Board Talk

Lawsuit Drives DLNR to Propose
Changes in Definition of Shoreline

For years, members of the public as well as government officials have looked disapprovingly on owners of beachfront properties who plant vegetation beyond the shoreline to expand the buildable area of their lots. Not only does this practice shrink the beach, they say, it’s often the first step toward building seawalls, which speed erosion and shrink the beach even more.

One of the reasons property owners can get away with fixing their shorelines further seaward of the natural line is an apparent loophole in the Board of Land and Natural Resources’ rules. Under state law, a shoreline is defined as the high wash of the waves as evidenced by either the vegetation line or the upper limit of the debris line left by the waves. The BLNR’s rules, however, have extra language in the definition that allows shorelines to be designated “where there is no vegetation in the immediate vicinity.”

But a lawsuit filed last July by Earthjustice on behalf of Public Access Shoreline Hawai`i and the Hawai`i Chapter of the Sierra Club prompted the Department of Land and Natural Resources to propose changes to the shoreline definition to better reflect what the Legislature had intended.

“This undue emphasis on vegetation lines mandated by the BLNR’s rules defeats the purposes underlying shoreline laws and creates the backwards result of reducing shoreline protections where the waves push the debris line mauka of the vegetation line. It allows development to proceed too close to the ocean, at risk from the waves and the naturally shifting shoreline. Moreover, it encourages developers to seek to expand their property by artificially extending the vegetation line seaward,” wrote Earthjustice attorneys Kapua Sproat and Isaac Moriwake in their July complaint filed in First Circuit Court.

Settlement talks between Earthjustice and the DLNR led the DLNR’s Office of Conservation and Coastal Lands to recommend on November 18 that the Land Board approve a request to hold public hearings and seek a Small Business Impact Determination on proposed amendments, which include the deletion of that extra language and changing the phrase “tidal waves” to “seismic waves,” to the department’s shoreline definition.

An OCCL report to the board explains that the rules, as written, don’t “account for situations where the debris line extends more mauka [landward] than the vegetation line, where the presumption should be that the upper reaches of the wash of the waves lie along the debris line, rather than the vegetation that may be present in the vicinity.”

While in practice, OCCL notes, the DLNR administrator considers “all relevant evidence” when determining where any given shoreline lies, it agrees with Earthjustice that the rules should match the statute.

When the Land Board considered the proposal at its November 18 meeting, at-large member Tim Johns asked why the BLNR’s rules were different from the statute. Deputy attorney general Linda Chow explained that, originally, the statute contained much the same language as the board’s rules, but that the Legislature later amended it.

“Was the Legislature right and were we wrong?…Did the department support the amendment at the Legislature?” Johns asked.

Peter Young, who is also the DLNR’s director, said that the department had testified that it would “work through a process” of evaluating any needed rule changes. He added that for the last two years or so, the DLNR has been assisted by Sea Grant experts in determining where shorelines are.

The board then unanimously approved staff’s recommendation. OCCL administrator Sam Lemmo noted that public hearings on this issue will be held statewide.

Last August, when the Land Board was faced again with finding Tradewinds, LLC in default of its timber license for failing to meet its deadlines to secure startup capital, the board, through frustrated, was lenient. Instead of killing the four-year-old license, the board ordered its Division of Forestry and Wildlife to negotiate new terms with Tradewinds and its new financial backer Rockland Capital Energy Investments, specifically those terms dealing with pricing and penalties for non-compliance.

At that meeting, board members and members of the public complained that Tradewinds had been allowed to lock up thousands of acres of state land for years, for free, without any real progress toward either building a promised sawmill, or veneer/cogeneration plant, or harvesting timber from the Waiakea Timber Management Area in the Big Island district of South Hilo.

On September 23, DOFAW returned to the Land Board with new terms they had worked out with Tradewinds and Rockland. In addition to set of new deadlines to file permit applications, start plant construction, etc., the proposed new license would relieve Tradewinds from the requirement to build a sawmill and would require Tradewinds to pay $90,000 if it wished to extend its July 1, 2008, deadline to complete the veneer and power plant, and pay daily and/or monthly penalties ranging from $200 a day to $25,000 a month.

With regard to the amount Tradewinds will pay the state for harvested trees, DOFAW again conceded to Tradewinds’ requests. Instead of indexing stumpage prices set in 2001, DOFAW agreed to a request by Tradewinds to index stumpage prices with a base starting in 2005.

“The difference in using the 2005 base date versus the 2001 base date is equivalent to an approximate $220,000 concession to TW on the part of the state over the course of the pricing extension period,” a DOFAW report states.

Board member Tim Johns was not happy with DOFAW’s recommendation on pricing. “You went the other way…It looks like a worse deal” for the state, he told DOFAW administrator Paul Conry.

Conry, however, said the pricing concession was justified because under the new license, some seven million board feet will be removed from Tradewinds’ control and be offered in a new request for proposals to start a sawmill. Having someone else build the sawmill “was enough to balance the concession we made on stumpage pricing,” Conry told Johns.

While the penalties were a step in the right direction, said Maui board member Ted Yamamura, he added that he was skeptical about whether they would keep Tradewinds on track.

“Penalties are meaningless. If it gets to high, they will walk,” he said.

A motion by Big Island board member Gerald DeMello to approve DOFAW’s recommendations failed, with Johns, Yamamura, and O`ahu board member Taryn Schuman opposing it. A motion by Johns to accept the recommendations, with an amendment that the stumpage price indexing start in 2003 instead of 2005, was approved, with Yamamura the sole opponent.

At the same September 23 meeting, the DLNR’s Land Division asked the Land Board to approve a set-aside to the department’s Division of Boating and Ocean Recreation of about 70 acres at Honokohau Harbor, near Kailua-Kona on the Big Island. The Land Division also recommended approval of a development proposal and, eventually, a master lease to Jacoby Development, Inc., of about 300 acres for a master-planned, mixed use project, as well as a time extension to finalize the development agreement.

Over a year ago, the Land Board found there was a need for additional marina facilities at Honokohau and began looking for a developer to meet those needs. JDI was selected and since then, the company and department have worked on a development agreement.

Land Division administrator Russell Tsuji asked the board to approve the agreement, which includes a master lease “to be executed only after the terms and conditions of the development agreement are fulfilled.” That would include land use and harbor entitlements, and compliance with the state’s environmental review law.

Despite the fact that no lease was being granted that day, at-large board member Tim Johns worried that the Land Board would still be making a binding decision without the information that an environmental impact statement would provide.

John’s concern about lacking adequate information was echoed by Hawai`i County Council members Virginia Isbell and Angel Pilago and state Rep. Cindy Evans of West Hawai`i. All asked the board to defer approval of the project and allow time to hold public meetings.

Pilago noted the Kona community’s concern that the development will further tap the area’s inadequate infrastructure, including its roads, sewers, and water systems.

When Big Island Land Board member Gerald DeMello recommended deferring the item to give the community more time to understand the project’s potential impacts, Jacoby consultant Frank Brandt warned, “A deferral is not going to answer questions….Nothing will happen” if the board stops now. He added that it will take 12 months to complete all the studies needed to address all the impacts.

“When we come back in a year, we will have those answers,” Brandt said.

DeMello’s motion failed. Instead, the board approved a motion by Maui board member Ted Yamamura to approve the development agreement, but require the Land Division to present the environmental impact statement to the board before a lease is issued. The board also reserved the right to terminate the development agreement based on information in the EIS, and required the Land Division to submit progress reports on the Jacoby development every six months.

— Teresa Dawson

Volume 16, Number 6 December 2005