������Ƶ

Like many residents who grew up in Oahu’s east side, I have enjoyed swimming and snorkeling for decades in the former boat basin fronting the Shangri La mansion of the late tobacco heiress Doris Duke.

I was saddened to find out that the state is applying for permission — because of liability concerns — to take down the historic 140-foot-long breakwater protecting the basin that Duke built in 1937 to moor her two boats.

In terms of ocean recreation, there is nothing like this salt-water swimming hole.

To swim there is thrilling, like being in the deep ocean water, but it’s also comforting to be safely encircled by the protective black lava walls, including the breakwater the state wants to take down.

The to remove the protective breakwater at an Office of Conservation and Coastal Lands informational briefing Thursday on Zoom.

It is interesting that the state is asking permission to demolish the breakwater when its own Board of Land and Natural Resources, in two separate votes in 2018, refused to allow the Doris Duke Foundation for Islamic Arts permission to do the very same thing.

The foundation runs the museum that Duke bequeathed to be established at her Shangri La estate after she died at age 80 in 1993.

The state put itself in the middle of this controversial issue after the BLNR — ignoring strong opposition from its staff — agreed on Sept. 28, 2018, to accept in principle the foundation’s offer of a quitclaim deed to take over ownership of the submerged lands and makai improvements in the former boat basin, including the breakwater.

When Duke built her Diamond Head estate, she made a deal with the then-U.S. Territory of Hawaii to gain ownership of two underwater parcels of land that allowed her to dredge the boat basin — something that could never happen today.

In exchange, she gave the territory a parcel of land she owned in Kailua, which eventually was incorporated into Kailua Beach Park. She also promised a perpetual easement for the people of Hawaii to access a 4-foot wide pedestrian path on the seawall fronting her property.

In September 2020, the Doris Duke Foundation for Islamic Art also promised in a memorandum of agreement to give the state up to $1 million to help offset its costs if it decides to take down the breakwater and move the rocks from the dismantling to create a revetment along the seawall to prevent dangerous diving into the basin.

Now state taxpayers are liable for parts of the former harbor basin that have proven in the past to be an attractive nuisance.

Doris Duke foundation officials have tried for years to curtail risky diving off the seawall and the breakwater that has resulted in numerous injuries, including two young men rendered quadriplegic; both successfully sued the foundation.

The foundation in 2014 put up signs, hired security guards and erected a 6-foot fence along the pedestrian walkway fronting the property to discourage the jumping, but it said none of that discouraged the risk takers.

Afterward, it tried unsuccessfully to get BLNR’s permission to take down the breakwater and make a rocky revetment along the shore to make even the most foolish teenager think twice about jumping off the wall.

Critics of the state’s new proposal say the breakwater’s removal will allow large ocean swells to slam into the basin, making it more dangerous to non-risk takers who just like to swim in its usually calm waters.

“The bottom line is the project will actually take away any protection the swim basin has from the wind, waves and sea level rise and make it entirely unusable,” William Saunders, Jr., wrote in an email.

Saunders is an attorney who lives at nearby Black Point and regularly swims and surfs in the area.

“The state will be faced with an even greater liability problem than it currently faces. Even non-risk takers will be at risk if they try to swim in the harbor once that protective breakwater is demolished,” he said.

In its application, the state agrees that at certain times waves will crash over the 3-foot remnant of a lava dike that will be left after the almost 9-foot high breakwater is dismantled.

But it says rocks moved farther into the basin to discourage people from jumping off the seawall will help dissipate the energy of the incoming waves.

Critics preparing for the hearing on Thursday also will contend that the breakwater is a historic feature, a key part of a treasured public recreational area that cannot be replaced, and that the project will harm wildlife in the area, including green sea turtles.

In a phone interview Saturday, Dr. Fred Fong said the state should consider less intrusive and less expensive options such as putting barriers between the railings in the fencing to make it impossible for people to climb on top to jump.

Fong has lived next door to Shangri La since 1975.

In its , the state estimates it will cost at least $2.5 million to do the work.

When I asked why the land board had agreed to put state taxpayers at risk for liability by accepting ownership of the basin’s submerged lands, as well as planning to run up a bill for an estimated $2.5 million for safety mitigations, the DLNR said it was because the area is being used by the public even though it’s on private land.

“The landowner was denied the opportunity to correct the hazardous situation on private property. The state can and must weigh this interest against the risk of harm to individual members of the public,” the department said Monday in an email.

“The state does this very often in numerous situations. The board thought that if the state wanted to continue to ensure access to the important recreational and access values at the Shangri La, the state should assume responsibility,” it added.

, BLNR chairwoman Suzanne Case explained to the two new board members the history of how the board got into this unusual situation in its dealings with the Doris Duke Foundation.

“They proposed that we take over ownership in essence because we were not allowing them to remove an ‘attractive nuisance’ on their private property. So the board approved that.

“I will say the Land Division was very reluctant about this because of this potential liability, but we are looking at having, once this is completed, having the state submit a CDUA to do the same or similar reconfiguration, and that would come back before the board for your consideration.

“If that were approved, . But that would be a separate decision coming back before the board for review at that time.”

In the tape of the same Sept. 11 meeting, land division administrator Russell Tsuji repeated the staff’s wariness about the state taking over ownership of makai lands and improvements in the harbor.

“At the end of the day I think if anyone were to get hurt in the future, the state as well as DDFIA would probably be brought in — maybe the access was through their property,” Tsuji said. “Staff was not in favor of accepting but the board made its decision, so we are following through on the board’s decision.”

It is difficult to sit by and watch the state as it tries to move ahead with a project that will alter forever a historic landmark and take from the people a rare protected ocean basin that has been enjoyed by swimmers for more than 80 years.