Hawaii: Hearing originally shut down for Sunshine violations – DLNR now resorting to day-change subterfuge to stifle public outcry?

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As if once wasn't enough, the DLNR board will try again to pass rules that will destroy a decades-old community at the Ala Moana Bowls parking lot in Waikiki, after the first attempt was scuttled by an Office of Information Practices order to abort the meeting due to Sunshine Law violations.

An upcoming DLNR board hearing at 9:15 AM on Thursday, December 7th, 2023, will ask again for an approval to transform the above mentioned parking area into a pay-only-under-threat-of-tow parking lot. The effect will be immediate and disastrous as this is not just a "parking lot"; it has been a local community meeting place for nearly 3/4 of a century.  (Village-Idiot-turned-mayor, Kirk Caldwell, did the equivalent to the half-century-old Diamond Head cliffs/lighthouse surfing community, a heart-breaking ending to a vibrant meeting place)

If passed, this rule will create a more dangerous scenario for the hundreds of local and visiting surfers who have, for decades, accessed the world famous Bowls and other area surf spots from the contested "parking lot". Should the rule pass, most surfers will have little choice but to use the alternative parking facilities at Magic Island where they will have to paddle across the well-trafficked -- and often polluted -- boat channel between Bowls and Magic Island. Boaters using the channel have reported that they are unable to see surfers traversing the channel and that it is just a matter of time before someone gets run down.  When confronted with this concern, rule proponent, Ed Underwood, replied that "that's not my problem." 

To yank this center for ocean activity out from under the surfers, paddlers, swimmers, and boaters who come here daily, and to force a dangerous alternative, is but another in a long list of DLNR in-your-face negative aggression against the ocean recreation community. (The inherent mean spirited and confused approach to DLNR rule making during the disastrous Thielen and Case chair tenures is the stuff of legend)

BLNR hearing agenda item J-7, contrived by the DLNR's resident sexual deviate, Ed Underwood (and his sidekick, Meghan Statts, who was caught lying to a senate hearing committee in 2021), is nothing more than a back door, gray-area attempt to end-run the legislature's already having tabled this exact item during the last legislative session.

We have attempted to contact the DLNR's Chair, Dawn Chang, the DLNR's spin-doctor-snow-machine, Dan Dennison, board members, and other key personnel within the DLNR so that we could get further insight into their perspective about this issue, but have so far received zero response from anyone at that agency.

Silence.

Historically, silence has been standard protocol from the DLNR. Our experience, DLNR personnel appear fearful of the blow-back from Hawaii's public because of all the harm that has already been done by the DLNR to Hawaii's communities -- especially ocean recreation communities -- as a result of their mostly lock step collusion with big money interests, abject incompetence, and misguidance from their DoBOR administrator, Ed Underwood. (This same kind of incompetence by local and state bureaucrats, played out during the Maui fires, resulted in the deadly-bungled Lahaina response that cost precious lives and so much loss of property)

(See our September 24, 2019 prediction: "Hawaii's leaders out of touch and unresponsive to the disasters they are creating for our future")

One of the DLNR's most vocal critics has been local native Hawaiian, Sam Monet, a long time surfer and sailor in the Waikiki area. Below we reprint his objections and testimony to the DLNR's most recent attempt to dissolve yet another long-standing community in Hawaii, worth reading as it points out the troubling legal, ethical, and moral issues involved.

(The hearing will be held on Thursday, December 7th, 2023, beginning at 9:15 a.m. at:  in person at the DLNR Boardroom, Kalanimoku Building, 1151 Punchbowl St., Room 132, & online via ZOOM, livestream via YouTube. Agenda Item J7. The public is strongly advised to attend this meeting and testify. The ZOOM-streamed version of this meeting will be televised on YouTube and we urge the public to watch so as to get a better idea as to how the DLNR board actually works.)

These are the board members, by name, who will be voting on this measure:

• Dawn N. S. Chang, Chairperson, term: 1/1/2023 – 12/31/2026.
• Riley Smith, Hawai'i Island Member, term: 7/1/2022 – 6/30/2026.
• Doreen Nāpua Canto, Maui Nui Member, term: 7/1/2021 – 6/30/2025.
• Karen Ono, Kaua'i Member, term: 7/1/2020 – 6/30/2024 (began service 5/1/2022)

Testimony

Sam Monet

December 3, 2023

Board of Land and Natural Resources

Re: 9: 00 a.m J-7 Thursday December 7, 2023

Public Testimony at Oahu Land Board hearing

Against DLNR plan to terminate “Free” parking at Ala Wai Small Boat Harbor and public beach

        I am a native Hawaiian, surfer and sailor who has been surfing at Ala Moana, in the ahupua’a Waikiki for over 60 years.  I would like to testify at that meeting.  

         December 7, is a day of infamy in our history, a sneak attack, which now appears to be re-enacted by our public servants at DLNR.  We fought against it then and now.

COLLECTIVE PUNISHMENT: is a punishment or sanction imposed on a group for acts allegedly perpetrated by someone else, which could be an ethnic or political group, or just the family, friends and neighbors of the perpetrator.  Because individuals who are not responsible for the acts are targeted, collective punishment is not compatible with the basic principle of individual responsibility, equitable application of laws or rules.

          DLNR argues that because people who are NOT recreational users are parking free at the harbor, Hilton hotel employees who illegally park all day along the lagoon fence beginning at about 6 a.m., DLNR should impose a penalty on or punish ALL users, local surfers, boaters and other recreational users.  

          This is not an equitable, fair or just way for public employees or officials to manage public trust assets.  Those hotel employees are pocketing their monthly stipend for parking at the hotel.  HOTEL EMPLOYEES SHOULD NOT BE PARKING AT THE HARBOR.

          The way to address this is to notify the Hotel that DLNR has authorized an employee to mark tires and WILL begin towing any cars that do not comply with the EXISTING parking regulations at the harbor.

          The problem is not local surfers, beach goers and other recreational users parking at the harbor, it is management at DLNR.

          In March 2023 the Hawaii Legislature tabled a bill to convert the FREE Parking at Ala Wai Harbor to paid parking.  DLNR is again attempting an end run the Legislature at the Land Board.

         AWSBH has served as a hub for tourists, recreational boating and fishing, surfing, sailing and beach goers, a legal home for some to ease Hawaii’s homeless problem, and a popular spot for paddling, surfing competitions and Friday night fireworks.   

          It is the last place in Waikiki where local people, our children and families can come to a beach in Waikiki where we can park FREE, Manuahi.

          In addition, under this plan, local surfers will be forced to park at Ala Moana park where parking is FREE, they would then need to paddle across the Ala Wai canal and boat harbor entrance where a steady stream of commercial boats, canoes, private fishing and sail boats transit; water pollution and many recent shark sightings make that paddle extremely dangerous for parents and their kids.

          In meeting at AWSBH in March 2023, State of Hawaii DLNR administrator, sexual predator Ed Underwood declared that “the public will no longer get 300 free parking at Ala Wai Small Boat Harbor (AWSBH); but instead will have to pay for approximately 150 stalls in his new “paid parking” plan, and “overflow must instead park outside the harbor at the city’s Ala Moana park”; because as he said “nothing is free”.   

          When questioned about the danger to surfers paddling across from the Park, Underwood callously stated “that is not my problem”.

          Native Hawaiian Dawn Chang should be ashamed for allowing her agency to manipulate this Board to do the wrong thing against the people of Hawaii.  The Lahaina fire was under her watch, the alleged “restoration" has been a nightmare for locals and now she wants to make a mess of things at Ala Wai.

          300 plus  FREE parking stalls  at AWSBH is a matter of law.

          The State of Hawaii is prohibited from terminating free public parking at the AWSBH under the public trust doctrine and various legal precedents.  

          In addition native Hawaiians who before the overthrow of the Hawaiian Monarchy in 1890s, traditionally, historically and currently parked “free” manuahi at AWSBH with access through what is now called Kahanamoku Lane to the beach and ocean to dive, fish, pick limu and opihi, surf, paddle canoe, sail and otherwise utilize the beach and ocean for customary rights for subsistence, to practice their native Hawaiian religion and culture, secured by federal and state Constitution and law.

          Because AWSBH is a navigable waterway, was developed by the Army Corps of Engineers, is maintained in part with millions of dollars of federal funds  and the issues are federal questions, Federal court has jurisdiction.

          First, the public trust doctrine requires that certain natural resources and assets, including navigable waters, the water and submerged lands, be held in trust by the government for the benefit of the public. As a public trust asset, the AWSBH is subject to this doctrine and must be managed in a manner that preserves and enhances public access and use. 

          Termination of free public parking would directly limit native Hawaiian and the public's historic and as stated in its development plans, funding and construction, ability to access and use this asset, and therefore violates the public trust doctrine. 

          Second, the Ninth Circuit Court of Appeals has held that the public trust doctrine applies to navigable waters and adjacent lands, including public beaches and parking areas. In Hawaii's Thousand Friends v. Anderson, 374 F.3d 668 (9th Cir. 2004), the court affirmed that the public trust doctrine requires the State of Hawaii to manage its public trust resources in a manner that prioritizes public access and use, and prohibits the state from privatizing or otherwise transferring control over these resources to private parties.

          Third, the Hawaii Supreme Court has also recognized the importance of public access and use in managing public trust resources. In Diamond v. Dobbin, 319 P.3d 1017 (Haw. 2014), the court held that the State of Hawaii had violated the public trust doctrine by granting a private developer exclusive use of a public beach, thereby limiting public access and use. The court reaffirmed the public's right to access and use public trust resources and held that the state has a duty to manage these resources for the benefit of the public.

          Fourth, the State of Hawaii has a legal obligation to provide adequate public access and use of public trust assets under state and federal law. For example, under the Americans with Disabilities Act, the state is required to provide accessible parking spaces and other accommodations to ensure that individuals with disabilities have equal access to public facilities.

          Finally, Hawaiian rights are broadly defined in Article 12, Section 7 of the Hawaii Constitution, Hawaii Revised Statutes Section 1-1, and Hawaii Revised Statutes Section 7-1. These provisions commonly refer to the right of Hawaiians to exercise their traditional and customary rights for subsistence, cultural, and religious purposes, subject to the right of the State to regulate such rights.

          State’s rights to regulate have been narrowly defined by federal and state supreme court and lower court decisions.  In State Supreme Court’s 1995 decision in PASH v. Hawaii County Planning Commission, 79 Hawaii 425, 903 P.2nd 1246 (1995) cert. denied, 517 U.S. 1163 (1996); the Court stated: “[T]he State is obligated to protect the reasonable exercise of customarily and traditionally exercised rights of Hawaiians to the extent feasible.”

          Again in Ka Pa’akai O Ka Aina v. Land Use Commission, 94 Hawaii 31, 7 P.3rd 1068 (2000) set forth a 3 step process by which State agencies must evaluate and reasonably protect the native Hawaiian rights to access, traditional and customary rights for subsistence, cultural, and religious purposes; violated by DLNR in its decision making process.

          In the Waiahole Ditch Contested Case, the Courts confirmed that traditional and cultural native Hawaiian rights shall not be diminished or extinguished by a failure to apply for or to receive a permit.

          PASH, Kapa’akai, and Waiahole, require governmental entities to not only define the traditional and customary rights affected by any proposed action but also to render findings on the impacts and mitigation necessary to lessen the impact on the exercise of these rights by Hawaiians.

          The State of Hawaii cannot terminate ANY free public parking at the Ala Wai Small Boat Harbor without violating the public trust doctrine and various legal precedents that prioritize public access and use of public trust resources. Any attempt to restrict public access to and enjoyment of AWSBH would be contrary to the state's legal obligations and could end up in a federal court, confirmation and an award for (class action) Plaintiffs.

Sam Monet