Land Board Reverses Action To Cancel Ke’ehi Marine Lease
The controversial lease of state land to Ke’ehi Marine, Inc., is still in effect, despite action of the Board of Land and Natural Resources to cancel it last April.
Readers of Environment Hawai’i should be no strangers to the many problems associated with Ke’ehi Marine’s lease and revocable permit. In a nutshell, the company fell behind in rental payments owed to the state, to the point that for the last three years or so, averages have been between $200,000 and $400,000 for most months. On April 25, 1997, the board voted to terminate Ke’ehi Marine’s lease and revocable permit at once.
The Department of Land and Natural Resources Division of Boating and Ocean Recreation did not cancel the lease immediately.
According to David Parsons, former administrator for DOBOR, after the Land Board’s vote, he consulted with the state attorney general’s office, which said that Ke’ehi Marine would have to be served with a new notice of breach and opportunity to cure before the lease and R.P. could be terminated. (Notice of breach had been served on Ke’ehi Marine in the past; the attorney general advised, however, that notice would need to be served again.)
That notice of breach was not mailed out until June 23, 1997 – two months after the board action. In July, negotiations with Ke’ehi Marine resumed. DOBOR and Ke’ehi Marine’s owners worked out an arrangement that was presented to the Land Board on August 8. Terms of the agreement called for the Land Board to approve a transfer of stock ownership from Ke’ehi Marine’s parent company, the Yokkaichi Plaza Hotel, to another Japanese company, Ugengaisha Sanei. Ugengaisha Sanei, based in Osaka, would then assume Ke’ehi Marine’s debt, to be paid back to the state.
According to the payment schedule, $97,482 of the outstanding balance (totaling $387,482) was to be paid by August 22. The remaining $270,000 is to be paid off in 10 equal monthly installments.
At its August 8 meeting, the Land Board approved the stock transfer and payment schedule without further discussion.
On June 10, Environment Hawai’i, Inc., and Common Cause Hawai’i filed a complaint in Circuit Court against the Board of Land and Natural Resources for alleged failure to comply with the state’s Sunshine Law (Chapter 92, Hawai’i Revised Statutes).
Among other things, the complaint sees to end the Land Board’s practice of holding “briefings” that Chairman Mike Wilson claims are not subject to Chapter 92; of filing to afford the public opportunity to comment on the subjects discussed at those “briefings”; of not complying with the legal requirement to make minutes of executive sessions available at the earliest possible opportunity; and of not complying with the legal requirement to make minutes of meetings available within 30 days of the date a meeting is held.
Environment Hawai’i and Common Cause Hawai’i have protested many times, in public and in direct communication with the Land Board chairman, what we perceive to be the board’s shortcomings in these areas. The decision to sue to enforce compliance was not taken lightly, but was made only after repeated efforts to gain assurances from Wilson that the plain meaning of the law would be followed. Representing the plaintiff is Paul Achitoff of the Earthjustice Legal Defense Fund, formerly known as the Sierra Club Legal Defense Fund.
The state attorney general filed its response to the complaint on July 25. Drafting the response was Deputy Attorney General Nishioka. Among other things, Nishioka concedes that the board has held “briefings” where the public was not allowed to testify. In addition, she acknowledges that “there are no written minutes for June 23, 1995, and July 12, 1996 minutes.” “State admits that there are no written minutes for a number of meetings that have occurred after July 12, 1996,” she adds.
Perhaps as a result of the lawsuit, the Land Board has approved several sets of minutes at recent meetings.
On the matter of the late minutes, Mike Wilson has laid the problem at the door of his executive secretary, Michelle Bradley. Bradley was demoted to a position in the state Historic Preservation Division, where her salary will be approximately $20,000 less than it was in the director’s office. Bradley followed Wilson from his private legal practice into state government at the time he was named director of the Department of Land and Natural Resources. She had been with him for 10 years.
Replacing Bradley is Barbara Kameda, formerly of the Historic Preservation Division.
On August 8, the Land Board met in executive session to discuss the Environment Hawai’i / Common Cause lawsuit. Later that day, in public session, Board Chairman Wilson made an apparent reference to the meeting when proposing a site visit to Kahana Valley and Malaekahana Park, two areas on Windward O’ahu that come up frequently in board discussions. Following board action to cancel a revocable permit in Kahana Valley, Wilson said:
“You know, it occurs to me, since we’re on Kahana, we ought to arrange for our board to have a field trip to Kahana. I don’t think Member McCrory or Member Inouye have seen Kahana yet…
“We had some discussion about the manner in which we can all get together and go on site,” he continued, “and I suppose this constitutes a determination by the board that we are authorizing the members of the board that are here to go on a site visit and investigate Kahana Valley.”
Board member Colbert Matsumoto suggested adding Malaekahana Park to the list. “Yeah, we can do that, too,” Wilson replied.
“So,” he continued, “the board is now authorizing a site visit to Kahana and Malaekahana Park as well for its members to investigate and review the park there.”
Chapter 92 provides that members of state agencies may conduct site visits and investigations without providing the public with notice. However, the law also limits the number of members to fewer than those needed for a forum and requires that the problem to be investigated be identified in advance at a public meeting. It would appear that Wilson and the board were authorizing in essence a “committee of the whole” to investigate problems that were not clearly set forth at the public meeting.
Environment Hawai’i, through its attorney, Paul Achitoff, protested this in a phone call and letter to Linnel Nishioka, a deputy attorney general. On August 21, Nishioka replied as follows:
“Although it may be unclear in the transcript of the August 8 meeting, two investigations are planned on August 26, 1997… One investigation is to Kahana park to investigate the problems with certain lessees on state land at that site. The board members that are planning to go on this investigation are: Colbert Matsumoto, William Kennison, and Lynn McCrory. The second investigation is at Malaekahana Park to investigate the problems with the permit holder that runs the camping and cultural programs at the park. The board members that are planning to go on this investigation are: Michael Wilson, Williain Kennison, and Lynn McCrory. I have advised the staff that no more than three board members can go to any investigation and the follow up reporting that must be done.
“As to the lack of clarity in the transcript, I will review the minutes of the meeting and talk with the department about clarifying the record.”
F. Newell Bohnett, holder of an oft-embattled lease of state land at Pu’uwa’awa’a, on the Big Island, wants to assign the lease to brothers Ernest and Stephen DeLuz and Mikio Kato, who has been in charge of day-to-day operations at Bohnett’s ranch for years. A request to approve the transfer was submitted to the Land Board on August 8, but was withdrawn for unstated reasons.
The staff report prepared for the Land Board states that Bohnett “cited extreme economic hardship as the reason for this assignment.” “Mr. Bohnett says that he is no longer able to financially support the ranch and has decided to retire from the ranching business,” the report states. Noting that the lease expires on August 14, 2000, the report mentions that all three assignees are aware of this and understand that there is no guarantee the lease will be in force or extended beyond this date.
While Bohnett was reported to be up to date with his annual lease rent payments, insurance requirements, and other obligations, “our Fiscal Office has informed us that, at this time, Mr. Bohnett still owes us $77,446.44 in back rent under a special payment agreement which he is still obligated to pay in six remaining installments of $12,907.74 on August 15 and February 15 of each year until the last payment on February 15, 2000.”
(For circumstances surrounding that “special payment agreement” and other problems relating to Pu`uwa`awa`a Ranch, readers may wish to search this website for our many articles focusing on Pu`uwa`awa`a.)
Volume 8, Number 3 September 1997
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