{"id":12109,"date":"2020-01-01T02:05:23","date_gmt":"2020-01-01T02:05:23","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=12109"},"modified":"2020-07-02T00:49:33","modified_gmt":"2020-07-02T00:49:33","slug":"board-talk-puaahala-acquisition-kaneohe-bay-rules","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=12109","title":{"rendered":"Board Talk: Pua\u2018ahala, Waimea Acquisitions, Kane\u2018ohe Bay Rules"},"content":{"rendered":"\n

Board Approves Acquisition Of Ahupua\u2018a in East Moloka\u2018i<\/h3>\n\n\n\n
\"\"
Pua\u2018ahala, Moloka\u2018i<\/figcaption><\/figure><\/div>\n\n\n\n

The state\u2019s purchase of the 800-acre Pua\u2018ahala ahupua\u2018a in East Moloka\u2018i has been years in the making and is a key part of a fencing project aimed at protecting some of the wettest native forest that feeds the island\u2019s sole source aquifer.<\/p>\n\n\n\n

In 2015, the state Board of Land and Natural Resources authorized the contribution of about $623,000 from the state\u2019s Legacy Land Conservation Fund toward the purchase. Last November, with additional funding from the U.S. Fish and Wildlife Service, the board approved the acquisition of the lands from Seattle-based K&H Horizons Hawai\u2018i for $3.19 million.<\/p>\n\n\n\n

But it\u2019s not a done deal, yet.<\/p>\n\n\n\n

Some of the state\u2019s efforts in recent years to purchase private lands with agricultural or conservation value have been problematic. The state Agribusiness Development Corporation has been grappling with a wide range of unauthorized uses \u2014 including longstanding encroachments along bordering properties \u2014 on lands it bought from Dole Foods in Central O\u2018ahu. And the Department of Land and Natural Resources was surprised last year to find out it had purchased land in 2018 that it already owned.<\/p>\n\n\n\n

To help avoid those kinds of headaches, the Department of Land and Natural Resources\u2019 Land Division and the Attorney General\u2019s office assisted the Division of Forestry and Wildlife (DOFAW) in conducting due diligence on the Moloka\u2018i purchase.<\/p>\n\n\n\n

At the board\u2019s November meeting, land agent Ian Hirokawa reported that there are kuleana parcels within the property. He said that once the purchase of the 800 acres is completed, the state will have the right to force the sale of those kuleanas, but it does not intend to exercise that right.<\/p>\n\n\n\n

A Phase 1 Environmental Site Assessment done in 2018 revealed some concerning environmental conditions on the makai portion of the property, including lead and asbestos in two abandoned homes and buried trash, according to a DOFAW report to the board.<\/p>\n\n\n\n

K&H paid more than $270,000 for testing and partial cleanup of the sites last year.<\/p>\n\n\n\n

\u201cThe sampling results at one site did indicate lead and mercury levels above the [Department of Health Environmental Action Levels] and solid removal (20 tons) was conducted at the site for an area of approximately 400 square feet,\u201d the report continues. It adds that although post-remediation contaminant levels were below the Health Department\u2019s action thresholds, the seller agreed to hazardous materials indemnification language in the warranty deed to the state.<\/p>\n\n\n\n

After the sale closes, DOFAW will remove the abandoned structures and dispose of the lead and asbestos.<\/p>\n\n\n\n

DOFAW\u2019s report also notes that an abutting property owner has a pigpen and other personal belongings encroaching onto the lands to be purchased, and the division is working with the owner to clear them.<\/p>\n\n\n\n

\u201cThe acquisition will not close until all encroachment issues are resolved to the satisfaction of both DOFAW and Land Division,\u201d the report states.<\/p>\n\n\n\n

The Fence<\/strong><\/p>\n\n\n\n

Pua\u2018ahala contains some of the most intact forest in East Moloka\u2018i and harbors many threatened and endangered species, \u201ca few of which we thought were extinct on the island. … There\u2019s a lot to protect and a lot to lose,\u201d said Stephanie Dunbar Co of The Nature Conservancy of Hawai\u2018i (TNCH).<\/p>\n\n\n\n

TNCH has been assisting DOFAW with the Pakui fence construction project, which has already begun on lands outside Pua\u2018ahala.<\/p>\n\n\n\n

The project will span eight ahupua\u2018a, protect about 2,000 acres of forest, and has received state funding of about a million dollars. According to an environmental assessment for the project, \u201cHunt sweeps and trapping will likely be the primary actions used to control ungulate numbers within the fence.\u201d<\/p>\n\n\n\n

Maui Land Board member Jimmy Gomes asked Dunbar Co about the public sentiment toward the fencing project, given that some residents feel they have a right to freely hunt in the mountains.<\/p>\n\n\n\n

\u201cThis is why this particular project took years of outreach. This was not light. This was the first time the watershed partnership [program] was doing conservation in East Moloka\u2018i. The community wasn\u2019t as familiar with our work. There was a lot of trust-building, a lot of community meetings,\u201d she said.<\/p>\n\n\n\n

With regard to gathering rights and hunting, she said very little hunting actually occurs in the area to be fenced because it\u2019s so steep. \u201cMost of the hunting occurs below the forest line,\u201d she said.<\/p>\n\n\n\n

Even so, the EA points out that hunters will actually be allowed to access the fenced area via \u201cstep-over gates\u201d at locations determined by the community and the East Moloka\u2018i Watershed Partnership. \u201cAdditionally, the strength and rigidity of the proposed hog panel fence material will allow users to climb over it with relative ease. The intent of the project is to protect the area\u2019s native forests, which have a direct and profound link to Hawaiian culture and health, not to keep users out,\u201d it states.<\/p>\n\n\n\n

Land Board chair Suzanne Case pointed out that there is a distinction between hunting and gathering rights.<\/p>\n\n\n\n

That being said, Land Board member Sam Gon, who is also a senior scientist for TNCH, told Dunbar Co that the steep slopes look like rough country to try to build a fence.<\/p>\n\n\n\n

\u201cIt is,\u201d she replied, adding, \u201cI made it a point to be on every single fence-route survey. So I can say, sitting here today, that it is doable. I do recommend spiked tabis.\u201d<\/p>\n\n\n\n

Makai Lands<\/strong><\/p>\n\n\n\n

In addition to valuable native forest, K&H\u2019s lands also include Paialoa freshwater pond, the largest on the island. DOFAW\u2019s report suggests that the pond, which provides habitat to endangered waterbirds, including the ae\u2018o (Hawaiian stilt), the \u2018alae ke\u2018oke\u2018oe (Hawaiian coot), and \u2018alae \u2018ula (Hawaiian moorhen), could eventually be designated as a state wildlife sanctuary.<\/p>\n\n\n\n

As part of the purchase, K&H has asked for the mutual termination of a lease it acquired in 1991 for submerged lands in the area that had been slated for development for decades.<\/p>\n\n\n\n

In 1969, the Land Board granted a Conservation District Use Permit and a lease to the Pua\u2018ahala Company for 108 acres of submerged lands for a marina development that was to include hotels and condominiums. Some dredging occurred the following year, with the material being used to fill part of the Paialoa fishpond.<\/p>\n\n\n\n

The lease was later transferred to K&H, which had more modest plans, but no marina was ever built.<\/p>\n\n\n\n

According to DOFAW\u2019s report, the Land Division is fine with the lease termination so long as the area is returned in a satisfactory condition.<\/p>\n\n\n\n

At the Land Board\u2019s meeting, Gon asked DOFAW\u2019s Katie Ersback if there were any plans to restore the fishpond after the salegoes through.<\/p>\n\n\n\n

\u201cNot yet, but we\u2019re going to talk to the community about it,\u201d she replied.<\/p>\n\n\n\n

Dunbar Co, who was raised near Pua\u2018ahala, added that community members vividly remember the failed development effort in the 1960s \u201cand it\u2019s in large part because of this history that the community is supportive of this acquisition and to do restoration.\u201d<\/p>\n\n\n\n

(See our September 1995 \u201cIn the Conservation District\u201d<\/a> article for more background on the failed development efforts. It\u2019s available for free at www. environment-hawaii.org.)<\/p>\n\n\n\n

\n\n\n\n

Purchase Protects Waimea Watershed<\/h3>\n\n\n\n
\"\"
The state’s newly purchased forest in Waimea , O\u2018ahu.<\/figcaption><\/figure>\n\n\n\n

On December 30, the DLNR and the Trust for Public Land announced that the state had completed the acquisition of 3,716 acres of the upper Waimea watershed on O\u2018ahu from Dole Food Company. The purchase ensures the \u201cprotection of an entire watershed and nearly the entire ahupua\u2018a, from the Ko\u2018olau summit to Waimea Bay,\u201d a media advisory stated.<\/p>\n\n\n\n

The Land Board had approved the deal on October 25 and authorized public hearings to add those lands \u2014 which provide habitat for rare native plants and animals \u2014 to the Pupukea-Paumalu forest reserve. (See our November 2019 Board Talk<\/a> for more background.<\/p>\n\n\n\n

\n\n\n\n

Non-Profit\u2019s Kane\u2018ohe Bay Tours Prompt Boating Rule Changes<\/h3>\n\n\n\n

At the Land Board\u2019s November 8 meeting, the DLNR\u2019s Division of Boating and Ocean Recreation (DOBOR) received approval to hold public hearings on rule amendments that would delete a section that seems to exempt educational institutions and non-profits from limitations on commercial activities in Kane\u2018ohe Bay.<\/p>\n\n\n\n

Kama\u2018aina Kids, a non-profit organization that conducts educational programs for children throughout the state, has for decades been taking students onto the bay, teaching them about ocean safety and ecology, among other things. The organization has also held a lease since 2010 to manage He\u2018eia State Park, which overlooks the bay.<\/p>\n\n\n\n

While many in the community have praised the group\u2019s work, they have also expressed concern in recent years that its activities have crossed over into commercial use.<\/p>\n\n\n\n

In the 1990s, to address the over-commercialization of the bay and adjacent harbor facilities, the Legislature assembled a task force of various stakeholders to create a master plan that would inform the creation of administrative rules governing activities on the water.<\/p>\n\n\n\n

Included in those rules were two subsections \u2014 p and q \u2014 that have become problematic, in light of how Kama\u2018aina Kids has been advertising, pricing, and operating tours on the bay:<\/p>\n\n\n\n

Subsection p caps the level of commercial use to what was occurring in 1993, and subsection q states, \u201cActivities conducted by a bona-fide educational institution or an organization which is registered with the State and classified by the Internal Revenue Service as a not-for-profit … organization shall not be subject to the restrictions of subsection p, but shall operate only in accordance with a permit issued by the department pursuant to [Hawai\u2018i Administrative Rule] chapter 13-231 [relating to small boat harbors] or chapter 13-256 [relating to Kane\u2018ohe Bay] or both.\u201d Kama\u2018aina Kids\u2019 attorneys and staff have argued that subsection q allows the organization to market kayak and sailing tours to tourists in Waikiki and offer $130 adventure packages \u2014 including transportation and lunch \u2014 under the name Holokai Kayak and Snorkel Adventures, so long as the charge for the ocean-related part of the tour covers only labor and fuel costs.
<\/p>\n\n\n\n

DOBOR, however, disagrees and has proposed deleting the subsection.<\/p>\n\n\n\n

After rules based on the master plan were adopted in 2011, \u201cit was later found that there was an inadvertent error. The result led to a misunderstanding on the non-profit permit. There is none. The intent was not to create a separate type of permit,\u201d DOBOR\u2019s Meghan Statts told the board during her presentation on the proposed rule change.
<\/p>\n\n\n\n

Representatives from Kama\u2018aima Kids, not surprisingly, opposed it.<\/p>\n\n\n\n

Andy Carre, who manages the park and oversees Kama\u2018aina Kids\u2019 activities in Kane\u2018ohe Bay, explained to the board that the tours his organization sells under the business name of Holokai Kayak and Snorkel Adventures provide much of the revenue that funds its care of He\u2018eia State Park and its educational programs.<\/p>\n\n\n\n

\u201cWith so many persisting problems with this day and age, with pollution and climate change, [it\u2019s] all the more reason we wantthe ability to offer programs to teach. … Kama\u2018aina Kids has been able to operate under that subsection q,\u201d he said.<\/p>\n\n\n\n

At a Land Board meeting in May, while seeking an administrative hearing on DOBOR\u2019s decision not to renew Kama\u2018aina Kids\u2019 commercial use permit for its tours, CEO Raymond Sanborn explained that the tours are sold in Waikiki under Holokai Kayak and Snorkel Adventures because nobody would pay to go on a tour by a company called Kama\u2018aina Kids.<\/p>\n\n\n\n

He said that if DOBOR prevents the organization from selling those tours, it stands to lose $300,000 a year, all of which funds the He\u2018eia park management. Carre later added that but for the group\u2019s responsibility to care for the park, the paid tour program would not exist.<\/p>\n\n\n\n

\"\"
Kama\u2018aina Kids has held the lease to manage He\u2018eia State Park since 2010.<\/figcaption><\/figure>\n\n\n\n

Attorney Greg Kugle, who represents Kama\u2018aina Kids, told the Land Board at the November meeting that the organization had been discussing the scope of its activities on the bay with DOBOR since 2016. They disagreed over what the rules allow and the agency ultimately issued the organization a cease and desist letter.<\/p>\n\n\n\n

In a February 27 letter to Kama\u2018aina Kids, DOBOR stated that it would not be renewing the one-year commercial use permit it had granted in 2018 because Holokai \u201cconspicuously advertises and operates commercial tours for adults and minor visitors. We have spoken numerous times regarding this issue. Despite this, Hokokai Adventures continues to advertise and to operate its commercial tours at commercial for-profit market rates, and thus by definition in excess of the charges allowed under the permit. … [C]harges for the commercial tours are limited to direct operating costs for the tour. KAC [aka Kama\u2018aima Kids] has continued to circumnavigate the rules by separating the price for its tours between land and sea activities.\u201d Holokai charges $100 for the land-based part and $30 for the guided ocean tour.<\/p>\n\n\n\n

\u201cThis is not a legitimate pricing scheme. The total costs for KAC\u2019s commercial activities still exceed the allowable charges for labor and fuel,\u201d DOBOR\u2019s letter stated. <\/p>\n\n\n\n

Last May, the Land Board denied a request for an administrative hearing on the decision not to renew the permit. Even so, it appears that a contested case hearing may be held anyway, according to Kugle. (The DLNR did not respond to questions about how or whether a contested case hearing had been granted by the board.)<\/p>\n\n\n\n

Despite not having a permit anymore, Kama\u2018aina Kids is still selling tour packages for the bay on the internet. Kugle told Land Board chair and DLNR director Suzanne Case in May that the tours would continue to be sold \u201cuntil we get due process.\u201d<\/p>\n\n\n\n

At the November meeting, Kugle argued against DOBOR\u2019s proposed rule change, and said subsections p and q and how they relate to Kama\u2018aina Kids\u2019 activities will be central to the pending contested case.<\/p>\n\n\n\n

\u201cThe proposal before you to drop [section] q out while that is specifically a significant issue in contention in this soon to come contested case hearing is, in my opinion, just an effort to kind of un-level the playing field, to change the rules midstream. … You can\u2019t just change the rules in the middle of the contested case. I think that the only reason for targeting subsection q is to target Kama\u2018aina Kids,\u201d he said.<\/p>\n\n\n\n

Case explained that Kama\u2018aina Kids\u2019 stance that the rules exempt it from restrictions on commercial use is problematic. \u201cYou could have jet skis on the bay and it would not be restricted,\u201d she said.<\/p>\n\n\n\n

\u201cI don\u2019t know because that\u2019s certainly not what Kama\u2018aina Kids does,\u201d Kugle replied.<\/p>\n\n\n\n

\u201cCould a non-profit run commercial tours and use the money to fund its non-profit business?\u201d Case then asked.<\/p>\n\n\n\n

\u201cI\u2019m not a tax lawyer. I recall when Kamehameha Schools was under scrutiny by the IRS, they cut out some of their commercial entities such as the Royal Hawaiian Shopping Center and other things, which clearly would have threatened their non-profit status,\u201d Kugle said.<\/p>\n\n\n\n

Carre added that subsection q was historically the justification for Kama\u2018aina Kids\u2019 continuous receipt over the years of Ocean Recreation Management Area (ORMA) decals for the 152 boats it uses on the bay.<\/p>\n\n\n\n

Board member Chris Yuen pointed out that the ORMA rules prohibit jet skis and parasailing on the bay, so those activities shouldn\u2019t be much of a concern. With regard to subsection q,he was flummoxed.<\/p>\n\n\n\n

\u201cCertainly, you can have a legitimate non-profit have an educational tour and charge people money to go on it to cover your expenses and the people\u2019s salaries. You can also use this as a business model where you, instead of having business, you have a non-profit and you pay yourself to be the head of a non-profit. I\u2019m not saying that\u2019s what you\u2019re doing. I think that\u2019s the q loophole they\u2019re trying to close up,\u201d he told Carre.<\/p>\n\n\n\n

Joe Pickard, a commercial operator on the bay since 1989, was also on the task force that drafted the master plan. \u201cI know all about what happened. I was the one who helped write that language about the non-profits. … The community had had enough. Some companies were taking 300 people a day on tours,\u201d he said.<\/p>\n\n\n\n

The task force documented all of the commercial uses on the bay at the time, he said, adding, \u201cAt no time, ever, was Kama\u2018aina Kids ever considered a commercial operation. They were operating from Kokokahi [another site along the bay]. … All they were doing was taking out kids out to learn how to sail.\u201d<\/p>\n\n\n\n

With regard to the use of the bay by non-profits at the time, \u201cAt no time was any of these people bringing in tourists from Waikiki. At no time were any of these activities advertising themselves on as commercial operations on the internet. At no time did they have brochures that they were distributing. At no time did they have buses or vans coming in from Waikiki. So they were not considered commercial operation. They were simply a community service organization and all they were doing is, if someone wanted to go on the bay for a certain purpose that met the community\u2019s non-profit needs, so be it. So we inserted that language in the master plan with the intent of not preventing people like native Hawaiian Civic Clubs or the canoe clubs or Polynesian Voyaging Society from using the bay as a resource,\u201d he continued.<\/p>\n\n\n\n

He argued that the intent of subsection q was not to allow non-profits to conduct commercial activities and said he supported DOBOR\u2019s proposal to remove it.<\/p>\n\n\n\n

\u201cIf not, everyone\u2019s going to do it and it\u2019s going to destroy the bay,\u201d he said.<\/p>\n\n\n\n

He added that there does need to be some kind of language in the rules that protects legitimate non-profits.<\/p>\n\n\n\n

\u201cWould you draw a bright line on charging people to go out on the water as how we view commercial versus non-commercial?\u201d Yuen asked.<\/p>\n\n\n\n

Pickard replied that if the Polynesian Voyaging Society ran a program at Kualoa Beach Park with Windward Community College and they charged students to participate, \u201cif that\u2019s construed as charging, I\u2019m ok with that and I think the community is ok with that. But if someone goes on the internet and advertises and has brochures in Waikiki and they\u2019re saying, \u2018Come out and ride our kayaks on the bay,\u2019 that is definitely commercial activity and I think it\u2019s not right.\u201d<\/p>\n\n\n\n

DOBOR\u2019s Statts said that there are other subsections in the rules that allow commercial users to conduct educational tours without those passengers counting toward their daily limits. However, she said those rules make it clear that the companies cannot charge for more than fuel and labor in those cases.<\/p>\n\n\n\n

Board members asked how educational activities by non-commercial organizations would be allowed within the bay.<\/p>\n\n\n\n

\u201cWhat is the bright line?\u201d Yuen asked again. \u201cI can see legitimate programs that involve payment of money…. I can also see we can create a loophole we can drive a tour bus through,\u201d he said.<\/p>\n\n\n\n

Statts said that was a hard question to answer. Other than issuing commercial use permits to govern activities on the bay, she said her division has worked with the Polynesian Voyaging Society and schools on specific events. For those, DOBOR has issued a marina event permit that covers a specific amount of time.<\/p>\n\n\n\n

\u201cIf you\u2019re looking for some type of permit that we would issue year-round … we don\u2019t have that,\u201d she said.<\/p>\n\n\n\n

Given the complexity of the issue and its history, board member Sam Gon said he thought the best way forward was to take DOBOR\u2019s proposed rule changes to public hearings \u201cand see about trying to streamline the history of change regarding rules in Kane\u2018ohe Bay.\u201d<\/p>\n\n\n\n

The rest of the board agreed. <\/p>\n\n\n\n

\u2014 Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Board Approves Acquisition Of Ahupua‘a in East Moloka‘i The state’s purchase of the 800-acre Pua‘ahala ahupua‘a in East Moloka‘i has been years in the making and is a key part of a fencing project aimed at protecting some of the … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":12111,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,463],"tags":[3],"class_list":["post-12109","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-board-talk","category-january-2020","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12109","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12109"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12109\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/12111"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12109"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12109"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12109"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}