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HomeMy WebLinkAbout2014-8-14 Open Space Commission Minutes PUBLIC ACCESS , OPEN SPACE & NATURAL RESOUCRES PRESERVATION FUND COMMISSION REGULAR MINUTES Of August 14, 2014 The regular meeting of the Public Access, Open Space & Natural Resources Preservation Fund Commission of the County of Kauai was held in the L-1hu` e Civic Center, Mo ` ikeha Building, meeting room 2A/2B . The following Commissioners were present: Joseph Figaroa, Chair Patrick Gegen, Vice Chair Luke Evslin (Left the meeting at 4 :03 p.m.) Dorothea Hayashi Linda Dela Cruz Theodore Blake Randall Blake (Leif the meeting at 3 : 50 p .m.) Karen Ono Ivory Mclintock The following staff members were present: Planning Department — Nani Sadora and Duke Nakamatsu; Deputy County Attorney Ian Jung. A. SWEARING IN OF COMMISSIONER Prior to the start of the meeting Administrative Assistant to the County Clerk Eddie Topenio gave the Oath of Office to new Commissioner Ivory McClintock. B. CALL TO ORDER Chair Figaroa called the meeting to order at 1 : 11 p .m. C. APPROVAL OF THE AGENDA Chair Figaroa requested that Item G. Commission Education be taken before Items D . Announcements, E. Approval of the minutes, and F. Receipt of items for the record. On a motion made by Vice Chair Gegen to take Item G. before Items D., E. and F. and seconded by Commissioner Dela Cruz, motion carried unanimously by voice vote (9 : 0) Page 1 of 7 G. COMMISSION EDUCATION Presentation by Tom Pierce Attorney at Law, regarding Hawai `i 's unique land laws the history of the laws relating to trails, and the Haleakala trail court case, Public Access Trails Hawaii et al. vs. Haleakala Ranch Company, Civil No . 11 - 1 -003 (3 ) Attorney Tom Pierce PowerPoint presentation (On file) addressed issues pertaining to different type of trails; the importance of ancient trails past, present and future; Hawai `i 's wealth of trail law; applicable Hawaiian law; applicable western law; public trust doctrine; HRS Chapter 115 (Encouraging County Access Purchases) ; HRS §46-6. 5 (a) Access During Subdivision Process); Na Ala Hele Program; Public Trustee; Haleakala Trail; Template, Attorney Tom Pierce began by thanking the Commission for the opportunity to present information on Hawai ` i 's unique land laws and the history of laws relating to trails. He stated this is all about reviving and remembering something that has been forgotten but although forgotten the strength of these trails and the laws that protect them never went away. Mr. Pierce stated as an environmental lawyer he had to focus on land use issues in order to understand the details relating to the Haleakala Trail issue. He stated between the years 2005 — 2007, there was an increased in interest from people across the State relating to trail issues. Mr. Pierce stated as a former attorney for the Maui County and as an attorney in private practice he represented private landowners which gave him the opportunity to view the issue both from the government and the landowner' s perspective and in this case, the native Hawaiian perspective in terms of the land itself and the trails. Mr. Pierce stated he wanted to focus on ownership issues because it seems to be the core of understanding the trail laws in terms of who remains the owner of these lands which in some cases would ultimately go to government. In addition, he stated that he would like to talk about continuing rights of the people to use these trails and posed the question why should people worry about these trails and why the trails need to be addressed today and not tomorrow or the next decade. Mr. Pierce stated the wealth of trail law is very important and at one time was part of the people' s understanding including the landowners some 150 years ago . He stated he wants to give the people that there are good strong laws to help direct what we can and are able to do . Following the PowerPoint presentation the Commissioners had the opportunity to ask questions. Commissioner T. Blake stated there once was a time when private landowners allowed public access to the beaches but over time the properties were sold and now the new landowner' s no longer allows' public access to the beaches where people use to go to pick Page 2 of 7 limu. He asked how this issue can be resolved because from what he understands it's the State' s responsibility. Mr. Pierce stated the best way to start is to look for some type of resolution because if the Commission had to go through the same process as he did with the Haleakala Trail issue it would take a huge tax on everyone in terms of relationships and money. Commissioner T. Blake stated although he understands that the Highways Act of 1892 takes precedence the fundamental flaw is between the Hawaiian culture and Western culture; Hawaiian culture is for future generations and the Western culture pertains to a person ' s rights today which, normally supersedes all Hawaiian rights when it comes to fighting for public access. He asked if there was some kind relief for the people and whether this type of thinking will ever change. Mr. Pierce asked if he was referring to the appropriate use of the trail to which Commissioner T. Blake replied Kauai is a small island but lately he has seen an influx of people coming to island who does not understand the philosophy. Mr. Pierce stated every trail is unique which brings the question who can use the trail. He stated part of the solution is : 1 ) Show respect in terms of how the current users of trial can use it; and 2) The environmental aspect in terms of where the trail leads to and what environmental resources are there. Chair Figaroa stated he has encountered a few landowners who were never informed of the fact that trails and pathways may or may not on the property only to find themselves ten ( 10) years later up in arms with the community. He asked who can these landowners turn to for relief and whether there is a Hawaii law that requires all real estate brokers (before selling a piece of property) to disclose every aspect of the property. Mr. Pierce stated he has been on both sides of the issue and two questions that always comes to mind is : 1 ) Is there a customary and traditional rights to the property; and 2) Who is to blame for that particular transaction". He stated the lands in Hawaii are unique and what be hopes will eventually happen throughout the real estate industry is that they would start to reinvigorate the old trails because he feels it is part of their due diligence. In regard to who is responsible - it all depends upon the circumstances although sometimes no one is responsible which an unfortunate event. Chair Figaroa asked if this type situation happens on every island to which Mr. Pierce replied in regard to the Haleakala Trail case they were able to show that the landowner not only knew about the trail but they were able to show on the map that the trail actually existed before the landowner purchased the land. In fact, they were able to show that some of the supporters of the Bill to improve the trail were the actual founders of the Haleakala Ranch Company who were part of the political scene. Chair Figaroa asked if there are laws that requires individuals to do research and disclose everything aspect of the land before it is sold. Mr. Pierce asked if he was referring to the consultants who represent the landowners to which Chair Figaroa replied he is asking in general whether there is a law that requires (before any transfer of title can take place) an individual to do research to see if a trail (s) Page 3 of 7 do or do not exist on a property. Mr. Pierce replied although there is no law the question remains where is the fairness. Chair Figaroa then asked if there are laws to prevent these unfortunate events from happening and whether the State is being proactive rather than reactive. Mr. Pierce stated anyone who is interested in buying a piece of property should do their own due diligence by doing a site visit to see who is using the property (don't just buy it in a vacuum) and really look at the property because there may be visible signs that a trail do exist. In regard to fairness there have been some unfortunate events where a landowner believes he has the right to block access only to find out that the documents show something encumbering the title which takes away the landowners rights to block public access. He stated the Highways Act of 1892 that protects public highways and trails should be a tool the real estate industry could use to encourage potential landowners to do research on the properties to avoid contentious issues and who knows the ' landowner may realize that they can deal with the trail issues because they did the research. Commissioner Evslin asked what role the Maui County played in the Haleakala Trail case and whether he sees a role for the Open Space Commission as a recommending body to initiate something similar to that to get things rolling. Mr. Pierce stated because the Open Space Commission has the ability to create resolutions he cannot see this Commission going through years of litigation because in his case there still is the potential that the Haleakala Ranch Company will come back with an appeal which will lead to another lengthy process. He stated another option to consider is to purchase the trail even though the Commission recognizes that the trail is government owned and that the State should be doing something. He pointed out that he respects the opinion of the Commission' s counsel and that he will keep his responses generic and not directed to any particular situation. Mr. Pierce stated the Commission needs to explore other options when dealing with a situation where the State continues to own the location of the trail until they choose to relinquish it through due process of the law. He stated that the Commission needs to figure out how to incorporate that same process because at one point the Department of Land and Natural Resources will need to be brought in to work with the County in terms of the ownership issues. He stated leadership is the key and with the DLNR' s acknowledge and the right leadership the County will be able to get more money and assistance from DLNR. He stated there may be a time where it would actually make sense to reroute a trail but one needs to look at the situation very carefully at what may be loss because it' s not just an access point; it' s a traditional access point. He stated he hopes that the Haleakala Trail issue will make all big landowners want to be part of the solution. He stated that the Commission should anticipate situations and not wait until it turns into a dispute by being proactive and identify the areas the Commission may want to preserve and connect with the landowner before the land is sold. Commissioner Evslin stated the Commission has written letters to DLNR requesting that they identify the alleged alaloa trail and they either respond or don't. He asked whether it was appropriate for the Commission to use the Highways Act of 1892 without involving the State or can the landowner theoretically say, why I'm I even talking you when I Page 4 of 7 should be talking to the State who owns the land. He stated without engaging the State and without the hope of engaging the State can the Commission theoretically engage in a conversation with the landowner. Mr. Pierce stated that Commission should keep all lines of communication open with DLNR and use the law to point out certain situations. Chair Figaroa stated he found a lot times that the State do not follow their own laws asking, what happens then. Mr. Pierce stated in his case they had to file a law suit because they felt that DLNR was not doing what they needed to do . Chair Figaroa asked theoretically, supposedly and an organization or an individual wants to preserve a trail and DLNR comes back to say that they don't care about the trail; would he encourage the party to file a lawsuit. Mr. Pierce stated there is always that possibility but what he wants the Commission to focus on today is leadership; leadership is the key to this whole issue and it should not just stay on Kauai but be embraced at a higher level . He stated the community is just one part of the push and with the respect from everyone in this room including the Commissioners that respect will carry up to the State level . He stated action at the leadership level is where it should be because if you could pull someone aside who is a leader with significant sway and say we really want to embrace the trail issue and would like your help at the State level. He stated this is a critical period but the good news is with the help of today' s technology extensive research and documentation of these trails can be done in an efficient manner, the bad news is that development is happening so quickly to the extent if there are kaimana memory out there it will be lost as time goes by. Commissioner R. Blake stated in regard to the Haleakala Trail issue it sounds like the first thing he did was identify the historical record of the trail and once it' s was officially identified he had it documented. Mr. Pierce stated there are many issues that will come into play when identifying a trail; it's not just about the ownership ; it' s about managing public access and regulation of these trails. He stated the most critical step that needs to be taken first is to ask DLNR for any documentation relating to a certain trail and then hire someone to do the GIS work. He stated he does not think it is always necessary to have the maps because it can be done verbally but what will help the most is to have the knowledge up front especially when the properties begin to change hands. He stated it is not always necessary when having a conversation with the landowner to have every issue nailed down just to say we have a great legal case and will move forward with it if necessary. He stated if the situation relates to a long term access point and the people in the community has done good faith research that clearly show the public has access rights to the trail, the Commission should consider drafting a resolution because he cannot see in every situation where the Commission has to pay for public access which is owned by the State or a private landowner. Mr. Pierce stated the landowners should be encouraged to talk to the Commission before the Commission begins to do the research to document everything about a trail. Mr. Pierce stated he does not want the Commission to set the bar too high in terms of what is required to do in order to start saving some trails. Page 5 of 7 Mr. Pierce stated he understands what the Commission is trying to accomplish which is to preserve, protect, reestablish as necessary, and maintain a substantial portion of the ancient trails. He stated the question remains what the Commission can do in terms of steps to where the Commission is not being reactive but be part of the solution. He stated that the Commission should review the Comprehensive Management Plan and facilitate a process in order to come up with ideas that make sense because overtime it will help the Commission to own more trails which could lead to more public access based on the Commission' s priorities and budget. Mr. Jung stated in regard to Commissioner R. Blake comments, when looking into the location of these historic trails and the alleged alaloa trail location the first question that needs to be addressed is whether or not these trails were opened, laid out or built by the government. He stated there are allegations that the government built these trails just like the Haleakala Trail. Mr. Pierce was able to prove that the trail did exist because of the extensive research that was done. Mr. Jung stated the evidentiary findings that the Commission would have to look at for is historical trail path which is a big issue to overcome; not just at the State level but even if there is a recommendation from the State for the County to accept via a dedication of these trails. He asked Mr. Pierce at what point did they realize that the first threshold is what he needed to look during the research. Mr. Pierce explained to prepare for the jury trial they reviewed old newspaper articles dating back to 1848 ,and was able to tie in all of the information to confirm the State ' s ownership of the Haleakala Trail . In regard, to Mr. Jung' s question on the threshold they did not to look to see whether the trails were opened; laid out or built by the government because their issue was unique in that the government was actually expending fiends for all sorts of trails and roads going as far back to the Hawaiian Kingdom days. He stated the Commission could go to the Library of Congress website type in the names of different areas and record the data for future reference. He stated the first proofing opportunity is to ask if there are written accounts or whether the trails very existence can be easily identified by an archeologist. He stated the maps do not have to be perfect because there is no requirement by law to show by metes and bounds of the trails exact location. Commissioner T. Blake asked why the Title Company was not taken to court because one would think they had the best source of information to which Mr. Pierce replied the Title Companies have many exceptions one of which is to deny insurance for encumbrances on the ground. Commissioner Hayashi asked for a ballpark estimate on how it took to them to complete the process to which Mr. Pierce stated the research and development began in 2007 and although the trial ended in 2014, there is a possibility that the Haleakala Ranch Company may file an appeal. He noted that the trial itself was unique because they were not able to work out a compromise but may not be the case in other situations because he believes there is always that possibility. Page 6of7 Commissioner Evslin asked who covered the cost of the case to which Mr. Pierce replied, that the lead plaintiff is a non-profit organization and that some of funding came from members of the public as well private donors. But for most of the work was done pro bono by several attorneys and experts that were involved. Commissioner Evslin asked because the State of Hawaii became part of the suit in what ways did they contribute. Mr. Pierce stated the fact that representatives from the State was present during the trial showed the community and the Judge that the issue was for the betterment of the public. Mr. Jung stated for the Commission' s edification he would provide a brief summary on where case is at and if a final judgment was issued and whether or not an appeal was made. Mr. Pierce stated if the Commissioners wanted to know more about the trial to go onto the Haleakala Trail website where they will get to see the entire account of the jury' s verdict dealing with the ownership issue. He stated that they also have a bunch of other claims including hearings scheduled for next week in which time they will ask the court to issue a final judgment against the Haleakala Ranch Company on the grounds of public nuisance which gives the citizens the ability to point out that they are being deprived of right to public access. D. ANNOUNCEMENTS No announcements were made. E. APPROVAL OF THE MINUTES Minutes of May 22, 2014 Minutes of July 10, 2014 F. RECEIPT OF ITEMS FOR THE RECORD There were no items received. H. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Figaroa clarified the following items for the next meeting agenda: 1 . Same as the previous agenda 2. Update by Mr. Jung on the Kahili Quarry Road I. ADJOURNMENT At 4 : 18 p .m. Chair Figaroa declared the meeting adjourned. Submitted by: Approved on by: Mercedes Y6un, Support Clerk Joseph Figaroa, Chair Page 7 of 8