1. FIRST CIRCUIT C.[}URÏ
sTAtf '0F i{r,HÂil
McCORRISTON MILLER MUKAI MacKINNON lr_p i.ii-Í. I)
ROBERT G. KLEIN #1192-0 ?ûll HAR 17 Pll l¡ 30
RANDALL K. SCHMITT #3752-0
JORDON J. KIMURA #9182-0 F. 0TôKE_ __
Five Waterfront Plaza,4th Floor OI.E.RK
500 Ala Moana Boulevard
Honolulu, Hawai'i 968 I 3
Telephone: (808) 529-7300
Facsimile: (808) 524-8293
Attorneys for Plaintiff (Civiì No. 07-l -1122-06)
GOLD COAST NEIGHBORHOOD ASSOCIATION
and Defendants (Civil No. l0-l-0S83-04)
TROPIC SEAS,INC.; THE ASSOCIATION OF APARTMENT
OWNERS OF DIAMOND HEAD BEACH HOTEL, INC.;
DIAMOND HEAD APARTMENTS, LTD.; C S APARTMENTS,
LTD.; THE ASSOCIATION OF APARTMENT OWNERS OF
2987 KALAKAUA CONDOMINIUM; TAHITIENNE,
INCORPORATED; THE ASSOCIATION OF APARTMENT
OWNERS OF 3003 KALAKAUA, INC.; THE ASSOCIATION
OF APARTMENT OWNERS OF 3OI9 KALAKAUA. INC.
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAI'I
GOLD COAST NEIGHBORHOOD ) CIVIL NO. O7-1 -1122.06 (VLC)
ASSOCIATION. ) (Declaratory Judgment)
)
Plaintifl, ) PLAINTIFF GOLD COAST
) NETGHBORHOOD ASSOCTA'|rON AND
vS. ) DEFENDANTS TROPIC SEAS, INC., THE
) ASSOCTATION OF APARTMENT OWNERS
) OF DIAMOND HEAD BEACH HOTEL, INC.,
STATE OF HAWAI.I; DOE ) DIAMOND HEAD APARTMENTS, LTD., C S
GOVERNMENTAL ENTITIES I-IO; DOE ) APARTMENTS, LTD, THE ASSOCIATIoN
GOVERNMENTAL AGENCIES I -10, ) OF APARTMENT OWNERS OF 2987
) KALAKAUA CONDOMINIUM,
Defendants. ) TAHITIENNE,INCORPORATED,THE
) ASSOCTATTON OF APARTMENT OWNERS
) oF 3003 KALAKAUA,INC., AND THE
) ASSOCTATTON OF APARTMENT OWNERS
) oF 3019 KALAKAUA, TNC'S TRIAL BRIEF:
) CERTIFICATE OF SERVICE
I

2. STATE OF HAWAI'I BY ITS ATTORNEY crvll. No. 10-1-0888-04 (vLC)
GENERAL, (Declaratory Judgment)
Plaintiff,
vs.
)
TROPIC SEAS, INC.; THE ASSOCIATION OF )
APARTMENT OWNERS OF DIAMOND )
HEAD BEACH,INC.; OLIVIA CHEN LUM, )
trustee of the Olivia Chen Lum Revocable Living)
Trust; CLARENCE KWON HOU LUM, trustee )
of the Clarence Kwon Hou Lum Trust and trustee)
under the Will and Estate of Chow Sin Kum )
Lum; JEANNE S. J. CHAN and HOWARD N. )
H. CHAN, trustees of the Jeanne S. J.Chan )
TruSt; DIAMOND HEAD AMBASSADOR )
HOTEL, LTD.; DIAMOND HEAD )
APARTMENTS, LTD.; C S APARTMENTS, )
LTD.; THE ASSOCIATION OF APARTMENT )
owNERS OF 2987 KALAKAUA )
CONDOMINIUM; TAHITIENNE, )
INCORPORATED; THE ASSOCIATION OF )
APARTMENT OWNERS OF 3OO3
KALAKAUA, INC.; THE ASSOCIATION OF
APARTMENT OWNERS OF 3019
KALAKAUA, INC.; JOHN DOES 1-20; DOE
CORPORATIONS 1 -20: DOE PARTNERSHIPS)
1-20; DOE ASSOCIATIONS 1-20, DOE
GOVERNMENTAL AGENCIES 1-20; AND
DOE ENTITIES 1-20.
Defendants.
Trial: March 22,2011
Judge: The Honorable Virginia L. Crandall
216171.4

3. TABLE OF CONTENTS
Page
r. TNTRODUCTION .................... I
II. FACTUAL BACKGROI.IND .....................2
A. Property and Easements........... .......3
B. History of State's Position on Seawall-State Policy in 1975 .............4
C. State Policy and Seawall Work Between l98l and 1982......... ............ 6
D. State Policy and Seawall Work Between 1982 and 1983......... ............ 8
E. State Policy and Seawall Work Between 1983 and 1985......... ............ 8
F. State Policy and Seawall Work Between 1992 and 1993......... .......... l0
G. State Action on the Seawall in 1999 ............... I I
H. State Policy in2002-2003 and the Sea Ladder Easement.. ............-.-..12
. I. Legislative Action....-. ................... 13
III. DISCUSSION _.......... .............. 14
A. The State Has Repeatedly Admitted Its Duty to Keep the Seawall in Good
and Safe Condition for Travel.. .....14
B. The Seawall is a State Public Highway and the State is Responsible for its
Maintenance.............. .................... 16
l. Review of the Relevant State and Federal Case Law. .........-,.17
2. Applying HRS Section264-1, Levy, andJones to the Seawall ...........-....21
C. In the Alternative, At a Minimum, the State Holds a Prescriptive Easement
Over the Seawall and, Therefore, Has a Responsibility for its Maintenance.-.....23
IV. REBUTTAL OF THE STATE'S DEFENSES............... ..............24
A. There is no Public Access to the Seawall .......24
B. The State is not Responsible for the Seawall Adjacent to Properties
Registered in Land Court ..........-...26
C. Hawaii's Constitution Mandates Public Access ...............27
l. Public Trust Doctrine... .....27

4. TABLE OF AUTHORITIES
Page(s)
Cases
Akau v. Olohana Corp.,
65 Haw. 383,652P.2d1130 (1982).......... .................29
Appl ication of Ashford,
50 Haw. 374,440P.2d76 (1968) .29,29,30
Application of Kelley,
50 Haw. 567, 445 P.2d 538 (1968) ........... l8
Bishop v. Mahiko,
35 Haw. 608 (Haw. Terr. 1940).......... .-....29
County of Hawaii v. Sotomura,
55 Haw. 176,517 P.zd 57 (1973) .............28
Diamond Head v. State of Haw.. Bd. of Land & Natural Res.,
112 Hawai'i 16l, 145 P.3d 704 (2006) 14,29
Illinois Central R.R. v. Illinois,
146 U.S. 387 (1892)......-... ......28
In re Banning,
73 Haw.297,832P.2d724 (1968) ........... t9
In re Waiola O Molokai. Inc.,
103 Hawai'i 401,83 P.3d 664 (2004) .......29
Jones v. Halekulani Hotel. Inc.,
557 F.2d 1308 (9th Cir. 1977) passim
King v. Oahu Railway & Land Co.,
1l Haw. 717 (Haw. Terr. 1899).......... ._....28
Levy v. Kimball,
50Haw.497,443P.2d142 (1968) ....passim
Martin v. Waddell,
4l u.s.367 (1842)...._..... ........28
McBryde Sugar Co. v. Robinson,
54 Haw. 174, 504 P.2d 1330 (l 973) .......... ................. 30
2t6t7t 4 iii

5. State v. Zimring,
52 Haw. 472,479 P.2d202 (1970) ............ 30
Statutes
Haw. Rev. Stat. 5 264-l
Haw. Rev. Stat. $ 26a-l(c). .....17,lg,Z3
Haw. Rev. Stat. ç 264-2 .... 17
Haw. Rev. Stat. ç 520-7 ....20
Haw. Rev. Stat. Ch. 115............ ....25.27
Haw. Rev. Stat. Ch.264..... ................. 14
Haw. Rev. Stat. Ch. 520........... ...........20
Haw. Rev. Statu. g I l5-l ....................25
Other Authorities
Access to Beach in Hawaii: "A Social Necessity". l0 Haw. B.J. 3, l5 (1973) .........30
Hawaiian Beach Access: A customar-v Right, 26 Hastings L.J. Bz3, g3g (1975)....................... 30
2t6171.4
lv

6. i''

7. PLAINTIFF GOLD COAST NEIGHBORHOOD ASSOCIATION AND DEFENDANTS
TROPIC SEAS, INC., THE ASSOCIATION OF APARTMENT OWNERS OF DIAMOND
IIEAD BEACII IIOTEL, fNC., DIAMOND I-IEAD APARTMENTS, LTD., C S
APARTMENTS, LTD, THE ASSOCIATION OF APARTMENT OWNERS OF 2987
KALAKAUA CONDOMINIUM, TAHITIENNE, INCORPORATED, THE ASSOCIATION OF
APARTMENT OWNERS OF 3OO3 KALAKAUA, INC., AND THE ASSOCIATION OF
APARTMENT OV/NERS OF 3OI9 KALAKAUA. INC'S TRIAL BRIEF
Plaintiff Gold Coast Neighborhood Association, and Defendants Tropic Seas, Inc., the
Association of Apartment Owners of Diamond Head Beach Hotel,Inc., Diamond Head
Apartments, Ltd., C S Apartments, Ltd., the Association of Apartment Owners of 2987 Kalakaua
Condominium, Tahitienne,Incorporated, the Association of Apartment Owners of 3003
Kalakaua, Inc., and the Association of Apartment Owners of 3019 Kalakaua,Inc. (collectively,
"GCNA") submit the following Trial Brief detailing the key facts and legal analysis for the
purpose of this Court making a dispositive decision in this matter.
I. INTRODUCTION
This case arises from a dispute between the GCNA and the State of Hawai'i (the "State")
pertaining to whether the State is responsible, legally and f,rnancially, for the seawall on the
Waikiki coastline along Kalakaua Avenue near Diamond Head (the "Seawall").I The members
of the GCNA--owners of property bordering the Seawall-maintain that the State is responsible
for the Seawall, the State argues that it has no such duty. GCNA will detail herein the evidence,
along with state statutes, state and federal case law, and the State's own past admission of
responsibility for maintenance of the Seawall, to prove that the State clearly is responsible for the
Seawall in its use as a public thoroughtàre.
'
The Sear¡,all is located in the City and County of Honolulu, State of Hawai'i, and the
Seawall at issue in this case borders the property identified by Tax Map Key nos. 3-l-032:030,
029,028,027,026,004, 003, 002, 001 and 3-l-033: 0l l, 009. See Stipulation of Facts tf 3.
2t6t1t .4

8. II. FACTUAL BACKGROUND
The State has acknowledged its responsibility regarding the Seawall on a virtr-rally
continuous basis for over 50 years as a blatant admission of this duty, and the State has repaired
or contemplated repairing the Seawall on several occasions in the past. Indeed, the policy of past
administrations of this State, with the exception of the administration under Governor Linda
Lingle, was to repair seawall walkways for the safety of the public. There are records dating
back to the early 1980s which show that the State not only believed that the Seawall was heavily
used as a public thoroughfare, as well as access to the ocean for surfers, swimmers and
fisherman, but that the State was responsible for the upkeep and safety of the Seawall.
The GCNA is a non-profit incorporated organization doing business in the City and
County of Honolulu and is comprised of individuals and organizations that own real property
along Kalakaua Avenue on the Waikiki coastline in the City and County of Honolulu, State of
Hawai'i.2 See Stipulation of Facts (*SOF') !f 1. The Seawall was originally built by unknown
t The following organizations and/or incorporated entities are members of the GCNA:
a. Tropic Seas, Inc., the governing organization for a cooperative identified by Tax
Map Key ("TMK") No. 3-l-032:030;
b. The Association of Apartment Owners of Diamond Head Beach Hotel, Inc., the
governing organization for a leasehold identified by TMK No. 3-1 -032:029;
c. Diamond Head Ambassador Hotel, Ltd., the governing organization for the
cooperative identified by TMK Nos. 3-l-032:028,027 and 026:
d. Diamond Head Apartments, Ltd., the governing organization for a cooperative
identified by TMK No. 3-l-032:004;
e. C S Apartments, Ltd., the governing organization for a cooperative identified by
TMK No. 3-l-032:003
f. The Association of Apartment Owners of 2987 Kalakaua Condominium, the
governing organization for the condominium identified by TMK No. 3-l -032:A02;
7t617 t.1

9. private parties 80 to 100 years ago. See SOF ![22. For at least the last 55 years, the Seawall has
been used as a thoroughfare for public travel from one portion of Waikiki beach to another.
Declaration of June Anderson ('(Anderson Decl.") !f 4. One Gold Coast resident, June
Anderson, has lived at Diamond Head Apartments for over 37 years, but began regularly using
the Seawall as a walkway over 55 years ago. Anderson Decl. f 3- 5. For at least 50 years,
persons living in properties fronted by the Seawall have used-and still use-the various
portions of the Seawall relevant to this matter as a thoroughfare and to access the water in front
of the properties fronted by the Seawalls. See SOF ![23. Further, during this same 50 year
period, the Seawall has been used by swimmers, fishermen, and beachgoers to access the water
along the Gold Coast area of Waikiki. See Anderson Decl. fl 5.
A. Property and Easements
All of the properties bordering the Seawall and relevant to this action were originally
granted to one "Pehu" during the Mahele in I 848. See Disctosure of Expert Testimony-
Ernest M. Collins, Joint Exhibit ("J")-19 at 1. The lands subject to this suit are all in Apana 3,
identified and described as "Lele of Kekio, called Kapua, situate in Waikiki kai." See Exhibit J-
19 at2. Royal Patênt No. 5667, Apana 3, indicates that the original makai boundary was along
the sea. See id. The properties that are now TMK Nos. 3-1-032:030 (Tropic Seas, Inc.), :029
(Diamond Head Beach Hotel), :028 (the first of three lots of Diamond Head Ambassador Hotel),
g. Tahitienne, Incorporated, the goveming organization for the cooperative
identified by TMK No. 3-1-032:001;
h. The Association of Apartment Owners of 3003 Kalakaua, Inc., the governing
organization for the condominium identified by TMK No. 3-l-033:01l;
i The Association of Apartment Owners of 3019 Kalakaua,lnc., the governing
organization for the condominium identified by TMK No. 3-l -033:009.
See SOF !J2.
216t7 t.1

10. i'
and:027 (the second of three lots of Diamond Head Ambassador Hotel) are each a portion of the
property that was registered in the Land Court in 1904 pursuant to Land Court Application No.
13 of Ida Tenney Castle. See id. The properties that are now TMK Nos. 3-l-032026 (the third
of three lots of Diamond Head Ambassador Hotel), :004 (Diamond Head Apartments), :003
(Coral Strand Apartments), :002 (2987 Kalakaua), and :001 (The Tahitienne) are each a portion
of the property that was subdivided in 1910 as shown on the Plan of W. G. Irwin Lots, prepared
by Arthur C. Alexander, surveyor, in August 1910. See id. The properties that are now TMK
Nos. 3-l-033:01I (3003 Kalakaua) and :009 (3019 Kalakaua) are all or portions of Lots 73,J2,
andTl of the "Diamond Head Terrace" as shown on the Map of that property filed in the Bureau
of Conveyances as File Plan 214 and dated April2, 1921. See Exhibit J-l9 at 3.
Since at least 1960, the property designated as TMK No. 3- I -033 :009 (3019 Kalakaua)
has been subject to "[a] perpetual easement of right of way for pedestrians only over, across and
along the seawall along the highwater mark at seashore as designated in and by the third course
of the description of the premises." See SOF f[25. A survey map of the properties and their
makai borders is found at Exhibit J-24, and a full history of each parcel of property is found at
Exhibit J-l9.
B. History of State's Position on Seawall-State Policv in 1975
In a letter dated February 27, 1975; Deputy Attorney General Wallace W. Weatherwax
commented to Christopher Cobb, the Director of the Department of Land and Natural Resources,
State of Hawaii ("DLNR"), about the "Seawall Right of Way" for TMK Nos. 3-l-033:002 and
053. See Exhibit J-2. Although these two properties are not the subject to this lawsuit, they are
along the same stretch of seawall, and Weatherv¿ax's discussion of the policy regarding seawall
maintenance and right-of-way is applicable and informative on the issues in this matter. The
purpose of the letter was to determine "whether or not the State has-the responsibility to maintain
7t6t'l | .1

11. and improve a public right of way which passes over a seawall located within the above cited
properties; and, further, that if such responsibility exists, with what State agency would the
responsibility lie." See id. at 1. The letter further notes that "during periods of high tide, [the
seawall] is the only means of right of way along the shoreline other than through the water." See
id, at 2. This was a clear admission. There was no question expressed by the State's Chief
Legal Agency about the State's duty. The only question was which of the State's agencies was
responsible.
The way that the State dealt with these two sections of the seawall along Waikiki
exemplifies the way that the State viewed the public's use of the seawall. The memorandum
explains that, by way of quitclaim deed dated December 19, 1930, the then-Territory conveyed
whatever interest it had in the seawall and a filled area of I ,3 l9 square feet mauka of the seawall
to the abutting property owner. See Exhibit J-Z at l. However, the Territory made sure to
reserve a pedestrian public riqht-of-way over. along and across of the seawall. See id. The
Territorial government understood the importance of the seawall as a public right-of-way and,
when given the chance, made sure to reserve public easements over the Seawall. Similar to these
properties, the State reserved a public easement ove¡ TMK No. 3-l-033:009 (3019 Kalakaua),
which is subject to this lawsuit. See SOF !f 25. With its reservation of public easements over a
portion of a seawall as a public right-of'-way, the State has essentially admitted its duty to the
other portions of the Seawall to make this access useful. Since the public uses all areas of the
Seawall along the Gold Coast for access to the ocean, regardless of an explicit easement, the
State has admitted its dutv over the whole Seawall.
The letter ultimately examined then current State case law, specifically Levy v. Kimball,
50 Haw. 497 (1968), and concluded that "the State's control over the seawall right of way carried
2t617 | .4

12. with it the responsibility to maintain the seawall in a reasonably safe fashion" and that
"appropriate actions cited [in Levy] be considered and implemented." þ Exhibit J-2 at2-3.
C. State Policv and Seawall Work Between 1981 and 1982
On or around September 24,1981, the DLNR sent a memorandum to Councilwoman
Marilyn Bornhorst stating that "state and federal courts in the jurisdiction of Hawaii have found
that the state is liable for injuries incurred due to lack of repairs to seawalls that are public
thoroughfares. As such the state government, through the Department of Land and Natural
Resources, is primarily responsible for the repairs to seawalls that are public thoroughfares." &
Memorandum dated September 24,1981, issued by the DLNR to Councilwoman Marilyn
Bornhorst, Exhibit J-3. Early the following year, the Department of the Attomey General
("DAG") wrote a letter to the State Representative Paul L. Lacy, Jr. on March 2, 1982, in
response to Mr. L,acy's letter "requesting comments on the State's liability for personal injury
and properly damage that may arise from the deteriorated condition of Waikiki seawalls used by
the public." See Exhibit J-4 at 1. The DAG reviewed Levy, supra, as well as other state cases
and determined that they "clearly establish[] the State's liability for personal injury damages
where the State controls (even if it does not own) an easement like the Waikiki seawall." See id.
The DAG's letter did not apply to a specific section of the seawall along Waikiki. Instead, it
applied generally to any section that is used by the public. Again, this is an explicit admission of
the State's duty regarding the Seawall.
Around the same time, the DLNR, Land Division, performed emergency repair work,
completed in June 1982, to shore approximately 40 feet of the Seawall along the boundary of
Diamond Head Apartments, l'MK No. 3-l -032:04. See Exhibit J-13. The contract price for this
repair work was 525,000, and it was authorized by Act l, SLH 1981, Item K-2. See id. The
project involved the underpinning of approximately 40 feet of an existing lava rock seawall
216171.1 6

13. along the makai boundary of Diamond Head Apartments and Coral Sands Apartments with
concrete grout. See id.
On or around April 16, 1982, the DLNR sent a letter to the Department of Land
Utilization ("DLU") regarding the work to be done under Act 1, SLH 1981, Item K-2. See
Exhibit J-5. The DLNR explained the following:
A coral shelf on which the existing seawall was constructed several years ago, has
'Wave
broken and eroded leaving a huge cavity beneath the seawall. action is
continually eroding material from beneath and behind the seawall such that the
seawall and the abutting properties are being undermined. Unless immediate
action is taken to stop the erosion, the seawall is in danger of collapsing which
would result in a major seawall reconstruction work,
The purpose of this project is to render the existing seawall safe for public
passage and to halt the undermining action of the waves.
The existing seawall extending along the shoreline of V/aikiki Beach serves as
protection to properties against wave action and also as a public walkway for
residents and beachgoers.
The surrounding properties are lined with multi-storied apartments with access on
Kalakaua Avenue. Residents. surfèrs. beachgoers and fisherman use the top of
the seawall to traverse between the Diamond Head end of Waikiki Beach and
Sans Souci Beach. If it becomes necessary to close the seawall walkway,
beachgoers will have to detour either along Kalakaua Avenue or walk on the
rocky reef along the seawall.
Inquiry with the State Survey Division and the City and County Department of
Land Utilization and the Land Survey Division indicates that there are no
recorded shoreline easements along the affected property. However, in a decision
rendered by the Hawaii State Supreme Court in the case of Levy v. Kimball, 50
Haw. 497,443 P.2d 142 (1968) the court ruled that the State has a duty to keep
seawalls which are used by the public in good repair. Further, the Deputy
Attorney General in commenting on the seawall fronting Halekulani Hotel stated
that if the rehabilitation or reconstruction cannot be done, then the seawall should
be closed to pedestrian traffic or signs posted warning the public of its condition.
2t6t7 t.4

14. See Exhibit J-5 (emphasis added). By these actions and correspondence, the State clearly
stated its position that the Seawall was a public thoroughfare and that it was responsible for its
maintenance and the safetv of those who use the Seawall for access to the ocean.
D. State Policy and Seawall üork Between 1982 and 1983
During the 198213 period, the DLNR, Land Division, admitted its duty to maintain the
Seawall by repairing and rehabilitating broken sections of the Seawalls from the Elks Club
property (TMK No. 3-l-032:05) to TMK No. 3-1-033'.02,near the Diamond Head end of
Kalakaua Avenue. See Exhibit J-13. Funds for this work were authorized by Act 1, SLH 1981,
Item K-2 and Act 264,ltem K-2. See id. The repair work was completed in June 1983 at a
contract price of $50,000 to fix damage caused by Hunicane lwa. See id. Act264, SLH 1981,
Item K-2, is titled "Seawall Improvement, Waikiki." It set aside State funds for "[p]lans, design
and incremental construction of improvements to seawall including railings, rehabilitation of
seawall, fences and other improvements necessary for the safe passage of the public over
existing seawalls." See id. Although not all of these improvements were ultimately
implemented, the State therein expressly admitted its responsibility to create a safe passage for
the public over the Seawall. This was a continuation of its previous policy of Seawall
responsibility.
E. State Policy and Seawall Work Between 1983 and 1985
In September 1983, Hawaiian Dredging completed Phase II of an improvement project
on the seawall along Kalakaua Avenue, as authorized by Ãct264, SLH 1982, Item K-2. See
Exhibit J-13 at 2. The contract price for Phase II (Job No. 1 -OL-29) was $54,714, and the
scope of the work originally planned for Phase II construction consisted "of rehabilitating a
seawall, constructing a hand railing and other incidental and appurtenant work necessary to
compìete this project." þ id. Although the construction of hand rails was not completed over
2t617 | .1

15. the Seawall, the State, at the very least, contemplated creating a safer walkway over that area of
the Waikiki seawall. See id. By doing so, it admitted its ongoing duty regarding the Seawall.
Phase III of the same improvement project was completed in June 1985 by Iwamoto
Construction for a contract price of $5 0,7 4l . See Exhibit J-6; J-13 at 2. Phase III affected the
Seawall along TMK Nos. 3-l-32:029,027,:026,:004, :003, :002, :001 and 3-l-033:011 and
:009. See Exhibit J-25; SOF ![ 14. Similar to Phase II, the scope of work originally planned for
Phase III construction consisted "of rehabilitating seawalls, constructing hand railing and other
incidental and appurtenant work necessary to complete this project." þ J-6; SOF ![ 13. The
scope of work actually performed for Phase III construction is described in the as-built plans and
summarized in the followins table:
Desisnation on plans Properties affected Nature of repair
A-2 Portion of 33:009 to 32:004 Crack repair on walkway-
(33:009, :010, :01l, 32:001, chip off loose material and
:002.:003. :004) epoxv the crack
B-2 Approx. 35 linear feet at Repair nosing at edge of
32:002 walkway
Approx. 5 linear feet at
33:011
c-2 Deleted-work not done Repair walkway-remove
32:029 existing top 4" of concrete
Pofiion of 32:028 and pour new 4"
D-2 32:026 and:027 Repair walkway-remove
33:010 and :011 loose concrete topping and
replace with 2" thick
cement mortar. (Taper new
concrete left to right, see G-
2
E-2 Portion of 32:008 Add new concrete walkway
on top of existing wall
See id.; SOF 1[ 14.
The State named Fhase III "Waikiki Seawall, Walkway Rehabilitation" and
photographed the condition of the Sea¡valls prior to its construction and rehabilitation, on or
2t617 | .1

16. about January 25, 1983. See Exhibit J-22; SOF tT 15. These photographs included images of
TMK Nos. 3-1-032:004,026,027, and 028. See id.; SOF f[ 15. On or about December 16,
1982, the State also photographed images of the Seawalls and what it called the "access
easement Diamond Head to Ocean" Iocated at TMK 3-l-033:006. See id.; SOF fl 15. Although
not all of these locations are directly related to this lawsuit, their similarity proximity
demonstrate the State's admitted duty to the Seawall as a public walkway. Furthermore, the
State acknowledges the public access from Kalakaua Avenue to the Seawall.
F. State Policv and Seawall'Work Between 1992 and 1993
In 1992, the DLNR, Water and Land Development Division, released a Notice of
Determination Olegative Declaration) for Waikiki Seawall Walkway Rehabilitation. Phase V
("Notice of Determination"), pertaining to the Seawalls, which stated: "[t]he State of Hawaii has
a right-of-way over all the seawalls and walkways and is responsible to keep them in good and
safe condition. The walkways are used by the public." See Notice of Determination, Exhibit
J-8 at 7 . The purpose of the 1992 rehabilitation was "[t]o increase safety of existing walkways
which are deteriorating and becoming hazardous" and "[t]o lengthen the useful life of the
existing seawalls, which are deteriorating." See Exhibit J-8 at 2.
In 1992 and 1993, the State followed through with its planned rehabilitation of the
Seawall, On December 8, 1992, via a Resolution, the Council of the City and County of
Honolulu granted a Special Management Area ("SMA") Use Permit and Shoreline Setback
Variance to the DLNR to rehabilitate the existing Seawall walkway located in Diamond Head,
Oahu and identified by TMK Nos.3-l-032:001 ,002,003,004, 026,027,028 and 029,and3-l-
2t6t7 | -4
l0

17. 033:002,003, 004, 005, 006, 007, 008, 009, 010, 0l l, 053, and 056.3 see Exhibit J-10; soF tl
16. Phase V construction was a G.O. Bond-funded CIP project authorized by Act 316, SLH
I 989, Item K- I I , following Hurricane Iniki (Job No. 3 1 -OL-C 1). See Exhibits J-8, J-9 and J-
13; SOF ![ 17. Construction was completed by Sea Engineering in September 1993 ata contract
price of $609,605. See id. This project repaired and rehabilitated the Seawall, although the only
portion of the project that was completed was for the section in front of Diamond Head
Ambassador Hotel, Ltd. (TMK Nos. 3-l-032.026,027 and 028). See id. Although the project
was ultimately limited in scope, the DLNR originally planned to "rehabilitat[e] seawalls and
walkways, constructing hand railings and other appurtenant work necessary to complete this
project." See Exhibit J-9; SOF flfl 18-20. In the several years since, however, the Seawall has
again fallen into disrepair. See Photos of the Seawall, Exhibits J-26 to J-224.
G. State Action on the Seawall in 1999
In a general statement about the rehabilitation of the Seawall (or other very similar
seawalls in the Diamond Head/Waikiki area), the DLNR released a memorandum from Andrew
Monden, Chief Engineer of the DLNR, to Dean Uchida, Administrator of the DLNR, that states:
Since 1982, at the request of Land Management, the Engineering Branch
(DOWALD) has been repairing and rehabilitating damaged sections of the
seawall between Halekulani Hotel and the city mini-park (TMK: 3-1-36:l)
located along Diamond Head Road.
Another project was authorized using special funds by Act 289, SLH 1993, Item
K-8. DOWALD was not requested to implement this project and the funds
lapsed.
All CIP projects were authorized under LNR l0l and were implemented by
DOWALD upon Land Management's request. The work involved walkway
improvements, rehabilitation of the seawall and/or railing installation or repair.
'
Of these properties, Nos. 3-l-032:001,002,003, 004,026,027,028 and029,and 3-l-
033:009 and 011 are subject to this lawsuit. The State only reserved an explicit public easement
over one of these properties, 3-i-033:009 (3019 Kalakaua). See SOF tT 25.
2t6t71.4 ll

18. See Exhibit J-l3.
H. State Policv in 2002-2003 and the Sea Ladder Easement
On or about March 15,2002, a letter from the DLNR to a "Concerned Resident" living in
the area around the Seawall stated that no permits were ever obtained to construct a sea ladder on
the State's Seawall. See Exhibit J-14; SOF f 5. The sea ladder sat on an area of the Seawall in
front of Diamond Head Ambassador (TMK No. 3-l -032:026). See Exhibit J-16. To resolve
this issue, on July 25,2003, for the sum of $2,406 plus a $218 performance bond, the State
granted the GCNA a 37 square-foot Non-Exclusive Ladder Easement for a term of 55 years for
the right, privilege, and authority to construct, use, maintain and repair a ladder at the following
location:
Waikiki, Honolulu, Oahu, Hawaii
Being a portion of the submerged land fronting Royal Patent 5667, Apana 3, Land
Commission Award 5931, Part I to Pehu.
Being at the north corner of this easement, the true azimuth and distance to the
south corner of Lot 5 as shown on Map 3 of Land Court Application l3 being:
249" 32'4.95 feet, the coordinates of said point of beginning referred to
Government Survey Triangulation Station "LEAHI" being 312.88 feet North and
2931.86 feet West, thence running by azimuths measured clockwise from True
South: -
1. 304" 43' 45" 5.00 feet along the top edge of concrete wall;
2. 32" 04' 7.5 feet;
3. 124" 43' 45" 5.00 feet to rock groin;
4. 212" 04' 7.50 feet along rock groin to the point of beginning and
containing an AREA OF 37 SQUARE FEET.
See Exhibit J-16. The preceding survey description was prepared by the Survey Division,
Department of Accounting and General Services, State of Hawaii, designated by C.S.F. No.
23,559 and dated June 25, 2003. See id. The Non-Exclusive Ladder Easement sits on an area of
the Seawall located on the ocean side of TMK No. 3-1-032:026, the Diamond Head Ambassador
2t6t7 | .1
12

19. Hotel and includes the right of public ingress and egress to and from the easement area for all
purposes in connection with the rights granted by the State. See id.
The GCNA was required by the State, pursuant to terms of the Non-Exclusive Ladder
' Easement, to procure and maintain, at its own cost and expense, commercial general liability
insurance, or its equivalent, in an amount of at least $300,000 for each occurrence and $500,000
, aggregate, with an insurance company or companies licensed to do business in the State of
Hawai'i. See Exhibits J-I6 and J-21. The insurance policy or policies must name the State and
Diamond Head Ambassador Hotel, Ltd., as an additional named insureds. See id. The GCNA
procured commercial general liability insurance regarding the Seawalls with John H. Connors
Insurance. The State, per the terms of the Non-Exclusive Ladder Easement, has renewed this
¡nsurance effective July 30, 2003,and has renewed this insurance every year since 2003. See
Exhibit J-21. This is a direct acknowledgment of its responsibility by the State.
In a June 30,2002, memorandum with the subject, "Line Waikiki Sea Ladder at2957
, Kalakaua Avenue, Honolulu, Hawaii," Sam Lemmo, Senior Staff Planner for the DLNR, Land
. Division, stated that "it is my understanding that the subject ladder was part of a public access
thoroughfare through the Diamond Head Beach area, which was partially improved by the State
(top of seawall) and by adjacent landowners (ladder)." See Exhibit J-15. The State's clear
stance on the sea ladder, its acknowledgement of the public's right-of-way over the Seawall, and
the requirement that the GCNA purchase an easement from the State admits clear ownership, or
at least full control, over a portion of the Seawall.
I. Lesislative Action
- On June 1,2006,the legislature enacted the Supplemental Appropriations Act of 2006, in
: which the State set aside $2 million. as requested by the DLNR, for improvements to the
Diamond Head Seawall. See Relevant Portions of Hse. Bilt No. 1900 and its status
2t6t7 1.1
l3

20. information, Exhibits J-18 and J-23 , and Exhibit J-17 (State Representative Scott
Nishimoto mentions at a Waikiki Board meeting on May 2006, that the State appropriated
$2 million for improvements to the Waikiki seawall on the Gold Coast). The State intended
to use the funds to resurface the Diamond Head Seawall and add railings. See Exhibit J-23 at
393. Although the State appropriated this money to repair and rehabilitate the Seawall, the funds
were never released for actual use and the State made no improvements to the Seawall in 2006 or
2007.
Considering the poor condition of the Seawall, its need for repair, and the State's current
unwillingness to release appropriated funds to maintain the Seawall in a condition safe for travel,
GCNA, as owners of property adjacent to the Seawall, filed its complaint for declaratory relief
on June 22,2007.
III. DISCUSSION
GCNA asks that this Court grant judgment in its favor and rule that the State be deemed
responsible for the maintenance and upkeep of the Seawall. The State has previously admitted to
this duty and for decades has undertaken that duty. This duty is mandated by a series of major
legal decisions which hold that the Seawall is a public highway, is in strict accordance with HRS
Chapter 264 and our constitution. At a minimum, the State has a prescriptive easement over the
Seawall and this too mandates its duty to maintain the Seawall.
A. The State Has Repeatedly Admitted lts Dutv to Keep the Seawall in Good
and Safe Condition for Travel.
Public policy favors "extending to public use and ownership as much of Harvaii's
shoreline as is reasonably possible." Diamond Head v. State of Haw.. Bd. of Land & Natural
Res., ll2Hawai'i161,174,745P.3d704,717(2006} Upuntilthelastadministrationherein
Hawai'i, that public policy favoring shoreline access was reflected in the way that the State
14

21. maintained and rehabilitated the Seawall. As explained above, the State has repaired or
discussed repairing the Seawall on numerous occasions. Moreover, the State has repeatedly
stated that the Seawall is a public thoroughfare over which it has a duty to maintain.
The DLNR released a letter in 1975 referring to the Seawall as "a public right of way."
See Exhibit J-2 at 1. The DAG in 1982 stated that State cases "clearly establish[] the State's
liability for personal injury damages where the State controls (even if it does not own) an
easement like the Waikiki seawall." See Exhibit J-4 at I (emphasis added). The DLNR
expanded on the use of the Seawall that same year when it explained why it was rehabilitating a
portion of the Seawall: "[t]he purpose of this project is to render the existing seawall safe for
public passaqe." b Exhibit J-5 (emphasis added). The DLNR went on to note that the
Seawall is used "as a public walkway for residents and beachgoers" and that "[r]esidents, surfers,
beachgoers and fishermen use the top of the seawall to traverse between the Diamond Head end
of Waikiki Beach and San Souci Beach." See id. (emphasis added). In 1992, when the DLNR
was once again rehabilitating the Seawall, it explained that repair was necessary "for the safe
passage over existing seawalls." þ Exhibit J-I3. The 1992 Notice of Determination released
by the DLNR pertaining to planned Seawall rehabilitation stated: "[t]he State of Hawaii has a
right-of-way over all the seawalls and walkways and is responsible to keep them in good and
safe condition. The walkways are used by the public." (underlineation added) See Exhibit J-8
at 7. These clear, admissions of unqualified duty, control and public access should resolve the
State' s responsibilities here.
In addition to the State's past public admissions of responsibility, the State implicitly
accepted the responsibility of maintaining the Seawall by repairing it several times and
appropriating funds for its improvement. See Exhibits J-5, J-6, J-I3 and J-25 (describing the
2t6t7 | .1 t5

22. emergency repâir work done to portions of the Seawall in 1981 to 1983); Exhibits J-8, J-9
and J-13 (describing repair work done on portions on the Seawall |n 1992 and 1993); and
Exhibits J-17, J-18 and J-23 at 393 (showing the appropriation by the State Legislature of
$2 million to repair the Seawall). Pursuant to the 2006 appropriation, the Seawall was to be
resurfaced and handrails added-another clear acknowledgement that the intended use of the
Seawall is for public access. See Exhibit J-23 at 393. These types of improvements indicate a
clear intent by the State to make the wall safer for travel, as handrails would not be necessary if
the State did not believe that the public uses the Seawall on a regular basis. As will be explained
below, current case law and statutory authority supports the GCNA's position that the State has
control over the Seawall and is responsible for its safety and maintenance.
B. The Seawall is a State Public Hishwav and the State is Responsible for its
Maintenance.
State statute along with both state and federal case law provide that private parties
surrender a seawall to the State as a "public highway" when the following conditions are met: (1)
the seawall was originally built by private parties, (2) the private parties, as historic owners of
the seawall, have exercised no act of ownership over the seawall in five years, and (3) the State
holds some form of easement (including a right of way) over the seawall. These three conditions
are met here. The Seawall, originally built over 80 years ago by private parties. The private
party adjacent to the Seawall have not exercised ownership over the Seawall for many years.
Instead, the Seawall, has been controlled by the State and used as a public thoroughfare for at
least 55 years, and likely much longer. Hawaii's legislature has long decreed that public
thoroughfares are the State's responsibility. The following cases, Levy v. Kimball , 50 Haw. 497 ,
443 P.2d 142 (1968) and Jones v. Halekulani Hotel. Inc. , 557 F.2d 1308 (9th Cir. 1977), analyze
and explain Hawai'i Revised Statute ("HRS") Section 264-1, which provides the basis for the
l6

23. State's responsibility, (as opposed to a private landowners' responsibility) to maintain the
Seawall.
l. Review of the Relevant State and Federal Case Law.
a. Levy v. Kimball
The primary Hawai'i state case to examine a seawall as a public thoroughfare is Levy v.
Kimball, supra. Levy provides two important points of precedent: (1) that a seawall may be
surrendered in ownership to the State for use as a public highway under HRS Section264-l(c),
and (2) that the State has a responsibility to maintain "public highways," including seawalls, in a
condition safe for travel. Whether a paficular seawall meets the conditions of HRS Section 264-
l(c) such that its ownership is surrendered to the State depends on whether its historic private
owners exerted any control or acts of ownership over the seawall within the past ñve years. As
is explained below, Levy involves a seawall very similar to the Seawall in this case. Levy's
disposition clearly indicates that the State cannot abandon its responsibility for lands that it alone
can control.
Levy involved a seawall along the Waikiki coastline adjacent to several hotels.a A visitor
to the islands fell ofTthe seawall, portions of which were badly deteriorated, and sued the State
for negligence. Levy, 50 Haw. at 497-98, 443 P.2d at 143. The State had previously acquired an
express easement over the seawall for the purpose of providing a path for public travel. Id at
498,443 P.2d at 144.
The Coun explained that an owner of an easement has the right and duty to keep the land
in repair, and that the owner of the easement is liable for any damages caused by the lack of
proper repairs. Levy, 50 Haw. at 498, 443 P.2d af 144. Most important, the Court held that "it is
o This seawall is not the Diamond Head Seawall.
2t6t7 t.4 t7

24. the control and not the ownership which determines liability." Levy, 50 Haw. at 499,443 P.2d at
144 (quoting In re Taxes Victoria Ward, 33 Haw. 235 (1934)). The Court found that since the
State controlled the seawall, that it had the duty to maintain the whole wall. Id.
The Court held that the State not only owned an express easement over the seawall, but
that the seawall had. in fact. been surrendered to the State for public use. Therefore. the Seawall
was a public highway. Levy, 50 Haw. at 499, 443 P.2d at 144- Ownership of the seawall
transferred to the State.s For this proposition, the Court cited Revised Laws of Hawai'i 1955
("RLH") Section 142-l-what is now HRS Section264-l (2006). Id. Section 264-l(c) has
remained largely unchanged from RLH Section 142-1, and provides in part that:
Allroads, alleys, streets, ways, lanes, trails, bikeways, and bridges in the State,
opened, laid out, or built by private parties and dedicated or surrendered to the
public use, are declared to be public highways or public trails as follows:
(2) Surrender of public highways or trails shall be deemed to have taken place
if no act of ownership by the owner of the road, alley, street, bikeway, way, Iane,
trail, or bridge has been exercised for five years.
HRS $ 264-l (c). The Court in Levy held that, "[a]lthough a seawall is not expressly mentioned
in the above enumeration, it can be fairly implied that a seawall such as that which is in question
here which is used as a public thorouqhfare is included in the term 'public highway."' Levy, 50
Haw. at 499,443 P.2d at 144 (emphasis added). Because the seawall was a public highway open
to the public for travel, the State had a "duty to maintain Lthe] highway in a condition safe for
s The seawall in Levy was surrendered to the State, meaning that, even without a formal
transfer of ownership, the State now owned the seawall. The history of HRS section 264-l(c)
confirms that a "surrender" of a thoroughfare to the State does indeed confer upon the State full
control and ownership of the highway. The Supreme Court of Hawai'i has clarified that "Hawaii
is one of the few jurisdictions which have provided, at one time or another, for vesting the fee of
a highway or road laid out by a private party and abandoned to the public in the central
government." Application of Kelley, 50 Haw. 567 , 579, 445 P.2d 538, 546 (1968) (emphasis
added). Hence, Levv's holding vests ownership of the seawall to the State, regardless of any
dedication or formal transfer of ownership.
?16t7 | .4 r8

25. travel." Levy, 50 Haw. at499,443P.2dat144 (quoting Restatement (Second) of Torts $ 349,
cmt. b (1965) (emphasis added).
HRS Section264-1(c) requires that, in order for a public thoroughfare to be surrendered
to the State, (l) it must have been originally built by private parties, and (2) the historic private
owners must not have exercised any act of ownership over the thoroughfare for five years.
Expanding on Levy, In re Banning, 73 Haw. 297 , 832 P .2d 724 ( 1968), added, in dicta, a third
requirement to HRS Section 264-l(clthat before a public thoroughfare may be surrendered to
the State, the State must have previously held an easement over the thoroughfare. Id. at3l2, B32
P.2d at 732. As will be explained, infra, the Seawall in this case meets all three requirements.
Therefore, the State is the entity responsible for the maintenance of the Seawall.
b. Jones v. Halekulani Hotel, Inc.
There exist two distinctions between Levy and the instant case: (l) here, the State does
not hold an express easement over the Seawall, and (2) in Levy, the State admitted it controlled
the seawall. Neither of these distinctions is significant, however, given the holding in Jones v.
Halekulani Hotel. Inc., supra. Here, the State holds a prescriptive easement over the Seawall.
The Jones court abolished any notion that the type of easement---€xpress or prescriptive-makes
any difference in the application of Levy Holdings. Second,4!çg also stands for the proposition
that the State's control over the Seawall may be established by the public's consistent, Iengthy
use of it as a public thoroughfare.
Like Lev-v, Jones involved a seawall along the Waikiki coastline.6 A visitor to the
islands, a minor, dove from a seawall on Halekulani Hotel property into shallow ocean water and
fractured his neck. Jones, 557 F.2d at 1309. He sued the Halekulani, asserting that the hotel had
u Th.
Jones seawall is not the Levy seawall or the seawall in this case.
2t6t71.4
r9

26. breached its duty to warn users of the seawall of the shallowness of the water, or otherwise
protect users of the walkway from dangers incident to use. Id.
The Halekulani argued (l) that the State had acquired an easement by prescription over
the top of the seawall and had the sole duty to maintain it, and (2) that the provisions of HRS
chapter 5207 precluded liability on the part of the hotel. Jones, 557 F.2d at 1309-10. The Ninth
Circuit chose not to address the second issue but, instead, explained that the Halekulani owned a
prescriptive easement over the seawall because:
(1) The seawall had been used as a walkway from l9l7 to 1972.
(2) The Halekulani's owners never attempted to interfere with pedestrian
traff,rc.
(3) The Halekulani "assumed that the public had a right to use the wall as a
public walkway."
Id. at l3 10. The court held that "[u]se which is constant. unintemrpted and peaceful is sufficient
to create an easement by prescription." Id. (emphasis added). Because of the public's extensive
use of the seawall as a thoroughfare, the Halekulani had no control over the seawall and
therefore had no duty with respect to the protection of its users. Id.
Not only did the Ninth Circuit hold that the State held a prescriptive easement over the
seawall, the court recognized that the Supreme Court of Hawai'i characferized this type of
seawall easement as a "public highway" under HRS Section 264-1. Jones, 557 F.2d at l3l I
(citing Levy, supra). Given that the Halekulani had abandoned control over the seawall, and that
the public had been using the seawall as a walkway for over 50 years, the Court found that the
Halekulani no longer had a right to control the seawall. Jones, 557 F .2d at l3l I . In accordance
'
HRS Chapter 520 "was enacted to encourage land owners to make their land available
to the public for recreational purposes by limiting their liability toward persons entering the land
for such purposes." Jones, 557 F .2d at l3 10 n.l . Under chapter 520, no person or entity may
acquire an easement over land which a landowner opens for recreational public use through this
public use. HRS ç 520-7 . Chapter 520 was enacted in 1969, at least l7 years after the public
started to use the Diãmond Head Seawall as a thoroughfare. See Anderson Decl. !f 4.
2t617 | .4
20

27. with the holdings in Jones and Levy, a seawall used by the public as a thoroughfare, either by
means of an express or prescriptive easement, is surrendered to the State as a public highway
where the historic owners exercised no act of ownership over the seawall for at least frve
vears.
The Seawall in this case clearly meets this description.
2.
The statutory and case law explained above provides three requirements before a seawall
is surrendered to the State as a public highway: (l) that the seawall was built by private parties
(2) that no private parties have exercised any act of ownership over the seawall for at least
five
years' and (3) that the State previously held an easement over the seawall. The Seawall
meets all
three requirements.
a. Private Parties Built the Seawall.
The State acknowledges that the govemment did not originally build the Seawall. See
SOF T 22 (the various portions of the Seawalls relevant to this matter were constructed by
unknown private parties at least 80 to 100 years ago).
b. The Private Parties who Built the seawall, and rheir Successors,
Have committed No Act of ownership over the Seawall for
Several Decades.
June Anderson has lived in her home along the Gold Coast for over 37 years, and has
used the Seawall as a pathway for over 55 years. See Anderson DecI. 4. Throughout this
T13,
entire period, Ms. Anderson has observed the public using the Seawall as a walkway and
thoroughfare, as well as for access to the water for fishing, surfing and swimming. See id.
ff 3,
41517. To the best of Ms. Anderson's knowledge, no owner of property along the Seawall has
ever attempted to block access to the wall or exen any other similar acts of control or ownership
over the Seawall during that time- See id. fl 6. Indeed, the private property owners along the
Gold Coast have no control over the Seawall. If they were to attempt to complete minor repairs
216t7 t.4 ,ìt
zl

28. over portions of the Seawall, it would only be because the State has refused to undertake such
repairs, and the conditions were so dangerous on the Seawall as to put the public in danger.
The State has admitted that it has a "right-of-way" over the Seawall and has appropriated
funds for improvements to the Seawall to make it safer for travel. Not only has it appropriated
funds for improvements, the DLNR has repaired and rehabilitated the Seawall multiple times in
the past. The public, which extensively uses the Seawall as a walkway, often to parts of the
ocean and beach that cannot be accessed otherwise, obviously regards the Seawall as a public
thoroughfare with no restriction on its use.
In the past, the State has explicitly exerted control over the Seawall, through its use and
its repair, and inexplicably abandoned during the last administrated the Seawall when repair is
desperately needed. Although the State is aware that the Seawall is used consistently by the
public, it is foisting the responsibility of the public's safety on private landowners who do not
control, nor have the right to control, the Seawall. It is clear, based on the public's use for at
least 55 years and the State's control over the Seawall that any responsibility over the Seawall
now rests with the State.
c. The State Holds an Easement by prescription over the Diamond
Head Seawall.
The Seawall has been used by the public for at least 55 years, if not more. Like the
Halekulani Hotel in Jones, the members of the GCNA understood that, because of the public's
use of the Seawall for so many decades, they have no right to control it. Indeed, the State has
taken over that responsibility by repairing the Seawall and appropriating funds for further
rehabilitation. The public has deemed the Seawall a public thoroughfare by using it consistently.
The public's "constant, uninterrupted and peaceful" use for at least 55 years is sufficient to create
an easement by prescription in the state. See Jones, 557 F.zd at 1310.
2t6t7 | .4
22

29. Once an easement is established giving the public the right to use the privately-built
Seawall as a public thoroughfare, and the historic owners of the Seawall fail to exert ownership
over it for at least five years, HRS Section264-l(c) dictates that ownership of the Seawall
transfer from historic owners and to the State. Indeed, this mandatory transfer of ownership took
place decades ago. The Seawall is a "public highway." The State is responsible for the
maintenance of the Seawall.
C. Alterna tmu Ho
Even if the Seawall was not formally surrendered or dedicated to the State as a public
highway under HRS Section264-l(c), the State still holds a prescriptive easement over the
Seawall. The public's "constant, unintemrpted and peaceful" use of the Diamond Head Seawall
is sufficient to create an easement by prescription. Jones, 557 F.2d at 1310. According to Levy,
"[i]t is a well established rule that an owner of an easement has the right and the duty to keep it
in repair." 50 Haw. af 498, 443 P.2d at 144. Additionally, "[t]he owner of the easement is liable
in damages for injuries caused by failure to keep the easement in repair." Id. Further, ,.it is the
control and not the ownership which determines the liability." Id. at 499, 443 p.2d at 144.
The State has exerted control over the Seawall for many years, repairing and
rehabilitating it and appropriating funds for its improvement. The public's use of the Seawall
has been constant, unintemrpted, and peaceful for at least 55 years. Even if the ownership of the
Seawall does not vest in the State, the State has, by its own admission, a "right-of-wây,,, which,
when combined with the public's long use of the Seawall, equates to a prescriptive easement. To
hold otherwise would confound logic.
The State, by now disclaiming any interest in the Seawall, is essentially taking either one
of two positions: (l) that the Seawall may, and indeed should, be cut off to public use entirely,
2t6t7t.4
¿)

30. completely undermining the constant accessibility the public has enjoyed for several decades, or
(2) that members of the GCNA should be responsible for all maintenance of the Seawall, liable
for all accidents that occur thereon, yet completely incapable of exerting control over who uses
the Seawall, how they use it, and when they use it. Both positions show a complete disregard for
public access rights and general principles of liability. Public use of the Seawall, as with other
seawalls along the Waikiki coast, has become both a tradition-an accepted means of travel from
one part of the ocean and beach to another-as well as an engrained legal right. The State's
confounding position in this matter ignores these practical realities.
IV. REBUTTAL OF THE STATE'S DEFENSES
The State has asserted two reasons why it should not be found responsible for the
Seawall: (a) no public access to the Seawall; and (b) no responsibility for portions of the
Seawall adjacent to land registered in Land Court. Both ignore the facts, the statute and the
caselaw.
A. There is no Public Access to the Seawall
The State claims that there is no real public access to the Seawall and, hence, the Seawall
cannot be a public thoroughfare. This is in bold denial of the public's extensive use over several
decades. To support its position, the State points to a "hole" in the continuity of the public
easements over the path that the public generally uses to access the Seawall. The property at
3037 Kalakaua Avenue, TMK No. 3-l-033:006, includes a narrow stretch of dirt road that leads
from Kalakaua Avenue to the ocean, with access to the Seawall. See Exhibit J-19 at I l. This
property was registered in Land Court pursuant to Land Court Application No. 1243 of Bishop
'frust, Ltd. See id. As indicated on the LCD No. 2384206 and T.C.T. No. 492637, there is an
"[Easement] of [right of way] to the sea in favor of the owners of lots in the Diamond Head
Terrace Tract across Lots A and C" and an "[Easement] of [right of way] in favor of the general
216t7 | .4
24

31. public across Lot C." See id; J-244. Lot A and C are the two sections of the narïow dirt road
access to the ocean, on the Ewa side of TMK No. 3-l-033:006. Lot A is the section closest to
Kalakaua Avenue, and Lot C sits between Lot A and the ocean. See id. Essentially, Lot C is a
public access to the ocean and the Seawall that, if read literally would mean that no member of
the public could access because Lot A only contains an easement for owners of lots in the
Diamond Head Terrace Tract.
This landlocked public easement contravenes the purpose of HRS Chapter I15, which
was enacted specifically to combat a lack of public right-of-way to the shoreline and ocean in
Hawai'i. HRS Section I l5-l states as follows:
The legislature finds that miles of shorelines, waters, and inland recreational areas
under the jurisdiction of the State are inaccessible to the public due to the absence
of public rights-of-way; that the absence of public rights-of-way is a contributing
factor to mounting acts of hostility against private shoreline properties and
properties bordering inland recreational areas; that the population of the islands is
increasing while the presently accessible beach, shoreline, and inland recreational
areas remain f,rxed; and that the absence of public access to Hawaii's shorelines
and inland recreational areas constitutes an infringement upon the fundamental
right of free movement in public space and access to and use of coastal and inland
recreational areas. The purpose of this chapter is to guarantee the riqht of public
access to the sea. shorelines. and inland recreational areas. and transit along the
shorelines, and to provide for the acquisition of land for the purchase and
maintenance of public rights-of-way and public transit corridors.
(Emphasis added). Obviously, the grant of a public easement through Lot C was meant to
provide the public with access to the shoreline. The fact that Lot A, which provides access to
Lot C from Kalakaua Avenue, technically has no public easement should not prevent shoreline
access. The illogical results of bureaucracy on the encumbrances of land sales and modifications
should not prevent the people of Hawai'i from basic access to its shores. The pubtic has been
using both Lot A and Lot C as an access way to the ocean and the Seawall for several decades.
For the State to take a position that Lot C is now a useless public easement, and that access to the
2t6171.4
25

32. shoreline and along the shoreline by means of the Seawall is now trespassinq, is against the
public policy set forth in Chapter I 15.
B. The State is not Responsible for the Seawall Adiacent to Properties
Registered in Land Court
The State's second assertion is that the registration of properties adjacent to the Seawall
in Land Court obviates its obligations. Specifically, the Land Coun properties relevant to this
case are TMK Nos. 3-l-032:030 (Tropic Seas, Inc.), :029 (Diamond Head Beach Hotel), :028
(the first of three lots of Diamond Head Ambassador Hotel), and:027 (the second of three lots of
Diamond Head Ambassador Hotel). See Exhibit J-19 at 2. None of the Land Court applications
for these properties contain an explicit right-of-way for the public and, thus, the State contends
that it is not responsible for the maintenance of those areas of the Seawall. This position ignores
the plain language of the statute and the holdings in Levy and Jones.
The stipulated survey map in this case shows that portions of the Seawall fronting the
Land Court properties are outside private property. See Exhibit J-24. This means that this land
is State property. Indeed, the "shoreline," where private property ends and State property begins,
often includes a portion of the top of the Seawall, on both Land Court and regular registered
properties. See id. This presents a curious conundrum-what if both the State and private
property owners own parts of the top of walkway on Land Court property that is used extensively
by the public? The GCNA does not dispute that properties registered in Land Coun cannot
include encumbrances not explicitly stated, but in this case the State controls (via actual
ownership, according to the survey map) the portion of the Seawall that is most likely to cause
underlying structural damage. Specif,rcally, the State owns portions of the top of the Seawall
adjacent to Land Court property and it owns the submerged portions of the Seawall. Since wave
2t6t7t 4
26

33. action causes underlying structural damage, it is illogical to require private land owners to be
responsible for the liability and maintenance of the Seawall fronting their properties.
Second, there exists an unfortunate conflict between the policies regarding Land Court
property and the State's policy favoring ocean access. The Seawall represents a pathway along
the shoreline and the fact that portions of the Seawall may fall within Land Court property
creates unjustified "holes" in public access. HRS Chapter I 15, supra, was created so that these
holes would not exist-so that the public would have the right to access public beaches. The
Seawall, logically, is the classic example of an easement by ancient or historic use. Denying
access to the public now would be unfair, and would be against the State's long-lasting policy
that the people of Hawai'i deserve reasonable access to all of the State's beaches.
C. Hawaii's Constitution Mandates Public Access
GCNA's position here is also in direct accord with Hawaii's constitution and over a
hundred years of Hawai'i caselaw. The public trust doctrine and Hawai'i Supreme Court's
reliance on ancient Hawaiian custom have established the public's right to access beaches. Both
are discussed in turn.
l. Public Trust Doctrine
Section XI of the Hawai'i constitution provides as follows:
For the benefit of present and future generations, the State and its political
subdivisions shall conserve and protect Hawai'i's natural beauty and all
natural resources, including land, water, air, minerals and energy sources,
and shall promote the development and utilization of these resources in a
manner consistent with their conservation and in furtherance of the self-
suffrciency of the State.
All public natural resources are held in trust by the State for the
benefit of the people.
2t617 | .4
27

34. It should be noted that Hawai'i adopted the "public trust" doctrine with respect to our shorelines
and submerged lands over a hundred years ago and the doctrine has been repeatedly affirmed in
several landmark cases over the years.
In King v. Oahu Railway & Land Co., I I Haw. 717 (Haw. Terr. 1899), the Supreme
Court for the Territory of Hawai'i held that: "The people of Hawaii hold absolute rights to all its
navigable waters and the soils under them for their own common use. . . . The lands under the
navigable waters in and around the territory of the Hawaiian Government are held in trust for the
public uses of navigation." Id. at725 (citing Martin v. Waddell,4l U.S. 367 (1842) and
adopting the reasoning of the United States Supreme Court in Illinois Central R.R. v. Illinois,
146 U,S. 387 (1892)).
In Application of Ashford,50 Haw. 314,440P.2d76 (1968), the Hawai'i Supreme Cour
further clarified that the boundary between private property and the public beach along the
coastline was "the upper reaches of the wash of waves, usually evidenced by the edge of
vegetation or by the line of debris left by the wash of waves." Id. at 315, 440 P.2d at 77 .
Roughly five years later, the Court expanded the "public trust" doctrine to include tidelands,
when it held that "[]and below the high water mark. like flowing water, is a natural resource
owned by the state 'subject to, but in some sense in trust for, the enjoyment of certain public
rights."' County of Hawaii v. Sotomura,55 Haw. 176,183-84, 517 P.2d57,63 (1973) (quoting
Bishop v. Mahiko, 35 Haw. 608,641(Haw. Terr. 1940)).8 Importantly, the Court noted that
"[p]ublic policy, as interpreted by this court, favors extending to public use and ownership as
much of Hawaii's shoreline as is reasonably possible." Id. at 182,517 P.2d at 6l; see also In re
I More recently, the Hawai'i Supreme Court reaffirmed the decision of Ashford
and
Sotomura, see Diamond v. State , ll2 Hawai'i I6l, 145 P.3d 704 (2006), ultimately unifying the
definition of "shoreline" of the state statutes, common law, and administrative rules.
2t617 | .4
28

35. waiola o Molokai. Inc., 103 Hawai'i 401, 432,83 p.3d664,695 (2004) (..any balancing
between public and private purposes [shall] begin with a presumption in favor of public use,
access, and enjoyment."). In fact, the Court boldly stated that "the state bears an 'affirmative
[]
duty to take the public trust into account in the planning and allocation of water resources, and to
protect public trust uses whenever feasible."' Waiola O Molokai, 103 Hawai,i at 430. g3 p.3d
at
693.
Further, the Hawai'i Supreme Court has held that access by the public to these beaches
are also of utmost importance: "The ability to get to a recreation area is as vital for enjoying
it as
having it in its natural condition." Akau v. Olohana Com.,65 Haw. 383,390, 652p.2d I130,
I 135 (1982)' In support, the Hawai'i State Legislature has enacted legislation in favor of public
beach access, effectuating the public's ability to use Hawaii's shorelines. HRS Ch. I l5 provides
for public rights of way to access the shoreline and specif,rcally provides in HRS Section ll5 - 4
as follows:
The right of access to Hawaii's shorelines includes that right of transit
along the shorelines.
HRS $ 11s-4 (2009).
2. Ancient Hawaiian Custom
Similarly, Hawai'i courts' reliance on ancient Hawaiian custom and usage to secure
public beach access also supports GCNA's position. In re Ashford is the genesis of a line of
cases that secures public beach access through the use of ancient Hawaiian custom and usage. In
Ashford, the Hawai'i Supreme Court recognized that the land laws of Hawai'i are unique in that
"they are based on ancient tradition. custom, practice and usage." Id., 50 Haw. at 315,440 p.Zd
at 77 . In so recognizing, the Court utilized the longstanding kama'aina witness rule, based on
21617 | .1
29

36. necessity, which permits the admission of reputable evidence of kama'aina witnesses in land
disputes. Id. 50 Haw. at 315-17, 440 P.2d at 77-78.
The Hawai'i Supreme Court further relied upon kama'aina testimony in State v. Zimring,
52Haw.472,479 P.2d202 (1970). In Zimring, the Court considered a claim of ownership
brought by the State that of seaward accretions to beach front property caused by volcanic
eruptions. Id. The Court admitted kama'aina testimony, based on personal knowledge and
knowledge passed down by the witness' parents and grandparents, regarding the Hawaiian
practice of granting ownership of new land to the abutting owner. Id. at 47 5, 479 P .2d at 204.
The foregoing line of cases culminated in the Court's reliance on ancient Hawaiian
custom and common law custom in McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.Zd
1330 (l 973) that "the right to water was not intended to be, could not be, and was not transferred
to the awardee, and the ownership of water in natural watercourses, streams and rivers remain[
]
in the people of Hawai'i for the common good." Id. at 186-87, 504P.2d,1339. The court
recognized the public's right to running water, asserting that no private owner could acquire the
adverse right to "surplus" water from the state. Id. at I 85-87, 504 P.2d at 1338-39.
Scholars have commented that the McBryde Court's reliance on documents from the
1840s, "Principle Adopted by the Land Commission" and "the Enactment of Further Principles"
in 1850 is important to public beach access. Michael Anthony Town & William 'Wai Lim yuen,
Public Access to Beach in Hawaii: "A Social Necessit)¡?', l0 Haw.8.J.3, l5 (1973). Utilizing
these documents, the Court established "that beach access, if it existed as a customary right, is a
public right and, like the water right, is held by the state for the public." Michael D. Tom, Note,
Flawaiian Beach Access: A Customarv Right, 26 Hastings L.J. 823, 839 (1975). The botom
line is that the foregoing principles of the public trust doctrine and ancient Hawaiian custom
2t6t7 | .4
30

37. dictate that the State is responsible for maintaining the Seawall. For the State to now ignore this
duty would fly at the face of well-established case law and statutes.
V. CONCLUSION
GCNA submits that, as shown herein, the State has been and should continue to be
responsible for the Seawall. GCNA therefore respectfully request that this Court affirm that
duty.
l,fAR 17 2011
Dated, Honolulu. Hawai'i
ROBERT G. K
RANDALL K. SCHM
JORDON J. KIMURA
Attorneys for Plaintiff (Civil No. 07-1-l 122-06)
GOLD COAST NEIGHBORHOOD ASSOCIATION
and Defendants (Civil No. l0-l-0888-04)
TROPIC SEAS, TNC.; THE ASSOCIATION OF
APARTMENT OWNERS OF DIAMOND HEAD BEACH
HOTEL, INC.; DIAMOND HEAD APARTMENTS,
LTD.; C S APARTMENTS, LTD.; THE ASSOCIATION
OF APARTMENT OWNERS OF 2987 KALAKAUA
CONDOMINIUM ; TAHITIENNE, INCORPORATED;
THE ASSOCIATION OF APARTMENT OWNERS OF
3003 KALAKAUA, INC.; THE ASSOCIATION OF
APARTMENT OWNERS OF 3OI9 KALAKAUA. INC.
2t617 | .4
3l

38. IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAI'I
GOLD COAST NEIGHBORHOOD cryrl- No. 07-l -1122-06 (vLC)
ASSOCIATION, (Declaratory Judgment)
Plaintiff. CERTIFICATE OF SERVICE
vs.
STATE OF HAWAI'I; DOE
GOVERNMENTAL ENTITIES l-10; DOE
GOVERNMENTAL AGENCIES 1-I O.
Defendants.
STATE OF HAWAI'I BY ITS ATTORNEY clvll. No. l0-1-0888-04 (VLC)
GENERAL. (Declaratory Judgment)
Plaintiff,,
VS.
)
TROPIC SEAS, INC.; THE ASSOCIATION OF )
APARTMENT OWNERS OF DIAMOND )
HEAD BEACH, INC.; OLIVIA CHEN LUM, )
trustee of the Olivia Chen Lum Revocable Living)
Trust; CLARENCE KWON HOU LUM, trustee )
of the Clarence Kwon Hou Lum Trust and trustee)
under the Will and Estate of Chow Sin Kum
Lum; JEANNE S. J. CHAN and IIOWARD N.
H. CHAN, trustees of the Jeanne S. J. Chan
Trust; DIAMOND HEAD AMBASSADOR
HOTEL, LTD.; DIAMOND HEAD
APARTMENTS, LTD.; C S APARTMENTS, )
LTD.; THE ASSOCIATION OF APARTMENT )
owNERS OF 2987 KALAKAUA )
CONDOMINIUM; TAHITIENNE, - )
INCORPORATED; THE ASSOCIATION OF )
216t7 | .1

39. APARTMENT OWNERS OF 3003 )
KALAKAUA, INC.; THE ASSOCIATION OF )
APARTMENT OWNERS OF 3019 )
KALAKAUA,INC.; JOHN DOES l-20; DOE )
CORPORATIONS I -20; DOE PARTNERSHIPS)
l-20; DOE ASSOCIATIONS l-20, DOE )
GOVERNMENTAL AGENCIES l-20; AND )
DOE ENTITIES I -20.
Defendants.
Trial: March 2l,20ll
Judge: The Honorable Virginia L. Crandall
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing document will be duly served upon the
following persons by hand-delivering (HD) or by mailing (M) said copy, postage prepaid, first
class in a United States post office in Honolulu, Hawai.i, as indicated below, on
, addressed as set forth below:
DAVID M. LOUIE, ESQ. (HD)
Attorney General of Hawai'i
V/ILLIAM J. WYNHOFF, ESQ.
Deputy Attomey General
Department of the Attomey General, State of Hawai,i
465 King Streer, Suite 300
Honolulu, Hawai'i 968 I 3
Attorneys for Plaintiff
STATE OF HAWAI'I
LESTER K.M. LEU, ESQ. (HD)
KARYN A. DOI, ESQ.
Leu & Okuda
The Merchant House
222Merchant Street, Main Floor
Honolulu, Hawai'i 9681 3
Attomeys for Defendants
OLIVIA CHEN LUM, CLARENCE KWON
HOU LUM, JEANNE S.J. CHAN and HOWARD
N.H. CHAN
2t6t7 | .4

40. STEPHEN K. C. MAU, ESQ. (HD)
Rush Moore LLP
737 Bishop Street, Suite 2400
Honolulu, Hawai'i 9681 3
Attomey for Defendant
DIAMOND HEAD AMBASSADOR HOTEL, LTD.
DATED: Honolulu, Hawai'i, }iAR 1 ? 20ll
ROBERT G. KLEIN
RANDALL K. SCH
JORDON J. KIMURA
Attorneys for Plaintiff (CivilNo. 07-1 -1122-06)
GOLD COAST NEIGHBORHOOD
ASSOCIATION
and Defendants (Civil No. l0-l-0S88-04)
TROPIC SEAS, INC.;THE ASSOCIATION OF
APARTMENT OWNERS OF DIAMOND HEAD
BEACH HOTEL, INC.; DIAMOND HEAD
APARTMENTS, LTD.; C S APARTMENTS,
LTD.; THE ASSOCIATION OF APARTMENT
OWNERS OF 2987 KALAKAUA
CONDOMINIUM ; TAHITIENNE,
INCORPORATED; THE ASSOCIATION OF
APARTMENT OWNERS OF 3OO3 KALAKAUA,
INC.; THE ASSOCIATION OF APARTMENT
OWNERS OF 3OI9 KALAKAUA. INC.