Makua Kayak\u2019s Expiring Permit
\nShows Rift Among Land Board Members<\/b><\/p>\n
When the Wai\u2018anae Neighborhood Board voted in May 2004 to endorse a proposed state permit for Makua Lani\u2019s kayak tours, which would allow the company to launch from Makua State Park, it was on the condition that the Department of Land and Natural Resources implement a permit process and develop rules for a concession at the leeward O\u2018ahu park.<\/p>\n
Under another name and different owner, Makua Lani had been operating illegally out of the park, and in April 2004, the company was issued a cease and desist order by the DLNR. But instead of closing shop, Makua Lani pleaded its case to the local state representative, state DLNR, Gov ernor Linda Lingle, and the neighborhood board. Last summer, the company\u2019s efforts paid off when the Land Board voted to award an interim permit to the company while staff with the DLNR\u2019s Division of State Parks worked on establishing a permit concession at the park.<\/p>\n
\u201cHere it is a year later, there have been three meetings. No rules. No process has been in place,\u201d Wai\u2018anae Neighborhood Board representative Jo Jordan told the Land Board at its June 9 meeting. So when the issue of Makua Lani\u2019s permit came before the Neighborhood Board again last month, the vote was 11-0 in opposition to the DLNR\u2019s award of any concession permit out of Makua Beach Park, she said. Faced with a lack of adequate rules to control the commercializa tion of Makua, the Wai\u2018anae Neighborhood Board voted unanimously and overwhelm ingly against it.<\/p>\n
It was not so cut and dried for the state Board of Land and Natural Resources, which on June 9 faced the option of renew ing Makua Lani\u2019s permit, expiring on June 30, for another year. By law, any decision of the board requires the vote of at least four board members. When it came time to vote, only five board members remained (out of seven allowed by law). Despite two attempts to vote on State Park staff\u2019s rec ommendation to deny Makua Lani\u2019s per\u00admit, the board was unable to muster a four-vote majority.<\/p>\n
Given the discussion that took place on June 9, the majority of the Land Board members were either against issuing Makua Lani a new permit, or too uncomfortable with the state\u2019s lack of information and ad equate rules to vote either way. Even so, Land Board chair and DLNR administrator Peter Young put the item on the agenda for the board\u2019s June 24 meeting, simply because \u201cEv erybody deserves a decision. We needed four [votes] and hopefully we can make a final decision [on June 24],\u201d he said. State parks again recommended that the Board deny the permit.<\/p>\n
Dissent<\/i><\/b>
\nMakua Lani was first granted a permit last year as an experiment to see how compatible commercial use was with the state park there. The permit allowed the company to launch as many as 28 people from the park, Monday through Friday, until June 30. But based on the strong community opposition voiced at meetings held over the past year on a possible permanent concession at the park, State Parks staff had decided to drop the idea, and recom mended that the board deny Makua Lani a permit extension.<\/p>\n
At the Land Board\u2019s first June meeting, many of Makua Lani\u2019s young employees expressed how much their work, which includes dancing hula and teaching the Hawaiian culture to Japanese tourists, means to them. The majority of Makua Lani\u2019s employees are young Hawaiian men who live on the west side of O\u2018ahu.<\/p>\n
\u201cThese boys are Hawaiians who never danced hula before, who never knew their culture, who never even said one chant, who never understood what Makua was really about,\u201d Makua Lani cultural advisor and kayaker Malama Puahi told the board. \u201cI can say from my heart, these boys have changed. Truthfully speaking, a lot of these boys would be doing drugs. A lot of these boys would be ripping off cars, doing all these kinds of things,\u201d she said.<\/p>\n
While many of the Wai\u2018anae residents who testified stressed that they had no personal ill will toward the boys, they nonetheless opposed the permit. The company was accused of everything from hiding its books after inviting the public to review them to using a cemetery near the park as a toilet (a claim employees say is ridiculous). But most of the testimony revolved around how the increasing commercialization of Makua Bay is affecting the dolphins there and interfering with the ability of commercial fishermen to catch akule and opelu.<\/p>\n
Dolphins<\/i><\/b>
\nMakua Bay is a known dolphin resting area. Studies on spinner dolphins off O\u2018ahu\u2019s west coast show that they hunt and feed as a group at night, engaging in a highly synchronized, high-energy dance, encircling their prey and taking turns, two by two, feasting on the mass of tiny organisms within the circle. During the day, the dolphins rest in the sheltered bay, going up for air and settling back down, again, as a group.<\/p>\n
When the Land Board approved Makua Lani\u2019s interim permit last year, it sought to keep the operation from interrupting that rest by including conditions prohibiting any kind of pursuit of the dolphins and requiring the kayakers to leave the water if a dolphin approached within 50 feet.<\/p>\n
At the June 9 meeting, some testifiers accused the kayakers of pursuing dolphins; one even claimed the kayakers slap the water to entice the animals to interact. The kayakers, however, insisted that the dolphins come to them of out of curiosity.<\/p>\n
Despite the admitted interaction with dolphins, the company has not been cited for any permit violations. The DLNR has been struggling to control the many ocean-related commercial operations proliferating in Hawai\u2018i, particularly those that target dolphins. Several dolphin-watching boats with permits from DLNR\u2019s Division of Boating and Ocean Recreation launch out of Wai\u2018anae small boat harbor. Others launch from Ko Olina. But because the Wai\u2018anae Coast is not designated in DOBOR rules as an Ocean Recreation Management Area, the DLNR cannot keep boats with DOBOR permits from the dolphin resting areas.<\/p>\n
When Makua Lani\u2019s permit was issued last year, company representatives protested the dolphin-approach condition, saying it unfairly penalized the least harmful tour operation and made it impossible to do business.<\/p>\n
Since then, however, federal agencies have told the DLNR that the state has no jurisdiction over swim-with-dolphins programs and so the state has not enforced the condition banning dolphin-kayak interactions. The federal government alone has jurisdiction over dolphins, Land Board chairman Young said at the June 9 meeting.<\/p>\n
\u201cThat\u2019s the bad news,\u201d he said. \u201cThe good news is there is a new investigator that is now assigned to the National Marine Fisheries Service \u2026 and later this summer there\u2019ll be more task force action on all the swim-with-dolphins programs.\u201d<\/p>\n
Fishing<\/i><\/b>
\nDLNR\u2019s inability to control dolphin-watch-ing is also affecting commercial fishing in the area.<\/p>\n
Carl Jellings, an akule fisherman whose family has fished Makua for generations, told the board that Makua Lani\u2019s kayak tour takes up the whole bay and breaks up the large schools of akule, which he tracks for days by plane, into small, uncatchable patches. While his beef was mainly with the increasing num ber of commercial tour boats that launch out of Wai\u2018anae boat harbor or Ko Olina, Jellings said Makua Lani was just one more operation that was infringing on his fishing grounds.<\/p>\n
\u201cIt sounds like you\u2019re concerned about cumulative impacts to these resources,\u201d Land Board member Kathryn Inouye told Jellings. She questioned whether the board\u2019s denial of a permit to a group of kayakers would make any difference in his ability to catch fish.<\/p>\n
Maui Land Board member Ted Yamamura agreed.<\/p>\n
\u201cWe\u2019re dealing with a much bigger picture going on here and yet we\u2019re trying to decide on one activity or one permit. I\u2019m not com fortable with this yet,\u201d he said.<\/p>\n
The Land Board\u2019s management policy to protect or accommodate natural resources first, the public second, and commercial uses last was no help in this case, at-large board member Tim Johns said.<\/p>\n
\u201cAt the end of the day, our policy doesn\u2019t say anything about competing commercial uses,\u201d he said.<\/p>\n
But to some, fishing was not just another commercial use. Some native Hawaiian testifiers alleged that Makua Lani was exploit ing the sacredness of Makua for money, which they found deeply offensive. However, they said, Makua was traditionally a place for the lawai\u2018a (fishermen), and because of that, \u201cthey [fishermen] should be given respect and listened to,\u201d said Melva Aila, a native Hawai ian practitioner.<\/p>\n
Rules<\/i><\/b>
\nIf the Land Board did not vote to renew Makua Lani\u2019s permit, \u201cthe consequence is that the existing permit will expire at the end of the month,\u201d Young told the board.<\/p>\n
Frustrated that the board lacked adequate information and rules to address the user conflicts and natural resource impacts, Inouye lamented, \u201cWe, as a department, are failing the state in not promulgating rules.\u201d While Young explained that his department was working towards establishing an ORMA for Wai\u2018anae and was also attempting to develop a comprehensive coastal policy for the state, that didn\u2019t mean much to Inouye without a timeline. \u201cUntil that happens, the impacts statewide are going to continue,\u201d she said.<\/p>\n
Inouye was willing to defer the matter to allow the DLNR\u2019s Division of Aquatic Re sources time to assess Makua Lani\u2019s impact on the fish in the area, but DAR\u2019s Francis Oishi said such an assessment would be probably require federal or privateconsultingand would take longer than the three months she was willing to put off a vote.<\/p>\n
Board member Tim Johns moved to ap prove staff\u2019s recommendation; Yamamura seconded the motion. When the vote was finally called for, it failed 2-3, with Johns and Young voting in favor, and Inouye, Kaua\u2018i\u2019s Ron Agor, and at-large member Toby Martyn voting against (Yamamura had to leave before the vote).<\/p>\n
Inouye and Martyn then appealed to Jellings, the fisherman, for some kind of compromise.<\/p>\n
\u201cIt\u2019s not going to be a win-win situation. At this point it looks like it\u2019s going to be a win-lose situation. But what we would like to see is if there could be compromises on both sides so that you\u2019re not each going to get 100 percent of what you want,\u201d Inouye said. Jellings responded that he was already giving up 50 to 60 percent of his fishing grounds. Even if the kayakers were limited to less than five says a week, he said there is already an existing impact from the motorized tour vessels.<\/p>\n
\u201cThis [kayak operation] is another on top of that. I can\u2019t say letting them operate out there three days a week is a good idea,\u201d Jellings said.<\/p>\n
Johns reminded the rest of the board that the potential impacts of Makua Lani\u2019s opera tion were not just on akule.<\/p>\n
\u201cI don\u2019t think the permit should have been issued in the first place,\u201d he said. \u201cWe issued the permit without the information in front of us that said what the impacts might be. Now, a year later we\u2019re saying, \u2018Well, they\u2019ve got their permit so we\u2019re not gonna pull it back because we\u2019re hurting some people that might be working.\u2019 I understand that, but I don\u2019t think the resource should bear the risk \u2013 and it\u2019s not just the akule fishermen, it\u2019s the other resources that are there \u2013 of the uncer tainty,\u201d he said.<\/p>\n
While Inouye agreed that the Land Board should not allow commercial operations where resources are being degraded, she was not ready to vote against commercial use in Makua, a decision, she said, that would have a \u201chuge impact on the Wai\u2018anae Coast.\u201d<\/p>\n
Johns, a former DLNR director who had dealt with Jellings and others on user conflicts at Makua, was ready to make that vote.<\/p>\n
\u201cFive years ago, we saw it coming. Five years ago, we talked about an ORMA there,\u201d he said. The DLNR is now taking its first steps in establishing an ORMA in Wai\u2018anae. But the lack of an ORMA, Johns said, shouldn\u2019t be a reason to continue to commercialize the area in the meantime.<\/p>\n
\u201cI think you would argue that the precau tionary principle says we should do the oppo site,\u201d he said. \u201cIf you asked me to start from ground zero, I\u2019d have no motorized guys and a few kayak guys. But that\u2019s not the situation we\u2019re in,\u201d he said, adding that if the board gave Makua Lani another permit, \u201cAll we\u2019re doing is adding more fuel to the fire by allowing continued commercialization.\u201d<\/p>\n
Young noted that the DLNR has drafted a request for proposals to help the department write rules for a West O\u2018ahu ORMA. That process will go forward regardless of whether Governor Lingle signs a bill approved by the Legislature to impose a moratorium on addi tional boating permits in Wai\u2018anae.<\/p>\n
After further discussion, Martyn decided to give the vote another try and moved to approve staff\u2019s recommendation. \u201cYour point is a good point and it\u2019s the right thing to do,\u201d he told Johns \u201cWe\u2019ve always tried to listen to what the community is telling us. It\u2019s clear the community doesn\u2019t uniformly support this.\u201d<\/p>\n
The new motion failed as well, with Agor and Inouye both saying they were uncomfort able approving the recommendation without more information.<\/p>\n
Young encouraged Makua Lani to work with his department to see if there is another location it can work from.<\/p>\n
<\/p>\n <\/b><\/p>\n In less than a year, John and Michele Gamble went from being faced with a $13,000 fine and an order to tear down a substantial part of their successful bed and breakfast operation, to paying a $2,350 fine for an unpermitted rock wall extension on their property.<\/p>\n Even so, the damage has been done, they told the Land Board at its May 27 meeting.<\/p>\n News reports last year about what appeared to be the end of their Palm Cliffs House have led to a 25 percent reduction in reservations and their business being omitted from new edi tions of the travel guides Frommer\u2019s and Blue Moon.<\/p>\n \u201cWe\u2019ve suffered enough,\u201d John Gamble told the Land Board.<\/p>\n In February 2001, the state Land Use Commission issued a boundary interpreta tion for the Gambles\u2019 3.5-acre piece of land in Honomu, along the Hamakua Coast of the Big Island. At the time, they were building a bed-and-breakfast and making other improvements to their cliffside property and wanted to know where the Conservation Dis trict lay.<\/p>\n The LUC found that a significant portion of their bed and breakfast was in the conser vation portion of their split-zoned property. The Gambles contested the LUC\u2019s interpre tation in April 2001, but were shot down by the LUC in June. And because no Conserva tion District Use Permits had been received for any of the work done, DLNR\u2019s Office of Conservation and Coastal Lands proceeded with an enforcement case, which it brought to the Land Board last September. In the meantime, the Gambles pressed the LUC for a new boundary interpretation.<\/p>\n At the Land Board\u2019s September 10 meet ing, Sam Lemmo of the DLNR\u2019s Office of Conservation and Coastal Lands, proposed a fine of $12,000 for the B&B, a lanai, a wall extension and drainage pipe, landscaping, tree cutting, and the planting of a macad amia nut orchard. He also recommended $1,350 in administrative costs and that the Gambles cease using the Conservation Dis trict portions of the B&B, remove encroach ments and other improvements or apply for an after-the-fact Conservation District Use Permit for them. (Because bed-and-break-fasts are not allowed in the Conservation District, it\u2019s likely that any application for an after-the-fact permit for the structure would have been denied.) The Land Board deferred the matter because Steve Lim, an attorney representing the Gambles, had requested a contested case hearing.<\/p>\n The Gambles claimed that they had be lieved all of their improvements were in the Agriculture District. They argued that the LUC had made a mistake in determining the place where an old cane road separated the Conservation and the Agriculture districts.<\/p>\n In the end, the Gambles prevailed: last January, the LUC issued a new boundary interpretation showing that the B&B was entirely in the Agriculture District.<\/p>\n In light of the LUC\u2019s new interpretation, OCCL found that only two violations re mained: the landscaping and the rock wall extension. And on May 27, the OCCL asked the Land Board to fine the Gambles $5,350 ($2,000 for each violation and $1,350 in administrative costs).<\/p>\n Even these violations, however, were contested. Michele Gamble showed the Land Board pictures that proved the land scaping was there when she bought the property. She added that the rock wall was also preexisting and was covered by a site plan filed with the DLNR. (Lemmo noted that the site plan did not include the entire wall, which was later extended.)<\/p>\n She also contested the administrative costs. \u201cWe\u2019re being fined for the LUC maps being wrong. Our business has been damaged by this process,\u201d she said. \u201cThe OCCL should have waited [before bringing an enforcement case].\u201d<\/p>\n The Land Board apparently agreed, and voted to fine the couple for only the rock wall, and reduce the administrative fine from $1,350 to $350.<\/p>\n <\/p>\n <\/b><\/p>\n On June 9, the Land Board\u2019s regular meeting was to start, as usual, at 9 a.m. in the Kalanimoku Building\u2019s conference room in Honolulu. Anyone who came a little early would have happened upon the Land Board seated across a sea of smiling people, some of them wearing lei. Those people were DLNR employees that had gathered for the department\u2019s annual staff awards. Land Board member Gerald DeMello told Environment Hawai\u2018i that he had been advised to show up at 8:30 for the awards. No notice was mailed out to the public. In the past, Land Board has given the awards out without noticing them on the agenda, but only after 9 a.m., when the public had already gathered for the regular board meeting.<\/p>\n Board chair Peter Young told Environ ment Hawai\u2018i that he had not instructed the board members to come early and he didn\u2019t know who did. In any case, he said, it wasn\u2019t a meeting of the board, but only a recognition of the DLNR\u2019s employee, manager, and team of the year.<\/p>\n — Teresa Dawson<\/p>\n Volume 16, Number 1 July 2005<\/p>\n","protected":false},"excerpt":{"rendered":" Makua Kayak’s Expiring Permit Shows Rift Among Land Board Members When the Wai‘anae Neighborhood Board voted in May 2004 to endorse a proposed state permit for Makua Lani’s kayak tours, which would allow the company to launch from Makua State … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,125],"tags":[],"class_list":["post-1508","post","type-post","status-publish","format-standard","hentry","category-board-talk","category-july-2005"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1508","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=1508"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1508\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1508"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1508"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1508"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nGambles Keep B&B<\/div>\n
\nBoard Meets Early To Announce Staff Awards<\/div>\n