Century-old seawalls along the Gold Coast on Oahu’s southern shore are breaking down, and nobody wants to step up and fix them.
Area residents say the state of Hawaii should pay to maintain public access for swimmers, fishermen and surfers — as it’s done in the past. The state, in turn, says the walls are privately owned, exist primarily to protect private property, and are the responsibility of private parties.
Soon, a judge will decide whom the walls belong to — and whose kuleana it is to maintain them. But beyond the legal questions raised in 2007, the episode could provide a glimpse into the priorities of new Gov. Neil Abercrombie.
The parties last met in court on April 28 and will file their final briefs before the end of May. Sometime after that, First Circuit Court Judge Virginia Crandall will issue her decision.
But regardless of what Crandall decides, it’s unlikely to have an immediate impact. Both the state’s lawyer and the attorney representing the Gold Coast Neighborhood Association say that even if the state is found to be the responsible party, neither the neighboring landowners nor the court can force it to spend what could add up to millions of dollars to make the repairs.
“I guarantee that it’s not going to have an impact until at least the next legislative session,” Deputy Attorney General Bill Wynhoff told Civil Beat.
Wynhoff speculates that the landowners want to use the court opinion to pressure the Hawaii Legislature to appropriate funds for the maintenance of the walls. House Bill 84 and Senate Bill 79 each would have allocated $4 million to the cause, but neither made it far this session and neither will become law this year.
Neighborhood Association attorney Robert Klein, a retired justice of the Hawaii Supreme Court, said the landowners are merely trying to establish responsibility in the hope that the state will step up and maintain the walls and prevent injuries. If not, at least the landowners will be clear of potential accident and injury lawsuits, he said.
Asked if property values were a consideration, Klein said, “None of my clients have ever expressed anything like that to me.”
The state’s filing lists 11 oceanfront parcels on the makai side of Kalakaua Avenue, from Tropic Seas, Inc. at 2943 Kalakaua to a 12-unit condominium at 3019 Kalakaua.
On a recent weekday morning with negligible action at the popular Tonggs surf spot nearby, the walls were totally empty. There were deep cracks throughout, and some areas were rocky and pointy and painful to walk on in bare feet. Coconut trees protruded through or over fences in some spots, making passage awkward.
And with some sections not much wider than shoulder-width and no railings, it’s easy to imagine someone taking a tumble if the path were wet, slippery or simply more crowded.
Similar things have happened before. In the 1970s, a boy visiting the islands dove from a seawall on Halekulani Hotel property into shallow ocean water and fractured his neck, according to the neighborhood association’s filing. He sued the hotel, but courts determined that unfettered public access to the seawall made it the equivalent of a public highway.
Read the Gold Coast Neighborhood Association’s full brief:
Wynhoff, the state’s attorney, said it’s inappropriate for court to pre-determine liability in a potential future lawsuit.
“I think it’s non-judicial for the court to decide in advance who might be liable if someone falls in the future,” he said. “I think there’s some real issues of separation of powers and respective governmental duties.”
He also said that just because other seawalls have been deemed public thoroughfares doesn’t mean that all seawalls are automatically public thoroughfares.
The seawalls at issue in this case cannot be accessed from the road without trespassing and cannot be accessed from the ocean six to 10 feet below, the state argued in its brief. Because of that, it can’t be considered a public trail or road or highway.
“The most salient point is that it’s a trail from nowhere to nowhere,” Wynhoff told Civil Beat.
That may be the state’s position, but an eight-year resident at the Diamond Head Ambassador named Frank told this reporter that on weekends the walls are “like a road” and “as public as it gets.”
He said kids routinely jump off the walls into the ocean and then climb back up a metal ladder constructed and dedicated by the Gold Coast Neighborhood Association in 2003, the day before Frank moved in.
Klein said the ladder leads to a channel through the coral reef that allows access to surfing, fishing and swimming spots beyond.
“The ladder is something essential to the recreation of that area,” he said.
Klein said that while his clients own the private property, the state has an easement, whether it wants to admit it or not and whether it’s been put in writing or not.
“You get to use the easement and you have to maintain and you have to accept liability for it,” Klein said. “It’s just simple real estate, real property law. They have a property interest over the top of that wall.”
Klein argues that the seawalls are a state responsibility because control reverts to the government when private owners don’t do anything for five years. Public access along the walls has turned them into a thoroughfare subject to regulation as a state highway. Years of maintenance by state agencies makes it clear that the government long considered the seawalls a public matter — before that practice ended under former Gov. Linda Lingle, Klein said.
The state has argued that past generosity doesn’t imply acceptance of responsibility.
If the state does prevail, Klein said landowners will have little choice but to shut down access to the seawalls.
“Either they lose the case, or if they win the case, they’re going to lose access,” he said of the state. “(Landowners) could haul up their ladder and block off the wall — no trespassing, keep out, enter at your own risk — and a lot of people would be very angry.”
He framed the issue as being bigger than just one lawsuit and couched it as a larger question about the Abercrombie administration’s priorities.
“This is not just a legal fight between the state of Hawaii and the people who live there. It implicates the public interest and I think the interesting question would be to ask the administration, not their lawyers … are they going to continue to carry out the policies of the Lingle administration and just not accept that responsibility?” Klein asked. “Is it going to be more like Lingle or more like Cayetano, Waihee and Ariyoshi?”