BOARD TALK: Rock Thieves, Aeby Controversy, and Green Energy

A wrong date that appeared in the printed version has been corrected.

O`ahu Men Are Fined $3,050 Each For Raiding Maui Stones for Imu

On July 11, the state Board of Land and Natural Resources fined Hawai`i Superferry passengers Charlie Bright, Ralph Chun, and Victor Fonoimoana $3,050 each for the unauthorized taking of a total of 934 river stones from the Conservation District of Waiehu, Maui in August 2007. The three O`ahu men, who had loaded the rocks into three pick-up trucks, planned to transport them on the Hawai`i Superferry. But when the Maui Circuit Court halted Superferry services later that month, the rock-laden trucks, stuck in the ship’s queue, were discovered by officers of the Department of Land and Natural Resources’ Division of Conservation and Resources Enforcement following a tip from the Maui Sierra Club.

The officers seized both the stones and the trucks. According to a report to the Land Board by the DLNR’s Office of Conservation and Coastal Lands, the men planned to use the stones for imus (traditional Hawaiian earthen ovens) for the Mormon Church on O`ahu. According to the OCCL’s report, the men were prompted to harvest the rocks by the Hawai`i Superferry’s $5 promotional fares for its maiden voyage to Maui. The widely publicized incident underscored arguments at the time about the ferry’s potential to exacerbate resource raiding and invasive species transport between islands.

Because the stones were taken from the Conservation District, an enforcement case was brought before the Land Board, which approved the OCCL’s recommendation to impose on each of the men a fine of $2,000 per violation per day plus $1,050 in administrative costs. (This year, the Legislature raised the maximum fines for Conservation District violations from $2,000 to $15,000 per violation per day. Because this enforcement case had been prepared before the new fines went into effect, the OCCL recommended the old maximum fine.)

At the board’s July 11 meeting, at-large member Tim Johns and Hawai`i island member Rob Pacheco voted against the fine. Johns held back because he felt the fine was too small, while Pacheco seemed concerned that the stones may have been taken by men who were simply exercising their traditional gathering rights.

Calculating Fines

One of the first questions Johns asked OCCL administrator Sam Lemmo was whether state law allowed the board to impose a fine for each rock taken. Years ago, the Land Board had tried unsuccessfully to fine a Maui developer – who had excavated coral from a beach – for each scoop of coral that had been taken. But the board has imposed per-tree fines (on Johns’ former employer Damon Estate, among others) for native trees taken from the Conservation District. The difference, Lemmo explained, was that taking the large native trees involved a selection process that distinguished the act from non-native vegetation clearing, which would be considered a single violation.

“Don’t you pick up one rock at a time?” Johns asked.

Lemmo said that a per-rock violation would have resulted in astronomical fines. That “would have been fine,” he said, “because it would send a message that we don’t tolerate this.” However, he added, a per-truckload violation would bring a quicker resolution and still send a strong message to the public. “I was thinking more comprehensively, trying to get from A to Z on this without having a lot of conflict,” he said.

Native Rights

Attorneys representing the three men asked the board to defer deciding on the case for two weeks. Former city prosecutor Keith Kaneshiro, representing Chun and Fonoimoana, said he wanted the deferral to avoid going to a contested case hearing and avoid further legal expenses for his clients. He did not offer any testimony, stating that he did not want to jeopardize his clients’ rights. Bright’s attorney, Thomas Otake, said he wanted a deferral until he had a chance to provide information on Bright’s gathering rights. Information supporting those rights, combined with Otake’s claim that most of the rocks (about 700 of the 934) were taken with permission from private property owned by Darryl Aiwohi, might result in a finding that there was no violation, he argued.

While Lemmo said his staff had not considered laws protecting traditional and customary practices when preparing the case, Maui board member Jerry Edlao questioned whether the men truly believed what they did fell under traditional gathering. If they had, Edlao argued, they would have declared to Superferry agents that they were transporting imu rocks. Instead, according to the OCCL report, Bright “drove through the checkpoint and tried to avoid conversation.”

Even so, board member Pacheco said he wanted the cultural practices aspect of the case to be explored. And while Otake wanted to distance the case from the highly politicized Superferry issue, Pacheco wanted just the opposite.

“I really do believe we probably wouldn’t be seeing this, with the attention that’s been drawn to it, if it wasn’t [related] to the Superferry,” Pacheco said. “[W]e need to think about that transmovement of material between islands. If it’s something that’s a cultural and traditional practice, was it traditional to take that from one island and take it to another island?” he said.

In the end, Edlao’s motion (seconded by Kaua`i member Ron Agor) to accept OCCL’s recommendation passed, with Pacheco and Johns dissenting. After the board’s vote, Otake and Kaneshiro requested a contested case hearing.

At the Land Board’s June 13 meeting, everyone seemed to agree that the DLNR’s rules for the Northwestern Hawaiian Islands Marine Refuge bar coral disease expert Dr. Greta Aeby from obtaining a permit this year to resume her research in the remote island chain. Whether the rules bar permit violators from the refuge forever was not so clear cut.

Aeby, a researcher with the University of Hawai`i’s Hawai`i Institute of Marine Biology, has studied coral reef diseases in the NWHI for years. But in July 2007, the Land Board fined her $1,000 for violating conditions of her 2006 research permit when she transported live coral between French Frigate Shoals and Gardner atoll in an open-flow tank aboard the Hi`ialakai research vessel. The board also deferred Aeby’s request for a permit to participate in a 2007 research cruise to the Papahanaumokuakea Marine National Monument, which includes the state’s refuge.

Aeby contested the violation at first, but backed off months later after the hearing officer appointed to her contested-case hearing recommended that the Land Board expand the case’s scope and allow KAHEA: the Hawaiian Environmental Alliance to intervene. According to a June 13 briefing to the Land Board, the case was dismissed in April 2008 and Aeby paid her $1,000 fine.

Aeby tried to resume her work in the monument this year by having UH assistant professor Evelyn Cox apply for the permit with Aeby tacked on as a principal investigator. Under DLNR’s rules regarding penalties for permit violations, Aeby could not herself apply.

The DLNR’s Division of Aquatic Resources brought Cox’s permit request to the board on May 23. The DAR recommended approval in its report to the board, but at the board’s meeting, DAR administrator Dan Polhemus proposed deferring the matter. The proposal had generated strong opposition from KAHEA, whose program director, Marti Townsend, complained in a press release, “This appears to be another attempt to circumvent the state protections for Papahanaumokuakea.” At least one Land Board member also expressed concern about Aeby’s inclusion in the permit application.

“I’ll just be frank. It appears to be a maneuver by someone who violated a permit to get back up there,” Hawai`i island Land Board member Rob Pacheco said at the meeting, adding that he wanted to know “A, is [Aeby] vital to the research, and B, is the work so important that it overrides her violation?”

University of Hawai`i attorney David Lonborg responded that picking up where Aeby left off was not something Cox could do by herself. “This is the only way this work can continue,” he said.

Banned for Life?

On June 13, the DAR brought Cox’s permit request back to the board, as well as a separate request that the board officially deny Aeby’s 2007 permit application. Polhemus said that since the contested case over the 2006 violation was dismissed earlier this year, “DAR felt that Aeby’s 2007 permit request needed to be brought back to the board so that it could meet the requirements of the DLNR’s rules.” Those rules state that the Land Board “shall deny” permit applications from those who have had violated NWHI permits in the past.

When Pacheco asked whether the phrase “shall deny” should be interpreted as a recommendation or a requirement, Thielen said the board could seek advice from its deputy attorney general. (The refuge rules dealing with violations and permits can be confusing when read together. A section on permits states that the board shall deny permit applications based on past violations. A subsequent section on penalties, however, states that an applicant shall not be eligible to apply for a permit within one year of a violation.)

Although board member Tim Johns said denial of the permit was a moot issue (since the cruise for which the research was proposed was conducted last year), Polhemus said his division believed the rules required it to bring the permit back to the board for denial. He added that Aeby was given an option to withdraw the 2007 application, but chose not to.

At-large board member Sam Gon asked whether there had been any clarification “on whether denial of a permit and the term ‘shall’ applies to just a single permit application following a violation or all permit applications following a violation?”

Polhemus said that after considerable internal discussion at DAR, “our reading of the rule as it stands is that if an applicant has a violation, they cannot subsequently be a successful applicant in the future.”

“I have a problem with that,” Pacheco said. And Gon agreed.

‘Better taken outside’

Although the question of the lifetime ban was raised by board members Gon and Pacheco, Thielen did not allow anyone from the public to join the discussion.

When UH’s Lonborg tried to express the university’s concerns with the DLNR’s interpretation that the rules provide for a lifetime ban, Thielen cut him off. “That’s not in front of us right now,” she said, suggesting that he wait until the board considered Cox’s permit application.

The board then voted to deny Aeby’s 2007 permit application and began discussing Cox’s permit request. But Thielen again cut off discussion of the lifetime ban issue. Tod Aeby, Greta’s husband, wanted to read a statement from Greta, who was in American Samoa at the time. He asked when the best time to testify would be.

Thielen said the board could not discuss a lifetime ban at all at the June 13 meeting because, under the Sunshine Law, the board can only discuss items on the agenda.

Johns then suggested that the board might want to schedule a briefing by the Attorney General’s office on the subject. “I’m not sure I concur with the interpretation it was a lifetime ban or that that was the intent of the rule,” he said.

Thielen said that the contested case hearing could have addressed that issue and that concerns about the rules and the practice of past violators piggybacking on other peoples’ permits could be addressed in the monument management plan, a draft of which was released earlier this year. She added that the DLNR may need to take subsequent action to clarify any inconsistency in its rules.

When Tod Aeby asked what would have happened had his wife submitted a new permit application, Thielen, citing the Sunshine Law, said, “I think this conversation is better taken outside,” and suggested that Aeby talk to Polhemus after the meeting.

While Polhemus said he would schedule a board briefing on the matter to “allow everyone to weigh in,” Thielen interjected that it would probably be a closed “executive session legal briefing.”

Concerned that a decision on his wife’s fate would be made behind closed doors, Tod Aeby asked whether he or his wife would have an opportunity to make a statement before a decision is made.

Thielen said that if Greta Aeby submitted a new application, she would have an
opportunity to make a statement when it came to the board. Thielen added that submitting comments on the management plan was also an option.

“Doesn’t she have an opportunity to submit something with regard to [the briefing on her contested case hearing] today?” Johns asked.

When Thielen replied that the briefing was simply a notice that Greta Aeby withdrew her contested case hearing request, Johns said it also addressed the fact that there was a violation. “The logical step [in discussing that matter] would be: what are the implications or consequences of a final determination that a violation occurred?” he said.

Last-Minute Change

In addition to the confusion over the lifetime ban issue, Cox surprised the board with a new request. In his June report to the board, Polhemus wrote that Aeby would not be participating in Cox’s research. At the board meeting, he added that Aeby was removed at HIMB’s request.

Cox, however, said that the DAR had recommended removing Aeby, and said that she still wanted Aeby to join her. She explained that Aeby had established the permanent monitoring sites in Northwestern Hawaiian Islands, and that since she had been there only once, she needed Aeby’s assistance in finding the sites.

None of the board members seemed amenable to Cox’s request.

“I would want to get a lot more specific info from you about that,” Thielen said, adding that while she understood the reasons behind Cox’s request, “The people who follow this, [based on] what’s been posted, [believe] she was withdrawn” from the permit.

The board approved Cox’s permit without Aeby. Thielen then said that Cox could apply to amend it to include Aeby.

All of them shook hands as they filed out of the room, the earnest would-be producer of renewable energy and the farmers who had to give up portions of their land to make room for him. After a rocky start and several months of negotiation, they had come to an agreement.

On May 23, the Land Board approved a revocable permit to Green Energy Team, LLC, to plant eucalyptus trees on about 1,000 acres of land at Kalepa, Kaua`i, which had until then been occupied by ranchers and farmers belonging to a group known as the Kalepa Koalition.

Last November, Green Energy president Eric Knutzen requested a revocable permit from the Land Board to plant albizia trees on 2,160 acres of Kalepa lands. The trees were to be chipped and burned in a nearby facility to produce electricity. Knutzen’s proposal was swiftly and vehemently criticized by farmers and conservationists aghast at the idea of permitting the large-scale planting of such an invasive species and the use of irrigated ag land for a tree farm.

The Land Board deferred taking action and directed the state Agribusiness Development Corporation to coordinate discussions with all affected parties on a co-existence plan. Knutzen, the Kalepa Koalition, the East Kaua`i Water Users Cooperative, Department of Land and Natural Resources staff, and Hawai`i Mahogany eventually negotiated an agreement, which was brought to the Land Board for approval on May 23.

Under the agreement, Green Energy must plant eucalyptus instead of albizia and harvest existing stands of albizia in accordance with a plan approved by the DLNR’s Division of Forestry and Wildlife. All 13 Koalition permittees agreed to surrender a total of 1,037 acres to Green Energy, including 255 acres of irrigated lands.

According to a report by DLNR land agent Gary Martin, the Koalition agreed to the terms on the condition that the 2000-plus acres of agricultural land in Kalepa be transferred to the ADC, as the Land Board had already approved at a meeting last April. The report adds that a recommendation to transfer the water system serving those lands will be brought to the board once a contested case hearing initiated over a proposed 65-year water lease for a hydroelectric plant concludes.

Despite the fact that the Koalition agreed to give up 255 acres of irrigated land, when the matter came to board, representatives from the ADC, the coalition, the water users’ co-op, the Kaua`i County Farm Bureau, and the Hawai`i Farm Bureau Federation all testified against the use of irrigated lands for the Green Energy project. Several said that while they support renewable energy, they’d rather see the land used for diversified agriculture.

In written testimony, state Board of Agriculture chair Sandra Lee Kunimoto avoided taking sides. She stated that Green Energy could reduce Hawai`i’s imported oil dependence, but also that the existing permittees must be acknowledged and “[c]onsideration must also be given to determine the best use of irrigated land.”

“The allocation of agricultural land to be used for food versus energy is a critical issue that will continue to come up. As responsible stewards, we must take great care when allocating public lands to ensure a balance between food and energy to meet the current and future needs of Hawai`i’s citizenry,” she wrote.

Land Board member Tim Johns said he was disappointed and hoped the DOA would have offered some direction to the board. “Sandy’s testimony to us is worthless,” he said.

At the meeting, Kalepa Koalition interim chair Leslie Milnes asked that a 68-acre parcel of irrigated land that was to go to Green Energy be withdrawn, which would leave the company with a total of 969 acres. Because Knutzen said his bank has requested that he secure 1,000 acres, Milnes offered to make up the difference with land he currently occupies.

— Teresa Dawson

Volume 18, Number 10 April 2008