The Office of Conservation and Environmental Affairs, within the state Department of Land and Natural Resources, has been criticized in the past for its failure to recommend meaningful fines against people who violate Conservation District rules.
You’ll not hear any such complaints from Boyce Brown or Douglas Bonar. In a case involving land on the western side of Hanalei Valley, the OCEA is recommending fines of $1,579,000 against the Boyce Brown Trust, and a whopping $11,583,000 in fines against Bonar.
The OCEA had prepared a submittal recommending these fines for presentation to the Land Board at its scheduled meeting in Lihue on September 11, 1992. That meeting was called off as Hurricane `Iniki approached Kaua`i. The case is tentatively scheduled for Board hearing in April.
Unpermitted Work
The story begins in 1988, when Brown and Bonar filed three Conservation District Use Applications with the OCEA. They requested that they be allowed to use the land, consisting of three kuleana parcels, for residential and limited agricultural purposes. The CDUAs were found to be lacking in certain information, which could only be obtained from work on the site. To do this, Brown and Bonar requested a temporary variance from the Land Board, which allowed “minor clearing and grubbing” necessary to complete the environmental assessments for the CDUAs. Board approval of the temporary variance was granted in November 1988.
In December 1988, Bonar, on his behalf and on behalf of Brown, who had given him limited power of attorney, withdrew the CDUAs, saying more time was needed to provide the additional information needed for processing. By the summer of 1989, Bonar was petitioning the state Land Use Commission, seeking to have the lands placed into the adjoining Agriculture District and removed from the Conservation District. (Bonar withdrew the petition in January 1990, after encountering more opposition than he had anticipated.)
In October 1989, the Department of Land and Natural Resources received a complaint about work being done on the Boyce and Bonar properties. According to the OCEA staff’s report to the Land Board, prepared for the September 1992 meeting, “in mid-October 1989, the Department received a complaint indicating that the subject parcels had been extensively grubbed and graded and that substantial work had been done to realign and improve an access roadway, including the placement of culverts and bedding stones.” The department’s investigators found that four or five acres had been largely cleared of vegetation (except for some mango trees), that the cleared vegetation had been placed in piles and some of them burned, that low areas had been back-filled and that “lots of acres show signs of land contour changes.” Also, an earthen berm had been constructed alongside Wai`oli Stream.
What seems to have prompted the DLNR’s investigation was the Land Use Commission petition by Bonar. As part of this process, the Historic Sites Division of the DLNR was asked to review the archaeological surveys that accompanied the petition. According to the Historic Sites Division, the surveys were incomplete, although they indicated at least nine historic sites were present, including agricultural terraces, an auwai (irrigation canal), walls, and a house site. By November 1989, grading had removed any trace of historic sites on the property.
‘Notice and Order’
On October 24, 1989, both Bonar and Brown were notified by the DLNR that they were in violation of several state statutes and regulations and were ordered to stop any further activity on the site.
Brown, who had left the islands after giving Bonar his power of attorney and was by this time living in Europe, responded to the notice with apparent dismay. “I have no idea what prompted the notice of violation,” he wrote BLNR Chairman William Paty on November 16, 1989. “If I had known that any work was being done in violation of any law, regulation or permit condition, it would have been stopped.”
“I have learned that members of your staff, in particular the head of forestry for Kaua`i has widely circulated a letter accusing me of knowingly violating the law. That is absolutely untrue and constitutes libel per se. … I do not take kindly to such reckless abuse of my reputation. I ask that you advise your staff to stop before they dig themselves into a deeper hole.”
Stream Violations
In February 1990, the Commission on Water Resource Management notified Brown and Bonar that within 20 days, they would be expected to apply for after-the-fact stream channel alteration permits for work affecting the Wai`oli Stream. Bonar responded that 20 days was insufficient time; he still has not submitted any application.
Brown’s response, dated March 21, 1990 (and written from France), said that as he had not seek the work and had not authorized it — and hadn’t even been in the area for two years — he could not be expected to submit the requested permit.
The DLNR’s Division of Forestry and Wildlife, when asked for comments on the apparent land violations, recommended that the land should be restored as close as possible to the condition it was in prior to the clearing and grubbing. Moreover, it recommended “that ALL improvements be removed. This would include the removal of the culverts and roads.”
Finally, the Division of Conservation and Resources Enforcement weighed in with its assessment, after making a second tour of the site on August 12, 1992. Its officers found stakes in the ground, “in a rectangular shape, approximately 12 feet x 20 feet, which appear to be a future building site.” A garden area, planted with papaya, was observed, as were some hand tools covered with a tarp. At least some of these activities appeared to be on adjoining state land.
Calculating the Fines
To calculate the maximum fine, the OCEA staff counted the violations present on each separate tax map parcel. The maximum fine of $500 was imposed for each of these violations, and then that fine was multiplied by the number of days that the violation had lasted.
Thus, Bonar, who owns most of the land, was found to be responsible for a total of 22 violations, which means the fines he racks up each day come to $11,000. As of last September, when the OCEA staff was totaling this up, the meter stood at $11,583,000 (for 1,053 days of violation).
The violations attributed to the property owned by the Boyce Brown Trust came to a more modest $1,579,500.
Besides the fines, the Land Board was asked to impose administrative costs on the landowners. For the destruction of historic sites, prohibited under Chapter 6E of Hawai`i Revised Statutes, the OCEA forwards to the Board the recommendation of the Historic Sites section — specifically, “having the party deposit funds in our special Historic Preservation Fund to form an endowment to provide for the protection and maintenance of other historic properties on Kaua`i… An appropriate figure to get the endowment fund established might be $150,000.”
As to the stream violations, the Board was asked to let the Water Commission decide what penalties, if any, are appropriate.
Volume 3, Number 10 April 1993