In March 1991, Environment Hawai`i reported on problems in management of Pu`uwa`awa`a Ranch, what was then the largest single lease of state-owned land. Partly as a result of that, the state House of Representatives established a special sub-committee to look into the matter. Here is a review of what has happened in the years since then.
On December 20, 1991, the state Board of Land and Natural Resources approved a report to the Legislature on the state’s management of land at Pu`uwa`awa`a Ranch on the Big Island. As part of its efforts to resolve the problems, the Land Board imposed fines against ranch owner F. Newell Bohnett totaling $6,500 ($2,500 apiece for two landfills found on the leased premises; $500 apiece for each of three unpermitted buildings).
One of the Legislature’s stated concerns was “the destruction of the dryland lama-kauila forest” by fire. In response to this, the DLNR’s “proposed resolution” was to “prepare an action plan for the lama-kauila dryland forest and other rare plant communities in consultation with the lessee, the Natural Area Reserve System Commission, and interested environmental and community groups and present it to the BLNR within one year.”
That plan was approved by the Land Board on October 22, 1993. Among other things, the plan called for protection of rare plants through the establishment of fenced-off enclosures and construction of additional fire breaks. Cost of carrying out the plan through 1998 was estimated at $1,183,750. In fact, according to Mike Buck, tight budget conditions have meant that few elements of the program have been undertaken. “We haven’t had anywhere near the kind of money called for in the plan,” Buck told Environment Hawai`i. A few areas containing rare species of plants have been enclosed, but little else has been done.
Up In Smoke
The lack of funds has had direct impact on the natural resources at Pu`uwa`awa`a. As evidenced by an extensive blaze in March 1995 on mauka portions of Pu`uwa`awa`a, the need for fire control measures remains as great as it ever has been. According to an April 25, 1995, memorandum to Deputy DLNR Director Gilbert S. Coloma-Agaran from Mason Young, DLM administrator, the fire breaks that the Division of Forestry and Wildlife put in at Pu`uwa`awa`a were “along the highway and were not near the fire area… DOFAW had put in a request to purchase a mower and a tractor to keep the grass under control but this was rejected due to the recent budget cut backs. DOFAW currently has a bulldozer which they used for the fire breaks, but this was deemed too harsh to use in the … conservation zoned area” where the fire occurred.
That March fire, it should be noted, was caused as a result of guests of Bohnett using a cabin on leased land near the border of the area that the state has set aside as a wildlife sanctuary. Hawai`i District Land Agent Glenn Taguchi was asked if the state might be able to be compensated for its damages from the insurance policy Bohnett is supposed to have, naming the state as additional insured. Taguchi said he had not thought of that, but would make inquiries.
Party House, Lodge Still Await Permits
As Environment Hawai`i reported in March 1991, Bohnett had built several structures without bothering to receive state or county permission. The county of Hawai`i had noticed the unauthorized improvements in 1985 and had, at that time, requested Bohnett to apply for the required permits.
An after-the-fact building permit was issued for a warehouse in September 1991. During legislative hearings and in correspondence to the Division of Land Management, Bohnett indicated he was seeking county permits for two other buildings — one a 1,900-square-foot guest house, whose deck juts out over a large reservoir Bohnett built (also without permission); the other a 1,200-square-foot party house.1
In July 1991, Glenn Kobayashi, one of Bohnett’s attorneys, submitted to the county after-the-fact applications for permits for these two buildings. The county Planning Department notified Kobayashi on August 7, 1991, that the applications were incomplete. Consent of the landowner (that is, the state) would be required. In addition, the permits could not be processed until the requirements of Chapter 343, Hawai`i Revised Statutes, were met. This would entail preparation of draft environmental assessment.
At this point, the county’s paper trail stops cold. Nearly four years after the incomplete applications were submitted, the county is still awaiting a response from Bohnett or his agent.
The trail picks up in state files. In August, Kobayashi wrote the O`ahu District land agent at the Division of Land Management a letter, urging the DLM to grant Bohnett’s request that the two structures be declared exempt from compliance with Chapter 343 (although exemptions are granted only for agency actions, not for private actions). Kobayashi also urged the state to agree to give its blessings to the pending county permits. Addressing the matter of the apparent inconsistency of the structures with the lease’s purpose (ranching), Kobayashi noted that while the structures “are not expressly permitted under the ranch lease, neither, however, are they expressly prohibited. Also, the phrase [in the lease] ‘pasturage purposes’ is ambiguous when it comes to determining what structures are not permitted under the lease.”
‘Violations, Oversights’
A month later, Bohnett himself was trying to win the state’s concurrence on the matter of the unpermitted buildings. On September 27, 1991, he wrote Mason Young at the Division of Land Management a letter discussing the two structures, which by this time had been identified as a sore spot to the special legislative subcommittee studying state oversight of Bohnett’s operation. Referring to a meeting of the subcommittee, Bohnett wrote: “We pointed out at the meeting … that all of our ‘violations and oversights’ have been corrected with the exception of the two lakeside structures. I would like to do whatever is necessary to comply with the committee’s desires on these two buildings.” He went on to note that there was “a difference of opinion between our attorneys and yours regarding the legality of having these structures on state lease lands.”
Bohnett said that the guest house had been used “for people who are on special assignment at the ranch such as ‘pump specialists,’ pasture land consultants, ‘casual’ seasonal labor, etc., as well as for some of our friends and guests.” He went on to propose to Young that the state regard the guest house as housing for transient employees — something that would possibly be allowed under lease terms.
Commercial Users
Explaining how the party house comported with lease terms was a bit more difficult. The party house, which Bohnett now referred to as a “community recreation center,” was built, Bohnett wrote, “as a place for us to hold employee meetings, ranch barbecues and employee motivation seminars. Throughout the years, however, it has become a Social Hall that is used more by the local residents than it is by the ranch. Currently we have two to three ranch functions per year. Our neighbors and West Hawai`i organizations use the facility about 15-20 times a year. Commercial organizations use the building four or five times a year.
“It has evolved into a SELF-SUPPORTING COMMUNITY CENTER,” Bohnett wrote (emphasis in original).
Ranch employees and some neighbors were allowed to use the facility without charge, Bohnett continued. Local non-profit organizations had been charged “a very minimal cleaning fee,” while “we charge a higher maintenance fee to commercial users.”
The options for this structure, Bohnett wrote, were to: “continue to operate as we are,” or to “remove the building and let the area go back to ‘wild.'”
“I assume that we will have to go through an arduous process of acquiring variances with various governmental boards and agencies. We are prepared to do this,” he told Young.
Accessorizing
The land on which both structures have been built is in the state Agriculture district and is zoned Ag-20 by the County of Hawai`i. Both state and county laws set limits on the uses to which lands so zoned may be put. In applying for the Special Permit for the party house, Bohnett argued that county zoning ordinance allows “private clubs or lodges, hunting or fishing lodges, and fraternal or social orders” in the Agricultural district, in addition to buildings “normally considered accessory” to permitted uses. “The ordinance contemplates and allows use of the facility, which entails nothing more than the average social lodge or guest ranch,” Bohnett stated in his application.
Bohnett mustered several additional justifications for the party house, including the argument that, “Due to the growing population and demands of the ranch community, there is a need for a facility for recreational and occasional social gatherings and day-to-day services… The facility is a necessary means of making productive use of otherwise inferior agricultural lands.”
In attempting to justify the guest house, Bohnett made similar arguments: “The guest house is a necessary means of making productive use of otherwise inferior agricultural lands. Conventional hotel or other temporary accommodations at reasonable rates for hotel visitors and business invitees are about 20 miles away in Waimea or Kailua-Kona. The availability of facilities for temporary accommodations on the ranch premises alleviates traffic on the relatively dangerous stretches of Mamalahoa Highway serving the ranch.”
Road Remnants Sold by County
In 1992, Bohnett wanted to expand the Pu`u Lani subdivision on his fee-simple land. To consolidate and subdivide the property into residential-agriculture lots, he needed to acquire land over which crossed an old government road. He applied to the Division of Land Management to purchase the remnant road parcel.
On October 23, 1992, the Land Board approved the sale of what were described as “government paper roads” so that Bohnett could proceed to develop “a luxury subdivision.” In the staff submittal, the Division of Land Management addressed the “longstanding dispute between the State of Hawai`i and the respective counties regarding the jurisdiction and ownership of the many homestead and ‘paper’ roads.” A draft of the staff submittal was forwarded to the Department of the Attorney General, the report said, which determined that “paper roads” were not “public highways.” In a memo dated June 8, 1992 (quoted in the staff report), the Attorney General wrote that “a ‘public highway’ is a road that is actually constructed and existing on the ground. Therefore, a ‘paper road’ is not a ‘public highway’ subject to jurisdictional dispute between the state and the counties. Accordingly, paper roads may be considered as ‘unencumbered state lands,’ subject to the jurisdiction of the department.”
Unfortunately, through an oversight, compliance with Chapter 343 had not been attained by the time of the Land Board action. Therefore, the board gave its approval without the benefit of the public notice and comment period provided when environmental assessments are prepared. (For a more detailed discussion, see the February 1993 article “Sale of Roads to Bohnett Raises Outcry” by Environment Hawai`i.) When the EA was finally announced, in December 1992, the several parties that commented raised objections to the sale as anticipated by the Land Board. The private trails group E Mau Na Ala Hele urged that the road corridor be retained “as part of a system of bike paths and trails that will connect communities across the Big Island.” The group also took exception to the identification of the public land as a “paper road”: “In fact, part and possibly the entire section proposed for sale was the main thoroughfare between Hu`ehu`e in Kona and Waimea in Kohala for nearly one hundred years.” The Kona Hawaiian Civic Club shared many of the same concerns.
Representative Virginia Isbell responded by proposing legislation that would have prohibited the state from disposing of remnant roads, paper roads, or abandoned roads altogether. The bill (which did not pass) contained as a proposed finding of the Legislature that “these remnant roads should be considered as important resources that are prime candidates for use as hiking trails, bikeways, scenic corridors, or shared use greenways.”
Bohnett agreed to establish a trail through the subdivision, with “ingress and egress locations” to be worked out in cooperation with the state’s trail program, Na Ala Hele, and a private group, People’s Advocacy for Trails Hawai`i. Following an appraisal of the land in July 1993, the sale price was set at $97,000.
‘Roads in Limbo’
By the autumn of 1993, however, the County Council of Hawai`i began to eye road remnants as a source of substantial revenue. Supporting the council’s position was the opinion of county Corporation Counsel Richard Wurdeman, who opined that “all public highways that are not state highways are county highways or they are not public highways.” In a memo to County Engineer Donna Kiyosaki dated November 13, 1993, Wurdeman continued: “It is my recommendation that the county accept this clear trend of the law and commence a program to dispose of all those roads no longer needed for transportation purposes. To continue to neglect to take advantage of these assets is to forfeit a significant potential source of revenue. All previous opinions of this office, which are inconsistent with this, are hereby rescinded and superceded.”
Four days later, the County Council adopted a resolution authorizing abandonment of the old road at Pu`uanahulu, which was to be sold to the “abutting property owner” at a price to be determined by an appraiser. As a condition of the sale, the purchaser was to “create an adequately signed public access easement” (the same that had earlier been laid out by the state).
The county appraiser eventually assigned a value of $13,300 to the abandoned road — a view that did little to bear out Wurdemann’s view of abandoned roads as “a significant potential source of revenue.” On January 26, 1994, the Council adjusted the appraised value upward to $30,000 and the deal was struck.
To date, no signs have been erected to mark the public path.
1. The term “party house” was used for years – by ranch personnel and others – to describe the smaller of the two structures. Only since 1991, when Bohnett has attempted to justify its existence as a community benefit, has the building been dolled up as a “recreational facility,” a “social hall,” or a “community recreation center.”
— Patricia Tummons
Volume 5, Number 12 June 1995
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