Board Talk

Kaua`i Stairs to Shore Are Allowed to Remain

Last year, Steven Cohen of New York built a stairway leading from his property in Kilauea, Kaua`i, across his neighbor’s property, down a rocky cliff, to Kaupea Beach, also known as Secret Beach. The stairway, which is 300-400 feet long and zigzags down the cliff face, rests on land in the Conservation District owned by Cohen’s neighbor, Kane Enterprises of Bartlesville, Oklahoma.

Cohen undertook this project without a Conservation District Use Permit and without informing Kane Enterprises of his work on their land. Despite this, the stairway will remain because the Department of Land and Natural Resources has decided that ripping it out would cause more harm than good.

Cohen has paid $2,000 in fines and $500 in administrative fees for his violations. And with Kane Enterprises’ blessing, Cohen applied for and on April 14 received from the Land Board an after-the-fact approval for his stairway.

Retaining the stairway would better control erosion that removing it, according to a Department of Land and Natural Resources staff report. In addition, “The stairs have minimal impact on the natural resources of the area Éand promotes public health, safety and welfare be affording safe access to a telephone should any emergency arise one the beach. However, it is clear that there will be no notification of the emergency telephone access; knowledge of the emergency telephone access will be only through word of mouth,” the staff report states.

“This has to stop. If you can’t stop it, who can stop it?” a quiet, passionate James Tanaka asked the Land Board. Tanaka, a Maui resident, spoke at the Land Board’s April 14 meeting on Maui and demanded that the board severely punish land developers who had ripped out trees and coral from state land on Maui without any permits. At the meeting, the developers faced several thousands of dollars in fines for their alleged violations.

“I’ve experienced many things like this. I’ve been in construction, I’ve been in business… all kinds of work in my younger years,” said the old man. “What I see here is the cleverness [of developers]. You make a ruling, you fence it, and they find a way to get under the fence. And then they say, `No, we didn’t know.’

“If you’re going to punish, punish them correctly. Don’t just give them a slap on the wrist and let them go. Punish them hard, so they understand, the law is the law,” Tanaka said.

The Land Board agreed and fined the developer, Olowalu Elua Associates (OEA), as much as the law permitted, and demanded that the company restore what it had ruined.

Over the last year and a half, OEA has worked to upgrade its property in Olowalu, Maui, which was former sugar land bought from Pioneer Mill. In the process, OEA committed four violations: It ripped out hau trees from he shoreline, it disturbed geological features, it dredged coral, and it poured concrete over Olowalu Wharf and on nearby state submerged land.

Hau is a culturally significant tree as it is used to change pH – the level of acidity — in taro patches, and for medicine, cordage, and canoes. The removal of a mature hau tree was felt by many to be a particularly heinous and sparked heartfelt testimony from several Maui residents, most of them native Hawaiian.

A March 23, 2000 letter from Don Hibbard, administrator of the state Historic Preservation Division to Ed Lindsey of Na Kupuna O Maui states that OEA destroyed one of two hau trees along the Olowalu coastline that, according to Lindsey and kupuna (elders) from the area, was at least 50 years old. The testimonies that Lindsey provided, Hibbard wrote, “confirm the fact that hau trees have played a significant role in the cultural history of Olowalu since traditional times.”

The violations occurred over a two-mile stretch. Jim Riley, a partner with OEA, confessed to grubbing land and removing hau trees. His company spent over a half a million dollars improving the land, he told the Land Board. The land is now open to use by hiker, biker, Boy Scouts, and numerous other groups. As a result of OEA’s work, the land is more accessible to people of Maui, he said.

Land Board Member Colbert Matsumoto asked Riley to address the violations.

“We do come forward and admit these violations took place. We’re not in any way trying to diminish the significance of these infractions or in any way try to skirt responsibility for them,” Riley said. He added that OEA was comfortable with the staff recommendations, which included a $2,000 fine for removing hau trees, a $2,000 fine for dredging submerged land, a $2,000 fine for dumping concrete on Olowalu Wharf, a $500 fine for disrupting geologic features, the removal of encroachments and cement spill, administrative fines for $805, and the planting and nurturing of new and old hau trees and other native plants.

“We admit we were wrong. We were trying to clean it up,” Riley told the Land Board. “The violations on the wharf, I cannot justify at all. A partner, a licensed physician, undertook that. He thought it was unsafe so he dumped concrete to connect the different concrete slabs. Coral of different sizes he thought was unsafe so he backhoed the coral out of the water. He smoothed it over so it’s usable.”

Once again, however, Riley tried to defend his actions. Because of the grubbing, which removed remnant sugarcane stalks and weeds, “We now have no problem with old cars and refrigerators being dumped because the land is visible from the highway,” he said.

Matsumoto was not swayed. “What projects have you done? Are you a developer? What kind of businesses are your partners in?” he asked Riley.

Riley responded that OEA included three professional developers and one physician.

“All of you are aware of the processes, permits, yet you went ahead [without following procedure],” Matsumoto said.

Lindsey testified, “The project manager admitted guilt, but said he was sorry, as he did not know the intent of the other partners. This is not their first project, and this will not be their last. Similar strategies have been used in one form or another, [they are] always looking for a way to test the system. These people know the codes and law and made a conscious choice of doing things their way.”

Chairman Tim Johns was frustrated that the Land Board was limited to fines of $2,000 per violation, mere “interest per day on what [OEA] paid for the property,” he said.

After an executive session, the Land Board found a way to possibly increase the fines beyond the $6,500 originally proposed by its staff. Maui board member William Kennison proposed that OEA completely restore the area within 90 days. Within the 90 days, they are to plant hau, remove concrete and prepare a complete restoration plan with the community group Na Kupuna O Maui, which will be the basis for a Conservation District Use Application. They are also to address the issue of cleaning the heiau (Hawaiian temple). After 90 days, if the cement is not removed, a fine of $2,000 per day would be applied.

At Matsumoto’s request, the coral dredging violation was not included in the fines, and would be addressed after further investigation .

“Based on testimony provided, the violator is not able to respond to violations. The doctor [who dredged the coral] is not here. We should have opportunity to question him, then determine an appropriate fine. The construction of the wharf is one violation. The disposal of cement onto the shoreline is a separate violation. And if he dredged coral from submerged lands on multiple occasions, each instance represents a separate violation.”

The Land Board voted unanimously in favor of the motion.

“As a developer, I’m embarrassed by the actions of this developer,” board member Kathryn Whang Inouye said.

Zond Pacific, Inc. will build a 20-megawatt wind farm on state-owned land in Kaheawa Pastures at Ukumehame, Maui. At the Land Board’s April 14 meeting in Maui, the project received overwhelming support from the members of the public who testified.

Land Board member Colbert Matsumoto pressed Zond’s representative Keith Avery to explain Zond’s efforts to mitigate the visual impacts of the 27 mills that stretch four miles down a mountainside from McGregor Point. At its March 24 meeting, the Land Board voted to defer voting on the Conservation District Use Application until its meeting in Maui, so that the county and the public could voice their positions on the visual impacts and other aspects of the project. At the March meeting, only the applicant, Zond Pacific, Inc., was present to testify on the matter.

Avery said that his research showed that white was the preferred color for windmills around the world. He added that the mills would be most visible from Kihei, and even then, they would be six miles away. Public testifiers, including Henry Curtis of Life of the Land and several Maui residents, stated that the visible impact would not be a problem. In fact, many testified that they would rather look at windmills than at an oil-guzzling power plant with smoke spewing from its stacks.

A repair job done in haste on a wall in Kona has resulted in more than a decade of corrective work by state and county agencies. In addition, the wall will now require the periodic application of a stain, which may require monitoring by the state’s Division of Aquatic Resources or the Department of Health to monitor its environmental effects.

In July 1988, Hicks Construction, a contractor hired by the Blue Chip Corporation (BCC), repaired the old, surf-ravaged sea wall fronting the BCC’s property at Keauhou Bay along the Kona Coast of Hawai`i by spraying it with a light gray gunnite slurry. Gunnite is a concrete mixture that is often used to create rock-like formations in waterfalls and caves. The gunnite coated the old wall, but also slid down and hardened on the adjacent state-owned shoreline that lay in the Conservation District.

This amounted to an unauthorized use of Conservation District land – a violation of state law — and an unpermitted action in the coastal Special Management Area, which violates county laws. The County of Hawai`i and state the Department of Land and Natural Resources sent a notice of violation to BCC that July. Blue Chip Corporation was assessed and paid a $500 fine and $1050 in administrative costs. BCC later applied for a Conservation District Use Permit and an easement for the affected lands. At the Land Board’s March 24 meeting, the CDUA was approved.

The CDUA will allow BCC to cure the visual scar that the gunnite caused along the wall. The gunnite covers about 3,841 square feet and it is a noticeable scar on the landscape, which is made up of black rock outcroppings and loose boulders.

BCC plans to stain the gunnite with a black Schoefield Lithochrome Chemical Stain, then seal the stain with two coats of cement sealant.

“A diversity and abundance of fish exists in the near-shore area. Green sea turtles, a protected species, are known to visit the area. Urchins, sea cucumbers and shellfish also inhabit the coastal environment,” states a DLNR staff report. To minimize possible harmful effects on marine life, a DLNR staff report states that the staining will be done during calm seas and low tides, plastic sheeting will be used as a boundary between the staining area and the marine environment, and all shellfish will be removed from the area before work begins. Removal of the entire wall and removing the gunnite from the wall were also proposed, but were rejected because they were thought to be more disruptive to the environment.

Ducks Unlimited, Inc will receive $260,000 from the state Department of Land and Natural Resources for consulting on Phase 1 of the restoration of Puohala Marsh in Pearl Harbor. The marsh is home to several endangered waterfowl and migratory birds — including koloa (Hawaiian duck), nene, the Hawaiian Moorhen, and Laysan duck — yet has been used as a dumping ground.

The project calls for the restoration of nearly 70 acres of wetland in Pearl Harbor’s West Loch. Phase 1 of the project includes clearing vegetation, sculpting basins, and removing obstructions and trash from 20 acres of existing wetlands, and the fencing of the entire 70-acre area. The $260,000 DLNR will administer to Ducks Unlimited for Phase 1 was provided by a federal grant.

— Teresa Dawson

Volume 10, Number 12 June 2000