Board Talk

Land Board Fines Eco-Tour Company for Cutting Trail in Conservation District

Sam Lemmo couldn’t believe what he was hearing. 

KapohoKine Adventures, LLC, was arguing that it cut a trail through the Conservation District in Honoli`i, Hawai`i, merely to allow neighboring hunters and gatherers to gain access to Honoli`i Stream and not for any commercial tours to the secluded pool at the trail’s base.

Company co-owner Gary Marrow and his attorney, Thomas Yeh, tried to make that case to the state Board of Land and Natural Resources last month. They were apparently unaware that board members had testimony to the contrary from one of the trail builders and copies of advertisements (with what appears to be a picture of the site) for a “Fly and BBQ/Swim” tour costing $395.08 to the “KapohoKine private sanctuary.” The ad suggests guests wear bathing suits so they can kayak and swim in a lake fed by a 40-foot waterfall (towels and “noodle” floats provided).

“I do not understand how somebody could sit in front of you, a commercial tour company, and represent to you they’re not economically benefitting from their clients walking over the trail down to the river. I must have brain damage,” said Lemmo, administrator for the state Office of Conservation and Coastal Lands (OCCL), at the Land Board’s May 13 meeting in Honolulu.

During discussion of Lemmo’s recommendation that the Land Board fine KapohoKine, as well as property owner Teresa Prekaski, $16,500 ($15,000 for Conservation District violations plus $1,500 in administrative costs), a number of people, including two who had helped build the trail, contradicted some of the representations Marrow and Yeh made about the intent and extent of the work done.

The Land Board ultimately chose to approve the recommended fines even though some members thought they were generously low. The board also gave KapohoKine 120 days either to remediate the trail and restore the land or to file for an after-the-fact Conservation District Use Permit for the trail and commercial recreational use.

Continued commercial use of the trail without a CDUP would incur fines of $15,000 a day, the board decided. 

For the Pigs

It all started early last October, when Prekaski asked the OCCL for permission to construct a 150’-by-4’ trail from the top of Honoli`i Gulch down to the river.

“I am farming sweet potato on the property and the pigs are creating a lot of problems,” she wrote. And because it had become impossible to reach the river due to the invasive plants, she said, she planned to remove kahili ginger, staghorn ferns, and guava trees and plant native species. 

“I would like to get started and get rid of these pigs and rejuvenate the forest,” she wrote.

A month later, Lemmo responded that the landscaping Prekaski described would require a Conservation District Use Application for either a departmental or Land Board permit, and could also require an environmental assessment. He then asked for more information on the project’s scope to assess what kind of permit and assessment would be required.

A week later, Prekaski revised her opinion on the trail’s condition, stating in her response that the trail “is actually in pretty good shape.” To answer Lemmo’s questions, she wrote that she planned to remove guava trees and ferns from about 600 square feet along the trail and at a small viewing spot at the gulch’s rim, use guava limbs as steps, and sprinkle the trail with cinder to prevent slipping. She was also growing hundreds of koa trees to replace the guava, she wrote.

On November 24, Lemmo informed her that the work required a Conservation District Use Application for a departmental permit.

“Staff has determined that the proposed project is minor in scope and may be considered an exempt action,” Lemmo wrote. 

Although he had written in bold letters that the work required a permit application, none was submitted before KapohoKine employees began work on the trail. On December 30, Department of Land and Natural Resources director and Land Board chair William Aila issued Prekaski a notice of alleged violation and order regarding the construction of a trail, stairs, and walkway platforms to support commercial tour operations. Aila warned Prekaski she could be subject to fines of $15,000 a day if illegal activities did not cease.

In May, the OCCL moved to fine the company and Prekaski for constructing a trail in the Conservation District for commercial purposes.

‘Heartache’

At the Land Board’s May 13 meeting, Prekaski was nowhere to be found. But Yeh, representing KapohoKine, admitted that the company should have filed a Conservation District Use Application. However, he said, the work was so minor (hand clearing of less than 2,000 square feet), it probably would not have needed a permit. He added that under the OCCL’s own guidelines, violations covering less than 2,000 square feet should incur fines of only $1,000 to $2,000.

Yeh argued that a trail to the river already existed and that KapohoKine merely restored it. He also claimed that nothing prohibits commercial use in the Limited subzone of the Conservation District.

“You can do what you want unless it’s prohibited,” he said.

A clearly shaken Marrow explained that he proceeded without filing a CDUA because Lemmo’s last letter to Prekaski suggested that the work may be exempt from permit requirements. Marrow claimed that when he called the OCCL’s Audrey Barker (who is no longer with the agency) to clarify what was required, she told him, “I can’t tell you to do it. I can say as long as you adhere to the rules and regulations, you should be fine.”

When Maui Land Board member Jerry Edlao told Marrow that he should have done more to ensure he was in compliance, Marrow admitted that he had made a mistake.

Edlao was not appeased.

“You’re a business man. You gotta touch all bases when you do something. If you’re just going to say, ‘I made a mistake and this was my interpretation [of the rules],’ if everybody said that, I would be here every day. I don’t have that kind of time,” Edlao said.

At-large board member Tyler Stephens, from QuickCashLoansWow, asked Marrow to explain why his company and its plans for the trail were never mentioned in any of Prekaski’s letters to the OCCL.

“The board members are having some heartache about representations made,” Goode said.

Marrow, who admitted that he authored all of Prekaski’s letters except the first, said that when KapohoKine first leased her property, neighbors wanted access to the river to gather `opae and hunt pigs. Because KapohoKine would be liable for any injuries, Marrow convinced Prekaski that they needed to build a safe route.

“Our original intent was not for tours at all. We don’t charge people to go down there. We’re building a zip line right now and if somebody wants to walk down and see the river, or something like that, we do not specifically — there’s no way for the public to get in there. It’s all cane road for three miles. It’s all gated. … The only way that they would get there is by us shuttling them there. And if somebody wanted to walk down and see or if any of the neighbors wanted to collect `opae, that was our goal to create a safe trail,” he said. 

To board member Sam Gon, Marrow had just admitted to commercial use of the trail. 

“The only people using this trail are people paying you to be shuttled down there,” Gon said.

Marrow conceded that his company provides a lunch at the site, but said he didn’t see the harm in his guests walking down to see the waterfall.

Regarding photos submitted to the Land Board showing kayaks resting alongside the stream, which Marrow admitted had been set up for his guests, chair Aila asked whether the company had charged to use them.

Marrow said no, it was not part of any tour. 

“It’s availab
le there if they want to do it. Anyone is allowed to kayak or swim in the river. … It’s not something that we publicize. It’s just an accessory,” he said.

KapohoKine co-owner Tony DeLellis, who identified himself as “the co-ignorant person in this thing,” added another explanation for why the work was done. Last year, the company lost access to its zip line site. Loath to lay off workers so close to Christmas, he directed some of his zip line workers to start rehabilitating the trail.

“Looking back, we both feel like idiots, to be honest with you,” DeLellis said, adding that his company never tried to willfully mislead the DLNR.

Neighbor Gwen Herrington, who showed the board pictures of KapohoKine’s recent tours to the site, also presented photos showing how dense the forest was before the trail clearing and testified that there was never a pre-existing trail at that site, although there are others in the area.

When Kaua`i Land Board member Ron Agor asked Herrington how she would feel if KapohoKine gets permits for its uses, she replied that she’s not against tourism, “but having helicopters land behind your home or where you want to retire and thinking of having people screaming up and down the river for the rest of my days, no, that is really shocking. It truly is. But things happen, so we will have to live with it.”

Trail Work

Contrary to Marrow’s and Yeh’s representations, testimony from two men who had helped build the trail suggested that not only was enhancing the company’s tours the driving reason behind the work, but that some, if not all, of the trail was new.

Lucas Hubbard, who led the trail work, assured the Land Board there was a pre-existing, partly visible trail and that the restoration, for the most part, followed it.

The work, which began in late November, took a little over two months to complete, he said.

“We didn’t flag anything. They came to me and told me we’re going to build a zip line and that zip line goes right over that waterfall, parallel to the stream. We wanted to float over native endemic forest. … so we’re doing the island a good deed if we’re taking the guava out of there,” he said.

Gon mentioned that testimony from Sean McLonville seemed to contradict Hubbard’s account somewhat. 

McLonville notified the OCCL last December that he had also worked on the trail, clearing vegetation and doing some “major” digging into the hillside. He wrote that the trail required the construction of several switchbacks, which increased the trail’s length.

“There was no trail in the beginning and we started from scratch,” he wrote, adding that after scouting the trail and removing “large amounts of plants and trees,” his crew cut into the hillside and moved large rocks and boulders.

The trail, he claimed, was originally meant to be a feature of KapohoKine’s helicopter tours — “a spot to land and a trail, which visitors could hike down to swim.” 

“As the trail neared completion, I was told it was to become the location of a new zip line built and funded by KapohoKine. The purpose was solely for increasing revenue and continuing their ‘Helicopter waterfall tour,’ ” he wrote.

With regard to whether or not a trail existed, Lemmo told the board that whatever was there was “extremely, extremely unpronounced.” In any case, Lemmo said, nothing changes the fact that the company improved the land for commercial purposes.

Harsh Words, Meek Fine

After reviewing testimony, reading the company’s advertisements, and seeing photographs of recent tours to the site, Land Board members concluded that the work done was not a mere rehabilitation and that it had been done for commercial purposes. And they and Lemmo had some harsh words for KapohoKine.

“Starting a business in Hawai`i is not the easiest thing to do, and to be successful, as you’ve been, is a wonder. I, too, am in business and it’s a very competitive business and it really, really irks me when competitors don’t follow the rules. What happens is it hurts the environment, it hurts the client, and it makes the industry as a whole look bad,” Edlao said. “If you had taken that one step [and applied for a permit], it could have opened a can of worms for you, but as a business, it’s something that you have to deal with.”

Addressing Yeh’s argument that commercial trail use is allowed because no rules expressly prohibit it, Lemmo said that Yeh misunderstands how Conservation District rules are designed. If a use is not identified in the rules, it’s prohibited, Lemmo explained, adding that the closest identified use that might allow for a commercial tour operation in the Limited subzone is a private park.

Gon frowned on the idea of allowing anyone to apply for an after-the-fact permit that would allow them to benefit commercially from significant unauthorized improvements in the Conservation District. 

“That’s a very bad precedent to set,” he said. And when Agor moved to accept staff’s recommendation, Gon said he could not support it if it includes an option to apply for an after-the-fact CDUP.

“Two months’ work on a steep way down to a pool, coupled with an advertisement for a ‘Fly and BBQ’ just doesn’t strike me as something I want to support with an after-the-fact permit,” he said.

Despite Gon’s arguments, Agor said he didn’t think the Land Board should prevent a private property owner from applying for a permit. Ultimately, the department will determine whether or not it should be granted, he said.

Goode agreed that KapohoKine has a right to apply for a permit. He also suggested that the fines could be much greater than $15,000. Lemmo could have recommended additional fines for grading and for the apparent flauting of the DLNR’s December order to stop illegal activities, he said. 

“I think you’re being generous,” he told Lemmo. Edlao estimated the fines could have been as much as $40,000. 

“That was more than a restoration. … For you to come here and say it was just a restoration is kind of unsettling for me. If you did something wrong, admit you did wrong and let’s move on,” Edlao told Yeh.

The board then voted to approve the OCCL’s recommendations. Gon was the lone dissenter and Hawai`i island Land Board member Rob Pacheco, who owns the Hawai`i Forest and Trail tour company, recused himself from the matter early on.

Yeh told Environment Hawai`i that KapohoKine is reviewing whether or not it will continue to use the trail and apply for the CDUP.

* * *

Board Allows Shark Killing at French Frigate Shoals

For the fourth time since 2006, the Land Board is allowing federal monk seal researchers to kill Galapagos sharks at French Frigate Shoals that attack pups or exhibit predatory behavior close to shore. The decision comes despite opposition, for the first time, from the state Office of Hawaiian Affairs.

Although efforts to cull the rogue sharks have had minimal success in recent years, their removal is still critical to the survival of the endangered seal, which has a dwindling population of roughly 1,100 individuals, according to Charles Littnan, lead monk seal scientist with the National Marine Fisheries Service. 

The seals suffer from a suite of threats, including starvation and entanglement in marine debris, but shark predation is the greatest concern at French Frigate Shoals, he told the board at its April 24 meeting.

Of the 835 pups born there since 1997, 206 of them have been attacked by Galapagos sharks, Littnan said. After failing to deter pup predation via harassment and relocating females, NMFS researchers have settled on culling. Research has determined that removing 20 individuals would have an imperceptible impact on the shark population, which ranges from about 670 to 1,700 at FFS. 

Littnan said that the Northwestern Hawaiian Islands lobster fishery discarded hundreds of t
housands of pounds of bait into the water in the early 1990s and may have inadvertently increased the Galapagos shark population beyond the natural carrying capacity at French Frigate Shoals. As the fishery dwindled in the latter part of the decade (it closed altogether in 2000), the sharks may have turned to the seal pups as a food source, he said.

“It would be imprudent to think this will resolve itself naturally,” Littnan said. 

This year, he asked that the Land Board allow camping because sharks often take pups in the early morning or at night when people aren’t around. Normally, researchers are confined to their vessels at night. 

He also asked to employ a new technique, originally designed to catch seals, called surprise netting.

Although scientists seem convinced that killing the sharks is the best way to deal with the problem, some native Hawaiian cultural practitioners believe just the opposite. One told the Land Board that while he understood that monk seals needed protecting, there must be other methods available to control the sharks, which he said are his `aumakua (a family or personal god).

“You do not solve anything in the world by killing. … All life is important,” he said.

Trisha Kehaulani Waston, a NMFS consultant and member of the native Hawaiian working group that advises the Papahanaumokuakea Marine National Monument Management Board, held a different view. She noted that in Hawaiian culture, the octopus, or tako, is the physical manifestation of the god Kanaloa, yet “most people eat tako poke.”

She added that the NMFS has “bent over backwards” to conduct its work in a culturally appropriate manner. The remains of the one shark scientists managed to kill in the NWHI last year went to native Hawaiian drum and weapons makers.

“Sharks are taken every day. You can find them at the market. But of those taken last year, only one had to be given to Hawaiian cultural practitioners,” Watson said.

In the past, OHA has either supported or kept silent on proposals to cull sharks in the Northwestern Hawaiian Islands. This year, however, OHA’s native Hawaiian working group could not reach a consensus on the proposal and decided that it no longer likes the way the matter comes to them, OHA’s Heidi Guth told the Land Board.

“You’re asking us to choose between natural creatures. … We’re not willing to do that,” she said.

Because some native Hawaiians oppose shark culling for religious reasons, Guth said, OHA could not agree with the rest of the Monument Management Board that there are no factors that would make the issuance of the permit inappropriate.

For this permit and others, the native Hawaiian working group wants to be consulted with differently, with more mutual respect, Guth said. “At this point, it’s more one side versus the other. … Perhaps Kehau [Watson] can help with this,” she said.

Watson noted that discussions to identify the needs of native Hawaiians and where those needs can be addressed in the permitting process have already begun.

For the Land Board’s part, support for the project was not wholehearted. Maui member Jerry Edlao, who had grilled Littnan about whether all other methods to help the pups had been exhausted, said he would not approve any more permits to kill sharks in the future.

Big Island member Rob Pacheco, who moved to approve the permit, said that while he appreciated OHA’s position that the consultation process needs improving, he disagreed with the notion that the permit pitted one species against another.

“Monk seals are on the brink of extinction. Galapagos sharks are not. We’re talking about taking a few individuals,” he said.

In the end, the board unanimously approved a permit to NMFS scientists Frank Parrish and Alecia Van Atta to monitor and remove sharks at French Frigate Shoals.

* * *

Board Denies Contested Case on Parker Ranch Lease Extension

On May 13, the Land Board quashed Margaret Willie’s dream to access a portion of state land in Waimea, Hawai`i, leased by Parker Ranch, Inc., when it denied her request for a contested case hearing on the board’s February decision to extend the ranch’s leases for 20 years.

Willie, who lives adjacent to the 2,600 acres leased by the ranch, has suggested that in addition to ranching, the board should consider developing a perimeter trail around the property for the public and for commercial tours.

The DLNR, based on advice from deputy attorney general William Wynhoff, decided Willie is not entitled to a contested case hearing because the lease extensions were not land dispositions and because she has no property interest.

Big Island board member Robert Pacheco agreed with the department’s analysis, but also agreed with Willie that public/recreational access is needed in the area and he encouraged the department to discuss the possibility of developing a trail with Parker Ranch.

“It’s not going to happen between Ms. Willie and Parker Ranch. I can tell you that much,” he said, adding that he’d like public access to be a condition of future leases that block access to forest reserves.

* * *

Land Board Must Condone Environmental Review Exemption

Last month, the Land Board approved permits for coral reef monitoring and assessment of monk seal foraging habitat in the Northwestern Hawaiian Islands, and for research of stony corals around O`ahu. But unlike past approvals where DLNR staff simply inserted an explanation why the proposed research was exempt from the preparation of an environmental assessment, the board was asked to officially endorse exemptions for the three permits.

Deputy attorney general William Wynhoff explained that, from now on, the Land Board must make the exemption determination, not staff. 

For the three permits, the board had to determine that all of the activities associated with each permit have been evaluated as a single action, that the exemption for scientific research with no serious or major environmental disturbance seems to apply, and that cumulative impacts on sensitive environments, as well as overall impacts, will be, or will probably be, minor.

When at-large board member Tyler Stephens said he would have liked to have been advised earlier of the change, member Robert Pacheco suggested that the board has implicitly endorsed the exemption when it approved permits in the past.

* * *

Ponds are Coming Soon to Kawai Nui Marsh

After years of sitting in limbo, state plans to improve Kawai Nui Marsh in Windward O`ahu are finally advancing.

On May 13, the Land Board authorized a contract for $26,000 to allow Helber Hastert & Fee Planners, Inc. (HHF), to acquire the county and federal permits necessary for the state Division of Forestry and Wildlife’s 80-acre wetland restoration project in the marsh.

In February, the company also won a $240,568 contract to develop a conceptual master plan and accompanying environmental assessment for the marsh. The last plan for the marsh was created in 1994, but was never adopted by the Land Board.

At an April community envisioning workshop led by Terry George, executive director of the Harold K.L. Castle Foundation, and state Sen. Jill Tokuda, DOFAW administrator Paul Conry said that this time, money is available to implement at least some features of a new master plan.

“We just don’t want to do another study,” he said.

Conry added that ponds for endangered wetland birds are expected to be constructed next year. According to senior HHF planner Ron Sato, a draft environmental assessment for the project should be completed in July.

As for the master plan, Sato said the whole process will probably take a couple of years to complete. Just acquiring a Conservation District Use Permit takes six months, he said.

For Further Reading

For more on shark culling in the Northwestern Hawaiian Islands, read the following articles, available
at www.environment-hawaii.org:

•“Board Denies NMFS Request to Cull Sharks in Northwest Isles” (May 2006 Board Talk);

•“Up to 10 Galapagos Sharks May Be Culled to Protect Seal Pups at Northwestern Shoals” (July 2006 Board Talk);

•“Longline Gear Approved for Catching NWHI Sharks” (August 2007 Board Talk);

•“Non-Lethal Shark Control at French Frigate Shoals” (June 2008 Board Talk);

•“Shark Culling in NWHI Refuge” (April 2010 Board Talk).

Teresa Dawson

Volume 21, Number 12 — June 2011