Board Talk

DLNR Defends Executive Sessions

Protecting private individuals from embarrassment is a valid reason for the Board of Land and Natural Resources to meet in private. That’s according to Linda Chow, a deputy attorney general assigned to the Department of Land and Natural Resources.

On March 5, responding to an inquiry by the Office of Information Practices about a couple of questionable executive sessions held during and after the Land Board’s December 2003 meeting, Chow wrote a letter to the OIP defending the board’s actions.

During the December 12 meeting, the board went into executive session with an attorney representing people alleged to have violated Conservation District rules. The attorney asked for the private meeting to discuss family issues that his clients did not want made public. After that same meeting had adjourned, the Land Board met in executive session again on two contested cases.

An article in the January 2004 issue of Environment Hawai’i regarding these meetings prompted state Senator Les Ihara to ask the OIP to investigate whether the executive sessions were legitimate.

In her letter to the OIP, Chow explains that executive sessions relating to contested cases do not fall under Chapter 92, which governs the Land Board’s regular meetings; instead, she notes, they fall under Chapter 91. Since the December executive sessions on these cases was merely a briefing to the Land Board by its counsel, no notice of the briefing under provisions of Chapter 91 was required either, she states.

The executive session taken during the meeting proper was made at the request of John Carroll, attorney for the Alfred J. Andrade Ltd. Partnership. Carroll joined the board behind closed doors to discuss why the partnership couldn’t control the actions of a family member (Alfred Andrade) who had violated Conservation District rules. Chow says rules regarding executive sessions allow such a meeting.

The law sets forth eight purposes for which a board may meet in private. One of them is “to deliberate or make a decision upon a matter that requires the consideration of information that must be kept confidential pursuant to a state or federal law, or a court order.”

Chow claims in her letter that references to personal privacy in both the state Constitution and the Uniform Information Practices Act apply “when the release of personal information concerning private citizens is being considered in the course of a public meeting.” Courts, she continues, have ruled that personal information may include medical, financial, educational, or employment records, as well as sexual relations, family quarrels, illnesses, personal letters, details of a person’s home life, and past history.

“Based on the significant privacy interest of Mr. Andrade and his family and the public interest involved, the Board was required to keep the information presented by Mr. Andrade’s attorney confidential by article I, section 6 of the State Constitution (which states that the right to privacy “shall not be infringed without showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.”),” Chow’s letter concludes.

The OIP has not yet issued an opinion in the matter.

Last month, Environment Hawai’i reported that the Land Board had approved at its January 23 meeting an after-the-fact Conservation District Use Permit to Chandi Heffner, who owns approximately 166 acres in North Kohala on the Big Island. The permit was supposed to have been the culmination of efforts to bring her into compliance with Conservation District rules, which she violated in 1999 when she made improvements to a jeep road, cut trees, and did erosion control on her coastal property without permission from the Land Board.

Back in 1999, the Land Board had required her to apply for a CDUP for the improvements and to pay a fine of $1,300. More than once, Heffner attempted to apply for a CDUP and was told that her applications were incomplete, in part, because they failed to address public access. (In 2000, DLNR’s Na Ala Hele trail program had determined that the historic Ala Kahakai trail crossed Heffners property.) In any case, her lawyers claim, she was not required to get an approved permit, but only to apply for one.

The DLNR and Land Board saw things differently and chose to fine her again ($607) in March 2003 for not submitting a proper CDUA.

Heffner and her attorneys claim that the state has no ownership interest in any trail traversing her property. But, citing a state law that says trails established before 1892 are state property, the DLNR asserts the trail, documented as early as 1873, belongs to the public. At its January 23, 2004 meeting, the Land Board approved a Conservation District Use Permit that included a condition that Heffner work with Na Ala Hele to establish the location of the trail and provide public access to it.

Heffner’s attorney Bruce Lamon was present at the meeting, but did not request a contested case hearing. Instead, on February 2, he sent the Land Board a motion for reconsideration of the CDUP conditions. Three weeks later, on February 23, Lamon filed suit in federal court, on behalf of Heffner and her company Keawe’ula LLC. The suit claims that Land Board members Peter Young, Tim Johns, Toby Martyn, Ted Yamamura, and Lynn McCrory, as well as Sam Lemmo of the DLNR’s Office of Conservation and Coastal Lands, are “conspirators in a conspiracy pursued by DLNR/Na Ala Hele to deprive private owners of oceanfront property of title to trails across their property without compensation.”

Heffner is charging that Lemmo and the board members present at the January 23 meeting violated her civil rights and engaged in racketeering. She is also requesting a declaratory judgment nullifying all of the Land Board’s orders against her, dating back to September 1999, and is appealing the Land Board’s January 2004 order.

Land Division administrator Dierdre Mamiya explained her fellow land agent’s actions to the board: “Wes told him to get off twice, he never did, so we told him to get a permit.”

“Or else you’ll really be in trouble,” quipped board member Tim Johns.

Ross Pacheco, who has run his cattle on state-owned pasture land in O’okala without a permit for at least five years and possibly more than ten, may finally be forced to vacate. At its March 12 meeting, the Land Board approved its staff’s recommendation to deny Pacheco’s application for a revocable permit to occupy the 25 acres, which are also trust lands, for $18 a month. The board gave him 60 days to get off the property.

In January 1999, Hawai’i Police Department Officer Derwin Ignacio filed a complaint with the Hawai’i Land Division office that someone was raising cattle on state lands in O’okala without a permit or lease. After an investigation, an officer with the Division of Conservation and Resources Enforcement told Ross “Rusty” Pacheco and “other individuals responsible” to vacate the property.

The order apparently did no good since on November 24 of that same year, the Police Department again complained to the Land Division, this time about stray cattle roaming a cane haul road off Highway 19. Investigators found that Pacheco and rancher Norman Stevens, who pastured lands adjacent to the state property, were grazing cattle on state land.

The DLNR issued a notice to vacate on December 9, 1999, and according to a March 12, 2004 report by Hawai’i District Land Office agent Wesley Matsunaga, “Mr. Stevens vacated the property as ordered. When questioned, Mr. Pacheco informed that he previously subleased the parcel from Hamakua Sugar, but that the lease expired several years ago. He admitted continued use of the lands for pasture as no one informed him to leave.” Hamakua Sugar’s lease for the area was cancelled in October 1994, and the staff at the Hawai’i District Land Office says it could find no records to verify that Pacheco ever had a sublease with the company.

Since Pacheco had attempted to restrain his cattle with stock-proof fencing and was willing to pay back rent for the time he was occupying the land, HDLO staff recommended that he apply for a lease or a revocable permit. Pacheco submitted a request for a revocable permit in January 2000, but his application was incomplete, lacking information regarding his farming experience and proof of his ability to pay rent.

“Staff’s failure to conduct timely follow-ups in obtaining a complete application has caused delays in processing this request,” Matsunaga’s report states. A complete application was finally received on June 12, 2003, but DOCARE later found that Pacheco had lied on his application about his criminal convictions – he said he had none, when, in fact, he had three.

Given Pacheco’s history – lying on his application, and his failure to prove his qualifications and any legitimate tenancy on the land – Matsunaga recommend that the Land Board deny the permit and order him and his wife to vacate within 30 days. The recommendation was approved at its March 12 meeting, after Big Island board member Gerald DeMello amended the recommendation to give the couple 60 days to vacate.

The Oceanic Institute, which operates a marine research facility on more than 100 acres in Waimanalo leased from the state, has been given until the end of this month to cure a breach of its lease involving illegal discharges from its facility into state waters.

In March 2003, the state Department of Health notified OI that its effluent exceeded state water quality standards. OIwas given 30 days to apply for a National Pollutant Discharge Elimination System permit and have its effluent meet state standards or come up with a schedule to stop the discharges altogether.

On April 23, the state Department of Transportation wrote the DLNR that OI, without any permits to do so, had connected a 30-inch diameter drain line to a DOT culvert that crosses Kalanianaole Highway and empties into Kaupo Bay. Since OI’s lease with the DLNR requires it to comply with laws and regulations of other government agencies, the Land Division issued a Notice of Default on April 30 regarding the DOT violation, and gave OI until September 5, 2003, to cure its violation.

OI cannot get a storm drain connection permit from the DOT without authorization from the DOH, which, as of March, was still working on a Finding and Notice of Violation and Order for OI’s discharges. The NFVO, according to a Land Division report, “will allow OI to keep the status quo until [dispersion] wells are completed, i.e., both overflow seawater and storm water will go to the storm drain. When the wells are completed, only storm water will be discharged in to the storm drain while the wells will process the overflow seawater from the OI’s facilities.” OI has until September 2004 to complete the well field. In the meantime, it must post signs warning the public that the effluent from the storm drain at Kaupo Bay contains discharges from an aquaculture pond.

With the FNVO nearly ready, Land Division staff recommended to the Land Board at its March 12 meeting that OI’s cure period be extended to April 30, 2004 and authorize the board chair to grant further extensions “for good cause.” The recommendation was unanimously approved.

— Teresa Dawson

Volume 14, Number 10 April 2004