THE ROAD MORE TRAVELED

THE ROAD MORE TRAVELED: The pilikila over the Larson’s Beach access has finally gotten some attention after a fine article in the Hawai`i Independent by Joan Conrow detailed how once again the public is about to lose a path that has been historically ours forever because of some slight of hand by a big landowner.

She writes:

An outcry over plans to fence off a trail to Larsen’s Beach is causing Kauai residents to revisit two longstanding issues: Should concerns about liability restrict access; and is the county properly recording public easements?

The controversy arose over cattle rancher Bruce Laymon’s plans to install a fence on northeast Kauai coastal land that he leases from the Waioli Corp., a kama`aina landowner whose holdings include the historic Waioli Mission House and Grove Farm Homestead Museum.

But the rest of the article deals for the most part, not with Laymon but with Waioli Corp and the history of the access.

Although going forward it’s Waioli’s actions that will determine the future of the access it’s Laymon’s past actions- with the ok of Waioli- that has brought the issue to a head.

Local rancher Bruce Laymon would have people believe, as his attorney told the Board of Land and Natural Resources (BLNR), that he “is a rancher and landscaper... an avid fisherman who loves Kauai and the community... and is not a sophisticated developer as the Sierra Club would like to have the Board believe”

That, in part was what influenced the BLNR to approve staff recommendations to reduce his fine for illegally clearing the bluff above Larsen beach- a secluded clothing optional North Shore beach where travel-book-reading sunbathers from around the world come to vacation- from $15,000 to $2,000 according to the minutes of it’s July meeting.

Laymon claims that it was an innocent and understandable mistake when he relied on an approved “conservation plan” for his ranch, to do work along the ancient historic Alaloa trail above Ka`aka`aniu (rolling coconut) beach and reef- also knows as Larsen’s Beach after a Kilauea sugar plantation luna- which is famous for its limu kohu according to the BLNR staff report which PNN has obtained but is apparently not posted on line.

The work not only went well beyond what was permitted by the East Kaua`i Soil and Water Conservation District (EKWCD) Board when they approved his Brush Management Plan that had been developed with the help of the Natural Resources Conservation Service (NRCS) but encroached on the state conservation district and county special management area where permits are required to do any work.

Rather than just carefully hand- remove all the non-native plants and leave the foliage in place to hold together the hillside- as the “approved plan” for the other areas required- Laymon apparently came in and cleared the entire area of “brush” denuding the hillside including cutting large trees down to stumps in order to harass the homeless in the area.

According to the report Laymon apparently tried to dispose of the campers’ property calling it “household trash”, engaging in a confrontation with some when they tried to retrieve their belongings.

Though Laymon claimed ignorance and said he was “doing something good for the community”- a position with which members of the BLNR agreed- this isn’t his first run-in with the law for land-clearing operations without necessary permitting- nor is it the first time he’s had confrontational run-ins with nude sunbathers or so-called “illegal campers” on property he leased.

In 2003 Laymon did apparently illegal grubbing and grading on a three acre parcel above Kealia for which he didn’t have an NRCS approved plan. But the EKWCD Board said he made an “honest mistake” in including the three acre parcel in a plan for a different 2011 acre parcel in Kealia according to a lengthy article on the subject in the local newspaper.

This occurred during the infamous Kaua`i County Council “Developers Gone Wild” grubbing and grading hearings, spurred by the 2001 Pila`a mudslide disaster for which developer Jimmy Pflueger received the then-biggest-ever fine for a federal Clean Water Act violation.

Despite the fact that Council Chair Kaipo Asing called actions “another Pila`a waiting to happen” Laymon’s buddies on the EKWCD Board- a group comprised of large landowners in the area who obtain votes based on the acreage they own- cleared him of all charges saying Laymon was just an unsophisticated rancher and landscaper who actually made the area look “beautiful” despite the fact that if a heavy rainfall had occurred while the land was denuded it could have despoiled the reef at Kealia.

Laymon was also involved in the similarly infamous harassment of nude sunbathers in 1990 when he apparently organized an armed vigilante squad that roamed Kaupea Beach- aka Secret Beach- on ATVs at the behest and in the employ of landowners above the beach until the state told him to stop because the beach was state property.

Among those owners were Michelle and Justin Hughes who leased Laymon the Kealia Property that they had obtained from developer Tom McCloskey who bought the entire Kealia ahupua`a after area sugar cane went defunct.

But it seems the BLNR staff either never heard about these incidents or chose not to tell the board about them and rather convinced the board that Laymon was just an unsophisticated rancher and landscaper who made an understandable mistake in clearing the area above Larsen.

The minutes of the BLNR meeting are revealing for what they don’t contain as much as what they do. Although Kaua`i member of the Board Ron Agor told many people that he would push for the full fine the minutes reveal that he actually led the other board members to accept the staff report and reduce the fine.

Laymon is currently applying for an “after the fact” permit from the BLNR for not just the denuding of the hillside but to do the real work he intended to do before complaints stopped him in October of 2008- changing not just the historic Alaloa trail but the traditional easier access to the beach and substituting one more treacherous.

As to the future, the Sierra Club has been on the case and, in a letter, refutes testimony by Laymon’s attorney Lorna Nishimitsu who at one point actually tried to claim to the BLNR staff that the Alaloa trail was actually Ko`olau Road.

The Sierra Club letter to the board details the issues and misrepresentation in the after the fact permit application and is apparently not available on line so is reproduced in full here.

As you know, Paradise Ranch has submitted a CDUA for land leased from Waioli Corporation. This application calls for brush management for ranching and the construction of two sections of fence – one portion designated as pre-existing (near the northern boundary), and additional fencing that is not pre-existing, approximately twice the length of the first portion. We agree that cattle should be kept off the beach. However, the siting of this additional fencing raises a number of concerns.

Safe Beach Access

We appreciate that Waioli Corporation provided a public access easement to Larsen’s Beach years ago, but that route is steep and difficult for both children and elderly to use. The CDUA survey map Exhibit E, indicates that the proposed fence will block the favored public access along the gradual slope labeled “Existing Road” and “Existing Trail”. Emergency responders who routinely rescue visitors from the two rip currents at Larsen’s Beach also favor this route. Therefore, we ask you to keep the existing trail behind the beach unblocked.

Historic Alaloa

Exhibit D in the CDUA notes the State of Hawaii’s claims of ownership of the historic coastal trail – the Hawaiian Alaloa. The Alaloa is not Ko`olau Road as put forth by attorney Lorna Nishimitsu in a letter dated August 5, 2009 (Exhibit C). The evidence of the trail’s location is provided in the document called Ref: K98:1 Moloa`a (from September 1, 1998) which was not included in the CDUA exhibits, but is cited at the top of the Na Ala Hele Memo dated March 1, 2000 (Exhibit D).

Therefore, attached to this letter is documentation from the 1998 Abstract Ref: K98:1 Moloa`a which includes an historic map labeled: Na Ala Hele Exhibit B – “Portion Registered Map 1395 dated 1878 depicting portion of Old Alaloa”.

It is clear from this map that the Alaloa is a coastal trail and not the Kauai Belt Road, Kuhio Highway or Ko`olau Road. Furthermore, there is ample oral testimony collected by Na Ala Hele Kauai Advisory Council members in the late 1990’s that the path traversed close to the coastline and over the Pali. Kupuna in the area can corroborate this.

The “pre-existing” fence does not interfere with the Alaloa. However, the proposed alignment for the new, additional fencing is makai of the existing trail ( see CDUA Survey Map-Exhibit E). The fence would block the “Existing Trail” at two points, cutting off existing public access to Larsen’s Beach via the Alaloa. We encourage Waioli Corporation to seek confirmation from the Na Ala Hele staff abstractor as soon as possible on this matter and to encourage DLNR to conduct a metes and bounds survey of the Alaloa in order to properly site the fence, and submit a corrected survey map for the Conservation District Use Application.

Endangered Species

The project area is adjacent to the sensitive coastal habitat of monk seals, green sea turtles, albatross and other endangered seabirds. Has the lessee considered using fencing that is dog proof so that endangered ground nesting birds would be protected? We hope that the U.S. Fish and Wildlife Service will be consulted and afforded the opportunity to comment.

Summary

We ask that you relocate the proposed fencing so that it is mauka of the trail/road. Doing so would:
a) Preserve the traditional and customary Alaloa;
b) Provide the only safely graded beach access from Larsen’s Beach parking lot;
c) Assist lifeguards and emergency responders in their rescue efforts, and
d) Allow the public access when Monk Seal volunteers routinely ribbon off sections of this beach.

If liability is a concern, Waioli Corporation could dedicate the existing trail/road/Alaloa to the State under the Na Ala Hele Hawaii Trail & Access System, thereby removing the threat of liability. Neighboring Moloa`a Bay Ranch also has a portion of the Alaloa and that easement was adopted into the State Na Ala Hele trail system several years ago. Also, please note that your neighbor Falko Partners, north of Larsen’s Beach, is currently in discussion with the Kauai Public Land Trust about transferring rights to the coastal portion of the Conservation District to the public.

Thank you for your consideration. Perhaps board members would benefit from a site visit to better understand the significance of this coastal gem and its importance to the community.

Sincerely,
Judy Dalton
on behalf of the Executive Committee
(Sierra Club)Kaua`i Group, Hawai`i Chapter

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We’ve managed to screw-up the handiwork of our shoulder surgeon and are back to hurtful hunting and painful pecking. We may be posting a little lighter than usual in the coming weeks. Pardon the interruption- try to do better next time.

YOU GOT A PERMIT FOR THAT BONE?

YOU GOT A PERMIT FOR THAT BONE?: Well it’s only taken the State a few years but it appears that Honolulu Star Bulletin reporter Tom Finnegan has uncovered the existence of a secret investigative grand jury that may actually pursue criminal charged against convicted land-rapist and alleged murderer Jimmy Pflueger.

The article also says that former Mayor Marianne Kusaka may finally get her come-uppance and share a cell with Pflueger if he lives long enough to land in one, especially given his penchant for spending the family fortune on attorneys.

Kusaka could face obstruction charges if not conspiracy for her role in allegedly stopping county workers from stopping Pflueger’s illegal activities.

But it remains to be seen, not as much how many people the grand jury calls, but who they hear from since they may not know many who might have valuable information

Because there are at least a few “friends of Jimmy” out there who saw Pflueger in action when he created his “water-skiing lakes” and one “acquaintance” spoke to us a few years back.

Our source, who has asked we not use his or her name for fear of retaliation, told us that Pflueger regularly regaled both our source and disgraced former Kaua`i business honcho Gary Baldwin with how he had turned all reservoirs in the area on his land into lakes for water skiing during the 90’s- all without any permits.

Both Baldwin and Pflueger were in the auto business and our source suggested that others in the rent-a car and car sales business were friendly with Pflueger and might also be able to provide information under subpoena.

The source told us that during a social visit with Pflueger bulldozers and land moving equipment were ubiquitous on Pflueger’s properties.

And our source reported that Pflueger bragged about how he had been busy over the years moving land to raise the level of his “water-skiing lakes” to allow for better rides- and even took them to see the activity.

Is Baldwin- who was known to be a prime go-between for Kusaka and Pflueger and who has paid his dues for a con-job before he came to Kaua`i and now reportedly lives in the northwest- going to be called by the grand jury?

We don’t know but would strongly suggest they find out what he knows.

Pflueger’s responsibility for the Pila`a mudslide, where a storm washed down a mountain on the Marvin Family’s beach kuleana land after Pflueger illegally grubbed and graded a mountain creating a new road, was extensively documented in hours, days and weeks of community and government official’s testimony before the County Council early in the decade.

That resulted in the largest EPA fine in history for among other things killing the reef at Pila`a beach.

Parenthetically, it also led to a new grubbing and grading ordinance that has never been “activated”. Despite Department of Public Works (DPW) guarantees that they would set a short timetable for creating administrative rules to implement the ordinance they never have.

But included in those hearings and viewings of what became know as the “Developer’s Gone Wild” videos were details of illegal activity throughout Pflueger’s lands..

A review of the tapes and transcripts of the meetings would certainly provide the grand jury with a plethora of evidence of Pflueger’s habit of re-designing the land and reservoirs without any engineering plans or permits.

Although Kusaka has reportedly been called to testify we wonder how many DPW employees with knowledge of Pflueger’s illegal activities- the ones who apparently did “get the memo” from Kusaka telling them not to investigate but didn’t tell the authorities about it- will be called to tell what they know and when they knew it under oath.

Many of the statements by Kusaka allies in the DPW such as county engineer Caesar Portugal and others like Wally Kudo and Ian Costa came after pointed questions by then Council member Gary Hooser and are damning to say the least.

Throughout the months of testimony they repeatedly attempted to make excuses for why they hadn’t shut down Pflueger’s apparent and apparently illegal operations.

Despite testimony of violations that had been seen and even photographed they failed to even charge Pflueger with obvious violations of the county’s grubbing and grading ordinance which requires engineering studies and permitting in order to do the kind and scope of work Pflueger was doing.

Hooser and dozens in the public were incredulous with their “he won’t give us permissions to look” excuse to the point where it would have neared comedy if it wasn’t tragic- such as when the suggestion was made that they go up in a helicopter for a look and they responded “oh- that’s a good idea”.

Or like when it was suggested they did have the right to inspect properties with probable cause to believe violations had occurred their response was “oh we never do that” despite the fact that inspectors of all stripes commonly enter properties after going through the proper procedures during every council meeting for many months.

And, oh - all this happened before the Ka Loko dam break.