PicoSearch
    Help

 

THE ISSUE OF BEACH ACCESS AN OVERVIEW FOR A DAY IN COURT
PRETRIAL HEARING SCHEDULED JUNE 18, 2008
 

March 10, 2008 entrance to Big Beach 1 beach access

Kathleen E. Sheehan was issued a citation for being in the park after hours on November 18, 2007. She had been attending the Sunday drum circle with friends. The owner of the car in which she came lost her key on the beach and it was not found. The car was cited for being in the park after hours. Since the DLNR was aware of the loss of key it was not towed. Ms. Sheehan was drawn into the car ticket. Do to a misunderstanding regarding the court scheduled hearings for the two tickets Ms. Sheehan did not appear. A bench warrant was issued for $500. Ms. Sheehan appeared in court on May 15, 2008 after posting $500. She plead "not guilty" and was assigned a pretrial hearing for June 18, 2008. (Outcome of pretrial hearing click here)

Dr. George R. Harker, aka Dr Leisure, attended court with Ms. Sheehan on May 15, 2008. Harker believes that it is very clear that HRS 115 assures beach access twenty four/seven.

"Makena State Park is the most mismanaged park I have ever experienced in my fifty years as a park professional. The park is an undeveloped park which contains nothing suggested in the 1977 master park plan. Four beach access routes were carved into the area to meet the requirements of HR 115," said Harker.

Harker wrote Governor Lingle about the problems with the misinterpretation of park regulations regarding beach access on March 28, 2008. As of this posting she has not responded. The letter appears below or connect this link.

The Big Beach 1 parking area and access is clearly signed as to what it is: Beach and Shoreline Access.  The top sign is the sign prepared and posted by the Department of Land and Natural Resources. The bottom sign is the standard sign posted by the county.

This beach access is one of four designated and listed in the County's listing of beach and shoreline access.

By law beach and shoreline access can not be closed except for matters of public safety.

Beach and ocean access is a fundamental right under HRS 115. The complete text of the law is presented below or hit this link.

Harker and Sheehan will be meeting with the Public Defender the day before the pretrial hearing. When challenged on these issues the DLNR usually withdraws the charge. Then they go out and continue to misapply the law and many people pay the find because it is far cheaper than to have the day in court. If you want to help in the defraying of cost please do not hesitate to contribute to Dr. Leisure. The link is provide here.
 
 
 

  Letter to Governor Lingle which outlines a number of points regarding the Sunday night drum circle and the issue of beach access.

Honorable Governor Linda Lingle:

The issue of beach and ocean access at Makena State Park needs your attention. State law
mandates twenty four hour access to beach and ocean. Such access is viewed as a fundamental
right under HRS 115.

The beach and ocean access at Makena State Park has been closed nightly since 2004. Closure
has been as early as 6 pm and as late as 9 pm. Currently the beach and ocean accesses are closed
at 7:45 pm with gate opening at 7 am. That closure is about eleven hours or 46% of the day.

The Black Sand beach access was closed completely from October 15, 2006 until August 20,
2007. The stated reason was a need for special signs approved by the BLNR. Your effort in
getting that access opened is acknowledged and appreciated.

Individuals that have the misfortune of being on the beach access or the beach are subject to
ticket and/or arrest. Cars within the area have been ticketed and towed costing the owner
hundreds of dollars.

A number of significant groups are particularly affected. One such group is the local fisherman.
Makena is known for its ulua  and other species of edible fish. Subsistence fishing is obviously
important in sustaining a family in these days of economic decline. Yet a fisherman will be cited
and possibly arrested. Additionally I understand that some fisherman’s equipment has been
confiscated.

A second group of regular beach users is the Sunday drum circle spectator. On any given Sunday
an average of 300 to 700 people attend this event. Using 500 as an average figure that translate
to 24,000 people a year utilizing this beach and ocean access. The Hawaiian Tourism Authority
suggest that the total attendance at Makena State Park is five hundred and twenty six thousand a
year (526,000). Four point five percent (4.5%) of Makena State Park visitation occurs with this
event. (It is useful to note that the park is an undeveloped park with most of the area closed to
use. Abandon cars, barb wire, feral cat colonies, and a population of Axis deer inhabit the scrub
brush of Kiawe trees. In other words it could be said that the whole use of Makena State Park is
predicated on the beach and ocean access required by HRS 115. Park management as such is
virtually nil.)

Before 2004 the beach access gates were not closed. (Prior to 2003 gates did not even exist on
this beach access.) The park was closed but people were permitted to access the beach and ocean
through the beach accesses provided.

Prior to August of 2006 DLNR personnel were often on the beach or in the parking lot area on
Sunday evenings. In the past the presence of these personnel was often to assist individuals in
finding their way out, dealing with excessive alcohol consumption, and taking the reports on
theft of back packs. The DLNR’s presence was perceived in a very positive light.

The behavior of DLNR personnel on March 9, 2008 has become indicative of the trend since
August of 2006. Personnel were not interested in assisting people to enjoy and utilize their beach
resources but are intent on challenging people as to why they are in the park after hours. People
who often assist the beach users were told to leave the park even though their assistance in
assisting others was well known.

The beach accesses at Makena State Park are listed as such in the County Shoreline Access
Locations listing which appears at
http:/www.mauicounty.gov/departments/Planning/czmp/Shoreline_access_pts_files.ht
m
They are listed as 6) Big Beach (South lot), 7) Big Beach (North lot) and 9) Makena State Park
Black Sand),

It is certainly ironic that the very agency charged with working with the counties in establishing
and maintaining beach and ocean access throughout the state is the one most responsible for
denying that access in the Makena area. Your assistance in helping the DLNR properly interpret
their role in this matter would be deeply appreciated.
 
 

CHAPTER 115
PUBLIC ACCESS TO COASTAL AND INLAND RECREATIONAL
AREAS
Section
115-1 Findings and purpose
115-2 Acquisition of lands for public rights-of-way and
public transit corridors
115-3 Criteria for public rights-of-way
115-3.5 Restricting passage over rights-of-way
115-4 Right of transit along shorelines
115-5 Transit area and public transit corridor defined
115-6 Procedure
115-7 State and county co-sponsorship of programs
115-8 Expending agency
115-9 Obstructing access to public property; penalty
Note
Chapter heading amended by L 1977, c 164, §§§§2.
Cross References
Statewide trail and access system, see chapter 198D.
Law Journals and Reviews
Beach Access: A Public Right? 23 HBJ 65.
Case Notes
Existence of chapter does not preclude private right of action to force beach access. 65 H. 383,
652 P.2d 1130.
§§§§115-1 Findings and purpose. The legislature finds that miles of shorelines, waters, and
inland
recreational areas under the jurisdiction of the State are inaccessible to the public due to the
absence of public rights-of-way; that the absence of public rights-of-way is a contributing factor
to mounting acts of hostility against private shoreline properties and properties bordering inland
recreational areas; that the population of the islands is increasing while the presently accessible
beach, shoreline, and inland recreational areas remain fixed; and that the absence of public
access to Hawaii's shorelines and inland recreational areas constitutes an infringement upon the
fundamental right of free movement in public space and access to and use of coastal and inland
recreational areas. The purpose of this chapter is to guarantee the right of public access to the
sea, shorelines, and inland recreational areas, and transit along the shorelines, and to provide for
the acquisition of land for the purchase and maintenance of public rights-of-way and public
transit corridors. [L 1974, c 244, §§§§1; am L 1977, c 164, §§§§3]
§§§§115-2 Acquisition of lands for public rights-of-way and public transit corridors. When the
provisions of section 46-6.5 are not applicable, the various counties shall purchase land for
public rights-of-way to the shorelines, the sea, and inland recreational areas, and for public
transit corridors where topography is such that safe transit does not exist. [L 1974, c 244, §§§§2;
am L 1977, c 164, §§§§4]
[§§§§115-3] Criteria for public rights-of-way. A distance at reasonable intervals taking into
consideration the topography and physical characteristics of the land the public is desirous of
reaching is established as the maximum between public rights-of-way for the purposes of this
chapter. [L 1974, c 244, §§§§3]
[§§§§115-3.5] Restricting passage over rights-of-way. A county may restrict passage over a
public right-of-way by resolution or ordinance, provided that the resolution or ordinance sets
forth criteria for determining that the restriction is in the public interest. [L 1993, c 113, §§§§1]
§§§§115-4 Right of transit along shorelines. The right of access to Hawaii's shorelines includes
the right of transit along the shorelines. [L 1974, c 244, §§§§4; am L 1991, c 37, §§§§2]
[§§§§115-5] Transit area and public transit corridor defined. The right of transit along the
shoreline exists below the private property line which is defined as being along the upper reaches
of the wash of waves, usually evidenced by the edge of vegetation or by the debris left by the
wash of waves. However, in areas of cliffs or areas where the nature of the topography is such
that there is no reasonably safe transit for the public along the shoreline below the private
property lines, the counties by condemnation shall establish along the makai boundaries of the
property lines public transit corridors which shall be not less than six feet wide. [L 1974, c 244,
§§§§5]
[§§§§115-6] Procedure. The provisions of this chapter shall be executed under provisions of
chapter 101. [L 1974, c 244, §§§§6]
[§§§§115-7] State and county co-sponsorship of programs. The department of land and natural
resources shall enter into agreements with the council of any county providing for the acquisition
of public rights-of-way and public transit corridors pursuant to this chapter; provided that the
county shall match the funds which have been appropriated by the legislature. The development
and maintenance of the rights-of-way and public transit corridors shall be the responsibility of
the county. [L 1974, c 244, §§§§7]
[§§§§115-8] Expending agency. The department of land and natural resources shall expend all
sums appropriated for the purposes of this chapter and in accordance with section 115-7. [L
1974, c 244, §§§§8]
[§§§§115-9] Obstructing access to public property; penalty. (a) A person commits the offense
of obstructing access to public property if the person, by action or by having installed a physical
impediment, intentionally prevents a member of the public from traversing:
(1) A public right-of-way;
(2) A transit area; or
(3) A public transit corridor;
and thereby obstructs access to the sea, the shoreline, or any inland public recreational area.
(b) Physical impediments that may prevent traversing include but are not limited to the
following:
(1) Gates;
(2) Fences;
(3) Walls;
(4) Constructed barriers;
(5) Rubbish;
(6) Security guards; and
(7) Guard dogs or animals.
(c) Obstructing access to public property is a misdemeanor.
(d) Minimum fines for violation under this section shall be as follows:
(1) $1,000 for a second conviction; and
(2) $2,000 for any conviction after a second conviction.
(e) As used in this section:
"Person" means a natural person or a legal entity.
"Public recreational area" means public lands or bodies of water opened to the public for
recreational use. [L 2004, c 169, §§§§2]
 
 
 

OUTCOME PRETRIAL COURT APPEARANCE JUNE 18, 2008

Sheehan appeared in court on June 18, 2008 being represented by public defender Robert Olson. She was charged with being in a closed area (park after hours) and failure to appear (misunderstanding on efforts to reset initial court appearance resulted in bench warrant of $500).

The prosecutor offered to wave the contempt charge if she accepted the closed area ticket with a fine of $100 and costs (another $80). She declined and instead plead not guilty to the closed area issue and requested a trial. On the contempt issue she plead guilty.

The prosecutor and the public defender agreed to a plea bargain which involved dismissal of the closed area citation and a hundred dollar fine on the failure to appear. The judge accepted that arrangement and ruled accordingly.

On sentencing Sheehan mentioned to the court her efforts to change the hearing date and how the office had changed it hours unknown to her when she tried to do that. On returning the following day she was told she had to request the change forty-eight hours before and thus could not make the change at this time.

The judge recognized the inequity in the sentence and asked the prosecutor if the $100 he was seeking could include the other fees. The prosecutor indicated he had no difficulty with that.

The judge fined Sheehan $20 for failure to appear and added the additional $80 which represents other court costs.

In summary the basis for the ticket was totally ignored. It is obviously clear that the DLNR is in violation of HRS 115. The financial charges against her stemmed from the malfunctioning  of the judicial system. Additionally she had to make five trips to court house to resolve the matter. (Two trips to set hearing date, initial hearing, meeting with public defender, and finally the pretrial hearing.  Dr. Harker made three trips in support of Ms. Sheehan.)

Conclusion: If you are charged with being in the park after hours (assuming you are in the beach access corridor or the beach itself) graciously accept the ticket. It appears it will be thrown out at the pretrial hearing. Do not miss your court appearance for you will be charged with contempt of court for failure to appear.
 
 
 
 
 


FAIR USE NOTICE
      This site contains copyrighted material the use of which has not always been specifically
authorized by the copyright owner. We are making such material available in our efforts to
advance understanding of environmental, political, human rights, economic, democracy, scientific,
and social justice issues, etc. We believe this constitutes a 'fair use' of any such copyrighted
material as provided for in section 107 of the US Copyright Law. In accordance with Title 17
U.S.C. Section 107, the material on this site is distributed without profit to those who have
expressed a prior interest in receiving the included information for research and educational
purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you
wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use',
you must obtain permission from the copyright owner.




 

Addresses and other information on the current stewards of Makena.
 


Friends of Makena State Park

Friends of Makena State Park was formally formed in 2003 to assist the Hawai'i Department of Land and Natural Resources in the stewardship of  Makena State Park. If functions under the umbrella of the Church and School of International Détente which is a 501- 3c entity recognized by the Federal government and the State of Hawaii.

Consider a contribution to Doctor Leisure's Friends of Makena State Park  if you want to help defray the cost of this site and the efforts to save Makena State Park and the adjacent lands from unneeded and unwanted development.  Twenty dollars pays for the gasoline necessary to get Dr. Leisure to the park for four days. Forty dollars pays for the ink cartridge for the printer. Twenty five dollars covers the cost of the web site for one month.

Membership is open to anyone interested in the stewardship of  the unique natural resource that constitutes Makena State Park situated on the island of Maui in the Hawai'i 'i Islands. The world famous nude beach known as Little Beach is contiguous to Makena State Park.

To declare your membership and to receive the electronic newsletter of Dr. Leisure's Friends of Makena State Park click this link: LittleBeachMaui-subscribe@topica.com  and send a blank email.
 
 
 
 
 
 
 

Dr. Leisure's Friends of Makena State Park
PO Box 1137
Kihei, HI 96753
808-250-4160
 
 
 

--Dr. George R. Harker can be reached by email at drleisure1@aol.com.

Article may be reproduced with appropriate credit: drleisure.com
 
 
 

Copyright 2008, Dr. Leisure

©Copyright 2008 Dr. Leisure. All rights reserved.
 
 

Dr Leisure