Board Talk

Honda Magnate Bulldozes Kaua`i Bluff, Causing Mud to Blanket Pila`a Bay

Pila`a Bay on the wild and rugged North Shore of Kaua`i was known for its crystal clear water and abundance of limu. It was also a major source of sustenance for Richard and Amy Marvin’s family, who lived off the land and off the grid on a small kuleana parcel at the bay’s sandy shore.

The Marvins’ seemingly idyllic life has been turned into one in which they live in fear of being smothered by mud during the next heavy rain. The man they believe is responsible for this change is Honda magnate, James Pflueger. Pflueger Properties, of which James is a trustee, owns hundreds of acres surrounding the Marvins’ house and, according to the Marvins, has more than once hassled their family members when they would cross his land to get home.

But those hassles pale in comparison to the bulldozing that has occurred on Pfleuger property on a bluff overlooking the bay. The work has caused a stir among concerned residents, some of whom have monitored the devastation with cameras and video equipment. Video tapes show bulldozers pushing mud onto the beach, Amy Marvin says.

According to staff of the state Department of Land and Natural Resources, by November 2001, Pfleuger had cut a road up the bluff, leaving bare dirt exposed. DLNR staff have also reported Pfleuger dug up the beach to install a drainage pipe to pump runoff from the construction site into the sea. All of this was done without county, state or federal permits.

Late last November, it rained, and with nothing to hold the exposed earth in place, tons of mud spilled down the hill, surrounded the Marvins’ house, and fanned out onto the beach and into the sea. A couple of weeks later, Kaua`i County ordered Pfleuger to restore the land within the county’s coastal Special Management Area. In January, the issued its own notice of violation to Pflueger, finding that he had illegally graded, grubbed, cut and constructed a culvert in the Limited subzone of the Conservation District.

Last June, the state Department of Health joined the growing queue of agencies lined up against Pfleuger, finding violations of the federal Clean Water Act. It ordered the Pfleuger’s companies to take immediate, corrective measures to prevent such discharges from recurring.

This was the history that was presented to the state Board of Land and Natural Resources when it held a briefing on the work at Pila`a Bay August 9. Floored by the photos shown and testimony they heard, board members urged staff to work with the Department of Health, the U.S. Environmental Protection Agency, and Kaua`i County to develop stabilization plans as soon as possible.

Lemmo told the board that the EPA is weighing criminal charges against Pflueger. Meanwhile, on August 1, the Limu Coalition of Kaua`i and the Kilauea Neighborhood Association, represented by Earthjustice, sued Pflueger for violating the federal Clean Water Act, claiming that he has been in violation since he began his construction project in 1993, when he allegedly diverted Waiakalua and other streams in Pila`a.

As of the day of the Land Board briefing, Pflueger had erected silt fences and curtains to hold the barren dirt in place, something O`ahu Land Board member Kathryn Whang Inouye said “is not going to do anything” when the rainy season comes in a few months.

Pflueger has hired Belt Collins to design a plan to stop the erosion, although Lemmo said its initial plan doesn’t “have a lot of substance.”

“It’s like a child in a sandbox making an ecological disaster,” he said.

“This is going to call for an emergency remedial plan. We need to hire a civil engineer. This is much more severe than anything we’ve seen in the past,” Inouye said. “You have one rain, it’s all going to come down again.” She also expressed her frustration that the department had waited until July to bring the issue before the board. She noted that the DLNR’s order was issued in January and said that she had personally heard about it in June.

Amy Marvin told the board that work had continued since the DLNR’s cease and desist order. “Nobody’s watching them. Nobody’s taking the lead,” she said.

Kaua`i resident Bruce Place testified before the board, “This is not an isolated case. This is what’s happening on the north side of Kaua`i.” Ray Chuan of the Limu Coalition agreed. Moloa`a Bay, which around the corner from Pila`a, is worse, he told the board. “You’re going to have a Pila`a at Moloa`a,” he said.

Hope Kalai, a farmer in Moloa`a, said that there has been erosion from an unpermitted development of a road there. The bay is a turtle nesting habitat, she said. “Every time it rains, we cringe and pray for the Marvins. It’s also scary for the turtles, who don’t have a place to nest anymore.”

If the briefing the Division of Forestry and Wildlife gave to the Land Board on August 9 is any indication, efforts to come up with a community-molded, ahupua`a-based management plan for the natural resources at Pu`uwa`awa`a are progressing at a snail’s pace.

DOFAW administrator Mike Buck presented the Land Board with a draft management plan prepared by his staff. Buck said the plan was developed so the Pu`uwa`awa`a Advisory Council, which was selected by DLNR administrator Gil Agaran to provide community input on the management of the land, would have something to work off of. That’s basically the same thing he told the Land Board at a briefing he gave several months ago.

The council has met only three times, not often enough to come up with anything that could be incorporated into the management plan DOFAW and State Parks will eventually propose to be accepted by the Land Board.

Last November, the Land Board failed to approve a proposal by the non-profit Ka Ahahui o Pu`u Wa`awa`a a me Pu`u Anahulu to manage the former ranch area with money and resources contributed by private foundations and The Nature Conservancy, among others. At the same time, DOFAW Big Island staff opposed the lease, asserting that management of such a large, precious area should remain the kuleana of the state.

Implementing DOFAW’s plan, which Buck presented at the July briefing, will take $18 million dollars, he said, although a lot of that comes from personnel costs and could be reduced it volunteers take over some of that work.

Still, Land Board member Tim Johns said, “The state may never have money to do this type of plan. The attraction of other plans was that they had other people’s money.”

Kaua`i board member Lynn McCrory noticed that ecotourism, which was included in the non-profit’s plan, was not included in the state plan as a way to generate revenue. To this, Land Board chair Gilbert Coloma-Agaran said, “I don’t see how we’re going to keep the money without a special fund,” since money generated by state department usually goes directly into the state’s general fund.

Although it seems as yet that the state won’t have any money to bring its plan to life, McCrory and Inouye were pleased with the level of detail regarding expenditures for recovery actions.

A contested case dispute over a certified shoreline in the Kihei area of Maui was brought to the Land Board for final arguments on August 9. Kihei resident Diane Shepherd disputed a shoreline certification for a house lot at Kamaole Beach owned by Kokua Trust.

Like many other owners of coastal lots on Maui, Shepherd claimed, Kokua Trust was using irrigated vegetation to artificially extend seaward the buildable area of their land.

Under state law, the shoreline is defined by the reach of the high wash of the waves. Several approaches have been developed to determine where that line occurs, with the vegetation line being one of the most commonly used. Depending on the size of the lot, structures must be built at least 25 feet – in some cases 40 feet – landward of the shoreline. This often causes a reduction in the size of the building that can be constructed on a lot – thus giving lot owners incentive to move the shoreline seaward by artificial means.

In some cases, people have tried to achieve this by planting salt-tolerant vegetation – often the native shrub naupaka – and grow it out with irrigation. The law, however, requires that the vegetation defining the shoreline must be “naturally” rooted and growing.

In the Kamaole Beach case, attorney Isaac Hall, representing Shepherd, argued that the landowner had irrigated his naupaka so that it extended as much as 25 feet beyond a berm that Hall believed to be where the natural high wash of the waves was to be found. Pictures showing drip irrigation lines strung beneath the naupaka were presented during the contested case. Were it not for these lines, Hall argued, the naupaka would not be there.

Former deputy attorney general William Tam, representing Kokua, told the board that the irrigation was not intended to extend the vegetation artificially, but was rather installed in October 2000 to help restore a patch of naupaka that had been burned by a beach bonfire.

Land Board member Kathryn Whang Inouye asked Tam why the irrigation lines were still in place two years after the fire.

Tam responded by saying that even with irrigation, the naupaka could not survive if it extended into an area regularly hit by waves. He also noted that his client’s naupaka was “not a maverick situation” in that it corresponded with the line of naupaka that ran up and down the beach. This, he said, would seem to indicate that the natural runoff from the Kamaole residential area sustained the naupaka, regardless of deliberate irrigation.

The Land Board sided with Shepherd, voting to have the shoreline moved to the bottom of the sand berm that Hall had indicated lay beneath the naupaka. In an attempt to resolve the question about the effects of irrigation, the board also required that the drip irrigation lines be removed.

— Teresa Dawson

Volume 13, Number 3 September 2002