A few days ago — Friday, August 23 — an extraordinary event occurred. A feud, simmering for years between two branches of the Department of Land and Natural Resources, broke through the surface, with the Division of Land Management appealing directly to the Land Board to overrule the interpretations and customs of the Office of Conservation and Environmental Affairs.
At the heart of the matter is whether the Board of Land and Natural Resources, as custodian of the state’s land as well as all property within the Conservation District, has the authority and responsibility to regulate passage, for commercial purposes, across the beaches of Hawai`i.
Beaches are in the Conservation District and are state land, to boot. Within the DLNR, supervision of activity — including commercial activity — on land in the former category falls to the Office of Conservation and Environmental Affairs. The Division of Land Management is the line agency charged with overseeing activity on state land.
The [url=http://www.environment-hawaii.org/members_archives/archives_more.php?id=637_0_33_0_C]cover story[/url] in this issue discusses some of the early conflicts between the DLM and the OCEA (formerly known as the Planning Office) over regulation of commercial activity on Kaua`i’s beaches. Starting in the late 1970s, the DLM adroitly dealt with those conflicts by ignoring them. When Clancy Greff attempted to acquire the “land disposition” of Makua Beach at Ha`ena, for example, he got nowhere.
The earliest formulation of the DLM’s position may be found in a memo March 6, 1979, from the DLM’s agent on Kaua`i, Sam Lee, to James Detor, then the DLM administrator. The Division of State Parks had requested “that Land Management do its part to issue whatever permit might be required to cover Na Pali Zodiac’s use of state beach land at … Ha`ena.” However, Lee noted, Detor should “be aware that Na Pali Zodiac has commercial office space in Hanalei… All of their solicitation and booking is done at this location. The use of the beach land at Ha`ena will be limited to transiting the beach between the water’s edge and the county right of way. We are hopeful that no permit will be required.”
Greff eventually was given year-to-year special use permits by the Division of State Parks. In March 1983, Board Chairman Susumu Ono requested that the special-use permits for what were by then two commercial operators landing at Na Pali Coast State Park beaches be dealt with instead through the issuance of long-term leases, and the DLM was instructed to prepare the leases. At the Board meeting December 2, 1983, however, when the matter of the leases came up, DLM Administrator Detor told the Board that he had second thoughts “on the advisability of going ahead with this.” The Board deferred action — indefinitely, as it turned out.
A year later, the Board again confronted the matter of commercial use of the beach at Hanalei when it considered the Conservation District Use Application of Richard Marvin. (Marvin picked up passengers from the beach alongside Hanalei Pier, shuttled them to his boat in the bay, and, after a tour of Na Pali Coast, returned them to the beach. For this use of the beach, he was told, he would need to obtain a Conservation District Use Permit.) On December 28, 1984, the Board granted Marvin the permit, subject to 14 conditions — including, as in the case of Greff’s original permit, the requirement that Marvin “obtain appropriate authorization through the Division of Land Management … for the occupancy of state lands” to the north of Hanalei Pier.
However, before the Division of Land Management had to deal with the Marvin permit, the Board, in June of 1985, adopted a “temporary procedure” for managing commercial boating operations at Hanalei — procedures that called for the Division of Land Management to grant revocable permits to all operators using the beach fronting Black Pot Beach Park or the sandbar at the mouth of the Hanalei River.
Inconsistencies
Of course, Hanalei and Ha`ena were not the only areas in the state where commercial operators were using beaches for one or another purpose. In 1984, the Planning Office considered a Conservation District Use Application from the Maui Sailing Center, which rented equipment and gave windsurfing instructions at Kealia Beach. According to a letter from Ono on April 18, 1984, the applicant’s use of the beach involved “transporting equipment into the water from Kealia Village and back.” “Since the activity … is simply a matter of access and minimal Conservation District lands [are] involved,” Ono wrote, “our determination is that a Conservation District Use Application is not required at this time.”
A similar verdict was rendered on the proposal of Sailboards Kaua`i, Ltd., to give windsurfing instruction off the shore of several Kaua`i beaches. “As your proposed activities are for transit purposes with no difference from public use, a Conservation District Use permit is not necessary,” Ono wrote the applicant on May 21, 1984. Should the applicant wish to use Anahola Beach Park, a portion of which lies within the Limited Subzone of the Conservation District, a Conservation District Use Application would have to be made. Otherwise, the applicant was given a green light for admittedly commercial purposes.
The conflicting regulatory approaches were of mounting concern to staff. This is reflected in a March 29, 1985 memo from the Planning Office to Board Chairman Ono, reporting on a meeting held the previous day “to discuss the general problems of managing commercial uses on state-owned conservation-zoned beaches.” Attending the meeting, according to the memo, were then-Board member Douglas Ing, Deputy Attorney General Dona Hanaike, and four members of the Planning Office staff.
The memo provides “a brief summary of the issues and concerns that were raised at the meeting.” “Two differing philosophies were discussed when considering the CDUA requirement,” the memo notes. “The first states that as long as a use is commercial, a CDUA is required. The second states that a commercial activity may not be a ‘land use’ and therefore a CDUA may not be required.” The memo does not indicate what, if any, decision was reached on this dispute.
“When a commercial activity is determined to have a potential environmental impact which should be controlled or mitigated, a CDUA will automatically be required,” the memo states. “The participants at the meeting felt that a key factor in determining when a CDUA should be required is the potential for environmental impacts.”
As far as the question of beach transiting went, the memo reports that everyone seemed to agree no CDUA should be required. “However, if a problem develops at a specific site,” the memo states, it could be managed “through rules and regulations developed jointly between the Department of Transportation and the Department of Land and Natural Resources.” Alternatively, it could be managed “through a land disposition process administered by Land Management (i.e., similar to [the] permit system developed for volleyball activities at Waikiki Beach).”
If physical occupancy of the beach was involved (for example, storage of equipment, or use of the beach for instruction or commercial services), a CDUA would be required, the group agreed. According to the memo, the group agreed that other activities were to be considered on a case-by-case basis.
“These proposed methods for managing commercial uses on the state-owned beaches will require further discussion and clarification before a firm ‘departmental position’ can be established,” Ono was informed. “A meeting with the entire Board has been tentatively set for April 11, 1985 to discuss this matter further.”1
Unresolved Issues
The DLNR kept the attorney general’s office busy with its requests for legal memoranda on the Department’s regulatory authority and responsibility over commercial activity on beaches. A listing of a dozen of these may be found in an affidavit of April 10, 1991, by Deputy Attorney General Dawn N.S. Chang. (The legal memoranda were held by the state to be privileged attorney-client communications. They have not been made available for public review.)
The Division of Land Management continued, consistently, to maintain that in the case of boaters, at least, the matter involved nothing more than “transiting” the beach in a manner incidental to the commercial activity itself. In other words, nobody paid money to cross the beach; they paid instead for a boat ride. Because the beach lay between them and the boat, crossing it was necessary but incidental to the real commercial use (that of the boat ride).
The Office of Conservation and Environmental Affairs maintained (with somewhat less vigor and consistency) that the Department had the prerogative to regulate commercial activity on the beach. The OCEA position was laid out to the Land Board by Roger Evans on December 6, 1985. Evans recommended that the Board “ratify the staff’s position that: beach transiting, as an incidental activity, provided it is not an integral part of an overall operation, or, not inconsistent or incompatible with the primary purpose of the beach, does not constitute a land use and, therefore, no CDUA is required.”
Attached to Evans’ recommendation was a staff report describing, among other things, various attorney general opinions on the subject. When staff sought clarification, the report states, “we are informed that ‘a CDUA may be required for tour groups who transit a beach in a conservation zone’ to participate in water-oriented activities. However, the opinion goes on to state that ‘the decision as to whether or not a CDUA may be required is an Administrative one’ and ‘the decision to require a CDUA is left to the discretion of the department.'”
Discretion, or Worse?
The policy — we use the term advisedly — that has emerged over time seems to be that decisions are made on a case-by-case basis. Since 1987, the Department of Transportation assumed responsibility for the problem at Hanalei, letting the Board avoid having to decide on a consistent policy with regard to commercial beach use.
What has caused the problem to rise to the forefront again is the Board decision this past July to require Greff to reduce his operations at Makua Beach to no more than two boats at the end of the 1991 summer season. In accord with instructions from the DLNR, Greff submitted earlier this year a Conservation District Use Application to allow him to load and unload passengers alongside Hanalei Pier.
Apparently the prospect of renewed intra-mural argument between DLM and OCEA over the regulation of “beach transiting” by Greff and others prompted the Division of Land Management to take the matter to the Board for resolution. “We do not share OCEA’s position that commercial beach transiting is a land use,” DLM Administrator Mason Young informed the Board. “Merely walking across state-owned lands to get to the water does not in and of itself constitute an appropriate land use for disposition. Thus, [Land Management] believes that beach transiting whether commercial or not does not constitute a land use under Chapter 171” of Hawai`i Revised Statutes.
At the August 23 meeting, Board Chairman Paty informed those present that the fact that this item had come up for Board discussion was something of a mistake. “I’m not sure this should have been on the agenda,” he said. “I’ve asked the division involved to withdraw the item from the agenda,” he added, but, because Kaua`i’s mayor, JoAnn Yukimura, and others from Kaua`i had traveled to O`ahu specifically to testify on this matter, Paty said that the Board would hear them out.
In her testimony, Yukimura took strong exception to the DLM’s position that the Department of Transportation rules were sufficient to regulate beach use. Those rules, she noted, did not even attempt to address land-use problems. “The CDUA process is the logical, practical way to regulate beach activity,” she told the Board. Private companies have “no right to use public resources for profit. It is a privilege” that should be granted only when public benefit is demonstrated.
Kaua`i County Attorney Cathy Watanabe told the Board that the Division of Land Management was seeking nothing less than a change in DLNR rules — but without going through the required public notification and hearing procedures.
Both Paty and Big Island Board Member Chris Yuen spoke to the need to regulate beach activity when there was a significant impact. While acknowledging that it might be impractical to regulate every commercial use, no matter how small, Yuen did say that as the Board sought to develop guidelines to use in deciding when a given activity was of such significance as to warrant regulation, the public should be used as “an antenna.”
With that, the Board approved a motion to withdraw the item from the agenda.
1 No public Board meeting was held at April 11, but there was one on the following day. It is a well-known secret, however, that the Board routinely has closed-door meetings with staff on the eve of publicly scheduled meetings – and in defiance of the state’s open-meetings law. No references to this meeting, other than the reference just cited, is to be found in the files available for public review at the DLNR. A similar clandestine meeting, at which the matter of Clancy Greff’s operations was discussed, was held March 22, 1990. It was inadvertently disclosed by Roger Evans in a letter to Greff on May 1, 1990, referring to a Board decision that emerged from the meeting. In an affidavit April 8, 1991, Evans said he had “incorrectly characterized” what occurred as a meeting and the action taken as a “decision.”
Volume 2, Number 3 September 1991
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