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A young tourist couple walks up the worn, sloping trail that Paradise Ranch, LLC, fenced off in 2011 to keep people out and its cattle off Lepeuli beach on Kauai’s North Shore.

The two carefully slip over the top of the fence. The pronounced sag in the wire suggests many have done the same. And in fact, the couple says an old man told them that this was the way to go.

Later, a fisherman emerges from the steep, winding county easement everyone is supposed to use. Standing in the beaming afternoon sun, he says he’s done for the day.

“I’m tired of walking up and down the trail,” he says.

Still a bit later, two women come up the old way, the easy way, even though they say they know they’re not supposed to.

But is that true? Are they really not supposed to?

Patricia Hanwright, Waioli Corporation, and Falko Partners, LLC – owners of lands in the adjacent ahupuaa of Kaakaaniu, Lepeuli, and Waipake, respectively – would say so.

The state might, also. Officials with the Department of Land and Natural Resources and the Department of the Attorney General have said an historic, coastal trail, sometimes referred to as the Ala Loa, runs across those ahupuaa, and under the Highways Act of 1892, it is a public trail owned by the state.

However, the state’s attempts years ago to survey and document the trail were rebuffed by the landowners, and the DLNR has chosen not to pursue the matter without their consent.

But that “makes no sense,” says Native Hawaiian Legal Corporation attorney David Kimo Frankel, explaining that if the state owns the trail, it doesn’t need to get permission from the owners of the surrounding lands to access it.

It’s a matter worth litigating, he says, but without a client, he can’t do anything about it. In the meantime, Falko Partners is moving forward with developing some 80 agricultural lots at Waipake, causing panic among some community members that their chance to preserve the historic trail is slipping away.

Some have expressed hope they can secure Maui attorney Tom Pierce, whose client, Public Access Trails Hawaii, recently sued the state and Haleakala Ranch Company to prove the state’s ownership of the historic Bridle Trail. But so far, there’s been no lawsuit for the coastal Ala Loa on Kauai.

“I’m waiting for it,” says Nelson Ayers, manager of the DLNR’s Na Ala Hele program, which manages the state’s trail system.

Hanwright’s attorney, Laura Brasilia, has argued that the trail does not exist and threatened prosecution against anyone caught trespassing on Hanwright’s property.

Donald Wilson and Lorna Nishimitsu, attorneys for Waioli Corporation, Paradise Ranch’s landlord, have also argued that the Ala Loa does not traverse its Lepeuli property and that the makai trail is actually a road constructed in the 1970s by Meadow Gold diary.

North Kauai resident Linda Sproat, however, has testified that the trail was traditionally used by her family and others to gather, observe ocean conditions, and to access the beach. The trail, she says, spans the ahupuaa of Pilaa, Waipake, Lepeuli, Kaakaaniu, and Moloaa.

Even the state has claimed it owns the historic coastal trail. In a January 2012 letter to then-DLNR deputy director Guy Kaulukukui, Wilson offered to provide the department with “access not only to the property itself but also to all relevant and accurate information regarding the property.”

That summer, Na Ala Hele’s Rowland had the DLNR’s surveyor prepare a map showing the makai trail through Kaakaaniu, Lepeuli, and Waipake, but the investigation didn’t appear to go much further. According to Ayers, the DLNR asked permission to access Waioli’s property to determine the alignment of the Ala Loa and was denied.

“We tried to go and visit the site, but because the landowners were receiving a lot of public sentiment, they said we cannot go on the property. So that’s where we are right now,” he says.

Since then, the state has issued a number of letters to various interested people stating that, yes, the DLNR believes it owns a coastal trail in the area under the Highways Act of 1892, but, no, it doesn’t have plans to pursue it at this time.

That’s frustrated not only activists, but the Kauai County Council as well. For the past several months, the council’s Planning Committee has been wrestling with whether or not to accept a proposed mauka-makai beach access easement at Waipake that Falko Partners has offered as a condition of its county subdivision approval. In addition to the fact that the beach access ends not at the beach but at a 12-foot vertical cliff, one of the main sticking points has been how the existence of the Ala Loa might affect the easement.

At a Planning Committee meeting last August, county corporation counsel Ian Jung stated that should the county accept the easement, it would become an interested party and likely a defendant in any quiet title action brought either by the Falko Partners or the state regarding the Ala Loa.

He noted that while the DLNR had no plans to pursue the trail, the state in a 2008 Circuit Court stipulation reserved its “right, title, interest and claim” to a 10-foot wide section of the Ala Loa located on a .37-acre kuleana parcel located near the shore at Waipake.

Should the county accept the easement, it would need to apply for a CDUP for the portion that lies within the Conservation District and that would also trigger a review from the state Historic Preservation Division, Jung said. Members of the public have also said it would require review by the Office of Hawaiian Affairs, which supports the designation of the Ala Loa.

Jung added that the easement was originally proposed for the west side of Waipake, but the DLNR’s Office of Conservation and Coastal Lands, which administers all CDUPs, had asked that it be moved to the east side, in part, to avoid disturbing Laysan albatross and the endangered Hawaiian monk seal in the area.

In September, Hope Kallai of Malama Moloaa and Rayne Regush of the Kauai group of the Sierra Club wrote to Aila and Ayers, respectively, again asking the DLNR to establish the coastal Ala Loa before the area is fully developed.

After visiting the area with Falko Partners manager (and former acting Land Board member for Kauai) Shawn Smith, DLNR staff issued a letter to Smith stating that the agency expected the easement to satisfy the public’s concerns about coastal access and, as a result, the DLNR had no plan to “take action regarding this trail.”

When the county Planning Committee met in December, some members expressed frustration with the DLNR’s position.

Committee member Tim Bynum argued that once people move onto the subdivided lots at Waipake, it will be more difficult for the state to establish a historic trail.

“There will be takings issues, compensation,” he said. “That’s what will happen in the future if we try to get the lateral access.”

“It may be frustrating to us [but] what can we do? We’re not their bosses,” committee member Ross Kagawa said of the DLNR.

“When Guy [Kaulukukui] was here, we tried, but the stars didn’t align,” says Ayers. He also says he doesn’t see an urgent need to designate given the pending development.

“It doesn’t make sense to fragment it, like a hallway,” Ayers says, referring to the resistance from the landowners at Kaakaaniu and Lepeuli.

“The only way this will work is if the three landowners agree with us working with them. That’s the only way it will work,” he said.

On Jan. 23, Ayers denied a November 2013 request by the Kauai Na Ala Hele Advisory Council for DLNR surveys and historic maps of the Ala Loa at Kaakaaniu, Lepeuli, and Waipake because the trail was part of the DLNR’s “unpublished” trail inventory.

According to a 1992 Office of Information Practices opinion, amendments made by the 1990 Legislature to Hawaii Revised Statues Chapter 92 allow the DLNR to “withhold public access to the unpublished portions of the Inventory under section 92F-13(4).”

In a broadcast email, Kallai noted that the council was “really upset and voted unanimously to get an AG’s [Attorney General] opinion.”

More than once during the county Planning Committee’s meetings on the easement, members of the public, including Regush and Waldau, mentioned that Maui attorney Tom Pierce has expressed his willingness to help negotiate the establishment of the historic trail.

Regush says community members have talked with Pierce but could not say whether a lawsuit is planned or, if so, whether it would address all three ahupuaa or just Waipake.

For further reading at :

• “Proposed County Easement at Waipake Falls Far Short of Beach, Expectations”
• “Land Board Shuns Offer to Privatize Haleakala Bridle Trail”
• “Coastal Access an Issue in North Kohala Luxury Subdivision”

About the author: Teresa Dawson is a staff writer for Environment Hawaii and has freelanced for Environmental Health News and the Honolulu Weekly. She was born and raised in Hawaii.

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