In the Conservation District

Repeated Reports of Violations Near Keana’e Fall on Deaf Ears at DLNR

“Four centuries ago, Kiha-a-Pi’ilani returned to East Maui from the island of Hawai’i to reclaim his kingdom. So numerous were his war canoes that the first ones reached Hana while the last ones were still on Hawai’i. Arriving at Ka’uiki, the warriors found it well-defended, and after losing both men and canoes they fled to the open ocean. Kiha-a-Pi’ilani led them to the small harbor at Wailuaiki, and it was there that they beached their canoes, dismantling them and setting them upright so that they could fit. They then walked overland on the Alanui (King’s Highway) to the site of victorious battles.”

With that recounting of a dramatic chapter in Hawaiian history; the Ke’anae-Wailuanui Community Association opens its comments on the draft environmental assessment prepared for a ranching operation proposed for 63 acres on Kalia’e peninsula, roughly a mile south and east of Ke’anae along Maui’s Hana coast.

A Conservation District Use Application for the “private residential ranch” was received by the Office of Conservation and Environmental Affairs on September 28, 1993 (file no. MA-2671). Notice of availability of a draft environmental assessment was published in the OEQC Bulletin of October 23, 1993.

Owners of the property are Fred Levy of California and Michael Boteilho, whose family used to ranch the land. If the application is approved, Levy has said, he will purchase Boteilho’s interest and then, for “estate planning purposes, turn title to the property over to his California real estate corporation, Pacific land and Cattle, Inc.”

An Obliterated Trail

Were the warriors of Kiha-a-Pi’ilani to return to Wailuaiki today, they might well lose their way to the battle sites. As acknowledged in the CDUA and the draft EA, “The actual trail is not visible on the property’s plateau.” The reason it is not visible (a point not mentioned by the applicant) is because it was bulldozed by one of the owners of the land more than a year ago.

And the destruction of the trail is just one of a host of Conservation District violations that have been verified at the proposed ranch site.

On October 23, 1992, the community association notified the Maui County Planning Department of the bulldozing in the area of the trail, which in fact, is a government road, with fee title resting with the state of Hawai’i. The following week, the community association filed a written complaint with the DLNR’s Division of Conservation and Resources Enforcement, since the bulldozing was in the Conservation District and no permit for it had been obtained.

Independently, a planner for Maui County noticed the clearing while on a flight from Kahului to Hana. When a check of land records indicated the grading had been done in the Conservation District, he, too, notified the DLNR.

Unapproved Grading

An agent with the DLNR’s Division of Conservation and Resource Enforcement inspected the area, confirming the reports. According to his write-up of the “possible CDUA violation,” he found areas that had been cleared “by a large tractor-type dozer. All large guava and other type trees were cleared and placed in brush piles. Further checks of the makai section revealed continued clearing almost to the shoreline cliff area.” About 60 percent of the property had been cleared, by the inspector’s estimate.

A copy of the inspection report was forwarded to the Honolulu Office of Conservation and Environmental Affairs. But rather than find Levy or Boteilho in violation of Conservation District rules, the OCEA determined that the grubbing and clearing were part of the grandfathered ranching activity. In a February 1, 1993, letter to Levy signed by Deputy DLNR Director Jack Keppeler but drafted by the OCEA, the only concerns that the OCEA had at that time were for the proper disposal of grubbed material. The letter directed Levy to the Department of Health, should he desire to burn the piles of cleared vegetation. (Levy obtained such a permit in May.)

According to the community association, bulldozing of the area continued up to the time the association commented on the Draft EA. Attached to its comments were color photographs of the area showing that clearing has occurred as recently as October 1993.

In commenting on the Draft EA, the Maui County Planning Department raised the same point about unauthorized grading and grubbing. In a letter to the DLNR dated October 25, 1993, Planning Director Brian Miskae said, “The photographs included with the subject application do not depict the extensive grubbing and grading which has occurred at the site and which this department reported to your department approximately one year ago. The Planning Department has not viewed a CDUA for the grubbing and grading of the lot and the subject application is silent about the issue.”

An Enlarged Road

The Conservation District Use Application describes the scope of development proposed for the 63 acres. Toward the end of the peninsula, a 6,650-square-foot house (excluding the area of the lanai and pool) would be built. For the horses that Levy intends to keep on the ranch (as a “hobby,” he states), there would be two stables: one enclosed (4,640 square feet), and one open (4,496 square feet). In addition, a storage shed of 3,200 square feet would be built, as well as three water storage tanks, each having a capacity of 30,000 gallons.

With this sort of development, access to the parcel is an important consideration. The Levy-Boteilho land is surrounded by state-owned Conservation District land, but Levy has obtained an easement over a state-owned road connecting his parcel to the Hana Highway. As the community association notes, however, in 1992, Levy locked the gate to the state-owned road where it met the highway. The owners then “placed private property/no trespassing signs on the fence and erected horse statuettes atop the gate posts.” At the community association’s request, the lock was removed.

Use of the state road for access was first requested by Boteilho in September 1991. According to the community association, “Although the road had been used by Boteilho’s father, his predecessor in interest, and the easement approved by BLNR [the Board of land and Natural Resources] in 1976, he never paid for it or completed the paper work.” The September 1991 request sought a 24-foot-wide easement, roughly double the width of the existing roadway In a letter dated October 30, 1991, quoted by the community association, OCEA Administrator Roger Evans responded to Boteilho’s request by noting that the expanded road “qualifies as a new and/or greater use… As such, a… CDUA would be required.”

Boteilho appears to have backed off of the request for the wider access. In a memo to the Division of Land Management office in Honolulu from the Maui office, dated January 14, 1992, reference is made to a request for an access easement of just twelve feet. The only work that the applicants would need to undertake would be periodic replacement of some gravel. “Not much more in the way of maintenance is contemplated at this time and we do not believe a CDUA is necessary since nothing more or different than what exists is planned,” the memo stated.

The community association’s comments document further discussion within the DLNR concerning the access easement request. Although Levy acquired an interest in the property in April, 1992, in May, Maui land agent Alan Tokunaga wrote Roger Evans that Boteilho just wanted to “legalize his use of the road, place gravel for traction when and where necessary and also to clear vegetation of necessary.” Again, Evans was told, no expansion of existing use was contemplated, so, Tokunaga concluded, “we do not believe that a CDUA is necessary.”

Despite the assurances of Tokunaga, in the summer of 1992, “the entire length of the road was bulldozed to a width of over 20 feet by owners, according to the community association, which continues: “This was no mere ‘trimming of vegetation.’ Huge trees were knocked down. No erosion control measures were taken. Huge mounds of dirt were piled up on the sides of the road, left to wash into the streams below… Subsequently the entire 5,000′ length of the road was graveled to a width of over 20 feet. The part which can be driven on measures 14′ to 16′ in most places.”

Notice of an environmental assessment for the proposed access was published in the OEQC Bulletin of December 23, 1992 – although the proposed use was simply to maintain an existing dirt road. Periodic use of crusher waste is the only expanded maintenance being proposed. The EA was withdrawn by land Board Chairman Keith Ahue on July 12, 1993, who explained to the Office of Environmental Quality Control that since the proposed easement would be “within the existing road and not beyond its existing boundaries… the proposed use is not an expansion … and can be considered as an exempt class of action” under the state’s environmental assessment rules.

Notwithstanding the vastly expanded road, on July 23, 1993, the Land Board approved the sale of an easement to Boteilho. But before any roadwork could begin, the land Board required Boteilho to “obtain subdivision approval from the County of Maui.” According to the community association, such approval has yet to be granted.

Exasperation

In the community association’s summation of the unauthorized expansion of the roadway, a tone of exasperation infuses its comments: “For over a year DLNR has chosen to ignore facts of which it has been well aware. Owners have already vastly widened and improved the access roadway; they have indeed ‘commenced construction.’ They have already expanded and intensified the use. They have already gone way beyond the easement granted to Boteilho. They have already made substantial unauthorized use of government land. They have already caused vast environmental damage. But they have not yet been held accountable.”

In addition, the association claims, the draft EA misrepresents the width of the easement, claiming it to be 15 feet. According to the association, the legal easement remains merely 12 feet.

Besides the expansion of the road, the community association reports that “deliberate diversion cuts have been made to the edge of the Kopiliula cliff. We recently reported that in several places a six-foot swath has been carved out of the almost vertical cliff face by the raging rivers of gravel and mud that flow over it during times of heavy rainfall. In one place all the vegetation below has been taken, except for a few trees whose roots were exposed up to a depth of several feet.” A photograph attached to the comment bears out the claim.

The association’s fears are echoed in the comments of the DLNR’s Division of Aquatic Resources. “It was noted that the land area for the proposed residential ranch had already been cleared and recent rains have already added to runoffs into Kopiliula Stream,” wrote aquatic biologist Glenn R. Higashi on November 9, 1993. “This poses an immediate problem for soil erosion and sedimentation with the oncoming winter rainy season. Therefore, appropriate soil conservation practices should be implemented immediately.” Higashi pointed out that Kopiliula Stream is ranked as one of the state’s exceptional streams “with all the major native freshwater species present: the two species of endemic mollusks, five endemic species of gobiioid fishes, the endemic prawn, and the freshwater shrimp.”

Holding to Tradition

Perhaps the most important concern of the community association has little to do with any direct environmental effect, but with the long-term impact that the presence of the deluxe hobby-horse ranch might have on the community.

“Ke’anae-Wailuanui is one of the last remaining traditional Hawaiian taro-farming and fishing communities,” the association writes. “Our population is about 200, about 90 percent of whom are Hawaiian. The community is unique, composed mainly of small freehold Hawaiian taro farmers. There has been no disturbance from large-scale mechanized agriculture or urban development. The area is quite remote and was not linked to other areas by automobile until 1926. Many Hawaiian cultural traditions persist, especially wetland taro cultivation, which has created a unique Hawaiian landscape, and fishing and gathering…

“Our homes are modest, many older homes consisting of less than 1,000 square feet… They are not obtrusive; they blend well with the natural environment.

“Into this cultural landscape Levy proposes to thrust a 6,675.5-square-foot Southern California style stucco mansion…

“It is critical that the building not interfere in any way with free passage over the [restored] Alanui. Such interference could be other than blatant physical blocking of the way. The concept of ho’okipa or hospitality, is very important in Hawaiian culture. Hawaiians will generally not go places where we feel we are not welcome… The very presence of such a mansion near our fishing trail will intimidate many from ever traveling the trail. This building should be put out of sight of the Alanui…

“The social and economic impact of such a structure on the community must also be discussed. The development will no doubt result in a huge increase in property values in the area. This is not a benefit to our community but rather a tragedy. The increase in property taxes … will make it more difficult for us to hold on to our land… Allowing a mansion like this will also increase the likelihood that others will follow. The cumulative impact of this type of social, economic, and cultural change must be discussed.”

Adding insult to injury, the application itself has been improperly filled out. The space on the application form where the applicant is to be identified has been left blank. In other words, this is an application without an applicant.

The community association has asked the DLNR to hold a public hearing on this application. The county Planning Department has seconded the motion. As of press time, the DLNR had not responded to the request.

Information Highway At DLNR Is a Toll Road

The Ke’anae-Wailuanui Community Association ran up against a number of obstacles in its efforts to document events related to the Levy residential ranch application. The roadblocks were described at some length in a letter dated November 29, 1993, to land Board Chairman Keith Ahue from Elaine Wender, a member of the association.

When Wender requested a copy of the environmental assessment, she was informed by the OCEA staff that no copies were available. A copy would be made for her, she was told, but she would have to pay the DLNR’s standard copying charge of fifty cents a page. She did this.

Then Wender visited the DLNR’s Maui office “to check the file on this project,” she told Ahue. “I wanted to review the comments of other agencies and groups. I was surprised to find no such comments.” She called the Office of Conservation and Environmental Affairs in Honolulu once more, and was informed that that office does not provide any of the comments to the Maui office. “The only way I could review the file,” she told Ahue, “would be to fly to Honolulu.” OCEA staff planner Roy Schaeffer did offer to provide the documents, again at a cost of fifty cents per page. “I therefore ordered from him a number of pages, which I might or might not really want; it is impossible to know without seeing them.”

Schaeffer also informed Wender, she said, that “we would not be sent copies of any other documents, such as the final EA, and that OCEA would not require the applicants to provide them to us.”

“These policies,” Wender told Ahue, “in the face of the requirements for public consultation required by the EA process. I have commented on many DEAs [draft environmental assessments], EAs, and EISs in the past. In all prior cases I have been sent a copy of the document when I requested it, and have received copies of subsequent documents.”

Wender suggested that Ahue change DLNR policies so that all documents produced pursuant to Chapter 343 be given free of charge to all parties wanting to comment; that a duplicate file on Conservation District applications be maintained in the DLNR’s office on the island where the proposed activity is to be carried out – or, at the very least, that such a duplicate be made when it is requested; that the DLNR waive copying charges for nonprofit organizations; and that “any person or organization who has requested to be notified and/or consulted concerning pending applications should be so notified and/or consulted.”

The DLNR’s copying charges are the highest of any state agency. Most agencies charge twenty-five cents.

Conservation District Report Ready for Review

The “discussion draft” report of the Conservation District Review Project is available for comment. The document grows out of discussions that began last summer involving representatives from state and county agencies and a number of private-sector interests. However; the report states, although the “input of a hard-working, broad-based Project Advisory Committee was absolutely essential to developing the content of this document, readers should view this Discussion Draft as a DLNR product.”

The overall aim of the changes proposed seem directed at making the process of obtaining approvals for Conservation District permits more “user-friendly.” The term “user” is quite narrowly defined, however, and does not include the public at large. Rather, private landowners seem to be the only users to whom friendliness is shown.

To make the process “friendlier,” the document proposes establishment of a hierarchy of permits. Review by the Board of Land and Natural Resources would still be required for the more ambitious proposals. For projects involving apparently less environmental disturbance, permits could be issued administratively (that is, without Board review and approval). Finally, a third class of’ ‘allowable’ uses is proposed, which could be undertaken without DLNR approval of any sort and possibly even without DLNR notification.

The controversial award of conditional use permits would be eliminated. Instead, DLNR regulations would be expanded to include a catalog of all conceivable actions that might be proposed for the Conservation District subzones. If a proposed use was covered as one of these “identified uses,” application could be made for it much as permits for so-called “permitted uses” are now applied for. In the event that a permission is sought for a use not listed in the catalog of “identified uses,” the new scheme would allow the applicant to seek a variance, which – in theory, at least – would be granted only in cases of demonstrated hardship.

The discussion draft acknowledges that enforcement of Conservation District regulations leaves much to be desired. Ensuring compliance with Conservation District permit terms is another difficult issue. The discussion draft discloses that the Office of Conservation and Environmental Affairs and the Division of Conservation and Resource Enforcement (both DLNR line agencies) have agreed on a two-tiered system of processing violations, with the determination of violations and penalties for major infractions being made by the Land Board, while minor infractions would be dealt with administratively.

As for ensuring compliance with permit terms, the authors of the discussion draft seem to believe that violations here result from ignorance whose remedy lies in a program of community education. While ignorance may account for some of the violations, in a number of cases (including several that have been the subject of reports in this newsletter), the infractions seem to be willful – and thus resistant to remedy through a program of education, however well designed that program may be.

In discussing enforcement problems, the draft states that review of “all violations” by the Land Board, however small they may be, “crowds the Board’s agenda and causes delays in processing.” The statement is not supported.

Most violations that come to the Board’s attention are problems that have come to light in the course of a Conservation District Use Application. Dealing with them is not nearly as burdensome as the draft report suggests.

The far greater problem lies in the volume of violations that never make it to Board review. According to the DLNR’s 1991-92 Report to the Governor, during the last fiscal year the Office of Conservation and Environmental Affairs concerned itself with 61 violations, 39 of which (nearly two thirds) were unresolved by the end of the fiscal year. The record is even worse for prior years. In 1987-88, for example, 83 percent of the alleged violations went unresolved. For the last five years for which statistics are available, the OCEA has resolved on average just 62 percent of the violations it handles. The discussion draft mentions the backlog of unresolved violations, but apart from blaming almost all problems on a shortage of personnel, it provides no analysis of the nature or scope of the resolved and unresolved violations.

The discussion draft is larded with statements that one of the goals of the review of Conservation District procedures is to “sure public input” and “enhance the level and quality of public participation.” One will search the report in vain for any proposals designed to achieve this enhanced level of public participation and review.

According to DLNR Deputy Director Dona L. Hanaike, the DLNR “will be scheduling statewide public information meetings” on the proposals in January and February.

For a copy of the draft and for more information, readers should telephone OCEA Staff Planner Ed Henry at 587-0377 (O’ahu).

— Patricia Tummons

Volume 4, Number 7 January 1994