RICHARD WALKER / RWALKER@STARBULLETIN.COM Didi Herron said the Turtle Bay Resort is denying her access to the rocky shoreline next to its swimming pool -- an area she has fished from for nearly 40 years. Previous owners of the hotel, she said, always allowed her access to the spot.

Fishing for
beach access

Didi Herron wants to go to
her usual spot; a resort cites
liability and 9/11 to keep her out

Court ruling addressed issue

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By Tim Ruel
truel@starbulletin.com

Late one night in May, Punaluu resident Didi Herron went to catch lobsters that hide under rocks bordering an oceanfront swimming pool at the North Shore's only major hotel, the Turtle Bay Resort.

She ended up catching a heartache.

A security guard told Herron to leave. "It was no longer an option to fish there," said Herron, 54, who has fished at the spot for nearly 40 years.

A hotel official later said the Turtle Bay doesn't want fishing equipment or surfboards near its pool because of concerns over liability. The resort is also being careful about security in the wake of the Sept. 11 terrorist attacks, said Linda Rosehill, a local consultant who works for the Turtle Bay's owner, Oaktree Capital Management LLC. Hotel guests these days want to feel safe, Rosehill said.

How does a fisherman or a surfer pose a security threat to a secluded North Shore hotel? "I would prefer not to comment on all of that," Rosehill said.

RICHARD WALKER / RWALKER@STARBULLETIN.COM Turtle Bay Resort

The hotel's position has drawn fire from Herron, a part-Hawaiian who thinks the right-of-entry to private property needs to be expanded for Native Hawaiians, potentially affecting all sorts of landowners statewide.

Oaktree, based in Los Angeles, is spending more than $40 million to remake the once-rundown 470-room Turtle Bay resort. The hotel is going after the market for corporate meetings, and is more than doubling its meeting space. The Turtle Bay is also under new management, with Texas-based Benchmark Hospitality taking over a year ago from former manager Hilton Hotels.

After being told to leave by the security guard, Herron spoke with the hotel's night manager. "She said that they have a directive from their management that fishing on that wall over there is no longer an option," Herron said. The "wall" is essentially the rocks that separate the swimming pool area from the ocean.

In speaking with the manager, Herron quoted the Hawaii Supreme Court's landmark 1995 opinion that reaffirmed traditional Native Hawaiian cultural rights on private property. It is commonly referred to as the PASH decision, named after plaintiff Public Access Shoreline Hawaii.

Herron refused to leave the fishing site. She told the manager the hotel would have to call police to remove her. Herron went back to her spot and stayed through midnight, without any further confrontation. She later left, of her own volition, and hasn't gone back to fish since, also by her own choice.

But Herron fumed over the incident, so she went public with her story.

As part of its remake, the Turtle Bay Resort needs development approvals from the city, in the form of a Special Management Area use permit, a Shoreline Setback Variance application and a draft environmental assessment. In a May 9 meeting, the Koolauloa Neighborhood Board gave a contingent vote in support of the project. When the board continued discussion on the Turtle Bay permits at its June 13 meeting, Herron described her run-in with the hotel, drawing concerns from some board members, according to the meeting minutes.

In search of a response, Turtle Bay asked for guidance from the former Supreme Court senior associate justice who wrote the 1995 PASH decision, Robert Klein.

"I do believe he was hired by Oaktree," Rosehill said.

Last month, Klein told the Koolauloa Neighborhood Board that a critical issue in the Turtle Bay case is that the property in question is fully developed, according to the meeting minutes. Under Klein's PASH decision, developed property is exempt from a provision in the state Constitution that governs Native Hawaiian rights.

Klein is essentially interpreting his own Supreme Court decision in a way that favors Turtle Bay, not Herron. Klein declined to discuss his position in an interview.

Hawaii professional conduct rules bar a lawyer from representing "anyone in connection with a matter in which the lawyer participated personally and substantially as a judge ... unless all parties to the proceeding consent after disclosure." Klein declined comment on the effects of this rule.

Klein, a part-Hawaiian who retired in 2000 from the state's high court, is a partner with the Honolulu law firm McCorriston Miller Mukai MacKinnon. He recently was named counsel for the board of the state Office of Hawaiian Affairs.

Herron did not attend last month's neighborhood board meeting, though she said she disagrees with Klein's position. She notes the Turtle Bay's previous owners -- the Asahi Jyuken and Prudential Insurance companies -- allowed her access to the property.

That sets a precedent, Koolauloa neighborhood board member John Elkington said at the September meeting, according to the minutes. In response, Klein said there were traditional practices in Waikiki that stopped when hotels were built.

Rosehill noted there are many other places near the hotel where the public is able to get to the beach and fish. The hotel has 18 parking spaces for the public, Oaktree says.

Herron said she still wants to take the matter to court. She and her supporters were looking for an attorney last week. Herron and Klein haven't met to talk about the issue, and plan to talk Thursday.

The issue of beach entry could be raised during the city approval process for Turtle Bay's redevelopment plans, said Steve Holmes, who since 1991 has served as councilman for the district that includes Turtle Bay.

"They should be a good corporate citizen and provide public access," Holmes said.

In reviewing developments proposed in a special management area, the City Council can set terms that ensure there is adequate entry for the public to use beaches and shoreline in "all development" on the property, according to a city ordinance.

As part of its recent application, the 26-acre Turtle Bay is seeking to renovate its swimming pool, expand its Ocean Villa cabanas and build new meeting rooms, a ballroom, office space and outdoor dining areas. The resort was built in 1972.

The Turtle Bay applications are being reviewed by the city Department of Planning and Permitting, which will make a report to the City Council. Final approval of the permits would likely have to come from a newly elected Council, following next month's elections.

The Koolauloa Neighborhood Board is scheduled to continue discussing the Turtle Bay Resort's redevelopment at a meeting Thursday at the Hauula Community Center.

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Landmark decision laid down access law In defending her right to fish at a shoreline spot tucked next to the Turtle Bay Resort, Didi Herron cited a 1995 state Supreme Court decision. Here is a summary of part of it: The court's opinion forced the Hawaii County Planning Commission to vacate a Big Island resort development permit and reasserted the right of Native Hawaiians to exercise cultural practices on private undeveloped land. The court found that public interest organization Public Access Shoreline Hawaii (PASH) had standing to challenge the permit in a contested case hearing before the county commission. The rights of Native Hawaiians must be recognized by Western-style views on private property, the court said. "Our examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii," wrote then-Justice Robert Klein. The opinion exempted fully developed property.