Enforcement at Ahihi-Kina'u Hinges On Community Input, New Permit Rules

We’ll get back to you. That pretty much sums up the way the Department of Land and Natural Resources’ administration has treated the Natural Area Reserve System Commission’s push to get some enforcement down at the Ahihi-Kina’u NAR on Maui.

For months, the DLNR has instructed its Division of Conservation and Resources Enforcement to hold off on busting commercial tour companies operating at Ahihi-Kina’u without permits while new commercial rules for the DLNR’s Land Division work their way through bureaucratic channels.

Why? Because all of the commercial kayak operations – which contribute a significant portion but by no means all of the traffic to Ahihi-Kina’u – launch from adjacent unencumbered state lands, controlled by the Land Division. Because the administration has decided that a permitting system is more enforceable than an outright ban, the DLNR wants the permitting systems for both the Land Division and the NARS in place before undertaking any enforcement effort.

“It’s easier to enforce a permitting system because you take out the factor of the courts, who may not be as educated about resource issues as the Land Board,” Deputy Attorney General Linda Chow told the commission at its January meeting. In the past, DOCARE’s attempts to punish boaters caught in Ahihi-Kina’u’s marine area have failed in court, in part, Chow suggests, because the court system, with its ability to imprison violators, requires a high level of proof. An administrative fine, on the other hand, does not have such stringent requirements, she said.

But at the NARS Commission’s January meeting, the logic behind the DLNR’s enforcement abeyance did not sway several NARS commissioners.

Waiting on the Land Division “works if your system is willing to accommodate more than zero [use]. If not, a permitting system seems crazy,” said commissioner Jim Jacobi.

When Chow responded that enforcing a total prohibition would be difficult if not impossible, commissioner Patrick Conant said, “I don’t see why it would be any easier to chase people around looking for their permits than to chase people around and tell them to get out.”

Regardless of the commission’s views on the subject, the DLNR is moving ahead with its plan. The Land Division is scheduled to hold public hearings on its commercial permitting rules on February 5. If no significant changes are made as a result of the hearings, the rules will be brought before the Land Board for final approval. The entire process, DLNR deputy director Dan Davidson told the commission, should be wrapped up before the commission meets again on April 5.

So what if the NARS Commission says no to commercial use at Ahihi-Kina’u, and the Land Division, when its rules are in place, says yes to commercial use next door? In all likelihood, negotiations will be needed to avoid a conflict between the two DLNR agencies. Perhaps anticipating the impending need to set specific limits at Ahihi-Kina’u, commissioner Sheila Conant suggested that the commission “start talking numbers.”

“We can say we’re going to allow two permits every six months by lottery and each one of these commercial kayakers is going to take X number of people on a daily tour. And if we wanted to, we can say we’re only going to give one commercial use permit and that person can only take five people…and then DOCARE people can have something to enforce.”

She added that there are many national parks that limit the number of people allowed in a given area and that the commission could limit the number to 40 a day. Once that limit was reached, rangers could block off the road to the area, she suggested.

“Instead of all this fear and loathing about commercial use …I think we should start talking about something that’s nuts and bolts,” she said.

“That’s fine,” Davidson responded. “But if anything, we slowed down a little bit on commercial use based on the December 19 public meeting [at which the DLNR presented a draft plan for the area]…and we want to get back to the Maui community on the issue. We want to work with the broader community.”

“Yeah, but the longer we wait, the more the resources are getting damaged,” Conant said. She proposed that a NARS subcommittee on commercial use be formed to work out a solution. Other commissioners noted that at the December meeting on Maui, several members of the public called for the reserve to be closed off.

Muddying the Waters

Complicating the discussion was a presentation by Dave Gulko, coral reef ecologist with the DLNR’s Division of Aquatic Resources, on the marine resources at the reserve’s two popular rest stops known as the Aquarium and the Fishbowl.

Last December, Gulko, DAR Maui staffers, Scott Godwin of the Bishop Museum, and a University of Hawai’i botanist surveyed the natural resources in the two areas.

Gulko told the commission that he was “overwhelmed by the human activity” he encountered during the surveys, adding that a vast majority of the visitors he interviewed said they had been directed there by the tour book, Maui Revealed.

At both sites, Gulko said there were large numbers of hikers and both recreational and commercial kayakers. He added that during the surveys, three motorized boats attempted to enter the small embayments (motorized boats are prohibited in the NAR).

At the Aquarium, Gulko found an extraordinary concentration of fish and live coral in its shallow, rocky waters. The only other place he’d seen “this type of concentration of these types of fish” is in the Northwest Hawaiian Islands, he said. The researchers found 70 fish species, 12 coral species, lots of different types of algae, and may have discovered a new coral species.

At the Fishbowl, Gulko said the species diversity was not as great, but was similar to that of Molokini, which is a much larger area.

Despite their robustness, both spots showed evidence of poaching, as well as damage from kayaks and trampling, Gulko said. He added that some of the eels and snappers approached him during the survey, suggesting that some fish-feeding is occurring.

“People are walking on the shallow corals” as they enter and exit the areas from a variety of spots around the coves, Gulko said. At each site, he said there is only one safe place to land kayaks and enter and exit the water without damaging the resources. On-site rangers, he suggested, could direct people to these areas and educate them on how to avoid damaging the ecosystem.

“You need to have a presence on site and to control the number of people,” he said. In two hours at the Fishbowl, 45 people hiked in, all unguided, he added.

While he was grateful for Gulko’s presentation, commissioner Scott Rowland said, “In my mind, it muddied the waters mainly because it showed that commercial kayaks are maybe not the only problem. There’s lots of non-commercial access as well. Unless we can address just the number of people, part of which is commercial kayaks, somehow the public needs to know that the commission is leaning towards closing down the NAR.”

He said that while the DLNR’s draft plan has a perfectly good list of management actions, “We have to get it going,” Rowland said.

Davidson said he plans to hold another meeting with the Maui community and DLNR staff. At the suggestion of commissioner Scott Derrickson, who was concerned that the commission’s voice was not being included in these DLNR meetings, Davidson agreed to include Maui NARS commissioner Lloyd Loope at the next meeting.

Also, Davidson said that he expects the Hawai’i Tourism Authority to kick in some $200,000 to provide staff to help manage Ahihi-Kina’u for three years, $6,000 for vehicles, $1,000 for signage, $66,000 for buoys, and $100,000 for an archaeological assessment.

At its January 12 meeting, the Natural Area Reserves System Commission approved a special use permit request by the Lu’uwai family to practice traditional gathering in a part of the Ahihi-Kina’u Natural Area Reserve it had not had access to before. The permit is intended to allow the Lu’uwais to pass knowledge of native Hawaiian fishing practices on to future generations. Under the permit, the family may conduct subsistence gathering on as many as four days over the next year, and must report on what it gathers to NARS staff.

Since receiving its first permit to gather at Ahihi-Kina’u in October 1999, the Lu’uwais have found that some species are so depleted that it’s difficult to do any gathering in the portion of the reserve it had been permitted to visit. So in their new application, the Lu’uwais asked the commission’s permission to spread to two new areas, in hopes of finding adequate marine life.

While not at the January meeting, Skippy Hau, an aquatic biologist with the Department of Land and Natural Resources in Maui, had expressed concern that poaching of ‘opihi, pipipi and some fish species throughout the reserve warranted the reconstitution of the old NARS subsistence subcommittee formed when the Lu’uwais sought their first permit. According to NARS executive secretary Betsy Gagne, Hau felt the subcommittee should discuss possible effects of the expansion of the permit into other areas of the reserve.

The NARS Commission, however, felt that since both Hau and Robert Lu’uwai were on the original subsistence subcommittee, any concerns could be worked out between the two of them.

The Nature Conservancy Hawai’i wants to enroll four of its parcels, purchased from C. Brewer in 2002, into the state’s Natural Area Partnership Program, which provides two-to-one matching funds for natural resource management on private lands. The proposed NAPP area encompasses roughly 3,500 acres in and around the Ka’u Forest Reserve on the Big Island, and includes a rare koa-‘ohi’a mixed montane mesic forest.

A TNC report states, “This region is surpassed only by East Maui in the number of different types of ecosystems present. Considering all of its nine ecosystems, the southeast region of Mauna Loa is home to more extant, endemic species of flowering plants (178 species) than any other region on the Big Island. In fact, its mesic and wet forest ecosystems alone support 153 of these plant species, of which 14 are endangered – like the flowery Ka’u silversword. These largely intact mesic and wet forests also support one of the richest assemblages of endangered forest birds remaining in the state.”

At the NARS Commission’s January meeting, TNCH sought and received permission to move forward with a pre-proposal plan to manage the area. The NARS will provide TNCH with as much as $15,000 to help prepare the plan.

If the commission and the Board of Land and Natural Resources ultimately approve of the TNC’s proposal and management plans, the Ka’u lands will be the first new NAPP since 1993. And it will come none too soon for NARS program manager Randy Kennedy, who told the commission, “We’ve always wanted more management in that area.”

Throughout the Natural Area Reserve System, fences are being built to help control the wild pigs and other feral ungulates that can destroy native habitats. Six miles of fence were put up last year on the Big Island, including 2.5 miles in the Manuka NAR, 1.5 miles in Pu’u Maka’ala, and a one-mile fence enclosing 10 acres at the Pu’u O Umi NAR . Right now on O’ahu, a thousand-foot-long fence is going in at the bog at Ka’ala NAR , and the environmental assessment for a fence at the Pahole NAR has recently been completed.

While this is all good news to those concerned with the protection of the state’s most pristine natural areas, someone out there is evidently not so thrilled. At the Pu’u O Umi NAR in Kohala, someone has breached the fence by making about 140 individual cuts in the wire mesh.

At the NARS commission’s January meeting, NARS manager Randy Kennedy didn’t believe the hunting groups were responsible, since they were in support of the fence. It was just “a malicious act,” he said.

In the early 1990s, hunters, outraged at being fenced out of some of their favorite areas, pressured and eventually forced the DLNR to tear down the fence protecting the bog at Pu’u O Umu. In 1995, vandals damaged a plant exclosure fence at the Laupahoehoe NAR, also on the Big Island.

— Teresa Dawson

Volume 14, Number 8 February 2004