Board Talk

Land Board Extends Deadlines to Complete Timber Mill

It’s been about a decade since the state Board of Land and Natural Resources issued a timber land license to Tradewinds Forest Products, LLC, to log a portion of the state’s Waiakea Timber Management Area and to build a veneer mill. As the company struggled over the years to meet deadlines set forth in that license, it has appealed to the board on a number of occasions for time extensions. By January 1, the “drop-dead” date of the license, Tradewinds was to have completed construction of its veneer mill.

When the Land Board met on December 12, Tradewinds had not only fallen short of completing construction of the mill, it didn’t even have a permit to start building it. In October, Tradewinds had asked the Department of Land and Natural Resources’ Division of Forestry and Wildlife for a one-year extension to complete the mill. According to a DOFAW report, Tradewinds had obtained a Clean Air Permit from the state Department of Health as well as a power purchase agreement with the island’s utility, Hawai`i Electric Light Company. The company’s last big hurdle is securing $50 million in financing, the report states.

Citing the progress Tradewinds had made in obtaining necessary permits and the company’s diligence in paying penalties associated with its failure to meet benchmarks in the license and “pre-stumpage fees,” DOFAW recommended last month that the board amend the license agreement to allow for extensions up to December 2010, provided certain benchmarks are met as well as additional conditions. Among other things, DOFAW recommended adding a condition that Tradewinds receive county building permits for all of the plant’s major components and secure all mill construction financing by the end of 2009.

At the board’s meeting, Tradewinds CEO Don Bryan said that the company’s investors have sunk $9 million into the project already.

The board heard testimony opposed to the extension from a few people from O`okala, the small town on the Hamakua coast of the Big Island, where the mill is planned. They cited Tradewinds’ history of noncompliance. Others, including U.S. Representative Neil Abercrombie and former Big Island land board member Fred Holschuh, submitted testimony in support. O`okala resident Scott Enright, who opposes the project, disputed the state’s determination that office renovations constituted construction and argued that Tradewinds was not currently in compliance with its license agreement. Other O`okala residents, however, told that board that most people want the mill to succeed because it will provide jobs to the community.

Despite Enright’s arguments, the Land Board approved its staff’s recommendations with an amendment that Tradewinds start stumpage payments for replacement stands in 2010, rather than 2009, which DOFAW had initially recommended.

Before the board’s vote, DOFAW administrator Paul Conry said that if Tradewinds does not meet its construction start date for the veneer mill, he will probably not recommend any further extensions for the project.

It seemed like such a trivial matter to decide: whether to allow a Kane`ohe couple to park their cars on a 19’-by’14’ patch of gravel in the Conservation District. But because Joyce and William Chandler constructed that little patch, the steep driveway leading up to it, and a gunnite wall along the hillside without a Conservation District Use Permit from the board, some Land Board members, as well as Office of Conservation and Coastal Lands administrator Sam Lemmo, were loathe to “reward bad behavior” and let the Chandlers use the landing for any purpose.

At its December 12 meeting, Lemmo first requested that, as part of a settlement with the Chandlers, the board approve an after-the-fact CDUP for the unauthorized improvements as well as a handful of ancillary ones that the couple wished to install. Granting the permit would help conclude a contested case hearing over violations stemming from the construction that began more than five years ago and resulted in a $50,000 fine. But when the Chandlers’ attorney Emily Gardner asked the Land Board for confirmation that her clients would be able to use the gravel patch to park their cars, Lemmo, as well as Land Board members Tim Johns and Sam Gon, protested. The only reason the state was considering allowing the improvements to remain is because the couple’s engineer believed it would cause more damage to the environment to remove them, Lemmo said in his report to the board.

“Maybe you intended it to be from the very beginning, a driveway and parking lot, but the whole reason for keeping it in was because that was regarded to be less impactful on the resources than it would be to take it out. We could have said, ‘Take it out,’” Johns said.

“I was looking at [the permit] completely from a practical perspective, the physical perspective, the advice of the engineers. That’s all I was looking at it as. And if Mr. Chandler had never said nothing in his EA [environmental assessment] and CDUA about morphing this whole thing into a parking area, we might have sat here and accepted it at face value and he could have been on his merry way. But he’s pushing the issue of parking and I’m very uncomfortable after what we’ve gone through and how it circumvents our whole regulatory process, because we wouldn’t have approved this had it come to us as a package,” Lemmo said.
Lemmo said he hadn’t recommended prohibiting the use of the area for parking in the permit’s conditions because he had better things to do than monitor where the Chandlers park their cars. Still, to make sure the Chandlers weren’t rewarded for bad behavior, Lemmo proposed amending his initial recommendations to delete the approval of a retaining wall to keep dirt from encroaching on the gravel area. That way, over time, dirt and vegetation would eventually cover the gravel patch, making it unusable for parking.
Perhaps aware that amending the conditions in this way could lead to yet another contested case hearing, the board approved Lemmo’s original recommendations for the CDUP, with Johns voting in opposition.

“So you want a larger marina?” Land Board member Tim Johns asked Michael Kumukau`oha Lee at the board’s December 12 meeting. Lee had just argued that shrinking the marina that HASEKO, Inc., plans to build in `Ewa, on O`ahu’s southern shore, could lead to anoxic conditions that could harm the seaweed that grows nearby. Lee has said he uses the seaweed for various cultural practices, including making medicine.

Lee is a native Hawaiian cultural practitioner who has fought for years to keep the natural and cultural resources along the `Ewa coast from being harmed by HASEKO’s marina development. And last February, after HASEKO proposed amending its Conservation District Use Permit for the marina’s entrance channel to allow the marina to be downsized from 70 acres to 53.76 acres, Lee requested a contested case hearing, arguing in his petition that the Department of Land and Natural Resources had provided inadequate oversight over public trust resources “thereby harming my ability to exercise my traditional and customary native Hawaiian practices.” He further stated that this lack of oversight could lead to the destruction of an ali`i burial site near the channel entrance.

Because Lee’s petition focused mainly on potential damages to archaeological sites, the DLNR’s Office of Conservation and Coastal Lands recommended on December 12 that the Land Board deny Lee’s request. In its evaluation, the OCCL found that Lee did not meet requirements for standing in a contested case. In its report to the board, the OCCL noted that reducing the size of the marina would not impact the construction of the entrance channel and therefore would not affect any burial sites.

At the board’s meeting, however, Lee raised a new issue in his defense. Lee told the board that he had scientific experts who would testify that reducing the size of the marina might affect water circulation in such a way as to create anoxic conditions, which could kill marine life in the area.

“I’m not against the marina development per se. I’m against dirty water going into the ocean,” he said, adding that he does not necessarily want a larger marina. Jerome Yasuhara of the Office of Hawaiian Affairs echoed Lee’s concerns.

Unsure what to do with this new information, the Land Board held an executive session to discuss its options. After conferring with their attorney, board members Ron Agor and Tim Johns seemed inclined to accept the OCCL’s recommendation to deny Lee’s petition.

“I’m kind of disturbed by the fact that the petitioner disclosed new issues at the last minute. We’re talking about due process and the other parts [HASEKO] was not privy to that,” Agor said, and Johns agreed.

Big Island board member Rob Pacheco, however, was more lenient and suggested that Lee be allowed to amend his petition. In the end, the board agreed with Pacheco and voted to give Lee ten days to refile his petition to include the issue he had raised at the meeting.

Streamlining is nearly always a good thing, except when it abridges the public’s rights. And in the case of the Land Board’s new administrative rules, at least one native Hawaiian, Keoni Pa`a Choi, as well as the Office of Hawaiian Affairs, worries that the rules, which delegate to a hearing officer a lot of things that usually come to the Land Board, could pose a hardship for native Hawaiians exercising their traditional and customary practices.

On December 12, the Land Board approved several rule changes regarding enforcement, contested case conduct, public hearing procedures and other administrative matters. But before the vote, OHA’s Jerome Yasuhara told the board that the new Civil Resource Violations System in the rules needed more review and said that he didn’t want any more enforcement of rules that violate constitutionally protected rights of native Hawaiians. He added that under the new rules, “punishments can be severe, maybe not criminal, but financially so. We’re talking thousands and thousands of dollars.” And because they would be adjudicated by a hearing officer, they would occur outside the public view. “That leads to issues of trust and how we view government,” he said.

Under the new system, the Land Board chair or a DLNR Division of Conservation and Resources Enforcement officer may issue citations for resource violations to which alleged violators have 21 days to respond. Recipients can accept the sanctions assessed, request mitigation, or contest the violation. Cases where the recipients request mitigation or contest the violation will immediately go before a hearing officer. The officer’s decisions regarding mitigation are final. In contested case hearings, however, the Land Board has the authority to make final decisions, unless it delegates that authority to the chair or the hearing officer.

The rules also direct the Land Board to establish an administrative sanctions schedule for civil violations. The schedule must consider the value of resources damaged or stolen, the level of damage to state facilities or services, costs of remedying or repairing the damage, and the level of cooperation of the violator, among many other things.

In response to OHA’s concerns, deputy attorney general Linda Chow explained that under the new rules, contested violations would continue to come before the Land Board for final decision. Land Board chair Laura Thielen added that the board still has to decide, at a public meeting, which types for violations would fall within that system. She said the kinds of violations that might come under the CRVS are minor things, such as not having a trailer sticker when using a state boat ramp.

While he voted to adopt the new rules, Land Board member Sam Gon echoed OHA’s desire to make sure that the board’s hearing officers have an understanding and knowledge of local communities, among other things important to natural resource management. Earlier last year, the Land Board decided to use a deputy attorney general from the Department of Health as its hearing officer and the DLNR has already delegated a number of its contested cases to him.

Also under the new rules, the presiding officer of public hearings can have disruptive people removed; at Land Board meetings, the chair must confine oral testimony to agenda items; at public hearings, oral testimony must be confined to the matter for which the hearing is being held, and to give people an equal amount of time to testify, presiding officers may limit the amount of time each person may speak.

At the Land Board’s December meeting, where it renewed the management permit for the co-trustees of the Papahanaumokuakea Marine National Monument, monument superintendent `Aulani Wilhelm presented the board with her agency’s 2007 annual report for the monument, which provides a glimpse of the level of impact various activities in the monument have had over 2007.

Researchers collected some 8,300 biological samples from the monument, including seabird blood samples and feathers; crab, coral, and cetacean biopsies; seeds and various animals, among other things. They also collected nearly 500 jars of rock and sediment and 135 pieces of rubble.

With regard to management, the Pacific Islands Fisheries Science Center removed more than 640 tons of marine debris from the monument and disentangled an endangered Hawaiian monk seal at Pearl and Hermes Atoll in October, while U.S. Fish and Wildlife Service staff worked to eradicate invasive terrestrial species, the report states.

The monument granted its co-trustees two permits for educational activities, and gave one permit for native Hawaiian practices to the University of Hawai`i, which took a group of cultural practitioners to Mokumanamana in June to conduct ceremonies and research cultural sites on the island. The Travelers Century Club received the only recreational permit to fly a group of 12 visitors to Midway Atoll for a two-day historical and wildlife tour. Finally, the monument issued two permits for a 65th anniversary commemoration of the Battle of Midway – which brought more than 1,600 people to the atoll – and three permits for documentary and educational filming and photography. In all, 2,120 people visited the monument.

While discussing whether to renew the monument’s management permit, KAHEA program director Marti Townsend objected to the permit’s provision allowing sustenance fishing in federal waters and the coring of sea beds, among other things. Townsend said she found the idea of sustenance fishing offensive, considering that native Hawaiians aren’t asking for it and that commercial fishing will eventually be prohibited in the monument. She also reiterated her longstanding opposition to the “self-authorization” and in-house review of permits by the monument’s co-trustees – the state, the U.S. Department of Commerce, and the Department of the Interior – and called for the establishment of an independent review body.

In response to Townsend’s concerns about sustenance fishing, Wilhelm said, “I want to correct the assumption that there will be NOAA people up there with [fishing] poles.” She explained that while the permit does identify sustenance fishing as a possible use, it was only meant to offer the permanent staff at Midway atoll the possibility of fishing for food, if and only if, the USFWS determined that it was a compatible activity. With regard to the coring of sea beds, Wilhelm said it would only be done in connection with things like the installation of mooring buoys or temperature gages.

The Land Board approved on December 12 a request by the DLNR’s Division of Forestry and Wildlife to hold public hearings on a proposal to withdraw 1,311 acres from the `Ewa Forest Reserve and designate the area as the Poamoho Natural Area Reserve. The proposed reserve includes four native natural community types, five species of the endangered Hawaiian tree snail genus Achatinella, and more than a dozen endangered plant species. DOFAW currently manages the land as a forest reserve and a public hunting area. In addition, the U.S. Army, which has a lease with the state to use the area, conducts non-live fire training there. Under the NAR proposal, the Army could continue to train in the NAR on weekends and holidays.

— Teresa Dawson

Volume 19, Number 7 January 2009