BOARD TALK

Malaekahana Park Managers Stay While DLNR Seeks a New Lessee

The Friends of Malaekahana (FOM), which has managed the 36-acre Kahuku section of the Malaekahana State Recreation Area for nearly 20 years, on O`ahu’s north shore, has dodged eviction, but its future there is still far from secure.

At the meeting of the Board of Land and Natural Resources in late January, the Division of State Parks recommended ousting FOM, restarting its search for a long-term lessee, and issuing a revocable permit to a new entity to run the park until a lessee is selected. It also recommended authorizing the Land Board chair to collect money from FOM for one of the park’s cabins that burned a few years ago.

But after hearing heartfelt testimony from several supporters and members of FOM and a lengthy explanation by FOM director Ipolani Tano of its fractured, and in the board members’ eyes, hamstrung efforts to manage the park, the Land Board voted to issue a revocable permit to FOM allowing it to stay on for the next several months.

In the meantime, FOM must work with State Parks to address wastewater and cesspool violations identified by the federal Environmental Protection Agency and the state Department of Health in 2009. If the Department of Land and Natural Resources does not shut down its large capacity cesspools (LCC) by next month, the DOH could fine it $25,000 per violation per day.

Despite the threat of fines, as well as a number of other outstanding management concerns, Big Island Land Board member Robert Pacheco said, “I do have a problem with throwing the baby out with the bathwater.” He added that he doubted State Parks could care for the park any better. “I don’t see it,” he said.

A Long Time Coming

As both oral and written testimony showed, FOM supporters couldn’t understand why the DLNR would want to close the park — “a gem to our community,” according to one young woman — and evict the Friends. Some of them speculated it was for economic or political reasons.

They were wrong.

In addition to the potential fines by the EPA/DOH, State Parks administrator Dan Quinn told the Land Board that FOM had conducted unauthorized grading, construction, and landscaping; owed the division thousands of dollars in overdue water bills; allowed a historic cabin to burn without having fire insurance; and, without a permit or a lease for the past six years, had no legal right to be there.

“Management at Malaekahana is a mess. We should have gotten to it earlier. … It languished and now it needs to be addressed,” he said.

In 2004, FOM was the sole bidder in response to the division’s request for qualifications/request for proposals (RFQ/RFP) to find a long-term lessee. Although State Parks tried as late as 2007 to issue FOM a lease, disputes over requirements, including an appraisal, an environmental impact statement, and a development agreement, killed the deal. Because the FOM fell behind on its water bill in the meantime, the division could not renew FOM’s permit before it expired at the end of 2006.

Even so, FOM continued to manage and improve the property, grading cabin sites and installing yurts, despite letters from State Parks to cease and desist.

Then in April 2009, the DOH and the EPA notified State Parks that Malaekahana contained ten unpermitted wastewater systems and five active LCCs, which were banned by the EPA in 2005. The parties later agreed on an action plan, which called for the closure of the illegal facilities next month.

A Bad Marriage

To O`ahu Land Board member John Morgan, State Parks may have expected too much from its manager.

In response to Morgan’s question about why there weren’t more bidders in 2004, Quinn noted that the improvements his division included in the RFP would have cost $4 million, in addition to the cost of doing an environmental impact statement.

Morgan suggested that the division had proposed a business model that made little sense.

“Nobody else, maybe with a sharper pencil, threw their hats in. Maybe it was an unreasonable goal,” Morgan said.

In her rebuttal to Quinn’s statements, Tano agreed with Morgan, stating that the request for proposals was “poorly conceived.” She also painted a picture of FOM as an organization committed to caring for Malaekahana, but thwarted by bureaucrats.

She said FOM had removed 32 abandoned vehicles and 50 tons of trash from the park, invested $2 million in its water system and $250,000 in yurts, employed nine permanent and eight casual workers, and hosted more than 35,000 visitors a year. In total, she said, FOM had spent $4 million on improving the park. She added that $500,000 in grant funds for further improvements had to be returned because FOM lacked tenancy, a situation that led to the cabins becoming dilapidated.

“We were told we’re not authorized to fix them. We’re embarrassed by the cabins,” she said.

The FOM had tried since the mid-1990s to get the state to allow it to restore the Kawananakoa cabin that eventually burned because of faulty wiring, she continued. In 2008, the FOM sent the DLNR four emails over eight months regarding its tenancy, with no response, she said.

“[Former DLNR director] Laura Thielen only responded after the cabin burned down, blaming us and saying that we owe $6,000 for the water bill,” Tano said. “I take extreme offense to those statements.”

The FOM just wants is to be treated fairly, Tano said, pointing out that State Parks has issued long-term leases to other non-profits to manage its facilities and not required them to pay for an appraisal or conduct an EIS.

Zane Bouvette, who provided FOM with the yurts, claimed that State Parks staff has a “vendetta” against park manager Craig Chapman.

“We were stonewalled and screwed every step of the way,” Bouvette said.

To Kahana resident Jim Anthony, FOM was entitled to a long-term lease. “They’re not perfect. They’ve made some mistakes, [but] done essentially good work. Community support, money … those things don’t often come together in one package,” he said.

Working it Out

“Much has been said. … Regardless, we have no permit in place right now. We need to have a decision,” Quinn told the board after the public testimony ended.

He said his division intends to keep the park open and undeveloped, however, it would like to make some improvements.

“We want to make sure they’re done legally. We don’t want to be surprised,” he said, referring to FOM’s past actions. “Construction of eco-cabins is not treading lightly.”

To Morgan, the FOM had made a good case.

“There are obviously issues of compliance. Accompanying all that is this bad relationship. I would like to see both parties adopt a win-win solution … rather than a burn the bridges right now kind of approach,” he said.

That being said, Morgan thought the park needed improving and supported State Parks’ recommendation to reissue an RFQ/RFP for a new park manager.

Board member Pacheco didn’t seem to think all the blame for the park’s problems should be laid at FOM’s feet.

“Any relationship that’s not working, both sides are bringing something to it. … You can’t put the cesspool stuff on them when they don’t have a legal agreement [to fix things],” he told Quinn. “They’ve never had a functional lease to put in millions in capital improvements.”

In the end, with the understanding that all of the LCCs would shut down as scheduled and that the FOM would work with the department on resolving all compliance issues, the Land Board unanimously approved a six-month revocable permit for FOM. The board also authorized its chair, William Aila, to issue a request for qualifications/request for proposals for a long-term park manager, appoint an evaluation committee, evaluate proposals, and select the best offerer.

* * *

Standoff Over Seawall Nears Resolution

One can never be too careful when buying beachfront property in Hawai`i. California resident Tom McConnell is finding that out the hard way.

In 2002, McConnell’s company, TLM Partners, Ltd., bought an old 1930s-era house along Niu beach, knowing that the attached lanai encroached on state land. He told the Land Board in January that he did not realize that the fast land and 6-foot high seawall makai of his lanai were also encroachments. He learned that only after he began the process of rebuilding the old house.

A shoreline certification, often required for work in coastal areas, revealed that the wall and some of the land behind it sat beyond his property line. Believing he needed an easement to keep the wall, which was built pre-1950 and fronts several properties, McConnell sought and received one from the Land Board in 2008. Before seeing the easement document, McConnell paid the DLNR the cost of the easement: $135,135.

But after reading the final document, which required him to post signs on the wall announcing it was public property and obtain permits to maintain or repair the wall, he wanted out. And he wanted his money back.

“[D]ue to personal reasons, including health issues and the fact they no longer had the ability to travel to Hawai`i to reside at the property, the McConnells decided not to proceed with rebuilding,” wrote McConnell’s attorney Gregory Kugle in a January 26 letter to the Land Board.

In previous correspondence with the DLNR, Kugle had further argued that the land behind the wall was not fill, but accreted land, and, therefore belonged to McConnell. The wall, Kugle claimed, belonged to the state. The DLNR disagreed and was not willing to let McConnell walk away with his money.

The Land Board first heard McConnell’s case on June 9, 2011. Some board members were sympathetic to his plight and were uncomfortable keeping money for an easement that was never executed. The board voted 3-2 to return the money, but because a minimum of four votes is needed to pass a motion, the matter was deferred.

After McConnell and the Land Division failed to settle the matter, the issue returned to the Land Board on January 27. Staff recommended that the Land Board either deny McConnell’s request or return the money and authorize its chair to execute an easement document and a real property lien, for $135,080, that runs with the land.

McConnell said he could not support a lien because it would interfere with refinancing. “The bank would require it to be satisfied,” he said.

To Big Island board member Robert Pacheco, the board simply could not ignore the encroachment.

“For me, the cat’s kind of out of the bag. … You’re going to have to deal with this easement one way or another,” he told McConnell.

“You’re going to have a problem getting rid of a property with an encroachment,” Maui board member Jerry Edlao added.

Without an easement in place, the DLNR would have no choice but to pursue a violation case, Land Division administrator Russell Tsuji said. To which Kugle responded, “Should the state choose to do enforcement, you would have to prove who built that wall, that it was not a state or territory project.”

After an executive session, Kaua`i Land Board member Ron Agor suggested imposing a first mortgage instead of a lien, which McConnell seemed to support.

“That sounds more attractive than a straight lien,” McConnell said.

Deputy attorney general William Wynhoff, however, recommended deferring the matter because he needed to ensure that it would be legal to award an easement that won’t be paid for until the property is sold.

Kugle said he had “a large problem with kicking this can down the road.” And in the end, the Land Board voted to return McConnell’s money, but directed the DLNR to work with him to perfect a lien and easement. Should they fail, the department was directed to initiate an enforcement action within 30 days of the board’s decision.

Pacheco alone opposed the motion.

* * *

Board Approves Hearings on Caps for Aquarium Fish

David Goode, the sole dissenter, just wasn’t comfortable endorsing rules proposed for aquarium fish collection that had been largely, if not solely, drafted by collectors.

“I’ve never seen the department wholesale take proposed rules by a commercial entity. Usually our department has done some analysis,” he said before the final vote.

On January 13, the rest of the Land Board approved a recommendation by the DLNR’s Division of Aquatic Resources (DAR) to hold public hearings on the proposed rules, which establish gear restrictions and daily take limits for O`ahu collectors. Last year, a group of collectors created the rule package after the state Legislature failed to impose a statewide ban.

O`ahu Land Board member John Morgan applauded the move to establish rules for the industry, but asked DAR’s Alton Miyasaka whether the current level of aquarium fish collecting on O`ahu was sustainable.

“Good question,” Miyasaka said. Having reviewed catch data for the past 30 or so years, Miyasaka said, he believed it was.

“The way they fish … they only catch what they need,” he said, adding that the traditional measure of whether a fishery is sustainable — catch per unit effort (CPUE) — doesn’t apply to aquarium fishing. The wide range of species targeted by collectors also makes it difficult for DAR to assess fishing impacts, he said.

“We cannot do a species by species assessment. That would take $50 million,” he said.

Under the proposed rules, a collector would be limited to the following daily limits:

• 100 yellow tang (with no more than six less than 1.5 inches or more than 5 inches in length);
• 75 kole (with no more than six over five inches in length);
• 50 Potter’s angel;
• 50 naso tang;
• 25 Moorish idol;
• 10 Achilles tang;
• 2 bandit angelfish more than 5.5 inches in length;
• 6 cleaner wrasse.

A fishing vessel would be allowed to hold no more than three daily bag limits, regardless of how many collectors are on board. Collecting ornate, oval, or reticulated butterflyfish would be prohibited.

Jerry Isham, who helped draft the rules, assured the board that his fellow collectors did not create “B.S. limits”

“This package is an awesome package,” he said. Although collecting has allowed him to pay for his child’s tuition to Kamehameha School, “not one fisherman in this room is getting rich off this trade,” he said. “Right now, there is no resource issue. [It’s] just fishermen taking a step in the right direction.”

In her testimony to the board, Inga Gibson of the Humane Society of the United States pointed out a flaw in the proposal: without limiting the number of fish collectors, daily take limits are meaningless.

Gibson also argued that the proposed limits are too high and often exceed the current catch levels. For example, the average number of kole caught between 2007 to 2009, when divided among the 40 or so active collectors on O`ahu, was less than one per day, she said.

Land Board chair William Aila, a former collector himself, acknowledged that the DLNR may need to establish a limited entry program at some point.

Aila was not so sympathetic to testimony from dive master and activist Rene Umberger. When Umberger cited a study that found that aquarium fish collectors overfished reefs in west O`ahu after storms in the 1990s, Aila countered that the absence of fish was due solely to the fact that the storms destroyed all of the finger coral.

“The fish simply weren’t there to harvest, he said. “I’m saying hurricanes caused yellow tang collection to shift from O`ahu to Kona.”

“That’s not what the study says,” Umberger replied.

Aila later challenged, “If your concern is the reef health, why have you not expressed concern over consumptive users who take the very same species?”

To this, Umberger said, “I don’t think these animals should be used as ornaments.”

Divers, fishers, and environmentalists from Maui, Kaua`i, and Hawai`i island who were concerned about the precedent the rule package would have on the rest of the state asked the board not to send it out for public hearings. Maui County has already banned selling aquarium fish, and Kaua`i and Hawai`i counties support a statewide ban.

Willie Kopiko of the Hawai`i fishing village of Mo`ili`ili expressed his frustration with aquarium collectors on his island, claiming they have depleted fish stocks he relied on for food.

“Now I gotta go South Point fo’ get tings for eat,” he said. He added that he has reported to the DLNR collectors fishing in no-take zones established by the DLNR, to no avail.

Aila said that everyone agrees that the DLNR needs to improve its enforcement and Isham supported Kopiko’s proposal for a no-tolerance policy for violators.

But Aila’s wife, Melva, expressed her disdain for those from the outer islands giving advice on the management of O`ahu resources.

The board ultimately chose not to add any language to the rule package that would cap the number of collectors on O`ahu. Kaua`i member Ron Agor did try to address concerns that DAR had presented little to no scientific information supporting the various proposed caps. (The staff report to board was a mere three paragraphs long.)

If and when DAR returns to the Land Board for final approval, Agor said before the final vote, he wants DAR to present data supporting the claims of fish collectors that the caps are sustainable. He added he would also consider limiting the number of fish collecting licenses and closing certain areas.

If, after holding public hearings, the Land Board or DAR decide to significantly change the rules, they must go out for more public hearings.

“If it means writing the rules again … then do so. We need to vet this properly,” Agor said.

This year, the Legislature has before it again several bills that would limit or ban aquarium fish collecting and sales. If any become law, action by the Land Board to adopt rules could be moot.

* * *

DOBOR to Share Data for NOAA Fishing Surveys

The National Oceanic and Atmospheric Administration will be better able to target is recreational fishing surveys now that the Land Board has decided to allow the DLNR’s Division of Boating and Ocean Recreation to share some of the information it collects on vessel owners.

Quantifying recreational catch is crucial to fisheries management and NOAA has been seeking the state’s help for years, but until now the state had withheld that information, citing privacy reasons.

“There was a question whether we could disclose that information,” DOBOR administrator Ed Underwood told the board.

But under an agreement approved by the Land Board on February 10, DOBOR may now supply NOAA with information on which of its non-commercial boaters fish recreationally. In return, NOAA is providing $100,000 to upgrade DOBOR’s online vessel registration system.

“In order for us to get the money, we have to disclose. It’s going to be a win-win for both sides,” Underwood said. Without DOBOR’s information, NOAA has to collect recreational fishing data the hard way.

“We literally go through the phone book. The first question we ask is, ‘Do you fish?’ We reach two percent of the population. It’s very inefficient,” said Michael Tosatto, administrator for NOAA’s Pacific Islands Regional Office.

With DOBOR’s help, NOAA can now target boaters who checked a box on their vessel registration form noting that they fish recreationally.

“Our survey becomes vastly more efficient,” Tosatto said.

Underwood added that the information would only be used for survey purposes and would not be distributed.

Now that NOAA has access to the state’s information, Hawai`i fishers may be exempt from registering with the National Saltwater Angler Registry, Tosatto said. (Fishers in states, such as Hawai`i, without a licensing program are required to register if they use federal waters.) What’s more, the exemption saves Hawai`i fishers from having to pay the program’s $15 registration fee, a DOBOR report states.

Supporting the agreement was Kitty Simonds, executive director for the Western Pacific Fishery Management Council, which advises NOAA.

“We are a regional council. Everything should be done regionally and locally. … The state should be collecting this information so our fishermen shouldn’t be reporting to the national government,” she said.

Teresa Dawson

Volume 22, Number 9 — March 2012