The fate of the state’s first Natural Area Reserve may be to cease being one.
“‘Ahihi-Kina’u has restricted park use written all over it,” said Dan Davidson at the Natural Area Reserve System Commission’s June 6 meeting. Davidson is deputy director of the state Department of Land and Natural Resources, which governs most state’s lands, including the NARs – the state’s “jewels” in terms of natural and cultural resources.
Davidson and his boss, Peter Young, have taken the lead in resolving use conflicts at the ‘Ahihi-Kina’u Natural Area Reserve on Maui. While the short-term solution is still being worked out, commercial use seems to feature prominently in long-term scenarios offered by a number of DLNR officials. Whether the NARS Commission will stomach such a proposition remains to be seen.
For more than a decade, kayak companies have taken small tour groups along the rugged south Maui coastline of the reserve, which contains anchialine pools and lava tubes. Over the years, use of the area has ballooned from a couple of small tour operators to nearly a dozen.
With limited parking, no restrooms, and no effective enforcement of state rules regarding commercial use, people, archaeological sites, and land and marine resources are in danger.
Illegal operations have gone on for so long that a commercial ban would undoubtedly be met with strong opposition, and would be nearly impossible, given the handful of DLNR enforcement officers for all of Maui County (which includes Moloka’i and Lana’i).
‘Ahihi-Kina’u sees an average of 750 visitors a day. Many are tourists on commercial kayak tours, none of which has a NARS special use permit. Public hiking and kayaking are allowed uses and do not need a permit. Motorized boats, however, are not allowed.
Recent attempts by the DLNR’s Division of Conservation and Resource Enforcement (DOCARE) to enforce NARS and DLNR rules within the reserve have been unsuccessful. Alleged violators have contested their citations, saying that they did not know that they were in the reserve, which extends 500 yards offshore. With DOCARE lacking a means of proving that the suspects were in fact operating within the reserve and were doing so knowingly, a Maui judge has thrown the cases out, adding that if any more such cases are brought, DOCARE will be found in contempt.
Should the DLNR crack down and risk incurring more lawsuits and possibly the wrath of annoyed judges?
The higher ups at the state Department of Land and Natural Resources have decided not to take that chance and have instructed enforcement officers to hold off on issuing citations at ‘Ahihi-Kina’u while DLNR director Young and deputy Davidson work on a win-win situation with the non-profit group Friends of Keone’o’io and the commercial kayak companies operating in the reserve.
Young and Davidson have aggressively attacked this problem, holding several meetings with interest groups on Maui. Although NARS manager Randy Kennedy has attended all of these meetings, the NARS Commission, which is tasked with dealing with issues affecting the NARS, had been left out of the loop.
Made up of 13 members that meet only a few times a year, the NARS Commission is not known for being fast on its feet. Consequently, Young and his staff took it upon themselves to work out what they say will be a short-term solution: voluntary code-of-conduct agreements until a long-term solution can be reached.
Because the approach is voluntary and interim, Commission approval is not needed. But when the time comes for a long-term answer, the NARS Commission has the power to deny permit applications.
A Free-for-All
In 1994, according to Cheryl Vann of the non-profit Friends of Keone’o’io, the owner of Makena stables was blocked one day from getting home by a kayak truck putting people in the water. Since then, things have only gotten worse. As publicity about area’s wild beauty increased, so has traffic, both human and vehicular.
According to NARS Commission Chair Annette Ka’ohelauli’i, the commission thought action should have been taken back in the late 1990s, when the Lu’uwai family was requesting a permit to do subsistence fishing at ‘Ahihi-Kina’u. “Instead of anything being done, because there was no money for signage, the situation was allowed to escalate until it is a crisis,” she wrote in an email to NARS executive secretary Besty Gagne.
Vann says it was “an absolute free-for-all, and you scratch your head and go, ‘This is protected land?’ ” She adds that Ed Lindsey, who represents many kupuna (elders) on Maui, has said he and others are “fully prepared to stage a demonstration blocking the road” through ‘Ahihi-Kina’u because the state is not taking care of the area.
In response to the increasing use of the area, the Friends of Keone’o’io began investigating human-spinner dolphin interactions at La Perouse Bay, immediately to the southeast of the reserve. Vann, who has been studying the area since the late 1990s and has been working with the state in addressing the area’s many problems, told the NARS Commission that the crisis “highlights the importance of financial and enforcement support to take care of NARS. It’s not a new problem… a precedent has been set, that this [breaking the law] is okay, [protections] are not enforced and we can do what we want.”
“Once Friends of Keone’o’io got involved, we almost immediately realized that with 80 archaeological sites, many different users, fishers, hikers, camping… this is an issue that goes way beyond spinner dolphins. In order to solve it, you need to involve a lot of different groups,” she said.
Kayak Hui Agreement
At the NARS Commission’s meeting, Vann presented a tentative list of measures that several kayak operators have agreed to adopt to help resolve the many problems at ‘Ahihi-Kina’u:
* Each operator is limited to 16 people a day, with a maximum of eight per guide, and no more than four kayaks to a guide. All guides must have current CPR and First Aid certifications.
* No launching after 8:30 a.m. and no tours on Sunday.
* No rental kayaks.
* No equipment, trailer or guest parking at ‘Ahihi or La Perouse Bay. All guests should park offsite and shuttle to the area, and operators have 30 minutes to load and unload their equipment.
* No solicitation, signage, distribution or display of promotional materials.
* Educate guests on safety, and how to treat dolphins, the reef and archaeological sites. Archaeological sites must not be disturbed.
* Haul out all trash and pick up trash lying around.
* Advise guests of last restroom stop at Makena (Big Beach).
* Carry liability insurance with a minimum aggregate of $1 million, naming DLNR, Division of Boating and Ocean Recreation as additional insured.
Another measure – to have operators pay a per-guest fee to support a full-time, on-site monitor and to help pay for port-a-potties – had been proposed, but not agreed to by the operators.
If or when that fee is ever instituted, the money will not go to the DLNR since it would only end up in the state general fund. “We’re looking to pay for the resource,” Young said at the NARS meeting, adding that the money would likely go to a non-profit, perhaps the Friends of Keone’o’io.
At the time of the meeting, Young said of the eight main kayak tour operators, six were going to sign the agreement. “It’s an agreement between themselves, it’s not a permit, but it’s trying to get them under control and doing things the same way,” Young said. The agreement is only an immediate response, he added, with the next step being the establishment of permit conditions “so they can address the long term, how we’re going to deal with the multi-jurisdictional issues here.”
Commercial Use Task Force
While Young, Vann, the commercial operators and others were developing this list, a NARS task force was also trying to address the mess at ‘Ahihi-Kina’u. The effort began last year, when a Big Island hiking tour operator sought a permit to take a couple of hikes through the Mauna Kea Ice Age NAR. Except for filming and photographing, this was the first permit request for commercial use ever entertained by the NARS Commission. Unsure how or whether to open any of the Natural Area Reserves to commercial use of this type, the commission created a commercial use task force to evaluate the possibility.
Over the past year, task force members have looked at each reserve to assess current and possible future levels of commercial activity. Some are so dangerous or inaccessible that commercial use is a non-issue. But others, like Ka’ena on O’ahu, Maui’s ‘Ahihi-Kina’u, and the Mauna Kea Ice Age and Manuka reserves on the Big Island, are easily accessible and are used by the public.
While NARS rules allow for commercial use with a permit, some commissioners oppose the notion. On May 5, after a recent task force meeting, commission Chair Ka’ohelauli’i emailed Gagne, “I spent some time last week asking hikers what they thought of commercial use in the NARS. While some thought it might be okay in some reserves, most felt that the NARS are special lands that were set aside for future generations, and that the NARS Commission should not allow anything to degrade the scientific and educational values of the reserves.”
Kaohelauli’i continued that, like previous NARS commissioners, she feels there should be a policy of no commercial use in the NARS. But if commercial photographers or documentary film producers are allowed, they should be charged $250 a day, which would go into the NARS special fund.
With regard to ‘Ahihi-Kina’u, Ka’ohelauli’i was bothered that the commercial users were breaking the law and getting away with it. “Every one of those kayak operators broke the law because they did not get special use permits. In my mind they are criminals….I will vote for ‘No Commercial Use’ in the Natural Area Reserves. If by some circumstance commercial use is allowed in ‘Ahihi-Kina’u, then it should be removed from the NARS. There must be consistency with a no commercial use policy in all of the NARS,” she wrote.
NARS Commissioner Patrick Conant raised an even more fundamental issue in a letter to Gagne: “One of the most important questions asked in the Special Use Permit Application for the use of a NAR is whether or not the activity can be accomplished outside the NAR. I have not yet heard reasons why kayak tours cannot be conducted in areas outside the ‘Ahihi-Kina’u NAR.”
Enforceablility
While the NARS Commission has primary jurisdiction over ‘Ahihi-Kina’u, there are a number of private residences in the NAR and a county road cuts through it to La Perouse Bay, where there is more private property as well as unencumbered state land. The Land Division, DOCARE, private property owners and Maui County all have a stake in what happens at ‘Ahihi-Kina’u.
Because there is no easy way to mark ‘Ahihi-Kina’u’s marine boundary, proving someone is knowingly and illegally operating within the NARS is difficult, Young said, and proving that the use is commercial may be even more so.
“If the money changed hands outside the NARS, is it a commercial operation, even if the kayak operators travel within the [NARS waters]? Again, it’s an enforcement challenge because it may not be clear. It’s not clear to us… The courts have made it clear our guys [DOCARE] may be held in contempt of court if they bring cases like that,” Young told the commission.
Deputy Attorney General Yvonne Izu continued that in the past, cases regarding illegal commercial activity were thrown out of court because the financial transactions didn’t occur on state land. Last November, the DLNR changed its rules, department-wide, to require permits from the Land Board for commercial uses on a variety of state lands regardless of where the transaction occurred.
Yet that regulation “hasn’t been tested in court yet,” Izu said, “so whether the court will say if somebody rents a kayak 10 miles away and then [uses it on state land]… we don’t know what the court is going to say.”
The new rules also haven’t been enforced at ‘Ahihi-Kina’u because the Land Division, which manages an area in La Perouse where most of the kayaks are launched, doesn’t yet have a commercial permitting process. While the NARS has an enforceable permitting process, the DLNR administration wants integrated management between agencies.
Izu said that if the NARS Commission decides to stop commercial use in its area, “it may not resolve anything because all they [commercial operators] will do is move their land-side activities to the Land [Division] side, stay within in an area difficult for [DOCARE] to say they were within the 500 meters, and they just conduct activities the way it is today.”
Izu added that it would be several months before the Land Division’s permitting system was completed.
Rewarding Scofflaws
The fact that enforcement of NARS rules is being held up to allow the Land Division to develop a permitting process grated on NARS Commissioner Mike Kido, one of the bloc opposed to commercial use in the NARS.
“I have a problem with all of this whole process… how commercial interests are driving it,” he said. What kind of limits on these permits was the department envisioning? he asked.
In Hanalei River on Kaua’i, scene of what is almost certainly the ugliest and most protracted battle between commercial users and the state, operations “started with five boats a day and turned into 500 boats a day,” Kido said. “And we know the more people you drive into this, it’s going to create an impact. So where do you limit it, and what’s the process that’s going to limit the number of permits?”
In Hanalei, community and stakeholder meetings led to a permitting process that allowed a handful of tour boats to keep operating on the river, while the rest were kicked out. That process was later undermined by former Governor Benjamin Cayetano who decided a couple of years ago that he wanted no commercial use of Hanalei River. When the Land Board approved actions supporting Cayetano’s wishes, some of the remaining boaters filed and won lawsuits against the state.
Perhaps hoping to avoid another Hanalei, the DLNR is taking a more commercial-friendly approach.
Like Ka’ohelauli’i, Marjorie Ziegler of KaHEA (the Hawaiian Environmental Alliance) says she would rather see ‘Ahihi-Kina’u taken out of the NARS than allow commercial use. She adds that the message the DLNR administration’s approach sends is that commercial users can take advantage of the state’s limited enforcement resources. They can illegally inundate an area to a point where things get out of control, then force the state to permit their actions.
To offer permits because they are easier to enforce than a flat prohibition, Ziegler says, is like saying that since people speed all the time and we can’t stop them, “Let’s give out permits to allow speeding.”
Ziegler told the commission she was also disturbed by Young’s statement that commercial use has no verifiable impact on marine resources, only the “suspicion of impact.”
Vann told the Commission that at the “Fish Bowl,” one of two popular snorkel spots along ‘Ahihi’s coast, Eric Brown, a researcher with the University of Hawai’i’s Hawai’i Institute of Marine Biology and its Coral Reef Assessment and Monitoring Program, has found a 13 percent decline in corals over the last three years. However, Vann says Brown needs at least five to 10 years of data to get anything of significance.
The area’s resources are beyond question worth protecting. Dave Gulko, a coral reef ecologist with DLNR’s Division of Aquatic Resources, said that a coral survey he did last February found high biodiversity in the reserve’s protected coves and rare coral in the area.
Young acknowledged that there are known impacts on some land-based resources, with people moving rocks at archaeological sites, for example. But as for commercial operators driving on a public road through the NAR, Young said, it is “hard to claim that that’s an impact.”
“They’re going to park and drop off people in a non-NARS area. So right now, there’s no impact to the NARS. Kayaks are going to enter the water and travel through the NARS marine portion, which we have no documentation to say there’s no impact. So right now we don’t know if there’s any impact on any part of the NARS right now,” except for where the kayaks exit.
At the exit area, Young said, “people, not commercial operators,” drag their kayaks across the lava, leaving behind little pieces of plastic. Young suggested that someone could devise a mobile launching and retrieving device, an aluminum thing that operators run their boats across.
The Burden of Monitoring
Mike Buck, administrator for the DLNR’s Division of Forestry and Wildlife, which houses the NARS, suggested that the commission facilitate the monitoring of biological factors to “hold the department’s feet to the fire” on its resource management hierarchy, where the resource comes first, then the public, and then commercial users.
But, Ziegler said, “the default is backwards.” The state shouldn’t have to prove that commercial users are having an impact in the NARS, she said; instead, commercial users should shoulder the burden of proving their lack of impact.
Patrick Conant raised the same point in his letter to Gagne: “It might be possible to show via monitoring that kayaks appear to have little impact on the ‘Ahihi-Kina’u NAR. However, I am obliged to ask why the NARS staff should be obligated to either do this monitoring or verify that it is done in a scientifically sound manner. Either way the NARS staff and commission are distracted from the mission of the protection of the resource. Not only might this distraction be a substantial investment of time, the driving reason for it is so that private vendors can profit from the use of a public resource that we have given the highest protection status possible.”
Despite Young’s insistence that what happens at ‘Ahihi-Kina’u should not reflect on the rest of the NARS, Ziegler said permitting commercial use at ‘Ahihi-Kina’u sets a precedent for the entire reserve system, since there are roads and trails through other NARs. But since enforcement seems nearly impossible, Ziegler said, “I don’t think we have leverage to do anything [and] I would rather see you take it out of the NARS than compromise the system.”
Commissioner Sheila Conant of the University of Hawai’i reminded the commission that most activities, not just commercial ones, require a permit; years ago, a native Hawaiian was denied permission to launch a boat from the NAR, she recalled. And when the Lu’uwai family wanted permission to fish there once a year, to pass on its cultural practices to future generations, it had to endure a long, hard process, before getting it.
In light of the hardships imposed on these native Hawaiians, the state’s backing off of enforcement at ‘Ahihi-Kina’u to work out something for commercial kayak operators might seem like a slap in the face. In his recommendations to Gagne, Commissioner Scott Derrickson of the state Office of Planning wrote, “Even though the Lu’uwai ‘ohana no longer have valid permits for gathering within the NARS, some effort to contact them and get their feelings would be appropriate.”
At one point during the commission’s meeting, deputy Davidson suggested that the commission set up a subcommittee to develop criteria for managing the resources while the Land Division processes its commercial activity rules. “Self-regulations may kick in for a while as this is going on, or not,” Davidson said. “The NARS Commission may never issue a permit… We’re inventing this as we go.”
The commission debated the issue for several hours at its meeting. And although the DLNR administration’s short-term plan can proceed without action by the NARS Commission, Sheila Conant felt the commission needed make a public statement that “we don’t have enough information to say what kind of enforcement there should be. In the meantime, we ask those operating to police themselves.” The motion was unanimously approved.
— Teresa Dawson
Volume 14, Number 1 July 2003
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