Above photo: Conditions attached to the transfer of K.K. Ranch’s leased lands to the Board of Agriculture ensure that the Land Board establish access through the property for public purposes, including management by the Division of Forestry and Wildlife of the Pu‘u Mali restoration area (pictured here). CREDIT: DLNR.
Land Board Conditions Pasture Transfer on DLNR’s Retention of Access Rights
“I want to make sure we get part of something rather than 100 percent of nothing,” Riley Smith said of conflicts over proposed conditions attached to a proposal before the state Board of Land and Natural Resources. The board was being asked to approve the transfer of a 5,100-acre lease held by K.K. Ranch for pasture lands in the Hamakua District of Hawaiʻi island to the Department of Agriculture.
A decade ago, the state Legislature passed what became Act 90, which directed the Department of Land and Natural Resources to transfer certain agricultural lands to the DOA.
“DLNR has transferred approximately 19,000 acres to DOA over the years but retained large pasture leases adjacent to forest reserves, such as the subject lands, due to the important natural resource value these lands have. DLNR has reconsidered its position and is now recommending the transfer of certain pasture lease lands to DOA, including the [K.K Ranch lease] lands,” an August 25 report by the DLNR’s Land Division states.
At the board’s meeting that day, Smith, the Land Board member representing the island of Hawaiʻi, made a motion to approve the transfer with some amendments to the division’s proposed conditions. Smith made the amendments in response to concerns raised by K.K. Ranch owners Jeri and Jason Moniz.
The Monizes had asked that the Land Board amend two of the proposed conditions and delete another.
One of the proposed conditions would ensure that certain existing roads and trails would not be included in the transfer and that other accesses “that may be required by the BLNR for public purposes” could be added to that list.
In written testimony, the Monizes asked that the Board of Agriculture’s consent be required for all future access routes through their ranch lands.
“The language ‘public purpose’ is so broad that it could have significant negative impact on the ranch’s operations. That being the case we believe the BOA should have a say on new easements that the BLNR indicates it requires. Examples of the type of negative impacts caused by right-of-way established for public purposes include fires, rustling, malicious injury to livestock, spread of invasive species, damage to water systems and gates left open resulting in potentially irreversible production disruptions,” they wrote.
They also asked that a condition regarding the DLNR’s reservation of an access road from Mana Road to the western side of the DLNR Division of Forestry and Wildlife’s Puʻu Mali restoration area be amended to provide a different route. They noted that the road that the Land Division recommended keeping had gone largely unmaintained for 20 years.
“We have long had significant concerns about an easement directly through the property. … In our meeting with DOFAW administrator David Smith in early July, we proposed an alternate route at the boundary between our ranch and SC Ranch, which is the neighboring DLNR lease to the immediate east of us,” they wrote.
Finally, the Monizes asked the Land Board to delete a proposed condition that would reserve all hunting and fishing rights “in the event the BLNR should declare the whole or any portion of the demised premises as public shooting or fishing grounds” as set forth in the current lease.
“Public hunting on this lease is not manageable given the significant disturbance and harm it will cause to our cattle herds and the damage to the infrastructure the cattle will cause if distressed by hunting on the property. From a geographic standpoint this lease is long and narrow, following the original Kalopa Ahupua’a. The shape and size of the property does not allow for our cattle to escape the pressures that would result from public hunting,” they wrote.
At the board’s meeting, DOFAW’s Emma Yuen argued against the Monizes’ proposed alternate route to the restoration area. “It’s easy to say, ‘Make the access on someone else’s land.’ That’s where the issue lies.” She added that DOFAW’s concern is that it will be unable to access lease areas to get to lands it needs to manage, such as the palila critical habitat at the mauka end of what used to be part of K.K. Ranch.
“That being said, we haven’t used that current access … yet. It might be a degraded road. They know a lot more. … We want to be very solid we [ensure] DOFAW will be able to access these areas. If we are ever looking at the SC Ranch, likely we would point to that access, but we’re not dealing with that now,” she said.
She also had a problem with the ranch’s proposed amendment to require BOA approval of all future access routes. There would always be the threat that the board would not approve the requested access, she said, adding that requiring BOA approval “puts us in a worse bargaining stance.”
“DLNR wants the overall right to access these lands,” she said.
In the end, the Land Board approved conditions that preserved the DLNR’s right to access those lands without needing BOA approval, although it deleted the condition that would have retained the unused access to Puʻu Mali.
The board also chose to keep its condition regarding access for hunting and fishing but amended it to ensure that any access for those activities approved by the board would “not unreasonably interfere with the pasture purposes of the property.”
After the vote, Land Board chair and DLNR director Dawn Chang said that with regard to the DLNR’s future access through the ranch, “We are having great faith and hope that the people on the ground are going to be the ones to work that out. We’re trying to provide overarching intent. … Once it goes over to DOA , they have a different mission from us. I am optimistic that people on the ground will find the right management tools.”
Kapapala Ranch Transfer, And A Call for Chang’s Removal
After the Land Board approved the transfer of K.K. Ranch lands to the state Department of Agriculture, it also approved the transfer of 24,767 acres of pasture lands that are under lease or revocable permit to Kapapala Ranch in Kaʻu.
Before the unanimous vote, however, comments board chair Dawn Chang made while discussing the K.K. Ranch transfer roused native Hawaiian activist and kumu hula Vicki Holt Takamine out of her pajamas at home and into the Land Board’s meeting room in downtown Honolulu so she could testify.
While discussing K.K. Ranch’s request to delete the Land Division’s proposed condition preserving the DLNR’s option to develop fishing and hunting access on the property, board member Aimee Barnes asked the deputy attorney general whether the board had the power to remove the hunting and fishing provision “given constitutional requirements we have to protect traditional and customary native practices.”
The deputy attorney general replied that any state agency with lands is required to follow Article 12, Section 7 of the state Constitution, which requires the protection of traditional and customary practices.
Chang, a former deputy attorney general, added that independent of any lease provision, the obligation to protect traditional and customary practices would still apply. She continued, “The burden is on a cultural practitioner who wants to exercise [those rights] to demonstrate that they do have a lineal, cultural connection to the place, that they have traditionally hunted or fished here. I think it being absent on the lease, should not interfere with their abilities to assert that right.”
The Kapapala Ranch transfer includes a condition preserving the DLNR’s management of public hunting of gamebirds and mammals.
In her testimony before the board, Holt Takamine said she supported the transfer of Kapapala Ranch’s lands to the DOA but expressed her concern over Chang’s earlier comments on traditional and customary practices.
In the late 1990s, Holt Takamine and other kumu hula successfully fought against bills at the state Legislature that would have required native Hawaiians to register to exercise traditional practices on undeveloped land.
“I had to get up and get dressed and come down. Thank you, Aimee, for asking about traditional and customary practices. I was really shocked that you [Chang] said that traditional and customary practitioners had to prove lineage to the ʻāina and that is not true. … You’re telling me people from Maui cannot move to Hawaiʻi island and engage in customary practices because they don’t have lineal descendance from those lands. That is not something I can support. … I’m also really disappointed that that came out from you and as a public statement because others are going to use that,” she said.
Chang replied, “I do see, based upon the case law and the ahupuaʻa tenants, that you do have to have a connection to the place. Now, you could be from Maui and you can move off, but if your family has a connection, I do believe you have a right to exercise traditional and customary practices. … I think I see Article 12, Section 7 as a little different,” she said.
“Then I’m going to ask for your removal from this chair,” Holt Takamine said, before accusing Chang of not advocating for the rights of native Hawaiians.
“I am advocating for the rights of native Hawaiians. … I respect you. You have been an advocate all your life,” Chang, who is also native Hawaiian, replied. She added that she meant no disrespect. However, “I think we have a different interpretation of the law,” she said.
— Teresa Dawson
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