2022 Early Saturday Closure & Gate - DLNR Criminal Acts Endorsed by the Ombudsman

Of all the DLNR’s criminal acts against Little Beach, why choose the 4PM Early Saturday Closure?  Because it was blatantly wrong and without reason, other than malice - malice directed at regular Little Beach users (not the Sunday drum circle crowd).  A private citizen battled the DLNR and the DLNR could only provide flimsy excuses related to the Sunday drum circle crowd.  Clearly Saturday was no different than Friday which had the same 7PM closing time as Big Beach.  The private citizen filed a complaint with the Hawaii State Ombudsman.  The Ombudsman is independent, serving the State Legislature, and charged with investigating administrative government agencies malfeasance.

The Ombudsman found in favor of the DLNR - with no explanation.  This did not smell right.  Friends of Little Beach filed a more comprehensive 5-page formal complaint that gave the DLNR no way out.  [Full text HERE.]  We broadened the complaint to include the illegal gate, which was the tool used to effect the illegal act.   The preamble explained the parties involved and the history of DLNR abuse-of-power that led to Early Saturday Closure - followed by the complaint:

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The Complaint

1. At no time since the January 5 2021 closure has there been a lawful justification for Early Saturday Closure of Little Beach.
   
   
2. Early Saturday Closure is an extension of the illegal 9 week closure that followed the DLNR closure announcement.  This announcement references only the Drum Circle gathering and repeats “Sunday” 6 times.  There are no references to “Saturday.”  There has never been a Drum Circle Gathering on Saturday.  The purported justification was an already past breach of Covid-19 Emergency Rules by the Drum Circle gathering.
   
   
3. At Little Beach, Saturday has identical circumstances to Friday which has 7PM closure.
   
   
4. The DLNR’s March 3 2022 letter to OIP had an attachment of the DLNR Feb 28 email to Ombudsman.  In that, the Subject heading states “Saturday” and the DLNR claimed it provided justification for Early Saturday Closure.  It provided none.  It provided information on isolated incidents concerning the Drum Circle along with an alleged danger to the public which was all about Sunday evenings and unrelated to Saturday.  It was a smoke screen.
   
   
5. Also related to Sunday, the email has references to the operating difficulties and costs of law enforcement.  That’s the DLNR’s problem, that cannot be resolved by resorting to illegal abuse of power.
   
   
6. The email references a since-cancelled Covid-19 rule, limiting gatherings without social distancing to 25 persons.  The DLNR can try to spin it that everyone on the same beach constitutes a single gathering - but that is nonsense.  For certain, there have never been any large gatherings on Little Beach on a Saturday.
   
   
7. The same email states the DLNR’s legal authority (written by the DLNR):
   HAR §13-146-4 Closing of areas. (a) The board or its authorized representative may establish a reasonable schedule of visiting hours for all or portions of the premises and close or restrict the public use of all or any portion thereof, when necessary for the protection of the area or the safety and welfare of persons or property, by the posting of appropriate signs indicating the extent and scope of closure. All persons shall observe and abide by the officially posted signs designating closed areas and visiting hours.
   
   
8. HAR §13-146-4 makes it very clear that the ONLY conditions for “closing of areas” or “schedule of visiting hours” is “when necessary for the protection of the area or the safety and welfare of persons or property.”  It is illegal for the DLNR management to restrict hours for their own convenience or to reduce work load, reduce overtime pay, eliminate police performing duties in the dark (like they do everywhere), or for their personal rage, vindictiveness and prejudices.
   
   
9. HAR §13-146-4 proves that Early Saturday Closure is illegal because there are no circumstances that meet the criteria “when necessary for the protection of the area or the safety and welfare of persons or property.”  Saturday has the same circumstances as Friday - which is beach recreation only.  This is abuse of power.
   
   
10. Early Saturday Closure pushes users of beach recreation from Little Beach to Big Beach, the most dangerous beach in the State for spinal injuries just at a time when the lifeguards are packing away their gear ready for a 4:30PM departure.  Big Beach is much more dangerous than Little Beach in the period 4PM to 7PM.  This shows the DLNR management’s true disregard for “the safety and welfare of persons.”  It should also be noted that until recently, the DLNR had the lifeguards removed from Big Beach for 18 months with no regard for “the safety and welfare of persons.”  Enroute to Little Beach during that 18 months, we have passed people with broken backs and legs and their families in anguish.  It takes a minimum of 30 minutes for a first responder to reach Big Beach.
    
    
11. HAR §13-146-4 also proves that the method of Early Saturday Closure is also illegal because the permitted action is “by the posting of appropriate signs indicating the extent and scope of closure.”  HAR §13-146-4 does not permit obstruction of the Registered Lateral Shoreline Access Corridor by installation of an illegal gate.  This is abuse of power.
    
    
12. From the DLNR Office of Conservation and Coastal Lands: 
    “Shoreline public access is an important common law right that is shared by local residents and visitors alike.”   “OCCL is the lead agency with authority for maintaining public access along Hawaii’s shorelines.”   “Legislative statutes governing access can be found in Hawaiʻi Revised Statutes HRS §115, …”
    
    
13. The DLNR management, fully conscious of State Law has, with deliberation and malice, installed the gate and kept it in place for 15 months - a clearly specified illegal act:
    HRS §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: (3) A public transit corridor; or (4) A beach transit corridor; and thereby obstructs access to and along 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;
    (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.
    
    
14. The open Gate reduces the access width from 9 ft to 3 ft which is also an illegal act:
    HRS §115-5  Beach transit corridor defined. (a) The right of transit shall exist seaward of the shoreline and this area shall be defined as a beach transit corridor. For purposes of this section, "shoreline" shall have the same meaning as in section 205A-1.
    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 may establish along the makai boundaries of the property lines public transit corridors which shall be not less than six feet wide.
    
    
15. Maui County is required to maintain the legal registry of Shoreline Access Corridors aka Public Transit Corridors or Beach Transit Corridors. Ref:
    Maui County Shoreline Access Inventory Update.pdf
    Refer to pages 11 and 12.
    Makena State Park Shoreline Access Corridor ID #s are 6,7,8,9:
    ID # 6 (vertical) is Big Beach (via South Parking Lot) - alternative name Oneloa.
    ID # 7 (vertical) is Big Beach (via South Parking Lot) - alternative name Oneloa.
    ID # 8 (lateral) is Mo’oiki Beach - alternative name Little Beach
    ID # 9 (vertical) is Black Sand Beach - alternative name Oneuli.
    Note: Little Beach is named Mo’oiki by Maui County because it is in the Mo’oiki District, Pu’u Ola’i by the DLNR because it is adjacent to the Pu’u Ola’i cinder cones, and Little Beach by the rest of the world.

Required Corrective Action Under Law

1. Cease illegal early 4PM Saturday closure.
2. Update Park hours signage.
3. Remove the illegal gate.
   
   

Ombudsman’s Response to Friends of Little Beach Complaint
There was a lot of wiggling.  [Full text HERE] 

1. We had presented a new “Friends of Little Beach formal complaint.”  He tangles up our complaint with the original complaint - the one where the Ombudsman’s findings did not smell right.
2. Having read our complaint, detailing criminal acts that were not presented in the original complaint, he falsely asserts that we provided “no new information that would warrant another investigation.”
3. He re-states his “determination that the DLNR did not act unlawfully or unreasonably.”
4. He refuses to respond to any further communication on this matter.
   
   

The Fight for Justice Will Continue
The Ombudsman has endorsed the criminal actions of the DLNR that cause harm to the public.  Is this just good ol’ Hawaii government corruption like we keep reading about, or does the Ombudsman lack the courage to go up against the DLNR - after what happened to the State Auditor who's investigation revealed DLNR financial mismanagement.  Undeterred, Friends of Little Beach responded to set the record straight, as follows.  [Original HERE.]

PO Box 1097, Kihei, HI 96753

The Office of the Ombudsman
State of Hawaii
complaints@ombudsman.hawaii.gov
Attn. Mr. Robin K. Matsunaga

Your ref: #22-03874(MI)

April 11, 2022

Dear Mr. Matsunaga,

Complaint re. Illegal Early 4PM Saturday Closure of Little Beach by DNLR

Ref. your letter dated April 4 2022: Your statement that you will not be responding to further correspondence is noted.  You have asserted that The Friends of Little Beach complaint provided “no new information that would warrant another investigation,” subsequent to Mr. E■■■■’s complaint.  That is not correct.

For the record, the Friends of Little Beach complaint included the following new information:

1. The justification provided for early Saturday closure to Mr E■■■■ and the Ombudsman by the DLNR was only relevant to Sunday, not Saturday, and therefore misleading.  HAR §13-146-4 proves that Early Saturday Closure is illegal because there are no circumstances that meet the criteria “when necessary for the protection of the area or the safety and welfare of persons or property.”  This was highlighted in yellow, so the DLNR’s abuse of power would not escape your notice.
   
2. The early Saturday closure drives the public from Little Beach to Big Beach, which is a far more dangerous beach, at a time when the lifeguards are leaving.  In doing so “the safety and welfare of persons” is reduced by the DLNR’s action.
3. Early Saturday closure is enforced by locking a gate, and obstructing a registered shoreline access corridor, which is not permitted under HAR §13-146-4 and illegal under HRS §115-9.  The letter of the law was quoted and the key words highlighted in yellow, so the DLNR’s criminal act could not escape your notice.
   
4. The gate obstructing a registered shoreline access corridor, when open, continues to be illegal under HRS §115-5.  The letter of the law was quoted and the key words highlighted in yellow, so the DLNR’s criminal act could not escape your notice.
5. The scene of the criminal act was identified by reference to the Maui County Shoreline Access Inventory, pages 11 & 12, Shoreline Access Corridor #8.

No person or legal entity is above the law.  We are extremely disappointed that Office of the Ombudsman “did not find that the DLNR acted unlawfully or unreasonably.”  You have essentially endorsed the criminal actions of the DLNR that cause harm to the public, that the law is intended to protect.

Please include this letter in the case file.

Sincerely,
Bill Watts
Director and Secretary
Friends of Little Beach