DLNR to Revamp Commercial Use Rules After Getting an Earful from the Public
A new permit system for surf schools, kayak renters and other commercial operations multiplying like bunnies along Hawai’i’s beaches is probably not going to be in place as soon as administrators at the Department of Land and Natural Resources had hoped. In January, DLNR deputy director Dan Davidson told the Natural Area Reserves Commission that commercial permit rules for unencumbered lands, a category that includes most beaches, would be in place by April. But when the draft rules were put up for public hearing, the outcry was overwhelming. Before the rules are ready for final approval by the Board of Land and Natural Resources, they may need to undergo a major overhaul.
On February 5, the DLNR’s Land Division held statewide hearings on the proposed commercial permitting rules for unencumbered state lands (generally, those lands not leased, rented, under executive order, set aside to agencies, or designated for a specific land use). The main intent of the new rules is to get a handle on the exploding number of commercial operations in the state’s coastal areas, many of which are conducting their business without state permits.
“We want to set up a permit process so businesses willing to follow the process and provide a quality experience for visitors or residents can do so in an appropriate way – protecting the natural and cultural resources of an area,” said DLNR administrator Peter Young in a January 26 press release.
While many speakers at the public hearings agreed with the intention of regulating commercial use, few, if any, seemed satisfied that the rules would give adequate protection to natural and cultural resources or the public’s interests. At the hearings, held simultaneously on O’ahu, Hawai’i, Maui, and Kaua’i, comments from members of the public gravitated around these points:
o Allowing multiple activities to be covered by one permit (as the rules propose) may lead to monopolization of activities at some beaches;
o The seven-day time frame within which the DLNR would have to act to deny a permit (automatically approved otherwise) is too short. The Office of Hawaiian Affairs suggested giving the department 30 to 120 days to decide. Jeff Mikulina of the Sierra Club Hawai’i Chapter suggested 45 days. One testifier noted that Conservation District Use Permits, which were once required for commercial use of beaches, has a 180-day deadline for approval, and even that “comes along quick;”
o To allow for proper public notice and input, many members of the public felt that some of the permits should be ruled on by the entire Land Board. The rules proposed giving approval authority to the Land Board chair;
o The proposed permit fee of $20 was criticized as far too low. Many of those testifying argued that the fees should be “on a business level” and should cover costs of enforcement and resource protection;
o The rules as written let the Land Board chair revoke a permit if the commercial activity is found to have a “significant impact” on the resource or the public. “Significant impact” is not defined or quantified, several people noted, adding it shouldn’t be left up to the Land Board chair to decide when that threshold is reached;
o The draft rules were not sufficiently protective of Hawaiian gathering rights and cultural resources.
In November 2002, the Land Board approved rules that prohibit commercial use on a variety of state lands without a permit from the Land Board. The DLNR’s Natural Area Reserves System and Division of Boating and Ocean Recreation have rules that address commercial permitting, but the Land Division does not. (In the 1980s and early 1990s, the DLNR required a Conservation District Use Permit for commercial use of beaches, but that practice was abandoned in 1993 when a change in Conservation District rules and interpretation led to the current policy, which requires permits almost exclusively for land-altering activities, resource extraction, or construction.)
“Last time, we did this to a small land owner. This time, we’re letting Bishop Estate off,” Land Board member Tim Johns said at the board’s January 23 meeting.
Thanks to a change in the way the Department of Land and Natural Resources pursues violations and a sympathetic Land Board, Bryson Kuwahara, who mined cinder from nine acres in the Conservation District without a permit, got off with a slap on the wrist, while Bishop Estate, his former landlord, escaped reprimand altogether for the violations that resulted from Kuwahara’s actions on the estate’s land in Puna.
In the mid-1980s, Kuwahara, owner and operator of Bryson’s Cinders Inc., leased Bishop Estate land at Pu’u Kaliu, which is in the limited subzone of the Conservation District. In 1987, Kuwahara had received a Conservation District Use Permit allowing him to take cinder from the Pu’u Kaliu cinder cone and, in 1990, the Land Board allowed him to expand his operation to a second site. That left Kuwahara able to take cinders from 30 acres.
Kuwahara ended his operations at Pu’u Kaliu several years ago, and in March 2002, Sanford’s Service Center, Bishop Estate’s new lessee, applied for a CDUP to resume cinder excavation. In reviewing Kuwahara’s old permit files, Office of Conservation and Coastal Land staff found that Kuwahara’s operation had strayed beyond the permitted boundaries. After questioning Bishop Estate last year, OCCL determined that that Kuwahara had excavated 155,135 cubic yards of cinder from two areas outside the permit area totaling about 9.23 acres. Kuwahara also had not submitted an archaeological reconnaissance report to the state Historic Preservation Division, which is a permit condition.
In its January 23 report to the Land Board, OCCL recommended that Kuwahara pay a fine of $8,000 ($2,000 each for unauthorized excavation and unauthorized grading and grubbing at two different sites), and an additional $2,000 for CDUP violations, and $1,000 in administrative costs. Staff also recommended that he be required to restore the mined areas. Although Bishop Estate was Kuwahara’s landlord and received a portion of his revenue from the sale of the illegally removed cinder, OCCL staff recommendations cited only Kuwahara.
At the Land Board’s January 23 meeting, at-large board member Johns questioned why Bishop wasn’t the one being penalized.
At its previous meeting, the board had fined a Kane’ohe couple $8,000 for Conservation District violations on their property committed by their bulldozer operator. Also, Damon Estate, which presented an update at the January 23 meeting on efforts to cure violations on its property, was fined hundreds of thousands of dollars last year because one of its contractors logged some of the estate’s land without a CDUP.
“In other enforcement actions, haven’t you gone after the landowner as well as the perpetrator?” Johns asked. (He also happens to be chief operating officer of Damon Estate, which reported it had spent a little more than $200,000 on fencing and other ungulate control by the time of the board meeting.)
Office of Conservation and Coastal Lands administrator Sam Lemmo answered that in this case, Kuwahara was the primary target because he had the permit to do the work. If Kuwahara doesn’t satisfy the board’s demands, he said, the staff will pursue Bishop Estate.
At the board meeting, Kuwahara took full responsibility for the violations, adding that they were unintentional and were done mainly for safety reasons. Continuous cutting of the cinder hill had made it unstable, he said, so he extended his operation out to flatter areas to avoid creating a rock-fall.
Kuwahara said that Bishop Estate has told him that if the Land Board fined it for his violations, the estate would go after him. “I didn’t want to go through the lawyers…with all the court costs… I’d be paying more money,” he told the board. To avoid those costs, Kuwahara offered to assume full responsibility and pay any fine that the board chose to levy.
“Each situation is different…and we tried to zero in on the source of the problem. In this case, we felt that Mr. Kuwahara was responsible… and he came forward in a voluntary manner to say, ‘I take responsibility for what I did,'” Lemmo explained.
But Johns continued to express his frustration in the lack of consistency between this approach and the board’s past practices. Shouldn’t the landowner be supervising the activities of its lessees? he asked. Should Bishop Estate escape any penalty at all, even when it profited from the sale of illegally harvested cinder? “I don’t see how this is different from what we did two weeks ago,” Johns said, referring to the Chandlers’ $8,000 fine.
When Lemmo failed to answer, Land Board chair Peter Young attempted to explain: “Part of this was a change to go after the responsible party. The intent is to go after those who actually do the violation.”
Given Kuwahara’s cooperation, Hawai’i board member Gerald DeMello and at-large member Toby Martyn wanted to know whether Lemmo would oppose letting Kuwahara spend the amount of the fine on restoration.
Lemmo objected to letting Kuwahara get off with no penalty over and above restoration costs. DeMello then proposed reducing Kuwahara’s fines, prompting an exasperated Johns to exclaim, “He’s not even asking us to reduce it!”
DeMello moved to cut the recommended fines in half, to $1,000 for each violation, give Kuwahara six months to revegetate the area, and allow him to use his existing restoration plan.
While he said he understood the position of Martyn and DeMello, Maui board member Ted Yamamura noted that he would prefer to stick with the staff’s recommended fines.
Martyn objected: “I’d prefer that the money go to restore the affected areas.”
Despite the disagreement, DeMello’s motion was unanimously approved.
In an interview, Young told Environment Hawai’i that the department’s departure from automatically pursuing landowners grew out of discussions he had with his staff.
“We just had some discussions at the staff level about what the past practice had been. We realized that sometimes the issue is not the landowner. Someone can enter a property and do something [illegal] and leave,” he said, adding, “It’s like when you speed in your car, and get a citation. You don’t fine the auto manufacturer, you fine the driver. We want to look at violations on a case-by-case basis rather than in a blanket, overall way.”
Given the confusion among board members brought about by this change in policy, OCCL’s Lemmo briefed the board at its February 13 meeting. He explained that “each situation is complex and different and we will make a decision on the appropriate party to pursue.” Lemmo said that while going after the landowner is more convenient and expeditious for DLNR staff, “Whether that’s right is another question, as Peter [Young] pointed out.”
Johns said the briefing had addressed his concerns. His confusion at the January meeting was due, he said, to the fact that the change in policy wasn’t discussed with the board before it was instituted.
Young explained to the board that some recent enforcement cases had led him to ask, “Why are we doing it that way?”
At last month’s briefing, Kaua’i board member Lynn McCrory, who along with O’ahu member Kathryn Inouye was absent at the January meeting, seemed more shocked by the board’s decision to halve Kuwahara’s fines than she was by the change in enforcement policy. A merciless proponent of imposing maximum penalties, she bemoaned the soft treatment of Kuwahara.
“Oh my gosh, what a precedent we set. We’ve gone in the other direction.”
If she wants to avoid incurring more fines, Chandi Heffner is going to have to work with the state Na Ala Hele program to set an alignment for the historic Ala Kahakai National Historic Trail across her North Kohala property and then open that trail to the public. And she only has a couple of months to do it.
Heffner did not attend the January 23 meeting where the Land Board approved her after-the-fact Conservation District Use Permit for improving a jeep road, cutting trees, and erosion control. Given her past efforts to block the public’s use of the land, it’s a safe bet that she’s chafing over the condition that requires designating a lateral public trail across the parcel.
In November 1999, the Land Board determined Heffner had improved a road and cut trees in the Conservation District without benefit of a permit. In addition to imposing a fine, it required her to submit an after-the-fact application for a permit to cover the improvements. By February 2003, she had failed to submit an acceptable application, and the Land Board then voted to fine her additional administrative costs and impose a condition that she be fined $2,000 a day from November 26, 1999 if she didn’t file a proper CDUA by July 1, 2003.
At the January 23 meeting, Heffner’s representatives tried their best to have the condition requiring the trail designation and public access deleted, since Heffner disputes the state’s claim to the trail.
A January 2000 report done for the state by abstractor D. Moana Rowland concludes that the trail is documented by native testimony in 1873. But Heffner’s attorney Bruce Lamon told the Land Board that there is no evidence that the trail is state property.
“We’re not trying to deny Hawaiian gathering, but public access is not okay,” he said.
Despite Lamon’s arguments, the board voted to approve the permit as staff recommended.
Lemmo told Environment Hawai’i that Heffner did not request a contested case, but instead submitted to his office a motion for reconsideration of the CDUP conditions, including the condition to work with Na Ala Hele to establish a public trail. Since Heffner did not request a contested case and the CDUP has already been approved, Lemmo said, “I’m not sure what they’re asking us to do.”
— Teresa Dawson
Volume 14, Number 9 March 2004
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