On May 11, the Board of Land and Natural Resources fined five Maui residents $500 each and ordered them to pay up to an additional $200 each in administrative costs for riding motorized dirt bikes on state conservation lands at Hana`ula, not far from where the state is rearing and releasing endangered nene.
According to Department of Land and Natural Resources enforcement officers on Maui, they have seen a proliferation in recent months of unauthorized motor vehicle activity on state land at Hana`ula and other environmentally sensitive areas. They also reported receiving an increasing number of complaints.
On Superbowl Sunday, February 4, officers with the DLNR’s Division of Conservation and Resources Enforcement staked out a road to the West Maui Forest Reserve to catch dirt bikers as they came down from the uplands. While DOCARE reports indicate that at least six riders fled from the officers, Richard Halfhill, Antoinette Davis, Ernest Kalei Smith, Randy Waldrop, and Archie Kalepa all pulled over when officers motioned for them to stop. The officers informed them that they were trespassing on state lands and seized their bikes.
On May 11, the five came to Honolulu to explain themselves to the Land Board and to plead for the return of their bikes. “I just want my dirt bike back,” Kalepa said at one point. That day, DLNR Land Division Maui agent Daniel Ornellas recommended that the Land Board order the return of the vehicles and fine each of the riders $500 for violating DLNR rules. Those rules prohibit people from driving a motor vehicle on unencumbered state lands except on roads, trails, or tracks designated or provided for vehicular use. Parking or leaving a motor vehicle unattended that blocks entry onto any road, trail, track, or beach access is also prohibited.
Land Division administrator Russell Tsuji also asked that the board require the alleged violators to pay undetermined administrative costs as well, since six DLNR staff members had to fly over from Maui to attend the meeting.
At the meeting, all five dirt bikers stated that they did not see signs prohibiting motorized vehicles, even though the DLNR has posted signs that indicate that the area is government property and that littering, motorized vehicles, camping, fires, and alcohol are prohibited.
Halfhill and Davis contended that they were riding their bikes on private roads only, but admitted that they had parked their truck on state land. In a February 4 email to former Land Board chair Peter Young, Davis complained that there were no signs to indicate that the main dirt road (technically a fire break) was not to be used.
Maui Land Board member Jerry Edlao reprimanded them anyway.
“It is a very sensitive area up there, a lot of historical things [referring to archaeological sites]. I would like to see a legal place on Maui and would like to see the department looking for land in a more active way. I’m not a dirt biker, but I have friends who are. This is [a problem] all over. I have friends with commercial property who complain. If you live in Hawai`i, you should know the sensitivity of lands… Maybe you should have pushed and checked first,” he said.
Davis argued that she looked for signs, but did not see any.
To this, Tsuji noted that because the state does not allow any unauthorized vehicles on its lands, “You should not have to see a sign, whether it’s private or public property.”
Kalepa, Smith and Waldrop, who were riding the area together, readily admitted that they were riding in the wrong area and apologized for trespassing.
“We didn’t intend to break laws… Instead of running, which is the nature in the past of bike riders, we stayed… We accept the fact what we did was wrong,” Kalepa said, adding that they have warned other riders not to go to Hana`ula and not to cut the fences.
Like Edlao, Kalepa said he, too, wants to see trails developed that would allow for a legal riding area on Maui. While there is a motocross track on the island, Kalepa said, “You can only do triple jumps for so long. Older people need other [options].”
“We want to be law abiding citizens,” he said, adding that riders have developed a perimeter trail at Pu`unene in association with the DLNR’s State Parks Division and that he has been discussing with Na Ala Hele, the state’s trail program, the possibility of leasing 600 acres for riding.
To drive home the need to control biking at Hana`ula, Sasha Smith, a wildlife technician with the department’s Division of Forestry and Wildlife, gave a presentation to the Land Board on the type of damage that has been done. Smith propagates and releases nene, the endangered Hawaiian goose, at Hana`ula. Because nene are ground-nesting birds, they are extremely vulnerable to being run over, she said.
Smith told the Land Board that dirt biking and ATV riding, which had been occurring at Hana`ula for several years, had damaged fences, gates and trails. She added that she has posted numerous warning signs that have been vandalized or stolen.
“This area is in the West Maui Forest Reserve and is designated for the release and propagation of nene, [a species] that is classified as endangered… This area is restricted from public access,” Smith wrote in a letter to the DLNR. In December 2005, she continued, dirt bikers cut a section of the Forest Reserve fence protecting the state’s nene release pens and ran over water lines, which broke and drained the only source of water to the release pens.
“They continued to spin ‘donuts’ around the water unit and left trash around the pens. The nene were nesting in the pens at the time of the incident and there were great concerns that the nest would be abandon [sic] or goslings run over. These signs warn trespassers to stay out of the area, explain our project and list fines and penalties. The entire area is also a pristine native forest and native bird habitat. These dirt bikes are devastating to the forest reserve and not to mention the time and cost to repair fences, gates and water units over and over again,” she wrote.
In her presentation to the Land Board, Smith showed photos of the broken water lines, a cut fence, and vegetation that has filled in the ruts made by bikes and ATVs since DOCARE’s enforcement activities in February.
Maui DOCARE officer Randy Awo explained that controlling dirt bikers is a challenge “because of what they are – mobile, fast, and the riders are geared up so we can’t identify them.” He added that finding entry points into areas is labor intensive.
“In most cases, they get away and damage continues to occur… This is a big and growing problem and it’s far from over,” Awo said. He noted that Kahikinui, on Maui’s south shore, is another hotspot.
Awo noted that the ability to seize property from violators is a crucial tool in any enforcement case. In this case, it compelled people to show up to the Land Board meeting and to comply with the law, he said. In Davis’s email to Young, however, she asked whether the DLNR had the ability to seize the bikes. She stated that when she asked a DOCARE officer under what administrative rule were the bikes being confiscated, she was told Chapter 13, section 221.
“I see nothing there about confiscation. Penalty: A fine of not more than $500,” she wrote.
The Land Board’s deputy attorney general seemed to agree and advised the board in executive session to return the bikes to their owners. Despite the advice, Land Board members Tim Johns, Rob Pacheco, and Sam Gon objected, stating that they wanted to maintain DOCARE’s ability to seize and keep property of violators, not just in this case, but others where seizure is warranted.
“My primary concern, even after the briefing by the AG, is that there is the clarity of seizure rights DOCARE has. I’m not willing to take that enforcement tool out of their hands,” Johns said.
Board member Edlao, however, moved to accept Land Division staff’s recommendation to fine the five riders $500 each and to direct the department to return the bikes immediately upon receiving payment of the fines. He also moved to allow the Land Division to recover administrative costs of up to $200 from each person.
The motion passed, four to three, with Gon, Johns, and Pacheco voting against the motion.
Board Approves Joint Permit
For Papahanaumokuakea
As of December 8, the state, the Department of Interior, and the Department of Commerce have been co-trustees of the Papahanaumokuakea Marine National Monument, which includes state and federal waters out to 50 miles surrounding the Northwestern Hawaiian Islands.
In the months following the establishment of the monument last June, the state has approved permits for activities in its Northwestern Hawaiian Islands Marine Refuge, which is part of the monument, but activities in federal monument waters have been approved administratively by the monument program office, the U.S. Fish and Wildlife Service, or both agencies. At the same time, all of the co-trustees have been working toward a streamlined permitting process that would require all of them to sign off on all permits.
Last April, the DLNR’s Division of Aquatic Resources presented this new permit to the Land Board for approval and requested that, for activities in federal waters, the board delegate its approval to the chair or to staff.
“Although it is clear from [President Bush’s] Proclamation and the Memorandum Of Agreement that the state’s jurisdiction in the monument is neither diminished nor enlarged, the co-trustees wish to develop a system in which all three co-trustees weigh in equally on all of the permits. The co-trustees understand that a joint management effort and approach is preferred to piecemeal management of Monument resources,” a report by DAR’s administrator Dan Polhemus states.
“[E]ven for matters of solely federal concern (e.g., in federal waters beyond three miles, or on Midway – which is not part of the state of Hawai`i) where state jurisdiction was not previously implicated, the co-trustees wish to have the state as signatory to the jointly-issued permit to ensure and enhance cooperative efforts of joint management. By the same token, it is intended that all prior permits previously issued for the NWHI by the Land Board…will henceforth be approved by all co-trustees,” the report continues.
Because the Land Board’s jurisdiction does not normally extend outside state waters, DLNR staff proposed that the chairperson or the chairperson’s designee be given authority to administratively approve permits for activities outside state waters. Activities within state waters would still require Land Board approval.
At the Land Board’s April 27 meeting, members of the environmental groups KAHEA and Environmental Defense, as well as an advocate from the Office of Hawaiian Affairs, urged the Land Board not to delegate its authority and require that all permits be approved by the board at a public meeting. KAHEA’s Marti Townsend, Environmental Defense’s Stephanie Fried, and OHA’s Heidi Guth said this would be the only way the public could get a glimpse of what is going on in the monument outside state waters. Fried noted that she had not received a single permit from the DAR or the monument program, despite requests to both agencies to see all permits that have been issued since the monument was established.
What’s more, Townsend said that the conditions of the joint permit were weaker than conditions that the Land Board had imposed on previous permits for activities in the state’s Northwestern Hawaiian Islands Marine Refuge. Fried asked that all of the conditions that the Land Board had attached to its previous permits for activities in the NWHI be included as special conditions in the new joint permit.
In response, Polhemus argued that the Land Board’s conditions for refuge permits had not been vetted by the attorney general’s office, but that the general conditions had.
Regarding the board’s jurisdiction, members Sam Gon, Jerry Edlao and Tim Johns questioned deputy attorney general Colin Lau about what it meant to be a co-trustee if the MOA precluded the state from expanding its authority.
“Why sign off [on a permit for federal waters]?” Edlao asked. Gon asked what would happen if the Land Board opposed a particular permit that did not involve state waters. “It wouldn’t have any grounding or authority,” Gon said.
Contrary to Lau’s advice and Polhemus’ report to the Land Board, NMFS regional deputy director Mike Tosatto suggested that the state’s authority could be enlarged if the Land Board were allowed to decide on permits for activities in federal waters.
“Delegation was a palatable way to get the state’s approval… We don’t have to settle the legal issues… If the board does not approve a permit, it would be an issue we would have to parse out,” he said, adding that delegation is also more efficient.
In the end, the Land Board voted unanimously to approve the joint permit form and delegate approval of activities in federal waters to the chair or the chair’s designee. The board also ordered the DLNR to provide monthly reports on activities within the monument.
Bottomfish Seasons
Earlier this year, the Western Pacific Fishery Management Council voted to prohibit bottomfishing in federal waters from May to September in response to an order by the National Marine Fisheries Services to take action to end overfishing of bottomfish stocks in the Hawaiian archipelago. Although the DLNR has managed bottomfishing in state waters using area, rather than time, closures, on April 26, the state hastily approved a seasonal closure identical to the federal one so that fishing effort would not shift to state waters when the federal closure went into effect at the beginning of May.
Normally, such a closure could not be approved by the Land Board without a lengthy public hearing process. The Division of Aquatic Resources would propose rules authorizing it, the Land Board would vote on whether to take them out to public hearings, public hearings would be held statewide, and then the rules would be brought back to the Land Board for approval. But because of the need for haste, and with reluctant support from its deputy attorney general, staff decided to bring a request for a temporary five-month closure of all bottomfishing in the state directly to the Land Board.
Although it recognized the need to adopt a seasonal closure, DLNR staff, as well as then-Land Board chair Peter Young, was concerned about the state’s role in enforcing it. While saying he wanted to do whatever was needed to make bottomfishing in Hawai`i sustainable, Young added, “We don’t want to be the lead on enforcement for a designation coming from the feds.”
Tosatto, regional deputy NMFS director, promised Young that NMFS would not “leave DOCARE hanging. I can give you my assurances today: It’s a definite priority of the fisheries service.” He added that NMFS has the ability to do dockside and marketplace enforcement, among other things, that tracks where the bottomfish sold in Hawai`i have come from.
Despite Tosatto’s assurances, Gary Moniz, administrator for DOCARE, complained that enforcing a seasonal closure will put a new burden on his division. He said he had been told by NMFS enforcement staff that they would call his office if they discovered a violation. Moniz said that criminal prosecution of a seasonal closure would be difficult.
“We want to know where the fish came from. Possession and sale are not covered in the measure [proposed by DAR staff],” he said, adding that there needed to be an aggressive public education campaign – done in Tagalog, Samoan, Vietnamese, and other languages – to notify people about the closure. Moniz added that the fact that bottomfishing often takes place at night complicates enforcement.
“DOCARE wanted you to know, this is not a slam dunk. We still need to sit with the AG’s [attorney general] office,” Moniz told the board.
Before its vote on the matter, deputy attorney general Lau advised the board to expedite the adoption of rules to back up the closure. According to Polhemus, discussions had already begun on a full rule package.
— Teresa Dawson
Volume 17, Number 12 June 2007
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