In March 1992, Environment Hawai`i reported allegations of illegal bulldozing, cattle trapping, and construction in the ahupua`a of Kukuiopa`e in South Kona. At that time, the Department of Land and Natural Resources characterized its investigation into the allegations as pending and so would not provide any information on the case. Since then, Environment Hawai`i has obtained documents that disclose particulars of the violations — including the fact that the investigation was closed, with an enforcement action taken, four years before our own request for information was made.
The Department of Land and Natural Resources became aware of the existence of a cabin, cattle traps, a horse paddock and pasture, and newly bulldozed roads in the South Kona Forest Reserve in the spring of 1986. A biologist with the DLNR’s Division of Forestry & Wildlife discovered the trespass when he was conducting a bird count in the area. No permit had been issued by the state for such use of the land. The DLNR’s Division of Conservation and Resource Enforcement was asked to investigate.
According to the biologist, the roads, the cabin, and the horse pasture were of recent construction.
Before the year was out, DOCARE had interviewed the party responsible, Clarence Medeiros, Sr. Medeiros freely acknowledged bulldozing the roads, trapping the cattle, and building the cabin. According to DOCARE officers, Medeiros said he had no idea he was violating any law. He said he had tried to get a lease for ranching at Kukuiopa`e — an area that, years past, was assigned by revocable permit to Yee Hop Ranch, which owns adjoining land. When he and his father spoke with the Hawai`i District land agent, Glenn Taguchi, about getting a lease, they were told the lease would have to be bid at public auction and, before anything else, a legal right of way to the land would have to be established, since the only existing access was through Yee Hop.
The obstacles to leasing the land were apparently great enough to daunt Medeiros. Still, he said, he had cattle on the property, and so asked Taguchi if it was okay to leave the cattle there. According to Medeiros, Taguchi said fine. Things remained that way until Yee Hop denied Medeiros access to the forest reserve land, which, Medeiros told DOCARE, left him with no way to get to the horses and cattle he still had up there.
At that point, Medeiros said he approached a friend, veterinarian William Bergin of Waimea, for assistance. Bergin obtained the permission of Magoon Ranch to use an old road leading to the Kukuiopa`e area as alternative access. In exchange for using this right-of-way, Medeiros said, he agreed to maintain and repair the abandoned roads into the area.
Access to the area could also be gained over old roads across adjoining state land, Medeiros said, and so he again asked Bergin for assistance — this time in getting Taguchi’s approval to “repair” the old road across state land leading into the forest reserve. Taguchi denied ever granting such permission, although according to Medeiros, Bergin led Medeiros to believe that Bergin had obtained Taguchi’s approval both to clear the old road over state land as well as to build the cabin. The DOCARE investigating officer who interviewed Medeiros believed Medeiros was “quite sincere and adamant that he did all of this work in good faith only after he was given the go-ahead.” Medeiros, the officer said, promised to “cease all work on the property until such time as he is contacted by a state official.”
On December 24, 1986, the investigators’ report was sent to Roger Evans of the DLNR’s Office of Conservation and Environmental Affairs, which is responsible for enforcing Conservation District rules. There it appears to have languished for more than a year.
Business As Usual
In the spring of 1987, the same biologist who discovered the cabin in 1986 conducted another bird survey in the same area of South Kona. Once more, he reported that the cabin, roads, and pens appeared to be in ongoing use. On June 16, 1987, his complaint was forwarded to DLNR Director William Paty by Ronald L. Walker, acting administrator of the Division of Forestry and Wildlife. Walker pointed out the need to determine what action (if any) had been taken after the same violations were reported the previous year, what rules (relating to the Conservation District, the Forest Reserve, Land Management, or other sector) these actions might violate, and what actions should be taken. Walker concluded by recommending “a meeting of representatives of OCEA, Division of Land Management, Division of Conservation and Resource Enforcement, Division of Forestry and Wildlife, and your office as soon as possible to discuss this matter and possible corrective actions.”
Stall-Out
No meeting was held — or at least, no meeting to which Walker was invited. Instead, the matter appears to have dropped out of sight for another year.
On May 6, 1988, Rick Scudder, chair of the Conservation Council for Hawai`i wrote Governor John Waihe`e to “express our strong concern over the continuing lack of action by the Department of Land and Natural Resources over the violations in the Kukuiopa`e section of the South Kona Forest Reserve.”
Scudder’s letter was forwarded to Roger Evans of the OCEA. On May 11, 1988, Evans asked DOCARE for a “follow-up on the initial investigation of this complaint.” Lawrence Terlep, acting Hawai`i branch chief for DOCARE, responded within the week. “Our records indicate that the completed investigation report, along with original photographs, was sent to OCEA on 12-24-86,” Terlep wrote in a memo back to Evans dated May 18, 1988.
Ron Walker of DOFAW also got a copy of Scudder’s letter. He reminded Paty that in 1986 and 1987, his own staff had reported the violations, and that his recommendation of a meeting of agency representatives was still pending. Betraying no little exasperation, Walker wrote: “As the Division of Forestry and Wildlife has provided known information on the violations; as DOCARE has made an investigation of the violations; as some violations have occurred on unencumbered state lands; and as the Conservation District is involved, I reiterate my recommendations of June 1987. An appropriate response to the complainant could then be formulated. Lacking information on what ensued after the reports were provided and the investigation was conducted, I am not prepared” to formulate a response.
In July 1988, Scudder again wrote Waihe`e. The governor was reminded of Scudder’s request for a report on the violations two months previous. Again, Scudder requested that his organization be informed of measures taken to address the problem.
Action!
This time, Scudder’s letter appears to have prompted a flurry of activity — although none of it was made known to the Conservation Council.
Paty received a copy of Scudder’s letter from the governor’s office and forwarded it to the new administrator of DOFAW, Calvin W.S. Lum, a veterinarian. Lum informed Paty on July 19 of the actions he had taken. He had authorized “a reconnaissance to Kukuiopa`e with DOCARE and Land Management… If current illegal activity is verified, I have instructed the District Forester to gather sufficient evidence to identify the violator… I have also advised the District Forester to suggest to the Land Agent that he prepare a Notice to Cease and Desist in the event illegal activity is verified in their jurisdiction. Administrative penalties can follow.”
On July 25, 1988, Joshua Agsalud, Waihe`e’s right-hand man, wrote Scudder. In 1986, Agsalud said, The DLNR was made aware of the violations and investigated the matter. “As a result of that investigation the DLNR was assured by the violator that he would cease all illegal activities immediately.
“Due to the inaccessibility of the site, the difficulty of determining land boundaries, and problems in locating the individuals who were responsible, another investigation triggered by information received in your letter of May 6, 1988, has been taxing. We have been assured by the DLNR, however, that this matter will be resolved and corrective actions taken without further and unnecessary delays. DLNR will notify you of the final disposition of this case.”
To date, Scudder said in a recent interview, he has received no notification from the DLNR of any action taken. He has called several times, he said, but was never told anything.
Cease and Desist
Three days before Agsalud’s letter, the “reconnaissance” team made a site visit, which verified ongoing illegal activities on land that encompassed two jurisdictions of the DLNR: unencumbered state land (under the jurisdiction of the Division of Land Management) in the Agriculture District, and, in the South Kona Forest Reserve, land in the Protective subzone of the Conservation District, which is under the auspices of the Office of Conservation and Environmental Affairs. “It is apparent that suspect(s) are continuing to use newly constructed road,” the investigators found. “Signs at the cabin indicate that recent usage over a period of several days had occurred. The cabin is well maintained and the immediate area surrounding the cabin shows usage. The outhouse still contains fresh toilet paper and the storage shack next to the main cabin contains personal items such as a horse saddle, bridle, and other items.” Photographs accompanying the investigation report show an outhouse on which has been hung a sign: “Intensive Care: 1 Person at a Time.” Other photographs show a large koa tree felled by recent bulldozing, a holding pen for horses, and a trailer parked near the cabin, as well as several views of the illegal roads.
Terlep consulted with Evans, the OCEA administrator, following confirmation of the violations. In a memo dated July 29, 1988, to the Hawai`i district forester and Hawai`i district land agent, Terlep reported that Evans “recommended that the district forester and the district land agent handle their respective lands accordingly.”
On July 30, 1988, Medeiros was served with a formal notice of violation of Conservation District rules (bulldozing and clearing or construction in the Protective subzone of the Conservation District without a permit). The order, signed by William Paty, warned Medeiros that the DLNR “shall seek a court order to enforce … and to include a five-hundred dollar fine per day” if the illegal activity did not cease at once. This represents the enforcement action by the OCEA, although requests for information about any fines paid have not yet been answered.
At the same time the Notice and Order was served, Medeiros also received two citations for violating of Division of Forestry rules prohibiting damage or disturbance of natural resources, and prohibiting the use of machinery or equipment in the Forest Reserve. This represents the enforcement action by DOFAW. Again, no information could be obtained on whether fines had been imposed or paid.
Finally, DOCARE officers, accompanied by Medeiros, removed Medeiros’ locks from the gates leading into the Kukuiopa`e area and replaced the locks with ones belonging to the state.
There seems to have been no pursuit of violations of Division of Land Management regulations. However, at one point, Terlep, branch chief of DOCARE, did invite the county prosecuting attorney to look into criminal prosecution of the case. The Office of the Prosecuting Attorney declined.
Was Land Board Involved?
At several points, documents obtained by Environment Hawai`i suggest that the Board of Land and Natural Resources participated in the decision to resolve the case by issuance of citations and a cease-and-desist order. On July 31, 1988, for example, DOCARE Officer Charles Nahale, one of the investigators in the case, wrote a report of the previous day’s events. Nahale said he had been informed by his supervisor, Terlep, that “the following determination was set forth by the Board and representatives of the divisions involved: A Cease & Desist order was issued to the defendant and will be served by this officer. Two citations for Forestry violations is to be served on the defendant also.”
No board action was taken — at least not in any publicly noticed meeting. Board members were apparently sent copies of the cease-and-desist order, according to information at the bottom of the notice. In any case, Terlep certainly was acting in the belief that the enforcement actions had or would be blessed by the Land Board. In a memo dated September 9, 1988, to Glenn Taguchi, Terlep referred to the Kukuiopa`e investigation: “It is our understanding that as a result of this particular investigation, board action will be taken against Mr. Medeiros.”
A review of board meeting agendas from 1988 to the present does not show that this matter was ever taken up by the Land Board.
Another Violation…
When the “reconnaissance team” placed the South Kona Forest Reserve under surveillance on July 22, 1988, it came upon evidence of other illegal activity in the area. After the ongoing illegal activity at Kukuiopa`e had been confirmed, the team traveled east to check other areas of the Forest Reserve. In the Ka`ohe watershed area, the investigation report states, “we observed a large dozer, possibly a TD-25 or a D-9 … parked next to the Ka`ohe cabin. Parked next to the cabin was also a military-type (gamma goat) [vehicle] with a fuel tank on the back. The area makai or below the cabin as well as the back of the cabin was cleared and leveled. Closer checks of the area also learned that a road was recently made leading from the cabin north over the lava flow and through state land.”
The area around the cabin is owned by the Yee Hop Ranch, which is in the Agriculture District. It is not illegal to bulldoze roads in the Agriculture District. However, the road leading northwest from the cabin appeared to travel over state-owned land a distance of more than two miles. “This entire length of road, 2.2 miles, was recently dozed as fresh, uprooted trees and soil was observed,” a DOCARE officer reported.
By August 4, 1988, the investigator — Nahale — had identified and interviewed the man who had done the bulldozing. This time it was Warren Matsumoto, an employee of Yee Hop Ranch.
According to Nahale, “Matsumoto related that he is the person that cleared the road at Ka`ohe. He went on to say that this was an existing road, which he improved upon, making it easier to move the cattle around. He went on to say that presently they are not using this area for grazing and he is in the process of putting these pastures in use again. He has been working on the road for the past three weeks… Matsumoto stated that McCandless Ranch wants to harvest koa logs from their property and this is one of the main reasons for improving the roads. Matsumoto was reminded that Yee Hop used to lease these unencumbered state lands at one time. If he wishes to use these lands again for pastoral lease he should apply for the lease with Land Management. He was informed of the violation at Ka`ohe and that this case will be referred to [the Division of] Land Management for review and perusal… Matsumoto related that he is going to contact Dickie Chun, the land owner, and inform him as to what is going on here. He further stated that he will ask Chun to try and obtain those abandoned leases.”
According to Nahale, “the area in which the road was made, northwest of the Ka`ohe cabin, is in a questionable area. The road was dozed on what appears to be the boundary between unencumbered state land and Ka`ohe Forest area.” If the road is on the former, the Division of Land Management would be the offended agency responsible for enforcement. If in the Forest Reserve area, enforcement would be a matter for either the Division of Forestry and Wildlife or the Office of Conservation and Environmental Affairs.
A survey would be needed to determine the jurisdictional question, Nahale noted.
In any case, Nahale obviously felt an obligation to commit his findings to writing: “This writer is submitting this report so that some action be taken to stop further unwarranted activities within the state-owned lands. The suspect in this case related that the roads he pushed were already there and that he just up-graded its condition so transfer of cattle and koa logging would be faster and easier. The maps provided by [the Division of] Forestry does not indicate that there are or were roads in this area. It will also be recommended that a close monitoring of this area be maintained so that the koa logging does not wander onto state lands.”
Environment Hawai`i requested information on the status of this case. By press time, no response was forthcoming from the Department of Land and Natural Resources.
… And More Of the Same
In March 1995, the Division of Forestry and Wildlife and staff of the U.S. Biological Service were conducting forest bird surveys in the South Kona Forest Reserve. According to a DOFAW wildlife biologist (the same who reported the Kukiopa`e violations nine years before), the member of the team walking a transect through the Ka`ohe 1-3 section of the Forest Reserve “reported finding a recently bulldozed road and active pig traps at about 3,500 feet elevation. This forest reserve has been the site of illegal road construction and trapping in the past and this practice appears to be ongoing.”
DOCARE is investigating.
— Patricia Tummons
Volume 5, Number 12 June 1995
Leave a Reply