Board Talk: Land Board Fines Coral Disease Expert

Board Fines Coral Disease Expert, Defers Decision on NWHI Permit

“You’ve got to ask yourself, are you protecting the resources more by stopping me going up there?” coral disease expert Greta Aeby asked the Board of Land and Natural Resources at its July 27 meeting.

Aeby, an assistant researcher with the Hawai`i Institute of Marine Biology, was the first to identify incidents of a number of diseases in coral and reef fish in the Northwestern Hawaiian Islands and has been monitoring disease there since 2003. Last year, she received a permit from the Land Board to continue her research, and this year she hoped to do the same. Despite many letters and testimony from the scientific community in support of Aeby’s good work and warnings from some that stopping her could have disastrous effect for the reefs up there, Aeby would not get that chance.

Last January 12, the Department of Land and Natural Resources’ Division of Aquatic Resources brought its first violation case regarding the Northwestern Hawaiian Islands Marine Refuge to the board. The case involved two alleged violations by Aeby while on a research voyage last year. The first occurred on May 23.

“On the evening of May 23, 2006, the Hi`ialakai [a National Oceanic and Atmospheric Administration reserach vessel] departed French Frigate Shoals (FFS) for the 110 nautical mile transit from FFS to Gardner Pinnacles. On May 24, 2006, Hi`ialakai chief scientist and NOAA’s NWHI Marine National Monument research coordinator Dr. Randall Kosaki realized that Dr. Aeby had pieces of live coral in her holding tank and that these specimens had made the transit between FFS and Gardner in an open, flow-through aquarium. Dr. Kosaki instructed Dr. Aeby to close off the seawater system of the tank while the vessel was at Gardner and asked Dr. Aeby to return the sample to an area of suitable habitat upon return to FFS. On the morning of May 25, 2006, Dr. Aeby replaced the live coral on a reef near its collection site at FFS,” a DAR report states.

The second alleged violation was noted on May 30. That day, according to DAR, Kosaki and DAR’s Jill Zamzow noticed that Aeby or her staff were culturing live bacteria from diseased corals on the Hi`ialakai

Under the conditions of Aeby’s 2006 permit, no live organisms of any kind can be transported within or outside of the refuge and samples that are collected must be killed by freezing, immersion in ethanol or other acceptable means aboard the Hi`ialakai. For violationg these conditions, DAR recommended suspending Aeby from working within the refuge for one year.

According to Aeby, no one from the state had notified her about the alleged violations, and at her request, the board deferred the matter. Meanwhile, on July 13, DAR brought Aeby’s 2007 permit request to the board. The staff report stated that the DAR felt it was important to continue long-term coral disease monitoring in the refuge and that Aeby’s work was important for effective management of Papahanaumokuakea Marine National Monument (which includes the state’s refuge). However, because of the ongoing enforcement case, DAR staff asked that the board defer making a decision on the permit.

Finally, on July 27, the DAR brought both the nforcement case and the permit request to the board under two separate but linked items. DAR recommended fining Aeby $1,000 for transporting coral within the refuge. The bacteria culturing allegation was not brought before the board and is still under investigation. DAR recommended that if the board found that Aeby violated her 2006 permit, it should also deny her 2007 permit request. If the board chose not to find her in violation, DAR recommended tha thte board approve her permit.

“While the knowledge gained from Dr. Aeby’s research is a valuable component in the preservation of the refuge, staff believes that it is even more important to send a message to this researcher and all those interested in pursuing scientific, educational, or cultural interests in the NWHI that permit conditions must be strictly obeyed,” DAR’s report to the board states.

University of Hawai`i attorney David Lonborg, representing Aeby in this case, had several problems with DAR’s recommendations. First, there was the issue of timing. The July 27 meeting was the last Land Board meeting before the Hi`ialakai set sail and was Aeby’s last chance to get a permit this year. Lonborg complained tha the violation case could have been settled much earlier but somehow got lost after it was referred to the DLNR’s Division of Conservation and Resources Enforcement.

Second, Lonborg argued that pinning the approval of Aeby’s permit to the outcome of the enforcement case was a violation of due process. Before the meeting, Lonborg had requested a contested case hearing on the violation, although he later rescinded that request so that he could discuss the case before the board. Still, he argued, the board could not punish Aeby before the contested case, if one was granted, was resolved.

“Set the allegations aside and consider [the permit request] on the merits… Our researcher is facing losing a year of work,” he told the board.

Lonborg also disputed the alleged violation itself. He explained that during the research cruise, the Hi`ialakai was scheduled to be at French Frigate Shoals for four days in a row. While at FFS, Aeby had collected two small pieces of healthy coral and brought them aboard to work on and planned to reattach those pieces to the reef before the boat moved on. But on May 23, to take advantage of good weather, Kosaki decided to move overnight to Gardner Pinnacles. The decision was made after the dives for the day had been made and there was no opportunity to put the corals back, Lonborg said.

“For whatever reason, when the decision was made to move the ship,k it didn’t set off a little bell, ‘What should I do about it?'” Lonborg said, noting that the permit condition on transporting live organisms is one of 30.

Lonborg questioned whether Aeby could be accused of transporting the coral since she didn’t make the decision to move the ship.

“You’re being asked to make a strong statement on enforcement… We don’t believe this is that case. The message you’ll send is that you’re punitive and harsh, and looking for something to attack… We’re not the forces of evil here,” he said.

If anything, Aeby argued, she wants to protect Hawaii from coral diseases. She told the board that the disease she has found on Acropora coral at FFS has also damaged reefs in Australia and the Marshall Islands. She said that she wants to continue studying coral tumors she found at FFS that are sucking the energy from corals, and a white syndrome that has been known to kill 90 percent of infected colonies within one year.

Marti Townsend of KaHEA: The Hawaiian-Environmental Alliance took an opposing view. She asked for a moratorium on all research in the refuge, that the Land Board broaden its investigation to include DAR’s handling of Aeby’s case, and that the state auditor be asked to investigate the refuge permitting process, which has been problematic from the start and criticized by both environmentalists and researchers.

After an executive session, the Land Board, although sympathetic to Aeby’s plight, voted to fine her $1,000 for violating her 2006 permit.

“I find it unfortunate that such an acocmplished and well-meaning disease researcher is in this position,” Land Board member Sam Gon said.

After the board’s vote, Lonborg reinstated his request for a contested case hearing.

When it came time to decide on Aeby’s 2007 permit, the board was inclined to defer the matter. Because the Hi`ialakai was leaving soon, a deferral was, in effect, a denial, Lonborg told the board.

Coral reef researcher Frank Stanton added, “The time factor is important. Reefs don’t have time to defer, delay, or anything else… This is going to set back our acquisition of knowledge. When we do have an epidemic, we’ll know why — decisions by this board.”

Again, Townsend urged the board to make a strong statement on enforcement and deny the permit outright, although she added that she was upset with being put in a position to “make a decision we don’t want to make.” Stephanie Fried, an adviser to KaHEA, also asked that the board deny the permit.

Despite the pleas on both sides, the Land Board voted to defer deciding on the permit. Deputy attorney general Linda Chow had advised the board that its administrative rules preclude the board from approving permits to anyone who has violaed a pervious permit and stated that the board’s decision on the violation stands despite the contested case hearing request.

“I do welcome the contested case hearing,” Land Board member Tim Johns said. “In a more formal setting, some of these issues will be clarified.”

“I worked on this in 1987,” Land Board member Tim Johns said on August 10, afte rthe board approved a Conservation District Use Permit to the Kaua`i Watershed Alliance for a fence around teh core of Kaua`i’s Kanaele Bog.

“It’s been a long time coming,” agreed Allan Rietow, Kaua`i program field representative for The Nature Conservancy of Hawai`i, where Johns once worked as director of land protection.

The low-lying bog, the last of its kind in the state, is home to several rare and endangered plant species, but faces serious threats from feral ungulates and invasive weeds. Alliance partner TNCH, which submitted the CDUP application, plans to complete the fence around teh bog’s 66-acre core within five years. The land is owned by alliance member Mc Bryde Sugar Company Limited.

Rietow told the board that the bog, which is being “systematically destroyed” by feral pigs, contains the rare plantss Lobelia kauaiensis, Viola kauensis var. wahiawaensis and Chaemesyce sparsiflora, a species that occurs only in the bog. A report by the DLNR’s Division of Forestry and Wildlife adds that native birds, including apapane and the Kaua`i `elepaio, have been seen in teh bog and that historic surveys indicate that it was also habitat for `i`iwi, `anianiau, akeke`e, and the Kaua`i `amakihi.

In addition to the fence, Rietow said that TNCH plans to build a boardwalk through the bog, although funds still need to be raised and the alignment must still be determined.

The expansion of a wildlife refuge sounds like a good idea, but a group of native Hawaiians concerned about how the expansion fits in with the proposed development of Kahuku Beach on O`ahu’s North Shore have halted those plans for now. At the Land Board’s August 10 meeting, the Hawaiian activist group `Ilio`ulaokalani Coalition requested a contested case hearing over a recent proposal by James Campbell Company, LLC, to consolidate nine coastal parcels in the Conservation District and then divide them into two.

Although Mark Murakami, an attorney representing Campbell, says that no development or construction is planned for either of the proposed parcels at this time, members of `Ilio`ulaokalani, represented by the Native Hawaiian Legal Corporation, are concerned that the move is a key part of a multi-million dollar development proposal for the area, which is known to contain several ancient Hawaiian burials.

The Conservaiton Distric Use Application brought before the Land Board on August 10 dealt only with a proposed subdivision of land for the expansion of the James Campbell National Wildlife Refuge. In May 2006, Congress appropriated money to the U.S. Fish and Wildlife Service to enter into a contract with the James Campbell Estate to buy the 240 acres that the service currently leases from the estate for the refuge, as well as about 800 adjacent acres.

As part of that purchase, Campbell wants to subdivide 13.1 acres of Conservation District land into a 12.2-acre parcel and a 0.9-acre parce. The James Campbell Company would sell the larger lot to the FWS, and the other would be retained by Continental Pacific, LLC., and James C. Reynolds, Inc. Continental Pacific is a mainland-based developer that has been associated with luxury and agricultural developments on the island of Hawai`i. Last year, the company bought 240 acres in Kahuku from Campbell Estate and announced plans to build 18 luxury homes on one-acre lots along the beach.

According to an Office of Conservation and Coastal Lands report to the Land Board, “The purpose of the subdivision is t complete the boundary for the USFWS to acquire the Campbell parcel for expansion of the James Campbell National Wildlife Refuge. Acquisition shall permanently protect the endangered species habitat and improve the management of the refuge for future generations.” The OCCL recommended that the board approve Campbell’s request because it served a public purpose. NHLC attorney Camille Kalama requested a contested case on behalf of the `Ilio`ulaokalani Coalition.

“They are concerned about traditional and customary gathering practices, and there are iwi kupuna (bones of ancestors) all over that area. The application doesn’t take into account the planned development. It’s just concerned about the subdivision. They [the landowners] say they have no plans at the moment [to develop], but they have major plans,” Kalama says, adding that the state should be considering the broader impact of the proposed development.

Because a contested case had been requested, the Land Board deferred taking action on Campbell’s application.

— Teresa Dawson

Volume 18, Number 3 September