Board Talk

“Do we have to watch extinction happen all over again? Do we have a choice?” University of Hawai`i zoologist Sheila Conant wrote last month in her testimony against a proposed 20-year extension of K.K. Ranch’s pasture lease high on the slopes of Mauna Kea. Some 2,100 acres of the ranch’s lease area have been used for the past several years for palila (Loxioides bailleui) habitat mitigation under a 10-year conservation easement granted to the Hawai`i Department of Transportation by the state Board of Land and Natural Resources in connection with the Saddle Road realignment.

And although the Land Board in 2001 attempted to appease the ranch and three others whose lands were affected by the easement by agreeing “in principle” to extended their leases, staff with the state Department of Land and Natural Resources have recently voiced the opinion that the easement areas should be placed into the forest reserve, especially given the dire state of the palila population.

“It was with great dismay in 2008 that I read an article by [DLNR’s David] Leonard and his colleagues in the Hawai`i Audubon Society journal `Elepaio documenting a 53 percent decrease in palila since 2003,” Conant wrote in her testimony. In light of evidence that ungulates threaten growth of the mamane trees that palila rely on for food, as well as the Land Board’s duty to take a precautionary approach toward protecting the state’s resources, she continued, “it is clear that the only choice for conserving the palila is increased protection of its habitat from grazing animals. Renewing the grazing lease in question is highly inappropriate.”

While the ranchers had reluctantly agreed to the easement in exchange for reduced rent and a possible lease extension, several of them decided last year that this wasn’t enough, even though fencing delays, among other things, allowed all of the ranchers to use the easement areas rent-free for years. (K.K. Ranch’s cattle, in particular, have consistently been seen within the easement area, according to Leonard.) During the 2009 session, the Legislature passed Senate Bill 1345, written with the Mauna Kea ranchers in mind, which would compensate agricultural or pastoral leaseholders of state land whose properties were withdrawn for public use. In the ranchers’ case, they lost the use of about 6,500 acres covered by the 10-year conservation easement, which expires in 2012.

DLNR director and Land Board chair Laura Thielen, who was the only person to testify in opposition to the legislation, pointed out in her testimony that the ranchers’ lease rents had been reduced in accordance with state law. She also noted that the bill’s provision requiring the DLNR to pay for insurance costs and speculative income losses could be very expensive.

“Further,” she wrote, “the bill provides compensation for lost income as opposed to lost profits. A lessee should not be compensated for income without deducting the operating expenses required to generate that income. Finally, on the compensation aspect of the bill, there is the potential for costly litigation resulting from a dispute between the state and a lessee over the calculation of losses resulting from the taking.” She also opposed the bill’s automatic extension provision, stating that existing laws are sufficient.

Lingle ultimately vetoed the bill, but a revised version resurfaced this year as Senate Bill 2951, introduced by Sen. Dwight Takamine. Thielen has again testified against the bill, but this time she has been joined by the DOT, Conservation Council for Hawai`i, the Sierra Club, Hawai`i Chapter, the American Bird Conservancy (ABC), and others.

“Many hundreds of thousands of dollars have been invested in [the easement area] in the form of fencing and restoration and the Division of Forestry and Wildlife plans to plant 29,000 trees there in the next several months,” George Wallace, vice president of ABC, wrote in his testimony. “If SB 2951 passes, it is likely that the state will be unable to provide financial compensation to the lease holders, cattle will be allowed back on the area, and they will quickly destroy the mamane that have been planted, or germinated naturally, and those trees that have recovered. Because mamane are slow growing and palila rarely use trees less than 20 years old, it will be a long time before the area can support the bird. However, if cows are allowed back on the property it will never be of any use to palila.”

Many of the arguments against the legislation apply as well to the proposed 20-year extension of K.K. Ranch’s lease. Even so, the DLNR’s Land Division chose to process the ranch’s request like any other.

In its report to the board, the division notes, in boldface type, “As a condition of the [DOT easement approval], the Board agreed in principle to extend the terms of the lease…to assist in compensating the lessee for the lands withdrawn.”

K.K. Ranch said it was requesting the extension so it could amortize $124,985 in fencing improvements. Because the lessee was in compliance with all lease terms, the division recommended approval.

Land Division administrator Morris Atta explained that his Hawai`i district office had merely looked at the legal criteria for extensions and “typically, when we get any request, regardless of controversy, we try not to treat applicants differently as long as they meet statutory minimum requirements. As public servants, we feel we have to bring it to the board and what happens, happens.”

Perhaps because lease extensions are often routine, Thielen approved it for submittal to the Land Board without realizing who the lessee was.

“This happened to slip by,” Atta said.

But on March 9, Marjorie Ziegler of the Conservation Council for Hawai`i sent out an alert about the proposed extension and by the next day, more than two dozen people — including Conant — had submitted testimony to the Land Board in opposition.

Because the Land Division had not solicited comments from interested agencies and other parties before making its submittal, especially given the controversy now swirling around the palila mitigation leases, Thielen directed Atta to withdraw the extension proposal from the day’s agenda.

Atta said he was told the department did not want to “blindside the board” and was ordered to seek comments from the state and federal transportation departments and the DLNR’s own Division of Forestry and Wildlife, among others, before bringing the matter back.

“We were chastised for not being more thorough,” he said.

Informed ahead of time that the matter would be withdrawn, K.K. Ranch owner Jason Moniz, a former state veterinarian, did not attend the Land Board meeting. He was, however, present during a meeting with Atta and Sen. Clayton Hee following the board meeting.

Hee had called Atta into his office to discuss why the matter was withdrawn and to request that it be placed on the agenda again. Atta said he told Moniz and Hee that he can’t promise anything since there is a discretionary layer — the chair and/or the DLNR deputy director for land — that all proposals must pass through.

Atta said he is preparing a resubmittal and his division is in the process of seeking agency comments, which usually takes about a month. The matter may come before the board again depending on whether the chair’s office approves it for submittal.

With reluctant support from the environmental and native Hawaiian communities, the Land Board unanimously approved on March 11 a permit to allow the culling of 20 sharks within state waters of the Papahanaumokuakea Marine National Monument to protect endangered Hawaiian monk seal pups.

The one-year permit to Frank Parrish and Alecia Van Atta of the National Marine Fisheries Service will allow them to remove sharks seen “pursuing, injuring or killing pups or those observed to be patrolling within 400m of the shoreline of Trig, Gin, Little Gin and Round islets [at French Frigate Shoals] when pups are present,” a report by the DLNR’s Division of Aquatic Resources states.

For years, monk seal researchers have been trying to control Galapagos shark predation on seal pups at FFS, which is apparently the only place in the Hawaiian islands where this is happening. But they have not been successful, despite getting Land Board permission a few years ago to take up to 10 sharks and to implement non-lethal measures in 2008-2009.

Researchers have failed in recent years to kill any sharks and are developing a new method to trap them — “net surprise” — that uses a remote-controlled net to catch animals in shallow water.

If NMFS does not remove 20 sharks this year, it plans to seek permission to reach that goal in 2011. If it succeeds in removing 20 this year, “next year they would propose starting with monitoring and only removing up to an additional 20 sharks if predation remained high,” the DAR report states.

In his written testimony in support of the permit, Marine Mammal Commission executive director Timothy Ragen notes that 20 sharks is “less than 10 percent of the French Frigate Shoals Galapagos shark population, only a very small fraction of any total allowable catch level as might be calculated and considered sustainable for commercial fishing purposes….[T]he shark removal likely would not have a measurable effect on predation rates for any species other than monk seals.”

At the Land Board’s meeting, monk seal researcher Charles Littnan added that the shark culling was part of a larger plan to fortify the age structure of the monk seal population, which right now has dangerously low juvenile survival. Among other things, he said, NMFS also plans to rehabilitate sick seals at a care facility in the Main Hawaiian Islands and relocate threatened seals to areas where they are more likely to survive.

In response to concerns by some native Hawaiians that sharks are their aumakua (a family or personal god), William Aila, chair of the Papahanaumokuakea cultural advisory group, testified as an individual that aumakua are individual animals and that it was unlikely that the Galapagos sharks at French Frigate Shoals were anyone’s aumakua. He added that killing rogue sharks is nost unheard of in Hawaiian culture, citing the legend of Nanaue, a shark-man who was hunted and killed after going from island to island eating people.

Although the cultural advisory group failed to reach a consensus on the proposal, member Trisha Kehaulani Watson also testified in support of the permit.

“No one wants to find themselves in the position we do today. Yet, we nonetheless find ourselves here having to consider whether or not to support the intentional taking of animals… I firmly believe that the future survival of the Hawaiian monk seal requires us to take these drastic actions,” she wrote. “As a Native Hawaiian, I believe it is culturally appropriate to allow for the taking of sharks, because we are doing so to restore balance to the ecosystem. It was commonplace in traditional Hawaiian times to take action, however drastic, to restore balance to our environment so that long-term ecological sustainability was maintained.”

Even so, she added, sharks are revered animals and must be taken with “the utmost respect for the animals and Hawaiian cultural practices.” She recommended that the NMFS team undergo cultural training and include a cultural practitioner.

The Marine Conservation Biology Institute and KAHEA: The Hawaiian-Environmental Alliance did not oppose the proposed actions. But at the board’s meeting, KAHEA program director Marti Townsend did restate her longstanding concerns that the DLNR has been disregarding requirements of the state’s environmental review law, Chapter 343.

She pointed out that the NMFS chose to conduct an environmental assessment, but the state did not. Also, the “basic research” exemption from environmental review cited by DAR in its report to the board is inapplicable since the permit is for “conservation and management,” she wrote.

“The intentional killing of one species on behalf of another is neither basic nor research,” she wrote.

“[I]f the intentional killing of sharks in Hawai`i’s most protected waters does not trigger an environmental review under state law, what activity ever would?” she asked.

At-large Land Board member Samuel Gon agreed with Townsend that an EA and cultural assessment would be helpful in evaluating the proposal. As a whole, however, the board did not seem to think any laws were being broken and approved the permit with very little discussion.

Land Board chair Laura Thielen seemed even more upset than Big Island member Rob Pacheco was, addressing attorney Douglas Ing at the board’s March meeting like he was a child.

Speaking slowly and deliberately, Thielen told Ing, “In response to your client’s request to have an extension, we were expecting you to come in today with a presentation on this matter to be able to make a case on behalf of your client and to put your case on the record, which would then be considered in the event this board made a decision in any appeal. So is this the sum total of the case on the record that you are presenting to this board today?”

“I’m sorry. I didn’t come prepared to do that,” Ing said, adding that he thought the Land Board would simply support the recommendation of its staff.

Two months earlier, Pacheco was the sole opponent to the Land Board’s decision to defer for two months a proposal by its Land Division to resolve an illegal logging case that began about a decade ago. In the late 1990s, logging company Steve’s Ag Services, with assistance from loggers Raymond and Wesley McGee, logged nearly 1,000 koa and other trees from Conservation District and state lands in Ka`u. The company had an agreement with Kahuku Ranch at the time to log “downed or severely distressed” koa trees on the ranch’s property, but apparently strayed into areas it shouldn’t have and cut perfectly healthy trees. In 2002 and 2003, the Land Board fined then-Kahuku Ranch owner Damon Estate a half-million dollars for the Conservation District violations and the loggers more than $1 million for cutting trees on state land.

During the contested case hearing over the state land violations that followed, Ing, representing the loggers, questioned the state’s ownership of the property and argued that it was actually owned at the time of the logging by Kahuku Ranch and is now owned by the U.S. government as part of the Hawai`i Volcanoes National Park. The case’s hearing officer and the Land Board agreed that the case should be dismissed without prejudice and directed the DLNR to pursue a quiet title action for the land in court, which the state did in 2007. The loggers then, on behalf of the U.S. government, appealed the action in federal court, lost their case, and filed an appeal last December in the 9th U.S. Circuit Court of Appeals.

Once U.S. District Judge Samuel King found in favor of the state in November 2009, the DLNR sought to put an end to the case by proposing a revised and reduced set of fines. On January 8, the Land Division recommended a fine of roughly $631,965, “considerably less than the maximum amount that might be assessed, which amounts would include a fine of $1,000 per tree and damages based on the amount grossed by loggers, $1,035,900.”

Attorney Ronald Self, representing the loggers that day, asked for more time to prepare a response. The Land Board agreed to take up the matter at its March 11 meeting.
At that meeting, deputy attorney general William Wynhoff provided a lengthy background of the case, since none of the current board members participated in the original deliberation over the violation. Wynhoff acknowledged that the loggers probably tried to ascertain where they were, but said there was “no way for experienced people to go up there and think you’re on mauka border when you’re actually on the makai border [of the Kahuku Ranch property]. I’ve been up there myself. If the end of the kipuka is 50 feet away, it’s not possible you’re on the mauka border.” He also noted that intent does not factor into whether or not there was a violation.

In the two months since its January recommendation, the Land Division significantly increased its proposed fines. In January, the division proposed fining the loggers $500 per tree cut for a total of $105,000, and imposing damages of $291,000 for restoration and $213,000 for the value of lumber taken. The division also proposed about $22,500 in administrative costs. In March, however, the division decided to impose the $105,000 fine against each logger — Steve Baczkiewicz and the McGees — individually, eliminate the damages for restoration, increase damages for the value of lumber taken to $409,423.44, and increase administrative costs to $53,870.80.

When it was Ing’s turn to testify, he immediately requested a contested case hearing. Thielen then asked what for, since the board had not taken a vote, and recommended Ing make his case to inform the board’s decision. Ing admitted he was not prepared, but disputed the DLNR’s claim that the loggers cut down all the trees on the state land, as well as its recommendation to impose a per-tree (as opposed to a per-day) fine on each individual logger.

Thielen managed to get Ing to admit that the loggers had logged in the area of dispute, but he would not agree the land belonged to the state. He added that he is not yet sure he will be representing the loggers in their federal appeal.

Thielen was clearly baffled that Ing would rather enter into an expensive contested case hearing and federal appeal rather than pay fines that would be less than or equal to his potential legal fees. When asked why he would go that route, Ing said that the loggers are broke and that he is representing them free of charge. In fact, he continued, they hadn’t even paid him fully for representing them in the contested case hearing and would probably be unable to pay even the proposed $105,000 fine, let alone the rest.

“I felt bad for them,” he said.

Thielen, however, recommended deferring the matter again for a month and possibly increase the proposed fines. In the end, the board voted to defer for one month and authorize Thielen (with the understanding that Wynhoff would be participating) to try to settle the matter in the meantime.

“We would very much like to settle,” Ing said. Wynhoff agreed that mediation
was “great idea” but also said that if the loggers think they have to file a contested case, they will.

The Land Board has authorized public hearings for a proposal by Mr. and Mrs. James Case of Honolulu to amend the DLNR’s Conservation District rules to redesignate 63,219 square feet of their Tantalus property from the Limited subzone to the Resource subzone. The rules prohibit development in the Limited subzone, which encompasses lands susceptible to flooding, erosion, tsunami inundation, volcanic activity, landslides, or have a general slope of 45 percent or more. A rule change moving the Resource subzone boundary further downslope on the Case property would make the current residence there — built in the 1940s and designed by noted architect Vladimir Ossipoff –a conforming use and would allow the couple to apply for a permit to build a new structure on the site at some point in the future.

Sam Lemmo, administrator for the DLNR’s Office of Conservation and Coastal Lands, told the Land Board on March 11 that his office had decided not to discuss the merits of the project, but merely recommended that the board allow his office to continue processing the Cases’ request.

“In fairness to the applicant, [should we] not give some type of read of how this is going to be viewed by the department, before we engage in this long process?….Is [the proposed rule change] the norm in this area?” Thielen asked Lemmo.

Lemmo responded that a similar application had been filed in the 1990s and was quite controversial, referring to a Conservation District Use Application filed by Mr. and Mrs. Randolph Grobe. The Land Board ended up denying the Grobes’ request after a contested case hearing.

Kaua`i Land Board member Ron Agor wanted to go easy on Justin and Michele Hughes, but some of the other board members just weren’t buying their story.

The couple, whose company Secret Beach Properties, LLC, owns 23.8 acres of Conservation District land in Hanalei, Kaua`i, claimed last month that in 2008 they built about 1,000 feet of trail across a section of their property in the Conservation District — without Land Board approval — so that they could keep an eye on any illegal tree cutting on their property and remove trees allegedly felled by their neighbor.

On March 11, the OCCL recommended that the Land Board find that the couple illegally landscaped in the Limited subzone and fine them $7,500 for the violation and $1,500 for administrative costs. The OCCL recommended giving them the option of remediating the area or applying for an after-the-fact Conservation District Use Permit within two months of the board’s decision.

After listening to the couple explain why they cut the trail, Agor recommended that the board approve a reduced fine of $3,500 and accommodate the couple’s request for four months to apply for a CDUP. His reasoning for the reduced fine: “This issue would not have come up had the neighbors not cut the trees.”

But Big Island Land Board member Rob Pacheco, who owns the nature tour company Hawai`i Forest and Trail, had a completely different take. After sifting through pictures of the trail work, which showed a very wide, flat path fortified with boards, he said, “I look at these pictures here and I have some experience building trails…..I really don’t believe this trail was put in merely to clear stuff out. To me, this looks like a trail for traverse to be used long-term. The fact that they laid board down to hold the trail back, this is the building of a trail for access.” Member Sam Gon, senior scientist and cultural advisor for The Nature Conservancy of Hawai`i, agreed, as did the OCCL. Its report to the board states, “The design and durability of the trail indicates that this was intended to be a permanent addition to the land, and one which would increase its value to prospective investors for the subject and neighboring parcels.” The report also notes that, in 2007, following an investigation of illegal tree cutting, OCCL had provided the couple with a copy of Conservation District rules.

In response to Agor’s suggestion, Gon pointed out that the trail opened up the Conservation District to other activities and said he wanted it remediated. He recommended that the board delete the option to file for an after-the-fact permit, but board chair Thielen said she didn’t think the board could ban anyone from filing for a permit. The board could, however, deny the application.

Agor’s motion to approve a reduced fine failed. A motion by Pacheco to approve the OCCL’s recommendation with an amendment giving the couple four months to submit a CDUA, passed, with Agor the sole dissenter.

At its March meeting, the Land Board unanimously approved nearly $4 million in funding for eight projects under the state’s Legacy Land Conservation Program, including the acquisition of a conservation easement over 614 acres in East Moloka`i owned by Kainalu Ranch. The easement is expected to cost a total of about $4,274,000, with $500,000 coming from the Legacy Lands program and the rest from private sources and the federal Forest Legacy Program.

The board also authorized its chair to enter into agreements and encumber funds for the purchase of 10.61 acres of the North Kohala coast, 63.701 acres of coastal wetland in West Maui, 0.75 acres near Kaua`i’s Black Pot Park, the historical H.N. Greenwell Store in Kona, and conservation easements over East O`ahu’s Fong Plantation, 11.14 acres of agricultural land in Puna, and six acres adjacent to Hawai`i’s Kahauale`a Natural Area Reserve.

For Further Reading:

More background on several of the issues in this month’s Board Talk can be found at our website, www.environment-hawaii.org

Palila Critical Habitat:

• “Hunters Block Saddle Road Work, Professing Concern for the Rare Palila” (October 2000)

• “State, Environmentalists Argue Over Fencing as Palila Population Declines on Mauna Kea,” and “Ranchers Who Lost Land to Palila Seek Extra Compensation from State” (July 2009)

Shark Culling in the NWHI:

• “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)

Steve’s Ag Logging Case:

• “Poachers Take Timber Valued at $1 Million” (January 2003)

• “Damon Estate Contests Fines for Illegal Logging in Ka`u” (May 2003 Board Talk)

• “Damon Estate Hopes to Avoid Fine, Restore Logged Lands in Ka`u” (June 2003 Board Talk)

• “Record Fine for Illegal Logging in South Kona, Ka`u” (August 2003 Board Talk)

• “Damon, Park Service to Restore Logged Land” (September 2003 Board Talk)

• “Koa Loggers at Center of Two Violation Cases” (May 2005 Board Talk)

• “Koa Logger Countersues Damon Estate, Claims Trust Kept Conservation Land Secret” (June 2005)

• “Loggers Seek Dismissal of $1.5M Violation Case” (August 2005 Board Talk)

• “Koa Loggers File Complaint Against Board, Attorney General” (August 2007 Board Talk)

• “Board Delays Closing Steve’s Ag Logging Case” (February 2010 Board Talk)

Tantalus Conservation District:

• “Andy Anderson Would Turn Public Land into Private Garden” (January 1992)

Volume 20, Number 10 — April 2010