Ka Wai Ola - Office of Hawaiian Affairs, Volume 19, Number 12, 1 December 2002 — Höküliʻa legal battle heats up [ARTICLE+ILLUSTRATION]

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Höküliʻa legal battle heats up

By Naomi Sodetani With few remaining issues yet to be decidecL, the two-year long trial over the Hokuli'a luxuiy subdivision approach.es its end. But new twists inthe dispute signify thatthe heated legal wrangling is far from cooling down. Big Island Circuit Court Judge Ronald Ibarra recently handed down key rulings that partially favored both parties — leaving neither satisfied. On Oct. 9, the court ruled that the ancient trail traversing the property belongs to the public, and orderedthe Hōkūli'a developer torestore the portion that destroyed during construction. Immediately, attorneys representing the eommunity group Protect Keōpuka 'Ohana (PKO) praised the landmark ruling as "precedent-set-ting" for its potential to protect other historic Hawaiian trails and sites across the state. But on Nov. 8, attorneys for Hokuli'a developer 1 250 Oceanside Partnars appealed the decision tothe Hawai'i Suprarne Court, asking the courtto prevent what they argue is an illegal taking that has major statewide implications for property ovnem . The move was unusual, since the trial is still in process and an appeal ean usually only be filed after a case is concluded. Oceanside's attorneys have invoked the "Forgay Doctrine," whieh allovvs for immediate appeal in land title issues if the losing party mightbe irreversibly harmedif it awaits the end of legal proceedings. In a separate ruling, Judge Ronald Ibarra denied Hokuli'a de\feloper 1250 Oceanside Partners' motion to reconsider his earlier decision that found zoning for the luxury golf course and residential subdK ision illegal because the "urban use is not in accord with the general plan." The court reaffirmed that the County of Hawai'i's rezoning of a 14.854 acre portion of agricultural land for resort use was "spot zoning and invalid." In the same ruling, however, the judge acknowledged "genuine issues of material facton Oceanside's claims regarding vested rights, estoppel and waiver." Yet to be resolved in Ibarra's court are PKO's elaim that Hokuli'a desecrated burials during construction and Oceanside's elaim that its right to build a membeis' lodge on agricultural land was "vested" when permits were issued by

Hawai'i County. The recent developments represent the latest round of legal challenges to the South Kona project, whieh has been in court since Dec. 2000. PKO has claimed that the developer flouted burial and environmental protection laws, the court's order for the reinterment of unearthed human remains, and violated buffer zones designated by the Hawai'i Island Burial Council and lineal and cultural descendants. Portions of the ala loa, that circles the island of Hawai'i, had been removed during construction for the subdivision, whieh plans 700 home lots priced up to $8 million, an 1 8-hole golf course, and 80-unit lodge. Recognizing Native Hawaiian traditional and customaiy practices as constitutionally-protect-ed, the court ordered Oceanside to restore the trail to its condition and location before removal and directed the state to "take whatever action is necessaiy to protect and preserve the ala loa on behalf of the public." 1250 Oceanside Partners President John De Fries said, "The stepping stone trail is a special cultural site that needs to be preserved and we'll continue our efforts to do that. f/Iy immediate eoneem is our ability to work collectively with the state and the plaintiffs to determine the original alignment. I don'tthink there's anyone alive who understands what that is ." Oceanside attorney Jack Dwyer said that Ibarra's ruling forces the developer to determine a complete trail by "connecting the dots" of isolated sections separated by large gaps. "The ordar forces us to eome up with an alignment of atrail where there is no evidence of any trail" and will force relocation of golf cart paths and roads at great expense to the developer, Dwyer said. Following Oceanside's Supreme Courtappeal, the state attorney general has asked for more time to determine the alignment of the ala loa. PKO attorney Robert D.S. Kim of Kona called the appeal motion "sketchy" and said the developer's interests would be "better sarved just to appoint a master," as Ibarra warned he would do if the trail's alignment was not determined as ordered by Nov. 20. Naomi Sodetani is married to Alan Murakami of Native Hawaiian Legal Corporation, who lep - iesen ts th e pla in tiffs. ■

NT"i Hott

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Zi Disassembled section of ala loa trail at Keōpuka.