BOARD TALK: Mauna Kea, Kona Motosports Park, Koa Timber, and More

Order Barring Mauna Kea Development Prompts UH to Draft Management Plan

In August 2006, Third Circuit Judge Glenn Hara reversed the state Board of Land and Natural Resources’ 2004 decision to grant a Conservation District Use Permit to the University of Hawai`i’s Institute for Astronomy to build six small telescope components, called outriggers, around the W.M. Keck Observatory on Mauna Kea.

Although the Land Board and UH/IfA are appealing the court’s decision, on April 11, the board was briefed by UH consultant Ku`iwalu on what appears to be the university’s effort to comply with Hara’s order.

In his decision, Hara wrote that Department of Land and Natural Resources rules require the adoption of a “comprehensive” management plan for Mauna Kea’s summit before a CDUP can be issued for any use. He determined that neither the university’s 2000 Mauna Kea master plan nor the DLNR’s 1995 management plan met rule requirements.

Now, according to Ku`iwalu principal Dawn Chang (who used to be a deputy attorney general advising the Land Board), the university has decided to develop a comprehensive management plan for the summit on its own. Although the Land Board has not officially endorsed this course of action, it does not appear to oppose it. At the April briefing, Land Board chair Laura Thielen and member Tim Johns said the university’s decision to develop a plan was “a good thing.” Big Island board member Robert Pacheco, who is also president of the Mauna Kea Management Board, recused himself from the matter.

Chang said the university plans to gather public comment on its plan over the next few months and seek final approval from the Land Board in December. Chang said that if the board approves the plan, the university will seek state legislation in 2009 to establish administrative rules for its Office of Mauna Kea Management, which the UH Board of Regents created when it adopted the 20-year Master Plan for Mauna Kea in 2000.

The Plan

Most of the briefing focused on the process and DLNR rules regarding the plan. As for the plan itself, Chang presented a draft table of contents to the Land Board and quickly ran through its components, which included sections on cultural and environmental orientation, community participation, existing and potential uses, and plan implementation, among others.

In short, Chang said, the university would like to build a few more telescopes and plans to remove or replace obsolete facilities. She also said the university acknowledges that it hasn’t engaged the community enough.

“This has been a struggle for all of us… to develop a regulatory framework for a comprehensive management plan,” she said, adding that the university is trying to give great deference to the community, which has criticized it for a lack of cultural sensitivity. She said the university will also look at relocating certain facilities and restoring areas.

“We want to know from the board and the public, are we on track?” she said.

Thielen expressed general approval of the approach: “as a board member…I think it’s good for the university to take on a management plan. As Judge Hara pointed out…the summit area needs to be protected. It’s good to not be project-driven.”

Opposition

In an April 10 letter to the Land Board, the plaintiffs in the case that led to Hara’s decision argued that the university doesn’t have the authority to prepare a management plan for Land Board approval.

Mauna Kea Anaina Hou president Kealoha Pisciotta, Debbie Ward of the Hawai`i Chapter of the Sierra Club, Clarence Ching, and Ali`i Sir Paul Neves of the Royal Order of Kamehameha I wrote, “Under the BLNR’s rules, the DLNR must prepare and BLNR must approve a comprehensive management plan for the summit of Mauna Kea. This duty may not be delegated to a third party…By contracting for UH to prepare a plan, neither the BLNR nor UH/IfA are complying with the court’s order…

“Judge Hara’s decision called for a conservation plan, not a development plan for construction of another observatory. The UH/IfA and University of California are moving to build the world’s largest telescope, known as TMT [thirty meter telescope] atop Mauna Kea. The TMT is so big nearly every telescope on the summit could fit inside its dome. The TMT’s stadium sized dome cannot fit on the summit, so the UH/IFA is proposing to build it on the north summit plateau, that is the last undeveloped view plane, comprised of pristine land, sacred landscape and one of the largest burial complexes,” they wrote.

Although the board has not taken an official position on the plan or whether it will fulfill Hara’s order, the group wrote, “[W]e do not think it is appropriate to simultaneously claim that BLNR is complying with the Court’s order while at the same time appealing the same decision.”

In a telephone interview with Environment Hawai`i, Ward also criticized the university’s plans to seek legislative approval for administrative rules for the Office of Mauna Kea Management, which she says it has done for the past few years.

“Why do they want to go to the Legislature and not the BLNR? They want to have the authority but are not paying rent. You want rules and authority but you don’t have money for management. Our point has been that without rent, we don’t have money for management. The [astronomy facility] developers have the money to get what they want to develop, but the managers don’t have money to manage,” she said.

With regard to the management plan, Ward complained that it’s being done without oversight from the DLNR.

“That doesn’t seem appropriate. Judge Hara says the DLNR must come up with the plan. If the BLNR tasks UH, okay, but it should define what they want in the plan. The rules say the DLNR must create the plan,” she said.

Environmental Review

While the plaintiffs’ letter suggests that the Land Board and the university have already agreed on a course of action, it was clear at the April meeting that Thielen and the university disagreed over whether the plan triggers the state’s environmental review law, Chapter 343.

“We’re not proposing a use, but only a management plan,” Chang said. When there is a new proposed use, the university will comply with all applicable regulations, she said.

“At this time, we are of the view that the master plan doesn’t trigger [a chapter 343 review]. I realize there are some who have differences of opinion,” she said.

Thielen pointed out that an exhibit – Exhibit 3 – within the DLNR’s rules requires an environmental assessment to accompany the management plan.

Johns asked whether Thielen’s interpretation was inconsistent with Chang’s.

“Yes,” Chang said. “Exhibit 3 is triggered by what is your proposed use.”

Thielen said she “went around this a number of times” during her discussions with the university in January. “The dilemma we’re in is, our rules for management plans [require] an environmental assessment. While that may or may not make sense, we need to follow the advice of our AG [attorney general],” she said.

At one point, Stephanie Nagata of the OMKM interjected, “Our plan is going to be adaptive. Would we need to do an EA every time we update? Does that seem reasonable?”

While Thielen and the university representatives continued to disagree over whether the plan triggered Chapter 343, board member Johns seemed more concerned that some kind of environmental information was presented to the board.

“What kind of information do we need to have before us if we don’t have a Chapter 343 document?” Johns asked Chang.

“That’s a good and fair question. How does the board adopt a comprehensive management plan if it doesn’t have guidance?” Chang said, adding that the difficulty in providing that guidance lies in identifying all of the potential uses of Mauna Kea.

Johns said he would leave it up to the Attorney General’s office to tell the board if there needs to be Chapter 343 compliance (in the form of an environmental assessment or environmental impact statement), but worried that “this could get tripped up if a Chapter 343 review is required and we don’t do it.”

In response to Nagata’s comment, Johns added, “Our decision is not going to be driven by whether it’s a hassle for you to do an EIS or EA.” He also said that at some point, the board needed to be briefed on legal issues before voting on the plan.

Given that the university had scheduled approval for December, Chang promised to provide the board with an update in three months.

At its April 11 meeting, the Land Board authorized its chair, Laura Thielen, to continue negotiating an appropriate penalty for coral damage caused by the sinking of a Maui Snorkel Charters boat within the Molokini Marine Life Conservation District in 2006.

On January 25, the DLNR’s Division of Aquatic Resources recommended that the Land Board suspend MSC’s commercial operating permit for a year. If the board also wished to further penalize the company, the division stated that the board could impose a fine of up to $661,000 for damaging or killing corals and $10,618 in administrative costs.

Instead, based on a settlement offer by MSC representatives of $550,000 to be paid over 10 years, the Land Board directed the DLNR to negotiate a settlement that would include payment of no less than $550,000 in fines, $10,000 in administrative costs, and a permit suspension.

But instead of working within those parameters, MSC attorney Thomas Cole sent a letter March 7 to state deputy attorney general William Wynhoff making a new offer: a $250,000 upfront payment, with the remaining $300,000 to be suspended if the initial payment is made within 90 days of a completed settlement. Cole also proposed that MSC’s commercial operating permit be suspended for three months, but that it be allowed credit against this for the two-and-a-half months the sunken vessel was inoperable after the 2006 event. Finally, Cole asked that any settlement state that the sinking was not a result of negligence by MSC.

Because the Land Board did not give Thielen the authority to discuss the fine suspension suggested by Cole, she had the matter brought back to the board on April 11. At the meeting, the board set new parameters on the settlement: The fine would have to be roughly equivalent in value to $550,000 paid over ten years, meaning the actual amount could be less than $550,000 if it was paid over a shorter time frame. The board also seemed fine with a three-month permit suspension giving the company the credit it proposed, and decided to remain silent on the negligence issue.

The Land Board has approved in principle the purchase of a perpetual conservation easement over 9,000 acres of agricultural land owned by Kealakekua Heritage Ranch, LLC, and Hokukano Ranch, Inc. for $3,968,000 or fair market value, whichever is lower.

According to a report by the DLNR’s Division of Forestry and Wildlife, the property contains many forest types — mixed open forest, closed `ohi`a lehua rainforest, open koa forest with mamane, and open koa forest – and a variety of federally listed threatened and endangered plant and animal species.

“Due to agricultural zoning, forests in Kona are threatened by conversion to non-forest uses,” the DOFAW report states, adding that Kealakekua Ranch has received offers from buyers who want to take advantage of development entitlements that currently run with the property.

To purchase the easement, DOFAW has secured Forest Legacy program grants from the U.S. Department of Agriculture Forest Service totaling $3,968,000. The matching requirement will be met by the ranch’s donation of the land value, which will be determined by an appraisal.

For further reading on this subject, see the two articles published in the November 2007 issue of Environment Hawai`i.

 

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Kyle Dong, who has tried unsuccessfully for years to log koa from about 12,000 acres of rainforest north of Hilo, has been denied a Conservation District Use Permit.

In March 2001, Dong’s company, Koa Timber, Inc., submitted its first CDUA, but withdrew it because of criticism over its weak environmental assessment and because one of the company’s owners backed out. Twice more over the years, Dong or his affiliated companies submitted and then withdrew Conservation District Use Applications for the logging operation, which was proposed to take place within the resource subzone of the Conservation District.

In February 2007, the DLNR’s Office of Conservation and Coastal Lands accepted a fourth CDUA from Dong to develop what he described as a sustainable commercial koa timber forestry operation in Hilo. The project was again roundly criticized by environmentalists and government resource management agencies, and in May 2007, OCCL administrator Sam Lemmo wrote a long letter to Dong, notifying him of the major issues that had been raised during the review period for the project’s draft environmental impact statement. Lemmo’s letter also explained how Dong was required to respond to those concerns.

At the Land Board’s April 11 meeting, Lemmo said Dong failed to address the concerns laid out in his May letter. In June and September 2007, at Dong’s request, the Land Board extended the deadline to process the CDUA. But when the board voted last year on the second extension request, at-large member Tim Johns said he wanted an update on the status of the project before granting any further requests. So when Dong asked for a third time extension last December, Lemmo responded by sending two letters requesting a progress report and warning Dong that the OCCL would recommend denial of the extension if it did not receive the report soon.

Lemmo told the board Dong has not responded to his requests and recommended that the board deny the application, which it did.

For further reading on the history of this troubled project, see our December 2003 and July 2007 issues of Environment Hawai`i, available on the web at [url=http://www.environment-hawaii.org]www.environment-hawaii.org[/url]

Earlier this year, when a Hawai`i surfboard company proposed holding a surfing contest at the Mahai`ula section of Kekaha Kai State Park on the Kona coast of the Big Island, community members involved in the state’s acquisition and management of the park argued that the area was always meant to be kept wild, free from any development or commercial use.

For these same reasons and others, Janice Palma-Glennie of the Sierra Club’s Hawai`i Chapter objected on March 28 to a request by the County of Hawai`i to approve a three-year right-of-entry and authorization to undertake any necessary studies and apply for various land use designations, zoning, and approvals needed for a proposed motosport park on 250 acres of state land at Mahai`ula and Kaulana, just north of the Kona airport.

While Palma-Glennie did not oppose the development of a motosport park in West Hawai`i, she did object to the proposed site, noting that it lies across the road from the Kekaha Kai State Park entrance.

“Plans for a racing facility in Kona have ranged from a 2,500-acre NASCAR facility in the mid-1990s to a 180-acre community track a few years ago. In 2002, a 2,000-acre proposal for a ‘world class’ racing facility was rejected by the Legislature. What all of these proposals had in common was that they were uncannily planned to be built in the same inappropriate and controversial location,” she said.

Palma-Glennie described how noise, light, and air pollution, and hydrocarbon runoff might affect the surrounding residential, university and resort development, and added that “the BLNR should not be authorizing anything in principle until after an environmental impact is completed.”

While Hawai`i board member Rob Pacheco said the staff recommendation allows the county to proceed with an EIS and investigate whether or not the site is appropriate, Palma-Glennie countered, “Over the more than ten years they`ve been planning to do the facility there… it’s really starting to divide the community. Putting all the energy into that site throws more good money after bad and also eliminates the potential of finding another site.”

Paul Maddox of the Hawai`i Racing Association, which has been working on the project for more than a decade, testified that the location was actually suggested by the DLNR.

“They said go move it next to the airport, because we had originally talked about Pu`u Anahulu and out close to the hotels, which was obviously a bad idea,” he said.

Despite Palma-Glennie’s arguments, Pacheco moved to approve the DLNR Land Division’s recommendation that the Land Board 1) support the need for a motor sports facility in West Hawai`i and 2) authorize the county to begin taking steps to determine whether the site is appropriate and seek necessary land use approvals. The division also recommended that if the county failed to complete the environmental review process and obtain land use approvals within three years, the right-of-entry would automatically be rescinded. The board unanimously approved the recommendations.

At its March 28 meeting, the Board of Land and Natural Resources voted to approve a request by its Division of Aquatic Resource to close all state waters around the Main Hawaiian Islands to bottomfishing until August 31. The closure only applies to the “Deep 7” bottomfish species: ehu, gindai, kalekale, lehi, onaga, opakapaka and hapu`upu`u.

In May 2005, the National Marine Fisheries Service determined that bottomfish species around the Main Hawaiian Islands were subject to overfishing and required the Western Pacific Fishery Management Council to take steps to reduce bottomfish fishing mortality by 24 percent. Among a suite of other regulations, the council adopted an annual catch limit and a May-September closure, which the Land Board has honored, since bottomfishing grounds span both state and federal waters.

The NMFS’ final rules on the bottomfish fishery, which also require all non-commercial bottomfish fishers to have a federal permit, became effective on April 1. Because the Land Board does not yet have the authority to close fishing areas without going through its long and often arduous rule-making process, bills were introduced at the Legislature this year to give the DLNR that power to more easily adopt rules responding to a federal determination of overfishing.

Even so, last March, DAR requested the bottomfishing closure in anticipation of an early federal closure, which came on April 16, 2008. According to a DLNR press release, commercial catch data indicates that the current fishing season’s total allowable catch of 178,000 pounds was reached in mid-March.

— Teresa Dawson

Volume 18, Number 11 May 2008