Land Board Settles DHHL Claims With Transfer of Five More Parcels
On April 9, 1998, the Land Board voted to amend a four-year old land agreement between the Department of Land and Natural Resources and the Department of Hawaiian Homelands on the condition that the door be closed on any further requests for land under that agreement.
The conveyance agreement, made at the Land Board’s October 28, 1994 meeting, approved the transfer of 16,518 acres to DHHL, a measure meant to be the final installment of lands transferred to the DHHL under the Hawaiian Homes Act of 1921. DHHL chose from a list of parcels on Maui, Kaua’i, Hawai’i, Lana’i, and O’ahu to make up the total 16,518 acres.
But the finality of the agreement was undermined when lands chosen in Waiahole became unavailable for transfer.
The agreement included a condition that if any of the lands became unavailable for transfer, the lost acreage would be made up in about 500 acres at Keahole or 2,105 acres at Lalamilo on the Big Island. However, when the acreage in Waiahole was reduced, instead of acquiring the arid Lalamilo or Keahole lands, DHHL sought to acquire other parcels on O’ahu.
DHHL found five parcels totaling 29.472 acres in Kapalama, Kalawahine, Waimanalo, and Wai’anae that it was ready to accept in lieu of the Waiahole acres. On March 12, 1998, DHHL administrator Kali Watson briefed the Land Board on his agency’s proposal to amend the 1994 agreement to include these lands.
DLNR staff, however, had two objections to DHHL’s proposal: first, DHHL had already had its chance to select lands; second, “It would seem inappropriate to allow DHHL the opportunity to revisit their prior selections now or anytime in the future. We need to bring closure to the process and honor the prior agreement by allowing for the completion of the conveyances,” the April 9 staff report says.
The staff also had reservations about transferring a one-acre parcel in Kapalama and a four-acre parcel in Waimanalo because they were considered revenue-generating lands. According to the staff report, made by Land Division administrator Dean Uchida, the DLNR did not favor the transfer of this type of land for fear of creating “situation where one ‘trust’ is made whole at the expense of another…. [I]ncome properties and agricultural lease lots by themselves should not be allowed for consideration as it competes with our programs on the leasing of public lands.”
Board member Colbert Matsumoto asked what the Board could expect in the way of further requests along these lines. DHHL administrator Watson assured Matsumoto that this request would be the last from DHHL, except for a Waimanalo parcel currently under lease and a Department of Transportation parcel that is adjacent to the requested Kapalama piece. Negotiations are in progress for those two parcels.
Big Island board member Chris Yuen moved to convey all five properties with the understanding that current tenants be allowed to remain on the land until their leases expired.
Matsumoto said he would support the motion only if the conveyance brought closure to all DHHL land claims, with exception of the two parcels for which negotiations are ongoing. Watson gave Matsumoto a “90 percent” assurance that the DHHL would not return with more requests, since, in any case, most of the 16,518 acres have already been transferred.
With that, Yuen amended his motion “along the lines suggested by Colbert,” adding that “I don’t think that there’s anything wrong with Hawaiian Homes next year, 10 years from now, 50 years from now coming to the DLNR saying we would like another parcel of land for Hawaiian homestead purposes.
“I’m not suggesting that’s the case, either,” Matsumoto said. “In those instances, they would come to the board like any other agency to request land… What’s clear is that this particular request is being made under the guise of an amendment of that prior resolution of the issue regarding the Hawaiian Homeland trust. So if that’s the basis on which we’re going to make this decision, then I want to make sure we bring closure to the issue.”
The motion was unanimously approved.
What appears to be the casual disregard for permit conditions, government authority, and assurances to the Land Board to prevent adverse construction -related runoff by the developer and contractor of the Ma’alaea Triangle project on Maui has prompted the Land Board to file a series of lawsuits against them.
The Ma’alaea Triangle project site covers about 18 acres adjacent to and mauka of the Ma’alaea small boat harbor. The project includes the Maui Ocean Center, an aquarium that opened in March.
The contractor, O’ahu Construction, began the project during the winter rainy season. Instead of grading the area in stages, so as to minimize soil loss, the contractor graded the entire area, while failing to carry out any measures to control runoff. These actions violated the county-issued Special Management Area permit, which prohibits grading and grubbing from October to April, limits grading to small areas, and requires graded areas be firmed and stabilized before the next small area is opened up.
According to DLNR staff, O’ahu Construction’s actions caused between two and three feet of mud to build up in the harbor. Many Ma’alaea boaters told the Land Board at its April 9 meeting that this had harmed businesses and compromised boating conditions in the harbor.
The DLNR had been negotiating with O’ahu Construction on mitigation measures. After hearing from the boaters, however, the Land Board called a halt to the talks and voted to pursue legal action against the contractor and Ma’alaea Triangle Partnership.
A Long History
Chuck Penque, Maui district boating manager, gave the board a brief chronology of the problem. Construction began in November 1996 with major grading of the site. From November 1996 through March 1997, the area experienced a number of rainstorms “resulting in significant rainfall,” he said.
The first evidence of severe runoff was on December 15, 1996, when large quantities of mud and debris were observed in the parking lots and the harbor, Penque said.
“This became the harbinger event that would be repeated to varying degrees a number of times in the next few months,” Penque said as he showed photos taken as recently as September 1997 that showed siltation in the harbor.
The Division of Boating and Ocean Recreation tried talking with O’ahu Construction and a representative from the Ma’alaea Triangle Partnership, but to no avail, Penque said.
In January 1997, Penque brought the problem to the attention of the Clean Water Branch of the Department of Health. The DOH issued a notice of violations and demanded the company provide a report detailing its responsive actions. Apparently, the contractor responded in March, although Penque said his office did not receive the “corrections” letter.
Despite the letter, Penque said, “a subsequent meeting and continued review of the site failed to reveal any significant changes.”
According to Penque, “In response to a September [1997] inquiry by the Ma’alaea Community Association, the Public Works and Waste Management [department] informed them that the Planning Department was the responsible agency for handling violations of the SMA permit.” Public Works informed the association also that the problem of siltation wasn’t in county’s kuleana at all, but rather belonged to the state.
Negotiations with the DLNR were also difficult. On December 4,1997, after a phone conversation with O’ahu Construction, DLNR chair Mike Wilson sent the company a letter confirming that 500 cubic yards of silt should be dredged from the harbor, an amount supported by DLNR engineer Kirk Powers. But O’ahu Construction agreed to remove just 200 cubic yards. Penque quoted the company as saying, “We made it clear that we accept no responsibility for the silt problem.”
(Later in the meeting, one testifier suggested even the 500 cubic yards was far too little to make a meaningful difference. This would be equivalent to removing little more than a quarter of an inch from the bottom, the speaker said. Some testifiers indicated that in some areas, the bottom is as much as three feet higher than it used to be.)
In response to continued complaints from the Ma’alaea Community Association and others, county Planning Department director David Blane announced in a letter dated January 7, 1998, that the Ma’alaea Triangle Partnership would be fined a total of $21,000 for a number of SMA permit violations.
The Mud
Ma’alaea harbor users acknowledge that mud is a chronic problem. But those testifying said they had never experienced anything like what occurred after work began on the Ma’alaea Triangle project. Kalei Lu’uwai, a harbor tenant for more than 20 years, told the board, “I’ve never seen it this bad before. The water was a chocolate color for a month at a time.
He said that all of the fish that normally hung around the boats left and have only now begun to return, adding that several fishermen no longer have enough clearance, or “draft”, beneath their boats and at low tide have hit their propellers the mud, causing dirt to be sucked into their engines. Others have run aground or have been dry-docked.
Once such boater is charter operator Skip Price. Price contends that O’ahu Construction’s actions have caused $244,000 worth of damage to his boat – the Silent Lady – which has subsequently cost him business. At one point, Price said, he rented a dust monitor at a cost of $2,000 to show DOH officials just how bad the problem was. The results, he said, were at least double state and federal standards almost every day for two months.
Board member Chris Yuen asked Price what the Planning Department did to enforce the SMA permit.
Price mentioned the $21,000 fine, but added that, by his own reckoning and that of others in the community, the company should have been fined at least $300,000 for its violations.
Yuen was dumbfounded. “Fining people is one thing,” he said, “But I can’t go out and rob a bank, knock off a million dollar profit, and pay a $50,000 fine and keep doing it. If the permit said that they weren’t supposed to have construction during the winter months, how come nobody stopped them from doing it?”
Price replied: “I have a very hard time figuring it out since I happen to live in the sixth condominium down there and that’s where the mud pictures are taken from [Price has photographs showing the scope of pollution]. David Blane [who determined the $21,000 fine] lived in the fifth condominium down, drove by this place every day and somehow didn’t see any of this.”
After an executive session to consider legal questions, Wilson announced that the board had unanimously agreed to file a lawsuit to “define the degree of damage and negligence that occurred.”
Groin Pains For Natatorium
Groins or no groins for the Waikiki Natatorium restoration? That was the $12.8 million question the Land Board was expected to answer at its March 27 meeting. After four long hours of testimony, the matter was deferred, pending investigation into issues such as the legislative intent of appropriations and Department of Health requirements.
At its April 9 meeting, however, the decision was made: Two groins would be allowed, despite reservations among board members and staff.
In 1986 and 1994, the Legislature appropriated $1.2 million and $300,000, respectively, for the full restoration of the natatorium, built as a memorial to World War I soldiers. The 1997-98 budget of the City and County of Honolulu contains $12.8 million for permitting and construction.
The city’s restoration plan includes groins at both the ‘Ewa and Diamond Head ends of the natatorium. City Building Division Administrator Randall Fujiki and his team of engineers insist that the groins are needed to maintain water quality in the pool by improving flushing between 20 and 30 percent. The groins are also needed to prevent possible structural damage from high waves.
But in the view of the DLNR staff, restoration could and should occur without the groins, which they say may not even work and could damage the surrounding environment.
Complicating the issue is the fact one groin would be built in a DLNR Marine Life Conservation District (MLCD) and the other in a Fisheries Management Area (FMA).
The staff report to the Land Board notes that activities related to construction of the groins, such as the dredging, trenching and filling, are not permitted within the Protective subzone and are not compatible with the MLCD designation or the fishery management area.
Also, at the March meeting, Department of Health deputy director Bruce Anderson indicated he was not optimistic that the city’s plans would be able to ensure water clarity and safety. Winning DOH approval for the restoration is needed, in addition to the Land Board’s permit.
Concerns
With regard to the project’s impact on the surrounding environment, “The policy issue that is raised is: Under what circumstances should the board allow any activities in the MLCD?,” Uchida told the Board, April 9.
Currently, the Land Board has granted only one other Conservation District permit in a Marine Life Conservation District – to lay fiber optic cable in Manele Bay MLCD on Lana’i. To justify this, the Land Board had determined that the project qualified as a significant public purpose. That project, according to Thomas Eisen, the staff planner who prepared the natatorium recommendation, “was materially different from the current proposed use of an MLCD in that no dredging, trenching, or fill activities were proposed; the only use of the MLCD was to lay the cable on the sandy bottom and across 30 feet of hard substrate.”
Bill Devick, acting administrator for DLNR’s Division of Aquatic Resources, also testified against the project for these same reasons. He mentioned that there were only 10 MLCDs in the state, a classification that is “supposed to be highest level of protection that the laws can provide.”
“In the case of Waikiki, do we have a higher public purpose?” Devick asked. “Certainly restoration of the Natatorium ranks as a high public purpose. The question is, does the groin, which extends into the MLCD, have to be part of that restoration? And is it actually restoration or is it an addition? … It seems quite clear that there are alternatives to taking this action.”
Asked by Yuen if the biological habitat would degraded by addition of rock wall, Devick replied that the addition of the groin presumably would not have a major direct effect.
Another of staffs concerns was the potential alteration or destabilization of the Sans Souci beach by the Diamond Head groin, which could trap sand that otherwise would be carried to Sans Souci.
Flushing
Yuen doubted staff’s assumptions. He said he had not heard any professional opinion that said the groins would harm the beach. He had heard experts explain that the groins would either not harm the beach or they would augment the beach. “Did I miss something?” Yuen asked.
Uchida: “No, that’s correct.”
Another touchy issue was that of public health and safety. The Department of Health maintained that the Natatorium pool would not meet all of the required standards in their current rules such as pH values – since those standards are intended to apply to freshwater pools.
Matsumoto asked about the possibility of the project being waylaid by the DOH. “What happens when you are not able to address the turbidity issues raised by the Department of Health?” he asked Fujiki.
Simple, Fujiki stated. If at any time the pool does not meet the standards of the DOH, the pool will be closed. He promised to measure quality of water, to make sure the pools bottom was visible, etc. In any case, he said, he was confident the issue would be worked out and that he expected to receive all approvals, including DOH’s, before construction would begin.
Yuen was concerned that if the Land Board’s position was that there should be an absolute prohibition on construction in an MLCD, that might translate to opposition to establishing future MLCDs. “Waikiki is not a pristine area. The whole area has been heavily dredged and impacted,” he said.
O’ahu board member Kathryn Whang Inouye expressed her own reservations on the staff recommendation: “What concerns me is that we, as lay people, are trying to make changes in the design. That is not something that can be done overnight.”
Kaua’i board member Lynn McCrory and board chairman Wilson disagreed.
“I am having same problem as Mike with groin being put in an MLCD,” McCrory said. “It’s the principle of it. We’re defeating the whole purpose of what the MLCD is about.”
Matsumoto agreed that the principle was important. However, he added, “the board is granted a certain amount of discretion to manage areas and we need to exercise it prudently.”
He added that he favored the beach alternative and hoped the city would have gone with that. Still, he said, it wasn’t the board’s role to decide what the county should do with the Natatorium.
In the end, Yuen made a motion that the board grant the city a permit to build the groins so long as the city complies with all mitigative measures referred to in the project’s environmental impact statement, receives DOH approvals before starting construction, and follows “such other conditions that may be imposed by the department that are consistent with board’s action.”
There were three possible paths for the Waikiki Natatorium to take, Board member Yuen said: restoration, demolition, or continued stagnation. The third is least desirable, he said. The first two alternatives, he said, create the same concerns surrounding any major construction in an MLCD. And, after reviewing the legislative intent of the appropriation, which called for the “full restoration of the Natatorium,” the “rip it out” alternative is out.
The motion passed, despite opposition from members Wilson and McCrory.
The May 1998 issue of Environment Hawai`i reported that Colbert Matsumoto recused himself when the Land Board considered HELCO’s application for a Conservation District permit to expand its Keahole facility in May 1994. At that time, Matsumoto was not a member of the board; instead, Sharon Himeno was the member who was recused. Matsumoto recused himself from the April and May 1996 board actions on the HELCO decisions, as we reported.
— Teresa Dawson
Volume 8, Number 12 June 1998
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