In the Conservation District

Board Defers Action on Replacement Of Pipeline, Dam by Moloka`i Ranch

In December 1994, several residents of Moloka`i complained to the Department of Land and Natural Resources that Moloka`i Ranch had done unauthorized work in the Conservation District. Specifically, the complaint said, the ranch had laid 2,000 feet of four-inch PVC pipe along a trail following a buried metal pipe of the same size that is no longer in use.

An inspection by the DLNR’s Division of Conservation and Resource Enforcement confirmed the new work. Moloka`i Ranch acknowledged that the work was done in November 1994, but claimed that under a 1951 agreement with the Territory of Hawai`i gave the ranch authority to maintain its existing water system, which included a dam on Kalihi Stream dating back to the 1930s.

The staff report on the matter came before the Board of Land and Natural Resources at a meeting on Moloka`i on May 26, 1995. The staff report recommended that the ranch be found in violation of Conservation District rules, that it be fined $2,000 for that violation, and that it be required to file an after-the-fact application for a Conservation District permit covering the work.

Despite overwhelming support from the Moloka`i community for the staff recommendation, the Land Board voted to defer action on the matter until such time as the attorney general’s office had an opportunity to study legal issues associated with the case.

Surrender Agreement

At the heart of the legal issues is a 1951 agreement between the ranch and the territory of Hawai`i. That agreement, known as a surrender agreement, set forth terms of Moloka`i Ranch surrendering to the territory 55,000 acres of land as a forest reservation and watershed. In exchange, the ranch obtained property tax relief and was allowed to maintain its existing water system.

Moloka`i residents, long concerned with protecting water resources, claimed that what the ranch described as maintenance was actually new construction that increased the amount of water diverted into a pipeline.

Keith Fernandez, a ranch vice president, said that by late 1994, there was “a severe blockage” in the pipeline. “A portion of the line was overgrown, or below grade,” he told the Land Board, and the ranch crew “wasn’t able to determine location of blockage.” In addition, because the original pipe was a composite material containing asbestos fibers, Fernandez continued, “our group elected to replace the old pipe — essentially run parallel lines to avoid or minimize potential damage.”

Although no exact figures on the capacity of the pipeline were provided by Fernandez, he told the board that the Kalihi Stream system “collects six percent of the capacity of our system.” Instead of imposing fines and finding the ranch in violation of Conservation District rules, Fernandez proposed that the board direct its staff and the attorney general’s office to sit down with ranch personnel “and resolve this matter in terms of the larger issue of what the 1951 agreement allows us to do.”

A New Dam?

Moloka`i residents countered Fernandez’ testimony, arguing that in fact, not only did the ranch replace the pipeline, but it also enlarged the diversion dam on the stream itself. They offered a video and photographic evidence to support their claims.

Board Member Chris Yuen asked ranch officials if the dam was, indeed, new. Duncan Annandale, operations director of the ranch, responded by saying that the existing dam “is essentially the same” as the one built in the 1930s. The intake size had not changed, he said, and while “the dam through one portion … is slightly higher,” he added that “the overflow size has not changed. So the determination made by [Commission on Water Resource Management] staff on site was that there is no potential to take more water from that stream than there has been before.”

Girish Patel, Sarah Sykes and others contested that claim. They exhibited 1992 pictures of the dam and diversion obtained from CWRM files, which showed a more or less natural stream bed along one side of the dam. That allowed water in the stream to percolate downstream, they claimed. By contrast, when the new dam was built, the stream bed was pretty well paved with concrete. Now, Patel said, “water never really escapes the channel unless the [water] levels are really high,” whereas before, “water did have the opportunity to go underneath the rocks.”

CWRM Findings

Yuen asked staff planner Don Horiuchi if he had consulted with Water Commission staff in preparing his report. Horiuchi said that he and commission staff had visited the site, and “their determination was there’s no need for a permit” in that the amount of water being diverted was no greater after the new dam was built than before. In any event, Horiuchi said, the Water Commission — and not the Land Board — was legally responsible for issuing permits for dams anywhere, including in the Conservation District.

Yuen disagreed, noting — as one example — the fact that a Conservation District permit was required and obtained for construction of a diversion on Makaleha Stream on Kaua`i. The issue here, Yuen suggested, was not whether the Land Board had jurisdiction, but whether the rebuilt dam resulted in a greater diversion of water than occurred before.

Ranch officials maintained that the water flow diverted was the same as before, since the size of the intake pipe was the same. Sarah Sykes disputed that: As a result of the cementing of the stream bed, she said, “a lot more water is able to leave the mountain and not recharge that [Kualapu`u] aquifer — and it’s that aquifer on which most of this island relies for its drinking water, and it’s that aquifer that’s showing alarming increases in salinity…” (Between 1989 and 1994, tests conducted by the U.S. Geological Survey of wells near Kualalu`u showed salinity levels rising to 95 parts per million from 65 ppm.)

Despite the charges of Sykes and others, Rae Loui, Deputy DLNR director and administrator of the Commission on Water Resource Management, informed Moloka`i Ranch in January that CWRM staff had determined that no Water Commission permit was needed for the 1994 construction at Kalihi Stream. Although “the work done included a 2-foot modification of the right (looking downstream) streambank and a build-up of a 26-foot portion of the left side of the diversion structure,” Loui wrote, “the height of the dam at the intake pipe … appears to be the same as it was in December 1992.” Because of that, Loui continued, “and because the intake pipe appears to be the same pipe, we believe there would be no measurable difference between the amount of water capable of being diverted by the existing intake and the amount that was capable of being diverted in 1992. Therefore, in this instance, we are considering the work to have been done ‘in the course of normal maintenance’ and a permit is not required.”

Punting

In the end, Moloka`i Ranch received exactly what it had asked for. Board Member William Kennison made the motion that action on the staff recommendation be deferred until after the attorney general’s office had a chance to review the 1951 surrender agreement and talk things out with Moloka`i Ranch officers.

The motion passed without dissent. Afterward, Board Member Colbert Matsumoto asked that staff be directed also to look into what the board’s jurisdiction is with respect to construction of dams in the Conservation District.

Testimony from the public on the matter of the diversion was overwhelmingly in support of staff’s report, which recommended that the Land Board fine the ranch in violation of Conservation District regulations, that it fine the ranch $2,000, and that it require the ranch to file an after-the-fact application for a permit for the pipeline work. No one other than ranch personnel spoke in favor of the ranch.

No matter how unpopular the ranch’s position is with the public, the ranch did not deserve — and Board Chairman Wilson should not have tolerated — the abusive testimony of one speaker. The speaker, identifying himself as a native Hawaiian testifying on behalf of the environment, spewed a stream of foul invective not worthy of repetition. Were that not enough, he began smashing furniture to emphasize his point.

At no time in this two-minute rampage did Wilson or anyone else suggest the man’s behavior was inappropriate. When he had finished, Wilson merely invited the next speaker to come forward.

In the 1980s, Moloka`i Ranch subdivided a lot that lay, in part, in the Conservation District without the requisite prior approval of the Land Board. When, finally, an after-the-fact permit was sought in 1987, the Land Board imposed, as a condition, a requirement that a portion of each of the two new lots created by the subdivision “be dedicated to allow for a 12-foot public access pedestrian right-of-way to the ocean.”

By 1993, nothing had been accomplished to satisfy this condition, so in December 1993, DLNR staff notified the owners of the subdivided land — Moloka`i Ranch and the Alpha Group (USA) — of the need to comply with the condition. (Even though Moloka`i Ranch does not own the second parcel, it does have a lease to use the land)

After almost a year of negotiations, a trail alignment was tentatively established and brought before the Land Board for its approval in November 1994. At that time, the ranch proposed that people desiring to use the trail check in with the ranch. A sign at the trail head would instruct visitors to call the Moloka`i Ranch Outfitter’s Center. To accommodate that arrangement, the board imposed a requirement that a public telephone be placed at the trail head — or that the need to check in be eliminated.

The trail is nearly 6 miles long, half of which can be traveled by car. The remaining 2.8 miles is for pedestrian access only.

Soon after the November 1994 board meeting, Moloka`i Ranch approached DLNR staff with a proposal to modify or eliminate several of the 11 conditions the Land Board attached to its approval of the trail alignment. Instead of the trail crossing over ranch lands for about the first mile and a half, the ranch proposed having the trail follow an existing road through Department of Hawaiian Home Lands. And, rather than the ranch having to provide pedestrian detours around a series of locked gates, the ranch was proposing to have a stairway going up and down one fence, and the remaining gates replaced by cattle guards.

Finally, the ranch wanted to avoid having to prepare a metes-and-bounds description of the alignment, since, it stated, it was eventually going to dedicate a public access to the County of Maui “following further development of the area.” The ranch told DLNR staff that “the public access trail will be duly recorded when the trail is dedicated to the County of Maui.”

Shark Cove

The trail follows an old jeep road that leads eventually to Halena and Hale o Lono Harbor. The access provided by the ranch stops short of the harbor, however, terminating instead at the mouth of Punakou Gulch. A small brown-sand beach is found there, but local residents disparage the area as not suited to fishing or recreational use. The sand is brown, they say, because of the erosion from overgrazed ranch lands upslope. And the waters off the small beach are hardly suited for swimming, they say, since the beach adjoins the Ho`olehua mud flat area and the turbid waters offshore provide a well-known breeding ground for sharks. (In fact, trail signage proposed by the ranch itself acknowledges this. Language proposed for approval by the DLNR includes the statement: “The south shore of Moloka`i is known as a shark breeding ground, so swimming is done at your own risk.”)

Testimony from Moloka`i residents pointed out the dangers of using the Punakou area. One described the water as “choke” with shark pups at this time of year: “I don’t fish Punakou,” he said, “and I don’t want to take my kids on the beach over there…. We should sit down and talk about Halena and Hale o Lono, about access over there.” As for Punakou, he said, “That place pilau. Plenty shark, plenty shark.”

Moloka`i activist Walter Ritte pointed out that the whole purpose of requiring the ranch to provide public access was to accommodate subsistence uses of local residents — a need not addressed by provision of access to a well-known shark breeding ground. “The solution being presented to you does not solve the problem” of allowing subsistence fishing and gathering, he said, noting that a map developed by the state to identify areas used for these purposes showed little use of Punakou, while Halena and Hale o Lono were highly valued. Instead of a nearly six-mile-long access route that began at the east end of the ranch lot (near Kaunakakai), Ritte said, it would be far preferable to have an access route that traveled over an existing ranch road, known as the “Graveyard Road,” leading from Mauna Loa (at the western end of the lot in question) to Halena. “That would give us the access to the Halena area and would resolve the problem,” he said.

Deferral

Board Member Yuen seemed sympathetic, but pointed out that the Land Board did not have the option to revisit the access alignment approved last November. Rather, he told Ritte, “we’re only being asked to change from having the gate with a cattle guard to having the stairs over it. If we said no to what they’re asking here, they could just say, okay, we can’t use the stairs, so we’re going back to having the gate and cattle guard.”

Board Chairman Wilson suggested that a deferral of a vote on the access plan modifications could give the board, the ranch and the community an opportunity to discuss the community’s wishes for access via Maunaloa or, possibly, Hale o Lono. The ranch’s Fernandez agreed to a deferral, and the motion to defer, made by Board Member William Kennison, passed without dissent. No deadline for an agreement was set.

The evening before the board’s May 26 meeting, the board held a hearing on Moloka`i to take testimony on the after-the-fact application of Moloka`i Ranch to rebuild Kaupoa House, on Moloka`i’s western end. Again, concerns over a lack public coastal access for subsistence purposes were raised by local residents.

According to Fernandez, however, the current policy of the ranch is, “We do not deny access to our beach areas provided … the groups or individuals seeking access go through our Outfitter’s Center, and have to sign up for a pass.”

The Kaupoa House application will come before the board for decision making at a future meeting — probably in August or early September.

Another outstanding violation concerns Moloka`i Ranch’s unpermitted work in the Conservation District at Halena Camp. The ranch missed a six-month deadline imposed by the Land Board last November for re-filing an after-the-fact Conservation District Use Application for that work. According to Don Horiuchi, a staff planner at the DLNR’s Office of Conservation and Environmental Affairs, no new application had been submitted by late June.

(For background on Moloka`i Ranch’s Conservation District violations, readers may wish to consult the December 1994 edition of Environment Hawai`i, “Moloka`i Ranch Rapped for Illegal Work”.)

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Board Rejects Paradise Park Plan To Rent Exhibit Space as Offices

At a hearing in April and two meetings in May, the Board of Land and Natural Resources considered the request of Paradise Park, Inc., to convert its facilities on Conservation Land in Manoa Valley to commercial office and retail space. Despite the promise of the owners to limit tenants to non-profit environmental or educational groups (for the most part), the board in the end denied the request.

Over the last several years, in a series of highly publicized and controversial efforts, Paradise Park had attempted to turn the its land, leased from the Catholic Church, into a tourist attraction offering displays of (among other things) animated dinosaurs. In 1993, the dinosaurs moved out. The park continues to host several busloads of tourists daily for its bird shows and is a popular site for Japanese couples getting married in Hawai`i, but owners are still struggling to find some way to pay off the $4 million loans they took out to finance improvements on the property. This was behind their request to convert the exhibit space to commercial offices and retail shops.

In an effort to mollify the Manoa community and, perhaps, to gain support from the non-profit sector, the Wongs proposed that the space to be converted be limited to five types of organizations: those “whose primary business involves the protection or enhancement of the environment”; entities “involved in research and development in the zoological and botanical sciences”; “educational entities”; “community non-profit organizations”; and “other organizations and businesses ancillary to Paradise Park’s botanical and zoological gardens and its tenants” (including the existing Treetops Restaurant and the park’s gift shop).

By May 26, the Wongs had obtained non-committal letters of interest from several groups, including the Sierra Club Hawai`i Chapter, a holistic health consultant, Excel Entertainment, and the Hawai`i Golf Course Superintendents Association. According to Kerry Komatsubara, attorney for the Wongs, if all the parties expressing interest already were to sign leases at a monthly rental rate of $1.50 a square foot, the monthly income to the park would be $36,000 — or, in other words, almost enough to meet the mortgage payments.

Chapter 343 Concerns

One of the concerns raised at the public hearing as well as the May 12 board meeting was over what the park planned to do with space in another, much larger park building — one occupied now by the Treetops Restaurant and the park’s gift shop. The conversion of up to 22,000 square feet of space in this second building to commercial purposes — over and above those now existing — was not discussed in the environmental assessment prepared for the park.

Deputy Attorney General Linnel Nishioka spoke to this issue at the May 25 meeting, expressing her opinion that Chapter 343, relating to environmental disclosure, had not been complied with, should the park be intending to open up space in that second building to new commercial uses.

Earl Matsukawa of Wilson Okamoto & Associates, the planning consultants for the project, explained that since the second building already has approved commercial use established, there would be no environmental impact of changing the nature of the tenants there; consequently, no environmental disclosure was needed.

Nishioka disagreed, pointing out that traffic volumes and character of use could be substantially altered if the space now occupied by the restaurant, gift shop, and park offices were converted to, say, a shopping mall.

Unclear Concept

To manage the 8,000-square-foot area to be leased to environmental groups, the Wongs proposed establishing a non-profit foundation. The foundation’s board would include Wong family members in addition to other members of the community — such as, according to the Wongs, Senator Rod Tam, former state Representative David Hagino, and a member of the Manoa Neighborhood Board, among others.

The board was skeptical. Board Chairman Wilson suggested that while the idea had merit, a better way to accommodate the proposed use might be to create some special subzone within the Conservation District. “But,” he continued, “for us to twist the Conservation District with the kind of what I consider to be sort of as-yet incomplete information that we have is something that I don’t think I’d be able to support.”

Board Member Michael Nekoba said, “I am personally in favor of the concept,” the Wongs were at the end of the 180-day statutory deadline for processing of their permit application. More time might be needed to work out an acceptable arrangement with the Manoa Neighborhood Board and to flesh out the details of the relationship between the foundation, tenants, and the Wong family, Nekoba said. In addition, he voiced concerns about the possible shortcomings of the environmental assessment for the project, identified earlier in the meeting by Deputy Attorney General Nishioka.

Motion to Approve

Nekoba moved to approve the application, subject to the Wongs working with the Manoa Neighborhood Board to address their concerns and to a review of the sufficiency of the negative declaration issued for the project. But when Wilson called for a second to Nekoba’s motion, none was made.

Chris Yuen then moved to deny the application. William Kennison seconded the motion, which then passed on a voice vote.

Afterward, Yuen hinted at a possible direction the Wongs might now take: “I would like to say that the applicant made a very sincere effort. I would entertain this if we were talking about special subzone and we had some relatively small number of identified tenants that would fit the criteria. Those are the major concerns that I have. I think that as it stands now, we’re going to get into the bind of just having a flock of tenants that it’s very difficult to control, very difficult to qualify.”

Plans to build a pavilion on Conservation District land at Lana`i’s Manele Harbor were recently announced by the Department of Land and Natural Resources’ Division of Boating and Ocean Recreation. Environment Hawai`i discussed several aspects of these plans in April and May 1995 articles.

DOBOR officials, including DOBOR Administrator David Parsons and its property manager, Larry Cobb, have claimed that the use qualifies as “non-conforming” and, as such, no Conservation District Use Permit need be obtained from the Board of Land and Natural Resources. Typically, non-conforming status applies to buildings that were in existence on October 1, 1964, when the Conservation District law first took effect.

But there has never been a building on the Manele site in historic times. Until recently, the statute governing Conservation District rules did allow exemptions for single-family residences to be built as non-conforming uses in those cases where the property to be built upon had clearly been intended for use as a house lot. Yet even that generous interpretation allowed by the statute for non-conforming use would have been stretched if made to apply to a commercial pavilion.

Parsons and company, however, continue to assert that the proposed pavilion is, indeed, a non-conforming use. Here is their argument, as set forth in a letter dated June 7, 1995, to the editor of this newsletter:

“State lands were set aside ‘for construction, operation and maintenance of a Small Boat Marina and appurtenant facilities…’ by Governor’s Executive Order No. 2141 (hereafter referred to as the ‘E.O.’) dated June 2, 1964. The land was subsequently classified as Subzone ‘L’ [Limited] of the Conservation District in October 1964, with the structures and uses specified in the E.O. being recognized as existing nonconforming uses. Since the subject project is consistent with the purpose of the E.O., a Conservation District Use Application is not required…”

However, Parsons acknowledges that the uses to which the Trilogy Corporation is putting the land go beyond what was anticipated in the original Executive Order. “The permitted use of the premises” under Trilogy’s lease of the land “include a convenience store, snack bar, passenger rest stop pavilion and landscaping provision… Its use of a portion of the harbor for this purpose was considered to be in conformance with the E.O. The additional uses were identified by the boating community responding to a survey distributed in connection with the development of the Master Plan for the Manele Boat Harbor” — a plan that was not prepared, we would note, until May 1993.

In any event, Parsons goes on to say, construction of the pavilion does not fall under the jurisdiction of Conservation District rules and their governing statute (Chapter 183C, Hawai`i Revised Statutes). It is, rather, “grandfathered” under language in Section 171-11, HRS, which provision “has precedence over Title 13, Chapter 5, Hawai`i Administrative Rules with respect to use of State lands set aside by Executive Order.” (Title 13, Chapter 5 is the set of rules governing uses of land in the Conservation District.) Section 171-11 deals with lands set aside by executive order of the governor. That section would seem to allow DOBOR the right to manage the property — which right no one is challenging. However, it says nothing about exempting any responsible agency from the need to comply with other laws that may apply to development of property under executive order.

The claimed exemption provided by Section 171-11 is apparently not so broad as to provide a shield against compliance with other state law. In the same June 7 letter, Parsons states that to address other deficiencies in the draft Environmental Assessment, the “Final Environmental Assessment will be amended to address the proposed project as it relates to the Coastal Zone Management [Chapter 205A] program objectives…”

In 1987, Michael Rearden obtained a Conservation District permit for a single-family residence to be built along the coast of North Kohala. Although Rearden obtained no fewer than four time extensions, he still had not begun construction when the deadline for completing work on the house occurred on June 25, 1995. (For details on the Rearden case, readers are invited to turn to the lengthy reports on this subject in the October and November 1993 Conservation District columns of Environment Hawai`i, as well as shorter articles in the May and August 1994 issues.)

(Technically, Rearden is not the permit holder; the permit has been placed in the name of several parties, most recently that of his wife, Janice Williams-Rearden, who is trustee of a family trust that, according to Rearden, names his son as beneficiary. In any event, Rearden has always been closely involved with both the land and the permit, and it is neither wrong nor misleading to refer to the permit as his.)

Apart from the extraordinary number of time extensions granted on this permit, it is noteworthy in another respect: Rearden’s is the first permit to be challenged in a formal petition for a declaratory ruling from the Land Board finding the permit to be null and void. That petition was brought in April 1994 by Hui Lihikai (Citizens for Protection of the North Kohala Coast), at a time when the permit still had more than a year of life remaining.

On June 9, 1995 — or, in other words, 16 days before the permit would expire of its own force — the Office of Conservation and Environmental Affairs brought to the Land Board the matter of Hui Lihikai’s petition. Practically every one of the points raised in the petition was confirmed independently by OCEA staff. The staff’s recommendation to the board was to grant the requested finding of the petitioners and declare the permit null and void.

In the end, the Land Board voted unanimously to accept a three-part motion made by Board Member Chris Yuen: first, that the board defer action on the petition for the time being; second, that it authorize OCEA staff to notify Rearden, the first working day after his permit expired, that his permit was “null and void because the permit conditions have not been complied with;” and third, that any work that Rearden might undertake between June 9 and June 25 not be considered by the board in his favor should he seek a fifth time extension.

Accusations

Rearden was present at the June 9 board meeting. For reasons not clear, Board Chairman Michael Wilson allowed Rearden free rein for nearly an hour, during which time Rearden accused the citizens’ group of slander and announced he would be taking them to court, and denounced the OCEA staff for “conspiring” with Hui Lihikai against him.

In addition, Rearden sought to have Board Member Yuen disqualified from participating in any decision on his permit, alleging that Yuen harbored — perhaps subconsciously — ill will toward him as a result of Rearden’s failure to live up to a contractual agreement with Yuen more than a decade ago (while Yuen was a deputy corporation counsel for Hawai`i County). After an executive session in which Rearden’s request was taken up with Deputy Attorney General Linnel Nishioka, the board decided Yuen met the legal test of having no conflict, in that he had no financial interest in any aspect of Rearden’s activities. Yuen himself then told the audience that he would go ahead and disqualify himself voluntarily if he had “some intractable bias for or against a particular party, which I do not have in this case.”

‘Stings’

In a long and at times rambling testimony, Rearden disclosed that he had set up what he described as “stings” to entrap members of Hui Lihikai and OCEA staff into making damaging statements. He brought with him tapes of telephone conversations he had secretly taped — tapes that, he claimed, would give irrefutable proof of DLNR staff “communicating with this group … giving them insider information.” “This was a little sting operation we set up ourselves,” Rearden said, referring to himself (as he is wont to do) in the first-person plural. The “insider information,” it turns out, was simply notice of when the group’s petition for a declaratory ruling was tentatively scheduled to come before the board for a decision.

The damning evidence collected (in another secretly tape-recorded conversation) against members of Hui Lihikai amounted to a statement by one of the members that she was opposed to development of any kind along one of the most historically significant sections of coast in the islands. In this “little operation,” Rearden told the board, he had arranged for a friend to call the group’s office and speak as though he wasn’t “tremendously intelligent and wasn’t quite up on these issues.” One of Hui Lihikai’s members indicated the group would help the caller prepare testimony and said further that Rearden “had committed several violations on the property” — a statement that, in light of the OCEA staff’s report, would appear to be a reasonable conclusion.

In the Land Board’s haste last year to adopt new rules (Title 13, Chapter 5) for land in the Conservation District, it overlooked the concomitant need to repeal the existing rules (Title 13, Chapter 2). According to Deputy DLNR Director Gilbert Coloma-Agaram, this hasn’t been a problem, since the old rules were based on a now-defunct section of Hawai`i Revised Statutes (Section 183-41), while the new rules are intended to implement the new law (Chapter 183C).
Still, in order to avoid any ambiguity, the Land Board will be holding a public hearing on the repeal of Title 13, Chapter 2. The hearing will be held on July 13, 1995, starting at 6 p.m., in the BLNR Board Room (Room 132, 1151 Punchbowl Street, Honolulu).

The Board of Land and Natural Resources, under Chairman Michael Wilson, is setting new records when it comes to number of months gone without any minutes of board meetings. In the first half of 1995, the board held twelve regularly scheduled meetings. No minutes exist for any of them.
Minutes are not simply a convenient way of establishing a written record of board actions; they are required by law to be prepared within 30 days of any meeting of a public agency.

— Patricia Tummons

Volume 6, Number 1 July 1995