Above photo: Heavy earth-moving equipment is parked next to a posted notice that this is an albatross nesting area. CREDIT: DLNR.
On April 26, the state Board of Land and Natural Resources heard presentations from the heads of the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands and the Oʻahu branch of the Division of Forestry and Wildlife on alleged violations of state laws aimed at protecting the Conservation District and native species.
As a result of recent investigations that began after reports of massive clearing along the coastline at Marconi Point on Oʻahu’s North Shore last October, DOFAW proposed $1,502,500 in fines for the killing of 300 endangered bees and $15,000 for the killing of a Laysan albatross named Hoʻokipa. The division recommended that Marconi Point landowner Sushil Garg; his employee, Benjamin Lessary; and another Marconi Point landowner, Yue-Sai Kan, be held liable for the bee-related fines. Kan alone was determined to be liable for the albatross-related fine. It’s alleged that a nesting albatross got entangled in her iron fence while protecting her egg from Kan’s landscapers, and then was killed when one of them threw a rock at her.
The OCCL proposed a total of $1,640,000 in fines against Garg and Lessary: $1,590,000 for the removal of 106 heliotrope trees, $15,000 for clearing more than one acre of land, $15,000 for spreading mulch over that land, and $20,000 for removing 40 heliotrope trees on unencumbered state land.
The office also proposed a $15,000 fine against the landowners of the entire Marconi Point Condominiums area for the unauthorized construction of a boundary fence, and a $30,000 fine against Kan, also for unauthorized fence construction.
In total, the two divisions proposed fines of nearly $3.2 million.
For the larger of the two DOFAW fines, the division proposed delegating to the Land Board chair the authority to enter into a settlement agreement that would include, at a minimum, the conveyance of a conservation easement covering the cleared bee habitat area (about two acres) to a qualified non-profit organization, permanent DOFAW-approved signage about the rare species that live in the area, and the landowner(s) funding habitat restoration by a third party or reimbursing the DLNR and its agency partners for doing the restoration work.
And for the OCCL violations, staff recommended that the board authorize a new shoreline certification for the coastline to determine where the high wash of the waves is now that the dune system has been removed.
Using a drone to survey the coastline, the OCCL was able to confirm that the waves without the vegetation are reaching further inland, office administrator Michael Cain told the board.
DOFAW’s Marigold Zoll stressed that the proposed fine for the death of 300 bees was very conservative. While individuals of two species of endangered yellow-faced bees were likely killed by the land clearing, the fines covered only one of them (Hylaeus anthracinus), because so little was known about the population size of the other (Hylaeus longiceps). What’s more, the impact to the H. anthracinus population was based on a limited number of survey plots established in a small stretch where bee locations had been documented in 2020.
“We only took counts of animals that would have been impacted between those survey plots. We didn’t count the other area that had already been impacted. If we counted that area, the number would be 1,100 animals, so we feel like we’ve been very conservative,” Zoll told the board. (At $5,000 per bee, which is what the proposed fine is based on, the fine for killing 1,100 bees would be around $5.5M.)
Both she and Sheldon Plentovich, a biologist with the U.S. Fish and Wildlife Service, stressed how important the cleared area had been to the bees and the albatross.
Plentovich said that on Oʻahu, albatross currently nest at Kaʻena Point and there is one nest at the James Campbell National Wildlife Refuge adjacent to the Marconi lands. At Kahuku Point, in a conservation easement area fronting the Turtle Bay Resort and at the Marconi parcel, the nesting population is “small and growing,” she said, with 18 nests found this year.
Most of the albatross nest on atolls in Northwest Hawaiian Islands, which are vulnerable to sea level rise. And that makes it really important to protect the birds and their spaces on high islands, she said.
With regard to the bees, Plentovich said there are only three solid populations of Hylaeus anthracinus on the island, and the bees killed by the clearing were part of one of them. “So it is significant,” she said.
Zoll added, “This [clearing] fragments habitat and makes them more susceptible to extinction.”
With regard to Hylaeus longiceps, Plentovich said they have been found in only two places. “We just know very little. … We do suspect it was there,” she said.
Scuttled
When it came time for the public to testify, attorney Eric Robinson, counsel for Kan, requested a contested case hearing. He noted that a report by the DLNR’s enforcement division on the albatross incident had been withheld from the public because of an ongoing investigation. “It’s not out yet. It’s going to have a lot of important facts. … We’re trying to figure out heavy issues about who should bear liability at Marconi Point,” he said.
He said his request was for all of the violations Kan was alleged to have committed.
“Do you have any objections to us taking comments?” Land Board chair Dawn Chang asked.
“I know we are not supposed to get into the merits,” Robinson replied, adding, “Ms. Kan is saddened by Hoʻokipa’s death. She’s committed to removing the iron fence.”
After a break so the deputy attorney general advising the board, Danica Swenson, could make a phone call, presumably to confer with her office, she informed the board, “The only way we can proceed with public testimony is if the petitioners explicitly consent to public testimony.”
Attorney David Abitbol, representing the Marconi Point Condominiums developer Makai Ranch, LLC, and attorney Kalani Morse, representing Garg, his companies that own some of the Marconi lands, and Lessary, requested a contested case hearing, as well. Attorney Peter Lenhart also requested one with regard to the boundary fence on behalf of CPR unit owners Wayne and Tara Hu, who objected to the passing of liabilities from Makai Ranch to the recently formed association of unit owners.
Based on Robinson’s later statement that he was not authorized to consent to public testimony, chair Chang shut it down and there was no further discussion on any of the Marconi agenda items.
Intent
While public testimony at the Land Board’s meeting was forestalled, the board had received a ton of written testimony on the Marconi Point agenda items, mostly in support of the staff recommendations.
One testimony in particular by a man named Henry Fong stood out. Fong identified himself as a former employee of Sushil Garg and his wife, Lorene King Garg up, until April 17.
He said he tended plants for them in the nursery on site and did some of the landscaping. He argued in his testimony against targeting the employees who did the actual land clearing, since the were only doing what they were told.
He said that on three separate visits to the property, he, the Gargs, and Lessary walked the beach, “discussion of clearing all the naupaka and vegetation from the beach fronting their lots so they could get the view of the ocean came up and being that I had conservation internship at Waimea Valley with KUPU I had some awareness and expressed to Sushil and Lorene that it is illegal to touch or do anything in the Conservation District and the birds are protected and the habitat they live in. … I told them and everyone else if you was to go to court bird [vs.] human the bird will win. Ben also agreed. Lorene’s response [was] it’s her property and … basically implied she can do what ever she please. Sushil’s response [was] it’s ok just do it and he will deal with it later.”
Fong’s testimony contradicts what Sushil Garg told the OCCL’s Tiger Mills in a November 14, 2023 email. He said the Marconi lots he purchased had a lot of dead, dry vegetation “which posed a fire hazard given the dry season and high winds often prevalent at Marconi Point. As such, we asked a contractor to clean up all the dead brush in the area. We realize now that they also cleaned up the conservation areas. … We truly regret any miscommunication and the resulting removals in the conservation areas …”
Morse, Garg’s and Lessary’s attorney, did not respond by press time to requests for comment on Fong’s testimony.
The DLNR stated that if the parties who orally requested a contested case hearing submit their required written petitions, “then OCCL and DOFAW will return to the board with a request to hold a contested case hearing. The written testimony that has been received will be part of the case file that will be presented as evidence to the tribunal. The State will have the opportunity to call witnesses from the public during the hearing.
“DOCARE [the DLNRʻs Division of Conservation and Resources Enforcement] will discuss Mr. Fong’s statements with the AGs office to determine next steps.”
—Teresa Dawson
(This article has been changed to correct a quote from Marigold Zoll. We had incorrectly written, “We only took counts of animals in those survey plots.” We also corrected our description of how the bee death estimate was done. Survey plots were based on locations where bees had been documented in 2020, not, as we had written, in an area that had been spared from the clearing. We also corrected a couple of misspellings of Henry Fong’s last name. We sincerely regret the errors.)
Land Board Denies Public Right To Testify on Marconi Point Issues
At the Land Board meeting on April 26, a score or more of members of the public waited hours outside a standing-room-only boardroom to have a chance to testify on the proposed sanctions of parties accused of destroying critical habitat for endangered species and clearing land.
Their right to testify would seem to be assured in Hawaiʻi law. Chapter 92 of Hawaiʻi Revised Statutes says that “boards shall afford all interested persons an opportunity to submit data, views, or arguments, in writing, on any agenda item. The boards shall also afford all interested persons an opportunity to present oral testimony on any agenda item.”
The Marconi Point sanctions were included on the board’s agenda. Both DOFAW and the OCCL had prepared lengthy reports on the extensive clearing that had occurred on the property last fall.
The board’s agenda was crowded that day. When it finally came time to hear the DOFAW and OCCL presentations, the staff from those agencies were limited to summarizing their extensive reports, two of which ran to more than 100 pages, and a third that came to 32 pages. The submittals were the product of months of investigation and research.
Yet board chair Dawn Chang sought to hurry along the presentations of Michael Cain, of the OCCL, and Marigold Zoll, of DOFAW. After six minutes of explaining the OCCL charges, Chang told Cain he was “past his time.” Zoll was given a similar limit to present her report on the damage to endangered species.
More than 100 pages of written testimony were submitted, uniformly in support of strong sanctions.
But when it came time for public testimony, there was none. After the staff presentations, Eric Robinson, attorney representing Yue-Sai Kan, said that he would be requesting a contested case.
After deputy AG Danica Swenson informed the board that public testimony could only proceed with the petitioners’ explicit consent — and Robinson said he could not give it — Chang then said she was going to “close this item, … pending compliance with the rules with respect to contested case hearings.”
Chang apologized to the room full of disappointed members of the public who had been waiting hours to testify. “I’m sorry, community members, who have waited so long. No public testimony, because they object. Once there’s a request for a contested case hearing we have to close all comments unless they give us approval. I’m sorry, I’m sorry. I appreciate all of your patience.”
The board’s practice of cutting off testimony once the prospect of a contested case is raised seems to be in direct conflict with Chapter 92.
Lance Collins, an attorney who has researched the issue, noted that when a contested case is requested during an open meeting, “the requester is required to take further action according to the BLNR’s rules to perfect their request, by reducing it to writing within a specific time period in order for the request to be validly considered. If they do not do that, then there will be no further consideration of the request.
“So, until that request is perfected, the BLNR cannot be said to be acting in its quasi-judicial capacity,” with the associated exemptions from Sunshine Law compliance.
“In my view, terminating public testimony before each person who has signed up to testify has done so violates the Sunshine Law.”
The state Office of Information Practices as well as the Attorney General have issued opinions agreeing with Collins.
“Under the Sunshine Law [Chapter 92], boards are required to ‘afford all interested persons an opportunity to present oral testimony on any agenda item,’” the OIP wrote in Opinion 18-06. In Opinion 01-06, the OIP quoted the Attorney General’s Opinion No. 86-5: “an opportunity to present oral or written testimony must be afforded on any agenda item at every meeting of all boards.”
The DLNR was asked to comment on its practice. The agency stated that it needed to consult with its deputy attorney general, who would not be available until May 1.
— Patricia Tummons
Cathy Goeggel
I watched the BLNR mtg on YouTube. I was appalled at the cavalier treatment of the public by the Chair. People had waited for so long and then were told their concerns would not be heard. I am not impressed by Chair Chang. She lacks the gravitas that should be a cornerstone of the position she holds.