Board Talk

Land Board Hears Final Arguments In Wa`ahila Ridge Contested Case

“Beauty is the splendor of the truth.”

With this unusual opening, Benjamin Kudo launched into his final presentation before the Land Board in the contested case hearing on Hawaiian Electric Company’s planned 138,000-volt transmission line to connect its Kamoku and Pukele substations in Honolulu.

Kudo, representing Hawaiian Electric Company, or HECO, was the first to give closing arguments on April 11 at the contested case hearing held in the state capitol auditorium.

Kudo’s oblique opening was apparently intended to suggest that the utility’s proposal to march huge towers up and across one of the sides of Manoa Valley, might be unsightly superficially, but was possessed of an inner beauty.

Whatever Kudo’s truth was, representatives of the parties challenging HECO’s plans had far different ideas. In order of appearance, they were attorney Guy archer for the Outdoor Circle; Henry Curtis of Life of the Land, an environmental activist group specializing in energy issues; and attorney Corey Park for Malama O Manoa. All hoped to sway the Land Board in its eventual decision on whether to grant HECO a Conservation District Use Permit for the project. á

– Park presented slides illustrating the stunning difference between current views of the mountain and simulations of the ridge post-construction. Kudo countered later that those simulations had magnified the project’s visual impact four times so that it would be visible. á
-Kudo told the Land Board that it should not discount the fact that the Public Utilities Commission, which he said was the appropriate agency to determine the project’s need, found that the project had a public benefit. Later, Land Board member Kathryn Whang Inouye’s questions to HECO representatives revealed that the PUC had not yet evaluated or made any determination on the proposed line. á

-Arguments over the definition of “need” versus “public benefit” were a large part of the discussion, with Kudo saying HECO only had to prove that the project had a public benefit, not that it was needed. The issue of “need” is the PUC’s kuleana (responsibility), he said, and if HECO had known it would have to prove “need,” to the Land Board, it would have presented a more thorough case. Curtis later argued that “public benefit” (which the Land Board must determine) and “reasonable or in the public interest” or “useful/used” (terms used by the PUC) are merely technical jargon for “need,” which he said is a generic lay term. Either way, his discussed several reasons why the project is not needed, one of them being that distributed generation, i.e., solar installations on rooftops and generators in the basements of Honolulu buildings, could be used instead.

Arguments about need stemmed directly from recommendations to the Land Board made by the hearing officer appointed to hear the case, retired Circuit Court Judge E. John McConnell.

Roughly a third of the power line would traverse the Conservation District, thus triggering the need for a Conservation District permit. HECO applied for the permit in November 1996. The DLNR accepted the company’s final environmental impact statement in November 2000, and held a public hearing on the CDUA on March 22, 2001. Malama O Manoa, Life of the Land, and The Outdoor Circle requested a contested case hearing and the Land Board chair later selected McConnell to conduct the hearings and provide a recommendation to the Land Board.

Seven days of hearings were held last November, and in February, McConnell issued a recommendation that the Land Board deny HECO’s application for the project.

In closing arguments, Kudo tried to pick apart McConnell’s conclusions, especially those dealing with the public trust doctrine and the issue of whether the project was necessary.

Under the public trust doctrine, McConnell states, “HECO has the burden of demonstrating the absence of practicable alternatives to the project.” He added that since live line maintenance and running the line underground through Palolo were practicable alternatives, “HECO has not met its burden under the Public Trust Doctrine.”

The public trust doctrine, which offers protection to natural resources, was used successfully by Waiahole taro farmers to win the return of diverted waters into windward O`ahu streams. Kudo noted that the doctrine is a water use doctrine and does not apply to land issues. This ran counter to HECO’s argument during the contested case that called for the doctrine to be considered as part of the overall evaluation of public benefit.

Kudo told the Land Board that if it chose to apply the public trust doctrine to the Wa`ahila project, the doctrine calls for the weighing and balancing of different uses of the natural resources being affected.

McConnell wrote in his decision that the Land Board has a jurisdiction and obligation to weigh the project’s public benefit against adverse impacts.

On the benefit side, HECO argued that the line would improve service to 54 percent of its users, allow for operational flexibility, and serve as a backup line in case of a power outage.

McConnell refuted HECO’s arguments that a backup line was needed, stating that upgrades have made the current system more reliable, and the proposed line is “less justified now than it was in 1986.” In addition, he concluded that HECO had not met its burden of proof that the project’s public benefit outweighed its adverse impacts (mostly damage to scenic resources).

* * *
An Interim Plan For Pu`uwa`awa`a

Last year, the state Board of Land and Natural Resources rejected proposals from two groups competing for the opportunity to manage thousands of acres at Pu`uwa`awa`a on the Big Island, despite the fact that one of those groups, Ka `Ahahui O Pu`uwa`awa`a, had received sizable grants to apply an ahupua`a-wide management plan.

Instead, the Land Board this year decided to let its own agencies – the Division of Forestry and Wildlife and the Division of State Parks – do the job, with the hope that Ka `Ahahui would contribute its money and expertise to the cause. Upon hearing of the BLNR’s actions, one of the foundations that had committed money to Ka `Ahahui rescinded its offer. But at an April 12 briefing before the Land Board, DOFAW administrator Mike Buck expressed hope that adequate funds could still be raised.

DOFAW and State Parks have until August to convene an ahupua`a advisory council and draft a management plan for the ravaged lands at Pu`uwa`awa`a. Twenty applications have been received and will be sent to the BLNR chair for selection. In the meantime, DOFAW has undertaken interim management measures, which Buck described to the board at a briefing last month.

To give the council something to work on once it’s formed, DOFAW is already drafting the plan, which, as Buck told the board, will “play to our strengths, which are natural resource oriented.” He added, “We’re definitely going to try to get people on the council to help us with the financial, business aspects.”

Buck noted that DOFAW’s capital improvement project requests had not been included in the House or Senate budgets. “It’s going to make it a lot harder to get some of the matching funds to help us start planning for the habitat conservation plan.”

He said spirits were high among his Big Island staff, but added that having people on the ahupua`a advisory council with connections to “outside, private sources” of funding is going to be critical to the plan’s success.

BLNR chair Gilbert Coloma Agaran asked Buck how he was going do deal with the fact that DOFAW’s CIP requests were not met.

“You know, we could go ask again, go get some grants. We’re gonna have to raise some moneyÉhopefully some of the members of the advisory committee will be willing to fund raise.” He added that six or seven houses on the property might be used to generate revenue via ecotourism. (For more, see editor’s column.)

Agaran asked Buck about the loss of some of Ka `Ahahui’s money they were hoping to get. Buck said, “I think a lot of people are going to see how everything shakes out. If it is still kind of an ahupua`a approach then maybeÉwe could reinvigorate that. But I think for sure we probably took a half a step back.”

DOFAW’s interim management plan addresses:

Fire Control: The state emergency environmental workforce has cleared a 1-mile-long section of fountain grass along Highway 190 (Mamalahoa Highway). The group has also removed fountain grass at Kipuka Owewe and in the 600-acre lama forest near the Kaupulehu lava flow.

The North Kona Fuels Group, made up of DOFAW, U.S. Fish and Wildlife Service, U.S. Forest Service, Natural Resources Conservation Service, Hawai`i County Fire Department, the U.S. Army, and representatives from ranching and hunting communities, also removed fountain grass in Kipuka Oweowe.

Money from the Land Division and DOFAW will be used to construct a 3.2-mile fence below Highway 190. The fence, which had been completed by May 1, will allow cattle to graze the makai portion of Pu`uwa`awa`a, “thereby breaking the wildfire cycle in this area.”

DOFAW’s plan also calls for BLNR support for funding requests before the Legislature to continue emergency environmental workforce’s efforts. Grass will continue to be removed in Kipuka Oweowe.

Seed propagation and collection: Most of DOFAW’s outplanting of natives has been focused in eight enclosed areas in Pu`uwa`awa`a. Two-hundred fifty-five individual plants representing 13 rare or endangered species have been planted so far this year.

Between now and August, DOFAW intends to plant between 283 and 358 more individuals of endangered species and more than 100 other native plants. Rare plants surveys will continue. Those endangered plants that have been mapped with a Global Positioning System will be tracked and seeds will be collected for nursery propagation. DOFAW has secured $30,000 and fencing materials to build a fence in the Waihou paddock that will protect 200 acres of degraded forest that contains several endangered trees.

Game mammals: DOFAW’s report states that it will increase hunting pressure on game mammals in selected areas, and the boundary fences in the Pu`uwa`awa`a Forest Bird Sanctuary will be repaired to keep ungulates out. Peter Sweetapple, a wildlife ecologist with Manaaki Whenua Landcare Research of New Zealand, will be collecting data from Pu`uwa`awa`a to develop a way of monitoring feral ungulate densities and impacts.

Other efforts under the interim plan include getting cattle to graze near highway 190 to control fountain grass, and to solicit bids to replace a reservoir liner at Pu`uwa`awa`a. Right now they are losing water. Buck noted that DOFAW does not have money yet to fix the reservoir.

Marjorie Ziegler, resource analyst with the non-profit environmental law firm Earthjustice, was not impressed with certain aspects of the interim plan. “It looks like the game mammals are still roaming around, pretty much wherever they want except where there are some fences,” she said. “At Pu`uwa`awa`a there should be no bag limits, open hunting, seven days a week.”

A DOFAW summary of hunting effort given to the Land Board disclosed that in 2,766 trips, hunters took 608 game mammals from Pu`uwa`awa`a between July 2000 and June 2001. Of those, 365 were sheep, 204 were pigs, and 39 were goats.

“At Pu`uwa`awa`a there should be no bag limits, open hunting, seven days a week.” – Marjorie Ziegler, Earthjustice

* * *
Commission Approves Tours Near Adze Quarry

At its meeting in April, the Natural Area Reserves Commission approved a request by a hiking tour operator to use a trail that runs through the Mauna Kea Ice Age Natural Area Reserve. It was the first commercial use the commission has ever allowed in a Natural Area Reserve.

Commission members Pat Conant of the state Department of Agriculture and Mike Kido of the University of Hawai`i opposed the measure on the ground that it might set a precedent, making it difficult to deny future requests for commercial activities in NARS. And as NAR commissioner and eco-tour operator Annette Ka`ohelauili`i told the commission, pressure from the tourism industry to enter the various reserves in the state’s Natural Area Reserve system will only increase.

Arnott’s Lodge & Hiking Adventures provides hikes up Mauna Loa to members of Japanese hiking clubs. Before taking them up Mauna Loa, the company leads them on a practice run up Mauna Kea to allow them to acclimate. Doug Arnott, the company’s owner, requested permission from the NARS Commission to use an existing trail that runs from the Visitor Center to an area near the Caltech Telescope.

“The trail at this point was a part of the original Jeep road and is broad and well worn, the guests will be kept on the trail and there will be NO impact on any resource,” Arnott wrote to the DLNR.

Arnott argued that the public is allowed free access to the Ice Age NAR — the site of an ancient Hawaiian adze quarry and Lake Waiau – and has trashed it, leaving empty bottles, diapers, and the like. During a cleanup he conducted with volunteers, he told the commission they hauled away three vans full of garbage.

To keep the quarry area clean, Arnott offered to “adopt” the area, much like civic groups adopt a stretch of highway. While Conant and Kido were adamantly against the exchange, the rest of the commission decided it was worth a try and approved Arnott’s request to take two hiking trips through the NAR this year on the condition that it was a pilot project, the results of which would be used in determining whether the commission would allow future commercial use in other reserves.

* * *
Goldstein, No, Demello, Si!

In response to outcry from the environmental community, Governor Cayetano has withdrawn the nomination of Virginia Goldstein to replace Fred Holschuh as the Big Island member of the Land Board. Although now retired, Goldstein was criticized for controversial development projects (Hokuli`a, in particular) she approved while she was county planning director under former Mayor Steve Yamashiro.

The governor has since nominated Gerald DeMello, director of University Relations at the University of Hawai`i-Hilo and a former sociology professor. DeMello is also a member of the Hawai`i Island, Portuguese, and Japanese Chambers of Commerce.

— Teresa Dawson

Volume 12, Number 11 May 2002