Board Talk

Koke`e, Waimea Park Leases to be Auctioned
With No Special Treatment for Incumbents

To care for and enjoy their recreational cabins at Koke`e and Waimea Canyon state parks, some leaseholders there have braved the treacherous mountain road, the mud, and the cold for generations. Others have been around for only a few years. But if the testimony given to the Board of Land and Natural Resources at its February 10 meeting is any indication, the rustic, peaceful, and tight-knit community of Koke`e could be ripped apart by next year.

The leases for the 100 or so recreational cabins within the parks expire at the end of this year. Last year, staff at the Department of Land and Natural Resources’ Division of State Parks had proposed that new leases be offered at a public auction, in the way that the state disposes of most public lands. This proposal, however, faced vehement opposition from leaseholders who were afraid they might lose their cabins and angry that under the current leases, ownership of the cabins reverts to the state upon expiration. When the Land Board met on Kaua`i September 9, some lessees threatened to remove or tear down their cabins rather than have a newcomer move in. Some lessees who lost their cabins during the last auction in 1985 did much the same and those lots have been vacant ever since.

At that September meeting, after hearing several hours of public testimony against the proposed auction, Ron Agor, the member of the Board of Land and Natural Resources who represents Kaua`i, crafted what some called a brilliant solution. His motion, which was unanimously approved by the rest of the Land Board, was to allow non-profit organizations and leaseholders with historically significant cabins to enter into direct negotiations with the state for new leases. The rest of the state’s lots would be put up for auction. To avoid the destruction or removal of cabins by any leaseholders whose term was expiring, the Land Board also voted to allow existing lessees the opportunity to match the highest bid to retain his or her cabin, and would require any new lessee to pay the former lessee the assessed value of any improvements on the lot.

Unfortunately for those leaseholders, the proposed solution didn’t pass muster when it was reviewed by the Department of the Attorney General. In his report to the board at its February meeting, State Parks administrator Dan Quinn said that the AG’s office determined that the Land Board’s September decision does not comply with state law. In short, the Land Board cannot pass its assets – the cabins, in this case – back to the lessee, which is what the board’s September action would have done, deputy attorney general Bill Wynhoff said. He added that because the parks are in the Conservation District, anyone wishing to remove his or her cabin before the lease expires would need to get a Conservation District Use Permit from the Land Board.

Because of the lessees’ strong opposition to an auction, Quinn proposed in February that the Land Board hold two drawings instead, one for Kaua`i residents and one for other Hawai`i residents.

This idea held even less appeal to the leaseholders, since under this proposal they would lose the opportunity to bid on their old cabins. Several sent letters to the DLNR that they plan to remove their cabins before their leases expire.

“The latest iteration of a plan for the disposition of the recreation residence leases within the Waimea Canyon and Koke`e State Parks makes even less sense than any of those previously submitted,” wrote leaseholder Frank O. Hay in testimony to the Land Board.

At the Land Board’s meeting, which was held on O`ahu, several Koke`e lessees said they would rather have an auction or go through direct negotiation than have a drawing.

After two executive sessions to discuss its options, the Land Board voted to dispose of new leases via an auction, this time with no special treatment of current leaseholders.

The non-profit Trust for Public Land is interested in acquiring 3,716 acres in O`ahu’s Moanalua Valley and conveying them to the state for watershed protection, natural resource management and education, and recreational uses. But before it can move on the deal, it needs a fair-market appraisal for the property.

Because TPL has set an April 15 deadline to receive a completed appraisal from the state, the Land Board voted on February 10 to approve in principle the acquisition of the land now owned by Moanalua Valley Properties, Inc., which would be set aside to the DLNR’s Division of Forestry and Wildlife for addition to the Honolulu Watershed Forest Reserve. The board’s approval allows DLNR staff to initiate the appraisal process and perform due diligence and negotiations by mid-April.

The valley is home to 14 federally listed or candidate endangered plant species, three listed birds, an endangered bat and three listed or candidate invertebrate species.
“Moreover, one of the last observations of the O`ahu Creeper occurred in Moanalua Valley, making this one of the best areas in which to search for any remnants of this possibly extinct species,” a February Land Division report to the Land Board states.

Last year, the state and federal government, as well as TPL, either committed or offered a total of about $5.5 million for the acquisition. The state Legislature had appropriated $3 million, the U.S. Fish and Wildlife Service announced that a $1,634,364 Recovery Land Acquisition grant was available for the acquisition, and TPL, according to a DLNR report, has committed to contributing up to $900,000 from its U.S. Army Compatible Use Buffer Fund toward the purchase.

Honuapo Bay
Last December, the Land Board approved the acquisition of about 225.5 acres at Honuapo Bay from the Trust for Public Land and its set-aside to the County of Hawai`i for estuarine land conservation and public recreation purposes. TPL had purchased the land from California’s Honuapo Bay Ranch Estates and has agreed to sell the property to the state for $3.2 million. To purchase the property, the state has lined up a $1.5 million grant from the National Oceanic and Atmospheric Administration, $1 million from DLNR Capital Improvement Projects funds, $500,000 from Hawai`i County, and $267,632 from a Land and Water Conservation Fund grant.

Despite objections raised by Haseko attorney Linnel Nishioka, the Land Board voted on February 10 to waive its requirement that a request for a contested case on an issue must be made before the close of the public hearing where that issue was raised.

On January 11, Kamehameha Schools teacher Michael K. Lee attended a public hearing on Haseko, Inc.’s Conservation District Use Application to construct a drainage improvement project at Papipi Road in `Ewa Beach. The project is the outcome of a court-ordered mediation between Haseko, developer of the 1,100-acre master-planned marina development known as Ocean Pointe, and the `Ewa Beach community. Although Lee heard hearing officer Sam Lemmo announce that day that anyone wishing to contest the application needed to make an oral request before the end of the hearing, Lee did not make one. He did, however, file a written petition within 10 days of the hearing’s close.

In his petition, Lee states that the drainage channel will extend into a part of the ocean that is a popular limu-gathering area.

“My `ohana and I have traditionally gathered limu and other natural resources, and continue to do so, from the area of the proposed Papipi Road Drainage Outlet, as well as practice traditional and customary practices involving native Hawaiian religion and cultural ceremony,” Lee’s January 20 petition states. It also requests that the Land Board defer approving Haseko’s CDUA until all reasonable alternatives have been considered.
At the Land Board’s February meeting, Lee explained that he simply didn’t understand that someone could contest an application that hadn’t yet been voted on by the Land Board. Nishioka, on the other hand, argued in a letter to the board that Lemmo’s instructions had been clear and there was no reason why Lee didn’t make a timely request.

“Any community member interested in participating in the mediation sessions was welcome,” her letter states. “After the community and Haseko agreed on the drainage improvements project, it was presented at the `Ewa Neighborhood Board. An environmental assessment was prepared… In short, there have been numerous opportunities for the petitioner…to have input on the project.”

Lee and a few other `Ewa Beach residents argued that Haseko had avoided consulting with him and other limu gatherers. Lee, who is a member of the `Ewa Beach Limu Project, told the Land Board, “They knew we were around but they took [other] area residents on a beach walk and found there was no impact. They didn’t seek us out because they know our stance.”

For more than a decade, the state Division of Aquatic Resources has been trying to craft rules to adequately control the use of lay gillnets here, especially the practice of leaving nets in the ocean overnight. The nets, which are often pieced together to make huge curtains that are left to hang in the water for long hours, have been banned in all mainland coastal states because of their negative impacts on coral reef habitat and nearshore fisheries.

“Unlike pole and line fishing or throw nets, lay nets indiscriminately trap or entangle nearly everything that swims in their path, including fish, turtles, and other non-target species. Lay nets can quickly reduce the numbers of fish available for other fishermen to catch in an area, which is one reason 85 percent of recreational and commercial fishermen in Hawai`i supported a ban on lay gillnets in 2003 (based on a survey by Hawai`i Fishing News),” The Nature Conservancy of Hawai`i wrote in recent testimony to the Land Board.

At the January 27 Land Board meeting, the DLNR’s Division of Aquatic Resources proposed a set of rule amendments regarding lay gillnets and requested that it be allowed to hold public hearings on them. TNCH’s Kim Hum, representatives of several other environmental groups, and individuals testified in favor of the proposed rules, which call for a ban on gillnet use around the island of Maui and parts of O`ahu between Portlock and Pearl Harbor channel and from Mokapu Peninsula to the northern boundary of Bellows Air Force Base, and in Kane`ohe between the two ship channels, including Ahu o Laka; registration and identification of all nets; limits on maximum dimensions; requirements regarding attendance and inspections; a reduction in mesh size; limiting the hours a net can soak to four hours in a 24-hour period; allowing only one net per person per day; and a ban on placement of nets in areas such as stream mouths and streams.

The proposed rules were the direct result of two rounds of statewide public meetings in 2002 and 2003, and Alisa Miller, coordinator of Malama Maunalua (a community-based coalition of representatives from the Polynesian Voyaging Society, Hui Nalu Canoe Club, Malama Hawai`i, The Nature Conservancy of Hawai`i, and Navigating Change), welcomed the idea of further public hearings. “We want the resources to be healthy again and want the community to have a voice in deciding how to do that. We look forward to the public debate…,” she told the Land Board.

Despite the reasons given to support the new rules, some fishermen and individuals argued that the practice, commonly known as moemoe net, is a traditional Hawaiian one and should be protected. TNCH’s Hum argued that it is not a traditional practice because the monofilament nets currently being used were introduced to Hawai`i in the 1950s by Asians. Even so, the Office of Hawaiian Affairs and Jim Anthony of the non-profit Hawai`i La`ieikawai Association testified that any rules affecting lay gillnets would need to address Native Hawaiian uses.

“Many Hawaiians were livid that they were not part of the rule-drafting process, and that their main, subsistence protein source may be either eliminated or limited. Moloka`i had a petition signed by more than 1,700 people against any proposed rule changes to gillnets. Most of OHA’s beneficiaries agree that fish resources are being depleted and are supportive of more stringent regulation, but would prefer to be part of that regulatory process rather than to simply have another set of agency proposals tossed out at them,” OHA administrator Clyde Namu`o wrote in a letter to Land Board chair Peter Young. Namu`o added that suggestions made at previous public meetings to create a baseline study, require regular catch reports, and allow for community-based monitoring were not included in the proposed rule amendments.

Tony Costa, a spokesman for the Hawai`i Nearshore Fishermen, “a loosely organized, but tight-knit group of fishermen,” also opposed the proposed rules.

“Back in `97-`98, I participated in the gillnet task force that your department organized with some various environmental groups to address some gillnetting issues, some newly arrived gillnetting practices that were inappropriate,” he said. “We came up with about 12 or 13 points…that we thought would address this problem and that was the last we heard of it. The department didn’t move forward on any of this…. Since that time, the issue of the wrong gillnetting practices has been resolved Hawaiian-style.”

He opposed the proposed bans around Maui and O`ahu, as well as the restriction that would limit a fisherman to one piece of net, 125 feet long.
“Anybody who knows anybody who sets moemoe net, no one uses one piece of net. After it travels along the bottom of the shore, it would end up as such a small piece that it wouldn’t do anything anyway. If you take aside the 100 percent gillnet ban and you just adhere to the rule that you have drawn up, I would say that would probably eliminate gillnetting anyway,” he said.

HLA’s Anthony noted that the DAR had not provided any data showing a causal relationship between gillnetting and a decline in fish populations.

In the end, the Land Board voted to move forward with public hearings on the proposed rule amendments. Land Board member Tim Johns also instructed DAR to follow up on Anthony’s comments regarding the lack of data, investigate the social and cultural impacts of these rules, and make a special effort to reach out to native Hawaiian communities and consider community-based monitoring.

— Teresa Dawson

Volume 16, Number 9 March 2006