In the Conservation District

Moloka’i Ranch Withdraws Application For Grading as DLNR Pursues Enforcement

In June 1993, Moloka’i Ranch spent $21,800 clearing and grubbing approximately 28 acres of shoreline land in the area of Halena Camp, on the southwestern coast of Moloka’i. The clearing was apparently part of a plan to upgrade the camp and convert it from recreational use by ranch employees to commercial use by ranch visitors.

A year and a half later, Moloka’i Ranch still has not received any of the required permits nor has it any applications pending for the several official approvals needed.

The land lies in the Conservation District, Limited Subzone and also in the county of Maui Special Management Area. Neither the state Department of Land and Natural Resources (which has jurisdiction over lands in the Conservation District) nor the county of Maui (SMA jurisdiction) was consulted before the work began.

In July 1994, more than a year later, Moloka’i Ranch submitted to the DLNR an application for an after-the-fact Conservation District Use Permit along with a draft environmental assessment, prepared by the consulting firm of Michael T. Munekiyo, Inc. But that application has been withdrawn. No further application has been made.

There appear to be several reasons for the withdrawal, although in its letter asking the DLNR to terminate processing of the CDUA, no particular reason was given.

Earlier, the DLNR’s Office of Conservation and Environmental Affairs had notified Moloka’i Ranch that its application had been accepted for processing, with the 180-day processing period to expire on January 15, 1995. The DLNR also reminded the ranch of the need to comply with Special Management Area requirements. Absent this compliance, the ranch was told, the Board of Land and Natural Resources could not approve the application.

Availability of the draft environmental assessment was announced in the September 23 and October 28, 1994, Office of Environmental Quality Control Bulletin.

SMA Concerns

As mentioned above, the OCEA informed Moloka’i Ranch of the need to comply with SMA requirements. Bruce Anderson, deputy director of the state Department of Health and interim director of the OEQC, made a similar observation in a letter to the DLNR dated September 13 (and copied to the ranch). According to Clayton Yoshida of the Maui County Planning Department, that agency also reminded the DLNR of the ranch’s need to comply with SMA requirements.

A check in late October with Maui County indicated that Moloka’i Ranch had not attempted to seek the needed permits for grading or for work in the Special Management Area.

Historic Sites

Contained in the draft EA as an appendix is a report of an archaeological survey of Halena Camp conducted for Moloka’i Ranch by Cultural Surveys Hawai’i in May 1994. The report builds on an earlier survey conducted by the Bishop Museum Anthropology Department some months earlier – although still after the site was graded.

According to the Cultural Surveys Hawai’i report, “archaeological studies have documented the presence within Kaluako’i of adz-making quarries of substantial size scattered throughout the ahupua’a… The ahupua’a name itself means adz quarry. During the present survey, notable quantities of tool-quality basalt flakes were found around and within each of the living sites. This suggests that quarried stone was carried to the coast at Halena from known quarries on Mauna Loa to the northeast or, possibly, from other sites – closer to Halena – that have not yet been documented.”

“The availability of fresh water sources and the access to high-quality tool-making materials, inland planting areas and ocean resources: these characteristics suggest that Halena represents a portion of the west Moloka’i environment that, while harsh, would not have been intractable to the ingenuity and skills of its Hawaiian inhabitants.”

Mauka of the graded area the archaeologists found several intact historic sites, including two rock shelters, a ko’a, or shrine, and an elaborate habitation enclosure. “Several artifacts were also collected from the ground surface of the level plain within the project area,” the report states, “but not from any designated sites. These artifacts lack specific context, likely dragged to their present location from elsewhere in the study area during recent bulldozing activity.”

Incomplete Review

The state Historic Preservation Division of the DLNR was asked by the Office of Conservation and Environmental Affairs to comment on the draft EA. In a memo dated September 28, 1994, Don Hibbard, division administrator, notified the OCEA: “We cannot complete our review of the archaeological inventory survey report because we have not yet received from the applicant or its archaeological consultant a copy of the previous reconnaissance survey report used to prepare the inventory survey report currently under review. We have requested a copy of the reconnaissance survey report because the authors of the inventory survey report have relied upon site descriptions and other data attributed to the prior document.” According to staff at the Historic Preservation Division, the earlier report – the one done by Bishop Museum – was prepared under contract to Moloka’i Ranch and has been withheld by the ranch.

Where To Now?

On September 27, 1994, Eugene Ferguson, engineering manager for Moloka’i Ranch, wrote the DLNR: “Moloka’i Ranch, Limited, wishes to withdraw its Conservation District Use Application… Please terminate all processing of this application at your earliest convenience. We will be submitting a new and expanded Conservation District Use Permit for the reconstruction and improvement of Halena Camp within six (6) months.”

In the meantime, staff at the Office of Conservation and Environmental Affairs have said that they are pursuing enforcement actions against the ranch. The DLNR’s Division of Conservation and Resource Enforcement is following up on the unpermitted work which, according to one staffer, is a clear “outright violation” of Conservation District rules.

Victory for Boaters At Makua, Kaua’i

For the last three years, the use of Makua (Tunnels), beach on Kaua’i’s North Shore as a launching and landing area for commercial boat tours was at the center of a contested case dispute. Parties to the dispute were Wai Ola, an environmental group based on Kaua’i, Clancy Greff, the tour boat operator, and the Department of Land and Natural Resources itself. As Environment Hawai`i has frequently reported, at issue was the commercial use of the beach, in the Conservation District, without compliance with the DLNR rules that would seem to apply. Those rules require, among other things, preparation of an environmental assessment, the holding of a public hearing, and the award of a Conservation District Use Permit.

In late October, the Board of Land and Natural Resources approved a decision and order in the contested case that represents a blow to Wai Ola, which had sought to force Greff to obtain a Conservation District Use Permit and a Special Management Area permit for his use of Makua Beach. At its meeting of October 14, 1994, in Hilo, the Land Board stopped short of approving the decision and order when its deputy attorney general, Linnel Nishioka, discovered at the last minute “that there are a few technical problems with the decision and order.” A vote on the matter was rescheduled for the Land Board’s October 28 meeting, resulting in the BLNR’s unanimous approval of the decision.

The proposed findings of fact, conclusions of law and decision and order was not made public until after the vote. At the October 14 meeting, Nishioka stated that it had been forwarded to Land Board members “a couple of weeks ago” for their review, prior to their making a decision on it.

Land Board Chairman Keith Ahue read a statement, prepared by Nishioka and officially submitted by Dan Quinn of the Division of State Parks, that described – albeit obliquely – the content of the proposed findings of fact, conclusions of law and decision and order. The statement refers to the recommended findings and conclusions of the hearing officer appointed to conduct the contested case hearing. According to the statement, the Land Board would grant the “DLNR’s motion for summary judgment in total… We find that a CDUA permit is not required for intervener Greffs activities in Makua Beach. We also find that compliance with Chapter 343” – the state’s environmental disclosure law – “is either not required or has been satisfied. Finally, we find that an SMA permit is not required because the activity is outside the SMA area and also is not subject to the SMA requirements in Hanalei.” Wai Ola had argued that because Greff puts his boats in the water at Hanalei, Greff had to comply with the Special Management Area rules for Hanalei as well as for Makua.

“Incestuous”

Nishioka’s decision and order mirrors exactly the arguments made to the hearing officer by Dawn Chang, the deputy attorney general representing the Department of Land and Natural Resources in the contested case proceeding. The fairness of having the Land Board sit in judgment on a case to which the department is itself a party was raised last spring by Harold Bronstein, attorney for Wai Ola.

Bronstein made that point in a letter dated May 25, 1994, whose purpose was to object to a closed meeting that the board had scheduled for the next day with unnamed staff from the Office of the Attorney General. The announced purpose of the meeting was to discuss the contested case.

Bronstein objected to the closed meeting, alleging it violated the “essential elements of due process” as well as the law concerning the handling of contested cases.

“Further,” Bronstein wrote, “both the Board and the Attorney general’s office have a severe ethical problem in such a meeting, as there is a patent conflict of interest, as the Attorney General’s office represents a party to this action, i.e., the Department of Land and Natural Resources, the Board’s alter ego, and has in effect defended the Board’s action, as well as having filed exceptions to the Hearing Officer’s decision. Moreover, the obvious incestuous relationship between the Board, the Department, and the Attorney General’s Office simply does not comport with due process or enhance the public’s trust in government.”

‘Odious’

Nishioka responded to Bronstein the next day, informing him that “the undersigned” – that is, Nishioka – would be advising the board on the hearing officer’s recommended decision and order. In answer to Bronstein’s claims of a conflict, Nishioka stated that the attorney general “is mandated by law… to represent the Board of Land and Natural Resources on all legal matters. There are many cases in which the Department of the Attorney General has represented both the Department and the Board.” The Supreme Court, Nishioka said, found that “while it was not proper for the same deputy attorney general to represent both” parties, the court advised that this problem could be solved by calling in “another deputy attorney general who had no part in the adversary hearing.” Nishioka said she had no involvement in the contested case hearing, which was handled for the department by deputy attorney general Dawn Chang.

“Finally, as to your odious suggestion that the Department of the Attorney General, the Department of Land and Natural Resources and the Board of Land and Natural Resources have an ‘obvious incestuous relationship,’” Nishioka wrote: “We strongly disagree… [W]e think our continued legal representation of the Board of Land and Natural Resources is not only proper but warranted under the circumstances.”

(For more on this subject, readers may wish to consult the July 1994 edition of Environment Hawai`i, [url=/members_archives/archives_more.php?id=1292_0_30_0_C]”Board Defers Action on Kaua’i Contested Case,”[/url] (Scroll down to the second topic of the Conservation District Column) June 1994 E.H., [url=/members_archives/archives_more.php?id=1283_0_30_0_C]”Hearings Officer Says CDUA Is Required for Zodiac Boats’ Use of Kaua’i Beach,”[/url] November 1993 E.H., [url=/members_archives/archives_more.php?id=1226_0_31_0_C]”DLNR Alters Policy on Commercial Use of Beaches,”[/url] and scroll down to view all the related articles in the [url=/members_archives/archives1991.php]September 1991[/url] archive of E.H.)

Volume 5, Number 5 November 1994