Posted on: Sunday, October 6, 2002

Sacred Falls case may lead to new law

By Jan TenBruggencate
Advertiser Environment Writer

Hikers leave the Manoa Falls trail, which has signs showing falling-rock and flash-flood hazards. Cory Lum • The Honolulu Advertiser

State Attorney General Earl Anzai said the only way to protect the state from future claims such as the one upheld in the 1999 Sacred Falls landslide may be to pass a law exempting the state from liability.

"I suspect that we'll have to go to the Legislature and get relief to be sure that the state doesn't get sued every time someone gets hurt, and not only in wild areas," he said last week.

The attorney for the Sacred Falls victims said, however, that Sacred Falls may be the single most dangerous state park in Hawai'i, and the state should not try to broadly apply the lessons drawn from his case.

"This is a uniquely dangerous place," Arthur Y. Park said. "We don't know of any other place in the state that is as dangerous. To apply this case to any other park is really bad lawyering."

Eight hikers were killed and 49 were injured on Mother's Day 1999, when boulders plummeted into the crowded waterfall area of Sacred Falls State Park. Circuit Judge Dexter Del Rosario ruled last month, in a lawsuit brought by victims and their families, that the state was liable, despite nine red-lettered signs that warned of the danger of falling boulders.

"The state failed to adequately warn visitors of the rock-fall hazard," Del Rosario said. A second part of the case will determine damages to be paid. Anzai said his office is still reviewing the ruling with the hired attorneys who handled the case, and have not decided whether to appeal.

He and other state officials have studied the ruling and have difficulty concluding just what language and what array of signs could have protected the state.

"The tough part is just what the appropriate signage is," said Gil Agaran, director of the state Department of Land and Natural Resources. "It may be so tough a standard that we can't meet it."

Attorney Park rejects that assumption. National standards suggest signs be kept to fewer than 10 words, that they include pictorial elements to describe hazards, that they be placed at the start of the trail and at the site of the hazard, and that they be of standard sizes and shapes, he said. Additional safeguards at Sacred Falls might include requiring people to read and sign a liability waiver that warns of the dangers, and might ban children.

"Experts say don't allow kids in there," Park said. "Don't even allow parents to take their kids in there. But they were inviting people to recreate in that area ... "

Federal parks officials in Hawai'i try to do the best job they can informing hikers of the hazards, but occasional lawsuits are expected, said Brian Harry, general superintendent of the National Park Service's Pacific Island Support Office in Honolulu.

"I think that we owe people who don't know their way around a fair amount of warning," Harry said. "We really try to communicate to people what the risk is, but I don't think we can make it safe for them."

After a case at Volcano, in which an experienced hiker was injured when he fell into a crack away from an established trail, federal officials considered trying to post a sign at every one of the thousands of lava cracks and other possible hazards. They decided that was impossible.

"I'd hate to see us plaster the back country with signs, just so we win in court," Harry said.

People simply must accept, when they leave developed areas, that there are risks, he said. One of his personal favorite hiking areas is a narrow gorge in northern Arizona, where there is a flash-flood risk for which a hiker might not get warning.

"I like to hike Paria Canyon, but I know that if there's a thunderstorm 50 miles away that I don't see, I'm history," Harry said.

Other parts of the country rely on legal immunity legislation to protect them. In California, for example, a state law called the "natural conditions immunity law" provides the state and its employees with protection from lawsuits any time people are injured in the back country, said Steve Capps, assistant deputy director of California State Parks.

"Because California's 273 state parks are so varied in topography, this applies to all types of conditions, from steep cliffs along the coast ... to high mountain areas and dense redwood forests," he said.

The state of Hawai'i has limited liability specifically in cases of injury or death at state beaches, but not inland. There, the state has depended on signs that warn of specific hazards.

On the day of the Sacred Falls rockslide, the nine signs — in red letters on white backgrounds — carried varied warnings.

Among them:

• " ... the upper end of the trail and the falls are bordered by rocky cliffs and are subject to FALLING ROCKS and ROCK SLIDES. Use trail at your own risk. Rescue services cannot be summoned unless someone hikes out ... "

• "Valley is subject to flash floods & falling rocks. If you proceed, do so at your own risk."

• "Warning, please read: ... FALLING ROCKS ... falling rocks are dangerous. They have resulted in death and injuries here. Rocks fall at unpredictable times with little or no warning."

• "Warning. Valley is subject to flash floods and falling rocks."

National Park Service official Harry said he walked that trail before the big rockfall, and saw the signs: "It seemed like the government had warned me. A rational person would have concluded I was on my own."

Park said many hikers testified they walked into the valley and never noticed the signs. Judge Del Rosario said those signs were not sufficient, were ineffective, were in the wrong locations and "did not warn with the intensity and urgency demanded of the falling rock hazard in the waterfall area at Sacred Falls."

Anzai has difficulty envisioning what other warnings the state could have posted.

"One of the concerns was that (hikers went by the signs and) nobody turned away. That's not the standard. We're just supposed to warn people," he said. "From a common sense basis, if you still want to go there, we can't stop you."

Bruce Hamilton, national conservation director for the Sierra Club, said individuals must accept risk when they leave improved areas.

"We think there is a certain amount of risk that the public is willing to assume," Hamilton said. "I would just hate to see a situation where because someone possibly might sue, you close off access to huge areas of our national recreational lands."

The Sierra Club, which leads hiking trips into the back country, carries insurance and depends on educational talks to alert people to hazards.

"We're acutely aware of (risk) in wild areas," Hamilton said. "We have been sued. We handle it through full education of the participants. We trust that it's important that people recognize risk and accept responsibility."

Agaran said the state for the past two years has been studying risks at its wild areas.

"We have been doing our own risk management, looking at all areas under management, everything from state parks, Na Ala Hele lands, state forest and other lands," he said. Na Ala Hele is the state's trails and access program.

"We've made some adjustments, at Manoa Falls and Hanakapi'ai and a few other areas, closing, dissuading people from going farther. At Hanakapi'ai we have a viewing area rather than allowing people to go farther on," Agaran said.

Park said even extremely dangerous areas like Sacred Falls can be left open, but should be limited to people who are aware of the risks and understand them. In many cases, that means banning visiting families, and perhaps only allowing access to experienced hikers, he said.

Reach Jan TenBruggencate at jant@honoluluadvertiser.com or (808) 245-3074.