Board Talk

Film Office Seeks DLNR’s Help with Unauthorized Productions

Hawai`i film commissioner Donne Dawson begged the state Board of Land and Natural Resources for help with certain “misbehaving” productions.

“We need assistance in sending a strong, clear message that they cannot come to our community, do what they what, where they want, how they want and then actually evade [state enforcement] officers and evade boating officials and actually deny that they were conducting filming activity. It’s just completely unacceptable. We need your help in doing our job [by] enforcing and imposing the strongest fine allowable to do by law,” she told the board on January 24.

With regard to the fine, she was referring specifically to Volcom, Inc., which had been denied a filming permit but proceeded last August with filming professional skaters using a floating half-pipe ramp that had been towed offshore of Wai`anae.

The film office has no enforcement authority, but does have agreements with the Department of Land and Natural Resources and the Department of Transportation to help police filming on lands owned by the two departments. At the Land Board’s meeting, the DLNR’s Division of Boating and Ocean Recreation recommended fining Volcom $5,000 for conducting commercial activities out of the Wai`anae Small Boat Harbor without a permit from the agency.

DOBOR administrator Ed Underwood said Volcom representative Clint Moncata had agreed to pay the fine, but Dawson urged harsher punishment.

Volcom is a $600 million company and a $5,000 fine “amounts to not much more than a standard location fee for a film production. I don’t believe it’s going to act as a deterrent,” she said.

Moncata was apologetic, but said the production needed to go forward because there was a lot of equipment in place and people had come from out of town to film, Dawson continued. Moncata did not testify at the meeting.

She also said Volcom had filmed with the ramp at Ahu O Laka (also known as the Kane`ohe Bay sand bar). Although a DOBOR commercial use permit was not needed for that, “the fact of the matter is they needed a film permit,” she said.

The film office is struggling with several productions that have “been abusive of their filming situation that have refused to rectify the situation or the damage,” she said.

The History Channel’s American Jungle, a “reality show” based on Hawai`i island about rival hunting clans, is one problem show, Dawson noted. The DLNR launched an investigation last year into whether the show violated department rules and regulations, such as hunting at night, with spears, or in state forest reserves, among other things.

“The [DLNR] Division of Conservation and Resources Enforcement is alarmed by the hunting practices depicted in the American Jungleseries,” DOCARE chief Randy Awo said in a press release last November.

“We’re seeing if they’re going to come back. We’ve had some positive discussion with executives,” Dawson said.

The pilot for a “sister show” to American Jungle, called The Arc, was recently shot without permits at Pohoiki, also on the Big Island, she continued. That reality show was expected to start filming in January. Based on her discussions with the DOCARE, the vessel to be used on the show is “questionably seaworthy,” she said.

Another show using DOT lands that just wrapped filming nearly caused two accidents, she continued, “one involving myself.”

“That’s just the tip of the iceberg. We are struggling predominantly with the reality genre. They’re difficult to control,” she said.

Although the office has no enforcement powers, she said a bill introduced in the state Senate (SB 2079) could help. The bill would make reality, unscripted, and “soft-scripted” television ineligible for film production income tax credits.

Dawson also said the film office’s agreements with the DOT and DLNR could be amended to include stiffer language regarding enforcement.

With regard to Volcom, given Dawson’s concern that $5,000 was too small a fine, at-large board member David Goode asked, “what number would send a message?”

Hawai`i island board member Robert Pacheco noted that the law allows the board to impose a fine of up to $10,000 for a first offense. Pacheco and Maui board member Jimmy Gomes asked about the possibility of assessing administrative costs, as well.

“I hope we could [have them] replace the piers in Wai`anae harbor and call it even,” Underwood joked.

Gomes, however, was serious. “We should be very concerned,” he said. “If we could implement a max fine so it’s not just a slap on the wrist and come to the board with an X-number of admin fees, I think that’s a protocol we should follow.”

O`ahu board member Reed Kishinami then moved to increase the fine to $10,000 and asked DOBOR to include administrative costs in any future actions. His motion was unanimously approved.

DLNR Land Division administrator Russell Tsuji doesn’t want the state getting stuck footing the cost for removing an abandoned six-foot diameter pipe installed by Honolulu Seawater Air Conditioning, LLC. So on February 14, his division recommended that the Land Board amend the company’s perpetual easement to require the company to post a bond equal to the cost of removal of most of the pipe, about $4.5 million.

Years ago, when the Natural Energy Laboratory of Hawai`i Authority took over management of Keahole Point from a now-defunct state agency, a lot of money was spent removing large pipes that had been left loose on the ocean floor and were damaging coral, Tsuji said.

HSWAC grudgingly agreed to post the bond, so long as it could pay the amount over 25 years. For years one through ten, the company will pay about $45,000 a year. By years 21 through 25, it will be paying about $456,000 a year. The company’s easement requires it to maintain the pipe for the easement term, so the bond would be used only if the company somehow abandoned the pipe or was otherwise unable to fulfill its obligations.

Although the bond amount won’t cover complete removal, “that’s all they could afford,” Tsuji told the Land Board last month. He added that the company insists that the pipe, at least in the nearshore area, will not move around and damage marine resources.

“Truthfully, we’re not terribly pleased with it, but we have no choice. We need the easement,” company CEO Eric Masutomi said of the proposed amendment to add the performance bond.

He said he wasn’t worried that his pipes would come loose, like those at NELHA. “The engineering is quite sophisticated,” he said of his project. The pipe, once installed, will be an asset “worth a tremendous amount to another user,” he said.

Board members seemed unsure of whether the entire bond amount was necessary. But because the easement amendment would allow the Land Board to relieve the company from having to post the full amount, board members unanimously approved Tsuji’s recommendation.

“With great trepidation,” Sam Lemmo recommended on February 14 that the Land Board approve an after-the-fact Conservation District Use Permit for a seawall and stairs in Keonenui, Maui.

“We have an aversion to [shoreline] hardening,” Lemmo, administrator of the DLNR’s Office of Conservation and Coastal Lands, told the board. But in this case, the seawall and stairs owned by Henry and Diane Schweitzer are flanked by two other seawalls and the backshore is clay. In fact, most of the shoreline along Keonenui Beach has been replaced by seawalls, an OCCL report to the board states.

Removing the Schweitzer wall would serve no purpose, Lemmo said.

The 40-to-50-foot long wall was built in the 1980s and, according to the Schweitzers’ attorney, Paul Mancini, the Schweitzers thought their contractor had obtained all the necessary permits. Years later, they found out he had not.

In 2012, the Schweitzers paid the DLNR $6,000 in fines and administrative costs for violating Conservation District rules. They opted to seek a permit to keep the wall rather than remove it.

The Land Board approved Lemmo’s recommendation to grant the permit. The couple still needs to obtain an easement from the DLNR’s Land Division to cover the 500 or so square feet of state land that the wall and stairs occupy.

The fireworks display that Hilton Hawaiian Village has put on every Friday for the past 25 years is a kind of public service. That’s basically what the Land Board decided last month when it chose to exempt the hotel from a new right-of-entry fee it imposed last year on all aerial fireworks displays. For years, the fee was a nominal $50. But last June, the Land Board increased the fee to $550 in recognition of the fact that the public is excluded from safety buffer zones and staging areas during these displays.

On February 14, Land Division agent Kevin Moore told the board that given the 200,000 square foot safety zone imposed by the Hilton during its fireworks shows, the department, using standard commercial use rates, could charge $19,000 a day. However, the division has settled on $550 as a compromise, he said.

Last October, Hilton has asked that its Friday shows, which are put on solely for its guests and the public, be exempt from the fee increase. The Land Division recommended denial.

At the Land Board meeting, Hilton Hawaiian Village vice president Jerry Gibson provided several pictures of the crowds that gather on the beach to watch the hotel’s Friday show.

“The three thousand people on the beach await the first flare and applaud the last boom as one more successful Friday night has ended. Equally important, local businesses which serve both local customers and visitors have showcased the Hilton fireworks event as a benefit to their respective business operations,” he wrote in testimony to the board.

What’s more, each Friday, some 500 to 600 people from the military’s Hale Koa hotel “wait with anticipation to watch the show,” he wrote.

Not including the permit fee, Hilton spends $446,887 a year for the Friday fireworks, he wrote.

The Hilton agreed to pay the increased fee for those fireworks shows that outside parties pay to be put on. Gibson told the board that it does about eight to ten of those a year in addition to the Friday shows.

“We’re not asking for leeway on things we get revenue from,” Gibson said.

Rick Egged, president of the Waikiki Improvement Association, added that on a normal night, there are very few people on the beach.

Land Division agent Barry Cheung said over the years he had received only one complaint from a member of the public excluded from the beach for a fireworks show.

At-large board member Sam Gon, who had initially commented that the fee should have been $19,000, said he was swayed by the public testimony. He added, “My family has enjoyed this from their lanai.”

On February 14, the Land Board granted a 30-lease for 1,122 acres to two non-profit groups in Wai`anae – Ka`ala Farm, Inc., and Ho`omau Ke Ola.

Ka`ala Farm, which owns and leases two adjacent parcels, previously held a maintenance right-of-entry to the culturally rich property. Formerly part of the state Department of Agriculture’s Wai`anae Agricultural Park, the land was returned to the DLNR in 2012. The DOA had cancelled the lease of its previous tenant, who had reportedly let cattle roam wild.

The groups plan to use the property, once known as Wai`anae Valley Ranch, for a variety of educational, cultural, agricultural, and workforce development programs. Those programs include trail restoration, aquaponics, community gardening, organic farming, animal husbandry, and a therapeutic art center, according to a Land Division report to the board.

“Ho`omau Ke Ola is a residential and outpatient substance abuse treatment program that incorporates native Hawaiian culture into its curriculum. A large component of the program is reconnecting clients to the land through once a week work days at Ka`ala Farm. KFI and HKO will continue this partnership as they restore the lands of Wai`anae Valley Ranch,” states the 2012 application by Ka`ala Farm.

The DLNR Office of Conservation and Coastal Lands is finally close to resolving a six-year-old violation case involving the conversion of an old coffee mill at Pohoiki, Hawai`i, into a single family residence.

On January 24, the Land Board fined the homeowners, Lawrence and Ida Smith, $14,000 and assessed $1,000 in administrative costs. They were given six months to file an after-the-fact Conservation District Use Application for a downscaled home and a year to pay the fine.

The violation first came to the OCCL’s attention in 2008 via a complaint, but the agency did little more than correspond with the couple and its representative, Ken Fujiyama. But recently, “a new opportunity has arisen that requires them to resolve [the violation],” OCCL administrator Sam Lemmo told the Land Board at its meeting in January.

Hawai`i County plans to buy 26 acres at Pohoiki from the Smiths to add to its Isaac Hale beach park. But the Smiths cannot subdivide their 35-acre parcel – which would require a Conservation District Use Permit – without first resolving the outstanding Conservation District violation.

“This was the hammer,” said attorney Sue Lee Loy, who represents the Smiths.

Earlier this year, the Smiths offered to pay a fine of up to $15,000 and to file an after-the-fact CDUA for the mill conversion, which Lemmo said he thought was reasonable.

“As long as they pay the fine, we’d allow them to file [a CDUA] for a single family residence and the subdivision,” Lemmo said.

“Why did it take so long to be resolved?” Maui Land Board member Jimmy Gomes asked.

“It’s a good question. … There’s no excuse,” Lemmo replied. “A lot of times we have cases that are just hanging out there. We can’t get people to make moves.”

According to Hawai`i County property manager Ken Van Bergen, the county has been working toward acquiring the Smiths’ property since 2010 and was initially unaware of the Conservation District violation. He noted that the Smiths had also faced a county violation, but that had been resolved.

Although Lee Loy said the Smiths are eager to sell the property, they can’t pay the fine right now and would prefer that it be paid when the county’s purchase of the subdivided property closes. The county plans to pay $1.515 million for the property.

Van Bergen asked the Land Board whether it could grant a conditional approval of the subdivision right now, but Lemmo said he could not recommend such an approval.

“The rule is clear: we can’t process until the violation is resolved,” Lemmo said, adding, “What we’re asking for is a pittance for allowing the violation to persist for so long.”

Lemmo was also unsure whether subdivision could proceed without the fine having been paid.

The deputy attorney general advising the board that day said the board’s decision to find a violation and impose a fine was “not the forum to determine whether violations have been adequately cured. … If it becomes a hangup, deal with it later. You have a narrow issue before you.”

“What’s going to happen to all those frog legs?” joked Big Island Land Board member Robert Pacheco.

On January 24, the Land Board unanimously granted a one-year special activity permit to scientist Robert Kinzie to remove mosquito fish and bullfrogs from Hale`iwa’s Uko`a wetland using an electrofishing device.

Kinzie, of SWCA Environmental Consultants, is helping First Wind and landowner Kamehameha Schools manage the wetland as a habitat for the endangered Hawaiian hoary bat and endangered waterbirds.

Reducing the number of invasive predators will make more insects available to the bats and birds, and will also reduce predation of waterbird chicks by bullfrogs, a DLNR Division of Aquatic Resources report to the Land Board states.

The report also states no native fauna have been documented in the wetland in recent years.

According to DAR biologist Alton Miyasaka, electrofishing has not been used much in Hawai`i.

“If you want to do selective removals, we feel there’s a possibility it can be effective. We want to tag along with them to see if it’s something we can apply elsewhere,” he told the Land Board.

Kinzie testified that electrofishing is commonly used by fisheries biologists, but has not really been used for alien species control and “is something we’re trying to take a look at.”

First Wind operates a 69 megawatt wind farm on Kamehameha Schools land at Kawailoa on O`ahu’s North Shore.

Volume 24, Number 9 March 2014