By John Burnett. A county attorney told a judge Tuesday that “it’s not the court’s place and it’s not the plaintiffs’ place” to decide whether Mayor Mitch Roth exercised his emergency powers in a lawful manner when he closed Waipi‘o Valley Road to all but residents, tenant farmers and emergency responders.
Deputy Corporation Counsel Steven Idemoto told Hilo Circuit Judge Peter Kubota that Roth “understands the importance of recreational use” of the valley’s beach and waters by a group called Malama I Ke Kai ‘O Waipi‘o and others, but “public safety has to take priority.”
The county last month filed a motion seeking dismissal of a lawsuit filed by the group and 14 individuals, including the group’s attorney, Steven Strauss. Idemoto’s remarks came during a hearing on that motion.
Idemoto said the mayor “found that imminent action was needed” when he issued an emergency declaration Feb. 26.
“While plaintiffs would like the court to substitute their judgment (with) Mayor Roth’s judgment, courts are exceedingly clear that issues of public safety are entrusted to elected officials,” Idemoto told the judge. “Under the case law, plaintiffs’ claim is subject to rational basis. Under this standard, the status by elected officials may be based on rational speculation unsupported by evidence or empirical data. … So, in this case, Mayor Roth’s actions clearly, easily fit in this circumstance.”
The plaintiffs, mostly recreational users of the valley such as surfers, swimmers and anglers, contend Roth’s emergency declaration closing the steep, narrow, winding road into the remote Hamakua valley was based on “a flawed preliminary geotechnical engineering evaluation” prepared by the Seattle engineering firm Hart Crowser.
The lawsuit, which names as defendants the county, Roth, and Ikaika Rodenhurst, the former Department of Public Works director who stepped down Monday, 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 rockfall per trip, while vehicle occupants have a 1 in 170,000 chance of dying in a rockfall 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 emeritus, which cites 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.
Strauss characterized the study as one of “the exaggerations (Roth) made to justify” his emergency order closing the valley. He filed a declaration by retired Public Works supervisor Mack Asato stating he was unaware of any deaths or injuries caused by rockfalls on the road.
“In this case, we have a road which has, according to Mack Asato in his 35 years as the supervisor and the worker that was responsible for clearing those landslides, nobody injured, nobody killed as a result of rockfall or landslide,” Strauss told the judge. “In the four months since the mayor’s emergency order, (there is) no evidence of any deaths or injuries on that road.
“So, it’s a dangerous road? Yeah, OK, it’s a dangerous road,” Strauss continued. “It’s not up to what standards would be. But Hart Crowser was not interested in closing the road in their engineering report. They were interested in mitigating dangers. And how were they going to do that?
“As pointed out by Mack Asato, they’re going to bring heavy equipment on this road that the county now claims is in imminent danger of slope failure, and the road bed is in imminent danger of failure — they’re going to bring heavy equipment and start hammering at those rocks above the roadway.
“… Any projection on this being done in days, weeks or months to meet this so-called emergency? No, we’re going to study it for another six months. We’re going to close this road to all but a few for up to three years.”
Kubota asked questions of both attorneys, sometimes pointed ones, including one exchange with Idemoto over how the decision was made to limit access to the road.
“There’s a declaration of imminent danger. And from what I’ve seen, I’ve not seen any evidence of imminent danger. So, where’s the imminent danger from? Where did that language come from? It wasn’t in the Hart Crowser report,” Kubota said.
“The Hart Crowser report is not mentioned in the declaration. And the mayor made his decision based on conversations with Ikaika Rodenhurst,” Idemoto replied.
“So, other than that one report, what are the grounds? Tell me. … What did they identify as the problem … that caused this determination to be made?” Kubota asked.
“It’s a global review of the road. This is just a determination that they made,” Idemoto answered. “And the county would argue that it’s not the court’s place and it’s not the plaintiffs’ place to look at this decision in that … detail. You know, the basic thing that should be looked at is whether there’s a danger.”
“You know, I am troubled by an absolute right of power by the stroke of a pen for the executive branch to make any decision like that,” Kubota said. “And I understand there’s great deference, because the mayor has to make decisions based on his position that are given to him by these emergency powers. But you can’t just sign away something and say there’s imminent danger unless there’s some provision or some evidence of imminent danger. And I don’t see it.”
Kubota scheduled a hearing for 8 a.m. June 21 for a decision on the county’s motion to dismiss the suit.
Email John Burnett at jburnett@hawaiitribune-herald.com.