In the last month of the last year of the last Democratic governor, the Department of Land and Natural Resources effected small but important changes to the administrative rules of a broad swath of its agencies. The changes all addressed the issue of commercial use of state land, be it in forest reserves, parks, Natural Area Reserves, unencumbered land, or on beaches and waters of the state.
The rules were clear: Commercial activity was defined as “the use of or activity on state land for which compensation is received by any person…” It included activities “whose base of operations are outside the boundaries” of state properties as well as those that “provide transportation to or from” state lands. No one “shall engage in commercial activities of any kind without a written permit from the board or its authorized representative,” the rules stated.
And then the Lingle administration took office. For the first year, the rules on commercial use might as well have been written in sand, for all the attention paid to them. The commercial use of beaches by surfboard schools proliferated. Remote places such as Kealakekua Bay and the South Maui shores of Keoni’o’io and Ahihi-Kina’u, the only Natural Area Reserve in the state that combines terrestrial and marine areas, have seen exponential growth in commercial kayak tours.
The new DLNR administrators cautioned patience to members of the public (to say nothing of Natural Area Reserve System Commissioners) wanting to crack down on the privatization of public resources. The newly minted rules on commercial use were inadequate, they said, and in need of a major overhaul.
And so it was that last December, draft rules were floated for the commercial use of unencumbered public lands. The rules proposed amendments to the existing rules and added some nine pages of new language describing the proposed permit application process. On January 26, 2004, Land Board chairman Peter Young announced that public hearings on the draft rules would occur in the four counties of the state simultaneously on February 5. “At this time,” he said, “our rules don’t allow commercial activities on unencumbered public lands.” (Perhaps he meant to say that there was no description of a permit application process for commercial use; the existing rules clearly allow commercial activity with a permit.)
A Thumb on the Scale
The draft rules set forth a noble “hierarchy of priorities” in the use of unencumbered land. First is “protection and stewardship of natural and cultural resources”; second, “access for non-commercial general public activity”; and third, “access for commercial activity in a manner that does not damage these resources or compromise the general public’s activity.”
But many members of the public who commented on the draft rules were skeptical of the sincerity behind this statement. And with good reason. After all, how can the hierarchy be respected when commercial permit-seekers would have completed applications decided upon in seven calendar days, with no opportunity for public comment? If no decision is made within that time, the permit sought would be granted by default.
Moreover, the rules provide an appeal recourse to applicants denied a permit, but not to members of the public, neighbors, competitors, or others who may regard the permitted use as damaging to their interests or to public resources.
Then there is the matter of fees. The application fee is proposed only to “defray the cost of processing, issuing, and administering commercial activity permits.” There is no provision for recovery of wear-and-tear damages to resources other than a “refundable security deposit,” which, in any case, will not always be required. Other DLNR departments routinely issue permits that require commercial operators to pay fees based on usage. For example, commercial hiking tours pay a per-person fee each time they use a state trail; commercial tour boat operators pay a percentage of their gross revenue. As a matter of prudent fiscal policy, if nothing else, the state should charge commercial users of unencumbered land fees equivalent to what private landowners would charge.
While most of the public comment focused on the new language describing the permit application process, changes in the existing rules should not be overlooked. In nearly all cases where such changes were made, they liberalized, in favor of commercial operators, the potential use of unencumbered lands.
For example, the outright ban on horseback riding on beaches is eliminated. Instead, the proposed rules would allow it “with the written permission of the board or its authorized representative.” Other flat bans – on off-road vehicles, on the destruction, damage, or removal of natural features or natural resources, on the taking of trees and shrubs (except for noxious weeds) – are similarly lifted, subject to board permit.
Regulatory Inequities
The most recent draft rules were intended to address what the DLNR administrators saw as hurdles for commercial users of unencumbered lands. What went unaddressed in their review of the rules were burdensome requirements for private, non-commercial users.
Consider this: if you have a kayak, sailboat, catamaran, or any other “buoyant device capable of free flotation,” the rules (both current and proposed) would prevent you from beaching it on unencumbered land, except in emergencies, without written authorization from the Land Board.
Another problem that the proposed rules do not address – indeed, which they create – is the conflict in the regulation of commercial film-makers. Section 13-221-47 of existing rules requires film-makers to obtain board permission before making any movie or television production, or even “sound tract” [sic] on unencumbered land. The proposed rules do not repeal that section, yet in Section 13-221-50(b), they exempt any film-maker who gets a permit from the Hawai`i Film Office from the need to obtain a board permit before being allowed to use unencumbered land. The impression one can’t help but get is of a sloppy, fast-tracked review of current rules with one overarching purpose: to expedite the exploitation of Hawai’i’s lands and resources for private, commercial ends.
At the moment, says DLNR Land Division administrator Dede Mamiya, comments from the public are still being summarized. The Land Division, she said, “will redraft rules based on the comments” and take them back to the Land Board.
In the meantime, however, the commercial activities continue unabated. Despite the prohibition on commercial activities in the absence of a permit, Young and DLNR deputy director Dan Davidson have not cracked down on violators but rather have coddled them. In South Maui, for example, they have established “stake-holder” groups of commercial kayakers and are seeking their advice in designing regulatory schemes.
Such actions can only contribute to the commercial users’ claims of entitlement to continued use of public resources. They potentially expose the state to claims of a “taking” if the commercial use, supported by investment-backed expectations, is restricted by future regulations. Given his former job as head of the Land Use Research Foundation, a champion of the rights of private landowners and commercial developers, Davidson should be exquisitely sensitive to this potential; that he is recklessly proceeding down a path that would seem to encourage claims of taking strongly suggests he has yet to lose his LURF allegiance.
If indeed Young, Davidson, and their minions are sincere about putting the resources first, then they should call a halt to each and every ongoing unpermitted commercial activity on unencumbered lands. Then they should, with ample public input, set up a regulatory framework that protects natural resources first and then general public use.
Areas that are unable to support commercial activity should be identified, with no application for their use entertained. Popular areas where commercial activities might be allowed under strict limits should also be identified and, to ensure that that the process of awarding permits is equitable to all, a system of bids for concessions could be established. In addition to allowing the state stricter control over the resources, it would also allow the state to participate fairly in the revenue commercial use might generate.
Of course, this will take time, public input, and full compliance with environmental disclosure law. What on earth is wrong with that?
Whatever the final outcome, one thing is clear: Only after new rules are in place should the Land Board even consider award of the first commercial use permit. Until then, state rules should be enforced and violators should be punished. Period.
— Patricia Tummons
Volume 14, Number 10 April 2004