By John Burnett.
A community organization has filed a lawsuit against the county, Mayor Mitch Roth and Public Works Director Ikaika Rodenhurst, alleging the closure of Waipi‘o Valley Road to all but a handful of people is unlawful.
The civil complaint was filed Friday in Hilo Circuit Court by Hilo attorneys Steven Strauss and Christopher Bridges on behalf of Malama I Ke Kai ‘O Waipi‘o, David Anderson, Sarah Anderson, Winter Anderson, Heather Nahaku Kalei, Ariel Tergeoglou, Dean Edwards, Sally Lundburg, Keith Tallett, Roland Shackelford, Jerry Bess, Joel Gollaher, Steven Roberson, Steven Roberson and Strauss.
Strauss is the lawyer of record for all plaintiffs but himself. Bridges is Strauss’ lawyer.
On Feb. 25, Roth issued a traffic emergency zone declaration closing Waipi‘o Valley Road to all but residents, landowners and farmers in the valley, stating that “upon scientific information and expertise available, Waipi‘o Valley Road is in imminent threat of slope and roadway failure threatening the health, safety, and welfare of the people.”
The declaration prohibits visitors, effectively shutting down tourism, voluntary stewardship programs, camping and transient vacation rentals in the valley.
The lawsuit claims Roth relied on “a flawed preliminary geotechnical engineering evaluation prepared by the engineering firm Hart Crowser” of Seattle in making his decision to shut down the steep, narrow, winding access road — which is basically accessible only by four-wheel drive vehicle, on foot or by horseback.
That study, the lawsuit claims, 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 risk of 1 in 170,000 chance of dying from a rock fall per trip.
According to the suit, the methodology used in Hart Crowser’s study is misapplied. The plaintiffs cite a study by civil engineer Panos Prevedouros, a University of Hawaii at Manoa professor, which cites a risk of 1 in 5 million chance of a pedestrian dying in a rock fall on the road, and a risk of 1 in 17 million for a vehicle occupant.
“I committed to seek invalidation of this void emergency order at the beginning, and then other people wanted to participate. So, even if I didn’t have any other plaintiffs, I would’ve brought the lawsuit myself,” Strauss, who said he has surfed in Waipi‘o Valley since 1990, told the Tribune-Herald Monday. “Then, this community association was formed with a lot of like-minded individuals. And there are people saying, ‘Hey, if it’s unsafe for us, why isn’t it then unsafe for farmers and tenants and landowners in the valley?’
“And then, as you look closer into what constitutional law in the state provides, and the defects in the mayor’s emergency order, and the exaggerations that he made to justify it, you can see that this is all wrong.”
Malama I Ke Kai ‘O Waipio’s website at oceanaccesswaipio.org contains testimonials from several plaintiffs and other individuals about what Waipi‘o means to them.
Tergeoglou, a plaintiff, called the valley “the place to disconnect from the things that are not important, and reconnect with the things that are. “
Tallett said Waipi‘o “connects me to my community, environment and cultural practices” and “informs me about my culture, past and present.”
“Waipi‘o is important to my family because it is part of what makes us. It’s who we are,” said U‘ilani Macabio, a social studies and Hawaiian language teacher at Honokaa High and Intermediate School, surfer and hula dancer. “The ocean is our livelihood, and Waipi‘o is one of the nearest access to the ocean for my family. It allows us to live the lifestyle that we need to survive in the modern world.”
Strauss called Waipi‘o “a place of sacred recreation” for Hawaiians and others.
“This is a place that, for many people, is where their happiness derives from,” he said. “And it should not be just willy-nilly, arbitrarily closed because the mayor doesn’t understand how it’s used, what its tradition is, what it means to people, and what the actual conditions of the road are.”
Cyrus Johnasen, spokesman for Roth, noted it’s county policy not to comment on ongoing litigation, but added the mayor would like to say that he “understands the importance of Waipi‘o Valley to our community, particularly those of Native Hawaiian ancestry, and looks forward to addressing the safety issues associated with the roadway in a timely and meaningful fashion.”
Strauss said a hearing has been set for 8 a.m. June 2 before Hilo Circuit Judge Peter Kubota on a petition for a preliminary injunction and summary judgment in the case.
Email John Burnett at jburnett@hawaiitribune-herald.com.