Larsen’s beach access at risk, easements create liability question

KAUAI—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 kamaaina landowner whose holdings include the historic Waioli Mission House and Grove Farm Homestead Museum.

The fence would block the widest and easiest of two trails that lead down to the long, relatively secluded beach. Laymon maintains the more popular trail is not the easement that Waioli Corp. deeded over to the county. Instead, the public access runs through an outcropping of rocks along a steeper, rougher trail that is less favored by beach-goers.

But during a site visit last Friday, concerned citizens said they were stunned to hear surveyor Alan Hironaka claim there’s no public access to Larsen’s Beach at all.

Andy Bushnell, who serves on the Waioli Corp. Board of Directors, said it’s possible that’s correct. When Waioli gave the county an easement to build the road that leads to the trails, the county was supposed to handle the subdivision and transfer the title. But it didn’t, so Waioli eventually took care of it.

It’s possible the county never did record the beach easement, Bushnell said, although Waioli was under the impression it did. He said he’d been told the public access was the steeper trail.

Kauai County has previously failed to record beach easements, which led to the loss of certain public access ways, and also declined to accept access easements that it thought posed high liability risks.

Bushnell said he thought there should be public pressure on the county to ensure access: “It would seem stupid for the county to have made the effort to have an access road and not have an access at the end.”

If the access issue is not on the agenda of Waioli’s Monday board meeting, Bushnell said he plans to bring it up.

“I would like to see an access worked out among all the parties involved, but I also have a fiduciary responsibility to Waioli,” he said. The county would need to indemnify Waioli from all liability, he said, and preferably provide compensation for the land being used.

Meanwhile, Friday is the deadline for public comments on Laymon’s application for a Conservation District Use Permit. Members of the Sierra Club and other Kauai residents are pressing the state Board of Land and Natural Resources for a public hearing on the request, saying it would significantly impact existing uses.

They’re also asking why a “certified shoreline” isn’t being required for the fencing, which would be set back a minimum 110 feet from the shoreline, as well as plans to run the fence at that setback regardless of topography. Others have noted that the application fails to consider the impact on nesting seabirds and other protected species in the area adjacent to the fencing.

The application also seeks to hand clear brush and remove noxious plant species from the land. The Department of Land and Natural Resources last year fined Laymon $500 for clearing brush in the conservation district at Larsen’s without a permit.

The County Planning Dept. is also processing a Special Mangaement Area Minor Permit for Laymon’s project.

The controversy has underscored a long running dispute over who should assume liability when private landowners provide an easement for public access. That issue is heightened at Larsen’s, which has been the site of numerous drownings. County and state law enforcement officers also have staged raids on nude sunbathers and ?back to the land? campers who live in the brush along the coastline with no toilets or water.

“It’s just possible the county would be happy with no one going down there,” he said. “I speculate the landowners might be just as happy not to have people go down there, too.”

Bushnell said the State Department of Health sent Waioli a letter about two years ago raising concerns about unsanitary conditions created by the illegal campers. The county also ordered Waioli “to clean the place up or—I don’t know what the ‘or’ was, but we were responsible and we would get in trouble,” he said.

The Waioli board supported Laymon’s proposal for “brush management” and pasture fencing in part because “it would also deal with the hippie issue,” Bushnell said. Laymon had come to the Board seeking to greatly extend his lease to apply for a federal grant. Bushnell said the Board liked the idea that Laymon would be required by the grant to use best land management practices.

The issue of restricting beach access did not come up at the time.

“We didn’t, as far as I know, even talk about a fence down there,” he said.

Written comments on Laymon’s permit application must be postmarked by Friday, Oct. 23 and mailed to Samuel J. Lemmo, Administrator, Office of Conservation & Coastal Lands Department of Land & Natural Resources, P. O. Box 621, Honolulu, HI 97809.