Waipi‘o Valley Road remains closed to all but a handful of people, but on Tuesday, a judge ruled a civil case to reopen the road which was closed in February via an emergency declaration by Mayor Mitch Roth can proceed.
Hilo Circuit Judge Peter Kubota denied a motion by Hawaii County to dismiss the suit brought by Malama I Ke Kai ‘O Waipi‘o and 14 individuals, a week after a hearing on the motion.
“The fact that we’re dealing with a moderate danger, and nothing in any report or any evidence (of) an imminent danger bothers me …,” Kubota said.
The county contends the steep road to the remote Hamakua Coast valley presents an imminent danger of injury or death by rockfall to vehicle occupants, based on a report by Seattle engineering firm Hart Crowser. The plaintiffs presented their own study by Panos Prevedouros, a professor emeritus of engineering at the University of Hawaii, which concluded a substantially lower risk of death or injury by rockfall than did Hart Crowser.
Kubota acknowledged that Roth, as mayor, has powers vested by the state Constitution to declare emergencies and take appropriate measures in emergency situations.
“We have to give highest regard to the constitutional right before it will be infringed,” the judge said. “However, in this case today … the court doesn’t have to justify constitutional issues because it’s enough to find that, with the evidence submitted before this court, there is a disputed material fact that is the grounds and justification for the closure. The competing rockfall probability analyses … and whether there’s ever been a rockfall causing injury or death in the whole recorded history of Waipi‘o Valley Road, the court has to deny the motion to dismiss on the grounds that there are genuine issues of material fact.”
Steven Strauss, attorney for Malama I Ke Kai ‘O Waipi‘o and one of the individual plaintiffs, asked if the court “would encourage or order mediation in this case.”
“It is a divisive case,” Strauss told the judge. “And we reached out to the mayor prior to the lawsuit and unfortunately, for whatever reason … he wasn’t able to meet with me or discuss it.
“But if the court were to order mediation and we engaged in good faith, we would be willing to put this hearing off for a short period of time and see if we could fashion a remedy that may result in something that would be acceptable both to the county and the plaintiffs … and the county may be able to rethink its position. And we could go from there.”
Deputy Corporation Counsel Steven Idemoto told the Tribune-Herald afterwards he “would have to talk to the mayor” about the possibility of mediation.
“This is the first time the plaintiffs have raised that issue, so I haven’t had a chance to talk to the mayor,” Idemoto said.
Strauss has filed motions for summary judgment and a preliminary injunction and a hearing on those motions is scheduled for 9:30 a.m. July 22.
“I don’t see that the county’s position is going to get any better,” Strauss said after the hearing. “So even if the judge doesn’t reach all the issues, we want him to take the factual issues off the table in which there is no genuine dispute, so we can narrow the case if we have to go further with evidentiary hearings or trial.”
Email John Burnett at jburnett@hawaiitribune-herald.com.