Testimony was heard Thursday evening at an online public hearing on the state’s plan to demolish the Diamond Head Breakwater, which forms one wall of a swim basin beneath Doris Duke’s Shangri La, and use the rubble to fortify the seawall and walkway along the shoreline.

The stated justification for the project is to protect public safety by removing an attractive nuisance. There have been serious injuries sustained by people diving off the 7-foot-high breakwater, as well as the seawall walkway, into the shallow, U-shaped pool and former boat harbor, open on one end to the sea.

Four out of the five testifiers said they were opposing the conservation use district application, originally submitted in 2016 by the Doris Duke Foundation for Islamic Art and rejected in 2018 by the state Board of Land and Natural Resources, for the same reasons they gave before: It would make the area more dangerous, take away the basin used for swimming since its construction in 1938, and harm the habitat of endangered marine species as well as fish and shellfish gathered by local people.

“Back in 2018 the Waialae Kahala Neighborhood Board voted against the original proposal submitted by the Doris Duke Foundation on various grounds,” said Richard Turbin, president of the neighborhood board, “including it would deprive the people of Hawaii of a very important recreational swimming and surfing site, degrade the environmental ambience, potentially cause visual blight, and was also extremely expensive, estimated at $2.5 million in 2016.”

But Turbin and the others said they additionally opposed for two reasons the current application, submitted in February by the state Department of Land and Natural Resources using the same 2017 final environmental assessment. The reasons were that it set a destabilizing precedent to ask the Land Board to approve the same project they had rejected three years before; and the state was now the owner of the breakwater and submerged lands makai of the seawall, having accepted a quitclaim deed plus a pledge of $1 million for the project from the foundation in 2018.

“For the sake of long-term planning, one has to have a decision that sticks — the board is a policymaker,” said Leigh-Wai Doo, noting that the membership of the Land Board had changed since 2018.

“I worry if this was able to proceed, a terrible precedent would be established where losers before the board would just wait until there were new board members and resubmit again,” Doo said, “so there’s no continuity, no stability, no ‘stare decisis.’”

Fred Fong expressed surprise that after denying the foundation’s application not once, but twice in 2018, the board in September 2020 took ownership of the breakwater and submerged lands, “and now the DLNR resubmits an almost identical application with little change — it states itself that the design presented in this new application is the same design with the same purpose as was presented (in 2018) by Doris Duke.”

The current application also includes the same estimated project cost of $2.5 million as in 2016, although five years later it “will probably be well beyond,” Turbin said, speaking for the neighborhood board, ”and now with the state owning the property, the state does face a fiscal crisis and we believe the money could be better used handling other crises.”

Addressing the concerns about liability that motivated the foundation to demolish the breakwater, after having erected warning signs and a 6-foot fence along the shoreline in 2014 which did not dissuade the divers, Turbin added that as a longtime Honolulu personal injury attorney, he was confident that “if the state puts up proper signage, that largely eliminates the risk of a plaintiff’s prevailing in a lawsuit.”

Doo added, “The state of Hawaii has sovereign immunity, as constantly seen by (people) jumping off the Ka­pahulu Groin, state bridges, waterfalls and cliffs.”

Another local attorney, Bill Saunders, protested that the final environmental assessment was the same, but conditions had changed in the intervening years, notably with predictions of higher and more rapid sea level rise in the islands due to climate change, and that criticisms of faulty wave modeling he had raised in 2018 had still not been addressed.

The only other public testifier at the hearing, Austen Gersonda, said he had an environmental concern with the dismantling of the breakwater and the seawall being “built up more and reconstructed, because shoreline hardening has been shown to negatively impact adjacent sandy areas.”

He asked whether a different approach had been looked at.

The meeting’s host, Sam Lemmo, administrator of the Office of Coastal and Conservation Lands at the Department of Land and Natural Resources, replied that this was not a Q&A and suggested Gersonda follow up with OCCL “tomorrow or the next day” with specific questions.

Before the meeting adjourned at 5:40 p.m., two more attendees signaled they wanted to to speak, but they could not be heard due to apparent technical difficulties.

The public comment period will remain open until April 22. For instructions on mailing or emailing written testimony, visit dlnr.hawaii.gov/occl.