Volume 23, Number 4 October 2012

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Dela Cruz Downplays Development Role A Case Of Misunderstanding? Of Public Land Development Corporation

he Public Land Development he Public Land Development Corpora- with ideas of what he’d like to see the TCorporation may be the least Ttion state Sen. Donovan Dela Cruz envi- corporation do. popular game in town these days, if the sions may be more of a land manager than a The DLNR doesn’t have a whole lot of public outrage displayed at recent land developer, at least with regard to proper- undeveloped — and developable — land. hearings on its draft rules is any measure. ties owned by the Department of Land and The department has provided the PLDC with But it’s all misplaced, if its creator, Sen. Natural Resources. a list of all of its properties, which the corpo- Donovan Dela Cruz, is to be believed. In Amid the recent calls by state legislators ration is still combing through, looking for an interview with Environment Hawai‘i, and activists for the Legislature to dissolve potential project sites, says DLNR Land Divi- Dela Cruz provides his unique take on next session the nascent but highly controver- sion administrator Russell Tsuji. Even so, the the rights, duties, and limits of the sial development arm of the DLNR, Dela Legislature has already directed the DLNR to agency, on which he continues to ride Cruz, state Sen. Malama Solomon, and the transfer development rights for lands at herd, whipping and scolding it for not governor’s office have been working to cor- Honokohau and surrounding all of its small doing more faster. rect what they see as misinformation about boat harbors to the PLDC. Dela Cruz says One could be pardoned for the agency they created in 2011. that transfer is mainly for management pur- thinking he’s making it up as he goes “Part of the information that’s not getting poses. along. out there is that the PLDC can help with As another example, he describes a existing uses. ... That’s going to be the major- project, not yet proposed by the PLDC, ity of this thing,” Dela Cruz says. “Quite a bit involving a non-profit group that wants IN THIS ISSUE of the partnerships may not be construction. access rights to and some management au- It could be management.” thority over lands owned by the DLNR and 2 Although the PLDC has not yet drafted the Department of Hawaiian Home Lands New & Noteworthy the Public Land Optimization Plan required in East O‘ahu’s Haiku Valley. 3 by its enabling statute, Dela Cruz brims to page 6 Nukoli‘i Owner Brings Federal Suit Over Limit on New Hotel Units 4 A History of Bitter Controversy Over Nukoli‘i Development 5 Honokohau Act Confuses DLNR, Angers Boaters 7 Stricter Review for Legacy Lands 8 Water Commission Pushed To Act on Moloka‘i Case 9 Board Talk: ‘Ewa Sand Berm; Kealakekua Kayak Tours; Ha‘ena Vacation Rentals; Kahala Beach Armor 12 The coast near Kona’s Honokohau small boat harbor. Legislation passed earlier this year has directed the DLNR to Mahalo! transfer development rights of three parcels there to the PLDC. Page 2 ■ Environment Hawai‘i ■ October 2012

Volume 23, No. 4 October 2012

NEW AND NOTEWORTHY

A Setback for Kihei Mega-Mall: The Land Use Those three parties initiated the LUC’s action with of Boating and Ocean Recreation (the lessee), told Commission has voted unanimously in favor of a a motion last May asking the LUC to issue a show- Environment Hawai‘i that the state was close to finding that there is reasonable cause to believe that cause order to the landowners. completing the work needed to begin condemna- the plan of three companies to develop 88 acres of The current plan has received the blessing of tion proceedings. Last month, he said the condem- land in Kihei, Maui, into two shopping centers and Maui County. In July, the county Board of Ap- nation process was awaiting a final report on 250 units of worker housing for the Wailea 670 peals rejected a challenge from Maui Tomorrow to property boundaries from Maui County. planned resort is not in keeping with what was the grading permits that the Department of Public In the meantime, the site, now wrapped in a approved when the LUC reclassified the land into Works had issued for the project. As of press time, black, 12-foot-high wind screen, is being used as a the Urban land use district in 1995. the organization had not decided whether to ap- staging area for work on the new terminal for the The decision, taken at its meeting on August 24, peal that decision. ferry to Lana‘i and Moloka‘i. In addition, a boat means that the landowners – Pi‘ilani Promenade In addition, Maui Tomorrow has appealed the belonging to DOBOR is stored on the property. South, LLC, Pi‘ilani Promenade North, LLC, and county planning director’s determination that the Honua‘ula Partners, LLC – will need to show at a landowners are in compliance with the 1995 LUC The Coqui’s Quiet Cousin: Coqui frogs have contested-case hearing how their proposal is, in- order. A hearing officer is to be appointed later this received a lot of attention, thanks largely to the deed, in compliance with the proposal before the month to consider the complaint. obnoxiously noisy mating calls of the male of that LUC some 18 years ago, when the landowner was species. Flying under the radar has been its quieter planning to develop the parcel for light-industry relative, the greenhouse frog, Eleutherodactylus and commercial uses. Arguing to the contrary is the planirostris, although it, too, is on the state list of Maui Tomorrow Foundation, South Maui Citi- injurious species and consumes prodigious zens for Responsible Growth, and Daniel Kanahele. amounts of invertebrates, including, in all likeli- hood, a number of native insects. In a recent article in Pacific Science, Christina Environment Hawai‘i Olson and Karen Beard, of Utah State University, 72 Kapi‘olani Street and William C. Pitt, with the U.S. Department of Hilo, Hawai‘i 96720 Agriculture’s Wildlife Services Division in Hilo, turn the spotlight on the greenhouse frog and the Patricia Tummons, Editor advantages – at least from the frog’s perspective – Teresa Dawson, Staff Writer Ma‘alaea Land For Sale: For the last 18 years, the that come with its soft voice. For example, while Susie Yong, Office Administrator state has been paying dearly on a lease of an acre of both coqui and greenhouse frogs were introduced Environment Hawai‘i is published monthly by Environment land at Maui’s Ma‘alaea Harbor for which it has no to Guam (in shipments Hawai‘i, Inc., a 501(c)(3) non-profit corporation. use. Lease rent, paid to landowner Don Williams, of plants from Subscriptions are $65 individual; $100 non-profits, libraries; comes out to roughly $1,000 a day. $130 corporate. Send subscription inquiries, address changes, Hawai‘i), only the and all other correspondence to Environment Hawai‘i, Now, Williams has put the land up for sale, coqui was eradicated. 72 Kapi‘olani Street, Hilo, Hawai‘i 96720. with an asking price of $9.75 million. Some people actually Telephone: 808 934-0115. Toll-free: 877-934-0130. For years, the state has been trying to get out of E-mail:[email protected] enjoy the greenhouse Web page: http://www.environment-hawaii.org the lease through condemnation of the land. In frog’s calls and have de- Twitter: Envhawaii 2010, Ed Underwood, administrator of the De- liberately moved them

PHOTO: NWRC.USGS.GOV HARDIN WADDLE Environment Hawai‘i is available in microform through partment of Land and Natural Resources’ Division into their gardens, the Eleutherodactylus planirostris University Microfilms’ Alternative Press collection (300 authors report. 48106-1346 North Zeeb Road, Ann Arbor, Michigan ). The greenhouse frogs are distributed across a Production: For Color Publishing ◆ broad swath of the Hawaiian chain, with their Copyright © 2012 Environment Hawai‘i, Inc. presence having been reported on all islands except 1050-3285 ISSN Quote of the Month Moloka‘i. A publication of “It’s not a one-way street [where] Environment Hawai‘i, Inc. Dept. of Corrections: An item on this page last Officers Directors the landed, rich and powerful are month discussed the latest developments in the Patricia Tummons Kathy Baldwin the only ones that have a right to a disputed proposal for a subdivision in the South President and Mary Evanson contested case hearing.” Kona ahupua‘a of Waikaku‘u. We misfired twice: Treasurer Mina Morita the area involved is 72 acres (not 52, as we errone- Ron Terry Teresa Dawson — David Frankel ously reported), and the site is on the slopes of Vice President and Secretary Mauna Loa (not Mauna Kea). ◆ We apologize for the errors. October 2012 ■ Environment Hawai‘i ■ Page 3

redistricting. “In accordance with the Gen- eral Plan,” it states, “the state Land Use Nukoli‘i Owner Brings Federal Suit Commission placed most of the property in the Urban district.” The General Plan re- Against Kaua‘i Over Limit on Hotel Units ferred to in the complaint was drafted 25 years after the second state boundary review com- county charter amendment approved by inventory of visitor accommodations at the mission prepared its report, which was the AKaua‘i voters in 2008 is being challenged end of 2008 – or 252 units. basis for the Urban designation of the Nukoli‘i in federal court. Kaua‘i Beach Villas – Phase land.) II, LLC (KBV), alleges that the amendment Nukoli‘i Redux and an implementing ordinance, passed by As described in another article that appears in Exactions the County Council in 2011, interfere with this issue, the land that is proposed for this In the complaint, Gregory K. Markham of the company’s “distinct and reasonable in- development has been the subject of heated Chee Markham & Feldman, attorneys for vestment-backed expectations,” that they dispute going back nearly four decades. KBV, attempts to link the proposed develop- “substantially and negatively affect the value A hotel and condominiums (Kaua‘i Beach ment to the earlier one on the adjoining land and use of the property,” and that its “consti- Villas) were built in the 1980s on the northern at Nukoli‘i. “The property,” the complaint tutionally protected property rights” have half of the 58-acre parcel that was put into the states, “was planned for the final phase of a been abridged. Urban district in 1974. The remainder of the development project comprising approxi- The charter amendment was put on the land was kept in an undeveloped state, with mately 60 acres of contiguous land.” But in ballot as a consequence of a petition effort ownership retained by Pacific Standard Life the rezoning ordinance, adopted in 1979, just launched by a group called the Coalition for Insurance Co., a subsidiary of the Southmark 25 acres were approved for inclusion in the Responsible Government. The petition noted Corp. After Southmark filed for bankruptcy county’s resort district (RR-20). that between 2000 and 2007, the county protection in 1989, Pacific Standard was es- Planning Commission had granted approv- sentially placed in receivership. In March als for more than 4,000 units intended for 1990, its remaining 33.9 acres of land in tourists – and “if each of these approved units Nukoli‘i was sold to Haseko for $5.1 million. is constructed, the resulting growth rate would In 2005, Haseko sold the land to KBV for be more than 4 times the high end of the $5.2 million. At the time, the county General growth range in the November 2000 Kaua‘i Plan described the area as planned “for resort Kaua‘i County General Plan.” use,” with a total allowable density of “680 It also stated that the rate of growth in multi-family units or 1,360 hotel units.” The transient accommodations on Kaua‘i “has General Plan also noted, however, that the 34 already surpassed the capability of the county’s acres, then owned by Haseko, “needs state infrastructure.” Growth beyond that con- Land Use Commission re-districting to Ur- templated in the General Plan, it continued, ban.” Appropriate county zoning also needed Site of the proposed Kaua‘i Beach Villas - Phase II. “would create detrimental impacts in areas” to be obtained. such as traffic congestion, police, fire, and The land had been proposed (and ap- The ordinance “also imposed several exac- emergency services, park use, potable water proved) for inclusion in the Urban land use tions,” the complaint goes on to say, “includ- demand, and the like. district during the 1975 state land use bound- ing a $500,000 in-lieu fee for recreational To curb such growth, the petition called ary review process. At that time, it was part of facilities and outright contribution for [the] for strict limits on future construction of a larger 66-acre parcel, of which 58 acres were first phase for the unrestricted use of the transient accommodation units, or TAUs. placed into the Urban district, with the re- county.” Other “exactions” related to traffic They included requiring the County Council mainder, along the coast, going into Conser- improvements, more than three miles of new to enact a “rate of growth ordinance” limiting vation. The redistricting came with a caveat: water mains, and a pump in a county well. the increase in the number of TAUs to no at the recommendation of the Kaua‘i Plan- Markham argues that the exactions im- more than 1.5 percent a year. ning Commission, the approval called for posed by the rezoning ordinance “were for The charter amendment passed over- “substantial completion of development to the development of the complete 60-acre whelmingly, with nearly a two-to-one mar- take place within 5 years… Non-performance project. If the exactions had not been for the gin of victory. shall be a basis for reversion to former classi- development of the complete 60-acre project, It took nearly three years for the County fication.” many of the exactions would have been un- Council to adopt an enabling ordinance. The In the eyes of the county General Plan, at constitutional.” To date, he writes, KBV and resulting legislation, Ordinance 912, carves least, the undeveloped land had been reverted previous owners “have expended substantial out an exception to the restrictions for “any to its “former classification” of Agriculture. In sums to complete the project, including ap- resort projects which are under construction the eyes of the LUC, however, and absent any proximately $5 million in improvements for or where substantial sums have been ex- petition for reversion, the land remained the county.” pended on such projects in reliance on or Urban. As of September, county zoning for According to the complaint, the ballot pursuant to” earlier ordinances that may have the parcel was “open” and “agriculture.” Ac- question in the 2008 referendum did not authorized them. Apart from such projects, cording to a Planning Department employee, accurately describe to voters the question put the ordinance limits the number of permits to the agency has not received any application to to them. “The county did not inform voters be issued for new TAUs over the five-year upzone the land. of the inconsistencies between the Charter period from 2012 to 2016 to 5.1 percent of the (The federal complaint seems to put the Amendment and the General Plan,” it states. number of units included in the county’s cart before the horse on the question of “On the contrary, the county inaccurately Page 4 ■ Environment Hawai‘i ■ October 2012

for inclusion in the Lihu‘e Development Plan as a resort area, despite initial opposition from Condo Development is Proposed for Site the 15-member Citizens Advisory Commit- tee, according to Land and Power. In what With a History of Bitter Controversy was apparently the first show of organized labor in support of a project, the landowner ne will search in vain to find the word owner.” Other hui members included Tom arranged to have “a force of carpenters” at- ONukoli‘i anywhere in the federal lawsuit Yagi, director of the ILWU’s Maui division tend a County Council meeting where the challenging the Kaua‘i charter amendment to (and member of the state Board of Land and development plan was to be considered. “This limit new hotel rooms. In fact, however, the Natural Resources), immediate members of was the first time that construction workers lawsuit is the latest chapter in a 40-year-long the family of Sen. Nadao Yoshinaga, two had showed up en masse at a land use hearing history of litigation and disputes involving members of the Maui County Council, and a on Kaua‘i,” Cooper and Daws write. “Their powerful political forces over development number of others “in or close to the top presence led Walton Hong [attorney for the rights to the coastal property. As early as 1984, leadership of the state government,” Cooper developer] to say: ‘I feel tonight is a turning a Honolulu Advertiser reporter called it “the and Daws report. point. This is the first time we have had the most wrenching political issue in Kaua‘i’s The following year, the 66 acres purchased silent majority come out to speak for some- history;” as recently as 2009, Bob Jones, writ- by Yokouchi and his friends were recom- thing.’… Their pension fund three weeks ing in Midweek, described it as “one of the mended for inclusion in the state Urban land earlier had acquired a passive interest in the shadier land deals” in Hawai‘i. use district in the course of the second five- Nukoli‘i land, though Carpenters Union of- “For the few who knew the area in the years year boundary review mandated by Chapter ficials later interviewed … said that had noth- just before Nukoli‘i became a political battle- 205. In its “Report to the People” of 1975, the ing to do with union support for the project.” ground, it was called the old Hanama‘ulu or Land Use Commission advised that it had Following approval of the development Nukoli‘i Dairy, referring to an 11-acre opera- approved placing 58 acres into the Urban plan, with the Nukoli‘i resort designation, tion that passed out of existence in the late category, while the remainder (extending from appropriate county zoning was proposed in 1960s,” write George Cooper and Gavan Daws the shore to about 150 feet inland) would be in 1978. The final development project approved in Land and Power in Hawai‘i. To the north Conservation. (The redistricting was done by the council in 1979 was for a 350-room was the county’s Wailua Golf Course; to the with the blessing of the Kaua‘i Planning Com- hotel and 150 condos on just 25 acres of the south, Hanama‘ulu, and just beyond that, mission – with the caveat that “substantial project. Lihu‘e, the county seat. completion of development [was] to take Even though the development was con- Since the passage of the state land use law place within 5 years… Non-performance shall siderably scaled back from the original pro- (Chapter 205) in the 1960s, the area had been be a basis for reversion to former classifica- posal, opponents calling themselves the Com- designated Agricultural, although, write Coo- tion.”) mittee to Save Nukoli‘i (CSN) nevertheless per and Daws, “farming would have been “[A]fter owning for only about two-thirds successfully petitioned the county to have a hampered by hard onshore winds that blew of a year, and before the jump in real property referendum to repeal the zoning placed on much of the year.” tax assessment,” Cooper and Daws write, “the the November 1980 general election ballot. In 1973, Masaru “Pundy” Yokouchi, then- hui was able to resell, to a Hawai‘i subsidiary The day before the election, the county Gov. John Burns’ chief aid on Maui, arranged of Pacific Standard Life Insurance Co.” The granted a permit to build the hotel to to buy the land from Amfac for $1.2 million sales price: $5.25 million. Hasegawa Komuten, which had purchased “and then organized a hui that became the By 1977, the Nukoli‘i parcel was proposed the upzoned 25 acres in August of that year.

On April 26, 2012, the complaint states, the resolution of the appeal before deciding Kaua‘i Beach Villas from page 3 the developer applied for an exemption of KBV’s facial challenges” to the charter titled the proposed amendment ‘RELATING 400 units to be built on the property. The amendment and its implementing ordi- TO IMPLEMETATION OF THE GENERAL application was denied by the planning direc- nance. PLAN’ ” and did not give voters an accurate tor, Michael Dahilig, on June 1. He deter- The company asks the court to find that description of the measure, in violation of mined that the development “is not an Eli- both are “unconstitutional and invalid on charter language. gible Resort Project” and that an “exemption their face,” for an injunction against the from the TAU Certificate process cannot be county enforcing them – not only with re- ‘Futile and Irrelevant’ considered.” spect to KBV’s property but all other property The charter amendment limiting new TAUs “Solely to forestall any misplaced argu- owners in the county, and for the company’s does provide for exceptions, if they meet the ment that KBV was required to ‘exhaust’ fees and costs. definition of already “permitted projects” or administrative remedies or ‘ripen’ its claims,” (In early September, the county attorney’s are deemed to be “eligible resort projects.” the complaint states, KBV appealed the office had not been served with the com- Under Ordinance 912, “permitted projects” director’s decision to the Planning Commis- plaint, and therefore had no comment. are those that received all necessary zoning, sion. A hearing officer was appointed, but, County Planning Director Michael Dahilig use permits, subdivision approvals, and vari- according to the federal complaint, no hear- was off-island “for several weeks,” according ance permits before December 5, 2008.” An ing had been scheduled as of August 27, when to his office staff. No one else was available to “eligible resort project” is one that received the complaint was filed. answer questions. A Uniform Information zoning before December 5, 2008 and is in a In any case, Markham writes, “the ap- Practices Act request seeking documents filed zoning district approved before that same peal is futile and irrelevant.” The federal by KBV was filed but still pending at press date. court, he continues, “should not wait for time.) — Patricia Tummons October 2012 ■ Environment Hawai‘i ■ Page 5

When the final ballot count came in on the rezoning referendum, however, it was two- to-one against the resort. Honokohau Act Confuses DLNR, Because of the already issued building permit, Hasegawa considered itself to have a Angers West Hawai‘i Boaters vested right to develop and continued to work on the site despite the successful refer- est Hawai‘i boaters simply wanted original bill were in support of the changes endum. The county immediately sought a Wclean restrooms, garbage pick-up, a that were made. They were also not consulted. determination from the 5th Circuit Court on decent water system, lighting and other Basically, it got bushwacked in the closing the zoning questions raised by the vote, ask- basic infrastructure at Honokohau small hours of the session,” says charter boat opera- ing the court to uphold the county position. boat harbor. tor Rick Gaffney. In February 1981, Judge Kei Hirano found in The bill they initiated last legislative ses- For critics who complain that the PLDC favor of the county and the developer. sion (House Bill 2398) proposed establishing hasn’t been transparent enough or that it will It took another year and a half for the case a Honokohau Marina Development District ignore community concerns, Act 282 is simply to be decided by the Hawai‘i Supreme Court, that would assume harbor management from proof. which overturned the lower court ruling. the state Department of Land and Natural The boaters later met with PLDC co-cre- From the time that the county clerk certified Resources’ Division of Boating and Ocean ators Sen. Donovan Dela Cruz and Sen. the initiative petition up to the vote, the costs Recreation. Malama Solomon, as well as its executive that the developer had sunk into the project Many boaters testified that under the cur- director, Lloyd Haraguchi, “to find out in had been at the developer’s own risk, the rent management regime the harbor is “in their minds exactly what this bill is going to do justices found. “The building permits stand worse condition than many third world ma- for Honokohau,” Gaffney says. in the same shadow cast by certification of the rinas, and has long been an embarrassment to “They essentially told us there is nothing referendum and do not create an irrevocable West Hawai‘i’s marine community.” the PLDC can do to support those basic needs. right to proceed with the Nukoli‘i project,” The National Park Service, native Hawai- What we learned is the bushwacked bill does they wrote. “Simply stated, the official assur- ian civic clubs, and environmentalists op- absolutely nothing for Honokohau harbor ance upon which the developers would have posed the measure out of concern that the and the West Hawai‘i boating and ocean a right to rely in the case could come only new district would encourage development communities,” he says. from the voters, and they chose to withhold incompatible with the area’s rich natural and To him, the Legislature directed the DLNR it.” The lower court was instructed to order cultural resources. to transfer rights to Honokohau because it was the county to revoke the building permits In the end, however, the Legislature dis- trying to “jump start the PLDC process ... by and “to restrain any further construction on missed the boaters’ proposal and instead took specifying a specific location to actually do the Nukoli‘i site.” steps to put the DLNR’s Honokohau lands something.” With the condos completed and the hotel into the hands of the Public Land Develop- So what happens now? nearly a third built, Cooper and Daws write, ment Corporation, created by the Legislature It’s been months since it was signed and “Gov. Ariyoshi’s chief campaign organizer in 2011 to help state lands generate more DLNR officials, at least, are still unclear on Kaua‘i [Turk Tokita], believing that pub- revenue for the DLNR. about what, if anything, they’re supposed to lic opinion was shifting in favor of construc- DLNR administrator William Aila had do to implement the act. tion of Nukoli‘i, said he got the idea to do a submitted testimony on the bill, stating, DOBOR administrator Ed Underwood second vote on Nukoli‘i, in the form of an “[D]ue to the current economic climate there shrugs his shoulders when asked what a initiative.” is little if any interest in developing the sur- transfer of development rights might mean Kauaians for Nukoli‘i (KFN) got the sig- rounding fast lands within the harbor. The or accomplish. natures it needed on a petition to restore the department would prefer that the Public “I don’t know,” he says, adding that zoning to the site through a referendum, to be Land Development Corporation, adminis- under the 2011 law establishing the PLDC, it voted on in a special election in 1984. “By tratively attached to the department, develop would seem that eventually all DOBOR almost any standard,” Land and Power re- the property surrounding the small boat har- lands will have to be transferred to the ports, “the money spent in the 1984 Nukoli‘i bor because eighty-five percent of the pro- PLDC. He says he thinks that the PLDC will initiative exceeded anything Kaua‘i had ever ceeds would be deposited into the Boating need a lease from the Land Board for the seen. To take one measure – dollars spent by Special Fund.” harbor lands at Honokohau, but that he election winners per registered voter – KFN The PLDC had expressed interest in devel- doesn’t know whether transferring develop- spent, as measured in 1980 dollars, $7.62.” oping the harbor, which operates at a yearly ment rights is something that would require The referendum won approval, 58 to 42 deficit of $200,000, despite annual rental Land Board approval. percent. There were a few more minor skir- income of $200,000, Aila testified. “That’s what we’re trying to figure out, mishes in state and federal court over the A gutted and reworded bill eventually the process,” he says. conduct of the election and costs, but when passed (Act 282) and was signed by Gov. Neil Land Division administrator Russell the dust settled, the buildings remained: a Abercrombie on April 6. The act directs the Tsuji says he was not even aware his division’s hotel, now the Aqua Kaua‘i Beach Resort, DLNR’s Division of Boating and Ocean Rec- lands were a part of Act 282 and had assumed and the 350 condominiums known as the reation and Land Division to transfer to the that the Honokohau lands were all under Kaua‘i Beach Villas. — Patricia Tummons PLDC development rights to three parcels DOBOR. For a much more thorough discussion of the totaling more than 200 acres surrounding the Neither Underwood nor Tsuji was pre- Nukoli‘i development up to 1984, see Gavan Honokohau small boat harbor. paring anything to implement Act 282 as of Daws and George Cooper, Land and Power in The boaters were not pleased. press time. Hawai‘i, especially Chapter 11. “None of the people interested in the According to a flow chart issued last Page 6 ■ Environment Hawai‘i ■ October 2012

Cruz says. also navigate a federal National Environ- Honokohau Act from page 5 Although the statutes that govern the mental Policy Act review. month by the governor’s office outlining PLDC exempt it from county zoning laws, Then in 2009, the Hawai‘i County the process that PLDC projects are to fol- Dela Cruz says development projects need Council approved a recommendation by low, as well as recent statements by Dela to connect to infrastructure. its Planning Department to downzone the Cruz, the agency is still a long way from “If you’re building a visitor center ... the DLNR lands at Honokohau, shifting them doing anything with the Honokohau lands, LDC would have to approach the county from Urban Expansion to Open. The move even if it had a proposal ready to launch and say, ‘Do you have capacity?’ We have to was primarily aimed at settling a lawsuit right now. get permission from the county to connect. brought by a group of native Hawaiians To start, DOBOR and Land Division Once that conversation begins, the county seeking to protect their traditional and will have to transfer their development can dictate conditions, no different from a customary practices in the area, which is rights to the PLDC via a memorandum of unilateral agreement. The project is dead adjacent to Kaloko-Honokohau National agreement or memorandum of understand- without the county and title agency,” he Historic Park. It also reflected the preserva- ing that must be approved by both the Land says. tion and development goals laid out in the Board and the PLDC board, says Dela Cruz. At Honokohau, it’s unclear what devel- Kona Community Development Plan, Although the legislation was signed sev- opment, if any, the county will allow the which the county adopted in September eral months ago, no MOA or MOU is in the PLDC to undertake. 2008. works. Nearly a decade ago, the DLNR sought to Placing the area in the Open zone “will “Too early,” he says, noting that he and Solomon have asked that the PLDC adopt a For critics who complain that the PLDC hasn’t been strategic plan before undertaking projects. transparent enough or that it will ignore community (The PLDC board was scheduled to receive a briefing on that request at its September concerns, Act 282 is simply proof. 20 meeting.) Addressing the confusion over what develop what it saw as underused land sur- assure the coordinated development of the transferring development rights means in rounding the small boat harbor. The agency area, and protection of the significant natu- the context of the PLDC, Dela Cruz says the signed a development agreement with ral and cultural resources in the amend- process differs from what is normally meant Jacoby Development, Inc., which proposed ment area and on surrounding lands will by the term in the private sector, where an the 530-acre marina expansion/resort “Kona maintain the general welfare and prosper- agricultural landowner might sell develop- Kai Ola” project that spanned lands owned ity of the people of Hawai‘i island,” the ment rights to an urban landowner seeking by the DLNR and the Department of Ha- Planning Department stated before the more density. In return, the agricultural waiian Home Lands and included hun- council’s decision. land remains in ag. dreds of hotel rooms, some 1,800 condos, At the PLDC board’s July meeting, board In the case of the PLDC, though, “basi- and commercial space. member Robert Bunda asked Haraguchi cally, it’s a management right, the right to Jacoby later scaled back the proposed whether any parties or developers were pursue projects,” Dela Cruz says, adding, marina as well as the number of proposed interested in the Honokohau lands. “What needs to be made clear is the title hotel units in response to community and Haraguchi mentioned that Jacoby was once agency never loses title. It’s always going to environmental concerns. But after slogging interested, but that current interest “has be in the title of DOBOR or DLNR.” through the county zoning and state envi- not been to the degree generated by the Whatever projects the PLDC pursues at ronmental review process, the developer Kona Kai Ola plan,” the minutes state. Honokohau, or anywhere for that matter, eventually walked away from the project Haraguchi did not respond to questions must be supported by the county, Dela when faced with the possibility of having to about Honokohau by press time. — T.D.

The PLDC could be an agency that ties Haraguchi’s statements to the press that his LDC from page 1 other agencies together “to try to break silos of agency’s objective is “to provide the alterna- “They’re not a developer. A lot of the land government to provide better service, jobs, tive funding that will make programs self- now is basically abandoned. The DLNR and and expand public benefits,” he says. For now, sufficient,” Thielen said, “It appears that the DHHL don’t manage. That’s one partner- the PLDC doesn’t own anything. It’s simply intention is to defund DLNR of all general ship that I would like to see. DHHL and the “an assistant to another agency,” he says. fund revenue and replace it with the PLDC DLNR would transfer management rights. During public hearings in August on the project-generated revenue. In that case, the Now, the Haiku non-profit could have a PLDC’s proposed administrative rules, former PLDC development will not bring any new long-term lease, develop a plan to manage the DLNR director Laura Thielen argued that the resources to DLNR, but instead place DLNR area, and apply for grant money, with the PLDC is likely to be a drain on the DLNR’s on more unstable footing. state not having to commit as much resources finances, rather than an assistant. “All this background begs the question: if to it,” Dela Cruz says, adding, “We can put “As the former chairperson of this depart- one is purely interested in supporting DLNR, conditions on the transfer — provide public ment, I can tell you unequivocally the PLDC why create a new, redundant board that access, work with kids from the area.” is and will take revenue away from DLNR. siphons revenue away from DLNR?” she A lot of the larger development projects Under the law, the PLDC will take its own asked. may be on lands controlled by the Depart- costs and a 15 percent cut out of any revenue it Thielen also complained that the estab- ment of Education, for 21st century schools, generates,” she said. lishment of the PLDC “effectively severed any “not so much DLNR,” he says. Regarding PLDC executive director Lloyd connection between the mission of resource October 2012 ■ Environment Hawai‘i ■ Page 7

Lands projects where they need to be in- volved,” Dela Cruz told the ADC at its board Act 284 Establishes Stricter Review meeting on July 11. Legacy Lands program administrator For Potential Legacy Land Projects Molly Schmidt, however, interprets Act 284 a little differently. The act requires Legacy Land tarting this year, applicants competing for speaker of the House of Representatives.) applicants to consult with the DLNR, DOA, Sthe $2.3 million available from the state’s However, should the Land Board or any of ADC, and PLDC regarding the maximization Legacy Land Conservation Program have a the agencies required to be provided an ease- of public benefits of a proposed land acquisi- new hoop to jump through. ment decide to opt out of the requirement, tion project. It does not, however, require Before Act 284 became law earlier this year, they may do so. applicants to provide an easement to any of the state Board of Land and Natural Re- The point, says Sen. Donovan Dela Cruz, those organizations, she says. sources had the option of requiring agencies author of the legislation, is to have the agency The act merely, “sets forth what sorts of receiving Legacy Land funds to provide a affirmatively reject the easement if it does not deed restrictions can be placed on each kind of conservation easement, deed restriction, or wish to retain it. project, and what entities can be holders of covenant to “an appropriate land conserva- “If someone has ag land and they used state these restrictions,” she wrote in an email to tion organization, or a county, state, or federal money [to acquire it], if the DOA or ADC has Environment Hawai‘i. natural resource conservation agency.” an easement, they can’t develop or use it for This year’s slate of potential Legacy Land With the passage of Act 284, four state anything other than ag,” he says. applicants had to submit consultation forms agencies — the Department of Land and An easement would only go to the PLDC to the four agencies in early August. Those Natural Resources, the Department of Agri- if it’s appropriate, he adds. The whole point of completed forms had to accompany their culture, the Agribusiness Development Cor- the Legacy Lands program is to purchase applications, which were due last month. poration, and the Public Land Development lands or conservation easements that will According to Schmidt, a dozen potential Corporation — have been added to that list. protect natural or agricultural areas from projects planned to apply. What’s more, Act 284 now requires the development. When asked what kind of The Hawai‘i Islands Land Trust is propos- Land Board to require those seeking Legacy Legacy Land project would be appropriate for ing two conservation easement projects this Land funds to provide a conservation ease- the PLDC to hold an easement over, Dela year. Scott Fisher, the trust’s conservation ment, deed restriction or covenants to one of Cruz told Environment Hawai‘i, “You don’t program manager, says that none of the con- those agencies. (Exactly how the particular know what people are going to apply for. We sulting agencies indicated they want to hold agency to receive the easement is to be chosen included them [the PLDC] just to make sure an easement, deed restriction, or covenant is not spelled out in the law. It states only that it’s there.” and most of them had no comment at all. the Land Board must make its decision in Act 284 allows the DLNR, ADC, PLDC, He adds that it is too soon to speculate on consultation with the Senate president and and DOA to get an easement to “any Legacy how the new law will affect future projects. — T.D. conservation and the development of state LDC. And it’s understandable. Under Act 282 any state department or agency, and lands to land. ... [T]he PLDC’s mission is to develop of the 2012 Legislature, lands held by the which the PLDC holds title in its corporate state land in a manner that maximizes rev- PLDC are now exempt from the definition of capacity are also exempt. enue. The PLDC board has no obligation to public lands. However, lands to which the PLDC holds balance the interest of resource conservation.” Normally, the disposition of public lands only development rights would appear to still In response to Thielen’s argument that the is strictly regulated. For example, public lands be considered public lands. (Act 282 also PLDC projects are going to cost the DLNR generally have to be disposed of via public amended the definition of development rights money, Dela Cruz says, “then the department auction, which involves a pre-qualification to mean “all of the rights related to the doesn’t have to do it.” process. An applicant that has had a state development of a property including but not He claimed that the ‘Recreational Renais- lease, license or permit cancelled within the limited to the rights permitted under an sance’ program Thielen proposed in 2009 to preceding five years for failing to satisfy terms ordinance or law relating to permitted uses of upgrade the state’s recreational facilities and conditions is not eligible for a lease of a property, the density or intensity of use, and wouldn’t have generated revenue. Thielen public land. Leases are limited to 65-year the maximum height and size of improve- asked the Legislature to support the $240 terms; no one in arrears on taxes or state rents ments thereon.”) million project. can receive one; and transfers need Land The only mention of development rights He added that given her support of tele- Board approval. in a recent posting on the PLDC that appears scope development on Mauna Kea, among But lands held by a select few government on the website of the governor’s office is with other things, it would be “interesting to see agencies are exempt from these and other regard to whether or not the PLDC can sell someone go through her record” on resource restrictions. The agencies include the public land. The office states, “The initial protection. Agribusiness Development Corporation, the premise is that title will remain with the Aloha Tower Development Corporation, the respective agency and only the development Hawai‘i Community Development Author- rights will transfer over to the PLDC; there- ity, the Hawai‘i Housing Finance and Devel- fore, the PLDC cannot sell the fee title to any The ‘LDC’ opment Corporation, and the University of of the lands. If the respective title agency Hawai‘i. transfers the fee title to the PLDC, the PLDC n his interview with Environment Hawai‘i, With Act 282, lands set aside by the gover- may sell title, subject to the same restrictions IDonovan often referred to the PLDC as the nor to the PLDC, lands leased to the PLDC by as other state agencies.” — Teresa Dawson Page 8 ■ Environment Hawai‘i ■ October 2012

tem), notify the company that it is banned from using the well for anything other than Homesteaders Ask Water Commission reasonable domestic consumption by indi- viduals, and assess administrative penalties To Restrict Moloka‘i Ranch’s Well Use against MPL for violating the state Water Code. t’s been five years since the Hawai‘i Su- Commission designated the island of From June 2010 to June 2011, MPL pumped Ipreme Court struck down a state Commis- Moloka‘i as a Water Management Area. In as much as 1.04 mgd from Well 17 and an sion on Water Resource Management deci- December 1993, Kukui Moloka‘i Inc., MPL’s average of about 580,000 gpd, according to sion to grant a water use permit to what is now predecessor, submitted an application for a Water Commission records. The complaint Molokai Properties Ltd. (MPL). The court water use permit for 2 million gallons of water notes that an environmental impact statement remanded the matter for further proceedings, a day from Well 17 for Kualapu‘u town and for the La‘au Point development states that but the commission has done nothing. the Kaluako‘i resort. The company submit- with the closure of the ranch’s hotels and golf In the meantime, the company has ted the application roughly six months after course several years ago, MPL requires, at pumped hundreds of thousands of gallons of the commission’s deadline of July 15, 1993. most, only 270,000 gpd to serve Kualapu‘u groundwater a day unchecked. Even so, the commission authorized an in- town. So on August 30, the Native Hawaiian terim use of 871,420 gallons a day for existing “The fact that MPL is using double the Legal Corporation filed a complaint with the uses. amount of any plausible explanation for such Water Commission to end what it believes is Unsatisfied, KMI requested and received a excessive water use is clearly the basis for any the illegal use of groundwater by MPL, better contested case hearing in 1998. The DHHL, punitive action the commission may and known as Moloka‘i Ranch, the island’s largest the Office of Hawaiian Affairs, Kuahuia, should take,” the complaint states. Given that landowner. Caparida, and others joined the case as inter- the Supreme Court issued its decision on “We’re not challenging the domestic use venors. In a December 2001 decision and December 26, 2007, the complaint adds, “As- of water,” says NHLC attorney Alan order, the commission increased KMI’s exist- suming that only one violation per day is imposed, 1,709 days of violations results in “We’re not challenging the domestic possible fines of $8,345,000, as of August 30, use of water.” 2012.” — Alan Murakami, NHLC Irrigation System Lease In addition to MPL’s use of Well 17, the NHLC Murakami. But his clients do oppose what ing use allocation to 936,000 gpd. KMI also and its clients have objected to the company’s they see as excessive use of water by the ranch’s received a permit for new uses, giving it an use of the state Department of Agriculture’s owners as well as its agricultural lessees that additional 82,000 gpd. Molokai Irrigation System to transport Well grow coffee and genetically modified crops. The intervenors appealed the decision to 17 water to the west end of Moloka‘i. KMI’s The complaint, filed on behalf of the Supreme Court. In late 2007, the court lease of space in the system expired years ago, Ho‘olehua Hawaiian homesteaders Wayde found that the commission had erred when it and, according to Murakami, the DOA has Lee, Judy Caparida, and Georgina Kuahuia, considered KMI’s untimely application. The not validly approved a new lease to MPL. argues that MPL’s use of Well No. 17 “impacts commission had also failed to adequately Under the previous lease, MPL would only the ground water, nearshore marine resources, consider alternative water sources, failed to be allowed to take as much water from the and related ecosystems that complainants take into account the fact that KMI’s hotel irrigation system as it pumped in from Well 17. rely on and routinely use for traditional and and golf course had been closed for years, and But Murakami says things haven’t always customary practices. ... They are Native Ha- improperly shifted the burden of proving the worked that way. waiians who rely on subsistence gathering impact of KMI’s withdrawals on traditional “They’ve had major pump breakdowns. from the shoreline area Well 17 impacts.” and customary practices from KMI to For months [the DOA] has allowed major What’s more, wells belonging to the De- Kuahuia and Caparida, the court found. amounts of water to be taken from the system partment of Hawaiian Home Lands that are After the court remanded the case, the that was not put in the system. The DOA has near Well 17 show evidence of potential salt NHLC followed up with motions asking the overlooked it for those years,” he says. water intrusion, the complaint states. The commission to dismiss all applications for What’s more, the Department of the DHHL currently has a reservation of 2.905 water use permits except those necessary to Attorney General has determined that the million gallons of water a day from the supply “reasonable amounts of EXISTING DOA must conduct an environmental as- Kualapu‘u aquifer, and it may need more in domestic water to residential subscribers of sessment, at the very least, before it renews a the future if it develops its other lands on the the [Kaluako‘i Land LLC/Moloka‘i Public lease to MPL. island. Kualapu‘u has a maximum sustain- Utilities] private water system,” the com- Says Murakami: “They [the DOA] have able yield of about 5 mgd. plaint states. The commission, however, has not done anything except hold a recent com- “MPL’s unauthorized water use ... com- taken no action on the motions. munity forum to get input on the impacts of promises the quality of the groundwater aqui- In its August complaint, the NHLC asks renewal. It’s a major, major thorn in the side to fer in the vicinity of wells on which the DHHL the commission to determine whether MPL Ho‘olehua homestead farmers, who suffer relies now and in the future, and interferes is making unauthorized withdrawals within a when the ranch doesn’t fix its pumps. ... It’s a with complainants’ superior rights to that Water Management Area, immediately or- cancer in the side of the irrigation system.” groundwater,” the complaint states. der the company to cease withdrawals from As of press time, Murakami was preparing Disputes over the ranch’s use of Well 17 Well 17 (except for reasonable domestic water to file a lawsuit against to stop MPL’s use of the started in the early 1990s, when the Water uses by existing subscribers to its water sys- irrigation system. October 2012 ■ Environment Hawai‘i ■ Page 9

only entities that have a right to [one] are BOARD TALK landowners when talking about a CDUA [Conservation District Use Application]. That is wrong.” Board Grants Contested Case Frankel pointed to a case where Hawaiian Electric Company proposed building a dam On Kaloi Gulch Berm Project on Honoli‘i Stream on the Big Island. “Honoli‘i is the only real surf spot in the he Land Board has granted a contested deny the petitions, but reconsider the March Hilo area,” he said. Surfers asked for a con- Tcase hearing to two O‘ahu seaweed gath- decision and issue additional findings regard- tested case hearing then and won. “Under the erers seeking to preserve a sand berm at the ing traditional and customary native Hawai- AG’s [attorney general’s] analysis, they would mouth of Kaloi Gulch in ‘Ewa that they say ian rights, or grant a discretionary hearing, not have had a right to a contested case filters stormwater runoff and protects the with Chang Wo and Lee as parties, then hearing. We would have a dam there today.” limu beds they rely on from pollutants. decide whether or not the CDUP should Frankel said he was amazed how often in Haseko ‘Ewa, Inc., the Department of stand. The hearing would be limited to iden- the last several years the Land Board has Hawaiian Home Lands, the University of tifying traditional and customary rights prac- denied a contested case hearing “when the law Hawai‘i, and the City and County of Hono- ticed in the permit area, the extent to which clearly requires it.” lulu have proposed lowering the berm to such rights may be affected by the permit, and “In this case, you have multiple practitio- increase the gulch’s drainage capacity, which what feasible, protective actions, if any, should ners engaged in traditional and customary will allow them to develop lands currently be taken. practices. This board has conducted two con- used or slated for retention basins. In March, Lemmo recommended that the Land tested case hearings already regarding dis- the Land Board approved a Conservation Board defer making a decision on the con- charges in this area; the first went to the District Use Permit for the project, despite tested case hearing and hold a discretionary Supreme Court,” he said. testimony from native Hawaiian cultural hearing. Frankel cited a peer-reviewed study on the practitioners Michael Kumukauoha Lee and Although Lee thought the idea of a discre- harmful effects stormwater runoff has on Henry Chang Wo that losing even a portion tionary hearing was brilliant, since it might ‘Ewa Beach’s native algae abundance and of the berm could harm the famed native save the department the expense of contested diversity. limu beds of ‘Ewa. Chang Wo, represented case and/or court hearings, he argued that “Your staff clearly hasn’t read it. You need by the Native Hawaiian Legal Corporation, there is no question he would have standing in this kind of information before making a and Lee requested a contested case hearing. a contested case hearing. decision,” he said. At the board’s September 14 meeting, He pointed out that he was granted stand- Frankel also opposed holding a discretion- Department of Land and Natural Resources’ ing in a related contested case in 2008. ary hearing, noting that the DLNR’s rules Office of Conservation and Coastal Lands “I’ve already done this dance,” Lee said. establish no standards for such hearings. administrator Sam Lemmo first noted that in To NHLC attorney David Frankel, the “They’re unappealable,” he complained. making its March decision, the Land Board deputy attorney general’s advice to the OCCL Frankel, Haseko attorney Yvonne Izu, and failed to make specific findings regarding that a contested case hearing was not required the University of Hawai‘i attorney Lisa Bail traditional and customary native Hawaiian in this case was “a really radical, new position.” all said they thought the discretionary hearing rights as required by a 2000 Hawai‘i Supreme “It sets back law in the state 30 years,” he could be a waste of time. Court decision, Ka Pa‘akai O Ka ‘Aina v. said. “The agency is telling you when tradi- If, after the discretionary hearing, Lee and Land Use Commission. tional and customary practices are involved .... Chang Wo are still able to get a contested case Lemmo gave the board two options: either no contested case hearing is required and the hearing, “we might be duplicating some ef- fort here,” Izu told the board. A discretionary hearing would take a mini- thorized well use may be having on the mum of six months to complete, Lemmo Finally, Some Movement quality of water in the DHHL’s wells, Ice said. The Water Commission has refrained from points out that the company is pumping far “If you think the court’s just going to laugh taking action against MPL because some 30 less than what was originally authorized. At at you and say do a contested case hearing, residences rely on water from Well 17, says the same time, the DHHL and the County of that’s fine. ... We’re not necessarily going to commission staffer Charley Ice. Maui are pumping more water than they are agree there’s a right [to one],” Lemmo told the “It’s a public health issue,” he says, adding allowed by their water use permits. board. that his office has informed the ranch that it Ice says neither is taking steps to spread out Big Island Land Board member Robert needs to file a new water use permit. their pumping to prevent saltwater intrusion. Pacheco said he was concerned about Ice says the ranch’s new CEO, Clay “Their own concerns have not been ob- Lemmo’s recommendation to give Chang Rumbaoa, recently told him that the company served. Their wells are too close together. Wo and Lee standing in a discretionary hear- has completed an environmental assessment They’ve expressed concern about upconing ing, but not in a contested case hearing. to continue its use of the DOA’s irrigation [of salt water into the wells],” Ice says of the “What’s the difference there, really?” he system. Rumbaoa also told Ice the company DHHL. “We’ve seen a little bit of rise with asked. has hired a consultant to file a new water use the salinity, but well within secondary EPA “[The discretionary hearing] is a fact-find- permit application for Well 17. guidelines. We have put them on notice. ing tool to gather information for the board to “We’re waiting with bated breath,” Ice says. We cannot entertain their request for addi- make findings regarding the Ka Pa‘akai analy- With regard to the concerns the NHLC has tional water until they relieve pressure on sis. The standing issue is a whole separate raised about the potential effect MPL’s unau- the location.” — T.D. issue,” said deputy attorney general Linda Page 10 ■ Environment Hawai‘i ■ October 2012

Chow. (Ka Pa‘akai strengthened the respon- that have a right to a contested case hearing. know, even though we cannot monitor, when sibilities of state agencies to protect cultural Our system of government is not so one-sided we get knowledge, we need to take action. rights.) as that,” Frankel said. “Native Hawaiians prac- [Some feel] once they’re in, they’re in. ... “It sounds like the quickest way to decision ticing traditional and customary rights have a That’s something that’s partially devastating making is to deny a contested case hearing,” right to a contested case hearing.” this division,” he said, adding that the division O‘ahu Land Board member John Morgan After an executive session, the Land Board may allow the three other kayak permits to said. But after discussing legal issues in execu- unanimously approved the Land Division’s expire at the end of the year so the department tive session, the board unanimously approved recommendation to deny Blake’s contested can work on a comprehensive solution to a motion by Morgan to approve both con- case hearing request. overuse of the park. tested case hearing requests. “The substantive issues are different,” said Attorney Bob Frame, representing Hawai‘i board member John Morgan before the vote. Pack and Paddle, asked for a deferral to “sort Hapa Road out all the factors surrounding this.” The Frankel’s arguments that the Land Board company’s position is it had no choice but to must grant a contested case hearing to those deviate from the trail “because of the actions of whose rights to exercise their traditional and Kayak Company Loses their client,” he said. customary practices are affected by a project Kealakekua Bay Permit Leaving the designated area was “some- failed to sway the Land Board in a separate thing out of the norm for this company and item on its decision in January to grant an n September 14, the Land Board re- something they argued against,” Frame said. easement to the Eric A. Knudsen Trust over a Ovoked the landing permit for Hawai‘i Big Island Land Board member Robert road in Poipu, Kaua‘i. Pack and Paddle, LLC. The action against the Pacheco asked how the teens knew the tide The trust wanted the easement across the Big Island company follows an incident on pools were worth seeing. historic Hapa Road — a popular hiking trail July 4, when a teenager on a company tour was “I can’t answer that,” Frame said. — to provide highway access to its Villages at swept by waves into Kealakekua Bay. His Pacheco moved to approve Cottrell’s rec- Po‘ipu subdivision. Frankel’s client, Theodore body was never recovered. ommendation to terminate the permit, but Blake, opposed the easement, claiming that The company was one of only four com- offered Hawai‘i Pack and Paddle the opportu- providing vehicular access across the trail mercial kayak tour companies to receive a nity to request reconsideration no later than would adversely affect Blake’s traditional and revocable permit in 2006 to land and launch the Land Board’s first meeting in October. customary practices, as well as his recreational, tours at Ka‘awaloa Flats in Kealakekua Bay At-large board member David Goode historic preservation, and environmental in- Historical Park. The permits were an attempt added that it was important the company stop terests. Blake testified to the Land Board that to control overuse of the park and included conducting tours immediately. he had hoped to restore the trail’s rock walls. several conditions to protect its sensitive cul- “Staff said they don’t have the resources to In a report to the Land Board, the DLNR’s tural and natural resources, as well as public enforce [and] we have to trust. It’s clear that Land Division included an analysis provided safety. trust has been broken,” he said. by the Department of the Attorney General of On the day of the incident, the company The board unanimously approved why Blake was not entitled to a contested case violated three of those permit conditions. Its Pacheco’s motion. hearing. The report stated that Blake had not tour group exceeded the number allowed on a identified any property interest that would single trip; the group spent more time at the rise to the level of an entitlement and that the flats than is allowed, and, most importantly, it easement did not affect his rights, duties or strayed about a quarter mile from the desig- Board Fines Owners privileges. nated hiking area. Of Ha‘ena Vacation Rentals DLNR Land Division administrator Under the permits, guided tourists are Russell Tsuji suggested that the recent Hawai‘i allowed to land at Ali‘i Point, traverse a trail to f you believe everything on the internet is Supreme Court decision that found that the Captain Cook monument, then leave. On Itrue, Elvis is alive and Obama was born in kuleana landowners and native Hawaiian July 4, however, some members of a mainland Kenya,” attorney Randy Vitousek told the cultural practitioners in West Maui were en- group of teens hiked to tide pools near the Land Board at its September 14 meeting. That titled to a contested case hearing on interim ocean’s edge, where two boys were washed day, Vitousek disputed the DLNR Office of instream flow standards did not apply in this away by a strong south swell. A Pack and Conservation and Coastal Lands’ use of case. Paddle guide managed to rescue one of them. internet site postings as proof that his clients “In the ‘Iao water case, people were kuleana The other, Tyler Madoff, is presumed dead. are operating vacation rentals illegally in landowners, asserting kuleana water rights. O‘ahu Land Board member John Morgan Ha‘ena, Kaua‘i. That’s separate and apart from native Hawai- asked whether flouting permit conditions is a Vitousek represents Gary, Paraluman, ians for traditional and customary uses. ... regular occurrence among the Kealakekua Ligaya and Apolonia Stice, who own a prop- That’s more similar to interest in aesthetics. ... Bay kayak operators, or was a “one-off kind of erty advertised on the Vacation Rental by It doesn’t rise to a property interest,” he said. thing.” Owner website as “Kahelelani,” and David “We obviously disagree with your analy- Because the parks division relies solely on Kuraoka, whose “Makana Lani” home is also sis,” Frankel said, noting that the court’s the honor system at Kealakekua Bay, State advertised on the same site. The OCCL rec- findings in the Maui water case did not rely Parks assistant administrator Curt Cottrell ommended fining the Stices $15,000 and solely on property ownership, but included said he couldn’t say. Kuraoka the same amount. $15,000 is the people engaged in traditional and customary Cottrell added that while some of the vio- maximum allowable penalty for a single Con- practices. lations seemed minor, his division wanted to servation District violation. “It’s not a one-way street [where] the send a message: The Stices were part of a group who re- landed, rich and powerful are the only ones “Our [revocable permit] holders need to ceived cease and desist orders from the OCCL October 2012 ■ Environment Hawai‘i ■ Page 11 in 2007 to stop using their homes in Ha‘ena the structure. It’s very dangerous from my as vacation rentals because their Conserva- perspective,” he said. tion District Use Permits include conditions Lemmo admitted that removing the bags prohibiting such use. The Stices, among oth- Kahala Erosion Control will result in some erosion of the sand bank ers, sought a deviation from those permit Must Be Removed and landscaping on the property, but ar- conditions, but were denied. They then gued that the house, some 70-80 feet inland, sought a contested case hearing, but later Kahala beachfront corporate landowner will not be threatened. withdrew their request. Ahas requested a contested case hearing “The property owner would likely suffer “Despite this, [Gary] Stice continues to over the Land Board’s decision last month to some loss of land, but everybody else in the use his single family residence as a vacation require the removal of an erosion control state is suffering from the same problem, rental,” OCCL administrator Sam Lemmo structure fronting its property. sand erosion. They don’t have the right to told the Land Board. The sand-filled bags made of biodegrad- armor the shoreline at the expense of pub- Kuraoka was not part of the group that able coconut fiber were meant to be a tempo- lic,” he said. sought permit deviations in 2007. However, rary measure, but three years after installation, Attorney Greg Kugle, representing 4615 Lemmo said, he received a CDUP in 2006 to the landowner — 4615 Kahala Ave. Corp. — Kahala Ave. Corp., argued that if the shore- build a single-family residence with the ex- has made no attempt at a long-term solution, line is allowed to erode, about a dozen 100- press condition against vacation rentals. according to Sam Lemmo, administrator for foot tall coconut trees and a hollow tile wall “His attorney said his client would comply the DLNR’s Office of Conservation and on the property’s edge will end up on the with all of the conditions,” Lemmo said. “My Coastal Lands. beach. (4615 Kahala Ave. Corp. is a com- point is to highlight the willfulness.” His office should never have approved a pany owned by the Honolulu consulate of In both cases, Lemmo said he had a lot of minor permit for the bags, which are now the Republic of San Marino, a tiny, land- evidence, including Trip Advisor reviews, posing a hazard to the public and are impeding locked country in northern Italy.) that the properties were being used as vaca- lateral access, he told the Land Board at its Contrary to Lemmo’s claim that the tion rentals. September 14 meeting. But because his office beach would eventually stabilize after some Vitousek requested a contested case hear- had forced the corporation in 2009 to remove initial erosion, Kugle argued, “Our prop- ing for both cases. hau and naupaka from the beach fronting its erty will fall into the ocean significantly. “Lemmo uses ‘evidence’ a little bit loosely. property, it allowed the bags to go in as a [Erosion] doesn’t yet jeopardize the house, Printouts from internet? ... It proves some- temporary stabilization measure until a long- but it will.” body advertised something. ... You haven’t term solution could be found. Kugle also argued that a nearby drainage authenticated who downloaded this, where it But the office has received complaints about pipe owned by the City and County of came from,” Vitousek said. the bag pile, which, Lemmo contends, is being Honolulu is somehow taking sand from the “Are you denying they’re renting it out,” maintained by the landowner rather than beach and transporting it offshore. Big Island Land Board member Robert being allowed to degrade. As a result, it’s Kugle said his client would be willing to Pacheco asked. causing erosion, in addition to threatening contribute funds toward a beach nourish- “I’m denying it’s a violation,” Vitousek public safety, he told the board. ment project but not unless or until the replied. “People have to walk over or at the base of impacts of the pipe were mitigated first. Pressing the issue, at-large board member David Goode warned Vitousek, “I’m going to make a reservation tonight when I get home.” Lemmo assured board members that his evidence consisted of more than just internet research and included interviews with people. subscribe “We’re not a court of law. I’m comfortable Sign me up for a new renewal subscription at the moving forward. I can’t believe there are individual ($65) non-profits, libraries ($100) some hackers up there putting this on the corporations ($130) economic downturn ($40) internet to get somebody in trouble,” Pacheco I wish to make a onetime donation of $ . said. (Fill out form below; minimum amount is $10 a month) “For whatever it’s worth, I’m looking at it right here. I’m about to press send,” Goode To charge by phone, call toll free: 1-877-934-0130 told Vitousek while holding up his smart For credit card payments: VISA or MC phone’s screen showing the reservation site Account No.: Exp. Date: for Kahelelani. Subscription Payment: $ One-time donation: $ Monthly authorization: $ Phone No.: (expires after 12 months) “Quite frankly I’m up for a maximum Signature of account holder fine. And if you lose [the contested case], you name Mail form to: cover our costs,” Goode said. address Environment Hawai‘i The board unanimously approved 72 Kapi‘olani Street city, state, zip code Lemmo’s recommendations, which included Hilo, HI 96720 the fine, as well as a requirement that the Give us your email address and we’ll sign you up for online access to our extensive archive of past issues. Stices and Kuraoka submit proof within 60 days that they have ceased using their proper- We are a 501(c)(3) organization. All donations are tax-deductible to the extent allowed by law. ties as vacation rentals. Page 12 ■ Environment Hawai‘i ■ October 2012 Non-Profit Organization 72 Kapi‘olani Street U.S. Postage Hilo, Hawai‘i 96720 PAID Permit No. 208 Honolulu, HI Address Service Requested

Printed on recycled paper Mahalo! A Shout-Out to Our Many Friends s many of you know, in August Environment Hawai‘i held its first fund-raising event in many years. We want to thank everyone who made Athe evening such a brilliant success, as well as everyone else who has supported us with a donation (or two, or three, or more) over the last several months. To our benefactors: We are keenly aware of the many worthy organizations that compete for your disposable income, and we are humbled by your election to support us. Thank you so very much to all of the following, as well as several donors who do not wish to be acknowledged publicly: Doug Adams & Deb Lewis Pam Frierson Robert Knourek Thane Pratt Keary Adamson/ Bill Gilmartin Anne Kobsa Peggy Ratliff Coconut Island Massage Bill Graham Julie Leialoha Bo & Mercia Reipurth Aiona Island Realty Gretchen Grove Thomas Loudat Ursula Retherford Paul & Tanya Alston Donald Hall Cathy Lowder Shaunagh Robbins Eve Anderson Kathleen Harrison Amy Luersen Noelie Rodrigues & Chris Yuen Denise Antolini Pat Hart Donna Lum Kayla Rosenfeld Apono Hawai‘i Barbara Hastings & Robert Masuda Russell Ruderman/ Paul Banko Mike Middlesworth Mike Matsukawa Island Naturals Tony Barnhart/Far-Flung Agility Christina Heliker Colbert Matsumoto Gordon Russell Big Island Candies Emily Herb/‘Apapane Pottery T.J. McAniff Dave Smith Big Island Delights Steve Hess Doug Meller Spencer Health & Fitness Leonard Bisel Shannon Hickey/ Paula & William Merwin Richard Spiegel/ Pam Bunn High Fire Hawai‘i Patricia & Richard Missler Volcano Island Honey George Cattermole Stephen Hight Art Mori Laura & John Suehr Debbie Chang Kim Hoffman Stephanie Nagata Julia & Eugene Tao Lisa & Mac Cooper Susan & Robert Irvine Jay Nelson Arlene & Ron Terry Sandra Dawson Jack Jeffrey Susan O’Connor Laura Thompson Teresa Dawson Carol & Mark Johnson Steve & Christina Olive Mabel Trafford & Steve Miller Laurel Douglass Ed Johnston & Helen Rogers Becky Ostertag Gordon Tribble Kay & Leo Drey Michael Jones Rob Pacheco/ Patricia Tummons Anne Earhart Beverly Keever Hawai‘i Forest & Trail Peter Uehara David Frankel Vheissu Keffer Elliott Parsons W.A. Gerbode Foundation Suzanne Frayser Amy Kimura Steve Pickering Sally Wang Rick Warshauer Karen White “We have retained experts; we are study- He also assured the board members that Carol Wilcox ing the effects of the pipe,” he said. should erosion ever threaten the house, the Winning Orchids Lemmo disputed Kugle’s claim that the company can apply for an emergency autho- Robert Wintner/Snorkel Bob Susie Yong pipe is causing erosion, telling the board rization to install erosion control measures. Alan Young earlier, “This is just not the case, flat out. If In the end, the board ordered the removal Sharon Ziegler-Chong you look at shoreline recession maps by of the erosion control measures within 60 [coastal geologist Chip] Fletcher at UH, you days. Removal would basically involve dig- would see some erosion signature. It’s not ging the bags up and slicing them open. there. It’s a total red herring.” — Teresa Dawson