By John Burnett. The Corporation Counsel has filed a motion seeking dismissal of a lawsuit filed last month against the county, Mayor Mitch Roth and Public Works Director Ikaika Rodenhurst over the closure of Waipi‘o Valley Road to all but a handful of people.
The motion, filed May 12 by Deputy Corporation Counsel Steven Idemoto, is requesting Hilo Circuit Judge Peter Kubota dismiss “with prejudice” the suit filed on behalf of a community group called Malama I Ke Kai ‘O Waipi‘o and 14 individuals, mostly recreational users of the valley. A dismissal with prejudice would legally prevent the plaintiffs from refiling the civil complaint.
A hearing on the motion is scheduled for 8 a.m. June 14 in Kubota’s courtroom.
The lawsuit against the county, Roth and Rodenhurst, filed by Hilo attorneys Steven Strauss and Christopher Bridges, claims Roth’s Feb. 25 emergency declaration closing of the steep, narrow, winding road into the remote valley near Honokaa to all but residents, landowners and farmers in the valley, was based on “a flawed preliminary geotechnical engineering evaluation” prepared by the Seattle engineering firm Hart Crowser. The plaintiffs also contend Roth’s declaration and emergency rule violate the public trust doctrine and equal protection and due process clauses of the Hawaii Constitution.
According to the plaintiffs, the Hart Crowser study — which concluded that pedestrians on Waipi‘o Valley Road have a greater than 1 in 18,000 chance of dying in a rock fall per trip, while vehicle occupants have a 1 in 170,000 chance of dying in a rock fall per trip — overestimates the risk posed to pedestrians and vehicle occupants on the road.
The plaintiffs cite a study by civil engineer Panos Prevedouros, a University of Hawaii at Manoa professor, which cites 1 in 5 million chance of a pedestrian dying of a rock fall on the road, and a risk of 1 in 17 million for a vehicle occupant.
No pedestrian deaths have been reported on Waipi‘o Valley Road, and Strauss — who is a plaintiff as well as the attorney for all other plaintiffs — characterized the Hart Crowser study as one of “the exaggerations (Roth) made to justify” his emergency order closing the valley.
Idemoto’s motion to dismiss the lawsuit said the civil complaint “fails to state a claim upon which relief may be granted.”
A memorandum in support of the county’s motion called Roth’s declaration and emergency rule “a permissible exercise of the mayor’s powers” and stated that Roth “has clear authority to limit access to roads pursuant to the county’s police powers and pursuant to statute” and that the mayor “followed proper procedure in issuing his declaration and emergency rule.”
A separate lawsuit filed in U.S. District Court by other plaintiffs — Waipi‘o Valley Artworks, Waipio Ohana Corporation, Na ‘Alapa Stables and Michael Olival — also alleging due process rights violations as well as the taking of property without compensation, was dismissed last month, at the plaintiffs’ request.
The notice of dismissal of the complaint against the county and Roth filed in federal court by Ronald Kim, a Hilo attorney representing the plaintiffs, called the action a “voluntary dismissal … without prejudice.” A dismissal without prejudice means the plaintiffs are free to refile their claim.
Email John Burnett at jburnett@hawaiitribune-herald.com.