~

f-iL.EO
BICKERTON DANG
A LIMITED LIABILITY LAW PARTNERSHIP 2015 JUL 29 PM 3: 26
WILLIAM W. SAUNDERS, JR. 3472
NATHAN P. ROEHRIG 8032
745 Fort Street, Suite 801
Honolulu, Hawai'i 96813
Telephone: (808) 599-3811
Facsimile: (808) 694-3090

Attorneys for Plaintiffs

RENO ABELLIRA, MARK CUNNINGHAM,
KEONE DOWNING, JOCK SUTHERLAND,
BILL MARTIN and THE SAVE LANIAKEA COALITION

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI'I

RENO ABELLIRA, MARK CUNNINGHAM, CNIL NO. 14-1-0005-01 (GWBC)

KEONE DOWNING, JOCK SUTHERLAND, (Declaratory Judgment and Injunction)
BILL MARTIN and THE SAVE LANIAKEA
COALITION, PLAINTIFFS' SETTLEMENT
CONFERENCE STATEMENT; EXHIBIT
Plaintiffs, 1; CERTIFICATE OF SERVICE

v.
Settlement Conference:
STATE OF HAWAI'I DEPARTMENT OF Date: July 6, 2015
TRANSPORTATION, and JOHN DOES 1-10, Time: 10:00 a.m.
JANE DOES 1-10, DOE CORPORATIONS 1-
10, DOE BUSINESS ENTITIES 1-10, and Judge: The Honorable Karen T. Nakasone
DOE GOVERNMENTAL ENTITIES 1-10
and DOE UNINCORPORATED
ASSOCIATIONS 1-10,

Defendants.

PLAINTIFFS' SETTLEMENT CONFERENCE STATEMENT

Plaintiffs RENO ABELLIRA, MARK CUNNINGHAM, KEONE DOWNING, JOCK
SUTHERLAND, BILL MARTIN and THE SAVE LANIAKEA COALITION hereby submit
their Settlement Conference Statement in compliance with the Notice of Settlement Conference
filed June 22, 2015 in this case and Rules of the Circuit Courts of the State ofHawai'i Rule 12.1.
 I. STATUS OF THE PLAINTIFFS
Plaintiff Reno Abellira is a tax-paying resident of Wahiawa, City and County of
Honolulu, State ofHawai'i. He is and has been a professional surfer, big wave surfing champion
and surfboard maker who uses and has historically used the Park area for more than 40 years, in
particular to park and access the adjoining shoreline, ocean, surfing sites and other coastal and
environmental resources adjacent thereto.
Plaintiff Mark Cunningham is a tax-paying resident ofKawela Bay, City and County of
Honolulu, State ofHawai'i. He is a retired North Shore life guard and a body surfing champion
who uses and has historically used the Park area for more than 35 years, in particular to park and
access the adjoining shoreline, ocean and other coastal and environmental resources adjacent
thereto.
Plaintiff Jock Sutherland is a tax-paying resident of Hale 'iwa, City and County of
Honolulu, State ofHawai'i. He is a surfer and was voted the winner of the 1969 Surfer
Magazine Poll as the world's most influential surfer. He and his family have lived on the rocky
point just East ofLaniakea since the 1960's and the surfing site opposite his home -- "Jocko's" --
is named after him. He uses and has historically used the Park area for more than 40 years to
access the adjoining shoreline, ocean, surfing sites and other coastal and environmental resources
adjacent thereto.
PlaintiffKeone Downing is a tax-paying resident of Honolulu, City and County of
Honolulu, State ofHawai'i. He is a surfer and former winner of the Eddie Aikau Surfing
Contest who uses and has historically used the Park area for more than 35 years, in particular to
park and access the adjoining shoreline, ocean, surfing sites and other coastal and environmental
resources adjacent thereto.
Plaintiff Bill Martin is a tax-paying resident of Sunset Beach, City and County of
Honolulu, State ofHawai'i. He is a surfer who is confined to a wheelchair and who uses the
Park, in particular to park and stage his wheelchair and other equipment to access the adjoining
shoreline, ocean, surfing sites and other coastal and environmental resources adjacent thereto.
Laniakea is one of the few places on the North Shore where he can comfortably access the beach
on his special wheelchair and go surfmg.
Plaintiff Save Laniakea Coalition (hereinafter "Coalition") is an unincorporated
association based on the North Shore of O'ahu whose members are dedicated to protecting and

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 preserving access to and parking for its members and the public who use the Laniakea shoreline
area and nearby surfing sites and the Park, so that the use and enjoyment thereof by both O'ahu's
residents and visitors may be perpetuated. The members of the Coalition are users of the Park
and the ocean area that is the subject of this suit and they intend to continue to use it in the
future.
II. RELIEF SOUGHT BY PLAINTIFFS
Plaintiffs recent Motion For Declaratory And Injunctive Relief And For Summary
Judgment that was heard on June 4, 2015, sought the following relief:
1. A declaration under HRS Chapter 205A that the DOT may not maintain the
barriers and/or other "development" within the SMA, and/or blockade or close the Laniakea
Support Park (the "Park"), unless and until a valid SMA permit has been issued consistent with
the provisions of HRS Chapter 205A and ROH Chapter 25, and a further declaration that any
such actions in the absence of a valid SMA permit are unlawful.
2. A declaration under HRS Chapter 205A that the DOT may not maintain its
barriers and/or other "development" within the shoreline setback area, which extends 40 feet
from the shoreline, without obtaining a valid variance as required by HRS §205A-41 et seq. and
other law,
3. A declaration that prior to and when installing its barriers within the Special
Management Area, the DOT failed and refused to comply with, implement or even consider the
objectives, policies and guidelines set forth in HRS Chapter 205A.
4. A declaration under HRS §205A-6 and §205A-33 that the DOT may not maintain
the barriers and/or other "development" within the SMA, and/or blockade or close the Park, until
such time as an Environmental Assessment has been prepared, accepted and processed for
further action consistent with the provisions of HRS Chapters 205A and 343, and ROH Chapter
25, and a declaration that any such actions in the absence of an EA are unlawful.
5. Appropriate injunctive orders under HRS §205A-6 and §205A-33 parallel to and
in enforcement of the above-requested declaratory relief requiring the DOT to fully comply with
the law, requiring it to remove all of the barriers and other "development" within the SMA,
requiring it to reopen access to the Park, and to enjoin it :from taklng any further actions related
to closing the Park in violation of applicable State and City statutes, ordinances, rules and
regulations.

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 6. Summary judgment on the relief Plaintiffs seek for Points 1-5 hereinabove.
III. FACTUAL SUMMARY OF THE CASE
A. Laniakea Beach, Surfing Site and Support Park
Laniakea is a world-renowned beach and surfing site located adjacent to Kamehameha
Highway on the North Shore of 0' ahu. For over 5 0 years, vehicle parking to access the beach
and surfing site has been directly across the road, on the southeast side of the highway, in an area
that now comprises a portion of the City and County of Honolulu's Laniakea Support Park
(hereinafter the "Park").
Laniakea is a unique surfing break offering waves which are not available elsewhere on
the North Shore. When there is a very large swell from the northerly direction, most other
surfing breaks are "closed-out" and unrideable while Laniakea remains surfable with very long,
perfect, world-class "right-hand" breaking waves.
Laniakea Support Park is predominantly undeveloped and borders Kamehameha
Highway that lies to its northwest and private ranch-land that lies to its southeast. It is
historically known for its ready coastal access for ocean users - in particular surfers, fishermen
and beachgoers.
The Park is owned by the City and County of Honolulu and includes those certain Tax
Map Keys 6-1-005:024, 6-1-010:019 and 6-1-010:020, and comprises roughly three (3) acres of
park land. The Park lies less than 50 feet from the legal shoreline, is within the coastal zone and
SMA, and is protected under the provisions of The Coastal Zone Management Act, Chapter
205A, and Chapter 25 of the Revised Ordinances of Honolulu.
Approximately one (1) acre of the Park is a clear, level and open parking area that has
been used in excess of forty (50) years by a variety of park and beach users, surfers, kayak
paddlers, stand-up paddle (SUP) boarders, swimmers, snorkelers, fishermen, beach-goers,
picnickers and tourists. The Park is primarily utilized as a much needed parking area and
recreational equipment unloading area for said users and is integral to their coastal access. Its
parking is unique in that the sea is easily accessible to the public within a few short footsteps.
B. Department of Transportation Action and Its Effects
There is a longstanding infrastructure problem on the North Shore whereby traffic
congestion frequently clogs Kamehameha Highway between Haleiwa and Turtle Bay.
Bottlenecks occur at places where there are beach parks and surfing sites and where the ocean is

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visible from the highway, as tourists and locals look for parking and enjoy the sights and large
waves. These bottlenecks occur at Laniakea, Chun's Reef, Waimea Bay, Banzai Pipeline
(Ehukai Beach Park) and Sunset Beach. Planning is underway for a federally-funded highway
"by-pass" in the vicinity of Laniakea. It is a very large project and construction is many years
away.
In connection with that by-pass planning, the DOT has for several years been holding
occasional "task force" meetings with members of the North Shore Community to discuss its
ideas for a "fix" and, ostensibly, to solicit public input. In or about 2013 the DOT, as part of that
larger project, began discussing at those meetings a "short-term demonstration project" which
was designed to address the Kamehameha Highway traffic issues near Laniakea. This phase of
the "fix" involved installing concrete jersey barriers in a long row along the highway next to the
Park that would completely block access to the Park's parking lot, with the purported goal of
improving traffic flow in the area. The DOT repeatedly represented that this would be a
temporary, "short-term" project, stating at various times that it might be 30 days or two months
or several months.
Between November 20, 2013 and December 22, 2013, the DOT began actively
implementing its "Demonstration Project" of barricading vehicle access to the Park by creating a
graded foundation for the barriers on the southeast side of the highway. Then on December 23,
2013, the DOT placed barriers within the SMA along the shoulder of Kamehameha Highway
which effectively blocked off and closed the Park and its parking area. Significantly,
considerable portions of the barriers are installed within the 40 ft. Shoreline Setback Area.
In response to a Request for Admissions submitted to the DOT, the DOT admitted that
the barriers are within the SMA as defined under HRS Chapter 205A.
It is clear that no permits were obtained for this project and no environmental assessment
or other reviews were done pursuant to Hawaii or City environmental laws. When Plaintiff Mark
Cunningham sent an email to the DOT asking about their lack of an environmental assessment
and permits, the DOT responded as follows:
No SMA permit is needed for the short term project. Under Hawaii Revised
Statues 205A-22, this project is not considered development under SMA because
it falls under Exclusion 2 - Repair or maintenance of roads and highways within
existing rights-of-way. Because the short term project is not a development, no
SMA permit is needed.

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 Mr. Okimoto also attempted to justify proceeding with the project without an
Environmental Assessment, as follows:
Under Section 11-200-8, Hawaii Administrative Rules, the HDOT have a list of
actions that are generally exempt from requirements regarding the preparation of
an EA. The exemptions that apply to the short term project from Comprehensive
Exemption List for the State of Hawaii Department of Transportation Amended,
November 15, 2000 are:

a. Exemption Class 4.1. Minor ground adjustments which do not require grading
permits for the purpose of eliminating hazards to vehicular traffic and aircraft
operations or to compromise air navigational aids.
b. Exemption Class 6.1. Installation of flare screens, safety barriers, guard rails,
energy attenuators and other appurtenances designed to protect the motoring
public.

Because the short term project falls under the above exemption classes, no EA is
needed.

Id. (emphasis added).

The practical effect of the barriers has been to greatly limit reasonable access to the
Laniakea beach and surfing area and cause hardship for Plaintiffs and other members of the
public who simply seek visit the area. Beachgoers and turtle-watchers now must try to find a
place to park along the highway away from Park. There is very limited roadside parking
elsewhere along Kamehameha Highway for miles in either direction from the Park and there are
few side streets where such parking is permitted. Those limited parking areas which do exist lie
closer to the highway than the barricaded parking lot and are generally less safe and convenient
to access, are further away from the shoreline access points and have a much more limited
number of parking spaces. Limitations on the availability of parking and areas for the unloading
of ocean gear (canoes, surfboards, stand-up surfboards, kayaks, paddleboards, beach
wheelchairs, etc.) are significant constraints on public ocean access on Oahu, particularly on the
North Shore.
The DOT's placement of barriers blocking access to, and effectively closing, the Park is
having a very significant negative cumulative impact on ocean access and parking and on
Kamehameha Highway traffic beyond the immediate Laniakea area. There are numerous surfing
sites that are regularly accessed via parking at the Park, including Himalaya's, Slingshots,

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 Laniakea, Bolton's and Jocko's. On days when the surf is good, hundreds of surfers enjoy these
surfing sites and the parking is typically totally utilized.
Closure of the Park has seriously reduced the ability of Plaintiffs and the public to use the
Park, to offload and stage ocean recreational equipment, and to access the adjacent beach,
surfing sites and ocean because it eliminates the largest legal public parking area within several
miles and few, if any, other areas exist which are susceptible to the same use in the same
proximity to the ocean, particularly on weekends and holidays when public use of ocean
resources on the North Shore is very heavy.
The closure of the Park has arguably increased pedestrian danger by requiring them to
walk in closer proximity to highway traffic than before. It is now even more dangerous for
persons such as Plaintiffs who are walking with ocean recreation equipment. The Park closure
has not stopped the public from endeavoring to access the Laniakea beach area. Now, rather
than having a large parking area that is safely off the highway with a predictable area of
pedestrian crossings, beachgoers are forced to park along the narrow highway shoulder before
and after the barriers, and then walk along the narrow highway corridor (made even narrower by
the barriers) and cross randomly at multiple locations. There has also been a marked increase in
illegal parking and its associated pedestrian traffic, including along the very narrow makai side
of Kam. Highway.
C. Deposition Testimony of Alvin Takeshita
On November 18, 2014, Alvin Takeshita, Director of the DOT, gave HRCP Rule
30(b)(6) deposition testimony as the designated representative of the DOT. His testimony
clearly demonstrated the State's woeful lack of compliance with applicable laws when installing
the barriers in this case. Important points from his testimony may be summarized as follows:
1. The State did not conduct a Certified Shoreline Survey before locating installing
the barriers in the shoreline setback area.
2. Mr. Takeshita did not know if the DOT had ever taken measurements were ever
taken from the location of the installed barriers to the shoreline.
3. According to measurements by North Shore resident Blake McElheny and the
State's own drawings, considerable portions of the barriers were installed within the 40 ft.
Shoreline Setback Area.

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 4. The State never sought (nor even considered, apparently) obtaining a variance for
installing structures within the 40 ft. shoreline setback area.
5. No SMA permit was applied for, even though the State's installation resulted in a
significant decrease in the density of use of the City park land, the beach and the adjacent waters.
6. The only basis for the State's claiming an exemption from the SMA permit
requirement was a phone call between a Parsons-Brinckerhoff (engineering firm) employee and
someone at the City DPP. No formal exemption was ever granted or documented.
7. The DOT made no other effort to review or assure compliance with the
requirements ofH.R.S. Chapter 205A which require "all agencies" to consider the objectives and
policies of that Chapter when taking actions within the CZMA.
8. One of the primary purposes of this project was to discourage coastal access at
Laniakea, prevent visitors from using the Laniakea Beach for viewing turtles and to force them
to go to other beaches on the North Shore.
9. The DOT did nothing to evaluate the public's ability to access the Laniakea
coastal resources when installing the barriers, nor did the DOT consider it a priority.
10. Prior to installing the barriers, the DOT did not take into consideration or analyze
the importance of Laniakea as a unique surfing spot and ocean resource.
11. The DOT did not consider the impact that displacing parking from the Laniakea
parking area would have on the Chun's Reef area that lies to the northeast of the Laniakea
Support Park.
12. Mr. Takeshita testified that the installation of the barriers was not "maintenance"
work (so as to qualify for any maintenance exemption).
Despite the DOT repeatedly representing that this was to be short term project, the
barriers have been in place well over a year-and-a-half.
D. Preliminary Injunction Granted Ordering Removal of the Barriers by
August 7, 2015

Plaintiffs filed their motion seeking declaratory and injunctive relief on April 21, 2015
("Motion"). A hearing on the Motion was held June 4, 2015 before the Honorable Gary W.B.
Chang. Subsequent to the hearing and further submissions from counsel Judge Chang issued his
Findings OfFact And Conclusions OfLaw And Order And Preliminary Injunction on July 8,
2015, a copy of which is attached as Exhibit 1.

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 Importantly, the Preliminary Injunction provides as follows:
PRELIMINARY INJUNCTION

1. Defendant State of Hawaii Department of Transportation is

enjoined from maintaining the barriers on the Park Area and shall remove the
barriers from the Park Area as soon as practicable, but under no circumstances
later than 30 days from the date this Findings of Fact and Conclusions of Law and
Order and Preliminary Injunction is filed with the above-entitled court.

2. Once removed, the barriers shall not be reinstalled, in whole or in

part, by DOT in the Park Area unless and until (1) DOT has complied with all
requirements of the law in order to install such barriers, or (2) the City lawfully
directs the installation of traffic barriers on the Park Area as part of the City's
determination of the permitted and duly authorized usage of its own park lands or
(3) until further order of the court.

The deadline for removal of the barriers is therefore August 7, 2015.

IV. STATUS OF SETTLEMENT NEGOTIATIONS
Plaintiffs, through their counsel, have indicated to the DOT' s representative counsel that
Plaintiffs would be open to a resolution of this dispute that involved reinstallation of most of the
barriers while leaving an entrance and exit open on opposite ends of the barriers, with the current
parking area being enlarged by the City so as to accommodate increased parking. The DOT,
through its counsel, has been unresponsive. Plaintiffs believe, in any event, that the City would
play a major role in any solution for the parking and coastal access issues surrounding the Park
Area, given that it owns the Park, but the City is not a part of this suit.
DATED: Honolulu, Hawai'i, July 29, 2015.

(L~
WILLIAM W. SAUNDERS, JR.
NATHANP. ROEHRIG
Attorneys for Plaintiffs

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• j.·

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STATE OF llAK'Ai!
FILED
),UL - B_2015
/.'or 'do' P ·1 I
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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI'I

RENO ABELLIRA, MARK CUNNINGHAM, CIVIL NO. 14-1-0005-01 (GWBC)

KEONE DOWNING, JOCK SUTHERLAND,
BILL MARTIN and THE SAVE
LANIAKEA COALITION,
Plaintiffs,
v.
( Decl.aratory Judgment and
Injunction)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW AND ORDER
AND PRELIMINARY INJUNCTION

STATE OF HAWAI'I DEPARTMENT OF Hearing Date: June 4; 2015

TRANSPORTATION, and JOHN DOES
1-10, JANE DOES 1-10, DOE Hearing Time: 3:00 p.m.
CORPORATIONS 1-10, DOE BUSINESS
ENTITIES 1-10, and DOE Judge: The Honorable Gary W.B.
GOVERNMENTAL ENTITIES 1-10 and Chang
DOE UNINCORPORATED ASSOCIATIONS
1-10,

Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF

LAW AND ORDER AND PRELIMINARY INJUNCTION

EXHIBIT---
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 Plaintiffs RENO ABELLIRA, MARK CUNNINGHAM, KEONE DOWNING,

JOCK SUTHERLAND, BILL MARTIN and THE SAVE LANIAKEA COALITION

filed their Motion For Declaratory And Injunctive Relief And For

Summary Judgment on April.21, 2015 [hereinafter "Motion"]. In

,
response, Defendant State of Hawaii Department of Transportation

filed :State Of Hawaii's Memorandum In Opposition To Plaintiffs'

Motion For Declaratory And Injunctive Relief And For Summary

Judgment Filed April 21, 2015 And State Of Hawaii's Counter

Motion For Swnmary Judgment on May 12 1 2015 [hereinafter

"Counter Motion"]. Plaintiffs filed Plaintiffs' Memorandum In

Opposition To State of Hawai~i's Counter Motion For Summary

Judgment Filed May 12, 2015 on May 27, 2015. The State filed

Defendant State of Hawaii s Reply Memorandum In Support Of Its

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Counter Motion For Summary Judgment Filed May 12, 2015 on

June 1, 2015.

A hearing on Plaintiffs 1 Motion and the State's Counter

Motion was held on June 4, 2015, presided over by the Honorable

Gary W.B. Chang. Present at the hearing for Plaintiffs were

William W. Saunders, Jr. 1 Esg., and Nathan P. Roehrig, Esq.

Present at the hearing for the State was Deputy Attorney General

John H. Price, Esq.

The Court, after hearing the oral argument of

representative counsel, and having considered the written

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 submissions and the record and file in this case, hereby DENIES

Plaintiffs' and Defendant's Motions for Summary Judgment.

The Court exercises its equitable discretion by treating

Plaintiffs' motion as a Motion for Pieliminary Injunction and

grants that motion for the reasons stated hereinbelow.

The Court GRANTS Plaintiffs' injunctive relief pursuant to

Counts I and II of Plaintiffs' Complaint filed· January 2, 2014.

The Court DENIES Plaintiffs' Motion in' all other respects. The

Court also DENIES defendant State's Counter Motion.

The Cour~ hereby enters the following Findings of Fact and

Conclusions of Law and Order and Preliminary Injunction.

FINDINGS OF FACT

1. Plaintiffs Reno Abellira, Mark Cunningham, Keone

Downing, Jock Sutherland, and Bill Martin [collectively

hereinafter "Plaintiffs"] are residents of the State of Hawaii.

The Save Laniakea Coalition is an.unincorporated association

that is doing business in the State of Hawaii.

2. Defendant State of Hawaii Department of Transportation

[hereinafter "DOT"] is the sovereign and they have ownership and

management jurisdiction over the State highway system that

includes Kamehameha Highway in the area of Laniakea Beach.

3. Laniakea Beach on the North Shore of the Island of

Oahu lies immediately adjacent to and on the northwest side of

Kamehameha Highway.

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I.

4. Kamehameha Highway is own~d and maintaineq by

defendant DOT.

5. Across from, and adjacent to, the Highway from

Laniakea Beach lies a large parcel of unimproved land, which has

been referred to on some documents as "Laniakea Support Park"

[hereinafter "Park"] 1 . The Park is owned by the City and County

of Honolulu [hereinafter "City"].

6. Historically, for several decades, the public has been

parking their vehicles on a barren and unimproved strip of Park

land [hereinafter "Parking Area"], that is immediately adjacent

to Kamehameha Highway, as a means of accessing and enjoying a

variety of recreational tourist destination pursuits at Laniakea

Beach, the Laniakea surfing site, and other adjacent natural

ocean resources. Laniakea Beach has some unique features and

qualities which are not readily available elsewhere. This makes

Laniakea Beach a very popular destination for local residents

and tourists alike.

7. As a consequence of the attractiveness of Laniakea

Beach, the motor vehicle and pedestrian traffic in the area

tends to become profoundly congested from time to time. On

occasion, the motor vehicle traffic on Kamehameha Highway slows

to a snail's pace or even a stop-and-go pace. The vehicular

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• The State takes issue with the reference to this parcel of land being referred to as a city "park" However, the
State did not introduce any evidence to shed any light upon the status of this parcel of land. Therefore, until such
time as further evidence.is introduced into the record regarding the status of this parcel ofland across the Highway
from Laniakea Beach, the court shall loosely refer to this parcel as a "park."

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 congestion and crawling traffic is exacerbated by pedestrians

scurrying back and forth acro·ss Kamehameha Highway, and darting

in between and around vehicles moving on the Highway, to get

from their vehicles parked on the Parking Area to and from the

beach.

8-. The status quo featured complete, unobstructed access

for vehicles and pedestrians between Laniakea Beach and the

Parking Area by crossing Kamehameha Highway. Pedestrians cross

the Highway anywhere between Laniakea Beach and the Parking

Area. There are no marked crosswalks, curbs, or barriers of any

kind on or around Kamehameha Highway in the Laniakea Beach area.

The Park Area is a wide, unimproved, barren shoulder area

adjacent to a paved roadway. The movement and parking of

vehicles and the movement of pedestrians along and across the

Highway was essentially unregulated, except for the posted

vehicular speed limit and lane markings dividing the Highway.

9. The Court takes judicial notice that DOT received

numerous complaints about the slow moving, extremely congested

vehicle traffic and the hazardous pedestrian crossing movemept

on Kamehameha Highway in the Laniakea Beach area, particularly

on holidays.

10 .. On or about December 23,. 2013, the DOT, in what it

represented would be a "short-term" "demonstration project,"

installed temporary concrete traffic barriers along the

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 southeast side of Kamehameha Highway thereby blocking vehicle

access to the Park Area for members of the public who wanted to

park on the Park Area in order to access Laniakea Beach and its

adjacent ocean resources.

11. Portions of the barriers lie within 40 feet of the

high wash of the waves. during extremely high or storm surf

conditions that cause wave and debris to· be washed onto

Kamehameha Highway~

12. The barriers completely block and prevent members of

the motoring public from parking on ·that strip of land in the

Park Area. There is no other place to park in the immediate

Laniakea Beach area other than on that Park Area. Without a

place to park, a person intending to use Laniakea Beach is

effectively denied access to Laniakea Beachr with the exception

of those who are transported to, and dropped off at, the beach

or if the user is willing to walk hundreds of yards from the

nearest available alternate area of opportunistic parking 2 •

13. The lack of access to the parking on the Park Area

effectively denies Plaintiffs reasonable access to Laniakea

Beach and its adj a cent ocean reso·urces.. Plaintiffs cannot be

deprived of such access without the protections that City permit

processes afford.

2
• "Opportunistic parking" means informal parking opportunities along the side of Kamehameha Highway where
parking is permitted. This is largely roadside parking along the Highway. There is no designed parking lot or other
improved parking area, besides roadside parking, that anyone has provided for users of Laniakea Beach.

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 14. Prior to the installation of the barriers, DOT did

make inquiry with the City to ascertain whether it was required

to obtain any Special Management Area [hererinafter "SMA"]

permits in order to erect any barriers on City property. The

City advised DOT that no permits were required for a "short

term" "demonstration project." Therefore, DOT did not apply for

and did not obtain an SMA permit for the installation of the

barriers.

15. The City's Department of Planning and Permitting ·

[hereinafter "DPP"], the agency th?-t handles SMA permits and

variances 1 told the State's consultant that no SMA permit would

be required for the placement of the barriers on the Park Area.

16. Prior to the installation of the barriers, the

State also received a December 3, 2013 letter from DPP saying

that no SMA permit would be required for the placement of the

barriers as long as certain conditions existed.

17. The State acted in reliance on the representations of

the DPP and proceeded to install the barriers on the Park Area.

This prevented cars from parking on the Park Area.

18. Furthermore, prior to the installation of the

barriers 1 DOT did not apply for and did not obtain a variance

for the installation of the barriers within the 40-foot

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shoreline setback area. Again, DOT was not advised by the City

that any such permits were required.

· 19. What was repr!=lsented by DOT to be a "short-term"

"demonstration project" has now persisted for over a

year-and-a-half and the DOT represents that it may keep the

barriers in place indefinitely.

20. In February 2015, the DPP, the City agency empowered

under HRS Chapter 205A to enforce the provisions of that Chapter

on O'ahu, has now in~ormed DOT that it needs an SMA permit to

keep its barriers in place. To its credit, DOT moved

expeditiously to initiate the permit application process, on its

own, before formal court proceedings were scheduled.

21. To the extent that any of these findings of fact are

conclusions of law, they are to be so construed.

CONCLUSIONS OF LAW

l. Plaintiffs have standing and a right to bring this

action for temporary and permanent injunctive relief.

2. The record shows that, when DOT initially installed

the traffic barriers along the Park Area, they were advised that

no permits were required in order to install traffic barriers on

the Park Area.

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3. However, in February 2015, the City's position changed

and the City informed DOT that permits were now required in

order to install traffic barriers on the Park Area.

4. Therefore, the traffic barriers cannot be maintained in

place without DOT first securing the necessary permits.

5. Based upon the current record, Plaintiffs have

sustained their burden of proof to show that they are likely to

prevail upon the merits of the dispute regarding whether DOT can

maintain the traffic barriers on the Park Area without the

necessary permits.

6. The issuance of a preliminary injunction herein that

requires DOT to comply with all requirements of the law before

installing barriers on the Park Area is in the public interest.

7. Since DOT did not consent or agree to remove the

barriers without a court order, it is necessary for the court to

issue an order entering a preliminary injunction requiring DOT

to remove the barriers as soon as practicable; provided that,

under no circumstances shall the barriers be allowed to be left

in place on the Park Area any longer than thirty (30) days after

the date these Findings of Fact and Conclusions of Law and Order

and Preliminary Injunction is filed with the above-entitled

court.

8. After the removal of the barriers, they shall not be

reinstalled, in whole or in part, by DOT in the Park Area unless

9
 .!

and until (l) DOT has complied with all requirements of the law

in order to install such barriers, or (2) the City lawfully

directs the installation of traffic barriers on the Park Area as

part of the City's determination of the permitted and duly

authorized usage of its own park land or (3) until further order

of the court. ..
i
l
9. Nothing herein prevents the parties from entering into !
an agreement that is approved and ordered by the court regarding
!
a mutually agreeable barrier installation design and protocol on i

I.
the Park Area, which affects the access to, and usage of, I

Laniakea Beach.
I
PRELIMINARY INJUNCTION
I
l. Defendant State of Hawaii Department of Transportation

is enjoined from maintaining the barriers on the Park Area and

shall remove the barriers from the Park Area as soon as

practicable, but under no circumstances later than 30 days from

the date this Findings of Fact and Conclusions of Law and Order

and Preliminary Injunction is filed with the above-entitled

court.

2. once removed, the barriers shall not be reinstalled,

in whole or in part, by DOT in the Park Area unless and until

(l) DOT has complied with all requirements of the law in order

to install such barriers, or (2) the City lawfully directs the

10
 installation of traffic barriers on the Park Area as part of the

City's determination of the permitted and duly authorized usage

of its own park lands or {3) until further order of the court.

DATED: HONOLULU, HAWAII, JUL - 8 2015

Reno Abellira, et al. v. State of Hawaii etc.,

Civil No.: 14-1-0005-0l(GWBC}
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND
ORDER AND PRELIMINARY INJUNCTION

11
NOTICE SENT TO:

WILLI~ W. SAUNDERS JR., ESQ.

NATHAN P. ROEHRIG, ESQ.
BICKERTON LEE DANG & SULLIVAN
745 FORT STREET, SUITE 801
HONOLULU, HAWAII 96813
Via U.S. Mail, Postage Prepaid
ATTORNEYS FOR PLAINTIFFS
DAVID M. LOUIE
ATTORNEY GENERAL OF HAWAII
WILLIAM I. WYNHOFF
H. RAMSEY ROSS
DEPUTY ATTORNEYS GENERAL
DEPARTMENT OF ATTORNEY GENERAL
ROOM 300, KEKUANAO.~A BUILDING
465 SOUTH KING STREET
HONOLULU, HAWAII 96813
Via U.S. Mail, Postage Prepaid
ATTORNEYS FOR DEFENDANT DEPARTMENT OF
TRANSPORTATION, STATE OF HAWAI~I

NOTICE OF ENTRY

The foregoing Findings of Fact and Conclusions of Law and Order

and Preliminary Injunction in Civil No. 14-1-0005-01 (GWBC) has

been entered and copies thereof served on the above-identified

parties by placing the same in the United States mail, postage

prepaid, on July 8, 2015.

Cl~, ~eenth Division

 IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI'I

RENO ABELLIRA, MARK CUNNINGHAM, CIVIL NO. 14-1-0005-01 (GWBC)

KEONE DOWNING, JOCK SUTHERLAND, (Declaratory Judgment and Injunction)
BILL MARTIN and THE SAVE LANIAKEA
COALITION, CERTIFICATE OF SERVICE

Plaintiffs,

v.

STATE OF HAWAI'I DEPARTMENT OF

TRANSPORTATION, and JOHN DOES 1-10,
JANE DOES 1-10, DOE CORPORATIONS 1-
10, DOE BUSINESS~ENTITIES 1-10, and
DOE GOVERNMENTAL ENTITIES 1-10
and DOE UNINCORPORATED
ASSOCIATIONS 1-10,

Defendants.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing document was duly served

on July 29, 2015 upon the following:

William J. Wynhoff, Esq.

John H. Price, Esq.
Deputy Attorney Generals
Department of the Attorney General, State of Hawaii
465 So. King Street, Ste. 300
Honolulu, Hawaii 96813

Attorney for Defendant

State ofHawai'i Depaiiment of Transportation

DATED: Honolulu, Hawai'i, July 29, 2015.

WILLIAM W. SAUNDERS, JR.

NATHANP. ROEHRIG
Attorneys for Plaintiffs