Board Talk

Board Denies Koa Loggers’ Attempt To Subtract Restoration Costs From Fine

If Koa Timber and its partner Hawai’i Forest Preservation LLC had their way, they would submit a detailed forest restoration plan to the Board of Land and Natural Resources, which would then agree to credit the restoration costs against their $141,000 fine for logging 13 acres of Conservation District land above Pauka’a and Papaikou, north of Hilo on the island of Hawai’i.
Although the board approved a similar scheme last year for logging violations on land owned by Damon Estate, Koa Timber’s “wish list,” offered at the Land Board’s January 9 meeting by the companies’ attorney Danton Wong, was quickly shot down.

In the Damon case, where 712 native koa and ‘ohi’a trees were cut on conservation land in Ka’u, the estate itself did not do the logging, and never intended to log or conduct restoration activities in the Conservation District. In Koa Timber’s case, the company has submitted a Conservation District Use Application to the Department of Land and Natural Resources to do just that. Processing of the CDUA for its “sustainable” logging operation, which includes managing logged areas to improve the forest, has been on hold since the DLNR determined last year that the company had violated Conservation District rules. Also holding up the permit is Koa Timber’s lack of a final environmental impact statement, which Wong says won’t be complete for several months.

In February 2003, the DLNR’s Division of Conservation and Resource Enforcement investigated a complaint regarding unauthorized koa timber logging, grubbing and grading, and the construction of a skid/haul road in Pauka’a and Papaikou. (For details, see the cover article in the December 2003 issue of Environment Hawai’i.) Since Koa Timber did not respond to two phone calls by DOCARE officers, they took to the sky. By helicopter, DOCARE was able to determine that a road had been cleared and trees had been logged. A field survey by DOFAW found that at least 135 koa trees were cut, two ‘ohi’a trees were pushed over, and at least 7,000 linear feet of road was constructed inside the Conservation District.

Koa Timber says the violation was not wilful and resulted form a simple mistake in determining the Conservation District boundary. According to Koa Timber representatives, the company believed that the Conservation land lay above a “Y” formed by the merging of Honoli’i and Pohakupa’a streams. In 2000, Koa Timber located what it thought was that “Y,” and logged from there down. It later turned out that the “Y” it found “was only a tributary feeding the Pohakupa’a Stream, and not the major … river merger,” a DLNR report stated. That tributary lay in the Conservation District.

Since Koa Timber plans to restore its logged areas, crediting the company for restoration work would undercut the deterrent value of DLNR’s fine, said Kaua’i Land Board member Lynn McCrory. It’s like “it’s okay, there’s no penalty for any landowner to go out and cut land and not come in for a CDUP, and all they have to do is come back say, ‘I’m gonna fix it.’ And…they just keep going out and doing it,” she said, adding, “You didn’t go out and check where you were. A ‘Y’ in the river is not good enough. You should have known exactly where you were.”

Although the act did not seem flagrant or wilful, DLNR staff felt Koa Timber’s explanation was “questionable,” and wrote in its report to the Land Board that the company “should know its ‘own territory.’ A portion, approximately 1279.8 acres of the subject parcel is zoned …agriculture, but the majority of the 10,1115 acre parcel is zoned… Conservation District.”

Wong noted that Koa Timber did use a global positioning system in determining the loggers’ location. Still, he said, because the DLNR’s staff recommendations did not specify possible costs or the extent to which Koa Timber was to restore the land, he wanted the company to have a chance to get credit for restoration. “I’m nervous about the potential cost,” Wong said.

While at-large board member (and Damon Estate chief operating officer) Tim Johns said he identified with Wong’s concerns, Sam Lemmo, the newly appointed administrator of the DLNR’s Office of Conservation and Coastal Lands, suggested that Koa Timber was simply seeking a chance to inflate restoration costs. “They want to do more than we want and get credit for the fine,” he said.

Division of Forestry and Wildlife forester Michael Constantinides, who conducted field reconnaissance of the logged area for the DLNR, settled the issue by saying restoration costs would be minimal and not likely to exceed $20,000.

“There is a very strong need for disincentive,” he said. Since 13 acres is not a large area, and Koa Timber’s biologist Wade Lee had reported that dozens of koa seedlings have sprouted in the area, Constantinides said restoration might be limited to some herbicide application on invasives and weed-whacking. “I don’t see planting of actual koa,” he said, since seedlings are already growing and there are no sheep to browse them (unlike at the Kahuku Ranch site in Ka’u, where Damon Estate and the National Park Service are controlling ungulates to help restore the illegally logged area).

The Land Board approved a fine of $8,430.61 for administrative costs, $2,000 for construction of an unauthorized road, $2,000 for illegal grubbing and grading, and $137,000 for destruction of 137 native trees (or $1,000 a tree). The board also approved a monthly payment plan that allows Koa Timber to pay its fine in five installments. If Koa Timber misses any of its payment deadlines, it could be subject to fines of $2,000 a day.

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Kane'ohe Couple Gets Reduced Fine For Conservation Violations

“Ninety percent of what you’ve heard is false,” attorney Ben Tsukazaki told the Land Board at its January 9 meeting, where Office of Conservation and Coastal Lands staff proposed fining Joyce and O. William Chandler $80,000 for unauthorized work on the conservation-zoned portion of the couple’s property in Kane’ohe.

In its report to the Land Board, OCCL asserted that the Chandlers, who the Land Board determined last June had violated Conservation District rules on the same property, broke the law when one of their employees grubbed and graded, extracted soil, and constructed a dirt road in the Conservation District. The new violations occurred some time after June 27.

Because the violations occurred after the Land Board’s finding of a violation by the Chandlers, “Staff believes…that the second violation is a willful and flagrant action,” wrote OCCL planner Dawn Hegger in her report to the Land Board.

At the Land Board meeting, OCCL administrator Sam Lemmo argued that Mr. Chandler knew not to conduct any work in the Conservation District, but allowed his contractor to do so anyway in order to make it easier to build the Chandlers’ house, which is being constructed in the urban portion of his split-zoned property.

Lemmo argued that the Chandlers’ contractor bulldozed a road through the conservation portion because physical obstacles in the urban portion made it impossible to bring construction equipment to the house site. Tsukazaki disagreed, saying that equipment “went only through the urban district.” While he conceded that violations did occur in the Conservation District, he said it was done while Chandler was off-island and despite his explicit instructions to avoid the conservation area. That being the case, Tsukazaki said the fine amount was illegal, and it was outrageous for “staff to make these kinds of fines based on false information.”

Regarding the legality of the fines, DLNR contended that the second foray in the Conservation District violated the terms and conditions set at the Land Board’s June 27 meeting, and therefore was subject to fines of $2,000 a day from June 28, 2003 to August 5, 2003 (when DLNR staff issued a cease and desist order).

Tsukazaki, however, maintained that the two sets of violations were not linked. While the Land Board’s order on the first set of violations required Chandler to submit a remediation/stabilization plan or Conservation District Use Application before doing any more work, Tsukazaki told the board that, “the order does not say, ‘Thou shalt not do work in the Conservation District.'” He said the second set of violations should be treated separately, and the board should limit the fine to $4,000 ($2,000 a day for the two days of work he says went on in the conservation district).

After meeting in executive session, the Land Board decided it could not tie the violations to the Land Board’s June 27 action. O’ahu board member Kathryn Inouye’s motion to fine the Chandlers $8,000 ($2,000 each for grubbing and grading, soil extraction, road building, and administrative costs) was unanimously approved.