Federal judge tosses out
hiking access lawsuit

Visitors blocked from an East
Honolulu trail cannot sue, she says

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By Debra Barayuga
dbarayuga@starbulletin.com

A federal judge has dismissed a lawsuit filed by visitors who sued the Hawaii Loa Ridge Owners Association for denying them access to a hiking trail above the gated East Honolulu subdivision.

U.S. District Judge Helen Gillmor, in a ruling issued Dec. 28, said the plaintiffs have no standing to sue for prospective relief and have not shown evidence of "real and imminent future harm."

Because they have no standing, Gillmor stopped short of ruling whether the restrictions governing access to the hiking trail violate state or county laws or the plaintiffs' rights under the U.S. Constitution.

Attorneys for the plaintiffs and the owners association did not return calls for comment.

Peter Kalischer and daughter Danielle Kalischer of Japan and Dan and Eileen Mackenzie of Illinois sued the association and the city in December 1999 after they were turned away by security guards who said they needed a state of Hawaii identification card or Hawaii driver's license to access an easement via Puu Ikena Drive, a private roadway that leads to a public hiking trail above Hawaii Loa Ridge.

They were told, however, that they could be granted access if they obtained the proper IDs.

The restrictions, which also require hikers to sign waivers of liability, are part of an agreement reached in 1983 between the city and HMF Inc., developer of Hawaii Loa Ridge, which later conveyed its fee-simple interest to the owners association.

The plaintiffs contend requiring them to produce Hawaii IDs was unreasonably burdensome and discriminating against visitors. They alleged the restrictions violate state and county laws concerning public access through private subdivisions and their rights of equal protection, privileges and immunities under the U.S. constitution.

The plaintiffs sued for prospective injunctive relief, not for past injury.

Gillmor noted that the threat of future harm must be "sufficiently real and immediate," and not speculative.

While the plaintiffs do not live near Hawaii Loa Ridge trail and would have to travel to return to Hawaii, they present no evidence of a strong likelihood they will return, which can be used to show future harm, Gillmor said.

"Although specific plans to return are not necessary, something more than speculation is required to establish standing," she wrote.

While other nonresidents will also be affected by the restrictions, they must be harmed in an individual way to also seek prospective relief, Gillmor noted.

Jeff Mikulina, director of the Sierra Club Hawaii Chapter, which supported the plaintiffs, said they are encouraged that the court did not decide on the merits of the case. "But it's still frustrating."

The issue has been dragging on, and public trails are still being blocked by private landowners, he said. "It's some irony when you think about how much money the state spends in promoting tourism when you can't even go on state trails if you're a visitor."

Mikulina said the Sierra Club, while it was not party to the suit, has been strong proponents of public access and might want to pursue the issue further.