Judge rejects Papa‘ikou Mill Beach condemnation suit

  • A view of Papa‘ikou Mill Road. (Tribune-Herald file photo)

A judge has ruled in favor of the landowners in a condemnation lawsuit filed three years ago by the county that was aimed at acquiring a trail over private property that is the only existing land access to Papa‘ikou Mill Beach.

Hilo Circuit Judge Henry Nakamoto on Feb. 12 granted a motion by Papa‘i-kou Landing Inc., a Canadian corporation holding title to the former sugar mill property, for summary judgment against Hawaii County.

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The county filed an eminent domain suit on March 1, 2017, against Papa‘i-kou Landing. The company’s principal is James Waugh, a Canadian who lives part time at the converted former sugar mill with his wife, Charlene Prickett, whom a legal document identifies as “Papa‘i-kou’s lessee.”

Nakamoto’s granting of the motion was without prejudice, leaving the county free to refile the suit.

“The primary reason that Prickett and Waugh gave is that the complaint didn’t have an adequate map. I disagree,” said Christopher Yuen, a state Land Board member and former county planning director and deputy corporation counsel, who supports the acquisition of the trail by eminent domain. “… They had a map with the metes and bounds of (Papa‘ikou Mill Road, which Papa‘i-kou Landing Inc. owns), they had a map of the trail, and they had a description of the area that was proposed to be taken as an easement. So they know where it is.

“The county can appeal. I hope they’ll appeal.”

Laureen Martin, the Corporation Counsel’s litigation chief, said only that county attorneys are “weighing our options.”

In the motion and a supporting memorandum, Mark Murakami, attorney for Papa‘-ikou Landing Inc., argued for dismissal, saying the “county filed a half-baked complaint” that sought “to condemn an incomplete easement that cannot be used for its stated purpose, a pedestrian walkway connecting the public road to the public beach.”

According to the memo, the property “was closed to the public for 150 years, from the mid-1800s to 1996, when Papa‘i-kou purchased it, began to rehabilitate it on its own, and allowed limited public access.”

The memo stated that between 1996-2012, the private rehabilitation of the property and “Demolition Road,” the switchback trail cut by Waugh to the beach, cost millions. That includes $1.98 million for the trail itself.

According to the memo, in 2019, “police officials actually requested that Papa‘i-kou further restrict public access to daytime hours” and “Papa‘i-kou complied and began locking the person-gates at 6:30 p.m. each evening, year round, and generally reopening the gates at 6:30 a.m.”

The document states that Waugh and Prickett were “publicly castigated” and “withstood a constant barrage of derogatory racial names referencing their non-local ancestry and were told to ‘go home,’ and ‘you don’t belong here,’ for example.”

According to the filing, the county “caved to pressure” when it passed a resolution in November 2012 that authorized using eminent domain to gain the easement to the beach. The lawsuit came almost five years after the resolution was passed.

Papa‘i-kou also claimed the county “did not obtain a title report before adopting the resolution. Nor did it survey the land.” It noted a closure by the county in May 2018 after an earthquake damaged a concrete wall in the area, “which posed a significant risk to beach-goers.”

“Additionally, possibly as a result of incorrect media reports about the resolution, several members of the public have exhibited hostility toward Mr. Waugh and Ms. Prickett, forcing them to hire private security to ensure their safety,” the memo claims.

The county claimed, in its reply to Papa‘i-kou’s motion, that in 2017 it retained certified general appraiser, Ted Yamamura, who “personally visited Papa‘ikou and the site of the proposed easement,” and appraised its value at $38,500 — a sum Prickett and Waugh aren’t bound by law to accept.

The county also said a “metes and bounds description of Papa‘ikou Mill Road was done by Donald J. Murray — a professional land surveyor.”

In addition, the county claimed some community members “who use the proposed easement are Native Hawaiians” and they “have special rights and privileges regarding beach and recreational areas, and transit along the shorelines … .”

Kalani Lyman, a Native Hawaiian and descendant of historic Hilo missionaries David and Sarah Lyman, claims his family has had access to the beach for six generations. He said he thinks the court’s decision is “real pilau” — a Hawaiian word meaning rotten.

“How can foreigners tell us how to live?” Lyman asked, rhetorically, and added, “For years, us Hawaiians, we try to fight things the legal way now, and then yet, we get trod upon. That’s why there’s civil disobedience nowadays, like up on the mauna. We’re fighting for our ocean rights, our mountain rights and we get (expletive) upon.

“But this is not pau yet at Papa‘ikou Mill.”

Proponents of the trail’s condemnation have suggested the landowner couple’s money might have bought political favors.

The state Campaign Spending Commission website shows a $1,000 donation by Prickett to Mitch Roth’s 2012 campaign for county prosecutor. Roth, then a deputy prosecutor who was elected prosecutor that year, and remains in the office, is a now a candidate for Hawaii County mayor.

There are no listed contributions to any political candidates or officeholders by Waugh or Pap‘ai-kou.

Reached Tuesday by phone, Waugh declined to comment, but a statement by Waugh in court filings said, “After passage of the resolution, county representatives told the media and public that the condemnation was the result of a ‘failed five year negotiation.’ The county never negotiated with Papa‘i-kou.”

In the statement, Waugh said he doesn’t know “why there was such a delay” between the passing of the resolution and the filing of the condemnation suit.

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“The resolution has been a cloud over our property, our title, and our peaceful enjoyment of the property for several years,” Waugh said in the document.

Email John Burnett at jburnett@hawaiitribune-herald.com.

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