BOARD TALK

Opponents of Ka`ena Point Fence Are Denied Contested Case Hearing

On August 12, the state Board of Land and Natural Resources denied the requests of Summer Kaimalia Nemeth and Huang Chi Kuo for a contested case hearing over a 600-meter predator-proof fence that resource managers plan to build to protect native seabirds and plants within the Ka`ena Point Natural Area Reserve and State Park.

In January, the Land Board unanimously approved a right-of-entry to the U.S. Fish and Wildlife Service and Hawai`i chapter of The Wildlife Society to construct the fence, which received broad support from the surrounding communities, as well as the Office of Hawaiian Affairs. But Nemeth, concerned about the cultural impacts of the fence, and Kuo, concerned about its biological effect, both requested a contested case hearing. Both are also associated with fishing interests.

In its report to the board recommending denial of the requests, the Department of Land and Natural Resources’ Division of Forestry and Wildlife noted that the decision to grant a right-of-entry for conservation management at Ka`ena Point – a decision taken by the board last January – was neither a quasi-legislative nor an adjudicatory action. Therefore, DOFAW administrator Paul Conry argued, the matter fell outside the purview of the Hawai`i Administrative Procedures Act, which governs contested case hearings. Instead, Conry wrote, the Ka`ena Point Ecosystem Restoration Project — which includes the fence and is a collaborative effort that includes the DLNR’s Natural Area Reserves System and its Division of State Parks — falls under “internal management,” as it is “part of on-going management efforts aimed at the preservation and recovery of native vegetation and wildlife within the Ka`ena Point Natural Area Reserve.”

Conry’s report also pointed out that Kuo lacked standing because his arguments focused on environmental impacts, which should have been raised during the environmental assessment process.

“Mr. Kuo does not have standing to challenge the EA through a petition for a contested case hearing,” DOFAW stated.

In her testimony before the board, Nemeth disagreed with DOFAW’s reasoning, and added that a full environmental impact statement should be conducted for the fence. She also claimed DOFAW staff failed to give her adequate notice of her opportunities to testify on the fence project.

In written testimony, Nemeth pointed out what she believed were several procedural violations. For example, she argued that the fence does not have a valid Conservation District Use Permit.

“They state that the project falls under the existing CDUP which was created in 1982 for the formation of several NAR throughout the islands of Hawai`i. Nowhere in this outdated CDUP is there a mention of any type of construction within a NAR,” she wrote.

Marti Townsend of KAHEA: the Hawaiian-Environmental Alliance agreed and added that the fence should have its own CDUP.

DOFAW, however, argued in its report, “The question of whether the 1982 CDUA [Conservation District Use Application] covered this project is subsumed in the issues regarding the EA. … The EA stated that based on conversations with staff from the DLNR Office of Conservation and Coastal Lands, a new CDUA would not be required for this project. Instead, the project was permitted under [the existing CDUP].”

Big Island Land Board member Rob Pacheco reminded Nemeth that the board was only deciding on the contested case issue and could not revisit its decision to grant the right-of-entry that day. He did, however, have some concerns about DOFAW’s decision to deny Nemeth a contested case hearing, since petitioners seeking to retain their ability to exercise their traditional and customary practices have been granted standing in other cases.

After an executive session with the board’s attorney, Pacheco said he understood DOFAW’s position better. The board then voted unanimously to approve DOFAW’s recommendation to deny the contested case requests.

After the vote, Nemeth said she intends to file an appeal and asked that all activity on the fence cease until the case is resolved. (For more on this issue, read our February 2010 “Board Talk” column, available at www.environment-hawaii.org.)

 

“Almost 100 percent of them suffer from malnutrition. … We know it’s a lack of them being able to get enough resources,” Charles Littnan, a monk seal researcher with the National Marine Fisheries Service’s Pacific Islands Fisheries Science Center, told the Land Board August 12.

That day, the board approved a Papahanaumokuakea Marine National Monument research permit to Littnan to continue seal-enhancement activities, including captive feeding and care of prematurely weaned, undernourished, or otherwise endangered young seals, and treatment for parasitic worms.

Hawaiian monk seals are critically endangered; the mortality rate among seal pups, in particular, is especially high.

Under Littnan’s proposal, “seals would be cared for in shore pens or transported to the Ford Island Research Facility in Honolulu with the intent to release them back to their natal site or Nihoa Island,” a report by the DLNR’s Division of Aquatic Resources states. If the Ford Island facility is not up and running in time to receive seals needing help, Littnan said, some could be housed temporarily at the Waikiki Aquarium or the Kane`ohe Marine Corps Base. He also noted that there are plans to open a captive care facility at the Natural Energy Laboratory Authority of Hawai`i site in Keahole, Kona.

Littnan said that about four to five seals a year in the Northwestern Hawaiian Islands are found prematurely weaned.

To alleviate the chronic malnutrition that pups experience, Littnan plans to administer anti-parasitic medication to them at Laysan (up to 41 seals), Lisianski (up to 29 seals), and French Frigate Shoals (47).

“[I]t has been noted that young seals infected with
… tape worms … tend to be in poorer body condition than those uninfected. While parasites are likely not a primary cause of mortality in monk seals, they may further compromise animals already in ill health due to food limitation, thereby increasing their likelihood of dying,” DAR’s report states.

Littnan said that the worming trial is “not a silver bullet,” but is a relatively quick and easy way to ease the stress on juvenile seals, up to 70 percent of which can die within a given year.

Proposed Exemptions

In addition to Littnan’s permit, the Land Board approved two other monument permits on August 12: a research permit to Jay Barlow and Erin Oleson of the NMFS to identify and biopsy cetaceans as part of the 2010 Hawaiian Archipelago Cetaceans and Ecosystem Assessment Survey, and a conservation and management permit to allow the National Oceanic and Atmospheric Administration’s research vesselMcArthur II to enter the monument.

While she did not testify against either the monk seal or cetacean permits, Marti Townsend of KAHEA: the Hawaiian-Environmental Alliance, strongly opposed the issuance of the ship permit, noting that there have been three vessel groundings in the monument within the five years she has been monitoring the permitting process. She also stated that she had concerns about the DLNR’s decision to exempt ship operations from environmental review.

In its submission to the Land Board, DAR explained that existing exemptions for the DLNR “appear to apply” to ship operations. To further clarify which activities are exempt from the state’s environmental review law, the DLNR recently submitted to the state Office of Environmental Quality Control proposed exemptions for a number of its divisions, including DAR.

Although discussion of the proposed exemption list (awaiting approval from the state Environmental Council) was not on the board’s agenda, Townsend pointed out that the list includes all monument permits, as well as every other type of permit or license the division issues.

“These exemptions are so extremely broad, it’s laughable. … If you’re going to exempt everything, what’s the point? You may as well overturn the law. Maybe that’s what this administration wants,” she said.

In an August 6 letter to the OEQC, which Townsend also submitted to the Land Board, KAHEA called the DLNR’s proposed exemption lists “ridiculously overreaching” and argued that ship operations “do not satisfy any of the existing exemption classes and no environmental review has been conducted for ship operations in Papa¬hanau¬mokuakea. Approving this permit would therefore be illegal. Yet, instead of simply conducting the environmental assessment, DLNR proposes the exact opposite of protecting this refuge by exempting not just ship operations, but every proposal to access the most fragile and highly protected marine ecosystem in the archipelago.”

(In a separate letter to the OEQC and to the DLNR, KAHEA, Life of the Land, Hawai`i’s Thousand Friends, Hawai`i Community Stewardship Network, and several other environmental groups and individuals recommended that the Environmental Council reject the DLNR’s proposed exemptions. Although the agenda had not yet been announced as of press time, the Environmental Council had scheduled to meet, for the first time since the summer of 2009, on September 14. For more on the subject of the exemption lists, see our June 2010 cover article and the write-up on Page Two of our August issue.)

Not all big energy projects are controversial. When the Land Board approved a Conservation District Use Permit for a second wind farm on Maui last month, no one from the public showed up to testify, although representatives of the wind farm company, Kaheawa Wind Power II, LLC, were present to answer questions from the board.

The 21-megawatt, $100 million farm will span 333 acres of unencumbered state land at Ukumehame along the access road that leads to the existing 30-MW Kaheawa Wind Farm I. In addition to erecting 14 GE 1.5 MW turbines, the company plans to use a battery system to stabilize the amount of power to Maui’s small electricity grid. Both projects are owned by First Wind Energy, which is also developing a 30-MW wind farm at Kahuku on O`ahu’s North Shore.

The company is still negotiating terms of a lease for the two state parcels for Kaheawa II and must complete a Habitat Conservation Plan and secure a federal Incidental Take Permit and state incidental take license before construction can start.

 

Division of Forestry and Wildlife administrator Paul Conry was officially on vacation, but came to work June 10 anyway, to celebrate.

At long last, with the Land Board’s approval of a partnership agreement with the U.S. Army Corps of Engineers, a much anticipated 80-acre wetland restoration and habitat enhancement project for Kailua’s Kawai Nui Marsh will have the funding it needs.

“We have been working with the Army Corps of Engineers, the county, partners in the community and our Legislature for 15 years to bring this project to life,” Conry told the Land Board that day.

In 1990, the Legislature ordered the transfer of Kawai Nui Marsh from the City and County of Honolulu to the state, but disputes over which government would be responsible for maintaining the marsh’s flood control infrastructure delayed that transfer for nearly 20 years. The dispute jeopardized about $5 million in federal funds that had been appropriated for the waterbird project that the Army Corps and the Kailua community had devised in the meantime.

The city, the Legislature and the Land Board finally agreed to the transfer terms in 2007, the environmental process was completed in early 2009, and, in March, Gov. Linda Lingle approved the release of the state’s share of project funds.

According to a DOFAW report to the Land Board, the project will restore 37.8 acres of habitat for the endangered Hawaiian duck (koloa), stilt (`ae`o), moorhen (`alae `ula), and coot (`alae ke`oke`o). It will also include 24 acres of 11 terraced shallow ponds, a berm, a solar-powered water supply system, and, if funding permits, predator control fencing.

“The project also becomes the foundation for other educational, environmental, cultural, recreational, and ecotourism opportunities in the marsh,” the report states.

The agreement would commit the state to providing 25 percent of the $6.43 million project’s costs, less design and engineering costs it has already paid, for a total of about $1.36 million. The Corps would cover the rest.

State Rep. Chris Lee (51st District – Lanikai, Waimanalo) told the board, “Kawai Nui is a real diamond in the rough. This has been going on about as long as I’ve been alive.”

The board unanimously approved the agreement.

A contract for the project was scheduled to be awarded this month, with construction to begin in January and be completed in December 2011.

(For more background on this project, read the following articles, available at www.environment-hawaii.org:

• Cat’s Chronicles: “Big Plans for the Big Water,” December 2001;

• “As City, State Deadlock on Marsh Transfer, Kawai Nui Restoration Groups Forge Ahead,” January 2007;

• “Arguments over Flood Control at Kawai Nui Echo Those Made by Fasi, Waihe`e in 1989,” and “State Does What it Can With Limited Resources at Kawai Nui,” March 2007;

• Board Talk: “Army Corps, City Assess Kawai Nui Hazards,” December 2007.)

On occasion, the fight over logging violations that occurred on the Big Island in the late 1990s has been ugly. Exchanges during the Land Board’s more recent discussions suggest it won’t get prettier any time soon.

In March, Land Board chair Laura Thielen threatened to raise her department’s proposed fines if the loggers didn’t at least try to compromise. In April, she screamed at one of the attorneys representing the loggers, her face flushing in an instant.

“Sit down right now!” Thielen hollered at attorney Douglas Ing, as he attempted to correct her interpretation of what had transpired during the March meeting. Thielen told his clients — loggers Steve Bacskiewicz and Raymond and Wesley McGee — that ing had admitted to the Land Board that they had illegally logged state land. (Actually, Ing admitted only that the loggers had logged in the area of dispute; he did not agree the land belonged to the state.) When Ing stood up to dispute her characterization of what he had said, she lost it, leaving the rest of the board — and the room — to sit in silence while she collected herself.

To say that the loggers have frustrated the state is an understatement. In the late 1990s, logging company Steve’s Ag Services (owned by Bacskiewicz), assisted by the McGees, logged nearly 1,000 koa and other trees from Conservation District and state lands in Ka`u and South Kona without permission from the state. In 2003, the Land Board fined the loggers more than $1 million for cutting trees on state land.

A contested case hearing followed, but questions raised by Ing over the state’s ownership of the property led the Land Board to dismiss the case without prejudice and direct the DLNR to pursue a quiet title action for the land in court, which it did in 2007. The loggers appealed the action in U.S. District Court, but lost in November 2009.

After the court’s decision, the DLNR thrice sought a revised and reduced set of fines — the most recent being a $105,000 fine against each logger, $409,423.44 in damages, and $53,870.80 in administrative costs — but the loggers refuse to give in. When the Land Board approved the fine recommendations in April, Ing requested contested case hearing. In the meantime, Steve’s Ag and the McGees have appealed the U.S. District Court’s decision on ownership to the 9th U.S. Circuit Court of Appeals.

In May, the Land Board granted the contested case hearing, in part. Despite objections from the loggers’ attorney, Chris Bennett, the board chose to exclude the issue of the property’s ownership from the hearing, since that matter had already been decided on by a federal court.

(For more background on this dispute, read the following articles, available at www.environment-hawaii.org:

• ”Poachers Take Timber Valued at $1 Million,” January 2003;

• Damon Estate Contests Fines for Illegal Logging in Ka`u,” May 2003 Board Talk;

• ”Damon Estate Hopes to Avoid Fine, Restore Logged Lands in Ka`u,” June 2003 Board Talk;

• ”Damon, Park Service to Restore Logged Land,” September 2003 Board Talk:

• ”Record Fine for Illegal Logging in South Kona, Ka`u,” August 2003 Board Talk;

• ”Koa Loggers at Center of Two Violation Cases,” May 2005 Board Talk;

• ”Koa Logger Countersues Damon Estate, Claims Trust Kept Conservation Land Secret,” June 2005;

• ”Loggers Seek Dismissal of $1.5M Violation Case,” August 2005 Board Talk;

• ”Koa Loggers File Complaint against Board, Attorney General,” August 2007 Board Talk;

• ”Board Delays Closing Steve’s Ag Logging Case,” February 2010 Board Talk;

• ”Board Again Defers Action on Logging Case,” April 2010 Board Talk.)

On July 8, the Land Board approved a request by DOFAW to authorize the board’s chair to negotiate and sign a $253,000 contract with Crane Construction and Fencing to build a six-mile portion of a fence on Mauna Kea in palila critical habitat.

The fence is part of a $900,000 U.S. FWS-DOFAW project to help manage critical habitat for the endangered bird, whose population has declined significantly in recent years. Last year, the agencies agreed to spend that money on fencing most of the birds’ critical habitat on Mauna Kea and removing all feral ungulates.

At the board’s meeting, DOFAW administrator Conry asked that the board’s chair be authorized to extend the contract and/or issue an additional request for proposals for additional fencing, but the board chose not to. According to the meeting’s minutes, “[Deputy attorney general William] Wynhoff said he didn’t feel comfortable with an agenda item authorizing a contract for six miles to change it to 16 more miles and respectfully suggested coming back again.”

 

On May 13, the Land Board authorized is chair to develop and sign a memorandum of agreement between the U.S. Army Garrison of Hawai`i and the DLNR. As of last month, agreement had not yet been finalized, but according to a DOFAW report to the board, the MOA would establish a framework that would facilitate the Army’s use of nearly 11,901 acres of state lands — including land in Natural Area Reserves, Forest Reserves, State Parks, Na Ala Hele trails, and unencumbered areas — for its endangered species stabilization efforts, which it must conduct if military training in West O`ahu’s Makua Valley is to continue.

To defray costs incurred by the state in dealing with the Army’s activities, the MOA would require the Army to pay DOFAW five percent of its environmental division’s annual budget for work on state lands, as well as a fee to use the state’s Pahole Rare Plant Facility for storage and horticulture.

“Transfer of funds is contingent upon the successful execution of a Cooperative Agreement or the development of some other process to transfer federal funds from the Army to the state,” the report states.

Even with an MOA, the Army would be required to obtain the necessary permits (i.e., NARS Special Use Permit) and/or licenses to conduct endangered species restoration on state lands.

Volume 21, Number 3 — September 2010