BOARD TALK

Kona Blue Escapes Fine for Pen’s Coral Damage

Fining a company for damaging coral inside a boat harbor just didn’t seem fair. So instead of imposing the $6,750 fine its staff had recommended, the state Board of Land and Natural Resources voted on January 13 to allow Kona Blue Water Farms to donate an equivalent amount in cash or in-kind services to a marine-related project approved by the board’s chair.

Last spring, Kona Blue, which raises Hawaiian yellowtail in pens off the Kohala coast, temporarily parked one of its 100-foot-wide cages at Kawaihae Small Boat Harbor. Although the company had received verbal approval from the state Department of Land and Natural Resources’ Division of Boating and Ocean Recreation, it failed to coordinate with the division on where, exactly, the pen would be placed. DOBOR had mapped corals in the area and had asked Kona Blue for notification before moving the pen into the harbor. Kona Blue did not provide the notice, however.

After receiving complaints last April that the pen was anchored on coral, the state Division of Aquatic Resources surveyed the area and found that it had damaged 28 coral colonies.

With the ability to impose fines of up to $1,000 per colony, DAR estimated damages at $13,500 based on the ecological value of the coral. DOBOR proposed a reduced fine of $6,750 to reflect the facts that it had authorized the move, that the coral is located within a boat harbor, that the damage was unintentional and appears minor, and that Kona Blue had been cooperative during the enforcement process.

Kona Blue asked that it be allowed to do a mitigation project in lieu of a fine, but DAR disapproved. Land Board members, however, were more receptive.

Big Island board member Rob Pacheco called the recommendation to fine Kona Blue “a bit of craziness,” since the area, some 34 acres, had been dredged years ago. 

“I think it’s ridiculous to expect coral reef protection in a harbor,” he said.

DOBOR administrator Ed Underwood also pointed out that a launch ramp planned for the harbor will disturb some 234 square feet of coral and that silt entering the harbor from nearby Pelekane Bay is also having a detrimental effect.

“I don’t give that coral much of a chance,” he said.

The lone voice in favor of a fine was Kaua`i board member Ron Agor, who pointed out, “as crazy as it is … the rules say we have to protect the coral.” He added that he also opposed the fine discount DOBOR had proposed.

Despite his position, Agor voted with the rest of the board, which adopted Kona Blue’s suggestion that it be allowed to conduct mitigation activities, such as an adopt-a-buoy program.

* * *

Board Rejects Mediation Offer

To Resolve Ha`ena Rental Dispute

To save everyone a lot of time and money, they offered to try mediation. But the state wasn’t interested.

So now, a group of 14 Ha`ena landowners who want to be able to use their homes in the Conservation District as vacation rentals will be entering a contested case hearing.

In 2007, faced with an enforcement action by the DLNR’s Office of Conservation and Coastal Lands for allegedly conducting vacation rentals in violation of their Conservation District Use Permits, the landowners requested permission to deviate from their permits’ conditions.

When the Land Board denied their request, they sought a contested case hearing. When former DLNR director and Land Board chair Laura Thielen denied that request, the group appealed her decision in Circuit Court, which decided that Thielen alone did not have the authority to grant or deny a hearing. The matter had to be decided by the Land Board, the court determined.

On October 28, against the OCCL’s recommendations, the Land Board granted a contested case hearing, and voted on January 13 to appoint a hearing officer, who will decide, among other things, whether the Hanalei-Ha`ena Community Association can intervene in the case.

The association has long opposed the short-term rental of Ha`ena homes in the Conservation District and was also against the group’s recent proposal to mediate a solution.

“Commercializing Ha`ena’s conservation lands would both be harmful to Ha`ena and set a very bad statewide precedent,” wrote association secretary Barbara Robeson in a January 12 letter to William Aila, Jr., the Land Board’s interim chair.

At the Land Board’s meeting last month, OCCL administrator Sam Lemmo told the board that mediation had been tried in a previous case, but “it was not fruitful” and just ended up back in a contested case hearing.

With that, the board unanimously approved Lemmo’s recommendation to reject mediation and appoint a hearing officer.

(For background on this issue, read the “Board Talk” column in our December 2010 issue, available at www.environment-hawaii.org.) 

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Tradewinds License Will Expire

Unless Company Secures Funds

“These guys have had too many chances. Pau,” said David Frankel, an attorney and former Big Island resident who opposed the timber logging project when it first came to the Land Board more than a decade ago.

At the Land Board’s January 13 meeting, Frankel recalled that he had been concerned that the project of Tradewinds Forest Products, LLC, which includes logging a portion of the state’s Waiakea Timber Management area and constructing a veneer mill, would harm the native understory in the proposed logging area.

And after years of extensions of financing and construction deadlines and admonitions from Land Board members, Tradewinds was again asking the Land Board to relax the terms of the company’s timber land license.

The company was supposed to have built a veneer mill by last December, but it still doesn’t have all the money for it. The company’s former principal Don Bryan and William Zapalac of current owner, Rockland Capital, testified that the recent lending climate has made it all but impossible to get financing. Even so, Bryan said investors from the Pacific Northwest are interested in the project. (Although Bryan is now only a minor shareholder of Tradewinds Forest Products, he is CEO of a new company, Tradewinds Hawaiian Woods, which is working to secure the mill funding.)

In addition to missing its financing and construction deadlines, Tradewinds has not kept up its $25,000/month pre-stumpage payments to the state and failed to pay a fee of $50,000 to extend the mill completion deadline. 

According to a report by the DLNR’s Division of Forestry and Wildlife, Tradewinds has paid the state $758,000 so far under the license, $575,000 in pre-stumpage payments and $183,500 in extension fees.

DOFAW recommended that the company be given until August 25, three days before the license expires, to obtain the financing necessary to build the plant.

Should Tradewinds obtain financing by then, DOFAW recommended that the company’s deadline to complete the veneer mill be extended to August 28, 2012.

DOFAW also recommended that Tradewinds be given until August 25 to make up its pre-stumpage payments from June to December 2010, with a penalty of $5,000 for each month.

Frankel criticized DOFAW’s board presentation for not reflecting the license’s troubled history and complained that Tradewinds has been allowed to lock up the state’s lands while owing it money. He added that previous Land Board members have been adamant that the company be given no more chances.

Even DOFAW administrator Paul Conry told the board in December 2008 that he would probably not recommend any more extensions if Tradewinds failed to meet its deadlines.

Big Island board member Rob Pacheco, however, pointed out that the license expires in August and a decision to cancel the lease because of the company’s default would only save the state a few months.

The board voted unanimo
usly to amend Tradewinds’ license.

Should Tradewinds again fail to meet its deadlines, DOFAW forester Michael Constantinides told the board that the department could issue a request for proposals for a new project in three to six months. He said there has been a groundswell of interest recently, all from bio-energy companies, to log the Tradewinds license area. However, he said, biofuels are a “lower-value utilization” of the state’s timber.

“We want jobs and product-processing on the island,” he said.

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Ranch Abandons Plan to Fence Off Beach Access

“They basically decided it was too much trouble,” said William Wynhoff, the deputy attorney general advising the Land Board on January 13.

Wynhoff was referring to the abrupt abandonment by Paradise Ranch, LLC, of its efforts to fence off a popular beach access along the north shore of Kaua`i. In an unprecedented move, the ranch surrendered its Conservation District Use Permit, issued last February by former DLNR director Laura Thielen for some habitat improvements, including fence replacement.

A month after Thielen’s action, Kaua`i resident Linda Sproat, as well as the Surfrider Foundation and Malama Moloa`a filed petitions for a contested case hearing on the permit. At a Land Board meeting in May, Sproat testified that she and her family used the coastal trail to Larsen’s Beach for access to fishing grounds. Others testified that while there were other paths to the beach, none was as safe and commonly used as the trail Paradise Ranch proposed to fence off.

Following recommendations from the OCCL, the Land Board denied their requests, finding that Thielen had not acted arbitrarily or capriciously when she granted the permit.

Sproat appealed the board’s decision in 1st Circuit Court. In the meantime, the OCCL decided to recommend that a contested case be granted.

“Staff, together with the Department of the Attorney General, believes that Ms. Sproat has raised serious questions as to whether she is entitled as a matter of law to a contested case hearing in order to determine and consider her native Hawaiian rights,” a report by OCCL planner K. Tiger Mills states.

The OCCL’s change of heart proved to be too much for Paradise Ranch.

In a January 10 letter to Land Board members, ranch representative Lorna Nishimitsu informed them that the cattle fencing and maintenance work that was supposed to have occurred in the Conservation District would instead be restricted to agricultural lands, which are outside the DLNR’s jurisdiction.

“While Paradise Ranch and the landowner, Waioli Corporation, sincerely believed that its original proposal of engaging in habitat management and maintenance of the section of land adjacent to the sandy beach was in the best interests of all concerned, which would have provided a safe environment free of debris and litter, this long and costly battle involving the landowner’s rights to preserve and protect its property while encouraging agriculture can no longer continue. Paradise Ranch has been waiting far too long to fence the makai section of its leased lands to expand its pasture area, and needs to attend to confining its livestock while providing it the best forage possible,” she wrote.

David Frankel, an attorney with the Native Hawaiian Legal Corporation representing Sproat, pointed out that a stipulation acknowledging that the CDUP is void had been signed by all the parties to the case, including the state, and filed in court the day before.

Although the case had been resolved, Frankel felt the need to make two points: He said that the DLNR needed to train its staff to better determine whether a trail exists. In the Larsen’s Beach case, staff had determined that a historic trail did not exist simply because none was mentioned in Land Court records. Frankel said that the courts decided decades ago that trails may exist even if they are not recognized in Land Court records.

He added that he hoped the OCCL’s recommendation to grant a contested case hearing signaled a change in the Department’s and the Land Board’s recent habit of denying contested cases.

* * *

Board Approves Telescope for Haleakala Summit

On December 1, the Land Board approved a management plan and a Conservation District Use Permit to build the $300 million Advanced Technology Solar Telescope on the summit of Haleakala on Maui. At-large board member Sam Gon, lead scientist and cultural advisor for The Nature Conservancy of Hawai`i, was the only member to oppose the permit.

Before the board’s meeting that day, the Native Hawaiian Legal Corporation, on behalf of Kilakila `O Haleakala, had requested a contested case hearing on the management plan and CDUP and sought an injunction in 1st Circuit Court.

At the board’s meeting, NHLC attorney David Frankel argued that, given past practice, the board could not approve the telescope construction before voting on his client’s contested case hearing request. He added that the management plan did not propose any management in addition to what would be required under a CDUP, and provided no enforceable language.

“This management plan doesn’t promise anything,” he said.

Kiope Raymond, a University of Hawai`i Hawaiian studies professor and Kilakila `O Haleakala president, testified that the proposed telescope, which, at 142 feet tall, would be larger than Mauna Kea’s Keck telescope and would interfere with his ability to exercise his traditional and customary cultural practices.

The mountain, he said was an aumakua, or personal god. “How do you mitigate the death of an aumakua?” he asked.

Marti Townsend, program director of KAHEA: The Hawaiian-Environmental Alliance also found the plan inadequate. She said the plan didn’t propose any limits on square footage, height, or density.

Arguing in favor of the telescope was solar astronomer Jeff Kuhn, who testified that the decision to build the telescope on Maui was not made lightly. He said Haleakala is the only place on earth it can be built.

“It’s been in the works for 30 years. … It’s a big deal,” he said, adding that the telescope, which will measure the magnetic connection between the earth and the sun, will help scientists understand civilization’s connection to the sun.

“Just like we can’t change the course of a hurricane, it sure is nice to know when it’s coming,” he said.

The National Science Foundation has pledged $20 million for a mitigation fund, to be managed by Maui Community College. The telescope must also be deconstructed after 50 years.

After an executive session, then-board chair Laura Thielen told Frankel that while the board has approved contested case hearing requests before taking action on items in the past, it’s not required under the department’s rules.

In the end, the majority of the board favored the telescope construction.

Addressing Raymond’s concerns about the impacts of the telescope on his spiritual practices, O`ahu board member John Morgan said that a spiritual connection can occur anywhere. “This will benefit the living, now,” Maui board member Jerry Edlao told added. 

Gon held the opposite view. He worried that the mitigation proposed by the University of Hawai`i may not be enough. 

“I really appreciate the knowledge gained by astronomical effort, but I will have to go with my gut on this,” he said.

Kilakila `O Haleakala has appealed the board’s decision in Circuit Court and has asked that an environmental impact statement be required for the project and a contested case hearing be granted.

***

Army Receives Permit for Rare Species Work

Even though the U.S. Army has recently announced it will halt all live fire training in Makua Valley, it is still required by the U.S. Fish and Wildlife Service to carry out its Makua and O`ahu implementation plans to stabilize populations of native plants and animals threatened by the
Army’s activities.

On January 13, the Land Board granted a Conservation District Use Permit to allow the Army’s environmental crew to conduct endangered species mitigation on 1,056 acres of private and state unencumbered lands.

OCCL administrator Sam Lemmo said that his agency is not requiring a permit for the Army’s activities on lands controlled by DOFAW because those actions are consistent with the state’s management.

Kapua Kawelo of the Army’s environmental division testified that, under the permit, her crew would be controlling weeds and rats, building a lot of fences, and conducting other basic conservation actions.

At-large board member Sam Gon, noting that the Army has been doing endangered species mitigation for some time, asked whether this was the first time the Army had come to the board for a CDUP.

Lemmo said he was not aware of any previous permits, adding, “We’ve chosen not to get involved in [mitigation work] on forest reserve and federal lands.”

When Gon pressed Lemmo on whether this was the first time the Army was conducting activities on lands that require a permit, Lemmo responded that he had already given his best answer.

The Army had conducted endangered species mitigation within state Natural Area Reserves for years under a volunteer-type relationship. However, in recent years, as the Army has ramped up its efforts and increased its staff, the DLNR has been trying to ensure that the Army obtains the required permits.

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Keawakapu Mitigation Plan

At its January 13 meeting, the Land Board approved the plan of its Division of Aquatic Resources to mitigate damages caused when its contractor, American Marine, had dropped more than 100 concrete forms on living reef while trying to enhance the state’s artificial reef at Keawakapu, Maui.

Basically, the plan is to remove as many of the forms, called Z-modules, as possible and place them where they should have gone. DAR’s Francis Oishi said the division will make up its portion of the $400,000 fine, imposed by the Land Board last year, with general or federal funds.

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Board Grants Permit for Road Revetment

OCCL administrator Sam Lemmo wanted to make it clear that he was not changing his office’s policy against shoreline hardening. 

“Everything is case-by-case,” he said.

On January 13, his office recommended that the Land Board approve the County of Kaua`i’s request for a Conservation District Use Permit to build a 10,000-square-foot rock revetment along `Aliomanu Road in Anahola.

Although the OCCL generally tries to avoid, and in many cases, remove, shoreline structures, the road is the only access to the area and is eroding into the sea, he said. 

Lemmo also noted that the substrate is largely clay and said he would rather not have it eroding and creating turbidity problems.

In 2004, the Land Board had fined the county $2,000 for placing boulders alongside the road without a CDUP. The county had planned to restore the area to its original condition, but high surf caused additional erosion, according to a letter from the county’s consultant, Oceanit.

The board unanimously approved the permit.

Teresa Dawson

Volume 21, Number 8 — February 2011