By John Burnett. A community group suing 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 accuses the defendants in a legal document of trying “to pull a fast one on the court.”
Malama I Ke Kai ‘O Waipi‘o, in its response to the county’s motion to dismiss the lawsuit, said the county is “conflating the County Council’s nonemergency power to close county roads under (Hawaii Revised Statutes) §46-1.5(19) with the mayor’s emergency powers granted by HRS §264-1.5.”
The plaintiffs, through attorneys Steven Strauss and Christopher Bridges, argue the mayor’s authority under HRS §264-1.5 extends only to “allowing for the establishment of traffic emergency zones to provide access to an affected area, not close a county road.”
The plaintiffs’ memorandum also alleges the mayor’s Feb. 25 emergency declaration closing the road to all but the valley’s residents, landowners and farmers, legally required a hearing within 24 hours afterwards before the county’s director of transportation, which apparently wasn’t done.
“Even more fatal to the county defendants’ argument is the Hawaii County Code §24-8(2), which provides that the County Council decides when to close roads to pedestrians,” the document states.
The lawsuit claims Roth’s closure is based on “a flawed preliminary geotechnical engineering evaluation” by Seattle engineering firm Hart Crowser. The plaintiffs also contend Roth’s declaration and emergency rule violate the public trust doctrine as well as the equal protection and due process clauses of the Hawaii Constitution.
The Hart Crowser study concluded that pedestrians on Waipi‘o Valley Road have a greater than 1 in 18,000 chance of dying in a rockfall per trip and that vehicle occupants have a 1 in 170,000 change of dying in a rockfall per trip.
The plaintiffs point to a study by Panos Prevedouros, University of Hawaii at Manoa civil engineering professor which cites a 1 in 5 million chance of a pedestrian dying of a rockfall on the road and a risk of 1 in 17 million for a vehicle occupant.
The memorandum filed Monday claims Roth “exaggerated and misstated the conclusions” of the Hart Crowser study and recommendations by the county’s Department of Public Works and “declared an emergency when none exist.”
The defendants seek dismissal of the suit with prejudice, meaning it cannot be refiled. The county’s motion to dismiss said the plaintiffs’ civil complaint “fails to state a claim on which relief may be granted.”
A hearing on the motion to dismiss is scheduled for 8 a.m. June 14 before Hilo Circuit Judge Peter Kubota.
Email John Burnett at jburnett@hawaiitribune-herald.com.