The state has tentatively agreed to accept the Doris Duke Foundation of Islamic Art’s offer of up to $1 million to underwrite the cost of dismantling a breakwater that protects a popular swimming cove at the late heiress’ former Black Point estate, but it’s unclear whether the controversial project will happen.

Since twice rejecting the foundation’s conservation district use application in 2018 for a “break­water safety initiative and shoreline stabilization project,” the Board of Land and Natural Resources appears close to finalizing a deal in which it assumes ownership of submerged lands and related improvements at Duke’s 5-acre Shangri La property, including the 140-foot-long breakwater.

The memorandum of agreement, unanimously approved in principle at the board’s Sept. 11 meeting, means the state would also assume potential liability for accidents that occur at the swimming spot known as Cromwell’s, Duke’s married name at the time the private boat basin was dredged and built in 1938 for her 55-foot yacht.

The art collector and philanthropist, who died in 1993 at the age of 80, acquired the two submerged parcels totaling a little more than a half-acre in a deed exchange with the Territory of Hawaii in which she turned over a shoreline parcel for expansion of Kailua Beach Park.

While no longer used for vessel berthing, Cromwell’s is frequented by swimmers and snorkelers, and is used by surfers and fishermen to access the ocean. It has been the scene of numerous accidents, including at least three instances in which people suffered paralyzing injuries from jumping off a shoreline retaining wall or the breakwater, which rises up to nearly 9 feet above sea level.

Safety and liability concerns were the chief motivations for the Duke foundation to seek the conservation district use application (CDUA) for removal of the breakwater that serves as the seaward boundary of the boat basin and use the boulders to reinforce the seawall.

Duke’s former estate is now the Shangri La Museum of Islamic Art, Culture &Design, supported by the foundation, which says the boat basin doesn’t fit into its current mission.

A walkway along the seawall is maintained by the foundation as a public easement, and concrete stairs lead down to the water. Installation of a 6-foot-high aluminum fence along the seawall in 2014 reduced jumping from that spot but the foundation reported an increase in visitors and more people jumping off the breakwater and even from the top of the fence, according to an April 27, 2018, report to the Land Board.

Dismantling the breakwater down to its first row of boulders and placing the other boulders along the seawall would “address public safety issues while maintaining public access and reinforcing the shoreline through a natural setting,” the report said. The foundation says any other options would be neither practical nor effective.

There was wide public outcry over the proposal when the foundation’s application was considered by the BLNR in separate meetings April 27 and May 25, 2018. The Historic Hawai‘i Foundation urged denial of the request, saying the boat basin is a distinctive feature of the historic Shangri La property and disagreeing with the Duke foundation that it was not a historic structure in its own right. Also opposed was the Waialae-Kahala Neighborhood Board, which cited the cove’s importance as a recreational area and haven for marine life.

An online petition seeking to save the breakwater from demolition collected more than 1,400 signatures. Supporters remarked that Cromwell’s is a historic Diamond Head landmark where generations of local residents have enjoyed swimming in its clear, calm waters.

The comments included: “I vote to save the ‘swimming hole.’ Fond memories of childhood hangout!”; “That’s one of the few places you can swim on Blackpoint. Save it for the not so rich people”; and “Stop taking our memories and history away.”

After rejection by the BLNR, the Duke foundation submitted an offer on June 14, 2018, to convey to the state the submerged lands and improvements. The offer was accepted by the board Sept. 28, 2018, over the “grave concerns” of the Department of Land and Natural Resources’ Land Division.

“As indicated by DDFIA as part of their CDUA, the current state of the property imposes significant maintenance and liability obligations upon the owner, which would be transferred to the State and taxpayers with this acquisition,” said a staff report to the board at the time.

Staff also questioned whether there was “a sufficient public purpose to support the acquisition since manmade structures such as the breakwater and boat basin do not offer significant recreational value worthy of public ownership, especially when balanced against the cost, hazard and liability.”

The transfer of the property has yet to be finalized, but at its Sept. 11 meeting last month, the BLNR unanimously approved in principle a memorandum of agreement for the Duke foundation to deed Cromwell’s to the state, with a promise to provide up to $1 million in funding if the state decides to pursue the breakwater and shoreline stabilization project. The foundation would continue to maintain the walkway.

In his report to the board, Land Division Administrator Russell Tsuji recommended conditional acceptance of the offer, which does not commit the state to undertaking the breakwater project.

BLNR Chairwoman Suzanne Case explained to board members that after the Duke foundation’s CDUA was twice rejected, “they proposed that we take over ownership in essence because we were not allowing them to remove an ‘attractive nuisance’ on their private property. So the board approved that. I will say the Land Division was very reluctant about this because of this potential liability, but we are looking at having, once this is completed, having the state submit a CDUA to do the same or similar reconfiguration, and that would come back before the board for your consideration.”

“If that were approved, the Doris Duke Foundation has offered to provide this funding to make that happen. But that would be a separate decision coming back before the board for review at that time.”

When asked at the board meeting about the state’s potential liability exposure, Tsuji said: “At the end of the day I think if anyone wants to get hurt in the future, the state as well as DDFIA would probably be brought in — maybe the access was through their property. We certainly have an area that is where people would jump off into and hurt themselves.

“Staff was not in favor of accepting but the board made its decision, so we are following through on the board’s decision.”

Tsuji said there was no updated cost estimate for the breakwater removal but if the project exceeds $1 million, the state would bear the added expense. The Duke foundation’s estimate was $705,000 when it was looking at doing the work.

Board member James Gomes of Maui said he thinks the previous board made a mistake in denying the CDUA. “We should have had the Doris Duke Foundation do what they wanted to do” at its own expense, he said.

Tsuji said even if the board were to change its position, it’s unlikely the foundation would be willing to take on the project at this point. “They like this idea better,” he said.

Added Case: “The problem is they’ve been trying to resolve this for decades now, so this is the path forward.”

When asked by Case to weigh in on the discussion, Konrad Ng, executive director of the Shangri La Museum, said: “All I’m prepared to say is the foundation is prepared to honor the memorandum of agreement, and thank you.”

Following board approval, Case thanked the foundation “for working with us, and we hope we can get to a point of good public safety in this place that is so popular.”

Ng declined further comment and deferred to the DLNR when contacted later by the Honolulu Star-Advertiser.

The Star-Advertiser asked DLNR to clarify whether the state was planning to proceed with the breakwater project, as suggested by some of the comments at the Sept. 11 meeting. An agency spokesman replied: “No decision has been made.”