{"id":2914,"date":"2014-10-29T00:53:41","date_gmt":"2014-10-29T00:53:41","guid":{"rendered":"http:\/\/teresadawson.wordpress.com\/?p=1473"},"modified":"2015-02-25T19:43:27","modified_gmt":"2015-02-25T19:43:27","slug":"board-talk-143","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=2914","title":{"rendered":"Board Talk"},"content":{"rendered":"

Kaua\u2018i Coffee Apologizes, Accepts Fine<\/strong>
\n For Massive Work in Conservation District<\/strong><\/p>\n

In the summer of 2001, Kaua\u2018i Coffee was faced with a crisis. Portions of the tunnel that carried water from its 810-million-gallon reservoir to its of coffee fields had collapsed. With water flow hampered by the broken tunnel, the Alexander Reservoir above Kalaheo town threatened to overflow, and the coffee trees began showing signs of stress.<\/p>\n

Irrigation ditch experts from sister com pany East Maui Irrigation flew to Kaua\u2018i to investigate. After five weeks, they determined that the tunnel was too unstable to repair. Instead, they decided to refurbish an old abandoned bypass ditch discovered on the property, located in the Lihu\u2018e-Koloa Forest Reserve.<\/p>\n

\u201cWe proceeded to clean out this old ditch and to cut a road adjacent to the ditch for maintenance purposes. This work took 28 days to complete\u2026 [U]nder the circum stances, we think that our actions were rea sonable and appropriate,\u201d wrote Kaua`i Cof fee operations manager Richard Loero, in a May 6, 2003, letter to the Department of Land and Natural Resources\u2019 Land Division.<\/p>\n

Loero wrote the letter in response to a DLNR investigation into Kaua\u2018i Coffee\u2019s ac tivities, prompted by a complaint on Feb ruary 11, 2003 about the work. DLNR\u2019s Office of Conservation and Coastal Lands (formerly the Land Division\u2019s Planning Branch) and the Division of Conservation and Resources Enforcement later found that Kaua\u2018i Coffee had:<\/p>\n

1) graded and grubbed about three acres;
\n2) excavated 33,000 cubic yards of soil;
\n3) rehabilitated a ditch three-quarters of a mile long;
\n4) constructed a road about seven-tenths of a mile long; and
\n5) cut trees.<\/p>\n

All this work had been done in the state-regulated Conservation District without the required Conservation District Use Permit. In addition, portions of the restored \u2013 and re routed \u2013 ditch strayed onto state land.<\/p>\n

For the five Conservation District viola tions, OCCL staff recommended last March that the Land Board fine Kaua\u2018i Coffee the maximum penalty of $2,000 for each of the five violations and $2,225 in administrative costs, for a total of $12,225. The OCCL also recommended that Kaua\u2018i Coffee apply for an after-the-fact CDUP for the unauthorized land uses within nine months of Land Board action.<\/p>\n

\u201cGiven the scale of work, it\u2019s a fair pen alty,\u201d OCCL administrator Sam Lemmo told the Land Board at its March 11 meeting.<\/p>\n

Meredith Ching, vice president of parent company Alexander & Baldwin, told the Land Board, \u201cWe deeply regret this and take full responsibility,\u201d adding that the company had developed a training class for employees to teach them about various legal require ments. In Kaua\u2018i Coffee\u2019s defense, she noted that the crew believed their work was exempt from permits since it amounted to rehabilitat ing existing facilities. (Crews deepened and widened the original ditch, and, according to Loero\u2019s letter to the DLNR, they also rerouted the ditch in certain areas to avoid cutting koa trees. Those realigned areas were where the ditch strayed onto state land, states an OCCL report.)<\/p>\n

Ching said Kaua\u2018i Coffee would seek an access agreement with the state for the land where the realigned ditch had been dug, and would apply for county grading permits and a Conservation District permit. OCCL staff had originally proposed requiring the CDUP application to be filed within 60 days, but the company asked that it be given nine months to file it.<\/p>\n

When Land Board member Kathryn Inouye asked why Kaua\u2018i Coffee needed so long to complete its permit application, Ching said it was because they wanted to do an environmental assessment, to make sure the application was done right.<\/p>\n

Because the work was done years ago, Lemmo said there was no need for immediate remediation.<\/p>\n

<\/div>\n
***<\/strong>
\n Koa Loggers At Center<\/strong>
\n Of Two Violation Cases<\/strong><\/div>\n

Two years after Steve\u2019s Ag Services, Ltd., and Contract Milling, LLC, requested a contested case hearing on their $1.5 million fine for logging state land without a license, the hearing officer assigned to the case has recommended that the Land Board dismiss the case without prejudice, \u201cuntil the appro priate authority has determined the question of legal ownership of the subject parcel.\u201d<\/p>\n

The Land Board has yet to decide on hearing officer Benjamin Matsubara\u2019s recommendation, which he issued on January 27. Staff with the DLNR\u2019s Office of Conser vation and Coastal Lands, which is managing the case for the Land Division, says oral arguments have not yet been scheduled.<\/p>\n

In the summer of 2001, Natural Area Reserves System staff working in and around the Kipahoehoe NAR discovered that some one had logged koa on what appeared to be Conservation District land. Follow-up inves tigations found that Steve\u2019s Ag Services and Contract Milling had taken koa from land in the Conservation District, owned at the time by Damon Estate, as well as from what was thought to be unencumbered state land in the state Agricultural District.<\/p>\n

Under a 1992 contract, Damon Estate gave Steve\u2019s Ag permission to log dead or diseased trees that had been flagged on the estate\u2019s Kahuku Ranch property in south Kona. In April 2003, the Land Board fined Damon Estate nearly half a million dollars for Conservation District violations stemming from the logging. The Land Board found that the Steve\u2019s Ag and Contract Milling had, without permits, cut 712 trees from Damon\u2019s Conservation District land (now a part of Hawai\u2018i Volcanoes National Park).<\/p>\n

The board fined the estate $480,335 (in cluding $13,535 in administrative costs) for the illegal tree cutting and for road construction, but gave it the option of restoring the land, in lieu of paying that portion of the fine not associated with administrative costs.<\/p>\n

Two months later, the Land Board fined Steve\u2019s Ag owner Steve Baczkiewicz, and Contract Milling owners Wesley and Raymond McGee $1,500,614 for clearing 1.3 acres and cutting about 200 koa trees on unencumbered state land in the Agricultural District. At that meeting, attorney William Chikasuye, representing Baczkiewicz and the McGees, requested a contested case hearing.<\/p>\n

But before the case could be vetted, the state had to prove it owned the 169 acres abutting Kahuku Ranch. Pre-hearing state ments by Chikasuye included expert testi mony disputing the state\u2019s claim to the prop erty. Testimony by the DLNR\u2019s expert witness, surveyor Randall Hashimoto, indicates that the state parcel was created by surveying mistakes made a century ago.<\/p>\n

\u201cThe significance of this is that the bound aries of [surveyed parcels] did not match,\u201d wrote Matsubara in his January recommen dations. Surveys done in 1902 \u201cset the eastern boundaries of Alika Homesteads and Papa 1 further west than they should have been,\u201d leaving a gap approximately 1000 feet wide between the borders of these two properties and the ahupua\u2018a of Kahuku. \u201cThe land in that gap is the state property at issue here,\u201d he wrote.<\/p>\n

Both parties agree that there are no title documents reflecting the parcel\u2019s existence or ownership, he continued. They also agree that when the western boundary of Kahuku and the eastern boundaries of Alika Home steads and Papa 1 were established, \u201cthe inten tion was that the boundaries would abut each other, there was no conscious intent to create a gap between the boundaries of the two properties, and therefore no intent to leave a remainder parcel owned by the government,\u201d Mastubara wrote.<\/p>\n

The petitioners argue that because no recorded title documents establish state own ership, the parcel was \u201cmore likely than not\u201d part of the ahupua`a of Kahuku, which even tually came to be owned by Damon Estate. The state, however, argues that the parcel was established by \u201coperation of law,\u201d and be\u00adcame a \u201cGovernment Remainder,\u201d via a sur vey map, No. 2468, made in 1908.<\/p>\n

Based on this testimony, Matsubara found \u201cthere is a genuine dispute as to the existence and legal ownership of the subject parcel.\u201d Because he lacks authority to rule on an ownership dispute (something that must be resolved in state Circuit Court), Matsubara recommended that the case be dismissed without prejudice until the ownership issue is settled.<\/p>\n

Damon Sues Loggers<\/i><\/b>
\nOne month after Mastubara issued his rec ommendation, Damon Estate trustees David Haig, Fred Weyand, Paul Mullin Ganley, and Walter Dods, Jr., filed a complaint in Third Circuit Court against Steve\u2019s Ag, Con tract Milling and their owners, alleging breach of contract, negligence, wrongful misconduct, and equitable indemnity.<\/p>\n

The suit seeks to recover costs Damon Estate incurred as a result of the Land Board\u2019s April 2003 action. The trustees argue that the 1992 contract between Baczkiewicz and Damon Estate, as well as subsequent agree ments in 1993 and 1995, placed the responsibility of obtaining all required permits with Steve\u2019s Ag Services. The company was also obliged to obey all laws governing its activi ties, the complaint states.<\/p>\n

When the Land Board fined Damon Es tate, members had little information about the extent of the estate\u2019s knowledge regarding the loggers\u2019 illegal actions. Since the board traditionally fines landowners for violations on their properties (leaving it up to the land owner to pursue damages from the respon sible party) it chose to fine the estate, not the loggers. According to the February com plaint, Damon Estate opted to restore the land instead of paying the fine and has spent $254,250 on a forest restoration plan.<\/p>\n

The complaint accuses Steve\u2019s Ag and its partner Contract Milling of breaching the agreements with Damon when they commit ted the violations, and seeks reimbursement for the fines paid, restoration plan costs, attorney fees, and \u201cexpenses under the theory of implied contractual indemnity.\u201d The trust also seeks damages for the loggers\u2019 negligence and wrongful misconduct.<\/p>\n

<\/div>\n
***<\/strong>
\n Pila\u2018a Final Arguments<\/strong><\/div>\n
<\/div>\n

Will the Land Board fine Pila\u2018a 400, LLC $2,000, $2 million, $5 million, or noth ing at all for damages to Pila\u2018a Bay caused by a runoff from the company\u2019s illegally and excessively bulldozed property?<\/p>\n

On March 29, during final arguments in the contested case hearing on the state\u2019s effort to seek damages for the destruction of por tions of the bay\u2019s reef, Land Board members asked attorneys for both the state and Pila\u2018a 400 to justify how the fine, if any, should be calculated.<\/p>\n

In August 2003, the DLNR recommended that the Land Board fine Pila\u2018a 400 nearly $6 million ($1,000 per square meter) for dam ages to the reef, a figure based on a Florida statute for coral reef damage.<\/p>\n

Last December, after considering a variety of factors, contested case hearing officer Mike Gibson recommended a fine of $2.3 million, which he believed should be held in trust and applied to remediation of Pila\u2018a 400\u2019s prop erty.<\/p>\n

State Senate majority leader Colleen Hanabusa, one of the attorneys representing Pila\u2018a 400, argued on March 29 that the DLNR lacked the authority to impose any fine for damages because it has no rules for calculating them.<\/p>\n

\u201cThis is not an action in tort,\u201d she told the board. \u201cYou are not able to assess fines and do
\nwhatever you want to do.\u201d<\/p>\n

But in case filings and before the Land Board, deputy attorney general Bill Wynhoff, representing the DLNR in this case, argued that while there may not be a definitive method of assigning a dollar amount to Pila\u2018a\u2019s natural resources, there is also no such method of attaching value to a child killed by a negligent driver.<\/p>\n

Wynhoff cited the 1951 case of a konohiki fisherman on Kaua\u2018i who sued Lihu\u2018e Planta tion company for releasing wastewater in the ocean fishery waters, \u201cpolluting and discolor ing them, and rendering them opaque.\u201d The fisherman was awarded damages, despite plantation\u2019s claim that the amount was not the supported by the evidence.<\/p>\n

\u201cThe Hawai\u2018i Supreme Court admitted that there was no exact way to measure damages. But, it asked, \u2018Has then the plain tiff no redress for the defendant\u2019s wrong merely because the nature and circumstances of the case prevent him from establishing with accuracy the precise amount of dam ages actually suffered?\u2019 No! the court answered: \u2018Justice itself demands that such a question be answered in the negative where, as here, it is apparent that the plaintiff was substantially injured as to his legal rights at the instance of the defendant,\u2019\u201d he wrote in his response to Pila\u2018a 400\u2019s exceptions to Gibson\u2019s recommendations.<\/p>\n

Without rules, Gibson had come up with a fine based on possible restoration costs, the value of the destroyed coral, the intrinsic value of the bay, monitoring costs, and a range of reef values stated in scholarly papers, among other things.<\/p>\n

\u201cIt\u2019s up to you,\u201d to decide how the fine should be calculated, Wynhoff told the Land Board on March 29, adding that the fine originally proposed by the DLNR was appro priate and justified by the evidence. He then urged the board to dismiss Gibson\u2019s recom mendation that the fine be held in trust for landside rehabilitation since Pila\u2018a 400 is al ready being required by state, county and federal agencies to remediate its property.<\/p>\n

\u201cIf they want to go out there and not do their work\u2026that\u2019s their kuleana. The money should not be used to fix their property,\u201d it should be used to fix Pila\u2018a Bay, he said.<\/p>\n

— Teresa Dawson<\/p>\n

Volume 15, Number 11 May 2005<\/p>\n","protected":false},"excerpt":{"rendered":"

Kaua‘i Coffee Apologizes, Accepts Fine For Massive Work in Conservation District In the summer of 2001, Kaua‘i Coffee was faced with a crisis. Portions of the tunnel that carried water from its 810-million-gallon reservoir to its of coffee fields had … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,122],"tags":[],"class_list":["post-2914","post","type-post","status-publish","format-standard","hentry","category-board-talk","category-may-2005"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/2914","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=2914"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/2914\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2914"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2914"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2914"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}