BICKERTON LEE DANG & SULLIVAN WILLIAMW. SAUNDERS JR. 3472 NATHAN P. ROEHRIG 8032 745 Fort Street, Suite 801 Honolulu, Hawai'i 96813 Telephone: (808) 599-3811 Facsimile: (808) 533-2467

Attorneys for Plaintiffs RENO ABELLlRA, MARK CUNNINGHAM, KEONE DOWNING, JOCK SUTHERLAND,

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201~ JAN -2 AM II: 3t.

CLEWt

BILL MARTIN and THE SA VB LANIAKEA COALITION

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HA WAf I

RENO ABELLlRA, MARK CUNNINGHAM, KEONE DOWNING, JOCK SUTHERLAND, BILL MARTIN andTHESAVELANIAKEA COALITION

Plaintiffs,

v.

STATE OF HA WAn DEPARTMENT OF TRANSPORTATION, and JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE BUSINESS ENTITIES 1-10, and DOE GOVERNMENTAL ENTITIES 1-10 and DOE UNINCORPORATED ASSOCIATIONS 1-10,

Defendants.

CIVIL NO. a 0 0 5 - 0 1 G W Be

------(Declaratory Judgment and Injunction)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF; EXHIBITS A & B; SUMMONS

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs Reno Abellira, Mark Cunningham, Keone Downing, Jock Sutherland, Bill

Martin and the Save Laniakea Coalition (collectively "Plaintiffs"), by and through their

attorneys, BICKERTON LEE DANG & SULLW AN, for causes of action against Defendant State of

Hawai'i Department of Transportation, hereby allege and aver as follows:

FACTS COMMON TO ALL COUNTS

1. "Laniakea" is a world-renowned beach and surfing site with unique waves which

has been surfed since ancient times. It is located adjacent to Kamehameha Highway, roughly

halfway between Hale'iwaand Waimea Bay, on the North Shore ofO'ahu. Car and truck

parking to access the beach and surfing site has traditionally been on the South side ofthe

highway in an area that now comprises a portion of the City and County of Honolulu's Laniakea

Support Park (hereinafter the "Park").

2. Plaintiff Reno Abellira is a tax-paying resident of Wahiawa, City and County of

Honolulu, State ofHawai'i. He is and has been a professional surfer, big wave surfing champion

and surfboard maker who uses and has historically used the Park area for more than 40 years, in

particular to park and access the adjoining shoreline, ocean, surfmg sites and other coastal and

environmental resources adjacent thereto.

3. Plaintiff Mark Cunningham is a tax-paying resident of Kawela Bay, City and

County of Honolulu, State ofHawai'i. He is a retired North Shore life guard and a body surfmg

champion who uses and has historically used the Park area for more than 35 years, in particular

to park and access the adjoining shoreline, ocean and other coastal and environmental resources

adjacent thereto.

4. Plaintiff Jock Sutherland is a tax-paying resident of Hale'iwa, City and County of

Honolulu, State ofHawai'i. He is a surfer and was voted the winner ofthe 1969 Surfer

Magazine Poll as the world's most influential surfer. He and his family have lived on the rocky

point just East of Laniakea since the 1960's and the surfmg site opposite his home -- "Jocko's" --

2

is named after him. He uses and has historically used the Park area for more than 40 years to

access the adjoining shoreline, ocean, surfing sites and other coastal and environmental

resources adjacent thereto.

5. Plaintiff Keone Downing is a tax-paying resident of Honolulu, City and County

of Honolulu, State ofHawai'i. He is a surfer and former winner of the Eddie Aikau Surfing

Contest who uses and has historically used the Park area for more than 35 years, in particular to

park and access the adjoining shoreline, ocean, surfing sites and other coastal and environmental

resources adjacent thereto.

6. Plaintiff Bill Martin is a tax-paying resident of Sunset Beach, City and County of

Honolulu, State ofHawai'i. He is a surfer who is confined to a wheelchair and who uses the

Park, in particular to park and stage his wheelchair and other equipment to access the adjoining

shoreline, ocean, surfmg sites and other coastal and environmental resources adjacent thereto.

Laniakea is one ofthe few places on the North Shore where he can comfortably access the beach

on his special wheelchair and go surfmg.

7. Plaintiff Save Laniakea Coalition (hereinafter fl Coalition") is an unincorporated

association based on the North Shore ofO'ahu whose members are dedicated to protecting and

preserving access to and parking for its members and the public who use the Laniakea shoreline

area and nearby surfmg sites and the Park, so that the use and enjoyment thereof by both O'ahu's

residents and visitors may be perpetuated. The members of the Coalition are users of the Park

and the ocean area that is the subject of this suit and they intend to continue to use it in the

future.

3

8. Defendant State ofHawai'i Department of Transportation (hereinafter the

"DOT") is a State agency organized and existing under the laws of the State ofHawai'i as a

political subdivision thereof.

9. Laniakea Support Park is in the Ahupua'a of Kawailoa on the North Shore of

0' ahu. It is a location historically known for the ready ocean access it provides for ocean users -

in particular surfers, fishermen and beachgoers. It is unique among oceanfront park properties

along O'ahu's North Shore in that its coastal waters are very close to Kamehameha Highway and

its parking is such that the waters are easily accessible to the public within a few short footsteps.

The Park is predominantly undeveloped and borders Kamehameha Highway that lies to its North

and private ranchland that lies to its South.

10. The Park is owned by the City and County of Honolulu, includes those certain

Tax Map Keys 61005024, 61009005 and 61010018, and comprises roughly 3 acres of park land.

The Park lies less than 50 feet from the legal shoreline, is within the coastal zone and Special

Management Area ("SMA"), and is protected under the provisions of The Coastal Zone

Management Act, Chapter 205A, and Chapter 25 of the Revised Ordinances of Honolulu.

11. Approximately 1 acre of the Park is a clear, level and open parking area that has

been used in excess of forty (40) years by a variety of individual and group park and beach users,

surfers, kayak paddlers, stand-up paddle (SUP) boarders, swimmers, snorkelers, fishermen,

beach-goers, picnickers, tourists, etc. The Park is primarily utilized as a much-needed parking

area and recreational equipment unloading area for said users and is integral to their coastal

access.

12. Surfing on the North Shore of Hawai'i, in all its forms, is a unique recreational

and cultural activity which dates back to ancient times. Its surfing areas have been recognized as

4

an important cultural resource and access thereto is protected by the Hawai'i State Constitution,

the statutory provisions cited herein and the common law of Hawai' i.

13. As described more fully below, Defendant DOT has recently taken certain actions

within the SMA to place barricades along Kamehameha Highway and prevent public use of the

Park's parking area adjacent thereto.

14. Plaintiffs' use of the Park and its adjacent resources is adversely affected and

severely restricted, if not outright eliminated, by those actions taken and to be taken by the DOT.

Plaintiffs' harm therefrom is discussed more fully below.

15. The activities and land uses which may be lawfully permitted at the Park (and

other existing City beach and support parks) are governed by Article XI of the Hawai'i State

Constitution and the provisions of Hawai'i Revised Statutes (hereinafter nH.R.S.") Chapters 205,

205A and 343, Chapter 25 of the Revised Ordinances of Honolulu ("R.O.H."), the

Comprehensive Zoning Code of the City and County of Honolulu ("CZCn), and the rules and

regulations issued thereunder.

16. This is an action for relief brought pursuant to H.R.S. Chapter 205A-6 which asks

this Court to adjudicate and declare, inter alia, that the DOT has failed and continues to fail to

perfOlTI1 duties required of it by Chapters 205A and 343 and the other authority cited herein,

including preparing an Environmental Assessment ("EA") and obtaining an SMA permit from

the City and County of Honolulu.

17. This is also an action for relief brought pursuant to H.R.S. Chapter 205A-6 which

asks this Court to adjudicate and declare, inter alia, that the DOT's actions described herein are

inconsistent with one or more of the objectives, policies and/or guidelines ofH.R.S. Chapter

205A.

5

18. This is also an action for temporary andlor permanent injunctive relief brought

pursuant to Chapter 205A-6 and R.O.H Sections 25-6.1 and 25-6.2, seeking to enjoin the DOT

from taking the actions described below and requiring them to remove all structures, equipment,

barricades andlor other "development" andlor facilities installed or placed within the SMA until

it has fully complied with all provisions ofH.R.S. Chapter 205A, H.R.S. Chapter 343, ROH

Chapter 25 and other applicable law.

19. The DOT has also characterized its actions described herein as the

"Demonstration Project" phase of its larger proposed "Kamehameha Highway Realignment"

in the area of the Park which is designed to see if these measures would improve traffic flow.

The DOT made those characterizations in various meetings, and in meeting materials which it

prepared and circulated on or about April 18, 2012. Attached hereto collectively as Exhibit A

are excerpts from said meeting materials.

20. During the period November 20, 2013 to the December 22,2013, the DOT began

actively implementing its "Demonstration Project" to place those barricades by creating a graded

foundation for the barricades and other similar work.

21. On December 23, 2013, the DOT placed barricades within the SMA along the

shoulder of Kamehameha Highway which effectively block off and close the Park and its

parking area.

22. The Park is within the SMA covered by the provisions of Chapter 205A. Up until

December 23,2013, the Park had been heavily used by Plaintiffs and the public for park

purposes, ocean use and coastal access, including parking therefor, and the placement ofthe

barriers for an indefinite period by DOT has effectively closed the Park and eliminated any

beneficial use by the public for the above purposes.

6

23. Placement of the barricades and closure of the Park constitute a "development"

within the SMA as defined under H.R.S. Chapter 205A and R.O.H Chapter 25 and an SMA

permit is required.

24. The DOT's decision and action to place barricades within the SMA and close the

Park indefInitely is an incremental part of a larger project to realign Kamehameha Highway for

which an Environmental Assessment is required under H.R.S. Chapter 343 before

commencement.

25. Limitations on the availability of parking and areas for the unloading of ocean

gear (canoes, surfboards, stand-up surfboards, kayaks, paddleboards, beach wheelchairs, etc.) are

signifIcant constraints on public ocean access on Oahu, particularly on the North Shore.

26. Traffic along Kamehameha Highway between Hale'iwa and Turtle Bay often

exceeds the capacity of the public highway connecting those two regions and traffic moves

slowly, largely because people are slowing down along that stretch of Highway looking for

parking and ocean access.

28. The DOT's placement of barriers blocking access to and effectively closing the

Park is having a very significant negative cumulative impact on ocean access and parking and on

Kamehameha Highway traffic beyond the immediate Laniakea area.

29. There are numerous surfmg sites that are regularly accessed via parking at the

Park, including Himalaya's, Slingshots, Laniakea, Holten's and Jocko's. On days when the surf

is good, hundreds of surfers enjoy these surfmg sites and the parking is typically totally utilized.

Laniakea, in particular, is one of only a very small handful of surfmg sites suitable for surfIng

during large North swells which "close out" other reefs.

7

30. There is very limited roadside parking elsewhere along Kamehameha Highway

for miles in either direction from the Park and there are few side streets where such parking is

permitted.

31. Closure of the Park has seriously reduced the ability of Plaintiffs and the public to

use the Park, to offload and stage ocean recreational equipment, and to access the adjacent

beach, surfing sites and ocean because it eliminates the largest legal public parking area within

several miles and few, if any, other areas exist which are susceptible to the same use in the same

proximity to the ocean, particularly on weekends and holidays when public use of ocean

resources on the North Shore is very heavy.

32. The closure ofthe Park has actually increased pedestrian danger by requiring

them to walk in closer proximity to highway traffic than before. It is even more dangerous for

persons such as Plaintiffs who are walking with ocean recreation equipment. The Park closure

has not stopped the public from endeavoring to access the Laniakea beach area. Now, rather

than having a large parking area that is safely off the highway with a predictable area of

pedestrian crossings, beachgoers are forced to park along the narrow highway shoulder before

and after the barriers, and then walk along the narrow highway corridor (made even narrower by

the barricades) and cross randomly at multiple locations. There has also been a marked increase

in illegal parking and its associated pedestrian traffic, including along the very narrow makai

side of Kamehameha Highway.

33. The Hawai'i Supreme Court has recognized the importance of accurately

assessing the broad environmental and social impacts of proposed North Shore developments.

See Unite Here! Local 5 v. City and County of Honolulu, 123 Hawai'i 150,231 P.3d 423 (2010).

8

34. The action by the DOT in blocking access to the Park and eliminating parking

within the SMA is having exactly the type of far reaching environmental and social impact that

H.R.S. Chapter 205A and 343 were intended to prevent by requiring that certain procedures be

followed to assure that all impacts and potential harms be identified, considered, weighed and

mitigated before such action is taken.

35. On or about November 25, 2013, Plaintiff Cunningharil submitted to the DOT,

through its Director, Glenn Okimoto, pursuant to H.R.S. § 607-25, an email letter asking whether

the DOT had applied for, or was going to apply for, an SMA permit prior to the installation of

the barriers and the closure of Park. Said letter also asked whether the DOT had conducted an

Environmental Assessment for the impacts of the barriers and the closure of the Park and

whether it intended to do so.

36. On November 29,2013, the DOT through its Director, Glenn Okimoto, responded

to Plaintiff Cunningham's inquiry in a letter stating that:

No SMA permit is needed for the short term project. Under Hawai'i Revised Statues 205A~22, this project is not considered development under SMA because it falls under Exclusion 2 - Repair or maintenance of roads and highways within existing rights-of-way. Because the short term project is not a development, no SMA permit is needed.

In regards to the Laniakea Support Park, while the City and County of Honolulu has an approved environmental assessment (Laniakea Support Park, Final Environmental Assessment, Haleiwa North Shore, Island of Oahu, January 2005), because the support park have not been constructed (sic), there is no resultant closure.

* * * *

Under Section 11-200-8, Hawai'i Administrative Rules, the HDOT have a list of actions that are generally exempt from requirements regarding the preparation of an EA. The exemptions that apply to the short term project from Comprehensive Exemption List for the State of Hawai 'i Department of Transportation Amended, November 15,2000 are:

9

a. Exemption Class 4.1. Minor ground adjustments which do not require grading permits for the purpose of eliminating hazards to vehicular traffic and aircraft operations or to compromise air navigational aids.

b. Exemption Class 6.1. Installation of flare screens, safety barriers, guard rails, energy attenuators and other appurtenances designed to protect the motoring public.

A copy of that letter is attached as Exhibit B.

37. Plaintiffs are adversely affected by the closure of the Park in that it inhibits their

personal access to, use and enjoyment of the ocean, the shoreline and other coastal resources

adj acent thereto.

38. Plaintiffs have utilized the Park in the past as detailed above and

intend to do so in the future in the same and/or substantially similar ways. Their use of the

Park is special and peculiar to them as compared to members of the general public.

39. Closing the Park for an indefinite period would cause Plaintiffs to suffer a

peculiar and special injury in that it would inhibit their particular uses of the land as well as their

access to and use of the ocean, the shoreline and other coastal resources adjacent to the Park.

40. Plaintiffs' special and peculiar injuries confer them with standing to bring this

case and obtain the relief prayed for below.

41. As evidenced by the DOT's email, Defendant DOT has not applied for and has no

intention of applying for an SMA Permit for the placement of the barriers and closure of the

Park.

42. As more fully set forth below, Plaintiffs submit that the DOT's aforesaid actions

are not in compliance with the applicable statutes and ordinances.

43. There is an actual controversy as to the issues raised herein, including but not

limited to whether, in view of the applicable Federal, State and County laws:

10

A. Said placement of barricades and closure of the Park by the DOT may remain

without the application for and issuance of an SMA permit,

B. Whether the DOT has:

(1) Complied with one or more of the objectives, policies, and guidelines provided or authorized by Chapter 205A within the special management area and the waters from the shoreline to the seaward limit of the State's jurisdiction; or

(2) Failed to perform any act or duty required to be performed under H.R.S. Chapter 205A; or

(3) In exercising any duty required to be performed under H.R.S. Chapter 205A, has not complied with the provisions of said chapter, and

C. Whether the DOT was required to prepare and file an Environmental

Assessment before undertaking its "Demonstration Project."

44. This Court has jurisdiction to enter the relief requested below pursuant to H.RS.

§ 20SA-6 and § 603-21.5 et seq.

COUNT I Violation orR.R.S. Chapter 20SA - No SMA Permit

45. Plaintiffs reallege and incorporate by reference the allegations contained in all

prior paragraphs.

46. H.RS. §205A prohibits anyone and any agency from conducting "development"

within the SMA unless they have first complied with the procedures set forth in H.R.S. §205A

and, on O'abu, RO.H. Chapter 25, including obtaining the required SMA permit.

47. Although there has been limited expenditure by the City and County of Honolulu

on improvements at the Park, it is under the control of the City Parks Department, it is heavily

utilized by the public and it therefore constitutes a public park, despite the DOT's assertions to

the contrary.

11

48. The DOT's decision and action to place barricades and close the Park constitutes

"development" within the meaning ofH.RS. § 205A-22 and RO.H. § 25-1.3 in that it:

A. Constitutes "placement or erection of any solid material" within the SMA,

B. Has caused a significant "change in the density or intensity of use ofland,

including but not limited to" the Park which is within the SMA, as well as the shoreline and

ocean adjacent thereto, andlor

C. Has caused a significant "change in the intensity of use of water, ecology

related thereto, or of access thereto" adjacent to the Park which lies within the SMA.

49. The DOT's actions described above trigger the SMA permit requirements set

forth in H.RS. Chapter 205A and R.O.H. Chapter 25.

50. The DOT has claimed it is exempt from SMA permit requirements, relying on the

following exemption language appearing at H.RS. § 205A-22: "Repair or maintenance of roads

and highways within existing rights-of-way.'!

51. This alleged exemption from the SMA process cited by the DOT is not applicable

because, inter alia, this is not a "repair" or "maintenance" project. Instead, as shown in Exhibit A

hereto, this is a "Demonstration Project" which is part of DOT's larger proposed

"Kamehameha Highway Realignment."

52. This alleged exemption from the SMA process cited by the DOT is not applicable'

because, inter alia, its actions are "part of a larger project, the cumulative impact of which may

have a significant environmental or ecological effect on the special management area, [hence]

that use, activity, or operation shall be dermed as "development" for the purpose of this

chapter." RO.H § 25-1.3.

12

53. Plaintiffs are entitled to declaratory and injunctive relief under H.R.S. §205A-6

ordering the DOT to cease and desist its aforesaid actions and to remove the barricades and re-

open the Park until it has fully complied with all aspects ofH.R.S. §205A and R.O.H. Chapter

25, including acquiring a valid SMA permit.

COUNT IT Violation ofH.R.S. Chapter 205A - Failure to Independently Consider and Comply with the Objectives. Policies and Guidelines of the CZMA

54. Plaintiffs reallege and incorporate by reference the allegations contained in all

prior paragraphs.

55. H.R.S. § 205A-2, et. seq., requires all agencies of the State to consider the

objectives, policies and guidelines of the Coastal Zone Management Act, H.R.S. Chapter 205A-

2, and the rules and regulations issued thereunder and to enforce them before and/or when taking

action within the SMA.

56. H.R.S. § 205A-4 requires that all agencies, including the DOT, give full

consideration to ecological, cultural, historic, esthetic, recreational, scenic and open space values

before and/or when taking action which impact the SMA.

57. H.R.S. § 20SA-4 also provides that the objectives and policies ofH.R.S. Chapter

205A and any guidelines enacted by the legislature shall be binding upon actions within the

SMA by all agencies, within the scope of their authority.

58. H.R.S. § 20SA-6 provides, inter alia, that any person may commence a civil

action alleging that any agency has failed to perfonn any act or duty required to be perfOlmed

under Chapter 205A or, in exercising any duty required to be performed under Chapter 205A,

has not complied with the Chapter's provisions.

13

59. The DOT has failed to independently consider or assess the effect and impacts of

placement of the barricades or closure of the Park in light of the objectives, policies and

guidelines ofH.R.S. Chapter 205A and the rules and regulations issued thereunder, including:

- Consider the importance of public coastal access and the availability of unique recreational and cultural activities in those area;

- Provide coastal recreational opportunities accessible to the public;

- Protect and preserve those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawai'ian history and culture;

- Protecting coastal resources uniquely suited for recreational activities that cannot be provided in other areas;

- Require replacement of coastal resources having significant recreational value including, but not limited to, surfing sites, fishponds, and sand beaches, when such resources will be unavoidably damaged;

- Providing and managing adequate public access, consistent with conservation of natural resources, to and along shorelines with recreational value;

- Providing an adequate supply of shoreline parks and other recreational facilities suitable for public recreation;

H.RS. 20SA-2, et seq.

60. Plaintiffs are entitled to an appropriate declaratory ruling that DOT's aforesaid

actions in installing the barricades and closing the Park are illegal and will remain illegal until it

has fully complied with all aspects ofH.RS. §205A and R.O.H. Chapter 25.

61. ,:plaintiffs are entitled to appropriate temporary and/or permanent injunctive relief

under H.RS. §205A-6 ordering the DOT to cease and desist its aforesaid actions, to remove the

barricades and other "development" in the SMA, and to reopen of the Park until such time as it

has fully complied with all aspects ofH.RS. §205A and RO.H. Chapter 25.

COUNT ill Violation of NEP A and H.R.S. Chapter 343 - Lack of an EA or EIS

14

62. Plaintiffs reallege and incorporate by reference the allegations contained in all

prior paragraphs.

63. H.R.S. Chapter 343, entitled "Environmental Impact Statements," provides under

§343-5 that:

(a) Except as otherwise provided, an environmental assessment shall be required for actions which:

(1) Propose the use of state or county lands or the use of state or county funds ...

* * * * (3) Propose any use within the shoreline area as defined in section 20SA-4;

* * * * 64. The DOT's aforesaid actions involve the use of state and county lands and uses

within the shoreline area as defined in section 20SA-41, hence, an EA is required.

6S. DOT has admitted in Exhibit A hereto that the aforesaid placement of barriers and

closure of the Park and its parking constitute an experimental "Demonstration Project," and are

an incremental part of the larger "Kamehameha Highway Realignment" which will use State and

Federal funds, which will require approval of the secretary of the U.S. Department of

Transportation and which will potentially have far reaching social and environmental impacts.

Upon information and belief, the DOT is preparing an EA relating to that larger project and

Plaintiffs believe that a full Environmental Impact Statement will be required under H.R.S.

Chapter 343.

66. DOT has conceded in Exhibit A hereto that it is required in carrying out this

larger project to abide by the requirements of the National Environmental Policy Act ("NEP A")

and H.R.S. Chapter 343 entitled "Environmental Impact Statements."

IS

67. The DOT's actions constitute a "Multiple or Phased Applicant or Agency Action"

within the meaning of Chapter 11-200 of the Hawai'i Administrative Rules ("HAR") which were

enacted pursuant to H.R.S. Chapter 343 and an EA is required.

68. DOT is required under NEPA and H.R.S. Chapter 343, at the very least, to

prepare an EA for this incremental portion of that larger project, if not separately for this

particular phase itself.

64. DOT has conceded in Exhibit A hereto, that under Section 4(f) of the federal

Department of Transportation Act of 1966:

The secretary may approve projects requiring the use of publicly owned land of a public park, recreation are~ or wildlife/waterfowl refuge, or land of a historic site of national, state, or local significance (as determined by the officials having jurisdiction over the park, recreation are~ refuge, or site) only if:

- There is no feasible and prudent alternative to such use, and

- The project includes all possible planning to minimize harm

49 USC § 303,23 CFR § 771.135, and Exhibit A.

65. The DOT has not conducted any sufficient study or analysis to determine the

feasibility and prudence of using other alternatives to this experimental "Demonstration Project,"

including but not limited to the prohibition of tour bus stopping or parking, the installation of

crosswalks (with or without walk signals), the use of crossing guards, and/or other feasible

alternatives which would better solve those problems while still promoting the objectives,

policies and guidelines ofthe NEPA, 49 USC §303, 23 CFR §771.135, H.R.S. Chapter 343,

H.R.S. Chapter 205A, HAR Chapter 11-200 and the rules and regulations issued thereunder,

including the importance of public parks, public coastal access and the availability of unique

recreational and cultural activities in those areas.

16

66. The alleged exemptions from the EA process cited by the DOT in Exhibit B

hereto are not applicable because its aforesaid actions are not a "minor ground adjustment

project," a "maintenance project" or a "project to protect the motoring public." Instead, as

admitted by the DOT in Exhibit A hereto, it is part of the larger "Kamehameha Highway

Realignment," and constitutes an experimental "Demonstration Project."

67. The alleged exemptions from the EA process cited by the DOT in Exhibit B

hereto are not applicable because its aforesaid actions have significant incremental and

cumulative impact in combination with the larger "Kamehameha Highway Realignment" and

Chapter 11-200 of the Hawai'i Administrative Rules ("HAR") provides that no EA exemption is

available where "the cumulative impact of planned successive actions in the same place, over

time, is significant."

68. Plaintiffs are entitled to declaratory and injunctive relief under H.R.S. §205A-6

ordering the DOT to cease and desist its aforesaid actions, to remove the barricades and other

"development" in the SMA, and to reopen of the Park until such time as it has fully complied

with all aspects ofNEPA, H.R.S. §205A, HAR Chapter 11-200, R.O.H. Chapter 25, 49 USC §

303, and 23 CFR 771.135.

WHEREFORE, Plaintiffs request that this Court enter a final judgment in their favor, as

well as any appropriate interim orders and/or injunctions, which provide the following relief:

A. A declaration under H.R.S. §205A that the DOT may not maintain the barricades

and/or other "deVelopment" within the SMA, and/or blockade or close the Park, unless and until

a valid SMA permit has been issued consistent with the provisions ofH.R.S. Chapter 205A and

ROH Chapter 25, and a further declaration that any such actions in the absence of a valid SMA

permit are unlawful.

17

B. A declaration under H.R.S. §205A-6 that the DOT may not maintain the

barricades and/or other "development" within the SMA, and/or blockade or close the Park, until

such time as an EA has been prepared, accepted and processed for further action consistent with

the provisions ofNEPA, H.R.S. §205A, R.O.H. Chapter 25,49 USC § 303, and 23 CFR

771.135. and a declaration that any such actions in the absence of an EA are unlawful.

C. A declaration that any permits or other approvals issued by any agency allowing

placement of the barricades and/or other "development" within the SMA; and/or blockage and/or

closure of the Park, in the absence of an SMA permit are unlawful, null and void.

D. Appropriate injunctive orders parallel to and in enforcement of the above-

requested declaratory relief requiring the DOT to fully comply with the law, requiring it to

remove all of the barricades and other "development" within the SMA, requiring it to reopen

access to the Park, and to enjoin it from taking any further actions related to closing the Park in

violation of applicable Federal, State and City statutes, ordinances, rules and regulations.

E. An award of costs and attorneys' fees pursuant to H.R.S. Section 607-25 and all

other applicable law and custom, including the private attorney general doctrine, and such other

and further relief as this Court deems just and proper.

DATED: Honolulu, Hawai'i

WILLIAM W. SAUNDERS, JR. NATHAN P. ROEHRIG Attorneys for Plaintiffs RENO ABELLJRA, MARK CUNNINGHAM, KEONE DOWNlNG, JOCK SUTHERLAND and THE SAVE LANIAKEA COALITION

18

m >< :::I.: OJ ----i

~

Ie a I a

Kamehameha Highway Realignment, Vicinity of Laniakea Beach Qiahu

Task Force Meeting #2

Department of Transportation Highways Division

tin a

" Demonstration project discussion

" 15 minutes open for public comments

" L\pproval of meeting #1 summary and Purpose and Need

" Highway planning 101

" Project constrain s and breakout

" ~omework and Closing

• This is not a final solution

strati

• Met with stakeholders, primarily Department of Parks and Recreation, Kamehameha Schools, and divisions within

DOT

• Took preliminary traffic counts

iii ec

5 ati

" Constraints identified:

-- Budget (limited)

-- No new pavement

- Cannot trigger grading permit

~ Bus stops

~ Utility poles

- Agreement with landowner(s)

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• Please keep focused on transportation issues (either demonstration or long-term)

• Address either HDOT or Task Force members

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• Both State of Hawai'j and Federal money ill fu d this project@ herefore, both State and Federal laws must be complied with@

• The laws are numerousu®

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atio al Envi onmental Polic Act (NEPA)

• Declare a NATIONAL POLICY which will encourage productive and enjoyable harmony between ma and his environment to@@@ ....... · ·revent or eliminate damage to the environment ---- stimulate the health and welfare of man ~ enrich the understanding of ecological systems and the

natural resources important to the nation

• The State of Hawai'i has its uEIS Law", HRS Chapter 3 3, which is commonly referred to a HEPA

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• Alternatives -- no build, TSM, reasonable build

• Impacts ...... avoid, minimize, and mitigate

• I\/ljtigate -- repair, rehabilitate, restore; preserve; compensate

• Public Involvement -- all stakeholders, environmental justice

• Interagency Coordination

• Documentation -- EA or EIS, for example

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National Historic Preservation Act

Section 4(f) of USDOT Act (49 USC 303)

Endangered Species Act

Clean Water Act

Rivers and Harbors Authorization Act

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970

Americans with Disabilities Act

Environmental Justice (EO 12898)

farmland Protection Policy Act

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Clean Air Act

Highway Noise Standards

Solid Waste Disposal Act

Resource Conservation and Recovery Act

Title VI of Civil Rights Act of 1964

Comprehensive Environmental Responsejl Compensation and Liability Act

Emergency Planning and Community Right to Know Act of 1986

AND MORE ...

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" The secretary may approve projects requiring the use of publicly owned land of a public park, recreation area, or wildlife/waterfowl refuge, or land of a historic site of national, state, or local significance (as determined by the officials having jurisdiction over the park, recreation area, refuge, or site) only if:

ere is no feasible and prudent alternative to such use, and

- The project includes all possible planning to minimize harm

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• Coastal Zone Management Act 1972 required states to develop a program to protect the coastal zone

• Special Management Areas (SMA) are designated and administered by counties

• The SMA permit regulates permissible land uses that are already allowed by land use policies including zoning designations, cou ty general plans, and community development plan

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• F rther consider long-term project alternatives

• Establish screening criteria to assess the various alternatives

• Target date: june 2012

Mr. Mark Cunningham Mrc 123@me.com

November 29,2013

Subject: Laniakea Special Management Area and Environmental Assessment Kamehameha Highway Realignment, Vicinity of Laniakea Beach Project No. 83-01-09

Dear Mr. Cunningham:

Thank you for your October 25,2013 e-mail concerning need of a Special Management Area (SMA) permit and environmental assessment (EA) for the Hawaii Department of Transportation (HDOT) plans to block parking on the mauka side ofKamehameha Highway at Laniakea.

The HDOT short term project will place barriers that will eliminate parking on the mauka side of Kamehameha Highway fronting Laniakea Beach for a one month period. By eliminating parking on the mauka side of the highway, pedestrian safety will be improved by reducing the number of pedestrian crossing Kamehameha Highway. Pedestrian safety is the primary reason why HDOT is implementing the short term project. The issues you raised are addressed below.

1. Have HDOT applied for and received a SMA permit for the placement of barriers along Kamehameha Highway near "Laniakea" and the resultant closure of Laniakea Support Park.

No SMA permit is needed for the short term project. Under Hawaii Revised Statues 205A-22, this project is not considered development under SMA because it falls under Exclusion 2 - Repair or maintenance of roads and highways within existing rights-of­way. Because the short term project is not a development, no SMA permit is needed.

In regards to the Laniakea Support Park, while the City and County of Honolulu has an approved environmental assessment (Laniakea Support Park, Final Environmental Assessment, Haleiwa North Shore, Island of Oahu, January 2005), because the support park have not been constructed, there is no resultant closure.

2. Have HDOT conducted an Environmental Assessment (EA) for the impacts of the proposed placement of barriers and the closure of this Park.

Under Section 11-200-8, Hawaii Administrative Rules, the HDOT have a list of actions that are generally exempt from requirements regarding the preparation of an EA. The exemptions that apply to the short term project from Comprehensive Exemption List for the State of Hawaii Department of Transportation Amended, November 15, 2000 are:

EXHIBIT B

a. Exemption Class 4.1. Minor ground adjustments which do not require grading permits for the purpose of eliminating hazards to vehicular traffic and aircraft operations or to compromise air navigational aids.

b. Exemption Class 6.1. Installation of flare screens, safety barriers, guard rails, energy attenuators and other appurtenances designed to protect the motoring pUblic.

Because the short term project falls under the above exemption classes, no EA is needed. In regards to the Laniakea Support Park, as stated above, because it has not been constructed, there is no resultant closure.

If you have additional comments or question, please feel free to contact the HOOT project engineer, Mr. Darell Young at 587-1835.

Glenn Okimoto Director of Transportation

CASE NUMBER STATE OF HAWAI'I CIRCUIT COURT SUMMONS

OF THE FIRST CIRCUIT TO ANSWER CIVIL COMPLAINT

PLAINTIFF, VS.

RENO ABELLlRA, MARK CUNNINGHAM, KEONE DOWNING, JOCK SUTHERLAND, BILL MARTIN and THE SAVE LANIAKEA COALITION

PLAINTIFF'S ADDRESS (NAME, ADDRESS, TEL. NO.)

WILLIAM W. SAUNDERS 3472 NATHAN P. ROEHRIG 8032 Bickerton Lee Dang & Sullivan 745 Fort Street, Suite 801 Honolulu, Hawai'i 96813 (808) 599-3811

TO THE ABOVE-NAMED DEFENDANT(S)

DEFENDANT.

STATE OF HAWAI'I DEPARTMENT OF TRANSPORTATION, and JOHN DOES 1-10; JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE BUSINESS ENTITIES 1-10, and DOE GOVERNMENTAL ENTITIES 1-10 and DOE UNINCORPORATED ASSOCIATIONS 1-10

You are hereby summoned and required to file with the court and serve upon

Bickerton Lee Dang & Sullivan, 745 Fort Street, Suite 801, Honolulu, Hawai'i 96813 -------------------------------------------------------------------- , plaintiff's attorney, whose address is stated above, an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the date of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

DATE ISSUED

2

THIS SUMMONS SHALL NOT BE PERSONALLY DELIVERED BETWEEN 10:00 P.M. AND 6:00 A.M. ON PREMISES NOT OPEN TO THE GENERAL PUBLIC, UNLESS A JUDGE OF THE ABOVE-ENTITLED COURT PERMITS, IN WRITING ON THIS SUMMONS, PERSONAL DELIVERY DURING THOSE HOURS.

A FAILURE TO OBEY THIS SUMMONS MAY RESULT IN AN ENTRY OF DEFAULT AND DEFAULT JUDGMENT AGAINST THE DISOBEYING PERSON OR PARTY.

CLERK

I do hereby certify that this is full, true, and correct copy of the original on file in this office

Circuit Court Clerk ~,;;::>'

~ In accordance with the Americans with Disabilities Act and other applicable state and federal laws, if you require a reasonable accommodation for a disability, please contact the ADA Coordinator at the First Circuit Court Administration Office at PHON E NO. 539-4333, FAX 539-4322, or TTY 539-4853, at least ten (10) working days prior to your hearing or appointment date.

Reprographics (07/11) RevaComm 508 Certified SUMMONS TO ANSWER CIVIL COMPLAINT 1 C-P-787