Righting Wrongs: Land Board Should Reverse Its Clear Error
Last year, the Department of Land and Natural Resources celebrated the Year of the Hawaiian Forest, honoring the efforts of those visionaries whose efforts a century ago won passage of a law that set the framework for protecting the islands’ forested lands.
This year, staff at the DLNR’s Division of Forestry and Wildlife eagerly describes the work of those pioneers as “an error.”
A century ago, landowners stood in line to have their private upland holdings officially included in formal governor’s proclamations describing forest reserves.
Now, it seems, the inclusion of private land in forest reserves is regarded by many owners of those same lands as more burden than boon.
In past years, their route to relief has gone through the state Land Use Commission, which has statutory power to redistrict Conservation District land. That path, however, entails a protracted contested case hearing, preparation of an environmental impact statement or environmental assessment, involvement of the public, and in the by no means certain end, a finding by a majority of commissioners that the land indeed no longer conforms to the definition of the Conservation District.
It’s an expensive and daunting process. But the owners of 2,400 acres of Conservation District land in Kealia, Kaua’i, thought they’d found a short cut. Because the designation of their land as forest reserve a century ago was the basis for its later inclusion in the Conservation District, getting the Land Board to agree that that original designation was in error set the stage for arguing to the LUC director that the land should, by rights, not lie in the Conservation District at all.
The owners and their clever agents gulled the incurious and incompetent DOFAW folks into going along with their scheme. DOFAW, in turn, led an indifferent and na•ve Board of Land and Natural Resources down the same path to folly.
And so was history made on July 9: Oblivious to the far-ranging implications of their actions, the members of the Land Board shamelessly approved, without comment, question, or dissent, one of the last official acts of Mike Buck as the state’s forester in chief: a request that they find that the Kealia parcel had been placed into the territorial forest reserves by mistake.
Only after Environment Hawai’i raised questions about the foundation of the DOFAW report did its staff concede that the July 9 decision was based on flawed and incomplete information information spoon-fed to the state, apparently, by the landowner and not verified further by anyone at the agency or at the Attorney General’s office.
While it is a relief to know that the Land Board will be revisiting the issue this month, the question arises: How could this have happened in the first place?
Year of the Anti-Forest
Those with memories just a little longer than DOFAW’s might recall that it was just a short year ago that DOFAW was hyping 2003 as the Year of the Hawaiian Forest. Books were published, calendars were printed, coins and poses were struck, all in the name of celebrating the wise fathers of today’s forests. How, in light of all that hoopla, can the actions of Buck and other YOHF cheerleaders be understood?
A cynical person might conclude they were simply selling a product without the least understanding of its purpose or significance. As described in this issue in heartbreaking detail, Buck and his crew, the very people charged with being watchdogs of Hawai’i’s forests, became lapdogs, accepting without question a landowner’s self-serving (and wrong) claims that his land had never been surrendered to the territorial or state government, and that the land had been included in the forest reserve by error.
It took a search of less than three minutes in the DOFAW office, by a member of the public, to locate a file drawer plainly labeled “SURRENDER AGREEMENTS” that contained, in neat, alphabetical order, a document giving the lie to the landowner’s claim that the Kealia parcel had never been placed under such an agreement. The file is not 20 feet from Buck’s old office.
Only slightly more time was required to research published reports of the Board of Agriculture and Forestry, available in most state libraries, before finding ample evidence that the inclusion of private land in the governor’s proclamation of the Kealia Forest Reserve the sixth such reserve established under the 1903 law whose passage was celebrated last year was painstakingly deliberate and occurred with the enthusiastic consent of the then-owner, Lihu’e Plantation.
No less culpable than DOFAW staff is former deputy attorney general Linden Joesting (now deputy director of the Department of Transportation, in charge of the Harbors Division), whose “suggestions,” while not providing anything in the way of legal or historical analysis, were apparently (mis)read by DOFAW personnel as instruction that they should ask the Land Board to find that the Kealia forest reserve designation was in error. If this is the kind of work that typifies the AG’s shop, heaven help the forest reserves and all that dwell within or benefit by their protection.
Consequences?
If the landowner, Cornerstone Hawai’i Holdings, LLC, were to have found the Land Use Commission no more skeptical or questioning than the Land Board, the consequences could have been disastrous for the state’s third of a million acres of privately owned forest lands. That’s the approximate area of land that was proclaimed to be forest reserve in the first three decades of the 20th century and which now makes up most of the upland Conservation District.
No one at the DLNR appears to have thought of this at the time the Kealia request was moving through DOFAW ‘s bowels. One of the many important questions that this case raises, though, is why DOFAW had anything to say about the matter in the first place.
Since passage of the state Land Use Law 40 years ago, all privately owned land in designated forest reserves has been regulated as Conservation District, with permits and enforcement of rules being not the responsibility of DOFAW at all, but of other agencies. For years, it was the Department of Land and Natural Resources’ Planning Office, then the late but hardly lamented Office of Conservation and Environmental Affairs, headed by Roger Evans. For most of the last decade, Conservation District matters were handled by the Land Division. For the last two years, they’ve been taken over by the Office of Conservation and Coastal Lands, run by Sam Lemmo.
Lemmo was not consulted at all on the handling of the Kealia matter, even though by statute, DOFAW has no say whatsoever over private Conservation District land. To his credit, Lemmo instantly understood as Buck apparently did not the far-ranging implications of the Land Board’s action on the issue.
Reversible Error?
The only honorable course of action is for the Division of Forestry and Wildlife to ask the Land Board to reconsider the July 9 action. To his credit, Paul Conry, the new DOFAW administrator, has said he will do just that, on August 13.
One hopes that the Division of Forestry and Wildlife and all others who had a hand in creating this near disaster draw a lesson from this experience. It’s the same lesson they were themselves preaching a year ago:
Hawai’i’s forests are precious. Handle them with care.
— Patricia Tummons
Volume 15, Number 2 August 2004