Kapoho Wai Opea tide pools Champagne pond sewage

[Guest]

The people who get sick from swimming in the tide pools should be able to sue the owners for damages. I am sure there is many things preventing that, however that seems like the most simple and direct approach to me.

“Setting a good example is a far better way to spread ideals than through force of arms.”
-Ron Paul

[hawaiideborah]

The argument about public vs. private is an interesting one. Go to the website on Hawaii Marine Life Conservation Districts to read how a site is picked and how there must be public access and public safety. It appears at some point the community had a voice in this and what was declared a Marine Life Conservation District now mandates the public access. Thus the parking, etc. must be available for the public.
http://hawaii.gov/dlnr/dar/mlcd.html

From the website:
"Once an area is recommended for designation as an MLCD, it is evaluated by the DAR with regard to a number of criteria. These include public accessibility, marine life and future potential values, safety from a public usage standpoint, compatibility with adjoining area usage, and minimal environmental or ecological changes from the undisturbed natural state"

[dmbwest]

Afwjam,

Is that a serious post ? The sue the owners of the tide pools one ...

[rainyjim]

You can sue just about anyone for anything - are you sure you can't already sue them afwjam?

Cheers

rainyjim

[csgray]

Or could someone sue the vacation rental owner if they had advertised their place as being "near the pristine Champagne ponds, site of world class swimming and snorkeling, where you can swim with the amazing and beautiful Hawaiian Honu" as the place we rented advertised? The owner is a long time resident who has owned and rented out the property for decades they could not possible claim ignorance. If a guest believed the advertising and got an infection from waters the landlord knew darn well were not "pristine" would the landlord be liable for damages?

While it is true that there are all kinds of infections one can get from just living a normal life, there is also such a thing as informed consent; advertising a vacation rental as close to excellent swimming and snorkeling, in waters that are locally well known as at times polluted by waste from cesspools could be seen as misleading, if not outright false advertising.

I would snorkel at the tide pools again, as long as it was high tide, but I seem to have the immune system of a shark. However, my husband, in spite of having snorkeled there daily when we lived there, will never get into that water again, now that we know the risk involved for him. But we are now informed and can judge the risk for ourselves. Tourists from the mainland cannot judge the risk, unless someone informs them of the real situation.

Carol

[Guest]

It was a completely serious post. Those who aggressed against others by leaking sewage should be responsible for the damages they cause to others. They have no right to pollute water giving someone staph or making the fish inedible.

“Setting a good example is a far better way to spread ideals than through force of arms.”
-Ron Paul

[Obie]

If anybody should be sued,it should be Hawaiideborah for this false statement.

"Regarding Kapoho tide pools please see the other thread on raw fecal sewage in the tide pools."

There have been times that the bacterial count is higher than normal but raw sewage is not flowing into the tidepools.The Vacationland tests have not shown anything but minimum readings for several years.The newspaper article said that there have been nine times since May when the standard has been exceeded.The only way I can come up with that number is by adding both Beach lot testing sites with Ahalinui and Pohoiki.

Most of us who live here swim regularly and we take normal precautions with no problems.

[Kelena]

Carol's scenario is more likely to lead to a successful judgment. If there was a serious risk of harm to the renter of a vacation home in that area, if the homeowner was aware of that serious risk, and if the materials provided to the renter stated that the visitor would enjoy snorkeling in a "pristine" pond, and if that visitor suffered damages (medical bills, etc) as a result, it might be actionable. Of course, there are a multitude of possible defenses: 1) You were sick anyway, 2) You took also took a dip in that warm pond near Pohoiki, 3) There is no showing that you relied on these representations, because you were reluctant to go in anyway, since you are afraid of water, but your husband grabbed you by the hand and insisted..... and, of course, whether there was, in fact, a serious risk of harm would be debated.

Like Rat Lung Disease, we may not have good statistics on the actual number of persons harmed by entry at the tidepools. I suspect it is very low though, and I think that eating local lettuce is MUCH more dangerous than going in the Wai 'Opae tidepools. I would happily jump in there and do, but I will not eat any lettuce picked from your garden, thank you.

As to liability of the homeowners to those swimming in the pond, I think the difficulty could be in establishing that a given homeowner had a duty to protect those in the water. This is usually called a "duty of care". Whether there is a duty of care is dependent upon a multitude of factors, including the foreseeability of harm and the cost of the alternatives. Here, proving that a given homeowner harmed a particular plaintiff would be quite difficult, in part for the reasons discussed above. I mean, whose stuff got into your wound anyway? Did you pick it up somewhere else? More likely, you would be suing everyone whose effluent system is not optimal. But even then, you must show (and it would be your burden) that they had a duty of care toward you in the first place, or your case will be thrown out. So far in this discussion, I have seen no mention of a particular regulation or law that prohibits them from doing this or imposes upon them a duty to retrofit their systems, although we know it desirable that they do so. Perhaps I missed it, in which case, I would welcome having it pointed out to me. After all, I am retired and prefer to do other things now. Exhibit 1 for the defense might be the County signing off on an effluent system that dumps untreated waste into the sanctuary.

And therein lies the dilemma. We might be angry that the homeowners did't voluntarily decide to clean up the tidepools by installing expensive new sewage systems, but perhaps that anger is misplaced. We now know, with the benefit of hindsight, that such systems should never have been permitted in the first place.

The area is now a sanctuary and tourists are encouraged to visit, and they do in greater numbers than I have ever seen. I can't pretend to be familiar with every law affecting this area, and my ruminations above should be disregarded in their entirety as the ravings of a crazy cat lady, except I don't have a cat and am no lady. If you are pondering legal action, consult with a licensed Hawai'i attorney, and not some guy on the internet.

However, my guess is that only government can solve this problem. Litigation against the homeowners is likely to be unavailing, not to mention a little snotty since they have voluntarily done quite a bit to improve the experience for visitors (thanks for the porta-potty!). Like the dust problem in HPP, this condition was preexisting, and predated the creation of the sanctuary. Not only was it preexisting, it was EXPLICITLY SANCTIONED by the government.

The best solution may be to contact Ilagan and put this on his radar, assuming he has a radar screen, and press for a governmental solution, such as gradual condemnation of properties that contribute to the problem. Generally speaking, if you impose a law or regulation that, in effect, deprives a person of their property, that person is entitled to just compensation. Not every imposition of a regulation constitutes "a taking" though. Many nuances there. And, of course, protecting your rights in the first place can be costly and, as Carol pointed out, justice delayed is justice denied. These things can take time to work through the system. Cost/risk/benefit analysis there. Anyway, let's get to work on a governmental solution. Hopefully someone with big ears is paying attention.

It's Wai 'Opae or Waiopae. Not Wai Opea. It matters. Two completely different pronunciations. Pah-ay versus pay-yuh.

[Obie]

Well,here is why this homeowner in Vacationland has rejected the study.

1. They left out the cost of the property to build the sewage plant.The study suggests that we need a minimum 12 acre sewage pond.Figure 15 or 20 acres for the whole facility.Where are we going to come up with the land and the money to pay for it ?

2.The Nimby Effect .This plant would be close to my house but I am upwind of it so I don't think it would bother me,I have neighbors that might care though !How many of you want a 12 acre sewage pond next to your house ?

3. They kind of glossed over the fact that this sewage plant would be built in a flood zone and tsunami zone.They stated it is permissible under DOH rules but we would have to do something to mitigate the danger ! WTH,we would have to build a 12 acre sewage pond on concrete pillars 12 feet in the air or maybe build a 12 foot tall concrete wall around it !!
This isn't included in the cost either !

4. The Punatic effect.

We would need to spend many millions of dollars on lawyers, to build something that could possibly emit H2S gas !!!

[rainyjim]

Well put Obie. I guess those/similar reasons pretty much define while all of puna is essentially without utilities/services/infrastructure! I wish some of that military funding could be re- routed our way! FOR THE SEWAGE! - lol new campaign slogan

Cheers

rainyjim