“The reality is, Pu`uwa`awa`a is the last remnant of a unique system chewed to death by cattle,” Hilo attorney Christopher Yuen told the state Board of Land and Natural Resources.
“The state has transformed the richest, most diverse forest into an area of a few remnant individuals. In return, the state has been paid $33,000 a year in lease rent and the ranch employs three individuals.”
Yuen, himself a former member of the Land Board, was imploring his former colleagues not to approve the plan prepared by its staff for managing the lease of 21,000 acres of former dryland forest on the leeward side of the Big Island.
The pasture lease in place since 1960 “should be allowed to die its natural death,” he continued. “The state should make a commitment not to do business as usual. If one looks at the past history – not just at Pu`uwa`awa`a but more generally, there is inertia, momentum, and convenience. There is inertia to extend this lease.”
Yuen’s arguments were to no avail. On July 14, at a meeting held on Maui, the board approved the staff plan, which calls for assigning the lease for a one-year “holdover” term to the three ranchers who have been running operations at Pu`uwa`awa`a for the last five or so years.
Yet the board’s action is a stop-gap measure. Each year, ranching becomes less and less productive at the same time that the area’s natural resources become more and more threatened. Since 1998, conservationists have proposed to the Department of Land and Natural Resources a series of alternative management regimes designed to protect what remains of the area’s unique natural resources and restore it, to the extent possible, to ecological health. So far, the Department of Land and Natural Resources has stalwartly resisted any change to the status quo.
A Century of Losses
Perhaps no lease in the history of the state and territory of Hawai`i has been more controversial than that of Pu`uwa`awa`a land. Most of the ahupua`a, down to Kiholo Bay, is owned by the state. Except for a small area along the coast, almost all of it was at one time or another a part of Pu`uwa`awa`a Ranch, which was started by Eben Low and Robert Hind in 1893 as a sheep ranch, with wool as the intended end product. When the wool turned out to have too many burrs to be marketable, the sheep were turned loose. Herds of wild sheep continue to roam the land and are highly prized by hunters.
In 1960, when the lease was sold at auction, a partnership that included the Dillinghams and Carlsmiths purchased the lease. Pu`uwa`awa`a Ranch was one of three owned by the group. In times of drought or when the pastures were stressed at Pu`uwa`awa`a, the cattle would be trucked to Kona or Honomalino, in South Kona. In 1972, they transferred the lease plus their fee-simple lands (including lands where, in later years, the Pu`u Lani subdivision was built at Pu`uanahulu) to F. Newell Bohnett. Without the release valves available to the Dillinghams, grazing pressure at Pu`uwa`awa`a increased, even with cuts in the herd.
Other actions of Bohnett – clearing koa from forested areas of the ranch, building a road up the face of a pali (cliff), allowing parts of the ranch to be used as a dump for the Pu`u Lani subdivision he developed, putting in unpermitted improvements (a party house, guest lodge, and airstrip) that were only marginally related to the agricultural purposes of the lease – have brought embarrassment to the Department of Land and Natural Resources. In 1984, when many of the lease violations were first brought to the attention of the Land Board, it decided to withdraw substantial portions of the land from Bohnett’s lease. Seven years later, when Environment Hawai`i examined the lease records, it turned out that most of the decisions made by the board in 1984 – including the redrawing of lease boundaries to remove about 85,000 acres from the original 106,000 — had not been carried out by staff.
Another round of investigations ensued. The formal withdrawal of lands occurred within two months of publication of the Environment Hawai`i article in March 1991. In subsequent years, Bohnett obtained necessary approvals for the airstrip and worked with the state Department of Health to clean up dumps he had allowed to be created on state-owned leased land.
A New Era?
In July 1998, Rex Johnson, executive director of The Nature Conservancy of Hawai`i, wrote then-Land Board Chairman Michael D. Wilson requesting “a directly negotiated lease” for Pu`uwa`awa`a, to begin after the lease to Bohnett expired. “The lands will be used by TNC for pastoral and reforestation purposes and for environmental preservation and education.”
“It is the intent of TNC,” Johnson said, “to maintain a ranching operation and concurrently conduct reforestation efforts with the purpose of developing scientific and practical experience necessary to balance livestock grazing with preservation and regrowth of native ecosystems.” In preliminary planning documents submitted by the conservancy, several types of revenue-generating activities – apart from ongoing cattle grazing — were proposed, including hikes, horseback rides, bird-watching, “dude-ranch” activities, and, along the coast, snorkeling, kayaking, and beach excursions. (The planning document extended across the entire ahupua`a and not just the portion leased by Pu`uwa`awa`a ranch.) Some preliminary spread-sheets showed how these operations might produce enough income to pay for the intensive conservation management that was the chief objective of the proposal.
The Nature Conservancy’s bid was the outcome of informal negotiations that had been going on for a couple of years, with the support and encouragement of Yuen, at the time the Big Island member of the Land Board, and then-Land Board chair Wilson. Other groups representing the Pu`uwa`awa`a and neighboring Pu`uanahulu communities took part in the discussions as well.
The head of the DLNR’s Land Division, Uchida, was not as enthusiastic. Since at least 1993, Uchida and his staff had been kicking around a competing proposal that would maintain the status quo. This took the form of a request by Bohnett that he be allowed to assign the lease to Kato and the two DeLuzes, who constituted the entire work force of the ranch. In October 1996, Bohnett turned the entire lease over to the three men in a document signed by all parties but never approved by the Land Board. Since then, Kato and the DeLuzes have been running the ranch, although Bohnett remained the lessee of record.
In 1997, discussion began in earnest over a formal transfer of the lease to its de facto owners. A major obstacle was some $77,000 that Bohnett still owed in back rent from the early 1980s. Under terms worked out with previous Land Board chair Susumu Ono, Bohnett was allowed to pay off about $300,000 in back rent owed from 1980 to 1985 in semi-annual installments that ended in February 2000. In May 1997, Robert Garcia, attorney for Kato and the two DeLuzes, conveyed to the DLNR’s Land Division a proposal that his clients had worked out with Bohnett: Bohnett would agree to allow his performance bond to be used to pay off $60,000 of the debt, while Garcia’s clients would agree to pay the remaining $17,466.44 owed on the installment payments.
In August 1997, a modification of this proposal was brought before the Land Board, with Bohnett now having consented to pay off the full amount outstanding on the “Special Installment Payment” agreement before the transfer occurred. The board never heard this proposal: it was withdrawn from the agenda at the request of Yuen, who by then was pushing to see Pu`uwa`awa`a managed for conservation instead of pasture.
Within a year, the Nature Conservancy’s proposal had come in. To effectuate the transfer of management to TNCH, Uchida proposed that the entire area of 107,000 acres included in the original Pu`uwa`awa`a Ranch lease be set aside to DOFAW. The set-aside was placed on a board agenda in September 1998; it, too, was withdrawn most likely as a result of political pressure from the administration of Governor Benjamin Cayetano, whose aides may have felt that this set-aside would work against hunters. Nonetheless, DLNR staff from DOFAW and the Land Division, along with Big Island board member Russell Kokubun, continued to work with the ranchers, the community, and hunting representatives in an effort to work out some agreement for the future of the ahupua`a.
By the end of 1999, the Nature Conservancy of Hawai`i had backed out of the negotiations. Its involvement had drawn fire from hunters, legislators, and others who were fiercely protective of hunter rights, which they felt would be diminished by the conservancy’s management. In its place emerged a new group, Ka `Ahahui `o Pu`uwa`awa`a, which was formed by many of the same individuals who had worked closely with the conservancy in developing plans for the area. Ka `Ahahui directors include Chris Yuen, Hannah Springer (trustee of the Office of Hawaiian Affairs and a lifelong resident of the area), community leaders Sally Rice, Heather Cole, and Debralee Kailiwai, Stanford University professor Peter Vitousek and his brother, attorney Randy Vitousek of Waimea, and Kohala rancher Monty Richards. Working closely with Ka `Ahahui is another community group called Hui Ohana mai Pu`u Anahulu a me Pu`u Wa`awa`a, whose 200 members belong to families who can trace their residence in the area back to 1860 or earlier.
Back to Square One
The community groups’ ability to manage the ahupua`a was viewed skeptically by the Land Division. Harry Yada, head of the Land Division’s office on the island of Hawai`i, drafted a “discussion paper” that set down many of the concerns raised by Uchida, Yada’s Honolulu boss, and Charlene Unoki, Yada’s predecessor in the Hilo office.
“Although the proposal may be politically attractive and conceptually feasible,” Yada wrote, “there are numerous real concerns that must be addressed.” Among them were:
Preparation of an environmental assessment or environmental impact statement. Earlier, Gary Gill, at the time the director of the state Office of Environmental Quality Control (OEQC), had stated that a lease could be issued to the Nature Conservancy without an EA or EIS, but that one would have to be prepared before there was any change in use. In a memo to Wilson dated October 15, 1998, Gill described a two-step process that could allow assignment of the lease before preparation of any environmental documentation. “We believe that DLNR would be acting within the letter and the spirit of the law to award the Pu`uwa`awa`a lease conditioned upon the future preparation of an EA,” he wrote, attaching to his memo a 1980 opinion from the attorney general’s office addressing this issue.
Yada apparently did not see this memo in the files. In his discussion paper – much of which is repeated in the staff report he submitted to the Land Board in July — he wrote: “Although there was previous reference to a claim that the former director of the OEQC indicating [sic] no need for such compliance, it is my understanding that he has denied this claim.” When Yada prepared the staff submittal for Land Board consideration in July, he bolstered his claim as to the need of an EA or EIS by stating that Kapapala Ranch, which, like Pu`uwa`awa`a, is on state-owned land, had to prepare an environmental assessment before it could launch its eco-tourism activities.
On this point, Yada was mistaken. According to the OEQC, no environmental assessment was ever submitted for such a purpose. Yada later admitted that he was in error; Kapapala Ranch had prepared an EA, he said, and he had reviewed it, but his predecessor Unoki had determined that the activities were exempt from any need for an EA since there were no new facilities proposed to support the activities. (Actually, two new cabins were proposed to be built.)
Some proposed activities may not be allowed under the current state land use designation and county zoning. Yet, as Yada himself immediately added, “Kapapala Ranch was required to get a special permit from the Land Use Commission (LUC) and the county Planning Commission for its ecotourism activities” – so, presumably, this objection could be overcome for Pu`uwa`awa`a as well. (On October 22, 1998, the LUC approved Kapapala’s proposed camping activities as an “unusual and reasonable” land use within the state Agricultural District.)
The inexperience of Ka `Ahahui. “The credentials, experience, qualifications, financial resources and long-term stability of the organization would be critical in the evaluation of a lease,” Yada wrote. “The risks of fire and damage to resources is far too great should such an endeavor be mismanaged.” Yada’s statement ignores the fact that under the tenure of previous lessees, Pu`uwa`awa`a’s resources were regularly subjected to damaging fires, logging, bulldozing, browsing by cattle and other ungulates, and dumping of trash with little or no protest from the state.
To address the needs of Kato and the DeLuzes, Yada recommended a 15-year extension of the lease, while reducing the lease area to just 5,000 of the most productive upland grazing acres. The withdrawn areas would continue to be grazed under a revocable permit until the non-profit groups could prepare an environmental assessment, obtain all needed permits, and satisfy any other conditions the Land Board might require.
State law allows for lease extensions, so long as the entire lease term does not exceed 55 years. In the case of Pu`uwa`awa`a, a 40-year initial lease, that would allow the 15-year extension mentioned by Yada. However, certain conditions need to be met, including a showing that the extension is needed to satisfy requirements of lending agencies.
In the end, Yada and Uchida recommended what the board approved: a one-year holdover extension of the lease at the same time that it was assigned to the DeLuzes and Kato. The option of extending it 14 or 15 years remains and, according to Yada and one of the three ranchers, this is under serious discussion.
Unresolved Issues
In June and July, as staff in the DLNR’s Land Division began preparing the report and recommendations for Land Board consideration, Environment Hawai`i asked staff how some of the long-standing, unresolved issues would be addressed.
Among the outstanding issues was Bohnett’s failure to obtain state Land Board and Hawai`i County approvals for structures including the lodge and party house. Kokobun, the Hawai`i Island board member, works in the county Planning Department, which is responsible for enforcing violations of the state land use law (including unpermitted structures on agricultural land). He is aware that the buildings are unpermitted, yet when asked when any enforcement action may be expected, he referred questions to the county Department of Public Works, which processes permits. In any event, the unpermitted status of the buildings has not been an impediment to their use. At least twice, the DLNR has had meetings at the party house: a hunter advisory council meeting was held there in early 1999, and more recently the Land Board had lunch at the party house after its tour of the ranch in February 2000.
Then there is the matter of the unsatisfied fencing condition imposed on Bohnett in 1985 by then-Land Board Chairman Susumu Ono. Following up on board action in October 1984, Ono listed in a letter to Bohnett those things that would be required of him to resolve lease violations. One such requirement was that Bohnett “install stock proof fence along entire new boundaries.” (A provision in the original lease obligates the lessee to fence, “wholly at its own cost and expense, É the whole or any part or portion of the outside perimeter É if such fencing shall be required” by the state.)
Bohnett never did this. Indeed, the Land Division staff was unaware of the requirement until Environment Hawai`I inquired about it. The staff report for the Land Board’s July 14 meeting states: “There has been mention of a requirement to fence the perimeter of remaining leased area. Staff cannot find such a requirementÉ It would appear somewhat onerous for the State to require fencing of certain perimeters a month before expiration of the lease.”
Decision Time
On July 14, the six members of the Board of Land and Natural Resources met in Wailuku, Maui. The first item they took up was the proposed assignment and one-year holdover extension of the Pu`uwa`awa`a lease.
Uchida explained why staff was recommending a lease extension instead of a revocable permit, which would allow the state to put the land to a different use on 30 days’ notice. With an RP, he said, the state is “responsible for going after Mr. Bohnett” for any violations. “If we go with the extension, it preserves everything in place, the ownership issue is still the lessee’s responsibility, the lessee is responsible for clearing up unpermitted uses on the property.”
Both board chair Timothy Johns and board member Colbert Matsumoto were concerned that Bohnett might escape liability for violations that occurred on his watch. “You’re saying, ‘we’ll let the assignment go through, and then we’ll try to resolve [violations],” Matsumoto told Uchida. “That’s not satisfactoryÉ The assignees are going to say they’re not responsible for thatÉ The assignor is no longer directly on the hook. My concern is, how do we ensure that the party responsible, the assignor who caused the default, performs and is directly responsible for satisfying the lease? That’s why I think typically we shouldn’t allow any assignment of a lease unless there is no default.” By the staff bringing this to the board, does the staff “feel all violations have been addressed?” Matsumoto asked.
Uchida noted that there had been concerns raised within the last two weeks. “A lot of verbal communication,” Uchida said. “From staff’s perspective, the outstanding issues have been resolved, as much as possible,” although he went on to say that “part of the proposal [includes] a plan to resolve the violations.”
A second matter concerned Matsumoto, and that was the lack of staff planning and foresight in dealing with the ranch. As one justification for the holdover lease, the staff report noted, “It would be inappropriate for DLNR to É expect the current ranching operations to ‘pack up’ 1000 head of cattle and move out by August 14, 2000, without severe negative economic impacts to the principals.”
But, said Matsumoto, “We’re going to run into the same situation a year from now if no agreement is worked out. So, to me, it’s incumbent on whoever the lessee is to make sure that they get their act together, recognize that the lease is going to come to an end in a certain period of time.”
According to Robert Garcia, the attorney for the DeLuzes and Kato, “all violations were addressed.” Derelict vehicles on the property “will be removed by December 2001, while the assignees have agreed to address the matter of the unpermitted structures.
“What about unknown violations? Are they prepared to be held responsible for all those?” Matsumoto asked.
“That’s scary,” Garcia said.
Chris Yuen was the first member of the public to testify. He was adamant in his opposition to the holdover extension. Over the last couple of years, he said, people in the community had “put in thousands of volunteer hours to develop a comprehensive management plan to protect the resource. Fifty thousand dollars was spent on a cultural and archaeological evaluation.”
Regeneration of the degraded land was possible, he noted. “One positive thing was the set-aside of the [wildlife] sanctuary in 1985. This area is regenerating with little active management, more quickly than people thought possible.”
He was not opposed to the ongoing use of the land for grazing, but objected to the holdover lease when a revocable permit could do the same thing. “We can buy time with an RP,” he said.
Yuen went on to criticize the staff report. “There is something missing from the staff chronology,” he said. “From 1985 to 1996 is a big blank,” although this period saw the discovery of numerous violations in 1991 and a special legislative investigation. “There was a strong push then to kick the lessee out,” Yuen informed the board – none of whose members served during that period. “The DLNR’s position was ‘No’ ” to kicking out Bohnett, “but instead to prepare an action plan. In 1993, the plan was approved, but because of a budget crunch, it’s never been implemented.”
Then Yuen raised the matter of the fencing requirement, mentioning Sus Ono’s letter of August 1985. “Jon Giffin [Hawai`i district forester] says there’s a substantial area that’s never been fenced – two miles that would cost more than $30,000 a mile to fence. I see no reason why the lessee should be excused from this,” Yuen said. With Bohnett’s bond of $60,000 in place, Yuen proposed that this be used for fencing.
Earlier, Uchida had told the board that although the staff report to the board suggested there was no fencing requirement, since its preparation he had located Ono’s letter. On inquiring with staff, he had been told that state employees had made “verbal representations” to Bohnett that there was no need to comply with the requirement.
After Yuen’s remarks, Board chair Johns referred to those unverified “verbal representations” mentioned by Uchida: “There is evidence,” he said, “of some verbal communication where the lessee was specifically told he didn’t have to fence.”
“Some of us, being lawyers, don’t rely on hearsay,” Yuen responded.
Johns asked Yuen, “Your point is, don’t let him [Bohnett] off the hook for fencing?”
“Yes,” Yuen answered. “Generally, one must fence the perimeter of pasture leases. Don’t release the performance bond. Make sure any waivers are done at a board level.” Finally, he urged that any disposition that the board might make of the leased land would allow his group access to the property.
When would Yuen’s group have its master plan for the area ready for board review? asked board member Kathryn Whang Inouye.
“Within the next six months,” Yuen answered.
The board also heard testimony in opposition of extending the lease from Leina`ala Lightner, a member of Hui Ohana and Sarah Rice, a member of Ka `Ahahui. Among other points brought out by Rice was the fact that a February 2000 study of Pu`uwa`awa`a soil by pasture specialist Burt Smith concluded that the soil was so thin it could only marginally support ranching. Letters opposing the staff recommendation were submitted by Rick Warshauer, a botanist on the Big Island, the Hui Ohana, and the Sierra Club Hawai`i Chapter.
After an executive session, Russell Kokubun made a motion to approve the staff recommendation for a one-year holdover lease and its assignment, but adding a requirement that the assignees be responsible for getting permits for the buildings. Kokubun also included the provision that the staff undertake an “audit” and report back to the board within six months. In the interim, Bohnett’s $60,000 performance bond would be retained. Community groups interested in alternative management of the land are to come forward with their plans, including financing arrangements, within six months.
Both Matsumoto and Kaua`i board member Lynn McCrory objected. Matsumoto said he was “concerned with this dragging on. The state has its own interest with respect to this property. We should end the lease.” McCrory commented that she felt issuance of a revocable permit was preferable to the holdover lease.
The four remaining board members – Johns, Kokubun, Inouye, and Maui member William Kennison – voted in favor of the motion.
Coda
The board action left many people disappointed and suspicious that in the coming year, the new lessees’ request for a long-term extension will receive more favorable treatment than competing proposals for conservation management.
Among those disheartened by the board action was Giffin, the Big Island forester who has taken a special interest in Pu`uwa`awa`a over the last three decades, at least. “I’m disappointed they set it aside for another year without addressing conservation needs,” he told Environment Hawai`i. “There’s a large number of rare trees there that are growing nowhere else. We’re losing species and the insects attached to those species that have nowhere else to go. Pretty soon it’ll be too late to do anything.
“We’ve already lost a few. We’re on the brink of losing many more. We need to take action now.”
— Patricia Tummons
Volume 11, Number 3 September 2000
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