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Bill holds writers, publishers liable for trespass

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Andrew Doughty makes Kipu Falls, a waterfall and pond on the southeast side of Kauai, sound so alluring.

In "The Ultimate Kauai Guidebook," the author describes it as "a glorious little hidden place you might find enchanting." He directs readers to trails to the falls. He instructs them how to find a rope swing and a ladder at the pond.

Doughty minimizes that, to get to the falls by trail, readers have to trespass on private property owned by Grove Farm.

"Although the land company has posted ‘No Trespassing’ signs on their land, it hasn’t stopped locals — who have visited this waterfall for generations — from walking to it," he writes. "In fact, according to the local newspaper, community activists contend that access has occurred for so long, a ‘prescriptive easement’ exists.

"Regardless, we’ll just tell you where it is and leave the rest to you."

Frustrated landowners and tourism officials believe such guidebooks lure visitors to trespass into danger. Three people have drowned at Kipu Falls since 2008, according to the Kauai Visitors Bureau, and numerous others have suffered serious injuries.

After several years of pleading with Doughty and other travel writers without success, landowners and tourism officials got Kauai state lawmakers to draft a bill to make authors and publishers accountable.

Originally, the House bill would have held authors and publishers of visitor guides and websites liable when people suffered injury or death after trespassing. Landowners would have been exempt from liability.

The version that passed the House and is up for a hearing on Tuesday before the Senate Tourism Committee holds that authors and in some cases publishers of visitor guides and websites have a duty to warn readers of dangerous conditions. The bill would require authors and publishers to defend and indemnify private and public landowners from liability for injury or death when people trespass. It would also create a task force to identify problem areas statewide.

The Hawaii Tourism Authority — whose lobbyist helped draft the bill — and tourism industry officials from across the state are behind the legislation, along with farmers, cattle ranchers and some of the state’s largest private landowners, such as Grove Farm and Kamehameha Schools. The County of Kauai and the state Department of Land and Natural Resources also support the bill.

Publishing and news media interests are stunned that the bill has moved this far, because many believe it would violate free-speech protections in the First Amendment to the U.S. Constitution.

The Association of American Publishers, a trade group for book publishers based in Washington, D.C., and the Media Coalition, a First Amendment advocacy group in New York, have sent in written testimony of alarm. The Society of Professional Journalists Hawaii Chapter said that while the bill targets visitor guides, the definition appears broad enough to apply to conventional media as well.

"It’s a terrible bill. It’s an absolute violation of the Constitution," said Jeff Portnoy, an attorney who has represented the news media. "It has no chance of being upheld on a First Amendment basis.

"It’s trying to take care of a problem that could be taken care of with a .22 by using an atomic weapon. If there is a problem of unlawful trespass, there are lots of ways to deal with it that are not in violation of the First Amendment of the Constitution."

The lawmakers behind the bill say it was not their intent to infringe on the First Amendment.

"People direct them to a place they know, one, is private and, two, they know people get hurt there, and drown there. Why would you want to do that?" asked state Rep. James Tokioka (D, Wailua-Koloa), the sponsor of the House version.

Susan Kanoho, executive director of the Kauai Visitors Bureau, said she understands the First Amendment concerns. But she also asks why publishers of visitor guides do not clearly state that access to places such as Kipu Falls is through private property and involves trespassing and risk.

"To the families of those that have died, and those that are paralyzed, and those that are permanently scarred, I just wonder when would be a good time to perhaps be a little more forthcoming in what those locations could do," she said.

Jon Okudara, the lobbyist for the Hawaii Tourism Authority, said a major part of the tourism industry’s strategic plan is visitor safety and security.

"I think the concern is that there needs to be some responsibility," he said.

The courts have shielded publishers from liability, particularly publishers who are not authors and who make no guarantees about the content of their publications. Courts have found that publishers of travel guides and reference books have no duty to warn readers about potential risks.

The Hawaii Supreme Court, in Birmingham vs. Fodor’s Travel Publications in 1992, ruled against an injured visitor who brought a negligence claim against Fodor’s for failing to warn him about potentially dangerous surf at Kekaha Beach on Kauai.

The 9th U.S. Circuit Court of Appeals, which covers Hawaii, ruled in Winter vs. GP Putnam’s Sons in 1991 that two people who became sick from eating mushrooms picked after reading "The Encyclopedia of Mushrooms" were not entitled to damages from the publisher.

Hawaii state law does not require landowners to keep their property safe for recreational purposes by others or provide any warnings about dangerous conditions, suggesting that landowners should not be liable if trespassers are injured or killed.

Marissa Sandblom, vice president of Grove Farm, said the company has been subject to legal threats but she would not discuss specifics. She said the company used to allow a private tour operator to take visitors to Kipu Falls, but has otherwise discouraged access through "No Trespassing" signs.

Okudara said there is no prescriptive easement on Grove Farm land near Kipu Falls. A prescriptive easement can occur when people openly and continually use other people’s land without permission for at least 20 years, but the easement must be legally established.

Privately, several people involved with the bill said the hope was to get the attention of authors such as Doughty — who is behind several top-selling Hawaii guides — and not stir up a First Amendment fight.

State Sen. Ronald Kouchi (D, Kauai-Niihau), the sponsor of the Senate version of the bill, said he will recommend that the Senate Tourism Committee move forward with the task force only after what he described as progress in talks between landowners and publishers.

Doughty, president of Wizard Publications Inc. in Lihue, said he would remove references to Kipu Falls in the next edition of "The Ultimate Kauai Guidebook," which is expected out later this year. He said he supports a task force.

"The landowner had contacted us and asked us to pull it," he said of Grove Farm. "So we’re pulling it."

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