A ‘Voluntary’ CRB Order: That’s what Hawaiʻi County Mayor Kimo Alameda has issued in an effort to stop the spread of the coconut rhinoceros beetle. The order, issued June 27, amounts to a request that residents and companies within an area in the western part of the county refrain from moving materials that can host the beetle and its larvae, including decomposing plant material, plant propagation material, and most palm plants.
The “voluntary order” is to last from July 1 through September 30. The area affected includes locations where CRB detections have occurred in the last six months. The boundary runs along Waikoloa Road to the north, Mamalahoa Highway and Palani Road in the east and south, all the way to the coast. Then up the coast to Waikoloa Road.
The press release issued by the county states that the “voluntary compliance order is a precursor to a mandatory compliance structure that is being prepared by” the Hawaiʻi Department of Agriculture.
Certiorari Rejected: On June 19, the Hawaiʻi Supreme Court rejected an application by the Board of Land and Natural Resources and the Department of Natural Resources for a writ of certiorari in a case involving formerly submerged, ceded land fronting the Kahala Hotel & Resort. The resort’s owner, ResortTrust Hawaiʻi LLC, has for years rented the parcel via a revocable permit from the Land Board.
A 1963 agreement signed by the state and the resort’s developer stated that the land “shall be used as a public beach.” However, it was eventually grassed over and the resort used it for commercial purposes for many years, despite the permit being for recreational and maintenance purposes.
In November 2018, Honolulu attorney David Kimo Frankel opposed the Land Board’s renewal of the permit. He argued that the Land Board had failed to meet its public trust duties when it granted the permit that kept the door open to commercial use and allowed for extensive presetting of equipment.
In January, the Intermediate Court of Appeals ruled that that because the parcel was ceded land, public trust principles applied. It vacated orders issued in August 2019 by the 1st Circuit Court denying a motion by Frankel for partial summary judgment and granting the Land Board’s and ResortTrust’s motions for summary judgment. The ICA also remanded the case for further proceedings consistent with its opinion.
“[T]he board and ResortTrust, did not show that the board (1) began with the presumption in favor of public use, (2) considered alternatives, or (3) provided a clear analysis when it issued a permit that compromised a public trust resource,” the ICA wrote.
In her May 2 application, state deputy attorney general Miranda Steed argued that the ICA’s ruling threatened to undermine the state’s ability to manage its lands.
“More than just a ruling enforcing a perceived entitlement of analysis of public use, access, and enjoyment inherent in all public and ceded lands, the opinion creates an unworkable management framework for the hundreds of leases and permits DLNR administers, as well as other state-owned lands either set aside for public use, excepted from the statutory definition of ‘public lands,’ or under title with other public entities and governmental agencies. Of the approximately 1.8 million acres of ceded lands in the state, the ruling has potentially far-reaching effects for decisions on how to use certain lands, such as state airports, harbors, the University of Hawaiʻi, and historic buildings, such as the State Judiciary and the grounds of ʻIolani Palace,” she wrote.
Frankel, however, argued in his opposition to the application that the ICA’s decision did not render management of DLNR lands unworkable.
“BLNR is frightened by the term ‘presumption.’ It need not be. Presumptions can be rebutted,” he said, adding that the need to consider alternatives is not a burden and is already required.
“It is hard to believe that BLNR is arguing against clarity; that obfuscation is the hill it wishes to die on,” he wrote.
Excluding the public from a public beach to raise revenue is never acceptable, he stated. “These substantive limitations, however, are inapplicable to other ceded land that serve additional trust purposes. BLNR’s fears are misplaced. The state will continue to be able to lease, develop, and make productive its ceded lands,” he wrote.
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