Wildlife Agency, and she said that after conferring with certain realtors and an attorney, they share the road as a common element/easement with the public. Deputy County Attorney Jung noted it was his understating that at the time the applicant was going to do the crush coral for the movie production, the National Fish and Wildlife Agency did not allow workers down there. Mr. Kallai stated that it is his understanding that Ms. Smith would have allowed it just as long as DMP's were in place, which is part of the process. Deputy County Attorney Jung asked if Ms. Smith obtained approval from the district office to which Mr. Kallai stated that he could not speak on her behalf because he was not privy to any of the discussions. Chair Figaroa called for a five minute recess at 2 : 34 p.m. The meeting reconvened at 2 :47 p .m. 5 . Discussion on alleged historical trails in the Kaakaaniu to Waipake Ahupua'a. Deputy County Attorney Jung restated this is a State issue that the Commission is trying to encourage the State to look at and identify the trails; unfortunately, it has not identified the trails to date. Commissioner Evslin asked for an update on Tim Pierce attending a meeting to which Deputy County Attorney Jung replied he did not get a chance to contact Mr. Pierce, but would do so in the next upcoming week. Chair Figaroa asked if there were other Commissioners or public members who wish to comment on the item. The Commission received testimony from Ms . Hope Kallai. Page 12 of 17 Ms. Kallai restated the three allegations relative to the alleged alaloa historical coastal lateral trail located in the Koolau district. She pointed out on the map the location of the alleged alaloa trail including the Waipake Ahupua` a and its boundaries. She stated because the trails are cultural by-ways that connect to the surrounding coastal communities to provide resources, the Commission should involve OHA (Office of Hawaiian Affairs) to be a part of the discussion relative to what' s happening in Waipake. Commissioner Blake asked whether the location of these trails are based on legality rather than history. Ms . Kallai stated that the location of these trails are not necessarily based on legality because certain kuleanas in Waipake are identified by a different name while others are easily located by using the resources identified in the trail. Commissioner Blake asked if during the Hawaii Constitutional Convention in 1978 if there was nothing to specify a person' s blood quantum, or if a person had to be of a specific race. Deputy County Attorney Jung explained that the case law migrated between whether or not a person has lineage to the ahupua` a to being a native Hawaiian, but as it stands today it is the native Hawaiian with the koko. Commissioner Blake asked how many years it takes for something to be considered tradition. Deputy County Attorney Jung explained that in order for something to become a tradition it must include the following criteria: 1 ) consistent as measured to other customs; 2) certain and objective sense; and 3 ) exercise reasonable matter. Commissioner Blake pointed out that the criteria did reflect the amount of time to which Deputy County Attorney Jung replied that time is an issue when it comes to consistency. Commissioner Blake asked if a practice that has being going on for three years can be considered a tradition to which Deputy County Attorney Jung replied he could certainly make it an argument. The Commission received testimony from Mr. Tim Kallai. Mr. Kallai asked that the Commission make a request to the County Council to ask the State to dedicate the trails to the County. He stated that a travesty is happening because the State, who is supposed to take of these trails on behalf of the trustees, is not doing it and as a result their actions or inaction are literally taking away the resources from the people who have the right utilize it. Commissioner Hayashi asked if it was possible for the Commission to make the request. Deputy County Attorney Jung restated that the first step is to locate the trails, but the State does not have the resource to go out and locate the trails, which will become a focal point of the litigation between the landowner and the State. But if the State is successful in locating the trails and then tries to dedicate it to the County through a quit claim type of action it will immediately turn into a lawsuit because under Hawaii Statutory law only the State has jurisdiction over these trails under H.R. S . 264- 1 . Commissioner Blake asked if any of the trails belonged to the landowner. Deputy County Attorney Jung explained that if the State claims the trail it would be considered fee simple because it' s an old right-of-way. He pointed out that the State cannot Page 13 of 17 condemn a trail but can do a quiet title action, which theoretically the State could pass it on to the County. But historically, the County does not like to take roads that are in limbo because of maintenance issues. Commissioner Hayashi asked whether it' s possible for the State to transfer the trail to the Land Trust to which Deputy County Attorney Jung replied yes, and explained there are laws pertaining to remnant pieces that deal with these type of issues including crown lands where the State may not be able to transfer the land unless they get two- thirds approval from the legislature, but it would depend on how the trails are classified and how the State classifies them. Commissioner Evslin Asked since the hold-up is at the State to identify the trails can someone else kick start the process because everyone is aware the trail does exist. Deputy County Attorney Jung explained according to the Highways Act there are certain criteria that need to be met before the trail can be qualified as a historic pre-highways act trail. Mr. Kallai stated that everyone knows the trail does exist and the State has designated two points on the map depicting the trail, which is a lateral coastal trail used for fishing, picking limu, or just walking from one ahupua` a to the other. He expressed his frustration on how a matter like identifying a trail can be so easily resolved especially when there are indications that a trail does exist. Chair Figaroa noted that in the end all the Commission can do is present the information, make a suggestion, and see where it goes from there. Mr. Kallai asked if the State does not want to deal with the issue then why can't the County do it because isn' t the County part of the State. He stated that there are many groups in the community that are willing to do whatever needs to be done to keep the trails clear. Commissioner Evslin stated that it seems that the discussion always leads to the Commission not having a say in the matter. He stated that if the State is not going to listen to the Open Space Commission then maybe the State would listen to the County Council - just like the resolution that was passed by Council asking the State to not interfere with any of the decision, or discussion relative to fishing around the island of Ni `ihau. He asked whether the Commission would consider making the recommendation to which Chair Figaroa agreed. a Deputy County Attorney Jung stated that the Commission can advocate, but it must be sure of what it is advocating for, because should the Council ask the Commission for justification the Commission must be ready to provide the information so that Council can make a sound decision. But the reality is there will be ensuing litigation if Council accepts it, but it would be up to them. Commissioner Evslin restated that he would like the Commission to refer the matter to the County Council and have them encourage the State to identify the trail. Deputy County Attorney Jung asked for clarification on what trail he would like the State Page 14 of 17 to identify because there are a lot of trails. Commissioner Evshn replied the alleged alaloa trail . Deputy County Attorney Jung pointed out that the Commission needs to understand how the Public Highways Act and trail system works. He shared with the Commission that in 1988, the State' s Na Ala Hele Trail and Access agency under the Department of Land and Natural Resources was created to identify any alleged historic trails within the State including the historic trails that may, or may not, exist in the Kaakaaniu and Waipake Ahupua` a. Chair Figaroa pointed out that because the State has an agency mandated to identify any alleged historic trails he felt it would be appropriate for the Commission to write to them about the situation and have them look into identifying the trails . That way the Commission can concentrate on obtaining public access instead of focusing on identifying alleged historic trails. Commissioner Evslin stated that he agrees with the Chair, but wants the Commission to continue discussing the issue so that it does not fall between the cracks . Chair Figaroa noted that he does not want the Commission to acquire another agency's responsibilities or mandates, and that the public should approach the State' s Na Ala Hele agency for assistance in identifying the trails. Deputy County Attorney Jung noted that he would draft a letter for the Commission' s review and possible approval at the next meeting. 6 . Update on Kauapea (Secret Beach) pedestrian public beach access. Deputy County Attorney Jung noted that he had no updates since the last meeting. 7. Update on pedestrian public access involving Falko Partners subdivision in the Waipake Ahupua` a. Deputy County Attorney Jung noted that he had no updates since the last meeting, and restated that the matter is scheduled to be on the Council ' s agenda on April 16`h 8 . Discussion on Article XIL Section 7 of the Hawaii Constitution regarding customarX and traditional gathering rights. Deputy County Attorney Jung stated that the entire section consisted of ninety (90) pages; therefore he felt it would be best to send it to the Commission by email for review prior to the next meeting. 9 . Update on Commission education topics . Ms. Sadora pointed out that the discussion regarding Tom Pierce was brought up earlier in the meeting. Page 15 of 17 G. NEW BUSINESS 1 . Discussion on presentation of the Commission' s 2013 Report to the Kauai County Council and the Mayor. Ms. Sadora reported that she has not heard back from Council Staff as to when the 2013 Report would be placed on the Council' s agenda but will inform the Commission when she does. Commissioner Evslin reported that the Administration is planning to identify each traditional moku and ahupua` a by its true Hawaiian name by placing signs in each district that also include a list of items that are unique to the area. He explained relative to the Open Space Commission the idea is to give each moku its own representation pertaining to access. Chair Figaroa stated that the Mayor mentioned that he wants every part of the island represented by its individual moku, and that he wants the Commission to place it on its agenda for discussion. Ms . Sadora stated that the meeting also provided the Administration with information on how the report was structured including an update on the Commission' s recommendations. She stated that the Mayor wants the Commission to find ways to include the Planning Department, as well as the departments that are affected by the recommendations, to be part of the discussions so that everyone is moving in one direction in terms of what is needed. 2. Discussion on acquisition of land for open space preservation to create a buffer at Salt Pond Beach Park. Chair Figaroa stated that he would like defer the item to the next meeting to which the Commission agreed. H. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Ms. Sadora noted that the next meeting is scheduled for March 27, 2014, Chair Figaroa noted that the agenda topics would remain the same with the exception of a new agenda item to discuss a draft letter to the State of Hawaii Na Hele Trail System to identify any alleged historic trails that may exist in the Kaakaaniu to Waipake Ahupua` a. I. ADJOURNMENT At 3 :34 p.m. Chair Figaroa declared the meeting adjourned. Page 16 of 17 Submitted by: Mercedes Youn, Co ssio Support Clerk Page 17 of 17