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HomeMy WebLinkAbout07-07-2010 Special Council Meeting SPECIAL COUNCIL MEETING July 7, 2010 The Special Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, 3371-A Wilcox Road, Lihu`e, Kauai, on Wednesday, July 7, 2010 at 8:39 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W Kaneshiro Honorable Lam T Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair Chair Asing: Thank you. Can we have the first item please? PETER A. NAKAMURA, COUNTY CLERK. The first item is approval of the agenda. APPROVAL OF AGENDA. Mr Chang moved for approval of the agenda as circulated, seconded by Mr Kaneshiro, and unanimously carried. Chair Asing: Read the first item please? Mr. Nakamura. The first item is a Legal Document for approval which was transmitted by communication C 2010-174. LEGAL DOCUMENT: C 2010-174 Communication (6/29/2010) from the Mayor, recommending Council approval of a Grant of Pedestrian Access Easement for Lepeuli Beach. Grant of Pedestrian Access Easement by and between the Waioli Corporation and the County of Kauai of real property identified in Transfer Certificate of Title No. 54,084 and further described as TMK (4) 5-1-03-003. Chair Asing: Thank you. Before I entertain any motion, I would like to explain to everyone the process that we're going to have today What we're going to do is we're going to go into Executive Session first and the reason for going into Executive Session first is that we want be sure that we fully understand the extent of the county's liability, so we will be meeting in Executive Session with the County Attorney's Office. After we get through with that meeting, we will come back down here and we'll then open it up to the public for public testimony So with that can I have the County Attorney up please? I SPECIAL COUNCIL MEETING -2- July 7, 2010 EXECUTIVE SESSION IAN JUNG, DEPUTY COUNTY ATTORNEY Good morning Council Chair, Councilmembers. Pursuant to Hawaii Revised Statutes Sections 92-4, 92-5(a)(4) and (8), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide a briefing regarding legal issues related to the proposed Grant of Pedestrian Access Easement for Lepeuli Beach. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. And again for the record Deputy County Attorney Ian Jung. Chair Asing: Thank you. With that I would like to call the meeting back to order and have a motion to move to Executive Session. Mr Kaneshiro moved to convene in into Executive Session, seconded by Mr Chang, and unanimously carried. Chair Asing: Motion carried. We are now going to move into Executive Session. I'm going to make a guesstimate and my guesstimate is that it will take approximately a half an hour I. that's a guesstimate on my part, so we will be meeting in Executive Session, possibly half an hour and then we will return here and then we will start to take public testimony With that, thank you. The meeting was recessed at 8:42 a.m. to move into Executive Session. The meeting was called back to order at 10:10 a.m. and proceeded as follows: Chair Asing: This Council meeting is now called to order With. with that said ah what I'd like to do first is introduce some Boy Scouts: Kainoa Matsumoto, Bradley Fujiuchi and Vance Tokita. I believe they're here to earn some merit badges and we would like to welcome them here today, thank you very much for coming. Would you like to say anything? If not. If not thank you very much for coming and we hope that you get your merit badges. (Where's Ian, where's Ian..) With that, what I'd like to do is have the County Attorney do a short presentation regarding the item that is on the agenda. With that, Attorney Jung. There being no objections, the rules were suspended. Mr Jung: Good morning again Council Chair, Councilmembers, Deputy County Attorney for the record Ian Jung. To my right is Lisa Ellen Smith, a Planner within the Planning Department, and Les Milnes to my left who is also with the Planning Department. Okay what we prepared for you today is a brief presentation on what the county is looking at in terms of this proposed grant of pedestrian access easement and what's on the screen now is the introduction page. It's Lepeuh Beach, also known as Larsen's Beach. Okay and SPECIAL COUNCIL MEETING -3- July 7, 2010 where we're going this morning in this brief presentation is the grant of easement itself, the subdivision history which created the existing lot of record that is the current county access, the Paradise Ranch, LLC - CDUA application, the existing access that is there today with photos and a map description, and also the proposed access that Waioli has offered the county Okay so the intent of this grant of easement is Waioli wanted to create a easement to be used for the County of Kauai and members of the general public to access Lepeuli Beach. And Mayor Carvalho successfully negotiated this easement to secure what we now want to call the middle trail, which is already an established trail down there. So kind of what the subject of debate is this Paradise Ranch CDU application, and CDU is Conservation District Use, and that's the jurisdiction is with the Board of Land and Natural Resources. So DLNR. DLNR approved (I can get it Yvette, you don't have to ) DLNR approved a CDU application to put in agricultural fencing, or Waioli lessee which is Paradise Ranch, and that particular CDU was subject to various conditions and some members of the community had appealed that decision by the Director . or the Director of Board Land and Natural Resources which kicked it up to the Board, which the Board heard a hearing. That particular condition which is being referenced throughout the media is that the applicant landowner, and I think there's a editorial mistake in that, should say.. probably say shall work with the County of Kauai to define and improve existing legal access to Lepeuli Beach. Okay the interpretation of this is that the intent of the condition is to improve access to Lepeuli Beach, okay, not to create a beach park but just to improve the existing access or any other access thereto. Although the public access exists down a lot of record that the county owns, the Mayor called upon Waioli to open up what this established trail is... as the middle trail for access purposes. As you can see on the. and I'm sorry that this is so small but I will try with the pointer here. as you can see this is Koolau Road, this is the intent of. or the borders of Waioli Property, lot one (1) This lot, Councilmember Furfaro if you could just take a little shift to the right there. Mr Furfaro: Or make it bigger next time Mr Jung: I'll try not to point at your head. so the existing lot is lot four (4) which you take a left off Koolau Road and traverse down what is the old School House Road down to the end where there's a little parking area where the parking area turns into a trail or access that traverses through sort of a switchback down to the end portion of the rocks, which is right there. Now we have a overlay of Lepeuli Beach which is a map that was prepared by Paradise Ranch which kind of identifies in an enlarged version. here's the end of the roadway to the parking lot and the trail that exists down here comes and swoops around there and the proposed access easement would come down to the left, straight down to the very far end of the beach. Just to give you a background on how the county lot had been created. in 1979 the County of Kauai requested that Waioli Corp subdivide SPECIAL COUNCIL MEETING -4- July 7, 2010 a portion of its Lot one (1) and provide the county public access to Lepeuli Beach by way of Warranty Deed, and that Deed was executed in 1979 Lot four (4) is 3.597 acres, so it's a very narrow thin lot and it consists of a dirt roadway, parking area and access trail. However not until the year 2000 did the Warranty Deed get registered with the Land Court, and this property is Land Courted. Okay so the existing lot as mentioned, it's owned by the county for public access purposes. Lot four (4) consists of dirt roadway, parking and public access trail. And here's a highlighted version that Mr Milnes prepared, this is the end of the roadway there. access trail starts here, veers to the right, comes down around this rock base, comes down here, down to the end of the rock portion there. And if you look at this animated map, there's the ironwood tree here which there was a fence that blocked this off and now the fence has been removed. And comes down and there's the end that comes down here and this is the lateral trail that is subject to contention and the proposed fence comes up straight across here, so it would not block off the proposed grant of pedestrian access which would veer right through here. So getting to the proposed access. Mayor Carvalho did a site visit, found that the existing access through Lot four (4) was unimproved, and he came up through the proposed access, so he is aware of which middle trail is easy to go up. So Mayor Carvalho then requested a meeting with Waioli to look at opening up the middle trail for access purposes. Waioli Corp. agreed to open up the middle trail and the grant of easement that's before Councilmembers today is the end result. So here's sort of a blown up map that puts it all in perspective, here's the roadway, here's the parking area. The county the current county access trail comes down through here and meets up with this particular trail, with the existing trail and comes back down to the beach here. This trail here is the proposed access easement and this is the lateral trail which you can see some splintering off trails that come down here, that is Waioli property So if you look on the back two (2) pages of the easement map, you'll see the larger of the two (2) maps and this puts the entirety of the property in perspective, and again there's the lot borders of lot one (1), the focus area is right here in the corner which I'll move to the next screen. And here is the proposed easement and if you look at the end of lot four (4) here which is the county road, we will still have county access through this particular trail lot four (4) but what Waioli so graciously offered was to give us this easement which comes down straight down the existing established trail, connects up to our access and then again splinters off to the left going down to the beach. And if you look at the documentation, it was broken up into easements Al and A2, and the reason for that is because it touches upon the county trail. the existing county lot. So we had to identify this as one (1) access and this as a separate access and that's why it's Al and A2, if there's any so that's it. If there's any questions, I'd be happy to answer them. I have Lisa Ellen and Les Milnes to assist with any commentary you may have. Chair Asing: Thank you. Can we have the lights please? Councilmembers any, we'll wait until the Councilmembers get their seat. Thank SPECIAL COUNCIL MEETING -5- July 7, 2010 you. With that Councilmembers the meeting is called back to order Any questions? Councilmember Kawahara. Ms. Kawahara. Hi Ian, thanks for being here Quick question. If you could give us the definition of the difference between the grant of easement that we're, you know, that we're proposing to get versus the ownership of what we have now? Mr Jung: Sure. What we have now is a lot of record which we own in fee simple, and that's land courted property An easement is just a burden on another property's owner on their property that we can use for access purposes and that's the purpose of the easement for access purposes. Ms. Kawahara. Okay Mr Jung: So we own a ownership interest in the property but it's still owned by another entity Ms. Kawahara. Okay Question is if there's still ownership of the property by the owner, is there. is it a guarantee that the public have access to it no matter what time of day or anything or is there. are they able to block it off, close it with a gate. Mr Jung: They're not allowed to close it off as long as the access is open for public purposes, so it will remain open. Ms. Kawahara. Okay Mr Jung: For use of the county and members of the general public. Ms. Kawahara. Okay thank you. And the other question is we are all worried about liability, if you could explain the difference between what the liability issues are. ALFRED B. CASTILLO, JR., CouNTY ATTORNEY Excuse me, excuse me, Council Chair if I may? Chair Asing: Yes. Mr Castillo: In the discussion regarding liability, I suggest that we take it. if you have another question regarding liability it would be wise to take this into Executive Session rather than open session. (Audaence -- "what?" "boo" "Sunshine Law') SPECIAL COUNCIL MEETING -6- July 7, 2010 Ms. Kawahara. Chair? Chair Asing: Thank you. I'm going to respect the County Attorney's opinion given now and with that do you have another question? Ms. Kawahara. If I may ask the County Attorney a question? Chair Asing: Yes go ahead. Ms. Kawahara. Okay Al, I appreciate that. If you could tell me how I could get just a answer to what the difference is between um.. the difference between easement liabilities versus ownership liabilities, just definitions. differences. Mr Castillo. Again, where the liabilities of this project is concerned, I would rather take it in Executive Session because it is an Executive Session subject matter Ms. Kawahara. Okay so I can't get a generic difference? Okay That's fine. I thought I would be able to just get a generic difference, I mean. what the difference is between liabilities. if we own it versus an easement where we are in ownership with other people but I honor what the County Attorney says, thank you for now Thanks. Mr Jung: Okay Chair Asing: Thank you. Any other questions? If not, thank you. I'd like to call the meeting back to order now and with that let me ask for show of hands how many in the room plan to testify Can I have a show of hands please? Ah. okay there's quite a bit and with that let me set some ground rules because of the number of people that are going to be testifying. I'm going to limit your time to three (3) minutes, and then after your three (3) minutes you will be given an opportunity after everyone has had a chance to testify first for another chance. So initially when you come up, you will have three (3) minutes to testify, and then we will stop at that point and you can come back again after everyone has had a chance to testify first. So with that, do we have registered speakers? There being no objections, the rules were suspended. Mr Nakamura. We have registered speakers Mr Chair Chair Asing: Thank you. Mr Nakamura. First. Chair Asing: Go ahead. SPECIAL COUNCIL MEETING -7- July 7 2010 Mr. Nakamura. First registered speaker is Rayne Regush followed by Gregory Robinson. RAYNE REGUSH. Good morning Councilmembers, Rayne Regush for the record. I'm speaking today on behalf of the Sierra Club Kauai Group of the Hawaii Chapter And I hope you are in receipt of the testimony that I sent in yesterday? Thank you. We are strongly urging that the Council delay decision making on this matter today The grant of easement document that is before you is for the use of a very steep trail that's inaccessible to many people due to its precipitous slope and it does provide access to the. shoreline access to the public but is inferior to the access that's provided through the historical lateral trail that goes to Lepeuli and along the beach there. The historic, traditional and customary trail actually connects to other public trail segments through the adjacent ahupuaa of (inaudible) and Moloa`a and it's a far safer trail which has been used unimpeded for generations until recently when this cattle fencing permit came before an SMA minor and the State for CDUP So you may not be aware that DLNR Office of Coastal and Conservation Lands is reexamining the conservation district use permit for the eighteen (18) acres where these trails are located. They are scheduled to determine in mid July whether to modify or revoke that permit and their decision will have direct bearing on the public access issues related to Lepeuh Beach. So therefore it's very important that County Council do nothing that could inadvertently prejudice DLNR's decision making or inadvertently lead to the county accepting an inferior public access to the coast and we strongly urge that you delay your decision making today on this matter until DLNR renders their decision and in examining. in your examination of this easement document we also urge you to consider several other issues. First we do understand that Waioli Corporation was willing to have the county take legal responsibility for the historic lateral trail and if that is the case, we'd like to understand why the county is considering an easement for an inferior steeper more dangerous and less usable trail. And second the legal existing access way which is been the. which is the legal access of record has been in disuse for many decades and it's overgrown with trees and vegetation, it had been blocked by an unpermitted fence between the two (2) ahupuaa properties and we're glad to hear that the county intends to keep this trail open, so I want to hear a little more about that and then lastly according to state archeologist Nancy McMann, an eroding burial site is located on this subject trail and Iwi kupuna have been knocked loose here and therefore the Council should seek more information before decision making. So all these reasons we ask that you please defer the matter, it would allow the county more time to exercise due diligence before assuming liabilities associated with the proposed easement and. Mr Nakamura. Three (3) minutes Mr Chair. SPECIAL COUNCIL MEETING -8- July 7, 2010 Ms. Regush. And it would also give sufficient time to learn about DLNR. Chair Asing: Ah. your three (3) minutes is up, you want to wrap up please. Ms. Regush. That's. and we would appreciate an opportunity for community input beyond today's meeting to assist the Council and the Administration in evaluating trail options that will protect the public interest in gaining the most usable accesses to Lepeuli Beach. Chair Asing: Thank you. Ms. Regush. Mahalo. Chair Asing: With that Councilmember Bynum. (Audience - applauding) Chair Asing: Hang on. Audience please I know that you want to cheer on your speakers but let's refrain from that please, thank you. Mr Bynum. Good morning Rayne. Chair Asing: With that, Councilmember Bynum. Mr Bynum. I understand almost everything in your testimony but you know one portion you said it's your understanding that Waioli had spoke about. Ms. Regush. That the County has an opportunity or had an opportunity Mr Bynum. Okay that's. Ms. Regush. To. Mr Bynum. Okay that's. that's. I hadn't heard that before. what's the source of that? Ms. Regush. Take responsibility for the Alaloa. Mr Bynum. What's the source of that information? SPECIAL COUNCIL MEETING -9- July 7, 2010 Ms. Regush. Ali, well that's what I was putting. it was our understanding, I'd like to get confirmation from the county you know, if that's been explored. Mr Bynum. Okay because I hadn't heard that, so. Thank you, if you don't know anymore about the sources. Chair Asing: Thank you. Ms. Regush. Thank you so much. Chair Asing: Anything else? If not, thank you very much. Can we have the second speaker please? Mr Nakamura. Second speaker is Gregory Robinson, followed by John Tyler Cragg. GREGORY ROBINSON Aloha Chair Asing and Councilmembers. My name is Greg Robinson and I serve on Kauai Path Board of Records. Kauai Path is a community organization with a vision of Kauai residents working together to preserve, protect and extend island-wide access through design implementation and stewardship of multi-use paths, non-motorized. Kauai Path recognizes and stands for the need of access for residents of all abilities. The Lepeuli alaloa, otherwise known as the lateral trail, because of its gradual slope, allows beach access for elderly, keiki and those with moderate disabilities. Lepeuli alaloa also enjoys some bicycle use because of its gradual incline. Preservation and protection of public access on this historic and continuously used path with its softer gradient than the proposed easement is an imperative for Kauai Path. The proposed easement is rocky and steep as acknowledged in the grant of easement convenient eleven (11) It is obviously not suitable for bicycle use, small keiki and the physically challenged. Therefore, Kauai Path opposes accepting this easement as coastal access of Lepeuli alaloa. Thank you very much. Chair Asing: Thank you. Any questions Councilmembers? If not, thank you very much. Can we have the next speaker please? Mr Nakamura. Next speaker is John Tyler Cragg, followed by Hope Kallai. JOHN TYLER CRAGG Good morning gentlemen and lady My name is John Tyler Cragg and you've seen the rescue tubes most likely; I put them on the beaches. I'm the person along with Dr Downs that have been putting them up We've had fifteen (15) rescues to date, people lives saved and actually four (4) of them happened at Larsen's Beach, Lepeuli Beach. My one key thing that I would like to mention is from the safety aspect towards the access. If the middle trail is what's being proposed goes through, that will dump the people that are using the SPECIAL COUNCIL MEETING -10- July 7, 2010 trail right into the major rip current for Larsen's Beach there and that's where most of the rescues have happened at this place, most of the drowning and deaths. By having the other lateral trail open, the public is able to take an easier route and disperses the amount of people across the whole beach but if we only had one (1) access that goes right into the major rip current area, people are going to drown. We are going to have more drowning deaths there, knock on wood. that it doesn't happen but that's what we're going to be faced with and the rescue tube was used only this weekend to save someone else's life, right there at that major rip current. There's signs up and that's not doing the trick, the visitors just. they go there and they don't know any better and that's one of the worst places safety wise to have people to go to. So I really advocate as a public safety person or lifeguards to have the lateral trail still stay intact for people to go there as well to. okay and whatever it takes that way, from a safety standpoint, that's why I'm here. Thank you gentlemen. Chair Asing: Thank you. Any questions Councilmembers? If not, thank you very much. Can we have the next speaker please? Mr Nakamura. Next speaker is Hope Kallai, followed by Tim Kallai. Or Hope and Tim Kallai. HOPE KALLAI & TIM KALLAL Aloha. I have a powerpoint presentation that I would like to submit as testimony and I want to go through a little bit of it just to clarify some of the maps. Chair Asing: Go ahead. Ms. Kallai. We in the back could not see. Chair Asing: Okay fine. Ms. Kallai: There's a lot of confusion about this proposal. (inaudible). Ms. Kallai. Oh I'm sorry Hope Kallai. Mr Kallai. Tim Kallai. Ms. Kallai. And I know my thing will probably take a little bit of time to load so. thank you for your time and consideration. And there's a lot of confusion about these trails. We in the community didn't know that we were not accessing the county right-of-way until October And the county right-of-way is actually over here. Councilmember Furfaro, you're going to get blasted in your brain there. This is just a locator map if everybody doesn't know where Lepeuli is. It's on the one o'clock portion of Kauai and this map was submitted in the SPECIAL COUNCIL MEETING - 11 - July 7, 2010 enforcement file but it shows the alaloa located in Waipake, this is Waipake Ahupuaa, this is Lepeuli. This actually is School House Road right here, School House Road is not Larsen's Beach Road over here, this is School House Road, this is the School House. So I wanted to clarify that point. And this was the site visit in December when the fence was up and I believe when this site visit happened, nobody climbed over the fence, they went around the fence line which gave a mistaken impression that the county right-of-way was the boulder field, over here where there's boulders big as dump trucks. The county easement, the steep easement being proposed goes off this way The county right-of-way is oops. I don t know how to get back. one more. the county right-of-way Oh geez big, fat thumbs. the county right-of-way is actually over here. So the steep proposed easement goes this way, the county right-of-way goes off here. This is a triple juncture of trails over here, it's really confusing and we are urging the Council to just say no to this proposal and to accept community input because there really hasn't been any So it's. this is a picture of the existing easement that's under consideration, it is not family friendly, it's not tutu friendly and it cannot be made ADA accessible. Who would this new easement serve? It doesn't serve the general public, it restricts the general public. So this is the triple juncture again and just in explanation, this is the lateral alaloa, the ancient historic trail that's been here forever This is.. oops. the county easement being considered is this one going down here and the county right-of-way that was behind the trespass fence is right over here and it is open and goes down to a pin on a point over here and it's a kiloia, actually it's a vista point that was used by fishermen and beachgoers. So the boulder field is not in the county right-of-way, there are no boulders that need to be moved. This is a clarification, the blue is the easement being considered, the red is what we already owned. What we already own has switchbacks to lessen the slope. As you can see, the blue one goes straight up and down. The blue one is a new easement; it would have to be made ADA trail accessible and it cannot be. Mr Nakamura. Three (3) minutes Mr Chair Ms. Kallai. Okay, so my husband can continue. Mr Kallai: If I can just parlay my three (3) minutes preferably to my wife. Ms. Kallai. Oh okay The alaloa is an ancient trail that's always been here, it's many hundreds of years old. And here it is, it's gentle, it is not a liability, it's accessible to everybody, except I wouldn't recommend a wheelchair; you can take a baby cart down it. I had a Auntie last weekend in a walker, she beat me down this trail and she was in a walker and I was walking and I couldn't believe it but I would not take a wheelchair down this trail but everybody else can go. It is connecting to the. alaloa connects to the county multi-use bike path and the area of Lepeuli is right here, there's connecting alaloa lands this in. this is Moloa`a... cops. in Moloa`a, these are the Hui lands that are in discretion for all the farm worker housing but fronting the Hui lands is State land. The SPECIAL COUNCIL MEETING - 12 - July 7, 2010 Naalahele is right here, this is (inaudible) and Lepeuli and the alaloa is here, here, here and here. So we have a continuous lay of trail system around this island and that is what we need to acknowledge in this alaloa. This is the alaloa on Moloa`a Bay Ranch and this cultural site that the alaloa goes right next to has been radio carbon dated to 1400 A.B., this is a cultural treasure, the alaloa is something that we should be highlighting, not pretending like it doesn't exists. 1833 it's on the maps. 1878 it's on the maps. Here's a blow up of that very last map and part of the problem at DLNR hearing is there's a severe misunderstanding that the alaloa is on the coast, on the coast, on the coast and Lepeuli it goes all the way to Koolau Road and you walk on Koolau Road and then all the way back out to coast to (inaudible) right here. Now we here on Kauai know that that is ludicrous, the alaloa is a coastal trail and it continued on the coast here. But to have to (inaudible) on Oahu is really difficult, so the blue arrows are what is now called Koolau Raod, used to be the public road and this is the alaloa trail, it actually was a postal route in the 1860s. This is a google map showing the alaloa and the ahupuaas and actually the kuleanas through the district and you can actually see the alaloa here connects the coastal kuleanas throughout the coast. So I'm going really fast and I'm sorry This is where the county right-of-way actually is.. the land we own goes down here, the steep easement is right here. The alaloa you can see over here and this project has never submitted topographical map so this is really, really hard to understand without any topos. Mr Nakamura. Six (6) minutes Mr Chair Ms. Kallai. So here's a topo of School House Road going down and connecting to the alaloa. Chair Asing: That, that. that is your six (6) minutes you want to wrap up please? Ms. Kallai. Okay Well this one actually shows that county right-of-way and the existing trail, so I think I have it blown up here. The county right-of-way (inaudible) is in red and the existing slippery, treacherous, extreme, eroding county proposed easement is the blue one and you can see it's half as long and twice as steep And I'll skip through all these. this area the county has designated as a heritage resource area but we only have four (4) county beach accesses between Papa`a and Kilauea. County only owns forty (40) feet of beach access, so if the State charging for State Beach access, we only got forty (40) feet and of these forty (40), there's only one that's gentle and family friendly and that's Moloa`a and it has very inadequate parking. So we got a serious situation here and here's the county easement. the county right-of-way as is now owned and it's switchback for a reason and I'll go through all. this is a picture of the easement that you guys are considering acquiring right now This is the trail as it exists now, it cannot be made ADA accessible. It's really treacherous and if anybody takes a huli, they're going to break their head. This is a liability And you cannot get an even tread with the thirty-two (32) inches, that's how wide it is. It's one (1) slipper SPECIAL COUNCIL MEETING - 13 - July 7, 2010 wide, somebody with a (inaudible) like Peter could not walk up these stairs. This is the easement you guys are talking about acquiring today How many people in this room could go up this trail? So this is the area. Chair Asing: Hope. Hope. Ms. Kallai. Of the reburials.. Chair Asing: Hope? You want to wrap up please? Ms. Kallai: Okay one (1) more. one (1) more slide. This is the reburials, these are where three (3) human remains have fallen out of the cliff and this is how close this easement is to what you're considering. Please defer this decision, do not accept this easement, it's a liability, it's huge. And nobody in a wheelchair could go but an asymmetrical person could not go. And out of let's see. I can get there. out of ten (10) typical beachgoers. if this is a typical cliche beachgoers population, everybody could go on the alaloa except for the wheelchair guy On the county right-of-way if there was maintenance of what we own right now, seven (7) out of ten (10) people could go on the alaloa. The easement that you guys are considering, only four (4) out of ten (10), it's restricted, it's eliminate user groups. Thank you. Chair Asing: Thank you. Ms. Kallai: Sorry for taking so much of your time. Chair Asing: Thank you. With that, any Councilmembers? Any questions Councilmembers? If not, let's wait to the lights get back on. Thank you, with that can we have the next speaker please? Mr Nakamura. Next speaker is Linda Sproat, followed by Richard Spacer LINDA SPROAT• Aloha, my name is Linda Akana Sproat from Kalihiwai. Mahalo Councilmembers for taking the time to consider this very complex issue. We appreciate all of your efforts. all the efforts of the Council and the Mayor's Office and the Planning Department. My family has been using this area since time immemorial for fishing and gathering both on the land and the sea. We've. we're concerned about the impacts of the fence of the traditional and customary accesses. Given these concerns, my family retained the Native Hawaiian Legal Corporation to represent us in this matter and appeal the CDUP to the full Board and now the Circuit Court. As previous speakers explained DLNR staff are currently conducting an investigation. In addition we're hoping to walk with Waioli Corporation and Paradise Ranch to resolve these.. our concerns. Please defer this action to give us time to try to work things out. Thank you for your time. SPECIAL COUNCIL MEETING -14- July 7, 2010 Chair Asing: Thank you. Any questions? If not, thank you very much. Can we have the next speaker please? Mr Nakamura. Next speaker is Richard Spacer, followed by David Sproat. RICHARD SPACER. Thank you Mr Chairman, members of the Council. I to would like to ask for a deferment of this decision. (inaudible) Mr Spacer Richard Spacer Thank you. I would like to deferment of a decision. The Office of Mayor only issued this cover letter and transmittal on the 29th which was before a long national holiday weekend. You have not have had enough time to consider this, neither have a lot of people on the island. Some of us activist of course have but we have not been granted a true public hearing. The State denied us a public hearing. Senator Gary Hooser offered to pay out of his own funds for DLNR staff to come over here and have a site visit and a public hearing. He was twice denied. I asked Laura Thielen to come over before the Senator asked and I was denied but they have a public hearing and a site visit. That's one of the very least things that we're asking for is a true public hearing on this mission. Now the other thing that troubles me here greatly about this grant of easement are two (2) points in particular The Deputy County Attorney has stated that the public will not be denied access at another hour of the day per Councilmember Kawahara's direct questioning. why then point number three (3) improvements within the easement area include the statement, the granters reserves the right but shall have no duties, subject to whatever legal requirements may apply, to construct, install and maintain, reconstruct, replace and repair the following improvements, known as the grant of improvements within the easement area, provided such improvements do not unreasonably interfere. Now that's quite a legal phrase isn't it? With grantee's, that's the county rights hereunder, and those improvements are enumerated, pedestrian walkways, utilities, drainage facilities, walls, fences and trees and plants vegetation. why would we need a fence if we've just been told that it's going to be open day and night. Why would the bright be reserve to have this? And jumping over to point number fourteen (14), this is an interesting one. relocation of easement area. Grantor, that's Waioli, reserves the right to relocate the easement area at grantor's sole cost and expense provided that the easement as relocated fulfills the intent that's set forth in paragraph one (1) which is beach access. But if you're having a specific easement, why in the world would you need to relocate it at some point in the future? I want this to be deferred. I want us to have a lot more investigation into this whole thing. We already owned, as already been stated, the fee simple trail to this beach. It is not in a bad shape as some would apply The first part down to the first flag is quite accessible. The fence as noted has been removed and it would take a minimum of cost and a minimum of effort to complete the work from SPECIAL COUNCIL MEETING - 15 - July 7, 2010 the first flag down to the sand. We already own it; we don't need something that we don't own, Mr Chairman. Why would we do that? Thank you very much. Chair Asing: I have a question? Mr Spacer Yes Mr Chair Chair Asing: Your statement regarding the. your perception of the general safety of the existing pathway, so you feel very comfortable with it if the county does minimum improvements? Am I correct, did I hear that? Mr Spacer I think minimum improvements would bring the county owned fee simple trail into relatively easy use. As Hope Kallai pointed out there's a scale. The alaloa is the trail we all want and it's a State trail unto the highway active 1892. Chair Asing: Well wait. let me, let me rephrase it. Mr Spacer Okay Chair Asing: Your statement that the existing county owned access would be relatively easy to get to the beach area with minimum county improvements and you feel comfortable with that. did I hear that correctly? Mr Spacer You did. Chair Asing: Okay Thank you very much. Mr Spacer Thank you Mr Chair Chair Asing: I appreciate that. Mr Nakamura. Next speaker Chair Asing: Can we have the next speaker please? Mr Nakamura. Next speaker is David Sproat, followed by Dennis Esaki. DAVID SPROAT• Good morning, my name is David Sproat, Chairman Asing, members of the Council. Thank you for allowing us to speak and dealing with this complex issue Most of the points have been stated, I concur with and I am going to ask for deferment, but just a few clarifications because there's a lot of things on the table, it's not as simple as it seems. It's really a State issue. Before DLNR we testified as an appeal upcoming. DLNR Board has been reinvestigating the CDU as to where. what will be done. We're attempting to sit SPECIAL COUNCIL MEETING - 16 - July 7, 2010 down with Waioli Mission Corporation and Paradise Ranch to try to resolve maybe some of these issues. So it may be a moot case. There's no need to rush into accepting this right-of-way, you already own one as it's been stated. The larger issue which I'll touch on and I'll clarify some of the things that my wife said, I am Linda's husband, when she said her family has been using this trail from time immemorial, her dad was the konohiki fisherman of the area and when I came to Kauai in 1966-67 1 fished with him, she went with him as a little girl, walked the trail, gathered fish and (inaudible) along the trail. So the trail exists on maps, it exists in history, it cannot be denied. She has extensive testimony from kupunas in Moloa`a because she was a member of Naalahele. Naalahele recognized this and wanted to put this trail into being. Think of this. there's been federal funds used for the multi-use path. on that multi-use path, why do you think pedestrians and the public is allowed to walk through hotel property, commercial property, that's the alaloa. So you cannot recognize it in one (1) area and not recognize it in another So as it's been stated, I think that's the larger issue that eventually have to be dealt with. The state as the caretaker for Native Hawaiian rights is really in charge of making this pono or right and recognizing it. And that will have to be dealt with because a lot of issues of management and use and how is it put into place but I think with all of that on the table. and I want to thank everybody for the effort, the Mayor has got involved, he's walked the trail. I have walked the county owned easement and it's. and this. it wasn't stated but who laid out this county owned easement was DLNR I mean. what's his name. Ralph Dayler of DLNR so he knew what he was doing. So based on all of these issues I would recommend that the Council at this time defer any action of accepting this. what's being proposed today and give time for the issues on the table to be resolved and there's a lot more investigation and research needs to be done, it's a very sacred area. Thank you. Mr Nakamura. Three (3) minutes Mr Chair Chair Asing: Thank you, with that Councilmember Bynum. Mr Bynum. Mr Sproat thank you for your testimony, I just hope. you. I agree it's a complex issue and the county has kuleana to provide safe and appropriate access but your testimony is that the lateral access is primarily a state issue, that the state. and I think for the county is really important to separate what is our responsibility and what is the state's responsibility, so I just wanted to make clear make sure I was clear that you agree that the lateral access issue is primarily and I don't think completely but primarily a state issue Mr Sproat: That's true. Mr Bynun. And historically individuals could walk from Moloa`a through this entire area and beyond. is that correct? SPECIAL COUNCIL MEETING -17- July 7, 2010 Mr Sproat: That's true, in fact they came from beyond Moloa`a, yes that's true. Mr Bynum. Okay, thank you. Chair Asing: Thank you. Ah. Councilmember Kawahara. Ms. Kawahara. Thank you Chair Thank you for being here Mr Sproat. The question I have is about the Hope's mentioning of the Kilauea vista point and that is on the county owned right-of-way, right? Mr Sproat: That's right. Ms. Kawahara. And you can say historically that you've used it before. Mr Sproat: Yes. Ms. Kawahara. And that trail that Mr Dayer Mr Sproat: Yes. Ms. Kawahara. Made? Mr Sproat: And what's important about that point that she mentioned is there are two (2) separate base sort to speak. if you get up at the top of that county owned easement, on that vista that's mentioned, you can look to the left to Lepeuli Beach but you can also look to the right Kaakaanu Bay, right down there. So the fisherman would use that point because they could see both. it's a broader view of the area. Ms. Kawahara. And because. when we did our site visit it was difficult to get down and I think we all know that. but your experience in the past you had used it and it was a trail made by Mr Dayer and it was a good trail. Mr Sproat: It needs some clearing because it hasn't been used because of the fence blocked it. Ms. Kawahara. Yes. Mr Sproat: So there's trees growing over it. So it needs to be reopened. That's a more gradual trail that has stepping, it's very gradual and has several switchbacks and what it'll do is actually end up coming back to the existing trail and that's when you access the beach. There's a miscommunication. you have to follow what Ralph has laid out, he doesn't go over the rocks. It comes back to the existing trail near the bottom and comes out at the corner of the beach, yes. SPECIAL COUNCIL MEETING - 18 - July 7, 2010 Ms. Kawahara. Okay Thank you. Chair Asing: Any other questions? If not, thank you David. Is there anyone else? Mr Nakamura. Next speaker is Dennis Esaki, followed by Isa Maria. DENNIS ESAKI. Good morning Councilmembers, Dennis Esaki for the record. Good morning, I'm here for my Boy Scout merit badge. (audience laughing). Mr Esaki. No. it's clear that I'm not a Boy Scout, I'm not an Attorney, and I'm not hired by the landowner or their land user I'm a land surveyor With all due respect to cultural issues. I understand this is a land court, property and from my understanding of the Land Court system of land registration, at the time of Land Court review, uses have been considered and when the Land Court gave approval in what they call adjudication, all uses were into account. Regarding lateral access, the newer criteria as established by DLNR and most of the shoreline survey's shoreline certification surveys have been real conservative as far as moving the shoreline more mauka, which leaves more shoreline access, lateral shoreline access for the public. With that being said, I ask for your approval of the easement. Chair Asing: Any questions? If not, thank you Dennis. Oh you do? Go ahead. Ms. Kawahara. I do. Mr Esaki. Yes Lani. Ms. Kawahara. Actually since he brought up the SMA. Chair Asing: Go ahead. Ms. Kawahara. And the shoreline. you talking about the shoreline? Mr Esaki. I didn't bring up SMA. Ms. Kawahara. Oh. Mr Esaki: Shoreline certification. SPECIAL COUNCIL MEETING -19- July 7, 2010 Ms. Kawahara. Shoreline. Mr Esaki. Certification. Ms. Kawahara. When was that done? Mr Esaki: No I just saying in general. Ms. Kawahara. Oh okay, do you know Mr Esaki: Like I said I wasn't hired by these guys but. Ms. Kawahara. Oh okay okay Mr Esaki. I wish I was. Ms. Kawahara. I think we can get a fact of record put in place is when the shoreline certification was done, thanks. Chair Asing: Thank you. Go ahead. ISA MARIA. Hello my name is Isa Maria, thank you for taking the time to hear us today I would like to urge you also to delay your decision until you have time to study the issues thoroughly We would like to recommend a current shoreline certification and also to wait until DLNR has finished their study of the area. Thank you very much. Chair Asing: Thank you. Can we have the next speaker please? Mr Nakamura. Next speaker Paul Kyno, followed by Haley PAUL KYNO- Hello Councilmembers, I just want to say that I am and always been an advocate for oh Paul Kyno. I've been an advocate of private property rights and to me over the last thirty (30) years, I've been using the existing trail that's there, probably could use some work as far as some repairs but I've gone down there with kids and have. never had a problem getting down to that beach using that access that the county already has. The way I look at this and the reason why I'm actually here is because seeing a lateral trail going across somebody's private property just doesn't seem like the right thing to do for me, especially when the county already owns a trail. Thank you. Chair Asing: Thank you. Any questions Councilmembers? If not, thank you Paul. Chair Asing: Can I have the next speaker please? SPECIAL COUNCIL MEETING -20- July 7, 2010 Mr Nakamura. Next speaker is Haley, followed by Anthony Parisi. HALEY PRUNTS. Aloha, thank you all for being here. Chair Asing: You want to pull the mic closer to you please? Ms. Prunts: Aloha. Chair Asing: Okay Ms Prunts. I'm grateful to be here, thank you all for being here. Ali... I stopped at Larsen's Beach this morning. Mr Chang: State your name for the record. Ms. Prunts: Haley Mr Chang: What's your last name? Ms. Prunts: I stopped at Larsen's Beach this morning on my way here just to really see what's going on and the trail that exists I believe should be preserved and continued to be used. And the cliffs where they're proposing to have the trail, it looks really dangerous and it's just straight drop off and I don't think anybody would really want to hike that, so thank you. Chair Asing: Thank you. Can we have the next speaker please? Mr Nakamura. The next speaker is Anthony Parisi, followed by Don Wilson. ANTHONY PARISI. Good morning my name is Anthony Parisi. Good morning Councilmembers. I've farmed in Moloa`a since the 90's and I have a personal perspective on what has happened to this ancient walkway and that is basically for Moloa`a. It was initially blocked by Mr McCloskey who took down all the trees, the breeding ground for all the birds, and cut them to the ground, the hillside (inaudible) a seventy-five (75) foot piece of it into the ocean, ban the trail, put up a fence and then was told he had to put up signs stating that it was a ancient trail and but the fence remains. Mrs. Handright also put a fence right next to it within a couple inches, so they they said that the ancient trail is to be on the rocks along the beach which is very dangerous. As far as this access down to the current. the access that's being proposed, my mother is turning seventy-eight (78) this next month wanted me to voice her opinion which is. she loves the beach there, it's very accessible to her currently at her age even. and this proposed new route. it's. if you just look at it from a liability perspective, it's incredibly dangerous, not just for the elders and the kupuna or whatnot but for the keiki. It's. there's boulders that are this big, you got to go over all the way down it. SPECIAL COUNCIL MEETING -21- July 7, 2010 Personally I don't understand from a liability perspective why the county would want to put its citizens at risk like this, it just doesn't seem intelligent when there's this trail. I took somebody, a kupuna down in 2002 in a wheelchair, down to this beach because he wanted to go to it. So it is wheelchair accessible, I've taken somebody there and I just.. I believe that the ancient ways are eroding quickly and this idea that land rights are more important than the public rights are going to cost us all and our families and our future children will not have any access. We might as well just keep them on the roads because they're not going to have access to nature in the future if we continue down this path. I thank you for your time. Chair Asing: Thank you. Can we have the last speaker please? Mr Nakamura. Last registered speaker is Don Wilson. DON WILSON Thank you members. Excuse me, members of the Council my name is Don Wilson, I'm here in my capacity as attorney of the landowner Waioli Corporation. Three (3) minutes isn't quite enough to address a lot of the issues that have been brought up but I would like to hit a couple. First I want to clarify one (1) thing that was said by Ms. Regush concerning about what was offered and what was discussed with the Administration. a lateral access way to the beach was never offered. It is not going to be offered by Waioli Corporation, it was never on the table, it was never something the county turned down at any point in time because it was never offered by Waioli Corporation. So this is kind of typical of some of the information that gets out there that has really no basis or fact. We had wide ranging conversations with members of the County Administration, members of Waioli Corporation and our lessee and we've discussed and looked at the entire situation that's going on out of Larsen's Beach but there was never any offer to provide a lateral beach access to the county, so I wanted to clarify that. Another point concerning the testimony that Mr and Mrs. Sproat provided, this issues that's before you has nothing to do with Native Hawaiian traditional customary rights. We have made multiple attempts, I have, to discuss with their attorney establishing a procedure by which we can accommodate Native Hawaiian rights on the property That has unfortunately not happened yet, frankly because their attorney refuses to talk to me about it, but those discussions are continuing between the parties directly I'm not allowed by our professional conduct rules to have any direct subsequent contact with the Sproats about this. But please be assured that Waioli Corporation and Paradise Ranch have no intention whatsoever, we never had and never will have any intention of interfering with legitimate exercise, reasonable exercise of Native Hawaiian cultural, traditional rights. that is not a issue here and it shouldn't even be brought up frankly in the context (inaudible) the County wants to accept the gift of this trail. Concerning safety matters, look every place isn't safe People in wheelchairs I don't believe can get to Lumaha`i Beach, they certainly can't get out to the Kalalau area on the trail, every place isn't going to be like Lydgate, it's not going to be like SPECIAL COUNCIL MEETING -22- July 7, 2010 Kedlia Beach, this is just the nature of the ground out there. Many people believe for a variety of different theories and reasons that they are. that the public is entitled to walk across of private property so that it could be the most easiest possible and most convenient way There's no question that using a lateral trail and we've never disputed this, would be easier and convenient, that's not the point. One of the gentleman that testified earlier said, this is a dangerous beach. my knowledge is and my belief is there's been fourteen (14) drowning that have occurred down there. to encourage children and grannies and anybody who wants to go down there is. you know talk about liability concerns, you should be considering that, this is not a safe beach down there. Mr Nakamura. Three (3) minutes Mr Chair Mr Wilson. There are endangered species that use this beach, opening up to more public traffic. blows my mind that people are using that as a reason to increase public access down to this beach, the two (2) are just inconsistent and I've never heard anyone who has been opposing this effort that we are making, come up with an explanation for why more public traffic on that beach will be consistent with the endangered species down there, it just doesn't make any sense. Um. concerning the historic use of the trail, there. clearly there are trails down there that has been used for long, long time. for time immemorial as Ms. Sproat said. Ms. Kallai showed one of maps an 1878 survey map of the island shows where the alaloa is located. If you want to look at that map it has a legend on it. Chair Asing: That. Mr Wilson: That trail does not go according. Chair Asing: Don, Don. Mr Wilson. To that map, doesn't go along the beach. Chair Asing: Don you want to kind of wrap up please? Mr Wilson. Yes, so that's it. My point on that is that there is what many people assume to be the case isn't really necessarily the case when you start looking at the facts of the matter It hasn't been determined that's where the alaloa on this particular property is located. Thank you. Chair Asing: Thank you. With that Councilmembers? Councilmember Bynum. Mr Bynum. Good morning Mr Wilson. So the alaloa. there is no alaloa? Mr Wilson. No. SPECIAL COUNCIL MEETING -23- July 7, 2010 Mr Bynum. Historic alaloa. Mr Wilson. I didn't say that. Mr Bynum. On the North Shore. I'm asking? Mr Wilson. No. I did not say that and I don't believe that's that is a true statement. that there is no alaloa. Mr Bynum. Is there an alaloa? Mr Wilson. Yes, I believe there is. Mr Bynum. And where is it located? Mr Wilson. Beats me. if you look at the 1878. (audience laugh) Mr Wilson. No. I mean. I'm serious look at the 1878 map that's in the materials that Hope Kallai produced. Mr Bynum. Okay it was. Mr. Wilson. And you know, take a look I mean you have eyes and you have a ruler the same as I do, you can see where that map shows it. It's not necessarily this trail that exist down along the shoreline. Mr Bynum. So in the documents I've reviewed in the past appeared to me that the State was actively pursuing a lateral trail in this area and at least until the year 2000 when they seemed to stop putting any energy to these Na alahele trails and kind of disbanded our local committee. So are you aware of these documents that they've been in negotiation with landowners on both sides for a trail that intersects there? Mr Wilson. Yeah I'm aware of the negotiations that have gone on, on various properties up there for trails. There's also a letter on file from the Na alahele organization that says they have no claim to a state owned trail on our property Mr Bynum. But they have. Mr Wilson. So we should consider all I'm saying Tim is that we should consider everything that's going on and not just a portion of it. SPECIAL COUNCIL MEETING -24- July 7, 2010 Mr Bynum. Right I totally agree with that statement but the State was actively pursuing a lateral trail Na alahele trail and felt like they had claims with landowners on each side of the Waioli property, is that correct? Am I correct in that? Mr Wilson. You know I can't. I don't know, I can't speak for the other owners on either side. What I do know is that I'm not aware of anyone from the State in any official capacity connecting Waioli Corporation to try to establish a so-called lateral trail through the Waioli Corporation property Mr Bynum. Let me ask. Mr Wilson. It may have happened but I'm not aware of it. Mr Bynum. Let me ask a more general question. would you agree that it's in the public interest to maintain lateral access along the coastline for public access? Mr Wilson. Everywhere? Not on the beach, not on state owned property on the beach? Mr Bynum. Mauka of the shoreline, of the certified shoreline. Mr Wilson. No I don't think I would accept that as a general statement that every private property ownership is subject to some undefined lateral access trail all the way around the island, I don't agree with that. Mr Bynum. But. um. so I agree with what you said earlier about. we don't want Po`ipu Beach access at every beach on the island but as the, as the accesses to the more secluded beaches get eliminated doesn't that put more traffic on the ones where the accesses still exist? Mr Wilson. First of all we're not eliminating anything Tim here. The county decades ago acquired a beach access which it requested from Waioli Corporation. It laid out the location, that's been there, the county has owned that for a long time. Mr Bynum. I guess what... Mr Wilson: We are offering to provide another, a second beach access trail, I don't think anything is being restricted here. Mr Bynum. And I'm not trying to be argumentative, I just really want to understand. you know, I understand the public concern because on the North Shore we have lost access to beaches that were used traditionally and so you know, the point I'm trying to make is. I agree with you, I don't want to see SPECIAL COUNCIL MEETING -25- July 7, 2010 and I'm speaking for myself, you know a road and a parking lot at every beach on the island.. I think we all value that there are beaches that are more rural but some of these. if there is the type of access that we've had at a number of beaches, no one (1) beach will get overwhelmed hopefully with that access and so. you know I have a real concern that access to Kauapea and Papa`a Bay that I used in the past, I can no longer use, even though I can see those easements on the map but so I can understand that the community gets really triggered obviously by the show out today Any access that has been used changing so but you know and I think I said earlier it's important to delineate what's the county's responsibility and what's the state's. But I've seen documents that the state was actively pursuing, reestablishment or continuing to preserve lateral access in this area and I have to go look at this again. It was several months ago but you know that they were pursuing it on each side of the Waioli property and then I do also remember documents saying well on the Waioli property we have some difficulty with the legal issues. But there's. seems to me in looking at all of these that it was the state's intention to try to create and have a naalahele trail laterally along the coast from Moloa`a and beyond and you know that hence my earlier question whether you believe that would be in the public's best interest to eventually have lateral access say from Moloa`a to the far end of Larsen's Beach or Lepeuli. Mr Wilson. Um looking at it narrowly only from that perspective, sure the public should go everywhere There should be no restrictions because they re beautiful places, recreational opportunities are all around us. Unfortunately I don t think that's the only issue here. There are a lot of other issues. If the county wants to or the state wants to condemn trails, roads. you know there's a legal process to go through. And they can prove a public use and you know that's a very established way to deal with these things. You know Waioli Corporation has owned this property for and its predecessors going back to Wilcox family members who owned this property for a long time, kept it in open and agricultural use to this day, it is currently in active pasture usage. What triggered this whole issue coming up was the desire to continue that use. there are lessees and maps going back to the 1950's at least showing all the way down to the beach was pasture area, those are facts. It doesn't fit in with what a lot of people want to hear but that's the truth and that's what we're trying to do is to not sell the property, for example, and we had offers to a developer or someone that's going to build nice houses up on the bluff and turn it into a nice CPR project. We're trying to preserve something there and protect something. The. further response to you, there's been a huge problem down at Larsen's Beach with vagrancy, with illegal camping. Bruce Laymen and a lot of his people showed up a couple months ago, I think a hundred and fifty (150) of people, they took out truckloads and truckloads of trash from this property down by the beach on private property that had been left there over the years by people illegally using the property You know that's the flipside, one of the flipside of having unrestricted public access to an area. Some members of the public abuse it and you know frankly Waioli Corporation is not interested in having to deal with that. If this lateral trail were to be dedicated or conveyed to a government entity at some point you're really talking about not only SPECIAL COUNCIL MEETING -26- July 7, 2010 the trail but everything makai of the trail because you have essentially taken away the right of Waioli Corporation to use that portion of its property, that's a big area, there's acreage there. I don't know exactly but so. let's look at the entire thing and not just say is this in the public interest, yeah you can certainly make that argument. Mr Bynum. Right and Don, I agree with you that those issue concurred there, that they're problematic, that they're a difficult thing for our community to deal with, and we all need to work together to address our stewardship of these areas and hopefully work together you know as landowners recognizing those rights and as a community and I think we had some models where we done that successfully And so maybe we'll get to that later but I just you know I was not surprised... It was interesting to me to see that the state was actively pursuing this as a naalahele trail and I think it's very unfortunate that the state stopped putting energy into that whole trail system pretty much kind of barely maintaining what we had. Mr Wilson. One other point on that. Lepeuli property as mentioned earlier is Land Court registered. I don't think the property on either side, I might be mistaken, but I don't think they're Land Court registered. Mr Bynum. Yeah I was going to say Mr Wilson. The legal situation is (inaudible) between the two (2) Mr Bynum. I've spent my last seven (7) years or so spending a lot of times with attorneys, so I know how complex everything is. Mr Wilson. (inaudible) just one (1) more complication for this property Mr Bynum. Right and so you know, we have to address the legal issues but at some point we have to come together as a community and say hey where's the common ground here and as you mentioned government potentially has other mechanism to address issues if they can't be worked out legally so thank you and I'm trying to seek that balance. Mr Wilson. I appreciate that. Mr Bynum. Thank you very much. Chair Asing: Councilmember Furfaro? Mr Furfaro: Oh thank you. Don thank you for being here today I just want to back track on a couple of items if I may Are you. you are in SPECIAL COUNCIL MEETING -27- July 7, 2010 possession of the minutes from the May 13 Land Board as well as the February 16 Land Board. Mr Wilson. Ali yes. Mr Furfaro: Minutes referencing in particular item sixteen (16) where the applicant landowner should work with the County of Kauai to define and improve the existing access way to Lepeuli Beach? Mr Wilson. Yes. Mr Furfaro: As a condition? Mr Wilson. Yes. Mr Furfaro: And then through a period of appeals there was a subsequent hearing on May 13 and two (2) of the Board members raised the question about and I'm going to kind of semi-quote here that they would like to hold off on any kind of work for the next sixty (60) days and indicated that they would like to (inaudible) to go out and do a thorough review and report back to the Land Board and if I follow the clock on this, that puts it somewhere from May 13th to about July 13 and this.. my question if I eventually get to a point where I want to defer this item for the purpose of hearing that outcome of that report, would the generosity that was being offered here as the alternative path, would. would that put us in a position where what was discussed with the Mayor and if you notice I didn't negotiate. use the word negotiate because obvious (inaudible) comes in front of the Council. would, would if we defer this would we, would we know that Waioli through its generosity would leave that option open to us until we heard from the Land Board? Mr Wilson. Ali the question hasn't come up between talks with my client so I can't. Mr. Furfaro: Okay Mr Wilson. I can't give a definite answer I can say that we have spent a lot of time with the County Administration working on this coming up with the County Attorney's Office coming up with the grant of easement, you know we would like to get this resolved and not just carry it on. I. again I'm not sure what purpose for the limited questions that's before the Council right now, what purpose would a delay would serve. If you want the easement, take it. If you don't, don't. I mean it's pretty simple from our standpoint. Mr Furfaro: Well thank you for putting it that way because that is one of the things we had to ask-if in fact we decide to wait for the Land Board to submit a report, and let's say this Council decides based on these reports that we i SPECIAL COUNCIL MEETING -28- July 7, 2010 have in front of us to honor that political subdivision's willingness to revisit and resubmit a plan, this may not come up to us again until August if we grant that. and I just wanted to make sure in my mind I was clear that that could invalidate the offer that's on the table. It's possible? Mr Wilson. Conceivable. Mr Furfaro: And which again would dictate to us that we would have to have Public Works work on the issues on the current path for us to make it accessible. I don't think it's unreasonable since we're within forty-five (45) days maybe. fifteen (15) days for the DLNR to complete their report, thirty (30) days to have them submit something to us. I know the permits that they have now on the fence and so forth only required Planning Director to acknowledge approval because the. according to our rules, it's under a hundred and twenty-five thousand dollars ($125,000 00) and therefore that permit could be approved simply with the Planning. Mr Wilson. And it was by the way Mr Furfaro• Yes I saw that in the minutes as well. But you know the bigger question for us is to have a better understanding. This is Naalahele, very different from the Alaloa. Alaloa is the long trail around the island. The Naalahele is the pass spin off, this gives us an opportunity as we know this traditional families here that deal with gathering and collection rights and I want to reconfirm that there is no concession here that deals with or any intent that anyone is trying to dispose of any of these rights for gathering or fishing and. Mr Wilson. Absolutely not. Mr Furfaro: And as we saw some of the shots of the Kilohoa, that is there. that is reality around that island, those are spots for the spotters for fish whether it's in this district, Hanalei. it exists but it really seems to be many of these issues wrapped into the state issues versus what the county is trying to acquire here and a grant of a pedestrian access to the beach but I had to ask if we defer this. to we had a presentation from DLNR and their findings, it might put that additional access (inaudible)? Mr Wilson. (inaudible) Mr Furfaro: It could? Mr Wilson. And again frankly I'm not sure what. it would be interesting to see what DLNR comes up with. By the way they did a site investigation already, we submitted documentation they requested concerning continued use of the property for pasture purposes as I mentioned going back decades and decades now So I think they're pretty close to giving whatever sort of SPECIAL COUNCIL MEETING -29- July 7, 2010 report they're going to give and I'm not even clear what that report is going to be, if it's going to be a written report or you know, they just meet in Executive Session with the Board or Mr Furfaro: Or Mr Wilson. I haven't been able to get any kind of answer about that. so I'm not sure what they're going to do. Mr Furfaro: Nor are we but obviously if we got to a deferral, I would ask the Chair and members of this Council to communicate from the County Clerk our desire to have a presentation at least in conjunction with. you know, our County Attorneys to give us an understanding I mean the State has put a lot of burden on us in many ways about when we do approve access. It seems the mission is to make public access, the outcome is along with that is many responsibilities associated with public safety and the liability that we demonstrate so you know it's not just about that one (1) question about the alahele, it is merged into this question about where the alaloa goes but it also brings up a huge amount of liability for the County of Kauai and I think you would agree with that. Mr Wilson. Sure. Mr Furfaro: But ah. that is your answer that it could jeopardize. Mr Wilson. Yeah. Mr Furfaro• Us acquiring a second access? Thank you Don, thank you very much. Chair Asing: Thank you. Councilmember Kawahara. Ms. Kawahara. Thank you. Councilmember Bynum mentioned the Naalahele Kauai trail access system and the minutes. or the meetings that the, that our Kauai Council had on it, I just wanted to be able to put into record the minutes that I have that say that the State was actively looking into the alaloa and our Kauai Council, the Naalahele was also actively looking into that with the State so. my question though to Mr Wilson is hi. and I wanted to first of all thank you for donating or proposing a donation of an easement to help us with our access issues because of the one that's fallen to disuse that we officially own. Again the issues about whether or not it increases our liability or not are things that we're going to be discussing and probably deferring. When you had mentioned at the DLNR hearing and also here that that doing this with the lateral trail will be increasing public traffic, I wanted to see how you met that because it's not an increasing of traffic, it's maintaining of the access that we already have and also with the caveat that is private property SPECIAL COUNCIL MEETING -30- July 7, 2010 Mr Wilson. Yeah. (inaudible) yeah., it's trespassing. Ms. Kawahara. Yes, yes. Mr Wilson. In our opinion. Ms. Kawahara. Yes. So the issue of you saying it's increasing traffic I might not agree with that, saying that it's decreasing it. Mr Wilson. If I could explain what my thinking is. if that were to be acquired by whatever means by the County or the State and making it a publically available beach access, lateral trail.. all along the beach there, that will become known, that would be published, that would be put in all the guide magazines, it's. more people are going to go there Lam. I don't see how there's any question, any reasonable question that it's not going to increase traffic down there. Again I don't attached to your questioning that much. It is a pretty secluded area right now and the more easier and you know, the bigger stamp of approval is placed on it. I don't know, does anybody disagree I mean that's going to draw more people there. Ms. Kawahara. Okay One (1) more question Mr Chair? One (1) more question? Chair Asing: Go ahead. Ms. Kawahara. You mentioned also about the Land Court stuff yeah? I think we had at the. in the minutes here that were provided to us, there was an issue about whether or not the Land Court statutes actually would have eliminated the State claiming, claiming interest in that part of the trail and that there may, there's a law, provisions of the law that says when the certificate does not state that there's a boundary to be determined and things like that that. but there is a case that you can still. the State still can make a claim on that property, if it's. Mr Wilson. To my knowledge the State has not made that claim to Waioli Corporation. Ms. Kawahara. Right, yeah. Mr Wilson. (inaudible) I guess my understanding is. Mr Wilson. A lot of members of the public have made the claim that they as members of the public have a right to go on the property It's a different thing. SPECIAL COUNCIL MEETING -31- July 7, 2010 Ms. Kawahara. But there's never been, there's never been an affirmative saying that the State did not claim it? Mr Wilson. The ah. there is a letter that's dated in August I think or September of last year from the Alahele saying words.. I mean. you obviously have it right there. words that in fact they don't have no claim or they will not make a claim against this particular property Ms. Kawahara. Okay I just, I just probably going to be getting more information on whether or not they've made, if they didn't make a claim that it actually nullifies any future claims, thank you. Chair Asing: Thank you, any other questions? If not, thank you very much Don. Do we have anyone else here who would like to speak? Come on up BRUCE LAYMON Thank you Council Chair and Councilmen and woman. My name is Bruce Laymon with Paradise Ranch. I have something here that I wanted to see if you guys could pass out, if it's okay We had a petition that we passed around the island and we received over a thousand signatures but I think it's important what we wrote in there and here some of the pictures that I kind of want to. in working with the trust here over the last few years and discussing the future of this property what impressed me the most and probably stuck in my heart the most is when I read their mission statement that their goal was and fiduciary responsibility is to keep the land in Open space conservation and preservation and pasturage, which they've done since the 1800's. I know what their struggles are and raising money and how difficult it's been especially in this last year with all the legal things we had to deal with and I think that's something that no one has talked about is what the cost is to a nonprofit charitable trust for going through this process and us trying to put up fences for use that has taken place from the 1800's and through lessees in the past. There's no issue here that you shouldn't be concerned with as far as addressing this easement that's being offered. The Trust, the attorney has mentioned this and I myself agree with it. that there are constitutional rights that Native Hawaiians have. I was happy to meet with the Sproats and we have a subsequent meeting coming up I think in couple of weeks to discuss that. I'm close family with a lot of their families and it was sad. I was saddened and I told them when I was on Oahu to see them on the opposite side when our families grew up together, my mother grew up with you know Linda, she's resident of Kilauea. And I think it's a little disingenuous for people here to suggest that the trail that's being offered is dangerous, steep trail that you have to climb over rocks which one person said when Mrs. Sproat, her husband, the daughter, myself and two (2) members of DLNR, and Tiger Mills who is a very big woman walked down and we were having conversation from the top all the way down to the bottom. Nobody was grabbing onto rocks and climbing over rocks and, and what these guys are claiming. that's just not true, that's by far an easier trail than what the county has now because the county hasn't maintained it for years. And I know SPECIAL COUNCIL MEETING -32- July 7, 2010 that. I've been there since I was a little kid and we've have fishermen here that will even tell you that that's their preference is to have that trail there. That the lateral access and the problems that it creates, yeah it's easier but you know it's private property If you look at these pictures, they're talking about all this network of trails, you know what the biggest network of trails are on this property the people that go mauka from that lateral trail that live inside there and all those pictures. they tell you that they pick up all their opala, they go down there they're neat. All these pictures and in two (2) hours we had five (5) dump trucks loads of (inaudible) I thought it was ironic in the last week that in the front page of the. (Audience laughing) Mr Furfaro• Excuse me Bruce. Chair Asng: Excuse me. Mr Furfaro: I would like to ask the gallery to keep your commentaries respectful and in the tradition of sharing mutual respect, please. (Audience clapping) Mr Laymon. Thank you Jay And this is what we deal with I mean my son told me, "dad I don't want to go down to the beach and take anymore pictures of this naked people." Two (2) weeks I went there were twice as many nude people on that beach than there were people with clothes on, they don't talk about that. There's one (1) person back here that wrote a letter to the State, Richard Spacer that I have a psychological problem with the male nude body and that our laws here about public nudity are unconstitutional. I know what his agenda is and why they want access down there, we catch them in the bushes all the time. I made a comment in one of my meetings that I don't recognize a lot of these people but it's the first time I see them with their clothes on and if you come down to the place, you'll see the rubbish. They vandalize our equipment, they continually cut the fences, every time we do something, they're coming onto the property Some of them started throwing rubbish back into the bushes while we were cleaning it up and some of the kids were getting scared like what's going on here? You know challenging us out there when we're doing something good. You know I wish the newspaper, they print it when Nukolii got cleaned up with twelve (12) people and the other day forty (40) people cleaned up the beach, a hundred and fifty (150) people cleaned up this. special beach down here that has monk seals, its sensitive, it's dangerous and it got a two by three photo in the.. for your information only, that's the only press it got and all of our families and friends were wondering how come. if this is such an important issue. I think the Trust is being more than charitable. The first. they gave the land back there the three and a half acres or four acres because the fishermen came to them and they said you guys pick what you want. SPECIAL COUNCIL MEETING -33- July 7, 2010 Mr Nakamura. Three (3) minutes Mr Chair Mr Laymon. And Ralph Dayler helped them, I believe the Boy Scouts were the one that cleared the trail for them and now here again they're offering a better public access and if you go out there you will see it's a better public access but the lateral access is what causes all the problems for us. We found carts, motorcycles, bicycles, everything. small pickup truck, they have ridge parties and that's a road that was built there, back there. If you look at the google maps, there was actually a road that was cut there that was used by Meadow Gold. There's a person back here that worked for them, Standley, he can tell you about that. Sherwood Iida a fisherman from years can testify to that fact you know that there was a road that was cut there and it was used and that roads correspond to all the original fence lines. I hope you will consider this offer from the Trust. I can tell you in talking to them. Chair Asing: Bruce? Mr Laymon: That it's going to be. Chair Asing: Bruce. Mr Laymon. I'll wrap this up Chair Asing: Your three (3) minutes is up, can you wrap it up please? Mr Laymon. Okay Thank you. One of the questions that Councilmember Furfaro asked is if this will be taken off the table and that's what I'm afraid is going to happen. Because the Trust has already informed me that this is the second time that they're going to be giving something you know, for better public access that's on private property and I hope you guys will take it because if they pull it off the table, they're not going to open up this lateral access which everyone is hoping for or thinking that they're going to do, that's just not going to happen. So thank you very much. Chair Asing: Thank you. Any questions Councilmembers? You have? Hang on Bruce. Councilmember Bynum. Mr Bynum. Bruce thank you for your testimony and this is a difficult and sad issue for my perspective because like you said there's families in the audience and I hope that everyone can dial it down a little bit and try to really work on addressing this as a community We got to deal with our kuleana and related it to providing access to the beach. I have concerns about the state and how we find this middle ground but, because I just want to say that in some ways it's all true, I really recognize the abuse that has occurred down there at Larsen's. I've SPECIAL COUNCIL MEETING -34- July 7, 2010 talked to people who live in the area several years ago and I am sympathetic to the difficulties that people have dealt with. But there are many people that access the area and treat with respectfully as well, right? So this is a really difficult issue and I'm worried because I see the passion that's on both sides. I don't think that there's good guys and bad guys, too many in this situation. And I think there are models that our community has come together and found that balance of giving an appropriate level of access and providing the kind of stewardship that the abuse don't occurred, that the environmental things don't go wrong so. I just want to say that there is a balance here but.. Mr Laymon. Councilmember Bynum? Mr Bynum. But you know I'm worried that we're getting so polarized. Mr Laymon. Yeah you know my strong feelings about this is two-fold, one is because I was raised on this island, I grew up there, my mom is from Kilauea my grandfather I remember my grandmother picking puka shells down there. my first shell lei that was ever made my sister picked the shells down at that beach. But it was heartening to me when after we did the clean up and we started implementing a (inaudible) conservation plan which is approved and we worked closely with NOAA and with everyone and we started cleaning up and we cleaned up the rubbish. and we were more actively trying to get people to be more respectful and not to camp in there or squat in there, not to you know come unto the property with your clothes off and all these things. that one of the homeowner's daughters came down there and said "uncle thank you, this is the first time in my life I felt safe going down there since you guys cleaned this place up" and that's. local people don't go down there and take their families down there because of what's going on and that's a fact and you can't turn your eyes to that. Mr Bynum. Well and. Mr Laymon. And they try to down play this negative things but if you go down there, I'm down there all the time I see it what they do down there. Mr Bynum. I guess what I'm saying is and. that I recognize that and I think people who want to preserve access have to recognize that there has been those problems and that you know people have been. and I've talked to some kids that live in that area, visit that area. and so I think the people who want to preserve this access, I think that their intents are good largely especially the people that are here today but those things have occurred and they're not tolerable and can't accept that. We have to find a way to not have that continue you know and at the same time provide what's reasonable access for the people that live on Kauai. And so it's just a little scary right now when I feel the tension so high on both sides. Because I know a lot of you guys are families so. anyway but I guess what I really want to say is that I recognize those things have occurred and we have SPECIAL COUNCIL MEETING -35- July 7, 2010 to own that and say that that can't continue, that cannot. and you know what the county has to do to step it up, we got to look at that to. Chair Asing: Go ahead Councilmember Kawahara. Ms. Kawahara. Yes thank you, I'm glad to see you here and your daughter (inaudible) I had her in my class and you know that I know you through Kapa`a High. My question for you and I also know that all of these issues have come up with vagrancy and nudity and all of that kind of stuff but with those kinds of situations you're not saying that because those people abuse, abuse the right to be there that you want to say no to everybody? Mr Laymon: Absolutely not, in fact. Ms. Kawahara. To other people? Mr Laymon. No, no in fact if you would ask the Trust that's right here, some of them. I was actively pushing for a better public access but trying to draw, make a compromise that would protect Waioli's property and not. what would be the best way where we could do that and at the same time eliminate our problems. All of our problems come from the lateral access. And I made this statement a long time ago that private property issues you know, that's a basic right we have here and one of the meetings we had with the people they asked them to raise their hand. The first meeting we had down there and Hope was there, she took all of those pictures. someone asked "how many of you people own land" and one (1) person raised their hand. So it's easy for people that don't own land not to have an appreciation or have a lack of respect for private property But I bet you everybody that owns property and you say "hey can I cut through your yard because it's easier for me to go to the store instead of going down the road." I live in the Wailua Homesteads, if someone said "eh you know we used to go through your yard to climb up the Sleeping Giant," now if I was denying access to the Sleeping Giant, I could see their but no there's public access there just like there's public access here. It's not the Trust fault or the Ranch's fault that over the last thirty (30) years that that county access was never maintained. but now there's an opportunity, it's being addressed now and another one is being offered by them and I think it's a giving. everyone wants a taking but the Trust has gave and now twice they're willing to give, that's all I'm saying and I encourage public, especially local families. I mean people know me on this island, know that I'm half haole, I've been accused of being a racist and then one guy didn't even believe me, he asked me four (4) times "you're not Bruce Laymon, you're not Bruce Laymon" and because they didn't know that I am half haole, so if I hate haoles, what, I hate half of myself or. that's not true. Ms. Kawahara. So yeah. so. thank you for that. I just wanted to be sure that we, that we know and acknowledge that there is, there is people that abuse it. SPECIAL COUNCIL MEETING -36- July 7, 2010 Mr Laymen: Yeah and the one thing that you. Ms. Kawahara. The majority of people. Mr Laymon: That you mention at a meeting. Ms. Kawahara. The majority of the people. Mr Laymon. That discouraged me because. Ms. Kawahara. Are respectful. Mr Laymon. But then I had thought about it. you want to see more public lands or the public should own a greater part and not just from the shore and I think we talked about this after the meeting that we had with the Trust. you and I were in the parking lot and we were talking a little bit about it. when we had the meeting. and you said that you'd like to see greater um, um. open areas inland and not just on the shore that the. Ms. Kawahara. On the beach. Mr Laymon. That the people should have a right. and you said and maybe all around the island. Ms. Kawahara. On the sand. Mr Laymon. I had concerns about that because now you're going to infringe of private property because I thought around the whole island wow that's a lot of private property but what we did and we agreed this and I've worked this out with Ian Costa, we actually moved the fence back to a hundred and ten (110) feet and not forty (40) feet, more. all the fences that were there before, we're going to be behind that. So we've agreed to move it a hundred and ten (110) feet back from the shoreline onto their property and in most cases because of the rock formations and where the pasture lays, it's going to be a hundred fifty (150) to two hundred (200) feet back and that's what we explained to the state on our walk through a couple weeks ago And so I think it's going to be a positive outcome because I spoke with them but the only issue that the state had and this might be a concern that will concern you is that they said that the reason. first of all the appeal that was brought to the Board, Laural Thielen's appeal was denied. it was denied okay? And so they are challenging it now at a higher Court but there were representations that the Boards that were made that they thought was misrepresentations on our part that they wanted to investigate. One is if there were pasture use predated 1964 or whatever the dates when the conservation. we answered that, we found all of those things, there's not a questions of what we're doing is right. there are representations made from the other side saying that we SPECIAL COUNCIL MEETING -37- July 7, 2010 were misrepresenting things, that's what they wanted to find out and the main thing they told me because I was with them is that. to prove that there was use of pasture prior to it. the conservation and we've done that and they have that in their possession now Ms. Kawahara. Okay At the end of that though they did deny the appeal right but they did strongly, the Board strongly suggested that they but they Mr Laymon. Right. Ms. Kawahara. They relooked at your application and representations. Mr Laymon. Right. Ms. Kawahara. Okay And this is going to be a question for you and probably for Mr Wilson because it's part of the presentation that we had from Ian. the condition sixteen (16) I was curious the applicant landowner worked with the County of Kauai to define and approve existing legal access to Lepeuli Beach, intent of condition is to improve access to Lepeuli Beach. Mr Laymon. Right. Ms. Kawahara. Does that mean that that an attorney Mr Wilson that you might be able to help us with the county, the county the real one. the county right-of-way Mr Laymon. Yes. Ms. Kawahara. That we have to fix it up Mr Laymon: I actually volunteered. this is an ironic thing. and I told the state this. I actually volunteered my equipment, my men, my family and Anahola fishermen from. people from.. local people to come in there and I was told by the attorneys and from people on the other side including the Sierra Club, the Surfrider Foundation that if they caught me doing any work there, they would turn me in and prosecute and I said that in front of the Sproats, and I said that in front of the state, and that was said in a public forum that if they ever caught me doing anything there, they would turn me in for violating conservation laws, and all I did was offer and my offer still stands to the county, and it still stands with the state that I would get people to make that trail including people like Sherwood Iida, Stanley Ornellas, all these people who fish down there all the time they would be willing to bring their families and volunteer their time, and effort to clean it and make that trail as accessible as possible and I still stand by it. SPECIAL COUNCIL MEETING -38- July 7, 2010 (Audience applaud) Ms. Kawahara. And. just for the record. and thank you and I appreciate it, the offer, and while we're looking at our actual right-of-way that we own, I think we'll be looking at that. but just for the record I'm interested in having that and some kind of lateral access. So I don't want to mislead people to think that just having this county one is going to be great but I also am very, very concerned about having lateral access. Mr Laymon. I. Ms. Kawahara. And you know that, we've discussed it. Mr Laymon. I appreciate it. I don't necessarily agree with it but I do appreciate what you're trying to do. Ms. Kawahara. Yeah okay Thank you and no need, no need. Mr Wilson. Well I was going to say the same thing. Ms. Kawahara. Okay thank you. Mr Wilson. (inaudible) Ms. Kawahara. Thank you. Chair Asing: Is there anyone else? Come up AUREA LARGUSA LAYMON. Good morning. Yeah it's still morning. Mr Chair, members of the Council. For the record my name is Aurea Largusa Laymen. I was born in Kilauea eighty-two (82) years ago this July 19 and I want to let you know that my father, my uncles, my seven (7) brothers always fished at Larsen's. They would walk from Kilauea to Koolau and use the plantation road of course and it's a beautiful place to go fishing but I don't think it's a nice place to go swimming, okay? And I'm in favor of the access that was offered and I'm here today to please, please ask all of you to consider this and make a decision to. a favorable, favorable decision today Thank you so much. Chair Asing: Thank you. Any questions? If not, can we have the next speaker up please? STUART WELLINGTON For the record Stuart Wellington. Couple things I wanted to refocus why we're here and that is to make a decision on whether the access gifted by Waioli is something that we should consider which I strongly feel that we should. It's a move in the right direction, a better access for the public. I understand that Waioli Mission isn't obligated if we should decide to defer or not SPECIAL COUNCIL MEETING -39- July 7, 2010 accept it today I also want to bring to your attention that I managed Meadow Gold for seven (7) years and I'm really familiar with the property That beach is probably the most dangerous beach on the island. Not only have we lost tourist but we've lost a lot of local people and I mean people directly associated with my family and my employees when I was working at Meadow Gold, so it's really a dangerous beach. To encourage more people, you're just actually increasing more drowning I mean there's no two (2) ways about it. I just wanted to bring that to your attention. Another thing is that I want to commend Bruce for what he has done and for keeping his cool throughout this whole process. It is very, very sensitive, I mean you can see the division in this room and it's between local families. One thing I can assure you that the aloha spirit will prevail, we will. we will get it together I mean local people take care of local people. So with that, I'd like to see the Council approve this consideration of Waioli and not defer it. time is. you know money We waste too much time in making decisions so. I'm here in testimony for the consideration of the access, mahalo. FRED LEVENTHAL. Good morning Chairman and members of the Council. For the record my name is Fred Leventhal and for the record again I'm also half haole and listening to everybody speak this morning I can hear the vibes on both sides but what really comes to mind is the rights of private property and I feel that ah. we're always taught to respect the rights of private property owners and with that I feel with what is bung offered by the foundation, I am against any type of deferral and hope that you would come to a decision to accept what is being left on the table before it falls off, thank you very much. Mr Bynum. Thanks Fred. Chair Asing: (inaudible) BC- Check your mic. Chair Asing: I'm sorry Can we have the next speaker up please? SHERWOOD IIDA. Aloha Council, my name is Sherwood Iida. I've been fishing Larsen's Beach practically all my life. There was a road by the church way back when, we used to drive down to the middle section of the beach and that was open during the plantation days and there's a road that comes down to the bottom of the sand over there, that's where we used to walk to the beach on and throw net and all that stuff. I never remember those trails on the top until the county made that, you know that parking lot. When we. they closed that main section of the regular road, I don't know if the Council or the county moved that easement over there but we waited for quite a long time and that road was made. And we used to drive down that road to take a look and somebody I don't know who bulldoze that trail about three fourths of a way down the hill so we thought that was going to join the road on the bottom, and all of a sudden the work was SPECIAL COUNCIL MEETING -40- July 7, 2010 stopped. I don't know if the state or the county bulldozed that road because the fishermen I remember, we got together and asked the state for right-of-ways and we thought that was going to be the right-of-way to the beach so we could drive down. At one time I drove my truck about three fourths of the way, down on that road and realized that you know they stopped. because that thing was opened, by the parking lot there wasn't a fence or anything, you could drive partially down and we walked down to go fish. Then afterwards maybe a couple weeks later, they put a fence because they didn't want people driving down but nobody in my recollection, way back when. knew about those trails on the top until the county made that easement there because we used to walk all the way around the back and sometimes we would come from Moloa`a trail that they're talking about. we walk the trail but we always entered the reef on the far end, we never did come in that section where their whoever was talking about you know the (inaudible) until the road was made for people to go down, then we used to use that trail, that steep trail or whatever they're talking about, that's what we used to use Then we noticed that people were coming down the bulldozed trail then after awhile people made another path on the hillside going mauka and then like Bruce was saying there were people camping and we used to go fishing there and we saw all the blue tarps and stuff like that and trash and stuff like that. then we noticed all those people without clothes on the beach and stuff like that. but you know it's been a.. to me this has been going on for a long time and I'm not good at speaking but anyway I'm kind of nervous and whatnot but. that's what happened on that section but I would have somebody go find out who bulldozed that road because somebody had to have permission to bulldozed that section going down to the beach and I think what I heard was the property owner stopped them from making the road to go all the way to the beach, I don't know if there was a Court action with the county or the state or what but. that's how it end. but. like now Bruce guys are saying that they're going to offer the right-of-way down to the beach there, I mean, I would rather have a trail down there than nothing. Mr Nakamura. Three (3) minutes Mr Chair Mr Iida. . you know lateral access, I mean. (inaudible) I mean I walked that trail and I go fishing and I dive for squid and I pick limu and you know stuff like that. and I see a lot of stuff happening there but. I even had my truck broken in on the top section but you know when you go fishing, you don't think about things like that. but you know anyway any questions? Chair Asing: Any questions Councilmembers? Councilmember Bynum. Mr Bynum. Mr Iida, I just want to start by thanking you for your service on the Open Space Commission. Mr Iida. Yeah. SPECIAL COUNCIL MEETING -41- July 7, 2010 Mr Bynum. And um, you know I know fishermen had to compromise some in different areas of the island, I met with fishermen many times and there was a time where there were fewer people and the plantation was going and a lot of fishermen like to have their trucks where they're fishing, right? Because you got your stuff but increasingly or sometimes cannot yeah? Mr Iida. But that's what I thought when the guys started to bulldozed that road because I remember when I used to fish down there, somebody drowned and they used the old road, the Fire Department came down with the Fire Truck to rescue people, so when they closed that road, I thought they were going to bulldoze that road to connect to the, where I was saying.. the Fire Department or rescue could come down but when they stopped that. and now it's all overgrown so you don't see how wide that thing was. That that where they bulldozed, you could drive. I drove my truck but somebody stopped them and after that everything started to overgrow and whatnot. Mr Bynum. You know the projects that I've been involved with, we always want to meet with the fishermen to make sure that we're not restricting access where they traditionally had it, so in this instance the trail that. the county easement the one we own. Mr Iida. That's why I don't understand where the county right-of-way is. Mr Bynum. Right because its. it hasn't been used for a long time. Mr Iida. They said they gave the easement but what section are they talking about? The top to the. where you look down to the top of the hill. Mr Bynum. When you come down from the parking area. Mr Iida. Yeah. Mr Bynum. Just before it starts going steeper off to the right there was a county easement that went up to this point that people are talking about where you can see both Bays and then came back down and it was mapped out apparently by DLNR trail person but I. the question that I was going to ask you and you may not know the answer was, you know from the testimony I heard the last week or two, one of the reasons why that trail went was because of that traditional point where fishermen could see both ways and maybe decide. Mr Iida. Yeah but there wasn't an easement up there, there was no way you could get up there other than the traditional trail that they're talking about that came. but it was all overgrown until that parking lot was. I SPECIAL COUNCIL MEETING -42- July 7, 2010 Mr Bynum. Yeah, yeah. Mr Lida. And then people started to walk down. that's why you can see a real defined trail. Before it was all overgrown and whatnot. The only way you could get down was. like I was saying where you drive your car to the corner but the road was kind of bad you had to have four wheel drive if it rains, you're in trouble. But I don't remember anybody going up that trail until they made that easement. Mr Bynum. Okay Mr Iida. And things started happening. Mr Bynum. Thank you. Chair Asing: Thank you. Is there anyone else? Okay come on up Anne. ANNE PUNOHU Aloha Anne Punohu for the record. I hate when `ohana is pitted against `ohana, I have seen it time and time again on this mokupuni and I'm really sick of it. It's always used to be the way that when somebody wants their way on the aina the first thing they do is look at how they're going to put `ohana against `ohana and I think it's very wrong so I'm going to state my opinion really clearly right now I support the Sproats `ohana because they are my hanai `ohana. I have worked for them since I was young, I was on the plantation as an irrigator, I probably know some of these people on the other side and their `ohana and they probably worked with me but I have to say something about the. Larsen's, first of all I was never naked at Larsen's. second of all I remember in this area using it for (inaudible) we used to go pick it I think when we used to go and do the shows and stuff but my concern is good access as somebody who's recently been in a walker and been disabled, I got to say that I would have to go for the county access more because the county is more able to make a better and safer route down there, a better way for the kupuna to go, a better way for wheelchair access, we need appropriate safety measure, guidelines and especially Uncle David being a former Fire Chief, he can probably be very knowledgeable on that fact. The other problem is restroom facilities, when we're talking about filth down the beach, well of course you know people go down there, where they're going to dakine right? Where? That's gross right? So you have to think of who is going to benefit more from this access and why do they want to have it so badly that way I've been to this for over thirty (30) years and I've seen it all before so no offense to the other `ohana but I support the Sproats because they're my `ohana, aloha. Chair Asing: Thank you. Can we have the next speaker please? DOUGLAS JOSEPH. Hi Chair, Douglas Joseph. I am suggesting that you defer this trail system for the simple reason we don't need it. We already have SPECIAL COUNCIL MEETING -43- July 7, 2010 one, we paid the money, the county has paid the money years ago for this trail system, let's maintain it, let's get it going. Okay? My other comment to the Waioli Chair and to Mr Bruce Laymen here, I've heard. Mr Furfaro- (inaudible) direct your comments. Mr. Joseph. Oh I'm sorry Chair Asing: Go ahead. Mr Joseph. Okay Then I guess that's all I have, I am a little concerned that I'm hearing words from, words that are wrong from what was put on the paperwork. Chair Asing: Thank you. Mr Joseph. Thank you. Chair Asing: Next speaker please. KAPUA SPROAT- Aloha Chair Asing, members of the Council. For the record I'm Kapua Sproat. I'm David and Linda Sproat's daughter and I was born and raised here on Kauai, and along with my parents and our extended family, we have continued to use this area for traditional and customary Native Hawaiian practices. All of us, my parents and I have used the county access, we've used the access that's being considered today, and we also use the alahele. Historically my grandpa and many of us when we would pick lima or throw net we would walk home back towards Kahiliwai and Kilauea along the alaloa. And so this is a, this is a trail that my family and many others have used since time immemorial. I know you folks have heard a lot of testimony today and so I'll keep it brief, I just have a couple of points that I wanted to respond to very briefly First I really appreciate all of the county's time and effort in considering this very complex and difficult issue, your efforts, the Mayor's efforts. We continue to remain hopeful, that we'll be able to work with Waioli Corporation and Paradise Ranch. But as to the points that I wanted to clarify first with. there was a question about the shoreline certification and my understanding from reviewing the submittals of the Department of Land and Natural Resources is that the most recent shoreline certification was done in 1978, so many years ago. Also just on the issue that local people don't go down and use this area, my family has always used this area, as you heard today there are many other people who do for legitimate recreational and sustenance purposes. Third, you know I know there's a concern that maintaining access along the alahele or alaloa will increase access and use of the area. Really, in my opinion and in using this area over the last thirty (30) years, the problem is the guidebooks and all of the Kauai Revealed and many of these you know secret spots of Kauai that that provide you know information on this area and many others. And unfortunately that information is out there already and so unless we can do SPECIAL COUNCIL MEETING -44- July 7, 2010 something as a community to better regulate that type of information, the problem will persist, the issue really is how we will manage it and deal with it and whether we will as responsible friends and neighbors be inclusive in the community or, or not. I understand the complexity of having to manage property, my family stewards beachfront property both in Kalihiwai and a significant amount of property in Hanalei at Waipa and so we understand that it's hard to deal with people accessing but our solution has always been to work with the community and to allow people access. We allow people access across our property at Kalihiwai and in Waipa because that's what the law requires. One of the things I did mentioned I suppose that's also relevant is that in addition to being a local girl from here, I am an attorney and I'm a Professor at the UH Law School with the (inaudible) for Excellence and Native Hawaiian Law as (inaudible) Law Program and so I wanted to respond in that capacity to the issue of impingement of private property rights. It's.. the Hawaii Supreme Court as all well know has made very clear that the rights of private property in Hawaii are different than they are because they're part of the background principles of property of the Hawaiian Kingdom and because of that notions of exclusivity of being able to restrict access to certain people especially for people seeking to exercise traditional and customary Native Hawaiian rights is prohibited. I mean those rights are guaranteed under our State constitution and to respond to the issue that was raised by Councilmember Bynum, I think the CDUP issue, the issue of Conservation District Use Permit and where the fence will be permitted is certainly the Board of Land and Natural Resources kuleana but I think it's absolutely this Council's kuleana and the County's kuleana to help, to protect and maintain, not just traditional and customary access for Native Hawaiians but also for the general public. Mr Nakamura. Three (3) minutes Mr Chair Ms. Sproat: Lastly, I just wanted to update very quickly there was a question about the appeal and investigation. on May 13 the Board of Land and Natural Resources had a decision and they did deny the appeal but. and that's been appealed to the Circuit Court in Honolulu but they also ordered an investigation because as Mr Laymon mentioned there were issues of misrepresentations about whether the area was actually fenced or not and where the fence was and so we won't know the outcome of that investigation until July and it is my understanding from having talked to our attorneys that the.. we're hoping that the Board will consider this in August so we just argue the Council to please defer and to give us time to continue to work with Waioli and Paradise Ranch, mahalo Chair Asing: Thank you. Is there anyone else? Ken. KEN TAYLOR. Chair, members of the Council, my name is Ken Taylor After sitting here this morning and listening to the issues raised I certainly not going to talk about which trail should be or shouldn't be considered but what I have heard this morning is that there are a lot of questions and a lot of issues that SPECIAL COUNCIL MEETING -45- July 7, 2010 haven't been thoroughly discussed and in your due diligence to make a decision you must look at all of these issues and under those circumstances I believe that the most important thing for you to do at this time is to defer this matter If indeed this offer has been made in a genuine manner whether the decision is made today or a month or two from now, shouldn't have any play in the decision, in their offer. And I guess I would be very concerned if you did defer it and they pull their offer I would have to scratch my head and say why were they pushing this issue, why did they want to go this way and not give you adequate time to do your due diligence on this matter so I hope that after your deliberations and. that you will defer this matter until after all of the state hearings and everything and I think earlier several people asked that there be some public meetings. This sort of reminds me of a couple months ago when the Mayor came out with decision to put the dump in the middle of a coffee field and without discussing it more with the community and then afterwards having to take a position to back off of it and so. ALFRED B CASTILLO, COUNTY ATTORNEY Council Chair? Chair Asing: Yes. Mr Castillo He's getting off of the agenda item. Chair Asing: Okay Go ahead finish up Mr Taylor- I'm just saying that when you rush into making decisions without all the adequate information, there's always consequence and so I think that at this point in time the best decision that you folks could make is to defer this until you have all of the information, thank you. Chair Asing: Thank you. Is there anyone else? Hang on, hang on Don. is there anyone else who has not spoken that wants to speak now, going once, twice. that's it. Don. Mr Wilson. Thank you Chair I'll be very brief, I just wanted to respond to whether or not the offer for this beach access might be withdrawn, it's not because we're conspiring or doing anything underhanded, this thing has. since it has been going on since September, October has been a total drain on Waioli Corporation, they have roofs to repair, they have historic buildings to maintain, this has been the primary focus of the organization at great expense to the organization to deal with all this stuff that's been coming up If the County Council is going to essentially repeat the investigation that the DLNR has already done, it's just. that much more time, that much more communication, that much more meetings, that much more going around, around the bush and frankly we're (inaudible) our limit. We just don't want to do this over and over again. So we're asking for prompt resolution up or down, one way or another and then let's get on. If you accept the easement, it has nothing to do with anybody's rights that they're arguing or contesting or appealing from the DLNR, it's irrelevant to all of that, you either want SPECIAL COUNCIL MEETING -46- July 7, 2010 this path or you don't. This is not the end of the discussion in fact this will probably never have an end of this particular discussion, the way things go. So either take it or don't. Chair Asing: Councilmember Furfaro. Mr Furfaro: Don, I want to make sure what I heard from you when I asked the question about the offer and the generous offer that's on the table, I clearly knowing these political subdivisions of the County, State, the mixed jurisdiction in some areas, I clearly heard your answer and your answer was you couldn't tell us if it's off the table or not. Mr Wilson: Correct. Mr Furfaro: There has to be further discussion so you know let's make sure I clarify that I understood your answer to be. You know on the flipside I'm not promoting the fact that we do another investigation, what I'm promoting is the fact that we would have an opportunity to hear what DLNR said and I think you can appreciate this because it has a lot of ramifications for our island to understand how the state proceeds on this. The other thing that people have to understand is, it's not as easy as accepting the pathway The questions that came up and perhaps the County Attorney will turn the switch that turns me off. we you know we have a lot of liability questions to answer on what now the state expects of us when we make public access. there's signage issues, I mean we just went through this unsatisfactory with Queen's Pond, Queen's Bath. I mean. the place is Waimaumau we were. (Audience applaud) Mr Furfaro: So. please. so I want to make sure I made myself very clear that is one of the consequences the public have to understand. For the fishermen maybe we owe them more to improve the path we currently have if that's the outcome but for us not to wait for this political subdivision called the State of Hawaii to tell us (inaudible) probably is not in the long term best interest of what we need to resolve for the county and I wanted to make sure I was clear, I hope you can understand my point. Chair Asing: Councilmember Bynum. Mr Bynum. I just. I'm glad that, you know I started this by saying we got to delineate what's the county responsibility and one of the speakers previously said I want to bring you back to why we're here because we got off at the lateral access and as I started this that's largely I don't think completely but largely a State issue, that's something they have to deal with but is there because I'm in agreement with Councilmember Furfaro that we need.. because this came really quick to me, I mean it's like a few days ago it's like, oh we have a Special SPECIAL COUNCIL MEETING -47- July 7, 2010 Council Meeting. why are we having a Special Council meeting? Oh because this is before us and so I know I want some more time just in the.. where the County's kuleana is to understand the full implications of the decision that we're making. So but the question is, there is a question here. the there's that condition in the permit that says you'll work with the county and so is there a sense of urgency about getting that resolved or does a few weeks or six (6) or eight (8) weeks for the county to do its due diligence cause a problem? Mr Wilson. Um. we've been working. like I said. no I can't say that drop dead tomorrow morning if you don't make a decision on this that's not what I have said or what I'm going to say . but we've been working on this for a long time. Now I don't run the county business or communications between the Administration and the Council, I'm sorry you didn't have you know a little more you know time on this before you did. And if you want to defer and take six (6) or eight (8) weeks, that's certainly your right to do that. It's just that from our perspective it goes on and on and on. we have hearings, we have appeals and we have meetings and we have to come to the County and we have to go back to the State and this is not the purpose of Waioli Corporation. Mr Bynum. Right. Mr Wilson. We're just trying to use the property for agricultural purposes to put some fences in, as has been the case on this property for a long, long time. I mean that's how this started and here we are, so it's frustration. We're very frustrated. Mr Bynum. Well. Mr Wilson: With the various processes, not just the County Council of course but it's one more on top of everything else. Mr Bynum. And I, I understand that frustration, I've been living that too so. but and I think we will try to proceed with due diligence but it did come quickly for us and you know there are more understanding that I want to have in order to determine frankly whether Chair Asing: Councilmember Bynum? Do you have a question for Don? I want to wrap this up before lunch so ask the question. Mr Bynum. My question was you know. is the purpose because of this condition that you want to get this resolved at the county level? Mr Wilson. Well yeah I mean it's a combination of things, there's certainly a condition that was in the DLNR. the Conservation Use Permit to which we're directly responding. Waioli's desire is to also help with the situation SPECIAL COUNCIL MEETING -48- July 7, 2010 of Larsen's Beach to provide better beach access, which we think this is. You know obviously people have their own opinions about it. Mr Bynum. Thank you. Mr Wilson. It is not the excuse to talk about the alaloa and the alahele and the Native Hawaiian rights and all of these other issues. I mean that's just not what we're here for And with all due respect Tim, I'm having a hard time understanding why the council wants to make that its business on this particular proposal. Now take time, do what you need to, that's fine but understand where I'm coming from. I think you may be throwing your net a little bit too far here. Mr Bynum. I understand your point. Thank you. Chair Asing: Thank you. With that I'd like to call the meeting back to order and is there further discussion? With that Councilmember Furfaro. The meeting was called back to order, and proceeded as follows: Mr Furfaro: Yes I don't think I'm going to be able to ask for anything eventually but for a deferral and again I'm looking for the fact that you know we need to hear at least back from the DLNR. From reading the minutes, they certainly indicated that they have mandated to their staff to further look into this and I don't think it's unreasonable to make sure that we have as much information in front of us when we make a decision. I also want to say that I certainly applaud the Mayor's effort in negotiating this with Waioli Church, Waioli Corporation and the individual representatives there. I think it's been most generous but for us to close this. a. possibly with the best outcome for public access, we need to throw our upena wide, we need to know all the moving parts, since there's been a lot of discussion which hasn't brought the Council really up to date. I would also like to say that once I make a motion and there is a second, the fact of the matter is I want to go on record asking the County Clerk to communicate to the Department of Land and Natural Resources asking them for the written report and their summary from the May 13 or July 13 follow up meeting and that is to be communicated to the County Attorney's Office as well. I would be anticipating having this deferral come back up on the county agenda on August 25th Chair Asing: Okay with that being said. Councilmembers, I want to wrap this up before lunch so what I'd like to do is give all the Councilmembers one (1) opportunity to speak on the item and what I'm hearing right now is I'm hearing Councilmember Furfaro is going to make a motion to defer to August the 251h as I. did I hear correctly? Mr Furfaro: That is correct Mr Chair, subsequent to the correspondence. SPECIAL COUNCIL MEETING -49- July 7, 2010 Chair Asing: And a correspondence to the State to get information regarding their findings. So before I entertain that motion because if I entertain that motion and there is a second, that's it. there shall be no discussions so I don't want to stop discussion and I want to give all Councilmembers an opportunity to say something so this is your opportunity to say whatever you want to say pending the motion to defer So with that Councilmember Chang. Mr Chang: Thank you Chair I am going to support the deferral and I want to thank everybody for coming here. Very, very informative. I don't believe we're pitting `ohana against `ohana, I think we're all trying to work together and it's the key that we need to do our due diligence. We received this on our agenda last week and as most of us know, we celebrated a long, long Independence Day week and so many of us including myself, I had to ask the other Councilmembers what is the main turn off again for the road because it's been awhile since I been there. So I want to walk the paths, I want to negotiate and navigate and see what's that all about. But I do want to just to wrap it up by saying to Mr Bruce Laymen and the `ohana here, they have a very impressive picture and I hope you can see this, a hundred and fifty (150) somewhat people cleared that area out and when the first thing that I wanted to just say and I just want to say in my opinion it was extremely pilau and I was just appalled by the opala that was out there and that's the things that happen out there. And the picture was taken on March 13 and I want to get out there myself because I want to see after four (4) months what more opala is out there or what are the conditions and I need to see it for myself. So I want to thank all of you folks for coming here, I am going to support the deferral, we got a lot of work to be done with this Council so thank you very, very much. Chair Asing: Thank you. Councilmembers? Anyone else? Councilmember Kaneshiro Mr Kaneshiro: Thank you Mr Chair, I just want to thank the Waioli Corporation for such a generous offer I myself would want not support necessarily a deferral to the time when we get some information from the state For me there are some issues that I need to look into. For one thing we do have a current access ways, so there are issues of additional liabilities if we do pick up another access ways and not necessarily to defer getting information from the State as to what decision the State makes on a CDUA permit and I've been involved with a lot of conservation practices, I myself am going through a conservation and natural resource NRCS program, working with them and they work diligently when you work with Lex Riggles, you work with people like this, you work with all the various agencies that are involved, they put together a plan that I believe that is for the best plan I've been able to conserve the area and to conserve the natural resources. So I have faith in that and I believe that they've done their due diligence. On my side to better represent the people of Kauai I have some due diligence that I need to do and in all respect to Waioli Corporation, I would like to request from them that please give me the opportunity to do that, whatever decision SPECIAL COUNCIL MEETING -50- July 7, 2010 you make whether you go continue to grant the easement or not. you know it's your decision but for me in order to make the right decision for the people of Kauai. as we talk about access, as we talk about liability issues and as we talk about maintenance issues, I think I need at least you know if need be until the next deferral for the next Council meeting. I would appreciate that my members and Waioli Corporation would consider that before making any decisions, thank you. Chair Asing: Thank you. Councilmembers? Councilmember Bynum. Mr Bynum. I appreciate all the testimony that was here today and I think that the county's primary responsibility is to see that there's appropriate access to the beach. There are bigger issues here that obviously but I look out in the audience and see a lot of people that I respect a lot and that I learned many things from over the years I've been on Kauai. It's concerning to see people have this much passion and tension but I do believe that there is a lot of aloha in this audience as well and I don't think it has to be this or this. I think there is probably common ground, there is a way to work these out because I seen Kauai come together and do that before. In IClauea with the Kilauea Neighborhood Association, Kahili Beach had problems, it had trash and inappropriate use and abuse, and passions were high and the community came together a lot like the seeds I see here to clean it up, to take ownership, to take responsibility, to dialog with one another about what's the level of access, where should be the parking, where should be the trails and a new community norm got created that I think everyone would agree now is a better one. I don't hear a lot of tension about it, the needs of fishermen were addressed and other people who wanted to drive their trucks over those sand dunes no matter what but that wasn't really good stewardship and there still reasonable access from both sides of that beach. And so I thought that was a model where the North Shore started with a lot of tension and came together and some people had to give on both sides but came up with a solution. So I hope that the leaders of the County who are not in Oahu or not on a Board in Oahu looking at maps but can go out there as I have several times in the last few months, that we can help provide the leadership to come up with and bring us as close as we can and then fall back on the legal issues and the attorneys to get us to the final solution. But I am going to support doing more due diligence just on the county's level as Councilmember Kaneshiro said to determine how we meet our primary responsibility there. But I encourage everybody to be honest about this issue, those people who want to keep and maintain the access there. were serious problems down there. and people who abused the privilege that they were allowed and we as a community, none of us I think want to see that that kind of behavior continue in a way that doesn't do justice to the people that live here or the lands. I hope we can find that balance and I'm going to. on my effort try to do the best I can. Chair Asing: Thank you ah. Councilmember Kawahara. SPECIAL COUNCIL MEETING -51- July 7, 2010 Ms. Kawahara. Thank you Chair I want to thank everybody again also for coming here and testifying. They're well loved families and kupuna that were able to tell us a lot about what the uses were on all the different parts of the property and that's very much appreciated. I think that is something that we need to take into account when making these decisions. I was also surprised when we saw this. when this came on our agenda before the 4th of July weekend. In response to request from the community, in December I had started working on this and trying to communicate with the Administration. This was the first time besides the time in Oahu I was ever able to get any information on what was transpiring between Waioli and the County So it is troubling to me that this came all of us. to us all of a sudden suddenly at the point where I had been asking and requesting information on what was happening and what were we going to do with our county owned access. The fact that we're being offered another access is what I want to acknowledge Waioli for is commendable and it does raise issues of having two (2) access points and whether or not that increases our liability It also I also have questions about our access that I never got answered about why it is that we're so easily giving up on that access when it was done by Mr Dayer from DLNR, it was done with switchbacks and all of that information has been, has become even more important to know and how we as a county in our primary role that is our part of it in this case is the access that we are to provide to Lepeuli Larsen's Beach. So I totally support deferring this because there are so many moving parts as we've discussed and many issues on what we already own. why would we give it up or why would we add an additional one first of all adding liability or why would we give up one that had already been designated, surveyed and planned. So definitely supporting a deferral and again thanking everybody for coming out and providing information for all of us, thank you. Chair Asing: Thank you. Councilmember Kawakami. Mr Kawakami. Thank you Mr Chair and you know this issue did come up pretty quick as far as the Council having to deal with it but it's been on the radar for a while now You know when you try to disseminate the issues at hand I think that a lot of things get clouded and I want to say first and foremost Waioli Corporation is not a developer They're what I would consider historic preservationist and so what they're offering is you know another access for the public in their minds and in their eyes and improved the access and on the flipside we have to be sympathetic to the landowner because they show us proof of what's been happening on the land and they come and make their plea, that part of the problem is this access that's been used and this currently allowing people that have abused the land to access certain areas on their property, so how could we not be sympathetic? On the flipside a deferral to the State takes action does raise some concerns because we all know that government moves like an oil tanker, it's not a speed boat and you know we need to take that into consideration that they have a mission, that they want to improve their land. you know we have a rancher that wants to continue with Ag and like you said time is money so I would like to ask the Council that we defer until you know, until we can make a decision but if we're SPECIAL COUNCIL MEETING -52- July 7, 2010 going to bank on the State, you know we've all seen in the past how that plays out. I mean I'm going to get off the subject and the County Attorney is going to stop me but take a look at the Shearwater issue, that's a classic example so as leaders are we going to make the call or are we going to just wait and pass the buck and so I think Councilmember Kaneshiro brings a good point that if we need to defer for a moment to consider the liabilities, then that's fine but if we're going to wait for the State to take leadership and come back and let us know you know what's appropriate then I think we're in for a long drawn out battle. That's just going to have the public yeah, being further divided and I don't want to see that happen. And if we're going to bear the burden and if we're going to make a call and we're going to call the shot. let us take the arrows, we'll take um you know when I see the offer on the table I think it's reasonable you know but at the same time who am I to say you know because I'm not from the area and then you have people come here that have been raised, that have been using that area. just like me. I grew up in Running Waters. If anybody knows where that is and it's not easy to get down there and if somebody was to tell me that they want to create a path you know I would tell them get out of here. because I like it that way I think there's some areas for local people to keep it local, I don't think everything should be so easily accessible and that's not to be cold but that's what make Kauai, Kauai. We are rugged and we are wild and that's what separates us. We are undeveloped in a lot of areas and we're undeveloped and people love that because somebody came before us and they maintained that mission. So I'm just here to say that we got to strike a balance and not everybody's going to be happy, I cannot even make my wife happy all the time, so you guys got to understand that. So I'm not willing to defer until the State is ready to make the call but I'm willing to defer until we can come up with our own convictions on what's right okay? With that being said.. that's all I got to say Chair Asing: Thank you. I guess as Chair I get the last say with that I will be supporting the motion to defer I'd like to commend everyone in here for their participation, I think everyone has some good points. I'd like to mention a few points that I think is worthy and number one (1) I agree with the previous speakers who did talk about Waioli Corp., Waioli Corp has been a good Corp., for Kauai. They have done a lot in the area of preservation and I commend them for the generosity of offering an additional area for easement. I think that is very, very commendable. I would also like to tell you that I took the opportunity yesterday with my five (5) year old granddaughter to walk that easement. We walked down it, took us less than five (5) minutes to get down to the bottom. So it is not that difficult. So I really want to commend them. The other thing I want to say is be careful of what you do. to all of you. And the reason I say this, if Waioli Corp., as an example, sold the property to a developer, all of you might not like what you get. You will probably get beautiful large houses, estates in the entire area and you might not be happy so, be careful of some of the kinds of things you do. I have seen it over and over and over again. With that I would like to make also one more statement. I want to point out to you and I want to commend you Bruce for your hundred and ten (110) foot setback. I want to tell you that if as an example SPECIAL COUNCIL MEETING -53- July 7, 2010 the shoreline area was designated as high water mark as let me just say for instance this area here is the high water mark. guess what. by law they can even put the fence line from this point, I'm going to say forty (40) feet is about here, this is where they could put the fence line by law today Be careful, they have instead said we will put it a hundred and ten (110) feet inland. That's a give for Waioh, that's a give for Bruce and his operations. You lose all of this property here within the hundred and ten (110) foot for cattle grazing, for anything else that you want to use. is that fair to them? To give up that much property, so I commend you for giving up that area so that people could use the area, so thank you very much. With that I'm going to ask Councilmember Furfaro to make his motion to defer Mr Furfaro: Yes, I would like to make a motion to defer date specific to August 25 with or without the response from the Department of Land and Natural Resources or DLNR as they're known. Chair Asing: Thank you, can I have a second? Mr Chang: Second. Chair Asing: Thank you, any all those in favor say "aye" Councilmembers: Aye. Chair Asing: Aye Motion carried. Thank you very much, there being no other items on the agenda, it's deferred. Upon motion duly made by Mr Furfaro, seconded by Mr Chang, and unanimously carried, C 2010-174 was deferred to August 25, 2010 ADJOURNMENT- There being no further business, the meeting was adjourned at 12:46 p.m. Respectfully submitted, PETER A. NAKAMURA County Clerk /DS