No Sanctuary: For fifteen years, the Friends of the Mariana Trench had lobbied for the area offshore of the Commonwealth of the Northern Mariana Islands to be designated a marine national sanctuary. In 2017, the National Oceanic and Atmospheric Administration’s Office of National Marine Sanctuaries placed it in nomination, opening a five-year review process that ended in April 2022.
Last month, NOAA announced that it was removing the nomination from consideration as a sanctuary. “NOAA has synthesized the information gathered through the public process, completed an internal analysis, and the ONMS director has made the determination that the Mariana Trench NMS nomination will be removed from the inventory.”
The removal follows the request of the Friends of the Mariana Trench that the nomination be withdrawn.
Over the years, opposition – including strong statements from the fishing community allied with the Western Pacific Fishery Management Council (Wespac) – grew. Finally, in August, the Friends bowed to what it described as community opposition.
Sheila Babauta, chair of the group, told Marianas Variety that the “Mariana Trench is a national treasure, a great natural wonder of the world that is worthy of pride and protection. But in the 15 years that have passed since the Friends first requested a national marine sanctuary, and the six years since NOAA accepted our nomination, circumstances in our community have changed and we see the need for more dialogue and education.”
Kahala Permit: Is the presetting of lounge chairs and tables on state land in front of the Kahala Hotel & Resort coming to an end?
This year’s Act 227 prohibits the presetting of commercial beach equipment on public beaches on Oʻahu and Maui.
On August 25, the state Board of Land and Natural Resources was set to renew a revocable permit to ResortTrust Hawaiʻi, LLC, for 1.28 acres of filled land fronting the hotel that allows for the presetting of up to 70 lounges and tables. The permit expires on December 31, but the Land Board chose not to take up renewing it because of ongoing litigation.
Attorney David Kimo Frankel is in the midst of appealing an October 2020 Environmental Court decision that upheld a previous renewal of the permit.
On August 1, the Intermediate Court of Appeals ordered the parties in the case to file briefs on whether Act 227 renders Frankel’s appeal moot and, if so, whether any exceptions to the mootness doctrine apply.
Frankel has argued for years that the parcel is a public beach. “In 1963, the State of Hawai‘i entered into an agreement with the Kāhala Hilton Hotel Company, Inc., Bishop Estate, and others, in which all the parties understood and agreed that the filled and reclaimed lands that now constitute Lot 41 ‘shall be used as a public beach,’” Frankel noted in his brief.
Frankel argued that Act 227 will apply to use of the property under future permits, but does not affect uses under the current permit. “By its terms, At 227 does not affect rights that matured,” he wrote.
He argued that his appeal should proceed because the issue raised were “‘capable of repetition, yet evading review’; the public interest exception applies; and the ‘collateral consequences’ exception applies as well.”
State deputy attorney general Daniel Morris argued that the appeal was not moot. He stated that the property does not fall within the high wash of the waves and is, therefore, not a public beach. “While the premises were once submerged land and may originally have been treated like a beach, the premises are now urban-zoned and have been covered with grass since at least 1986,” he wrote.
Regardless of what the court decides, written testimony to the Land Board from Honolulu resident Tyler Ralston suggests that there are other reasons why presetting should no longer be allowed.
Ralston provided the board with photographs that seemed to indicate that ResortTrust had violated the terms of its permit. He stated that the hotel had been presetting more than 80 lounges over the past year. He also testified that some of those chairs were placed on the beach outside the permit area, and that a hotel contractor was illegally renting kayaks and stand up paddle boards on the public beach.
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