Land Board Approves Legacy Land Projects<\/b><\/p>\n
On May 11, the Land Board unanimously approved funds totaling $4.6 million for seven projects of the Department of Land and Natural Resources\u2019 Legacy Land Conservation Program aimed at protecting more than 12,000 acres statewide.<\/p>\n
On O`ahu, the projects include the only relatively intact heiau in the Ko`olauloa region, a significant portion of the popular `Aiea Loop Trail, and a monk seal resting area on the North Shore.<\/p>\n
On the island of Hawai`i, they include an easement over and a fee simple purchase of portions of Kuka`iau Ranch. The state will pay $600,000 for a conservation easement over 3,688 acres in Hamakua restricting operations to sustainable forestry practices. Although the applicant was The Nature Conservancy of Hawai`i (TNCH) and the DLNR\u2019s Division of Forestry and Wildlife, only DOFAW will hold the easement.<\/p>\n
The Board also approved $1 million for the fee simple purchase by TNCH of 4,469 acres of Kuka`iau Ranch for watershed and palila habitat protection.<\/p>\n
(On May 22, a Big Island real estate agent announced that the entire Kuka`iau Ranch \u2013 9,390 acres \u2013 was for sale, with an asking price of $16.8 million. For more on Kuka`iau Ranch, see the March 2012 issue of Environment Hawai`i<\/i>.)<\/p>\n
In addition to the Kuka`iau lands, the purchases include 635 acres in O`ahu\u2019s Kalauao Valley for critical habitat and watershed protection ($192,750); 9.08 acres protecting the Maunawila heiau ($650,000); 0.75 acres of sand dunes adjacent to the Ka`ena Point Natural Area Reserve on O`ahu ($86,450); 34.64 acres in Kaiholena South, Hawai`i, to add to the Ala Kahakai Trail ($1,449,555); and 3,127.95 acres of coastal land in Ka`u to protect shorelines and access to an area adjacent to the Manuka NAR ($621,245).<\/p>\n
At-large member Sam Gon, who is also TNCH\u2019s lead scientist, recused himself from voting on the matter.<\/p>\n
***<\/b><\/p>\n
Land Board Writes Off<\/b><\/p>\n
Uncollectible Accounts<\/b><\/p>\n
With more than $100,000 at stake, Land Board members Jerry Edlao and Samuel Gon pored over the list of uncollectible accounts submitted by the DLNR\u2019s Division of Boating and Ocean Recreation, looking for anyone they could help track down.<\/p>\n
Sixty-four former boating permittees have skipped out on fees and fines totaling $118,159.61, according to a DOBOR report. And that\u2019s just the first round.<\/p>\n
DLNR\u2019s collection agency, Medcah Inc., informed DOBOR in August 2005 that the accounts had been removed from the collection process because it had been unable to locate the debtors, some of which owed more than $10,000.<\/p>\n
On April 27, DOBOR asked the Land Board to write off the accounts.<\/p>\n
\u201cIt\u2019s just so sad when you have to write off these uncollectibles,\u201d Edlao said.<\/p>\n
DOBOR administrator Ed Underwood noted that the list submitted to the board was just one small portion of uncollectible accounts that the division will eventually forward to the Land Board.<\/p>\n
\u201cA lot of these people left and there\u2019s just no way to track them down,\u201d he said.<\/p>\n
Land Board chair and DLNR director William Aila said the department is investigating whether it can recoup the money through the debtors\u2019 tax returns.<\/p>\n
\u201cLetting these things get up to $11,000, $13,000, $14,000 in arrears, I hope we\u2019re not allowing that,\u201d Big Island Land Board member Robert Pacheco told Underwood.<\/p>\n
Underwood explained that once a penalty is imposed for non-payment, they increase exponentially, very quickly.<\/p>\n
\u201cBy the time we run through the process, the clock is ticking,\u201d Underwood said. \u201cWe can impound the boat, but then we forgo fees. The boat may be worth only $500 and you owe us $10 grand.\u201d<\/p>\n
He said the department has tried for the past two years to revise statutes governing DOBOR\u2019s ability to recover fees so the division isn\u2019t stuck with a bunch of old, worthless boats.<\/p>\n
\u201cIn Ke`ehi small boat harbor alone we disposed of 40 boats last year,\u201d he said.<\/p>\n
***<\/b><\/p>\n
Board Approves Limited Access\u00a0<\/b><\/p>\n
Over Old Haleakala Trail<\/b><\/p>\n
On May 11, over objections from hiking groups, the Land Board approved a memorandum of agreement with Haleakala Ranch Co., to allow a minimum of two guided hikes a year on a trail in Makawao that cuts through the ranch toward Haleakala National Park — with a stipulation that an attempt must be made to reasonably accommodate demand.<\/p>\n
In January, Public Access Trails Hawai`i (PATH) filed a lawsuit in 2nd Circuit Court against the ranch, the DLNR, the Land Board, the Office of Hawaiian Affairs and other entities seeking to confirm the state\u2019s ownership of the trail and to force the state to provide reasonable public access.<\/p>\n
Paul Conry, administrator for the department\u2019s Division of Forestry and Wildlife, told the Land Board on May 11, \u201cwe maintain we own the trail,\u201d but the MOA does not address ownership or who has access rights. It does, however, allow DOFAW staff to immediately work on the trail and coordinate with the ranch on a minimum of two guided hikes a year.<\/p>\n
DLNR staff had determined in 2000 that the state owned the trail and a deputy attorney general found in 2003 that there was significant evidence to support that conclusion. But in 2009, deputy attorney general Pam Matsukawa had a different opinion. She advised then-DLNR director Laura Thielen that the state may be able to prove it owns an easement over the trail, but it was not clear whether the state owned the trail in fee simple. She recommended an MOA.<\/p>\n
DOFAW\u2019s May 11 report to the Land Board claims that PATH doesn\u2019t have the right to litigate the ownership issue on behalf of the state. Not only is litigating the matter an imprudent use of the state\u2019s resources, it also doesn\u2019t benefit the state or the public, the report continues.<\/p>\n
\u201cIt is not practical or economical to allow the public to use the trail without HRC\u2019s cooperation. Losing the ownership issue will remove any chance that the state and HRC could compromise as to use of the trail. Losing the ownership issue may set a bad precedent as to other possible … trails,\u201d it stated.<\/p>\n
With regard to PATH\u2019s attempt to force the state to open the trail within one year of a court order, \u201cwhether and how to open the trail to public use is up to the department and ultimately this board. The court cannot order the board to open the trail or spend the money and incur the liability to do so,\u201d it stated.<\/p>\n
Conry told the Land Board his division has received testimony in favor of and opposed to the MOA.<\/p>\n
\u201cWhile your staff was negotiating the MOA, some folks got tired of waiting and sued the board and Haleakala Ranch,\u201d deputy attorney general William Wynhoff added. \u201cAssuming it goes to fruition, ownership will be determined, even though that\u2019s not something staff wanted to push.\u201d<\/p>\n
Trial has been set for January 2013.<\/p>\n
PATH attorney Tom Pierce noted that the territory of Hawai`i had staked the trail from Makawao to the top of Haleakala crater and that the trail appeared on maps as early as the 1860s.<\/p>\n
Several years ago, PATH tried to work with the ranch on a solution, but the ranch rejected its settlement offer and instead started working on an MOA with the DLNR, Pierce said.<\/p>\n
\u201cThe DLNR is looking for something that is administratively simple. But is to basically rubber stamp what the ranch has submitted appropriate? We would argue that it\u2019s not,\u201d he said. Pierce asked that the Land Board table the MOA and launch its own investigation into the state\u2019s ownership of the trail. Approving the MOA would send the wrong message to other landowners who might have public trails across their properties.<\/p>\n
\u201cThe BLNR does not have the authority to enter into an MOA for land that it owns,\u201d he said.<\/p>\n
Land Board members Rob Pacheco and Jerry Edlao, on the other hand, didn\u2019t see any real downside to the MOA.<\/p>\n
Board chair and DLNR director William Aila added that an MOA providing for controlled access was an interim solution pending resolution of the ownership dispute.<\/p>\n
\u201cIf the state were in control, I don\u2019t know if I have the resources to make it safe. It\u2019s on a working ranch. … The ranch will be able to chase the cows away. … We\u2019re being sued every day for people falling off a mountain,\u201d Aila said.<\/p>\n
To Haleakala president Don Young, unfettered public access was also out of the question given the surrounding livestock operation and the trail\u2019s difficult mauka section.<\/p>\n
\u201cIt\u2019s important that whatever access is there is managed,\u201d Young said. \u201cIf it did become a 20-foot corridor owned by the state … the reality is it would [need to] be a fully fenced corridor\u201d to protect the public.<\/p>\n
In the end, the Land Board voted unanimously to approve the MOA with additional language requiring the parties to allow as many trips as needed to reasonably meet demand. Pacheco also recommended that guides could be from an agreed upon hiking organization and not be limited to ranch or DLNR personnel.<\/p>\n
He added that providing unlimited access to a trail that is not well defined at the start, crosses a working ranch, and ends where there are no parking facilities is premature.<\/p>\n
\u201cI just hope the hiking community realizes this is giving us something,\u201d he said. If the lawsuit proves the state doesn\u2019t own the trail, the public would have no access. If it does own the trail, it would still take a long time for the DLNR to go through the process to open the trail,\u201d he said.<\/p>\n
Nakula Trail<\/i><\/b><\/p>\n
The Haleakala trail isn\u2019t the only source of friction between PATH and the DLNR. PATH executive director David Brown has alleged that government corruption is interfering with efforts to access the Nakula Natural Area Reserve.<\/p>\n
At the March 21 meeting of the Na Ala Hele Maui advisory council, DOFAW access and acquisitions coordinator Jordan Jokiel announced that he had plans to meet with surrounding landowners, including the National Park Service, the Department of Hawaiian Home Lands, Haleakala Ranch Co., and state lessee Brendon Balthazar to discuss incentives, terms and conditions associated with establishing a route to the Nakula reserve. Jordan is also drafting an MOA.<\/p>\n
\u201cSupport for access to Nakula is growing and DOFAW wants to move forward,\u201d the meeting minutes state.<\/p>\n
One council member suggested that the best route might be through the historic access across DHHL\u2019s lands.<\/p>\n
\u201cThe connection between Sen. [Clayton] Hee and Brendon Balthazar make it impractical to pursue access to the Nakula trail through the Balthazar leased land and it is best to look at the DHHL property for access,\u201d the minutes state.<\/p>\n
In a May 14 letter to Environment Hawai`i, Brown alleged that Na Ala Hele administrator Nelson Ayers told the council that \u201cSenator Hee would \u2018protect\u2019 Mr. Brendon Balthazar and his large Nakula lease (1,565 acres) and that the Hawai`i state public would never have legal access. … On Maui, we call this GOVERNMENTAL CORRUPTION.\u201d<\/p>\n
Hee, an O`ahu rancher, is chair of the state Senate Judiciary and Labor Committee. In 2000, he accompanied then Land Board chair Michael Wilson on a site visit of Balthazar\u2019s leased property to investigate unauthorized structures that had been built.<\/p>\n
Balthazar, owner of Diamond B Ranch, leases 1,565 acres of state land near Hana. His lease expires in 2038.<\/p>\n
Ayers told Environment Hawai`i<\/i> that Clayton Hee has nothing to do with the Balthazar lease or efforts to establish an access to the reserve.<\/p>\n
***<\/b><\/p>\n
After Board Orders Seawall Removal,<\/b><\/p>\n
Landowner Agrees to Easement Terms<\/b><\/p>\n
Four years after seeking an easement for encroachments on state property, California resident Tom McConnell seems ready to sign.<\/p>\n
On May 25, the Land Division of the state Department of Land and Natural Resources recommended rescinding an April 27 Board of Land and Natural Resources decision to require McConnell to remove a seawall, a fence and filled land fronting a Niu beach property owned by his company, TLM Partners, or face stiff fines. The division also recommended dismissing or allowing for the withdrawal of TLM\u2019s request for a contested case hearing.<\/p>\n
On May 11, through his attorney, McConnell agreed to four payment triggers proposed by the Land Division. If he signs it this time, McConnell will have a 55-year, non-exclusive easement for the encroachments, but will have, at most, ten years to pay for it.<\/p>\n
Taking a Stand<\/i><\/b><\/p>\n
\u201cPersonally, my feeling is we\u2019re being jerked around. I don\u2019t like being jerked around,\u201d Jerry Edlao said. And the Maui Land Board member wasn\u2019t alone.<\/p>\n
Edlao\u2019s comments came as the board was meeting on April 27, when it voted, 6-1, to order the removal of the encroachment, which McConnell had discovered while preparing to rebuild his house.<\/p>\n
Although the Land Board had approved TLM\u2019s easement request in 2008, McConnell later balked at its final terms and refused to sign it. In May 2010, he asked for his money back, roughly $135,000. In January, a majority of the Land Board agreed to return the money with a stipulation that should McConnell and the DLNR fail to perfect an easement document within 30 days, the DLNR would pursue an enforcement action.<\/p>\n
Back then, Kaua`i board member Ron Agor had suggested that the DLNR grant TLM an easement and secure payment by means of a first mortgage on the property.<\/p>\n
That suggestion became a point of contention over the ensuing negotiations between Land Division administrator Russell Tsuji and McConnell\u2019s attorney, Greg Kugle.<\/p>\n
Kugle\u2019s position was that the Land Board had endorsed Agor\u2019s suggestion with no additional conditions. Tsuji disagreed, arguing that additional terms were necessary to ensure the DLNR would receive payment for the easement in a reasonable time frame. Tsuji had insisted on a deadline for payment in case TLM never sells its property. Kugle argued that the Land Board did not impose any deadline.<\/p>\n
In March, Tsuji informed the Land Board that he and Kugle could not agree on easement terms and that he would be pursuing an enforcement action.<\/p>\n
On April 27, Tsuji asked the Land Board to order TLM to remove the encroachments, which include the seawall, a wire fence, and the filled lands, within 180 days, and pay administrative costs of $4,295.<\/p>\n
Should TLM fail to meet the deadline, Tsuji recommended that it be fined $1,000 a day per violation commencing on the date of the board\u2019s order.<\/p>\n
\u201cIt\u2019s simply unprecedented to have an easement without actual payment,\u201d Tsuji said.<\/p>\n
Tsuji said he had proposed various triggers for payment, which would need Land Board approval, but McConnell preferred to stall.<\/p>\n
\u201cI told him, \u2018You are no longer an easement holder. You are encroaching on state land. If you\u2019re not going to agree to an easement, you leave us no choice but to go to the board to remove,\u2019\u201d Tsuji said.<\/p>\n
Tsuji had proposed that payment be required if the property is sold, 10 years pass, or if TLM gets either a shoreline certification or a building permit.<\/p>\n
Devil\u2019s Advocate<\/i><\/b><\/p>\n
At the April meeting, O`ahu board member John Morgan asked Tsuji to respond to several issues McConnell\u2019s attorneys had raised in recent correspondence.<\/p>\n
First, there was the issue of fairness. The seawall fronting McConnell\u2019s property spans several lots in Niu Beach. So why was only McConnell\u2019s portion being targeted?<\/p>\n
Tsuji said his division is aware of the encroachments along Niu beach lots and that applications for easements on some of them have been pending for years.<\/p>\n
\u201cWe will be moving them,\u201d he said, \u201cThis is the first one we\u2019re bringing to the board where the owner is refusing to get an easement.\u201d<\/p>\n
Morgan noted that there has been a lot of debate whether the encroaching land was filled or accreted. If it is accreted land, it belongs to McConnell.<\/p>\n
Tsuji admitted that proving the land was filled will require experts and expensive borings that may not yield a definitive answer. Even so, the DLNR is prepared to litigate that point, he said, adding that all of the department\u2019s land and coastal experts believe the land was filled.<\/p>\n
\u201cThe filled land is five feet above the submerged lands. There\u2019s no way it was accreted,\u201d Tsuji said.<\/p>\n
Morgan then asked if there was any record of how these shoreline properties got expanded beyond their boundary lines.<\/p>\n
\u201cEach lot would need to be looked at and studied thoroughly,\u201d Tsuji said, noting that there have been many instances in last year and half where extra areas have been added to county Tax Map Key maps for shoreline properties without any legal justification. Kugle can\u2019t show McConnell legally acquired the land fronting his property, he added<\/p>\n
\u201cAt the end of the day, there was no evidence. We honestly tried to find something [to prove] these property owners legally acquired the additional lands. We couldn\u2019t,\u201d Tsuji said.<\/p>\n
Finally, he reminded the board that it was TLM\u2019s own consultant who applied for the easement. The board approved it, money changed hands, then, \u201clawyers got involved,\u201d he said, drawing a chuckle from the room.<\/p>\n
Morgan asked about the due process concerns McConnell\u2019s attorney had raised. In an April 26 letter to the board, attorney Christi-Anne Kudo Chock pointed out that the DLNR had not served TLM with a notice of violation or any written notice or proof of the department\u2019s claims.<\/p>\n
\u201cPlacement of a vague request on the Land Board agenda, with no personal service upon TLM, also constitutes a deprivation of due process,\u201d she wrote, adding that TLM is entitled to a contested case hearing.<\/p>\n
Tsuji disagreed, noting that McConnell and his attorneys have known since January that the case could become an enforcement action if they failed to reach an agreement with the DLNR within 30 days. He added that he had been trying to coordinate a meeting with the Land Board for months, but had been continuously put off by McConnell.<\/p>\n
Morgan noted that McConnell agreed to appear at the Land Board\u2019s May 11 meeting and suggested deferring the matter until then.<\/p>\n
But Tsuji was clearly fed up.<\/p>\n
\u201cWe didn\u2019t come to terms on an easement. We have to do an enforcement … unless you, the board, tell me that these terms are unreasonable,\u201d he said, adding, \u201cNobody gets these kinds of terms. Why? Because he lives in Niu Beach lots and has a $5 million home?\u201d<\/p>\n
Big Island Land Board member Rob Pacheco, who had opposed returning TLM\u2019s money, also preferred to press on.<\/p>\n
\u201cAt the January meeting, it was very clear, the cat was out of the bag [that there was an encroachment]…. Four months later, we don\u2019t have an agreement. I wasn\u2019t interested in the lien concept. I\u2019m not inclined to defer this,\u201d he said.<\/p>\n
Edlao added that he had warned McConnell that if he didn\u2019t get an easement, there would be an enforcement action and that the only guys making money would be the lawyers.<\/p>\n
Kudo Chock noted that McConnell has actually agreed to most of Tsuji\u2019s recommended payment triggers.<\/p>\n
If that were true, Edlao said, \u201cI suspect he would have been here to end this. … I\u2019m tired of this. I don\u2019t want to defer this. If you want to contest this, then fine.\u201d<\/p>\n
In the end, the board members (except for Morgan) approved a motion by at-large member David Goode to accept staff\u2019s recommendation and ask it to continue easement negotiations up until a contested case hearing is granted.<\/p>\n
Nothing regarding the easement was scheduled for the Land Board\u2019s May 11 meeting, although Kugle submitted a letter that day agreeing to the four triggers.<\/p>\n
— Teresa Dawson<\/i><\/p>\n
Volume 22, Number 11 June 2012<\/p>\n","protected":false},"excerpt":{"rendered":"
Land Board Approves Legacy Land Projects On May 11, the Land Board unanimously approved funds totaling $4.6 million for seven projects of the Department of Land and Natural Resources’ Legacy Land Conservation Program aimed at protecting more than 12,000 acres … 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":[13,49],"tags":[],"class_list":["post-496","post","type-post","status-publish","format-standard","hentry","category-board-talk","category-june-2012"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/496","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=496"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/496\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=496"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=496"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=496"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}