Last winter, Joshua Stanbro, Hawai\u2018i project manager for the non-profit Trust for Public Land, had a strong hunch that federal funds available through the Forest Legacy program would not be enough to buy 25,856 acres in east Hawai\u2018i known as Wao Kele O Puna from the Estate of James Campbell.<\/p>\n
So when word came this spring that Campbell wanted $3.65 million for the block of rainforest on Kilauea\u2019s east rift zone \u2014 $250,000 more than the $3.4 million in re quested Forest Legacy funds \u2013 Stanbro was not surprised. He picked up the phone and started calling.<\/p>\n
One of his first calls was to Jonathan Scheuer, a policy analyst with the Office of Hawaiian Affairs who specializes in water and land issues. Last year, Stanbro had worked with Scheuer on TPL\u2019s $4 million purchase of Mu\u2018olea Point in Hana, for which OHA had contributed $342,000. Last February, TPL conveyed the property to Maui County, which had given $1 million toward the acqui sition of the 70-acre property, once a summer retreat of King David Kalakaua.<\/p>\n
In his Kapi\u2018olani Street office just outside downtown Honolulu, Scheuer listened to Stanbro\u2019s proposition: TPL would purchase the property from Campbell for $3.65 million, and would then be reimbursed \u2013 $250,000 from OHA and $3.4 million in Forest Legacy funds channeled through the state Department of Land and Natural Resources. The state would take title to the property, which would then be managed by the DLNR\u2019s Division of Forestry and Wildlife.<\/p>\n
The transaction would return Wao Kele to DLNR\u2019s control twenty years after the governing Board of Land and Natural Re sources approved a land exchange with Campbell aimed at advancing geothermal power development in Hawai\u2018i \u2013 a course of action that ignited protest from the neighbor ing communities and Native Hawaiians, spawned decades of litigation, and gave birth to the native Hawaiian activist group Pele Defense Fund.<\/p>\n
The idea of Wao Kele coming back to the state was something many in Hawai\u2018i had dreamed about for years. But Scheuer had a feeling that OHA\u2019s Board of Trustees would want more than that.<\/p>\n
According to a report Scheuer prepared for OHA\u2019s committees on Asset and Re source Management and Beneficiary Advo cacy and Empowerment, the OHA trustees supported last year\u2019s acquisition of Mu\u2018olea Point, but would have preferred that the parcel be transferred to OHA, \u201crather than merely contribute to the protection with fee held by Maui County.\u201d<\/p>\n
Faced with a second opportunity to help acquire a historic piece of land, and antici pating what his trustees would say, Scheuer says, he asked Stanbro rhetorically, \u201cThe federal government took it, the state gave it away, and now you want us to pay for the state to get it back?\u201d<\/p>\n
Instead, Scheuer proposed that OHA pay the $250,000 and take title. While both Stanbro and Scheuer knew it was a big departure from what TPL and state Department of Land and Natural Resources (DLNR) staff had been working toward over the last few years, Stanbro decided it was an option worth pursuing. Given the timeline Campbell had given TPL to close the deal, he had until September 13 to get his reimbursement sources in line.<\/p>\n
It was now May 9.<\/p>\n
Breaking Ground<\/i><\/b>
\n\u201cWao Kele O Puna is one of the places in modern times where native Hawaiians stood to defend their rights,\u201d said OHA board chair Haunani Apoliona at a September press conference. In the 1980s, the state government was sold on the idea of tapping the active Kilauea volcano for geothermal energy, which could then power O\u2018ahu via an undersea electrical transmission cable. Kilauea also happens to be where Pele, the Hawaiian goddess of fire, is believed to reside. What\u2019s more, the uplands of Puna had long been used by Ha waiians for hunting, gathering, and other cultural activities.<\/p>\n
The controversy over Wao Kele O Puna began in 1982, when Campbell Estate proposed building a 250 megawatt geothermal power plant on Conservation District land it owned at Kahauale\u2018a, an undisturbed forest area mauka of Wao Kele. Campbell had done an environmental impact statement for the project and had applied to the DLNR for a Conservation District Use Permit to drill a well and build the plant.<\/p>\n
The Volcano Community Association, which at the time was headed by current state Sen. Russell Kokubun, and a number of the parties were granted a contested case hearing on the application. It was the first ever contested case hearing before the Board of Land and Natural Resources and led to the creation of today\u2019s contested case hearing rules.<\/p>\n
To get around arguments made during the contested case and subsequent appeal about the inappropriateness of geothermal development in the Conservation District, the state Legislature passed a law in 1983 creating a geothermal subzone within the Conservation District.<\/p>\n
This, too, met community opposition. A second contested case hearing was held on the geothermal subzone designation and included many of the same parties from the first contested case. During these new hearings, an argument was made that a geothermal operation at Kahauale\u2018a would significantly affect the environment, more so than if someone were to drill in Kilauea\u2019s east rift zone down hill. Kahauale\u2018a had also been recently overrun with lava, making it an unattractive place to build a power plant.<\/p>\n
In an effort to resolve many of these issues, the Land Board proposed exchanging some of its own land in the east rift zone for Campbell\u2019s Kahauale\u2018a land \u2013 a proposal that shocked many on the Big Island because it would mean trading away the Wao Kele O Puna Natural Area Reserve, a pristine and ancient 17,000-acre lowland forest that was meant to be protected in perpetuity, as were all NARs.<\/p>\n
The land exchange, which was approved by the Land Board in 1985, gave rise to a third contested case, this time including the Pele Defense Fund, established to protect native customs and rights and the environment that it saw as threatened by the geothermal proposal and land exchange.<\/p>\n
PDF argued at the time that drilling into Kilauea was a desecration of Pele, who herself is the heat, the lava and the steam that emanate from the volcano. They were also concerned that Campbell would also block traditional Hawaiian access to the land. In any case, PDF felt, no ceded lands should ever be sold. PDF also fought the land exchange in both state and federal courts.<\/p>\n
One participant in the contested case hearings recalls that they were massive marathon sessions that went on for days at a time. People came from all over the state to watch the proceedings, and \u201can entire community dedicated month in and month out on this.\u201d<\/p>\n
Some even sacrificed their freedom. In March 1990, for example, more than a thousand protesters (many of them Native Hawaiian), led by PDF and the Big Island Rainforest Action Group, gathered and more than a hundred were arrested at the locked gates of Campbell\u2019s road to its geothermal site at Wao Kele O Puna. News reports at the time stated that three dozen armed police were enlisted to keep the peace.<\/p>\n
Despite the fervent opposition, the land exchange was allowed to stand, a 9,000-acre geothermal subzone was designated at Wao Kele O Puna, Campbell Estate\u2019s ten ant True Geothermal Venture drilled its well, it entered into a 65-year mining lease with the state to develop geothermal power, and signed a well-monitoring license agree ment with the DLNR.<\/p>\n
But even with all of the government\u2019s efforts to make geothermal development a success for Campbell, the developer Campbell selected to drill and run the wells at Wao Kele, True Geothermal, was never able to make it happen and in 1994 aban doned the project.<\/p>\n
Even so, PDF, represented by attorneys with the Native American Rights Fund and the Native Hawaiian Legal Corporation (which receives funding from OHA), contin ued to for native rights in court.<\/p>\n
Although the Hawai\u2018i Supreme Court upheld the land exchange in 1992, it remanded the issue of gathering rights to the Third Circuit Court. And on August 26, 2002, 13 years after it first filed suit, PDF won a vic tory of sorts. The lower court reaffirmed native Hawaiian rights by enjoining Campbell Estate and any future owners of the land from excluding Ha waiian subsistence or cultural practitioners, descended from inhabitants of the islands before 1778, who wish to perform tra ditional subsistence and cultural practices on the undeveloped portions of Wao Kele O Puna. The court rules that relatives of and people accompanying those Hawaiian practitioners also could not be excluded from performing those activities.<\/p>\n
The court also tasked PDFwith creating an access and monitoring plan. To date, that work has not yet been completed.<\/p>\n
For Sale<\/i><\/b>
\nLittle more than a year before the court\u2019s opinion, Campbell Estate, which by its own terms is to dissolve near the end of 2007, announced that it intended to sell Wao Kele O Puna. PDF jumped at the opportunity and in early 2002 its representatives met with TPL to explore how they could return the land to the people of Hawai\u2018i. PDF president Palikapu Dedman says he chose to work with TPL because of its interest in Native Hawaiian management and gathering rights.<\/p>\n
TPL\u2019s Stanbro says, \u201cBecause we had this gem of a property, such a rare piece of forest\u2026 we took a second look at the Assessment of Need,\u201d a document prepared by the state that identifies various areas potentially eligible for federal Forest Legacy Program funds.
\nThe Forest Legacy Program, managed by the U.S. Department of Agriculture Forest Service, was set up to protect forests by providing federal funds to help purchase conservation easements over or title to im portant lands.<\/p>\n
The Assessment of Need (AON) was last revised in the early 1990s. Until recently, only certain portions of West Hawai\u2018i were eligible. Wao Kele, on the island\u2019s east side, was not, even though \u201cit was the best fit\u201d for the program, Stanbro says.<\/p>\n
Anxious to get Wao Kele back, the state\u2019s forest stewardship committee (whose members include Stanbro) and former Forest Legacy coordinator Karl Dalla Rosa began to discuss revising the AON to allow for the acquisition of more land. But the effort stopped short when Dalla Rosa later left the DLNR, and for more than a year, the state\u2019s Forest Legacy coordinator position sat vacant.<\/p>\n
In January 2004, Sheri Mann filled that position and \u201cput the pedal to the metal\u201d on revising the AON, Stanbro says. Both Mann and the forest stewardship committee crafted new criteria that would expand the eligible areas statewide<\/p>\n
U.S. Geological Survey biologist Rick Warshauer, who participated in the geother mal contested case hearings in the mid 1980s, says the state was fortunate that Forest Service staff came to Hawai\u2018i to help with the process and explain what the service wanted and needed in a new AON.<\/p>\n
Warshauer says the ecological importance of Wao Kele O Puna cannot be overstated. Because lava covers so much of the mountain so fast, the consolidation of Hawai\u2018i Volcanoes National Park, the Kahauale\u2018a Natural Area Reserve, and Wao Kele O Puna is needed to maintain that \u201ccritical mass of native vegeta tion\u201d that provides for future revegetation. Without that critical mass to keep pace with the destruction of forest, denuded areas \u201cbe come dominated by aliens, which has hap pened to lower Kilauea near Kapoho,\u201d where papaya farms have exploded, he says.<\/p>\n
The revised AON, accepted by the Forest Service last November, vastly expands the kinds of land and landowners eligible for the federal funds. Anticipating the new AON, TPL worked with the committee and DLNR in June 2004 on an application for Forest Legacy funding for Wao Kele O Puna.<\/p>\n
With a new and improved AON, the state submitted three applications to the program in December: a 9,000-acre conservation ease ment over Kealakekua Ranch in south Kona, the purchase of 1,300 acres of prime koa\/ \u2018ohi\u2018a\/prichardia forest above Hilo known as the Carlsmith parcel, and the purchase of the Conservation District portion of Wao Kele O Puna. Along with the AON revision, the DLNR also chose the program\u2019s \u201cState Option,\u201d which means that the title to all future acquisitions with Forest Legacy funding will rest with the State.<\/p>\n
Wao Kele was an early favorite in regional rankings, while the Kealakekua and Carlsmith proposals quickly fell away. \u201cPresumably it was because other applications in the nation were stronger,\u201d Mann states, adding that the state plans to apply again for funding for those properties through the Forest Legacy Program and the Fish and Wildlife Service\u2019s Recovery Lands Acquisition program.<\/p>\n
Sometime in early 2005, Stanbro says TPL solidified what had been long, ongoing talks with Campbell and agreed on a purchase price of $3.65 million for the property. This, however, was a quarter of a million dollars more than the $3.4 million the state had sought for the purchase, in the belief that this was the maximum amount that the Forest Legacy program would pay for a single project in one year, Stanbro says.<\/p>\n
In response to suggestions that Campbell suddenly upped its asking price from $3.4 million to $3.65 million, Stanbro explains, \u201cWe hadn\u2019t homed in on a price. We knew the maximum we could expect to get, then the price came in higher\u2026It didn\u2019t come in higher than we expected. We were anticipating we would shop for extra funding somewhere.\u201d<\/p>\n
What became most important over the next few months was making sure Congress approved funding for Wao Kele O Puna. The National Wildlife Foundation, Con servation Council for Hawai\u2018i, Pele Defense Fund, Hawai\u2018i County Councilmember Bob Jacobson, the conservation group Malama O Puna, the DLNR and Hawai\u2018i Volcanoes National Park biologists, among others, lobbied Congress to approve funds for the purchase of the 40-square-mile tract. They noted the area represents the largest lowland tropical rainforest in the United States and is a vital watershed for Hawai\u2018i island. Many also noted that the old forest serves as a seed bank to regenerate surrounding lands over come by lava, and is a home to native and endangered birds, the Happy Faced Spider (discovered there a little more than a decade ago), and ancient Hawaiian burials and ar chaeological sites.<\/p>\n
On August 18, the national budget was released, and included an appropriation of the full $3.4 million DLNRhad requested for the acquisition of Wao Kele O Puna, which had been ranked the number one Forest Legacy project in the nation by both Con gress and President George Bush \u2014 \u201ca pretty clear statement that the nation loves this project,\u201d Mann says.<\/p>\n
But TPL still needed $250,000 more to complete the sale.<\/p>\n
\u201cDLNR doesn\u2019t have money sitting around. They weren\u2019t going to fund it. That\u2019s when we started looking around for funding. OHA was one of the first calls,\u201d Stanbro says.<\/p>\n
A Change of Plan<\/i><\/b>
\nA September Division of Forestry and Wild life report states, \u201cOHA approached DLNR offering to provide the $250,000 to enable the purchase of the culturally important property, and expressed an interest in adding land ownership and management to their overall mission.\u201d<\/p>\n
DLNR administrator Peter Young says he can\u2019t recall exactly how he learned of the idea of OHA taking title. Nor, he adds, can he remember when. He can, however, remember a general banter of ideas, he says, like, \u201cWhat about this? What about that?\u201d What about OHA taking title and DLNR managing it until OHA is ready to take over?<\/p>\n
Although OHA receives 20 percent of revenues generated from ceded lands through out the state, it has never owned or managed property, although state law allows it to take title. Young remembers having initial concerns about whether public access would be restricted under OHA\u2019s jurisdiction, since its mission is focused exclusively on benefiting Native Hawaiians. Because federal money was involved, Young says, he wanted to make sure that OHA could not restrict access to the general public.<\/p>\n
PDF\u2019s Dedman says that people within the DLNR also were worried about the Pele Defense Fund being involved. \u201cThey thought we would go in and play sovereignty on the land. I know those kinds of thoughts,\u201d he says, adding that he doesn\u2019t envision any type of restricted access and hopes the forest will be a place of learning. If anything, \u201cEverybody will be watching out for each other,\u201d to make sure the land is being treated right, he says.<\/p>\n
After having several conversations with Stanbro, Young was satisfied that Forest Legacy Program guidelines, which run with the land, require public access. With that concern put to rest, Young was able to fully support the idea and directed his Division of Forestry and Wildlife staff to help make it happen.<\/p>\n
\u201cThe obvious broader picture for me and for a lot of people is I believe this is the appropriate entity to have title,\u201d Young says. \u201cI was on the Big Island in the mid-\u201980s and am aware of the problems and the challenges surrounding this property.\u201d<\/p>\n
To say the least, Young\u2019s support of the OHA acquisition took DLNR staff by surprise. Some of them say the DLNR readily had various options to obtain the additional money it needed to make up the $250,000 shortfall from the Forest Legacy Program itself, which allows some flexibility in nego tiating purchase prices. Its guidelines note, \u201cIn order to maximize the efficient and effective use of FLP funding, FS [Forest Service] will redirect or request reprogram ming of funds. Redirection is a shift of funds from one congressionally approved project to one or more congressionally ap proved projects. Reprogramming is a shift of funds that exceeds an increase or decrease of 10 percent per project not to exceed $500,000 to an existing project, or shifting any amount of funds to a project not previously approved by Congress.\u201d<\/p>\n
The guidelines continue that Forest Service regions may also redirect up to $200,000 of unspent or excess funds to projects within its area that are \u201cunderfunded and there is a substantiated need (e.g. loss of funding sources, appraisal documenting increased costs, etc.) to bring the project to comple\u00adtion.\u201d<\/p>\n
Sources within DLNR say the Wao Kele O Puna project could have received such funding, or even state funding, especially since it was ranked the number one Forest Legacy project in the nation.<\/p>\n
But Mann says that when she suggested to her higher-ups that the state simply ask for more money from the program, \u201cA collaboration with OHA was decided to be the preferred option. OHA has strong cultural expertise and is interested in owning and managing land in the future, and that is something DLNR is interested in helping OHA achieve for everyone\u2019s benefit.\u201d<\/p>\n
Because TPL was fronting the cash for this project, it needed to know by Septem ber 13 \u2013 its lock-in date with Campbell \u2013 whether the DLNR and OHA were serious about partnering on the acquisition and management of the property. That meant DLNR and OHA had roughly four months to figure out how they were going to make the transaction work and have proposals approved by their respective boards.<\/p>\n
\u201cBecause a primary concern of all parties (including OHAstaff) is that OHA does not currently have land management capability, discussions also included how DLNR could manage land for OHAuntil such time as OHA or the Nation have land management capability,\u201d an OHA report states.<\/p>\n
Over the summer, OHA and DLNR staff hammered out rough conditions of a Memorandum of Agreement and discussed management plans for the property \u2013 plans that in all likelihood would need to include the Pele Defense Fund, under the terms of the Third Circuit Court ruling.<\/p>\n
Originally, Mann says a lot of Wao Kele O Puna would have been eligible for redesignation as a Natural Area Reserve, given the threatened and endangered spe cies that live there. Because the Natural Area Reserve System was created to preserve the state\u2019s most prized natural resources, activities in NARs are strictly regulated. For example, any kind of gathering would re quire a NARS permit.<\/p>\n
\u201cGiven that there\u2019s only one road in, there\u2019s a lot of pristine habitat\u2026 Definitely, we would have put a large chunk of the land into a NAR and the rest in a forest reserve,\u201d Mann says.<\/p>\n
However, after discussing what types of access would be most desirable, all parties decided that placement of the land in forest reserve status was most appropriate, where management would be carried out by the Division of Forestry and Wildlife under its forest reserve rules.<\/p>\n
Usually, for those rules to apply, the governor must first issue an executive order setting aside the land to DOFAW. In the past, forest reserves on private land have been managed by DOFAW through voluntary surrender agreements, which give the landowners tax breaks in exchange for allowing DOFAW to manage their lands for a specified term. Because OHA is a state entity, Scheuer says a surrender agreement wouldn\u2019t apply, although DOFAW staff did explore that option.<\/p>\n
Another option is a simple management agreement similar to the one the DLNR has with the Department of Hawaiian Home Lands on Kaua\u2018i. That agreement gives DOFAW the ability to manage DHHL land in the Mana Plain and upland Waimea as a Game Management Area.
\nMann says that to protect Wao Kele\u2019s rare species and cultural sites, parts of it may need to be fenced off.<\/p>\n
\u201cWe\u2019ve also talked about making it a cultural area reserve like Kaho\u2018olawe [the island that was used by the Navy as a bombing range before its return to the state in the 1990s]. We seriously considered that and it\u2019s still a possibility, making it a dual (natural and cultural) reserve,\u201d she says.<\/p>\n
But as TPL\u2019s deadline neared, the most-favored management option was the forest reserve option. Staff at both DLNR and OHA agreed on general terms of a Memorandum of Agreement supporting this scenario and presented that proposal to their respective boards for approval.<\/p>\n
Green Light<\/i><\/b>
\nGetting the OHA Board of Trustees to go along with the plan was not as easy as one might expect. Wao Kele O Puna is a touchy subject for some trustees: trustee Collette Machado is a member of the Pele Defense Fund, trustee Dante Carpenter was Hawai\u2018i mayor at the time of the land exchange, and trustee Oswald Stender headed Campbell Estate at that time.<\/p>\n
At early trustee committee meetings regarding the purchase, Scheuer says, \u201cSome people were like, \u0091Whoa, a property on the east rift zone. We can\u2019t build homes there.\u2019\u201d One trustee asked whether it would be better to simply give TPL a grant and let the state take the property.<\/p>\n
Trustees also had concerns about pro posed management costs. OHA staff had initially proposed that OHA contribute $100,000 a year (roughly $4 per acre, and far more than what the DLNR spends on its Hawai\u2018i forest reserves). But when DLNR\u2019s Young made a presentation to trustees that pegged management costs at $228,000 a year, some trustees raised concerns that the DLNR might be padding its estimate.<\/p>\n
Young admits the switch from $100,000 to $228,000 \u201ccaused a little confusion for a little while\u2026They had $100,000 in mind.\u201d But that lower number, Young says, was just a \u201cfloating balloon\u201d derived without any detailed analysis of what appropriate manage ment costs might be. So he asked his own staff to come up with management scenarios that reflected a range of costs.<\/p>\n
Not wanting a disagreement over management options to derail the purchase, Young says he met with OHA administrator Clyde Namu\u2018o and board chair Haunani Apoliona. He says he asked them \u201cto consider ideal management. You have an opportunity to start on the right foot and not cut corners. It doesn\u2019t mean we\u2019re going to waste anybody\u2019s money. Start [managing Wao Kele] the best way possible.\u201d<\/p>\n
On August 25, the OHA Board of Trustees met on Kaua\u2018i to decide whether to give final approval to the plan calling for acquisition of Wao Kele through participation with TPL and the DLNR, and for working with the county of Hawai\u2018i and DLNR to plug the abandoned geothermal well re maining on the property.<\/p>\n
At that meeting, Young was again grilled about management costs and says he was asked whether he was \u201cjust trying to make more money for DLNR.\u201d<\/p>\n
Young argued that under the proposal, OHA will eventually take over management duties and pay for its own managers, but the first year of management will require big start-up costs.<\/p>\n
\u201cHappily, the Board of Trustees supported \u2026 up to $228,000\u201d for management costs, Young says. \u201cIt means we\u2019re going to have to sharpen our pencils and agree on spending levels.\u201d<\/p>\n
The next month, on September 9, the DLNR\u2019s Wao Kele O Puna proposal came before the Board of Land and Natural Re sources. Unlike the OHA board meetings, the BLNR decision was devoid of controversy.<\/p>\n
DOFAW\u2019s report to the board outlined the general terms of a draft Memorandum of Agreement between OHA and DLNR. They include the following:<\/p>\n
– Management and use of the area must comply with all federal grant requirements and Forest Legacy Program guidelines.<\/p>\n
– OHA and DLNR shall both be respon sible for managing and maintaining the area, including the geothermal well, until OHAcan take over management responsibilities.<\/p>\n
– Within three years, OHA and DLNR will develop a management plan, seek funds from the Legislature to plug and abandon the geothermal well and resolve \u201cother ap propriate issues.\u201d Also, OHA and DLNR will meet every three years to discuss man agement, knowledge transfer, maintenance, and the continuation of the MOA.<\/p>\n
– DLNR plans to hand management duties to OHA \u201cas soon as possible and within a 10-year period.\u201d The comprehen sive management plan for the area will outline how that transfer will occur.<\/p>\n
– OHAand DLNR agree to terminate the geothermal mining lease issued to Campbell Estate. Both agree to bifurcate the DLNR\u2019s monitoring agreement with Campbell \u201cand to ensure that the Trust for Public Land and OHA retain their rights under the agreement that the state will close the well.\u201d<\/p>\n
– DLNR and OHA will work together to secure funding to plug the well and encourage Hawai\u2018i County to share the cost.<\/p>\n
– Subject to OHA board approval, OHA will give up to $228,000 a year to develop a management plan, establish management capacity, and manage the land. Subject to Land Board approval, DLNR will contribute up to $100,000 a year, either in appropriated funds or in-kind services.<\/p>\n
– DLNR and OHA shall work to remove the land from the Geothermal Resource subzone designation.<\/p>\n
DOFAW also recommended that the Land Board authorize Young to negotiate and sign the final MOA and the agreements on ending the mining lease and ongoing well monitoring. It also asked the board to authorize public hearings on the proposed designation of forest reserve status for Wao Kele O Puna and the change in subzone status.<\/p>\n
Jeff Mikulina, head of the Hawai\u2018i Chapter of the Sierra Club, submitted written testimony supporting DOFAW\u2019s recommendations. At the Land Board meeting, Scheuer and Stanbro also expressed their support.<\/p>\n
Even Young, the board\u2019s chair, chimed in, \u201cThis is an opportunity to learn and under stand new and traditional management techniques\u2026 This is an exciting project.\u201d<\/p>\n
When asked by at-large Land Board mem ber Tim Johns whether OHA was ready to manage land, Scheuer explained, \u201cWe are getting ready. It\u2019s a partnership.\u201d<\/p>\n
And without further question or testimony, the recommendations were unani mously approved.<\/p>\n
Legal Questions<\/i><\/b>
\nThe Land Board decision went smoothly, in part, because unresolved issues were in tentionally left out of materials presented to the board. The following Monday, Sep tember 12, the day before TPL\u2019s internal deadline, Governor Linda Lingle held a press conference with Young, Apoliona of OHA, Stanbro, and PDF president Dedman, celebrating the return of Wao Kele O Puna to the state and the partnership with OHA, DLNR, TPL, and PDF.<\/p>\n
\u201cIt is one of the largest conservation purchases by the state, bringing peace to the place as well as peace to the people in volved,\u201d Young said to a small gathering of reporters, agency people, and others who had a role in the land\u2019s tortuous history.<\/p>\n
Young says that the Wao Kele O Puna partnership marked the beginning of a growing cooperation in land management and other issues around the state and held the promise of fostering an exchange of ancient and new technologies for large-acre land management.<\/p>\n
Apoliona added that Wao Kele O Puna \u201cstands poised with Kaho\u2018olawe to return to the Hawaiian people.\u201d<\/p>\n
She noted that the state illegally asserted ownership of those lands and recalled how the Pele Defense Fund fought to retain native access to Wao Kele O Puna. PDF\u2019s Dedman added, \u201cWe Hawaiians haven\u2019t been doing very well in courts\u2026.This cinches our gathering rights forever, for the babies not born yet.\u201d<\/p>\n
Lingle concluded, \u201cWao Kele was a center of strife and now it can be a center of life.\u201d<\/p>\n
Following the press conference, people reading news accounts of it might be for given for thinking that Wao Kele O Puna was already back under state control and that OHA and DLNR were ready to begin managing it.<\/p>\n
In fact, TPL had not even completed the purchase with Campbell, much less had the land been transferred to the state.<\/p>\n
\u201cThis is not a done deal yet,\u201d Stanbro says, adding that the title wouldn\u2019t be transferred to OHA until perhaps the end of next year.<\/p>\n
Young said that the press conference was held, in part, to send a message to TPLthat the state is committed to funding the project.<\/p>\n
\u201cAs soon as OHA said yes … and the Land Board gave their nod\u2026[that] told us we\u2019re on the right path,\u201d Stanbro says.<\/p>\n
TPL has a tentative agreement with OHA pledging to convey Wao Kele O Puna to the agency. For the state to receive the Forest Legacy funds, Scheuer says Gov. Lingle will have to write a letter to the Forest Service indicating that OHA is the sponsoring agency.<\/p>\n
While it seems likely the governor will do that, there are some legal issues that need to be resolved, says DOFAW\u2019s Mann.<\/p>\n
For OHA to take over management, it will need to develop rules and be granted authority to enforce them. \u201cAs far as I know, at present they are not allowed to enforce regulations on land. In the beginning, DLNR is going to manage it, we\u2019re also going to enforce regula tions on it \u2013 most likely those pertaining to Forest Reserves. … There will need to be some changes or additions in the regulations to give OHA the ability to enforce. … The [state attor ney general\u2019s office] has a lot of questions,\u201d Mann says. She adds that upon the advice from the deputy attorney general assigned to the DLNR, her department \u201ctook out most of the language pertaining to issues we were not capable of resolving by the BLNR meeting September 9th.\u201d<\/p>\n
\u201cYes, the deputy AGs are looking at some issues that are being raised. But I believe we will have title in the name of OHA,\u201d Young says, adding that the MOA was brought to the Land Board without mentioning the legal concerns because \u201cthe main issues were agreed upon.\u201d<\/p>\n
\u201cIn my mind,\u201d he says, \u201cthe legal ques tions are about the transition. Let\u2019s take the unresolved legal issues that don\u2019t have to do with management out. It\u2019s not trying to address all legal transactions\u2026. I was trying to separate out ownership and the transfer process from management.\u201d<\/p>\n
Another question among DLNR staff relates to the Akaka Bill currently before Congress, which is aimed at establishing a Hawaiian \u201cnation-within-a-nation.\u201d Because OHA plans to ultimately transfer Wao Kele O Puna to the sovereign nation of Hawai\u2018i (when one is recognized), some have ques tions about whether the Forest Legacy guide lines would be followed in perpetuity.<\/p>\n
Any time Forest Legacy money is used to buy land or interest in a piece of land, the landowner has to agree to abide by forest protection guidelines that prohibit non-forest uses such as mining, subdivision, housing development, and the like. Other wise, the state must repay to the federal government the market value of that property or property interest.<\/p>\n
\u201cHowever,\u201d a staff report to OHA trust ees notes, \u201cif future trustees or the Nation wished to have these restrictions removed, they could do so by repaying to the govern ment the pro-rata share of the federal fund ing adjusted to current market values. Given the general lack of economic development potential for these parcels\u2026 these restric tions mostly restate the restrictions already on the parcels. As a result, paying for the parcels without the use of the available federal funds or immediately reimbursing the federal government of their funds fol lowing our acquisition is not, in the opinion of staff, a prudent use of resources.\u201d<\/p>\n
When asked whether Forest Legacy guide lines would still apply once Wao Kele O Puna was transferred to the Hawaiian nation, Scheuer says that the Akaka Bill envisions a process whereby the Hawaiian government (after it is elected) will negotiate with the state and federal government on \u201call sorts of things.<\/p>\n
The whole shebang goes to Legislature for approval, and one of the billions of things would be how you deal with this particular parcel.\u201d<\/p>\n
Regarding any loose ends that are still being investigated by OHA, DLNR, and their re spective attorneys, Stanbro says that because title won\u2019t be transferred to OHA for roughly another year, both agencies have ample time to iron out their legal concerns.<\/p>\n
\u2018Tangible Things\u2019<\/i><\/b>
\nAlthough PDF\u2019s Dedman probably spoke the least at September\u2019s press conference, to many, his organization contributed the most to Wao Kele\u2019s return.<\/p>\n
\u201cThis is a Hawaiian victory,\u201d Warshauer says. \u201cThe forest protection\u2019s happened as a result of the Hawaiian activists, not the conservation community.\u201d<\/p>\n
\u201cPDF [members] have been strong sup porters and partners in advocating for the funding so they can guarantee gathering rights\u2026 If something happens like forestry or housing, you lose the access right, and the ability to gather\u2026They have an idea of what they\u2019d like to see,\u201d Stanbro says.<\/p>\n
Dedman agrees that the Pele Defense Fund drove this process, and stresses that it was a collaborative effort.<\/p>\n
\u201cThe news cut me off [at the press conference]. I only had two minutes to talk, but I wanted to thank all the witnesses and the environmental groups\u2026.everybody who helped us over these 20 years. This proves we can win if we stick together\u2026.It\u2019s not just Hawaiians, it\u2019s everybody \u2013 with an attitude adjustment.\u201d<\/p>\n
What ultimately happens to Wao Kele O Puna with regard to access, management, forest reserve designation, disposition, and perhaps even title, is still being investigated and negotiated. But all involved agree that reclaiming Wao Kele is an opportunity not to be missed.<\/p>\n
Mann says she is focused right now \u201con those really tangible things we can do now,\u201d such as starting the process to remove the geothermal subzone designation. Public hearings on forest reserve designation will have to wait until the property is conveyed to the state.<\/p>\n
\u201cThe ultimate goal right now is to get it back,\u201d Mann says.<\/p>\n
As for all the strife that has plagued Wao Kele O Puna for so long, the promise of partnership has moved Scheuer, who says, \u201cEverybody involved had to say, \u2018You know what? It\u2019s more important.\u2019\u201d<\/p>\n
— Teresa Dawson<\/p>\n
Volume 16, Number 4 October 2005<\/p>\n","protected":false},"excerpt":{"rendered":"
Last winter, Joshua Stanbro, Hawai‘i project manager for the non-profit Trust for Public Land, had a strong hunch that federal funds available through the Forest Legacy program would not be enough to buy 25,856 acres in east Hawai‘i known as … 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":[123],"tags":[],"class_list":["post-1545","post","type-post","status-publish","format-standard","hentry","category-october-2005"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1545","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=1545"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1545\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1545"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1545"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1545"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}