Meetings of the state Board of Agriculture and Biosecurity usually fly under the radar. Typical agendas include approval of low-interest loans of last resort for farmers, leases of land in state agricultural parks, and votes on recommendations by the department’s Advisory Committee on Plants and Animals, which mostly reviews requests to import plants, animals, and other organisms, among other things.
The August 26 meeting was different.
On the board’s agenda that day was a petition from Kunani and Ipo Nihipali to approve an interim rule to block the shipment to Molokaʻi of almost everything that could conceivably harbor the coconut rhinoceros beetle (CRB) and its larvae.
The board had already approved an interim rule last October that blocked most shipments of CRB host material from Oʻahu, with certain exceptions. It did not block shipments from Kauaʻi, however, even though the CRB has become widespread and there is little expectation it can be eradicated from the island. Lanaʻi, Maui, and the Big Island have seen limited infestations and there is still hope that they can avoid following Oʻahu and Kauaʻi to the point where the CRB is well established.
Molokaʻi is the only populated island to have escaped any sign of CRB. Increasingly, residents have grown concerned that their treasured and historic Kapuāiwa grove, as well as the thousands of other coconuts grown for food, fiber, and other cultural purposes, would be devastated by the beetle. And not just coconuts: other plants, including Hawaiʻi’s endemic and endangered Pritchardia palms, are likely to be vulnerable as well.
The Nihipalis’ petition, submitted July 29, enjoyed widespread support. More than 130 letters were submitted to the board, including testimony from state employees, legislators, and county officials. All urged approval and stressed the urgency of measures to keep the CRB from entering the island. In written testimony and also in the statements made by members of the public at the August 26 board meeting, no one disputed the need for action. All overwhelmingly endorsed the Nihipalis’ proposal.
“We are residents of Hoʻolehua, Molokaʻi,” they stated in their petition, explaining their interest in the matter. “We farm sustenance and sustainable foods, including coconut on Molokaʻi. … In addition to producing agricultural products, we work to restore the culture of ike niu on Molokaʻi. If CRB were to be detected on Molokaʻi, crown and injection pesticide treatments would cause substantial losses to the uluniu [coconut grove] and severely impact our efforts to restore traditional practices and uses of coconut trees. If CRB were to become established on Molokaʻi, we would lose the production of the uluniu and, as we are now seeing on Oʻahu, the trees themselves.
“In addition to our direct interests in protecting the uluniu we created on Molokaʻi, we have helped organize, and participated in, many community events, are active community members and strong supporters of Native Hawaiian rights and culture, and work to establish food and water security for Molokaʻi and reestablish a loving relationship with niu, the tree of life.”
The Nihipalis’ presentation to the board was heartfelt and even tearful. Should CRB arrive on the island, Ipo Nihipali stated, “We will be devastated, generationally. So please …” Board members seemed moved.
Other testifiers also stressed the urgency of action. Wayne Tanaka of the Sierra Club of Hawaiʻi, took issue with the Plant Quarantine Branch staff’s suggestion that the kinds of actions proposed in the Nihipalis’ petition be subject to a statewide interim rule. “If you wait to do some kind of statewide thing before you protect Molokaʻi, it’s going to be game over,” he said.
Pauline Sato agreed that a statewide rule would be desirable, “but,” she added, “if we wait for that, it could be another year or two of meetings. … We have to do something now.”
Jonathan Ho, recently named to head up the Plant Quarantine Branch, had stated in his submittal to the board that the petition was precedent setting. Among other things, it “could be in violation of the Commerce Clause as the provisions appear to be selectively prohibiting the movement [of certain items.] … It prohibits movement of materials from areas that are not known to be infested with CRB. By doing so, [it] would imply that the rest of the state is infested and that the existing quarantine restrictions would not be needed. It also prohibits the movement of the listed items if they have been staged or stored in any area of the state, which appears to prohibit the movement of any of the identified commodities to Molokaʻi, including imported items in sealed containers.”
If the board should want to take action to protect Molokaʻi, Ho said in his report, “the board can direct PQB staff to work with the petitioners to complete the full advisory review.” Ho also suggested that the wider Molokaʻi community should be consulted, “to ensure that they are aware of the impacts the interim rule would have on them and that they are able to provide their input as they would be the most impacted by the interim rule.”
Board members seemed more favorably inclined than Ho to take some action. Board member Nathaniel Oswald, representing Molokaʻi, asked if the board could override the staff recommendation.
The deputy attorney general advising them, Jennifer Waihee-Polk, answered with a hard no. The board could only approve interim rules if the Advisory Committee on Plants and Animals first recommended them, she said, referring to Hawaiʻi Revised Statutes §150-9.5. That law says, “No interim rule shall be adopted without … a finding by the advisory committee on plants and animals” that “the importation or movement of any flora or fauna … creates a situation dangerous to the public health and safety or to the ecological health of flora and fauna present in the state which is so immediate in nature as to constitute an emergency.”
“That’s a statutory requirement,” she said. “You can’t override it. Even if I could find a way for you to override your own rules, you cannot override a statute.”
Oswald pressed ahead, asking DAB chair Sharon Hurd what was the most expedient way to move this forward.
Hurd: “We could table it, but what we can do is ask all the people who offered impassioned testimony, just be vigilant. Have voluntary compliance. Don’t be bringing plants under your shirt. You know, Molokaʻi has a very rugged coastline. Don’t bring a boat in there and start offloading compost and material. Just do the right thing. We can do that right now. … Whatever this petition says, we can do that right now.”
Ho repeated the suggestion: “One of the things we can do is very strongly suggest people who are moving a lot of material, particularly the goods that we have more difficulties with the inspection process, to just not move them interisland. To the extent of what we can do, we’ve changed some of the inspection processes, for larger potted plants, larger than 10 gallons, we’re requiring people to depot the plant so we can check for the potential for grubs like we were seeing in Lanaʻi. … We’ve taken measures to the extent of you know to do more. We can I think work with shippers now while we do the interim rule process.”
As far as that process is concerned, Ho continued, his recommendation to the board was to follow the standard process for developing interim rules, and this would be not just for Molokaʻi, but for the entire state. “It’s the same amount of meetings to do an interim rule for a statewide restriction versus one for Molokaʻi. If the board is looking to take the petition as is, no changes, we could probably do it relatively quickly – I’d say, two meetings – provided that the Advisory Committee has the findings that, you know, a ban essentially is warranted for a year and bring it back to the board before the next meeting.”
In the end, the board approved a motion to have the Plant Quarantine Branch initiate the rule-making process by referring the matter to the Advisory Committee on Plants and Animals, with the instruction to return to the board with its recommendation by the next board meeting.
A Quick Approval
The Advisory Committee on Plants and Animals met on September 17 – its first meeting in nearly a year. After a presentation by Ho, explaining how he had modified the Nihipalis’ petition to bring it more in line with departmental precedent, the committee heard from a number of people, most of them Molokaʻi residents and all of them in strong support of the Nihipali’s proposed interim rule.
An hour and a half after the meeting began, the committee unanimously voted in favor of recommending that the Board of Agriculture and Biosecurity approve the Nihipali rule at the board’s next meeting, scheduled for September 23.
When the board met, the Plant Quarantine Branch report recommended that the board approve an interim rule closely following the language of the Nihipalis, but with certain technical changes. Much of the board’s discussion focused on the prohibition of gravel shipments to Molokaʻi. Testifiers, including all of the Molokaʻi residents who weighed in on the matter, insisted that the on-island quarry would be sufficient to address the gravel needs of the island.
In the end, the board approved the interim rule. Meanwhile, the interim CRB rule adopted last year will expire October 11. In January, new regulations addressing the transport of CRB-host material were adopted. According to the Plant Quarantine Branch, “the existing rule and the permanent regulations in Chapter 4-72 somewhat overlap, so even if the interim rule expires, there will still be permanent restrictions on CRB host materials moving interisland.
— Patricia Tummons
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