A 2nd Circuit Court complaint has been filed to stop the Four Seasons Resort Maui at Wailea from taking a public portion of Wailea Beach for its guests' exclusive use.
"These are some of our most precious lands that are being taken by the hotels for their exclusive use," said Dana Naone Hall, a plaintiff. "We're not making any more beaches. Any time a public beach is not available to the public it puts more pressure on every other beach."
She is a member of Malama Kahakai, which also is a plaintiff in the case and is an association aimed at protecting and preserving beaches in South Maui and elsewhere for the use and enjoyment of Native Hawaiians and members of the public.
The legal challenge can be expected to throw a spotlight on hotel and resort commercial use of public beach lands, a practice that occurs on other beaches in Maui County.
On Jan. 25, the Four Seasons received from the state Board of Land and Natural Resources a 10-year easement on state lands for the resort to "pre-set" beach chairs within designated easement areas on Wailea Beach.
The beach, also used by guests of the Grand Wailea and the Wailea Beach Villas, was named as America's "best beach" in 1999 by "Dr. Beach," professor Stephen Leatherman of Florida International University, who issues annual rankings of beaches.
The Four Seasons' case could be precedent-setting because it's the first attempt by a resort to "legitimize what has been ongoing violations," Hall said. If the land board's approval of the resort's easement is allowed to stand, then there "will be a domino effect" with the land board receiving similar requests from other hotels and resorts statewide.
The lawsuit names as defendants Four Seasons resort owner 3900 Wa Associates; the board and department of Land and Natural Resources; and William Aila Jr., in his official capacity as land board chairman.
On Friday, DLNR spokeswoman Deborah Ward said that the department had no comment because the matter is pending litigation. And, a woman who answered the phone Friday in the general manager's office at the Four Seasons Maui said that the resort would have no comment.
"The Four Seasons Resort places multiple long rows of chairs and umbrellas, on a daily basis, on Wailea Beach for its guests alone," the plaintiff's announcement of the lawsuit said. "The resort also stores umbrellas, chairs, canoes, kayaks, paddle boards, surfboards and other ocean activities equipment on the public beach."
The lawsuit alleges that the Four Seasons has "ignored" complaints about its commercial uses of the beach from 2005 through Jan. 25 of this year. Those complaints include:
* A Jan. 7, 2005, instance in which a member of the public complained about commercial activities and a state enforcement officer observed at least 60 beach chairs with covers on the beach, two canoes and one Hobie Cat on state lands at Wailea Beach.
* An April 7, 2007, case in which an enforcement officer reported nine cabanas and 18 beach chairs on the beach fronting the Four Seasons.
* An Aug. 24, 2007, complaint in which the state issued a "notice and order" to the Four Seasons general manager pointing out numerous complaints in the previous two years about unauthorized exclusive use of public lands and commercial activities. The notice reported 60 beach chairs, 29 umbrellas and eight tables (all more or less) as well as kayaks, canoes and other recreational equipment, all on Wailea Beach public lands, for the sole use of paid guests for a fee.
* A Dec. 10, 2008, instance in which the DLNR notified the Four Seasons of its unauthorized use of an all-terrain vehicle to rake sand fronting the resort.
* A May 11 formal complaint about the resort's ongoing commercial activity on Wailea Beach, with DLNR again documenting umbrellas, chairs and outrigger canoes belonging to the resort.
The lawsuit says a board submittal used by the Four Seasons to seek the beach easement "misrepresents the 'area' of the easement."
On the first page of the submittal, the document refers to the area of the easement as being 2,400 square feet, the lawsuit points out. But in the submittal's "remarks" section on its third page, the easement areas are described as being 70-by-70 feet and 50-by-90 feet for a combined total of 9,300 square feet, or almost four times larger than what had been "amorphously" depicted on an exhibit in the board submittal, the lawsuit says.
Also, the Four Seasons' request for board authorization of its proposed easement did little to attract public attention, according to the lawsuit. The item appeared as agenda item D.5 for a term easement to a Delaware LLC for "encroachments related to presetting of chairs on the beach purposes" in Honuaula, Maui.
"The approval of an easement by defendant BLNR . . . was an unlawful attempt to provide an appearance or aura of legal authority or legitimacy for these uses and activities when, in fact, significantly more uses were involved than just the presetting of chairs, these uses and activities take place in locations outside of the 'easement areas' granted and the Four Seasons has made no effort to comply with the terms of the easement, in any event," the lawsuit states.
It maintains that the Four Seasons' privatization of Wailea Beach, fronting its property, has "hampered, prevented and discouraged" use of the beach by Native Hawaiians and other members of the public.
The complaint asks a judge to void the land board's approval of the easement for the Four Seasons, to declare that a requirement of the preparation of an environmental assessment was illegally bypassed and to issue a judgment that Four Seasons and its employees have been conducting unpermitted commercial activities at Wailea Beach and that those activities and encroachments must cease.
"One of our greatest assets is our beaches," Hall said. "You don't have to be rich or belong to an exclusive club to have access to the beach, but you feel rich once you are there."
Hotels and resorts charge guests a high price for an exclusive experience in Hawaii, she said.
"I don't think our beaches should be part of that package," she said.
* Brian Perry can be reached at firstname.lastname@example.org.