2011-02-14 Public Access, Open Space and Natural Resources Preservation Commission Minutes

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He added that they looked at various options and have done a lot of research with the State and various offices and has already approached Na Ala Hele to see if the State can document that the trail existed prior to the Highways Act of 1892. If so, the State may claim the trail through court action. The problem with this is that an abstract needs to be done which may take years to complete and time is of the essence. In addition, another option would be to establish the trail an easement by prescription. In order to do this the trail would have to be used by the public freely with no closures for a period of 20 years and since it was used un- interrupted until 2004 it may be possible through adverse possession. Further, the case of Public Access Shoreline Hawaii (PASH) v. the Hawaii County Planning Department laid out the guidelines for native Hawaiian gathering rights. However; with all these options, it would take a considerable amount of time to litigate and the legal fees would be costly. Mr. Hirakami asked if the owners are willing to sell. Mr. Christensen replied most likely no and stated that he wants the County to condemn this easement. Ms. Springer stated that the Commission does not have the authority to recommend condemnation and urged him to contact Council Member Yagong to pursue that route. Mr. Van Bergen added that they really need to find out what the owner's stance is for the property. There's nothing the County can do if the owner is not willing to sell. He recommended that they have an appraisal done to determine the value. Mr. Hirakami asked if there is any way that there could be an alternate route so the landowners could keep their trail private. Mr. Christensen replied that there are many steep cliffs and this is really the only practical way to access the beach. Mr. Gilmartin asked if the PASH decision for native Hawaiian gathering rights was for unlimited access. Ms. Springer replied that the decision granted PASH standing in a Special Management Use Permit area and talks about rights but doesn't generate anything new it just re- affirms what is already in the Constitution. Ms. Springer told Mr. Christensen to contact E Mau Na Ala Hele, a non - profit organization that may be able to help since PASH will kick in only if there is a pending investigation by the State or County. She also suggested that they look into the boundary commission testimonies for that ahupua'a from the 1800's which may help substantiate their claims under the Highways Act of 1892. Ms. Markovich added that he also contact `OLAPA (Open Lands and Public Access Alliance), which is another group that may be able to help them. Ms. Moon thanked Mr. Christensen for his time and advised him to submit a suggestion form for this property. -2-