MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, JANUARY 12,2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Peter Young called the meeting ofthe Board ofLand and Natural Resources to order at 9:05 a.m. The following were in attendance:
MEMBERS
Mr. Peter Young Mr. Tim Johns Mr. Ron Agor Mr. Jerry Edlao Mr. Samuel Gon III Ms. Taryn Schuman STAFF
Ms. Charlene Unoki, Land Mr. Sam Lemmo, OCCL Mr. Dan Quinn, State Parks Mr. Paul Conry, DOFAW Ms. Jennifer Bethel Ms. Tiger Mills, OCCL Mr. Russell Tsuji, Land Mr. Dan Polhemus, DAR Mr. Gavin Chun, Land Mr. Dolan Eversole, OCCL Mr. Blaine Rogers, DAR OTHERS
{Note: language for deletion is [bracketed], new/added is underlined}
Item A-I Minutes of December 8, 2006
Unanimously approved as submitted (Johns, Agor)
Item D-l Consent to Mortgage and Extension of Lease Term; General Lease No. S-4476, Freddy Nobriga Euterprises, Inc., Lessee; Withdrawal from General Lease No. S-4476; Set Aside to the Department of Land and Natural Resources, Division ofForestry and Wildlife for Forest Reserve, Wildlife Preservation and Related Purposes; and Issuance of Management and Construction Right-of-Entry Permit to the Division of Forestry and Wildlife at Piihonua, South Hilo, Hawaii, TMK: (3) 2 6-18:01 (HDLOIWesley) Mr. Russell Tsuji, Administrator for the Land Division, reported that the Division of Forestry and Wildlife (DOFAW) submitted a late amendment that was circulated to the Board earlier this morning. The first amendment is to make it clear that the purpose of the set aside is to add to the Hilo Forest Reserve and to add to the recommendation section, items 6 and 7.
Mr. Nobriga was present.
Member Edlao asked Mr. Tsuji to define cattle eradication as stated in the discussion section ofthe submittal.
Mr. Tsuji wished to defer to Forestry.
Chairperson Young responded that hunters are allowed to enter certainareas for such purposes. Ifthis doesn't work, DLNR will look for a different eradication program.
Mr. Paul Comy, Administrator for the Division ofForestry and Wildlife, stated that this particular area is open to the forest reserve and public hunting.
Walter Schoettle, attorney for Mr. Nobriga, reported that there are 3 amendments they wish to make. The first is on page 3, under Applicant Requirements, item 2, states "Provide survey maps and descriptions according to State DAGS standards and at Applicant's own cost." Mr. Schoettle believes that when this was worked out with Wes, the applicant refers to the Division of Forestry and Wildlife, not Nobriga Enterprises. Page 9, paragraph 3c and page la, paragraph C, states that the surveying and subdivision will be at Forestry's expense.
Mr. Comy confirmed that this was the intent.
Chairman Young stated that page 3 should be amended to say "DOFAW", instead of "Applicant", for clarity.
The second amendment Mr. Schoettle wished to make was the aligmuent ofthe boundary. He stated that there was a verbal agreement between himself, Roger, and Wes, on the alignment ofthe boundary, as seen in a map distributed to the Board, but it has not yet been finalized in writing. Mr. Johns mentions that the alignment can be approved by the Board subject to finalization by the Chair. The third amendment is an agreement for a buffer that Forestry will maintain on their side ofthe fence so that trees will not fall on the fence line. This is to ensure that the cattle remain out ofthe forest reserve area.
The Board: 1. Amend the purpose ofthe set aside
"...Set aside 1,500 acres to the Department of Land and Natural Resources, Division ofForestry and Wildlife (DOFAW) [fal' f(west FeSeR'e, wildlife pl'esel'VlltioH IlHtll'ellltetl pUl'poses) addition to the Hilo Forest Reserve."
2 2. Add the following RECOMMENDATIONS:
"6. Authorize the Division of Forestry and Wildlife to conduct a public hearing to add portions of Tax Map Key parcel (3) 2-6-018:001 as detailed above at Piihonua, Hawaii, to the State Forest Reserve System, under provisions of HRS &183-11, Government Land for Forest Reserves and &183-12, Notice of Hearing.
7. Authorize the Chairperson to set the date and time for a public hearing and appointment of a Hearing Master."
3. Amend Applicant Requirements for DOFAW, Condition No.2
"2. Provide survey maps and descriptions according to State DAGS standards and at [Applicant's] DOFAW's own cost..."
4. Authorize the Chairperson to work with Freddy Nobriga Enterprises, Inc. as proposed by Mr. Walter R. Schoettle's letter dated January 3, 2007 to finalize the boundary alignment.
Unanimously approved as amended (Johns, Schuman)
Item D-2 Termination of Term, Non-Exclusive Surface Grant of Easement No. 4227; Issuance of New Grant of Term, Non-Exclusive Surface Easement to KBH, Inc., Kahaluu, North Kona, Hawaii, TMK: (3) 7-8 13:042 (HDLOlWesley)
Mr. Tsuji reported that Staffhad no changes to the submittal.
Jamae Kawauchi, attorney for KBH, and Joseph Spencer, a representative from KBH, were present. Ms. Kawauchi reported they have no problems with the submittal.
Unanimously approved as submitted (Agor, Schuman) ltemD-5 Rescind Prior Board Action of October 24, 2003, Agenda Item D-20, Grant of 55-year Term, Non-Exclusive Easement to Michael A. Pietsch and Judy B. Pietsch for Seawall Purposes, Wailupe, Honolulu, Oahu, TMK: (1) 3-6-01:22, seaward. (ODLO/AI)
Mr. Tsuji reported that after discussions with the DAGS surveyor, it was determined that an easement was not necessary.
Applicant agreed with Staff's submittal.
Unanimously approved as submitted (Schuman, Gon)
3 ltemD-4 Amendment to Prior Board Action ofSeptember 28, 2001, Agenda Item D-17, Grant ofPerpetual, Non-Exclusive Easement to R.R. Midkiff Luakaha Family Limited Partnershiip and Elizabeth Midkiff Myers, Trustee Under that Certain Unrecorded Revocable Trust of Elizabeth Midkiff Myers, dated April 24, 1989, as Amended for Waterline, Reservoir and Fire Pump Station Purposes at Nuuanu, Oahu, TMK: (1) 1-9-07:02 por. (serving TMK: (1) 2-2-55:12). (ODLO/AI)
Mr. Tsuji reported that Staffhad no changes to the submittal.
Robert Cunningham, representative ofthe applicant, agreed with Staffs submittal.
Unanimously approved as submitted (Johns, Schuman)
Item D-6 Consent to Mortgage and Extension ofLease Term, General Lease No. S-3776, Claudia M. Chaille, Angela Chaille Meixell, Timothy Meixell, Lessee, Waimanalo, Koolaupoko, Oahu, TMK: (1) 4-1-27:12 (ODLO/Robert)
Applicant agreed with Staffs recommendation.
Unanimously approved as submitted (Johns, Edlao)
Item D-7 Sale of Reclaimed Land to Erich J. Wida and Catherine D. Wida, Kaneohe, Oahu, TMk: 4-4-37:05, seaward. (ODLO/AI)
Mr. Tsuji reported that Staffhad no changes to the submittal.
The applicant agreed with Staffs submittal.
Unanimously approved as submitted (Johns, Edlao)
Item K-l Conservation District Enforcement File No. MA 06-80 for Unauthorized Clearing ofLand, Unauthorized Residential Use, Possible Disruption ofArchaeological Sites Located at Honolua Bay, Kaanapali, Maui, TMK: (2) 4-1-001: 007, 008, 010 and 019
Mr. Sam Lemmo, administrator for the Office of Conservation and Coastal Lands, reported that this enforcement case is about unauthorized land clearing, unauthorized commercial uses, unauthorized residential use, and possible disruption ofarcheological sites. The alleged is Mr. Narciso "Jimmy" BiIIianor. Mr. Lemmo gave some background information on the situation. He reports that this began in June 2006 when they received complaints that there had been some clearing done at Honolua Bay. The area was investigated and it appeared that parcel 7 was cleared and a camp erected in which Mr.
4 Billianor was believed to be the occupant. In parcel 8, there was evidence that a stream had been diverted and in parcels 10 and 19 there was evidence ofportable toilets and signs posted asking visitors to donate $3.00 to enter the area. On July 20, 2006, Staff issued a cease and desist order to Mr. Billianor for alleged clearing ofland, unauthorized commercial uses, possible destruction ofarcheological sites and an establishment ofa semi-permanent camp. The notice was delivered to him on July 24, 2006. Staff continued to receive complaints so a site visit was conducted on September 25, 2006 with representatives from DOCARE, Historic Preservation, and Maui Land and Pineapple. In October, Staffsent a notice to Mr. Billianor stating that he was under formal investigation for several violations. Notices were sent out to other Honolua Bay owners that there were problems in the area. Staffcontinued to receive complaints about harassment and people demanding admission to enter the Bay. It was reported that the port-a-potties and donation signs had been removed, but the camp infrastructure remains. Currently, Mr. Lemmo is unaware ofthe current condition ofthe land. During the site visit, Staffwas unable to see the entire area because the family request that the area not be assessed. A request has been made for the State Historic Preservation Division to conduct a damage assessment ofthe area concerning the disruption ofarcheological sites and burial mounds. The issue offishing in a marine life conservation district will be referred to the Division ofAquatic Resources. Staffis asking for the Board to impose a $2,000 fine per day on Mr. Billianor, from July 24, 2006 up until present, creating a total fine of $231,350, which includes some administrative fees. They are also asking Mr. Billianor to immediately clear the camp and in the event that he does not comply with the current order Mr. Billianor would again be issued a fine of$2,000 per day.
Chairperson Young inquired ifthe daily fine has been computed up to today. Mr. Lemmo responded that it should be. Chairperson Young also asked ifMr. Lemmo knew the status ofthe area as oftoday. Mr. Lemmo responded that he did not, but he has been verbally told by a DLNR Maui employee that the camp was still there as ofa few days ago.
Mr. Billianor, reported that originally the property was his mothers, and on behalfofhis family, he is the caretaker ofthe property. The property has already been abused and the grave sites already ruined from people walking around on the property and using it as a bathroom. He and his family returned to the Bay after receiving a call informing him that Maui Land and Pineapple had bulldozed part ofthe property. He notified DLNR and Officer Stan came down to look at the area and took pictures and measured the trees that were cut. Mr. Billianor wants to know why Maui Land and Pineapple is not being involved in this enforcement case and how DLNR got involved with Honolua Bay. He reported that none ofthe families were notified that the area was going to be turned over to the Conservation District.
Mr. Norman Abihai, representing the Kingdom ofHawaii, questioned whether DLNR had jurisdiction and title. Chairperson Young responded that DLNR regulates the uses in the Conservation District, irrespective ofownership, therefore who ever does a land use without a permit is subject to a violation. Mr. Abihai responded that DLNR has been served papers and they have 7 days to respond to the notice. Chairperson Young
5 responded that it will be referred to the Attorney General's office. Mr. Abihai questioned what right DLNR has to charge Mr. Billianor $200,000 ifthey don't have title of jurisdiction. He stated that ifDLNR is going to impose any fines, they are going to have to take them to court.
Chairman Young informed Mr. Abihai that in cases such as this, there is an opportunity to request a contested case hearing, which follows a more judicial format where there is a hearing officer. To do so though, it must be requested at this meeting and then followed up in writing within 10 days.
Mr. Abihai and Mr. Billianor both requested a contested case hearing.
Mr. Billianor's daughter wished to clarify some ofthe claims that Mr. Lemmo made earlier. She state the reason why they were not allowed on to the property is because she is a minor. There was no adult on the property that day. She also asked them ifa letter was sent notifying the family that they were going to come. She stated that they had no notification that they were under investigation, no notification that Staffwas going to come down and do any kind ofsurvey. She told them not to return until an adult was present or notification given. They decided not to listen and disregarded what she said. She views this as trespassing onto their property.
Chairman Young asked Mr. Lemmo how the notices ofJuly 20, 2006 and October 5, 2006 were delivered to the family. Mr. Lemmo responded that they were both hand delivered.
Another family member ofMr. Billianor reported that Honolua Bay was passed down to her family (estimated about 300 members) through Princess Pauahi, her great-great grandmother. Chairperson Young responded that no one is questioning ownership ofthe land. She stated that all she wants is for us to get offthe land and leave her family alone. She feels that what they do with their land is their kuliana. Chairman Young responded that all ofthese issues will be addressed during the contested case hearing.
Defer to contested case
Item K-2 Conservation District Enforcement File No. KA 06-72 Regarding Alleged Unauthorized Construction of a Chain Link Fence Within the Conservation District Wainiha, Hanalei, Kauai, TMK: (4) 5-8-009:025
Mr. Lemmo reported that this enforcement case is about an unauthorized chain link fence built in the conservation district by the land owner, Mr. David Smith. The owner was served with a notice and order on June 26, 2006. Staffis seeking resolution for this issue which would include removal ofthe fence. This would be consistent with their policy on no tolerance for any kind of shoreline structure built after 1999. Mr. Smith can apply for a permit either with OCCL or the county after the original fence has been taking down. This has nothing to do with the appropriateness ofthe fence; it has to do with the law. There was no permit, therefore there is a violation. There was a document submitted by
6 Bernard Bays on behalfofMr. Smith which explains that the property has been suffering from number ofpublic safety issues Le. trespassing, misuse oftheir property, threats, etc. According to the land owner, the fence was erected as a last resort. The land owner is asking the Board to dismiss the violation and so that he can then apply for a temporary variance. This would allow vegetation to grow in to create a buffer between the property and public beach, at which time the structure would be removed. Staffis seeking the Boards support in the removal ofthe fence and is also seeking a $2,000 fine because the fence was not removed and they had asked Mr. Smith for his cooperation. There is also some administration costs included. Staffis recommending a total fine of$2,200, removal ofthe fence within 30 days, and a follow up site visit to ensure that the fence was removed.
Mr. Bernie Bays, attorney for Mr. Smith, described the circumstances that led up to the construction ofthe fence. He provided the Board with additional photos. Mr. Bays stated that Mr. Smith did not want the fence. He built it as a last resort to protect his tenants, guests, and overall property from repeated acts oftrespassing, theft, property damage (estimating $20,000), threats ofviolence made to his tenants and guests, and the dangerous operation ofATVs on the property. Mr. Smith built the fence on his own property, out ofthe conservation district, only as a temporary, emergency measure to give the vegetation an opportunity to grow back, without the interference offoot and ATV traffic. When Mr. Smith bought the property, it was covered with dense vegetation, but construction activities destroyed much ofthe shoreline vegetation. The rest was destroyed by foot and ATV traffic along with the intentional uprooting ofthe vegetation. Mr. Smith's original reaction to the public safety issues was to repeatedly call the police and to post no-trespassing signs on the property; however, these signs were stolen. The police eventually told him that they cannot protect this property. Mr. Bays provided pictures ofneighboring properties that shows a dense vegetation line, a fence, or both.
Board Member Johns wondered ifit would be easier for Mr. Smith to just pay the fine, remove the fence and then put in an application and wait to see ifit is accepted. Mr. Bays wished to continue on with the provided exhibits because there is a question about whether the proposed violation actually took place in the conservation district.
Mr. Bays reported that there is a public right-of-way, approximately 6 feet in width between Mr. Smith's property and the adjoining YMCA property. The YMCA built the fence around their property 2-3 years ago which appears to be mauka ofthe shoreline. Chairperson Young inquired ifMr. Bays is suggesting that the Board is going to evaluate where the shoreline is because he would argue that there is not enough information nor evidence present to make such a decision. Mr. Bays agreed with Chairman Young, but Mr. Smith's fence is at least 10 feet back from YMCA fence. Chairman Young asked where the conservation district is in this particular area. Mr. Bays responded that Mr. Smith's fence runs right along the boundary line, therefore it is their position that the fence lies on Mr. Smith's property, not the conservation district. The Board disagreed with Mr. Bays claim because the property line is not necessarily the conservation line. Chairman Young asked Mr. Lemmo exactly where the conservation district is in the area and ifthe parcel is zoned urban. Mr. Lemmo responded that the parcel is zoned urban
7 and is under the jurisdiction ofthe County. The State conservation district begins at the shoreline and extends in the seaward. There was a shoreline certification done in 2000, but it is no longer valid. Staffhas been out to the site and has determined that the fence does reside in the conservation area because the shoreline is more landward than the 2000 shoreline. The photos in Staffs submittal show that the debris line is much further landward than the fence.
Board Member Johns mentioned that Mr. Smith is allowed a contested case, but inquired about the best approach to this violation issue and what should have been the proper procedure in the first place. Mr. Lemmo responded that Mr. Smith should have gotten a shoreline certification that would have determined whether he needs to work with the State or the County for a permit for his shoreline structure. Board Member Johns questions why Mr. Smith wouldn't want to get a shoreline certification done now. He also agreed with Chairman Young about not being able to make a decision on where the shoreline is and that's what needs to be determined before it can be decided ifthe fence lies within the State's jurisdiction or not.
Mr. Bays suggestion is that the Board defers this matter for a year during which Mr. Smith would apply for a temporary variance for the fence and at that time, depending on Staffs and the public's reaction to it, revisit this item.
Board Member Johns asked Dolan Eversole how far mauka the shoreline is ofthe fence. Mr. Eversole responded that the fence is clearly within the shoreline area and is about 10 20 feet mauka ofthe existing fence. Based on this information, Board Member Johns questions why Mr. Smith couldn't just build his fence 20 feet back from its current position. Chairman Young believes that people could interpret that having the fence would encourage induced vegetation to establish a shoreline farther makai because the chain link fence could possibly stop the wave action. Mr. Bays responded that the pictures show that the properties on both sides ofMr. Smith's property have vegetation that is substantially makai ofthe fence. Therefore, it appears that the vegetation is naturally growing. Board Member Johns asked Mr. Eversole why the aerial photographs show the vegetation appearing to be more makai. Mr. Eversole responded that this area has been induced artificially overtime. They do not have direct evidence, but have substantial public citizen concern and evidence that this vegetation is not natural. He also wished to note that the fence would complicate the shoreline certification.
Mr. Lemmo foresees that one ofthe issues would be, even ifthey distinguished where the shoreline was, ifthey told him to build his fence behind it, they would be telling him to build it in the County jurisdiction. Mr. Lemmo is unsure ofwhat the County process is and is unsure ifthey would even permit the fence. Mr. Lemmo also states that if OCCL was to process the permit, he would be unsure whether they would be comfortable with that because ofpublic access issues that may arise.
Mr. Bays stressed that the fence is built mauka ofthe last certified shoreline. Chairman Young pointed out that certified shorelines are only good for one year. He also asked Mr.
8 Bays how far the fence is from the house. Mr. Smith answered that it is about 80 feet away.
Mr. Johns asked Mr. Lemmo whether Staffhas done any recent shoreline certifications in the area and ifso, was that taken into account when making the determination for this fence. Mr. Lemmo responded that Staffhas been assisting Land and Survey over the past year doing certifications and this information was taken into account when making the determination.
In regards to the requested temporary variance, Chairman Young responded that a provision in the rules calls for the Board to determine that no reasonable and prudent alternative promotes the public interest as well as the proposed land use. Therefore, he questioned ifthere were any alternatives, knowing that the fence is built approximately 80 feet from the house. Mr. Bays admitted that the fence could have been built 10 feet back, meaning there is an alternative.
Mr. Smith states that he wouldn't mind moving the fence back; however, because he is an off-island owner, there has been a lot ofpotentially deliberate disruption ofthe shoreline on his property. He believes that this is the only protection he has from the trucks and 4 wheelers tearing through his property, using it as a short cut to get to Kuhio Highway.
Mr. Bays again requested that this matter be defen'ed and ifit is not possible, then they would ask for a contested case hearing.
Virginia Baldwin, property manager for Mr. Smith, reported that it was her concern for the safety ofchildren that she went to Mr. Smith and requested something be done. She did not want the liability ofhaving a child hurt on this propelty. Mr. Smith told her that he was very frustrated because he had spoken to the county about getting a fence, but was told that he was not going to get a permit for it. Board member Agor inquired about what the county said when Mr. Smith went to see them. Mr. Smith responded that he was told he couldn't build anything within 40 feet ofthe shoreline. He then asked ifhe could get a variance because other properties had fences within that area. No one mentioned to him that he could build behind the 40 foot shoreline. Board member Johns clarified with Board member Agor that Mr. Smith could build his fence 40 feet from the shoreline, in this case 40 feet from the house. Board member Agor agreed. Ms. Baldwin also mentioned that they have witnessed people intentionally removing the vegetation. Since the fence was built, it has alleviated the situation.
Caren Diamond reported that the entire beach front in this area was planted; most ofif planted in 2001 and has encroached 30-40 feet ofsandy beach. She believes it is inappropriate to take a pristine shoreline and plant it to make it blend in with the other properties. She also mentions that this house was originally part ofa 3 house subdivision. As a requirement, these houses had to be set back 80 feet from the shoreline; therefore, at the time ofbuilding, the County waived a shoreline certification. The 1995 shoreline was used so that these 3 houses could be constructed fitting that 80 feet. When these houses were finished, a temporary construction fence was put up and acts as a good
9 measure in this case because it kept getting washed out by the waves and would end up near someone's house, 80 feet in. Ms. Diamond used pictures as evidence for this as well to show that when the houses were done and the landscaping began, the subdivision also had a requirement that the ironwood trees were not to be removed. She assumes, based on previous knowledge that nothing really grows beneath ironwood trees, therefore, there really wasn't much vegetation before. She claims that irrigation pipes were put in and naupaka planted across the front. The County issued a violation notice and told them to remove the plantings and irrigation and required them to get a certified shoreline to show where they could plant and/or irrigate. They removed the irrigation, but left the plantings. There was a disagreement whether 'it was on State or County land and the County agreed to do the enforcement. They required a current shoreline certification before granting any permits to do more planting. Ms. Diamond state, while the landowner may feel safer with the fence, the community is not. The water has washed up to this fence everyday for the last month. There is no access and a huge scarp and slope is left from all the plantings. The only ATV that she knows ofis the one belonging to the lifeguard who rides up and down daily. She asks the Board not to defer their decision, but to have the landowner take the fence down before someone drowns; all irrigation and naupaka to be removed immediately, and that th~ land owner follow established procedures and gets a shoreline certification, then ifhe chooses, gets a permit for the fence and puts it in the right place. Ifthe Board does not require Mr. Smith to take the fence down, she as well will be asking for a contested case hearing.
Member Johns notes that it appears that this matter will be going to a contested case hearing because ifthe Board waives condition number 4, then Ms. Diamond is requesting a contested case and ifthey don't Mr. Bays is requesting a contested case.
Gerald Shin, part owner ofthe property management team, reported that as a retired paramedic for the fire department, he sees no hazard with having the fence there. The tenants now feel safe and the criminal activity has come to a standstill. He believes that taking down the fence would have no bearing on anyone's safety. They understand that water is very rough, but there is a gate that the public can access in an emergency as well asthe 6-8 foot public access path located right next to the property. He also believes that Mr. Smith had no other recourse but to construct the temporary barrier. When questioned by Chairman Young ifhe thinks that moving the fence back would create the same effect, Mr. Shin responded that moving the fence back would still help the situation.
Mr. Smith wished to note that naupaka does grow naturally in the area, it may not be a fast grower, but it does grow beneath the ironwood trees.
The Board:
Accept Stafrs recommendation, but amend recommendation number 4
"4. The landowner shall [remove the fenee within the Conservation Distriet within thirty (30) days of the shoreline determination by Departmental Staff] have 45 days to relocate the fence where appropriate agencies allow for it;"
10 Unanimously approved as amended (Agor, Edlao)
Both Mr. Bays and Ms. Diamond requested a contested case hearing.
Item K-4 Conservation District Use Application (CDUA) OA-3372 for the City and County of Honolulu Sewer Line Replacement Located at Kaelepulu Stream, Kailua, Oahu, TMK: (1) 4-9-049:087
Applicant/representative agreed with Staffs recommendations.
Unanimously approved as submitted (Johns, Schuman)
Item K-3 Conservation District Use Application (CDUA) OA-3366 for a Single Family Residence (SFR) with Associated Improvements and Agricultural Use (Horse Barn) Located at Kokokahi, Keana, Kaneohe, Koolaupoko, Oahu, TMK: (1) 4-5-032:001
Mr. Lemmo reported that the applicant is Mr. Peter Cooper and the project is located in Kaneohe, across the street from Bay View Golf Course. In 1980, the Board approved a single family residence at this site, but the house burned down in 200I. The applicant acquired the property in September 2005 and the property is currently for sale. The applicant proposes to build a single family residence, about 4,500 square feet and a 20 foot high, 1,600 foot horse barn. The barn would support the applicant's personal equestrian needs and enable the applicant to keep no more than 3 horses on the property. The management plan for the care and maintenance ofthe horses has been submitted which includes a pasturing area ofabout 3.5 acres fenced in. The total acreage ofthe property is roughly around 56 acres so only a small portion ofthe property is set aside for this use. The pasture area would be located 40 feet away from the closest property line. This application was solicited for comments from various agencies (i.e. Historic Preservation, the County, Kokokahi Community Association) and the community (who responded mostly through letters). The applicant did respond to all comments made and based on this, OCCL issued a FONSI (a finding ofno significance impact) in December. Mr. Lemmo also wished to note a typographical error in the report on page 17, 2nd paragraph. It refers to a zoning ofR-5 under the City and County of Honolulu's jurisdiction; it should actually be R-IO (an urban land use designation). Staffis okay with the house. Mitigation measures for the house has been determined and a small pool being proposed. Staffdoes have concerns about the horse barn and pasturing, mostly due to the smell, possible run offissues, and moving in and out ofthe property with horse trailers and transporting manure. The driveway is very steep, small, and narrow and exits onto the street which is a residential area. Staffis concerned with the traffic that would be generated and the impact on the surrounding community because it is a very dense residential community. The proposed development is concentrated in the area adjacent to the residential development. While Stafffeels that the residence is justified based on previous occupation and the mitigation measures, they feel that the horse barn and pasturing may not be appropriate because ofit proximity to the other residences. Staff
II asks that the Board deny the request for the horse barn and in the recommendation section, Mr. Lemmo asked to delete the phrase "without prejudice". Chairman Young inquired that ifthe Board was to deny the barn today, could the applicant reapply without a time delay. Mr. Lemmo responded that was correct. Mr. Lemmo also wished to note that "without prejudice" means that there is some other reason for denying the permit. Chairman Young wished to clarify that the Board would be saying no to the horse barn now, but they're not saying that the applicant can't come back and apply for it again at a later time. Mr. Lemmo responded that the Chairman was correct. Staffis also asking for the Board to approve the house and the associated improvements. Member Johns inquired that ifthe FONSI also applies to the barn, then why is Staffrecommending denial. Mr. Lemmo responded that it is due to the level ofpublic concern. Mr. Lemmo mentioned that there are some conditions in the permit. One concern was the drainage issue, therefore, the applicant must do a drainage study before OCCL signs offon the construction plans for the house. There is also conditions included about historic preservation concerns; the applicant will have to work Historic Preservation Division (HPD) to determine a monitoring program to ensure that any burial or archeological sites aren't disturbed. They also are required to replace the cesspool with a septic IWIS system.
Chairman Young inquired ifthere is a denial for the agricultural use and the applicant comes back with an application at a later time, would the environmental assessment (EA) still apply? Mr. Lemmo responded that ifthe applicant is not proposing the horse barn in the same location as it is being proposed today, he would assume some changes would have to be made, either in a new EA or a supplemental EA.
Pete Cooper, applicant, reported that he understands the recommendation because he has many concerned neighbors. When he first started this process many ofthe neighbors did not like him because he was taking away a park that the community had been using for years. He does have some neighbors with legitimate concerns and he was trying to mitigate their concerns while not stopping him from using an approved use for his land. He notes that the prior house was an eyesore, but he is proposing something more user friendly, that fits into the environment. Chairman Young inquired ifMr. Cooper had any objections to Staffs recommendations about the house. Mr. Cooper responded that he had no problems with it. The biggest problem is with the barn. He believes that the last property owner had really upset the neighbors because he had transported the previous house to the property at night, messed up the telephone line, severely impacted the community, and had no concern for the traffic on the road. He has gone out ofhis way to meet with the community; he has gone to the neighborhood board 3 or 4 times and invited them all to the property.
Chairman Young asked how Mr. Cooper would feel ifthe Board acted on the house but deferred the decision on the barn to give Mr. Cooper more time to work with the community. Mr. Cooper agreed that this would be a good decision.
Mr. Johns asked ifthe neighborhood board ever took a position on this issue. Mr. Cooper responded that they have not. Chairman Young noted that it seems that the attention is
12 on the barn and maybe there is a chance that Mr. Cooper can work it out with the rest of the community. Mr. Lemmo interjected that the Board has to make a decision on the barn today. Mr. Cooper cannot request a time extension because there is no provision within the law that allows for a time extension for a CDUA. However, ifthe Board would like to allow Mr. Cooper to come back with the barn plans later, they should include the words "without prejudice" when making their motion. Chairman Young then asked Mr. Cooper, what ifhe withdrew barn from his application. Mr. Cooper responded that he didn't know what impact that would have on him as a landowner. Chairman Young clarified that the recommendation made would suggest that Mr. Cooper could always come back and their denial would not prejudice his right to come back or Mr. Cooper could always withdraw the barn component from the application. Mr. Cooper was okay with these suggestions.
Mr. Cooper requested to withdraw all pOltions ofthe application in reference to the barn.
Mr. Brian Nakatoshi testified that the proposed barn would be located directly in back of his house. The previous land owner had graded the land and now they have major erosion, coming down on to the neighboring properties.
Joseph Awa testified that his house is located directly below Mr. Cooper's property as well. He provided pictures showing the erosion from Mr. Cooper's land ending up on his property as well as his neighbor's property. While he agrees that the area looks nice, the grounds are sloping towards their property. He reported that they never had a problem with water coming down onto their property until 5-10 years ago and it's getting worse. The biggest concern he has is with the erosion and believes that the barn and grazing area will increase runoff because when the animals graze.
Chairman Young reassured the community members that because the barn has been withdrawn, no permit will be issued for it today.
Meryl Nishimura, is another ofthe neighbors who is directly affected. She inquired that if the provision for the barn is withdrawn, when Mr. Cooper applies for another permit, will the community be notified? Chairman Young responded that Staffis aware ofthe community's concern. They would also encourage comment from the neighborhood board as well. She also wondered why the barn had to be located at the edge ofthe hill. Chairman Young responded that the applicant had already suggested the possibility of relocation along with other suggestions that he had agreed to work with the community on.
Jim Tharp inquired about a wording ofa phrase in condition number 18 ofthe staffreport which says "Where any polluted run-off, interference, nuisance, or harm may be caused, or hazard established by the use..." Mr. Tharp wanted to know ifthe word "polluted" referred only to the run-off or the entire string ofwords. Chairman Young responded that in his reading ofthe sentence, "polluted" is associated with "run-off" and not any ofthe other terms. Mr. Tharp also asked for clarification on the word nuisance; whether nuisance could be construed as a continuous runoff problem. Mr. Cooper responded that
13 he wants to grade the land to change the way the water flows. Mr. Tharp mentioned that his family used to raise horses and is well aware ofthe problems caused by pasteurization. He is opposed to any application for any live stock use in the future.
One woman questioned whether the Staffsubmittal will be recorded as it is written currently with only the change from an R-5 zoning to an R-IO. Chairman Young replied the record would also reflect that there was a withdrawal on the barn, pasture, and all other related issues. She also wished for clarification on page 4, in paragraph number 3, it says that there is no existing easement. She sees this as a conflict with the second sentence ofthe next to last paragraph on page 8 which states that there is an easement for access and utilities. Chairman Young responded that the first easement is for a connection to the City's waste water system. She rebutted that the second easement is for utilities as well. Chairman Young responded that it could be referring to water and electricity. The unidentified speaker also notes that the submittal cites the tax map key (TMK) incorrectly on 8; it should be TMK: (I) 4-5-031 not TMK: (1)4-5-0341. She again asks for clarification on why a separate easement is needed for the waste water. Chairman Young responds that some easements may be for access and utilities, but may not be appropriate, in a practical sense, for waste water disposal. Waste water is a gravity issue; while water, electricity, and cable can be run uphill and still work, but waste water doesn't run uphill very well.
Dan Lucy, another adjacent property owner, agreed with the other neighbors that the concern is about runoff.
Mr. Lemmo mentioned there are conditions in the granting ofthis approval that deal with runoff (i.e. making sure that areas are vegetated and requiring a drainage study). Staffis very sensitive to the problems ofconstruction related runoff and long term runoff, therefore, Staffwill be watching closely.
Member Gon asked Mr. Lemmo ifduring the prior grading, done by the prior owner, followed a similar procedure. Mr. Lemmo responded that there was an issue about grading in the early 80s, but due to record keeping, he doesn't have a lot ofdetails on that particular case.
The Board:
Approve Staff recommendations as amended, noting the withdrawal ofthose portions ofthe application in reference to the barn and pasture area.
1. Amend Page 8, next to last paragraph:
"The R-I0 portion of the parcel is currently undeveloped and vacant. The Final EA has been revised to state that there is an easement for access and utilities over [TMK: (1) 4 iii 0341:077] TMK: (l) 4-5-031:077 in favor of the subject parcel."
14 2. Amend Page 17, 2nd paragraph:
"The subject property is part of a Condominium Property Regime (CPR), effective July 17, 2006 consisting of two units- Unit 45-020, zoned [R-S) R-10 under the City and County ofHonolulu's jurisdiction and..."
Unanimously approved as amended (Johns, Schuman)
Item F-1 Amendment to Board Resolution No. 33 - Relating to Appointment of William K.C.L. Puleloa, Public Hearing Master for the Division of Aquatic Resources.
Unanimously approved as submitted (Johns, Schuman)
Item F-2 Request for Authorization to issue one Northwestern Hawaiian Islands State Marine Refuge Research, Monitoring and Education Permit to Mr. Donald Palawski of the U.S. Fish and Wildlife Service, for Management Activities within Certain State Waters, Valid from February 1,2007 to December 21,2007.
Dan Polhemus, Administrator for the Division ofAquatic Resources (DAR), reported that F-2 is a deferral because there was a titling problem in relation to the sunshine law.
Item F-4 Enforcement Action Involving Violations ofNorthwest Hawaiian Islands Research, Monitoring, and Education Permit # DLNR.NWHI06R008 by Dr. Greta Aeby of the Hawai'i Institute of Marine Biology.
Mr. Polhemus is requesting a deferral because there was request for a continuance for more time to respond to this matter.
A representative from Kahea asked that the Board to defer all ofthe NWHI access permits, on behalfofthe public, because there hasn't been sufficient time to review the permits and the recent management plan.
Stephanie Fried testified that she liked the language used in F-2 where it is affirmatively stated that applicant will not engage in any taking, collecting, catching, or killing. She also liked that there was a CV enclosed showing the qualifications and experience ofthe manager.
Unanimously approved as deferred (Johns, Schuman)
Item F-3 Request for Authorization to issue one Northwestern Hawaiian Islands State Marine Refuge Research, Monitoring and Education Permit to Ms. Aulani Wilhelm of the National and Atmospheric
15 Administration, Northwestern Hawaiian Islands Marine National Monument, for Management Activities within Certain State Waters, Valid from January 1, 2007 to December 21,2007.
Mr. Polhemus reported that this is a management permit by NOAA. Staffhas recommended this permit be granted subject to certain conditions. The permit was sent out last November for review and comment to 5 different DAR scientific staff, the Division ofForestry and Wildlife, Historic Preservation, and the national Hawaiian Islands Marine National Monument native Hawaiian entities. Staffwas generally supportive, but stressed concerns with the scope of activities proposed. They found that some tasks were consistent with the applicant's management mission, but they felt that some, ofthe other activities did not seem necessary ofjustified under the management permit, rather they seemed more applicable to a research or monitoring type ofpermit. The applicant's position on the types ofrequested activities are for flexibility for them to do emergency response and monitoring. Staffs opinion is that the applicant has properly demonstrated a valid justification for the application and recommends allowing the management activities and vessel operations, as specified in the permit, to occur from the period ofJanuary I to December 31 ofthis year. The applicant is required to inform and consult with DAR on their cruise plans according to their trips. They felt that the following activities were consistent with the applicant's management purposes: entering refuge waters, anchoring and landing, small vessel operations, swimming, snorkeling and/or scuba diving, participating in native Hawaiian cultural activities, and conducting archeological research. Mr. Polhemus noted that he had reservation about co-mingling references to research in a management permit. This could be seen on the 3rd page ofthe permit application, where the box for archeological research was checked off, but Staff considered archeological research to be consistent because it would be done, mainly, by a native Hawaiian. There were also activities that Staffconsidered not to fall within the scope ofmanagement activities. These included interactions with sea turtles, monk seals, live coral, jack, etc. Stafffelt that provisions to allow the applicant engage in emergency response activities were fine, but felt that the following activities should require prior approval or be detailed in a permit amendment or a separate permit: taking, harvesting, possessing, and transporting specimens, catching, disturbing, and observing wild animals, interacting with sea turtles, monk seals, sea birds, live corals, groupers, sharks, etc. Mr. Polhemus would also include the archeological research in a separate permit.
Member Johns inquired about who would authorize the prior approval. Mr. Polhemus responded that the approval could/would come from either DAR or DLNR.
Member Edlao was concerned with the swimming and snorkeling because while DAR doesn't want the applicant and any others covered by the permit to interact with any of the listed specimens, but once they jump in the water, there is nothing stopping the animals from approaching them, so there will be interaction. Therefore, he suggests eliminating the snorkeling/scuba from the permit as well.
Member Johns inquired whether there was a Sunshine law issue with this permit as well because the permit was checked offas a special activities permit, but the agenda title says
16 it's for a research, monitoring, and education permit. Bin Li, a Staffrepresentative from DAR responded that this is consistent with how they granted the management permit for the U.S. Fish and Wildlife last season.
Aulani Wihelm, applicant, stated that the intent ofthe permit is for management purposes so they do not believe they checked the wrong box on the application. There is no intent for research, monitoring, or education. She related some history on the management permit. Prior to the refuge and the monument being establishment, NOAA had always required ofitselfto have a management permit to make sure there was a tracking oftheir activities and that it was in compliance with the Federal National Environmental Policy Act. When the permit process started to involve the other agencies, they were pleased because they believe that every agency planning on doing any management activities should have a record. This is the first year that they are approaching the Board with this permit and it is a learning curve for everyone. She again stated that their intent is management, but ifthe Board sees it as a research, monitoring, and education permit with the intention ofmanagement, then they have no problem with that. She also stated that there were two errors on the application; one being that when they checked the box for a special activities permit, they also checked that it was for an annual renewal which is incorrect because this is a new permit, but they do intend this to be an annual renewal permit in the future. The second error was the archeological research should not have been checked. They intend that any maritime archeology, cultural archeology or any native Hawaiian site based or land based archeology would come under a separate research permit. Therefore, they are asking for that request to be withdrawn.
Chairman Young inquired about the take, possess, and transport activities. Ms. Wihelm clarified that as Mr. Polhemus had stated before, it is for flexibility, this is because a manager or their scientific designees may, on rare occasions, need to conduct field work and make field collections with very little advanced warning. Examples include responses to events which cannot be predicted or anticipated such as coral bleaching, coral disease outbreaks, identification ofsignificant quantities ofalien or invasive species, and where there is a vessel impact and subsequent fuel spill. Such events including an assessment ofthe vessel grounding with the responsible party would not constitute as an emergencies, in the sense ofan immediate tln'eat of life or property because you would go afterwards as a follow up. While it may not be an emergency, it also doesn't fall into the time frame ofbeing granted a permit; sometimes they may need to take care ofthe situation right after or try to get these activities to occur on the next possible vessel that's going out. She gave an example ofwhen a cruise had discovered invasive algae and they went back on the very next cruise to collect samples. Therefore, the collection is necessary for monitoring purposes for management. She mentioned a grounding in 2005 which required biologists to go back up and do an assessment ofthe area, which included some sampling. These are the types oftakings and interactions they are referring to in their permit application. Chairman Young wanted to clarify this in the permit. Ms. Wihelm also wished to clarify that in section 5, the prior approval is granted by the division or the department, not the Board. This is because ifthey were to need prior Board approval they believe it would defeat the purpose ofa management permit and may tie their hands in the event ofinvasive species being found, coral bleaching
17 events, etc. To answer the question on snorkeling and swimming, Ms. Wihelm answered that to do the types of follow up activities intended, snorkeling and swimming are necessary. Chairman Young wished to clarify these intents into the permit as well.
Chairman Young also inquired about participating in Native Hawaiian cultural activities. Ms. Wihelm responded that she had participated twice before so that a management entity was there. Fish and Wildlife had also sent up a representative on one ofthose occasions to make sure the conservation requirements and the dialogue with the native Hawaiian community that was going, was consistent. Chairman Young mentioned that some make mistake this as a Native Hawaiian cultural access permit. Ms. Wihelm agreed and suggested that the language be changed to clarify their intent.
Chairman Young asked ifthis permit was time sensitive or could they wait until the January 26 meeting. Ms. Wilhelm responded that it was not. Mr. Young explained that he still felt the need for clarity between special activity versus research and some ofthe other issues, therefore, he asked if it would be okay to defer this item until the 26 where a clean application could be submitted with all ofthe clarifying language included. Ms. Wihelm replied that it would be fine.
Stephanie Fried, senior scientist at Environmental Defense, testified that the guidelines that DLNR has published for a research, monitoring, and education permit, may be issued to researchers affiliated with government agencies etc, therefore, she believes it would a special activities permit. She still also has tremendous amount ofconcerns for item 5 and the idea that we have to allow for this "blanket" type ofpermit where NOAA can extract, take, kill, etc. in reference to Ms. Wihelm's comments earlier about a shipwreck scenario and having to go up after to do a follow up, Ms. Fried understands an exemption for emergency, but the case that Ms. Wihelm had mentioned, they didn't go back up until a few months later. She believe that ifthe time delay is two weeks or longer, than that is enough time for a Land Board hearing to be scheduled. Chairman Young clarified, that it would take more than two weeks to schedule a meeting; it would be more like a month. The reason for her concerned is that there is proposed plan that the Army Corps of Engineers is plauning to go up and do some dredging activities and under such a broadly written permit and lack ofa public review process, such an activity could occur. She again mentioned that she liked Fish and Wildlife's permit and is seeking for a affirmative statement, as found in the Fish and Wildlife permit, in regards to no taking, catching, collection, and killing. Also, the Fish and Wildlife permit requests permission for only applicant and Staff; the NOAA application asks for applicant, staff, consultants, volunteers, etc., plus others at discretion. This implies that an unlimited amount of people may be allowed to go up to the NWHI. She requests that it be limited to staff unless there is somebody they have hired to work on a certain project and that name(s) should be made explicit. Another concern is that any description ofthe vessels to be used is missing. While they may not know, she believes this to be extremely important because in the last season NOAA's vessels were dumping waste in violation ofa number ofmles and regulations into the reserve area. They don't list the vessel, therefore, they don't list the waste treatment methodology. She also mentioned that at the end oflast season, the Board was requesting a waste log, therefore, she would request this again.
18 Also it ifthey don't know what vessel is going to be used, it is obvious that they aren't leaving any time soon and therefore NOAA should come back to the Board when they do along with the waste treatment plan. She also wanted to note that the Fish and Wildlife permit included a CV ofthe manager; she wished to see one for the NOAA applicant. In Section 14, the certification section, gear and equipment was not checked off; they would like to see that added on.
Dan Polhemus wished to make one last note on discharge issues; the proclamation prevents discharges so at this point. In regards to the NOAA vessels, ifwe are issuing NOAA a one year permit, they will be using a variety ofvessels and may even get a new one so listing them all would be problematic. In terms ofdisinfection protocol, a 5% bleach solution is commonly used.
Unanimously approved as deferred (Johns, Edlao)
Item E-I Request From the Big Island Body Surfing Association and the Honolulu Body SurfingClub to Use a Portion of the Hapuna Beach State Recreation Area for a Body Surfing Contest.
Unanimously approved as submitted (Johns, Agor)
Item C-I Request for Approval to Enter Into a Contract With Land Prep LLC to Cut and Chip 20 Acres ofNon-Native Trees in Kanaha Pond Wildlife Sanctuary, Maui, For the Division of Forestry and Wildlife
Item C-2 Request for Approval to Enter into a Contract with Hui Ku Maoli Ola to Plant Four Species of Native Hawaiian Plants on 20 Acres in Kanaha Pond Wildlife Sanctuary, Maui, For the Division of Forestry and Wildlife
Mr. Paul Conry, administrator for the Division ofForestry and Wildlife, wished to make corrections to C-2; first to the name ofthe applicant (add LLC) and to correct, in the contract, the spelling ofthe contract person.
The Board:
1. Amend agenda title
"Request for Approval to Enter into a Contract with Hui Ku Maoli Ola LLC to Plant Four Species of Native Hawaiian Plants on 20 Acres in Kanaha Pond Wildlife Sanctuary, Maui, For the Division ofForestry and Wildlife"
2. Amend Contract Provisions:
19 "...Bids were opened on October ~, 2006 and Hui Ku Maoli Ola LLC was identified as the lowest responsible and responsive bidder whose bid met the requirement and criteria set forth in the invitation..."
3. Amend StaffRecommendation:
"That the Board authorize the Chairperson to negotiate and execute a Contract for goods and services in the estimated amount of $49,384.96 with Hui Ku Maoli OIa LLC, subject to availability offunds and approval as to form by the Attorney General's Office."
4. Amend Contract for Goods or Services
"The Contract, executed on the respective dates indicated below, is effective as of, between Department of Land and Natural Resources, Stae of Hawaii ("STATE"), by its Chariman of the Board (hereafter also referred to as the HEAD OF THE PURCHASING AGENCY or designee ("HOPA"», whose address is Department of Land and Natural Resources Post Office Box 621, Honolulu, HI 96809 and Matt Schirman[n], dba Hui Ku Maoli Ola, ("CONTRACTOR"), a Limited Liability company..."
Unanimously approved as submitted (C-l)/amended (C-2) (Johns, Gon)
Item D-8 Approval in Principle of an Acquisition of Private Lands for State Park Reserve, Pupukea-Paumalu, Koolauloa, Oahu, Tax Map Keys:(I) 5-9-05:38 & 82 and (1) 5-9-06:01, 18 & portion 24; and After-the-Fact Approval to Apply for a Coastal and Estuarine Land Conservation Program Grant Administered by National Oceanic & Atmospheric Administration. (PROJECT DEVELOPMENT/Gavin)
Unanimously approved as submitted (Schuman, Edlao)
Item D-3 Set Aside to the County ofHawaii, Department ofWater Supply for its Waiohinu Well Development project at Waiohinu, South Kona, Hawaii, TMK: (3) 9-5-03: portion of 19 (HDLOlWesley)
Member Johns recused himself.
Unanimously approved as submitted (Johns, Schuman)
Item D-9 Amend prior Board actions of:
October 11, 2002 (agenda item D-20), Quitclaim of land from the United States ofAmerica, Department of Army to the State ofHawaii; Lease of Land to the United States of America, the Department of Army, Waialua, Oahu TMK (1) 6-8-14 por. 01, 6-9-01:05 & 016; and
20 August 22, 2003 (agenda item D-20), Amend Prior Board Action at its meeting of October 11, 2002 (agenda item D-21), Cancellation of Governor's Executive Order No. 1530, Kaena, Waialua, Oahu, TMK: (1) 6-9-14:01 portion and (1) 6-9-01:29 (PROJECT DEVELOPMENT/Gavin)
The Board:
1. Amend the purpose ofthe set aside of tax map key: (1) 6-9-01:29, page 5, 3rd paragraph: " Whereas DOFAW is currently using Parcel 2 as an endangered plant nursery, staff further requests that the Board approve and recommend to the Governor the issuance of an Executive Order ("EO"), placing parcel 2 under the management of DOFAW for [endangered speeies FeeO'lery and otheF appFopFiate foFestry pUFposes] an addition to the Mokuleia Forest Reserve."
2. Add the following RECOMMENDATIONS:
"7. Authorize the Division of Forestrv and Wildlife to conduct a public hearing to add Tax Map Key parcel (1) 6-9-1:29 as detailed above at Piihonua, Hawaii, to the State Forest Reserve System, under provisions of HRS &183-11, Government Land for Forest Reserves and &183-12, Notice of Hearing.
8. Authorize the Chairperson to set the date and time for a public hearing and appointment of a Hearing Master."
3. Amend Recommendation 4:
"Approve of and recommend to the Governor the issuance of an executive order setting aside the subject lands identified as TMK (1) [6 9 (11:(12] 6-9 01:29 to Department ofLand and Natural Resource..."
Unanimously approved as amended (Schuman, Johns)
Item D-10 Set Aside to the State Department of Transportation, Highways Division for Highway Right-of-Way and Highway Boundary Purposes, Cancellation of Revocable Permit Nos. S-7152, S-7329 and S-7402 and Re-issuance of New Revocable Permits Covering the Remaining Areas and Issuance of a Right-of-Entry for Construction and Construction Staging Area Purposes, Honouliuli, Eva, East Kapolei, Oahu, TMK's: (1) 9-1-18: Portions of3 and 5, and (1) 9-1-17: Portions of86 and 88 (SUPPORT BRANCH/Gary)
21 The Board:
Amend Revocable Permit No. in Recommendation B:
"Approve the cancellation of Revocable Permit Nos. S-7152, S[+JS9t 7329 and S 7402 and re-issue new revocable permits to the permittees covering their respective remaining areas••."
Unanimously approved as amended (Johns, Schuman)
Item L-l Appointment ofKona Soil and Water Conservation District Directors
Amendment No.6 to Lease No. DOT-A-92-0018 Restaurant and Lounge Concession Lease Host International Inc., Honolulu International Airport.
Unanimously approved as· submitted (Johns, Edlao)
Item L-2 Direct Issuance of a Revocable Permit for a Non-Exclusive Pipeline Easement at Kaunakakai, Molokai, Hawaii.
Unanimously approved as deferred (Johns, Edlao)
Item J-l Issuance ofa Revocable Permit for Inconsistent Use Honolulu Freight Service Honolulu International Airport.
Unanimously approved as submitted (Johns, Schuman)
There being no further business, Chairperson Young adjourned the meeting at 12:50 p.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted, c%- Lauren Yasaka
22 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, JANUARY 26, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Peter Young called the meeting ofthe Board of Land and Natural Resources to order at 9:05 a.m. The following were in attendance:
MEMBERS
Mr. Peter Young Mr. Tim Johns Mr. Ron Agor Mr. Jerry Edlao Mr. Samuel Gon III Ms. Taryn Schuman Mr. Robert Pacheco STAFF
Ms. Charlene Unoki, Land Mr. Sam Lemmo, OCCL Mr. Dan Quinn, State Parks Mr. Paul Conry, DOFAW Mr. Dan Polhemus, DAR Mr. Tim Lee, HP
OTHERS
Dr. Jim Anthony, E-3 & 4 Ms. Ululani Beirne, E-3 Ms. Dawn Watson, E-3 Ms. Grace George, E-3 Ms. Martinez, E-3 Ms. May Au, E-3 Ms. Stephanie Fried, F-1 & 2 Mr. Roy Vitousek, K-l & 2 Mr. Craig Chapman, E-4 Ms. Mari Berry, D-3 Mr. Tony Talat, D-l
{Note: language for deletion is [bracketed], new/added is underlined}
Item A-I Minutes of January 12,2006
Member Pacheco recused himself The Board:
"Item D-8 Approval in Principle of an Acquisition ofPrivate Lands for State Park Reserve, Pupukea-Paumalu, Koolauloa, Oahu, Tax Map Keys:(I) 5-9-05:38 & 82 and (1) 5-9-06:01, 18 & portion 24; and After-the-Fact Approval to Apply for a Coastal and Estuarine Land Conservation Program Grant Administered by National Oceanic & Atmospheric Administration. (PROJECT DEVELOPMENT/Gavin)
Member Johns recused himself.
Unanimously approved as submitted (Schuman, Edlao)
Item D-3 Set Aside to the County of Hawaii, Department of Water Supply for its Waiohinu Well Development project at Waiohinu, South Kona, Hawaii, TMK: (3) 9-5-03: portion of 19 (HDLOlWesley)
[MembeF Johns Feeused himself.]
Unanimously approved as submitted (Johns, Schuman)"
Unanimously approved as amended (Johns, Gon)
Item K-l Request to Extend the Processing Period for an Additional 60-days for Conservation District Use Application HA-3250 for the Commercial Use of Hand Quarried Volcanic Ash Located at Pu'u Nene, Humu'ula, North Hilo, Island of Hawaii, (3) 3-8-001:001
Mr. Sam Lemmo, Administrator for the Office of Conservation and Coastal Lands, reported that this is for 60 day extension on a CDUA for a quarry operation on the Big Island. The applicant is Jack Lockwood and Staff is recommending that the extension be approved to accommodate a contested case hearing.
Member Johns inquired whether 60 days was enough time. Mr. Lemmo responded that was the time period requested.
Unanimously approved as submitted (Pacheco, Edlao)
Item K-2 After-The-Fact (ATF) Conservation District Use Application (CDUA) KA 3373 for Irons Single Family Residence (SFR) Located at Haena, Island of Kauai, (4) 5-9-002:040
Mr. Lemmo reported that this is an after the fact CDUA for the Irons single family residence located in a limited sub zone in Haena on Kauai. He gave some background information in which there were some violations and the applicants were given 2 years to bring the property into compliance. They have paid the fine and have filed an application to reconsolidate the structures
2 into one structure. They have also done an environmental assessment which was approved, therefore, Staffis recommending that the proposed house be approved at this time.
Unanimously approved as submitted (Agor, Johns)
Item E-4 Request for Approval of Malaekahana Partners, LCC as the Selected Bidder to Develop, Operate, and Maintain Malaekahana State Recreation Area (MSRA), La'ie, O'ahu.
Mr. Dan Quinn, Administrator for the Division of State Parks, gave some background information on Malaekahana. He reported that there are two sections ofthe park, one called Kalanai and the other called Kahuku. The Kalanai portion was built and is operated by the State as a standard camping and day use area. The other section, Kahuku, has been operated by a number ofnon-profit organizations since the State purchased the property over 20 years ago. The current operator is the only group to prepare a proposal when Staffsought private sector proposals to complete development and operate the park. The park has no master plan that reflects this current proposal nor does it have an ErS. Therefore, what would be required ofthe Malaekahana Partners is completing a master plan according to their proposal and going through the environmental impacts statement process. Mr. Quinn reported they have recently received information from the Department of Interior (who provided land and water conservation funds to help purchase this property) that they have some concerns with using private funds and private entities to improve and manage LWCF funded properties. They are currently reviewing this process as other national parks are attempting to do the same thing, however, ifthey come back and tell Staffthat they cannot do this, then Staffwill need to reconsider this whole course of action. Mr. Quinn reported that Staffhad run into some problems. The first is that the proposer was supposed to pay for the appraisal ofthe property on which Staffwould base the rent, however, they were not amendable, therefore, this is something that still needs to be done. In addition there are some items in the proposal, including clarification on the alternative energy system. Mr. Quinn wished to point out that the statement on the 3'd page, 1st paragraph, where it reads "Stafffurther notes that this request for approval is ofthe development concept and the actual details and implementation ofthe proposal will be negotiated when the lease is executed..." is not quite accurate. Staffneglected to say that the implementation ofthe proposal will be negotiated through a development agreement, prior to the lease execution.
Member Johns inquired ifthe authorization ofthe development agreement comes to the Board or is the Board is authorizing it today. Mr. Quinn responded he would like to have the authorization delegated to the Chair, but ifthe Board would like the development plan to come back before the Board, he would be glad to do so.
Mr. Quinn mentioned that there will be community input through the master plan and EIS process. This proposal has raised concerns on the part ofthe community; some are in favor and some are concerned. Mr. Quinn wished to follow up with the evaluation committee, which was originally involved in helping to evaluate the proposal, and create an ongoing committee to have community input and review ofthe actual operations ofthe park. The 2 sections ofthe park are actually covered by this proposal and members ofthe committee are split on having private management for an area that is currently managed by the State. The proposal for the Kalanai
3 section includes a security gate about half way into the park which allows the day use area to have unencumbered access to the park by the public and controlled access would begin from the camp ground entrance. The park has several cabins, but the proposal calls for replacing them since they are in poor condition and most ofthem should be demolished and/or replaced. The proposal is for camp grounds, camping, and some auxiliary uses. At this time, Staffwishes to proceed with this and get Board approval for Malaekahana Partners LLC as a selected bidder which will allow for further, detailed discussions on the development agreement.
Member Johns clarified that the lease will come back to the Board after the master plan and EIS process and the development agreement is completed.
Chairman Young suggested that Staffbring back the development agreement.
Member Johns wanted to clarify about how many bidders there were for the RFP process. Mr. Quinn responded that this was the only bid they had received.
Member Johns also inquired whether Mr. Quinn attended the Koolau Neighborhood Board Meeting or ifhe just received a report from them. Mr. Quinn responded they recently got a report from them, but he also attended several ofthe meetings. He mentioned that part ofwhat the Neighborhood Board asked for was that Malaekahna Partners go back to the community and get additional community input. They did have some specific issues with the earlier proposal, but since then the proposal has been modified and most ofthe concerns have been addressed.
Chairman Young mentioned that the Neighborhood Board wants assurance that the final proposal conforms with the representations made. He inquired ifthe current proposal does so. Mr. Quinn responded that there were earlier proposals and he believes that they just wanted be certain that what was proposed to them was being received by the Board.
Dr. Jim Anthony testified that he is in favor ofthis proposal.
Chairman Young wanted to clarify that Mr. Quinn was amending the submittal as well as the recommendation to allow for the development plan to come back to Board.
Member Johns inquired ifthe development agreement would come to the Board after the EIS process or include the development agreement as part ofthe EIS. Mr. Quinn responded that the development agreement would be a part ofthe EIS. Member Johns also noted that the development plan should could back to the Board because then the appraised value will have been calculated and Staffwill have a proposed rent, etc.
Mr. Craig Chapman, representative ofMalaekahana Partners LLC, wished for some clarification on because ifthey are the select bidder now and when the master plan is completed and everyone has signed offon it, they then enter into the EiS and SMA process. However, if at that point the plan is reduced or modified to some extent, he needs to be informed on the correct procedure. Chairman Young responded that Mr. Chapman would need to work with Park's staffon the terms for the development agreement and that would define what the project would be. Member Johns further clarified that they work on the development agreement now and include it in the
4 EIS. When that is brought before the Board, and ifthey have any concerns brought up by the EIS, they would most likely have to modify the proj ect and development agreement. This would again be brought back before the Board and all information up to this point will be placed in front ofthe Board when they are making their decision to approve or disapprove the lease.
Mr. Chapman also wished for some clarification on the appraisal process because they are going to be putting out substantial funds to do the appraisal, which they are more than willing to do after they become the bidder. However, going through the EIS process may bring about some changes which would ultimately change the appraisal ifdone at am early stage. Chairman Young clarifies that the appraisal would come after the decision on what is actually going to be developed. Mr. Quinn noted that the appraisal is supposed to be done now so that they can begin to frame what the project is going to look like. There are some issues with Malaekahana Partners trying to project out their income and Stafftrying to figure out the length ofthe lease. They have the basic framework for the cabins, camping, and number ofoccupants, but in order to make this project viable, they need to determine the assigned value. Member Johns agreed with Mr. Quinn and mentions that they can always get an amendment to the appraisal later on.
The Board:
1. Approved Staffs recommendation and directed Staff to bring the development agreement back to the Board for approval.
2. Amend Page 3, Paragraph 1
"...Stafffurther notes that this request for approval is ofthe development concept and the actual details and implementation ofthe proposal will be negotiated [wilen the lease is el(eeotell,l through a development agreement prior to lease execution and will be subject to community and agency input throngh the EIS process.
Unanimously approved as amended (Johns, Schuman)
Item E-3 Issuance of Revocable Permit to Ms. Grace George for Agricultural Purposes, Ahupuaa 0 Kahana State Park, Oahu.
Mr. Quinn, with the use ofa map found at the end ofthe submittal, reported that the original revocable permit (RP) area was from the time prior to the State ownership ofKahana Valley. It was originally an RP for Sam George, but then other residential lots were carved out ofthat area and issued to other residents. Subsequently, Sam George had passed away and his widow, Grace George, still lives on the property. The configuration ofthe RP area has caused some issues because it wraps around the other residential lots, therefore, to alleviate some ofthe conflict, Staffis recommending to refigure the RP area for agriculture uses as shown in the exhibit. Instead ofhaving it surround the adjacent house lots, Staffis recommending that the area run towards the valley. The original RP area was about 4.7 acres, but functionally only 3.5 acres. The new proposed area would be approximately 1.5 acres. Staffrecommends allowing Grace George to continue agricultnre use, but to reconfigure the area. There is also a request for the construction ofa storage room and Staffhas no problem with that proposal.
5 Member Schuman, in reference to the map, asked what B-4 was. Chairman Young responded that it was a former lot. Mr. Quinn added that it was a lot that was never issued because there was no lease issued for that lot.
Member Johns inquired about what happens to the former RP area. Mr. Quinn responded that at this moment nothing. The section around lot B-3 is not useful and the area that is the cause of conflict is on the mauka side ofB-6. Member Johns also inquired ifthe Kahana Community Association still operational and if so, did they weigh in on this. Mr. Quinn responded that he did not bring this before them; he is only proposing a reconfiguration. The RP ran its course at the end oflast year. It was previously managed by the Land Division, but they have asked State Parks to assume responsibility for the RPs.
Dr. Jim Anthony provided a visual ofthe proposed reconfiguration that Mr. Quinn described earlier. He read a statement on behalfofGrace George. Ms. George wrote that she does not agree with the makai end boundary ofthe new property line for the new RP, be set in 10 feet from the existing makai property line for lot B-6. To do this would add insult to injury and compound the taking oftrees and plants she cultivated on the original RP area. Dr. Anthony testifed that the issue is that even though there is a surveyed boundary for lot B-6, the proposal requests that RP line be moved another 10 feet towards B-5 (Ms. George's property). He and Ms. George believe this to be urmecessary and is not a resolution to the problems they have faced. He reports that there is vegetation that Grace had planted over a 20 year period inside the old boundary (lining B-6). Dr. Anthony reported that some months ago, the neighbor who occupies B-6, beheaded approximately 40 palm trees they had planted. In a previous discussion ~~~~lli~~~~W~~~~~~~w~~~~_~ State Parks allows them to build a fence along the property line on their side. They wish to leave the original surveyed boundary for B-6 in place, and he and Ms. George will put up a fence 6 inches in from the existing boundary. With respect to the other provisions, this is the only amendment to the Staff submittal they would request the Board to make. Dr. Anthony wished to emphasize that a lot of work was put into the area by Ms. George upon receiving the area after her late husband passed away. He reported that they had just finished building a house that was appraised at $324,000. He also inquired whether the rent for a revocable pelmit could be changed or ifit was set at $40. Ifthe $40 is final then that is fine, but he wished to appeal to the Board to see ifanything could be done because Ms. George used to pay only $27 a month for a RP area that was much larger than the one being proposed.
Chairman Young wished to clarify on which side ofthe boundary the proposed fence would be. Dr. Anthony responded that it would be on their side ofthe property line. He also inquired ifthe palms that were topped would stay inside the fence on Ms. George's side. Dr. Anthony concurred with the Chairman. Member Pacheco questioned if currently the palms were directly on the property line or inside of it. Dr. Anthony responded that they are inside ofthe property line, but if after the fence is built, there is anything intruding on the other side they will either leave it there or cut it down.
Chairman Young, in response to Dr. Anthony's inquiry about the set rent, stated that the Board had adopted a policy through the Land Division about the minimum rent being $40.
6 Member Pacheco asked for clarification from Mr. Quinn on the acreage size ofthe original RP area. Mr. Quinn responded that the functional area appeared to be only 3.5 acres, but the map is not a surveyed drawing, rather it was based on old kuliana type uses ofthe land. Member Pacheco also wished Mr. Quinn to elaborate on the other problems with the neighbors, besides the topping ofthe palms. Mr. Quinn responded that he would not want to delve into it because he does not have first hand knowledge about what has been going on there. Dr. Anthony responded that this is the first and only incident that has occurred. Before, they were very neighborly except for when Grace's late husband was still alive; he was abused when protesting against incursions on his side ofthe RP.
Ms. Ululani Beirne, a resident of Kahana and a member ofthe Community Association, testified that Grace George and her family have worked very hard to keep their property nice. She is testifying because every single lessee, when they agreed to build their home in Kahana, nnderstood that they would only receive 10,000 square feet and 1,000 ofthat would be gardens. On top ofthis, many ofthem who originally had RPs also had agricultural uses ofthe property. When Sam George was first living there and raising his original family, he had over 20 acres of agriculture land. She believes that what is good for one, in regards to an agriculture lease, should be good for the others in the community that would like to have an agriculture lease. Therefore, ifGrace is considered to be given an extension on an agricultural lease to go further than the 10,000 square foot bonndary, then the Board needs to look favorably on the rest ofthe residents. She also mentions that B-6 is leased to her sister and believes that building a fence might be premature at this time. When it came time to choose a lot in Kahana, her sister didn't realize that the agriculture permit encircled her whole house. While Grace's house may be appraised a $324,000, the Martinez home is just as valuable. The reason why the palms were topped and are the genesis ofthis problem is because the roots were growing under the foundation ofthe Martinez home. The Mmtinez family felt that they needed to get rid ofthe tree because it would break the foundation ofthe house. She doesn't believe the house should be fenced up because everyone should learn to get along in Kahana.
Chairman Young clarified that this was not an agricultural lease, but a revocable permit.
Ms. Kapua Kaluhilei'ula'okala read from her written testimony. She also testified in favor of granting Ms. George the revocable permit.
Ms. Dawn Watson testified that Sam George, when he realized he didn't have much time left, wanted to make sure his wife, Grace, was taken care of. She remembers him talking about this extra acreage he had and having to come and give presentations to the Board to make sure that this land would be available to his wife. She gives testimony in honor of Sam, who wanted to make sure that his wishes and commitment to his wife and family would follow into the future. She asks that the Board to grant Ms. George the revocable permit.
Ms. Beirne noted that her sister Martinez and Ms. May Au were on their way to meeting; both who reside on the neighboring propelties. She asked that perhaps the Board could table this matter at this time so that the Board can hear both oftheir testimonies.
7 Dr. Anthony clarified that Grace George and her former husband had this piece ofland as an RP for over 20 years, and they do not plan on building a rock wall. All they want to do is put up a simple chain link fence.
Chairman Young suggested that this matter be deferred until the neighbors arrived.
Mr. Quiun and Dr. Anthony agreed to the deferral.
Item E-l Permission to Enter into a Revocable Permit with S.M.C.A., Inc. for the Food and Rental ofSwimming Equipment at Hapuna Beach State Recreation Area, Island of Hawaii.
Item E-2 Request from Hulakai to use a Portion of the Kekaha Kai State Park Kaulana-Mahai'ula Section to Hold the Second Annual Hulakai Longbord SurfClassic.
Unanimously approved as submitted (Pacheco, Edlao)
Item D-3 (1) Sale of Reclaimed (Filled) Land to James Stanley Berry and Mari Ito Berry; and (2) Amend Prior Board Action of August 24, 2001, under Agenda Item D-25, Grant ofTerm, Non-Exclusive Easement for Seawall and Fill Encroachment; Issuance ofLease for Private, Residential, Non-Commercial Pier to James Stanley Berry and Mari Ito Berry, Kaneohe, Koolaupoko, Oahu; TMK (1) 4-7-30: seaward. (ODLO/Al)
Ms. Charlene Unoki, Administrative Assistant for the Land Division, reported that Mr. and Mrs. Berry would like to purchase the reclaimed land. She noted that the Board may sell reclaimed land to the abutting owner ifthe land was filled as ofJune 12, 1962; this qualifies. Staffwould like the Board's permission to sell this reclaimed land (approx. 668 square feet) to the Berry's.
Ms. Mari Berry reported that they had a survey done last year as well as an appraisal to complete this transaction. They since learned that their neighbor had a quit claim deed so in order to expedite this process and not have to go through a costly and lengthy process, they would like to purchase this for the same amount as the lease.
Ms. Unoki responded that they cannot do this pursuant to the law. They have to have an appraisal done offair market. However, because this land was filled in prior to 1962, it is supposed to be looked at as submerged land, about 50% ofthe cost would be knocked off.
Ms. Berry inquired ifthe appraisal for last year counted. Ms. Unoki responded that the appraisal done last year was for the easement. Ms. Berry inquired that since the appraisal was done last year and they have their neighbor records, why they can't just use that data. Ms. Unoki responded that whoever Staffhires is going to look at all this information and they have to have a separate appraisal for this transaction.
8 Chairman Young clarified that the appraisal last year was for an easement, this appraisal would be for an unencumbered, fee simple, submerged land which is a completely different type of an appraisal.
Member Johns also noted that while they cannot rely on the neighbor's records alone, the appraiser will take it into account.
Unanimously approved as submitted (Johns, Edlao)
Item 0-1 Amend Prior Board Action ofJune 24, 2005, under Agenda Item 0-8, for Sale ofRemnant to Prospect Estates AOAO and Sea View AOAO, and Cancellation of General Lease No. S-3915 to Sea View AOAO, Kewalo, Honolulu, Oahu, TMK: 2-2-04:65. (ODLO/AI)
The applicant agreed with the recommendation.
Unanimously approved as submitted (Schuman, Gon)
Item C-1 Request for Approval to Enter into Contract with Malama Kahalawai, Inc. to Implement the FY07 Watershed Management Grant Program.
Item C-2 Approval of a Permit to the U.S. Forest Service to use State Land at Laupahoehoe, Hamakua, Hawaii and Pu'u Wa'awa'a, Kona, Hawaii as per the Cooperative Agreement for the Hawaii Experimental Tropical Forest.
Item C-3 Annual Update on Chevron Hawaii Refinery Safe Harbor Agreement.
Unanimously approved as submitted (Johns, Pacheco)
Item 1-1 Request for Approval to Enter into a Contract with University ofHawaii- . Office of Research Services to Develop an Architectural Submittal Form, Update the Hawaii and National Registers of Historic Places Webpage, and to Review Projects Submitted to the State Historic Preservation Division for Review.
Unanimously approved as submitted (Pacheco, Johns)
Item M-1 Issuance ofa Sixth Non-Exclusive Rent-A-Car Concession Honolulu International Airport.
Unanimously approved as submitted (Pacheco, Johns)
Member Johns excused himself
Item L-1 Approval to Enter into a Memorandum of Understanding Between the Department of Land and Natural Resources (DLNR) and the Department of
9 Business, Economic Development and Tourism (DBEDT) Regarding Development of a Geothermal Resource Information System.
Item L-2 Permission to Hire Land Surveyor for Boundary Survey and Staking at Manuka Natural Area Reserve, Island ofHawaii, DOFAW Natural Area Reserves Special Fund.
Item L-3 Appointment of Hamakua Soil and Water Conservation District Director.
Unanimously approved as submitted (Pacheco, Edlao)
Item D-2 Consent to Renewal ofRevocable Permit No. 10 for Lands under Governor's Executive Order No. 1598 to Elizabeth Martinez dba Olomana Gardens, Waimanalo, Koolaupoko, Oahu, TMK: (I) 4-1-10:Portion of69. (ODLO/Steve)
Item D-4 Extension of Approval in Principle of Direct Lease to Coalition for Specialized Housing for Low-Income Rental Housing Purposes, Waimano, Oahu, TMK: (I) 9-7-10:35 (ADMINISTRATION/Charlene)
Unanimously approved as submitted (Schuman, Pacheco)
Item F-I Request for Authorization to Issue Two North Western Hawaiian Islands State Marine Refuge Special Activity Permits to Applicant Mr. Donald Palawski of the U.S. Fish and Wildlife Service, for Certain Management Activities Within State Waters, and to the Operator of a Vessel to be Chartered by Applicant for Related Support Activities, Both Valid From February 1,2007 to December 31, 2007.
Mr. Dan Polhemus, Administrator for the Division ofAquatic Resources, reported that this is the same submittal that was brought before the Board at the last meeting. The only change is a modification to the title in order to accommodate the sunshine law.
Member Edlao was concerned with the snorkeling aspect ofthe application. He inquired how often this activity was going to be done. Mr. Don Palawski, applicant and NWHI refuge manager for Fish & Wildlife, responded that this is referenced to staffthat they have at Tern and Laysan Island. It is more ofa moral and health issue that they go out and take a swim because they are sometimes there for 6 months and it gives them an opportunity to put their face in the water. It is not as ifthere is going to be an extensive amount of snorkeling.
Member Edlao had another question in reference to page 4 ofthe submittal because it uses the word "visitor". To him it has the connotation of a tourist. Mr. Palawski responded that the refuge is closed to the public and "visitors" in this case are sometimes visiting researchers or others who are permitted to be there and they are supervised by the Fish and Wildlife staff. The Board agreed on the use of "authorized personnel" instead.
10 Stephanie Fried, representing Environmental Defense, testified that they had compared this year's permit to last year's, and last year's permit stated that swimming would be allowed ifa person was there for more than 7 days. She inquired why this year it has been changed to 2 or more days. Mr. Palawski reported that this probably pertains more to Laysan Island when they do a change ofthe crew and they have people there for a short period oftime. It is almost impossible to not get in the water when getting out ofthe boat to get to the shoreline. He emphasized that this limited to only for people authorized to be on the trip to begin with and it is usually a very small number ofpeople.
Member Edlao also commented that in the application, Mr. Palawski mentioned the possibility of bringing young native Hawaiians on some ofthese cruises. Member Edlao encourages Mr. Palawski to strongly consider doing so. Mr. Palawski agreed and mentioned that they would be signed up as volunteers.
The Board:
Amend Page 4, Review Process:
"DAR reviewers also agree with Applicant's request to allow swimming and snorkeling activities for authorized persounel [and visitoFs] to the NWHI."
Unanimously approved as amended (Edlao, Schuman)
Item F-2 Request for Authorization to Issue one Northwestern Hawaiian Islands State Marine Refuge Special Activity Permit to Applicant Ms. Aulani Wilhelm of the National Oceanic and Atmospheric Administration, Northwestern Hawaiian Islands Marine National Monument, for Certain Management Activities Within State Waters, Valid From February 1, 2007 to December 31,2007.
Mr. Polhems reported that he had no amendments to the submittal, but it has been modified as per the Board's instructions. The applicant has resubmitted the application and removed references to archeological research and native Hawaiian cultural activities.
Ms. Malia Chow, is the Policy Analysist for the NWHI Marine National Monument from NOAA and is here on behalfofAulani Wilhelm. She reminded the Board that NOAA does not act in isolation for management activities, consistent with the MOA that was signed back in December. They coordinate all oftheir management activities with DLNR through DAR and Fish and Wildlife Service. There is a Monument Management Board which meets several times a month, who is in close coordination with all ofthe activities that they do.
Member Gon inquired that in a conceptual, emergency situation, what the procedure would be. Ms. Chow responded that there is an emergency response tree that has been developed based on what type ofemergency it is and who's office it would fall under. Usually phone calls come to the State ifthe emergency is within the refuge and then they would contact Aulani or Fish & Wildlife depending on the jurisdiction. She would say that within 24 hours, all responsible
II parties have been notified and are coordinated. Member Gon inquired ifthe notification process would occur as conference call. Mr. Polhemus responded that they would convene an emergency meeting ofthe Monument management and it could be a face to face meeting or by a teleconference. Their main goal would be to expedite as quickly as possible and get concurrence among all parties.
Member Edlao inquired about a long term plan. Mr. Polhemus noted that a Monument management plan is currently being developed, but had not yet been finalized and is the subj ect ofcontinuing negotiations between ourselves, the Department ofInterior, the Department of Commerce, and the White House CEQ. They are currently in discussion about when this plan is going to be finalized; the dates range from December 15,2007 to potentially March 2008. The reason for a long time line has to do with the decision to incorporate the Monument's comprehensive conservation plan into the Monument plan, as well as the NEPA compliance (the EIS). Member Gon inquired about an existing plan that was being developed during the creation ofthe monument and he asked if it would serve as a foundation in preparation for this upcoming plan. Mr. Polhemus responded that he is referring to the Sanctuary plan. Mr. Edlao inquired if upon finalization, this plan would be available to the Board. Both Mr. Polhemus and Ms. Chow concurred. Ms. Chow also mentioned that it would be available for public comment.
Ms. Stephanie Fried, representing Environmental Defense, testified that they have a number of strong concerns. Their first concern is along the line ofMr. Edlao's question; what are they planning to do up there? They support the Board granting NOAA a permit for emergencies and time sensitive non-emergency needs, but for the time sensitive activities, they would need to show why they couldn't bring it before the Board. They do not support the license to kill because it allows them to kill, inj ure, degrade, remove, etc. which are all serious and potentially damaging activities especially without a specific description ofthe plans. She believes that for some ofthe things that the applicant is asking for on the permit should fall under a science permit. She believes that the permit NOAA is applying for is for non-extractive purposes undertaken to further the knowledge ofresources, provide for resource enhancement, or benefit research management. The application says that the applicant has already received a permit from the Monument, but that permit is appended to the State's application. The State requires that all other permits be attached to the application and she believes that it is important for the Board to be able to see that information. She emphasized that State rules are different than the Federal rules. She mentioned that the Board had instituted a number ofpermit requirements and by the end oflast season they were quite robust and she would refer to them as "best practices", but it seems that they are starting all over again. She submitted to the Board, and excerpt from the last permit granted in October of last year and her recommendation would be to apply those conditions to this permit as well as future permits.
Chairman Young inquired ifthose conditions were for a management permit or a research permit. Ms. Fried responded that they were for a research permit, but they were general permit conditions. Chairman Young emphasized that this is for a management permit, not a research permit.
Chairman Young inquired if she expected that NOAA apply for a permit every time they want to do an activity. Ms. Fried responded that they do not, but they need to describe what they are
12 going to in their permit. She believes that the applicant has asked for many, potentially damaging activities and they need to be more specific and include a description oftheir projects. This particular permit does not do so. This permit also does not put a limit to the number of people who can be authorized to go to the North Western Hawaiian Islands. She reiterated that she would like the Board only to issue this permit for emergencies and time sensitive activities and then have NOAA come to them later with a much clearer explanation oftheir other activities. Ifthere are certain projects that NOAA is going to pursue throughout this year they should be able to present an activities proposal to the Board because they most likely have already written their grants. She would ask that for each cruise, a signature page be required, where everyone signed and dated it before they left and had full knowledge ofthe rules. She stressed that on the State permit, it says that incomplete applications shall not be processed. This application requires copies ofany existing permits and again Ms. Fried reiterates that the applicant has a Monument permit that was not attached. Also, as a part ofher written testimony, she included some changes to the language.
Ms. Chow responded to some ofthe comments that Ms. Fried had made. She states that Ms. Fried had made some assumptions that were incorrect. IfNOAA was going to conduct any research, education, or monitoring activities, they do plan to submit another application and she believes that this is clearly stated in this application. Bin Li, from the Division ofAquatic Resources, reported that this particular condition was inserted into No.5 ofthe application so that they would know that any other activity not listed has to be reported to the Department and then they can decide whether another permit is needed or an amendment can be made to the current permit.
Chairman Young inquired ifMs. Chow would have a problem with changing No.5 on page 7 to say that approval for activities should be by the Board alone. Mr. Polhemus pointed out that there are several minor activities listed under 5 that would then have to come before the Board. Stephanie stated that 5 would require prior Board approval and discard the reference to DAR, and then add No.6 from her suggestions that allows for time-sensitive activities.
Ms. Chow mentioned she has a concern and wished to clarify that they are not restricted to the activities Ms. Fried had listed. Chairman Young pointed out that it say "including" not "only". Ms. Chow also wished to remind the Board that it is NOAA's full intent to keep the Board informed as much as possible, therefore she agrees with the addition ofNo. 6 to the permit as well as concurs with the amendment to No.5. Ms. Fried would also like to include her No.9 in the recommendations which states that all personnel, before departure, sign the permit indicating they understood all the rules and regulations. In her track changes in No.1, Ms. Fried is suggesting implementing the general conditions that were established the season prior.
Mr. Polhemus mentioned that this permit process will no longer be in effect soon since they are moving towards a joint permit. The new application instructions are already up on the web and the general conditions ofthat permit are currently in its stages ofbeing finalized.
Chairman Young inquired ifthe Department has any standard, general conditions now. Mr. Polhemus responded that those were negotiated last year, permit by permit and continued to be an evolution as the year continued. Chairman Young inquired ifthose would be applicable to
13 this permit. Mr. Polhemus responded that he wouldn't know because he did not have those in front ofhim. He did mention that any dumping in the monument is illegal and a federal violation. Chairman Young asked that ifa waste log was a requirement, wouldn't it mean that if someone did any type ofwaste dumping, that they would not only be breaking Federal Law, but also the conditions ofthe State permit and then there would be consequences for both? Mr. Polhemus concurred.
Chairman Young suggested that they defer this item for now and during that time Staffand Ms. Chow can review the general permit conditions that Ms. Fried was refereeing to. Mr. Polhemus agreed.
Item E-3 Issuance ofRevocable Permit to Ms. Grace George for Agricultural Purposes, Ahupuaa 0 Kahana State Park, Oahu.
Ms. May Au is the lessee to the right (lot B-3) ofMs. George's property, is the vice president of the Community Association and a Kapuna on the Kapuna Council ofKahana. She supports the revocable permit and the proposed area, but she would like there to be a 20 foot setback on her side.
Chairman Young inquired ifthere were significant plantings in the area right next to Ms. Au's house. She disagreed. Mr. Anthony responded that there is; lining the boundary line are ti leaf plants and coconut trees.
Chairman Young inquired how wide the lots were. Mr. Quinn responded Ms. Au's is 75 feet, but the others are 80.
Pua Martinez testified in support for Ms. George's revocable permit. She is also asking for another 10 feet to setback (total would be a 20 foot set back). Pua's daughter responded that the reason for the additional 10 feet is because there have always been concerns that things are being planted right on the boundary lines which leads to encroachment on her mom's property. They have also been told by their general contractor that the roots will damage the concrete slab foundation. She too supports Staffs proposal for the new RP area.
Chairman Young pointed out that the problem doesn't see to be the new RP area, rather it seems to be how far away it is from the other properties. He inquires ifthere is a way to work this out and ifthey move the RP boundary line more in, can the RP area be moved further back as well as allow them time to transplant some oftheir plantings.
Dr. Anthony responded to the comments made by Ms. Au and Ms. Martinez. Ms. Au's property has always had a row ofti leafs marking the property line and there is no problem with roots growing under her foundation. Rather she has been using a potion ofthe old RP area to grow plants. Under the new configuration Dr. Anthony suggests that she can apply for her own RP. There is no reason or evidence supplied as to why Ms. Au's boundary should be extended for 10 feet. On the Martinez side, there is an ulu tree that Ms. Martinez's son cut down unceremoniously and without their permission.
14 Chairman Young inquired about what's going to happened to the palms that were topped; are they going to grow back? Mr. Anthony responded that they are watching to see what happens.
Dr. Anthony again stated that only thing that will make everyone happy is ifa fence is erected.
Ms. Au and Dr. Anthony were able to identify that the ti leafline was her boundary line and she was pleased with that.
Ms. Martinez explained that her son only topped the ulu tree and this was because the fruit and rubbish were falling in their yard. Previously Grace's son had also topped the ulu tree. The palm trees are still there and are growing.
Chairman Young inquired ifthose palms could be relocated. Dr. Anthony responded that they are probably going to have to dig them up to put the fence in. Chairman Young asked what would happen ifthe fence was built inside the boundary line, 10 feet in. Dr. Anthony responded that the fence is to be built on their side ofthe boundary line, but believes that a 10 foot set back is ridiculous.
Chairman Young clarified with Dr. Anthony that he is going to cut down the ulu tree in question. Dr. Anthony agreed. Mr. Anthony would also like to remove some ofthe plants in the back of the Martinez property that was a part ofthe old RP area. Ms. Martines agreed.
Chairman Young suggested what ifthe Board was to authorize the RP, subject to an on the ground agreement and then the description would get reported back to the Board. Dr. Anthony agreed, but asked for a representative from State Parks to be present.
Mr. Quiun summarized the agreement to be the approval ofthe RP with the final configuration to be determined on site with a representative from DLNR, approved by the Chair, and then reported back to the Board. Chairman Young also clarified that included in the amendment is the permission for Dr. Anthony and Ms. George to remove some ofthe plantings as requested.
The Board:
1. Approved the issuance of a new revocable permit with the final configuration to be determined on site with the participation of DLNR, approved by the Chair, and the results reported to the Board.
2. Amend Staff Recommendation:
"2. Allow Grace George to remove plants from the former revocable permit area."
Unanimously approved as amended (Schuman, Edlao)
Item F-2 Request for Authorization to Issue one Northwestern Hawaiian Islands State Marine Refuge Special Activity Permit to Applicant Ms. Aulani Wilhelm of
15 the National Oceanic and Atmospheric Administration, Northwestern Hawaiian Islands Marine National Monument, for Certain Management Activities Within State Waters, Valid From February 1, 2007 to December 31,2007.
Mr. Polhemus reported that the applicant is agreeable to attaching the general permit conditions as laid out in the handout. The special conditions were for the previous permit and Mr. Polhemus feels that they are not applicable. Chairman Young asked Ms. Chow if she would be okay with the special conditions. She agreed that both the special and general permit requirements were okay.
Mr. Polhemus also mentioned that when they had review these conditions previously with the AG's office, they felt that condition 25 was not enforceable and potentially not within our authority. Deputy Attorney General, Linda Chow noted that ifthey were to state it as it being an encouraged action, then it should be alright.
Mr. Polhemus added that condition 29 d should be deleted since there is no dumping in the monument. Chairman Young disagreed but all it says is there is no dumping within State waters. Mr. Polhemus also thought that condition 31 needed to be amended because there is not always going to be a State trustee representative aboard the vessel, therefore, that clause should be stricken from the condition. Ms. Fried brought up that person next in line to keep the log would be the lead scientist, but felt that this was not appropriate. The Board then decided that the language should be changed and should be the appointed State or other co-trustee representative and not aboard the vessel.
Ms. Chow wished to make not on condition 19 in which a 10% bleach solution would be used; his is not always possible. There is currently a scientific review to see if the % of bleach used could be reduced to a 1% solution. This will be going back to the general council for review. So while the percentage may change, the intent is the same.
The Board:
1. Amend Staff Opinion:
"DAR staff is of the opmlOn that Applicant has properly demonstrated valid justification for her application, and that she and her staff should be allowed to enter the NWHI State waters and to conduct the management activities therein as specified in the application< [with] The applicant will operate under the following special instructions and conditions, which are in addition to the Special and General Conditions [imposed by the Applieation Guidelines] herein appended."
"5. Direct that the following activities that are not emergency responsive in nature shall require prior approval [eitheF by DAR in the t'6Fm of a peFmit amendment OF] by the Board in the form of a separate permit, as deemed appropriate by the staff in response to the Applicant's request..."
16 "6. In the case of time-sensitive activities that are not emergency responsive in nature, yet are necessary to "manage, preserve, protect and preserve the unique resources in the marine refuge," including activities associated with the aftermath of an emergency, such as a pre-assessment and assessment of a vessel grounding, or the identification of alien/invasive species, or conducting enforcement-related activities, or in response to a new disease outbreak, permittee must first ascertain and document, in writing, whether there is enough time to submit a formal permit application to the board prior to carrying out the activity. If time is sufficient for a Board submittal, Applicant must apply for a permit and submit the application for Board approval. If time is insufficient for a formal Board permit application, except in the case of an emergency, Applicant shall obtain prior written approval by DAR in the form of a permit amendment. This amendment will be brought before the Board at the next Board hearing.
[60) 7....
[~)8....
9. Direct, as per appended permit conditions, that all personnel sign and date the permit indicating that they have read and understood the conditions prior to departure for the NWHI, maintenance of daily waste and impact logs, full implementation of disease, invasive species, and anchoring protocols."
2. Append the attached Special and General Permit Conditions (see attachment)
Unanimously approved as amended (Edlao, Gon)
17 There being no further business, Chairperson Young adjourned the meeting at 12:05 p.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out of sequence to accommodate applicants or interested parties present.
Respectfully submitted,
Lauren Yasaka Approved for submittal:
PETER T. YOUNG Chairperson Department ofLand and Natural Resources
18 Attachment for F-2
SPECIAL PERMIT CONDITIONS
This permit is subject to the following conditions:
1. Collecting Practices:
a. Collecting activities under authority ofthis permit must be authorized and supervised directly, on site, by the undersigned Permittee or his appointed representative who shall take special caution to avoid any over collection or undue damages. No personnel shall be allowed to conduct collecting activities absegnt such authorization and superv,ision.
b. Permittee must notify DLNR, Division ofAquatic Resources (DAR), within one day in case ofmajor damage caused to coral or other marine resources as a result of collection or any other activities conducted under this Permit.
c. Bycatches shall be returned to ocean before chemical treatments.
2. This permit will authorize collecting, killing, and in-State transport ofdead material only, subject to the other conditions ofthis permit. No out-of-State transport ofany samples or biological products is allowed without prior written approval from DAR and legal signatures from any receiving parties agreeing to abide by all applicable conditions ofthis permit.
3. No intentional take/use/disturbance ofany live coral, pearl oyster, sea turtle, or monk seal. Incidental or accidental touches or interactions shall be minimized. Should the scientists on this mission encounter pearl oysters, sea turtles, or monk seals, they must take every precaution not to approach, disturb, or interact with them. Specifically, there shall be no touchltake/use/disturbance of any live Acropora colonies.
4. Pursuant to Section 188-23, Hawaii Revised Statutes, any use of electrical shocking devices, explosives or chemical substances is expressly prohibited, except to the extent that the following chemicals are allowed with stated limitations as follows:
a. A limited amount ofconcentrated chlorine bleach solution will be allowed aboard the NOAA ship for the decontamination of in-water gear, lab surfaces and tender vessels. Diluted chlorine bleach disposal will occur as listed below under Disease Protocols.
c. Chemical substances as referred to above shall not be carried aboard any ofthe tender vessels operating in the NWHI State waters.
5. A log or report of all waste disposal occurring aboard the vessel during the cruise shall be submitted to DAR O'ahu with the mandatory cruise report; log shall be maintained for all discharge occurring aboard the vessel and include time, date, volume, description of what was released and who released it and shall be signed by the Ship's Captain. No Black water, food scraps, solids, chemicals, or waste liquid will be released into State waters.
6. The Permittee will provide for all permittees (including all assistants) to go through a precruise mandatory briefing by DAR staffregarding the permit conditions and legal repercussions of non-compliance. 7. All personnel on this mission shall read and declare that they understand and accept the terms and conditions of these conditions (including general and special ones), and shall affirm by their respective signatures that they will abide by these terms and conditions. The above acknowledgement and declaration shall be completed prior to the departure ofthe ship from Honolulu. A copy ofthe signatures as appear on this Permit shall be delivered to the State, DLNR, Division of Aquatic Resources, prior to the departure ofthe ship from Honolulu. 8. All vessel hulls must be thoroughly cleaned of invasive species prior to departure. 9. Anchoring ofvessel at these islands is allowed only on sand or rocky substrate, but not on any corals. All anchoring activities within the lagoonal waters of FFS will involve directed placement of the anchor to avoid damage of coral, live rock, seagrass meadow and other habitats of concern. Anchoring will be done on sand or rocky substrate only.
GENERAL PERMIT CONDITIONS This permit is further subject to the following general conditions: NORTHWESTERN HAWAIIAN ISLANDS STATE MARINE REFUGE ACTIVITY PERMIT GENERAL CONDITIONS I. This permit does not make the Board of Land and Natural Resources or the State of Hawai'i liable in any way for any claim of personal inj ury or property damage to the permittee or assistants which may occur during any activity authorized by this permit; moreover, the permittee and all assistants agree to hold the State harmless against any and all claims of personal injury, death or property damage resulting from activities of the permittee or any assistant, actions or omissions under this permit. 2. This permit conveys a privilege to engage in activities within State waters under the jurisdiction of the Division of Aquatic Resources (DAR). The permittee is responsible for complying with all applicable County, State, and Federal requirements. 3. The permittee and other personnel are individually responsible and accountable for their actions while conducting activities authorized under this permit. Additionally, the permittee is responsible and accountable for the actions of the permittee's assistants. 4. This permit is not transferable or assignable. Any person whose name does not appear on this permit and is conducting any activity described herein is subject to prosecution for violations of State Laws. The permit holder must abide by all provisions set out in the permit as well as other applicable regulations. 5. Permitted activities must be conducted with adequate safeguards for the environment. To the extent possible, the environment shall be restored to its existing condition prior to the cessation of the permitted activity. 6. Permits must be carried aboard vessels and made available on request for inspection by DLNR or USFWS Refuge or other enforcement personnel. For in-water activities, it is recommended that a copy of the permit be laminated and available for display at all times, in addition to copies held by personnel and aboard the major form of transport into the NWHI State Marine Refuge and the NWHI Marine National Monument. 7. All private vessels used to access the NWHI Marine Refuge must carry a minimum amount of Wreck Removal and Pollution insurance, specifically targeted and sufficient to provide for the vessel's full extraction and removal from the NWHI should it run aground or experience difficulties. The extraction method used must meet with the approval ofDLNR and any other appropriate State or Federal resource trustees. 8. Any vessel causing damage to marine resources within the refuge may be subject to citation from DLNR and fines from the Board of Land and Natural Resources, in addition to costs necessary to mitigate the disturbance caused. 9. Recent concerns over the proliferation of alien algae in the main Hawaiian Islands have resulted in the need for a strong effort on the part of any visitor that conducts activities in the pristine waters of the NWHI to insure that they do not serve as vectors for the accidental introduction of these species. The minimum successful fragmentation size for at least two of the concerned algal species is less than I cm. DLNR requires that all activities in State waters in the NWHI take all steps necessary to eliminate the possibility of accidentally transferring these (and other) harmful species into new ecosystems where they might gain a foothold. As such, DLNR has developed a set of requirements for all divers and snorkelers to follow prior to departure for the NWHI:
a. Unzip and open all pockets on buoyancy compensators, dive bags and wet suits:
b. Submerge and soak all dive gear (including dive bags) and transecting gear for a minimum of 24 hours in 100% fresh water;
c. Thoroughly dry and then visually inspect all gear prior to departure for NWHI; and d. Any algal pieces must be removed and discarded prior to departure. 10. All tenders and dive boats (inflatables, whalers), engines, anchor lines, etc. will be visually inspected for any al.-al remnants or other alien species which must be removed prior to departure for the NWHI. If necessary, the vessels must be washed and fumigated prior to departure from the main Hawaiian Islands. This inspection is in addition to the overall vessel inspection mentioned above.
11. The same procedure above is required ofall expeditions traveling to multiple islands within the NWHI. If drying and inspection occur after departure then the algal pieces must be retained in sealed containers until they can be disposed of back on Oahu. Extreme care must be taken to kill these specimens (freshwater soak for 24 hours followed by drying and placement in sealed containers) during transport.
12. All participants (including crew) in a permitted activity or aboard a permitted mode oftransport will abide by the non-harassment ofprotected and unique marine wildlife policy. This includes staying away from Hawaiian monk seals and sea turtles, and minimize disturbance to assemblages of large apex predators such as jacks, sharks or grouper, and avoiding damage to any live coral or live rock.
13. In accordance with Federal and State Laws, there will be no intentional release of sewage from the transport vessel during the permitted expedition. All sewage will be held in a proper storage tank until it can be off-loaded to proper handling facilities or until other written approved protocols are in place. 14. Tenders will be outfitted with EPA omissions approved outboard engines that meet the latest environmental standards. 15. Refueling oftenders and all small vessels will be done at the mother ship and outside the confines of the lagoons or near-shore waters. 16. Tender and dive vessels will operate at slow speed and with a bow lookout in shallow water NWHI coral reef areas in order to minimize prop or bow damage to three dimensional coral reef habitat or endangered monk seals or sea turtles.
17. Anchoring: a. Permitted Transport Vessel: It is illegal to anchor on living coral reef areas in the NWHI. Transport vessels will endeavor to anchor as far offshore as possible and will try to predetermine anchorages prior to departure. b. Tenders and Dive Vessels: It is illegal to anchor on living coral reef areas in the NWHI while conducting inshore operations. In those areas where anchoring needs to occur adjacent to living coral resources, placement and retrieval of the anchor will be done by hand whenever this procedure can be done in a safe and prudent manner. 18. The permittee, assistants and ship's crew agree to provide access to data, logs, photos and other documentation obtained under, or required by, this permit upon request of the Division, and to allow Department staff to inspect on-board the vessel, or afterwards on the permittee's premises, any and all organisms and other samples collected under this permit. Furthermore, the permittee and assistants agree to provide to the Division a copy of each published report prepared with data obtained under this permit.
19. The permittee will sign an affidavit that all ship's personnel have been informed of the above provisions and have agreed to abide by these conditions prior to departure from the Main Hawaiian Islands.
20. This permit expires on the date indicated on Page I. 21. This permit is not to be used for nor does it authorize the sale of collected organisms. The research activity must be non-commercial and will not involve the sale ofany organism, byproduct, or material collected. Furthermore, any resources or samples collected are a public trust, and are not to be used for sale, patent, bioassay, or bio-prospecting, or for obtaining patents or intellectual property rights. 22. The permittee may not convey in any fashion (including, but not limited to, selling, trading, or giving) any corals, live rocks or any organisms collected under this permit to any person or party in Hawaii which does not already have a permit from the Hawaii Department of Land and Natural Resources authorizing possession of the same and without direct, written approval from the Hawaii Division ofAquatic Resources. 23. Permit holders agree to submit a project report and cruise log to DLNR within 30 days after returning to Honolulu. The project report will be a brief (1-2) page statement summarizing the results of permitted activities. A cruise log shall list the days spent in the Marine Refuge, activities carried out, approximate positions, and general observations. Permit holders must also provide DLNR with project summaries, GPS locations, visuals, technical reports, and/or catch reports (if applicable) for activities undertaken while in the NWHI Marine Refuge as specified in the conditions of their individual permit.
24. Permit holders are encouraged to immediately report to DLNR observation of any impacts to the marine resources, whether directly caused by their activities or not. This includes observations ofactivities conducted by other parties along with both natural and anthropogenic events. Permittes provide a valuable role as 'eyes and ears' on the water. All recorded observations by permittes will provide additional information and assist with management ofthe refuge. Such reporting shall include full documentation with notes, logs, photos, GPS, and other information as may by required.
25. A violation of any terms or condition of this permit or any violation of State law not covered by this permit may result in revocation of the permit and other penalties as provided by law. In addition, the Division may consider any such violation as grounds for denying any future permit applications. 26. The issuance of a permit shall not constitute a vested right to receive additional or future permits. There is no right to a renewal or re-issuance ofa permit. 27. The Board may immediately amend, suspend, or revoke a permit granted pursuant to these guidelines, in whole or in part, temporarily or indefinitely, if the permit holder(s) has acted in violation of the terms of the permit, or for any good cause shown. Formal notice of such action shall be subsequently communicated in writing to the permit holder and shall set forth the reason for the action taken. Any verbal notification from a Board representative of a violation will also result in immediate cessation of all activities within the Refuge.
28. Disease protocols:
a. All sampling and dive gear will be disinfected in an enclosed container for 10 minutes or more between sites with a fresh 10% bleach solution in order to kill any microorganisms and eliminate the possibility of disease transmission by researchers.
b. Wet lab surfaces will be wiped down after each activity with a fresh 10% bleach solution in order to kill any microorganisms and eliminate the possibility of disease transmission by researchers.
c. Tender vessels that have been inside French Frigate Shoals lagoonal waters (where diseased organisms are known to occur) will be disinfected by wiping down their internal and external surfaces with a fresh 10% bleach solution in order to kill any microorganisms and eliminate the possibility of disease transmission by researchers. This will occur when the vessel is outside State waters and prior to the support vessel leaving the immediate vicinity ofFrench Frigate Shoals.
d. Disposal of any water containing 10% bleach solution from above activities will,. occur outside State waters under applicable Federal and International laws
29. No live organisms of any kind will be transported within, or outside of, the NWHI State Refuge waters. Samples will be killed by freezing, immersion in ethanol, or other acceptable means aboard the vessel and prior to leaving the location of collection. 30. A daily log maintained by the appointed State of other co-trustee representative whereby any organisms collected will be documented on a daily basis relative to what was collected, the amount, the size ofthe specimens, the location (including specific GPS points), and the status ofthe specimen(s). The log entry will be signed by the person who collected the organisms and countersigned by the State representative after validation ofthe collection; this log will constitute a legal document for enforcement purposes.
1. The percentage ofbleach required may change MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, FEBRUARY 9, 2007 TIME: 9:00 A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Peter Young called the meeting ofthe Board ofLand and Natural Resources to order at 9:05 a.m. The following were in attendance:
MEMBERS
Mr. Peter Young Mr. Tim Johns Mr. Ron Agor Mr. Jerry Edlao Mr. Samuel Gon III Mr. Robert Pacheco STAFF
Ms. Charlene Unoki, Land Mr. Sam Lemmo, OCCL Mr. Dan Quinn, State Parks Mr. Paul Conry, DOFAW Ms. Jennifer Bethel Ms. Tiger Mills, OCCL Mr. Russell Tsuji, Land Mr. Dan Polhemus, DAR Mr. Gavin Chun, Land Mr. Dolan Eversole, OCCL Mr. Blaine Rogers, DAR OTHERS
{Note: language for deletion is [bracketed), new/added is underlined}
Item A-I Minutes ofJanuary 26, 2007
Unanimously approved as submitted (Jerry, Johns)
Item A-2 Amendment of November 17, 2006 Minutes as approved on December 8,2006
Unanimously approved as submitted (Agor, Johns)
Member Johns recused himself. Item D-ll Consent to Assign General Lease No. S-5654, Cates International, Inc., Assignor, to Grove Farm Fish and Poi, LLC, Assignee, Ewa, Oahu, Tax Map Key: (1) 9-1-005:Seaward. (ODLO/Steve M.)
Mr. Russell Tsuji, Administrator for Land Division, reported that the Land Division staff evaluated the financials to determine whether the premiums might be appropriate and met with Mr. Cates recently. The agreed upon premium was $1,000. Mr. Cates will decide whether to make arrangements to payor he will make a percentage due to the past years.
Chairman Young asked ifthe premium calculation was circulated. Mr. Tsuji responded in the affirmative.
Unanimously approved as submitted (Agor, Gon)
Item D-3 Cancellation of Revocable Permit No. S-2902 to United States of America and Issuance of Direct Lease to United States ofAmerica, Department ofTransportation, Federal Aviation Administration for Air Traffic Navigational Aid Purposes Together With a 20-Foot Wide Easement for Access and Utility Purposes, Kalaheo, Koloa, Kauai, TMK: (4) 2-3-07:21. (HDLO/Joanne)
Unanimously approved as submitted (Edlao, Ron)
Item D-7 Amend Prior Board Action of October 28, 2005 (Agenda Item D-ll), Acquisition ofPrivate Lands and Set Aside to Division ofBoating and Ocean Recreation for Addition to the Manele Small Boat Harbor, Manele, County of Maui, Island ofLanai, TMK: (2) 4-9-17:02 por. and Rescind Prior Board Action ofJuly 13,2001 (Agenda Item J-2) Issuance of Lease by Direct Negotiation to Castle and Cooke Resorts LLC, Manele Bay Small Boat Harbor, Island ofLanai. (PROJECT DEVELOPMENT/Gavin)
Mr. Gavin Chun, from the Land Division, reported amending prior board action of October 28, 2005 related to acquisition ofland at Manele Bay. He also reported that beside the Land Division, the Engineering Division and Attorney General's Office has been working a long time to negotiate the terms ofthe deal. He presented a warranty deed which indicates that Castle and Cooke are asking for some changes which staff and the AG's office approve but there seem to be other issues involved.
Deputy Attorney General Randy Ishikawa reported that the acquisition ofland from Castle and Cooke at the Manele Bay Small Boat Harbor will be used as part ofan improvement project that is underway now. On October 28, 2005 the Board approved this transfer oftwo acres to the State. Several discussions with Castle and Cooke have taken place over the past year. They're requesting that the deed be changed or amended
2 to delete testing ofhazardous materials. After many discussions it was agreed to remove the testing provision Castle and Cooke would still indemnify ifany hazardous materials are located on the property. After the subdivision there will be only three encumbrances, one is a subdivision and two unilateral agreements that are going to be remaining against this property. We won't be encumbering this two acre parcel which is coming over to the State. Castle and Cooke had also agreed to secure entitlement forecast in the earlier submittal. Ifit is approved by the board today we will go ahead and record it.
Mr. Midler ofCastle and Cooke expressed the intent is not to impose material obligations on the County, but recognition that there are unilateral agreements affecting all ofthe property. We don't believe the County would be willing to take those on.
Chairman Young clarified the question whether those obligations stay with Castle and Cooke or should it transfer over to the State? The question is whether we do it or you keep the obligation? On the subject ofthe encumbrance does that mean we have the obligation to do it?
Mr. Midler replied yes. Again, the intent is not to impose the obligations on to the State.
Chairman Young asked ifit would be done, whatever the conditions?
Mr. Midler stated that he was not that familiar with the conditions. I'm assuming they are pretty in oculus. There could be certain conditions that are peculiar to the owner of the property. For instance logs and things like that, but in regards to material obligations our intent is it should stay with Castle and Cooke.
Mr. Ishikawa stated so you could do a side agreement that goes through some split encumbrances where some we could take and some they should take.
Chairman Young asked Mr. Midler ifhe was ok with the drafted deed? Mr. Midler affirmed.
Mr. Ishikawa stated there's a number ofencumbrances present and recorded against the larger part ofthis 2 acre parcel which is being subdivided. .
Chairman Young asked ifphase one has been reviewed?
Mr. Ishikawa stated yes.
Mr. Midler replied we look forward to continuing our relationship with D.L.N.R.
Unanimously approved as submitted (Edlao, Johns)
3 ltemD-4 Amend Prior Board Action ofJune 12, 1992, Item F-14, Authorization to Withdraw Land from the Operation of General Lease No. S-4413 and Right-of-Entry to the Department ofTransportation, Highways Division for Contra-Flow Road Purposes, Wailua, Kawaihau, Lihue (Puna), Kauai, TMK: (4) 3-9-06:01 (por) and 012. (KDLO/Barry)
Unanimously approved as submitted (Agor, Gon)
Item M-l Issuance of a sublease to Slow Down Town LLC., dba Down Town at the HISAM for a Restaurant, Bar, and Grill, Including related Activities such as Catering for Events; Retail and Office Use at the No.1 Capitol District (formerly the Hemmeter Building), Honolulu, Oahu, Tax Map Key: (1) 2-1-17-001.
Unanimously approved as submitted (Johns, Edlao)
Item K-2 3rd Request for 60-Day Time Extension to the 180-day Processing Period for Conservation District Use Application (CDUA) OA-3266 to process Haseko request to utilize State-owned land for proposed drainage system improvements Ewa District, Island ofOahu, Subject Parcel TMK: (1) 9-1-11:002 and 003, c/o Sandra Wilhide Ishikawa Morihara Lau & Fong LLP, 400 Davis Pacific Center, 841 Bishop Street, Honolulu, Hawaii 96813, 808-528-4200
Unanimously approved as submitted (Johns, Edlao)
Item K-l Conservation District Use Application (CDUA) MO-3376 for Kuleana Land Use Single Family Residence and Sustainable Agriculture located at Kiaoao, Wailau Valley, Halawa, island of Molokai, TMK: (2) 5-9-005:007
Sam Lemmo ofConservation and Coastal Lands related that it was approved that a parcel used for residential and agriculture purposes has the right to continue those uses as presumably statute. This request is low key due to the relatively small structure, all self sufficient and obviously no road access. She plans to hike in on the trail to the residence. She went through the review process. Concerns were raised and addressed. She is here to seek your approval on the continued use ofsubstandard conditions.
Sam Gon stated it seems clear the applicant is suppose to have those rights with the family who had those kuleana rights.
Unanimously approved as submitted (Edlao, Johns)
4 Item D-8 Consent to Financing Agreement and Estoppel Certificate, General Lease No. S-4212, Western Apartment Supply & Maintenance Co., dba Maui Oceanfront Inn, Lessee, Kihei, Wailuku, Maui, Tax Map Key: (2) 3-9-04:029. (ADMINISTRATION/Charlene)
Unanimously approved as submitted (Edlao, Johns)
Item D-9 Forfeiture of General Lease No. S-4890, Millicent U. Crawford, Lessee, Maunalaha Homesites, Opu, Makiki, Oahu, TMK: (1) 2-5 24:07. (ODLO/AI)
Land Division Administrator, Mr. Russell Tsuji related that Ms. Crawford was going to have a relative take over the lease ofthe property.
Ms. Crawford requested ifshe could have until the end ofthe month to pay the rent and insurance. The tax office stated they will not charge her the real property tax because no one is on the property. She wants to pass the property on to her relatives.
Mr. Tsuji suggested deferring to March, but these legislations have a lot ofrestrictions with who can take over.
Chairman Young recommended withdrawing this and bringing it back lat
Unanimously approved as submitted (Johns, Edlao)
Item D-1 Consent to hire a consultant to design and implement a central database system to receive data from heterogeneous systems from multiple state agencies in order to comply with the reporting requirements ofSection 5, Act 178, Session Laws ofHawaii 2006 (SLH 2006). (INFORMATION SYSTEMS/Arthur)
Item D-2 Amend Prior Board Action of February 10, 2006 (Item D-1), Set Aside to the Division ofForestry and Wildlife for addition to Puu Ka Pele Forest Reserve at Waimea, Kauai, Tax Map Keys: (4) 1-5-1:1 and (4) 1-5-3:9,13,16,20,22 and 27; and Game Reserve Purposes at Waimea, Kauai, Tax Map Keys: (4) 1-5-1:2 and (4) 1-5-3:7,8,10,15, 17, 19,21,24, and 40.
Authorize the Division of Forestry and Wildlife to conduct a public hearing to add these lands into the Forest Reserve System. (ADMINISTRATIONlRussell)
Item D-5 Grant ofTerm, Non-Exclusive Easement to William T. Sturgis,
5 Trustee of the William T. Sturgis Family Trust Dated February 12, 1980 for Seawall Purposes, Lahaina, Maui, TMK: (2) 4-5-03:seaward of28. (MDLO/Daniel) ltemD-6 Grant ofTerm, Non-Exclusive Easement to Thomas R. Brayton and Christine D. Brayton for Seawall Purposes, Lahaina, Maui, TMK: (2) 4-6-003:seaward of05. (MDLO/Daniel)
Item D-10 Issuance of Quitclaim Deed to Goon Moon Lum, and Evelyn Sau Lan Wong Lum, Honolulu, Oahu; TMK: (1) 3-1-046:049. (ODLO/Barry)
Unanimously approved as submitted (Johns, Edlao)
Item J-1 Request for Renewal ofRevocable Permits on the Islands of Oahu, Maui, and Hawaii.
Item L-1 Approval for Award of Construction Contract - Job No. FOOCF54A, Individual Wastewater System Improvements At Wailua River State Park Opaekaa Falls, Wailua, Kauai, Hawaii
Item L-2 Approval for Award of Construction Contract - Job No. BOOD45A, Individual Wastewater System Improvements At Maalaea Small Boat Harbor Maalaea, Maui, Hawaii.
Unanimously approved as submitted (Johns, Edlao)
Item C-1 Request for Approval of the Design and Placement of Warning Signs on Improved Public Land. (Pursuant to Act 82, Session Laws Hawaii, 2003)
Paul Conry, Administrator ofForestry and Wildlife reported a change to the Sunshine law. After discussion with the Attorney General we will go ahead and approve the signs, but not approve the placement on those particular trails because they weren't noted in the title. Therefore, we are asking the board to approve the signs. The changes are page 2 the amendments to the submittal would be item 3, 2nd paragraph line 2 would remove the phrase [and approval]. We ask the board to provide us with some feed back on the actual form we would be using in the future. We're not asking for approval.
Chairman Young asked ifthe board will need to approve the placement ofevery sign on every trail?
Mr. Conry stated we are proposing to use it in the maps. Which will be the form and the process the board will use. Does this discussion meet the board's needs for information and presentation? Ifthat is agreeable then that will be the process we will use. We will
6 be back for the next board meeting and bring back the actual board submittal that lists the actual trails and the action specifically and have the maps attached for submittal.
Then Chairman Young queried is that required by statute where the board authorizes the specific placement ofthe signs as well?
Mr. Conry acknowledged, yes. The act does specifically state the board approves the placement. He agreed it would be cumbersome for us to go to every trail, but agreed the maps would suffice to full fill the intent ofthe trail.
Curt Cottrel, Na Ala Hele Program Manager added it's a cumbersome act for staff. The reason the AG is so interested and supportive ofthis is once you approve the design and approves the placement then we determine the way the placement works for you. We have 137 locations statewide that need signs. This triggers the presumptive conclusion that the signs are adequate. Should the sign say flash flood and the person is injured or killed by a flash flood we have immunity because the signs have been deemed adequate through this rigorous process and by the board. So what it means is the user has a responsibility. Government has done everything it could do to warn them. The user now has a choice and the user makes a choice and something happens. It's not government's fault. That is why this is a potent act for State Parks, Na Ala Hele and City and County ofHonolulu, who is now interested, too. Once we get this through we are paving the way for them.
Member Johns asked has there been discussion with Bob (Robert Toyofuku, representative ofConsumer Lawyers ofHawaii)? Is the act being complied with through this process as you described?
Mr. Cottrel replied Bob was really helpful with the rules. He doesn't have his comments on the map portion, but Bob wanted to give a consistent template placement. In terms of the plaintiffs methods it's just the design and placement. We are trying to agree on the placement. Where they are he didn't know. Bob didn't say anything negative.
Chairman Young stated there are three things we need to recommend on page two, number one, remove the words [in approval), we want to substitute the signed copy of the rules for exhibit 1 and we provided that. And on page six for the recommendations to strike in it's entirety a recommendation. What we are asking as a board is to approve the design ofthe signs to the entrance to sites specific hazard and site specific management signs.
Staffis requesting the following changes:
1. Page 2, Item 3, second paragraph
"Staffhas selected two priority locations and have prepared two prototype maps for your review [and approval] that delineate the placement ofthe warranted signage"
7 2. The Board deleted recommendation #2)
[Approve the placement ofthe signs at Manoa Falls Trail and Kealakekua Bay State Park as depicted on the maps showing the placement ofsigns in Exhibit 3 and 4]
Unanimously approved as amended (Johns, Edlao)
Item C-2 Issuance of Revocable Permit No. FW-2007-01 to Palani Ranch Company, Inc., Kailua-Kona, North Kona, Hawaii, TMK (3)-7-4 002:007 and (3)-7-4-001: por. 003.
Unanimously approved as submitted (Pacheco, Johns)
Respectfully submitted,
Adaline Cummings
8 MINUTES OF THE BOARD OF LAND AND NATURAL RESOURCES LAND BOARD BRIEFING
DATE: THURSDAY, FEBRUARY 22, 2007 TIME: 3:00 P.M. PLACE: KALANIMOKU BUILDING 1151 PUNCHBOWL STREET, ROOM 132 HONOLULU, HAWAII 96813
Chairperson Peter Young called the briefing ofthe Board ofLand and Natural Resources to order at 3: 13 p.m. The following were in attendance:
MEMBERS Mr. Peter Young Mr. Tim Johns Mr. Ron Agor Ms. Taryn Schuman Mr. Jerry Edlao Mr. SamGon III Mr. Rob Pacheco
STAFF Ms. Athline Clark, AR Mr. Bill Buck, DFAW Dr. Jill Samsau, Research Coordinator, State ofHawaii Mr. Bin Li, Acting Permits Coordinator, AR Mr. Wayne Haight, New Acting Permits Coordinator, AR
OTHERS Mr. Mark Tossato, Deputy, Pacific Islands Regional Fisheries ofNOAA Ms. Aulani Wilhelm, Superintendent, NWHI Mr. Don Plascki, Refuge Manager, U.S. Fish and Wildlife Service Ms. Heidi Guth, OHA Ms. Margaret Nagamine, Program Manager, NOAA Mr. Sean Carson, Acting Superintendent, NWHI Ms. Hoku Johnson, Permits, NWHI Mr. Andy Collins, Education Coordinator, NWHI Mr. June Glens, Deputy Refuge Manager, U.S. Fish and Wildlife Service Mr. Dave Bruski, Assistant Refuge Manager for Tern Island for Hillary Horvat Mr. Marty?, Environmental Alliance Ms. Stephanie Fried, Environmental Alliance
Item 1. Briefing on Northwestern Hawaiian Islands Marine National Monument joint permitting process.
This is an informational briefing ofthe Board, non-action item, public meeting. Some testimony has been submitted.
1 Introduction Aquatic Resources and joint Federal Agencies gave testimony on the new Northwestern Hawaiian Islands Marine National Monument (NWHI).
Binder A binder was handed out to members giving background information on the Establishment ofthe NWHI Marine National Monument, Federal regulations enacted to legalize the Monument and Memorandum ofAgreement with the State ofHawaii. Also State regulations, joint permit application, instructions, draft forms, summary form, 2006 permit register and World Heritage Programme.
Joint Permit Application Mr. Mark Tossato, Deputy ofNOAA Fisheries stated this is a coordination ofFederal and State agencies to meet all regulations and conditions to create one monument permit.
Ms. Athline Clark ofAquatic Resources spoke ofrepresentatives from all agencies and higher level agencies from Washington D.C. discussing each agency's laws and regulations are considered and the language used is agreed upon by all attorneys across the board. When we say joint they mean everything has been approved by all legal, management, and agencies. On some they are breaking new ground. We are working with the world experts to get the very best on disease protocol.
Mr. Tossato mentioned conditions are 100% grounded to State conditions and some Federal conditions.
Ms. Clark added the permit instructions and application took everything previously founded on what Fish & Wildlife was using and built upon it. Only difference is it's under Monument designation. We went from 3 permit types to 6 permit types and there are certain special conditions that must be requested under the proclamation for certain permit types. This will meet all the requirements ofall agencies. The last thing that happens is the Attorney Generals from all three agencies (solicitors, AG, General Council) get together and do the final. We are still working on the permit itself. They are trying to get the highest expertise to work on the special conditions and then bring it back to us.
Board member, Tim Johns asked is the public involved with the MAC/RAC or does this all go through the Land Board? Will you build in a MAC/RAC process?
Ms. Clark replied under the monument law there is no authority toward creation ofan advisory council. There is another law that runs right against this which is Federal law.
Mr. Tossato mentioned the Federal Advisory Committee Act restricts the Federal Government from collecting advisory advice unless it is mandated by statue. We still need to overcome that. The only mandated public process right now is the Land Board which we'll use to its fullest extent. NIPA is a required Federal Act which requires an environmental review. Public will have public comment.
2 Member Johns stated we need to create a process with RAC/MAC.
Ms. Aulani Wilhelm, Superintendent ofthe NWHI replied they are trying to get there. It is not the perfect process right now, but still open to solutions.
Ms. Clark said we are still working with legal to get the overall. As for the public permit process the Land Board will be the public process.
Board member, Johns questioned is the Land Board the appropriate venue for these permit type questions? Or should it be a different venue?
Ms. Wilhelm reported it is in the State rules. It is coming to the Land Board unless those rules change. Perhaps ifthere is another venue down the road. Majority ofthe marine permits will come through the Land Board. There are a number ofpermits that are on Federal Land are ones that will not come before the board.
Board member Johns said we're joint managers.
Ms. Wilhelm mentioned the policy decision is three agencies co-managing with three signatures on every permit regardless whether the permit comes to the board, State or Peter (or delegate) will sign even ifthat permit does not come before the board.
Board member Johns inquired can we change our rules where he can't sign or State can't sign unless it goes before the Land Board whether it's in State waters or not?
Ms. Wilhelm replied I have no answer to that.
Video NWHI - To give a sense ofplace and not people to the place.
Memorandum ofAgreement Ms. Clark reported what it does is give the vision, mission and guiding principles for the management ofthe NWHI. It creates two types ofmanagement boards first is Senior Executive Board which is the State ofHawaii and high level representatives from the Department ofthe Interior & Commerce. Also creates a Monument Management Board which includes two agencies from NOAA, two representatives from Fish & Wildlife and three representatives ofthe State ofHawaii which are Division ofAquatic Resources, Division ofForestry and Wildlife and Office ofHawaiian Affairs.
We are still trying to come together. It is a work in progress.
Permit Dr. Jill Samsau, former Permit Coordinator reported permitting goals and trying to simplify the permit process. Joint permit is on line in the Monument website. Three types State had in 2006: education, research monitoring and special permit.
3 Chairman Young stated we (State) haven't changed our permitting process. We still have 3 permits. Sounds like you separated in multiple ways, but still satisfies the State rules of one of3 types ofpermit.
Ms. Clark stated why we are separating it is what is in the proclamation and what is in the regulation catches up.
Ms. Wilhelm replied we are working towards a single joint permit. Until all the regulations are met for everyone.
Chairman Young inquired this raises the question do we need to amend our rules?
Dr. Samsau reported there three yearly deadlines first permit deadline was February 1, 2007 and the next permit deadline is October 1st, 2007. May 1st is for cruises.
Board member Johns asked have you taken into account the cumulative effect for the permit applications that may have been applied for the same period?
Ms. Wilhelm replied yes they have. Right now it's manual. We are trying to keep from doing duplicate work.
Dr. Samsau reported this is what happens. They receive the applications, check for completeness, collated and sent out to appropriate agencies. Ifthere is a need for consultation 45 days before the activity starts then the applicant needs to address any comments. Then ifit needs to come before the Land Board it must be posted 6 days before the meeting.
Reviews Board member Johns asked is the internal review at the State level done by you, committee, or scientists?
Ms. Clark said DOFAW, State biologist, OHA, historic, etc. The form is a work in progress. The reviews are from all over. One form to make it easier. They will look at each permit type, recommendation, purpose, etc.
Board member Johns queried on the identity ofthe reviewers. Do they do it in committee or individually?
Ms. Clark replied they will do it individually and then compiled together. It will encompass all reviewers at the end.
Mr. Don Plascki from US Fish and Wildlife stated under their refuge law they will do a compatibility determination which is a public process because it is noticed in the newspaper. The people see it in advance.
4 Ms. Clark confirmed that we will not see the individual reviews, but we'll see an aggregate review that will include everything.
Permit Conditions Dr. Samsau went over the step by step permit process.
Mr. Tossato stated there will be a set ofgeneral conditions for all permits and special conditions. For example there is a dive permit.
Member JoOOs inquired will this be a situation where they go back and forth?
Mr. Tossato replied they will implement State and Federal rules and make as many thought out decisions ahead oftime.
Ms. Wilhelm stated they hope everyone could come together with the lawyers to set the criteria and conditions for this one permit because anyone denial will not work. The application is completed and the permit form is getting finalized
Member Pacheco had a concern ofthe number ofpeople. Is there are way to limit the number ofpeople who go there?
Mr. Tossato explained people are not the best to measure by. The types ofactivities, number and location ofthe activities are the things to look at.
Member JoOOs explained ifyou can do the activities in three than why have six?
Mr. Tossato agreed. All the staffis concerned with how this permitwill affect the monument. Fisheries will always be there to continue research. The entire northern area no longer allows fishing.
Chairman Young asked on the permit ifit goes into State waters it goes to the Land board and ifit doesn't go into State waters it does not go to the Land Board? Or would we delegate it?
Ms. Wilhelm replied in agreement the State would decide this. All three parties Federal, State and Monument will have to sign. Even access for research.
Chairman Young stated on the forms they should bring it and they should use it as form and process.
Summary The presenters wanted to apprise the board ofthe j oint application and how it will be processed. We will continue to come before the Land Board for upcoming permits in State waters. NOAA and the other agencies will provide input and more comprehensive analysis prior to submitting the permit. Also per Chairman's suggestion we welcome
5 approving permits outside the three mile area. And some standard language will be worked out with the Attorney General where all parties are consistent with one another.
Ms. Heidi Guth, Lead Advocate for Native Rights ofthe Office ofHawaiian Affairs. OHA is concerned with this process and concerned with the quick turn around. They felt things are being pushed through without considering the natural and cultural resources. How is the public going to be more involved? We want to incorporate the Native Hawaiian perspective into the form.
Chairman Young stated those forms are not to be shown publicly. He is still waiting for information from the Office Information Practices on what is confidential? They are sure that this form will change.
Ms. Marty? ofEnvironmental Alliance stated they are concerned with the number of permits going through. They would like a break down ofwho, what they are planning to do and when would be helpful.
Ms. Stephanie Fried representing Environmental Defense presented testimony.
The meeting was adjourned at 5:13 p.m.
Respectfully submitted,
Adaline F. Cummings
Approved for submittal:
atural Resources
6
MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, FEBRUARY 23, 2007 TIME: 9:00 A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Peter Young called the meeting of the Board of Land and Natural Resources to order at 9:11 a.m. The following were in attendance:
MEMBERS
Mr. Peter Young Mr. Tim Johns Mr. Ron Agor Mr. Jerry Edlao Mr. Samuel Gon III Mr. Robert Pacheco Ms. Taryn Schuman STAFF
Mr. Dan Quinn, State Parks Mr. Paul Conry, DOFAW Ms. Jennifer Bethel Ms. Athline Clark, DAR Mr. Russell Tsuji, Land Mr. Dan Polhemus, DAR Mr. Eric Hirano, ENG Mr. Ed Underwood, DOBOR
OTHERS
{Note: language for deletion is [bracketed], new/added is underlined}
Item A-1 Minutes of February 9, 2007
Member Schuman recused herself.
Unanimously approved as submitted (Edlao, Gon)
Item D-4 Final Approval of the Acquisition of Private Lands and Set Aside to Department of Land and Natural Resources, Division of Forestry and Wildlife, for Addition to the Existing Honolulu Watershed Forest Reserve for Watershed Protection and Research, Native Species Habitat Restoration, Endangered Species Recovery, and Forest Recreation, Education and Management, Moanalua, Honolulu, Oahu, TMK: (1) 1-1-013:001 & 002. Final Approval of the Acquisition of Private Lands and Set Aside to the City and County of Honolulu for Park and Recreation Purposes, Moanalua, Honolulu, Oahu, TMK: (1) 1-1-012:035. (PROJECT DEVELOPMENT/Gavin)
Mr. Russell Tsuji, Administrator for Land Division, reported a project that Land Division and Forestry have been working on for awhile the State acquired at Moanalua. The State will acquire all except for the park which they will set aside for the County and are acceptable to that. There is potential issue of hazardous materials which TPL will take care of through studies. There is a potential issue with rock fall, but otherwise no changes to the submittal. Commend Gavin Chun and Linda Chow.
Member Edlao inquired of the rock fall potential?
Mr. Tsuji stated there was an issue with a home owner and Damon Estate of a rock fall into the drainage, but the easement required the home owner to maintain the drainage.
Ms. Linda Chow, Deputy Attorney General, replied there were a couple incidents. There has been some rock fall mitigation and mesh was installed.
Member Gon asked if all the rock hazard areas are on the makai portion?
Mr. Tsuji replied and there are some homes along the golf course portion near Tripler Hospital.
Member Gon also asked: is there any preventive measure along that lower edge?
Ms. Chow answered the engineer recommend they do an annual inspections in problem areas.
Member Gon asked: and is it likely we will be allowing development in hazardous areas?
Ms. Chow it would be unlikely because the area is conservation.
Ms. Lea Hong, Hawaiian Islands program director of Trust for Public Lands, wished to commend Linda Chow and the rest of the staff for protecting Moanalua Valley.
Unanimously approved as submitted (Schuman, Gon)
Item D-6 Issuance of a Direct Lease to the University of Hawaii, College of Tropical Agriculture and Human Resources, Fee Simple Conveyance of State Land to the Department of Hawaiian Home Lands and Amend Prior Board Action of September 25, 1998 (Agenda Item D- 17), and May 9, 1997 (Agenda Item D-26), Koolaupoko, Waimanalo,
2 Oahu, TMK: (1) 4-1-08:5, 79 and 80, and (1) 4-1-26:4 (SUPORT BRANCH/Gary)
Mr. Tsuji reported this has to do with property at the former Meadow Gold site at Waimanalo. It involves two parts. One part is a lease to University of Hawaii. Second part is carving out a fee simple transaction to DHHL.
1. Recommendation 1, 3rd line: Delete [“the subject 283 acres, more or less,”] and replace with “TMK: (1) 4-1-26: 4 and (1) 4-1-08: Portion 5 and Portion 80. Exact area to be worked out between UH and DHHL.”
2. Recommendation 2, 2nd line: Delete [“the subject 104 acres, more or less,”] and Replace with “TMK: (1) 4-1-08: Portion 5 and Portion 80. Exact area to be Worked out between UH and DHHL.”
3. Recommendation 2c, 1st line; Delete [“of the subject 104 acres”]
DHHL and tenants, Domonique and Shaun Kadooka are here.
Chairman Peter Young inquired you are saying this is on condition between UH and DHHL? Does this address the tenant’s issues?
Mr. Tsuji stated there are some issues which Linda Chin will address.
Ms. Linda Chin of the Dept. of Hawaiian Home Lands Home Management Division reported they went out to the site and originally they wanted the 52 acres under the Wong Farm to expand their homestead program. They had an applicant who wished to reside at Waimanalo. They discussed with the farmers and DLNR staff and they will take all responsibility. They decided to leave the acreage open and work it out with UH.
Chairman Young asked are the three parties in agreement? Are the Kadooka’s ok with working it out this way?
All parties acknowledged yes.
Member Gon asked if there was a buffer in case of rock fall?
Ms. Chin replied yes that is what it is for.
Unanimously approved as submitted (Schuman, Gon)
Item D-7 Grant of Perpetual, Non-Exclusive Easement to Department of Defense, State of Hawaii for State Civil Defense Warning and Communication Siren Purposes, Kuliouou, Honolulu, Oahu, TMK: 3- 8-016:081 (por). (ODLO/Cecil)
3 Mr. Tsuji reported he had no changes to the submittal.
Unanimously approved as submitted (Edlao, Pacheco)
Item J-1 Request for and Consent to Dismissal of Contested Case Hearing in Matter of Docket No. BORCCH-06-02 Regarding Proposed Joint Use Agreement for Dewey Lane, Waikiki, Oahu, (1) 2-6-009:002 and 10, (1) 2-6-07 (por), Public Right of Way as Shown on Map 4 Land of the Land Court Consolidation 64, the Request for Which had Been Previously Granted on March 10, 2006 on Agenda Item J-1.
Mr. Ed Underwood, Administrator for Div. of Boating and Ocean Rec. has no amendments.
Unanimously approved as submitted (Schuman, Pacheco)
Item C-4 Request for Approval of a Hunting Agreement Between the State of Hawaii Department of Land and Natural Resources and the Board of Water Supply, City and County of Honolulu for Watershed Programs.
Mr. Paul Conry, Administrator of the Div. of Forestry and Wildlife reported this for an agreement between the State and Board of Water Supply to open up their lands in Manoa for the State hunting program. The hunters will sign a waiver and DLNR will manage it.
Member Johns asked: this is not a game management area?
Mr. Conry replied: no it is not. It’s Board of Water Supply’s lands.
Member Gon queried: to what extent do county and private land owners open their property? Is this statewide?
Mr. Conry said yes, we will cooperate with land owners and in cases pay them to use their lands such as on Lanai. There are other instances with other land owners as long as the department manages it.
Member Gon also asked: is, there any easy way for the public to find out about these public accessable hunting areas?
Mr. Conry replied when they have long time agreements that will become part of their rules. This is a temporary measure, but hope to make this long term.
Mr. Wayne Johnson representing Animal Rights Coalition reported pigs can feel pain and wants the board to not approve this.
4 Unanimously approved as submitted (Schuman, Gon)
Item C-6 Request for Amendment of the Hawaii Invasive Species Contract 53779 to the University of Hawaii so that a 3-Month Time Extension may be pursued.
Mr. Paul Conry reported this is a study of foraging and movement of a parrot on the island of Oahu using mist net and live catcher. We are asking for a 3 month extension and recommend board approval.
Mr. Wayne Johnson of Animal Rights Coalition stated the principal investigator (Kristen Silvia) is on sabbatical in San Diego for a year. There is a documentary on these or similar parrots on San Francisco’s Telegraph Hill where they moved to another area. Recently Dept. of Agriculture killed a squirrel from an incoming flight. If it’s an invasive species we kill it. He doesn’t want us to kill in such a beautiful state.
Member Gon commented: on how much extinction has happened to our native species. Hawaiian birds belong to the Hawaiian Islands and it is important to study the habits of non-native species for public health reasons and for their impacts on all the native species that are here. If I had a choice between protecting native species and ecosystems or seeing alien species removed and even killed, I would choose protecting the native ecosystems of Hawaii.
Member Pacheco added that the research does not involve killing the bird(s). It’s only to check their movements.
Unanimously approved as submitted (Gon, Pacheco)
Item C-1 Request for Approval of the Placement of Hazard and Management Signs on Improved Public Lands: Manoa Falls Trail, Honolulu, Oahu and at Kealakekua Bay State Historical Park, Hawaii, Pursuant to Act 82, Session Laws Hawaii, 2003
Item C-2 Request for Approval of the Hilo Forest Reserve Koa Regeneration and Salvage Project Management Plan as Required by Chapter 183- 1.5, Hawaii Revised Statutes and the Department of Procure Services for Commercial Koa Salvage Work.
Item C-3 Request for Approval of the Deed of Conservation Easement Including Development Rights Made by Dunbar Ranch Partners in Favor of Maui Coastal Land Trust; and Final Approval of a Land Conservation Fund Grant of $1.1 Million to Maui Coastal Land Trust for Partial Match for the Purchase of the Agricultural Conservation Easement on Kainalu Ranch, Molokai.
5 Item C-5 Proposed Public Shooting Range in the Makai Area of the Puu Anahulu Game Management Area (GMA) of the Big Island, North Kona District, Hawaii, Tax Map Keys (3) 7-1-003 and 7-1-004.
Unanimously approved as submitted (Pacheco, Gon)
Item D-5 Issuance of Right-of-Entry Permit to Sustainable Resources Group Intn'l, Inc. on Unencumbered Lands, Waimanalo, Koolaupoko, Oahu, TMK: 4-1-013:001 (por), 4-1-015:001 (por). (ODLO/Cecil)
Andy Hood representing Sustainable Resources Group II is fine with this.
Unanimously approved as submitted (Schuman, Gon)
Item D-3 Consideration of Request to Extend Right-of-Entry Over State Lands for Access Purposes to Lani Stark at Honopou, Makawao, Maui, TMK (2) 2-9-003:020 por., as Provided by Amended Board Action of July 28, 2006 (Item D-2) (MDLO/Daniel)
Mr. Tsuji reported bringing back a matter involving a Ms. Lani Stark. Attached are two exhibits, of a prior board action. We have a State lessee, Mr. Lafayette “Laf” Young and Ms. Lani Stark has a neighboring property. Previously the board gave her Easement A to access her kuleana landlocked property. Many years ago there was a board action where she could apply for Easement B, a second access. The last time it went before the board the issue was a lot of commercial activity in ag zoned land. We brought it to the board and the action was to amend the prior board’s action and rescind the easement deferring for 6 months allowing Ms. Lani Stark right of entry to use Easement B for limited use of gardening. At that prior board meeting Mr. Daniel Ornellas, Maui Land Agent went to the property in question and thought Easement A was adequate for access. Ms.Lani Stark was insistent that she needed Easement B.
It’s been six months and her right of entry is up and she is requesting an extension. Mr. Larry Pacheco, a new Maui Land Agent was a former military police officer, Maui police officer and DOCARE officer. He accompanied Mr. Ornellas and saw the site last month. They confirmed Easement A was adequate for Ms. Lani Stark to access her entire property. Attached exhibits of photos show the gravel path that Ms. Stark can use to access her entire property. The staff is not recommending an extension of right of entry. They are recommending a denial of extension of any right of entry. His Maui Land agents are here for questions. Ms. Stark is here.
Chairman Young stated lets get oriented to the map, Exhibit A. You’re suggesting continued use of Easement A be allowed and to no longer continue approval of use of Easement B.
6 Mr. Tsuji added use of Easement B was only limited for her to water her plants. But Mr. Ornellas and Mr. Pacheco found Easement A was adequate and if you have questions they are eye witnesses.
Chairman Young asked: we are still allowing access to the property? Once they are on their property they make their way to however they want to get to their property?
Mr. Tsuji replied yes Easement A will remain for access from the highway to reach Ms. Lani Stark’s property. We are really talking about Easement B.
Chairman Young wanted to check that we weren’t taking away access of a property by denial of Easement B.
Mr. Tsuji noted in the board submittal that Ms. Stark is interested in doing a commercial tour activity with her garden. This action does not affect it in anyway. If she desires to use Easement A for commercial activity she will need to get Chapter 343 compliance. She should obtain an environmental assessment or EIS because this easement was meant for personal access use for ag zoned land and not for commercial activity. The amount of vehicles parked there was inappropriate for ag land. There were other violations we noted in the last board submittal. Staff noted it was not corrected even when the board made it a condition to correct some of the violations. Mainly we are here for Easement B right of entry and recommending a denial of any further extension. The easement document was never executed. It was a board action many years ago.
Chairman Young inquired we acted on a six months to allow?
Mr. Tsuji replied it was to allow her right of entry to do her gardening. The six months was for her to do her commercial tours which she insisted on. In this ag zoned area she would have to go through environmental assessment process under chapter 343 of HRS. I understand she started it, but has not completed. That was what the six months was for. This board action is not saying you cannot do commercial activity. But you must comply with the law which is Chapter 343. In the meantime Easement A should only be used for access, but not for the kind of heavy impact that commercial tours would have on Easement A. Maybe not tour buses, but a high number of vehicles were traversing the area. At the prior board submittal it was noted that there were a lot of complaints from the surrounding neighbors. And from a Mr. Laf Young who is a tenant on the State property.
Chairman Young noted on exhibit LS-1A talked about July 2006 agenda item it recommend from the board to terminate, but the action was to extend for 6 months. The board has already moved to terminate? We already rescinded to deny? You’re coming back for reconfirmation?
Mr. Tsuji replied a confirmation is not necessary. It is actually terminated.
7 Chairman Young asked to refresh our memory we had already voted to rescind that Easement?
Mr. Tsuji confirmed that’s correct. Since Mr. Ornellas had submitted the reconfirmation, although Mr. Tsuji didn’t think it was necessary. We are here. Board members should have the letter from Mr. Laf Young.
Ms. Lani Stark presented what was shown from the prior board meeting and documents since that meeting. She was working with a lady from the Dept. of Environmental Quality Control who said she was being discriminated against.
Chairman Young asked did they send you a letter saying an environmental assessment was not required?
Ms. Stark replied they told her verbally.
Member Edlao asked: who she spoke to?
Ms. Stark answered she spoke to two agents, but did not want to give their names.
Chairman Young asked: did the Office of Environmental Quality tell you specifically you do not need an environmental assessment for an easement over state land?
Ms. Stark replied they told her for this particular easement she is being discriminated against.
Chairman Young also asked: did you tell them it was on State land and it was for creation of a roadway over State Land?
Ms. Stark answered I didn’t create this. When she bought this property that road was in existence.
Chairman Young asked: was that easement for commercial purposes? Or was it was for access to utilities and residence?
Ms. Stark replied it was for access to utilities for a secondary residence on the property.
Chairman Young inquired are you using it for access and utilities for a secondary residence or are you using it for commercial activity?
Ms. Stark stated she needs to answer the question in chronological order. She presented history, background and documents.
Chairman Young stated we don’t have jurisdiction of land use on your parcel because it is agricultural. However we do have jurisdiction of land use on State property.
8 Ms. Stark replied yes, she understands that.
Chairman Young asked: are you clear that you still have continued use and access of Easement A and that we are not denying you that?
Ms. Stark answered yes, she understands that.
Chairman Young inquired we have fulfilled a legal obligation to you having a landlocked parcel by giving you legal access to your parcel?
Ms. Stark acknowledged yes.
Chairman Young also added your request to extend your right of entry is denied over Easement B, but it does not take away your right to access your parcel? We have given you Easement A.
Ms. Stark says it does. She understands Easement A is her right.
Chairman Young added it is a kuleana right, not necessarily a birth right.
Ms. Stark stated that Easement B is a necessity as well as Easement A. She needs Easement B to access the back of the property to an additional building site. The topography makes it difficult to access the back of the property. She presented a map saying there is topography on it.
Chairman Young replied there is no topography drawn on it.
Ms. Stark explained there is a drop off because of a gully and that is why she needs Easement B to access that part of her parcel. It is State property
Chairman Young asked: why don’t you just get some heavy equipment to widen the pathway?
Ms. Stark replied this easement was already in existence. The topography of the rest of the gardens do not allow for that. She states she thinks it’s unsafe, but then says she is not a land surveyor.
Chairman Young asked: how are you going to judge it is unsafe?
Ms. Stark explained if you came and saw it. It’s very unstable and could wash out.
And she added that the letter that Mr. Ornellas had her sign stated she hadn’t complied which she says she did. Then continued explaining all the research she had done, presented maps, etc.
9 A Ms. Akahi Panini spoke in support of Ms. Stark. Her son does maintenance on the trails for Ms. Stark. Ms. Panini stated the walk between Easement A and B is a long distance.
Member Gon asked: is access on A better than access B or both? And would you need both to get to the gardens?
Ms. Panini replied yes both because both are used to haul equipment, fertilizer, etc.
Member Pacheco asked: if you are not allowed any commercial activities, what other way are you funding to upkeep these gardens?
Ms. Stark replied I had to take a mortgage.
Member Edlao asked: did she go through the application process?
Mr. Tsuji acknowledged: yes, that is what the board acted on. Her map is shown to tourists.
Ms. Panini stated the property has been used for educational purposes to teach Hawaiian plants and Ms. Stark is very respectful of the Hawaiian culture.
Mr. Pacheco reported she has direct access to her property. There is a 3 foot wide path all throughout it. Easement B is used to make it easier to get there.
Chairman Young asked: could you get heavy equipment up the easement easily?
Mr. Pacheco replied absolutely. The existing ginger trail will take you where she wants to go. They drove the state vehicle on the trail with no problem. He has no problem with eco-tourism if managed properly. This was brought to their attention because there were complaints of cars everywhere and Ms. Stark was out front collecting money. If that is your idea of education! I don’t know. But if the intent is to be safe in the agricultural areas, then this is not the area for that level and volume of tourism.
Member Pacheco asked if the one easement was sufficient then why was a second easement given?
Mr. Tsuji answered it was Land Division staff. He didn’t agree with some of the things that were recommended in the past. They are tearing up the State parcel on Easement A. Why tear up a second time with Easement B?
Member Pacheco asked how long did Ms. Stark run her commercial business?
Ms. Stark replied: one month.
Unanimously approved as submitted (Edlao, Schuman)
10 Item F-1 Request for Authorization/Approval to Issue One (1) Northwestern Hawaiian Islands (NWHI) Research Permit to Dr. George Antonelis, of National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service, Valid from March 8, 2007 to the end of April 2007, to Access Sites in the Waters Surrounding French Frigate Shoals, Laysan Island, Pearl and Hermes Atoll, and Midway Atoll to Capture and Tag Monk Seals, and to Conduct Monk Sea and Cetacean Surveys, for the Purpose of Contributing to the Understanding of Monk Seal and Cetacean Population Dynamics in the NWHI.
Ms. Athline Clark of Aquatic Resources stated no changes.
Member Edlao had a concern about recreational swimming because of the wording. Please correct the wording on who may swim.
Dr. Charles Littnan of NOAA Fisheries replied it is for habitat research only.
Member Schuman asked weren’t there special conditions the last time to the previous permit? Shouldn’t we be considering those special conditions?
Ms. Clark replied they would get a copy to the members.
Member Schuman was concerned this application would be signed and submitted again later?
Ms. Clark apologized the time to do the permit was short. An application is attached.
Member Edlao asked about the additional ecosystem sampling.
Dr. Dave Johnston of NOAA Fisheries explained this is a fish finder like an echo sounder on a fishing boat. There is no affect on the fish.
Member Edlao asked are these fish killed after you catch them?
Dr. Charles Littnan stated: no, they need to change the language.
Ms. Clark added this is Federal NOAA language.
Ms. Stephanie Fried from Environmental Defense stated there were a lot of problems with this application and the form was not used properly. When the application went in they had all the information on the vessel, but none of it was included in the permit. Nor was the ecological information included. There are a lot of questions not answered. Who is monitoring? She relayed information about an incident with a vessel.
Member Pacheco asked: is this boat permit for multiple boats?
11
Ms. Fried replied yes they could go on different boats. Also the requirements of the boats are not listed. A lot of missing documents not included. The State has a list of questions that needs to be included on this permit. Top part is a gag order.
Chairman Young replied we withdrew it yesterday. He told them to take it (the gag order) out of circulation.
Member Pacheco asked: how many DAR staff received this?
Ms. Clark replied they only sent to DAR biologist. Not to regular staff.
Member Pacheco asked: could we state what is the “gag order?”
Ms. Fried answered you may not discuss the contents of the applications outside the Division. You agree not to retain the documents in whole or part related to this review. And I agree not to contact the applicants related to their review.
Ms. Fried shared some information on Bio-safety. She stated: please have Bio-safety protocol in place beforehand.
Ms. Clark explained all State safety policies will be applied to this. All controls will be included as updated.
Ms. Fried wants us not to use this permit. They should provide the permit matrix. Why does it show one in March, but there is no information on it?
KAHEA had concerns that a lot of areas have not been addressed in regards to the permit. NWHI is a pristine place and we had one mistake already. We need a moratorium and to set things in place first.
Member Edlao had a concern with the recreational swimming.
Member Pacheco also asked is exercise swimming allowed? We need to differentiate between recreational swimming and bathing. This is hard to regulate.
Member Schuman asked: are there any special conditions?
Ms. Clark replied: there were two added to the NOAA permit. 1. What was considered an emergency. 2. Who, what, timeline, etc. Same general permit conditions, but time sensitive.
Member Pacheco inquired where are these conditions in the permit?
Ms. Clark stated they did not attach all conditions each time because the Board has seen these previously. They have someone who is creating a GIS data base for the activities.
12 And there are people who are going up on a boat to research insects and the Battle of Midway.
Member Johns replied we need to get the best information we can get on the NWHI.
Ms. Clark agreed and they are posting everything from yesterdays briefing on their website.
Member Pacheco and Johns both stated they would like them to provide all information to see the whole picture. It tells the researchers how this is going to work.
Ms. Clark reported they will have three deadlines a year and depending how many permits come in for that season. February is the busiest season.
Member Gon requested, as a precautionary measure, if staff could provide copies of the conditions each time it comes in with permits because members cannot remember each time.
Member Pacheco and Johns expressed their concerns of damaging this pristine area and the risks of bio-hazard. Whether bringing something from there here or from here there.
Ms. Clark reported the language will be made consistent with swimming and bathing.
Unanimously approved as submitted (Agor, Edlao)
Item F-2 The Division of Aquatic Resources Requests Board of Land and Natural Resources (BLNR) Authorization/Approval to Issue One (1) Northwestern Hawaiian Islands (NWHI) Research Permit to C.O. Karl Mangels, National Oceanic and Atmospheric Administration (NOAA) Ship Oscar Elton Sette, for Access to State Waters to Support Marine Research Activities.
Ms. Clark reported this was not reviewed by OHA. The vessel has been inspected and fishing is not allowed. There are bio-hazard concerns.
Commander Karl Mangels reported the ship has to follow stringent Federal protocols. It has a health advisor on board who administers the protocols.
Member Johns asked is it anything like the bio-hazard book Stephanie Fried passed out?
Commander Mangels replied no he is not aware of it.
Ms. Clark stated fishing is not allowed in State waters and it is not allowed within the NWHI Monument.
13 Commander Mangels stated: the fisherman listed is a title for a position classification. They launch small boats, operate winches and a variety of equipment.
Ms. Clark clarified that there will be swimming only to maintain ship operations.
Unanimously approved as submitted (Gon, Pacheco)
Item D-1 Consent to Assign General Lease No. S-5642, JJCO Inc., Assignor, to JJCO Properties, LLC, Assignee, Waiakea, South Hilo, Hawaii, TMK: (3) 2-2-32:62. (HDLO/Gordon)
Member Schuman recused herself.
Unanimously approved as submitted (Pacheco, Edlao)
Item D-2 Amend Prior Board Action of April 13, 2006, Item D-3, Cancellation of Revocable Permit No. S-7085 to Kau Agribusiness Company Inc.; Issuance of Revocable Permit to Edmund C. Olson, Trustee of the Edmund C. Olson Trust II for Use of Water from Noguchi Tunnel; Wood Valley and Kau Forest Reserve, Kau, Hawaii, Tax Map Keys: (3) 9-6-06:15,16,17,18; (3) 9-6-07:02; (3) 9-6-08:39,45,46 and (3) 9-7- 01:01,18. (HDLO/Joanne)
Unanimously approved as submitted (Pacheco, Agor)
Item E-1 Request From the World Triathlon Corporation to Use the Hapuna Beach State Recreation Area in South Kohala, Hawaii, for the 2007 Ford Ironman 70.3 Hawaii Half Triathlon.
Unanimously approved as submitted (Pacheco, Edlao)
Item L-1 Approval for Award of Construction Contract – Job No. F54B609A, Wailua River State Park, Marina Roadway and Parking Lot Resurface Wailua, Kauai, Hawaii.
Unanimously approved as submitted (Johns, Edlao)
Item M-1 Issuance of a Direct Lease Schuman Aviation Company, Ltd. Honolulu International Airport.
Member Schuman recused herself.
14
Item M-2 Issuance of a Restaurant and Lounge Concession at Lihue Airport
Item M-3 Issuance of Fixed Base Facility Lease Bradley Pacific Aviation, Inc. Kona International Airport at Keahole.
Item M-4 Issuance of Direct Lease Korean Airlines Co., Ltd. Honolulu International Airport.
Item M-5 Issuance of a Restaurant and Lounge Concession at Hilo International Airport and Kona International Airport at Keahole.
Item M-6 Amendment No. 1 to State Lease No. DOT-A-05-0001 Application for Additional Space Trans Executive Airlines of Hawaii, Inc. DBA Transair Honolulu International Airport.
Unanimously approved as submitted (Pacheco, Johns)
Adjourned 12:30 p.m.
Respectfully submitted,
Adaline Cummings BLNR Secretary
` Approved for submittal:
______PETER T. YOUNG Chairperson Department of Land and Natural Resources
15 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, MARCH 9, 2007 TIME: 9:00AM PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STRET HONOLULU, HI 96813
Chairperson Peter Young called the meeting ofthe Board ofLand and Natural Resources to order at 9:04 a.m. The following were in attendance:
MEMBERS
Mr. Peter Young Mr. Tim Johns Mr. Ron Agor Mr. Jerry Edlao Mr. Samuel Gon III Mr. Robert Pacheco
STAFF
Mr. Sam Lemmo, OCCL Ms. Kimberly (Tiger) Mills, OCCL Mr. Russell Tsuji, LAND DIV. Mr. Randy Ishikawa, AG
OTHERS
Mr. David Smith, Attorney Mr. Greg Mooers, Planner Ms. Caren Diamond Mr. Randy Vitousek Mr. John Akima Ms. Tricia Dang (Wilson Okamoto) Ms. Billie Akima Mr. Mike Carroll
{NOTE: language for deletion is [bracketed], new/added is underlined}
Item A-I Minutes of February 23, 2007.
Mr. Russell Tsuji representing the Land Division had some changes to D-3 and D-6. , Unanimously approved as amended (Agor, Gon) Item K-l Appointment and Selection of a Hearing Officer to Conduct All Hearings for One Contested Case Regarding Conservation District Enforcement Case KA 06-72 Unauthorized Construction of a Chain Link Fence Located Within the Conservation District Located at Wainiha, Hanalei, Island ofKauai, TMK: (4) 5-8-009:025.
Mr. Sam Lemmo, administrator for Office ofConservation and Coastal Lands, reported this is a violation case per their yearly review. A petition was filed by the land owner for a contested hearing. Staffrecommends authorizing a hearing officer to run a contested case hearing and delegate authority to the chairperson for selection.
Randy Ishikawa, Deputy Attorney General, clarified there are two petitions for the contested case hearing. The Attorney General's position is this is a violation proceeding. The contested case hearing request brought by the landowner applicant is the matter before the Board and another filed by Ms. Caren Diamond who is here. The contested case being granted for which a hearing officer will be appointed is the one requested by the landowner. This is without prejudice to Ms. Diamond's rights to participate or intervene in that contested case hearing.
Mr. David Smith, Attorney replied he had no objections.
Ms. Caren Diamond clarified she was not contesting OCCL's decision and wishes to intervene in the contested case hearing.
Chairperson Young stated that the Hearing Officer will take that up.
Unanimously approved as submitted (Agor, Gon)
Item K-2 Conservation District Use Application (CDUA) OA-3390 for Kalanianaole Highway Improvements, Interim Rock fall and Roadway Subsidence Mitigation Located at Makapu'u, Waimanalo, Island of Oahu, TMK: (1) 4-1-014:002 & 013.
Mr. Sam Lemmo reported project is using 3.4 acres ofState land and will be used for public purpose. State is proposing mitigating the rock fall hazards and a FONSI was published in Environmental Notice. Staffrecommends approval ofthe project subject to 17 conditions. There were no findings ofsignificant impact.
Member Sam Gon stated he recalled there were some plants ofquestion, but ifthere was no finding ofsignificant impact maybe not.
Mr. Lemmo explained OCCL staffmember, Ms. Kimberly "Tiger" Mills submittal indicated there were some disturbed plants above the site.
2 Member Timothy Johns commented Ms. Mills did a good job on the submittal. It's nice to have a comprehensive one.
Unanimously approved as submitted (Johns, Gon)
Item K-4 Contested Case HA-06-03 Request to Extend the Processing Period in Order to Process a Contested Case Hearing for Conservation District Use Application (CDUA) HA-3269 for the Cohen Single Family Residence (SFR) at Pao'o, North Kohala, Island of Hawaj'i TMK (3) 5-7-001 :005
Unanimously approved as submitted (Pacheco, Edlao)
Item K-5 CDUA HA-3377for the Peter and Ellen Durst Single Family Residence in Keawaiki Lots, Kahauloa, South Kona, Hawai'i, TMK (3) 8-3-05:6
Mr. Lemmo reported Durst family proposed to build a 200 sq. ft. second family residence. A FONSI was issued in Jan. 8, 2007 Environmental Notice. It will be built on hard lava with minimal erosion. Applicant will integrate native plants with the area. Staffis concerned with the 832 sq. ft. semi detached unit consisting of2 bedrooms, 2 baths and a common room. It looks like a second dwelling where they do not feel complies with the rules which states not more than one single family shall be authorized within the conservation district. Staff is requesting to approve with modifications. Condition 14 requests specifically to disapprove the semi-detached building.
Member Rob Pacheco asked what would need to be done to the second dwelling to approve it in this situation?
Mr. Lemmo replied they had a similar case in Hamakua where the family had to take down the walls.
Member Jerry Edlao inquired they cannot build with the condition? They can't build the 2 bedroom at all?
Mr. Lemmo explained yes or they could redesign. The rules state one single family residence per lot in a conservation district. Staffis concerned with 2 or 3 residences per lot in a conservation district when it looks like one. In this case it looks like a guest house.
Member Edlao concerned with possible bed & breakfast commercial business starting up in a conservation district.
3 Mr. Greg Mooers, consultant to the Durst family, reported he processed the CDUA for the applicants and for the previous owners. It is not their intention to have more than one single family dwelling. The County ofHawaii has this concern, too. The architect was made aware ofthe rules in making the rooms connected and creating a single roof. He told the family not to add a wet bar in the guest wing. There are a total ofthree bedrooms in the residence now. The County had the applicants sign a single family agreement for a single family dwelling where the County could do on site inspections. The applicant's intent is not to create a commercial business. They wanted to create a design to let in more air flow and light to the structures, a more sustainable design. They would like to keep the same design, under a single roofline and not add an additional kitchen.
Member Gon asked have you looked at all the conditions including number 147 Mr. Mooers replied yes the family is aware ofthem. They believe it is a single family dwelling.
Member Pacheco moved to approve striking condition 14 and the second paragraph on page six ofthe submittal.
Unanimously approved as amended (Pacheco, Gon)
Item K-3 CDUA OA-3397 by Richard Pohle for an After-the Fact Permit for Boat Ramp at Mokapu, Kane'ohe, Ko'olaupoko, O'ahu, TMK (1) 4-4 21:23,37
Unanimously approved as submitted (Johns, Edlao)
Item D-S Grant ofTerm, Non-Exclusive Easement to John Akima, Jamilynne K.U. Akima and Jyen M. Akima Trust for Seawall, Filled Land and Boat Ramp Purposes, Kahaluu, Koolaupoko, Oahu, TMK: (1) 4-7 01:05 seaward. (ODLO/AI)
Mr. Russell Tsuji representing the Land Division stated there are no changes.
Mr. John Akima and Ms. Billie Akima stated they are fine with it.
Unanimously approved as submitted (Edlao, Johns)
Item D-5 Amend Prior Board Action ofJuly 14, 2006, under Agenda Item D-5, for Sale of Remnant to Abutting Owner, Waikiki, Honolulu, Oahu; current TMK is (1) 2-6-27:52. (ODLO/AI)
4 Item D-6 After the Fact Grant ofPerpetual, Non-Exclusive Easement to the City and County ofHonolulu for Underground Drainage Line Purposes, Waikiki, Honolulu, Oahu, TMK: 2-6-27:52. (ODLO/AI)
Motion made to withdraw Withdrawn (Johns, Pacheco)
Item D-4 Amendment of thc development agreement for master-planned project at Kealakehe, North Kona, Island ofHawaii, Hawaii. Tax Map Keys: (3) 7-4-08: 71, 999 and portion of3. (PROJECT DEVELOPMENT/Gavin)
Motion made to withdraw Withdrawn (Pacheco, Johns)
ltemD-7 Approval ofUnilateral Agreement and Declaration for Conditional Zoning for lands situate at Waikiki, Honolulu, Oahu, Hawaii; TMK: (1) 2-7-36:04 and 16 (PLANNING & DEVELOPMENTlKeith)
Mr. Tsuji reported they wish to make a zoning change application with the County. It is 24,000 sq. ft. and is the only residential R5 property on Kapahulu Avenue. Dept. of Plauning and Permitting supports their zoning change. Ms. Michelle Matson is in opposition. She claims there was a community plan. That plan was never brought to DLNR for our approval. It was a 90,000 sq. ft. community center or parking lot. It would take up part ofthe golf course, part ofthe Board ofWater Supply land and some State land (24,000 sq. ft.) which was the old Health Clinic. Dept. ofPlanning & Permitting supports Land Division's rezoning application and the parking would be self contained on the State lot (no street parking).
Member Johns asked do we normally enter into unilateral agreements at the County level?
Mr. Tsuji replied yes ifwe're going for a zone change.
Mr. Randy Ishikawa, representing the Attorney General's office stated he spoke to Keith Chun, Planner with Land Division, on the content ofthe unilateral agreement and that the State can subject itselfto zoning pursuant to statutes, such as HRS 171-41.
Mr. Tsuji asked the Board amend Staffs submittal by adding a Recommendation No.4 authorizing the Chairperson to write letter to interested govermnent officials informing them that the Land Board reaffirmed its support ofLand Division's efforts to rezone these lands to B-2 (Community Business District) and to issue a Lease by Public Auction for Uses consistent with such a zoning change.
5 Member Johns asked is the Kapahulu Business Association supportive ofthis?
Mr. Tsuji replied there are various associations. There was a revocable permit use for parking. They do not oppose the zoning change. Another association wants to use it as a parking lot. Ms. Michelle Matson wanted a parking lot. Most businesses in the area have no parking. The State rarely gets involved with running a public parking facility unless it is connected with a State run facility (Airport). Here, the plan is to issue a lease; it will not be a State run facility.
Member Johns asked who is the representative for the area?
Mr. Tsuji answered Ann Kobayashi who was initially ok with the project, but is now not supporting it due to Michelle Matson. She intends to hold up the project. The Land Board can live with the conditions in the unilateral agreement.
The Board unanimously reaffirmed its support ofLand Division's efforts to rezone these lands to B-2 (Community Business District) and to issue a Lease by Public Auction for Uses consistent with such zoning change.
Unanimously approved as amended (Johns, Gon) The Board amended Staffs Submittal by adding a Recommendation No.4 that authorizes the Chairperson to write letters to interested govermnent officials informing them that the Land Board reaffirmed its support ofLand Division's efforts to rezone these lands to B-2 (Community Business District) and to issue a Lease by Public Auction for Uses consistent with such a zoning change.
Item D-1 Reconsideration of Rent under General Lease No. S-5523 to The Volcano Art Center, Lessee, for Educational and Artistic Activities Purposes, Puna, Hawaii, TMK: (3) 1-9-5:9 (ADMINI8TRATION/Charlene)
Item D-2 Amend Prior Board Action ofApril 1, 2005 (Item D-4) Cancellation of Revocable Permit No. 8-7189 to Palekoki Ranch, Inc. and Issuance of Month-to-Month Revocable Permit to Raymond Lorenzofor Pasture Purposes; Kaao, Ouhi, Pakiloa and Kalua, Hamakua, Hawaii; TMK: (3) 4-5-01:07 & 13 (HDLO/Joanne)
Item D-3 Mutual Cancellation ofGeneral Lease No. 8-5670, Big Island Farmers Market, LLC, for Aquaculture Purposes, North Kohala, Hawaii, TMK: (3) 5-5-07:05 (HDLO/Gordon)
Item D-9 Approval of Lease with Department ofAgriculture and Department ofTransportation on behalf of the Department of Land and Natural Resources, Engineering Division for Baseyard Purposes and Consent
6 to Lease ofLand under Governor's Executive Order No. 4096 to Department of Agriculture and Governor's Executive Order No. 3443 to Department of Transportation, Halawa, Oahu, TMK: (1) 9-9-10: portion of34 and portion ofLot 2 ofFederal Aid Interstate project No. I-H3-1 (38). (ADMINISTRATIN/Charlene)
Unanimously approved as submitted (Johns, Pacheco)
A request was made to revise K Items in agenda. K-3 is K-5, K-4 is K-3 and K-5 is K-4.
Motion made to the Agenda to revise the K items accordingly. Unanimously approved as amended (Johns, EdIao)
Adjourned 9:45a.m.
Respectfully submitted,
Adaline Cummings BLNR Secretary
Approved as submitted:
7 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, MARCH 23, 2007 TIME: 9:00AM PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STRET HONOLULU, HI 96813
Chairperson Peter Young called the meeting ofthe Board ofLand and Natural Resources to order at 9:06 a.m. The following were in attendance:
MEMBERS
Mr. Peter Young Mr. Tim Johns Mr. Ron Agor Mr. Jerry Edlao Ms. Taryn Schuman Mr. Robert Pacheco
STAFF
Mr. Sam Lemmo, OCCL Mr. Curt Cottrell Mr. Russell Tsuji, LAND DIV. Mr. Colin Lau, AG Mr. Dan Polhemus, AR Mr. Wayne Haight, AR
OTHERS
Mr. Tim Lui-Kwan, Hokulia Attorney Mr. Greg Mooers, Consultant Mr. Neal Anthony Simms, President, Mr. Steven Tom Kona Blue Water Farms Dr. Jason Baker, NOAA Mr. John Henderson, NOAA
{NOTE: language for deletion is [bracketed], new/added is underlined}
Item A-I Minutes of March 9, 2007.
Mr. Russell Tsuji representing the Land Division had some changes to Item D-7. Mr. Colin Lau representing the Attorney General's office had some changes.
Unanimously approved as amended (Pacheco/Johns) Item C-1 Request for Approval and Acceptance of: quitclaim Deeds to State for the Old Cart Road (OCR) and the Stepping Stone Trail (SST) and to include these Two Trails and a Pedestrian Connector into the Na Ala Hele Program; Authorize the Chairperson ofthe Department to approve a Memorandum ofAgreement Between Na Ala Hele Program and Hokulia for the Management ofthe OCR and SST; The Application for Perpetual, Non-Exclusive Easements (18) Crossing the SST (Site No. 21664) for Roadway and Utility (SST-1, SST-2, SST-3, SST-5 and SST-7), GolfCartpath (SST-4, SST-9 and SST-H), Utility (SST-6, SST-8, SST-10, AND GolfCartpath & Utility (SST-13) Purposes; and for Perpetual, Non-Exclusive Easements (21) Crossing the Old Government Road (Site No. 10290) for roadway (R-1 through R-9), golf cart pathway (G-1 through G-3), pedestrian pathways (P-1 and P-2) and utility (U-1 through U-7) crossing Honuaino 3rd and 4th s nd st nd Hokukano 1 t, Hokukano 2 , Kanaueue 1 and 2 , District ofNorth st nd st nd Kona, and Halekii, Keekee 1 and 2 , I1ikahi, Kanakau 1 and 2 , st nd rd s Kalukalu 1 and 2 , and 3 , Onouli 1 t, District ofSouth Kona, Island and County of Hawaii.
Mr. Curt Cottrell representing Mr. Paul Conry administrator for Division ofForestry and Wildlife reported a request for approval ofthe Quitclaim Deed ofthe Old Cart Road (OCR) and the Stepping Stone Trail (SST) and include these two trails in the Na Ala Hele Program. There is a Pedestrian Connector easement which they need to link the two trails. Staffis recommending authorizing the Chairperson to approve staffto enter into a second Memorandum ofAgreement (MOA) between DLNR and Hokulia on the management and maintenance ofthese two trails and easements. Staffwould like the Board to consider, under the recommendation: I. Authorize the acceptance ofQuitclaim Deed for both the SST and OCR, and grant ofeasement for the Pedestrian Connector. The Landowner shall grant and record these deeds for the SST and OCR and grant a perpetual pedestrian easement for the Pedestrian Connector to the State in a form suitable for the Attorney General. 2. Designate the SST, the OCR and the Pedestrian Connector under the Na Ala Hele Administrative Rules and authorize the Chairperson to authorize into a MOA between the State and Hokulia to further document and manage these trails. 3. Approve 21 easements crossing the Old Government Road and 18 easements crossing the SST as specified. 4. Authorize the Chairperson to execute other terms and conditions that best serve the interest ofthe State.
Member Edlao asked is the Landowner required to preserve the historic and cultural aspects?
2 Mr. Tim Lui-Kwan attorney representing Hokulia replied the settlement agreement includes preservation sites and would need DLNR permission to work on it.
Member Johns asked: is this the first time the public is made aware ofthe settlement agreement?
Mr. Lui-Kwan stated there was a hearing before a judge and it went before the court.
Mr. Cottrell added [Hehilia is DUIR Aavisery Trail Celoillcil ana] that Hokulia staff have attended several Big Island Na Ala Hele Advisory Council meetings and that they have approved the designation ofthe two new trails into the Na Ala Hele Program and the easements for both Hokulia and DLNR. [The Big Islana Trail Celoillcil has beell flart efthe fllolblie aiseleslolre alla slolflflerts it].
Unanimously approved as submitted (Pacheco/Johns)
Item C-2 Memorandum of understanding between the Division ofForestry and Wildlife and the United States Department ofthe Interior, National Park Service and mutual aid firefighting agreement between the Division offorestry and Wildlife and the United States Army Garrison, Hawaii
Unanimously approved as submitted (Johns/Schuman)
Item D-2 Reconsideration of Rent under General Lease No. S-5513 to Hospice of Hilo, Lessee, for Hospice and Allied Purposes, South Hilo, Hawaii, TMK: (3) 2-3-32:11.
Unanimously approved as submitted (Pacheco/Johns) ltemD-l Reconsideration of Rent under General Lease No. S-5522 to The Storybook Theatre ofHawaii, Lessee, for Youth Cultural and Educational Purposes, Waimea, Kauai, TMK: (4) 1-9-5:41
Unanimously approved as submitted (Agor/Pacheco)
Item K-l Modifications to Conservation District Use Permit No. HA-3118 Related to an existing offshore aquaculture project located approximately 1/2 mile offshore of the Natural Energy Laboratory of Hawaii at Ulualoha Point, North Kona, Hawaii, by Kona Blue Water .Farms, LLC.
3 Mr. Sam Lemmo representing the Office ofConservation and Coastal Lands (OCCL), reported Kona Blue Water Farms (KBWF) has a general lease to operate an aquaculture business, a 90 acre open ocean fish farm at 2600 feet offshore ofNorth Kona, Hawaii. The Board approved the permit in August 2003. KBWF reports the following issues and modifications: •A problem with skin flukes. Treatment offish and cages. • Problems with mooring lines. Request to install additional mooring lines. • Removal oftwo surface net pens/cages and replace with two submerged. • Change in harvesting and growth offish. Increase from 360 tons to 600 tons. A benthic sampling was recently received at OCCL from KBWF. Staffwill assess the results and forward it to Dept. ofAquatic Resources (DAR) to provide input. Staffrecommends KBWF review and comply with conditions ofthe permit at all times. Condition five: request no non-Hawaiian species be raised in the Kona Blue Water Farm. No recreational fishing still needs discussion. These amendments shall be reflected in a revised Management Plan which will be filed with the CDUP in the future.
Member Johns asked with the new conditions and monitoring are you comfortable with the impacts to the increased number offish?
Mr. Lemmo replied staffchecked with Dept. ofHealth on the water quality and the KPWF is in full compliance ofthe permit. DAR has concerns with benthic monitoring and coral reefimpact.
Mr. Colin Lau ofthe Attorney General's office asked is the increase a staff recommendation?
Mr. Lemmo replied in the affirmative.
Mr. Neal Anthony Simms president ofKona Blue Water Farms reported the frequency and origins ofbenthic monitoring. It was his original understanding with DAR, KBWF would handle the in shore monitoring ofcoral reefs. But Clean Water Branch wanted monitoring under the farm. KBWF is monitoring on a quarterly basis and the information is available. Condition No.6 - No recreational fishing within the lease area. It is not a KBWF request. The community is satisfied with the condition. It involves opelu fishing and bottom fishing on the outskirts ofthe area and not in the cages. Mr. Simms is fine with deleting condition 6. It is addressed adequately in the original permit and management plan.
Mr. Lemmo stated it is a non-exclusive lease.
Unanimously approved as amended (PachecolEdlao) With deletion ofCondition No.6.
4 Item K-3 CDUA HA-3386 for the consolidation and resubdivision of three lots into three at Puakea and Kukuipahu, North Kohala, Hawai'i, TMK (3) 5-6-01:108, 109, & 110
Mr. Sam Lemmo administrator ofOCCL reported Lansing & Miller are applicants and Mr. Greg Moers, consultant. Amend the landowner who is Miller & Bailey. In the submittal on page 2, 5th paragraph, 2nd sentence [Other than this, there are no known cultural practices that use these parcels, not any known cultural, archaeological, or historical sites on the parcels.] should be deleted. There are 2 lots in a Split Zone Conservation District which the applicant wants to make into 3 lots. The applicant proposed to include a restrictive covenant on the 2 lots to prohibit any construction in the Conservation District.
Chairman Young stated the 3 parcels with mixed land use in the original configuration could allow construction on each ofthe lots. The subsequent consolidation of subdivision will result in the same number ofparcels and the same number of improvements.
Mr. Steven Tom explained staffreported on page 5, paragraph 6, in bold type The proposal thus has the potential to increase the intensity ofland use. Based on this proposal it will increase the intensity ofthe land use. The whole purpose ofthe subdivision consolidation and subsequent subdivision is to increase land use in the future. Although the specific purpose would not increase intensity at this time, but would be the first step. Referring to page 4, item number 7 Subdivision ofland will not be utilized to increase the intensity ofland uses in the Conservation District. The consolidation subdivision would not increase the intensity ofland use would be incorrect because the purpose ofthe landowner is allowing a covenant on their deed restriction is in response of the intensity ofuse. Ifyou allow the consolidation ofthe subdivision because ofthe increase ofland use then there needs to be a better trade off. Mr. Tom thinks the trade off the landowner is suggesting is close, but not quite sufficient. The report should state there should be homes in the conservation district. And increase it further to ensure not just homes, but other facilities such as a resort, restaurants, etc. to expand the covenant and register the covenant with another entity like the State, County or Hawaii Island Land Trust.
Chairman Young explained there are 2 lots in the Conservation District and 1 in Ag. With this consolidation and re-subdivision, yes there will be 3 lots, but there are no changes to the area in conservation. And, with the prohibition ofbuilding in the Conservation District he understands your concern. The applicant is still subject to a permit process.
Mr. Lemmo responded there will be no hotels, but in terms ofapplying the covenant to other entities it would be filed with the BOC and a CDUA would be filed and recorded and noted as an encumbrance.
5 Mr. Greg Moers clarified the purpose ofthis consolidation ofsubdivision is not to increase its use. There are 3 existing lots consolidated and created by Parker Ranch who did not want to apply for a Conservation District Use Permit. The current landowner wants to create normal shape lots. There will be 3 homes constructed on the 3 lots, but not within the Conservation District. The deed restriction has to meet the approval ofthe Attorney General and would be recorded on the deed to the property so it cannot be passed on. Any use ofthe Conservation District would have to obtain a permit and then go before the Land Board in the future which is not the applicant's intention. The approval ofthis condition is an indication the landowner has given up the right to apply for a permit.
Member Johns stated the only difference here is instead of a house built in the land locked Ag. parcel it is good to be close to the Conservation District. With the restrictions a house can't be built in the Conservation District.
Mr. Lemmo responded the reason why the applicant is consolidating the lots is to make them more marketable.
Unanimously approved as amended (Pacheco/Johns) Amend name oflandowner to Miller & Bailey and delete page 2, 5th paragraph, 2nd sentence.
Item K-4 Conservation District Use Application OA-3391 for the Hawaii Pacific University Hale Kou Force Main located at Kaneohe, Oahu, by Hawaii Pacific University - TMKs: (1) 4-5-035:001 & 010; (1)4-5 042:002, 011, 015, & 016
Mr. Sam Lemmo reported Hawaii Pacific University (HPU) has an individual wastewater system and wishes to hook up with the County sewer system. There is a long distance to reach the County system and it will need to go through other properties. HPU plans to use micro-tunneling and has gone through the normal CDU process. They've sent letters ofpermission to affected landowners. Also, processed an Environmental Assessment and a FONSI was issued on 2/23/07. HPU requests the Board's approval.
Member Johns inquired oftheir master plan.
Mr. Lemmo replied HPU is working on it. There was a condition number 5 to complete the Master Plan and they had one, but it was never fully realized. They will make sure it conforms to the current CPU.
Unanimously approved as submitted (Johns/Schuman)
6 Item K-2 Enforcement Case No. HA-05-25 regarding the Unanthorized Grading of 13,4500 square feet and 2,000 cubic yards of geological features from the 1960 Kapoho Lava Flow at the Kopoho Beach Lots Subdivision, Puna District, Hawaii, by Douglas Shaver - TMK: (3) 1 4-002:047
Mr. Sam Lemmo reported this is a Settlement Agreement to pay a fine. On page 6, 8th paragraph, item number 1, last sentence [Mr. Shaver is fined $2,000.00] should be deleted. Also on the same page, 9th paragraph, item number 2 remove [an additional]. In lieu ofpaying the $2,000.00 fine, Mr. Shaver will restore the property and pay the administrative costs total of$2,224.07.
Unanimously approved as amended (Pacheco/Johns) Remove statement offine amount and pay administrative costs.
Item F-6 Request for authorization/approval to issue ONE (1) NORTHWESTERN HAWAIIAN ISLANDS (NWHI) research permit to DR. JASON BAKER, ofNATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA), NATIONAL MARINE FISHERIES SERVICE (NMFS), valid from April 1, 2007 to September 30, 2007, to access the waters surrounding MOKUMANAMANA ISLAND, NIHOA ISLAND, FRENCH FRIGATE SHOALS, LAYSAN ISLAND, LISIANSKI ISLAND, and PEARL AND HERMES ATOLL in order to monitor the SIX MAJOR SUBPOPULATIONS OF HAWAIIAN MONK SEAL
Mr. Dan Polhemus, Administrator ofDivision ofAquatic Resources, reported this permit will allow researchers to access and set-up field camp on Laysan Island to continue a 23 year research ofthe monk seal.
Mr. Wayne Haight, Permit Coordinator for the NWHI and DAR's representative handed out the 2006 and 2007 monk seal permits. It shows some terrestrial components, marine components, etc.
Member Johns was concerned with the potential impacts.
Mr. Haight replied they are working on a GIS to monitor this.
Member Pacheco 'asked: does the Department have a way to prioritize permits?
Mr. Haight replied the review process is sent out to the experts at the Office ofHawaiian Affairs and Kaho'olawe Island Reserve Commission using an evaluation form ranked from 1to 5 which gives a statistical ranking.
Member Johns asked is there a criteria hierarchy for management?
7 Mr. Polhemus replied with core management, yes. Staff determines what types of information is most useful. All permits are addressed with the questions "Can this research be done only here and would it be applicable to the management ofthe monument? What application does it have with management ofthe Monument?" It is part ofthe application and review process.
Member Young stated Kure is not listed. There might be a problem with the Sunshine Law. Is Kure Atoll early oflate in your process? We will have to address this issue at an April Meeting supplement to a permit. In the future list as North West Hawaiian Islands or Papahanaumokuakea.
Dr. Jason Baker ofNOAA replied the camps will be established in the middle ofMay. All camps will happen at the same time with a few days between.
Unanimously approved as submitted (Pacheco/Johns)
Item F-l Request for approval to amend/extend a DLNRlUH Contract (NO. 47471-HAWAII FISH AGGREGATING DEVICE SYSTEM) to provide additional federal funds ($330,000) for the period ofJuly 1, 2007 through June 30, 2008
Item F-2 Request for approval to amend/extend a DLNRlUH Contract (NO. 55137 - EVALUATING THE EFFECTIVENESS OF RESTRICTED FISHING AREAS FOR IMPROVING THE BOTTOMFISH FISHERY) to provide additional funding ($398,000) for the period of July 1, 2007 through June 30, 2008
Item F-3 Request for a no-cost extension of contract NO. 53939 with the UNIVERSITY OF HAWAII (UH) for the HAWAII FISHERIES DISASTER RELIEF PROGRAM-COOPERATIVE RESEARCH, DEVELOPMENT AND OUTREACH from July 1, 2007 through June 30,2008
Item F-4 Request for approval to add funding and extend through FY08 seven (7) project agreements with the RESEARCH CORPORATION OF THE UNIVERSITY OF HAWAII for the following projects: CORAL REEF INITIATIVE (CONTRACT NO. 49090), COASTAL STOCK ENHANCEMENT (CONTRACT NO. 49820), STREAMIESTUARINE STUDIES (CONTRACT NO. 51059), MARINE POPULATION SURVEY (CONTRACT NO. 51058), ULUA TAGGING (CONTRACT NO. 52851), FINFISH BROODSTOCK AND LARVAE CULTURE (CONTRACT NO. 52994), and HAWAII MARINE RECREATIONAL FISHING SURVEY (CONTRACT NO. 48518)
8 Item F-5 Request for approval to enter into a DLNRlBISHOP MUSEUM contract for an INVERTEBRATE SURVEY OF NINE NORTH SHORE OAHU STREAMS FOR $141,500 to be conducted from May 1,2007 through June 30, 2008
Unanimously approved as submitted (JohnlPacheco)
Item L-l Approval for Award of Construction Contract - Job No.B44XM72A, Kihei Boat Ramp Improvements, Kihei, Maui, Hawaii
Item M-l Issuance of fuel facility lease Bradley Pacific Aviation, Inc. at Kahului Airport, Kahului, Maui
Unanimously approved as submitted (Johns/Schuman) ltemD-4 Request Approval to Enter into a Use and Occupancy Agreement with the City and County of Honolulu for Retaining Wall Purposes and Authorize a Construction and Management Right-of-Entry, Honolulu, Oahu, TMK: (1) 2-5-19:portion 5.
Mr. Russell Tsuji representing Division ofLand reported pursuant to the City's request, the Land Board amended Staffs Submittal by replacing "retaining wall" with "retaining wall, including drainage and erosion control improvements" on the (a) Title ofSubmittal on page I; (b) Character ofuse on page 2; (c) Remarks section on page 3; and (d) Recommendation 3 on page 3.
This amendment is intended to make clear that the City will own, and have the duty to repair and maintain into perpetuity, the retaining wall and the drainage and erosion control improvements.
Unanimously approved as amended (Johns/Schuman)
Item D-3 Amend Prior Board Action ofAugust 26, 2005 (Agenda Item D-5), Acceptance ofFederal Excess Land same being the Keahole Lighthouse Site, and Add same to the Operation of General Lease No. S-5619, Keahole Point, Kalaoa 1st-4th, North Kona, Hawaii, TMK: (3) 7-3-43:5
Item D-5 Grant of Perpetual, Non-Exclusive Easement to the City and county of Honolulu for Drainage Purposes, Maunalua, Honolulu, Oahu, TMK: (1) 3-9-027:007 seaward.
9 Item D-6 After-the-fact Approval ofLease ofFederal Property with the Secretary ofthe Army on behalf ofthe Department ofEducation, for Public School Purposes, Waianae-Uka, Wahiawa, Oahu, TMK: (1) 7 7-01:1 (Portion)
Unanimously approved as submitted (Johns, Edlao)
Adjourned 10:10 a.m.
Respectfully submitted,
Adaline Cummings BLNR Secretary
Approved as submitte
10 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, APRIL 13, 2007 TIME: 9:00AM PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STRET HONOLULU, HI 96813
Chairperson Peter Young called the meeting ofthe Board ofLand and Natural Resources to order at 9:05 a.m. The following were in attendance:
MEMBERS
Mr. Peter Young Mr. Tim Johns Mr. Ron Agor Mr. Jerry Edlao Mr. Robert Pacheco Mr. SamGon
STAFF
Mr. Sam Lemmo, OCCL Mr. Paul Conry, DOFAW Ms. Charlene. Unoki, LAND DIV Mr. Dan Quinn, SP Mr. Dan Polhemus, AR Mr. Glenn Abe, DOT Mr. Wayne Haight, AR Mr. Allen Hanaike, ENG Ms. Cynthia Vanderlip, DOFAW Ms. Kimberly Mills, OCCL
OTHERS
{NOTE: language for deletion is [bracketed], new/added is underlined}
Item A-I Minutes of March 23, 2007.
Amend page three, fourth paragraph.
Mr. Cottrell added [Hekalia is DIkIR Advisery Trail Ceaneil and] that Hokulia staff have attended several Big Island Na Ala Hele Advisory Council meetings and that they have approved the designation ofthe two new trails into the Na Ala Hele Program and the easements for both Hokulia and DLNR. [The Big Island Trail Ceaneil has been part efthe pablie diselesare and s10lflperts it].
I Member Sam Gon recused himself.
Unanimously approved as amended (pachecolEdlao)
Item K-l Conservation District Use Application (CDUA) MA-3389 for a Single Family Residence, Landscaping and After the Fact Water Catchment Tanks Located at Kaliae, Koolau, Island ofMaui, TMK: (2) 1-2-001:004
Mr. Sam Lemmo, Administrator for Office of Conservation & Coastal Lands (OCCL), reported the applicants are Deborah Mathias and David Niehaus. The parcel is located in the Keanae area surrounded by 5,000 acres ofKo'olau Forest Reserve. There were violations by the previous owners where they paid a $12,000 fine and had to take down structures. OCCL staffconducted a follow up inspection and found all the conditions required had been met. The new owners applied to build a single family residence, to do some agriculture and reforestation. An Environmental Assessment had been filed and published in the 2/23/07 Environmental Notice. Staffrecommends approving the project with 18 conditions.
Member Gon commented in the past the Board decision on native areas recommended to consult with the home island invasive species committee. In regards to Item 9, he recommends an informal consultation with island experts (invasive species control and botanist) to find out what are the appropriate native species. That way that particular native forest will have a longer chance of survival.
Mr. David Niehaus explained he grows endangered trees here before man. He has spoken to the Maui Invasive Species people and they have been to the property. He is planting what is already in the nearby State forest and is growing ohia right now.
Member Gon stated there is a lot ofnative landscaping and you'll see a mix ofall types ofnatives, but not necessarily appropriate for the elevation. Knowing that the owner intends to plant only the species grown in the adjacent area is ideal.
Member Agor asked applicant ifhe was ok with all the recommendations?
Mr. Niehaus answered yes, he is fine with it.
Unanimously approved as submitted (Agor/Gon)
Item K-2 Time Extension Request for Conservation District Use Permit (CDUP) KA·3160 for the Kealia-Kapaa Bike and Pedestrian Pathway Located at Kealia, Island of Kauai, TMKs: (4) 4-7-007:029 & (4) 4-7 003:001
2 Mr. Sam Lemmo ofOCCL reported this was previously approved by the Board in March 2004. The applicants are seeking a two year time extension to complete the project construction which staff provided the justification. One ofthe issues for staff was in seeking the time extension. Staffwanted to do a spot check with a ground crew to see where some ofthese structures are relative to the shoreline because the project has been taking a long time to implement. Staffwas concerned the shoreline may have shifted and thus exposing some ofthe improvements to erosion damage. Staffis including a condition stating OCCL would conduct a site inspection to determine whether there is a need for project adjustments. Coastal erosion staffwas sent out and they reported some things were in the process ofbeing built and not exactly in conformance with the plans the Board approved. Mr. Lemmo recommends asking the County ofKauai to provide OCCL an "as built plans." Ifthis action were approved to continue then completion of the project shall reflect the "as built" conformation. This will clean up the record to reflect the asphalt situation.
Member Johns asked did the applicants have a problem with the change in construction? It was noted differently in the plans, but not in the changes because it was too late after it was built.
Mr. Lemmo replied there are rest pavilions along Kealia Beach. His impression from the staffwas ifthere is an erosion problem they would not armor the shoreline, but instead remove the improvements. The applicants were informed to update their construction plans to show what is on the ground and review it. They found the situation acceptable.
Member Agor stated he has received calls about proceeding with the project. It's a pristine area and the shelters look like an unfinished construction site. It's damaging to the environment. He asked at the time ofthe application was it referred to as shelters (four columns and a roof) and was that the intent?
Mr. Lemmo explained at the time things were conceptual and now that things are built, things changed. The intent was to have a pavilion with a roof, poles and a slab without walls. A couple rest areas, but not a concern with the shoreline.
Unanimously approved as submitted (Johns/Gon)
Item K-3 Time Extension Request for Conservation District Use Permit OA 3266 for the Proposed Papipi Road Drainage Improvements at Ewa Beach, Oahu TMKs: (1)9-1-11:002 and 003
Mr. Lemmo from OCCL asked for an extension of 15 days to complete the contested case hearing process for the Haseko drainage project at Papipi Road.
Member Johns asked is 15 days enough?
Mr. Lemmo answered this would give it to May 23, 2007.
3 Unanimously approved as submitted (Agor/Pacheco)
Item M-I Issuance ofDirect Lease; Applicant: MARISCO, LTD. vicinity of Pier 3, Kalaeloa Barbers Point Harbor Area, Honouliuli, Ewa, Oahu, TMK Nos. (I) 9-1-14:24 (Portion) and 25
Mr. Glenn Abe ofDepartment ofTransportation Harbors Division reported staffhas corrections on page 2 ofM-1 under CURRENT USE STATUS it should read Governor's Executive Order No. 3383 not [+346] and the harbor should be Kalaeloa, Barbers Point Harbor not [Honolulu Harbor].
Unanimously approved as amended (Johns/Gon) ltemM-2 Issuance of Revocable Permit to ALOHA TOOL & RENTAL, INC. dba Honolulu Recovery, Keehi Industrial Lots, Kalihi-Kai, Honolulu, Oahu
Unanimously approved as submitted (Johns/Gon)
Item F-I Request for Amendment to the Northwestern Hawaiian Islands (NWHI) Research Permit previously approved for Dr. Jason Baker of National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service, valid from April I, 2007 to September 30, 2007, to include Kure Atoll.
Mr. Wayne Haight ofDLNR and NWHI Monument passed out a handout to the Board Members.
Mr. Dan Pohelmus, Administrator ofDepartment ofAquatic Resources, reported the Board Members wanted impact analysis for the permit. Staffgave the Board a general spatial scale on the monument. On the front is a useful graphic within the monument and the various projects proposed this year. It showed ClliTent projects for this year. HIMB I have seven projects as well as for HIMB II which will be coming up in May. The general spatial scale is useful to compare with states, cities or countries. There is a relative impact comparison with Hanauma and French Frigate Shoals (FFS) scale. Most atolls are about the same.
Member Pacheco asked why don't state waters include the fringing reef?
Mr. Pohelmus replied it is only drawn from emerging lands. Ifthat part ofthe land is not emergent then it doesn't provide the basis for a claim. Some staffthink that some ofthe water around FFS is incorrectly claimed which staffwill revisit later.
4 Mr. Pohelmus explained using the handout annual visitors based on last years count was compared per day, per year and annual visitors per acre. In 2006, NWHI had 191 visitors total about .52 people per day or .0003 visitors per acre. At FFS, 127 people or a third of a person per day. Compared to Molokai which is close in acreage to FFS gets 83,712 visitors or 230 people per day. Hanauma Bay gets 1,095,000 visitors per year and 3,000 daily. Put that into perspective ofthe management and keeping good ecosystem maintenance. Monk seal breeding at FFS is closest to Hawaii and they have an air strip.
On each ofthe permits, because the Board asked, stafflooked at the affected area, spatial consideration, status ofthe resources, identification ofimpact factors, significance thresholds within limits ofacceptable change and cumulative affects which will be included in the State's internal permit review. This is the report ofwhat the Board asked staffto do and it's been done.
F-l is a housekeeping measure which came 2 weeks ago for permit. It's a long standing series ofmonk seal camps, but due to clerical error it adds Kure Atoll to the permit.
Unanimously approved as submitted (Gon/Pacheco)
Item F-2 Request for Authorization/Approval to Issue Northwestern Hawaiian Islands (NWHI) Research Permit to Dr. Leszek Karczmarski to access Kure Atoll waters to Monitor the Kure Spinner Dolphin Population, from May 16, 2007 to October 31, 2007.
Mr. Pohelmus representing Aquatic Resources reported this is a long standing program of research at Kure Atoll. It involves observational work ofspinner dolphins.
Unanimously approved as submitted (Agor/Johns)
Item F-3 Request for Authorization/Approval to Issue Northwestern Hawaiian Islands (NWHI) Conservation and Management Permit to Cynthia Vanderlip, of the State ofHawaii, Department Land and Natural Resources (DLNR), Division ofForestry and Wildlife (DOFAW), valid from May 16,2007 to October 31, 2007, to Access the Waters surrounding Kure Atoll in order to remove Marine Debris.
Mr. Pohelmus ofAquatic Resources stated this is a continuation ofa long standing program to remove marine debris from Kure Atoll. There is a minor degree of disturbance to the coral. The removal ofdebris far outweighs the minor impacts in getting it out and we recommend approval.
Member Edlao asked are the people who are going to remove debris people who have done it in the past? Are these people trained?
5 Ms. Cynthia Vanderlip, manager with DLNR, Division ofForestry & Wildlife, replied yes these people came last year. And yes these people are trained and she is very careful. Her staffuse knives and gloves and stay away from the reef. Even the coral that is removed by the debris is removed so it wouldn't damage live coral.
Unanimously approved as submitted (Gon/Pacheco)
Item E-1 Request for Special Use Permit from Hospice of Hilo to Use the Large Pavilion and Certain Portions ofthe Wailoa River State Recreation Area in Hilo, Hawaii for their "Celebration of Life" and "Walk for Hospice" Fundraisers
Mr. Dao Quinn, Administrator for State Parks, reported this is a one day event scheduled for May 9, 2007 with recommended conditions and a $100 fee to the State. No problems from first 2 events.
Member Pacheco inquired is it normal to receive requests this close prior to the event?
Mr. Quinn responded usually they receive these farther ahead. At least 60 days ahead. Staffreceived it a couple weeks ago to get it on the Board Agenda.
Unanimously approved as submitted (Pacheco/Johns)
Item C-1 Request for an Amendment of Contract Number 54003 with the University ofHawaii for the Testing of Miconia Biocontrol so that a time extension to 12/31/07 may be pursued.
Item C-2 Request for an Amendment ofContract Number 54004 with the University of Hawaii for the Testing ofTibouchina Biocontrol to extend the time of performance to 12/31/07.
Item C-3 Request for an Amendment of Contract Number 54005 with the University ofHawaii for the Acceleration of Miconia Biocontrol to extend the time of performance to 6/30/07.
Mr. Paul Conry, Administrator ofDivision ofForestry & Wildlife (DOFAW), reported Col, C-2 & C-3 are Requests for Amendment to Contracts to extend the time period.
Member Edlao expressed his concern ofthe beetle brought in to test. For any new species brought in is there a control in case it gets out ofhand? He did not see anything that states what would happen.
Mr. Conry replied it is a valid concern. He can bring it back to the bio-control team with this concern.
6 Member Pacheco stated one ofthe things with bio-control is host specific. The population demises as the host dies off.
Member Edlao expressed concern with bee mites.
Unanimously approved as submitted (GonlPacheco)
Item C-4 Request for Approval of an Agreement for Grants, Subsidies, and Purchases of Services between the Board ofLand and Natural Resources and the North Kohala Community Resource Center.
Mr. Conry ofDOFAW reported this is a grant cooperative project with Linda Elliot. It combines state money with private fund raising. Staffappreciates the Board approving this contract to allow them to go ahead with this rehab center.
Unanimously approved as submitted (Pacheco/Gon)
Item C-5 Request for Authority for the Chairperson to Negotiate and Enter into Contracts for Goods and Services up to $50,000.
Mr. Conry from DOFAW stated this gives the chairperson authority to match the recent changes in State Procurement. Staffis asking to give the chairperson authority to handle these routine processes that way they don't have to always come back to the Board. Staff will have the option to come back to the Board for example when they have a new partnership or endeavor.
Member Johns inquired is this the first time staffis asking this? Wasn't this asked the last time?
Mr. Conry explained the last time was for $250,000.
Member Gon asked isn't the current level $25,000? Did it increase? Ifit increased to $50,000 staffwants to mirror this?
Mr. Conry answered yes. This was a State Procurement policy to increase the amount.
Member Pacheco asked give him an example?
Mr. Conry replied a group is replanting native plants for 10 years on a contract of $25,000. Ifthere is a contract that needs to be approved by the Board and the purchase order is over $50,000 at D.H. it would not go through the Board.
7 Member Gon inquired what would be the venue for reporting such purposes to the Board ifit involves conservation relevance? He is interested in what DOFAW is doing with such purchases because over time it could add up to millions ofdollars. People would ask. Maybe once or twice a year get a report ofthe amount.
Mr. Conry replied keeping a log or annual report could be the approach. Examples of ~ome ofthese types ofcontracts may be appraisals costing more than $25,000 and that would normally come to the Board. One restriction or condition could be placed on this would be any new cooperative conservation project needs to come to the Board. Ifstaff has an extension ofthat the following year then staff won't necessarily need to come back to the Board. But staffcould copy the Board Members with a Notice to the Board to keep the Board informed. Like a contract you would get the cover letter to the vendor and cc the Board Members.
Member Pacheco asked is this up to $25,000?
Mr. Conry replied actually all [$lO,QQQ fer] contracts currently need to go to the board. The limit for small purchases has been increased to $50,000 for purchase orders. This request is for contracts issued for small purchases up to $50,000.
Member Pacheco inquired are there rules for parceling?
Mr. Conry answered yes. Mr. Conry pointed out that this is not only for DOFAW, but for the whole Department.
Member Johns stated to do both. Send an annual report and cc Board members.
All Board Members agreed.
The Board added the following to the Recommendation Section "That the board authorize the Chairperson to negotiate and enter into contracts for small purchases up to $50,000 subject to approval as to form by the Attorney General's office on the condition that:
1. The Board members are provided a copy of the award letter. 2. The Department provide an annual report on contracts issued under this authoritv."
Unanimously approved as amended (Pacheco/Gon)
Item D-l Amend Prior Board Actions of August 28,1998 (D-16), Request to Approve Business, Commercial, Industrial and Resort Application and Qualification Questionnaire Process for Prospective Bidders Interested In Leases Sold at Public Auction.
8 Ms. Charlene Unoki representing the Land Division reported staffwould like to withdraw D-l. Staffis concerned with the credit history and they are not set-up for credit reports.
Motion to withdraw. Withdrawn (JohnslPacheco)
Item D-2 Consent to Assign General Lease No. S-5415, Charles Mahi III, Assignor, to Li'ula Charlyn Mahi, Assignee, Kikala-Keokea, Puna, Hawaii; TMK: (3) 1-2-43:15
Item D-3 Set Aside to County of Hawaii, Department of Parks and Recreation for Park, Trail and Related Recreational Purposes, Waiakea, South Hilo, Hawaii, TMK: (3) 2-1-06:77, 79 and 2-1-07:Portion of 15.
Member Pacheco inquired does the Department have a policy recommendation on use of native plants on landscaping for set asides or public parks?
Ms. Unoki replied no they don't. The government agency would have to comply with the environmental laws or environmental impact statement.
Member Johns stated usually not. Normally when the Board does the set asides the Board makes sure it is for the appropriate government purpose to the receiving agency.
Member Gon reported OHA had a requirement ofusing native plants.
Ms. Unoki replied it would come under the county.
Member Johns stated we should think about it. How much native planting go into city parks?
Member Gon stated use ofnaupaka is being used or ifappropriate.
Item D-4 After-the-Fact Grant of Perpetual, Non-Exclusive Easement to the Board ofWater Supply (BWS), City and County of Honolulu for Water Transmission Pipeline and Access Purposes and a Management and Construction Right-of-Entry, at the Ala Wai Golf Course along Kapahulu Avenue, Waikiki, Honolulu, Oahu TMK: 2-7-036:002.
Unanimously approved as submitted (Pacheco/Gon)
Item H-l Request for Approval of DLNR Radio System Maintenance Contract with Pacific Wireless Communications, LLC.
9 Mr. Allen Hanaike, newly emergency hired Telecom Planner, reported this is a standard contract entered in for 12 years. Staffis requesting a contract for physical year 2007.
Unanimously approved as submitted (Johns/Gon)
Adjourned 9:57 a.m.
Respectfully submitted,
Adaline Cummings BLNR Secretary
10 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, APRIL 27, 2007 TIME: 9:00 A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 I 151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Peter Young called the meeting ofthe Board ofLand and Natural Resources to order at 9: 10 a.m. The following were in attendance:
MEMBERS
Mr. Peter Young Mr. Tim Johns Mr. Ron AgoI' Mr. Jerry Edlao Mr. Samuel Gon III Ms. Taryn Schuman STAFF
Mr. Eric Hirano, ENG Mr. Sam Lemmo, OCCL Mr. Paul Conry, DOFAW Mr. Tim Lee, HP Ms. Tiger Mills, OCCL Ms. Athline Clark, DAR Mr. Russell Tsuji, LD Mr. Dan Polhemus, DAR Mr. Gary Moniz, DOCARE
OTHERS
Mr. Colin Lau, AG Office Mr. Paul Horikawa, Attorney Ms. Heidi Guth, OHA Ms. Katherine Graham, Ms. Mari Thompson, KUHEA Mokuleia Beach Colony Ms. Stephanie Fried, Environmental Alliance Mr. Paul Nelson, past Mr. Mike Tosato, NOAA Fishery Service Mokuleia Board Member Mr. Michael Carroll, Attorney Ms. Jeanne Wood, Mokuleia Resident
{Note: language for deletion is [bracketed], new/added is underlined}
The Land Division corrected a typographical error in the title Agenda Item D-7, by amending TMK from (3) 2-1-07:26 to (3) 2-1-07:36. Item A-I Minutes ofApril 13, 2007
Member Schuman recused herself.
Unanimously approved'as amended (Johns, Agor)
Item F-3 Request for Authorization and Approval to Implement Adoption of the PAPAHANAUMOKUAKEA MARINE NATIONAL MONUMENT Joint Permit Form for Permitted Activities Within the Northwestern Hawaiian Islands State Marine Refuge; and Request for Delegation ofAuthority to the Chairperson or Authorized Representative of the Department of Land and Natural Resources to Act as Signatory for Co-Trustee STATE OF HAWAI'I on Permits to be Issued for Activities Outside State Lands and Waters but Within the PAPAHANAUMOKUAKEA MARINE NATIONAL MONUMENT
Mr. Dan Polhemus, Administrator ofDivision ofAquatic Resources, reported a request for authorization approval to implement adoption ofPapahanaumokuakea Marine National Monument Joint Permitting Form. It was developed by a series ofnegotiations between representatives ofthe State ofHawaii and co-trustees: the Department ofthe Interior and the Department ofCommerce. In the submittal is the outcome ofthe Memorandum ofAgreement signed between these parties on the 8th ofDecember 2006. Signatories were Governor Lingle, Secretary ofthe Interior, Kemptorn and Secretary of Commerce, Guitterez. In this document it specified the development ofjoint permitting documents and protocols. That process has been going on for the last 5 months. It has consumed a large amount oftime at all agencies. This includes an aggregate of50 plus hours ofofficial meetings by teleconference, conference calls, and face to face meetings with all representatives including NOAA National Ocean Service, NOAA National Marine Fisheries Service, Department ofthe Interior National Wildlife Service, the Office ofHawaiian Affairs (OHA), Department ofAquatic Resources (DAR), and Department ofForestry and Wildlife (DOFAW). There have been countless additional hours ofindividual agency stafftime put into this. We have a document that has gone through tremendous amount ofdiscussion, tremendous amount ofbalancing between the relative authorities, relative admissions, and the relative policy approaches ofall the different entities put together by the Presidential Proclamation to co-manage the Marine National Monument. Ms. Athline Clark can address any questions to the underlining process and policy that went into this document. Mr. Colin Lau, representing the Attorney General (AG), can address the specific language developed by the Attorney General's office and address any questions regarding the underlying legal issues.
Ms. Athline Clark, representing Division ofAquatic Resources (DAR), reported the representatives did two processes in looking at the permit. First process is contained in
2 the Land Board handouts and submitted on the website as a comparative chart which looks at all the State conditions. Staffdid a comparison ofState Conditions to the new proposed General Conditions under the General Permit Template. Some ofthe conditions have been rewritten and some are not deleted, but are not contained in the regular permit because they will be part ofregulations instead. Some conditions have been moved to Special Conditions because they will not be applicable to all permits. The representatives wanted to develop a Permit Template that had a series of General Conditions for every type ofpermit and have a series ofSpecial Conditions that would still apply. Every permit will have Special Conditions. State Conditions, as previously existed, will not go away. In looking at the 6 permit types, not all will have the conditions applicable, but all permits will have some General Conditions applicable. That was how the division was done. The representatives had legal counsel from Office ofthe White House, Counsel ofEnvironmental Quality, Department ofJustice, Department ofNOAA, Department ofthe Interior, State Attorney General and OHA. Each ofthose agencies has representatives here to comment as needed on the process.
The representatives looked at the Biological Disease and Transfer Protocols and formed a working group. That group worked with the latest information that was available from the research and dive community to develop new and innovative protocols that are state ofthe art for both Disease and Transfer ofAlien Species and those are attached to the Land Board Agenda. This group based it on a whole series ofreviews, literature search, and asked a number ofpeople to look at and provide comment on the protocols from a myriad ofdifferent sources. We have people from that working group here to answer any additional questions. There are a couple permit conditions which they are still working on wording and those are noted. Everything has been incorporated or will be in a Special Condition. In a few instances, representatives tightened up the language to make it more enforceable then it currently is. When the representatives get the Special Permit Conditions it will be as enforceable as possible.
Member Edlao asked what permit fees charged? Is it one flat rate or is there a different fee structure for research? Ms. Clark responded currently there is no fee for the permit. Member Edlao then asked why is that? Ms. Clark stated the representatives did not set up a fee structure within the regulations for the State and there are difficulties on the Federal side with some ofthe permits having a fee set for them. There has been discussion about how they could change that and are looking at another tier ofregulations to make that possible. Staffwould have to change the regulation. Member Edlao thought it would help to defray costs. Mr. Polhemus interjected in absence ofa special fund it would go into a general fund. It might not directly reimburse the agency for the cost of these services.
Member Johns asked ifthe Board approves this permit form today will it in no way invalidate the earlier refuge rules that the Board already passed nor change the Land Board process where the Board approves permits as they come to us now? Ms. Clark replied correct. Member Johns continued ifyou are suggesting that a permit were requested for activities in State waters then there will be a Special Condition Addendum attached to the General Permit and that would come to the Land Board for approval like it
3 has in the past? Ms. Clark responded yes and not just for State waters it would be Special Conditions for any permit anywhere out there. Member Gon asked it would come to the Land Board? Ms. Clark replied unless it is not in State waters then it would not necessarily come to the Land Board. The Board doesn't have jurisdiction there. Member Johns added the Board doesn't want to give up whatever model we have established on how we want to manage State waters as part ofthe Monument. The Board doesn't want this generalized permit to some how water that down. Ms. Clark replied the General Permit Conditions are in some cases going to supplant the current conditions under the State. They will not water down the State regulations, but they will not be the same conditions the Board applied previously. Member Johns questioned ifthe Board approves this we will in fact be changing what we've approved already with regard to our permitting process? Ms. Clark answered you will be changing the conditions only in terms ofhow they are written, not in terms ofthe regulatory or authority process.
Mr. Colin Lau, representing the Attorney General's office reported Athline is correct. and everything she says is basically what he would say in terms oflegal counsel. He pointed out what the difference is between what the representatives are looking at for approving something that's been imbedded quite extensively line by line, paragraph by paragraph with the attorneys for the past 4 months which makes the process even longer. As for what the conditions that the representatives are supplanting, basically the terms of conditions in the prior NWHI State Marine Refuge permit were never imbedded by the AG's office although they are based directly on the rules. The AG's interpretation of those rules might be slightly different, that is why some ofthe conditions have been reworded and reorganized to reflect certain categories and activities will be subject to Special Conditions aside from what you are looking at. Example: Discharges ofwaste or water are all subject to law. Applicants cannot do that and its going to be in any Special Condition where applicable. Chairperson Peter Young interjected even ifit may not be listed as a condition in the permit because it may still be a regulation, rule or law you still can't do it. Mr. Lau replied right. We're looking at the general form ofthe permit. You don't have to put every law on the books into the permit or address everything. Member Johns asked as long as the permit language doesn't say something that would allow somebody to do something or to conflict? He doesn't want to approve a permit form that would create some ambiguity with regard to what our jurisdiction and what our rules are. With the way this process is set up with the co-trustees this is the only public process that is established at this point. Ms. Clark answered right. In many ways this new language strengthens what happens because it has been imbedded, by as Colin Lau says, by 12 different attorneys from different agencies. The new language that's being suggested in the General Conditions is tighter and more legally binding language. The same would happen to the Special Conditions. If it is not as tight as can be that is the goal. It is not to take away Special Conditions, but to tighten it so it is even more legally binding and can be enforced by all the co-trustees.
Mr. Polhemus noted the permit documents the State previously had were interim instruments that were developed in a relatively short time frame following the signing ofthe rules that protected State waters in the NWHI. Staffknew at that time we would progress toward a co-managerial relationship with a Federal entity in terms ofthe
4 National Marine Sanctuary. Subsequently, it became a co-management arrangement in a National Monument with 2 Federal entities. The point is those documents were not developed in close collaboration with the Attorney General's office. It had certain ambiguities and certain aspects which staff probably should have done differently had staffengaged with the AG's office from the start. When staffhad gone back into this process all the attorneys from all the agencies were involved right from the get go. The result is the language is considerably tighter and we have been assured by the Attorney General's office preserves the State's authorities and interests and doesn't give anything away. Member Johns stated that was his main concern in regard to the earlier permit form. Mr. Polhemus answered we are not in the position to judge the legality and that is an Attorney General's job. Member Johns asked can you point me where there is language in the General Permit specifically says it doesn't change in the rules part any of our existing? Actually, not the permit, but the refuge rules that they passed. Mr. Polhemus replied that's in the MOA. Ms. Clark added it's in the Proclamation and in the Federal Register that the jurisdictions remain intact. All the legally binding documents have specific language that state that the jurisdiction remains intact. Mr. Polhemus clarified the Proclamation addresses jurisdiction and the MOA addresses authority.
Ms. Heidi Guth, advocate for Native Rights for Office ofHawaiian Affairs (OHA), came before the Board a couple months ago with a lot ofconcerns. Chairperson Young made sure OHA had adequate representation in this process. People have been willing to listen to their concerns and came at it at a legal aspect as well as their beneficiaries' concerns. She was part ofthe team that helped work on the General Permit Conditions and she would agree she has no problem with this General Permit. However, she would like the Board to consider the option ofthe Special Permit Condition because that is how OHA is coming about this. Staffhas requested some ofthe Federal attorneys to reopen the application process itself to look at the Application Form and the Application Guidelines to make sure they can ask better questions as the intent. Staffis drafting language currently to address specific concerns like bio-prospecting and things like that. Which were addressed in the State permit, but were not imbedded by the AG's office and is now being imbedded by all these other attorneys, but there are options to get in protection. She is in an awkward position because she is part ofthe community, part ofthis management board for the Monument, but she is still the advocate for Hawaiians. She will be reviewing the do not send documents and she is advocating for OHA's beneficiaries that they need to be part ofthe public process, too. As much as the Board has the authority to assure the State regulations and requirements are available and completely covered by the Special Permit Conditions. She urges us to do that and allow the public review process to be complete.
For the General Permit, State laws don't have impact on the Federal agencies while the Federal laws have an impact on the State. That is why the Special Permit conditions for activities in State waters. Member Johns inquired how do you get your public input when you do your reviews? Ms.Guth answered no, anything for review goes to her office, then it's assigned out to her OHA staff, and then staffconsults with various beneficiaries who have expertise in those areas. Then they incorporate those comments into staff's comments and they send it back to DLNR staff. Member Johns asked your beneficiaries
5 don't have a public meeting like this to weigh in on? Ms. Guth replied no that is why the Land Board Meeting is so important. Member Edlao asked when does the public get to see the information? Mr. Polhemus replied the permits come in and are sorted and then sent out for review. The lag is between the receipt ofour permit coordinator and when it gets to aHA. He isn't sure how long that is but it should be timely because staffis on a 90 day process from receipt to when it comes back to the Board. After they get initial review, those reviews are synthesized and sent it out to various people with different concerns that form the basis for the submittal. The public will see the submittal. Member Edlao asked when? Mr. Polhemus continued that is an open question because they are still talking with Office of Information Practices (OlP) about that. Technically, it's posted like any Land Board submittal. Chairperson Young added we want to work on a program because ofthe overall 90 day review. His goal is to have a public review at about 45 days. At 45 days prior to action staffwill be posting it on the DLNR website. He requested with OlP about what needs to be withheld and what is private information. Staffhas a response from them now and in the next week OlP will be working with staff to work on getting the process going to get the public review at about 45 days. The internal review as well as the Agency review and get some comments on that. Member Edlao asked is that something the Board has to act on to ensure to have that 45 day? Chairman Young replied there will be times when there maybe quicker action. It isn't fair to say there will always be a 45 day review, but it is fair the Board could support the idea wherever possible to make the effort to get a 45 day public review.
Mr. Polhemus asked staffhas a variety ofsubmittals that come before this Board; ifyou make a precedent ofputting the NWHI permits out at 45 days does that set a precedent for other things? People might think their houses or businesses are important and say we want 45 days as well. Chairperson Young replied that is more a policy than a statute. There are some applications that come before the Board that actually has a public hearing before it comes to the Board for action. He doesn't think it would be precedence then.
Member Johns asked is the confidential information in the applications information the Land Board takes into account when approving the permit? How does that work? Mr. Polhemus stated it can be. If its pre-decisional personal information should be withheld once a permit has been granted or comes up as a submittal and staffdecides to put it forward through the Board's approval. Public interest is heightened and at that point some ofthat information may become disclosed. Member Johns stated you can see what the issue is. Then he asked let's say the Land Board is making a decision on a permit and you're keeping information from us because someone says its confidential how is the Land Board going to make the decisions? Mr. Polhemus replied the Land Boardwill see all the information the question is whether the public will see everything you see?
Ms. Mari Thompson, representing Kuhea Hawaiian Environmental Alliance, reported they have some serious concerns with the joint permit. With all the effort and discussion time given the public was not consulted at all during the development ofthe joint permit. In comparing the current State's Permits, General and Special Conditions and what is suggested for the joint permits, there are significant changes. One ofthe changes that concern her is Permit Template page 2, No.4 talks about what would happen ifan
6 applicant violated the permit and what type ofretribution or punishment would be taken against the applicant which is immediate cessation ofactivities. State rule says the Board shall deny application based on the past violation while in the Federal Joint Permit, it tends to consider denying a permit. The State rules it has to deny a permit. It's these shifts in the standard that concern them because State rules for the State refuge is the most protected. It is a visionary refuge and representatives need to do all they can to ensure the high standard ofprotection is maintained. Ms. Thompson suggested having a joint permit for whoever wants to access State waters would have an additional set of Special Conditions along with the General Conditions. At the Jan. 26, 2007 Board Meeting, where the Board went over in detail every permit condition, should be the standards staffapplies to every permit to access State waters. Staffshould use the permit guidelines or instructions imbedded by the AG's office. People will use it to inform their decision. It is important to layout what the Board's intents are. She suggested the Board formally adopt the permit guidelines and instructions and conditions that they have been working on up to this point. To establish this is the standard we want to maintain and that we have no intent of deviating from that.
Ms Thompson also suggested we formally adopt the OIP opinion that was referenced earlier. In that letter it linked a specific standard for ensuring transparency and public involvement which staffreally need. The OIP opinion is significant enough that staff should adopt it formally. She agrees to always have 45 days is hard. Staffshould allow room for modifying them as the case may be, but as a general standard we should embrace that. Ms. Thompson is concerned the Board is not going to be kept in the loop ofthe decision making. For example: the suggestion staffwill be the one to review the permits to access the Monument in general, but not State waters. She understands there is no jurisdiction, but she is confused. Ifthe Board doesn't have jurisdiction to sign off on a permit to access Federal waters in the Monument, ofwhich they are co-trustees, then how will the staff? Staff is an extension ofthe Board's authority. Ifthey can't sign off the Board can't sign off. Because the Board is co-trustees the Board should have the authority to sign offon that. In order to manage the State waters we should have a comprehensive view ofall access to the NWHI and that includes going over permits accessing only Federal waters. If you are going to sign offon it you better know what it says. Not signing off on it means you don't agreeing with it. She thinks it's important as far as maintaining the authority ofthe State and the Board ofLand & Natural Resources and as well as working together hand in hand with the Federal agencies.
Member Johns asked the AG representative who is the co-trustees? Mr. Lau answered the Land Board has the decisional authority through chapter 171 and specifically Land we have jurisdiction over in the NWHI out to 3 miles. Beyond 3 miles State doesn't have jurisdiction, it's a Federal concern. Member Johns asked what other obligations do we have as co-trustees of a Monument that includes land and water outside ofwhat the State ofHawaii generally has jurisdiction over? Mr. Lau replied based on the Memorandum of Agreement says that based on the State's jurisdiction shall not be administered to enlarge. We are not enlarging beyond 3 miles on when we signed as co-trustees. However, the Federal co-trustees would normally only issue a permit under their jurisdiction prior to enter into the MOAs they now want us to sign offto their form with regard to their terms.
7 We don't have the authority to normally sign offon it, but the Federal is asking us to. In terms ofthe liability no we are not because the jurisdiction is signed off. Member Edlao asked then why sign off? Mr. Lau replied because the whole idea behind co-trustees is a concerted, coordinated effort between each ofthe entities. Member Gon added in light of a better situation the life of a co-trustee we were opposed to a particular permit that did not involve State waters what would be the authority impressed? That would be based on the co-trustees. It wouldn't have any grounding or authority. Member Johns asked what a co-trustee means? Because he is a trustee and he works for trustees when you take on trustee fiduciary obligations you can't just say I don't have the authority to stop something, but that doesn't mean you look the other way. And ifwe're the trustee is it ok for us to say just because we don't have the authority to stop something once we consented to be a trustee shouldn't we be looking at what our fiduciary obligations might be with regard to commenting on what happens with the rest ofthe trust assets? Mr. Lau replied we think we had input to things beyond our State jurisdiction, but as for ifwe have any real authority to stop a permit base on that? Member Johns answered no he doesn't think we do. I just wanted to say is it enough to say we don't have any authority so we won't get involved. Mr. Lau answered probably. Member Johns continued ifthe land Board is the trustee implementation tool. Mr. Lau stated correct. Ms. Thompson continued the question whether you have jurisdiction or authority or not is a very important one. Ifthe Board decides it does then it should lie with the Board and not with staff. This is a 3 way marriage where everybody's interests are co-mingled. The way the permit is written now you are empowering one ofyour designees (one ofyour staffmembers) to make a decision about your marriage. Ifthis decision is going to be made on behalfofthe State it should come before the Board.
To highlight some other concerns. Looking at permit template on page 4, No. 12 another example like No.4 where State Law is violated by the joint permit. It's talking about the disposal ofhazardous waste. Towards the middle it says "No such material may be left in the Monument after the departure ofthe permittee unless it has been previously approved by Monument staff." This means anywhere in the Monument whether State or Federal waters. If someone has hazardous waste and they need to leave it there they could just call Monument staff which would be DLNR, DAR or one ofthe Federal agencies and ask ifthey can leave it there. And staff would say yes they can. She thinks that is a significant decision. She is concerned with leaving that decision up to staff with no notification given to DLNR at all.
Mr. Polhemus stated the Attorney General indicated this does not violate State law. He commented "he believes this mis-states condition No. 12 which in fact does put responsibility on any permittee rather than any other contingencies which the co-trustees were trying to consider. It is important to recognize a joint and cooperative effort is envisioned upon devise ofterritorial concerns jeopardizes the entire effort. Member Johns replied it doesn't answer the question. Mr. Polhemus added the contention is it violates State law. Member Johns says it doesn't violate State law. It looks inconsistent. If State law prohibits this how can it be approved by Monument staff? Mr. Lau answered the concerned could be addressed in the permit approval process that if they are going to bring hazardous materials into the NWHI that it should be made known
8 ahead oftime with the various co-trustees and they can weigh in then there will be some future contingency where for whatever reason they might have to leave the monument early and their research will follow them out. We tried to cover as many contingencies as possible. It is a remote contingency. It would be addressed within that application and that activity. Then thinking about special conditions how that would apply on how that material can be dealt with. To the extent that prior arrangements may be made that is only reason why that condition was left in. Member Johns reported we could never be prior arrangement where hazardous materials could be left in State waters and still be consistent with our rules. Is that right? Mr. Lau that's true. It could be a Federal concern or issue. Member Johns then stated right then the Feds could agree to leave it there for a week or whatever, but ifit is in State waters it will violate. Mr. Lau replied correct. Mr. Polhemus interjected Member Johns just put a Special Condition in. That's what the Special Conditions are for. The permit has to apply across the board to the 3 jurisdictions where certain clauses might not look quite perfect on the State's stand point, but we could address those at the Land Board with a Special Condition. Whereas as you pointed out the Federal partners might be ok. Member Gon stated he could also envision for example in a user end state jurisdiction leaving sharp or hazardous material at a location for a Kure, but it would be in violation of State law ifthat remain to be the case. But in the course ofa season there's anticipated storage ofthose materials there and a final removal. You could have those kinds ofcontingencies in which the violation is not ultimate. You've got temporary conditions set up by the Monument staffwith their approval and with a plan to deal with the material. Ms. Thompson added this highlights the significance ofthe decisions we are making and the reasons why we need to have as much check offas possible. We are talking about whether the Feds will be the ok with removal ofhazardous wastes for example. Then leaving it up to DLNR staffs decision on whether we agree with that. As it is this is the only opportunity to have the public be involved. This document highlights what happens when the public is not involved and we have these kinds ofinconsistencies. That is the reason why we need to have the actual Board to check offon permits to access Hawaiian waters.
Mr. Polhemus stated that the signatory should come to the Chairperson ofBLNR and would not necessarily come before the full Board. It would still be a submittal. We would still run it internally with a staffreview like any other review. It would come with a recommendation to the Chairperson. It could be an approval or a denial the Chairperson could sign offeither way yes it would be a decision. It could be a deferred.
Stephanie Fried, representing Environmental Defense, reported. She would agree with the OHA representative and the attorney from KUHEA. Passed out handouts. When there are two Federal agencies and a State agency coming together the Federal agency can't bow down to the State agency. The general conditions on this permit page one stipulates that activities will be carried out in accordance to the Monument rules alone. The applicant is not signing up to work under State rules. Federal law is much loser on this where you could discharge, but State would not allow. She would concur with the OHA attorney's suggestion to have required special conditions for activities in State waters. She would not approve this general conditions package without that language in it. All activities will be subject to these conditions. The last refinement was on January
9 26,2007 during the NOAA permit hearings where the Board went through the whole list and made it clear what we wanted in and out. It's very important because that NOAA permit has never been release to the public. They have not seen it. Not a single permit has been released. In the submission given to you there were many errors and flawed. She pointed out on a chart an example ofpermit holders. Under State Permit Conditions item 9 the State has stated affirmatively no food, chemical; waste will be described in State waters. The Monument language is not a prohibition on dumping, but a prohibition ofdumping without a permit. You can get a permit for dumping in Federal waters, but you cannot get a permit with the State. It's not a fair comparison. The waste log was eliminated because it did not meet Federal. Instead it's replaced with a monthly report.
Mr. Mike Tosato, regional administrator for NOAA Fishery Service reported outside of the State waters where the Federal authority and jurisdiction lies and characterizes the policy discussion on that issue. The co-trustees made a policy statement where they want this Monument because it is special. It's a never before tried Federal and State National Marine Monument that as a policy we want to do all activities as co-trustees.
Mr. Polhemus stated some permits could take a couple weeks to six or seven weeks. Some permits are more complex than others. Ifstaffsees problems in the initial review we may have to request a consultation with the people who are submitting the permit in which case we sit down with them and work out a whole range ofissues. We want to bring a well imbedded non-controversial permit before the Land Board at the best extent as possible. Ifwe see red flags we'll resolve it before it goes to submittal.
Member Johns made a motion to approve the recommendations with some amendments. On No.2 he would like to ask that monthly reports be given to the Board and be made available to the public for the permits that will be signed by the Chairperson or designated representative. Mr. Polhemus replied he believes that is required under State law. Member Johns continued Change Condition No.3 from quarterly to monthly. He then asked do we need to do a rule change to do that? Mr. Lau replied no. Add another condition that there will be a set ofspecial conditions staff will bring to the Board to clarify activities in State waters and those special conditions will be consistent with State law, rules, regulations, and the Land Boards decision on January 26, 2007. Mr. Polhemus asked are you talking about the NOAA permit? He noted the NOAA permit was never signed by the applicant therefore it was never fully executed which is the reason why it was never released. It's not a valid permit. The applicant was unwilling to sign that permit. .Therefore they don't have a management permit for State waters. Member Johns asked is it because the applicant wasn't comfortable with the conditions the Land Board came up with on January 26, 20077 Mr. Polhemus replied he can't speak for the applicant. Member Gon added nonetheless it's those conditions we're preserving. We want those conditions as stated from the January 26, 2007 meeting for that permit. Chairperson Young added its coming before the Land Board and can be addressed. Mr. Polhemus stated those conditions were largely based on the language as noted was not fully imbedded by past AGs. Those AGs had certain concerns. Member Johns asked what to do with the time issue? Chairperson Young stated it is his intent to have the 45 day public review and we should do that. Ifthe Board wants to have as a policy
10 statement that would encourage the same thing for a 45 day public review wherever possible. Member Johns replied he'll add that as additional conditions. All the 2007 permits will be made available to the public. Mr. Polhemus replied all the 2006 permits already have been made available to the public and 2007 yes.
Unanimously approved as amended (.Johns, Edlao)
Item 1-1 Request for Approval to Enter Into a Reburial Agreement with EW Kahala Beachfront LLC for the Human Skeletal Remains of Two Individuals Interred at 4577 Kahala Avenue, Honolulu, Hawaii, 96816
Unanimously approved as submitted (Johns, Schuman)
Item L-l Authorization to Enter Into a Memorandum ofUnderstanding Between the State of Hawaii, Department ofLand and Natural Resources; and the United States Department of Agriculture, Natural Resources Conservation Service, and various City and County of Honolulu Agencies, Regarding the Manoa Watershed Project
Unanimously approved as submitted (Johns, AgoI') ltemD-12 Set Aside to the Department ofTransportation for Addition to Honolulu Harbor Purposes and Transfer of General Lease No. S-4488 to Department ofTransportation, Harbors Division, Honolulu, Oahu, TMK: (1) 1-2-25:17.
Mr. Tsuji, administrator for Division ofLand, reported a transfer oflands at Sand Island known as Snug Harbor over to Dept. ofTransportation, Harbors Division. The lands are currently encumbered with the lease therefore the lease will be transferred as well. Member Johns stated the Board request they report back to the Board on how the relocation efforts are.
Moved to approved with additional condition. The Land Board amended StafPs Submittal by adding a Recommendation No.3 as follows:
"3. DOT-Harbors will keep the Land Division staff apprised of its negotiations with the University of Hawaii on relocating the Marine Center, and upon arriving at an agreement, the Land Division staffwill report to the Land Board the substance of the agreement to relocate the University of Hawaii marine Center."
Unanimously approved as amended (Johns, AgoI')
II Item D-4 Reconsideration of Rent under General Lease No. S-5206 to Kapaa Congregation of Jehovah's Witnesses, Lessee, for Church Site and Related Religious Purposes, Kapaa, Kauai, TMK: (4) 4-6-14:110.
Unanimously approved as submitted (Agor, Gon)
Item D-15 Issuance of Land Patent in Confirmation of a Portion of Land Commission Award No. 2715 to Hinau, situate at Wailau, Koolau, Molokai, TMK: (2) 5-9-006:005.
Unanimously approved as submitted (Johns, Agor)
Item D-I0 Termination ofLOD No. S-27016 Issued to Caine Enterprise (Hawaii) Corporation and Grant of Term, Non-Exclusive Easement to Paradise Ridge Limited Partnership for Access and Utility Purposes, Kamaole, Wailuku, Maui, TMK: (2) 3-9-004:061 por.
Mr. Tsuji ofLand Division reported he had no changes.
Mr. Paul Horikawa, attorney representing the applicant, indicated that they might be requesting consent to mortgage the easement in the future.
Unanimously approved as submitted (Agor, Johns)
Item D-13 Amend Prior Board Action of July 14, 2000 (D-l), Rescind Prior Land Board Approval and Set Aside to Housing and Community Development Corporation of Hawaii for a Senior Project With Assisted Living and/or Healthcare Support Services and a Management Right-of-Entry, Kaakaukukui, Oahu, TMK: (1) 2-1-51: portion of 9
Member Schuman recused herself. Mr. Tsuji reported he had no changes.
Unanimously approved as submitted (Gon, Johns)
Item D-14 Amend Prior Board Action ofAugust 24, 2001, Item D-29; Issuance of Lease to Vee Yuen Trust for Private Noncommerical Pier Purposes Pursuant to Kaneohe Bay Piers Amnesty Program, Kaneohe, Koolaupoko, Oahu, TMK: (1) 4-5-104:022.
Unanimously approved as submitted (Johns, Schuman)
12 Item D-16 Approval for leases, easements, licenses, revocable permits, concessions, 01' rights of entry pnrsuant to Hawaii Revised Statutes Section 171-11 covering lands set aside by Governor's Executive Order Nos. 0980 dated March 25, 1942; 2089 dated May 23,1963; 2944 dated December 5,1978; and 3778 dated July 26,1999 as described hereinafter.
Unanimously approved as submitted (Johns, Edlao)
Item K-l Conservation District Enforcement File OA-07-31 Regarding Alleged Unauthorized Repair/Reconstruction of a Boulder Revetment Within the Conservation District Located at Mokuleia, Island of Oahu, TMK (1) 6-8-003:018
Member Schuman recused herself.
Mr. Sam Lemmo, administrator for Office of Conservation and Coastal Lands, reported this is a violation case regarding unauthorized construction ofa boulder revetment within the Conservation District at Mokuleia, Island ofOahu. He had received a letter from Michael Carroll requesting a 30 day extension to enable them to respond to the violation notice. The owners need additional time to obtain an engineering evaluation ofthe existing structure and to the respond to the charges that were brought against them. It's customary to entertain the request.
Member Johns asked will the owners ask for a contested case anyway? Ifthey are the Board should just do it.
Mr. Lemmo replied he has no problem with the extension.
Ms. Katherine Graham, a board member ofthe Mokuleia Beach Colony and a former President, reported the prior owners, children and grand children have put up this unauthorized sea wall. Their sea wall is legally permitted with public access to the residents ofMokuleia Beach. They need help because it's not safe; they don't have access to the beach, and hinges on their property values. The 30 day request came up after owners were notified over a year ago, but there was a problem and it came 48 hours ago. They had at least a year to bring in an engineer.
Mr. Michael Carroll, attorney for the owners, explained the reason for the extension is they received notice ofthe violation earlier this month. In response to the allegation, the owner would like to get an engineer to evaluate the condition ofthe wall. And prepare a response to members ofthe Board. With regard to the improvements, his client did with respect to the wall, a large storm came in during the winter where several trees collapsed and large cracks appeared in the foundation. The owner's mother who lives in the house is very elderly. The owner went in and repaired the wall as best as he could and had a qualified contractor do the work. The wall is in better condition than it was before the
13 improvements. The owners did meet with DLNR staff last week and suggested they go forward with the process ofre-engineering the wall and go through the process ofre permitting it. And, the owners plan on going forward with that process.
Member Johns asked is it possible to have this structure made legal?
Mr. Lemmo replied no. Staffmet with the owners and he made it clear that the wall is illegal from staffs perspective and the wall has to be removed which is consistent with our policy that this Board established. What stafftold the owners to do is ifthey wish to build a wall they should file an application with the County. In the meantime, there needs to be action to remove the wall.
Member Johns reported the Board is not going to allow a wall in the Conservation District. Ifyou think you're going to be able to do that, it's not going to happen. Ifthe owner is going to have the engineer convince DLNR to have a wall in a Conservation District it won't work.
Mr. Carroll answered his client is concerned with how close the home is to the shoreline area. Member Johns asked then that is the exception? Mr. Carroll replied no the issue is to protect the property. He thinks a neighbor years ago had built without a permit to construct a wall and exacerbated the problem with the wave action against his client's property. The Mokuleia side coast is all hardened and ends at his client's property. The owner is hopeful going through this process they will be able to obtain a permit and address everyone's concerns. He will submit a request to defer this matter.
Ms. Graham replied it has taken Mr. Carroll's client 2 years to evaluate this. They haven't had access to the beach because of their locks. Mr. Carroll stated he believes the wall is in better condition then before the work was done. There was a violation about 2 years ago. DLNR asked them to remove the rocks on the beach and that was done.
Member Johns asked what are you going to do ifthe Board doesn't approve the 30 day extension? Mr. Carroll replied they would be forced to request a contested hearing. Member Johns inquired ifthat happened the wall will not be removed until completion of the contested case hearing process or settlement is reached. Is that right? Mr. Lemmo answered that is his understanding.
Member Johns informed the community to think about ifwe say no to the 30 days today and we go into a contested case mode then that is quasi-judicial it could take several months. Maybe 6 months to a year. Ifthere is any chance in the 30 days there could be some kind ofagreement reached for the preferences ofhis client and at the same time the violation issue can be cured within those 30 days with the use ofan engineer. As far as the public is concerned, the only way you can get out within 60 days is ifthey don't ask for a contested case today. It sounds like they will ask for one. Is that a fair statement?
Mr. Lemmo replied yes. Obviously, they will ask for a contested case hearing. Even if there is an opportunity to'reach a settlement about the wall without having to do the
14 contested case even that will take some time to complete. Don't' know how long that will require. The owner will have to file an application with the County which involves their own set ofhearings and review. Then payment offines because of inoperative uses and the owner would need to remove the remnants ofthe offending structure.
Member Johns asked what would the benefit be for the deferral today? Mr. Lemmo replied the owners wanted to talk to an engineer about what some ofthe long term alternatives might be. Then they might be in a better position to decide ifthey need to ask for a contested case hearing or not. Or cooperate with the Department.
Chairperson Peter Young asked the benefits be addressed for the neighbor is concern about having access? Maybe the engineers can address that? Mr. Lemmo replied that could be one ofthem. Mr. Carroll added they would be happy to discuss the concern with the neighbors in regards to the wall. In addition they would like to present their position to the members ofthe Board and ask for the 30 day extension. Mr. Lemmo reported what the owners to know need shouldn't take longer than 30 days to acquire that knowledge for the purpose ofthis proceeding. Member Johns asked how about 2 weeks? Is that too short? Mr. Lemmo replied no. Ifthis is important to the owners they can do a qualitative review. He should suggest going with that.
A neighbor stated she spoke with the owners personally. The owners did extend their wall so folks could not walk on their wall. They said the neighbors were trespassing. This has been happening for years. One day a crane was brought in to move the boulders in. Chairperson Young stated we need to do this procedurally. We recognize the violation. Ifwe go into a contested case hearing it will stay there and it will take time. There will be some resolution, but we don't know what that is. Or there is an opportunity for the neighbors to talk about it to see ifthere is a resolution that we can address it next month which we don't know what that is.
Neighbor replied they kept piling up the boulders without desisting.
Member Johns asked why is the fine so small? Mr. Lemmo said because they can only fine someone $2,000 per violation. They violated the stop work order on several occasions and they were notified in writing that they were in violation and they failed to stop. We had proofof it and we could only prove it 3 or 4 times they were working when they weren't suppose to. The rule states ifyou don't stop and continue working after notice you will be fined $2,000.
Another neighbor added the safety issue is terrible. All that concrete is coming up in chunks. They all have cut their feet getting across those boulders and Jeannie had sprained her ankle. Someone could break a leg or get thrown in by a wave.
Mr. Lemmo stated people need to understand the situation cannot remain as is for perpetuity. There is going to have to be a change it is going to have to be acceptable or from an engineering perspective and public safety perspective. That's going to be the
15 outcome ofthis case. Chairperson Young added that could be done cooperatively or by contested case hearing.
Mr. Paul Nelson past Mokuleia board member reported he doesn't think anyone wants to disturb Miss Dailey or make life difficult for her. But the first collapse ofthe walls happened 2-1/2 years ago a complaint was made and the rocks were not moved for a year and a half. There was no effort to do this. When they were finally put back the rocks were put back in a haphazard way by a bunch of guys that were not engineers or even had licenses. What assurance can we have that another 30 days enduring which we talk with them as ifwe cooperate. What assurance do we have that this is just a seeking for delay? Chairperson Young replied in 30 days the Land Board will remember these conversations. Mr. Nelson stated they have talked with DLNR and it has been mentioned that at some point an engineered sea wall could go in. We've even cooperated to the point ofthinking that a walk way could be down below the level ofeye sight oftheir home and yet still be safe. He asked what do we have to discuss with them in the next 30 days? That is his problem. Chairperson Young answered Mr. Carroll indicated he wanted to get an engineer and in that process is committed to working with you.
Mr. Nelson replied my apprehension is they had 30 years to hire an engineer to evaluate the wall. As the issue ofthe wall has escalated there have been more opportunities for him to do this. It's suspicious to them when it's come to this all ofa sudden he wants to 30 days to hire an engineer he could have hired 30 years ago.
Chairperson Young stated he understands your concern. There's a chance to get something resolved in 30 days and that's not a long time. Especially when it's been a long issue. But he is concerned with the frustration you will go through that nothing changes for a long time when it goes into contested case. It may end up in contested case 30 days from now and that frustration may only start with a delay in 30 days. Then you have this initial hope. Its either going work to a resolution by working with you or it goes to contested case and you'll be frustrated. Whether contested case starts today or 30 days from now.
Ms. Jeanne Wood is an owner and part-time resident ofMokuleia reported her concern is access. This will go on and on. She asked is there any method they can use now to get legal access to the beach while this process is going on? Chairperson Young suggested that should be your initial discussion during this interim. However it works whether you use this initial 30 days or through the contested case process. Chairperson Young asked is there some way to get some limited access over where you are to where you want to be? Ms. Wood ifwe are denied the access during this 30 days do we have any recourse? Chairperson Young replied we are not the body to determine that. He thinks the message has been sent and received ofthe concern. Mr. Carroll added they will work with them to resolve this issue. Mr. Nelson stated he will go along with the 30 days. As long as they get access and ifthere is a really clear plan and DLNR will likely approve that plan for a safe sea wall and public passage. He doesn't see cooperating much more.
16 Chairperson Young reported he has every expectation that ifit doesn't go well in 30 days and it comes back to the Board we'll see you again and it won't be the same frame of mind. The Board will hear a lot stronger statements about this? This will be late May. Ifyou go into a contested case it will take a long time and you would have to hire a lawyer and it will not be cooperative.
Moved to defer for 30 days. Deferred (Johns, Agor)
Item K-2 Time Extension Request for Conservation District Use Permit (COUP) KA-3142 for a Single Family Residence Located at Haena, Island of Kauai, TMK: (4) 5-9-005:020
Unanimously approved as submitted (Agor, Gon)
Item M-l Conveyance of Parcels lOB and HA, Honolulu-Pearl harbor Road, Prison road Section, F-44 (3), Honolulu, Oahu, Tax Map Key: (1) 1-5 13:8 Abutting parcel Tax Map Key: (1) 1-5-13:5
Item M-2 Conveyance of Remnant 3, Hawaii Belt Road, NRH 14-C & 14-0, North Hilo, Hawaii, abutting parcel Tax Map Key: (3) 3-2-3:2
Item M-3 Issuance of a Revocable Permit to Eugene Gillis dba Excavation Services, Keehi Industrial Lots, Kalihi-Kai, Honolulu, Oahu
Unanimously approved as submitted (Johns, Gon)
Item C-l Acceptance of Hearing Officer's Report on a Public Hearing for Two l)roposed Additions to the Forest Reserve System on Kauai, and Approval and Recommendation to Governor for the issuance of Executive Orders: 1) Addition of approximately 9,216 acres to Puu Ka Pele Forest Reserve, Waimea District, Kauai; 2) Addition of approximately 142 acres to the newly designated M~na Plains Forest Reserve, Waimea District, Kauai.
Item C-2 Authorize the Department to Enter into a License Agreement with the U.S. Coast Guard for Use of Lehua Island to Conduct Ecosystem Restoration Activities
Unanimously approved as submitted (Gon, Johns)
17 Item D-l Amend Prior Board Action of October 28, 2005 (D-3), Grant of Perpetual Non-Exclusive Easement to the Department ofWater, County of Kauai for Overflow Drainage and Channel Purposes, Omao, Koloa, Kauai, TMK: (4) 2-7-04:11.
Item D-2 Cancellation of Governor's Executive Order 2709 and Reset Aside to the County ofKauai for Police Substation and Teen Center Purposes and Issuance of a Management Right-of-Entry, Koloa, Kauai, TMK: (4) 2-8-08:17.
Item D-3 Amend Grant of Non-Exclusive Easement S-5674 to Charlotte A. Seyer, Kapaa, Kawaihau, Kauai, Hawaii, TMK: (4) 4-6-04: Portion 28.
Item D-5 Cancellation of Governor's Executive Order No. 896 to the Board of Supervisors of the County of Kauai and Reset-Aside to the County of Kauai for Maintenance Base Yard, Public Affair and Recreational Purposes and Issuance of a Management Right-of-Entry, Waioli, Halelea, Kauai, TMK: (4) 5-5-03:02.
Item D-6 Rescind Prior Board Action of March 22, 1996 (Item D-l), Direct Sale of a Perpetual, Non-Exclusive Easement to Douglas Hardy Knowlton and Patricia Ross Knowlton for access and utility purposes, Olaa Summer Lots, Puna, Hawaii, TMK: (3) 1-9-03:Kalaninauli Road.
Item D-8 Issuance of Month-to-Month Revocable Permit to Kove's Equipment Rental LLC, Waiakea, South HHo, Hawaii, TMK: (3) 2-2-50:81.
Item D-9 Amend Prior Board Action ofJanuary 25, 2002 (D-18), Approval of a Set Aside to the Division ofForestry and Wildlife; Approval ofSet Aside to the Division ofState Parks; Approval of natural Resources management Guidelines and priorities for State Lands at Puu Waawaa and Puu Anahulu, North Kona, Hawaii, TMKs: (3) 7-1-1:1, 6,4; 7-1-2:1,8,13; 7-1-3:1,2,16; 7-1-4:1, 18. ltemD-ll Issuance ofManagement Right-of-Entry Permit to the Division of Forestry and Wildlife and Delegation of Authority for the Issuance of Right-of-Entries at Moanalua Valley, Oahu, TMKs: (1) 1-1-12:2, 15, 35 and 1-1-13:1,2.
Unanimously approved as submitted (Johns, Schuman)
18 Item F-l Request for Approval to Amend contract No. 52740 to Provide $45,000 in Federal Funds for a University ofHawaii Project Titled "Local Action Strategy to Address Land-Based Pollution Threats to Hawaii's Coral Reefs" (Contract Period: 9/15/05-3/30/08)
Unanimously approved as submitted (Johns, Gon)
Item F-2 Request for Final Approval of Temporary Five-Month Closure to Bottomfishing for All State Marine Waters Surrounding Existing Bottomfish Restricted Fishing Areas within the Main Hawaiian
Mr. Polhemus reported the National Marine Fisheries has determined that the necessity of additional mortality reduction in this fishery exceeds that can be provided by the State. The new network ofbottom fishing the Board had approved in 9 Dec. 2006. At the most recent meeting ofthe Western Pacific Fisheries Management Council options were explored as to how to deal with this additional necessity for further mortality reduction. In light ofthe reauthorized Magneson'sISteveson's act which was passed in Jan. 2007 the council in consultation with the Pacific Islands Regional office National Marine Fisheries determined they would like to make a transition to attack based fishery. That's a totaL allowable catch which means they set the total catch for the year end ofthe fishery. Once that catch is breached that fishery is shut down until the next fishing year. It will take 2 years to get attack based management in place. Therefore an interim action is necessary to provide interim management for 2007-2008. The Federal Government determined the proper interim action would be a summer closure of 5 months from May to September. They have asked the State to mirror this closure in State waters. We have been asked directly by the Assistant Director ofNationaI Marine Fisheries Service, Dr. William Hogarth, in Washington, D.C. to do this. In addition, staffhas found through our staffs own analysis were we not to mirror this closure the current efforts in Federal waters would redistribute into State waters and our resources can't absorb that additional pressure. Therefore staff is asking the Board to approve this measure. We have here Mr. Mike Tosato from National Marine Fisheries who can speaI( about the Federal side.
Chairperson Young one ofthe big concerns is the enforcement issue. We are getting to the point where we don't' want the fisheries to get in an over fished state. We do not want to shut down the fishery. We want to be able to get back to a sustainable fishery. But we also don't want to be the lead on enforcement from a designation that is coming from the Feds. So how can we resolve that? Mr. Mike Tosato replied we can resolve that a couple ways. He can assure the feds will not leave the State or DOCARE hanging and expect them to be the only ones enforcing[.] State rules. And to lean heavily upon them to [eaferee] assist Federal through the JEA (Joint Enforcement Agreement) to enforce Federal rules and leave them all alone. Like DOCARE enforcement resources are scarce within the islands. He assures the Board it is a priority with the Fisheries. The coordination is in place and the closer has started. The Federal has a JEA in place with the State.
19 Chairperson Young stated with the seasonal closure enforcement becomes somewhat easier because ifanyone has a fish it's not out ofseason so you can't catch it. Ifwe don't do this we won't know where the fish was caught.
Mr. Tosato answered correct. That is why it needs to be a State and Federal closure. There are 2 sources for fish, [ffi] imports or NWHI. Monitoring ways that we know of.
Chairperson Young asked would NOAA be doing dock side enforcement? Or will they be relying on DLNR to do dock side enforcement. Mr. Tosato replied NOAA can do dock side enforcement ifthere is a provision in Federallaw that prohibits the possession offish taken from Federal waters they can take a range ofactivities. Including dock side enforcement, including marketplace enforcement, business records, etc. to track the fish. Chairperson Young explained please remember the JDA was not signed with this over fishing anticipation in mind. It was not in place nor was it anticipated. We appreciate the Federal funding. Is there possibly an amendment? Mr. Tosato replied the not sure the duration ofthe agreement. It is annual. It needs to be modified that is the discussion. Mr. Gary Moniz, ChiefofLaw Enforcement at DLNR, commented this puts a new burden on DOCARE. He spoke to his Federal counterpatis in the National Marine Fisheries enforcement said ifthey find a violation they will call DOCARE to do the enforcement because they can't do it now. The issue ofFederal dock side enforcement will be difficult because they can't prove ifit is from State or Federal waters. Where did the fish catlle from? The issue ofpossession and sale is not covered in this measure. Don't want to set DOCARE up for failure with this issue. They need a robust public education catllpaign that is more than pretty pictures. Have it in Tagalog, Satlloan, Vietnamese, etc. Speaking to his Federal and DAR counterparts, [that] this is a critical component to have these people on boat'd to work with them[.],l!s oppose to catching them. Also this is a night time fishery. [When its night time enforeement is not oftheir] When you do night time fishery enforcement and someone is fishing that in itselfis not a violation. These at'eas will still be open to fishing we need to prove ifthey caught bottom fish. He'll send a list ofissues to the Chairperson. DOCARE wants the Board to know that this is not going to work unless these issues are addressed and dealt with. DOCARE still needs to sit with the AGs to find out where they come from in terms ofenforcement.
Chairperson Young asked recognizing all the challenges with at least having a consistent closer period, doesn't that mal,e enforcement a little easier to be able to prosecute? Because it would be very difficult ifsomebody should bring a boat full offish caught in State waters. Mr. Moniz replied there at'e some assumptions there. Ifhe bet on it it wouldn't fly. In a criminal context ifwe at'en't clear where it would be its on shaky ground. On a civil matter ifit catlle before the Board that may be different. DOCARE recommended seasonal closers 10-12 years ago and therefore supports this. They support the fishery, they just want to know what the expectations are for DOCARE.
Member Johns asked do we need to amend the recommendation for them to start rule maldng or not? Mr. Polhemus stated this is one ofa sweep ofactions that has to happen for the envisioned management ofthis fishery. There already has been intense discussion
20 ofa motion going forward on a full rule package that will accommodate all the aspects of the required changes.
Unanimously approved as [defeFFed] amended with added condition. "Departments expedite rule making process to be consistent with the Board's decision." (Johns, Edlao)
Item D-7 Consent to Assign General Lease No. S-3170, Leonard D. Sutton and Jane L. Sutton, Assignor, to Leroy Binyan and Ruth Binyan, Assignee, Waiakea, South Hilo, Hawaii, TMK: (3) 2-1-07:26.
Unanimously approved as [submitted] amended (Johns, Agor)
There being no further business, Chairperson Young adjourned the meeting at II :42 a.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted, , ~~ Adaline Cummings Land Board Secretary
Approved for submittal:
21 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, MAY 11,2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Interim Chairperson Allan Smith called the meeting ofthe Board ofLand and Natural Resources to order at 9:09 a.m. The following were in attendance:
MEMBERS
Mr. Allan Smith Mr. Rob Pacheco Mr. Tim Johns Mr. Jerry Edlao Mr. Ron Agar Ms. Taryn Schuman Mr. Samuel Gon III
STAFF
Mr. Sam Lemmo, OCCL Mr. Paul Conry, DOFAW Mr. Russell Tsuji, LD Mr. Dan Quinn, SP Mr. Daniel Ornellas, LD Ms. Sasha Smith, DOFAW Mr. Randy Awo, DOCARE Mr. Clarence Yamamoto, DOCARE Mr. Gary Moniz, DOCARE Mr. Randy DeCambra, DOCARE Mr. John Yamamoto, DOCARE
OTHERS
Ms. Linda Chow, AG Mr. Glenn Abe, DOT Harbors Ms. Antoinette Marie Davis, D-12 Mr. Richard Halfhill, D-ll Mr. Ernest Kalei Smith, D-13 Mr. Randy Waldrop, D-14 Mr. Archie Kalepa, D-15
{Note: language for deletion is [bracketed], new/added is nnderlined}
Item A-I Minutes ofApril 27, 2007
Member Pacheco recused himself.
Unanimously approved as amended (Edlao, Gon) Item M-l Issuance of Direct Lease and Right-of Entry to Ameron International Corporation, DBA Ameron Hawaii Adjacent to and in Vicinity ofPier 60 and Keehi Lagoon Tax Map Key: 1st Division, 1-2-23: Portions of 33 Honolulu Harbor, Kapalama and Iwilei, Honolulu, Oahu
Mr. Glenn Abe ofDepartment ofTransportation (DOT), Harbors Division.
Unanimously approved as submitted (Johns, Agor) ltemM-2 Issuance of an Inconsistent Use Revocable Permit to Alexander & Baldwin, Inc., Kahului Airport
Unanimously approved as submitted (Schuman, Johns)
Item M-3 Issuance of a Replacement Lease U.S. Federal Aviation Administration, Lihue Airport
Unanimously approved as submitted (Gon, Johns)
Item M-4 Issuance of a Direct Lease to Castle & Cooke Homes Hawaii, Inc., Honolulu International Airport
Mr. Ross Smith, Property Management & Land Acquisition Supervisor for DOT, Airport Division reported an amendment to submittal. I. Deletion ofrequirement upon rent re opener. It requires the appraised amount be the rent. Deleted floor of 112% ofprevious rental and going with the appraisement. 2. Rent Credit - Rent will begin 366 days from abatement oflease.
Unanimously approved as amended (Johns, Schuman)
Item K-2 5th Request for IS-Day Time Extension to the 180-day Processing Period for Conservation District Use Application (CDUA) OA-3266 to process Haseko request to utilize State-owned land for proposed drainage system improvements by Sandra WilhidelYvonne Izu, Ishikawa Morihara Lau & Fong LLP, 400 Davis Pacific Center, 841 Bishop Street, Honolulu, Hawaii 96813, 808-528-4200, subject parcel TMK: (1) 9-1-11 :002 and 003, Ewa District, Island of Oahu
Mr. Sam Lemmo representing Office ofConservation and Coastal Lands reported is a time extension request to extend the ISO-day processing period on a CDUP for Haseko for the Papipi Road drainage improvements. Currently in contested case mode at this time and the Board is deliberating on this matter. They need extra time to come up with the order. Haseko is asking for a 15 day extension ofthe processing period until June 7, 2007.
Unanimously approved as submitted (Schuman, Gon)
2 Item K-l Conservation District Use Application (CDUA) HA-3396 to make Improvements to Isaac Hale Beach Park, Puna District, Island of Hawaii, TMK's: (3) 1-3-008:014 and 021, and (3) 1-4-002:008 by Ron Terry, Geometrician Associates, P.O. Box 396, Hilo, Hawaii, 96721 for the County of Hawaii, Department ofParks and Recreation, 101 Pauahi Street, Suite 6, Hilo, Hawaii, 96720
Mr. Lemmo reported the land is controlled by the County ofHawaii through an executive order. The area is Puna, Ho'oiki District. This is the only boat ramp in the area and one oftwo parks in Puna. The County is proposing to make some improvements to the makai area ofthe road. They filed a CDUP for these improvements and filed an EA for the project and completed in May 1998 Which had some conceptual elements. They have now fine tuned the park plans which took them through the CDUA process on the specific park improvements and received various comments. Through staffanalysis subject to14 conditions and seeking your approval.
Member Johns asked the boundary ofthe park is triangular shape? Does it extend over inside ofthe bay? Mr. Lemmo showed on the map. Member Johns inquired will the freshwater pond be affected by the construction? Mr. Lemmo replied no the sidewalks are not near the area. The purpose ofthe project is to remove the shoreline impacts so traffic will be restricted from the area.
Unanimously approved as submitted (Pacheco, Edlao)
Item D-8 Cancellation of Revocable Permit No. S-7271 and Issuance of Month to-month Revocable Permit for Pasture Purposes to Kapapala Ranch, Kapapala, Ka'u, Hawaii, TMK: (3) 9-8-01:03, 06 & 13.
Mr. Tsuji ofLand Division reported he had no changes.
Member Gon commented he noticed the location is right next to the Ka'u Forest Reserve he was wondering ifamong the reasons for the revocable permit is to explore agricultural uses, but also koa reforestation.
Approved as Amended. Page 3 ofthe Submittal indicates that staffwill study a possible longer-term disposition ofthe lands for intensive agricultural and pasture purposes. The Board amended the Submittal by asking Staffto also study the possibility and feasibility ofadding Koa reforestation as a purpose.
Unanimously approved as submitted (Pacheco, Edlao) ltemD-6 Issuance ofRight-of-Entry Permit to Department ofHawaiian Home Lands, onto Encumbered State Lands at Lalamilo, South Kohala, Hawaii,TMK: (3) 6-6-01:11
3 Mr. Tsuji reported he had no changes.
Unanimously approved as submitted (Pacheco, Edlao)
Item 0-11 Enforcement ofViolation on Unencumbered Public Lands, Unauthorized Operation ofMotor Vehicle by Richard Halfhill, MA 07-846, Hanaula, Wailuku, Maui, Tax Map Key (2)3-6-001:014.
Item 0-12 Enforcement ofViolation on Unencumbered Public Lands, Unauthorized Operation ofMotor Vehicle by Antoinette Davis, MA 07-846, Hanaula, Wailuku, Maui, Tax Map Key (2)3-6-001:014.
Item 0-13 Enforcement of Violation on Unencumbered Public Lands,Unauthorized Operation of Motor Vehicle by Earnest Kalei Smith, MA-07-846, Hanaula, Wailuku, Maui, Tax Map Key (2)3-6 001:014.
Item 0-14 Enforcement of Violation on Unencumbered Public Lands, Unauthorized Operation of Motor Vehicle by Randy Waldrop. MA 07-846, Hanaula, Wailuku, Maui, Tax Map Key (2)3-6-001:014.
Item 0-15 Enforcement of Violation on Unencumbered Public Lands,Unauthorized Operation ofMotor Vehicle by Archie Kalepa, MA-07-846, Hanaula, Wailuku, Maui, Tax Map Key (2)3-6-001:014.
Mr. Tsuji, Administrator for Land Division, reported D-ll to D-15 is a Maui Enforcement Action where motorcycles damaged State encumbered lands and Division ofConservation & Enforcement (DOCARE) officers were involved, issued citations and seized the vehicles. Staff is bringing to the Board and asking an administrative fine be assessed at $500.00 plus the administrative costs. Staffwill need to identify the travel costs and costs from DOCARE.
Chairperson Smith asked how many traveled here? Mr. Tsuji replied DOCARE brought 4 officers plus the Maui District Land Agent total of 5. Mr. Awo added also one Forestry Technician for a total of 6.
Member Gon stated on the direction ofthe State to return the said vehicles after satisfying the State's requirements and conclusion ofthis matter. Member Johns asked why would we return them at all? Is it based on legal advice from the Attorney General's (AG) office? Mr. Tsuji responded yes.
Mr. Johns moved to go into Executive Session to meet with our attorney to address our rights, privileges and immunities with regard to the application and HRS Sanctions to deal with this item. (Johns, Agor)
4 9:30am - Adjourned for Executive Session. 9:42am - Back in Session.
Ms. Antoinette Marie Davis passed out handouts. She explained where they (she & Richard Halfhill) entered there were no signs. There was a welcoming sign that said "trail" and there were roadways. Where they parked the truck to the left ofa sign they shouldn't have parked it. It's the first time they have been there. The report stated they were fleeing, but that is not true because it's contradictive. At the bottom ofthe report it's stated they complied and came. Mr. Richard Halfhill reported there were signs stating where the trailhead is. They had called and were told there was a parking lot back there. A truck with bikes in the back came down from where the sign is and they thought that is where the trail is. But that road goes up the mountain. He parked offthe road so the truck wouldn't block it. They rode their bikes down to Ma'alaea and that's when they saw the officers and spoke with them. On the way they saw the parking lot, but decided to leave the truck where he parked it to prevent vandalism. They did not know they were doing anything wrong. He apologized for parking his truck where he did.
Member Edlao asked how long have you been riding dirt bikes? Mr. Halfhill replied since he was a little kid. On Maui, these are his first bikes. Member Edlao inquired did you not see the DLNR signs where you parked your truck? Mr. Halfhill answered he did. Member Edlao inquired didn't that tell you this area is a sensitive area and we shouldn't be riding in there? Mr. Halfhill replied they did not ride in that area. They only parked the truck there to keep it offthe road. Member Edlao asked in the report it stated you were watching the whales at the water tank? Mr. Halfhill answered yes, at Ma'alaea it's a paved road. Member Edlao stated because with Mr. Halfhill's experience as a dirt biker wouldn't it occur to you to think whether this is a sensitive area and you shouldn't be there. Maui has a need for an area for dirt bikes and Member Edlao wants the Department to look for land for such activity. Seeing other bikers there doesn't mean it makes it right to go there. Ms. Davis replied do you understand that they parked at that sign and rode their bikes to another area where there are no signs. Member Edlao answered even ifit was the maintenance road for the water tank you shouldn't be there. Ms. Davis asked is it not legal to ride motor vehicles on unencumbered land? Member Edlao replied no, he is not saying that. Ifyou're familiar with Maui and the area, in fact, ifyou live in Hawaii you should be sensitive to the lands here and should respect that. When in doubt you should not be there. It's best to check first before going into an area. Mr. Halfhill replied there was a sign at where they entered that said to stay on the road and that is what they did. Ms. Davis stated she is aware ofthe administrative rules and was looking for signs. The report stated they didn't look at the sign, but they did see what it said. Member Pacheco inquired ofthe signage on the pictures and map. Mr. Daniel Ornellas, Maui District Land Agent, reported Exhibit A is a TMK map.
Mr. Tsuji explained DLNR has no area with the exception ofSand Island that would allow anyone to ride any motor bikes on State or County Land. It is private property or goverument property and it is not for people to go trespass and bust up the ground. Common sense tells you "no." You shouldn't have to see a sign to tell you "don't ride on it" whether it is private or public property.
5 Mr. Ornellas presented a map and explained where everything is. There is an old cattle fence that clearly distinguishes between mauka lands from makai lands. Ifyou are on the old plantation dirt road you are clearly on private property makai ofState lands. Anywhere mauka near the truck you are on State government lands. The report they received from the officers stated all bikes emanated from Government Lands. Mr. Halfhill agreed with everything except for the end part. He explained on the map.
Mr. Archie Kalepa, a respondent, explained he has been riding dirt bikes for over 30 years. As well as Randy Waldrop who is a professional racer from the mainland and Ernest Kalei Smith who grew up riding. They were on encumbered lands and they can't argue with that. He did not see the signs because he was going too fast. On the way down they came across other riders that said DLNR was at the bottom ofthe hill and they asked him what he was going to do? He said he was going to the bottom ofthe hill. When they got to the bottom everybody sped by the officer, but Mr. Kalepa stopped along with Mr. Waldrop and Mr. Smith. Officer Yamamoto said "you guys aren't supposed to be up here." Mr. Kalepa replied they weren't aware ofthat and they apologized. They weren't there to break any laws. The officer gave them a warning and took down their information. They heard people were coming up there and they went straight up and came back down. They never saw anything in regards to the fence and pipe cutting. Mr. Waldrop stated he and the rest ofthe guys have never been there. They always respect the land and this time they blew it and they know it. Mr. Kalepa wants to work with the DLNR officers to be the solution and not the problem. He wants (dirt bikers) to be stewards ofthe aina, but they need a place to ride. They want to educate riders and they accept the fact what they did was wrong. They are making payments on dirt bikes they don't have. They accept the punishment and want their bikes back.
Member Edlao suggested after all this is done these men should work with Daniel Ornellas to find a place for dirt bikers.
Mr. Kalepa explained the motor cross track exists, but you can onlyjump triples for so long and then it gets dangerous. He has raced on the mainland and on the Big Island which is the kind ofriding the older riders enjoy. It is a family event and more extreme. People want to do more.
Member Johns clarified and asked with these 3 gentlemen ifthere was a cap on the administrative costs with the recommendations staffdefined with returning ofthe motor vehicles, are you comfortable? Mr. Kalepa answered yes. Member Pacheco asked where else do you ride? Mr. Kalepa replied there is a perimeter trail at Puunene and a trail in Lahaina. They are talking with Na Ala Hele to maintain and ride trails. When the State put in the fence, riders were cutting the fence. Mr. Kalepa looked for those riders to tell them you don't cut this fence that protects the forest land. We are stewards ofthe land. He cannot speak for the guys who have been growing pakalolo and going over the fence. Member Pacheco asked where do you park? Mr. Kalepa replied at Waikapu. They told the officer everything.
6 Ms. Sasha Smith a Forestry & Wildlife Technician for Maui presented a power point program regarding the Nene Program. In the area where this incident occurred is a Nene release site. She made the original complaintofdirt bike activity in the area with the cut fences and pipeline. It has been an ongoing problem over the years. She has posted numerous signs and they get vandalized and tossed away. There are problems with dirt bikes and atvs during the holidays. She presented bike tracks before and later. Member Johns asked because these guys made these tracks and therefore their bikes are offthe trail or generally the word got out either through these respondents or through DOCARE's efforts that it's not appropriate to go up there and now the property is recovering? Ms. Smith replied she believes so. That is exactly what she is trying to say. She doesn't know who exactly did it because she didn't catch anyone and it was not these people. Mr. Ornellas pointed out people have been vandalizing the catchment system and some other facilities for the nesting pens. He is not pointing blame, but it is a grievous act that some people are doing up there.
Mr. Clarence Yamamoto, Supervisor ofMaui DOCARE and Mr. Randy Awo representing DOCARE Branch Chieffor Maui, explained to the Board on what Maui has been experiencing for many years. There has been a proliferation ofdirt bikes entering into environmentally sensitive areas. Maui DOCARE has been on the receiving end of increasing complaints and demands from the public to do something about it. It's a challenge for staffwith dirt bikes because they are very mobile and can travel at a high rate ofspeed. When people are geared up staffcannot identify them with the helmets on and can easily run past check points. It's a very labor intensive effort for staffto find entry points, exit points, and try to position their men to detain suspects. In this instance, staffwas able to do this with the respondents' cooperation, but in most cases people get away and the damage continues to occur. Staffnot only detained suspects for information. They seize motorcycles with the hope and intent it would, while these hearings are completed, at minimum prevent bikes from going back up to these very sensitive areas. He also pointed out this is a big and growing problem and far from over. Even now as he speaks they are getting numerous complaints about an area called Kahikinui which they need to gear up for again. In response to the gentleman's complaint why DOCARE officers were here? They brought Sasha Smith because they felt her presentation was important. They brought the two primary investigators, Mr. John Yamamoto and Mr. Randy DeCambra. Mr. Clarence Yamamoto and Mr. Awo are here because ofadministrative concerns about how the case was dealt with and was raised as part ofthis hearing. They wanted to be available to answer any questions.
Member Johns asked he understands Maui DOCARE is under resourced and under manned for the jobs they have to do. In your presentation, Mr. Awo said, that this ability to seize these vehicles is an important tool for your enforcement efforts. Is this still your belief? Mr. Awo replied yes, it's an extremely important tool. It allows staffto take possession ofthe fmits ofthe crime. To hold on to it until the investigation or hearing is complete whether civil or criminal. Staffviews it as a very important tool especially when dealing with motorcycles because it does send a message and compel defendants to show up at hearings and motivates them to look at this carefully and move to some kind ofsettlement. But his concern is staffneeds to be careful on how to render opinions with
7 regard to violations occurring on unencumbered lands. When they move on to shoreline, which is the fourth largest coastline in the nation, much ofthat is unencumbered. Ifwe are no longer able to seize property in that much larger arena as a result of a wide array of violations that occur, particularly since we are an island community, he is very concerned what this would mean for his officers. It is a tool provided to them by the legislature. Member Johns asked is it a larger issue in terms ofhaving that enforcement tool? You didn't seize these (bikes) to punish these particular riders. Especially the 3 gentlemen who cooperated, but you're punishing them because ofa larger issue? Mr. Awo replied yes. They absolutely have to have those tools available to DOCARE.
Member Edlao made a motion to fine violators $500, administrative costs not to exceed $200 and return of the bikes for each respondent. Agor second.
Member Johns stated he cannot support this. He is ok with the fine and administrative cost, but he is not convinced even after the briefing with the Attorney General that there is clarity as to what seizure rights DOCARE officers have. He doesn't want to vote today to take that tool out oftheir hands; therefore he is not going to support the motion. He believes it's an important tool for these officers, but the AG needs to give better clarity to what the enforcement officers can or cannot do with regard to seizure. It is important to see pictures and testimony on how important it is, but he doesn't want to punish these people and make them pay a bigger fine. But at the same time he is not willing to take that enforcement tool out oftheir hands therefore he is not supporting the motion. Member Gon replied he feels that seizure is important for conservation protection as we expand beyond terrestrial enforcement into marine enforcement and will become even more important. You remove violator's ability to move into areas ofcontention. He would like to not support based on those grounds. Member Pacheco explained it's the same for him, too. It's a big problem on Hawaii Island and would like the word to get around there are tools out there.
Rule call vote: Pacheco - no, Edlao - yes, Johns - no, Smith, yes, Agor - yes, Schuman - yes, Gon - no. Passed.
Ms. Davis reported they felt violated by the taking oftheir bikes. She recommended giving a citation instead.
Mr. Kalepa explained when the word gets out that the officers seized their bikes riders will not stop. That is what the officers are trying to avoid. These are young kids and they will take off. Maybe a ticket process and time in court will work. To take away a bike will work against you. He wants to help the officers to get the message out to people. He feels, knowing the dirt bike community, they will not stop. On the mainland, conservation officers will give you a ticket. Member Edlao replied he understands what Mr. Kalepa is saying, but here we are looking at the total bigger picture.
Mr. Tsuji asked Mr. Kalepa since he has ridden on the mainland, with thousands riding all over are they doing it legally or is it allowed on the mainland? Mr. Kalepa explained in Hawaii traditionally we have never established a riding community. We have never
8 had clubs other than the motocross track. On the mainland, riders join a club and the club pays dues to the government to have a riding area. The club maintains the use ofthe land. That is what he has been trying to do here.
Mr. Awo explained based on many years ofexperience versus citations and a civil process. As an example ofwhether a citation is effective and serves as a deterrent, his answer is no. In Kula Forest Reserve, it is a criminal violation. They have the authority to give citations and have, but it has not stopped the bikes from running past the officers. What has made these riders pause with serious thought to whether or not they stop is if the officers will seize the property that's the reality.
Approved As Amended. The Land Board amended Stafrs Submittal by adding a Recommendation No.3 as follows:
"3. Order Respondent to pay administrative costs not to exceed $200.00 per Respondent."
Item B-1 Request for Board Approval to Enter Into a Joint Enforcement Agreement between the Department ofLand Natural Resources, Division of Conservation and Resources Enforcement, and the National Marine Fisheries Service, Office of Law Enforcement
Item B-2 Request Board Approval to Enter Into a Memorandum of Agreement between the Department ofLand and Natural Resources, Division of Conservation and Resources Enforcement, and the Department of Justice, Drug Enforcement Administration
Unanimously approved as submitted (Johns, Edlao)
Item C-1 Request for Amendment ofthe Hawaii Invasive Species Contract 54965 with the University of Hawaii so that a Time Extension to 9/30/08 May be Pursued
Item C-2 Request for Amendment ofthe Hawaii fnvasive Species Contract 54842 withUSDA - Agriculture Research Center so that a Time Extension to 12/30/11 May be Pursued
Item C-3 Request for Amendment of the Hawaii Invasive Species contract 54535 with USDA - Agricultural Research Center so thata Time Extension to 6/15/10 May be Pursued
Unanimously approved as submitted (Edlao, Gon)
9 Item D-1 Request to Write-Off Uncollectible Accounts on the Islands of Oahu, Maui, Hawaii and Kauai
Item D-2 Grant of Perpetual, Non-Exclusive Easement to Wayne Y. Tokashiki for Access and Utility Purposes, Kapaa Homesteads, lst Series, Kawaihau, Kauai, TMK: (4) 4-6-33:07.
Item D-3 Sale of Land License at Public Auction for Removal ofRock Aggregate Purposes, Waiakea, South Hilo, Hawaii, TMK: (3) 2-1-13: Portion of02. Item D-4 Amend Prior Board Action ofMarch 23, 2007 (Item D-2), Reconsideration of Rent under General Lease No. S-5513 to Hospice of Hilo, Lessee, for Hospice and Allied Purposes, South Hilo, Hawaii, TMK: (3) 2-3-32:11
Item D-5 Issuance of Right-of-Entry Permit to the University of California Berkeley, onto State Lllnds at Makeanehu, Kaihooa-Pahinahina, North Kohala, Hawaii, TMK: (3) 5-8-01:6 and 5-9-03:1
Item D-7 Quitclaim ofState's Interests, ifAny, in Former Road Right-of-Way to the County of Hawaii, Kailua-Kona, North Kona, Hawaii, TMK: (3) 7-5-22:175 ltemD-9 Sale ofReclaimed (Filled) Land to Harry Yamada Trust and Florence Yamada Trust, Kaneohe, Oahu, TMK: (1) 4-6-23:49 seaward.
Item D-10 After-the-Fact Grant of Perpetual, Non-Exclusive Easement to Hawaiian Telcom, Inc. for Telecommunication Purposes, Nuuanu, Honolulu, Oahu, TMK: 1-9-07:02
Unanimously approved as submitted (Johns, Pacheco)
Item E-1 Request for Special Use permit to Hold the 2008 International Haari Boat Festival on a Portion ofWailoa River State Recreation Area, Hilo, Hawaii
Item E-2 Briefing to the Board on the Status ofthe Diamond Head Crater Celebration at Diamond Head State Monument, Oahu
Unanimously approved as submitted (Johns, Edlao)
Item L-1 Certification ofElection and Appointment ofSoil and Water Conservation District Directors
Unanimously approved as submitted (Johns, Pacheco)
10 There being no further business, Interim Chairperson Smith adjourned the meeting at 10:25 a.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted,
Adaline Cummings Land Board Secretary
Approved for submittal:
ALLAN SMITH Interim Chairperson Department ofLand and Natural Resources
11 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY,.MAY 25, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 !l51 PUNCHBOWL STREET HONOLULU, HI 96813
Interim Chairperson Allan Smith called the meeting ofthe Board ofLand and Natural Resources to order at 9:12 a.m. The following were in attendance:
MEMBERS
Mr. Allan Smith Mr. Rob Pacheco Mr. Tim Johns Mr. Jerry Edlao Mr. Ron Agor Mr. Samuel Gon III
STAFF
Mr. Dan Quinn, SP Mr. Ed Underwood, DOBOR Ms. Charlene Unoki, LD Mr. Sam Lemmo, OCCL Mr. Wayne Haight, DAR Mr. Dan Polhemus, DAR Mr. Paul Conry, DOFAW
OTHERS
Mr. Colin Lau, Attorney General Friends ofHe'eia: Ms. Colette Machado, OHA Trustee Ms. Joan Malama Mr. Keola Nakanishi, Halau Ku Mana Mr. Gene Naipo Ms. Lea Hong, D-3 Ms. Carol McLean Mr. John Hussein, D-3 Ms. Diana Burg Mr. Larry McEleny, D-3 Mr. Bill Petty, D-3 Mr. Kamuela Lindsey, D-3 Mr. Keanu Young, D-3 Mr. Black McEleny, D-3 Mr. Al Itamoto, D-3 Mr. John Carroll, D-8 Mr. Ernie Lau, D-2 Mr. Peter Schall, J-2 Mr. Duane Fisher, J-2 Mr. Paul McElroy, J-2 Mr. Bernard Bays, K-I Ms. Katheryn Graham, K-I Mr. Paul Nelson, K-I Ms. Judith Nelson, K-I Mr. Mark Roy, K-2 Mr. George Antonelia, F-2 Mr. Shawn Corson, F-2 Ms. Marty Townsend, F-2 Mr. Mike Townsend, F-2 Mr. Don May, F-2 Ms. Stephanie Fried, F-I Mr. Dan Pollaski, F-2
{Note: language for deletion is [bracketed], new/added is underlined}
Item A-I Minutes ofMay 11, 2007
Unanimously approved as submitted (Johns, Gon) ltemF-5 Request for Final Approval to Amend Hawaii Administrative Rules Chapter 13-75, Rules Regulating the Possession and Use of Certain Fishing Gear to Include Rule Amendments for the Use ofLay Nets on the Island OfMolokai
Mr. Dan Polhemus, Administrator for Division ofAquatic Resources (DAR), reported amendments to the Lay Gill Net Rule that the Board passed last year, specifically regulating lay gill net use on the island ofMolokai. The original submittal was taken for public comment and as a result staffmade some revisions to the rule. One ofwhich was amendments to the use of gill nets on the island ofMolokai in response to community concerns. At that time the Attorney General (AG) representative constituted a substantive change to the rule which required this be taken out for additional public hearings. It was done. The public comment was in overwhelming support ofthese rule amendments which staffis bringing back to the Board.
Ms. Collette Machado, Trustee with Office ofHawaiian Affairs representing Molokai and Lanai, emphasized they had a meeting attended by fishermen and commercial fishermen twice in each district ofMolokai to gather input. Few opposed to end special requirements. The consensus is to malama this effort. Gathering offish is part ofa subsistence living. Molokai cannot depend on DOCARE to regulate resources. Rules would assure continued gathering rights.
Unanimously approved as submitted (Edlao, Johns)
Item E-l Request for Approval for a One-Year Extension of a Lease to the Friends of Heeia State Park, and Approval to Issue a Public Notice for a Request for Qualification/Request for Proposal (RFQ/RFP) for Long-Term Lease for Heeia State Park, Oahu
Mr. Dan Quinn, Administrator for State Parks, reported Friends ofHeeia has been operating at the site for over 25 years. It was renewed for a 3 year lease. Other groups have expressed interest in doing the same. The best resolution obtained would be through a Request for Qualification/Request for Proposal (RFQ/RFP) process to obtain proposals from other organizations. One proposal and a letter ofinterest have been submitted. Staffis asking for an extension till August 2008.
2 Member Johns inquired what is the new lease duration? Mr. Quinn replied 20-25 years. Ifthe proposal includes changes and improvements to the park then some organization period would be included. Member Johns asked the way the submittal is written it looks like it won't come back to the Board? Mr. Quinn apologized it will. He recommended adding a number 5 to take the issue back to the Board before the selection is made by the Chairperson.
Ms. Joan Malama, President ofFriends ofHeeia State Park, described how they brought children to the park and taught them native Hawaiian culture. They also have programs for seniors. Hula troops and weddings are held at the site.
Mr. Gene Naipo, Director ofFriends ofHeeia State Park, reported he has been with the park since 1987. He believes every child is family and it is his duty to teach them Hawaiian culture and would like to continue his work.
Ms. Carol McLean, Administrator for Friends ofHeeia State Park, described the park, it's history and it's 501(C) (3) status. She has been at the park for 25 years. They have allowed non-profits to use the area free ofcharge. The organization needs a long term lease to help the community. The I year extension has been a nightmare to manage. She asks the Land Board to set-up timelines/deadlines for the RFP/RFQ process. She suggested selecting a committee to determine use ofthe park.
Mr. Quinn replied he believes the process can be done in 12 months.
Ms. Diana Burg, Board Member ofthe Friends ofHeeia State Park, explained she is not happy with the treatment they've received by staffand with the entire process. She suggests the Board immediately extend the lease for 3 years. The process is wasting time.
Member Johns recommended we go through this public process to filter out legitimate bidders.
Unanimously approved as amended (Gon, Johns)
Item E-2 Request to Amend Prior Board Action ofSeptember 22, 2006, Agenda Item El, and to Approve the Issuance of a Lease for State Parks lands at Makiki Valley State Recreation Area, MaIOlO, Oahu to Mana Maoli for educational uses.
Mr. Dan Quinn ofState Parks reported this item is to amend the lease to Halau Ku Mana's sal (c) (3) entity to read Mana Maoli. The Attorney General believes public access should not be given to the shaded area on the map which are classrooms. Mana Maoli will sublease to Halau Ku Mana.
3 Mr. Keola Nakanishi, Director ofHalau Ku Mana Public Charter School, reported they will be sending in written testimony verbalized today. No changes to original lease. He agrees with Mr. Quinn's effort to restrict public access. His priority is to the keiki, but would like to continue involvement ofthe community.
Unanimously approved as submitted (Gon, Edlao)
Item D-3 Final Approval of the Acquisition ofPrivate Lands and Set Aside to Department ofLand and Natural Resources, Division of State Parks for State Park Reserve, Pupukea-Paumalu, Koolauloa, Oahu, Tax Map Keys: (1) 5-9-05:38 & 82 and (1) 5-9-06:01, 18 & portion 24
Member Tim Johns recused himself.
Ms. Charlene Unoki representing Land Division reported on Jan., 12,2007 the Land Board gave Land Division permission for acquisition of 1,103 acres. Staffbefore the Board to ask permission to acquire those lands. These acquired lands to be set aside with State Parks $2, 978,955 or fair market. Recently staffdiscovered amendments to this submittal regarding two parcels in Pupukea that wasn't taken out ofthe Governor's Proclamation. Staffwill amend recommendations 2 and 3. Also recommendation 4, 5 and 6.
Member Edlao inquired about the rock fall situation? Ms. Unoki replied staffwill have someone assess it. Mitigation will be expensive.
Ms. Lea Hong, Hawaiian Islands Program Director for Trust for Public Land, urged Board ofLand & Natural Resources (BLNR) to support staffs recommendation. They have been working on the project for over 5 years. Timeline is very long. Mr. John Hussein ofthe U.S. Army Environmental Command supports staff. Mr. Larry McElheny supports testimony ofprevious speakers. Mr. Bill Petty, nearby resident, explained this is an opportunity to preserve and protect the land. Mr. Kamuela Lindsey, a descendant of ChiefKuulei where Pupukea was part ofhis domain, recommends BLNR approve these actions. Mr. Keanu Young a Legislative Aid for Councilman Donovan DelaCruz submitted written testimony in support. Mr. Black McElheny was raised in the area and expressed his support. The community is blessed with obtaining funding for the acquisition and long term stewardship with the State and County. Mr. AI Itamoto, Executive Vice-president ofObayashi Hawaii Corporation, submitted written testimony in support ofacquisition.
Mr. Quinn explained area should be preserved. Rock fall issue is a concern. Staff believes it is an issue and feels an assessment needs to be done. Staffbelieves this acquisition needs to go through..
Unanimously approved as amended (Gon, Agor) Recommendations 2 and 3:
4 2. Authorize the issuance ofa management right-of-entry permit to State Parks covering TMKs (1) 5-9-05:38 & 82 and (1) 5-9-06:01, 18 & 24 por. under the terms and conditions cited above, which are by this reference incorporated herein and further subject to the following:
3. Approve and recommend to the Governor the issuance ofan executive order setting aside TMKs (1) 5-9-05:38 & 82 and (1) 5-9-06:01, 18 & 24 por. to the State Parks Division for a State Park Reserve under terms and conditions cited above, which are by this reference incorporated herein and subject further to the following:
And to include the following Recommendations:
4. Approve and recommend to the Governor the issuance ofan executive order withdrawing TMKs (1) 5-9-06:03 and 07 from the Pupukea Forest Reserve under terms and conditions cited above, which are by this reference incorporated herein and subject further to the following:
A. The standard terms and conditions ofthe most recent executive order form as may be amended from time to time;
B. Authorize DOFAW to conduct a public hearing to withdraw approximately 27.98 acres ofland from the Pupukea Forest Reserve, under provisions ofHRS §183-11, Government Land for Forest Reserves and §183-12, Notice ofHearing.
C. Authorize the Chairperson to set the date and time for a public hearing, and appoint a Hearing Master.
D. Disapproval by the Legislature by two-thirds vote ofeither the House of Representatives or the Senate or by a majority vote by both in any regular or special session next following the date ofthe withdrawal;
E. Review and approval by the Department ofthe Attorney General; and
F. Such other terms and conditions as may be prescribed by the Chairperson to best serve the interest ofthe State.
5. Authorize the issuance ofa management right-of-entry permit to State Parks covering TMKs (1) 5-9-06:03 and 07 under the terms and conditions cited above, which are by this reference incorporated herein and further subject to the following:
A. The standard terms and conditions ofthe most current right-of-entry permit form, as may be amended from time to time;
5 B. Such other terms and conditions as may be prescribed by the Chairperson to best serve the interest ofthe State
6. Approve ofand recommend to the Governor the issuance ofan executive order setting aside TMKs (1) 5-9-06:03 and 07.to the State Parks Division for a State Park Reserve under terms and conditions cited above, which are by this reference incorporated herein and subject further to the following:
A. The standard terms and conditions ofthe most current executive order form, as may be amended from time to time;
B. Disapproval by the Legislature by two-thirds vote ofeither the House ofRepresentatives or the Senate or by a majority vote by both in any regular or special session next following the date ofthe setting aside;
C. Review and approval by the Department ofthe Attorney General; and
D. Such other terms and conditions as may be prescribed by the Chairperson to best serve the interests ofthe State.
Item D-4 Request for Clarification of Character of Use Provision, General Lease No. S-3856, Hemaloto Alatini and Leona Alatini, Waimanalo, ' Koolaupoko, Oahu, TMK: (1) 4-1-024:023
Ms. Charlene Unoki ofLand Division reported stafffeels turf grass is agriculture use and wanted to check with the Board ifthe owners can do this.
Mr. John Carroll expressed his support with staff recommendation.
Unanimously approved as submitted (Johns, Edlao)
Item D-2 Acquisition ofPrivate Lands and Set Aside to the Hawaii State Judiciary for Development of the Kapolei Judiciary Complex in the City ofKapolei, Island of Oahu, TMK: (1) 9-1-16: Por.1
Ms. Unoki reported staffwants to acquire lands. 4.3 acres (will recommend 10.5 acres at no cost to the State) for the judiciary complex.
Mr. Ernie Lau ofDAGS Public Works explained the process ofexecuting a contract start date is 7/1/2007 and would appreciate the Board's support on this project.
6 Unanimously approved as submitted (Gon, Johns)
Item J-l Issuance of Revocable permit to Honolulu Transpac, Ltd. for Support Areas for Support Areas for its Regular Biannual California to Hawaii Yacht Race finishing at the Ala Wai Small Boat Harbor, Tax Map Key (1)-2-3-037: portion of 12.
Mr. Ed Underwood, Administrator for Division ofBoating and Ocean Recreation (DOBOR), reported this event will be modeled by the same RP issued 2 years ago. It runs for about 2 weeks, 7/20/2007 to 8/2/2007. Staff is asking for the Chairperson to be able to amend the dates.
Unanimously approved as submitted (Johns, Pacheco)
Item J-2 Rescind Board action ofJanuary 27, 2006 approving a Joint Use Agreement between the State and Hilton Hawaiian Village LLC. Approve a Revised Joint Use Agreement for Dewey Lane Improvements between the State, Hilton Hawaiian Village LLC and Owners ofIlikai Apartment Building, Inc., Waikiki, Oahu, Tax Map Key Numbers: (1) 2-6-010-007 (por.): (1) 2-6-009-002; (1) 2-6-009 010; (1) 2-6-10:Roadway
Mr. Ed Underwood ofDOBOR reported a briefhistory ofthe issue. The Ilikai and an owner ofone apartment requested a contested case hearing because part ofthe easement involved the Ilikai property. The Ilikai and Hilton came to an agreement. The State is in a new agreement with Hilton where Hilton will maintain and make all improvements at their cost.
Member Johns clarified the contested case was brought by Hawaii Association ofHotel Apartment Owners and one individual.
Mr. Kamuela Lindsey a resident ofthe Ala Wai Boat Harbor explained he filed a letter of opposition to any action by the Board toward Hilton. Hilton came to community board meetings and lied to them oftheir intentions. Hilton employees use the harbor parking. They have pumped sludge into the harbor and there is an on-going investigation on this. The community believes their construction activities have violated State and Federal water quality laws. He wants the Land Board to wait until the Federal EPA and the State Department ofHealth (DOH) conduct and finish their investigations. Ifviolations are found he wants the Land Board to take a closer look at Hilton's plans. He wants the Land Board to defer the matter until completion ofthe investigation.
Mr. Peter Schall, a former Senior Vice-President for Hilton Hotels Corporation in Hawaii and now a consultant to Hilton, explained the Lagoon is owned by the State. Hilton is undertaking an $18 million rejuvenation ofthe Lagoon and has obtained all the proper
7 permits including the 401 clear water act. Inadvertently, the contractor pumped down too far which caused the spill. Hilton has placed the contractor on notice because such oversights are unacceptable to Hilton. The contractor has taken all the necessary precautions that had occurred. He confirmed the investigation is by DOH Clean Water Branch. He clarified that Hilton does not encourage employees to park at the end ofthe Lagoon, but it is a public lot and as tax payers it is their prerogative. Hilton does provide parking for their employees.
Mr. Duane Fisher, an Attorney for Hilton, responded that they do not see a connection between the concerns raised and the joint use agreement. The only change is the agreement with Ilikai which they have approved.
Member.Pacheco asked there is missing testimony about the right turn lane. Folks want a left turn from Dewey Lane. Mr. Paul McElroy, Project Manager and oversees the construction activities, understands the traffic issues. Mr. Schall explained Hilton has a Traffic Management Plan where it will not divert to the harbor area.
Unanimously approved as submitted (Johns, Edlao)
Item K-I Conservation District Enforcement File OA-07-31 Regarding Alleged Unauthorized RepairlReconstruction of a Boulder Revetment Within the Conservation District Located at Mokuleia, Island of Oahu, TMK (I) 6-8-003:018, by Michael Daily
Mr. Sam Lemmo, Administrator for Office ofConservation and Coastal Lands (OCCL), reported (some handouts, addendums were passed out) this was deferred from the last Board meeting and the owners were to meet with the community. An unauthorized shoreline structure was recently improved where the land owner was asked to stop and did not. It has been the policy ofthe Board to discourage these types ofstructures. He takes issue with some things said in Mr. Bays report. He agrees ifwall is removed house is in jeopardy. He is reaffirming staffs previous recommendation offines, cost and removal ofstructure in 60 days.
Mr. Bernard Bays representing the owner appreciates the 30 day deferral. Exhibit 5 shows damage done to the home. A rock revetment was put in 1965 and he doesn't know ifit complied with law. The recent revetment was held up until 2005. In March 2005 DLNR conducted enforcement actions due to rocks falling offthe wall on to the shoreline which is in the conservation district. Wall failed this past winter thus resulting in damages to the home (exhibit 5). Coastal engineer does not believe wall is a problem. If wall was not constructed home would be destroyed. The owner would like to build a wall behind the current revetment even though it is extremely costly. They would like a permit for this new wall, but until the wall is built the owners want to leave in the current wall. The owners met with the community members and would like to keep the neighbors happy therefore they'll spend the money to construct a new wall. Once the new wall is constructed they'll remove the un-permitted wall. Owner wants item
8 deferred to conduct above action and fines suspended. The target completion date is 180 days.
Ms. Katheryn Graham from the Mokuleia Community Board asked what is the legality of the sea wall? She feels the Daly's have not fulfilled their part ofthe deal with the structural engineer.
Mr. Paul Nelson, Chairman of Sea Shore Access Community, expressed his concern for public safety. He feels the public cannot pass along the wall. Unsure with how things stand.
Ms. Judith Nelson explained ifthe new wall is built there is an obligation to provide public access. Member Johns noted that is up to the County to determine.
Mr. Bays replied their goal is to increase the public access area to the beach. The Daly's are allowing access along the back ofthe house to reach Polo Field. He requested a Contested Case Hearing.
Member Johns noted you have 10 days to file.
Unanimously approved as amended (Johns, Pacheco) Change #4 from 60 days to 180 days.
Item K-2 Conservation District Use Application MA-3392 by Applicant Olowalu Elua Associates to Hold Private Commercial and Non-profit Events such as Weddings, Fundraisers, and Gatherings at the former Pioneer Mill Plantation Manager's House and Garden located in the Olowalu Ahupua'a, Lahaina District, Maui, TMK (2) 4-8-03:5
Mr. Sam Lemmo ofOCCL reported applicants are requesting a change ofuse from non conforming to events, weddings, fundraisers, etc. Some concern regarding commercialization ofa conservation district area. Stafffeels it's reasonable with some caveats to the conditions.
Mr. Mark Roy, consultant assisting the applicant, verified at public hearing there was no opposition. In regards to Condition #12, Applicant will send a letter ifevent is larger than 200 people in concurrence with recommendation.
Member Johns asked Mr. Lemmo the House Rules will not be amended after the approval? He recommended he include a condition to state "cannot change House Rules." Mr. Lemmo replied all modifications to the House Rules shall be approved by OCCL and not the Land Board.
Unanimously approved as amended (Edlao, Agor)
9 Item F-2 Request for Authorization aud Approval to Issue a Papahanaumokuakea Marine National Monument Research Permit to Dr. George Antonelis, National Oceanic and Atmospheric Administration (NOAA), Pacific Islands Fisheries Science Center (PIFSC) for Access to State Waters to Conduct Shark Control Activities.
Mr. Dan Polhemus ofDAR reported there is a large mortality ofpre-weaned juvenile monk seal pumps especially in French Frigate Shoals. They will continue to decline at this rate and could go into extinction.
Mr. Wayne Haight, State Permit Coordinator for the North West Hawaiian Islands and DAR scientist, had concern noted in submittal which he described. If one monk seal is killed it out weighs the end efforts. They don't oppose the taking ofthe sharks, but the method used.
Mr. George Antonelis explained only area pre-weaned seals are eaten by Galapagos sharks. Eight pups weaned since the last time before the Board. Percentage ofpups killed is increasing. Limit catch by the size ofthe hook. Method has not been used before to target specific species. He spoke on various deterrents for the shark and hopes it could be used next year. Feels it is urgent to mitigate this problem.
Mr. Dan Pollaski ofthe Fish & Wildlife Service reported has been involved in project since 2002 and believes this project is needed. Pups born at Trig Island all show signs of Galapagos shark encountered. In favor ofallowing Mr. Antonelis to remove 5 sharks then evaluate. Feels mitigation efforts will help by catch. Staffis split down the middle on this issue. Last year stafftestified in favor.
Mr. Shawn Corson, Supervisor for the Monument Management has reviewed permit and discussed concerns and are in favor ofissuing a permit.
Ms. Marty Townsend representing KAHEA opposes permit. Concerned with methodology. Not enough research done on alternative methods. Wants State to control commercial fishing in monument as the fish caught is in direct competition with food for the monk seal.
Mr. Mike Townsend reported bottom set gear is a highly sought method for catching sharks. It is a relatively clean method. Has consulted and addressed native Hawaiian community's concern.
Mr. Don May explained he has not heard about protecting monk seals by killing the sharks. Staffshould develop technique to protecting seals particularly in shallow waters. He urged BLNR to defer action.
10 Ms. Townsend explained what the difference is between State and Federal rules. No evidence to show there are many sharks attacking seals or ifit is several sharks that are attacking seals.
Approved staff recommendation to disapprove. (Edlao, Gon) Yes - Edlao, Gon No - Johns, Pacheco, Agor, Smith
Member Edlao expressed he is not confident technique stated will catch the correct predator. Member Gon agreed monk seals are in jeopardy, but not in agreement with technique suggested. Need to look at alternative techniques. Member Johns explained method used is not precise, but it is intended to target the predator. Prefers staffuse a controlled method and alternative methods.
Mr. Pohelmus listed the special conditions.
Unanimously approved as amended (Johns, Agor) Subject to conditions to 2, 4-9 with as amended by Dan Polhemus
Yes - Gon, Agor, Smith, Johns, Pacheco No - Edlao
Member Edlao departed 12:25 pm.
Item F-l Request Approval on Revisions to the Joint Permit Form, and Approval ofSpecial Terms and Conditions, for Permitted Activities within the Northwest Hawaiian Islands - Papahanaumokuakea Marine National Monument
Mr. Dan Polhemus reported members received a Joint Permit Form Template which replaces the previous template that was approved two meetings ago. It has been under consultation with the Attorney General and Federal lawyers. Also the Board requested staffdeveloped a set ofspecial conditions consistent with the NOAA Management Permit that was brought before the Board in January 2007. And, to have it properly imbedded by our Attorney General and agreement by the Federal co-managers.
Ms. Marty Townsend ofKAHEA concerned with submittal and would like it deferred. Joint permit fails to uphold Refuge Rules. Wants BLNR to inform staffof45 day comment pd feels submittal is inconsistent with BLNR April 27 meeting. Bioprospecting was banned, but new rules allow it (Item 21).
Ms. Stephanie Fried ofEnvironmental Alliance explained language in NOAA permit document was altered
(Member Gon departed at 12:48 pm.)
II Mr.Colin Lau ofthe Attorney General's office reported bio-prospecting has not been addressed by State law. The co-trustees agreed that bio-prospecting should not be given any commercial application.
BREAK 12:57 -1:06 pm.
Ms. Stephanie Fried reviewed conditions she stated BLNR previously approved that are in contrast to conditions submitted and omitted by staff.
Mr. Wayne Haight expressed wanting to move ahead with the approval.
Unanimously approved as amended and deferred (Johns, Pacheco) Approved recommendation #1 and defer #2 and #3 to next meeting.
Item F-3 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Special Ocean Use Permit to Mark Brownlow, British Broadcasting Corporation (BBC) for Access to State Waters to Conduct Documentary Filming Activities.
Mr. Dan Polhemus ofDAR reported BBC wished to film at French Frigate Shoals and staffapproves.
Mr. Dan Pollaski ofFish and Wildlife Service met with BBC and emphasized bringing place to the people vs people to the place. They think it will be educational to the people ofthe world.
Member Johns asked to make clear the area is not open to the general public. Mr. Polaski agreed, yes they can. The BBC will be chaperoned by French Frigate Shoals staff.
Ms. Marty Townsend ofKAHEA emphasized the area is not open to the general public and wants BLNR to make it a condition on the permit. Ms. Stephanie Fried echoed Ms. Townsend's comment.
Unanimously approved as amended (Johns, Pacheco) Amended with additional condition to make it clear to encourage area is closed.
Item F-4 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Native Hawaiian Practices Permit to Dr. Pualani Kanaka'ole Kanahele for Access to State Waters to Conduct Native Hawaiian Cultural Activities.
Unanimously approved as submitted (Johns, Agor)
12 Item C-l Request for Approval to Enter into a Contract with Albert H. Agliam dba Remote Fencing Outfitters to Install Ungulate-Proof Fencing within Pahole Natural Area Reserve, Oahu
Item C-2 Request for Approval of the Grant and Project Proposal Selection Process for the Fiscal Year (FY) 2007 Legacy Land Conservation Program Application Review
Unanimously approved as submitted (Johns, Agor) ltemD-l Mutual Cancellation of General Lease No. S-4195 and Issuance of Direct Lease to Lokahi Pacific for Affordable Rental Housing Serving Low-Income Individuals Purposes, Kamaole, Maui, TMK: (2) 3-9 5:46.
Item D-5 Quitclaim ofState's Interests, ifAny, in Bannister Place to the City and County ofHonolulu, Kalihi, Oahu, TMK: (1) 1-2-14:
Unanimously approved as submitted (Johns, Pacheco)
Item L-l Approval for Award of Construction Contract - Job No. 48-HW-E, Honokaa Well Development, Honokaa, Hawaii
Item L-2 Certification ofElection and Appointment for Kona Soil and Water Conservation District Director
Unanimously approved as submitted (Pacheco, Johns)
There being no further business, Interim Chairperson Smith adjourned the meeting at 1:32 p.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted, ~ Adaline Cummings Land Board Secretary
13 Approved for submittal:
MITH Interim hairperson Department ofLand and Natur
14 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, JUNE 8, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Interim Chairperson Allan Smith called the meeting ofthe Board ofLand and Natural Resources to order at 9:05 a.m. The following were in attendance:
MEMBERS
Mr. Allan Smith Mr. Rob Pacheco Ms. Taryn Schuman Mr. Jerry Edlao Mr. Ron Agor Mr. Samuel Gon III
STAFF
Ms. Charlene Unoki, LD Mr. Paul Conry, DOFAW Mr. Dan Quinn, SP Mr. Dan Polhemus, DAR Mr. Wayne Haight, DAR Mr. Duane Rogers, DAR Mr. Jeff Walters, DAR
OTHERS
Mr. Colin Lau, A.G. 's Office Mr. Dale Bonar, C-3 Senator Russell Kokubun, C-3 Senator Colleen Hanabusa, C-3 Mr. Alfredo Lee, C-3 Mr. Harry Yada, C-3 Ms. Stephanie Wayland, C-3 Mr. Dean Okimoto, C-3 Mr. Larry Yamamoto, C-3 Ms. Jill Olson, C-3 Ms. Frieda Fujita, C-3 Mr. Duane Okamoto, C-3 Ms. Sandra Kunimoto, C-3 Mr. Ivan Lui-Kwan, C-3 Mr. Joseph Phillips, D-4 Ms. Marti Townsend, F-2 Ms. Malia Nobriga, F-2 Mr. Wayne Kahooleipanoki, F-2 Ms. Heidi Guth, OHA Mr. Curt Trafega, Mr. Paul Jokiel, F-4 Mr. Robert Toonen, F-5 Mr. Carl Meyer, F-6 Mr. Matthew Craig, F-7 Mr. Brian Bowen, F-8 Ms. Keeley Belva, F-9 Mr. Shawn Corson, F-3 Mr. Michael Tosato, NOAA Mr. William Aida, F-3 Mr. Dennis Niles, F-I I Mr. Don Pollaski, F-3 Mr. Carl Jellings, F-I I Mr. JeffWalters, F-l
{Note: language for deletion is [bracketed], new/added is underlined}
Item A-I Minutes ofMay 25, 2007
Recused: Member Agor and Schuman. Member Gon missed the last 20 minutes. Attorney General's representative, Pam, stated he has to recuse.
Deferred due to lack of quorum (Gon, Pacheco)
Item D-2 Grant to Four (4) Perpetual, Non-Exclusive Easements; Issuance of Management and Construction Right-of-Entry to Kaloko Heights Associates for Access and Utility Purposes Over the Road To The Sea Trail at Kaloko and Kohanaiki, North Kona, Hawaii, Tax Map Key: 3rd/ 7-3-09: portions of32,57,58,59,61 and 62
Member Schuman recused herself.
Ms. Charlene Unoki representing Land Division (LD) reported Kaloko Heights Associates had worked with the community to look realigning a portion ofthe road to the sea. As a result there are community agreements, members have a copy ofa letter dated November 17, 2006 to Mr. Chris Yuen. Staffwould like to grant an easement with construction right ofentry and would like to add a condition to the easement document where the 11/17/06 letter is used for the grantee to comply with. Member Pacheco asked conditions stated in the letter will become the conditions? Ms. Unoki replied yes.
Unanimously approved as amended (Pacheco, Gon) Add letter dated November 17,2006 from Mr. Paul Kay, Vice President and Sr. Development Manager ofStanford Carr Development, LLC to Mr. Christopher Yuen, Planning Director for the County ofHawaii as a condition in the new easement document.
Item C-3 Review ofthe Legacy Land Conservation Commission Recommendations and Approval of Projects for Funding under the Fiscal Year 2007 Legacy Land Conservation Program (Land Conservation Fund)
Mr. Paul Comy, Administrator for Division ofForestry & Wildlife (DOFAW), reported this is the first fiscal year for the Department to implement this program. It is a conservation land acquisition program with a rough budget of7.4 million dollars. This program established by the Legislature in 2006 and this year seeded the Commission. The Commission's duty is to review applications submitted by conservation
2 organizations and government agencies for conservation land acquisitions that would value the State. Started October 2006 with solicitations ofproposal, about eleven projects were put before the Commission during the month ofMay. The Commission made a list ofpriority projects to fund. Also as part ofthe process they consulted the Legislature, the Department met with the Speaker ofthe House, Senate President and land chairs ofthe legislature. They provided their recommendations. Staffis asking to approve those recommendations. The Commission ranked the proposals and he explained those projects. Funding from the Agribusiness Development Corporation (ADC) for 1.1 million to acquire 108 acre agricultural easement at Kunia, Oahu for Hawaii Agricultural Research Corporation (HARC). The Commission had concerns with the project supporting genetically modified crops and research geared toward large industrial agricultural uses therefore recommended against funding this project. The Legislature agreed on the first five priorities, but did not concur with the recommendation ofnot funding the ADC request on the agricultural easement in Kunia. They recognize the enormous pressure on agricultural lands. The 1.1 million is specifically earmarked for funding these agricultural conservation easements under the Farm & Ranch Land Protection Program. Staffrecommends the Board fund this project.
Member Pacheco recused himself.
Mr. Dale Banard, Chair ofthe Legacy Land Commission reported he is here to explain the Commission's reasoning. Member Gon asked for clarification on the agricultural reversal, was the main objection potential development ofpotential GMO? Mr. Banard replied it was one ofthem. Members ofthe Commission was concerned with GMOs particularly taro. Three ofthe commissioners were concerned with the way the lands were laid out, presented with development right across the street (Wal-Mart) and were concerned HARC was going to be an industrial agricultural research center. The Commission was not provided with information on what HARC does and based on that is what the Commission came up with. Concerned with toxic levels ofchemicals in the ground water and felt other projects were better suited. Much ofthe questions the Commission had did not have adequate answers therefore they chose to go against this project.
Member Edlao asked ifone ofthe projects should fail would there be adequate funding to cover? Mr. Conry replied that is the fall back approach. Ifwe go forward with one ofthe grants a participant can't commit and project fell through and there was enough money then another project would be considered and would shift over. Member Edlao asked if project five does not go through would the funding be enough to cover project six? Mr. Conry replied they would have Federal Grants make up the difference, but in such a short time it would be difficult. What would happen is staffwould encumber the funds and take a year to make up the difference.
Senator Russell Kokubun represents Big Island District 2 which covers Puna, Ka'u and part ofHilo. He was asked by the Senate President to be a member to meet with the Legacy Lands Commission and DLNR staffto provide input to the recommendations.
3 The Legislature concur the amended recommendation from staffparticularly the 1.1 million would be used for the Kunia lands. When they put this legislation together it was not only for conservation lands, but they felt agriculture lands are very important to Hawaii. Not only did the Legislature appropriate the 1.1 million specifically for this purpose there was support from HARC and the Hawaii Farm Bureau Federation who want to see this accomplished. They request the Board consider this recommendation. After meeting with the Commission Chairman and DLNR staffit appears some ofthe policy directions from the Legislature were not clear to the Legacy Lands Commission. It may have been their fault for not being there. But this is their opportunity and wishes the Board to consider it.
Senator Colleen Hanabusa clarified Member Gon's inquiry. She represents Leeward Coast. Kunia lands on the left should be preserved for agriculture. The lands on the right are development. This Legislature has equal use ofmoney for agriculture. They are still struggling with the GMO issue. The Senate passed the bill to prohibit GMO oftaro alone with much dispute. The Legislature wanted to make clear with how the statute is now written with the importance ofpreserving agriculture. There is very little agriculture lands left on Oahu. This is why the State should hold title to this land because ifthe State doesn't we do not know how agriculture will be preserved. Agriculture as a use is critical for the State. They are here to ask the Board to support the recommendations ofthe Legacy Lands Commission and reverse on the issue ofthe 1.1 million which has Federal matching funds. Ifit does not approve the State loses those funds. We should not pass up this opportunity.
Mr. Alfredo Lee, Executive Director ofAgribusiness Development Corporation (ADC), reported their mission is to preserve and protect agriculture land and infrastructure. This is a very appropriate and important project for them. They want to supply water to these lands and believe Kunia is the best lands. The economic value is a considerable amount which is over 50% ofOahu's total production. Passed out an outline and went over the map. They have the Federal funds and request to approve project.
Mr. Harry Yada, Property Manager, representing County ofHawaii reported a letter was previously submitted on behalfofMayor Harry Kim in support ofthe recommendations and asks the Board's support. Look forward to having State and County control to preserve their coastline for future generations.
Ms. Stephanie Wayland, President and Research Director for the Waianae Cultural Research Park reported on testimony submitted. These are the best agricultural lands on Oahu ifnot the State and closest to the market. This area has all the infrastructure and developers would want this land. The owner must keep it in agriculture, manage it, and report to the Federal agencies every year. She wants to avoid creating a gentlemen's estate. Prevent development of ago land by putting it away for perpetuity.
Mr. Dean Okimoto, President ofHawaii Farm Bureau Federation and Nalo Farms owner. He is looking for more land to create organic farming. They support the amended version ofthe Legacy Land Commission's recommendations and they support HARC's request.
4 As farmers Kunia is key for the sustainability ofag on Oahu. A good example on how it can be done. His family owns 7 acres in Waimanalo and they are looking to put in ag easements there also. HARC is very crucial to sustainability of ago They're research not only helps the big land owners, but has helped him and other farmers. They do research across the board on everything. They are vital to the industry.
Mr. Larry Yamamoto, Head ofthe Natural Resources Conservation Service, reported they're the Federal agency which the Farm and Ranch Land Program is under. It is their goal to protect both conservation and agriculture lands which is a valuable program for the State. Hawaii has the most pressure to develop agriculture lands. This program was underutilized because ofpeople's hesitancy to commit agricultural lands in perpetuity. They feel it is in the best interest ofthe State.
Ms. Jill Olson and Ms.Elfrieda Fujita representing the Kona Historical Society. Ms. Olson Executive Director reported they are here in support ofthe Kona Coffee Living History Museum, Uchida Farm.
Mr. Duane Okamoto, Deputy Director for Department ofAgriculture on behalfofSandra Kunimoto. Reported the Dept. is in strong support for funding ofADC to acquire this easement. All parties concluded it is worth their support and HARC is beneficial to the State. HARC will stabilize agriculture in the area. Because ofthe ongoing pressure to agriculture lands he urges the Board's support.
Mr. Ivan Lui-Kwan, one ofthe owners ofone ofthe properties recommended by the Legacy Land Commission. He supports the recommendation. This is an opportunity to protect these lands.
Unanimously approved as amended (Edlao, Schuman) Recommendations 2, 3, and 4 should be stricken and replaced by the following:
2) Approve the Commission's recommendation to award funds to acquire the following property and encumber funds, under the FY07 LLCP ceiling, from the LCF for the following project:
Project 1. DOFAW, DLNR, at $430,250, for the acquisition ofa fee simple interest in the 1,335.98-acre Carlsmith property near Hilo, on the Big Island of Hawai'i; subject to the normal process and procedures for the acquisition oflands by the State.
3) Approve as a contingency the Commission's recommendation to award funds to acquire the following property and encumber funds, under the FY07 LLCP ceiling, from the LCF for the following project:
5 Project 6. SP, DLNR, as an alternate, for the acquisition ofa fee simple interest in 17 acres near Lapakahi State Historical Park, North Kohala, on the Big Island ofHawai'i; subject to the normal process and procedures for the acquisition oflands by the State.
4) On behalfofthe Agribusiness Development Corporation (ADC), approve the Division's recommendation to award funds to acquire the following property and encumber funds, under the FY07 LLCP ceiling, from the LCF for the following project:
Project 7. Agribusiness Development Corporation (ADC), for $1.1 million, to acquire a 108.217-acre agricultural easement across land in Kunia, on the Island ofOahu, from the Hawai'i Agricultural Research Center (HARC); subject to the normal process and procedures for the acquisition oflands by the State.
Item C-2 Recommendation to Establish Visiting hours of 5:30 am to 7:30 pm for 'Ahihi-Kina'u Natural Area Reserve, Maui
Mr. Paul Conry, Administrator for Division ofForestry & Wildlife, reported the intent is to provide enforcement flexibility, to allow the public set hours, and flexibility to close the reserve at night when there were some enforcement issues. Imbedded through NARS Commission and supports the restriction. Staffurges approval.
Member Gon asked was there much public feedback during the'Ahihi-Kina'u Advisory Council meetings? Mr. Dale Banard, Chair ofthe Advisory Commission, replied yes there was at many meetings. The overwhelming response from the public was an understanding for a need to control it. This Natural Area Reserve is heavily visited by tourists and the public support was to overwhelmingly control this resource.
Unanimously approved as submitted (Edlao, Gon)
Item D-4 Sale ofReclaimed Lands to Joseph J. Phillips Jr., as Trustee of the Joseph J. Phillips Jr, Living Trust dated October 5,1987, and Stephanie J, Phillips, as Trustee of the Stephanie J, Phillips Living Trust dated October 5,1987, and Cancellation of Grant ofNon Exclusive Easement S-5715 for Seawall Purposes, Kaalaea, (Kaneohe Bay), Koolaupoko, Oahu, TMK (1) 4-7-024:029 seaward.
Ms. Charlene Unoki representing Land Division reported in 2001 the Land Board approved issuing an easement and now Phillips has come forward to buy the reclaimed land area. Staffrecommends cancelling the easement and sell the reclaimed land to the Phillips.
6 Member Gon asked is this a coastal piece? Are the Phillips appraised ofall the issues that come with coastal lands and requirements? Mr. Joseph Phillips replied the 156 sq. ft. encroachment occurred when they obtained lease approval oftheir pier which they received under the amnesty program in 2004. When they did the shoreline survey that was when they found the encroachment. He received this property from his father and wants his children not to contend with this encroachment. He didn't know about the liability policy, but has it now. The rates are too expensive. He can't build there. Ms. Unoki stated he is a good tenant.
Unanimously approved as submitted (Schuman, Gon) ltemD-5 Grant ofTerm, Non-Exclusive Easement to Richard H. and Corintha B. Pohle for Boat Ramp Purposes, Kaneohe, Koolaupoko, Oahu, Tax Map Key: (1) 4-4-21:23 seaward.
Ms. Charlene Unoki ofLand Division reported no changes to submittal.
Unanimously approved as submitted (Schuman, Pacheco)
Item D-l Consent to Assign General Lease No. S-5397, Richard Corr, Assignor, to Corrine Murata and Wanda Corr, Assignees, Hanapepe, Waimea, Kauai, Tax Map Key: (4) 1-9-12:28.
Item D-3 Consent to Assign General Lease No. S-3155, Jesse C. Wolf, Assignor, to Pacific Island Investments LLC, Assignee, Waiakea, South Hilo, Hawaii, Tax Map Key: 3rd/2-1-07:21.
Ms. Charlene Unoki ofLand Division reported no changes and tenants are in good standing.
Unanimously approved as submitted (Pacheco, Edlao)
Item M-l Acquisition of Private Lands and Set Aside to Department of Transportation, Harbors Division, for Maritime Purposes, Kahului, Wailuku, Island ofMaui, Tax Map Key: 2nd Division, 3-7-10: 1 and 36.
Ms. Charlene Unoki ofLand Division reported Department ofTransportation (DOT) is looking for additional lands for harbor. Ifstaffproceeds with acquisition they request recommending to the Governor transfer ofthese lands to DOT - Harbors Division. Acquisition cost is $9,820,000.
Unanimously approved as submitted (Edlao, Pacheco)
7 ltemM-2 Consent to Assignment ofState Lease No. DOT-A-06-0001 Offshore Flight School, Inc. to Resort Air, LLC Honolulu International Airport
Ms. Charlene Unoki ofLand Division reported SNE appears in good standing.
Unanimously approved as submitted (Schuman, Gon)
Item C-I Acceptance ofHearing Officer's Report on a Public Hearing for Two Proposed Additions to the Forest Reserve System on O'ahu, and Approval and Recommendation to Governor for the issuance oftwo Executive Ordersj Addition of approximately 3,716 acres to Honolulu Watershed Forest Reserve, Honolulu District, O'ahuj and Addition of approximately 0.298 acres to Mokule'ia Forest Reserve, Mokule'ia District, O'ahu.
Mr. Paul Conry ofDOFAW reported additions to a portion ofMoanalua and Mokule'ia. No changes to submittal and request approval.
Unanimously approved as submitted (Schuman, Gon)
Item E-I Request for a Six-Month Holdover of Concession Lease No. SP-0039 for the Kokee Concession, Kokee State Park, Kauai
Mr. Dan Quinn, Administrator for State Parks, reported the Board entertained this about six months ago. Initial discussion was for I year extension, but was approved a six month extension to carry it through this calendar year. Staffhopes to have a bigger lease out to bid. This was to go out the same time as a potential overall cabin lease which did not pass and likely will not. Staff is in the process ofwrapping up the master plan which will help the next bidder plan, change or alter facilities.
Unanimously approved as submitted (Agor, Gon)
Item E-2 Request for Approval to Execute a Contract with the Hawaii Tourism Authority for Improvements to Akaka Falls State Park, Hawaii and Resource Protection Implementation for Haena State Park, Kauai, and Kekaha Kai State Park, Hawaii
Mr. Dan Quinn ofState Parks reported the Akaka Falls improvement is a continuation of repair to hand rails, $800,000. $200,000 goes to a ranger program which is in place at Haena, Kauai and Kekaha Kai on Big Island. It's to continue this program nntil staff can establish positions approved by the Legislature. Any leftover funds will be used to supplement the State wide ranger program where 12 positions have been approved.
Unanimously approved as submitted (Pacheco, Edlao)
8 Item E-3 Request to Approve the Master Plan and Final EIS Waianapanapa State Park in the District of Hana, Maui
Mr. Dan Quinn representing State Parks reported an executive summary was passed out and went over the map. Plan has gone through EVC process and has been accepted by the Governor. Request Board to accept plan.
Unanimously approved as submitted (Edlao, Gon) lO:20am: Adjourned for Executive Session (Gon, Pacheco) lO:55am: Reconvened
Item F-2 Request Approval on Revisions to the Joint Permit Form, and Approval of Special Terms and Conditions, for Permitted Activities within the Northwest Hawaiian Islands - Papahanaumokuakea Marine National Monnment
Mr. Dan Polhemus representing Division ofAquatic Resources (DAR) reported this was item was deferred from the May 25, 2007 Land Board Meeting. There are three parts which the Board took action on the first part and deferred the second and third parts. At the April 27, 2007 the Board approved and adopted a Joint Permit Form for permitted activities within the Northwest Hawaiian Islands. This form was developed collaboratively with DAR working in concert with the State ofHawaii's Co-Trustees to the Papahanaumokuakea Marine National Monwnent. The Joint Permit Form Template replaces the previous State Permit Form Template issued for permitted activities within the Northwest Hawaiian Islands State Marine Refuge. While the Board approved the new Joint Permit Form it directed the DAR to review all permit conditions that had been applied to the NOAA (National Oceanic Atmospheric Administration) application for a permit for a management permit approved at the January 26, 2007 Land Board Meeting. The Board requested DAR ensure that all these permit conditions were consistent with the Joint Permit Form General and Special Conditions. At its May 25, 2007 Land Board Meeting the Board approved the revised Monument Joint Permit Form.
The Joint Permit Form Terms and Conditions have undergone intense scrutiny and an extensive process ofreview over the past five months in consultation with staffand council from the White House Council ofEnvironmental Quality, theU.S. Departments ofCommerce, Interior and Justice, the Office ofHawaiian Affairs, the Department ofthe Attorney General for the State ofHawaii, and representatives from the Co-Trustee Agencies locally. A comparison ofspecific Terms and Conditions contained in prior State Northwestern Hawaiian Islands permits was undertaken to ensure all these Terms and Conditions were incorporated into the General Conditions contained in the Joint Permit Form or were revised with Special Conditions. A composition matrix ofthe former State Conditions and the Joint Permit Conditions was provided to the Board at the April 27, 2007 Land Board Meeting. Many similar concerns addressed in prior State
9 Permits, such as documenting activities while in the Monument, curtailing commercial exploitation ofresources were revised and incorporated into the joint permit conditions. Upon further review ofthese former State conditions, certain changes were made to the previously approved joint permit form (Attachment I). The Board took action in the previous Land Board Meeting. In addition, a revised set ofspecial conditions, which were based on the former State permit conditions has been further vetted and reviewed by the Office ofthe Attorney General and other agencies and are contained as Attachment 2. He requested to amend Clause 3 in Attachment 2 to read: To prevent introduction of disease or the unintended transport oflive organisms the permittee must comply with the disease and transport protocol as previously submitted. It was attached to the 5/25/2007 submittal, but was not attached to this submittal. He had copies available. The Special Terms and Conditions are consistent with former conditions applied to previous State permits. Staffhas shown it to the Office ofthe Attorney General and they concur with it. As is summarized in Attachment 3, these Special Terms and Conditions are to be applied base on the type ofactivity proposed in any given permit application for a specific class ofpermits.
Ms. Marty Townsend representing KAHEA the Hawaiian Environmental Alliance, passed out a petition of300 signatures detailing concerns with the Board's decision at the last meeting. She explained the petition asks the Board to enforce the 45 day public comment period which this Board has not met, asks before a permit is granted a Natural Plan and Environmental Impact Statement is completed and a State policy on bioprospecting is drafted. A State Commission is currently considering language on bioprospecting. She recommends the Board take cautionary action and ban it. She went over testimony e-mailed to the Board. The easiest way is to apply the conditions approved by the Board at the January 26, 2007 Land Board Meeting to all permits. She presented to the Board what the Board changed since then and proceeded with the list of eliminated conditions. Freeze things on bioprospecting and wait for the Commission to come up with a policy.
Member Pacheco asked to clarify "for profit" is it like giving away our property rights? Ms. Townsend replied #21 is good language because it does not distinguish a for profit motive and not for profit motive. Mr. Pacheco explained in the General Conditions it states we hold all natural resources in trust to the State ofHawaii. For profit or non profit the State still owns it. Ms. Nobriga asked then why the language? Don't need that language. Ms. Townsend gave an example with mineral rights and relayed her opinion. Expressed how a third party, like the University ofHawaii could take it and use it for profit.
Ms. Malia Nobriga, President ofWaikiki Hawaiian Civic Club, the Chair ofthe Association ofHawaiian Civic Club's Bioprospecting Task Force and a Native Hawaiian originally from Kauai. She passed out handouts and reported the Waikiki Hawaiian Civic Club helped to organize and participated in three Ka'Aha Pono - Native Hawaiian Intellectual Rights Conference. These conferences produced the Paoakalani Declaration which addresses the issue ofbioprospecting and states:
10 • We have the right to free, prior and informed consent before research relating to our biological resources commences. Researchers, corporations, educational institutions, government or others conducting such research must fully and entirely inform Kanaka Maoli regarding the purposes oftheir research and recognize our right to refuse to participate. • Biological samples are being transferred, traded, bought, and sold without the agreement or consent ofour peoples, in violation ofour inherent human rights. • Although biological and genetic samples have been transferred, sold, patented or licensed, Kanaka Maoli never relinquished our rights to our biological and genetic materials and therefore, call for the rightful repatriation ofsuch samples and due compensation. • Kanaka Maoli human genetic material is sacred and inalienable. Therefore, we support a moratorium on patenting, licensing, sale or transfer ofour human genetic material. • We further support a moratorium on patenting, licensing, sale or transfer ofany ofour plants, animals and other biological resources derived from the natural resources ofour lands, submerged lands, waters, and oceans until indigenous communities have developed appropriate protection and conservation mechanisms. She explained how her organization(s) brought about resolutions and legislation on collective intellectual property rights ofNative Hawaiians, protection ofHawaii's flora and fauna and bioprospecting. They recommend that the Board defer permitting the research mission ofUH's HIMB to Papahanaumokuakea until: a policy on bioprospecting is drafted and circulated to all rights holders and stakeholders. a thorough and public environmental review is conducted, including an assessment ofthe cumulative impacts oftaking thousands ofsamples of living material every year for the last several years. a Monument management plan is developed with meaningful public input. By law, research in the NWHI must further the management and conservation goals ofthe Monument and the State Refuge. it is impossible to know what those goals are without a management plan in place. the public has a meaningful opportunity to comment on all research permits. The Board adopted a 45-day public review and comment policy. DLNR staffrefuse to implement that policy by restricting release ofthe permit applications until 4 working days before the permit hearing.
Mr. Wayne Kaho'oleipanoki representing Ilioulaokalani Coalition reported they have been involved with the Northwest Hawaiian Islands - Papahanaumokuakea for the past 10 years. Bioprospecting is theft ofnatural resources from native peoples and should not happen in the Northwest Hawaiian Islands or in the State ofHawaii. He expressed how appalled ofwhat happened at the April Board Meeting while the Commission on Bioprospecting is still meeting. He recommends waiting for the policy on bioprospecting comes out before any permits are issued. Until a thorough public environmental review
11 is conducted including an assessment ofthe cumulative impacts oftaking thousands of samples ofliving material every year for the past several years. It is a violation of Hawaiian people's rights. The Board's approval is contradictory to acknowledging the fact we are the host culture. He recommends developing a Monument plan and asks to give the Bioprospecting Commission time to draft a policy.
Mr. Dan Polhemus ofDAR explained the part that says no bioprospecting was written by his staffas a guideline for the initial State permits when it was first set-up. That was an interim instrument it wasn't imbedded past the Attorney General, but at the time it was the most precautionary policy. It was made a permit condition. The AG stated we don't legal authority under current rules and statue. What we have here is what was advised by the Office ofthe Attorney General. The alternative is to remain silent on the issue by deleting the parts that say including work involving bioassay or bioprospecting and retain the rest ofClause One and Attachment Two. Ofthe Co-Trustees, OHA was the only agency requiring a clause addressing bioprospecting. How he reads the AG's opinion if you grant a license, a permit to collect specimens in the State and don't work within the context ofthat permit, assert your underlying title, you cannot come back later to claim it. Ifyou do so up front you've covered it. Everything is forbidden except what you're allowed in the terms ofthe permit and the permit doesn't have to restate everything you're forbidden to do. The permit tells you what you are allowed to do and ifit is not stated in the permit then it is forbidden. The letter received from the White House Council on Environmental Quality signed offby general council's office ofthe Departments of Commerce and Interior and by our AG's office made it very clear you don't need to re-write, re-state all applicable laws in the context ofa permit. Permit allows you what you can do that you would otherwise would not be able to do in the context ofthose laws and everything still applies.
Ms. Heidi Guth, Lead Advocate for Native Rights at Office ofHawaiian Affairs apologized for the language in this condition. She agreed with Mr. Polhemus with the initial language that there must be no bioprospecting in the Monument. When working with Federal and attorneys, there is no internationally, federal or state agreed definition for bioprospecting nor any law. She brought to their attention this Bioprospecting Commission and they decided to build a stop gap until the Commission came up with language thinking to insert in place. After this mornings comments it was not a good idea. It says "under this permit the authorized research activity including work involving a bioassay or bioprospecting" tells the permittee you are authorized to do these. Because there is no known definition for bioprospecting the attorneys decided to leave in bioassay with the knowledge that Hawaiians are not against research. The State AG added the words "for profit" which she feels is unnecessary. Take out bioprospecting and for profit and leave in bioassay would make OHA's beneficiary happy. Please do not defer this because there are permits before the Board.
Member Pacheco asked ifan entity takes resources out ofthe Monument like at the University ofHawaii, how is it set-up to protect it? Mr. Polhemus replied at U.H. it is still under the State because it states you can't do this they will be in violation. Will staff have to catch them doing it? Yes.
12 Chairperson Smith asked what ifwe deferred this matter to study the language, but would put the other permits on hold? Mr. Polhemus replied the Board hasn't approved the special conditions and will not be a part ofthe permit until they are approved. He suggested amending and defer action on clause I and approves clauses 2-6. We have the General Conditions which are extremely restrictive. Chairperson Smith explained we need to have something in the interim in regards to bioprospecting until the Commission makes a consensus. Mr. Polhemus replied as Member Pacheco pointed out in the General Conditions "the State retains underlying title" which means not anyone can take this, patent and lay claim to it. In the context ofthis permit document, right up front. we claim underlying title. Member Pacheco stated we should wait until the Commission comes up with a direction for the State policy. Chairperson Smith replied we should limit its activities and build existing fail safes. Mr. Polhemus reiterated or we keep clause I and eliminate the including work involving bioassay or bioprospecting. Say instead "does not authorize the sale of collected organisms, authorized research activity must be for non commercial not involving sale use bio-products material collected in the Monument pertaining patents or intellectual property." Note there is an Intellectual Property Clause in the General Conditions that are very restrictive. Member Gon asked OHA and those who testified would this phrasing, as a stop gap, be satisfactory? Ms. Guth and those who testified replied ifthey could have time to discuss.
Chairperson Smith called for a Recess, II:53am for 5 minutes Reconvened: 12:05pm
Ms. Heidi Guth ofOHA met with parties and she presented the following: I. This permit is not to be used for nor does it authorize for the sale ofcollected organisms under this permit the authorized research activity must be for non-commercial purposes not involving the use ofsale ofany organisms, by products or materials collected within the Monument for obtaining patent or intellectual property rights. Chairperson Smith asked the AG this is good? She replied it is clearer. Ms. Guth stated they would like this to go through as a stop gap measure until the Bioprospecting Commission comes up with a State Policy.
Member Gon moved to approve the legally imbedded special terms and conditions as amended, in particular to item one and item three.
Unanimously approved as amended (Gon, Edlao) Amend Item 1 and Item 3.
Member Gon departed 12:08 pm.
13 Item F-3 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Research Permit to C.O. Jon D. Swallow, National Oceanic and Atmospheric Association (NOAA) Ship Hi'ialakai, for Access to State Waters to Support Marine Research Activities.
Item F-4 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Research Permit to Dr. Paul L. Jokiel, University ofHawai'i, Hawai'i Institute of Marine Biology (HIMB) for Access to State Waters to Conduct Benthic Habitat Mapping Activities.
Item F-5 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Research Permit to Dr. Robert Toonen, University of Hawai'i, Hawai'i Institute of Marine Biology (HIMB) for Access to State Waters to Conduct Coral Reef Invertebrate Genetics Research Activities
Item F-6 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Joint Research Permit to Dr. Carl Meyer, University ofHawai'i, Hawai'i Institute of Marine Biology (HIMB) for Access to State Waters to Conduct Top Predator Population Research Activities
Item F-7 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Research Permit to Dr. Matthew Craig, University of Hawai'i, Hawai'i Institute of Marine Biology (HIMB) for Access to State Waters to Conduct Reef Fish Life History Research Activities
Item F-8 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Research Permit to Dr. Brian Bowen, University of Hawai'i, Hawai'i Institute of Marine Biology (HIMB), for Access to State Waters to Conduct Reef Fish Genetics Research Activities
Item F-9 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Education Permit to Keeley Belva, Papahanaumokuakea Marine National Monument (PMN Monument) for Access to State Waters to Conduct Education and Outreach Activities
Item F-10 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Research Permit to Dr. Isabella Abbott, University of Hawaii (UH ), Department of Botany, for Access to State
14 Mr. Dan Polhemus ofDivision ofAquatic Resources reported F-3 through F-IO is all referable to a research cruise proposed for the Northwest Hawaiian Islands in early July 2007. He reminded the Board the language in the Hawaii Administrative Rules Chapter 60.5 pertaining to research in the Monument. It says "The intent and purpose is to manage, preserve, protect. and conserve the unique resources in the Marine Refuge using the best available science. Part 13-60.5-1, Clause 2. In Clause 4 ofthat same section "To support, promote, and coordinate appropriate scientific research and assessment and long term monitoring ofthe Refuge resources and the impacts or threats from human or other activities and to help better understand, protect, manage and conserve consistent with applicable law." In the definition section as far as scientific purposes, it means observing, identifying, describing, investigating, collecting marine life and a biotic samples for analysis and study and theoretically explaining natural phenomenon including the principals and processes necessary to form concepts to conduct observations or experiments and to validate hypothesis by observation or experiment. Finally, the Board may determine the production ofconservation ofresources might require the cessation ofsome activities allowed by a permit. In particularly, ifthere were considerations ofdamage to the ecosystem integrity such as direct harm to habitat or reduction. He explained each ofthe permits.
Testimony was heard from each ofthe applicants.
Member Edlao asked when will the upgrade for discharge be done and how long will it take? Mr. Curt Trafeca representing C.O. John Swallow ofthe NOAA ship, Hi'ialakai, replied the ship will not discharge anything into State waters or SPA water zone. The ship has made upgrades to its ship board systems this year with low flow toilets and washing machines to reduce the amount of gray water. The gray water, staffis asking to discharge within the Monument, but no black water. The earliest retrofit will be this winter. Member Pacheco asked how does this happen? Ifyou come up to State waters and need to dump, would you then move out of State waters? Mr. Curt Trafeca explained correct, the ship conducts operations during the day in State waters then at night move offshore. The holding capacity ofthe tank isn't very much. The ship would go out past the SPA which is about 7 miles out. He reiterated the Hi'ialakai wants to minimize any impact they have and are doing all they can.
Member Edlao asked how often does the mapping have to done on Item F-4? Mr. Polhemus replied it is not complete. The Monument is 1200 miles long by 50 miles wide. The bathometric mapping is incomplete and shows lots ofwhite gaps. Staff doesn't know what its showing is what is really there. Interested in how much reefwe have and remote sensing shows there is coral in a place and need to go back to ground truth it. Even the main Hawaiian Islands are not completely mapped out. Dr. Paul Jokiel ofD.H., Hawaii Institute ofMarine Biology (HIMB) replied the work is focused on the living resources and there is a lot ofarea to cover. They were there in 2001 to do the ground truthing. Changes in climate will affect the results in the Monument which will affect globally. Member Edlao was concerned with touching coral. Dr. Jokiel replied staffwas covering their bases, but they are not touching intentionally.
15 Member Schuman asked regarding F-5, how would you know what the population size would be? Dr. Robert Toonen ofU.H" HIMB replied staffestimates the population size by the number ofindividuals ofa given area as you are surveying across a number of locations. Staffhas dropped the number ofsamples per State's direction.
Member Edlao asked about the shark and monk seal interaction study in F-6? Concerned with the hooks? Dr. Carl Meyer ofU.H., HIMB explained the set-up will be constantly monitored and operations will only occur during daylight hours. It will be directed to Galapagos sharks that target monk seal pups. Member Edlao asked what kind ofbait used? Dr. Meyer replied either large pieces oftuna or shark.
Member Edlao asked (F-7) how many species offish will be gathered? Dr. Matthew Craig ofU.H" HIMB explained the sampling for this project is being collected for another project. About 20 different species and ifit is not abundant in an area they will not take from it. He explained fork length. Mr. Polhemus stated that F-7 & F-8 are sharing the same fishes because 1. It's very expensive to go there and 2. Don't want to take out more than necessary.
Member Edlao asked about the tissue plug? Dr. Brian Bowen ofU.H" HIMB replied stafftakes a tissue plug the size ofa grain ofrice. Staffonly takes fishes that occur in the millions. Member Edlao concerned with the large number ofspecimens. Dr. Bowen replied staffdoes not get everything. Stafftakes about 30 specimens in an area the size ofaahu from each atoll island. They are taking only what is needed for statistical· validity which is 30-50 samples. Dr. Bowen commented the scientists at U.H., HIMB are in agreement with KAHEA and others about bioprospecting. Before the scientists requested these permits they relinquish all rights to profit. to patent and automatically defer to the State.
Member Edlao asked on F-9 what about privately funded? Mr. Polhemus replied in the Monument the standard permit conditions say we retain rights to copies ofall images that are taken. People will not have exclusive rights to their images. The only way to commercialize it is to get a special ocean use permit which goes through the Monument Board and the Land Board.
Mr. Curt Trafega ofthe Hi'ialakai asked for a change to F-3, condition #3 on the permit regarding a safety issue with the divers who must dive in pairs.
Mr. Edlao asked about aHA's recommendation on cultural protocols. Mr. Polhemus replied staff, aHA and scientists are meeting to work out an acceptable agreement mutually. Ms. Guth ofaHA explained when they read staffs report they were upset because it put it right back on their shoulders. At the last meeting, Moani Pye felt people understood and respected the cultural side. She is glad that management is willing to work with aHA and understand they have to address the cultural issues. Mr. Wayne Kaho'oleipanoki ofIlioulaokalani asked ifthere is no cultural monitor on the ship what happens? Does the ship go out or does it wait for a cultural monitor on board?
16 Mr. Polhemus replied there is a briefing. In the future, there will be a requirement for cultural observer, but has not been built into the system. Ms. Guth explained there is a Hawaiian cultural working group associated with Papahanaumokuakea Marine Monument. This group met recently and their main issue is the permitting process. OHA will meet with this group in July and this issue will be addressed by native Hawaiians then. Mr. Kaho'oleipanoki asked for the July 7th sail, what assurance do we have that cultural protocols will be observed? Is it because a briefing will be held? He thinks not. Ms. Guth replied this is all we have right now although she doesn't agree with it.
Mr. ShaUll Corson, Acting Superintendent with NOS/NOAA Monument, clarified the permit itselfidentifies the need to dive in these closed areas. #3 in the staff recommendation list to limit it to Midway Special Preservation Area. The permit does not need to be modified. Member Pacheco explained the Board is only amending the Special Conditions.
Ms. Marty Townsend ofKAHEA, Hawaiian Environmental Alliance, passed out handouts and recommended a moratorium on all permits to the Northwest Hawaiian Islands. She recommended conducting an Environmental Impact Statement Review which the Environmental Policy Act requires it be a public review process. She referred to when you cannot use categorical exclusions. She expressed none ofthese have been done and would violate Federal Law and explained how permits have been done piecemeal. She reported concern about the gray water issue and other items.
Mr. Wayne Kaho'oleipanoki expressed his concerns with a possibility ofa cultural monitor on board which had started a year ago and this issue has not been settled. It troubles him that DAR understood a year ago about the cultural monitor. He recommends ifthese scientists/applicants want to continue exploring Papahanaumokuakea then they need to make the effort to learn the proper cultural protocols and to assure the Hawaiian community that they understand it. It is the applicant's responsibility to come to them.
A female speaker gave testimony concerned with even asking to dump sewage in the Monnment. It's unheard of.
Mr. Michael Tossato, Deputy Regional Administrator for NOAA Fisheries, explained he doesn't understand where the mis-conception that Hi'ialakai is requesting to dnmp in the State waters. It is explicitly stated "no discharges is allowed in State waters" and Hi'ialakai is not requesting to approve any. The request to discharge within the Monument is an authorized activity the proclamation allows the operation ofships to support conservation activities. Hi'ialakai is asking to discharge gray water within the Monument where it is authorized to do so and the managers will make that decision. A group is looking at what discharges are authorized and putting in place a monitoring system. All research is closely coordinated with the Fisheries Science Center. The reason why permits were presented separately is it was the most logical. Member Pacheco asked about EIS comments? Mr. Tossato replied as we make Federal decisions all applicants are required to follow NIPA. NIPA provides three options and categorical
17 exclusions are one ofthose options. Environmental Assessments are not EIS'sand EIS's are not required to comply with NIPA. They're one ofthe ways to comply with NIPA. Staffis considering what needs that level ofanalysis. Public ability is not just having an EA when it's done which NIPA requires. That information must be made available to the public when it's done. Staffis forming a Conservation Science Plan and we'll see the EIS or EA.
Mr. William Aida, DLNR employee but here as individual, reported the discharge is not a negative intent. Sewage treatment plants put out millions of gallons a day compared to 3000 gallons 50 miles off shore which is nutrients. It will be recycled. Sometimes we need to do what is in front ofyou because there is no time to layout the best plans. The science is critical because what is happening at the Monument like the sharks might be coming down to the main Hawaiian Islands and vice-a-versa. The taking ofsharks is pono because ofthe monk seal issue. He urges support for the permits and he urges desire to have a better plan.
Mr. Don Pollaski ofFish and Wildlife Service for the Monument reported this is not a new project. HIMB placed in safe guards and have been very successful, Mr. Polhemus explained staffcannot approve things projected in the future. Only things in front ofus now. In regards to the 45 days, it will go back and forth with comments. The public must realize what you get after the 45 days is different from the final application that the submittal is based. Public will object because things would be worked out in the interim. Staffhas honored every request and he has a written track. Per Wayne Haight there were 500 pages ofdocuments requested and OIP said when you have something that big do an incremental release which they are doing. Submittals come right up to the deadline and he and Member Edlao commented the 5-6 days they have to review everything is difficult. Ten days would be better.
Member Pacheco commented on the negative connotation with the changes in leadership and stated we are all here to do the best job we can. He moved to approve F-3 to F-IO with an amendment to Item F-3, recommendation #3 to include swimming, scuba, snorkeling activity allowed only for vessel maintenance and emergency operations and other non-recreational activities in support ofship and research activities.
Unanimously approved as amended (Pacheco, Agor) Amend Item F-3, recommendation #3. All voted yes.
Item F-ll Enforcement Action against Crystal Seahorse, Ltd. and Captain Peter Wood Involving Prohibited Activities at 'Ahihi-Kina'u Natural Area Reserve, Maui
Mr. Blaine Rogers representing Department ofAquatic Resources, reported the vessel Shangri-La commanded by Captain Peter Wood entered the State Natural Area Reserve, 'Ahihi-Kina'u, related the situation background and violation(s). Staffs
18 recommendation is to fine Crystal Seahorse (holder ofthe commercial use permit) $2,500 for conducting a commercial tour within a Natural Area Reserve, fine Peter Wood $2,500 for operating a motorized vehicle within 'Ahihi-Kina'u Natural Area Reserve, fine Peter Wood $5,000 for unlawfully anchoring a vessel within marine waters, fine Peter Wood $1,000 for damaging stony coral, fine Peter Wood $2,750 for damaging II specimen of stony coral, and assess Administrative Fees and Costs against Peter Wood totaling $3,554 expenses incurred by DLNR investigating and remediation damages. Grand Total of$17, 304.
Member Pacheco asked 31 meters deep how does it happen? Were they there under an hour or half-hour? Mr. Rogers replied after talking to the biologists who did the investigation they explained on a windy day, the large size ofthe vessel and with an anchor chain that's slack a swath could cut in the coral. Member Pacheco were the biologists able to see forensically when that coral was broken by the nature ofthe break? Protocols have been established on how staff investigates coral damage. A Natural Area Reserve ranger and a private volunteer were present in the area when the vessel came in. The volunteer swam out to the vessel and told crew they were there inappropriately. The pictures ofthe anchor and anchor chain were taken by the volunteer. Subsequent investigation was taken by DAR staff.
Member Pacheco asked this is a pretty serious fine for the operator was way out ofarea where his permit allowed, in fact a whole different part ofthe island. Staffis not asking to revoke the permit? Mr. Rogers answered it was not part ofthe discussion. DOCARE assigned him to handle this. This is a test case for all the divisions (or for Department). Stafffelt it wouldn't be fair to Mr. Wood and too much for the Department.
Member Pacheco asked then why DAR instead ofDOCARE handling this? Mr. Rogers replied Divisions have the ability to bring enforcement actions.
Mr. Dennis Niles attorney representing Crystal Seahorse, reported Mr. Peter Wood has operated on Maui for over 20 years and this is a first time episode. He responded immediately and professionally, but was charged with a crime. The Department was not satisfied with the outcome ofthe criminal prosecution therefore they found it necessary to punish Mr. Wood more, than the humility ofbeing charged with a crime. He was operating within the limits ofhis permit and he alleged crossed the line by entering these waters. Mr. Wood knows you don't anchor on coral, there is sand in the area and what happened, apparently alleged, the chain draped over some pieces ofcoral and some coral broke. He explained the plea agreement with the State. This is the second time Mr. Wood is before a State Board (entity). Then explained civil legal action as compared to an administrative contested case. He recommended not to take further action against Mr. Wood. Also reported there were no signs around the Natural Area Reserve to state it was a closed area. Requested a contested case hearing in respect to Crystal Seahorse.
2:00 pm: Adjourned for Executive Session (Pacheco, Agor) 2:14 pm: Reconvened
19 Chairman Smith asked Mr. Niles would he and his client be amiable to a negotiated settlement? Mr. Niles replied yes. Chairman Smith asked ifthey found common ground would he drop the contested case hearing? Mr. Niles replied certainly. Reported what happened previously with proposals from both sides and no counter. Mr. Smith asked would you like to counter? Mr. Niles replied his client is not here.
Member Pacheco suggested striking items 1,2,3 and approving items 4-6 for a total of $7,304. Mr. Niles explained there is no obvious landmarks in the area or buoys. Member Pacheco asked are you suggesting we place buoys? Mr. Niles replied on an enforcement perspective it would be helpful. Mr. Rogers interrupted to say that DOFAW has an environmental assessment to install buoys. And explained on the map and boating rules which any mariner should already know. Mr. Niles replied he needs to reach his client.
Member Pacheco moved to apply items 4,5, 6 and strike 1, 2. 3. Member Edlao second. Mr. Rogers suggested an alternative. Instead ofstriking 1,2,3 which DOFAW and DOBOR has an interest in and the allocation be worked out between him, Mr. Niles and his client. Mr. Niles stated with one exception, the claim for Crystal Seahorse is dropped and the sanction changed to Mr. Wood. Discussed Hanalei issue and navigable waters. Mr. Niles and Mr. Rogers took a break to discuss with Mr. Wood.
Mr. Niles reported Mr. Wood accepts the proposal suggested by the Board. Mr. Rogers amended 1. to replace Crystal Seahorse with Mr. Peter Wood. Mr. Niles suggested changing other items. Mr. Rogers did not feel comfortable dismissing count 1 because he can't represent DOFAW.
Member Edlao deferred to next meeting. Mr. Rogers replied he will be absent.
Member Edlao asked in your previous settlement offer was it to strike the conduct commercial? Mr. Niles replied he only remembers the amount of$2500, but he doesn't remember the specifics. He is certain it involves eliminating Crystal Seahorse and throwing Mr. Wood in. They felt Crystal Seahorse is not the proper party and the captain should bear the responsibility. Member Pacheco asked then why won't you allow the Board to insert Peter Wood for commercial tour? Mr. Niles answered Peter Wood was not conducting the tour; he doesn't have a commercial license. He is not a commercial operator; he is an employee ofthe company. The permit to conduct the tour is held by Crystal Seahorse. Member Edlao decided to support.
Member Pacheco moved to fine $7,304 as noted for items 2-6 paid lump sum and strike item 1 and withdraw motion for a contested case hearing.
Unanimously approved as amended (Pacheco, Schuman) Amend fine to $7304 for items 2-6, strike #1, and withdraw request for a contested case hearing.
20 Item F-l Request for Final Approval to Amend Hawaii Administrative Rules Chapter 13-75, Rules Regulating the Possession and Use of Certain Fishing Gear to Include Rule Amendments for Board-Authorized Area Closures for Lay Nets, and a Correction of the Section's Number.
Mr. Dan Polhemus ofDAR reported the Board could close certain areas to lay gill netting effective with the filing ofcoordinates and maps at the Lieutenant Governor's office. Public hearing and testimony had opposition, but recent deaths ofmonk seals by lay gill nets expedited this. There is exposure to the endangered species act and the State could be sued at anytime. The result could shut down all near shore activities that could affect protected species which is all pole & line fishing and all net fishing at all near shore waters ofall Hawaiian Islands for 2-3 years as an extreme outcome. Our Federal partners recommend the State address this problem while engaging Section 7. The Legislature gave DLNR 2 positions to deal with incidental take problems which would help mitigate the exposure. I. Ifa monk seal is in an area and in consultation with NOAA to close an area from all net fishing until the seal has left an area. 2. Refers to Molokai.
Mr. JeffWalters ofCo-Manager ofthe Hawaiian Islands Humpback Whale National Marine Sanctuary and DAR staffspecializing in protected species, reported this measure . is important in protecting the Hawaiian monk seal from lay gill nets. Explained the behavior ofmonk seals and where they would feed.
Mr. William Aidil testified in support with the request that the surround kule is not part of the motion. Direct DAR to work with fishermen to develop a DVD for DOCARE statewide to educate them on the difference between surround kule fishing and reef gill netfishing. Ask DOCARE to be more pro-active by checking for a net on three day weekends. Staffinvestigate the effectiveness ofrequiring monofilament line ofa net be a smaller size like l2lbs. Enough for seals to break through, but not for fishes.
Mr. Carl Jellings, a Waianae fisherman expressed concern over events in Waianae. Kule fishermen have to have a license and another license for gill net fishing. Clarify that the type of gear used at the Makua case was incorrect for kule fishing. But the officer wouldn't know that. Mr. Polhemus replied he would seek AG's authority on this matter.
Mr. Tossato ofNOAA Fisheries reported they fully support responsible fisheries. Attorney General's representative reported these rules have not been approved.
Unanimously approved as submitted (Edlao, Schuman)
21 There being no further business, Interim Chairperson Smith adjourned the meeting at 3:05 p.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted,
Adaline Cummings Land Board Secretary
Approved for submittal: ~C~ ALLAN SMITH Interim Chairperson Department ofLand and Natural Resources
22 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, JUNE 22, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Interim Chairperson Allan Smith called the meeting ofthe Board ofLand and Natural Resources to order at 9: I0 a.m. The following were in attendance:
MEMBERS
Mr. Allan Smith Mr. Rob Pacheco Ms. Taryn Schuman Mr. Jerry Edlao Mr. Ron Agor Mr. Samuel GOll III Mr. Tim Johns
STAFF
Mr. Russell Tsuji, LD Mr. Paul Conry, DOFAW Mr. Dan Quinn, SP Mr. Ed Underwood, DOBOR Mr. Tim Lee, HP
OTHERS
Mr. Dave Hudson, Item D-II Mr. Don Horner, Item D-II Mr. John Dooley, DOT Harbors Mr. Ross Smith, DOT Airports Mr. Vince Kanemoto, AG Office Ms. Dawn Chang, Item D-I Mr. Errol Kane II, Item D-7 Mr. Clyde Aikau, Item D-7 Mr. Bob Hampton, Item D-7 Mr. Errol Kane I, Item D-7 Ms. Lane Hornfeck, Item D-7 Mr. Gerhard Seibert, Item D-7 Ms. Alea Bordeaux, Item D-7 Mr. Jack Hendrickshon, Item C-I Mr. Michael Sedino, Item C-2 Ms. Lorna Nishimitsu, Item D-2 Mr. Noa Napoleon, Item D-7
{Note: language for deletion is [bracketed], new/added is underlined} Item A-I Minutes ofJune 22, 2007
Recused: Member Agor and Schuman. Member Gon missed the last 20 minutes, but has listened to the tape.
Unanimously approved as amended (Johns, Agor)
Item A-2 Minutes ofJune 8, 2007
Recused: Member Johns
Unanimously approved as amended (Gon, Edlao) Member Gon stated Mr. Dale Baynard should be Mr. Dale Bonar. On page 11 the organization Mr. Wayne Kaho'oleipanoki represents is Ilioulaokalani. ltemD-11 Authority to Procure an Appraisal in connection with the Possible Sale ofState Land to The Salvation Army, Honouliuli, Ewa, Oahu, Tax Map Key: (1) 9-1-17:88 por.
Mr. Russell Tsuji, Administrator for Land Division reported on a 15 acre project where The Salvation Army (TSA) received a grant from the Ray and Joan Kroc Foundation totaling $80 million dollars and plans a large community center. This appraisal estimates a price on fair market value and helps TSA evaluate their options. One is an exchange with the Department ofHawaiian Home Lands (DHHL) which these lands are targeted for and who will lease to TSA. To comply with the grant TSA must acquire a fee. Time is an issue to acquire the land first. Major Dave Hudson ofTSA and Mr. Don Horner of First Hawaiian Bank (FHB) are here.
Major Dave Hudson, Divisional Commander ofThe Salvation Army in Hawaii, reported supports conducting an appraisal in submittal. He clarified TSA has possession ofthe money and is not coming from the Kroc Foundation. The Kroc Centers are unique in serving the under served in the community. Two swimming pools are planned and will benefit the Leeward Coast. TSA needs the land to be fee simple at fair market value. An appraisal will determine which direction TSA will take.
Member Edlao asked how much time needed to get fee simple? Mr. Hudson replied the ground breaking is July 2008, but for fundraising efforts the sooner the better. Member Johns asked we had approved giving this to DHHL in '04? Mr. Tsuji replied that's correct. DHHL is doing a master plan which is getting the sub-division map submitted and approved.
Unanimously approved as submitted (Johns, Schuman)
2 Item D-l Grant of Perpetual, Non-Exclusive Easements to Sandwich Isles Communications, Inc., for Submarine Fiber-Optic Telecommunication Cable and Terrestrial Landing Sites Purposes, Statewide, and Issuance of a Construction Right-of-Entry Permit Covering said Submerged Land and Terrestrial Landing (Fast Land) Sites, Statewide, and Additional State Fast Land, at Kekaha, Kauai, and Makana, Maui, Tax Map Keys: (4) 1-2-12: Por. 38, and (2) 4-5 21: Por. 15, Respectively
Mr. Russell Tsuji ofLand Division reported project will be for a DHHL development and requested for gratis rent. AGs looked at it and stafffound it appropriate. There is a provision the easement will be for gratis, but in the event Sandwich Isles have others tap into the cable the Board will re-evaluate the rent. Present to speak are Chairman Micah Kane ofDHHL and Dawn Chang ofSandwich Isles Communications. Member Johns asked what happened some years back when others came before the Board and talked about a DLNR master plan on how these were going to play out? Do you remember that? Mr. Tsuji replied he was not around. Member Johns stated we want these to be consistent with a Statewide Strategic Master Plan. Mr. Tsuji replied he was not aware ofthat.
Ms. Dawn Chang ofSandwich Isles Communications, Inc., answered Member Johns. If it is an issue ofthe cable landings it was about 5 years ago. Stated Office ofPlanning put together a team and Sam Lemmo was part ofit. At that time, the land owners and industry decided there would be no master plan. Cables are placed at existing corridors or near Hawaiian Home Lands ifthere are none. There is no master plan in regard to landing sites. Member Johns asked discussions about the master planning, weren't these corridors also developing criteria? This proposal seems to be consistent with the general criteria on how it is done. Ms. Chang replied yes, that's correct. They will use horizontal directional drilling which has the least impact.
Mr. Tsuji stated OHA responded and did not have objections.
Unanimously approved as submitted (Johns, Gon)
Item D-7 Enforcement ofViolation of Unencumbered Public Lands, Unauthorized Surfboard Instruction by Pure Hawaiian, Hot Spots, Hilton Hawaiian Village, LLC. And Waikiki Beach Activities, Ltd., at Duke Kahanamoku Beach, Oahu, Tax Map Key (1) 2-3-037:021
Mr. Russell Tsuji ofLand Division reported unauthorized surfinstruction at the Duke Kahanamoku Beach. The board submittal is relatively self-explanatory. The bottom line is there was surfinstruction activity going on at the beach. This is one where we have a concession agreement. Initially, it was issued in 2005 to Clyde Aikau who subsequently had some trouble and went into bankruptcy. The court held an auction. Hilton Hawaiian Village stepped in and acquired the concession. His staffheard some complaints of alleged unauthorized surfinstruction going on at the beach and they did some
3 investigation ofsite inspections, but many ofthe times when staffcame back to the office and presented to him the report it didn't have sufficient evidence. Staffdidn't know how surfinstructors were transacting business. All staffhad was a photograph ofpeople on the beach. They didn't know ifthey were doing it gratis. Mr. Tsuji stated he would have a problem'ofciting someone teaching their own son or grandson how to surfon the beach. At that time, we did not have any evidence ofhow the money was being moved around. It started to intensify, the complaints, in 2007.
Mr. Tsuji started personally looking into this matter and started writing letters to Hilton asking some questions. He was surprised by some ofthe responses. In particular, he thought the surfinstruction at Duke Kahanamoku Beach was in connection with the concession agreement that Hilton had acquired. Hilton came back and said they were not exercising their right to provide surfinstruction under the concession agreement, instead do these referral type services to Pure Hawaiian which is a Clyde Aikau entity and Hot Spots which is an Errol Kane Jr. entity. We had various letters going back and forth which are attached to the exhibits. Based on the information provided him, Mr. Tsuji felt these were unauthorized surfinstruction, told them to stop and they did. His perception was Hilton was not aware they had violated unencumbered land rules. However, upon receiving the responses, especially one in particular from Waikiki Beach Activities (WBA). Mr. Tsuji now thinks his prior perception on unintentional violation may have been incorrect. When Mr. Tsuji read WBA's testimony he was taken a back by its attitude. And the attitude Mr. Tsuji would characterize as "hey, I've_been doing this for 18 years and you didn't come after me and you can't come after me now;" and Mr. Tsuji doesn't believe that to be correct or the law. Mr. Tsuji recommended initially, a fine of $150 each and did not ask for administrative fees. He referred to the motor bike enforcement issue last month which involved damage to State's natural resources; but did not involve a commercial entity making a profit. Mr. Tsuji stated he sees this (commercial surfinstruction) as entities profiting from the exploitation ofthe State's natural resources. Especially with the attitude "I've been doing this for 18 years and it's too late to come after me now;" unfortunately that is not the law. The State is not bound by any statute oflimitations. The State never ever authorized WBA, Kane or Aikau (except when Aikau held the concession contract) to perform these activities on the beach, especially making substantial sums ofmoney. Mr. Tsuji also commented on Hilton's response. Initially, Mr. Seibert ofHilton wrote him acknowledging that Hilton shared in the profits from the commercial surfinstruction, and that's how Mr. Tsuji drafted the submittal acknowledging they (Hilton) are sharing the profits from the surf schools. Ultimately for testimony at this meeting, Hilton recently wrote saying it was a technical error and said they weren't making any money. Mr. Tsuji added even ifthat was true he referred to exhibit C which advertises room and surf. Member Johns asked the referral arrangement, how did that work? Did they get any money from that? Mr. Tsuji replied yes they were (getting money from the referral arrangement). Now, Hilton is saying they weren't, but initially they said they were. WBA and Hilton took a percentage ofthe fee. Then Mr. Seibert came back with a second letter saying it was a technical error. Hilton really didn't make the money, but WBA did for the referral. The referral is an issue because the concession agreement has no assigument or subletting. He expressed to Hilton's counsel ifyou are going to do surfinstruction it must be Hilton
4 employees. The money should go into a Hilton bank account. A referral is not a Hilton operation. IfHilton operated within the concession agreement then Mr. Tsuji would not be bringing this matter against Hilton or anyone else ifit was all a Hilton operation. Member Johns asked was there a percentage? Mr. Tsuji replied the concession is a flat rent. Member Johns asked Mr. Tsuji said initial recommendation. (Regarding the fine amount.) Are you changing it? Mr. Tsuji replied he would not object ifthis Board felt a higher fine is appropriate and recommended a stiffer fine.
Mr. Pacheco asked about the relationship between the Division ofBoating and Ocean Recreation (DOBOR) blue card permit and the concession contract. These instructors have the blue cards where is it legal for them to instruct surfing? Mr. Tsuji replied the Concession Agreement is a land based agreement. The certifications that DOBOR issues certify you're qualified to be a surfinstructor. But DOBOR's position is they can go in the ocean for surfinstruction there. (DOBOR is saying surfinstruct in the ocean.) Member Johns asked is there no designated surfinstructing area that they are limited to by issuance ofthe blue card? Instructors can go anywhere in the ocean? Mr. Tsuji replied that's correct. Blue card is not the right to go on the land or the beach to do the surfinstruction it's so you can do the surfinstruction in the ocean. He referred to submittal on what Hilton is proposing which stated what these two individuals who have blue cards would be doing their surfinstructing and transacting business totally on Hilton's private property and not on the beach. Member Johns explained ifthey wanted to do it (surf instruct) on the beach it would be within an agreement that's been granted or some right granted by the State. Mr. Tsuji replied that's right. Member Johns asked they can transit the beach? Mr. Tsuji replied yes they can transit the beach. Hilton's plan is to have all business activity on Hilton's premises. Member Johns clarified the problem here is using the public beach for the transaction ofbusiness or giving surfinstruction.
Mr. Tsuji also reported not only boards lined up on the beach during surfinstruction, but there were moored surfboards and floating bikes out in the ocean without a mooring permit from DOBOR. Member Johns asked wouldn't that be using submerged lands? Mr. Tsuji replied yes. He told them to stop it and they did. Member Edlao asked is this one violation, several violations? Mr. Tsuji replied Hilton acknowledged this has been occurring for a long time. His land division staffis not trained investigators and thus, do not know how to ask questions like an investigator. After working with Hilton's counsel his impression was it was inadvertent. Member Edlao asked you're bringing up three violations? Mr. Tsuji replied yes it is three violations. Member Johns stated cannot bring in new violations without it listed in the submittal. (Referring to the mooring issue.) Mr. Tsuji replied he didn't make an issue on the other things because when he informed them it was inappropriate Hilton took care ofit. Member Johns asked there are four parties? Mr. Tsuji replied yes, two surfinstructors, WBA which is the manger ofthe beach concession on Hilton premises and Hilton. He explained how the four parties were involved. Member Pacheco asked about the June 20th letter on page 3. Which refers to a third party vendor is responsible for complying all rules and regulations? Mr. Tsuji replied he does not agree with that and gave the example ofbar owners and clients. Hilton is encouraging their guests to participate in this activity and could be profiting indirectly. WBA definitely is profiting directly. Member Pacheco asked with those surf
5 instructors on the beach Hilton is subcontracting out? Mr. Tsuji stated Hilton is saying they are not exercising their rights and said they are a regular private land owner. Member Edlao asked ifthere is a fine, but no administrative costs? Mr. Tsuji replied he is open for amendment to the fines. Staff has spent numerous hours on this item.
Mr. Errol Kane, II, owner ofHawaii Hot Spots Tours, reported being at Duke Kahanamoku Beach for 9 years has a blue card certification and gave more background. He related how one individual made complaints against his business, filed false reports with DLNR, stalked and threatened him, his family and business. Mr. Kane was granted a restraining order against this individual for three years. Also this individual logged complaints against his father's job as a law enforcement office at DLNR. The judge granting the restraining order noted this individual was obsessed with Mr. Kane's business.
In a meeting with Peter Young, DLNR Chairperson on May 9, 2006, the tent issue and surfboard advertisement was brought to Mr. Kane's attention and he made the corrections. It has always been Mr. Kane's intention to operate within the rules and regulations ofDLNR. He met on September 5, 2006 with his attorney, and Charlene Unoki, Robert Ing and Steve Molman ofLand Division. It was understood ifthere was no canopy erected and the business performed on Hilton property, Land Division had no problem with Hawaii Hot Spots conducting the surfschool on the beach. Hawaii Hot Spots have always instructed on DOBOR land and never had a violation. Hilton took over the permit by bidding $205,000 and continued monthly rent to the State. All financial transactions were done on private property. The violations are unfounded and he feels he shouldn't pay a fine. Mr. Kane asked for a permit to teach safety demonstration on the beach. Member Edlao asked him you acknowledge you are teaching on the beach? Mr. Kane replied he would like a land use permit. Member Edlao asked you acknowledged previously your company was teaching without a permit and need a permit now? Mr. Kane replied yes.
Mr. Clyde Aikau ofPure Hawaiian Aikau Surf School reported Land Division has never cited him until now. It has been almost a year and no letter to cite him for the umbrella on the beach and no due process. He recommends citing the bridal, modeling and car companies that come in with their umbrellas without a permit. These complaints are coming from one individual. He asked the Board to grant him a tiny spot on the beach to continue surfinstruction. Plus, there are no life guards on Duke Kahanamoku Beach. His company has saved numerous lives over the years.
Member Edlao asked do you acknowledge requiring a DLNR permit? Mr. Aikau replied yes. Member Edlao asked Hilton/WBA has the permit. Were you under the impression you were under Hilton? Mr. Aikau replied absolutely no. His arrangement with Hilton is totally separate from the permit. Member Edlao asked you knew you were instructing without a permit on the beach and now is requesting one? Mr. Aikau replied he never knew he was breaking the law. He was never told he was doing something illegal. Ifhe had a citation he would stop. Hilton/WBA instructed him not to do any more instructing on the beach.
6 Member Pacheco asked how long has he been doing the surfschool? Mr. Aikau replied for 30 years. Member Pacheco asked ofall those years were you using the sand to instruct? Mr. Aikau replied he had the concession from the Land Board for 26-27 years. Member Pacheco asked did the concession allow for instruction on the sand? Wet or dry sand? Mr. Aikau replied yes, both. The contract, at that time, allowed him to instruct anywhere on Duke Kahanamoku Beach for 27 years.
Member Edlao asked Mr. Aikau you continued to operate without a permit and was grandfathered in or felt you were covered under the Hilton permit? Mr. Aikau replied he cannot assume that. Mr. Tsuji replied the holder ofthe concession agreement allows holder to teach on the beach as long as it doesn't interfere with public use and subject to Chair's review. That right is why the concession agreement went so high at auction. You need a concession agreement for surfinstruction on the beach. Member Pacheco asked the real issue is the company under the umbrella ofHilton/WBA was allowed because they were subletting and because they had the right to use the beach? Mr. Tsuji replied it was not done under the concession agreement. Ifthey had it would be a Hilton operation and Mr. Aikau would be employed by Hilton as their surfinstructor which that option is available. But for various reasons Hilton decided not. Instead, chose not to exercise any ofthe surfinstruction nnder the concession agreement, but are doing other beach activities.
Mr. Johns stated Hilton is doing it with the wrong people. The surf instructors are violating because they don't have a permit. He asked normally when there is an enforcement action whether CDU there would be in the record a notice ofviolation and then issue a fine after that? Pointed out attachments and nothing noted after May. Do we need a notice ofviolation to impose a fine? Mr. Tsuji replied no. Notice ofviolation for easements, but as far as land management, no. The submittal is the notice. Member Johns asked following up to Mr. Aikau's statement, you don't need to establish you told them they were breaking a law for the Board to impose the fine? Mr. Tsuji referred to Maui bike rider incident. Mr. Pacheco asked any other permitted surfinstructors are using the beach would be illegal? Mr. Tsuji replied he could speak for Duke Kahanmoku Beach because it is Land Division. Mr. Aikau added there is a problem determining jurisdiction over the beach, State or County.
Member Agor asked would it be against the concessionaire agreement with Hilton referring to an entity and allowing that entity to do business on the premise that Hilton is permitted? Mr. Tsuji replied right. Member Agor stated he thinks that would be a violation ofthe concessionaire agreement. Mr. Tsuji replied it would not be ifit was a Hilton operation, but what they are doing is with private entities not with Hilton. He has explained it to counsel and for whatever reason, Hilton decided not to do it (commercial surfinstruction) nnder Hilton's operation (or under the concession contract). As a result, Mr. Tsuji told them it (the surfinstruction) has to be done on private property.
Mr. Bob Hampton ofWaikiki Beach Activities (WBA) clarified they hold a State· Activity Desk License and are not concessionaires. The two surfschools get their business through the Activities Desk. He described what happened to Mr. Aikau's
7 business that caused the bankruptcy. Member Johns asked who was Mr. Aikau paying his $18,000/month rent to? Mr. Hampton replied to DLNR. He explained the process of selling coupons to guests and recommending the two surfschools. Member Johns asked how do you get paid? Mr. Hampton explained an example ofhow guests pay them $100 for a surflesson. WBA takes 38% because ofinsurance and the balance goes to the surf school. Member Johns asked why do you need insurance ifyou don't do these activities? Mr. Hampton replied every activity they sell has to be given a certificate of insurance and show they are licensed. WBA demands from each surfschool their current blue card and operating stickers because WBA is audited every year. WBA went with these two surf schools because both comply with everything. What changed was when Hilton took over the concession they decided not to do surflessons, but WBA had a huge demand for lessons. Mr. Hampton asked Hilton ifthey had any objections ifthey sold surflessons to these two organizations. Hilton said no they had no objections. Member Edlao asked are you an independent activity desk? Member Johns asked and where is your office? Mr. Hampton replied absolutely. WBA has no relationship to Hilton. WBA rents a space at Hilton and at the end ofthe month all vendors calculate their sales, report that as gross sales and from that rent is calculated. Member Pacheco asked are you the exclusive activity desk for these surfcompanies? Mr. Hampton replied no, there are other activity desks. Member Pacheco related a similar situation with hiking trails. Mr. Hampton explained in his insurance guide, ifWBA gets fined and found guilty aiding and abetting an unlawful exercise they will discontinue the ability to sell surflessons which could affect other activity desks by preventing them from selling surflessons or anything to do with exposure. He reported activity desks are concerned with a State Act - Recreational Immunity Law which is a 1. Need to get a waiver, 2. Explain all the dangers and 3. Give proper instruction for use. WBA looked up the proper instruction for surfing and that is on dry land. Member Johns stated it doesn't say dry land, State property. Mr. Hampton replied this is all new to him. In August 15, 2006 the issue ofdry land surf instruction came up and he relayed correspondence to DLNR because WBA needed to know. May 3, 2007, his manager was told can't sell on the beach and all surfactivity was stopped on the beach. He received a letter on June 22, 2007 from Land Division stating he is guilty ofaiding and abetting an unlawful exercise. How can that be when he still never got an answer from his original letter? Mr. Hampton expressed ifan activity desk is fined the repercussions will be dramatic.
Mr. Errol Kane I ofDOCARE Enforcement Division referred to Member Edlao's question about permits. When applicants go to DOBOR or Land Division to ask for a permit they are told they don't issue permits. How do you expect them to have a permit? Member Johns asked him to clarify his position. Mr. Kane clarified he is here on his own time and explained he has been enforcing the law at Waikiki Beach for 19 years. He explained no one in Waikiki has a permit to teach and the best way to teach surfsafety on the grass or beach.
Member Edlao asked did you know it was a DLNR beach? Mr. Kane replied yes, of course he knew. Member Edlao then asked knowing that did you think a permit was needed? Mr. Kane replied yes he did. He told his son to go down to get a permit when he started his business. His son met with Steve Molman and Land Division where they
8 had no problem. His son met with Ed Underwood because his son's business was using DOBOR land at the time which Land Division was enforcing and they didn't know where Land Division property begins and ends. They made sure everything was covered and followed all the laws. They even went to Land Division for a permit and were told they don't issue permits. Mr. Tsuji explained the permit is the concession agreement which gives the surfinstructors the right to instruct on the beach. You may come back in 2 or 3 years when this comes up for bid. Mr. Kane expressed other hotels have surfinstruction without permits. Mr. Tsuji replied Land Division is handling the enforcement in this case. Member Johns asked aren't other activity desks using the same surf instructors? Mr. Tsuji indicated that he_has no evidence ofthat. He only has the evidence in Mr. Seibert's letter.
Member Johns asked were you aware ofMr. Hampton's request for clarity? Mr. Tsuji replied no, he was not aware ofit until a few days ago when Mr. Molman advised Mr. Tsuji that he had forgotten about Mr. Hampton's prior request. Mr. Tsuji has never spoken with Mr. Hampton. Mr. Molman explained to Mr. Tsuji that at the time ofthe Hampton's request he didn't say where they were operating or how the money was going to be collected and split.
Ms. Lane Hornfeck, Attorney with Starn, O'Toole, Marcus and Fisher, reported she is Hilton's counsel. Member Agor stated the problem stems from the fact that you have the license to teach surfing and you aren't exercising that right. There are a lot ofpeople who want to teach surfing. And he thinks the fact that activity is dormant under your jurisdiction. Mr. Gerhard Seibert, area Vice President ofthe Hilton Hawaiian Village reported that is possible, but he doesn't know. Under the license Hilton acquired, it gives them the right to sell and conduct surflessons on the beach which they have not exercised. They use their activity desks to sell activities. Member Pacheco asked if another surfcompany wanted to came in would Hilton allow it? What kind of arrangement would it be? Mr. Seibert replied there is no arrangement with either school. These schools are conductor ofcertain leisure activities and through WBA, tell guests what schools are available. Member Pacheco asked are there any other surf schools operating on your property? And prevents others from coming in? Mr.Seibert replied not to his knowledge and he didn't know about prevention. He wouldn't know because he doesn't do enforcement on State property. Member Edlao asked do you feel these two surfinstructors are working under the Hilton concession permit? Mr. Seibert replied no. Hilton's concession permit for the portion for surfinstruction was never activated. Member Edlao asked when WBA came to you did you think to ask where the surf instruction will be held? Member Johns asked wouldn't you find it interesting that Hilton has a concession to allow surfinstruction to occur on a certain area ofthe beach, you have a relationship with an activities desk selling coupons for surfinstruction, and there is surfinstruction in the area you hold the concession on. Wouldn't you say Hilton's involved in this? Mr. Seibert replied no, he does not view it that way because through Hilton's activities desk guest bought certain activities. He would hope those activities were operating within the parameters oftheir licenses and laws. Member Pacheco asked Hilton has the exclusive contract for that area and you're allowing these companies to come in and do a permitted activity you have the right to do, but you're allowing these
9 two surfcompanies to do it. He can't imagine Hilton allowing someone else to come in to rent their beach equipment? Mr. Seibert replied no not quite. Member Pacheco referred to the Hilton advertised package. Mr. Seibert explained WBA handles all activities.
Member Pacheco asked under the concession agreement you can't sublet? Mr. Tsuji replied there are no sublet and no assignment. He had a discussion with Hilton council and there is a management agreement with WBA. All instructors or sales are employees wearing the Hilton logo and there would be a Hilton bank account where all moneys are deposited. It is not like the WBA bank account where they need to authorize to deposit and expend expenses. Member Pacheco asked then it could be contracted out ifit was represented as a Hilton product? Mr. Tsuji replied right ifit was a Hilton operation within the parameters ofthat management agreement. Member Pacheco assumed and asked that the reason Hilton is not doing that is because they have the deep pockets and their exposure and liability with this is much greater because ofliability. Is that right? Ms. Hornfeck asked ifit's possible to make an arrangement with the Board where surf instructors will wear the logo shirts. Hilton would be willing to work it out. She expressed Hilton is concerned with any violations ofthe concession agreement whether subletting or assignment issue. Mr. Tsuji replied it is not only the logo shirts it's everything in the management agreement sent to him for review which went into detail with money collected in the Hilton account. Not a WBA account where expenses are paid out ofthat account. Ifit was under a Hilton operation, no problem, but your client decided not to go that route. Ms. Hornfeck replied Hilton is willing to work out an arrangement. In answer to Member Agor because ofanti-assignment in the contract that is why Hilton did not exercise it. Mr. Tsuji replied the concession agreement is set in stone. Cannot legally amend it therefore must work within that agreement. Ms. Hornfeck replied right.
Member Pacheco made a motion to adjourn for executive session.
lO:43am: Adjourned for Executive Session to discuss its legal rights, duties, privileges, and obligations relating to this matter with our attorney. (Pacheco, Gon)
11:34 am: Reconvened
Ms. Alea Bordeaux representing Kaiser's for All Coalition reported the forming ofthis group in 2002. She came today because the Land Board is going to fine these surf schools $150 each for being there illegally. She believes the real problem is Hilton has breached their concessionaire contract. Although Hilton says they've done this historically in the past, but at the time they were dealing with Clyde Aikau and Hilton was not the concessionaire. Mr. Aikau was the concessionaire. Now that Hilton has it this past doesn't come into play. Her group is concerned with how Hilton got the contract and then breached it. By referring these surfschools it is a breach ofcontract. If it's not listed in the contract you can't do it and also there is no subletting and assignment. The contract says you cannot change it, but Hilton decided to go according to how they will handle the contract. The fine states $150, but this has happened since
10 2006 and the fine should be in the thousands ofdollars. She is concerned because one of the surfschool owner's father is a DOCARE officer and raises ethical questions. All of this is a subversion ofpublic rights. Hilton is trying to expand and will still refer these schools which is illegal. She came today to make the Board aware that entities interests are subverted. To be in business you follow that contract, but Hilton has breached it. Member Pacheco asked is Kaiser a non-profit or ad hoc group ofpeople? She replied Kaiser is an Ad Hoc group ofpeople concerned with that area and related history of issues.
Member Pacheco asked Ed Underwood ofDOBOR did his division at any time give warning to the surfschools they could loose their permit by using the beach? Mr. Underwood replied about a month and a halfago Mike Jones DOBOR Assistant Manager and Mr. Underwood went to the beach and spoke with Mr. Errol Kane and the Manager for WBA. They informed them they cannot conduct commercial activity on the beach. Once you put the boards down on the beach and start instructing that is deemed commercial activity. That can't be done without a permit because stated in the Hawaii State Administrative Rules one must have a permit to do this type ofactivity. Member Pacheco asked did the activity stop? Mr. Underwood replied it came to their attention it was still on-going. Staffearlier this week sent a cease and desist letter stating stop this kind ofactivity because you could jeopardize your operator permits.
Member Pacheco asked Mr. Hampton through WBA you rent beach gear and you're able to do this under the umbrella ofHilton's concessionaire contract? Mr. Hampton replied everything from inflatables and that type, yes. WBA has two responsibilities as a concession stand on Hilton property. Guests will rent a float which they take to the beach or pool. Under Hilton's concession agreement WBA has employees dedicated to that agreement who are paid by Hilton through the income that comes from there. All WBA does is manage them and it's the same with the life guards at the pool who are . WBA employees. Hilton reimburses him for the total cost ofthat lifeguard and they wear the Hilton uniforms and are directed by Hilton. The surfschools are totally through his activity desk.
Member Schuman made the motion to support staffs recommendation. Member John's second.
Chairperson Smith informed Pure Hawaiian, Hot Spots, Hilton Hawaiian Village, LLC., and Waikiki Beach Activities, Ltd., that ifany ofthem wanted to contest the finding of violation or fine they must I) orally request a contested case before the end ofthe board meeting and 2) to submit a written request for contested case within ten (10) days ofthe board meeting.
Unanimously approved as submitted (Schuman, Johns) All voted yes except Member Pacheco.
11 Item C-l Renewal of Special Use Permit to Mid Pacific Communications, Inc. for Use of a Telecommunications Site on Lands within Lihu'e-Koloa Forest Reserve, Kawaihao District, Kaua'i Tax Map Key: (4) 4-2 OOl:por.2.
Mr. Paul Conry, Administrator for Division ofForestry and Wildlife (DOFAW), reported the Board previously approved, but because ofinclement weather was not able to complete and requested to extend the permit for an additional year. DOFAW is in favor ofit and to continue the $750/month rent set by Land Division 2 years ago. Complete it, ifagreeable, can pursue a land license. Submittal asks the Board to authorize a renewal ofthe special use permit through July 13, 2008 then authorize Division to pursue issuance ofa land license for use ofthe telecom site via a request for proposal process following completion ofpermit tee's research which would happen April 2008. Mr. Jack Hendrickson ofMid Pacific Communications is here.
Member Gon asked ofMr. Hendrickson. With the last permit there were a lot ofspecial conditions indicated and Mr. Gon had noted the summit area ofnative forest and concerns with inadvertent introduction ofnon-native species. There was special condition ofconsultation with DOFAWand Kauai Invasive Species Committee. Did you have an opportunity to make the consultation? Mr. Hendrickson explained meeting with Mr. Ken Woods and discussed what the issues were in that area. They made a list ofthe process. Whenever a helicopter goes up there they made sure no plant material was on it. The skids ofthe helicopter were inspected before take offand they make sure it lands on concrete and not on grass. The ohia have been killed by pigs. There were lots ofgoats and pigs there and much ofthe soil was uprooted. The sedge grass is typical ofthis area. The process they took was no landing on any soil or ifany suspicion ofplant material to hose offhelicopter skids and their shoes. Ken Woods says this was all that was necessary. Member Gon replied his consultation relieved his concerns.
Member Johns asked is this on State land not on LP land within the forest reserve? Who is the owner? Mr. Conry replied its State Forest Reserve.
Unanimously approved as submitted (Agor, Gon)
Item C-2 Request for Approval ofDraft Timber Land License No. 2007-H-Ol to Hawaii Island Hardwoods, LLC, and Delegate the Chairperson Authority to Finalize and Issue the License.
Mr. Paul Conry reported staffis working with the applicant and Attorney General's office. The license is the next step is taking one ofthe divisions ofthe department to support lumber industry in the State. Staffhas had various projects to start up the veneer and chip components ofthe industry. This is the 3'd crucial step to establish a saw mill and explained the Waiakea Timber Management administrative history has been laid out. One is for a 5 year term with a provision for renewal ofan additional 5 year term. He explained the provisions on the stumpage negotiated. The stumpage prices the State
12 realizes from this equal or exceeds departmental prices set for each species which was set from a previous Board action. The division anticipates timber revenues will exceed 2.5 million over 5 years from this license. Hawaii Island Hardwoods (HIH) will commence harvesting operations within 28 days from issuance ofthe license. HIH will be responsible for maintaining the roads they are using in the area. HIll will be restricted from shipping logs out ofState and instead promote local processing.
Member Johns asked do we need a public hearing on the island? Mr. Conry replied it was covered by the Waiakea Timber Management. Member Johns asked what happened to Tradewinds? Mr. Conry replied Tradewinds hasn't received their air quality permit yet. They are current with their payments to the State. They are beginning site preparations, but haven't started major construction. July 2008 is when construction will be completed and ifnot that is when stumpage payments in addition will start. Chairperson Smith asked there will be two saw mills? Mr. Conry replied there are two operations, a saw mill and a veneer plant. Member Pacheco asked what is the mechanism for bringing the funds back to DOFAW? Mr. Conry replied all proceeds from the stumpage go to a special fund. It doesn't lapse or go into the General Fund. It is a recurring fund which DOFAW can use for reforestation. Member Pacheco asked is the offroad trail in the same area and ifit is will it hinder operations? Michael Sedino reported it will occur on some existing roads in the Waiakea Timber Management Unit. When active timber operations occur on that road timber will take precedence over ATV and would last about a few months on portions ofthe road. Member Pacheco asked Na Ala Hele would supervise and close it or would it be the timber people? Mr. Conry replied Na Ala Hele. Member Pacheco asked would some ofthose moneys be earmarked for Na Ala Hele or has it been discussed? Mr. Conry replied no, it hasn't been discussed, but there are funding sources for Na Ala Hele. He isn't sure ifit was worked out.
Unanimously approved as submitted (Pacheco, Johns)
Item D-2 Grant of Perpetual, Non-Exclusive Easement to Joseph Skaggs for Access and Utility Purposes, Kekaha, Waimea, Kauai, Tax Map Key: (4) 1-2-02: por.Ol
Mr. Russell Tsuji ofLand Division reported no changes to the Board submittal. Member Gon asked the attorney did you have any problems with the staffs recommendation? Ms. Lorna Nishimitsu replied her client has no objections. She had one correction to staffs findings regarding a grading violation. There was a grading violation for another property in Kekaha. The property they are seeking an easement has had no grading. Chairperson Smith asked is this property adjacent? Ms. Nakamitsu replied no it is not adjacent. It's by the hunter check-in station. Her client received a notice ofviolation and he has been resolving it through her and with the County ofPublic Works.
Unanimously approved as submitted (Agor, Gon)
13 Item D-9 Grant of Perpetual, Non-Exclusive Easement to Hawaiian Electric Company, Inc. and Hawaiian Telcom, Inc. for Guy and Anchor Purposes and Issuance of Construction Right-of-Entry, Waimanalo, Oahu, Tax Map Key: 4-1-26:13 ltemD-10 Grant of Perpetual, Non-Exclusive Easement to Hawaiian Electric Company, Inc. and Hawaiian Telcom, Inc. for Telecommunication and Electrical Transmission Lines and Issuance of Construction Right-of-Entry, Hauula, Oahu, Tax Map Key: 5-4-01:25
Member Johns recused himself.
Mr. Russell Tsuji ofLand Division reported the applicant and attorneys are present.
Unanimously approved as submitted (Schuman, Edlao)
Item M-1 Direct Issuance of a Revocable Permit to Tesoro Hawaii Corporation for Non-Exclusive Pipeline Easements and Related Facilities at Honolulu Harbor, Oahu
Mr. John Dooley ofDepartment ofTransportation (DOT), Harbors Division reported.
Unanimously approved as submitted (Johns Pacheco)
Item M-2 Amendment No.1 to Lease No. DOT-A-03-0001 Traveler Services Concession Lease Lenlyn Limited, Honolulu International Airport
Mr. Ross Smith, Property and Land Acquisition Manager ofDOT, Airport Division reported.
Unanimously approved as submitted (Johns, Pacheco)
ltemD-3 Consent to Assign General Lease No. S-3977, R.K.U. Enterprises Inc., Assignor, to P.I.K.A. Inc., Assignee, Hanapepe, Waimea, Kauai, Tax Map Key: (4) 1-9-5:7.
Item D-4 Cancellation ofRevocable Permit No. S-7174 to J.J. Andrade Slaughterhouse, Inc., and Issuance of Month-to-Month Revocable Permit to Jill J. Andrade dba R.J. Ranch for Pasture Purposes; Kawela and Papaki, Hamakua, Hawaii, TMK: 3rd/4-6-02:07.
14 Item D-5 Land Conveyances Between the State ofHawaii and the County of Hawaii for the Purpose ofRealigJ:Iing a Common Property Boundary and Amend Governor's Executive Order No. 3951 Affected by,such Realignment, Waiakea, South Hilo, Hawaii, Tax Map Keys: (3) 2-2 15: 33 (County Parcel) and 76 (State Parcel) ltemD-6 Set Aside to County ofMaui for Community Center Purposes, Nahiku Homesteads, Nahiku, Koolau, Tax Map Key: (2) 1-2-002:023.
Item D-8 Consent to Assign General Lease No. S-4907, Applicant Robertajean Leilani Keinath, Assignor, to Robertajean Leilani Keinath,Ernest Keolaokalani Keinath and Florencio Alboa Carreira, Assignees, Maunalaha Homesites, Maunalaha, Honolulu, Oahu, TMK: (1) 2-5 24:08.
Mr. Russell Tsuji ofLand Division reported a change to D-6 where the County be issued right-of-entry.
Member Pacheco asked about testimony on D-4. What is the process? Is it an overall plan or Na Ala Hele? Mr. Tsuji replied for a public right ofaccess, Na Ala Hele.
Unanimously approved as submitted Item D-3, 4, 5 and 8 (Johns, Pacheco) Item D-6, unanimously approved as amended (Johns, Pacheco) The Board added a recommendation No.2: That the County be issued an immediate management right-of-entry. ltemE-l Request for Approval to Enter Into an Agreement with the Office of Hawaiian Affairs for the Repair and Maintenance ofthe Royal Mausoleum at Mauna'ala (Oahu)
Mr. Dan Quinn, Administrator for State Parks, reported the Legislature procreated $180,000 to be expended by OHA to help with the effort. The first task State Parks is working on is the mauka rock wall ofthe Royal Mausoleum grounds which needs to be deconstructed and reconstructed.
Unanimously approved as submitted (Johns, Edlao)
Item 1-1 Request for Approval to Enter into a Grant in Aid Capital Improvement Project Contract for Kawaiahao Church Multipurpose Community Facility and Authorize the Chairperson to Negotiate and Execute the Contract
Mr. Tim Lee ofHistoric Preservation reported on item.
Unanimously approved as submitted (Johns, Gon)
15 Item L-I Appointment ofKona Soil and Water Conservation District Director
Mr. Tsuji ofLand Division reported no changes.
Unanimously approved as submitted (Johns, Pacheco)
Item D-7 Enforcement ofViolation of Unencumbered Public Lands, Unauthorized Surfboard Instruction by Pure Hawaiian, Hot Spots, Hilton Hawaiian Village, LLC. And Waikiki Beach Activities, Ltd., at Duke Kahanamoku Beach, Oahu, Tax Map Key (I) 2-3-037:021
Mr. Noa Napoleon testified on this item and understood it was acted upon. He requested to a contested case hearing. He asked ifhe may explain why? Chairperson Smith replied you don't have to. You may just file and the Board/staff will decide ifyou have standing or not which is your right to do so. He added to the testimony he turned in explaining how the four entities were using the beach. During the course ofcomplaints, warnings were issued not to use the beach, and right after these four entities returned to the beach. They have not complied with Mr. Napoleon's knowledge. The $150 fine is not appropriate because these entities are still there today. He suggests revoking the Hilton permit because they are in violation ofa number ofprohibitions. It is not in good faith and in contempt ofthe law. He thinks the fine should be $500 per day per offense. Mr. Napoleon believes Hilton tried to grandfather in the two surfschools. He wanted to contest the decision acted on today. He referred to Hilton's breach ofcontract. Mr. Napoleon explained he was confronted by a DOCARE officer who told him he could not come into the room to testify because ofa restraining order. Member Johns informed Mr. Napoleon that the substance ofyour testimony though was also presented by another member ofthe public. The Board members heard most ifnot almost all of that testimony before they acted and there was also written testimony submitted. AG noted Mr. Napoleon was referring to the testimony by the Kaiser's for All Public Access group. He has the right to testify now. Member Johns explained he has the right to request a contested case and it would be determined whether he had standing. Mr. Napoleon asked would he need to consult immediately? Member Johns replied yes you have 10 days to fill out a form in writing. You get a form and fill it out.
16 There being no further business, Interim Chairperson Smith adjourned the meeting at 12:25 p.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out of sequence to accommodate applicants or interested parties present.
Respectfully submitted, ~~ Adaline Cummings Land Board Secretary
Approved for submittal:
Interim Chairperson Department ofLand and Natural Resources
17 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, JULY I3, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM I32 1151 PUNCHBOWL STREET HONOLULU, H1968I3
Interim Chairperson Allan Smith called the meeting ofthe Board ofLand and Natural Resources to order at 9:02 a.m. The following were in attendance:
MEMBERS
Mr. Allan Smith Mr. Rob Pacheco Mr. Jerry Edlao Mr. Tim Johns Mr. Ron Agor Mr. Samuel Gon III
STAFF
Ms. Charlene Unoki, LD Mr. Sam Lemmo, OCCL Ms. Kimberly Mills, OCCL Ms. Dawn Hegger, OCCL Mr. Dan Polhemus, DAR Mr. William Andrews, DOBOR Ms. Athline Clark, DAR Ms. Jan Mulvey, DOBOR
OTHERS
Ms. Julie China, AG's Office Ms. Linda Chow, AG's Office Mr. Vince Kanemoto, AG's Office Mr. Randy Ishikawa, AG's Office Mr. Greg Mooers, K-4 Mr. John Higgins, D-3 Mr. Bob Duncan, D-3 Ms. Mary Serrao, D-3 Ms. Sherry Kobayashi, D-3 Mr. Jim Whylen, D-3 Ms. Yvonne Izu, D-3 Ms. Marty Townsend, F-l Mr. Shaun Corston, F-l Mr. Keola Lindsey, F Items Ms. Seema Balwani, F-2
{Note: language for deletion is [bracketed], new/added is underlined} Item A-I Minutes ofJune 22, 2007
Member Johns amended Noah to Noa.
Unanimously approved as amended (Pacheco, Edlao)
Item C-1 Request for Final Approval ofProgrammatic Safe Harbor Agreement Covering Hawaiian Goose, Duck, Moorhen, Coot and Stilt for Participants of USDA Farm Bill Conservation Programs and Accompanying Incidental Take Licenses
Item requested by Mr. Paul Conry ofDivision ofForestry and Wildlife (via Ii-mail) to be withdrawn.
Withdrawn (Johns, Gon)
Item K-4 Conservation District Use Application (CDUA) KA-3399 for the Proposed Morrow Living Trust Single Family Residence Located at Haena, Island of Kauai, TMK:'s (4) 5-9-003:010 and 045
Member Agor recused.
Mr. Sam Lemmo, Administrator of Office ofConservation and Coastal Lands introduced Randy Ishikawa from the Attorney General's Office (AG). Mr. Lemmo reported this is a CDUA and the landowners are David and Linda Morrow. The project involves consolidation oftwo parcels into one parcel and the owners would like to build a single family residence. He gave background. Mr. Lemmo asked the Land Board to amend the staffsubmittal beginning on page 7 starting at the analysis to the end ofthe staffreport, but retaining the recommendation which is for denial. He stated this is a convoluted case. Staffhas been working closely with the applicant and the Attorney General's Office to resolve a number ofissues. He recommends amending the submittal starting from the second paragraph under the analysis section until page 13. Member Johns asked ifcopies will be provided? Mr. Ishikawa replied yes, copies ofthis will be provided for the record. Mr. Lemmo explained in a briefsummary, staffis asking to reject the application on three reasons. 1. The involvement review process has not been completed. 2. Staffhas an issue whether this is a developable lot. Under the Haena Hui policy the Board stipulated that ifyou have a good house lot in Haena you would be permitted to build one single family residence, but that didn't extend to every lot. It is not considered a good house lot which is questionable whether it can be developed. 3. As the project was proposed a portion ofthe house located in a limited subzone and in this particular situation houses are not permitted in a limited subzone.
2 The Staff Submittal must be amended by replacing the entire Analysis, Discussion, and Conclusion sections with the following as submitted for this meeting:
I) The environmental review process under Chapter 343, Hawaii Revised Statutes, has not been completed.
2) The parcel is not a good house lot as delineated in the DLNR's Haena Hui policy. The OCCL notes that on January 23, 1981, the Board ofLand and Natural Resources (BLNR) adopted a policy on single family residences in the Conservation District in response to the Haena Hui petition that was approved by the Kauai courts in 1967, without the prior approval ofthe BLNR (the BLNR's Haena Hui policy). The petition created 123 lots. The BLNR subsequently adopted a policy ofallowing one (I) house per lot within the Haena Hui petition approved by the courts in 1967. The OCCL notes Haena Hui is a special case and is the only place in the State ofHawaii that the BLNR adopted a policy whereby lot owners in the subject partition area "would" be granted a permit provided that the lot was a "good house lot," because not all ofthe lots were capable ofsupporting single-family residential development.
Past inquiries pertaining to the potential for residential development on parcel # 45 revealed that it is not a "Good House Lot" in the Haena Hui inventory. Because the parcel has not been identified as a "Good House Lot," the site does not automatically qualify for a single family residence pursuant to the BLNR's Haena Hui policy.
3) The current plans call for a significant portion ofthe single family residence to be built in the Limited subzone ofthe Conservation District in an area outside ofa floodplain or coastal high hazard area. The OCCL further notes the parcel is located in the State Land Use (SLU) Conservation District, and falls within both the Resource and Limited subzones. It appears subject parcel 045 is bisected by the resource and limited subzones and subject parcell0 appears to be wholly located in the Resource subzone.
While it is correct that a single family residence in the Resource subzone ofthe Conservation District may be permitted by the BLNR, HAR §13-5-24(c), the BLNR retains discretion to approve or not approve such a permit. HAR §13-5-34.
In contrast, single family residences in the Limited zone ofthe Conservation District are prohibited except "in a floodplain or coastal high hazard area that conforms to applicable county regulations regarding National Flood Insurance Program and single family residential standard as outlined in this chapter." HAR §13-5-24. This particular restriction on single family residences in the Limited subzone ofthe Conservation District in areas outside ofa floodplain or coastal high hazard area has been upheld in Waimea Bay Associates One, LLCv. Young, etal., 438 F. Supp. 2d 1186, 1191-1192 (D. Hawaii, 2006). In that case, the U.S. District Court observed that the general restriction . on building in the Conservation District was justified as the State had a legitimate government interest in conserving, protecting and preserving important natural resources ofthe State. The court further determined that the exception allowing for single family .residences only in a floodplain or coastal high hazard area was also rationally related to
3 this objective because "the DLNR may have determined that the construction ofsingle family residences in floodplains and coastal high hazard areas in compliance with county regulations pose less ofa threat to the natural resources within the Limited subzone than the construction ofsingle family residences within other areas ofthe Limited subzone." Id. at 1193.
As it is conceded that the area where the house is being built is located outside ofthe floodplain, the only issue remains whether the area where the single family residence is to be sited is within a coastal high hazard area. 44 C.F.R. §9.4, part ofthe federal regulations relating to the National Flood Insurance Program, defines Coastal High Hazard area as, "the areas subject to high velocity waters including but not limited to hurricane wave wash or tsunamis. On a Flood Insurance Rate Map (FIRM), this appears as zone VI-30, VE or V." In this case, the identified site for the single family residence is located within Zone X on the FIRM maps, and not within the areas classified by FEMA as a Coastal High Hazard Area.
Mr. Lemmo reiterated the staffs recommendation remains the same which is to deny this application. Randy Ishikawa ofthe AG's Office clarified and updated the Board that staffand AG has been in extensive discussions with the applicant through his counsel. They have made progress, but have not resolved everything. These 3 issues are remaining. The applicant does not dispute the environmental review process is complete. They are disputing the application and the relevance ofthe Haena Hui policy on this application. And they are contesting staffs interpretation and application ofthe limited subzone rule.
Member Pacheco asked how is a good house lot designated? Mr. Lemmo replied ifwe have a contested case and it moves forward this might be a major issue. The court in 1967 developed an exhibit which included all 123 lots and there were different categories each lot was placed into. Member Pacheco asked it is court record? Mr. Lemmo replied yes, there is court record ofit. There are good house lots and poor house lots. Member Johns asked the way we are going to proceed is, the 180 day period expires in a couple weeks which is part ofthe problem, right? Staffis asking the Board to deny on these three grounds? Then the applicants will ask for a contested case, work it out, and then bring some resolution to us after the 343 has been complied with? Or during that process? Mr. Ishikawa replied he believes it will be during that process. Member Johns asked (directing to Mr. Mooers) are you okay with this?
Mr. Greg Mooers, Land Use Planner representing the Morrow family explained they have requested for a contested case hearing which was submitted yesterday. They are requesting a contested case on a 90 day continuance to complete the negotiations in this regard~ Member Johns replied okay. Member Pacheco asked you are asking for a contested case as well as a 90 day continuance? Mr. Mooers replied correct. Member Johns stated you really don't need that because.... Mr. Ishikawa interrupted saying the 90 day period is by rule or statute.
4 Member Pacheco asked could you explain the different subzones and the points the client brings up with not being in the flood zone? Mr. Lemmo explained Mr. Ishikawa is the expert on this because he recently defended the DLNR on a law suit regarding Waimea Bay Associates. Mr. Ishikawa added which is pending with the 9th Circuit Court. Mr. Lemmo reported in 1994 when staff rules were adopted Chapter 13-5 there was an allowance for a single family residence in the limited subzone where previously it was not allowed. The reason for that was because it was felt a limited subzone had certain constraints to develop these areas for single family residential use, slide, flood, what have you, common natural hazard related constraints. The Board wanted to, he thinks, loosen it up and allow some potential development in these areas. In the plain areas or flood zone areas you may apply for a single family residence, but you may not necessarily get the permit. The reason they did that was because the counties who regulate lands adjacent to State conservation areas were approving permits for single family residence in the plain provided you complied with the flood zone ordinances and the V-zone compliance which is building your residence up high. They loosened it up, but the problem is they didn't it loosen up with respect to building single family residences in the limited subzone. Basically what happened was ifyou could show you had a lot in a flood zone or high hazard area you could apply for a house. But ifit was not in a flood zone or high hazard area you could not apply for a house and could be denied. In some cases lots are split, sometimes a portion ofa lot is in a coastal high hazard area and sometimes not. This is the kind ofissue we are struggling with right now. Member Johns noted some of the former board members, Member Inouye in particular, felt that it seemed counter intuitive that it's okay to build in a limited subzone in a high hazard area. You can only build in a flood zone? Why is that? Why do we have a rule that says that? Member Pacheco asked whether this was made in the rules and is not a policy? Mr. Lemmo replied it's a rule. The case that Mr. Ishikawajust argued and this is exactly what he was arguing, the court basically said the rule is rationale. Mr. Ishikawa reiterated yes there is rationale for the rule and the court said so. Member Johns and Pacheco replied okay.
Member Edlao asked what is the problem in this case? Mr. Lemmo replied the problem in this case is the lot is bisected by the zone boundary. Part ofit is in the conservation and part is in the limited zone. The line in this case is somewhat arbitrary. He doesn't even know how it was drawn. Mr. Lemmo did the boundary interpretation on it, but it was based on his best judgment at the time. It was really difficult to locate the boundary in this case. What happens is the limited portion in this parcel as you read is not in the plain or high coastal hazard area. It is located outside ofit and according to our rule we are not allowed to give a permit for it unless the owners petition to make a change ofthe section or move the house out ofthat section. Don't know ifwe should talk more about this since it's going to a contested case hearing.
Member Johns moved to approve staffs recommendation as amended. Member Pacheco second. Mr. Mooers clarified you've voted to deny to approve a contested case? Member Johns replied that comes later. We can't approve it today because the request was made today. It needs to be processed.
5 Chairperson Smith informed Mr. Greg Mooers, representing David and Linda Morrow, that ifthey wanted to contest the finding they must 1) orally request a contested case before the end ofthe board meeting and 2) to submit a written request for contested case within ten (10) days ofthe board meeting.
Unanimously approved as amended (Johns, Pacheco) ltemD-3 Grant ofPerpetual, Non-Exclusive Easement, Land License and Construction Right-of-Entry to Haseko (Ewa), Inc. for Drainage Channel Purposes, Offshore ofHonouliuli, Ewa, Oahu, Tax Map Key: 9-1-11:seaward of 03.
Ms. Charlene Unoki representing Land Division reported there are no changes. Haseko is requesting to excavate a drainage channel through State submerged lands to benefit the Ewa Beach community along Papipi Drive and Papipi Road, as well as Haseko's Ocean Point project runoff. Mr. Michael Lee, intervener, has appealed the Board's decision on the CDUP with the First Circuit Court. In the event that the Board's decision gets overturned, Haseko is willing to restore that area ifit happens. Staffis requesting permission to proceed with this land license and easement. Staffis also requesting a deposit from Haseko for the amount of$17,775 which Haseko has agreed to pay.
Member Johns asked there is no court order based upon the appeal that would prevent us from proceeding? Did you get a stay or TRO? Ms. Unoki replied no not yet.
Mr. John Higgins, resident ofEwa Beach, reported attending all the meetings regarding the Ewa Beach well and drainage. The government agencies who tested the water for the drainage reported it would not harm the coastline and there are no safety concerns. Therefore, he sees no reason for this not to be allowed. The elementary school floods and children are walking through it. The infrastructure was put in by Haseko at a great cost born by them, which saves the City and County a lot ofmoney and are ready to cross this property once this plan has been approved. Member Gon asked Mr. Higgins ifhe had any problems with staff's recommendation? Mr. Higgins replied no.
Mr. Bob Duncan, resident ofEwa Beach, reported his children attended the elementary school. He has put in sidewalks to the cafeteria to keep the children from getting muddy when it floods. He has asked for this (drainage) 25 years ago and has been at all the meetings. He is all for it.
Ms. Mary Serrao, resident ofEwa Beach since 1959, reported she is in support ofthis drainage. Haseko had completed phase one and she lives in front ofwhere all the flooding had started. The portion not done is at the Ewa Beach Elementary School. She knows Haseko is running the drainage from the Papipi Road area and she thinks it will be a good thing for Ewa Beach.
6 Ms. Sherry Kobayashi, principal ofEwa Beach Elementary School, reported she is here to support Haseko to go forward with the project. She explained how her campus floods a foot ofwater during a rainy day. This project will alleviate some ofthe problems for the school and the residents. Member Johns asked what is the student population? Ms. Kobayashi replied about 300 this year.
Mr. Jim Whylen, resident ofEwa Beach, reported he has 2 children who attended Ewa Beach Elementary and was a former board member ofthe Ewa Beach Neighborhood Board. He supports the project and Haseko. He asks for the Board's support.
Mr. Kai Markell, Director ofNative Rights, Land and Culture at the Office ofHawaiian Affairs (aHA), reported on the importance ofthis issue to his office and beneficiaries. In 1993 the Land Board went through a CDUA for Haseko's Marina which is next door to this drainage outlet. aHA's suit was based on DLNR not assessing traditional customary practices and resources out in that area. That suit went to the Supreme Court. In 1998 the Supreme Court came back to the Land Board and said you didn't do your job which is to properly assess these constitutionally protected traditional and customary practices of the Native Hawaiian people and the resources that these practices rely upon. In 2000, the Land Board went through hearings, again, to look at that one specific issue with regard to that marina. And what happened, again? The findings concluded no more nothing. No more spiritual sites, no fishing village, and no burials where that marina was coming through. Seven months later Hawaiian homeless man was digging on the beach to make a cooking pit and finds iwi (bones). Seven months after Land Board says nothing is there! These iwi turns out to be an ali'i wahine (woman chief), two lineal palaoa (whale tooth necklace) in her hand which are descended from the opu'u Oahu chiefs. Who is she? She was found in the middle ofthe beach where the marina would come through. What is the significance ofthose opu'u? That is Oahu chiefs. Is she Chiefess Oneula? Is she Kanekapolei? The Oahu Chiefess Peleiholani? He related the connection to Punalu'u, Ka'u and the honu (turtles). What is the spiritual relationship? It's notjust about the limu (seaweed). He then related how individuals restored the limu and taught the children about limu. There are documented facts ofQueen Liliuokalani planting limu. He feels for Papipi Road which the county should have addressed years ago. He agreed about the problem ofchildren having to walk through a flooded school. But asked why does the Hawaiian culture has to suffer? He expressed how findings stated there were nothing and its ok? How do you expect Papipi Road drainage to impact the reef when there is a football size marina right up to that beach? Ofcourse, there will be no problem with Papipi. He asked the Board to use your discretion. You may proceed with this approval at this point ifyou are comfortable with your discretion. No amount of bound can undo the harm ifthe court comes back and says, no it was wrong. You can not put the rock back. Pau already. Apologized for his 'eha (pain) and thanked the Board for allowing him to speak
Member Johns explained when the Board approved the CDUP they did make additional changes to reduce the impact to the near shore waters. Not everything Mr. Markell talked about, but the Board tried to make changes to the proposed D&O to try to protect the near shore waters for a lot ofthe purposes that was described and that's on appeal. But other
7 issues, when they had the COUP they thought these were addressed and hopefully they were right. Mr. Markell replied it's interesting another burial showed up a couple weeks ago from a homeless person digging and despite the archaeological surveys finding nothing. It's our homeless people who are finding these kupuna out there. He appreciates Member Johns explanation. Member Gon stated his appreciation ofMr. Markell's willingness to voice this, he knows....Mr. Markell interrupted I don't mean to bring the kamaha to the table, but appreciates the Board for listening.
Member Pacheco asked for clarification ofthe appeal or court case ofthe impacts? Ms. Linda Chow ofthe Deputy Attorney General's office asked did you want to hear from DLNR attorney or Haseko's attorney? Member Pacheco replied whomever. Member Gon added let's double attorney then. Ms. Yvonne Izu attorney representing Haseko reported she represented Haseko in the contested case and the case is on appeal. The intervener, Mr. Lee, did file an appeal in the case. He didn't ask for a stay on the decision and orders either ofthe Board or the court. Member Johns asked what are the general grounds ofthe appeal? Is he doing it per se? Ms. Chow explained no, Mr. Lee is represented by Native Hawaiian Legal Corp. Ms. Izu explained the exceptions that Native Hawaiian Legal Corp. took to the hearing officer's recommendation that were presented to the Board are repeating the same objections on appeal. Member Johns asked based primarily on? Ms. Izu replied based mostly on factual issues that were found by the hearing officer. Member Johns asked water quality? Ms. Chow replied water quality from the storm water. Member Johns affirmed right. Then stated he didn't recall any archaeological issues by the intervener. Ms. Chow replied that it was not as a significant issue. Ms. Izu replied that's correct. As a matter offact, Mr. Markell was offered as a witness and he did submit written testimony in the case. Haseko willingly accepted his testimony without cross examination and it was entered into the record. His testimony was in the record for the hearing officer to consider. Member Johns asked OHA didn't intervene or appeal? Ms. Chow replied no. They did not. She reminded the Board if there are any remains found in the course ofconstruction, Haseko, as part oftheir easement or licenses under law are required to stop to report it. Then record proper procedures for discovery ofany remains. Member Johns asked whether the intervener could have asked for a TRO or preliminary injunction or stay or something. Ms. Chow replied yes it is provided per statute.
Member Pacheco asked lets say this was approved today, will that court process happen in 'i! time frame before Haseko begins construction? IfHaseko lost the appeal would they put it (diggings for drainage) back. Then why even go there ifthere is any chance? Was it a big time delay? Ms. Izu replied possibly. You have to understand there is a possibility of3 tiered appeals. First appeal is to the Circuit Court and they have a schedule she thinks ... Ms. Chow added the briefing will be completed in October. Ms. Izu replied right. That's a briefing. After that you don't know how long it will take for the judge to render a decision. Once the Circuit Court renders a decision, whoever loses at the Circuit Court can take a further appeal to the Intermediate Court ofAppeals. She has had experience in land use cases which appeals at the Appellate Court level has taken 5 years or more. Haseko wants to move forward with this, as you heard from the community, because they have waited a long time for this. They have waited many,
8 many years ofbeing flooded out. As you know the rainy season is coming up at the end ofthe year and they really would like to see some relieffor this winter. When the marina case went to appeal, ofcourse, Haseko was not willing to move forward because there was no way to undo cutting ofthe shoreline and dredging in the ocean. In this case, they are excavating a very small amount, in the rocky shoreline. Should the court say this is wrong. You shouldn't put this drainage chaunel there, it is quite simple to fill in that chaunel and not have storm water go through there. That is the reason Haseko opted to take the risk and go forward with this.
Member Edlao asked what has been done about the iwi that was recently found? Ms. Izu replied the iwi that was found about a month ago was found on State lands on the west side ofOneula Beach Park. It is not within the project site.
Unanimously approved as submitted (Johns, Agor) ltemD-l Consent to Assign General Lease No. S-3595, Richard Alister Wilson, Assignor, to Opportunity Management Hawaii, Inc., Assignee, Waiakea, South Hilo, Hawaii, Tax Map Key: 3fd/2-2-50:86.
Ms. Charlene Unoki ofLand Division reported staffhas no changes.
Unanimously approved as submitted (Pacheco, Johns)
Item D-2 Authorization to Obtain a Right-of-Entry from East Maui Irrigation Company, Limited., a Hawaii corporation, and Delegation of Authority to Execute a Right-of-Entry at Pauwalu, District ofHana, County of Maui, Hawaii, identified as Tax Map Keys: (2) 1-1-8:07 & (2) 1-1-8:10.
Ms. Charlene Unoki ofLand Division reported staffhas a monitor and the monitor needs permission to go onto East Maui Irrigation Co. (EMI) property and this is why staff is asking to enter into this Right-of-Entry with EM!. Member Johns asked who is the monitor? Ms. Unoki replied Morris Atta.
Unanimously approved as submitted (Pacheco, Gon) ltemD-4 Resubmittal- Consent to Assign General Lease No. S-5376, Ronald K.S. Wong, Shirley Wong, Shawn C. Kadooka and Dominic K. Kadooka, Assignor, to Shawn C. Kadooka and Dominic K. Kadooka, Assignee, Waimanalo, Koolaupoko, Oahu; Tax Map Key: (1) 4-1 008:079.
9 Ms. Charlene Unoki ofLand Division reported staffhas discussed the assigmnent with the Department ofHawaiian Home Lands and they have no objections. We require the Board's consent to finish the assigmnent. There are no changes to the submittal.
Unanimously approved as submitted (Gon, Agor)
Item J-I Issuance ofRevocable Permit for the Operation of a Trailer Boat Storage Facility to Waianae Ice House Partnership, Located at the Waianae Small Boat Harbor, Island of Oahu.
Ms. Charlene Unoki ofLand Division reported. Member Johns asked are they ok with this? Ms. Unoki replied she thinks he is.
Unanimously approved as submitted (Gon, Johns) ltemJ-2 Request to Write-OffUncollectible Accounts
Mr. Bill Andrews, Property Manager for Division ofBoating and Ocean Recreation (DOBOR) sitting in for Mr. Ed Underwood. He reported background. Member Johns asked who the principals were for #8 and #9? Ms. Jan Mulvey ofDOBOR replied Ronald Uehara was who the letters were addressed to.
Unanimously approved as submitted (Johns, Pacheco) ltemJ-3 Approval in Principle ofDirect Lease to Honolulu Marine LLC for Constrction of a Shipyard and Limited Right-of-Entry at Keehi Small Boat Harbor, Oahu, Tax Map Key: (I) 1-2-025:por.024.
Mr. Bill Andrews ofDOBOR reported background. Member Johns asked what he thinks the estimated cost the lessee will spend on this? Mr. Andrews replied staffwould have to go to appraisal and review on that. Member Johns asked what was the reason for going to a direct lease as oppose to a ? (can't hear) lease? Mr. Andrews replied that went back to 2005 and there was a senate confirmed resolution. It was before his time. Member Johns stated he didn't think senate has the ability to order the Board to enter into a lease. He doesn't think that is what they are doing in their resolution. They are saying you have the authority. Member Gon asked was this an under-utilized authority and they just wanted to ....Member Johns interrupted yes. He didn't know why the senate did that. But we have the ability to enter into a direct lease under Chapter 171-51 b anyway. Maybe .they're telling the Board it is a good idea. Member Johns asked for the boating guys, you are comfortable this is a good fit for what is going on in the harbor right now? Mr. Andrews replied yes right now. There is an area north ofthat they would like to expand, but it's taken right now for other use. The Marine Education Center had some discussion to move the balance to Honolulu Harbor to the area DOBOR utilizes right at the boat
10 ramp. Then move DOBOR further to the south side where the motor cross track is going in.
Unanimously approved as submitted (Johns, Pacheco)
Item F-4 Request for Authorization and Approval to Issue a Papahanaumokulikea Marine National Monument Research Permit to Dr. Greta Aeby, University ofHawai'i, Hawai'i Institute ofMarine Biology (HIMB), for Access to State Waters to Conduct Coral and Fish Disease Research Activities.
Mr. Dan Polhemus, Administrator for Division ofAquatic Resources (DAR), reported background. The Division strongly supports this research based on its scientific merits. Staffrealizes there is an issue with the applicant in this permit that she allegedly violated a prior permit. Division ofConservation and Enforcement (DOCARE) investigated and there is a draft submittal being prepared by DAR. It has yet to come before the Land Board or before a court. Blaine Rogers ofDAR has been in discussions with U.H.'s general counsel. Staffis asking this permit submittal be deferred in order for further discussion to see ifthey can work out a solution in regarding the alleged violations. If not, staffwill come back to the Land Board with the submittal as originally intended.
Ms. Marty Townsend ofKUHEA urged the Board not to defer since a draft submittal to h deny a permit for a year was before the Board on January li . She said denial does not prevent Dr. Aeby from coming before the Board for future permit applications. Member Johns stated that deferring does not give it to her. Ms. Townsend said the violations will set a precedent for future permittees. Member Johns asked what ifthe criminal or civil actions conclude there was no violation? Are you asking uS to deny the permit on the basis ofallegations she did something wrong as opposed to finding that she did something wrong? Member Pacheco asked for clarification ofthe rule language requiring denial ofthe permit? Ms. Townsend replied it is in sec. 13-60.5-6 (a)(3) that the Board shall consider whether an applicant has violated or not complied with a term or condition, and shall deny an application based on past violation. Member Johns asked if that conclusion that there has been a violation or non-compliance is in accordance with due process? Ms. Townsend gave further discussion against deferral.
Mr. Dave Lonborg, from U.H. Office ofGeneral Counsel, said this is a matter ofdeferral at this time and wants to work this out very quickly in the limited time to do this. He wishes resolution in the time available before the cruise.
Motion made to defer. All approved deferral. (Johns, EdIao)
II Item F-l Request for Authorization and Approval to Issue a Papahiinaumokuiikea Marine National Monument Education Permit to Carlie Wiener, State ofHawaii, Department of Land and Natural Resources, Division ofAquatic Resources (DLNRlDAR), for Access to State Waters to Conduct Education and Outreach Activities.
Mr. Dan Polhemus ofDAR reported this is an education permit from one oftheir DAR staffand gave background.
Ms. Marty Townsend ofKAHEA reported the following applies to the rest ofthe permits submitted. They are concerned with the bioprospecting language on condition #8 and the cumulative impact ofresearch activities in the NWHI. And, to add these three additional conditions: a daily collection log, an incident reporting procedure and a prohibition of waste water dumping within State waters. Member Johns asked what did the Board vote on because he wasn't at the June 8th meeting? Mr. Polhemus replied the Board voted on a clause in one ofthe special conditions which was fully imbedded by the State and Federal partners. By OHA's request, the language was crafted by OHA and the AG, which made direct reference to bioassay and bioprospecting. This caused a considerable amount ofconsternation within certain constituencies. After some debate it was agreed to remove the reference to bioassay or bioprospecting and simply say "not for commercial purposes" which would encompass such activities without directly listing them. Member Johns asked and this is what the Board voted on? Mr. Polhemus replied yes and all future permits will utilize that language.
Member Johns asked what did the Board do about the special conditions? Mr. Polhemus replied the Board voted to accept the set ofspecial conditions fully imbedded by the AG, general counsel offices, and respective Federal agencies. Member Johns asked does KAHEA's testimony ask you to change those again? Mr. Polhemus replied he has not seen the testimony which was provided to the Board. Member Pacheco said the testimony regarding waste water dumping is law. Staffcan't put everything that's not legal or all the laws in the permit. Ms. Townsend reported KAHEA's concern is currently waste water dumping is allowed in Federal waters and it's unrealistic to expect scientists to read the law. By putting it in the permit conditions a statement that says "while you're maybe allowed to dump in Federal waters you are not allowed at all to dump in State waters." is prevention. Member Pacheco asked isn't it NOAA who operates the ships and are in charge ofall that? It's not the scientists who go out and dump sewage. It's the operators ofthe ship. And wouldn't you think NOAA knows the laws to operate the ships? Ms. Townsend replied these are regular people like us who aren't lawyers or administrators operating the ships and this is one opportunity to prevent something that could have a disastrous affect. It just makes it clear.
Mr. Polhemus reported both our Office ofthe Attorney General and the White House Counsel on Enviromnental Quality have recommended against restating the law within the context ofspecial conditions. They consider it superfluous and urmecessary.
12 Mr. Shaun Corston, Acting Superintendent ofPapahanaumokuakea, spoke on behalfof NOAA. He clarified a misunderstanding ofwaste water dumping in the monument. The NOAA ships do comply with current environmental regulations. They treat all waste water coming out. Iftalking about black water discharge it goes through MSD systems. There is no problem with the treatment systems on any ofthese vessels. There have been some misunderstandings articulated in previous Land Board meetings as well as in the press. Member Edlao asked ifthe ships recycle plastics, aluminum cans or are they dumped in the ocean? Mr. Corston replied no they are not discharging garbage plastics they are in compliance with MARPOAL Annex 5 and plastics discharge. Within the monument they cannot dump or discharge. Whether or not ifthey are all recycling all aluminum cans he didn't know and would need to check. He can say for the Hi'ialakai there is an effort to advance greening measures on board the ship.
Member Johns moved to approve. Member Pacheco second.
Unanimously approved as submitted (Johns, Pacheco) With the understanding that the bioprospecting language be consistent with the Board's action ofJune 8, 2007.
Item F-2 Request for Authorization and Approval to Issue a Papahiinaumokuiikea Marine National Monument Conservation and Management and Research Permit to Seema Balwani, National Oceanic and Atmospheric Administration, Pacific Island Fishery Science Center, Coral ReefEcosystems Division (CRED), for Access to State Waters to Remove Derelict Fishing Gear and Conduct Ecosystem Research Activities.
Mr. Dan Polhemus ofDAR reported background. Staffwill be conducting a pilot test with an electronically powered unmanned aerial vehicle to determine whether this could work for a non-invasive census ofmonk seals and other mega fauna in the monument. Chairperson Smith asked aerial vehicle? Mr. Polhemus explained yes it's an unmanned aerial vehicle which is launched from the ship and recovered from the water. He noted this was originally part ofthe permit application. Because ofreviewer concerns regarding the gasoline powered version and possible gasoline escaping when picked up from the water, it was withdrawn. Then it was determined an electrically powered version could be used that didn't have such issues and it was asked ifthis could be put back in. Member Gon asked the version he has does not show this. At least not in the intended activities where the applicant had withdrawn this portion, but it's described later? Mr. Polhemus replied yes what had happened was the applicant applied for it had reviewer concerns, withdrew it, and then realized late in the process they could use an alternative VAV that satisfied reviewer concerns. The submittal does not accurately reflect what the applicant now wishes to do. The piece they originally applied for is still operational. Overall, trying to test non-invasive technologies is useful. Fewer human impacts on the beaches and shorelines the better.
13 Member Gon asked the artificial reefmatrix structure retrieval, was that a planned retrieval or a correction? Mr. Polhemus replied it was a planned retrieval. Those things have to sit in place for a time to accumulate critters. This is pursuant to what the Land Board approved last year for the census ofmarine life. Member Johns asked this is going to come up on all these permits regarding the cumulative initiative and any research plan. Mr. Polhemus reported Randy Kosaki is currently chairing the effort to put together the research plan for the Monument. And that is already in progress and was discussed recently. It looks like it's on a parallel track to be completed at least in draft form for the public comment at or near the same time as the management plan for the Monument. Member Johns asked next January? Mr. Polhemus replied correct. Member Johns asked when next season's set ofpermits come to the Board you're going to have...Mr. Polhemus interrupted presumably we're going to have both a management plan and a research plan. Member Johns added and it will address the cumulative impacts and then be proactively driven by those plans as opposed to what pre-existed. Mr. Polhemus replied you will certainly have a prioritization ofactivities. Staffdid give the Board an assessment based on the permits that came in for researcher days per atoll which was presented to the Board by Wayne Haight. Member Johns replied right and they appreciate that. The two cumulative impacts are one thing, but in terms ofa proactive plan that has priorities and what management directives or goals are as important to the Board. They are separate, but are related. Mr. Polhemus added he has been chasing the system since the Monument designation because when staffwas going forward with the sanctuary designation they were getting the policy in place and then create a protected area. The president came along and, in some ways, did them a favor by creating a protected area, but at the same time caught staffflat footed on some ofthe policy development which is still in progress. And, that is why you see the current dynamics. Member Johns replied that is an explanation the Board would probably be less receptive to instead ofgoing forward. Mr. Polhemus replied he expects you'll be less receptive as time goes on.
Member Edlao asked the applicant when they go out have they come across any recyclable material? Plastics, bottles, cans like that? Ms. Seema Balwani replied a lot of cans and bottles end up on the beaches on shore ofthe atolls. Staffs picks up the conglomerates and puts them in a container and bring them back for recycling. Member Edlao emphasized the need to recycle wherever possible. Ms. Balwani clarified they do not bring back the plastics because the ships don't have the capacity on board. Mr. Polhemus added the shear volume that washes up on the Northwest Hawaiian Islands is shocking. It would take 15 Hi'ialakais to bring out all the debris and six months later it would all be there again. And he reiterated the researchers pack out everything that is brought in.
Mr. Keola Lindsey, advocate ofthe Native Rights and Agriculture Division ofOHA reported DAR staffhas bounced OHA's comments on this permit application back to them as though its solely OHA's responsibility to educate permit applicants on Hawaiian culture and traditions. OHA believes the majority ofthat responsibility initially falls on the applicants as they go through their permit application process. That begins with them not only consulting with the Office ofHawaiian Affairs, but with members ofthe Native
14 Hawaiian community. OHA understands that efforts to seek knowledge about traditions and cultures from individuals is a very delicate thing and it can't happen in one sitting. But the applicants should be prepared to go through that process and gain that traditional cultural knowledge as they work on their permit applications that require them to explain how their research is going to enhance cultural knowledge within Hawaii. His second comment is that Native Hawaiian community members have indicated that once the research materials are finished with, it be given back to practitioners for proper caring and eventually be put back however they see fit. They understand that process needs to be worked out, but through consultation with native Hawaiian community members they hope they can identify a process that everyone agrees to and provide that respect for these specimens. The reason for that is Hawaiian traditions indicate that natural resources are cultural resources and the beginnings ofman begin with the coral polyp as emphasized in the kumulipo. These are things that should not be disposed ofand should be cared for by those who have that knowledge.
Member Johns replied he agrees 100%. The monument is special because it is imbibed with the cultural sensitivity that a lot ofthe other protected areas in the federal system never had. He would be interested to see why or how the cultural practitioner on board or the cultural protocols ahead oftime and after how those are integrated into the co-trustees development ofthe special conditions and/or management plan or research plan going forward. It's been part ofthe reserve for a long time. He asked has it been dropped? Mr. Polhemus replied no. He explained OHA has a representative that sits on the management board who is Heidi Guth. These issues come up frequently as was pointed out. Staffhasn't been accommodating OHA hasn't been perfectly reconciled as ofyet. Before anyone goes up there they are required to have a cultural briefing and that is already part ofthe permit process. DAR is not properly equipped to educate on culture their expertise is lies in natural resources and biology. They do look to OHA for guidance to the resources which that the researchers could obtain the degree of knowledge they would like to have. The degree for which OHA is directly involved versus simply say here is the path you go down, but how you choose to follow that path is your decision. That is being worked out. In regard to specimens, it's very expensive to go to the monument to obtain them. At this point researchers tend to voucher them indefinitely. It can be used by various researchers for various projects. Once they have a sample you want to use it fully. Ifthere comes a time when a specimen becomes no longer used, scientifically, then they will be glad to convey it back to the native Hawaiians for ~he proper protocol in terms ofreturning it to the environment from where it came. Member Johns replied that needs to be built into it ifit hasn't already. Mr. Polhemus answered staff is working on a material transfer agreement that essentially is the loan form. That governs specimens. Both parties, State and Federal, claim underlying title. That document states although the research took it out, they can use specimens, but they don't own them.
Member Pacheco asked where in the management plan are the cultural protocols addressed? Mr. Polhemus replied they are worked in as a permitting process and are addressed there. OHA has been involved with the joint permit since the start ofthe monument. They are integrated fully in the process. Member Gon asked that integration
15 not withstanding, he detected in the comments Mr. Lindsey made, a feeling that although aHA is an active partner in this, that they shouldn't completely bear the responsibility that cultural needs are met. Mr. Lindsey replied aHA absolutely acknowledges their shared responsibility in educating others, but emphasized shared responsibility not sole responsibility. Member Gon replied he does empathize with Mr. Polhemus's comments that DAR staffis not the best body to take the lead to work out the details ofwhat proper cultural protocols should be. Then maybe aHA is in a better position to. Some ofthe comments were ifaHA could help by compiling a list ofcultural practitioners and a set ofresources or briefing materials that would provide consistency. Some researchers are barely or not even aware or even opposed to the idea ofthe cultural value of Papahanaumokuakea. He puts it back to aHA again. Mr. Lindsey replied definitely. aHA is willing to assist and use any expertise and resources they have. But there will be times when they may not have all the resources and shouldn't be the end all for consulting with the Hawaiian community.
Mr. Lindsey reported his testimony stands for rest ofthe agenda items.
Member Johns moved to approve. Member Edlao second.
Unanimously approved as submitted (Johns, Edlao) With the understanding that the bioprospecting language be consistent with the Board's action ofJune 8, 2007.
Item F-3 Request for Authorization and Approval to Issue a Papahiinaumokuiikea Marine National Monument Research Permit to Dr. Ruth Gates, University of Hawai'i, Hawai'i Institute ofMarine Biology (HIMB), for Access to State Waters to Conduct Coral Disease and Coral Bleaching Research Activities.
Mr. Dan Polhemus reported on submittal background.
Mr. Keola Lindsey reported appreciating the efforts ofone applicant from Agenda Item F-l who consulted the aHA and went outside into the Native Hawaiian Community to consult with others outside ofaHA's reach. Mr. Dan Polhemus reported she is an employee ofDAR and was encouraged to consult with the Hawaiian Community and she did it. IfaHA wants this staffmember be exemplary and explain how she did it and the best way to do this. Member Pacheco asked ifthis is something that works maybe it could built into the management plan? Mr. Polhemus replied absolutely it provides a basis for discussion and policy.
Unanimously approved as submitted (Johns, Pacheco) With the understanding that the bioprospecting language be consistent with the Board's action ofJune 8, 2007.
16 Item F-5 Request for Authorization and Approval to Issue a Papahiinaumokuiikea Marine National Monument Research Permit to Jennifer Salerno, University ofHawai'i, Hawai'i Institute of Marine Biology (HIMB), for Access to State Waters to Conduct Coral Microbial Pathogen Research Activities.
Mr. Dan Polhemus, Administrator ofDAR, reported that all these items are for the same cruise on the Hi'ialakai in August. He gave background. He noted this is an area of increasing concern. The idea you might have microbes and bacteria that work hand-in hand with disease and might get into these systems and weaken the corals. It certainly seems to be happening in the Caribbean.
Unanimously approved as submitted (Johns, Pacheco) With the understanding that the bioprospecting language be consistent with the Board's action ofJune 8, 2007.
Item F-6 Request for Authorization and Approval to Issue a Papahiinaumokuiikea Marine National Monument Research Permit to Dr. Hans Van Tilburg, National Oceanic and Atmospheric Administration, National Marine Sanctuary Program, Maritime Heritage Program (MHP), for Access to State Waters to Conduct Maritime Archaeological Survey Activities.
Mr. Dan Polhemus ofDAR reported on submittal background and that it is long standing research.
Unanimously approved as submitted (Johns, Pacheco) With the understanding that the bioprospecting language be consistent with the Board's action ofJune 8, 2007.
Item F-7 Request for Authorization and Approval to Issue a Papahiinaumokuiikea Marine National Monument Research Permit to Dr. Stephen Karl, University of Hawai'i, Hawai'i Institute of Marine Biology (HIMB), for Access to State Waters to Conduct Coral Genetics Research Activities.
Mr. Dan Polhemus ofDAR reported background.
Member Gon commented after reviewing the set ofresearch items related to the health of coral reef, he wanted to point out that this board is although concerned with the human impacts on the Northwest Hawaiian Islands, Papahanaumokuakea, we should be cognizant ofhow important some ofthese research items are with regard to understanding what the processes are and what the threats are. And that well we don't
17 want any capricious visits to the place the list he has seen seems like a serious list of items that reflects the needs ofthat place. Member Johns stated for us non-scientists it would be easier for us to evaluate this in the context ofa management plan. Member Gon agreed. Mr. Polhemus added clearly acknowledged. Although, you can put boundaries around a place, you can claim it is protected and manage it very stringently, invasive species, marine debris, coral disease and climate change are all still going to find their way up there. No amount ofregulation will stop them. You have to be able to understand the affects that those large scale stressors are having on your system and then try to manage them as best you can.
Member Johns asked are these the last set? Mr. Polhemus replied there are permits coming up for research and monitoring program ofthe Coral Reef Ecosystem Division which is largely observational. It's a long term monitoring program that spans the Pacific and one phase occurs at the Northwest Hawaiian Islands. Member Edlao asked a lot of these researches are continuation configures? Mr. Polhemus replied most ofthese permits were approved by the Board last year and there are continuations. But important to note ifyou look at the numbers ofspecimens staffare asking for, they are ceilings asked for last year and the researchers are working within the bonds ofthose previously established ceilings. Member Edlao asked did staffget feed back from them on what happened on previous research? Mr. Polhemus replied yes staffhad provided a HIMB quarterly full color report on these projects. He hoped staffsent them to every member ofthe Land Board, but assumed they didn't. Member Edlao asked could they please provide them to the Board members. Staffreplied they will do that.
Unanimously approved as submitted (Johns, Pacheco) With the understanding that the bioprospecting language be consistent with the Board's action ofJune 8, 2007.
Item K-l Conservation District Enforcement File HA 06-08 Regarding Unauthorized Multiple Tree Removal by Matthew B. Ornstein Located at Laupahoehoe, North Hilo, Island ofHawaii, TMK: (3) 3-6 002:033 Mr. Sam Lemmo, Administrator ofOffice ofConservation & Coastal Lands (OCCL), reported the first letter sent in stated the landowner didn't have a problem. The second letter stated they changed their mind and they did have a problem. They did cut a lot of trees. He didn't have a problem with the payment, but he couldn't base it on a letter and the landowner is not here. To reduce the fine is not consistent with how staffruns these kinds ofcases. He defers to the Board. And staffdoesn't have a problem with payment plan type situations.
Member Pacheco asked wasn't the Nature Conservancy trying to get through an invasive species law to allow cutting ofinvasive species in the conservation district? What ever happened to that? Mr. Lemmo replied there was a bill proposed to allow the removal of invasive trees without a permit. Member Johns stated whether it is invasive or not you should use good forestry practices. Mr. Lemmo replied yes, but not all the trees are
18 invasive and might not be native. Member Gon asked looking at the pictures it looked like they were clearing a path. Did the landowner voice what their motivation was? Member Pacheco replied refer to Exhibit 8 regarding old Hawaiian ruins. Mr. Lemmo replied normally staff would not reduce it. The only reason you would reduce it is the owner is saying he can't pay. Whether or not that is a legitimate reason to reduce it or not is the Board's judgment. Member Edlao replied and asked it says 60 days. Why don't we just extend it further? Mr. Lemmo replied give them more time to pay. Chairperson Smith read from the second letter what the landowner wants which is less fine and a payment plan. Mr. Lemmo explained he didn't have a problem giving him a longer period to pay, but it's an additional thing to keep track of.
Member Pacheco asked what about community service? Has that ever been done? Member Johns joked what, cut trees?! All laugh. Member Edlao stated why don't the Board extend it then and let the landowner know they have to stay on the payment plan and ifthey miss then...Mr. Lemmo added then they would have to come back to the Board. Member Pacheco suggested instead ofkeeping track, why not have an extended period oftime to pay it off. Member Edlao replied give him 6 months to pay the $2500. Chairperson Smith commented this is very reasonable. Mr. Lemmo replied he understands the landowner's concerns, but to purchase a big property like that they must have some kind ofmoney.
Member Edlao moved to amend the time period from 60 days to 6 months to payoff. Member Pacheco second.
Unanimously approved as amended (Edlao, Pacheco) Extend payment to 6 months.
Item K-2 Appointment and Selection of a Hearing Officer for Contested Case OA-07-06, in Regards to Conservation District Enforcement File OA 07-31 for Unauthorized RepairlReconstruction of a Boulder Revetment by Michael Dailey Located at Mokuleia, Island of Oahu, TMK: (1) 6-8-003:018
Mr. Sam Lemmo ofOCCL reported background referring to the Dailey case on the North Shore. He has the petitions not included in the staffreport, one on behalfofDaily and one from the neighboring condominium association. Staffwill defer to the AG on how to deal with the neighboring petition. Chairperson Smith asked going in the same direction? Mr. Lemmo replied generally speaking you don't have third party people asking for contested case hearings on enforcement cases. When the hearing officer commences the hearing they'll have a hearing outstanding and at that point then the officer will consider whether the neighbor should be a party or not. Member Pacheco asked how are the hearing officers appointed? How does that happen? Chairperson Smith replied there is a battery ofthem that are qualified and we've used them in the past. For instance, the last one we chose was for Papipi Road. He left the room to take an important phone call. He deferred to Member Johns. Member Johns replied the Board has the authority to do it,
19 but normally it is delegated to the Chair and he does it. Member Edlao explained the Board wants certain person and ifhe is not available then it comes back to the Board. Member Johns replied the Board authorizes the appointment and then the Chair chooses amongst the people. Mr. Lemmo stated staffhas a big folder ofpotential hearing officers depending on availability and fee staffwill present three at the top and then the Chair will choose.
Unanimously approved as submitted (Pacheco, Johns)
Item K-3 Extend the Processing Period an Additional 90-Days for Conservation District Use Application (CDUA) HA-3405 to Develop a Sustainable Commercial Koa Timber Forestry Operation in South Hilo, Hawaii, Papaikou and Paukaa Districts, Island of Hawaii, TMKs: (3) 2-7 001:001 and (3) 2-8-001:002
Mr. Sam Lemmo ofOCCL reported on staffsubmittal. The problem is and it's alluded to in the staffreport was a lot ofissues carne up on the draft and on the impact statement. They are going to require a lot more time to address those concerns. They will make the changes to the environmental document, submit the final ErS and then we'll have 30 days to review the final EIS for adequacy. Member Pacheco asked are we required to give the 90 days and ifwe didn't and they couldn't resolve those things they would come back. If the Board denies this now staffwould come back recommending denying it because of the unresolved issues? Mr. Lemmo replied you could do that. It seems to him we need to give them a chance and the purpose ofthe extension in the law is when you have to do an EIS its anticipated the process takes longer than 180 days there is a provision allowing for extensions. Member Gon asked the authority? Does it limit us to 90 days? Mr. Lemmo replied that is all they are asking for. The AG's advice is we can't go more. Member Gon asked even ifwe anticipate it? Mr. Lemmo replied it will not be enough. It would have to come back and ask for another extension.
Unanimously approved as submitted (Pacheco, Johns)
Item L-l Permission to Hire Consultants for DLNR CIP Projects
Item L-2 Certification of Election and Appointment ofWest Oahu Soil and Water Conservation District Directors
Item L-3 Permission to Hire Civil/Environmental Engineer for Wetland Restoration at Pouhala Marsh State Wildlife Sanctuary, Island of Oahu, Funded by DOFAW Wildlife Operating Funds ltemL-4 Request for Authorization for the Geological Survey, United States Department ofthe Interior (USGS) and its Agents, Employees, and Consultants, to Enter Upon Private Property for the Purposes of
20 Investigating, Installing, Operating, and Maintaining Remote Sensing Gauges, and Related Instrumentation Equipment, Conducting Inspections and Hydrologic, and Hydraidic Calculations on and around Streams, Dams, and Reservoirs located within the State of Hawaii pursuant to Hawaii Revised Statutes Chapter 179 and Authorize the Chairperson to negotiate and execute agreements with the USGS for FY 2007 & 2008
Item M-1 Conveyance of a portion ofthe Road Remnant Old Government Road, adjacent to New Volcano Road, Federal Aid Project No. F-2(4), County ofHawaii, Tax Map Key: (3)1-7-19: Road.
Item M-2 Issuance of a Direct Lease Schuman Aviation Company, Honolulu International Airport ltemM-3 Amendment No.2 to State Lease No. DOT-A-05-0026 Application for Additional Space Dorvin D. Leis Co., Inc., Honolulu International Airport
Item M-4 Issuance of a Hangar Facilities Lease to Andrew Doughty Lihue Airport, Island ofKauai, State ofHawaii
Unanimously approved as submitted (Johns, Gon)
There being no further business, Interim Chairperson Smith adjourned the meeting at 11 :00 a.m, Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted, ~ ~
' ,~ Adl a me Cummmgs Land Board Secretary
Approved for submittal: All~Hc4 Interim Chairperson Department ofLand and Natural Resources
21 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, JULY 27, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Member Tim JoOOs called the meeting ofthe Board ofLand and Natural Resources to order at 9:09 a.m. The following were in attendance:
MEMBERS
Mr. Jerry Edlao Mr. Tim JoOOs Mr. Ron Agor Mr. Samuel Gon III Ms. Taryn Schuman
STAFF
Ms. Charlene Unoki, LD Mr. Sam Lemmo, OCCL Ms. Kimberly Mills, OCCL Mr. Dan Quinn, SP Mr. Dan Polhemus, DAR Mr. Ed Underwood, DOBOR Mr. Dean Aoki, CO
OTHERS
Mr. William Wynhoff, AG's Office Ms. Linda Chow, AG's Office Ms. Dawn Chang, Item K-4 Mr. Earl Matsukawa, Item K-2 Mr. Jim Shon, Item K-5 Mr. James Case, Item K-5 Ms. Elizabeth Stack, Item K-5 Ms. Frances Mossman, Item K-5 Ms. Lee Stack, Item K-5 Mr. Alan Stack, Item K-5 Mr. Jack Gilmare, Item K-5 Mr. Bill Tam, Item K-5 Mr. Bob Liljestrand, Item K-5 Ms. Patricia McHenry, Item K-5 Mr. TJ Kwan, Item K-2 Mr. Peter Lee, Item J-2 Ms. Melissa Ling-lng, Item J-2 Mr. Gary Ka'aihui, Item J-2 Mr. Ziggy Livnat, Item F-I Mr. David Lonborg, Item F-2 Ms. Greta Aeby, Item F-2 Ms. Marti Townsend, Item F-2 Ms. Stephanie Fried, Item F-2 Mr. Frank Stanton, Item F-2 Mr. Ross Smith, DOT
{Note: language for deletion is [bracketed], new/added is underlined}
Member Tim Johns announced he was filling in for Interim Chairperson Allan Smith.
ltemA-1 Minutes ofJuly 13, 2007
Member Schuman recused herself. Moved to defer due to more changes.
Deferred. (Agor, Gon)
Item K-4 Request for a time extension for Conservation District Use Permits (CDUP) OA-3360 and ST-3176 for Sandwich Isles Communication to build a statewide Submarine Fiber Optic Cables system with landings at Waimea, Kaua'i, TMK (4) 1-2-02:032; Makaha, O'ahu, TMK (1) 8 4-02:047; Sandy Beach Park, O'ahu, TMK (1) 3-9-15:001 & offshore ofTMK (1) 3-9-012; Oneali'i Homesteads, Moloka'i, TMK (2) 5-4 06:019; Wahikuli, Maui, TMK (2) 4-5-21:015; Makena, Maui, TMK (2) 2-1-7:072; and Kawaihae, Hawai'i, TMK (3) 6-1-04:020.
Mr. Sam Lemmo, Administrator for Office ofConservation and Coastal Lands (OCCL), reported on item. Staffbelieves Sandwich Isles Communication has just cause and recommends the Land Board approve their request to extend the permit until July 27, 2010 for completion and initiation for July 27, 2007. Member Johns asked which is recommendation for '08 or '077 Did they start construction today? Mr. Lemmo replied it's an extension to initiate until July 27, 2008 and to complete July 27, 2010 which is the goal. Ms. Dawn Chang, representing the applicant, concurs with staffs submittal as amended.
Unanimously approved as amended. (Schuman, Gon) The recommendation was amended to reflect a change to the deadline to initiate construction from July 27, 2007 to July 27, 2008.
Item K-5 Request to Waive Oral Request for a Contested Case Hearing, and Appointment and Selection of a Hearing Officer to Conduct All Hearings for One (1) Contested Case Hearing (OA-08-02), regarding Conservation District Use Application (CDUA) OA-3413 for the Liljestrand Single Family Residence (SFR), located at 3300 Tantalus Drive, Honolulu, Island of Oahu, Subject Parcel TMK: (1) 2-5 011:008.
2 Member Johns recused himself and turned the matter over to Member Agor.
Mr. Sam Lemmo ofOCCL clarified agenda Item K-5 is submittal Item K-6. He reported on the submittal. There was a public hearing and afterwards a written petition was received for a contested case hearing from the Stacks. It is Mr. Lemmo's understanding when staffreceives a petition and it's not timely or there was no oral request for a contested case hearing the rule allows staffto come to the Land Board and ask to waive the oral request. The petition was submitted within 10 days ofthe public hearing. And if the Board chose to waive that staff would like to authorize the Chairperson to select the Hearing Officer. A petition from Friends ofTantalus came in after the submittal was completed. It asked to waive the oral request for a contested case hearing. At the public hearing the hearing officer read the procedures for declaring an intent to file a contested case hearing. The Stacks were at the public hearing and they did not ask for the contested case hearing. The Liljestrand family says the Stacks do not have any financial or legal interests in their property and they are not adjacent property owners. The Liljestrands say the petition's interests are not distinguishable from those ofthe Tantalus community and the general public. They are saying the conduct ofa contested case hearing will shut down any public discussion. The Liljestrands asked not to approve the waiver and to invoke the mediation provision. Member Gon asked did the written request for a contested case hearing come in shortly after the public hearing? Mr. Lemmo replied it came in 10 days after the hearing which is required for the written request. Member Gon replied not everyone knows the requirements for a contested case. He would like the board to take this into consideration.
Mr. Jim Shon representing Friends ofTantalus reported he attended the public hearing and didn't understand the oral request had to be made there. His organization feels strongly against spot zoning ofconservation land because ofthe impacts on the community related to increased traffic, higher property taxes and setting a precedent with commercialization ofa residential area. Tantalus residents are affected by this and encourage the Board to accept staffs recommendation.
Mr. Lemmo cautioned the Board not to get into issues regarding the merits ofthis case at this time. The process is ifyou were to waive this and approve the staffreport staff would then look for a hearing officer. The hearing officer would set up a hearing on standing. There would be a notice in the paper and at that time everyone would have an opportunity to submit the petitions. The hearing officer will consider the merits ofthe petitions and he would make a recommendation on who might have standing or not. He asked speakers to be very brief.
Mr. James Case, resident ofTantalus, reported his history there and urged the Board to waive the lack oforal notice. There should be a public contested case hearing.
Mr. Lemmo asked for the applicant, but instead the following individual came up. Ms. Elizabeth Stack is a petitioner and close neighbor reported she didn't know what a contested case hearing was and she opposed any commercial business in a conservation district.
3 Ms. Frances Mossman, a land planning consultant processing the permit for the Liljestrand family, clarified the family wants to focus on the proposal for a mediated settlement rather then a contested case. She explained the issues which the community wants to address should be in a collaborative forum. The Hawaii judiciary is proceeding more with mediation which would reach a settlement agreeable to all parties rather than a combative court like process. She stressed the use ofmediation.
Ms. Lee Stack, Tantalus neighbor and petitioner, reported people are opposed to the application with concern and feel it is bestthrough a contested case hearing.
Mr. Alan Stack, Tantalus neighbor, reported he is not one ofthe petitioners. He didn't understand what a contested case was. IfMs. Mossman's intent was to open dialogue with everyone then she should have done it from the beginning. She spoke alone at the public hearing. He feels it best to have a contested case.
Member Gon asked does the Board's acceptance ofstaffs recommendation preclude any mediation or are we locked into a contested case? Mr. Bill Wynhoff oftbe Office of Attorney General (AG) replied there isn't any reason why they couldn't pursue mediation during a contested case hearing or before unless the contested case is deferred. Member Gon asked ifthe party so chose they could enter into mediation and the Board could go with the recommendation of staff? Mr. Lemmo agreed with Bill.
Mr. George Ruse, a resident ofRound Top, asked for a contested case and reported submitting testimony at initial Land Board Meeting.
Mr. Jack Gilmare ofPalolo Valley reported he knows the Liljestrand house and attended last public meeting. The family is willing to talk to the neighbors and wish to go to mediation.
Mr. Bill Tam representing the Stack family in the contested case asked to proceed with staffs submittal because as a matter oflaw a sanctioned mediation outside ofa contested case would violate its due process. Once the parties are determined then mediation could happen within the contested case. Mr. Lemmo explained the neighbors could talk amongst themselves.
Mr. Bob Liljestrand explained the family has tried on numerous occasions to come to a compromise with the neighbors. He asked the Board to deny the waiver and mediate instead.
Unanimously approved as submitted. (Schuman, Edlao)
Item K-6 Request to Appoint and Select a Hearing Officer to Conduct All Hearings for One (1) Contested Case Hearing (KA·08·01) regarding OCCL's recommendation that the Board deny CDUA KA-3399 for an SFR in Haena, Hanalei, Kauai, Subject Parcel TMKs: (4) 5-9-03:010 &045.
4 Member Agor recused himself.
Mr. Sam Lemmo ofOCCL reported agenda Item K-6 is actually submittal Item K-5 and gave submittal background. Staffrequested approval.
Ms. Patricia McHenry, representing the applicant, reported she is here to answer questions.
Unanimously approved as submitted. (Gon, Edlao)
Item K-2 Conservation District Use Application (CDUA) OA-3412 Regarding a Portion ofthe Kaloi Gulch Drainage Improvements by HASEKO, Located at the Oneula Shoreline/Submerged Lands, Ewa, Oahu, Makai, Subject Parcels TMKs:(1) 9-1-011:007 & (1) 9-1-12:025
Mr. Sam Lemmo ofOCCL reviewed submittal and reported a change ofdrainage through golfcourse. It would flow every 10 years during the largest storm events and any sediment flowing into the ocean will dissipate in a short time. Staffrecommended approval with some conditions as noted.
Member Johns asked did Division ofAquatic Resources (DAR) look at it and conclude there are no significant impacts expected? Mr. Lemmo replied yes that is what they concluded. Member Johns asked did the Office ofHawaiian Affairs (OHA) comment? Mr. Lemmo replied OHA had no comments. Member John asked are you comfortable with the water quality issues in terms ofthe need for monitoring? Mr. Earl Matsukawa consultant ofWilson Okamoto Corp. for Haseko answered yes Haseko will continue monitoring. There is a water quality monitoring requirement pursuant to the Hoakalei Marina which is expanded to include this area. Member Johns asked then the sampling sites are outside this discharge point? Mr. Matsukawa replied correct. Member Edlao asked will you be maintaining it? Mr. Matsukawa answered it is a city park therefore the city will maintain it. He presented a briefoverview ofthe proposal and drainage ofthe area. Member Johns asked Mr. Lemmo are you ok with water flowing into the ocean than to flood the park? Mr. Lemmo replied not wise to flood in the park, but yes into the ocean.
Mr. TJ Kwan, staffattorney with Native Hawaiian Legal Corporation, representing Mr. Michael Lee who is a native Hawaiian cultural practitioner and limu gatherer. Mr. Lee believes this application will significantly impact his cultural practices and traditional and customary rights. They object to the Land Board granting ofthis application and request for a contested case hearing. This is an oral request and in 10 days they will submit a written petition for a contested case. Member Johns reported once the request is in the Board should not take any more testimony. He reminded Mr. Kwan to get the paperwork in.
No action due to oral request for Contested Case Hearing.
5 Item K-l Conservation District Enforcement File HA-06-61 Regarding an Unauthorized Structure on State Accreted Land, by Robert McKnight, Located at Kapaahu, Puna, Island of Hawaii, Seaward of Subject Plats (3) 1-2-028 & 029, Pacific Paradise Oceanfront Estates.
Mr. Sam Lemmo ofOCCL requested a deferral.
Deferred. (Gon, Edlao)
Item K-3 Conservation District Use Application (CDUA) MA-3400 Regarding the After the Fact Wailuku County Estates Water Storage Tank with Associated Improvements and Subdivision ofLand by CGM, LLC., Located at Wailuku, Maui, Subject Parcel TMK:(2) 3-3-002:001
Mr. Sam Lemmo ofOCCL reported Mr. Tim Lui-Kwan requested withdrawal.
Withdrawn. (Edlao, Agor)
Item K-7 Request for a Third Time Extension for Conservation District Use Permit (CDUP) OA-2504 for a Commercial Aquaculture Facility at Dillingham Quarry, for Mr. Ronald P. Weidenbach, dba Hawaii Fish Company, P.O. Box 1039, Waialua, Hawaii 96791-1039, at Kaena, Waialua District, Island ofOahu, Subject Parcel TMK: (1) 6-009-001: 003 & 033.
Mr. Sam Lemmo ofOCCL reported on submittal background. He explained the State owns the land and Mr. Ronald Weidenbach holds the general lease. Staff recommends a 5 year extension to May 23, 2012 with annual reporting. Mr. Ron Weidenbach, the applicant, reported the area in use is 18 acres on a revocable permit. Member Johns stated staffshould give someone else an opportunity to use this. Mr. Lemmo answered he had no indication ofany interest.
Unanimously approved as submitted. (Edlao, Agor)
Item J-2 Request for Preliminary Approval to Amend Hawaii Administrative Rules, Section 13-233, as they Relate to Motor Vehicle and Parking Rules
Mr. Ed Underwood, administrator for Division ofBoating and Ocean Recreation (DOBOR), reported submittal background. He explained this is to standardize the rules and better manage it. Certain harbors have more needs than others therefore staff would like to apply rule as the need arises. Staffproposes to re-write the rules to hire a private vendor to run the parking and amend the current fee structure to tie in with the City & County. Member Johns asked have there been public meetings and what were the responses? Mr. Underwood replied there have been 3 informational meetings at the Ala
6 Wai Small Boat Harbor. There are two user groups: surfers & canoe paddlers and boaters. Staffwill reserve 130 stalls by the helipad for public use only. The boaters felt there is no need for parking changes. DOBOR sent out a survey to all the Ala Wai Small Boat Harbor mooring tenants and asked ifthere was a need for a parking management plan. The results were sixty percent in favor, forty against. Member Johns asked the helipad parking will not be part ofthe rule? Mr. Underwood replied no. Staffwanted to go to the legislature to set it up as a park, but unsure how to go about it. Member Johns asked how do you prevent hotel or construction workers from parking there? Mr. Underwood explained right now there is nothing against it. That is why staffwants to change the rule. The use ofsignage stating "for recreational & harbor use only," but how to monitor it. It needs more enforcement. Staffis proposing the helipad area be closed to all vehicles that are not issued a valid permit from IIpm to Sam because ofa lot of activity. Member Johns asked did they have meetings at other harbors? Mr. Underwood replied just at the Ala Wai because he felt it would be most affected. But Ke'ehi Boat Harbor has a lot ofactivity at night, too. Not much for neighbor island harbors except maybe Honokohau, Lahaina and Ma'alaea. Member Edlao asked are there hearing master for each county or one for everything? Mr. Underwood replied could be both.
Mr. Peter Lee representing the surfers reported the problem at the Ala Wai is limited parking. The hotel and construction workers park in the recreational spaces and get picked up by a shuttle. Another solution is parking meters like at Kapiolani Park. These meters could curb illegal parking. The problem is enforcement ofparking spaces for recreational users. Place a guard there instead because parking meters can get stolen. They need a public hearing and a way to enforce this.
Ms. Melissa Ling-lng, surfer, reiterated the major problem is enforcement referring to Mr. Lee's comments. She referred to the parking problem with hotel & construction workers which is worst during canoe season. She doesn't believe parking meters are the solution and explained surfers surffor four hours or more and its inconvenient to paddle in to feed the meter. Ms. Ling-Ing stated 130 stalls are not enough unless they add a row ofparking along the slips.
Mr. Gary Ka'aihui, surfer, agreed private parking and parking meters are not the solutions. He described the parking problems and wants some way to monitor. Member Edlao asked are you opposed to time limits of 3 to 4 hours? Mr. Ka'aihui replied no. It's a first corne first serve basis.
Member Johns stated under the proposed rules it will give more enforcement ability to take control ofthe parking. But as for the helipad parking there will be no changes. Mr. Underwood replied yes. Member Johns and Member Gon urged users to attend the hearings.
Unanimously approved as amended. (Gon, Edlao) Amended the recommendation to change the term hearing master to hearing masters.
7 Item J-t Request for Approval to Enter into a Contract with Tetra Tech EM, Inc. for a Baseline Environmental Study ofthe Waianae Coast, Oahu
Mr. Ed Underwood ofDOBOR reported due to conflict ofinterest staffcancelled contract with previous company because one ofthe owners had vessels moored at the Waianae Small Boat Harbor. Staffreviewed the RFPs and selected Tetra Tech.
Unanimously approved as submitted. (Schuman, Gon)
Item F-t Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Special Ocean Use Permit to Ziggy Livnat of For the Sea Productions, for Access to State Waters to Conduct Commercial Photography Activities
Mr. Dan Polhemus, administrator for Division ofAquatic Resources (DAR), reported on submittal. He noted that permittee has been to the Monument on an education permit which states cannot use for commercial use and would need a special use permit. Staff doesn't feel it will be a problem. Member Johns expressed concern with possible commercialization. Mr. Polhemus replied understood. This is the discretion ofthe Board. Member Edlao said he wants to see the results. Mr. Ziggy Livnat explained everything he does is used for education and conservation.
Unanimously approved as submitted. (Edlao, Agor)
Item F-2 Enforcement Action Involving Violation of Northwestern Hawaiian Islands Research, Monitoring, and Education Permit # DLNR.NWHI06R008 by Dr. Greta Aeby of the Hawai'i Institute of Marine Biology
Mr. Dan Polhemus ofDAR reported U.H. Office ofGeneral Connsel submitted a written request for a contested case hearing and he recommends deferring this case. Member Johns stated he has the letter and it requested for a contested case.
Mr. David Lonborg, Office ofGeneral Counsel at U.H. representing Dr. Greta Aeby, is concerned that deferral ofItem F-2 is a deferral ofItem F-3. Deferring Item F-3 is denying it based on allegations made that have not been proven by a contested case hearing. Member Johns asked whether Mr. Lonborg wanted the Board to ignore Item F-2 while considering Item F-3? Mr. Lonborg replied yes. What Dr. Aeby wanted the Board to do was to set aside the allegation ofviolation and consider Item F-3 on its merits. Mr. Lonborg stated the Board is being asked in the enforcement matter to find the violation and to impose two sanctions: one is a fine, the other is a denial ofpermit for this year. He stated that it was very clear in the record in front ofthe Board that the reason they were asked to deny the permit this year is because ofthe violation, and apart from that
8 allegation, staffwould be recommending approval ofthe permit application. Member Johns replied right. Maybe they would and maybe they wouldn't. He asked couldn't there be other reasons why, beyond the actual finding ofthe violations? Couldn't there be other reasons why the Board would be justified in deferring action on Item F-3? He didn't think Mr. Lonborg is saying that the Board does not have that discretion. Mr. Lonborg said the only reason the Board would not take up Item F-3 is because ofthe allegation ofa violation last year. The facts are relatively straight forward. Member Johns reported that the Board did not want to get into the facts ifDr. Aeby is asking for a contested case hearing on Item F-2. Mr. Lonborg shouldn't be making his argument on Item F-2 ifhe is asking for a contested case. Member Johns stated the question is, assuming ifthe Board doesn't act on Item F-2, what to do about Item F-3? The Board has to act in light ofthe entire record and what other information the Board might have because the Board must take into account all information. The Board must judge in a discretionary way whether to give a discretionary permit.
Mr. Lonborg replied understood absolutely. Ifthe Board prefers to take it this way what he could do is withdraw his request for a contest case hearing and with the Board's permission reinstate it at the close ofthe item today. Ifthe Board feels it needs to get to the merits ofItem F-2 in order to act on Item F-3 then [we] the Board needs to do that. Mr. Lonborg testified that there has been plenty oftime for the Board to consider [ift] the factual background for Item F-2 contained in the Land Board submission from January. The Board could have resolved this before today. U.R. does not think it is fair to the University, the researcher or to the Monument. This is research the Board wants done. We don't think it's fair to say we have an allegation that is finally coming before the Land Board for action at the last meeting before this year's cruise. Now a year and 2 months after the events happened the Board is going to defer, which is the same as denying the permit based on what happened last year. Member Edlao reported it wasn't the Board's idea to bring this to the very end. The Board wanted to deal with this when it first came up, but it got deferred. Mr. Lonborg replied understood. He explained when the submittal came out January 12, 2007 he and his client were caught unprepared. They wanted to research and initiate some contacts. During that period they were trying to come to a compromise and worked with staff. There was no contact from February until right before July 13, 2007 Land Board meeting until Mr. Lonborg contacted (DOCARE) staff. The documents before the Board today are the same documents from January. He and his client have tried very hard to work with staff. He doesn't want to slam staff because the intention ofthis work is important. It needs to be done and there needs to be strict enforcement ofthe rules. With today's submission they think this balance has been struck wrong. The timing puts them in a position where their researcher faces losing a year ofwork.
Member Edlao exclaimed he understands what he is saying about the importance ofthe work. But it is also important to protect the monument and that is what the Board is charged to do. To protect and preserve. When there is a violation the Board can't take it lightly. Mr. Lonborg replied they are in agreement about the importance ofprotecting the monument and enforcing the rules. They don't think a violation happened here. Member Johns asked the alternatives you are putting out are 1. contested case on Item F-2, act on
9 it, and give the permit for Item F-3? Or the alternative is to withdraw the request for a contested case. Then at the end ofthe action ofItem F-2 and F-3 decide ifyou'll ask for a contested case? Can we even do the second one? Because ifhe already knows that he's possibly going to ask for a contested case and ifhe doesn't get the results ofwhat his client wants then all this information we are taking and acting isn't there a rule we shouldn't act on...Mr. Bill WynhoffofOffice ofthe AG interrupted he doesn't think the Board has the mechanical rule. They talked about it from time to time. Because if someone asks for a contested case you have to defer, we definitely don't have that. It's very clear that once you have it on the agenda ifpeople want to testify you have to take the testimony. Member Johns added the concern is obviously the information given in this setting is not the same type ofinformation that the Board would get under a contested case. It puts the Board in a position where someone could make the argument that we relied on extra judicial information when we made our decision. Mr. Wynhoffstated Sunshine rules require that once an item is on the agenda that a member ofthe public insists on testifying they must be allowed to testify. Member Edlao asked ifthe gentleman says he wants a contested case now would it be right for the department to ask for a deferral and the Board ask for a deferral in the meantime? Member Johns replied the Board can defer. Based on counsel, ifMr. Lonborg withdrew the request for a contest case we went ahead and moved on it then asked for the contested case later it would be ok. It would not taint the contested case. Mr. Lonborg asked ifwe could address Item F 3 first then return to F-2? Member Johns replied no, he doesn't think so. Mr. Lonborg stated he will withdraw the request for a contested case at this time. Member Johns asked ifMs. Linda Chow has any comments? Ms. Linda Chow ofthe Office ofthe Attorney General replied not at this time. Go forward with Item F-2 and ifthe Board has any questions she'll answer them.
Mr. Polhemus reported submittal background. Staffrecommends a fine of$I,OOO. Member Johns asked whether there were any allegations which surfaced during the investigation? Ms. Chow reported yes, there were other allegations that surfaced, but conclusions on those allegations have not yet been reached by the investigators or the department. But DAR felt confident in going forward with this violation at this time based on its own investigation. Member Johns asked then there are other allegations being investigated which are pending and not for the Board to act on today? Ms. Chow replied correct. Member Schuman asked ifthe Board acts on this today will it impact on the additional violations later should it be decided there might be additional violations? Ms. Chow replied correct. Member Johns asked we are not foreclosed? Ms. Chow added she doesn't believe so. Member Edlao asked we will visit those additional violations later on? Ms. Chow replied once the conclusions have been made and ifthe department wants to go forward. The department needs to conclude its investigation.
Mr. Lonborg explained what happened. Dr. Aeby had 2 small healthy live coral samples and kept those coral alive for later work on the ship. Her plan was to return those coral back to French'Frigate Shoals where she got them before the ship left. There was a change in plans beyond her control and she didn't have the opportunity to return the coral. Dr. Randy Kosaki raised the issue are those coral samples a permit problem? Dr. Aeby replied she didn't know. Dr. Aeby wasn't thinking about permit issues and only
10 focused on what was happening on the ship. The issue is did Dr. Aeby violate the condition ofher permit that says "no transportation oflive organisms within or outside the Monument." He read the conditions related to returning the samples to their environment prior to cessation ofactivity and taking care not to damage corals. He says there is a conflict between these conditions. She had to destroy those samples to meet the "transportation" condition, but it would be against the "not to damage coral" condition. He referred to due process in his letter testimony. The question is does Dr. Aeby have to stop research in the Northwest Hawaiian Islands? That is why it is a critical matter for the University.
Mr. Lonborg and Member Edlao discussed the violations and Dr. Aeby as a great researcher. Member Johns clarified that the Board has the ability to take into account all circumstances when it makes a decision on a discretionary permit. A violation is not the only reason under which the Board can deny a discretionary permit. Mr. Lonborg disagreed and stated the only reason DAR was even asking to deny a discretionary permit is because ofthe violation. Mr. Polhemus reported it's actually the Hawaii Administrative Rules governing our waters that stipulates that. The Board is not being asked by DAR to set up this contingency. It's inherent in the rule. Member Johns explained that one reason to deny a permit mandatorily is because of a finding of a violation, which is law. There are other ways to deny permits. The Board could take into account other information separate from the finding of a violation and subsequent banning under the regulation oflaw. Mr. Polhemus replied absolutely. He clarified DAR is not asking these issues be linked. The nature ofthe law requires they be linked. It is not DAR's discretion. Member Johns replied the law doesn't say the Board shall ignore information like this when it makes a decision. Mr. Polhemus answered not at all. Member Gon asked for clarification in the process. Even ifthe Land Board finds the violation and imposes the fine that doesn't conclude the finding because you have the opportunity for a contested case that will make the absolute decision on whether or not there was a violation and a fine. He read staffs recommendation regarding "ifthe Board finds a violation they must deny the permit application" which is not necessarily the case because the Board's finding is not the conclusive step. Mr. Lonborg confirmed that is the analysis he would ask the Board to adopt.
Member Gon asked the AG is that the right interpretation? Member Johns asked before there is a request for a contested case is it a final decision under the Price v. Zoning Board ofAppeals? Ms. Chow replied she hasn't looked at Price v. Zoning for awhile, but ifthe Board finds a violation and there is no specification in the rules as to how the Board makes that finding, ifthe Board finds a violation has occurred, that consideration may be carried over despite the fact there had been a request for a contested case. Because the contested case did not stay the decision ofthe Board. It goes into another form or medium. Member Johns asked is that finding final because it can be appealed? They have the ability to appeal to the circuit court don't they? Ms. Chow replied they have the ability to appeal a contested case decision to the circuit court. Member Johns asked they don't have the ability to appeal an imposition ofa fine? Ms. Chow answered only ifthey go through the contested case first. Member Johns concluded then the Board's decision absent a contested case is final. Ms. Chow replied yes. Mr.Wynhoff (AG) asked is it Ms.
11 Chow's suggestion or advice ifthe Board acts today and says there is a violation then it will not have discretion when it moves back to Item F-3? Ms. Chow replied yes. Member Johns asked do you have any comments on his position ifthe Board doesn't find a violation either it's in contested case mode or they don't act on it that they have the ability to deny the permit for whatever reasons? Ms. Chow agreed absolutely. It's a totally discretionary permit. Ifthe Board finds other reasons for denying it they are more than able to act on those reasons. She addressed the deferral issue. Because it is a discretionary permit it is within the purview ofthe Board to grant it, deny it or defer it. The fact that the deferral affects Dr. Aeby's time frame is not binding on this Board. The Board can exercise their discretion in any manner. Member John added the description ofthe facts that there was no conspiracy on the agency's part to delay this to the point where she is put in this position. Ms. Chow replied correct.
Mr. Lonborg disagreed with Ms. Chow that the Board is bound under the Administrative Rules. He explained what will happen with a delay. Nothing. The issue is to get this resolved. Mr. Lonborg related more history and discussed the permit from the first year. This is an inadvertent violation. It is not good for U.H. or for the monument. Member Johns stated there was no intent. She didn't drive the boat. Member Edlao and Mr. Lonborg discussed reporting by researchers and the position the Board is in.
Dr. Greta Aeby, Assistant Researcher with U.H.lHIMB related her background and history regarding coral research disease. She explained how she obtained samples and the ship's change in schedule without informing her. It was out ofher control. She was unaware ofthe policy changes. She has been working in the NWHI for the past 4 years without any problems. Dr. Aeby expressed shock when she was told about the January . 12, 2007 Land Board Meeting. She is unclear ofthe conditions and agreed it was her fault for what she did. She believed all her tagging work done last year will be lost ifthis permit is denied.
Member Gon asked about situation ofcoral in the bucket? Member Johns said Dr. Randy Kosaki directed Dr. Aeby to cut offwater to the tank. Mr. Lonborg explained Dr. Kosaki was cautious ofpermit issues on board the ship and thought it was a problem. Dr. Aeby replied she wished Dr. Kosaki said something to her. Mr. Polhemus added can't keep corals alive after collecting.
Ms. Marti Townsend ofKAHEA related her written testimony. She suggested broadening the investigation to seek an external investigation ofDAR, have a state audit, add preventive language to the permit in the refuge and waste water language. She expressed we don't want to set a precedent with other researchers who violate. Asked why wasn't DOCARE contacted immediately? It is unfair to place staffin conflict with permittee. She would like an independent investigation. Member Johns asked defer Item F-2? Ms. Townsend replied no and explained why. She commented on issues Mr. Lonborg brought up regarding an incubator on board. No reason to have one on board. We need to assess and enforce permits.
12 Mr. Polhemus clarified there was no overlap oftenure between him and Dr. Aeby in reference to when she was in DAR.
Ms. Evelyn Cox, affiliate faculty with HIMB, testified and said Dr. Aeby is a professional and ethical researcher and she feels legal issues get in the way ofresearch.
Ms. Stephanie Fried, Techinical Advisor for KAHEA, reported the Board should deny the permit because Dr. Aeby was there for the creation ofthe permit and should know these conditions. Ms. Fried gave testimony history and reiterated Ms. Townsend's points regarding DOCARE and an independent investigation. She said the HIMB report was missing an entire day by Dr. Randy Kosaki. Member Johns stated we should bring Dr. Kosaki here. Ms. Fried elaborated more regarding researchers violating and trying to get around the permit.
Mr. Frank Stanton, a Marine Biologist with Leeward Community College, reported Dr. Aeby has the resources to protect the coral in the monument. He expressed his testimony ofhow the permit agencies are unclear and the ambiguity with the Office ofAttorney General.
Mr. Lonborg reported he had a different understanding ofclosed system versus open system. As for the due process, they are not compelling the Board to give them a permit. He reiterated the submission.
Motion made to move to Executive Session. 12:25pm: Adjourned for Executive Session to discuss its legal rights, duties, privileges, and obligations relating to this matter with our attorney. (Edlao, Gon)
12:47 pm - Reconvened.
Member Johns explained this discussion is better flushed out via a contested case hearing. Member Gon stated he finds it unfortunate a well meaning researcher should find herself in such a situation. As a Board member he is bound by the necessity ofregulation. Member Edlao said to Dr. Aeby not to take this personally and a mistake was made. He was impressed by her research and reiterated Member Gon's comments regarding regulation. He commended her and not to be discouraged.
Unanimously approved. (Edlao, Schuman) All voted yes.
Mr. Lonborg reinstated his request for a contested case hearing.
Item F-3 Conditional Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Research Permit to Dr. Greta Aeby, University of Hawai'i, Hawai'i Institute of Marine Biology (HIMB), for Access to State Waters to Conduct Coral and Fish Disease Research Activities.
13 Mr. Dan Polhemus ofDAR, reported it is a conditional request to approve, but DA wants to defer. Mr. Lonborg replied deferral is denial. Member Johns replied the department will not stop the investigation.
Mr. Frank Stanton testified about unfortunate results will affect important research.
Ms. Marti Townsend ofKAHEA urged to deny now, but still need to protect the resources. It's forcing the Board into a position. Member Gon replied this situation is not B&W. Careful research is immense responsibility. Member Johns agreed with Member Gon and welcomes the contested case hearing. He believes the Board did right because it would be better heard in a contested case hearing.
Ms. Stephanie Fried urged to deny the permit and reiterated risk is a problem.
Dr. Aeby reported time is an issue on the reefs.
Deferred. (Gon, Edlao)
Item D-1 Issuance ofRight-of-Entry Permit to State ofHawaii, Department of Health, Kauai District Health Office on Lands Encumbered by Revocable Permit No. S-7310, por. which includes Upper Kapahi Reservoir, Kapaa Homesteads, 1st Series, Kawaihau, Kauai, Tax Map Key: (4) 4-6-07:11.
Unanimously approved as submitted. (Edlao, Schuman) ltemD-2 Issuance ofRight-of-Entry Permit to the State ofHawaii, Department ofTransportation, Highway Division for Test Boring Purposes on Lands Encumbered by Revocable Permit No. S-7408 to Coco Palms Ventures LLC, Wailua, Kawaihau, Kauai, Tax Map Key: (4) 4-1 05:17.
Unanimously approved as amended. (Edlao, Schuman) Staffsubmitted wrong Exhibit A. Replaced Exhibit A. ltemD-3 Issuance of Right-of-Entry Permit to United States Department of the Interior on Lands Encumbered by General Lease No. S-5372, Kapapala, Ka'u, Hawaii, Tax Map Key:3rd/9-8-01:02.
Item D-4 Consent to Assign General Lease No. S-5447, Maizie Kaaumoana Roberts, Assignor, to Laurie Kuuipo Antony, Assignee, Kikala Keokea, Puna, Hawaii; Tax Map Key: 3rd/1-2-43:47.
14 Item D-5 Consent to Revocable Permit of Lands under Governor's Executive Order No. 3283 to George S. Lavenson Jr., M.D., R.V.T., Lahaina, Maui, Tax Map Key: (2) 4-5-21:portion 16.
Item D-6 Issuance ofRight-of-Entry Permit to the United States Army Corp of Engineers (USACE) for Investigation and Remediation Purposes on Lands Encumbered by Revocable Permit No. S-7368 to Alexander and Baldwin, Inc., Pulehunui, Wailuku, Maui, Tax Map Key: (2) 3-8 008:001 ltemD-7 Extension ofApproval in Principle ofDirect Lease to Coalition for Specialized Housing for Low-Income Rental Housing Purposes, Waimano, Oahu, Tax Map Key: (1) 9-7-19:35. ltemD-8 Mutual Cancellation of General Lease No. S-5764, Joseph P. O'Reilly and Katherine A. O'Reilly, Lessees, Kaneohe, Oahu, Tax Map Key: (1) 4-6-01:13 seaward.
Item D-9 Amend Prior Board Action of July 14,2006, Under Agenda Item D-9, Acquisition ofLands and Set Aside to the Department of Land and Natural Resources, Division of Forestry and Wildlife for Habitat Restoration and Marsh Wildlife Sanctuary Purposes, Kawainui Marsh, Kailua, Oahu, Tax Map Keys: (1) 4-2-13:22; 4-2-16:portion 1, 5, and portion 6; and
Ratification ofthe Subagreement and Acknowledgment ofLocal Cooperation Agreement between the State ofHawaii, Department of Land and Natural Resources and the City and County ofHonolulu
Unanimously approved as submitted. (Edlao, Schuman) ltemE-l Request from the Good news jail and Prison Ministry to use the Large Pavilion at the Wailoa River State Recreation Area in Hilo, Hawaii, for a Fundraiser Luau ltemE-2 Request for Approval to Enter into an Agreement with Pioneer Hi bred International, Inc. for Water Sharing at Russian Fort Elizabeth State Historical Park, Waimea, Kauai
Mr. Dan Quinn, Administrator for State Parks, reported on submittals.
Unanimously approved as submitted. (Edlao, Schuman)
Mr. Quinn also reported Koke'e permittee wanted a briefing scheduled.
15 Item L-1 Approval for Additives to Construction Contract - Job No. F54B609A, Wailua River State Park, Marina Roadway and Parking Lot Resurface, Wailua, Kauai, Hawaii
Mr. Dan Quinn ofState Parks reported for Engineering Division.
Unanimously approved as submitted. (Agor, Edlao)
ltemH-1 Request for Authorization and Approval to Implement the Department of Land and Natural Resources' Language Access Plan.
Mr. Dean Aoki, ADA Coordinator, reported on submittal.
Unanimously approved as submitted. (Agor, Edlao)
Item M-1 Consent to Sublease ofLease No. DOT-A-91-21 Pacific Aviation Services, Inc. to Air Molokai Nui, Honolulu Interpational Airport
Item M-2 Issuance of Master Lease FAA Agreement No. DTFAWP-07-00044, Federal Aviation Administration (FAA) United Stated ofAmerica (USA) Honolulu International Airport
Item M-3 Consent to Sublease -lease No. DOT-A-79-0018 Paradise HB, LTD. To UPS Supply Chain Solutions, Inc. Honolulu International Airport TMK (1) 1-1-72-05 (Portion of)
Mr. Ross Smith ofDepartment ofTransportation reported on submittals.
Unanimously approved as submitted. (Schuman, Agor)
16 There being no further business, Member Tim Johns adjourned the meeting at 1: 10 p.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted,
Adaline Cummings Land Board Secretary
Approved for submittal: ~tZrf7Jl'//A'IT ALLAN A SMITH Interim Chairperson Department ofLand and Natural Resources
17 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, AUGUST 10,2007 TIME: 9:00 A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Interim Chairperson Laura Thielen called the meeting ofthe Board ofLand and Natural Resources to order at 9: II a.m. The following were in attendance:
MEMBERS
Ms. Laura Thielen Mr. Jerry Edlao Mr. Tim Johns Mr. Ron Agor Mr. Samuel Gon III
STAFF
Mr. Russell Tsuji, LD Ms. Charlene Unoki, LD Mr. Morris Atta, LD Mr. Sam Lemmo, OCCL Ms. Kimberly Mills, OCCL Mr. Dan Quinn, SP Mr. Paul Conry, DOFAW Ms. Christine Ogura, DOFAW Mr. Dan Polhemus, DAR Mr. Allan Smith, CO
OTHERS
Mr. William Wynhoff, AG's Office Ms. Linda Chow, AG's Office Mr. Mark Murakami, K-I Ms. Camille Kalama, K-I Mr. Paul Balberde, D-5 Mr. Michael Sheehan, D-I Mr. Alan Rietow, C-I
{Note: language for deletion is [bracketed], new/added is underlined}
Chairperson Thielen introduced herself. Item A-I Minutes ofJuly 13, 2007 ltemA-2 Minutes ofJuly 27, 2007
Unanimously approved as amended. (Johns, Gon)
Item K-l Conservation District Use Application (CDUA) Regarding Public Purpose Subdivision ofLand for the Expansion ofthe James Campbell Wildlife Refuge by James Campbell Company LLC. Located at Kahuku, Koolauloa, Oahu, portion ofTMK:(I) 5-6 002:010
Mr. Sam Lemmo, Administrator for Office ofConservation and Coastal Lands (OCCL), reported submittal background. He informed the Board the State permits sub-division of public lands ifthere is a public purpose behind it which staffhas determined there is. Staffrecommends approving this sub-division for public purposes subject to standard terms and conditions.
Mr. Mark Murakami, of Carl Smith, agent representing the applicant reported he is comfortable with the submittal. Member Edlao asked ifthe applicant will be grading or building anything? Mr. Murakami replied no construction.
Ms. Camille Kalama, staffattorney with the Native Hawaiian Legal Corporation, requested a contested case hearing on behalf ofIlioulaokalani Coalition.
Member Johns asked Attorney General whether to act or not? Ms. Linda Chow ofthe Office ofAttorney General replied best to defer this and ask ifthere is any testimony. Member Johns added written request must be provided within 10 days.
Member Johns made a motion to defer pending resolution ofthe contested case.
Deferred. (Johns, Gon)
Item E-2 Request for Approval ofthe Placement of Hazard and Management Signs on Improved Public lands: Makena State Park, Maui and Kuilei Cliffs Beach Park and Diamond Head Beach Park, Honolulu, and Approval of Revised Falling Rocks Warning Sign Pursuant to Act 82, Session Laws ofHawaii, 2003
Mr. Dan Quinn, Administrator for State Parks, reported requesting approval for three items. l. Location ofwarning signs at Makena State Park, MauL 2. Two City & County parks in Honolulu: Kuilei Cliffs and Diamond Head Beach Park. He amended EXHIBIT I, Station codes should be "MA" and not "HA." Mr. Quinn reported on maps and signage regarding rock hazards. 3. Request to modify design ofone ofthe signs
2 approved by the Board from all upper case to upper and lower case the words "Ifin doubt, stay away." at the bottom ofthe sign.
Member Johns asked is the AG alright with this? Mr. Quinn replied staffhad AG representation on the risk assessment working group. Member Johns reported he received a letter regarding the closure ofMakena. He asked what is the status ofthis? Mr. Quinn replied the letter refers to Black Sand Beach closure which will be alleviated with the signage.
Chairperson Thielen asked what is the time frame for posting the signs? Mr. Quinn replied staffshould have it up in several weeks. Member Edlao asked he hears complaints from fishermen cars getting towed away. There are no "no parking" signs there. Why are they getting towed? Mr. Quinn answered iffishermen were inside the park beyond the closure hours they might have been towed, but he didn't think his enforcement people would do that. It could be the county. He will check into it. Chairperson Thielen asked are there hours posted? Mr. Quinn replied there are signs posted.
Unanimously approved as amended. (Johns, Edlao)
Item D-2 Sale of Remnant to James G. Page and Judith C. Page, Hanapepe, Waimea, Kauai, Tax Map Key: (4) 1-9-002: abutting parcel 25.
Mr. Russell Tsuji, administrator for Land Division, reported on submittal background. No changes and Ms. Judith Page were in attendance.
Unanimously approved as submitted. (Ago1', Johns)
Item D-5 Forfeiture of General Lease No. S-4459, Paul Jerome Balberde and Cerila Balberde, Lessee, Waiakea, South Hilo, Hawaii, Tax Map Key: 3rd/2-2-56:18.
Mr. Russell Tsuji ofLand Division gave submittal background.
Mr. Paul Balberde, lessee, apologized to the Board for delay in payment and he explained delegating responsibility to someone else. He reported that payment has been made.
Member Johns asked Mr. Tsuji ifit was known that Mr. Balberde's payment had been made this submittal would be withdrawn? Mr. Tsuji replied yes it would be withdrawn.
Member Johns asked what about staffs recommendation ofre-imposing the performance bond and updating the conservation plan? Mr. Tsuji replied the re-imposition ofthe bond is based on the history of delinquencies. Yes, staffis recommending re-imposing the
3 performance bond, but added ifstaffhad known payment was received this submittal would not be before the Board. Member Johns asked Mr. Balberde "are you able to provide a performance bond of2 times the amount of$3,100 ($6,200) annually?" Mr. Balberde answered ifthat is what the Board recommends he will pay it. He explained he didn't have a phone. The money is not a problem.
Member Gon asked Mr. Balberde "do you have any plans to work on the updated conservation plan?" Mr. Balberde replied yes. He has some fruit trees and plan to go into organic farming, but the rock is difficult to grow on.
Mr. Tsuji confirmed payment was received.
Chairperson Thielen stated to the Board we have an amended recommendation. Item number 4. Re-impose the performance bond requirement in an amount equal to two times the annual rent in the event the Lessee cures the default.
Approved as amended. (Johns, Agor) Staffconfirmed that rental payment was received by the Department a few days ago. Therefore, the Land Board only adopted Stafrs recommendation no. 4 by requiring the Lessee to post a performance bond in the amount oftwice the annual rent.
Item 0-1 Set Aside State Lands to County of Kauai for Public Park and other Recreational Purposes, Portion ofthe Hanalei River between Tax Map Key: (4) 5-5-01:004 and Tax Map Key: (4) 5-4-04:01. Submittal to be distributed.
Mr. Russell Tsuji, representing Land Division, reported on submittal. He reported Mr. Michael Sheehan, a private land owner, was here to testify. No one from the County was here. Member Johns added the Board received testimony from the Hanalei-Ha'ena Community Association and Hanalei Watershed Hui in support ofsubmittal. Mr. Sheehan submitted testimony in opposition. Member Agor expressed concern regarding the applicant, County ofKauai, and their comments on page 2 which he read under Comments from County ofKauai. Ifthat is the only reason then he would be inclined to set aside lands from the boundary to the high water mark. But, he thinks there is more to this. We should discuss more to get County comment.
Mr. Morris Atta ofLand Division reported this submittal was initiated by a meeting of the Mayor ofKauai, DLNR, and Mr. Daniel Inouye's office. The Governor's liaison on Kauai initiated. Kauai is experiencing problems with commercial boat operators loading and un-loading passengers at the shoreline area ofBlack Pot Beach and sand bar. Plus other unauthorized activity like commercial surfschools and use ofthe area for commercial activities. The county indicated experiencing problems with management of the area and control ofall these activities. They approached DLNR for assistance by
4 providing clarity in regards to jurisdiction issues on who can do what in which areas. Historically, the defense in any county actionis "we're not on your parcel; you can't do anything to us." Member Johns asked ifthis submittal is approved it will be used to address those issues? Mr. Atta replied yes and to manage the entire area as an extension ofthe park use which is currently being used in the Black Pot area. Member Johns asked the parcel that runs all the way to the shoreline? Mr. Atta answered yes to the ocean point. The actual designation ofthe precise area was set by staffto help the county to enforce and manage the area efficiently. Member Johns asked does DLNR share the same concerns regarding those activities? Mr. Atta reported the department is experiencing the same issues with commercial activity statewide.
Member Johns asked when does the Mayor leave office? Member Agor replied 2010. Member Johns stated the concern right now is it is under State jurisdiction and ifthe State feels there are control issues the Board has the ability to exercise what kind ofcontrols over that property. Ifthe Board sets aside and the next county administration decides to do something different, then the State is out ofit. What the county has in mind right now is ok. But once the Board gives it away, it's a set aside with EO the State can't get it back. The reality is once the Board gives it away and staff will have to be happy with what the county does whether it affects State controlled issues or resources. Chairperson Thielen suggested it could be limited for a public park or other recreational purposes therefore there could be some conditions imposed on it. Staffsent a letter to the county defining what their responsibilities would be and limitations on the use ofthe land.
Mr. Atta reported state wide there has not been a uniform, consistent policy implemented to address these unauthorized commercial activities like surfschools or boating operations. Staffis surveying the counties to determine what kinds ofprocedures or policies they have in regards to commercial activities while developing a uniform policy ourselves. Staffis currently in the process ofmaking their own policies consistent and enforceable which is an extension ofthis. Kauai County is addressing the boating issue and they've indicated how they are approaching it is not conflicting with the State's proposal.
Member Johns asked why is it urgent and ifthe Board defers are we missing the urgency? Mr. Atta replied it is urgent because the county told staff tempers are flaring and there are on-going protests. The reopening ofboat operations in recent weeks has renewed these protests. Member Johns asked isn't the boating season going to end in September? Mr. Atta replied not necessarily. The boaters will run less per day. During the summer the boaters run more.
Member Johns asked in regards to the initiating offices. He assumed staffis aware ofthe Federal Court ruling that stopped the State's attempt to regulate boating? He would hate to have this get blown out ofFederal Court again. Mr. Atta said that's probably what triggered this action. The general consensus from that initial meeting was while that ruling is in place there is nothing the State can do in the water. It would occur only on land or the general are including the river mouth which was a matter ofconvenience by the staffs stand point. Mr. Tsuji added he understands the passengers walk across into
5 the river area. He suggested setting aside the river area might help the county. Member Johns asked ifthe county thinks it can regulate this by preventing people from walking into the river on State's submerged lands, which the State set aside to the county and the solution is consistent with the Federal court ruling, otherwise the Board will be doing this for nothing? Mr. Tsuji stated he understands on the Federal side there is a proposed amendment to allow for regulation. Member Johns asked then ifthat is the case we don't have to give the county control over the water? Mr. Atta reported there is a problem with that. His understanding is the exemption may not be available because an exemption given on Maui was attached to the National Humpback Whale Sanctuary. For Hanalei, unless it is tied to a special unique feature ofthe bay or estuary it would be very difficult to get a Federal exemption to this regulation. It is a proposal, but it is not necessarily the solution to this issue. Member Agor stated he would like to see a re-submittal with the county depicting what problems they would like to address with this set aside to make logical decisions.
Mr. Michael Sheehan ofHanalei River Enterprises, Inc. reported he has a boat yard on the Hanalei River and his ex- wife's family laid claim to the submerged lands ofHanalei River. He gave the history. There was a law suit he and his former wife initiated against the County ofKauai, 930911. Federal Judge David A. Ezra ordered his wife to hand over all ofthe Hanalei submerged lands and ancient Hawaiian fresh water fishery contained herein, which he provided the information to staff. Staffwas not aware ofthat federal law. The Federal court would look dimly at this submittal because it would interfere with commercial commerce. This is a poor vehicle to use because it would cause Mr. Sheehan to initiate a takings claim against the State ofHawaii which would bring up the past. In 2000 this Board made a rule change from IS commercial boat permits to zero in the Hanalei area and it was found to be unconstitutional and illegal. He suggested the Board revisit the previously legally allowed rule, 1325636, and administer it as a part ofthe State boating permit. Mr. Sheehan suggested table this and deal with regulating tour boats in the Hanalei area.
Member Agor added he would like the county to depict what the problems are.
Deferred. (Johns, Agor) Moved to defer to August 24, 2007 Land Board Meeting.
Item C-l Kanaele Bog Protective Fence Project: Conservation District Use Permit Approval
Member Gon recused himself.
Mr. Conry, Administrator for Division ofForestry & Wildlife (DOFAW), reported there was a correction to the Board submittal, page 3, item 3. The property does fall within a coastal zone management area and does not fall into the Special Management Area. Also correction to "Chapter 205" to read "Chapter 205A." He gave more background and requested the Board to approve the CDUP.
6 Member Edlao asked is there a time frame to initiate and complete? Ms. Christine Ogura ofOOFAW replied it is 5 years for completion. Chairperson Thielen asked does the applicant think they can complete in 5 years otherwise it goes back to the board?
Mr. Alan Rietow, field representative for the Nature Conservancy Program on Kauai, reported they have worked on this project for years. It's a 2 part project. The Nature Conservancy has raised the money, located contractors and everything is in place upon approval ofthis submittal. Five years is an appropriate time period. This area is the last ofits kind and is getting destroyed by pigs.
Member Johns asked most COUA applications come from OCCL and this one is through OOFAW which is fine, but he doesn't see anywhere that OCCL commented on the application? Ms. Ogura replied the application was sent to OCCL and there were no comments.
Chairperson Thielen commented regarding timing. At the land use commission a recommendation was submitted developments be completed by a certain time otherwise they keep coming back. But in this case it's difficult working with another partner. She would like to see a 5 year timeline on the fence because ofthe pigs. And to give the applicant some flexibility and not to incur additional expense. Ms. Ogura replied the Board would have a heads up ifthere is a delay.
Member Edlao asked will the applicant be using nails 01' screws because on the Maui boardwalk had problems with nails? Mr. Rietow replied the applicant has a plan to use recycled material and appreciates Member Edlao's suggestion.
Unanimously approved as amended. (Agor, Johns) Amend on page 3, item 3: [The pl'ojeet al'ea does not fall within a Coastal Zone Management ,A.l'ea OF Speeial Management Al'ea.] The project is in a coastal zone management area. However, it is not in a Special Management area. The project complies with and is consistent with the provisions and guidelines contained in Chapter 20SA, HAR regarding Coastal Zone Management.
Item D-6 Acquisition ofPrivate Lands for Set Aside to Department of Education for addition to Haaheo Elementary School, South Hilo, County ofHawaii, Tax Map Key: (3) 2-6-32:01 and 27. Submittal to be distributed.
Withdrawn. (Johns, Agor)
7 Item D-3 Amend Prior Board Action ofFebruary 10,2006, Item D-3, Set Aside to Department ofTransportation, Highway Division for Road Widening Purposes, Wailua, Kawaihau, Kauai, Tax Map Key: (4) 4-1 03: Portion 17. ltemD-4 Issuance of Direct Land License to Yamada and Sons, Inc" for Removal ofRock Aggregate Purposes, Waiakea, South Hilo, Hawaii, Tax Map Keys: 3rd/2-1-13: 142 & 160. ltemD-7 Quitclaim ofState's Interests, if any, in Remnants 3-B and 4, abutting West Kuiaha Road, to the County of Maui for Road Purposes, Kuiaha-Pauwela Homesteads, Makawao, Maui, Tax Map Key: (2) 2 7-008:113. ltemD-8 Consent to Assign Grant ofNon-Exclusive Easement S-5635, Glenn Masuo Masunaga and Harriet Mieko Masunaga, Assignors, to Ray Kazuto Uchimura and Lyndia Kazue Uchimura, Assignees, Makiki, Honolulu, Oahu, Tax Map Key: (I) 2-4-032:01 (Portion)
Unanimously approved as submitted. (Johns, Agor) ltemE-I Permission to Enter into a Revocable permit with S.M.C.A., Inc. for Food Sales and Rental of Swimming Equipment at Hapuna Beach State Recreation Area (Hapuna), Island of Hawaii
Item E-3 Amend Prior Board Action of July 27, 2007, Under Agenda Item E-I, Request from the Good News Jail and Prison Ministry to use the Large Pavilion at the Wailoa River State Recreation Area in Hilo, Hawaii, for a Fundraiser Luau
Unanimously approved as submitted. (Johns, Edlao)
Item F-I Request for Final Approval ofNew Hawaii Administrative Rules, Chapter 13-76, Non-Indigenous Aquatic Species
Mr. Dan Polhemus representing Division ofAquatic Resources reported submittal background.
Unanimously approved as submitted. (Johns, Gon)
Item L-I Certification of Election ofMauna Kea Soil and Water Conservation District Directors
Unanimously approved as submitted. (Johns, Agor)
8 Item M-l Consent to Sublease ofLease No. DOT-A-94-0007 Federal Express Corporation to Evergreen Aviation Ground Logistics Enterprises, Inc. Honolulu International Airport
Unanimously approved as submitted. (Johns, Edlao)
There being no further business, Interim Chairperson Laura Thielen adjourned the meeting at 10:14 a.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted, ~~ Adaline Cummings Land Board Secretary
Approved for submittal: LAURA~ Interim Chairperson Department ofLand and Natural Resources
9 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, AUGUST 24, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Interim Chairperson Laura Thielen called the meeting ofthe Board ofLand and Natural Resources to order at 9:05 a.m. The following were in attendance:
MEMBERS
Ms. Laura Thielen Mr. Jerry Ed1ao Mr. Tim Johns Mr. Ron AgoI' Mr. Rob Pacheco Ms. Taryn Schuman
STAFF
Mr. Russell Tsuji, LD Mr. Sam Lemmo, OCCL Ms. Kimberly Mills, OCCL Ms. Kaleo Paik, HP Mr. Paul Conry, DOFAW Mr. Ed Underwood, DOBOR
OTHERS
Mr. Vince Kanemoto, Office ofthe Attorney General Mr. Max Graham, Jr., Item K-l Ms. Yvonne Izu, Item K-2 Mr. Moses Haia, Item K-2 Ms. Mary Serrao, Item K-2 Ms. Alicia Maluafiti, Item K-2 Ms. Dawn Chang, Item H-1 Mr. John Dooling, DOT Harbors Mr. Donald Beirne, Item D-7 Ms. Dannielle Ululani Beirne, Item D-7 Mr. Rogers, Item H-4
{Note: language for deletion is [bracketed], new/added is underlined} Amended Agenda ofAugust 24,2007. Item D-S was deleted and Item D-9 became Item D-S.
Unanimously approved as amended. (Johns, Agor) ltemA-1 Minutes of August 10, 2007
Member Schuman and Member Pacheco recused themselves.
Unanimously approved as submitted. (Johns, Agor)
Item K-1 Enforcement File No. KA-07-24 Regarding Alleged, Unauthorized Cutting of Non-native and Native Trees, and Road Grading, Landowner B. Midler, Subject Parcel TMK: (4) 5-9-003:008, Haena District, Island of Kauai, C/O Max W. J. Graham, Esq., BELLES, GRAHAM, PROUDFOOT & WILSON, LLP, Watumull Plaza, 4334 Rice Street, Suite 202, Lihue, Kauai, 96766-1388
Mr. Sam Lemmo, Administrator for the Office ofConservation and Coastal Lands (OCCL), reported subject parcel was almost completely cleared ofvegetation. Staff ordered cease and desist orders. Mr. Max Graham, owner's agent, worked with staffto resolve this by providing a botanical report and restoration plan. Staffproposes fining $2,000 for clearing ofnon-native trees, $2,000 for cutting ofhau grove, $2,000 for road work and $500 for administrative work for a total of$6500. And, a request for the owner to submit an after the fact conservation district use application for the unauthorized uses.
Member Johns asked whether there was a policy offining per tree as opposed to one big violation. Mr. Lemmo replied yes for native trees, but policy has changed in the past. Non-native trees are looked at as one violation. Owner is willing to work with staffto restore area.
Mr. Max Graham representing Bette Midler conveyed Ms. Midler's apologies and Ms. Midler takes full responsibility for her actions. Her intention was to make the property more consistent with the original botanical species that were in Limahuli Valley. Mr. Graham is requesting that the citation for "grading ofa road" be changed to "landscaping" to accurately reflect what happened on the property. Ms. Midler has no objection to the recommended fines and does intend to return to the Land Board with a proposal for the restoration plan. She has retained the Limahuli National Tropical Botanical Garden to 1) assist in preparing a botanical inventory ofthe species removed and list recommended replacement materials; 2) prepare a landscaping plan showing the types, numbers ofmaterials and locations on the grounds and 3) provide a plan for the restoration ofthe upper lo'i area where the hau bush is. Ms. Midler will file a CDUA
2 with the Board, which will be consistent with the Botanical Garden's efforts to control non-native species and reintroduce native species.
Member Agor asked whether staffwould have a problem changing the citation from "road grading" to "unauthorized landscaping?" Mr. Lemmo replied that there would be no problem as long as the fine is paid.
Unanimously approved as amended. (Agor, Johns) Moved to change road grading to unauthorized landscaping with recommended fine.
Item K-2 Amendments to Conservation District Use Permit (CDUP) OA-2670 to Construct a Marina Entrance Channel at Honouliuli, Ewa, Hawaii by HASEKO on State Submerged Land Located at Honouliuli, Ewa, Oahu, Makai ofPlat (1) 9-1-012:
Letters oftestimony were provided by Morihara, Lau & Fong and Native Hawaiian Legal Corporation.
Mr. Sam Lemmo representing OCCL reported the marina is not in the conservation district, only the entrance channel and the shoreline to be dredged. Haseko is asking staff for flexibility in condition #11 because ofchanges in TMK numbers.
Member Johns asked ifthe CDUP gets denied by the contested case process will condition #22 still apply? Mr. Lemmo replied no because HASEKO can't do it.
Member Johns asked whether there is a violation or is this the first time you are aware of these allegations? Mr. Lemmo replied this is the first time he was made aware ofany disturbance to an archaeological site.
Ms. Yvonne Izu representing HASEKO presented maps ofHoakalei Marina's reconfigured plans and related history ofproject. The City doesn't want HASEKO to touch the sewer outfall. HASEKO planned to reduce the size ofthe marina with the drainage going through the Oneula Park. She reported HASEKO will provide areas for recreation and cultural activities per community request.
Member Johns, referring to Melanie Chinen's (ofHistoric Preservation) letter, asked whether there was a violation ofthe condition ofthe CDUP? Ms. Izu explained because the marina required a Federal 404 permit from the Corp ofEngineers as a condition ofthe permit HASEKO entered into a Memorandum ofAgreement (MOA). The signatories to the agreement were OHA, Corp ofEngineers, Historic Preservation Division, The National Preservation Council and HASEKO. Under the MOA were 6 archaeological sites to be preserved in place. HASEKO came up with a preservation plan which was approved by Historic Preservation. HASEKO was to provide buffer zones around these sites and construct a fence around the area. Before the fencing contractor could begin,
3 the grading contractor started work on the area. It was discovered that the bulldozer destroyed a portion ofone ofthe sites, therefore all activity was stopped and the Corp. of Engineers and Historic Preservation were notified. Member Johns asked whether Historic Preservation decided not to pursue this as a violation? Ms. Izu replied that's correct. Per Ms. Chinen's testimony, Historic Preservation was satisfied with the steps made after the discovery ofthe destruction. She also confirmed there was never a violation filed in respect to that incident. HASEKO does not deny that the bulldozer did go over that archaeological site. Member Johns asked whether a valid permit was issued for the grading. Ms. Izu answered yes.
Chairperson Thielen asked (referring to condition #10 in exhibit 2) ifyou are on notice in a MOA what would OCCL's response be? Mr. Lemmo explained when one ofOCCL's conditions is tied to one ofthe functions ofanother division and there is a question of violation ofthat division's rule then OCCL will be directed by that division. He was never notified by Historic Preservation about the violation and they are not pursuing it.
Member John asked about condition #10 and how does the MOA come in? Mr. Lemmo replied it is condition #26 that says "the applicant shall comply with the provisions contained in the M0 A."
Mr. Moses Haia, staffattorney with the Native Hawaiian Legal Corporation, for Kimo Frankel reported that the agreement to establish buffers was entered in 1993 and the destruction occurred on January 20, 2006. Mr. Haia feels this was no accident and referred to the violation ofthe MOA.
Chairperson Thielen stated that the preservation plan was not in place and you are looking to the Board to enforce the condition that the preservation plan is in place. Ifit is in place now is that satisfactory to Native Hawaiian Legal Corp.? Mr. Haia replied the conditions ofthe MOA to preserve historic sites. Member Johns interrupted the Board carmot take up a violation today because it was not properly noticed per Sunshine law. He asked what remedy would he propose? Mr. Haia explained it would be a monetary penalty and referred to Item K-1.
Chairperson Thielen stated there were destruction ofa feature and no pending investigation ofa violation, but warrants further action by OCCL staff. The Board should move forward with the reduction ofthe marina because there is no pending violation. Member Johns reported staffcould pursue an investigation afterwards. There is no connection with the violation and what the applicant is asking for today. Mr. Haia feels when conditions are placed on a permit to protect historic sites and the applicant agrees, the Board should consider whether or not that should be a condition ofthe permit. He sees it directly related to going forward on any request to alter or amend this current permit.
9:50am - Member Johns left for court.
Ms. Mary Serrao ofHoakalei Foundation and resident.
4 Ms. Alicia Maluafiti, board member ofHoakalei Foundation, testified the residents and kupuna are working with HASEKO to ensure they are under cultural advisement. She reported HASEKO is taking responsibility to preserve the culture. Ms. Serrao explained Hoakalei Foundation will teach the younger generation their Hawaiian culture and HASEKO is providing a place. HASEKO has always notified the community on issues. Ms. Maluafiti added HASEKO's intentions are honorable and the community holds them to a high standard.
10:08am Adjourned for Executive Session to discuss its legal rights, duties, privileges, and obligations relating to this matter with our attorney. (Agor, Edlao) 10:20am Reconvened.
Deferred and instructed staff to investigate a possible breach ofMOA and bring this back to the Board by the next couple meetings. (Pacheco, Schuman)
Item H-l Request for Approval to Enter into an In Situ Burial Agreement with FRC Waikiki, LLC for Unmarked Burial Sites Located on their Property at Waikiki Ahupua'a, Kona District, Island ofOahu [TMK (1) 2-6-13:1,3,4,7,8,9,11,12]
Ms. Kaleo Paik representing Historic Preservation Division reported these requests are to ensure burials are protected in perpetuity. To form an agreement is to convey it as an encumbrance onto the property and to give visitation rights to descendents. Chairperson Thielen asked whether this was a new type ofagreement. Ms. Paik explained these have been long standing, but only a few have come this far.
Member Pacheco asked ifthe ownership ofthe property changes is the burial plan voided? Ms. Paik replied it doesn't necessarily void because ifthere is a burial site on the property the landowner must look it up otherwise they are in violation ofState law. Mr. Vince Kanemoto, ofthe Office ofthe Attorney General, explained it would only be a violation ifthe land owner knowingly violated. Ms. Paik added these have been passed with the land owners themselves.
Ms. Dawn Chang, cultural consultant for the applicant, gave a briefbackground ofthe property and reported contact between the owner and families. She described the design ofthe buffer zone of20 feet. She asked that the buffer in the staffsubmittal be amended to be consistent with the burial treatment plan.
Unanimously approved as amended. (Schuman, Pacheco)
Item M-l Issuance of Direct Lease and Construction Right-Of Entry to GLP Asphalt, LLC at Kalaeloa Barbers Point Harbor, Honouliuli, Ewa, Oahu
5 Mr. John Dooling, property manager for DOT Harbors Division, reported there is a need for liquid asphalt.
Unanimously approved as submitted. (Agor, Pacheco) ltemM-2 Amendment to Issuance of a Direct Lease Together with a Construction Right-Of-Entry to Sause Bros., Inc. Kalaeloa Barbers Point Harbor, Honouliuli, Ewa, Oahu, Tax Map Key: (1) 9-1-14:24 (POR) and (1) 9-1-74:37 & 38 (PORS.)
Mr. John Dooling ofDOT Harbors reported there are no changes.
Unanimously approved as submitted. (Schuman, Pacheco)
Item D-8 Set Aside State Lands to County of Kauai for Public Park and other Recreational Purposes, Portion ofthe Hanalei River between Tax Map Key: (4) 5-5-01:004 and Tax Map Key: (4) 5-4-04:01. Submittal to be distributed
Deferred until further moved on by staff. (Agor, Pacheco)
Item C-l Review of Legacy Land Conservation PGM Application & Timeline for Fiscal Year 2008
Mr. Paul Conry, administrator for the Division ofForestry and Wildlife (DOFAW) asked the Board to approve submittal and referred to previous approvals. Hereported Ms. Molly Schmidt, coordinator ofDOFAW was here to answer questions.
Unanimously approved as submitted. (Pacheco, Schuman)
Item D-7 Request to Extend the Cure Period for the Notice of Default on General Lease No. S·4908, Francis Daniel Beirne and Dannielle Ululani Beirne, Lessees, Maunalaha Homesites, Makiki, Oahu, Tax Map Key: 2-5-24:03.
Mr. Russell Tsuji, administrator for Land Division, reported no changes.
Ms. Dannielle Ululani Beirne, applicant, introduced her son, Donald Beirne and welcomed Chairperson Thielen. Ms. Beirne explained the liability ofupper roadway and gave some background. She would like the State to fix it.
Unanimously approved as submitted. (Schuman, Agor)
6 ltemH-4 Request for Approval to Euter into an In Situ Burial Agreement with Hana Beachfront Associates for Unmarked Burial Sites Located on their Property at Haneo'o Road, Hana District, Island of Maui [TMK (2)1-4-08:01]
Ms. Kaleo Paik ofHistoric Preservation reported a change from a 20 feet buffer to 10 feet which is not a problem because it is a marked grave site.
Mr. Rogers, landowner, was here to answer any questions.
Unanimously approved as amended. (Edlao, Pacheco)
Item H-2 Request for Approval to Enter into an In Situ Burial Agreement with Thomas and Patricia Foley for the Human Skeletal Remains Found on their Property at Ha'o'u Ahupua'a, Hana District, Island ofMaui [TMK (2) 1-5-004:005]
Item H-3 Request for Approval to Enter into an In Situ Burial Agreement with Larry Wayne Latham for Unmarked Burial Sites Located on his Property at Kaunala Ahupua'a, Ko'olauloa District, Island of Oahu [TMK (1) 5-8-006:046]
Ms. Kahlo Paik ofHistoric Preservation stated no changes.
Unanimously approved as submitted. (Pacheco, Edlao)
Item D-6 Forfeiture of General Lease No. S-4899, Ronald Lopes, Lessee, Maunalaha Homesites, Opu, Makiki, Oahu, Tax Map Key: 2-5-24:32.
Mr. Russell Tsuji ofLand Division requested to defer for 60 days.
Deferred for 60 days. (Schuman, Edlao) ltemD-l Set-Aside to County of Kauai, Board ofWater Supply for 0.5 Million Gallon Water Storage Tank, Accessory Facilities and Drainage Purposes, Kapaa Homesteads, Ist Series, Kawaihau, Kauai, Tax Map Key: (4) 4-6-003:10 and 12.
Item D-2 Sale of Remnant to Lynette Emi Umetsu, Calvin Sunao Umetsu, Carol Yoshie Aceret, Gail Marie Umetsu-Lee and Lisa Naomi Kimura; Wailua Homesteads, First Series, Wailua, Kawaihau, Kauai, Tax Map Key: (4) 4-2-06: through parcel 19.
7 Item D-3 Issuance of Right-of-Entry Permit to Aina Site Construction Inc. on Lands Encumbered by Revocable Permit Nos. S-7366 to Monsanto Company and S-7195 to Kenneth K. & Sylvia K. Yasutake, Hanapepe, Waimea, Kauai, Tax Map Key: (4) 1-9-02:45 and 14.
Item D-4 Grant ofTerm, Non-Exclusive Easement to Henk Rogers and Akemi Rogers for Improvements and WeedNegetation Control Buffer Purposes, Puu Waawaa, North Kona, Hawaii, Tax Map Key: (3) 7-1 l:portion 6.
Member Pacheco asked Mr. Tsuji was this known by the previous owner or was this recently discovered? Mr. Paul Comy ofDOFAW answered this is a situation with the previous owner. He explained it is transitioning to the forest reserve and staff wanted all the easements cleaned up.
Item D-5 Issuance ofRight-of-Entry Permit to the United States Army Corps of Engineers onto Encumbered State Lands at Waiakea, South Hilo, Hawaii, Tax Map Key: 3rd/ 2-1-13: portions of2 & 153
Unanimously approved as submitted. (Pacheco, Edlao)
Item J-l Request for Preliminary Approval to Amend Hawaii Administrative Rules, SectionI3-241-25, as they Relate to Vessel Registration Fees. Submittal to be distributed.
Mr. Ed Underwood, administrator for Division ofBoating and Ocean Recreation, requested that this item be deferred. He amended the statute instead ofpresenting the rule.
Deferred. (Pacheco, Edlao)
Item L-l Certification of Election and Appointment ofSoil and Water Conservation District Directors
Unanimously approved as submitted. (Pacheco, Edlao)
8 There being no further business, Interim Chairperson Laura Thielen adjourned the meeting at 10:56 a.m. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted,
Adaline Cummings Land Board Secretary
Approved for submittal:
rJvv LAD H. THI LEN i. . Interi Chairper on Department ofLand and Natural Resources
9 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, SEPTEMBER 28, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Laura Thielen called the meeting ofthe Board ofLand and Natural Resources to order at 9:12 a.m. The following were in attendance:
MEMBERS
Ms. Laura Thielen Mr. Ron Agor Mr. Tim Johns Ms. Taryn Schuman Dr. SamGon
STAFF
Mr. Russell Tsuji, LD Ms. Charlene Unoki, LD Mr. Sam Lemmo, OCCL Ms. Tiger Mills, OCCL Mr. Dan Quinn, SP Mr. Michael Constantinides, Mr. Roger Emoto, DOFAW DOFAW Mr. Curt Cottrell, DOFAW Mr. Ken Kawahara, CWRM
OTHERS
Mr. Ross Smith, DOT Ms. Julie China, AG's Office Mr. Chris Sadayasu, Item D-1 Mr. Mike Donoho, Item C-3 Mr. Wally Inglis, Item D-2 Mr. David Whatmore, Item D-5 Mr. Philip Davies, Item D-5 Mr. Earl Yamamoto, DOA Ms. Christina Lucas, Item D-5 Mr. Dennis Ferm, AG's Office
{Note: language for deletion is [bracketed], new/added is nnderlined} ltemA-1 Minutes ofSeptember 14, 2007
Unanimously approved as submitted. (Agor, Schuman)
Item M-1 Amendment No.1 to State Lease No. DOT-A-95-0012 Additional Space and Extension of Original Lease Term Kamaka Air, Inc., Honolulu International Airport
Mr. Ross Smith representing Department ofTransportation (DOT) conveyed submittal background.
Unanimously approved as submitted. (Schuman, Agor) ltemM-2 Assumption ofSublease by State ofHawaii Department of Transportation, 3239 Ualena Street, Honolulu International Airport
Mr. Ross Smith ofDepartment ofTransportation reported lease background.
Unanimously approved as submitted. (Johns, Gon) ltemK-2 Appointment and Selection of a Hearing Officer to Conduct All Hearings for Contested Case OA 08-04 Regarding Conservation District Use Application (CDUA) OA-3414 for Public Purpose Subdivision ofLand for the Expansion ofthe James Campbell Wildlife Refuge Located at Kahuku, Koolauloa, Island of Oahu, TMK: (1) 5-6-001 :010
Deferred. (Johns, Agor) ltemD-1 Set Aside to the Hawaii Housing Finance and Development Corporation for Future Housing and Housing Related Development Purposes, Wahiawa, Aiea and Honolulu, Oahu, Tax Map Keys: (1) 7 3-12:15; 7-3-13:9; 9-9-44:20; 9-9-44:24; 1-7-41:2; 2-2-13:4; 2-2-13:14; 2-2-13:96; 2-2-13:101.
Mr. Russell Tsuji administrator for Land Division reported nothing to add.
Member Johns asked regarding comments that OHA seeks meaningful discussions on appropriate compensation to OHA. Mr. Tsuji replied is the BLNR does not charge other government agencies for set asides by Governor's Executive Order. Mr. Chris Sadayasu ofHawaii Housing Finance and Development Corporation (HHFDC) asked Board's favorable consideration for set aside. He explained HHFDC's Executive Director and branch chiefare discussing the ceded land revenue issues with OHA, fully expect to move forward with housing projects on these lands.
2 Unanimously approved as submitted. (Schuman, Gon)
ltemD-3 Approval in Principle ofDirect Lease to Honolulu Community Action Program for Preschool and Related Programs Purposes, Kunia, Oahu, Tax Map Key: (1) 9-2-5:12.
Mr. Russell Tsuji ofLand Division reported no changes to submittal.
Unanimously approved as submitted. (Johns, Schuman)
Item K-l Appointment and Selection of a Hearing Officer to Conduct All Hearings for Contested Case OA 08-03 Regarding Conservation District Use Application (CDUA) OA-3412 for a Portion ofthe Kaloi Gulch Drainage Improvements Located at Oneula, Ewa, Island of Oahu, Makai ofTMKs: (1) 9-1-011:007 & (1)9-1-012:025
Mr. Sam Lemmo administrator for Office ofConservation and Coastal Lands (OCCL), seeks approv!ll to move forward.
Unanimously approved as submitted. (Johns, Agor) ltemE-l Request for Approval ofAqua Engineers Inc. as the Selected/Sole Bidder and to Execute a Contract for Services to Operate and Maintain the Water System at Kokee State Park, Water System at Polihale State Park, Wastewater System at Kokee State Park, Sewage Pump Station at Kokee State Park, and Sewage Pump Station at Wailua Marina on Kauai.
Mr. Dan Quinn, administrator for State Parks, informed the Board this is a maintenance contract for Koke'e water and sewer system. Bid amonnt is $146,852, 77 and includes emergency call outs.
Unanimously approved as recommended by ~taff. (Agor, Gon)
Item C-l Amend Board Action ofApril 27, 2007 (item C-l), Addition of approximately 142 acres (TMK (4) 1-2-002: portion 001) to the newly designated Mana Plains Forest Reserve, Waimea District, Kauai.
Mr. Michael Constantinides representing Division Forestry & Wildlife (DOFAW) requested to amend.
Unanimously approved as submitted. (Agor, Gon)
3 Item C-2 Acceptance ofHearing Officer's Report on a Public Hearing for Four Proposed Additions to the Forest Reserve System on Hawai'i Island, and Approval and Recommendation to Governor for the Issuance of Four Executive Orders: Addition ofApproximately 1,371 acres (Pending Final Subdivision) to Ka'u Forest Reserve, Ka'u District, Hawai'i; Addition ofApproximately 1,500 acres (Pending Final Subdivision to HHo Forest Reserve, South HHo District, Hawai'i; Addition ofApproximately 37,901 Acres to the Newly Created Pu'u Wa'awa'a Forest Reserve North Kona District, Hawai'i; and Addition ofApproximately 25,856 Acres to the Newly Created Wao Kele 0 Puna Forest Reserve, Puna District Hawai'i.
Mr. Michael Constantinides representing Division Forestry & Wildlife (DOFAW) summarized each ofthe four proposed additions and public hearing responses. There was concern with semantics or wording used in documentation. Staffs principle action is to add the lands to the Forest Reserve and the details on how to manage them would come later. There was a concern ofdegradation ofresources. Stafffelt this will protect these resources. The division will be working closely with the community and partners in developing management strategies. Concern with Hawaiian gathering rights which DOFAW supports.
Member Gon expressed his approval. Member Johns was impressed by the acreage addition. Chairperson Thielen stated there is potential for OHA to becoming land managers and look forward to that.
Unanimously approved as submitted. (Johns, Gon)
Item C-3 Annual Progress Briefing to the Board ofLand and Natural Resources Regarding Implementation oftbe Management Plan for the Ahupua'a of Pu'u Wa'awa'a and the Makai Lands of Pu'u Anahulu
Mr. Michael Constantinides representing Division Forestry & Wildlife (DOFAW) noted no report was given last year and apologized. This report is covering two years. He was assured by the Oahu and Big Island offices that this won't happen again.
Mr. Mike Donoho, coordinator for Pu'u Wa'awa'a, reported status ofthe Pu'u Wa'awa'a Advisory Council with one vacancy. Staffunderwent a strategic planning exercise and will present the management plan to the Board. A three person field crew will be established to further the objectives ofthe management plan. This will be achieved through State watershed and Dept. ofInterior grants. Three additional staffwill be sought in the next year. There are partnerships with 50lC3 organizations and U.S. Army Pohakuloa to assist with endangered species plantings and enclosures. He explained highlights ofthe objectives. The budget is over 1.2 million dollars over the last 2 years. Projected over $500,000 for the coming year.
4 Member John stated staffdid a good job, but a million dollars is not enough to manage. Mr. Donoho agreed and he believes the stewardship will get them through.
No action taken on this briefing. ltemD-2 Reconsideration ofRent under Geueral Lease No. S-5223 to Coalition for Specialized Housing, for Low or Moderate Income Housing for the Elderly and Disabled Purposes, Pearl City, Oahu, Tax Map Key: (1) 9-7-19:49.
Mr. Russell Tsuji ofLand Division this matter involves the rent reopening set-to occur in 2009. Staffis recommending that the reopened rent be set in accordance with the Board's minimum rent policy ($480/yr.).
Mr. Wally Inglis, president ofthe Coalition for Specialized Housing (CSH), came forward and testified on the history ofthe property when Hansen's disease patients were living there and the contentious issue when patients were forcibly evicted from the land. A 210 unit senior citizen housing was built. He explained the coalition is a small non profit organization paying $20,000 a year lease rent. Mr. Inglis indicated it would help them ifthe Board reduced their rent.
Member Johns asked whether in the past a prior request for a rent reduction was ever denied. Mr. Tsuji indicated yes, and briefly went into the history. The Board had approved a lease for the entire site (currently 2 different parcels) to a youth a soccer group. The predecessor to CSH had filed a lawsuit claiming to be entitled to lease a portion ofthe property. Ultimately the case was settled; and part ofthe settlement allowed CSH's predecessor to lease a portion ofthe entire property by subdividing out the former Hale Mohalu. Under the settlement agreement, CSH's predecessor agreed to pay fair market rent (not nominal rent). Subsequently, the Board allowed CSH to be substituted as the lessee for a project involving low to moderate income rental housing for the elderly and disabled. The Board also denied a prior request to reduce the rent to nominal because ofthe fair market rent condition in the settlement agreement, but indicated that at the time ofrent reopening, the Board could consider a rent reduction.
As such, staffbelieves this project benefits the public (low to moderate income rental housing for the elderly and disabled), and recommends that upon the rent being reopened in 2009, that the rent be set in accordance with the Board's minimum rent policy (currently at $480/yr.).
Unanimously approved as submitted. (Schuman, Gon) ltemD-5 Termination of Revocable Permit No. S-6240, Kilauea Irrigation Co., Inc., Permittee, Hanalei, Kauai, Tax Map Key: (4) 5-1-1 :2.
Written testimony from the following organizations, businesses or individuals was received via fax or e-mail: Kauai Sunrise Farms, Sandra Lee Kunimoto - Chairperson,
5 Board ofAgriculture, Kauai County Fann Service Agency, U.S. Dept. ofAgriculture Natural Resources Conservation Service, Kauai Organic Fanns, Kilauea Town Market & Deli, Healthy Hut Natural Food Store, Red Hot Mama's Restaurant, Princeville Hotel, Lex Riggle, Ferris Family Fann, David Whatmore, Gordon L. Furze, Daniel E. Saindon, Margaret M. Furze, Namahana Fanns, JeffLarkey, Senator Gary L. Hooser, Christopher Riemer, Steve & Janine Hunt, Kilauea Management Company, Tom Hitch, Ming Fang, Bill & Margo Flaherty, Jack & Bev Harter, and Kauai Office ofEconomic Development.
Member Schuman recused herself.
Mr. Russell Tsuji representing the Land Division infonned the Board about the default by Kilauea Irrigation Co. (KIC) under the Revocable Pennit for failing to procure the required liability insurance coverage. Mr. Tsuji also summarized the infonnation provided in staffs written submittal. A large map onhe area was also placed on an easel for the Board and audience to view.
Member Johns inquired whether KIC is still a valid corporation. Mr. Tsuji indicated that as far as he knows, KIC as an entity is still legally in existence and has not been dissolved. As a practical matter, Tom Hitch, the owner and operator ofKlC has left the Country; and there does not appear to be any reasonable chance that KIC will procure the required liability insurance anytime in the near future. Staffrecently did a helicopter tour ofthe area and the terrain appeared rugged and heavily vegetated, and Kilauea Ditch did not appear to be well maintained.
Chairperson Thielen expressed her concern about the lack ofliability insurance, and the fact that the rainy season will be soon approaching. DLNR staffhas spoken to the Chairperson ofthe Department ofAgriculture (DOA), Sandra Kunimoto, about setting up a meeting on Kauai with the affected fanners to explore alternative water sources that may be available in the region to assist the fanners. Mr. David Whatmore, a Kauai fanner and director ofKilauea Agricultural Water Association (KAWA), came forward and testified that the fanners rely on KIC for their water and had no problems with them. Although Mr. Tom Hitch may have left the country, he believed KIC has two employees handling the business. Mr. Whatmore walked the entire Kaloko ditch and thought it was in good condition. His fanner's association was unable to obtain liability iusurance for their Waiakalua Reservoir. He spoke to a Jerry Ornellas ofEast Kauai Water Cooperative and learned how long it would take to create a Co-op. The farmers in his neighborhood are not interested in organizing a Co-op. The other alternative he thought was to dig wells. Mr. Whatmore and KAWA respectfully opposes this tennination ofthe Revocable Pennit to KIC, and asked the Board to defer action. He explained the importance ofsurface water and described the current situation due to the drought. Mr. Whatmore continued by reading his written testimony. Member Agor asked whether the fanners receive their water solely from the privately owned Kaloko Reservoir, and about other water sources that may feed the privately owned Kaloko Reservoir. Mr. Whatmore affinned that they receive their water from
6 Kaloko Reservoir through KlC; but did not know about the availability other water sources in the area.
Member Johns noted that Mr. Hitch had submitted a letter claiming the PUC has chosen not to enforce the liability insurance. He asked whether the PUC has taken any formal action to waive the insurance requirement, and whether has DLNR waived insurance requirements for other permits in the past. Mr. Tsuji replied that he is unfamiliar with whatever the PUC may have required or waived; and as far as DLNR, he said he could not recall any specific situation where the Board actually waived the liability insurance requirement for a permittee or lessee. Mr. Tsuji pointed out that he would not recommend waiving the liability insurance requirement in this situation.
Member Johns expressed his concern about a permittee operating without liability insurance. Member Johns asked whether the insurance is mandated by law. Mr. Tsuji replied that although there is no statute that requires it, it is BLNR'sIDLNR's policy to require all lessees and permittees to procure required amount ofliability insurance for the protection ofthe State. Chairperson Thielen stated that DOA and DLNR is planning to meet with the affected farmers in hopes to find a solution. Mr. Philip Davies a Kilauea organic farmer requested to defer the permit to allow time to come up with the insurance money. He referred to the farmers' written testimony. Mr. Davies stated that the water flowing into the ditch is controlled and monitored. The farmers are committed to obtaining this insurance. He asked the Board for more time.
Member Gon asked whether the farmers have been consistently receiving water from the Kaloko Reservoir even after the disaster. Mr. Davies replied in the affirmative, but indicated there was a break in service when the ditch needed to be repaired. There have been times when no water reached the farmers.
Mr. Earl Yamamoto, a planner from Department ofAgriculture (DOA), stated no changes to DONs written testimony. Member Johns asked how an irrigation district program is set-up. Mr. Yamamoto explained it requires legislation with special funds and cited some examples.
Ms. Christina Lucas, a beneficiary ofthe Lucas Trust, stated she is here as a beneficiary and not representing the Lucas Trust. She indicated the plantation solution is simple and disclosed the Moloa'a ditch was illegally diverted years ago and suggested it could flow into the Kaloko reservoir.
Member Johns wondered whether there are alternatives available, such as directing the water in the ditch away from where it physically flows today (i.e., away from Kaloko Reservoir). The Chair asked whether it was possible for the Board to grant the termination ofthe Revocable Permit today, but also add language stating that ifthe deficiencies under the Permit were cured within a 90-day period, then the termination would not go into effect. Mr. Tsuji suggested an Executive Session.
7 Mr. Whatmore stated he believed it was safe to allow water to continue to flow into the Kaloko Reservoir.
10:59am. The Board recessed for an executive session to consult with the Board's attorney on questions and issues pertaining to the Board's powers, duties, privileges, immunities and liabilities related to this matter. (Johns, Gon)
11:14am. The Board reconvened.
Member Agor stated he felt comfortable with staffs' recommendation as submitted. He felt it protects the State and the people ofHawaii, and also provides for an adequate amount oftime for the farmers to get together to come up with a solution. He is from Kauai and believes the Kauai people are resourceful and will come up with a solution.
Chairperson Thielen again stated that Sandra Kunimoto ofDOA and DLNR staffare planning to meet with the affected farmers in the area in hopes to help find possible solutions to their water needs.
Unanimously approved as submitted. (Agor, Johns) ltemD-4 Set Aside to the Department ofAgriculture for Waimanalo Reservoir and Issuance of a Right-of-Entry Permit to Department of Agriculture, Waimanalo, Oahu, Tax Map Key: (1) 4-1-10:2 and 92.
Mr. Russell Tsuji ofLand Division this is a housekeeping measure. The Waimanalo Reservoir has been managed and operated by DOA for many years; unfortunately staff inadvertently did not follow-up and obtain the Land Board's formal approval for the set aside ofthe land and reservoir to DOA.
Unanimously approved as submitted. (Johns, Gon) ltemC-4 Request for Approval to Issue a Request for Proposal and Execute a Contract with the Selected Offeror for Coordination ofDLNR Youth Conservation Corps/Americorps Program
Mr. Curt Cottrell representing DOFAW requested for approval and to execute the contract. Member Johns asked does this need to be RFP every year. Mr. Cottrell replied yes they must go through the process. Chairperson Thielen asked is mentoring involved or is it all physical. Mr. Cottrell explained it is mentoring and the program has expanded. He gave history ofcurrent coordinator coming out ofYCC. Member Gon added his approval and experience with the people and the program.
Unanimously approved as submitted. (Johns, Gon)
8 There being no further business, Chairperson Thielen adjourned the meeting at 10:25 a.m. Recordings ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted,
Lauren Yasaka
Approved for submittal: L:=Thiei4------Chairperson Department ofLand and Natural Resources
10 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, OCTOBER 12, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Laura Thielen called the meeting ofthe Board ofLand and Natural Resources to order at 9:07 a.m. The following were in attendance:
MEMBERS
Ms. Laura Thielen Mr. Timothy Johns Mr.RonAgor Mr. Jerry Edlao Mr. Samuel Gon III Mr. Robert Pacheco Ms. Taryn Schuman STAFF
Mr. Russell Tsuji, Land Mr. Sam Lemmo, OCCL Mr. Edwin Matsuda, Engineering Mr. Paul Conry, DOFAW Mr. Dan Polhemus, DAR Mr. Wade Ishikawa, DAR Ms. Kimberly Mills OTHERS
Mr. Randy Ishikawa, Deputy Attorney General Ms. Lynn McCrory, D-l Mr. JeffMorrell, L-4 Mr. Glenn Taga, D-2 Pat McHenry, K-l, 5 & 6 Mr. Phil Leas, K-2 Mr. Grant Arnold, K-3 Ms. Murial Leary K-3 Ms. Meredith Ching, L-4
{Note: language for deletion is [bracketed], new/added is underlined}
Item A-I Minutes ofSeptember 28, 2007
Mr. Russell Tsuji, Administrator for the Land Division requested that the board defer action on the minutes to allow him additional time to review as well as the Attorney General's office.
The Board: Move to Defer Unanimously approved as deferred (Johns, Agor) ltemD-l Withdrawal from Governor's Executive Order No. 1967 and Reset Aside to the Department ofLand and Natural Resources, Division of Aquatic Resources for the Wailua Public Fishing Area, Educational, and Recreational Project Purposes; Wailua, Kawaihau, Kauai, Tax Map Key: (4) 4-2-01: Portion 05.
Mr. Tsuji reported that the land currently belongs to the University ofHawaii College of Tropical Agriculture and Human Resources (CTAHR) and will be transferred over to the Division ofAquatic Resources (DAR). An amendment to recommendation 2 was required due to a typographical error; the acreage should be listed as 11.698 acres. A 5th recommendation was also included to grant the immediate management and construction right-of-entry to DAR pending the formal documentation ofthe executive order.
Mr. Dan Polhemus, Administrator for the Division ofAquatic Resources (DAR), gave some background information on the project. Last year DAR established a new public fishing area (PFA) at the Wailua Reservoir. When this was established, there was a parallel initiative to construct an environmental education center adjacent to the lake. This was approved and funded by the Legislature in a pair ofappropriations of$500,000 each in 2006 and 2007. However, for the money to be released and the center to be constructed, it was necessary for CTAHR to transfer an unused parcel oflakeside land, under their control to DLNR. There were previous negotiations with UH, starting in 2002, prior to the new PFA, however when they attempted to bring it before the Board of Regents, they were met with some hesitation because the Board wanted "assurances" about the land.
Lynn McCrory (also provided written testimony), the former Kauai Land Board member, testified that they have been working on this project for about 8 years and it will be the only year-round public fishing area on Kauai. They looked at having the environmental education as a part ofthis area because it is located in Kapa'a, which is one ofthe centrally located areas. She asks for the Board's support on this project.
Member Gon inquired ifshe was happy with the recommendations. She responded that she was.
Wade Ishikawa, DAR employee on Kaual, stated that DLNR looked at this project being similar to Koke'e where the area has different types offamily activities such as hunting, fishing, hiking, etc. This is possible to do at Wailua because the Division ofForestry and Wildlife has already established hunting, offroad driving, an arboretum, and hiking and horseback trails in the area. The two missing elements are the public fishing area (that was just recently established) and an education center.
The Board:
Amendment to recommendation 2:
2 "2. Approve and recommend to the Governor issuance of an executive order withdrawing [2S.4S1] 11.698 acres from the Governor's Executive Order No. 1967..."
Addition of recommendation 5 to read:
"5. Approve the granting of an immediate management and construction Right-of Entry to the Division ofAquatic Resources, DLNR."
Unanimously approved as amended (Agor, Gon) ltemL-3 Request for Authorization for the Chairperson to Negotiate and Execute Agreements with the U.S. Army Corps ofEngineers to Undertake the Kahuku/Malaekahana Flood Study, Oahu.
Mr. Edwin Matsuda, from the Engineering Division, reported that this proj ect is a continuation ofan existing project that started in 2001. The 2001 Legislature awarded up to $500,000 for the Kahuku flood control project to investigate some ofthe chronic flooding on the North Shore. The Army Corps has been working on the project and have completed the hyrdrology and hydrolic calculation studies ofthe area and evaluated alternatives for improvements to the flooding conditions. Unfortunately, the alternatives failed to meet their required cost/benefit ratio so it had to be terminated. All ofthe findings from that project remain in draft form and will not be utilized in future studies or projects. The Engineering Division is asking the Board to initiate a continuation ofthe project under a different program that the Army Corps has, which would finalize the findings from the Kahuku flood control project. The new name ofthe project would be Kahuku Town and Malaekahana Stream Flood Hazard Evaluation. This project would evaluate the neighboring watershed that is tied together with Kahuku and provide documentation offindings which can be used to re-map FEMAs flood insurance rate maps. Hopefully the findings will be used to remove residents from the special flood hazard areas as well as provide documentation ofthe initial findings for future projects.
Unanimously approved as submitted (Schuman, Gon) ltemL-4 Request Approval ofDLNR Dam Permit No. 20 Alexander Dam (HI 98) Emergency Repairs to Spillway.
Mr. Matsuda reported that due to the floods oflast March, it was discovered that the downstream ofthe spillway for Alexander Dam was severely damaged and eroding from the flooding that occurred. The owners, Alexander and Baldwin, have taken steps and have been working closely with DLNR staffto remediate the problems and expedite the repairs so that it will be in working condition in time for the next rainy season. A siphon has been installed to allow the water level to remain low while the construction work is occurring and have been conferring with the Engineering Division on their design plans.
3 The division has been working with consultants to evaluate their proposals and feels that these alternatives are needed and will be an improvement to what is currently out there.
Member Johns inquired ifthere were any other permits needed for the work because it is located within the conservation district. Mr. Matsuda responded that because most ofthe damage occurred during the floods of2006, the emergency proclamation that the Governor provided alleviated them, predominantly ofall permits required, but they have been in contact with the Office ofConservation and Coastal Lands (OCCL) on their proposals even though they are not required to obtain a permit from them.
Meredith Ching, Senior Vice President with Alexander and Baldwin, stated that their engineer is present to answer any questions as well as Mike Bott who is the operations manager for EMI and is also head oftheir dam safety team and JeffMorrell who is their consulting engineer on the project.
Handouts were provided about the project and described to the Board.
JeffMorrell, a civil environmental engineer, has been working on the project since 2006. He reported that during the floods of2006, the flood waters reached the probable maximum flood level resulting in severe damage to the spill way. The dam was in immediate jeopardy when this damage occurred and needed to be fixed quickly. Last winter a siphon was installed 2000 tons ofbasalt rock was placed in the canyon to stabilize the spillway. The basalt has also formed the foundation for the permanent spillway. The next step is to pour the concrete in hopes ofcompleting the project by December.
Member Johns inquired about the condition ofthe rest ofthe dam, assuming that it was covered by the statewide dam reviews done last year. Mr. Morrell stated that it was covered and phase I has been completed. There are some maintenance and repairs that still need to be completed.
Chairperson Thielen questioned Mr. Morrell's statement about the dam being in "good" condition. Have they gone through and made all offthe recommended improvements as stated in the inspection reports? Mr. Morrell responded that not all ofthem have been completed.
Member Gon inquired whether or not Mr. Morrell anticipates any problems with the stabilization ofthe spillway before the rainy season. Mr. Morrell responded that they will be able to complete the project as well as determine ifthere are any problems before December.
Unanimously approved as submitted (Agor, Gon) ltemK-l Conservation District Use Application (CDUA) KA-3379 for a Single Family Residence & Related Improvements Located at Haena, Halelea, Kauai, TMK (4) 5-9-002:059
4 Mr. Sam Lemmo, Administrator for the Office ofConservation and Coastal Lands (OCCL), reported they have received a request for a contested case hearing from Cades and Schutte on behalfoftheir client, therefore, he recommends deferring this item.
The Board: Move to defer
Unanimously approved as deferred (Agor, Schuman) ltemD-2 Consent to Assign Geueral Lease No. S-5233, Dianna Healani Paulo Kekela, Successor Trustee. ofthe 2004 Paulo Family Revocable Living Trust, Assignor, to Jenny Lou Iwalani Paulo-Figueroa, Assignee, Milolii-Hoopuloa, South Kona, Hawaii, Tax Map Key: 3rd/8-9-14:55.
Mr. Tsuji reported that there are no changes to the submittal.
Glenn Taga, council representing Frank Paulo, one ofthe siblings, reported that Mr. Paulo has been trying to fulfill the wishes ofhis parents, who are deceased, to convey the lease to one ofthe 5 siblings ofthe family, Jenny Lou Paulo-Figueroa. They are asking for the Board's consent for the two conveyances and all ofthe siblings have consented to the assignment.
Unanimously approved as deferred (Pacheco, Johns) ltemK-5 Request to Extend the Processing Period in Order to Process Contested Case Hearing KA-08-01 on Conservation District Use Application (CDUA) KA-3399 for the Consolidation ofTwo Parcels and the Construction a Single Family Residence (SFR), at Haena, Hanalei District, Kauai - TMKs: (4) 5-9-03:10, 45, for the Morrow Living Trust.
Member Agor recused himself.
Mr. Lemmo stated that there are no changes to the submittal.
Member Johns asked whether or not that was enough time. Mr. Lemmo responded no, but that was what the applicant was asking for.
Pat McHenry, on behalfofCades Schutte and the applicant, is asking the Board for the extension.
Unanimously approved as submitted (Johns, Edlao)
Item K-6 Request to Extend the Processing Period in Order to Process Contested Case Hearing HA-06-03 on Conservation District Use
5 Application (CDUA) HA-3269 for a Single Family Residence (SFR), at Pao'0, North Kohala, Island ofHawaii - TMK (3) 5-7-001 :005, for Jonathan Cohen.
Mr. Lemmo reported that this submittal is seeking an extension up to May 6, 2008.
Pat McHenry, on behalfofCades Schutte and the applicant, is asking the Board to approve staffs recommendation.
Unanimously approved as submitted (Johns, Edlao)
Item K-2 Conservation District Enforcement File No. KA-06-78 Regarding Alleged Unauthorized Construction of Tension Wire Fence Within the Conservation District Located at Wainiha, Hanalei, Kauai - TMK (4) 5-9-02:32, by John Steelguist (Haena Point Trust).
Written testimony provided by Mr. Steelquist
Mr. Lemmo reported that this is an enforcement case and is asking to defer this matter. While there has not been a request for a contested case hearing yet, he received a letter from Mr. Steelquist on October 10th claiming that the fence is an existing use. Mr. Lemmo did some extensive research on this and found a photograph from the 1990s showing a fence in front ofthe Steelguist property.
Philip Leas, attorney for Mr. Steelquist, acknowledges that there has been a lack of communication between his client and OCCL. He believes there is enough infonnation in Mr. Steelquist's letter to dismiss this matter, but doesn't see any problem in allowing more time for OCCL to establish adequate communication with his client. He also states that within Mr. Steelquist's letter, it is mentioned that his father built a home on the property in 1953 and installed a fence; it is essentially a pasture fence that is on private property, serves a valid purpose, and predates any sort ofregulation. Mr. Leas reiterates that deferring this matter is not an issue and perhaps this can be sorted out with Mr. Lemmo. However, they believe there is no violation and unfortunately his client did not communicate the facts effectively to Mr. Lemmo earlier.
Chair Thielen stated that there is not enough evidence in the letter to dismiss this case and recommends Mr. Leas' client to have more communication with OCCL.
The Board: Move to Defer
Unanimously approved as deferred (Agor, Johns)
Item K-3 Conservation District Use Application (CDUA) OA-3417 for a recreational pier at Wailupe, Honolulu, Oahu - offshore ofTMK: (1) 3-6-01 :21, by Kenton Eldridge.
6 Member Gon recused himself.
Mr. Lemmo gave some background information on the area and stated that this owner is proposing to build a pier similar to the others found in the area. The pier would be a 207 square foot, private, recreational pier that would lie makai ofthe shoreline on submerged land and made from wood fiber reinforced plastic material supported on concrete pile ons.
Member Johns inquired ifit was required for the owners to put up a sign indicating public use is allowed. Mr. Lemmo responded that is what has been instructed.
There was some discussion on the law that mandates the sign.
Grant Arnold, representing the Office ofHawaiian Affairs (OHA), testified that they are in opposition to this project because it is a private pier being used strictly for recreational purposes. They feel that there are enough recreational piers in the area.
Muriel Leary, senior planner at Belt Collins, testified on behalfofMr. Eldridge that he accepts all ofthe conditions in the Staffreport and is familiar with the condition referring to the posting ofthe sign.
Unanimously approved as submitted (Schuman, Johns)
ltemK-4 Second Time Extension Request to Extend the Processing Period for Conservation District Use Application (CDUA) HA-3405 to Develop a Sustainable Commercial Koa Timber Forestry Operation Located at Makahanaloa, Papaikou and Paukaa, South HHo, Island of Hawaii TMKs: (3) 2-7-001:001 & (3) 2-8-001:002, for David De Luz Jr.
Member Schuman recused herself.
Mr. Lemmo explained that because an EIS is required for this project, the applicant may extend the processing period. The applicant has requested an extension until January 28, 2008.
Unanimously approved as amended (Pacheco, Edlao)
Item C-l Request for Amendment ofthe Hawaii Invasive Species Contract 54961 so that a Time Extension to 6/30/08 may be Pursued.
Mr. Paul Conry, Administrator for the Division ofForestry and Wildlife (DOFAW), reported that C-l and C-2 are routine contract extensions oftime and contract amendments and are asking for Board approval.
Unanimously approved as submitted (Agor, Johns)
7 Item C-2 Request for Amendment ofthe Hawaii Invasive Species Contract 53599 so That a Time Exteusion to 5/30/08 may be Pursued.
Member Johns recused himself.
Unanimously approved as submitted (Gon, Edlao)
Item C-3 Request for Approval to Enter into Contracts to Implement the FY08 Watershed Partnership Program Grants.
Member Gon recused himself.
Mr. Conry stated they are awarding roughly $2.6 million dollars this year and needs the board's approval to execute contracts for those projects that require a state contract. Mr. Conry handed out a letter ofsupport from OHA, which also included comments such as reminding the Department about native Hawaiian gathering rights and to make certain that the Department takes action to ensure greater consultation with native Hawaiians in the process. Mr. Conry stated that they would greatly welcome OHA to participate in watershed partnerships especially since they are now becoming one ofthe landowners.
Unanimously approved as submitted (Pacheco, Johns) ltemD-3 Request for the Land Board's Consent to a Mortgage and the Issuance of a Estoppel Certificate using the State's Standard Forms as Approved by the Department ofthe Attorney General, with respect to General Lease No. S-5862, Global Resort Partners/ BH Hotels, Lessee, Hilton Waikoloa Village, Anaehoomalu, South Kohala, Hawaii, Tax rd Map Key: 3 / 6-9-07: 14.
Mr. Tsuji reported there will be two types oflending; one is going to be secured by the leasehold in the ground lease for the submerged lands for the restaurant at Waikaloa and the second is through mezzanine financing.
Unanimously approved as submitted (Pacheco, Johns) ltemD-4 Grant ofTerm, Non-Exclusive Easement to Chantee Shiroma, Glenn Shiroma & Samuel Alameda for Access and Utility Purposes, Kulaimano Homesteads, South Hilo, Hawaii, Tax Map Key: 3rd/2-8 06:06. ltemD-5 Amend Prior Board Action ofJune 9, 2006 (Agenda Item D-8) for Sale ofReclaimed (Filled) Land to Jane N. Ueyama, as Trustee ofthe Jane N. Ueyama Revocable Living Trust dated July 10, 2001, and Lynn Wong, Wailupe, Honolulu, Oahu TMK (1) 3-6-003:015 seaward.
Unanimously approved as submitted (Johns, Pacheco)
8 ltemD-6 Issuance ofRight-of-Entry Permit to Hawaiian Electric Company, Inc. on Lands Encumbered by General Lease No. S-3850, United States ofAmerica by the Department ofArmy, Kahuku, Koolauloa, Oahu, Map Key: (I) 5-9-006:026.
Mr. Tsuji reported that Hawaiian Electric Company (HECO) requested that the item be withdrawn.
Letter provided from HECOwith the request.
The Board: Move to withdraw
Unanimously approved as withdrawn (Edlao, Schuman) ltemL-I Rescind Prior Board Action of Sept. 8, 2006 (Item L-I), Award of Construction Contract - Job No. JOOCF34A, Lava Tree State Monument, ADA Barrier Removal"Hilo, Hawaii
and
Approve Award of Construction Contract - Job No. JOOCF34A Lava Tree State Monument, ADA Barrier removal, Hilo, Hawaii. ltemL-2 Approval for Award of Construction Contract - Job No. BOODB94A, Sewer Connection for Port Allen Small Boat Harbor, Eleele, Koloa Kauai, Hawaii. ltemL-5 Appointment of Kona Soil and Water Conservation District Director.
Unanimously approved as submitted (Johns, Gon)
Item M-I Consent to Sublease ofLease No. DOT-A-05-0007 Air Molokai, Inc. to Heli-USA Airways, Inc. Honolulu International Airport.
Unanimously approved as submitted (Johns, Edlao)
There being no further business, Chairperson Thielen adjourned the meeting at 10:25 a.m. Recordings ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
9 Respectfully submitted,
Lauren Yasaka
Approved for submittal:
I~m Thi'lfl;;------ Chairperson Department ofLand and Natural Resources
10 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, OCTOBER 26, 2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Laura Thielen called the meeting ofthe Board ofLand and Natural Resources to order at 9:07 a.m. The following were in attendance:
MEMBERS
Ms. Laura Thielen Mr. Timothy Johns Mr. Ron Agor Mr. Jerry Edlao Dr. Samuel Gon III Mr. Robert Pacheco
STAFF
Mr. Russell Tsuji, Land Mr. Sam Lemmo, OCCL Mr. Edwin Matsuda, Engineering Mr. Paul Conry, DOFAW Mr. Dan Polhemus, DAR Mr. Wade Ishikawa, DAR Ms. Kimberly Mills Ms. Dawn Heggar, OCCL
OTHERS
Mr. Colin Lau, Deputy Attorney General Mr. Dennis Niles, J-I Ms. Linda Chow, Deputy Attorney General Mr. Mark Robinson, J-I Mr. Bill Wynhoff, Deputy Attorney General Mr. Randy Vitousek, K-I Mr. Robert McKnight, D-I Mr. George Wood, D-5 Mr. Dawson Miura, D-5 Mr. Bob Schnider, D-4 Mr. Francis Nishimura, D-8 Mr. Gerald Park, K-2 Ms. Yvonne Izu, K-3 Mr. Henry Curtis, M-4 Mr. Harrilyn Kameenui, D-7 Mr. Allan Murakami, K-3 Mr. Ray Iwamoto, M-4
{Note: language for deletion is [bracketed], new/added is underlined} ltemA-l Minutes of September 28, 2007
Member Edlao recused himself Unanimously approved as submitted (Pacheco, Gon)
Item A-2 Minutes of October 12,2007
Unanimously approved as submitted (Pacheco, Johns)
Item J-t Cancellation of Commercial Permit Issued to Iconoclast, Ltd. For Lahaina Small Boat Harbor and Reissuance oflconoclast, Ltdo's Vessel Moored Elsewhere Permit for Lahaina Small Boat Harbor.
The Board may go into Executive Session pursuant to Section 92 5(a)(4), Hawaii Revised Statutes, to discuss the contents of confidential attorney-client memoranda, and to consult with the Board's attorney on questions and issues pertaining to the Board's powers, duties, privileges, immunities and liabilities.
Ed Underwood, Administrator for the Division ofBoating and Ocean Recreation, provided some background information on this situation. He stated that the owner has a commercial vessel moored elsewhere (VME) permit offshore and has purchased a fishing corporation within the harbor under the name, Lahaina Bird 90. The rules allow that if you have a mooring permit within the harbor, you can bring your VME permit into the harbor and be issued a commercial use permit for the harbor. However, the issue is that it is two separate entities so the permit should not have been issued. Therefore staffis asking to rescind the permit issued to Iconoclast for Lahaina Bird 90's slip and reissue re issue them their VME permit.
Dennis Niles, representative on behalfofMark Robinson (the stock holder that owns both entities), gave additional background onthe situation. He stated that he provided the Board with a letter that gave the facts in greater detail and put forth the legal analysis that lead him to the conclusion that the harbor agent did not make a mistake. He believes that they are here before the Board to determine whether the actions ofMr. Underwood in cancelling the permit should be ratified.
Motion was made to enter into Executive Session to discuss with the Board's attorney on questions and issues pertaining to the Board's powers, duties, privileges, immunities and liabilities. (Johns, Edlao)
The Board went into Executive session at 9:27 a.m.
The meeting resumed at 9:38 a.m.
Unanimously approved as submitted (Edlao, Tim)
2 Item K-2 Conservation District Use Application (CDUA) OA- 3425 For a Barn, Paddocks and Landscaping by James & Lisa Hogg, Located at Kaneohe, Koolaupoko, Island of Oahu, TMK: (1) 4-5-042:008
Sam Lemmo, Administrator for the Office ofConservation and Coastal Lands, provided some background information. He stated that the area is 100,000 sq feet, located in the general subzone. The owners are proposing to construct a 1700 sq foot barn and clear two paddocks, about 14,000 and 87,000 sq feet. They also waot to clear some hau trees to create fire breaks aod stable two horses. They will do a horse management plan to maoage the animal waste. Based on the circumstances ofthis case, staff feels comfortable that the use is compatible with the area aod will not be a nuisance to the neighbors. Therefore, staffis recommending approval ofthis permit subject to standard conditions.
Gerald Park was present to aoswer any questions the Board had.
Unanimously approved as submitted (Johns, Edlao)
Item K-3 Enforcement Action Regarding Breach of Conservation District Use Permit (CDUP) OA-2670 Conditions #10 and #26 by HASEKO, Located at Honouliuli, Ewa, Oahu, TMK: (1) 9-1-012:xxx
Mr. Lemmo gave some background information. He stated that this project is a part of the Ocean Point Master Plan. On April 26, 2000 the Board approved an amended finding offact, conclusions oflaw, decision, and order ofconditions in granting Haseko a CDUP to construct a marine entraoce channel. Along with that permit, the US Army Corp of Engineers also issued a permit that included ao MOA signed by Haseko, the State Historic Preservation Division, the Office ofHawaiian Affairs, the Advisory Council on Historic Preservation, and the Army Corp. The MOA notes that the construction will have ao adverse effect on 21 historic sites. For archeological site preservation and mitigation, buffer fencing was to be placed around archeological sites. On August 24til Haseko went before the Board to propose amendments to their permit, but at the time it was revealed that a site may have been damaged and a breach ofthe permit may have occuned. Staff did some investigation and found that the archeological sites that were damaged do not fall within the conservation district, therefore, OCCL has no regulatory enforcement. However, there are two conditions in the CDUP that requires compliaoce with the MOA. Because stafffeels that the MOA was breeched, they consider it a breach ofHaseko's CDUP conditions. Therefore staffis asking the Board to fine the permitee in violation in two instances; the breach ofthe conditions 10 and 26 ofthe MOA and are recommending that the Board fine the permitee $40,000 with some administrative costs totaling $4,500 and that the land owner amend the MOA to resolve the non compliance with the conditions.
Yvonne Izu, representative for Haseko, stated that Haseko is not disagreeing with Staffs recommendation nor disputing the fines. However, there are members ofthe Hoakole Cultural Foundation requesting that the fines be paid to the cultural foundation for its activities rather than the State and Haseko does support that. She believes that the issue
3 deals with the continuous use ofa pre-existing cane haul road located within the archeological buffer zone. Prior to starting the project, Haseko asked the Army Corps for permission and their archeologist gave the okay. In regards to being in violation with the MOA, they confirmed with the Army Corps that they are not in violation with the MOA. However, they will move the road out ofthe buffer zone, but are requesting 30 days to find alternative access because they need to obtain permission from the Navy for access.
Members from the Hoakole Cultural Foundation testified in support ofhaving the fines go to the Cultural Foundation rather than the State so that they can continue with their education and preservation efforts ofthe cultural sites within the Ewa area.
Allan Murakami, representing the Native Hawaiian Legal Corps, stated that there needs to be stronger monitoring ofthese areas.
The Board:
Amend recommendation 4 as follows:
"The landowner shall within 30 days comply with the MOA or amend the MOA to resolve the non-compliance conditions for CDUP OA-2670"
Add recommendation7:
"Request that the Department devise a monitoring compliance plan."
Unanimously approved as amended (Johns, Agor)
Item D-8 Quitclaim of State's Interests, ifAny, in the Proposed Kuakini Street Extension Road and Adjacent Lands to the City and County of Honolulu and Hawaii Health Systems Corporation; Acceptance of a Quitclaim Deed from the City and County ofHonolulu, and Set Aside to Hawaii Public Housing Authority for Stonewall Encroachment, Kapalama, Oahu, Tax Map Key: (1) 1-6-9:1 and Proposed Kuakini Street Extension Road. (ADMINISTRATION/Charlene)
Russell Tsuji, Administrator for the Land Division, gave some background information. He stated that this is in connection with the County's Kuakini Street Extension Project and the big issue that has been holding the project up is that that County only wanted certain lands which would leave the State with remnant pieces to maintain. This in turn becomes burdensome. Charlene Unoki and Linda Chow have been going to numerous meetings with the County and with Senator Chun Oakland and finally staffthinks they have found a solution that will work for both the State and the County. The County is insistent that they only want a certain portion ofland that will result in a mauka remnant piece as well as a makai remnant piece. Through the help ofSenator Chun Oakland the Maluhia Hospital Board has agreed to take the mauka remnant and plan to use it for
4 parking. Senator Chun Oakland has asked the Public Housing Authority to see ifthey would be willing to take the makai remnant.
Francis Nishimura, community coordinator for the Kuakini Extension Programs, testified in support ofthe project.
In response to a letter dated October 22, 2007 from Mr. Melvin Kaku, Director for Department ofTransportation Services, staffproposed and the Board approved the following amendments to the written submittal:
Add to Page 4 Number 3: "On October 18, 2007, the HHSC Board authorized to accept the transfer ofthe mauka remnant for use as an at-grade parking lot, which will be built in compliance with City & County of Honolulu building codes, No other structure shall be built on the property except for security fencing."
Add a NEW Recommendation 6 to read as follows: "Subject to construction funding ofthe City's Kuakini Street Extension Project."
Add a NEW recommendation 7 to read as follows: "Subject to Hawaii Public Housing Authority Board approval for the set aside of the makai remnant to the Hawaii Public Housing Authority."
Unanimously approved as amended (Pacheco, Johns)
M-4 Issuance of Direct Lease to Imperium Renewables Hawaii LLC. At Kalaeloa Barbers Point Harbor, Honouliuli, Ewa, Oahu.
Member Johns recused himself
Glenn Abe, representing Department OfTransportation Harbors Division, wished to amend the submittal because they inadvertently left out the Environmental Assessment Requirement. He handed out a summary ofthe EA process that Imperium Renewables went through. He mentioned that the applicant has I year from whence the lease is issued to complete construction.
Ray Iwamoto, attorney for Imperium Renewables Hawaii LLC, stated they will be constructing the infrastructure for the site and will actually be constructing more than what is necessary for themselves so they will set up something for reimbursement when the construction is finished.
David Leonard, Chief Operating Office for Imperium Renewables Hawaii LLC, was present to answer any questions.
Mr. Iwamoto went over the supplement to the submittal that Mr. Abe had handed out.
5 Henry Curtis, representative for Life ofthe Land, testified against the project. He requested a contested case.
Motion was made to enter into Executive Session to discuss with the Board's attorney on questions and issues pertaining to the Board's powers, duties, privileges, immunities and liabilities. (Edlao, Pacheco)
The Board went into Executive session at 10:42 a.m.
The meeting resumed at 10:55 a.m.
Chairperson Thielen gave instructions on what Mr. Curtis needs to do to formally request a contested case and that this item will be placed on the November agenda because in the event that there is no contested case, the Board may take action at the next meeting. However, she mentioned that the Board would feel more comfortable ifthe Department ofTransportation provided additional information to the Board due to the scale ofthis project.
The Board:
Motion to defer decision making until November
Unanimously approved as deferred (Gon, Agor)
D-l Encroachment on State Unencumbered Public Land by Robert C. McKnight Located at Kapaahu, Puna, Island ofHawaii, Makai ofPlat (3) 1-2-001:
Mr. Tsuji stated that he will be calling on Mr. Lemmo because he was involved with the investigation ofthis encroachment issue. What had happened was the property in question was originally shoreline property, but because oflava accretion, that additional accreted land becomes State land. The respondent was apparently building structures on these State lands and Mr. Lemmo was looking at it as a conservation district use violation. However, an issue arose with the Attorney General's office about whether the accreted land is conservation lands, therefore, to be extra cautious, Mr. Lemmo approached the Land Division and asked them to deal with it as an encroachment action. Bottom line is that this respondent has been building structures on State lands and has received repeated requests from OCCL to cease and desist, but has not stopped the activity.
Mr. Lemmo stated that Mr. McKnight started to build a pavilion in the area and was given several cease and desist orders, but the work continued. Mr. Lemmo went out to the site once and noted additional work. Mr. McKnight has been continuously sending staff construction plans and drawings, so it appears that he has not stopped the work nor is he willing to stop the work. Staffhas major concerns because on a hazard scale, with 1
6 being the most hazardous, this area is rated a 2. Also this area is an old lava bench and can collapse without warning.
Mr. Robert McKnight, the owner ofthe four ocean lots in question, stated that the land was un-surveyed when he started construction. He purchased the lots a little over 3 years ago and did an extensive clean up ofthe area. He has done his own measuring to determine the boundaries ofhis property.
Member Johns stated that a survey ofthe area was done in June 2006. Mr. Lemmo verified that it was done by the Department ofAccounting and General Services survey crew and they GPSed the location ofthe pavilion and found that its about 200 feet seaward ofthe old shoreline.
Member John inquired ifMr. McKnight had anything to dispute the DAGS survey. He responded that he only had his own measurements and the existing shoreline.
Member Johns noted that the DAGS survey map is similar to that ofthe 1981 USGS map.
Mr. McKnight proposed that perhaps a variance could be granted because his intention was to keep those ocean front lots in conservation or he is willing to offer the State a boundary adjustment that would accommodate this discrepancy.
Chair Thielen asked whether Mr. McKnight is willing to abide by the certified line in the 2006 map and then remove the structure on State land. He responded that he is willing to abide by whatever is decided, but the letters he received from OCCL only suggested that he may want to remove this structure. Therefore, he decided not to. He wishes not to take down the structure because he's hand built it, bought the property, and has all ofhis money invested into this. Ifhe has to take the structure down, not only does he not have the funds to do so, he also has take out the structure without causing damage to the area.
Mr. McKnight then mentioned that he had a survey done ofhis property and found that he is 180 feet from the somewhat nebulous, old coast line.
Chair Thielen questioned staffabout why the administrative costs listed in the fine are higher than normal. Mr. Lemmo responded that it's because numerous people had to go out to the sight and the air fares add up.
Member Pacheco made a motion to make a change to the recommendations. He wished to delete the $4,500 fine, therefore, making the total fine $2,100.
Member Johns second the motion for the purpose ofdiscussion.
Member Edlao noted that he was going to follow Member Pacheco's recommendation, but feels that there was blatant disregard against the notices, therefore, he can go either way; whether the fine stays or is taken out.
7 Member Rob stated that he understands how confusing it is out there and the survey of the shoreline was done completely piece meal, but he feels that compared to what took place in the Haseko case, this situation needs to be put into perspective. He also knows that Mr. McKnight will have considerable costs trying to remove the structure.
Members voted and Member Edlao and Pacheco were in favor while members Agor, Johns, and Gon objected.
The motion did not pass.
Member John made a motion to reduce the fine to $2,500 plus the administrative costs.
The Board amended Recommendation No.1 by reducing the fine from $4,500.00 to $2,500.00. The Board affirmed the assessment of administrative costs of $2,100.00.
Unanimously approved amended (Johns, Pacheco)
K-l Request for Deviation from Conditions Previously Approved by the Board ofLand and Natural Resources on Fourteen (14) Couservation District Use Permits for Siugle-Family Resideuces, at Haena, Kauai c/o Roy A. Vitousek - TMKs (4) 5-9-002:18, 21, 22, 35, 39, 41, 43, 44, 46,50,51,52,61; (4) 5-9-005:21
Mr. Lemmo: Okay this is item K-I Request from deviation from conditions previously approved by the Board on fourteen (14) CDUA's for single family residences this is in Haena area ofisland ofKauaL This is a rather short, detailed oriented submittal so I'm not sure how you want me to approach it. I can..I'm gorma have to read some ofthis. On March 23 the DLNR sent sixteen (16) certified letters to homeowners in the Haena area requesting them to cease unauthorized commercial use "vacation rental use" oftheir dwelling. We asked them to stop the use by June 30 ofthis year or face fines ofup to $2,000 per day. In April ofthis year we received a letter from their attorney, Randy Vitousek and he asked for an extension ofthat deadline to January 15,2008 to discuss other avenues or means in which to resolve the alleged violations. In that transmittal, he also requested a contested case hearing. He's representing fourteen (14) ofthe sixteen (16) landowners at this time. On May 30, 2007, the DLNR issued a letter to Mr. Vitousek indicating that it might consider an extension until January 1. They had to agree to a number ofstipulations ofcourse one ofthem was that they had to stop doing what we asked them to stop. We also told him that his request for a contested case hearing was premature because we didn't consider the letter that we sent him a formal order ofthe department within the meaning ofsection 13-5-3, HAR. So basically, we issued another letter to Mr. Vitousek in September indicating that we might allow an extension ofup until January 15 ifthey once again agreed to cease unauthorized commercial uses. Asking them to submit sworn affidavit that they agreed to stop using the single family dwelling for rental or any other commercial purpose, and actually stop such uses by January 15,2008. We also said should his clients not agree to that, we
8 would commence enforcement immediately starting January 1,2008. Meaning we would reissue orders and do the detail investigation and bring the case before the Land Board. On September 10, Mr. Vitousek submitted a letter requesting that you permit a deviation from the condition that prohibits the commercial use ofthe property. So in essence, in summary, Mr. Vitousek is asking you to delete any language that purports to prohibit the owner ofa single family residence from renting the property. Basically we wanted to give Mr. Vitousek an opportunity to address the Board so I talked to the chairperson and we have scheduled it for today to give Mr. Vitousek an opportunity to address you with his concerns. However as the staff report points out we believe that this request for a deviation from the standard conditions ofthose, ofeveryone one ofthose permits is premature. It would represent a digression from our efforts to enforce our conservation laws. We have to keep in mind that these people have, the people that have been the subject ofthe investigation have been aggressively marketing vacation rentals on internet sites, through marketing companies, through management companies and this is clearly in our determination at odds with the intent ofthe conservation district and the specific conditions ofthose permits. So once again our remedy is to simply have them to stop doing it without us even having to fine them and they would just certify that. So basically we're recommending to you today that you set aside this request for a deviation pending the outcome ofthe Haena unauthorized vacation rental investigation. And there is also a, Mr. Vitousek submitted a brief which you should all have a copy ofand I, so this is obviously his memorandum in support ofthe deviation, in support ofdiscussing the deviation.
Member Agor: So basically Sam you're saying that after they comply up to the extension ofJanuary 15, ifthey comply from now until that time then the issue ofdeviation can come back to the Board?
Mr. Lemmo: The issue ofthe violation?
Member Agor: No deviation.
Mr. Lemmo: Deviation. Well there won't be a need for a deviation request. Well yeah ifthey want to stop, ifthey stop and they comply and then they say okay we're in compliance now and we're not doing it any longer and we want to discuss the deviation now so we can now commence doing that legally.
Member Agor: Yes. Okay that's the purpose ofyour recommendation.
Mr. Lemmo: Yeah, that's correct.
Chairperson Thielen: Any questions for staff? We have Randy Vitousek that have signed up to.
Mr. Vitousek: Good Morning. I'm Randy Vitousek and I represent the members ofwhat we're calling the Haena Hui Hou. It's fourteen (14) property owners at Haena that are here today. I'd like to introduce Gary Apolonia Stice. Gary is a professor emeritus at the
9 University ofHawaii in Marine Geology. His wife is born and raised in Camp II in Spreckelsville, raised in Lanai. We have Collen Faye, she is a fifth generation Kauai resident her children who are part owners ofthe property are six generation. We also have Mike and Liz Tiernan. Liz is a proud graduate ofAina Haina elementary. I just wanted you to meet some ofthe people who are, who are among the Haena Hui members. Basically this started you know the Haena Hui is an unusual area, Haena Hui partition area is an unusual area. It was created by a partition lawsuit, it created a number oflots which were partitioned out to different people who held partial interest in the big parcel. And from the beginning, I mean these subdivisions were created without DLNR approval even though it was in conservation district and it's been recognized from the beginning that Haena is a little bit different. It's not like a regular conservation area where you have isolated parcels that are surronnded by lands ofhigh resource value. This is really an area where there are lots side by side by side and there's an invisible boundary and more lots side by side by side which are in the residential district and regulated by the county. So the DLNR at one point proposed regulations that would treat Haena Hui lands differently from other conservation lands and would create a special category for Haena Hui conservation, residential lands. Interestingly, during that same propose rule making or proposed revisions to the rules they proposed changing this condition, the condition that is allegedly being violated for all conservation residences. What happened was these orders were served with cease and desist orders saying that they should stop operating vacation rentals on their property because they had a condition in their permit which prohibited rental and other commercial uses. Okay and so there were other owners in Haena who were, who had the same condition in their permit who were doing long-term rentals. In other words who would rent their property to other people including renting to Karen Diamond for example. Those people didn't get letters because somehow the Department decided that long-term rentals was different from vacation rental even though the condition prohibits rental. Okay there were also owners who used their property that had conditions like this for commercial purposes like scuba tours. They didn't get letters either.
Chairperson Thielen: Mr. Vitousek, I'm sorry its just been a long day and we still have quite a bit ofan agenda between us and you sonnd like you're trying to get into an argument right now about whether this is commercial use or not. And what we have is a request from you for a deviation.
Mr. Vitousek: That's right.
Chairperson Thielen: to permit the vacation rental or the commercial use. So you do have conditions in your permit, in the permit for these properties that say no commercial use and you are before us today to seek a deviation to permit.
Mr. Vitousek: Actually what I am before you today, as I read the staffreport, the staff didn't present the Board with information on the merits ofthe petition. Staffdidn't present the Board with any information on the pros and cons ofdeviating from, from this, from this condition. What they asked is for a continuance
10 Member Johns: Until?
Mr. Vitousek: Until after they were able to prosecute us for violating the condition. And what we did when we were served with these, we requested additional time and we requested the opportunity to address the issues through alternative means. Now what I'm trying to do is address the issue by pointing out the condition as written is unpermissibly vague and ambiguous and has not been enforced by this Board on in a consistent manner fot decades. And that's part ofmy basis to request that there be a deviation from the condition. So if! can't make that presentation then what I would ask is that this matter be set for like a determination on the merits ofour application. In other words that the Department present its position to the Board on whether or not there should be a deviation and give you some data on it and like explain to you why it is that renting a house as opposed to living in it adversely affects the conservation district.
Thielen: So that we can take up when the staffcompletes its investigation on the.
Mr. Vitousek: Well, what we are request. Right now we're, we've requested an extension oftime that was granted by this Department. The Department granted an extension to December 31. And so what we're trying to do is address it before we goes offinto an enforcement action. In other words we could go to December and they could find us in violation, we could go to contested case, we could go done the whole route on a violation then we could come back here maybe a year in a half later and ask you to re evaluate the condition exactly like you did in 1997 when you proposed, when the Department proposed that the condition be changed.
Thielen: And it did not change it. Correct.
Mr. Vitousek: That's correct but it said the condition as written was unreasonable, and unenforceable, and over broad.
Chairperson Thielen: I think that again is going into the discussion though at the end of the investigation when there is a recommendation that comes back to this Board on that condition itself.
Mr. Vitousek: What you're, right and I haven't right and I haven't
Chairperson Thielen: My understanding was there was a request for a deviation to permit the commercial rentals ofthese properties. Staffs recommendation before us today is to not grant that deviation.
Mr. Vitousek: Actually their recommendation is to set it aside whatever that means.
Chairperson Thielen: Sorry, to set aside the request for a deviation and allow them to complete their investigation.
II Mr. Vitousek: Well it sounds to me like a request for a continuance and what I'm saying is that what we'd like to do is have this issue addressed before we go into an enforcement action. In other words, we know what the issue is , we know what the condition says, why cant we.
Member Johns: Randy, how would we do that then? The normal process would be or the process that's in motion is your have a enforcement action and you guys want to do a contested case and then we go to a contested case and it comes back to us like you described. How's does what you're proposing change that?
Mr. Vitousek: Well the way it changes that is in the end
Member Johns: I'm not sure there is a petition
Mr. Vitousek: There is a petition.
Member Johns: Describe that process.
Mr. Vitousek: Yeah sure. What we do is looked at the rules and we're trying to find a way to address the issue without it being based on them trying to prosecute us, the Department trying to prosecute us and us trying to defend. And what we found was rule 3l5-42C which allows someone to petition for deviation from conditions.
Member Johns: Okay.
Mr. Vitousek: And so that's what this is. We filed a
Member Johns: How does that get, how does that petition get processed normally.
Mr. Vitousek: Well I've never seen it before but what I assumed was because it had criteria that in other words it says deviation from a condition maybe considered by the Board when supported by satisfactory written justification stating 1,2,3,4. So I have filed a written request stating those and what we're asking is that the Board make that decision. What OCCL is ask is that it be delayed.
Member Johns: Right, Right.
Mr. Vitousek: We're asking that it be decided before they prosecute us.
Member Johns: Right I understand but from the AG's standpoint, or Sam how do you normally process. I lmow how petitions for rule making changes have been processed but petitions for deviations is that just a regular Chapter 91 or Chapter 92 sunshine issue that comes to us or is it a separate hearing process? I'm just kinda asking ...
Mr. Lemmo: No, there's no set ...
12 Member Johns: Asking how logistically how it's done
Mr. Lemmo: We've had a couple ofcases were people have asked for instance a reduction in a set back to a property line. And so we presented that to you in a context of a normal review, core review process and saying does this meet, can you grant a deviation from the set back in this case.
Member Johns: As part ofa CDUA application or enforcement action
Mr. Lemmo: As part ofa CDUA. Not enforcement. I've never done anything on enforcement. And there's been a, and certainly that's what the rules says that you can grant a deviation from the standard condition ifit meets but we've never ...
Member Johns: Cause what we're talking about is process. I think it sounds like because it's either do it through the process where you find a violation, you finish your enforcement investigation and find a violation or not. But ifyou do, then make the determination whether to have a contested case then we go through that, then it comes back to us. And that's one way and in that during that contested case these argument you make in here will be made in that contested case. And at the end ofthat, they don't like it, or we don't grant the deviation then we find an enforcement then we're in a contested case and make your arguments again. I'm just trying to figure out which way is more efficient.
Mr. Lemmo: I think it's more efficient to proceed with the enforcement action and
Member Johns: Because?
Mr. Lemmo: Because ifwe take up the petition and argue the merits ofa deviation this is going to take a long time. At the end ofthe day, you might say yes, you might say no. If you say yes, then fine everybody is happy. Ifyou say no, we go back into enforcement mode. And so we are going to be at lease a year or year and a halfbehind the ball ifyou were to go to the negative on the deviation.
Member Johns: Okay.
Mr. Lemmo: So I'm saying we're in a violation proceeding here or a quasi violation proceeding and he's asking you to do something outside that proceeding and I'm saying I don't think that's in the greatest interest ofthe Department.
Member Johns: Is the process, the normal violation process with the contested case is that some how, do we get better information from that then we would get through the petition examination process. Or is one better than the other or we're going to get the same kind ofinformation
13 Mr. Lemmo: The contested case you would be a good venue to produce that kind of information you have witnesses, you introduce evidence, you have examination and cross examination and you have deposition you have the whole quasi-process.
Member Johns: From its resource protection, just internal resource protection, ifwe go through the petition and then we don't come up with the result your client like then we're gonna be right where we are today anyway.
Mr. Vitousek: Oh yes but ...
Member Johns: And so I don't know how that is better. So tell me why it's better.
Mr. Vitousek: Okay, the reason I think it's better because basically ifwe go into a contested case the issue will be, is the condition enforceable because it's too vague and you basically, the Department basically admitted it's too vague. And so ifwe get a determination it's too vague all that is going to do is decide we can't prosecute these people. It won't do anything to craft a condition which best fits the interest ofthe Department and the people in Haena where the Department has recognized Haena is different and that this condition is overbroad. And so what we're trying to do, is do it in a non-adversarial fashion to see ifthere is a way to avoid having prosecuting these people in order to craft a condition which protects the environment and yet allows people property rights that are consistent with the nature oftheir homes in Haena.
Member Johns: Consistent with ... maybe this will come up later but the residential, urbanized property that's right adjacent does it have vacation rental restrictions? How does the county treat that?
Mr. Vitousek: Right now there's a, right now the county has a pending ordinance, as I understand it and Mr. Agor would know better than I. A pending ordinance to right now not to prohibit. There is a pending ordinance prohibitive to set up a use permit process where someone could apply to do a vacation rental ifyou met certain criteria. So there is a way to make that consistent with what's going on immediately next door in the urban zone portions ofHaena. So that's kinda what we're asking and frankly that's what we asked from the beginning when we asked for the additional time to try to find a way to resolve it that doesn't involve you know, litigating over alleged violations. Actually one other thing, and that is like you know there hasn't been a lot ofconsistency. The cease and desist order said no vacation rental. The next order said no commercial use. The next order said no rental or commercial use, you know. And right now what their saying, ifwe agree, ifwe sign an affidavit that says whey won't use the property for rental use or other commercial purposes then they won't prosecute. But they haven't served anybody with a cease and desist order who rents their property on a long-term basis. So they're basically asking these homeowners to give an affidavit that they won't do something that they haven't prohibited statewide from doing in the conservation district. Which is, if you can't live in your house, you can rent it to somebody else. And so I'm afraid that if we go to a contested case on, ifwe go to court on it and the decision is that it's not an enforceable condition that applies everywhere, you know. That's going to be, it's gonna
14 say this thing is too big to enforce. Whereas we have the opportunity to recognize Haena is a little different and the condition could use some modification to accomplish that in a manner that 'doesn't have broader application and doesn't entail as confrontational decision making process.
Member Agor: Sam I was under the impression that we couldn't entertain the deviation while there's a violation.
Mr. Lemmo: Well, there was a, this is, there's been comments made in writing that were not technically, there is no formal order for them to cease and desist the use so we are not technically in a violation proceeding. What we've tried to do is tried to get them to cooperate with us and we've given them time to do that. And at the end ofthat time ifwe don't see the cooperation then we're going to a formal action. At that time yeah we could not discuss the deviation because the deviation amounts to an application in my mind and you can't entertain an application when you have, in the middle ofa violation proceeding.
Member Agor: Right, right, right.
Mr. Vitousek: And so our point is we're not now so we can entertain a violation now. We can entertain it now. And now we can talk about it now and so let's try to do that and see ifwe can avoid going into the rest ofthe process. That's why we're trying to have this, that's why we asked for the extension. That's why we're trying to give some
Member Agor: So you're issued a cease and desist and
Member Johns: Is there a cease and desist?
Member Agor: What a the notes
Member Johns: There's a notice.
Member Pacheco: Yes.
Mr. Lemmo: There's a notice
Member Pacheco: This whole thing.
Mr. Vitousek: Was from December 3I
Member Johns: The notice's that Randy referred to about vacation rental, commercial use
Member Agor: Right.
Member Johns: Rental this, what were those letters?
IS Mr. Lemmo: Those are the letters that we were sending to the homeowners and his talking about specific language. It's basically semantics.
Member Johns: No, I understand that but what were those letters, were those letters intended to be the beginning to triggering ofan enforcement action? Were they cease and desist orders that you would then measure as the beginning ofan enforcement action or not?
Mr. Lemmo: You know I'm not, I'm not an attorney and I don't really, I'm not qualified to get into the details ofwhether this constitutes a
Chairperson Thielen: Sam, we're referring, these are the letters you have as exhibits. Exhibit 2 and so you have, you have until June 30, 2007 to cease any unauthorized use on the subject property.
Mr. Lemmo: Sounds like a cease and desist
Mr. Vitousek: And that was extende,d to December 3I. So we haven't reached the point where we are under an order to cease and desist.
Member Pacheco: Sam, would you agree with Mr. Vitousek's characteristic ofHaena as a special case.
Mr. Johns: I was going to ask that same question. Is there a middle ground? I mean, is what your clients want, they want to do vacation rentals there however we define that short-term rentals, daily basis, weekly basis or whatever cause ifthat's what your clients want, ultimately then you know we might view the deviation differently ifthere. I'm not sure what your clients exactly want other than saying that they don't want this violation brought against them.
Mr. Vitousek: All fourteen (14) clients don't want a violation brought against them.
Member Johns: I see that.
Mr. Vitousek: Other than that, there are differences. It's a question ofa number of things. Right now, the problem is we are being told that they can't rent al all, you know. And that's a problem because these people you know the property tax on these properties are $2,000 a month.
Member Johns: So how do we normally deal with that? Somebody that says the can't do quote unquote long-term rentals, however you define that.
Mr. Lemmo: Yeah, the rule says, the rules a rule. Ifyou have a condition that says no rental or commercial purpose ifyour long-term rental is an exchange ofmoney. It's the same thing.
16 Member Johns: So right now, the, the Department's position is that any rental is prohibited?
Mr. Lemmo: Unless otherwise approved by the Land Board.
Member Johns: And so, okay.
Mr. Vitousek: Yeah.
Member Pacheco: So the only people you brought forward was the ones you could find on the internet advertising for vacation rentals.\
Mr. Lemmo: Yes, and who had a condition that specifically prohibited commercial use.
Member Pacheco: Right.
Member Johns: Ron, under the county's rules about long-term rentals versus short tern rentals, how is the county deal with that?
Member Agor: Right now they've got a proposal to address just vacation rentals.
Member Johns: And how do they define vacation rentals?
Member Agor: By the type ofbusiness that they do. Ifthey are advertising vacation rental.
Chairperson Thielen: But is it, is it less than 30 days?
Member Agor: Yeah. Yeah.
Member Johns: Less than 30 days. So more than 30 days is kinda considered to be okay in any district residential or otherwise under county zone?
Member Agor: In the proposal, yes.
Mr. Vitousek: Right now it's all okay but they are proposing to limit it. They're proposing to make it now okay for renting under 30 days unless you have a use permit. And so I'm going to read here is from the 1997 discussion draft put out by the Department.
Mr. Johns: I read that.
Mr. Vitousek: This is an unusually broad condition strictly interpretive preclude a homeowner from renting his house iffor example, he needed to live on another island or otherwise be unable to use the house ofr period oftime. Such restrictions seemed unreasonable.
17 Member Johns: I think it's a good, that's probably good thing that I withdrew that management report. When I was the chair we never did anything with it.
Member Vitousek: I understand that but it is a statement made by the Department.
Member Johns: For the record, I understand that but we never acted on that ...
Member Vitousek: No, I understand that.
Member Johns: ...on those management recommendations with regards to changing how you treat the conservation district with regards to single family residences which is something that still needs to be wrestled with, I agree.
Mr. Vitousek: Understood but when it comes to. But what I'm trying to say is pretty straight forward. It's just, it's just that you know both, there are two recommendations that were withdrawn. One is that the recognition that Haena is different and that the conditions for Haena should be tailored very specifically because it's more like a regular residential district. And the other was that the condition unwritten, as written is kind of unreasonable and it would be better to tailor it more specifically to identify what types of uses might adversely impact the conservation district and get a record, you know. And so that's what we are asking. We're asking that that consideration be made specifically for these parcels before we start prosecuting. That's, that's what we are asking.
Chairperson Thielen: I'm sorry, going back to Tim's question on what your clients' want. Would your clients agree to a deviation which would permit long term rentals, month to month or longer, but no vacation rentals?
Mr. Vitousek: You see, I can't answerthat question for them right now but I can ... That's the kind ofthing that would come out in the process and that they would have to look at and consider. I just don't have the authority to answer that for all ofthem right now because what we don't. .. Frankly, when I got the notice Monday that this was being heard today I saw that this was to be continued and so what we'd ask is that it be continued until December 14th and that we actually have a hearing on it then. Where the Department presents its position and we present our position.
Chairperson Thielen: And have they agreed to cease and desist commercial use pending? Mr. Vitousek: They don't have to, like I said the Department extended it to December 31 st. So that date hasn't come yet.
Member Pacheco: Ifwe do this petition process, and I mean I don't understand your worried about losing time, but it seems to me like we're going to end up if, ifwe're not successful in the petition process then we're gonna be, end up in a contested case hearing anyway.
18 Mr. Lemmo: I wanted her to bring me a copy ofthe rules for, Rules ofPractice and Procedure because the Board can order a .contested case hearing too, I think, on an issue. And this whole process has been one ofMr. Vitousek trying to buy more time for his clients, which is fine. Because I've been here from the beginning and I'm here now and I hopefully I'm gonna be here to the end. And its been we need more time, we need more time and we've said, we've granted them more time grudgingly. And ifyou, we go into a discussion about deviation this is going to be more time. At the end ofthe day, if someone is expecting my office to say publicly that we're going to allow short-term vacation rentals in the conservation district then I've missed something. I suggest we just by pass this, go into a contested case hearing, and let everybody make their arguments, get a determination from a hearing officer, and bring it back before the Land Board for a decision.
Member Johns: But a, the hearing officer in that situation would the hearing officer even go to the issue ofa deviation or a quote nn-quote settlement or anything like that or would they just merely say, violation. The rules are what they are and we interpret them this way that's the end ofit. That's why I'm not sure that would happen in a contested case.
Mr. Lemmo: They could.
Member Johns: Until you, they could?
Mr. Lemmo: Sure.
Mr. Vitousek: On the enforcement action I think, I think what Mr. Lemmo is saying is that he wants the Board to order a contested case on our petition to deviate.
Mr. Lemmo: No.
Mr. Vitousek: No?
Mr. Lemmo: I am just saying, ordering a contested case on this issue ofillegal vacation rentals so that it could go into a quasi-judicial process.
Member Johns: What you're saying, basically you take their petition up but take it not as a petition but take it as a contested case.
Mr. Lemmo: Yeah, as information and fact. Or we can set this aside and then wait til December and ifwe don't see the compliance, we'll initiate the process.
Member Johns: Let me just ask, other than wasting more time in a meeting like this, what, how would you see it ifwe did take the petition up in December? How would that change anything as we're doing now? Let's say at the end ofthe hearing we set aside some time or whatever you call it in December, we hear some arguments and at the end ofthat we say, continue on. Will it hurt or help us or dies it not do anything?
19 Mr. Lemmo: Well I don't know, that's fine.
Member Johns: Does it hurt us?
Mr. Lemmo: I'm not, I mean
Mr. Johns: Does it help us? Does it hurt us? Or does it not do anything?
Mr. Lemmo: Ifhe doesn't get what, ifhe doesn't get he wants for his clients does he then. What other legal, what other legal avenues does he have to pursue at this point. I don't know. I'm not an attorney.
Member Johns: Well, I would assume at the end ofthat. Are you saying that allowing a hearing
Mr. Lemmo: Allowing a hearing on the petition, deviation
Member Johns: Allowing a hearing would allow another contest case hearing too, you only get once.
Mr. Lemmo: I don't know.
Member Johns: So that could be the down side of it?
Mr. Lemmo: That's one thing, I think. The other down side is you know ...
Member Johns: Does it taint the contested case in anyway ifwe have this petition for deviation ahead oftime then we make a decision not to grant the petition?
Mr. Lemmo: That's a good point.
Member Johns: I'm just asking. I'm just trying to figure it out. It's always better to have more information before we embark on a fight, but ifwe're not. .. but ifwe're gonna end up in a fight anyway. Or, does it hurt us to have that information before we decide to cause we're not, I don't think, well, we haven't decided to take you offyour track where you are now. Where it stands right now is December 31, you're going to decide whether you're going to file or you're gonna start an enforcement action.
Mr. Vitousek: Hopefully, ifthere is a violation.
Member Johns: Ifthere is a violation at that point. But that's where it stands today. December 31, you're going out there, finish your investigation and then sometime in January come to us and tell us what's happened.
20 Mr. Lemmo: Some people may have stopped already, some people may stop, but then they'll probably be a few that are going to continue.
Member Johns: You're not, well, we haven't decided that, whether we are gonna knock you offthat. But I'm saying ifwe say stay on that track and we also say lets hear the petition in December, what's wrong with that?
Mr. Lemmo: To me, to me,
Member Johns: What's right with that?
Mr. Lemmo: I'm just the staffguy, in my mind it's so clear cut that you, they're in violation, that I'm simply'just trying to be efficient, I don't want to waste people's time. And you know, schedule hearing upon hearing, you know, at his request. I mean so you may want to do it and that's fine and we'll do it ifyou ask us to do that. I'm not gonna fight you on that at all. For me, it's just, I don't have a good visceral feeling about it.
Member Johns: We'll, I'm just trying to find out what you think it would be a way for us to make a better decision.
Mr. Lemmo - I 'didn't think it would help.
Member Pacheco: You know if, ifwe go down and make this decision, and I agree with you, it is very clear cut. I mean, there's permits, no commercial activity but vacation rentals or whatever, that is a violation. To me, you know that's not getting to the issue of what's going on out there, which is that we've got you know, basically, this area ofland that has this different you know set ofrules for basically the same thing going on and its just common sense you know that, that market drive is gonna to be there. And so we've got these permits that are there allowing these things to happen and we've, there's probably people renting, doing commercial activity there now that we didn't send any cease and desist letters to. So this whole thing is going to be an on-going issue ifwe just come in and say, "yeah you guys are in violation and this is it." We're going to be revisiting over and over again because that is the nature ofthat place. And ifit isn't, doesn't do any harm to the resource that the vacation use, ifit is something that's the same as going on the other land, why can't we have that discussion to figure that out, you know ifit is. I'm not saying that ...
Member Agor: Let me add on this, I was hoping we could entertain the deviation, but without the cloud ofthe violation and I don't know how to get there because I thought we were in the face ofa violation right now.
Member Johns: Ifyou want to do that the enforcement ... stands at the December 31 date.
Chairperson Thielen: You know Mr. Vitousek, I think one ofthe problems from the staffs perspective is a frustration in that in a situation where they've made a good faith
21 effort to work with your clients and have extended a cease and desist in going into a formal action that the request is coming now for a petition. And there is a concern that if the Department is. Any time they start to take a formal action, is there gonna then be a petition for a deviation. And I think maybe I'm hearing other Board Members coming up with a solution where they do not send staffofftrack, where they can continue the investigation, but also accommodate this request for a petition, but not prejudice that investigation in the event we deny this deviation. And so maybe one way ofnot prejudicing our investigation would you be willing to make some agreements with the Board that ifwe were to entertain a petition for a deviation in the event we were to deny it to then permit the investigation to move forward and not seek an appeal or an injunction against that investigation pending a
Mr. Vitousek: If! could I back up, I mean the initial letters from the Department went out on March 23. On April 23, I wrote a letter to Mr. Young, specifically said requested the extension specifically so that we could evaluate and discuss with the Department other potential avenues to resolve the alleged violation. So I'm not ambushing anybody. I told them from the beginning that this is, that's why I wanted the extension is so that we could find another way to resolve it. And when they tried to find another way to resolve it, I was told that, that we have until, we have to agree in writing and further certify in a sworn affidavit to discontinue any and all use ofthe single family dwelling for rental or other commercial purposes by January 15 and the Department notes its position is non negotiable. That's the letter from you dated this September 6, 2007. So that cut offany ability to try to find any alternative resolution and that's all we're trying to do. You know, we're trying to put these issues before and like the petition is directed to the Board not to the Department you know. The Department would have a position on it, ofcourse, but the Board makes the decision. And so we've been very consistent in what we want to do. We want to get the issue before the Board in a way that it could be you know evaluated without, you know where all the different issues could be considered rather than just the enforcement issues and that's what we're doing. So we just asking for an opportunity to do that.
Mr. Lemmo: I guess another finding would be for you guys to find that you're feeling we are in a violation proceeding and so therefore, we can't entertain this thing and it really has to wait.
Member Johns: The other
Mr. Vitousek: Because it might be prejudicial to the violation.
Member Johns: Yeah. The other issue, I mean the other way, there's nothing to stop if
December 31, there's still a finding ofsome, ofa violation then you ask for a contested case, and we immediately go into settlement discussion. And then, I guess the only question then is you have a third party, maybe a hearing officer kind ofchewing on it until it before it carne to the Board. And then the Board would look at the settlement and
22 you would look further and we would act on it. Is that, why isn't that acceptable as oppose to entertaining a petition before that happens.
Mr. Vitousek: Well,I mean, I guess one reason is we filed the petition. There is a petition pending before the Board. And so we, so that's already been done and.
Member Johns: The petition is to the Department or to the Board?
Mr. Vitousek: To the Board. Under the rule it says the deviation from conditions may be considered by the Board. So it's a request to the Board.
Mr. Lemmo: He filed a contested case hearing. The point is we're trying to work with him. We are trying to tell him yeah, we don't want to fine him. We don't want ,just comply with the permit. So we're trying to, not get into a bunch oflegal things here. But it's clear they don't intend to stop. Otherwise, they would have agreed with us and said yeah we're going to stop and after a certain date.
Member Johns: I understand. The petition, how do we deal with the petition from the AG's standpoint? We have a petition put in from to us again, so what do we do with it.
Mr. Lau: You're talking about this, today's item on the Board agenda?
Member Johns: No. What's the item today?
Member Pacheco: It is the petition.
Member Johns: We have to, we have to act on it a request for deviation.
Mr. Lau: It's just a regular Sunshine Law agenda. They have permits. They're requesting a change in their permits. You go through the same analysis that Mr. Lemmo cited under 13-5-42.
Member Johns: So no different then ifthe department had put an item on the agenda to waive a condition. It's just amotion from somebody else.
Mr. Lau: Um huh.
Mr. Vitousek: And what I said on that earlier was that the Department hasn't put anything before the Board on the merits ofthat petition. So I just think, we don't feel we would have due process unless there was actually a presentation to the Board on the merits ofour application for the petition and how
Member Johns: So I mean concerns about what happens from a denial ofthe petition aren't we already pregnant on this?
Mr. Lemmo: On what?
23 Member Johns: The petition is in front ofus already. We have to do something with it. We could I guess, defer action on it. And then but eventually ifwe do something with the petition it's already there in front ofus. We have to live with the consequences ofit, ofacting or not acting. Or we could dodge it and not act. And say we'll defer because we have to
Mr. Lemmo: And again, I could have probably worded this differently.
Member Johns: But the petition for whatever, the rules allow the petition to be filed, has been filed. We can either deny it, approve it or defer it. So we have to do something with it.
Mr. Lau: Well.
Member Johns: We can'tjust ignore it.
Mr. Lau: It says "failure to secure Board approval for deviation before such a deviation occurs constitutes cause for the permit revocation."
Mr. Lemmo: Huh. I didn't see that.
Chairperson Thielen: So I guess that's a good point. Sseeking a deviation isn't a
Mr. Vitousek: Ifyou don't, don't apply for the deviation before you deviate that could be grounds for revoking the permit.
Mr. Lau: Right, exactly.
Mr. Vitousek: That's what it says. Just like violations could be grounds for revoking a permit.
Chair Thielen: So in seeking the deviation are you acknowledging that your clients are doing rental activity on the property now?
Mr. Vitousek: I am yes, I am acknowledging that they are doing rental activity.
Chairperson Thielen: Okay and in some cases is it short-term rental activity?
Mr. Vitousek: I know there are short-term. It's not really fair facing an enforcement proceeding to ask counsel to make admissions on behalfofthe client. But I believe there are owners out there who are doing short term vacation rentals.
24 Chairperson Thielen: Okay. And your clients are aware that you can also seek permission to withdraw the property from the conservation district through a boundary amendment ifyou feel that it's not necessarily appropriate to be in the conservation district?
Mr. Vitousek: Absolutely, our petition for a change in the sub-zone or special sub-zone, absolutely. But, but and I understand that and I looked at the rules carefully. But there's also a provision to petition. Yet, you see the one issue is that the Department isn't alleging we're violating auy statute or rule. They are only alleging that we are violating a condition ...
Member Johns: ofthe permit.
Mr. Vitousek: ... ofthe permit, right. We felt the most efficient way ofapproaching it was a deviation ofa condition cause they can't point to auy statute that says you can't rent in the conservation district. There isn't any, it's just a permit condition. So that's the most efficient way ofapproaching it.
Mr. Lemmo: It's in the rule.
Chairperson Thielen: I hope your clients also though understand that this is a chronic issue across the conservation district, across the board. Although, they may feel that in their particular area you know, it doesn't make as much sense, there are other options if it's not appropriate to be in the conservation district, but certainly the rules apply across the board aud it is a staudard permit condition for that reason.
Mr. Vitousek: Absolutely, I mean I absolutely understand it has not been enforced across the board for decades aud that's part ofthe problem, statewide.
Mr. Lemmo: That's a contested case type issue, you know. I'm sorry I didn't, I missed the section that Colin just brought up about deviation, and I didn't, I didn't see that. It seems to me that you, it's very clear from that provision I mean to one extent.
Chair Thielen: I would've think that provisions in the rules to avoid that situation where when somebody is confronted with violating a permit condition is to immediately seeking a deviation. And I guess the intent is that people would seek a request to deviate from a condition aud have permission.
Mr. Vitousek: Absolutely, absolutely unquestionable, unquestionably. And I think ifthe Department wants to move to take away these people's conservation district use permits for their single family homes that's, you cau do that. Then we will definitely be in a contested case hearing. It seemed a little extreme after acknowledging that the condition is, is unreasonable. Anyone would also think that a never mind. I think I said my share.
Member Pacheco: Commercial um, there is rules for commercial use in conservation district. Am I right? In the subzone?
25 Mr. Vitousek: Yeah there is a specific definition and this doesn't really ...
Mr. Pacheco: Onjust the permit condition.
Mr. Vitousek: No, there is a specific definition ofcommercial use, that's correct.
Mr. Lemmo: Commercial uses are, some commercial uses are identified such as forestry, agriculture and a few other things, private parks.
Mr. Vitousek: Actually it's an important point because the rules do define commercial purposes as the buying and selling and exchanging ofcommodities, services and goods, which doesn't really fit this. So, usually there is a distinction between buying and selling ofgoods.
Member Pacheco: Buying ofvacation rentals is not a service?
Member Johns: No, its not.
Mr. Vitousek: Usually not. That's why this is an issue in all, all residential areas. That's why it is an issue in the county. The county also prohibits commercial use in the residential district. That's why they're having to craft new rules specifically to deal with it because it doesn't fit the usual definitions.
Chairperson Thielen -I think we might need to confer with Colin about the petition for deviation.
Member Johns: You can do it, ask him now. While the violations being alleged as opposed to
Chairperson Thielen: Well now that this rule has been brought to our attention.
Member Johns:· Colin, read that section again. We don't have that little
Mr. Lau: Failure to secure Board approval for a deviation before such a deviation occurs constitutes cause for permit revocation.
Member Johns: See the deviation, in order to prove the deviation is the same thing as proving the violation. So until you have, right now, basically you have an alleged violation and you have an alleged deviation.. I mean that's how, I'm not making your argument for you, but one way ofreading that is. How do you know that there's a deviation?
Chairperson Thielen: Because he's just told us there has been a deviation.
26 Member Johns: Well, but I mean how do you know that there's really a deviation until there's been some finding ofthat?
Mr. Lemmo: You guys have to find, I mean
Member Johns: Find a violation or find a deviation, it's the same thing almost.
Mr. Lemmo: I'm getting frustrated.
Chairperson Thielen: I think that Sam should bring food. I think, we have a situation though were it's similar to the Haseko where we have an acknowledgement that there is an activity going on, on the property. And we have people who are asking us to basically waive a permit condition. Also, trying to reserve their argument that this permit condition is not enforceable. So we can choose to either grant a deviation and allow them to continue to do rentals within certain you know conditions. We can deny the deviation. We can put it on to an agenda item for a future meeting to have a discussion on the deviation request itself.
Member Johns: I don't think we can grant the deviation because we don't the evidence in front ofus from, and we didn't allow you to make those arguments and Sam's not ready to make those arguments which again to me is when you do it and how you do it because it's gouna come out eventually. Those arguments is going to be made somewhere in the next 18 months.
Mr. Lemmo: See what's going to happen ifyou, ifyou want us to act on this deviation, I'm going to write a staffreport and I'm going to basically say, I'm gonna have to build an argument why we don't think granting the deviation is consist with our function of protecting conservation lands and the health, safety and welfare ofthe public. And he's going to come in with his argument and then that in itself is going to then spring into some sort oflegal argument. And we're going get challenged on everything we say in our submittal and we're going to challenge what he said. It's going to set offa whole new set of, and I think the rule is written to avoid this kind ofthing from occurring.
Member Johns - You would need to have parallel legal proceedings dealing with the same issue. One dealing with the ...
Mr. Lemmo: Well they've made the change.
Member Johns: ...violation.
Mr. Lemmo: They've made the change and the rule says that.
Member Johns: I'm just saying the reason the rules, the intent for the rule was to prevent parallel things from going on. One argument about the deviation and one argument about
27 the violation with separate tracks going to separate contested cases, separate court rulings when they should be one or the other.
Mr. Lemmo: Yeah.
Member Johns: Or, one after the other or one before the other, but not at the same time.
Chairperson Thielen: Is there a way we can invoke Colin this contested case hearing where the Board can ask for one where we're just throwing this whole matter into a contested case hearing to be resolved. So it's not on the deviation or on the enforcement, but the just the entire thing. And get you guys in and moving forward on this.
Mr. Vitousek: I think the Board, if! may, I think the Board has the authority to could at this point the Board could decide to refer the petition to a contested case hearing. I think the Board has that authority.
Chair Thielen: No, I'm not asking for just the petition. I'm asking for both matters to go on into a contested case hearing so we can just resolve the entire thing at once. What may come out ofthat is a recommendation to this Board to grant certain deviations and to prohibit certain other things. But I'm not seeking to segregate the two. I'm seeking to put the two together into a single hearing.
Mr. Vitousek: Yeah, but see there hasn't been any finding of a violation. What that would do is ifthere was a member ofthe 14 who decided to avoid going into enforcement action then they could avoid it. In other words, basically you are forcing them into an enforcement situation where they may not want to go in. Basically, because ofthe timing we haven't gotten there yet.
Chairperson Thielen: Well, they can always say that they are going to abide by it and if there were any enforcement to come out ofit, it wouldn't apply to them.
Mr. Vitousek: What I'm saying is there's no enforcement per se. And so I don't know what you'd be sending to a contested case hearing. You could send a petition, but I don't see, there's no enforcement proceeding. No ones been served with any enforcement proceeding.
Chairperson Thielen: We can ask for one on our own motion. And so what I'm asking
Mr. Vitousek: Not until December 31, though.
Chairperson Thielen: Well, that's the staffs recommendation.
Member Johns: You already extended it ...
28 Chairperson Thielen: Again, what I'm trying to find is a compromise to allowus to get into a global one time preceding that will resolve all the issues. As oppose to having separate proceedings that may run on parallel tracks.
Member Johns: Ron, you want to defer this? You can't two for that.
Member Agor: I am more inclined for the Board to put it to a contested case, but I'm not inclined to include the violation. I would have ifmy impression ofthis was that absolutely was a violation, but today I'm not certain.
Mr. Lemmo: So have a contested case hearing on the deviation request?
Member Agor: Yes.
Mr. Lemmo: That's ok.
Member Johns: What does that do to December 3l? It's going come back to us on a separate track?
Chairperson Thielen: I think the question I would have for Sam on this is he was not really given an opportunity to bring forward the information on the investigation. This is mainly a presentation just on the petition for a deviation. And maybe to give them the opportunity to present that and whether you feel comfortable throwing everything into the pot for a contested case hearing because ifone ofthe reasons that you're not comfortable withdrawing that enforcement action into a contested case hearing is because you haven't seen the evidence I mean that wasn't the purpose ofthe meeting, the agenda item today.
Member Johns: Ifjust you moved on
Mr. Lemmo: By the time we have a contest case ...
Member Johns: I was going to say, ifyou just moved on the that today come December 31 you're gonna be able to either consolidate or drop out one or the other and move along that path anyway. So, it might help.
Member Agor: To include it?
Member Johns: No, to not include it now but you would able to do it come December 31 st. We are not telling you to stop doing your other thing, but then you could consolidate.
Chairperson Thielen: Mr. Vitousek would you be willing to agree to a consolidation in the event come December 31 as a recommendation to this Board to proceed with the enforcement would you be willing to agree to consolidate the two contested case hearing procedures.
29 Mr. Vitousek: I would be, I would agree to recommend it to the clients. I don't have the authority to make that representation on their behalfbecause it's kind ofhypothetical but I think it makes the most sense and I would recommend that. It makes more sense to have one proceeding than two and to consider all issues. And when we get to December 31, there maybe, there maybe some enforcement proceedings, there maybe none.
Member Jolms: It will be clarified.
Mr. Vitousek: Right.
Mr. Lemmo: Yeah, we ultimately, even ifyou got, ultimately on the deviation, that is going to be a kind ofa contested question. And ifyou say have a contested case on the deviation with the option ofafter December 31, combining it with any pending violation proceedings you know by the time things get rolling in January you know it might actually come together as one action. Chairperson Thielen: Um huh.
Member Johns: I think it would. Or be clarified.
Mr. Lemmo: As long as we're all able to do that.
Member Jolms: What's going to happen, well does our AG see a problem with that happening?
Mr. Lau: Wait until December 31 to decide whether you're going to consolidate or not. Ifyou are, ifyou even contemplate it.
Member Jolms: Right, Is that is doable.
Mr. Lau: Doable.
Member Pacheco - I don't understand ifwe're willing to entertain a contested case for the request for the deviation why don't we just act on accepting the request and the Board discussing this instead ofrunning a contested case.
Member Jolms: We don't, I guess the question is how do we get the evidence and the arguments regarding that in front ofus. And you could do it in the meeting in December or you could do it in a contested case where you are going to appoint a hearing officer and there will be discussions. During those discussions you can get to a settlement on that before all ofthis breaks. That's the difference. Ifyou just, ifyou just leave it on as we will take it up because we don't have the evidence to act on it today so we'd take it up sometime in the next three meetings then he would make his argument, Sam will make the argument for the Department, then it would come to us and we would examine it at that point. There would be less opportunity I think for potential settlement discussions. To me that's the difference. But I don't know Sam what you think?
30 Mr. Lemmo: Well, Ijust think Randy is ultimately going to, I mean, it's up to you ultimately what happens. Staffis going continue to recommend that you know we don't believe that the short-term vacation rental is viable. And we believe that we can get you to agree with us on that. So Mr. Vitousek is going to ask for a contested case hearing.
Member Johns: I think you probably have, right and so ...
Mr. Lemmo: So it's going to be a contested case anyway.
Member Johns: Right. And it's going to be a contested case anyway and ifwe go ahead and start one today then that's earlier than any other proposal to do it.
Mr. Lemmo: It's an early Christmas present.
Member Johns: Yes, we can start it now. But I think your guess is probably right is that the Board might have a hard time supporting a vacation rental based on the history of what the Department has done in the past that the Board may have a hard time supporting a change that would allow. And I'm not trying to bias, but I'm just trying to recognize what the Board has done, the Department has done in the past that it might be hard to support that. It's a heavy
Mr. Lemmo: It's a heavy thing.
Mr. Johns: It's a heavy burden.
Mr. Lemmo: But he's got, Randy's got all kinds oflegal issues that he's going to respond.
Member Johns - I understand. I'm just trying to say that as far as the clients could hear that basically that one's going to be hard. So ifthey think they're going to get a settlement and that we are going to quote, un-quote go aloha on that, it is going to be hard to do that on that particular thing. Doesn't mean we can't reach settlements on a bunch ofother stuff, but recognizing that that's a separate area. And we don't want to go down that slippery slope, but it is a different conservation district. Ultimately, it doesn't belong in the conservation district anymore.
Mr. Lemmo: That's, that's, a certainly a valid argument.
Chairperson Thielen: Okay, so at this point then we have to take a motion on the contested case hearing.
Member Agor: Anyone from the public?
Chairperson Thielen: I'm sorry, is there anyone else from the public who wants to testify on this matter. Okay
31 Member Agor: Madame Chair, I move to put the request for deviation into a contested hearing case.
Mr. Lau: I'm sorry. I thought you were considering a deferral at one point with regard to the motion for the petition for the deviation.
Chairperson Thielen: You got to keep up Colin. We were considering a lot ofthings. I think more recently
Member Johns: That's why I asked that first.
Mr. Lau: I just don't remember Mr. Vitousek actually making the request for a contested case on the deviation.
Mr. Vitousek: No. Actually, this is the Board action pursuant to 13-1-28.
Mr. Lau: Got it.
Mr. Vitousek: The Board is making that motion.
Chairperson Thielen: And in the event come December 3Ithere's a staff recommendation for enforcement at that point there will probably be a request for a contested case hearing or the Board may make a motion to do one and then we would recommend consolidating.
Mr. Lau: Ok. What I'm wondering about is ifyou're going directly to a contested case then you are going to be incurring a number ofexpenses, and there's going to be a lot of procedural deadlines that will be coming up. Ifyou're deferring this item for this discussion and I don't know whether you might seek an opinion from or formal advice from my office with regards to the issues involved that might avoid some ofthe, this, rather then going directly into contested case mode.
Chairperson Thielen: One ofthe questions that's been raised is whether we could do, entertain a petition for a deviation once an enforcement action is recommended by the staffand so
Mr. Lau: Basically the deviation, the conditions that are being contemplated aren't exactly the same as the ones that are the enforcement right?
Mr. Vitousek: Yes.
Chairperson Thielen: Yes. So could we
Member Johns: We don't know that, yet.
32 Mr. Lemmo: He's just asking ifyou could defer one meeting to have an informal discussion with them to make sure on what we're asking.
Chairperson Thielen: Okay. So could you
Member Johns: Yes, but I think the Board Member from the island is recommending that we move to a contested case even though I asked for the deferral for a meeting. So and those are policy issues about whether we want to spend the resources on doing it at this point. Not legal issues. Is that right?
Mr. Lau: Right.
Member Johns: So it's up to the Board on how they want to deal with the procedure.
Chairperson Thielen: You want to withdraw your motion?
Member Agor: And bring this up again?
Chairperson Thielen: Defer for a month.
Member Agor: Okay, I'll withdraw my motion.
Chair Thielen: Okay so we have a withdrawal ofthe motion. The Board wishes to defer for consulting with counsel and others. We can place the matter on the agenda next month ifanyone wants to make that motion.
Member Agor -I move to defer this issue until the next Board hearing.
Member Johns: Second.
Chairperson Thielen: All those in favor?
All Board Members: Aye.
Chairperson Thielen: Oppose?
Chairperson Thielen: Deferral passes.
Mr. Vitousek: IfI may. So my understanding then is that the next Board meeting will be the board meeting at which the matter is scheduled for disposition? Because I have to, if I'm going to request a contested case hearing I have to do it at the first Board Meeting where the matter is scheduled for disposition. I'm not going to wave my right to a contested case hearing by a deferral.
Member Johns: But you're not, we don't know what the agenda item is going to look like when it comes back. Is it still going to be the same?
33 Mr. Lemmo: I don't know. I'm going to talk with...
Chairperson Thielen: We'll need to consult.
Member Johns: But we recognize that.
Mr. Vitousek: Ok. But what I'm saying is ifthere's any argument going to be made at any point that I'm waiving a contested case hearing right, I am making a request
Chairperson Thielen: I think the one thing we're certain about is everybody knows this is going into a contested case hearing in one form or another.
Mr. Vitousek: Thank you. Thank you very much. Thank you for your patience.
The Board:
Motion to defer.
Unanimously approved as deferred (Agor, Johns)
Item K-6 Conservation District Use Application (SSBN) MA-07-04 for Small Scale Beach Nourishment Project at Spreckelsville Beach, Maui, by Cirrus, LLC, TMK: (2) 3-8-002:072
Mr. Lemmo stated that they will be putting 3,000 cubic yards ofsand onthe beach. He gave some background information on the process and explained that they expedite these projects because they are seen as positive for the environment and an alternative to sea walls. It was decided that the larger restoration projects would be brought before the Board to allow for due process and seek the Board's consent to allow the Chairperson to approve the permit. Staffdoes not spend a lot oftime on the analysis ofthe project at this point because they're not seeking approval yet. Therefore, staffis asking for the Board's consent to allow the Chairperson to review and authorize this project.
Unanimously approved as deferred (Edlao, Gon)
Item K-5 Conservation District Use Application (SSBN) KA-07-03 for Small Scale Beach Nourishment Project at Poipu Beach Park, Kauai, by the County ofKauai, Department ofParks and Recreation, TMK: (4) 2-8 017:001
Mr. Lemmo stated that this is a similar request to the previous item, just a different location and is a request from Mayor Baptist.
Unanimously approved as submitted (Pacheco, Agor)
34 Item K-4 Withdrawal from Contested Case KA-07-05, by David Smith, in the Matter ofEnforcement File (KA-06-72), and Confirmation ofPrior Board Conditions Regarding the Unauthorized Construction of a Chain Link Fence Within the Conservation District, at Wainiha, Hanalei, Island of Kauai TMK: (4) 5-8-009:025
Mr. Lemmo reported that Mr. Smith has withdrawn his petition for a contested case. He has paid the fine and removed the fence.
Mr. Lemmo wished to make an amendment to the submittal. He would like to add a condition that states that OCCL and the landowner do an inspection ofthe property to make sure the applicant has complied with the conditions ofthe Board.
Mike Carroll, representative ofthe landowner, stated that he has no objection to them going out to look at the site. However, he is concerned that ifthey go out there and assess another fine, whether that changes things. He stated that his client did comply with all the requests so he has no objection to it.
The Board:
Add recommendation number 6 to read as follows:
"6. OCCL and the landowner shall conduct an inspection of the property to make sure applicant has complied with the conditions ofthe Board."
Unanimously approved as amended (Johns, Edlao)
Item D-5 Consent to Mortgage and Extension of Lease Term, General Lease No. S-4477, S.C. Ranch Co., Inc., Lessee, Kaohe II, Hamakua, Hawaii, Tax Map Key: 3rd/4-3-10:08 (HDLOlWesley)
George Wood is in agreement with staffs recommendations.
Mr. Tsuji wished to make a correction verbal statement. The written submittal correctly states the original term was 35 years and they are requesting a 20 year extension so the total term will end up being 55 years.
Unanimously approved as amended (Pacheco, Edlao)
Item D-4 Grant of Perpetual, Non-Exclusive Easement to the Pono von Holt Trust and Weliweli Pio, Ltd., for Utility and Access Purposes, Puuanahulu, North Kona, Hawaii, Tax Map Key: 3rdl7-1-03:portion of02 (HDLOlWesley)
Mr. Tsuji reported that this land was originally deeded with no legal access and therefore the von Holts were encroaching on State land because they had created their own access.
35 There is a $500 fine included in the recommendations and staff is also recommending the granting ofan access and utility easement.
Bob Schnider, representing the von Holt family, stated the von Holts understand they are being fined and the conditions ofthe easement.
There was some discussion on a preexisting gate.
Unanimously approved as submitted (Pacheco Edlao)
Item D-7 Cancellation of Easement "A" ofLand Office Deed No. 28135 to Hawaiian Electric Company, Inc. and Grant ofPerpetual, Non Exclusive Easement to Hawaiian Electric Company, Inc. and Hawaiian Telcom, Inc. for Access and Utility Purposes, Waimanalo, Koolaupoko, Oahu, TMK: (1) 4-1-035:013 (Portion). (ODLO/Steve)
Member Johns recused himself.
Unanimously approved as submitted (Gon, Edlao)
Item D·2 Sale ofLease at Public Auction for Intensive Agriculture Purposes and Issuance of Revocable Permit to Lance K. Laney, Hanalei Homesteads, Hanalei, Kauai, Hawaii; Tax Map Key: (4) 5-4-02:34 & 38. (KDLO/Joanne)
Item D-3 Grant of Perpetual, Non-Exclusive Easement to Kauai Island Utility Cooperative and Hawaiian Telcom for Access and Utility Purposes and Issuance of a Right-of-Entry to the Department of Transportation, Wailua, Kawaihau, Kauai, Tax Map Key: (4) 3-9 06:portion of 16. (KDLO/Thomas)
Item D-6 Set Aside to City and County ofHonolulu for Park Purposes and Issuance of a Right-of-Entry Permit, Waikele, Waipahu, Ewa, Oahu Tax Map Key: (1) 9-4-11:103. (ODLO/AI) ltemD-9 Issuance ofRight-of-Entry Permit to City and County ofHonolulu, Department of Design and Construction, on Lands Encumbered by General Lease No. S-5261, Sand Island Business Association, Lessee, and Governor's Executive Order No. 2704, Department ofLand and Natural Resources for Sand Island State Recreational Area, Situate Sand Island, Honolulu, Oahu, TMK: (1) 1-5-041:103 (Portion) and TMK: (1) 1-5-041:06 (Portion). (ODLO/Steve)
Unanimously approved as submitted (Johns, Agor)
36 Item M-2 Issuance of Lease by Direct Negotiation Together with a Right-of Entry to Jems Enterprises, LLC, dba Hawaiian Ice Company, Parcels 4 and 5, Domestic Commercial Fishing Village, Pier 38, Honolulu Harbor, Oahu.
Marshall Joy, President ofJem Enterprises, was present.
Item M-3 Rescind Prior Board Action of April 28, 2006, Agenda Item M-3, Issuance of Lease by Direct Negotiation to Izuo Brothers, Limited, Parcel 4, Domestic Commercial Fishing Village, Pier 3, Honolulu Harbor, Oahu.
Unanimously approved as submitted (Johns, Gon)
Item M-I Issuance of a Direct Lease FedEx Ground Package System Inc. Honolulu International Airport.
Ross Smith from the Airports Division at the Department ofTransportation was present to answer any questions.
Unanimously approved as withdrawn (Edlao, Johns)
Item C-I Approval of Interim Grant Evaluation Form for use by the Legacy Land Conservation Commission ("the Commission") in making Legacy Land Conservation Program funding recommendations to the Board.
Unanimously approved as submitted (Pacheco, Gon)
Item E-I Selection of Projects for Federal Grant Awards through the Land and Water Conservation Fund Program for Fiscal Years 2006 and 2007.
Unanimously approved as submitted (Johns, Gon)
Item E-2 Request for Approval to Amend Lease S-5301 to Jolene Peapealalo Ahuapua'a '0 Kahana State Park, Kahana, O'ahu.
Unanimously approved as submitted (Johns, Edlao)
Item J-2 Request for Approval to Increase the Mooring Rates for the State Small Boat Harbors According to Hawai'i State Administrative Rules, , (HAR), §13-243-3, (see Exhibit I).
Unanimously approved as submitted (Johns, Pacheco)
37 There being no further business, Chairperson Thielen adjourned the meeting at I: 10 p.m. Recordings ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present.
Respectfully submitted,
Lauren Yasaka
Approved for submittal: ((t:!i-':-----(fi---Lo/--- It Chairperson Department ofLand and Natural Resources
38 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, NOVEMBER 16, 2007 TIME: 9:00 A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Laura Thielen called the meeting of the Board of Land and Natural Resources to order at 9:13 a.m. The following were in attendance:
MEMBERS
Ms. Laura Thielen Mr. Ron Agor Mr. Tim Johns Mr. Rob Pacheco Dr. Sam Gon Mr. Jerry Edlao
STAFF
Mr. Morris Atta, LD Ms. Charlene Unoki, LD Mr. Russell Tsuji, Land Deputy Mr. Paul Conry, DOFAW Mr. Dan Quinn, SP Mr. Glenn Toguchi, SP Mr. Dan Polhemus, DAR Mr. Sam Lemmo, OCCL Mr. Gavin Chun, LD Ms. Tiger Mills, OCCL
OTHERS
Ms. Linda Chow, Deputy Attorney General Ms. Linda Chinn, Item D-6 Ms. Dawn Chang, Item D-2 Ms. Kat Brady, Item D-7 Ms. Shannon Wood, Item D-7 Mr. Henry Curtis, Item D-7 Mr. David Leonard, Item D-7 Mr. Michael, Formby, DOT Mr. Glenn Abe, DOT Mr. Raymond Iwamoto, M-1 Mr. Michael Lau, Deputy Attorney General Mr. Gerald Sumida, Item M-1 Mr. John Strum, Item M-1 Mr. Christopher Seine, Item M-1 Mr. Eric Knudsen, Item D-3 Mr. Jerry Ornellas, Item D-3 Mr. Les Milnes, Item D-3 Mr. Alfredo Lee, Item D-3 Mr. Earl Yamamoto, Dept. of Agriculture Mr. Bill Cowern, Item D-3 Mr. Chris Buddenhagen, Item D-3 Ms. Sandy Pfund, DOT-Harbors Mr. Charlie Loomis, Item C-2 Mr. Trae Menard, Item C-2 Mr. Chris Racine, Item D-1 Ms. Laverne Higa, Item D-12
{Note: language for deletion is [bracketed], new/added is underlined}
Item A-1 Minutes of October 26, 2007
Delete “Briefing and” in Agenda. Should be Minutes.
Unanimously approved as amended. (Johns, Edlao) (Although the Board approved the minutes the Office of the AG requested more information be added.)
Item D-8 Direct Sale of 15 acres of State Land to The Salvation Army, and Amend Prior Action of September 24, 2004, under Agenda Item D- 14, Honouliuli, Ewa, Oahu, TMK: (1) 9-1-17: Portion of 71
Russell Tsuji announced that he has accepted a new position within DLNR (its Deputy Director), and he introduced Morris Atta as the Acting Land Division Administrator. Mr. Tsuji asked the Board to approve the sale of 15 acres in Kapolei that is part of a site that is planned to go over to DHHL (Department of Hawaiian Homes Land). By its October 26, 2007 letter, the Department of Hawaiian Home Lands acknowledged The Salvation Army’s request for the 15 acres and indicated that it supported the request. Consequently, the Department of Hawaiian Home Lands requested the 15 acres be excluded from the total land area the Board approved for conveyance to the Department of Hawaiian Home Lands at its September 24, 2004 meeting under agenda item D-14. The sale of the 15 acres will be to The Salvation Army (TSA) for the Ray & Joan Kroc Community Center. A couple months ago, staff came to the Board for permission to procure an appraiser to determine the fair market value of the 15 acre site. The fair market value of the 15-acre site was appraised at 1.245 million, and the value was shared with TSA. TSA evaluated its finances and business plan, has made an offer to purchase the 15 acre site for 1.5 million dollars pursuant to certain terms and conditions articulated in the written staff submittal and attached as Exhibit C to the submittal.
Member Gon asked a representative from TSA whether he was fully aware of all the recommendations and stipulations contained in the staff’s submittal and whether TSA was in agreement with that. Mr. Hudson answered affirmatively.
Unanimously approved as submitted. (Johns, Agor)
Item D-6 Withdrawal from Governor’s Executive Order No. 3718 to Department of Land and Natural Resources, Land Division, Waiakea, South Hilo, Island of Hawaii, Tax Map Key: (3) 2-1-12:071 por.
Morris Atta, Acting Land Division Administrator, reported that this is a request by the Department to remove from Executive Order the Foreign Trade Zone in Hilo for use in a
2 joint development with DHHL (Department of Hawaiian Homes Land) and DLNR. The request was based on a conceptual plan devised by the consultants to maximize the development potential for these two sites. Staff concluded that due to the irregular configuration that the withdrawal of the approximately 3 acres from the Hilo Trade Zone was the best configuration to maximize development potential of the lots. There were concerns raised by the Foreign Trade Zone which were incorporated into the submittal. Staff will work with DBEDT (Department of Business, Economic Development & Tourism) to resolve these issues where all three agencies can benefit from this development.
Linda Chinn, Land Manager at DHHL, supports the recommendation and will work through the DBEDT questions.
Unanimously approved as submitted. (Pacheco, Gon)
Item D-2 Amend Prior Action of June 22, 2007, Agenda Item D-1, Grant of Perpetual, Non-Exclusive Easements to Sandwich Isles Communications, Inc., for Submarine Fiber-Optic Telecommunication Cable and Terrestrial Landing Sites Purposes, Statewide, and Issuance of a Construction Right-of-Entry Permit Covering said Submerged Land and Terrestrial Landing (Fast Land) Sites, Statewide, and Additional State Fast Land, at Kekaha, Kauai, and Makena, Maui, Tax Map Keys: (4) 1-2-12: Portion 38, and (2) 2- 1-07: Portion 72, Respectively
Morris Atta, representing Land Division, reminded the Board had previously issued exclusive easements to Sandwich Isles Communications for Kekaha area lands for fiber- optic telecommunication cable easement. After reviewing the situation, the applicant found it would be best to move the cable onto State owned property. The current location is county owned land and Sandwich Isles requested to amend the prior Board action to allow for the re-location of the landing site. Mr. Atta was informed by staff that there may be issues of possible compensation if State lands are involved and that we may have to take other action if the term exceeds the current term of the easement. Staff will allow the movement of the location of the landing site.
Dawn Chang, agent for Sandwich Isles, acknowledged this was part of the original EA and CDUP. She explained Sandwich Isles had a construction right-of-entry from DLNR for this site. But, as a result of their survey for the landing, it became apparent that for safety reasons they needed to move the manhole back where the preferable site would be within the DLNR’s triangular portion of land as opposed to the DOT’s right-of-way. All the regulatory permits have been obtained and Sandwich Isles got county approval for this. Sandwich Isles completed all archeological work for the site as well. And, with respect to the compensation, they came before the Board for the easement for the submerged lands and at that time because the service was to Department of Hawaiian Home Lands (DHHL) there was a waiver of that consideration. There was also a condition that should, in the future, the lines be used to service customers other than
3 DHHL, the Department will review the waiver of consideration. Sandwich Isles accepted those terms.
Unanimously approved as submitted. (Johns, Gon)
Item D-7 Denial of Standing for Life of the Land's Motion for a Contested Case Hearing related to the proposed direct lease from State of Hawaii, Department of Transportation to Imperium Renewables Hawaii LLC at Kalaeloa Barbers Point Harbor, Honouliuli, Ewa, Oahu, TMK (1) 9-1-14: por. 24
The Board may go into Executive Session pursuant to Section 92- 5(a)(4), Hawaii Revised Statutes, in order to consult with its attorney on questions and issues pertaining to the Board’s powers, duties, privileges, immunities and liabilities.
Member Tim Johns recused himself from this item and the related Item M-1.
Morris Atta, of Land Division, noted this came from a prior Board meeting where there was a submittal request to issue a lease to Imperium Renewables and at that time Life of the Land requested a contested case hearing. Subsequent to that there was a review, before it went to the Office of the Attorney General, and the recommendation is to deny standing for the reasons given in the submittal.
Kat Brady, Assistant Executive Director of Life of the Land, testified constitutional issues are involved. Competing interests for the land must be put out for bid and they think that process should be followed.
Shannon Wood, President of the Windward Ahupua’a Alliance, disclosed their organization has partnered with Life of the Land. She requested to vote down the denial of standing motion. Department of Agriculture, Department of Business, Economic Development and Tourism (DBEDT) and Department of Health (DOT) - Environmental Health were unaware this was on the agenda two weeks ago. They would have preferred to be notified that this item was working its way through the system.
Henry Curtis, Executive Director of Life of the Land (LOL), acknowledged the Board has a long standing practice of not giving contested case hearings on land leases. Life of the Land asked for one because climate change will be a major issue. The rush for bio- fuels as the solution will be seen as a major disaster and will result in increased sea level. This Board has the authority to look into issues on its own and cited Hawaii Administrative Rules 13-1-11. He agreed that LOL does not have a statutory right to a contested case hearing and cited staff’s reasons why they don’t have standing which he felt were not relevant. The world organizations protested Hawaiian Electric Company’s (HECO) proposed use of palm oil resulting in its withdrawal of the proposal because of those problems. Mr. Curtis pointed out that Imperium Renewables stated the use of palm oil was not in their environmental assessment, but in fact it is. Imperium has a contract to
4 supply palm oil to various local companies. This Board and the PUC (Public Utilities Commission) will be the first to discuss these issues. He suggested having expert witnesses come in to cross examine each others witnesses to see who is credible or not credible rather then rushing in and endorsing it (this item).
Written testimony was distributed by David Leonard.
David Leonard, Chief Operating Officer of Imperium Renewables, clarified they are currently the nations largest producer of biodiesel. He revealed Imperium signed a contract with HECO and that there is an NRDC HECO policy which focuses on a preference for local feed stock when it becomes available. He presented his testimony to the Board. Imperium has been in dialogue through these public forums through the environmental assessment process. Life of the Land submitted over 120 comments and Imperium responded to each and every one of those.
Member Gon inquired to concisely explain what the recommendations of the RSPO were on the biodiversity aspects.
Mr. Leonard explained one issue addresses burning and to look at the green house gas and life cycle analysis between palm, soy or canola. A big concern is even if the biodiesel is environmentally positive in terms of the tail pipe emissions’ having less CO2, the focus is to look at the entire life cycle, what is creating the green house gas. RSPO has a limitation on burning which prohibits, with a very limited exception the creation of land to grow palm. World Wildlife Fund is an active member of the RSPO.
Member Edlao asked as part of sustainable agriculture, shouldn’t it also be socially acceptable to the people who are being displaced, the natives of the land. Is it part of the requirements of the RSPO?
Mr. Leonard asserted those issues are specifically addressed by the RSPO. He asserted that Imperium would not buy palm oil that has caused displacement of indigenous people. They would consider that palm oil unacceptable to Imperium and they would not make biodiesel from it.
Member Gon inquired whether there is a clear timetable for the transition from imported palm oil to locally grown sources.
Mr. Leonard stated Imperium is currently working with the Hawaii Agricultural Research Center here on Oahu and also talking to some groups on the Big Island who are doing both jatropha and African oil palms. It depends on the crop. The jatropha seed pods will take less than two years. African oil palm takes five to eight years.
9:47 am Adjourned for Executive Session pursuant to HRS §92-5(a)(4) to discuss its legal rights, duties, privileges, and obligations relating to this matter with the deputy attorney. (Pacheco, Agor) 10:03 am Reconvened.
5
Unanimously approved as submitted. (Pacheco, Edlao)
Item M-1 Issuance of Direct Lease to Imperium Renewables Hawaii LLC at Kalaeloa Barbers Point Harbor, Honouliuli, Ewa, Oahu Tax Map Key: 1st Division, 9-1-14; Portions of 24
Written testimony was received from Theodore E. Liu of DBEDT, David Leonard of Imperium Hawaii, Raymond Iwamoto of Schlack Ito Lockwood Piper & Elkind, Lisa Gibson of HI Science & Technology Council, The Maui Group of the Sierra Club of Hawaii, William Anonsen of Maritime Consultants of the Pacific, Gerald Sumida of Carlsmith Ball LLP, and Life of the Land.
Mike Formby, Deputy Director of Department of Transportation – Pearl Harbor (DOT), introduced Mike Lau from the Attorney General’s Office and Glenn Abe from the Property Management Branch of DOT. Glenn Abe reminded the Board this item was deferred and he presented it.
Member Pacheco asked whether the lease states a specific feedstock or is it in general. Is there any mention about moving towards available local feedstock?
Mr. Abe replied feedstock in general. The character of use DOT is using is for the operation of a bio-manufacturing facility. Available local feedstock is mentioned in the submittal as part of the remarks, but it is not part of the lease. DOT has not made a provision for that.
Member Edlao asked any reason why.
Mr. Abe replied no reason on that. Initially, palm oil is going to be used. The long term intent is to use locally grown feed stock, but there is no timetable for the move to local feedstocks.
Member Edlao stated Imperium should get a timetable with the following - when the company is going to use the palm oil initially, how long, and what they’re going to do. He asked does Imperium have a business plan. Mr. Abe affirmed.
David Leonard, representing Imperium Renewables, cited its Washington plant’s use of canola oil, amount produced and its use of some local feedstock.
Member Edlao inquired he understands Imperium is not using any local feed stock at all, but eventually your company will move into it. He reiterated his questions regarding timetable and use.
Mr. Leonard elaborated the Hawaii plan currently has three choices: soy, canola or palm. Because the world vegetable oil commodity market is ever changing he can’t predict what it’ll be like when the plant is up and running in 2009. Imperium recently purchased
6 a jatropha oil extraction machine for HARC (Hawaii Agriculture Research Center) and is talking to the local agriculture community to help them start the industry because they want to buy local feedstocks as soon as possible. In the HECO contract there is a local preference for local feedstocks therefore there is an incentive in the business terms of the contract. As for the time frame regarding jatropha, Senator Akaka recently gave a grant to the Hawaii County Economic Development Council of $677,000 specifically for the development of jatropha to George Okiyama, the Executive Director of the Hawaii County Economic Development Council. Mr. Okiyama has connections with several farmers on the Big Island who have a nursery that will plant much larger plots of jatropha. Mr. Leonard cited its Washington State example of providing canola oil to Imperium and for the Seattle City & County bus system’s use of the biofuel. OTS (Oahu Transportation Service) is interested. Imperium has a track record of using local feed stocks in Washington State. Also, Imperium is paying a premium to that state through the bus contract which would be similar in Hawaii.
Member Pacheco asked as an industry in general and you’re at 80%, 90% or 100% of locally grown feedstock is that 10 year, 15 year, 20 year vision for your business plan. What is the forecast in your best case scenario?
Mr. Leonard explained he is being careful because they had filed for an IPO and they are in a quiet period. What he can say is what is currently published in their PUC filings and public information. Imperium has a small plant in Seattle that produces 5 million gallons a year and has been up and running for a couple years. They converted that to a research facility and they are focused on the second and third generation feed stocks. Imperium is currently handling algae at that facility. Soy is not a particularly good feed stock because it does less than 100 gallons per acre per year. Canola is better. Jatropha is a little bit better, especially in Hawaii where we might have multiple growing seasons. Palm is 6, 7 or 8 hundred. Imperium helped UH Hilo, School of Agriculture where they gave a grant to Dean Steiner to bring in some hybrids from Costa Rica which could do 1000 gallons per acre per year of African oil palms. There are people at UH who are working on algae as a feed stock for biodiesel. Algae can produce 10 times that (of palm). To predict how soon we might have significant amounts of local feed stock depends on what actually works here. Imperium is not sure how well jatropha will do here. Algae is still in experimental stages.
Mr. Leonard assured the Board, Imperium’s intention is to go to the second and third generation feed stocks as soon as possible where they are not competing for food grade oils. He reiterated the use of algae, of working with the RSPO on buying sustainably grown palm, and putting that in their contracts. He emphasized they are a biodiesel company that can use any of a dozen or more feedstocks. Not only palm, which they aren’t using currently.
Member Pacheco apologized about these questions because the Board didn’t have this information ahead of time. He asked knowing the uncertainties of what is available in the market place why decide to start from such a large facility? Was there an option to start with a smaller facility and wrap up?
7
Mr. Leonard described within the energy industry for this to work it needs to be scaled up. Their big industrial customers like the military, Royal Caribbean Cruises and HECO are up at this scale. The current biodiesel production is way, way down. These customers need the comfort level to switch to these fuels and that is why Imperium is scaling up. Imperium is doing 100 million gallons a year which is 6500 barrels per day in the petroleum industry index. Chevron refinery does 59,000 barrels per day. Tesoro Hawaii does 93,500 barrels per day. Multiply that by 42 they are doing 2.2 billion gallons per year of petroleum products. Imperium is doing less than 5% of the two Hawaii refineries even though 100 million gallons sounds a lot Hawaii is one of the most petroleum dependent states in the country. One reason they are here is to try to help move the State to a more self-sufficient and sustainable energy situation. Compared to what petroleum is right now, even with their relatively large plant Imperium is just getting started.
Member Agor inquired whether Imperium would accept the Board helping it along with making the decision of when they are going to transfer to local products by placing a stipulation of 10 years. At that time Imperium can report to the Board and show their progress. If they can’t, but is making progress, then the Board will consider extending that to help this along.
Mr. Leonard reported Imperium handled a similar issue at the last legislative session and at the AG’s Office, but the U.S. Constitution has a dormant commerce clause which limits one state from preferring its own production and supplies over another. Looking at the HECO NRDC feed stock procurement policy, under which Imperium is contractually obligated, Imperium has an incentive to use local Hawaii feed stocks as soon as possible, to get out of palm and into the local feed stock. He deferred to the deputy AG.
Discussion regarding time frame as determined by the local agriculture community and the type of feedstock.
Chair Thielen asked does Imperium’s business plan state what contributions they’d be making to local research on the different generations of local feed stock because the research is being done in other places and it may not be applicable here.
Mr. Leonard replied even though Imperium has plants in other parts of the country it is the reason why they are working with the Hawaii Agriculture Research Center (HARC). Imperium just completed a trip to bring in jatropha seed from other countries to see what works here.
Chair Thielen inquired whether one way of trying to get at second generation of local grown feed stocks is having a time commitment of when you would get there. Another way is having a dollar commitment to local research or a percentage of revenues.
Mr. Leonard conveyed Imperium is currently working with HARC putting together a working group of agricultural researchers in the State, some of the landowners and some
8 consumers of biodiesel. Imperium has put in $20,000 and is committed to $100,000 the first year. Other members (of the group) are bringing in more, but are pooling their money to get a grant to give HARC a significant amount of money. Mr. Leonard met with George Yokoyama who received a Federal grant from Senator Akaka’s office and Imperium is trying to bring them into the group. This working group will have something for the local agriculture to start the research with and to make sure the jatropha from India will do well in Hawaii and it will be a viable feedstock here.
Member Gon explained this Board is cognizant of a variety of things revolving around this issue from global to local levels. Imperium is being put to the fire so that the Board can ensure that we have local sustainability from global petroleum resources to local energy resources and the best way for the Board to do that is to pose some constraints on a timetable. The Board is thinking of a third of the 35 year lease, roughly a decade, to see some progress in regards to future generations and local aspects. The question is if the Board imposes these kinds of recommendations to this lease to give Imperium an incentive to accelerate to the greatest extent possible the different projects that Mr. Leonard mentioned.
Mr. Raymond Iwamoto, attorney for Imperium Renewables, testified to the Board that he is convinced this is a company dedicated to do what is environmentally clean, is proper and is beneficial to Hawaii. He referred to Imperium’s use of sustainable palm oil and commitment to using locally grown product as soon as it becomes available. Mr. Iwamoto thinks this Board should take that commitment, but not make it a legal requirement because Imperium will need financing to build this facility. He elaborated on the costs of this facility and compared it to Imperium’s Grace Harbor plant. It will cost 97 million. Imperium’s lease will go to the banks and if it says Imperium has to use a product or feedstock within so many years the banks may not finance them because there is no assurance that Hawaii is going to grow that feedstock within that period of time. No financing, no facility. He is concerned with the time limit.
Mr. Iwamoto warned not to debate about palm oil because that is happening in the world right now and he doesn’t think it’s the Board’s function. He believes that the Roundtable (RSPO), created by the World Wildlife Fund, is the top organization and Imperium will adhere to their standards. If the Board wants to state anything in the lease that they will adhere to by the Roundtable standards Imperium can live with that.
Chair Thielen empathized in order to get financing Imperium needs to get a 35 year lease to show the company’s ability to go through the construction and to gain the revenue to pay back the financing on their development. She understands Mr. Iwamoto’s concern on having a time limit particularly when that second or third generation may not be in place and Imperium may not control the ability to put that in place.
But another question is what kind of commitment the company would make to local research to hasten the development of that second and third generation of feed stock here. She heard a contribution of around $100,000, but at the same time 97 million to build the plant which is large.
9
Mr. Leonard explained in addition to financial commitment, Imperium is contributing their resources. People specific to algae or jatropha will support local agriculture research to expedite the availability of local feedstocks. Imperium spoke to HARC, UH and other agriculture groups for a year now. It is important to Imperium’s long term survival to have sustainably grown, competitively priced feedstock that is acceptable to all of their stock holders which is central to their business motto.
Chair Thielen appreciated that, but she asked could you quantify that commitment for us.
Mr. Leonard responded he could come back with a much larger number, but stating it in the meeting today is beyond the authority he has. This first (working) group will have their first meeting in early December and they will have a chair picked out. This hasn’t been publicly announced and it puts Mr. Leonard in an awkward situation. He doesn’t want to announce something prematurely because another company may not be comfortable with him doing that.
Member Edlao stated that contractually Imperium is obligated to HECO to move to local feed stock. The Board is asking Mr. Leonard for something similar in a condition.
Mr. Iwamoto replied when that local feedstock is available on a cost effective market driven basis, the answer will be yes.
Mr. Leonard clarified the HECO contract allows Imperium to buy local feedstock. He reiterated a preference to buy local feedstocks as soon as possible and Imperium is able to jump start local agriculture with that local preference. This is currently being considered at the PUC. LOL is intervening at the PUC.
Mr. Henry Curtis, Executive Director of Life of the Land (LOL), affirmed they have filed a motion to intervene before the Public Utilities Commission (PUC) on the proposed HECO/Imperium docket. He reported it has 89 redacted sections. LOL received a motion objecting to their intervention from HECO. He referred to Hawaii Revised Statutes 171-14, “except as otherwise specifically provided all dispositions of public land shall be made at public auction.” There are three exemptions in Hawaii Revised Statutes: 1) HRS §171-95(c) – “that if a renewable energy company is giving all of its supply to a utility or all of its supply for thermal energy than that can be exempted from the auction process.” Imperium has proposed a 35 year lease and a 3 year contract with HECO renewable for 3 years for part of their output and did not qualify under §171-95(c). 2) HRS §171-59(b)1 – if the Board finds that the proposed use is in the public interest and if it encourages competition within a maritime related industry; or under HRS §171-59(a)(1) if the Board finds that the proposal is in the public interest and if it involves locally grown agriculture. They don’t qualify under both exemptions. HRS 171-14 requires that “it has to be put out for auction.” Mr. Curtis cited Superferry example.
10 When Life of the Land raised feedstock issues with Imperium, Imperium said either it is beyond the call of the EA or they will rely on RSPO standards. Mr. Curtis made the Board aware that RSPO doesn’t have any standards and that they don’t have any enforcement mechanism. Imperium has dealings with WILMAR who is under international investigation. A local price preference is true. At the HECO NRDC in Hilo, questions were raised by this deal on jatropha because there are competing interests on the Big Island. An S1 filing with the Securities and Exchange Commission was filed this past May. The big issue is enforcement because there is no mechanism to determine if (feedstock) is sustainable or not. Mr. Curtis recommends deferring, opening to auction, and opening to a greater Board discussion on what sustainable biofuels mean.
Chair Thielen understands Mr. Curtis is a huge advocate for renewable energy. She asked is the concern the palm oil or is the concern any biofuels?
Mr. Curtis reported in the dockets before the PUC, LOL have argued for botach, sea water air conditioning, wave energy, solar, wind and a small amount of biofuels like waste oils because waste oils dumped in landfills create more green house gases then converting them to biofuels for use in vehicles. His organization supports additional research to look at local production of local crops as long as all impacts are addressed. Mr. Curtis explained it’s hard to measure what comes off of a farm. Hawaii is working toward a better life cycle analysis for green house gas emissions from agriculture. All biofuels raise concern.
Kat Brady is concerned with enough land to grow enough feedstock to meet Hawaii energy needs. She supports sustainable agriculture, but bemoans the use of agricultural land for energy feedstock when it should be used for food. She is concerned with the impacts of local feedstock and the displacement of people. Ms. Brady agrees with Mr. Curtis on the problem of sustainable palm oil.
Gerald Sumida of Carlsmith Ball representing U.S. Biodiesel Group reported submitting a letter to the Board. He explained they are competitors in Hawaii. U.S. Biodiesel requested Kalaeloa land for loading ships, but DOT stated there was none available. Statutes indicate a preference for public auction of lands where there are two or more parties interested in the same land. He clarified U.S. Biodiesel is not against Imperium. Mr. Sumida stated in a section of the Hawaii Revised Statutes, “In essence that the DOT for Harbor lands may in under certain circumstances issue a direct lease if its found to be in the public interest, for maritime and certain other uses” which this will fall under. U.S. Biodiesel Group’s request was made in early October 2007.
John Strum, program manager for Energy, Aerospace, and Projects for Enterprise Honolulu, explained they are a non-profit and are one of the advocates of sustainability for Hawaii food and fuel. They did the State’s road map in these areas. He reported the Legislature discussed what is the timetable that people should use feedstocks and these points came up: 1) No crop has been decided on. 2) No landowners themselves have made a business case saying they can grow it. 3) Don’t have the work force. 4) Lost
11 water uses with the land that is left. In 10 years, Hawaii has doubled it’s per acre for food giving us more land for mixed use. The model today is both food and fuel.
Mr. Strum gave background on Grays Harbor and the amount of petroleum oil coming (to Hawaii) from Indonesia. He related how Imperium is willing to start this (biofuel industry) and that it’s up to staff to help agriculture. This facility will address Hawaii’s dependence on imported food and fuel. He recommends using Imperium because of the sustainability and commitment.
Christopher Seine owns Surf.com explained he is concerned with the emotional pitch on this item asking to tear up the rules. 1) By acknowledging Imperium has no financial ability to do this without the State lease. 2) Imperium is making promises, but they are not willing to put it down in writing. Mr. Seine has been through internet business IPOs and alerted to the possibility of a foreign owner taking over who will only be interested in the bottom line. He suggested that the Board set the terms for the lease of a biofuels company then put it out to bid for those companies who want to do business in Hawaii taking into consideration those things that are unique and sacred to Hawaii as well as the economy, and Federal mandates. The Board’s responsibility is the land and the people.
Michael Lau, Deputy Attorney General, referred to Mr. Curtis’s argument whether the refinery qualifies under 171-59. It is maritime related use and qualifies given the petroleum refinery example. Regarding Mr. Sumida’s argument if there are two competitors they must go to auction, that is not what the Statute says. It says “if its maritime related use and it encourages competition then we can directly negotiate.” It’s important to understand that the encouraging competition aspect was meant to get around the auction process not go into an auction process. U.S. Biodiesel came in so late that staff could not even consider them a competitor.
Mr. Formby representing DOT – Harbors advised the Board that today’s proposal is not a new business model. The requirement is the company be public utility by nature. Harbors have always decided who gets these scarce harbor lands and wants to make sure the proper companies get those lands. Biodiesel is a competitive alternative fuel product. Imperium approached DOT early on and he described the steps before U.S. Biodiesel decided to compete. DOT doesn’t stop when someone new wants that property. DOT Planning works 20, 25 years in advance. It’s this provision of the Statute that empowers DOT Harbors to directly negotiate with the industry that they feel belongs at the Harbors. DOT has not excluded U.S. Biodiesel and he disclosed the parcel reserved for them.
Mr. Lau clarified it is maritime related use as broadened by the Legislature.
Member Pacheco inquired what would trigger DOT to do a RFP as oppose to a direct lease.
Mr. Formby explained the situation is US Biodiesel could be pushed out if they go to public auction. He explained DOT’s ability to plan their harbors and he presented their engineer’s forecasts. Mr. Formby detailed the history and process with Imperium.
12
Member Edlao asked for examples of conditions that will best serve the State of Hawaii.
Mr. Formby advocated this Board ask Imperium to commit to using their best efforts to switch to locally grown sustainable crops within a certain period of time. Not a formal commitment, but that they use their best efforts and that they come back to the Board in 5 years, 10 years to brief you on what efforts they have made to do that. Like a progress report (informational briefing).
Discussion on Terms of Conditions and Remarks in submittal.
Mr. Abe clarified it is a 1 year waiver of rental.
Member Pacheco inquired how does this come back to the Board on a lease.
Mr. Abe replied if the lessee defaults and DOT has grounds to terminate they will come before the Board. Or, if there are changes. It’s by law that DOT comes before the Board.
Mr. Leonard made the commitment that Imperium will donate 3-1/2 million dollars to local agriculture research feedstock during the term of the lease. Also a periodic accounting and reporting of Imperium’s use of local feedstocks which will be part of the lease. He committed a minimum goal of 10% feedstock in the first decade.
There was discussion on acceptable conditions.
Chair Thielen stated two proposals to add two new conditions to the recommendation. 1. The Lessee shall use commercial and reasonable best efforts as new crops become available to move to second and third generation non-food feedstocks like jatropha and algae, or other locally available feedstocks with the goal of using 10% of locally grown feedstock in the first decade. 2. The Lessee shall work with the government and private sector in Hawaii to develop local feedstocks in Hawaii and contribute a minimum of 3.5 million during the term of the lease to fund these efforts with no less than $100,000 per year.
Mr. Leonard added with the understanding that the State will match these funds to the extent they are able. Imperium would like to have some sense of a partnership with the State.
Chair Thielen explained when the legislature comes before them for a lease; they will impose that condition on them, too. Mr. Leonard agreed.
Discussion on amount of contributions whether all on last year or annually.
Mr. Formby declared based upon the representations of Imperium we consent to put those conditions in the lease.
13 Member Edlao suggested these conditions from page 6: 1. As new crops become available and the Lessee is able to move to second and third generation non-food feedstocks like jatropha and algae as well as local feedstock. 2. The Lessee shall work with both the government and the private sector in Hawaii to assist in creating Hawaii sources of feedstock supply. He asked would that be acceptable.
Mr. Leonard affirmed it is if the first condition was on a best efforts basis. Otherwise conceptually it is acceptable. The second condition is acceptable and he would like to add 3.5 million dollars during the term of the lease with the understanding that the State will work to match those funds to help HARC and other local agricultural R&D centers.
Member Gon reminded the Board the applicant was ruling to entertain a 10% minimum local use within the first decade as the target.
Mr. Iwamoto approved Member Edlao’s conditions and “commercially reasonable best efforts.”
Chair Thielen stated she heard two proposals to add two new conditions to the recommendation. 1. The Lessee shall use commercially reasonable best efforts as new crops become available to move to second and third generation non-food feedstocks like jatropha and algae, or other locally available feedstocks with the goal of using 10% of locally grown feedstock in the first decade. 2. The Lessee shall work with the government and private sector in Hawaii to develop local feedstocks in Hawaii and contribute a minimum of 3.5 million during the term of the lease to fund it at a rate of no less than $100,000 per year.
The Board:
Amendment to Staff Recommendation:
Two proposals to add two new conditions to the recommendation. 1. The Lessee shall use commercially reasonable best efforts as new crops become available to move to second and third generation non-food feedstocks like jatropha and algae, or other locally available feedstocks with the goal of using 10% of locally grown feedstock in the first decade. 2. The Lessee shall work with the government and private sector in Hawaii to develop local feedstocks in Hawaii and contribute a minimum of 3.5 million during the term of the lease to fund local research efforts at a rate of no less than $100,000 per year.
Unanimously approved as amended. (Edlao, Gon)
11:40am – Convened for recess. 11:45am – Reconvened.
14 Item D-3 Issuance of Revocable Permit to Green Energy Team LLC, Wailua, Lihue, Kauai, Tax Map Key: (4) 3-9-02: 20
Written testimony was received from Representative Roland D. Sagum, Paul Conry of DOFAW, Chairperson Sandra Lee Kunimoto of DOA, Beth Tokioka of County of Kauai Office of Economic Development, Gilbert Peter Kea for Garden Island Resource Conservation & Development, Alan Takemoto of Hawaii Farm Bureau, Flint Hughes with USDA Forest Service, William Sanchez – permit holder.
Mr. Morris Atta, representing Land Division, spoke on submittal background. The reason an RP (revocable permit) was requested instead of a lease was because Green Energy approached the Department for a long term lease to grow albizia and eucalyptus trees. Hawaii Revised Statutes §171-95 did not allow for renewable energy producers that did not produce energy on site. The direct leasing option was not available. There is a pending request for a change in the Statute. It was agreed that an RP would be sought in the interim until such changes occurred. This matter raised a lot of controversy in regards to competing interests. One correction should be made on the submittal. The original says 2, 181 acres then it was changed to 2,160 acres on the assumption that two smaller RPs would not be included and those were needed. After further discussion since the submittal was prepared, it was thought it should include all the RPs especially if it may affect the overall size of this project. For discussion purposes all 7 permit holders are included.
Member Agor reported on the meeting where the applicant made his co-existence proposal to the farmers which are to have the existing lessees keep their RP and grow the trees for Green Energy. Member Agor toured the area and found there are challenges to co-existing. The cattlemen and the tree farmers would have to step up their management to make this work. The farmers met and didn’t agree on the co-existence, but the applicant will present his side. Member Agor believes there is a finite amount of land and he asked the Board to help guide him with this plan of co-existence.
A proposal packet was distributed by Eric Knudsen.
Eric Knudsen, representing Green Energy, LLC, announced he has a short presentation. He introduced representatives from the Kauai utility, KIUC; an independent CPA; and phone testimony from State Representative Roland Sagum. Mr. Knudsen presented his proposal packet which includes the co-existence plan.
Member Johns asked the EA does not cover impacts which involve change in use of public RP lands that are being farmed or ranched.
Mr. Atta acknowledged the EA is for the facility.
Member Johns queried are we clear about the exemption in light of recent case law.
15 Linda Chow, Deputy Attorney General replied she is sure that the exemption was given prior to the new case law coming down. She doesn’t think that whether or not we used the exemption should be moved upon even though it was the most recent case.
Member Johns questioned the EA covering that would address the social and economic impacts of displacing existing farmers if they were displaced.
Mr. Atta assumed that.
There was discussion regarding the transfer to ADC (Agribusiness Development Corporation).
Member Johns inquired whether the discussion in the EA was done before control of albizia in terms of it being a very aggressive alien species, what are your control mechanisms to prevent it from spreading as it already has on the island.
Mr. Knudsen responded Green Energy wants to manage the albizia and work on the surrounding parcels with Forestry to eradicate over a 10 year time plan, but it takes time. There has been no successful eradication of albizia on Kauai that he is aware of. His company did an EA which includes the feedstock and the footprint.
Member Johns asked what happens if the legislation is not successful.
Mr. Knudsen replied his company is comfortable with a monthly arrangement. Green Energy has a 3 year cycle with the trees and they can take them in an accelerated time frame.
Member Agor inquired why this particular 2000 acres. Mr. Knudsen explained the location of his company’s facility needs to be close to its feedstock and cited transportation issues. His company did not initially target the lands in question. Land Division identified this parcel.
Member Agor asked is there an urgency to secure the 2000 acres in terms of the time frame.
Mr. Knudsen answered absolutely, to move forward and plant the trees in the first quarter of the section of the parcel.
Jerry Ornellas, President of the East Kauai Water Users Cooperative, testified they are a non-profit water cooperative started in 2000. They received a revocable permit to operate the former East Kauai Irrigation System from the Department of Land & Natural Resources (DLNR) who has jurisdiction over the system. This entity (Green Energy) signed an agreement with KIUC and does not have the resources to fulfill their commitment. They are now coming before you asking for prime agricultural land. The applicant, the farmers and the East Kauai Water Users Cooperative are the three parties involved. When they entered into the agreement with the Department the plan was to
16 derive revenues off of these Kalepa lands. If it was fully planted out the revenues would be $120,000 a year. He presented the Kalepa Agricultural Master Plan which was commissioned by DLNR since February 2003. It has no provision for production of biomass on these State Lands. These are the best agricultural lands on East Kauai and if they are taken out the Cooperative will not survive. When the Coop entered into this agreement assuming they would have these lands as a source of revenue. He suggested transferring these lands to the ADC and proceed in an orderly planned manner. He asked the Board to take everything into consideration and to reject the proposal.
Member Johns asked what was wrong with the coop approach. Is there anyway that there could be dual use of the property?
Mr. Ornellas replied albizia trees are invasive and will grow anywhere without any help. It is a huge problem for farmers and ranchers. He asked why put it on the best publicly owned agriculture lands on East Kauai?
Member Johns inquired some of the RPs cover unirrigated lands, right.
Mr. Ornellas responded most of the lands requested can be irrigated. The lessees have had meetings with the Bureau of Reclamation. The intention is to follow the long range plan (Master Plan).
Member Johns queried if there was a proposal to grow albizia could it be incorporated into that master plan.
Mr. Ornellas replied he can’t answer that he is not an expert on forestry or biomass.
Member Agor stated he doesn’t have a problem of growing albizia, but staff asked the applicant to find another species. The problem is Forestry has a plan to eradicate it and an entity wants a license to grow it unless we can come up with an alternate tree.
Chair Thielen inquired is ranching the best use of these prime agricultural lands or is there a consideration to phase ranching out of this area.
Mr. Ornellas explained ranching is an interim use of the land. The plan specifically states to keep this land open and un-forested. The reason is when agricultural opportunities arise you can move quickly onto those lands. His opinion is there can be co-existence between ranchers and farmers because farmers are always looking for land that has been fallow and the best way is by ranching. This is why the applicants want this land.
Mr. Atta clarified the Kalepa Master Plan was conducted by DLNR and gave the background history. It was a conceptual plan which required 5 million dollars in infrastructure development and DLNR could not implement it. This plan was based on the hope staff could maximize the use of these lands for agriculture.
Mr. Ornellas recommended the Board study the plan scenarios.
17 A map and letter of testimony from William Sanchez was distributed to the Board by Les Milnes.
Les Milnes, Interim Chair of the Kalepa Koalition, apologized that he misunderstood the question earlier about the affected parcel holders. His group had questions on page 2, 3rd paragraph of the submittal which relates to the 10 year plan identifying the lands for removal of albizia. They are not certain if that is the Kalepa lands in question or does that encompass all the Forestry lands that are infested with albizia. Page 3, paragraph 2 speaks of mandating utility companies by 2020, 20%. He can understand a multitude of different uses other than albizia planting toward that 20% especially at the expense of losing prime ag lands and irrigated food producing lands. He thinks marginal lands are appropriate. Kalepa Koalition has a concern with the distance of the facility to the lands requested. Page 6, paragraph 8 relate to letters of support which were submitted prior to the application and may not represent the true feeling now. He referred to the co- existence plan and presented his exhibits. Mr. Milnes presented William Sanchez’s letter of testimony and a map outlining the lands in question. According to the plan Mr. Sanchez would lose a quarter of his pasture immediately. He would as a result cut his herd by ¼ as he is running at a maximum carrying capacity. Mr. Milnes reported Mr. Sanchez’s history.
Chair Thielen referred back to the concept that was raised at the farmers meeting regarding a cooperative plan. It appears what Mr. Ornellas has raised on the Master Plan for this area is ranching is an interim activity. Taking a look at irrigated lands there is a preference on the master plan for different crops to go in the area. She inquired are the ranchers willing to entertain some type of co-existence plan given the understanding that these aren’t viewed as permanent ranch lands.
Mr. Milnes replied in the affirmative. The ranchers have been working with the farm bureau to get started. Mr. Sanchez is aware of the diversification of agriculture.
Chair Thielen queried if the issues of the albizia trees regarding the types of grasses grown under them were addressed would the farmers be willing to come back to the table to discuss a cooperative arrangement where both uses could be done on the property.
Mr. Milnes responded the 13 parcel holders did meet and they discussed where they would stand. Mr. Sanchez would lose out. The rest are at 50%, 75% and 5% reduction. He described “silver pasture.” Taking into consideration the biomass and the integration of both uses he felt a third of the land area could be planted, but not as tightly proposed. The problem that the farmers faced is coming up with 2000 acres. He explained the type of acreage and possible situation.
Member Johns stated he didn’t realize the transfer to the ADC was never approved by the Board. It was deferred. He recommended ADC should resolve this if the agency is to get the land. It looks like staff held back because of some concerns over specific facilities.
18 Mr. Atta confirmed Member Johns statements and cited the land transfer never went through because it was tied to the transfer of the water systems. OHA had a problem with this and certain individuals didn’t want portions of the water system re-opened. The land portion was held up [was] because of the difficulties of transferring the water portion. It was never approved.
Alfredo Lee, representing the ADC, agreed to a co-existence and informed that this is irrigated land. They were thinking of making the irrigation system be self sustaining and ADC would need to have more water users (diversified agriculture). He suggested the trees don’t need irrigated land and are more suitable for forestry lands at the north of the parcel.
Chair Thielen asked is ADC willing to facilitate a discussion with the parties to determine how a co-existence plan may work in this area.
Mr. Lee affirmed they would participate.
Member Johns inquired of Mr. Atta would the Department be ok with allowing ADC to act as facilitator to get a co-existence plan and bring it back to the Board. Not sure about the timing because staff doesn’t know if Green Energy could be a long term venture until the legislature decides whether they can do a direct lease or not.
Mr. Atta confirmed working with ADC was never an issue with staff and explained the urgency of getting this before the Board. He reiterated the transfer has never been approved.
Discussion whether to act on deferral of DOA (Department of Agriculture) subdivisions.
Member Agor asked what kind of money are we talking about to get the irrigation up to par.
Mr. Lee replied the legislature gives ADC $50,000 to $100,000 every year.
There was discussion of a contested case on diversion of streams and objections by Hanalei Watershed Coalition because the areas in question are abandoned. They could request conditions on the water system
Mr. Knudsen reported on the timing and referred to Hawaiian mahogany feed stock. His company has lower pricing, but can’t hold that price if it can’t reach the target date because of Federal tax credits.
Member Johns inquired Green Energy entered in a PPA in March 2007 at that time it didn’t have a secure biomass fuel source in place and that’s why this submittal.
19 Mr. Knudsen acknowledged affirmatively. He reported on the types of business on the parcel and the effects on the permittees. Green Energy would offer the best programs to support the ranchers, but not everyone will fully agree.
Member Johns acknowledged how it affects the timing of economics and that there are albizia all over the place. Forestry has offered Green Energy to take it all off the State Lands.
Mr. Knudsen affirmed his company will be working with Forestry to remove the surrounding trees. He explained the nature of albizia and in 9 or 10 years will satisfy their needs economically. He added they will use cane haul roads.
Chair Thielen suggested ADC commit to some negotiated sessions between the parties and to come back January 11, 2008 to see if the parties can come up with a co-existence plan that would work and address Forestry Division’s concerns regarding management.
Member Pacheco stated he didn’t support the project because 1. it’s taking permits away from people who have permits who aren’t in violation and replacing them with ag lands. 2. Replanting those lands with albizia.
Mr. Knudsen reported that there is one segment of the parcel about 500 acres currently in albizia. According to Forestry comments Green Energy will manage and harvest it. He is willing to commit to working with ADC through the time period until January 11, 2008.
Mr. Lee agreed to move this along.
Member Johns added he wants staff to work with the Attorney General’s office in regards to the EA issue.
Mr. Milnes addressed the Board regarding the consideration of co-existing and the long range plan of transferring to ADC to give all the current permit holders a long term life possibility. The permit holders would more than welcome entertaining and providing biomass areas for the project which is how they would address talks with ADC. They would like long term tenure on the property.
Henry Curtis argued that to make a decision before having all public input is a violation of Sunshine Law. He explained this Board needs to amend the rules because the legislature and constitution says to eradicate invasives. And here is talk about co-existing by planting invasives which is a big shift for the State.
Member Agor clarified the applicant was asked to find another source instead of albizia.
Mr. Curtis continued the environmental assessment is not complete. There are a million albizia trees on Kauai and he feels they should harvest those first before planting any. To have this proposal for Kauai to be renewable by 2020 seems absurd since Kauai Island
20 Utility has entered in a memorandum that exceeds the 20 %. The applicant noted in order to have crops considered for biomass is 1. speed of growth 2. high caloric content 3. moisture content that is immediately reduceable. He referred to algae. He expressed his concern that the Board moved ahead to approve waste to energy conversions that contradicted each other without resolving that conflict.
Member Thielen clarified that the Board is not making a decision and is not violating the Sunshine Law. They are asking the applicants to have further discussion and to come back with a decision in January.
Earl Yamamoto, representing Chair Sandra Kunimoto at Department of Agriculture, asked that this matter be deferred because of concerns. 1. Alternative sites be considered. 2. Displacement or termination of revocable permits for existing farmers. 3. Concerns of affected permittees should be addressed. 4. Concerned with economic harm to the existing permittees including the water coop. 5. Existing pemittees are offered opportunities to access their current lands while the trees are growing however they still stand to loose 25% of their lands.
Chair Thielen asked him if Department of Agriculture (DOA) would like to join the other parties in the facilitated discussions between now and January to come up with solutions.
Mr. Yamamoto replied that would be the administrative part of DOA.
Bill Cowern, of Hawaiian Mahogany who will be harvesting the albizia trees, asked whether they could harvest existing stock and get permits to continue removal for the next 20 years on State land. Does DLNR have a plan to eradicate albizia on Kauai?
Chair Thielen replied there was a reference to a management plan as part of this application to harvest in certain areas. If there is going to be discussion, Land Division could obtain permits to harvest albizia and she believes Forestry would be delighted to have this go on. She encouraged working with staff.
Chris Buddenhagen testified the use of invasive species is a major concern because of the number and long distance dispersal. He cited examples and research.
Member Agor made a motion and Member Edlao second to defer with the understanding that ADC will work with the parties including DLNR on the EA issue and come back January 11, 2008 with a resolution that will address the invasive species as well as the co- existence issues.
The Board:
Defer staff’s submittal. Deferred to the January 11, 2008 Land Board Meeting. Applicant was asked to work with the Kalepa Koalition and the permittees under the affected
21 revocable permits to resolve the issues under the proposed coexistence plan and return to the Board in January with the results of that effort.
Deferred. (Agor, Edlao) All approved.
Item D-14 Informational Briefing regarding installation of signage by Hilton Hawaiian Village, LLC, Kalia, Waikiki, Oahu, Tax Map Key (1) 2-3- 037:021 (por.)
Morris Atta of Land Division clarified this is a briefing and staff will need to correct the submittal because it is written as if there is a recommendation for Board action, but it is merely a reporting of status. On the recommendation portion it includes an error that obligates the Hilton to conduct enforcement, but Hilton does not have the authority to enforce State rules. The report on status is staff is working with Hilton on the final wording and placement of the signage in the Hilton lagoon area. This arises as part of Hilton’s improvements to the Hilton Duke Kahanamoku Lagoon and it arises from their obligations under the deed to the State where there’s a requirement for Hilton to maintain the lagoon and improvements. This is merely an effort by Hilton to comply with their obligations on this matter.
The Board:
Amendment to Staff submittal: Staff corrected the following errors in the recommendation section of Agenda Item D-14 by: 1) Deleting the section heading stating “RECOMMENDATION: That the Board:”; 2) Replacing the phrase “Authorizing staff to assist Hilton,” in the first sentence of the section with the phrase “Staff is cooperating with Hilton,”; and 3) Deleting the phrase “and enforcing” from the second line of the item (b) of the section.
Item M-2 Issuance of a Revocable Permit to DB Supply Inc., Keehi Industrial Lots, Kalihi-Kai, Honolulu, Oahu
Glenn Abe, representing Department of Transportation (DOT) – Harbors, described submittal and the area for storage. Staff asked the Board to approve the permit.
Unanimously approved as submitted. (Johns, Gon)
Item M-3 Approve the Issuance of a New Lease Issued by the State of Hawaii, Department of Transportation, Harbors Division (DOT-H), of Approximately 20 acres of Public Lands, by Direct Negotiation, to Allow the Development of a Master-Planned Industrial Park for Maritime or Maritime-Related Purposes, at the Keehi Industrial Lots Site, Honolulu, Oahu, Hawaii, Tax Map Key Parcels: 1-2-023:029,
22 033-037, 040-042, 045-050, 053-054, 056-066, 069-080, 082 and 084- 091.
Sandy Pfund with DOT – Harbors stated this action is to seek the Board’s approval to have the DOT issue, by direct negotiation, a master lease for this area as mentioned in the submittal. She described DOT’s request and the unimproved area.
Unanimously approved as submitted. (Johns, Pacheco)
Item C-2 Request for Approval to Terminate the Surrender Agreement Between the Department and McBryde Sugar Company, LTD at Tax Map Keys (4) 5-8-001:001, Wainiha Valley, Hanalei District, Kauai Pursuant to Section 183-15, Hawaii Revised Statutes, and Remove Same Halelea Forest Reserve, and the Forest Reserve System
Member Gon recused himself.
Paul Conry, administrator for Division of Forestry and Wildlife, informed the Board on submittal background. The 50 year term will terminate in 18 months and this is a request to move that forward to allow a coorperative agreement with The Nature Conservancy and enter into more aggressive restoration and management of the parcel. Staff is in favor of this because it will add an enhanced ability to manage and restore the area and be a net benefit to the State. The recommendation is based on AG’s advice that where DOFAW has private lands designated as forest reserve by executive order but not covered by a surrender agreement that those lands should be removed from the executive order. The agreement with The Nature Conservancy (TNC) is for 10 years. If TNC doesn’t continue that then it would be at the desire of the land owner. Mr. Conry noted this parcel is in the watershed partnership and it’s also covered under the conservation district protection.
Charlie Loomis from Alexander and Baldwin and McBryde Sugar Co. agreed with staff, but is here to answer any questions. Regarding the 10 year term, we’ll see what happens because its Alexander & Baldwin and McBryde Sugar’s intent and hope that TNC will extend it for a longer period of time.
Trae Menard, director of The Nature Conservancy on Kauai, reported they have been working with the watershed alliance as the coordinators for the last two and half years. TNC identified this particular parcel as a very high priority because of the intact biological systems and hydrological importance of the parcel. It sits directly in the center of the island and it is the rainiest spot in the world. TNC has also found a very high diversity of plants that only occur on Kauai. The reason why TNC entered into the agreement was to have a solid agreement to acquire funds from the Federal Government, from the State, and to be able to acquire their own private money to manage. Although, the parcel is in a very intact state right now it’s very short lived. There’s a very narrow window of opportunity to control the weeds. That is the reason why TNC wants to move forward quickly on this.
23 Unanimously approved as submitted. (Agor, Pacheco)
Item C-1 Subject: Request Approval on a Memorandum of Agreement (MOA) Between the Hawaii Invasive Species Council (HISC) and the Board of Land and Natural Resources (BLNR)
Paul Conry of DOFAW requested to approve this agreement to administer this program.
Unanimously approved as submitted. (Gon, Johns)
Item K-2 Request to Extend the Processing Period in Order to Process a Contested Case Hearing, Case File KA-08-01, for Conservation District Use Application (CDUA) KA-3399 for the Consolidation of Two Parcels and the Construction of the Morrow Single Family Residence (SFR) in Haena, Hanalei District, Kauai, TMK (4) 5-9- 03:10, 45.
Member Agor recused himself.
Sam Lemmo, representing OCCL, explained submittal background. Staff recommends the Board grant the 60 day extension.
Unanimously approved as submitted. (Pacheco, Gon)
Item K-3 Appointment and Selection of a Hearing Officer to Conduct All Hearings for One Contested Case Hearing Regarding Enforcement Case KA-06-77 Regarding Anawalt Lumber’s Unauthorized Construction of a Tension High-wire Fence Within the Conservation District at Haena, Hanalei District, Kauai, TMK (4) 5-9-02:31.
Sam Lemmo of OCCL gave submittal background. Staff recommends authorizing the appointment of a hearing officer and delegates the authority to select a hearing officer to the Chairperson.
Unanimously approved as submitted. (Agor, Gon)
Item D-1 Annual Renewal of Revocable Permits on the Islands of Hawaii, Maui, Molokai, Kauai and Oahu
Member Johns recused on the revocable permits (RP) addressing Parker Ranch and Hawaiian Electric Company.
Member Gon recused from The Nature Conservancy.
24 Morris Atta, representing Land Division, communicated annual renewal and pointed out staff’s chart. He indicated a 3% increase in the rents for the RPs and recommended approval.
Member Johns inquired of the Mauna Kea Broadcasting Co. telecom facility. In the past there were questions whether to put this out for public auction and staff is choosing to roll it over?
Chris Racine, broadcaster and owner of 4 Hawaii television stations, communicated this permit should be revoked and put out to the public because the owner is in serious violation and it is in the best interest of the public. He described the tower location and gave the history. He alerted that the owner’s lawyer is involved. The lease has gone defunct for seven years. Mr. Racine indicated previous submittal recommendations were never followed. The owner’s response to each increase in rent is “can’t afford it.” The owner has not made any improvements which might cause the tower to fall. Mr. Racine offered to pay $20,000 per month for it instead of $9000 per year resulting in a huge interest in the site by making it safer, and providing for more practical uses. It is valuable to broadcasters. Mr. Racine suggested either sell outright or put the lease out to bid. He alerted that this owner has had the tower for 27 years and has not paid taxes in years resulting in the State losing millions in taxes because Mauna Kea Broadcasting is a dba of a California Corporation called Mt. Wilson FM Broadcasters.
Morris Atta stated staff can take it out as a separate submittal. It will be up for annual renewal with a revocable month-to-month.
Discussion on whether to go to auction process or best arrangement and the need to do more research.
The Board:
Amendment to Staff recommendation. In response to testimony from Mr. Chris Racine regarding alleged violations by permittee, staff proposed and the Board approved the removal of Revocable Permit No. 5384 to Mauna Kea Broadcasting Co., Inc. from the list of permits being renewed in Exhibit “A” by the Board action. Otherwise, the Land Board approved staff’s recommendation as submitted.
Unanimously approved as amended. (Johns, Gon) Except for Hawaiian Electric Co., Parker Ranch and The Nature Conservancy.
Unanimously approved as amended on recused items. (Agor, Edlao)
Item E-1 Request for Permission to Hold the Aloha Council, Boy Scouts of America, Makahiki at Sand Island State Recreation Area, Oahu
25 Dan Quinn representing State Parks reminded the Board approved a similar event that was conducted earlier this year and the Boy Scouts of America would like to conduct the same event next year. He explained the event is held at the most Ewa end of the park and the conditions are the same as last year. There is a Boy Scouts representative here to answer any questions and he approves.
Unanimously approved as submitted. (Gon, Johns)
Item D-12 Board Briefing on the Proposed Land Transfer Approved on July 14, 2006, Under Agenda Item D-9, and as Amended on July 27, 2007 Under Agenda Item D-9, Kawainui Marsh, Kailua, Oahu, Tax Map Keys: (1) 4-2-13:22; 4-2-16:portion 1, 5, and portion 6.
Morris Atta, acting administrator for Land Division, introduced Gavin Chun.
Gavin Chun of Land Division briefed the Board on Kawainui Marsh since the last Board action of July 27, 2007. Following the Board’s approval to amend its action of July 14, 2006, the City submitted objections to the Board’s conditions precedent to closing of the land transfer. Subsequent to the objections, the City, the Department and the Army Corp of Engineers met and worked to complete a phase one. There is a representative from the City here available if any questions.
Chair Thielen inquired when would phase one be scheduled to be completed.
Mr. Chun replied we hope to have a preliminary draft within a month or so.
Member Pacheco asked is there a loss of funding possibility or is there a deadline.
Paul Conry, administer of DOFAW, explained there is an Army Corp of Engineers project that is going to provide about 5 million dollars in funding. Right now it’s in the budget before congress. One of the concerns for the Army Corp is they are interested in seeing this process move quickly to inform their Washington folks that a land transfer has occurred. He hasn’t heard whether it has passed through the budget. Staff is making major steps on the State side for funding and completion of the plan. There is a Corp (of Engineers) deadline. Staff will be returning to the legislature to request for additional State funds.
Member Johns inquired do we have to resolve the issue regarding Phase I/Phase II as a condition of the acceptance of the marsh or are we working toward a solution that the Land Board should act.
Mr. Chun confirmed with the latter.
Member Pacheco inquired about the deed issue (Quickclaim Deed).
26 Laverne Higa, director of Facility Maintenance – City & County of Honolulu, reiterated Mr. Chun that the City and Corp of Engineers met and are moving to completion of Phase I. They expect the draft at the end of this month and will know then if a Phase II will be required. Regarding the Quickclaim Deed issue, the City forwarded information to the State and at this point it is not an issue.
Item K-4 Request to Deny Standing for Petitioner Ilioulaokalani Coalition for Contested Case OA 08-04 Regarding Conservation District Use Application (CDUA) OA-3414 for Public Purpose Subdivision of Land for the Expansion of the James Campbell Wildlife Refuge; and Request to Approve Conservation District Use Application (CDUA) OA-3414 for Public Purpose Subdivision of Land for the Expansion of the James Campbell Wildlife Refuge by James Campbell LLC., Located at Kahuku-Keana, Koolauloa, island of Oahu, TMK:(1) 5-6- 002:010
Sam Lemmo of OCCL informed the Board on the request background and staff recommends denying standing. Should the Board do that staff recommends approving the pending conservation district use application (CDUA). He described petitioner’s request was unclear how it would impact native Hawaiian rights and staff feels this is not the venue for the petition.
A representative of the applicant was there to answer questions.
There was discussion on the petitioner’s grievance.
Member Johns explained letter indicates lot 1001 will incorporate the .9 acre parcel and the CDU doesn’t address that development. Staff is saying the .9 acre portion will not be developed as part of the development of 1001.
Mr. Lemmo replied he doesn’t think so.
Petitioner was not there to testify.
Unanimously approved as submitted. (Johns, Pacheco)
Item K-1 Second Time Extension Request by HASEKO to Extend the Processing Period for Conservation District Use Application (CDUA) OA-3412 For a Portion of the Kaloi Gulch Drainage Way Improvements Located Makai of Oneula Beach Park, Ewa, Island of Oahu, TMK:(1) 9-1-012:025 and (1) 9-1-011:007
Item K-5 Request for 90-Day Time Extension to the 180-day Processing Period for Conservation District Use Application (CDUA) OA-3413 to Change the Liljestrand’s Single Family Residence (SFR) Land Use for Subject Parcel to Accommodate Commercial Use(s), Robert
27 Liljestrand, Located at Tantalus, Island of Oahu, TMK: (1) 2-5- 011:008
Sam Lemmo representing OCCL reported no changes.
Unanimously approved as submitted. (Gon, Pacheco)
Item D-4 Approval in Principle Acquisition of County Lands for Consolidation with Existing Naalehu School Campus, Kaunamano, Kau, Hawaii, Tax Map Key: (3) 9-5-09:15.
Item D-5 Amend Its Prior Board Action of September 14, 2007 (Item D-6), to Rescind Its Prior Actions of January 10, 2003 (Item D-16), Issuance of a Termed, Non-Exclusive Easement to William and Louise Pape for Access and Utility Purposes at Kuwaikahi Gulch, Manowaipae and Kihalani, North Hilo, Hawaii, Tax Map Key: (3) 3-5-04:35.
Item D-9 Rescind Prior Board Actions of June 18, 2004 (D-10), and Subsequent Amendment of February 24, 2006 (D-4), Set Aside to Department of Land and Natural Resources, Division of Forestry and Wildlife for Addition to Mount Kaala Natural Area Reserve System, Mokuleia, Waialua, Oahu, Tax Map Key: (1) 6-7-003:021.
Item D-10 Consent to Lease of Lands under Governor's Executive Order No. 3504 to Alcoholic Rehabilitation Services of Hawaii dba Hina Mauka, Kaneohe, Oahu, TMK: (1) 4-5-023:02 (Portion)
Item D-11 Grant of Perpetual, Non-Exclusive Easement to the City & County of Honolulu for Access and Utility Purposes, and Issuance of a Right-of- Entry Permit for Construction & Management Purposes, Kaneohe, Koolaupoko, Oahu, Tax Map Key: (1) 4-5-018:portion of 52.
Item D-13 Amend Prior Board Action of November 18, 2005, Agenda Item D08, Grant of Term, Non-Exclusive Easement to Barham Trust for Seawall Purposes, Honolulu, Oahu, Tax Map Key: (1) 3-5-003:010 seaward.
Morris Atta of Land Division stated no changes.
No public testimony.
Unanimously approved as submitted. (Gon, Johns)
Item E-2 Withdrawal from Governor's Executive Order No. 2876; Set Aside to the County of Hawaii for Park and Recreational Purposes; Authorize Cancellation of Various Encumbrances; Memorandum of Understanding with the County of Hawaii; Construction and
28 Management Right of Entry to the County of Hawaii, Portions of the Land of Keahuolu and Lanihau-Nui, North Kona, Hawaii, Tax Map Keys: 3rd/7-5-05:07, 72, 73, 74, 79, 82, 83
Mr. Dan Quinn of State Parks introduced Glenn Toguchi, district superintendent for State Parks on Island of Hawaii. Mr. Quinn requested approval to transfer the Old Kona Airport State Recreation Area to the County of Hawaii. He presented some displays from Mr. Toguchi. Mr. Quinn alerted that the State needs to retain the hanger building for their Kona base yard otherwise staff will have none on the Kona coast. Also, staff needs to transfer a half a million dollars to the County of Hawaii to complete the waste water system. Mr. Quinn explained the mayor is in favor, but the parks director is not as enthusiastic. Our staff would be responsible for the parks further north.
Discussion of staff distribution and loss of staff at two parks.
Mr. Toguchi described wastewater maintenance system costs.
Unanimously approved as submitted. (Pacheco, Johns)
Item E-3 Request to Approval to Execute memorandum of Agreement with the County of Kauai, County of Maui, County of Hawaii, and City and County of Honolulu to Provide Lifeguard Services at State Parks Beaches
Mr. Dan Quinn of State Parks spoke on submittal background. He asked for Board approval to enter into those contracts and delegate to the Chairperson’s level the authority to execute future contracts. If everything works right this will be routine and the State will be in charge of those beaches.
Unanimously approved as submitted. (Johns, Gon)
Item F-1 Request for Approval to Amend a DLNR/RCUH Agreement (Contract No. 52850) to Provide $562,991 in FY08 and Extend the Agreement through June 30, 2009 for a Division of Aquatic Resources’ Aquatic Invasive Species Project
Member Tim Johns recused himself.
Dan Polhemus, Administrator for Division of Aquatic Resources (DAR), described background.
Unanimously approved as submitted. (Gon, Edlao)
Item F-2 Request Approval to Hold a Public Hearing on a Proposed New Hawaii Administrative Rule Chapter 13-60.4, Miloli'i Subsistence Fishing Area, Hawaii
29 Dan Polhemus of DAR explained submittal request. He spoke of working with the community over the past two years.
Unanimously approved as submitted. (Pacheco, Gon)
Item J-1 Request for The Board to Consider an After-The-Fact Renewal of Mooring Permit NO. O 6130 Issued to Mr. Ronald Nelson for Berth NO. 496 at Ala Wai Small Boat Harbor
The Board may go into Executive Session pursuant to Section 92- 5(a)(4), Hawaii Revised Statutes, in order to consult with its attorney on questions and issues pertaining to the Board’s powers, duties, privileges, immunities and liabilities.
Chair Thielen explained this is not possible under HAR and recommended withdrawing.
Withdrawn. (Johns, Agor)
Item L-1 Approval for Award of Construction Contract – Job No. F00CF82A Sewer Connection for Waimea State Recreational Pier Waimea, Kauai, Hawaii
Item L-2 Permission to Hire Consultant for Job. No. 48-HW-E, Honokaa Well Development, Hawaii
Unanimously approved as submitted. (Johns, Pacheco)
There being no further business, Chairperson Laura Thielen adjourned the meeting at 2:10 pm. Tapes of the meeting and all written testimony submitted at the meeting are filed in the Chairperson’s Office and are available for review. Certain items on the agenda were taken out of sequence to accommodate applicants or interested parties present.
Respectfully submitted,
/s/ Adaline Cummings, Secretary Board of Land & Resources
Approved for submittal:
/s/ LAURA H. THIELEN, Chairperson Department of Land and Natural Resources
30 MINUTES FOR THE MEETING OF THE BOARD OF LAND AND NATURAL RESOURCES
DATE: FRIDAY, DECEMBER 14,2007 TIME: 9:00A.M. PLACE: KALANIMOKU BUILDING LAND BOARD CONFERENCE ROOM 132 1151 PUNCHBOWL STREET HONOLULU, HI 96813
Chairperson Laura Thielen called the meeting ofthe Board ofLand and Natural Resources to order at 9:05 a.m. The following were in attendance:
MEMBERS
Ms. Laura Thielen Mr. Ron Agor Mr. Tim Johns Ms. Taryn Schuman Mr. Rob Pacheco Dr. Sam Gon Mr. Jerry Edlao
STAFF
Mr. Sam Lemmo, OCCL Ms. Tiger Mills, OCCL Ms. Dawn Hegger, OCCL Mr. Morris Atta, LD Ms. Charlene Unoki, LD Mr. Dan Quinn, SP Ms. Kaleo Paik, HP Mr. Dan Polhemus, DAR Ms. Athline Clark, DAR Mr. Paul Conry, DOFAW Mr. Ed Underwood, DOBOR
OTHERS
Mr. Vince Kanemoto, AG's Office Mr. Terry George, K-3 Mr. Gordon Rezentes, D-25 Mr. Colin Miwa, D-18 Mr. Stan Fujimoto, D-23 Mr. Christopher Harrison, D-9 Mr. Clayton Sugimoto, D-2 Ms. May Au, E-I Mr. Jim Anthony, E-I Ms. Stephanie lona, E-2 Mr. Dan Hempey, E-3 Mr. Donn Carswell, E-3 Mr. Frank Hay, E-3 Mr. Tony Locricchio, E-3 Mr. RichardMatsushida, E-3 Mr. Caine Hookano, E-3 Ms. Connie Clausen, E-3 Ms. Linda Collins, E-3 Ms. Susan Staton, E-3 Mr. Duncan Ka'aihue, E-3 Mr. Ted Myers, E-4 Mr. Keola Lindsey, I-I to 1-7 Mr. Steven Strauss, K-5 Mr. Randy Vitousek, K-5 Ms. Bo Blair, K-5 Ms. Caren Diamond, K-5 Mr. JeffChandler, K-5 Ms. Wendy Wickman, K-5 Ms. Leah Suesen, K-5 Ms. Heidi Guth, OHA, K-5 Mr. Read Spencer, K-2 Mr. Jeff Straund, F-I Ms. Susan Whitel, F-3 Ms. Aulani Wilhelm, F-3 Ms. Marti Townsend, F-3 Ms. Margaret Akaminie, F-3 Ms. Miwa Tamanaha, F-3 Mr. Ross Smith, DOT Aiport
{Note: language for deletion is [bracketed], new/added is underlined}
Item A-I Amend Minutes of October 26, 2007, Item K-l.
Unanimously approved as amended. (Johns, Agor)
Item A-2 Minutes of November 16,2007.
Member Taryn Schuman recused herself.
Withdrawn. Not ready for this meetiug.
Item K-3 Conservation District Use Application OA-3433 for the Kaneohe Rauch & Castle Foundation Administrative Complex Located at Castle Junction, 1199 Auloa Road, Kailua, Oahu, Kaneohe Ranch and Castle Foundation - TMK (1) 4-5-35:003
Member Sam Gon recused himself.
Sam Lemmo, administrator for Office ofConservation & Coastal Lands (OCCL), reported background. The main purpose is to create and consolidate additional administrative offices for the Castle Foundation and Kaneohe Ranch in one location. Staffrecommends the Board approve the application subject to 19 conditions.
Terry George, Vice-President and Executive Director for Harold K. Castle Foundation, stated he is not employed by Kaneohe Ranch. He informed the Board ofthe foundation's history and explained that by coclocating near Kaneohe Ranch's existing building the Castle Foundation would reduce their carbon footprint, would increase efficiency by co rotating with Kaneohe Ranch, and maybe benefiting from some ofKaneohe Ranch's staff time. The site is easily accessible from Kaneohe and Waimanalo. He cited organizations benefiting from Castle Foundation's grants and that there is sufficient staff parking.
Unanimously approved as submitted. (Johns, Schuman)
2 Item D-25 Mutual Cancellation ofGeneral Lease No. S-4612 Issued to Del Monte Fresh Produce (Hawaii) Inc. for Pineapple Cultivation Purposes, Waikele, Oahu, TMKs: (1) 9-4-12:01, 02, 03.
Morris Atta, Acting Administrator for Land Division, informed the Board that Del Monte is shutting down in central Oahu and will proceed with closing ofoperations. He reported staffhas a couple potential applicants interested in the property.
Gordon Rezentes, Del Monte representative, concurs with the conditions ofthe recommendation and stated he is here to answer any questions.
Unanimously approved as submitted. (Schuman, Gon)
Item D-14 Amend Prior Board Action ofJanuary 28, 2005, Item D-8, Grant of a 55-Year Non-Exclusive Easement for Seawall Purposes to Kauilani, LLC, Honolulu, Oahu, TMK: (1) 3-6-02:02 seaward.
Morris Atta representing Land Division reminded the Board ofthis prior Board action from January 28, 2005 and requested to amend it by increasing the square footage.
Unanimously approved as submitted. (Johns, Schuman)
Item D-I0 Acquisition of Government Lands and Set Aside to (1) Department of Transportation for Manifested Cargo and Passenger Operations, and (2) Department of Business, Economic Development and Tourism, Foreign-Trade Zone Division for Foreign Commerce, Portion of Kaakaukukui, Honolulu, Oahu, TMKs: (1) 2-1-15:por. 09, 19, 15,21, 25,26,27,28,29,30,31,32,33,36,37,38,39,42 & 46.
Morris Atta ofLand Division explained that Department ofTransportation (DOT) requested that the purposes stated for the acquisition is to change from "manifested cargo and passenger operations" to "maritime or maritime related purposes" because DOT felt that the use as described in the submittal is too restrictive for the type ofactivities that they do. He believes there is no objection to amend submittal.
The Board and Deputy Attorney General took issue ofthe changing ofthe purpose as listed in the agenda and to possibly re-agenda the item.
Chair Thielen suggested taking this item up later in the meeting and for Mr. Attato contact DOT to find out what they want to do.
Item D-18 Enforcement of Violation ofUnencumbered Public Lands, Unauthorized Landscaping and Removal ofSand and Plants on State Land by David and Maureen Cross, Kailua, Koolaupoko, Oahu; TMK: (1) 4-3-17:33.
3 Written testimony was received from Colin Miwa.
Morris Atta, representing Land Division, conveyed background and owners request to defer this matter because they want to present their defense. Staffhas no objections.
Mr. Colin Miwa, attorney for the homeowners, requested for a deferral because the homeowners live on the mainland.
Chair Thielen asked ifthis Board agrees to a deferral would we have Mr. Miwa's commitment that his clients are not going to do any other action on this area until we speak to them at the next meeting. Mr. Miwa answered in the affirmative.
Deferred. (Johns, Schuman) Deferred to the January 11,2008 Land Board Meeting. Respondents reside out-of-state and requested the opportunity to present their defense in person before the Board in January, The Board agreed to defer the matter.
Item D-23 Grant ofPerpetual, Non-Exclusive Easement to Hawaiian Electric Company, Inc. and Hawaiian Telcom, Inc. for Access and Utility Purposes and Issuance of Construction and Management Right-of Entry, Waianae, Oahu, Tax Map Key: (1) 8-5-028:042 por.
Written testimony was received from Kali Watson.
Member Tim Johns recused himself.
Morris Atta, ofLand Division, spoke ofapplicant's request for an additional location change and that he does not have any additional information.
Stan Fujimoto representing Hawaii Housing Financing Development Corporation (HHFDC) explained this easement is to benefit emergency, transitional and affordable housing project on their property adjacent to the school site. HHFDC was informed recently ofan alternative, more beneficial alignment and suggested an amendment to the approval to state "for alternative alignment acceptable to HECO, HHH, DOE and DLNR."
There was discussion regarding the realignment ofthe TMK.
Chair Thielen asked Mr. Atta to work with staff on this.
Unanimously approved as amended. (Schuman, Edrao) In response to requests from the Hawaii Housing Finance Development Corporation and Hawaiian Electric Company, Inc., staff proposed and the Broad approved changing the consideration amount to "gratis" and incorporating a new alignment location for the easement in the Board action by adding the language"...or at an
4 alternate alignment location to be determined by the Applicant that is acceptable to Hawaiian Electric Company, Inc., Hawaii Coalition of Christian Churches, Department of Education, and the Department of Land and Natural Resources," as may be appropriate throughout the submittal. Otherwise, the Land Board approved staffs recommendations as submitted.
Item 0-5 Approval ofLease ofPrivate Property with Leroy Ridgeway Jr. and Ms. Faviola Ridgeway on Behalf of the Department ofHealth, Clean Air Branch for Air Monitoring Purposes, Keahialaka, Puna, Hawaii, TMK: (3) 1-3-28:portion of38.
Morris Atta, acting administrator for Land Division, described submittal background and that staffs standard lease terms will cover liability.
Unanimously approved as submitted. (Pacheco, Edlao)
Item 0-17 Sale of Lease at Public Auction for Intensive Agriculture Purposes, Waimanalo, Koolaupoko, Oahu, TMK: (I) 4-1-10:40.
Morris Atta, representing Land Division, addressed the Board that this is a routine request and gave background.
Chair Thielen asked is this requesting the Board for the lease for intensive agricultural purposes and not for primary residential purposes. Mr. Atta affirmed that.
Unanimously approved as submitted. (Schuman, Pacheco)
Item 0-9 Amend Prior Board Action ofSeptember 28, 2001, Agenda Item D-17, Grant of Perpetual, Non-Exclusive Easement to R.R. Midkiff Luakaha Family Limited Partnership and Elizabeth Midkiff Myers, Trustee Under that Certain Unrecorded Revocable Trust of Elizabeth Midkiff Myers dated April 24, 1989, as Amended, for Waterline, Reservoir and Fire Pump Station Purposes at Nuuanu, Oahu, TMK: (I) 1-9-07:por. 02.
Morris Atta ofLand Division reminded the Board ofprior Board action on September 28, 2001 where easement documents were approved, but never signed. Since then there were changes. Staffrecommends correcting that oversight and including the changes.
Christopher Harrison ofCades Schutte clarified there is a mistake in the submittal stating that the condominium project is not being created. The easement documents were prepared, but when staffreviewed itthey noticed it only identified one ofthe sub-division lots which should be six lots. This submittal is to correct that. Since then, a homeowners association was formed and they requested the easement be granted to the homeowners association instead ofthe homeowners.
5 Unanimously approved as submitted. (Johns, Pacheco)
Item D-2 Issuance ofRight-of-Entry Permit to U.S. Army Corps of Engineers on State Unencumbered and Encumbered Lands, Islands ofOahu, Maui, Kauai; TMK: (1) 3-9-11:7; (1) 4-1-14:1, 9, 10; (1) 5-2-2:1; (1) 5 6-1:2; (2) 2-1-1:3; (2) 5-8-15:11, (2) 6-1-1:2; (4) 1-5-1:1; (4) 3-9-1:2; (4) 4-2-1:1,2; (4) 4-4-1:1, 2: (4) 4-6-1:1; (4) 5-4-1:1.
Morris Atta representing Land Division addressed the Board on the submittal background.
Clayton Sugimoto, contractor for Army Corp ofEngineers, stated he is here to answer any questions.
Unanimously approved as submitted. (Schuman, Johns)
Item E-l Approval to Issue Three (3) Revocable Permits at Ahupua'a '0 Kahana State Park, Ko'olauloa, Oahu for Residential and Agricultural Purposes TMK: (1) 5-2-02: por.1
Dan Quinn, administrator for State Parks, briefed the Board. I) Adelia Johnson permit is to continue the land tenure and staffis working to reconfigure the survey which was done erroneously, 2) Lena Soliven is along the stream side and is eligible for one ofthe new leases, and 3) For an existing agriculture RP (revocable permit) along the side ofthe valley near the Huilua fishpond for Erlinda Villanueva.
May Au supports this submittal.
Jim Anthony, resident ofKahana, addressed the Board on the Lena Soliven RP and presented a map and history ofcircumstances. In 6 months Ms. Soliven will be moved to one ofthe available lots. The Department decided that she will be allowed to continue living in Kahana. Ms. Soliven came in as a squatter when her aunt was moved out. The Department condoned this and now Ms. Soliven is morphing into a general lessee. He recommended the Board ask staffto look at Ms. Soliven's case and allow her to build at the site she is at. That way staffdoesn't have to move her to some place else.
Mr. Quinn spoke on the issue ofallowing structures to remain down along the stream or the highway near the ocean. He thinks staffwas not in favor ofthe two that were permitted to stay on the beach. Staffmaintained the same position that they would like to have that area ofthe park open for general public recreation. There is no current master plan for the park and the general philosophy is that general public lands should be for general public use. The bulk ofall the houses are clustered up the valley and the intention was to relocate the residents out ofthe area most likely for public recreation. He suggested addressing this at a later meeting ifthe Board wishes to entertain it.
6 Chair Thielen inquired is Ms. Soliven willing to move from the current location she is in to the one being proposed.
Mr. Quinn affirmed. Staffwould have to come back later for a lease.
Unanimously approved as submitted. (Johns, Schuman) With the understanding that when staff comes back with the Lena Soliven issue you will discuss different potentials of staying or moving, but the RP will continue on in the existing place for a year because she will be allowed to stay during the course of construction. The lease to be completed in 6 months.
Item E-2 Request to Enter into a Revocable Permit for the Operation of the Kokee Concession, Kokee State Park, Kauai
Dan Quinn ofState Parks communicated request background. He reminded the Board staffextended the lease over the last calendar year. Staff is in the process ofwrapping up the master plan and EIS which will help define the parameters for what the concessionaire will be able to do in the future. Once that is done, staffwill go out to bid fdr the operation. Staffis reviewing the final draft ofthe EIS today. As soon as that is completed, the consultant reviews it with extensive community input. With any changes, staffwill move to publish the final EIS and hope to have it done the first half ofthe calendar year. That will set up the framework for Kokee Lodge.
Stephanie Iona representing the Kokee Concession appreciated the extension for the sake ofthe operation and employees.
Unanimously approved as submitted. (Agor, Gon)
Item E-3 Request Continuance of96 Revocable Permits Issue for Recreation Residence Use in Koke'e and Waimea Canyon State Parks, Waimea, Kaua'i
Written testimony was received from Representative Roland Sagum, Senator Gary Hooser and Canen Ho'okano.
Dan Quinn representing State Parks reminded the Board granted RPs (revocable permits) last year and this is a request to do the same with a couple ofchanges. Staff is asking to approve this as a 6 month period as opposed to 1 year. Staffdid a special provision to allow for a 90 days notice oftermination on the last one. This time there will be a standard 30 day written provision. He reported that there was alleged criminal activity which occurred there and asked the Board to approve a 5 day notice oftermination of cancellation in the event ofcriminal activity in the cabins. He explained the other conditions.
7 Member Johns recommended waiting for a conviction in order to tie this to criminal activity.
Mr. Quinn agreed and described the three alleged incidences of criminal activity. Two were not the permittee and one was. Staffwants to make clear illegal activities will not be tolerated and would result in termination ofthe permit.
Chair Thielen suggested this is irrelevant to the 6 month extension, but to make sure for the new lease terms, to look at the federal laws; property is forfeited in the event ofillegal drug use or sales. Staffcould look at what language and be able to sustain review for that type ofcondition. But, ifthere's a 30 day provision for these 6 month extensions it maybe less essential. Ifin 30 days staff is able to terminate it in writing under this RP for a 6 month extension it may be less necessary, but in future leases after an auction where it's a long term lease then it's going to be more important to look at the language to stop this illegal activity.
Discussion to delete condition #2 and keep I, 3, 4, 5, 6.
Mr. Quinn explained there were several legal challenges which caused a delay. Staff conferred with Office ofthe Attorney General to proceed with the next step. There was considerable public input for the method ofdisposition for the Board's reference. The Board's approval was to go out with a standard auction. The Division's preference is to move with an auction with a preference for local residents which the Board considered before when looking at a drawing type disposition ofthe properties. Staffwould come back to the Board with any changes and go back to Kauai for any hearing.
Mr. Dan Hempey, attorney representing some ofthe leaseholders, informed the Board that they lost the case in the Kauai circuit court and is now on appeal asking for compensation ofthe cabins. He asked to modify the submittal to 90 days and cited examples ofcabin ownership and history. Mr. Hempey expressed to the Board his clients' desire to meet with the Board prior to any action. He requested not to accept going to auction after 6 months. A 30 day notice would be extremely difficult because of moving problems.
Member Agor asked will this be brought to Kauai for consideration in the next 6 months.
Mr. Quinn answered in the affirmative.
Member Johns inquired why 30 days versus 90 days.
Mr. Quinn replied we're coming to the end ofthe period.
Frank Hay, leaseholder since 1975, testified that he bought his cabin in the free market. A free market works and an auction does not, referring to the 1985 auction and described it. More than 50 Hawaii families lost their cabins. He prefers a term of I year rather than 6 months. Mr. Hay suggested the Board review that master plan to discuss the historic
8 fabric, cultural landscape, and environmental impacts prior to making any final decision. He also suggested the Board reconsider the terms to keep the permit as is, with a I year term at a month to month basis, and a 90 day notice so as not to repeat the 1985 mistake.
Member Agor inquired this action allows the leaseholders to stay on for 6 months and prior to that staffhas committed to bringing the issue back to KauaL Say in 4 months? Then there is no need to extend this for another year.
Member Johns asked will the auction be brought back to the Board to consider.
Mr. Quinn explained the auction was approved as a standard auction. Staffbelieves ifthe Board is going the route ofa local resident preference staffneeds to get Board approval.
Member Johns added or bring back a re-examination ofthe auction within the next 4 months.
Mr. Quinn stated that it might take longer to implement.
There was discussion of auction timing.
Chair Thielen informed the Board ofdiscussions with the Attorney General's (AG) Office regarding concerns that ifthis was put to auction there would be international and national interests in the cabins. It was discussed whether staffcould have conditions on whom is eligible to bid under the auction, limiting it to Hawaii State tax payers because they support our State Parks. It was suggested to give preference to Kauai residents for a number ofcabins or for a time period. Also, place restrictions on vacation rentals because ofconcerns. Staff is exploring those concerns with the AG's Office and will come back before the Board on the terms ofwho would be eligible. The auction is one reason for 6 months as opposed to I year. It would be better to have the auction after the cabins are vacated. Ifthe Board approves the amended terms ofwho would be eligible for an auction it would take place after the 6 month period is completed.
Member Johns inquired four months will come, the Board makes a decision, and maybe in 2 months get an auction together, people will leave the cabins, and ifthose people are successful at the auction they will move back in. Is that the correct process?
Mr. Quinn replied affirmatively.
Mr. Hay suggested making the revocable permits for one year to show support to the Kauai community. He alerted to the problems ofvacated and un-maintained cabins. He cited Malaekahana and Koke'e examples. Mr. Hay recommended reconsidering that decision.
Member Johns agreed with Mr. Hay on the 6 months vs. I year. He clarified there is a difference compared to other lands that DLNR manages. It's very hard to properly manage residential or quasi-residential use in a State Park because its very time
9 consuming and it takes a lot ofresources. It's challenging for the Department to allow residential use within State Parks although historically it may have been done. There is a difference between the Board giving a lease with an RP to someone farming agricultural land where he can exclude the public versus dropping residential or quasi-residential use in the middle ofa public park that everybody uses.
Mr. Hay agreed then added Koke'e is a historic district and he believes it deserves extra consideration.
Chair Thielen agreed. She pointed out one ofthe things this Board struggles with is they represent all the residents ofthe State ofHawaii. There is interest from other people to have an opportunity to enjoy that resource. The Board has to consider that.
Don Carswell, a Koke'e leaseholder, noted that the cabins generate almost $300,000 which maintains all 7 State Parks on the west side (ofKauai). He hopes for an increase in the rent to benefit the State. Mr. Carswell stated vacating the cabins is a lot ofwork and there are problems with enforcement. Ifthere was the option to vacate today and auction tomorrow that might work. Based on the past auction, Yz ofthe occupants might get their cabin back, but there is a better way.
Chair Thielen recommended Mr. Carswell bring his plan before the State Parks Division in the next few months.
Tony Locricchio, a leaseholder and attorney, reported currently there is no litigation. The case in Kauai was dismissed without prejudice meaning the leaseholders could bring it back again. He cited the 6 month deadline set by the Department ignores the new development since the Chair came on board. In regards to the preference ofKauai or Hawaii residents, it is unconstitutional to restrict this (auction) to the island ofKauai. Based on the Federal constitution, the Board cannot restrict a State facility to State residents. Mr. Locricchio added the Legislature can't review the revocable permit situation in 6 months. He noted the Department can't solve the water problem and recommends this Board review this which will require more than 6 months. Staffs position is an auction is a valid and correct way to go. The problem is at the auction within the 6 months the State has to make disclosure to people who will bid.
Richard Matsushida, director ofoutdoor ministries ofthe United Methodist Church, described their involvement with the Koke'e camp. He concerne Member Agor inquired ifthis property falls under a non-profit. Mr. Quinn believes it does. There are 5 non-profits that the Board approved, under their authority, to enter into direct negotiations and this is one ofthem. 10 Chair Thielen summarized the Board is given authority to do direct negotiations with non-profit organizations. This revocable permit would extend the lease to a 6 month period during which the Division can do the direct negotiations. Mr. Matsushida explained he was confused by the letter and thanked the Board. Canen Ho'okano, a leaseholder from Kauai, related his family background. He testified that he has been to all these meetings for the past 6 years and he understands a half million dollars was spent on the master plan that everyone is opposed to. Mr. Ho'okano warned some families and multi-millionaires want 10 cabins for themselves. He explained that the Kauai community has expressed what they've want for the past 6 years, but no one is hearing them. He provided a DVD ofthe Governor's advisory committee meeting which Peter Young attended. He expressed the lost of cultural, historical, kama'aina families and environmental issues. Mr. Ho'okano fears that none of the. Kauai residents will have a chance because ofall these multi-millionaires coming in. He asked the Board to reconsider on the 6 month revocable permit. Chair Thielen reported the Board will be coming to Kauai to make that decision and she suggested folks bring their plans then. Connie Clausen a leaseholder ofKauai asked the Board to extend the six months to 1 year with a 90 day notice to support Kauai. She is glad the Board is coming back to Kauai and explained the water problem. Linda Collins a leaseholder and member ofHistoric Hawaii Foundation hoped there is a commitment to the preservation ofthe historical landscape at Koke'e. She believes the vacate provision will cause the cabins to deteriorate fast and she reiterated the problem of moving out ofthe cabins. Ms. Collins stated she doesn't understand why the State would want to take ownership ofthose cabins because ofthe liability and that they are hard to maintain. She reiterated 6 months is not enough time. Member Agor explained staffwill be bringing this to Kauai in the next 4 months. The Board will make a decision on how to dispose ofthe cabins and develop a process to dispose ofthe cabins. At that time the process maybe extended. Susan Staton a leaseholder reiterated the water issues and the moving problem. She described the problem ofneglect. Duncan Ka'aihue representing Mariah Kahanu Parks Trust reported he represents a dozen Koke'e families. He reiterated six months is too hard. A year is satisfactory especially when dismantling a cabin. Member Agor moved to accept staffs' recommendation with a couple amendments. Item #1 change "subject to 30 days" to "subject to 90 days written notice." Eliminate item #2. Member Johns second it. II Member Agor noted the purpose ofthis extension is to come to a resolution on how to disposy ofthe cabin. Staffdirected this will take place before the six months. Once the decision is made the process ofdisposal ofthe cabins will be discussed. He described the problem ofthe leaseholder dismantling the cabin, going to bid, and then having to come back with the cabin. He doesn't agree with removal ofthe cabins. Discussion on logistics oftiming. Member Agor withdrew motion and declared amend Item #1 to "month-to-month basis not to exceed 1 year subject to a 90 day written notice." Omit Item #2. Member Johns second. Mr. Quinn made the Board aware that ifstaffomits item #2 and there is a 90 day provision and ifthe criminal activity is final then there will still be a 90 day restriction on cancellation ofthose RPs. Chair Thielen explained there are terms for the revocable permits. For Item #2 ~ including the standard terms in revocable permits which prohibit criminal activity. Mr. Quinn asked about the 5 day notice portion. Discussion on question ofdue process and whether AG approved language. Mr. Quinn stated he would like to have the ability for an earlier cancellation rather than 90 days. The standard 30 day, ifwe could reference that in Item #2 as oppose to keeping it to 90 days or omit #2. Member Johns suggested 30 days for a violation ofany permit conditions as oppose to 90 days at the discretion ofstaff. Mr. Quinn agreed that is a reasonable way to do it. Chair Thielen recommended substituting a new item #2 to say "the standard revocable permit conditions would be included and that there would be a termination on 30 days written notice for a violation ofthe permit conditions." Member Johns added subject to the AG's review on the appropriate language. Discussion on violation ofconditions. The Board: Amendment to stafPs recommendation: Amend #1 to say "a month-to-month basis not to exceed 1 year subject to a 90 day written notice." Substitute new #2 "the standard revocable permit 12 conditions would be included and that there would be a termination on 30 days written notice for a violation ofthe permit conditions." Unanimously approved as amended. (Agor, Johns) 11:09 am Recess was called. 11:17 am Reconvened. Item E-4 Annual Renewal ofRevocable Permits (RPs) on the Island ofKauai and Oahu Dan Quinn representing State Parks reported staffhas no changes. Ted Myers stated he has no testimony. Unanimously approved as submitted. (Pacheco, Gon) Item I-I Request for Approval to Enter into a Reburial Agreement with FRC Waikiki, LLC for the Human Skeletal Remains Reinterred on their Property at Waikiki Ahupua'a, Kona District, Island ofO'ahu at [TMK (1) 2-6-13: 1,3,4,7,8,9,11,12) Item 1-2 Request for Approval to Enter into a Reburial Agreement with WBC CPR, LLC for the Human Skeletal Remains Reinterred on their Property at Waikiki Ahupua'a, Kona District, Island of O'ahu at [TMK (1) 2-6-002: 1,2,3) Item 1-3 Request for Approval to Enter into a Reburial Agreement with BBC Corporation for the Human Skeletal Remains Reinterred on their Property at Wai'alae Ahupua'a, Kona District, Island of O'ahu at [TMK (1)3-5-004: 015) Item 1-4 Request for Approval to Enter into an In Situ Burial Agreement with Falko Partners, LLC for the Human Skeletal Remains Found on their Property at Waipake Ahupua'a, Ko'olau District, Island ofKauai [TMK (4) 5-1-03:06) Item 1-5 Request for Approval to Enter into a Reburial Agreement with Jeffrey Borges, Martine Borges and Troy and Jennifer Lindell for the Human Skeletal Remains Reinterred on their Property at Waipouli Ahupua'a, Kawaihau District, Island of Kauai at [TMK (4) 4-3 009:049) Item 1-6 Reqnest for Approval to Enter into a Reburial Agreement with PMK Development, LLC for the Human Skeletal Remains Reinterred on 13 their Property at Nu'uanu Ahupua'a, Kona District, Island of O'ahu at [TMK (1) 2-1-009: 11,13,18 and 2-1-010: 001,004) Item 1-7 Request for Approval to Enter into a Reburial Agreement with John and Deborah Mullins for the Human Skeletal Remains Reinterred on their Property at Malaekahana Ahupua'a, Ko'olauloa District, Island ofO'ahu at [TMK (1) 5-6-001:018] Kaleo Paik representing Historic Preservation Division (HP) thanked the Board for giving HP the ability to record these submittals with the Bureau ofConveyances. She presented all seven burial agreements as one and explained the process. She described each item in detail. The Allure and PMK projects both took iwi kupuna who weren't part oftheir projects and were amicable at reducing HP's inventory. Keola Lindsey of Office ofHawaiian Affairs, Native Rights and Culture Division commended HP's stafffor their proactive steps in providing perpetual protection for these iwi kupuna. He noted these past few months has seen the most in situ and burial agreements come before this Board in the entire history ofthe HP Division which is a testament to the HP staffs hard work. He expressed his thanks. Member Johns thanked Mr. Lindsey and his staffin helping HP's staff. Member Gon expressed he was pleased and made a motion. Member Johns second. Chair Thielen requested Ms. Paik to convey the Board's appreciation to the two property owners who agreed to accept iwi kupuna. Unanimously approved as submitted. (Gon, Johns) Item K-5 Request for a Deviation from Conditions Previously Approved by the Board of Land and Natural Resources Prohibiting Rental and/or Commercial Use on 14 Conservation District Use Permits for Single Family Residences at Haena, Island of Kauai, Counsel Randy Vitousek - TMK: (4) 5-9-002:018 Ann C. Harthorn/Edwin Cryer; (4) 5-9-002:021 Gary Bart; (4) 5-9-002:022 Apolonia & Gary D. Stice; (4) 5-9-002:035 Marcia-Toro/Carmen & Charo Rasten; (4) 5-9-002:039 Caroline Simpson; (4) 5-9-002:041 E. Brian Smith; (4) 5-9-002:043 Barbara & Stephen Baker; (4) 5-9-002:044 Udo Helferich; (4) 5-9 002:050 James S. Greenan; (4) 5-9-005:051 Diane & Willi Faye/Lindsey C. FayelDiane D. Faye; (4) 5-9-002:061 Elizabeth Taylor TiernanlWilliam Van Dyk; (4) 5-9-003:046 Pieter S. Myers; (4) 5-9 005:021 Caprise & Mark Moran; and (4) 5-9-002:052 Nan GuslanderlWhit & Hillary Preston The Board may go into executivesession pursuant to section 925(a)(4), 14 Hawaii Revised Statutes, in order to consult with its attorney on questions and issues pertaining to "the board's powers, duties, privileges, immunities and liabilities" regarding the request for deviation from the prohibition against rental and/or commercial use of the subject properties. Written testimony received from Roy Vitousek for Haena Hui Hou and Barbara Robeson ofHanalei-to-Haena Community Association. OCCL written responses distributed by Sam Lemmo. Sam Lemmo, administrator for Office ofConservation & Coastal Lands, infonned that he received a letter from the land owners' counsel and that the Board should have a copy. Mr. Vitousek's December 12, 2007 letter discusses the staffreport (submittal). Mr. Lemmo provided a response from staffs perspective on each one ofMr. Vitousek's concerns which he just passed out. He felt it needed additional discussion. This is a request for a deviation from conditions ofpreviously approved conservation district use application. This is a request for a deviation from the condition that prohibits the use of single family residences for rental or other commercial purposes. That is what the request for a deviation is before us today. The deviation request was filed with OCCL on December 10, 2007 representing 14 land owners. However, there is a longer history behind this issue. Staffhas provided the summary ofthe chronology which began in March ofthis year when we sent notices to homeowners in Haena whom we felt were using their residences for unauthorized commercial purposes. So now it's evolved into what is before you today which is a request for a deviation that they can't do rentals for commercial or what have you. The report indicates the CDUA has been issued for each ofthe parcels in question and the one that is underlined is the specific CDUP that prohibits the use ofthe residence for commercial or rental purposes. There's a background on geology, geography and Hawaiian history and culture. Member Johns: So Sam the condition is in the CDUP? There are no additional agreements that were signed by any ofthe landowners. Mr. Lemmo: Yes. Not that I know of. Member Johns: So strictly from the CDUP is what we are talking of. Ok. Mr. Lemmo: And then basically staffprovides a discussion ofcounsel's request for a deviation and in the rules is a section in the rules that which is referred to as Section 13 5-42(a)(c) which says that you can request a deviation from a condition ofa pennit, but you have to discuss the deviation in light of4 criteria. And the 4 criteria are I. the deviation is necessary because ofthe lack ofpractical alternatives, 2. the deviation shall not result in any substantial adverse impacts to natural resources, 3. the deviation is not inconsistent with the public health, safety, or welfare, and 4. does not conflict with the objectives ofthe subzone. 15 Staffprovided you with an explanation ofwhy we feel a deviation should not be granted. It hasn't met the criteria listed in the rules for granting deviations. And finally, there was a recommendation made by staffto deny the request for a deviation. On page 18, for 2 main reasons, the main reasons are that many ofthe landowners; he shouldn't say for all ofthem, it's clear that they are using the residences for commercial rental purposes that does violate the condition ofthe permit. We feel that the approval ofthe deviation would circumvent the statute in the rule. One ofthe issues that it mentioned in the deviation section is "failed to secure a Board approval for a deviation before such a deviation occurs constitutes cause for permit revocation." So really we should be sitting here talking about a revocation perhaps and not a deviation. But we felt we wanted to be reasonable so we asked the owners to simply cease and desist from doing the rentals. We gave them a date and they were given this information 6 months ago. So we wanted to resolve the issue amicably and unfortunately we haven't been able to do that. The second reason why we don't think the deviation should be approved is because we believe that this rises to the level ofa new use and application. No application has been filed. There is no EA. There has been no public hearing held. We have nothing before us that suggest this is an appropriate use of conservation lands. So that's the staffreport. As I said, I wrote some notes on Mr. Vitousek's response to staffreport. Would you like a minute or two or would you like to talk about anything I just... Chair Thielen: I think you should go ahead and go through the whole thing and then if people have questions for staffwe'll do that then we'll have public testimony. Mr. Lemmo: I. The first main point by counsel takes issue to the fact that the first 10 pages ofstaffreport is devoted to the issue ofgeology, geography and culture. And how we do not show how these matters are relevant to the issue pending before you. And my response was, you can see it in my letter, that it is customary for staffto provide background information on these matters. The purpose ofthis introduction is to highlight some qualities, natural resource, environmental qualities that are unique to the Haena area. This is consistent with our past practice. Mr. Vitousek's request for a deviation has no discussion ofthe environment, no discussion ofthe cultural issues, there is no context for it, and there is no discussion, analysis or mitigation ofthe long term consequences resulting from vacation rentals. We did talk extensively about cultural issues, that's true, but we wanted to highlight the fact that these issues should not go unnoticed. The burden is on the petitioners to show us these things. Not us. We're here to judge whether or not they met the spirit ofthe law. 2. The "no rental" condition does not protect natural resources. I do not agree with that. The resources at Haena are currently being impacted by tourism. Haena State Park has an estimated 750,000 visitors last year and is the third most visited park in Hawaii. These conservation lands lay in-between the park and urbanized areas of Haena, Wainiha and beyond which provides a nice buffer that could help alleviate some ofthe visitation pressures we are currently experiencing in the park. The conservation 16 district ofHaena was never intended for short term vacation rentals. The owners received or previous owners received permits to use these parcels for single family residential use. I've always thought that getting approval to use conservation land is a privilege not a right. Now they've gone and turned these into a quasi-resort use, short term vacation rentals. We are simply trying to enforce the spirit ofthe rule. The issue that does not have an impact on natural resources, as I said I don't agree with it. This change has potential to place tremendous strains on the impacts on the natural and cultural resources ofthe area including Haena State Park - the marine resources, reefs, and the cultural resources ofthe areas. Tourists behave differently in terms ofhow they perceive and interact with our natural environment. The impact oftourism on natural and cultural resources results not only from the development oftourism infrastructure, but also from the tourists themselves possibly overusing or misusing the resource. Hanauma Bay as an example. Chair Thielen: Sam, I'm going to ask you to summarize because we have three people here from Kauai who have a plane to catch. I want to make sure we get their testimony in. Mr. Lemmo: Ok. 3. Basically, Mr. Vitousek raises the 1998 discussion draft. I don't see how that benefits him since the discussion draft says that we should not approve transient vacation rentals. 4. He says that a further EA and CDUP are not required. They kind ofdiscussed that issue why they are. S. He states that this is not a commercial purpose. I don't understand how he can say that when it's clearly a commercial use; 7. He's requesting some other courses ofaction to resolve the matter. a. He's asking to track the county rule and align our process with what the county processes is going to be. That is difficult because we regulate these issues statewide. We shouldn't align with the county because different counties might do it differently. Plus, the county rule, it's unsure whether they are even going to allow any kind of short term vacation rentals in this area. b. Applying for a subzone. You can apply for a subzone, but first you got to resolve the violations. c. We would like to see the issue continued for a year. I'm not sure how this can be justified because they are violating the law everyday that they take money for the vacation rentals. Member Johns: Sam, the definition ofcommercial use and the prohibition against all rentals, so that means somebody couldn't rent it for year to year? Year to year lease? Mr. Lemmo: Technically, that would...constitutes... Member Johns: Enforced stafftoo? Mr. Lemmo: Yes. 17 Member Johns: So any rental then would be considered a violation ofthat provision. It's not just... Chair Thielen: I think we have to go back to the AG's office to determine whether residential means a commercial prohibition because even ifyou own your residence, you don't own it the bank owns it, you're paying mortgage on it. So there is a difference between primary residence and short term rentals. Member Johns: And that's where I was going. Is it one year, six months, one month, one week, one day, one hour - where does it shift to commercial. I'm just asking how do we determine that? Mr. Lemmo: I defer to the Chairperson. I thought ifthat you were exchanging money, that you're taking money from someone using your home that would constitute - that would meet the definition ofcommercial use under our rules. Chair Thielen: Again, I think we have to go back to the AG's office on that. I know there is case law on because local jurisdictions are dealing with this issue, when does something count residential and when does something count as short term. Month-to month has been the delineation line for ourjurisdiction as well as others. Member Johns: Anything greater than month-to-month is considered residential and not necessarily commercial. Mr. Lemmo: I've heard that's a good dividing line. Member Agor: Kauai County defines it as that. Chair Thielen: There are a number ofpeople here to testify. There are 3 people who signed up who noted they are from Kauai and have a flight back to Kauai is there anybody else? JeffChandler, Leah Suesen and Caren Diamond - is there anyone else here who has a flight back? Bo Blair. Any questions for staff? Member Johns: We need to go into executive session, but is there an opportunity for a contested case on this particular Board action? Vince Kanemoto: Not for denial ofa deviation. We can discuss that ifyou want. Member Johns: That's what's in front ofus today, is a denial ofa deviation. Chair Thielen: Ifthere' a legal question about this then perhaps we need to go into executive session and ifit's something that may address some ofthe comments that may be coming before us we really want to time it before the testimony rather than after. 18 11 :45 am Adjourned for Executive Session pursuant to 92-5A4 to discuss its legal rights, duties, privileges, and obligations relating to this matter with our deputy attorney. (Johns, Pacheco) 12:20 pm Reconvened. Chair Thielen: Mr. Strauss would you like to make your presentation on behalfofyour client? Steven Strauss: Certainly, I'm wondering ifat the outset ifthe Board has made a determination with regard to whether it thinks it's facing a contested case potential now or not that may have an impact on how I address the Board. Chair Thielen: Our understanding there is no right to a contested case hearing for the denial of a deviation. Mr. Strauss: Ok. Thank you. Good afternoon. My name is Steven Strauss, I represent Mr. and Mrs. Glenn Fry. They are the owners ofTMK: 45902:36 and this parcel is adjacent to certain parcels that are owned by some ofthe petitioners here. On behalfof my clients I support the department's recommendation that the petition be deferred until the completion ofthe pending enforcement action. I'm not sure ifthat's still the position ofthe department, but I read that in one ofthe statements that was available to me on line. Ifnot deferred than it should be denied. First its' noted by the department rule 13 5-6(c), precludes consideration ofrequested proceeding or change in permits. In this case we argued it includes a deviation while violations are pending. Although the petitioners challenged their respective permit conditions there is little doubt they are in violation. Second I believe the petition is defective in that it inadequately addresses the existence or lack thereofpractical alternatives. The first alternative that was lightly touched on by Mr. Vitousek's admission is compliance that is an alternative available to each ofthese land owners. Mr. Vitousek points out that loss ofrental income would likely result, but true, but that is not a deprivation ofthe permitted use ofthe parcels as single family residences. And I further note that Mr. McCalla, the successor to Mr. Greening and this is in regard to TMK: 45921:51 leased in an affidavit submitted to the Board. It has adopted compliance as a practical alternative. So at least one ofthese land owners is saying "yeah, I can comply, it's an alternative to me." The second alternative has already been discussed which is a district boundary amendment or a subzone request. And a third alternate, it seems to me, is the filing ofa declaratory relief action in circuit court. The petition is, after all, is really more a challenge to the validity ofthe permit condition than it is a request to deviate from the condition. It's really saying, basically saying it's invalid and as a result you should then deviate from it. Circuit court provides under release statutes 32-1 an opportunity for these landowners to go directly to court in my view. So there is another alternative. To the extent the Board is inclined to grant the petition today I'd be compelled to seek the contested case on behalfofmy clients to the extent that Mr. Vitousek seeks a contested 19 case with regard to any denial ofthe petition. Although, I understand that is not available, but you may still seek that. I would request on behalfofmy clients to participate as a party in such a contested case. Thank you. Member Pacheco: Just to clarify, your client's property is adjacent to the conservation district? Mr. Strauss: It is in the conservation district. In fact, it's in between the two ofthe parcels we're talking about. So were directly affected by the Board decision. Chair Thielen: Any other questions for Mr. Strauss. Thank you. Mr. Vitousek would you like to come up to make your presentation? Mr. Vitousek: The basic reason for the petition to deviate from conditions was really to allow the Board and to request the Board re-evaluate this particular condition. It's our view that the condition as it is written is vague, ambiguous and over broad and really un enforceable. The condition as written says there can be no rental use ofthese properties and no commercial use. And as we've discussed what was submitted to the Board, the regulations don't define rental anywhere, they don't define vacation rental anywhere, they only define commercial. And commercial is defined in a way that really doesn't, if I read the definition, really doesn't seem to include renting a single family residence. I think just the discussion earlier in the Board today shows that there really isn't clarity in terms ofwhat this condition means and what it prohibits. The Department has not attempted to enforce the condition against long term rentals in Haena even though they're well aware that there are many long term rentals including people who willtestify later today. And so what the Department has done has interpreted this section to where it says no rental use to mean no vacation rental use. That's they're own interpretation ofthe rule. And so what we are seeing is that, and they've gone and served these cease and desist orders on those owners who have a condition in their permit prohibiting rental use who allegedly used it for vacation rental use. Not just all rental use. And they didn't serve people who have a no rental condition could do long term rentals. And they didn't serve people who have no condition who do vacation rentals. In other words, they're admitting that there is nothing in the rules, there's no rule or statute that prohibits rental use or vacation rental use. There's just a condition that's been put in the permits. Member Pacheco: Now you just said that they didn't serve people who didn't have the condition in their permit that are doing... Mr. Vitousek: Vacation rental, yeah. Member Pacheco: Are you saying there are people who have... Mr. Vitousek: I'm saying there are people in that community who do not have... 20 Member Pacheco: In the conservation district. Mr. Vitousek: That's correct. Yes. Who are doing vacation rentals, but who don't have a condition in their permit and so they weren't served a cease and desist order because there's no law that prohibits it. It's just a condition in the permit. In other words, what they're saying is you violated a condition in the permit. Not you violated a statute or rule because there is no statute or rule that prohibits this. And so what we are saying ifyou are going to do it based on a condition the condition has to be clear, definite, specific and consistently enforced. At the time that we filed this petition they've been served cease and desist orders there have been no determination by the Department that they are in violation ever. They haven't gone through any enforcement proceedings and made a finding. And so what we are trying to do is rather than address solutions thatwould affect all conservation district use permits that have this condition we're trying to be specific to this situation and specific to Haena. And trying to ask the Board to change the condition in a manner that makes it specific, makes it understandable, makes it enforceable and applies only to Haena which the Department has recognized is different from other conservation districts. And so rather than go into litigation and declaratory action or contested case or enforcement action what we are trying to do is to create a vehicle where the Board can design a condition that is reasonable, its clear, that its enforceable and do it without having to change your rules. In other words, without having to go through the process ofrule making because, again, it's only the condition; it's only the violation ofthe condition that's motivating this whole thing. So that's the basis for our request and what we proposed is a rule that is consistent with what the counties are doing to regulate vacation rental use in residential districts on Maui and Oahu and KauaL We're trying to be consistent with that. And that's because Haena is more like those rural coastal residential areas than it is like a conservation area where there is small isolated parcels in the middle ofthe forest reserve or on an isolated coastline. And so we're asking that they be treated consistently and that there be some regularity and definition and keep it limited to the specific context ofHaena. That's our request. On the issue ofcontested case, when I read the rules it really looks to me a proceeding where my clients rights are being determined by the Board, you know. The way I read your contested case hearing rules it seems to me like this would be a matter where there would be a right to a contested case hearing and we have requested a contested case hearing. But because we're trying to make sure that we exhaust all our administrative remedies before we go into any litigation. And while I do that, please don't take it like I want to go into litigation because what we are trying to do or what we've been trying to do is create a dialogue where a condition... and we may not get everything we want. We may get something that just distinguishes between short term rental and long term rental and still prohibit short term rental. That's a possibility. At least then the owners could decide to continue the fight or go to enforcement action or make their own decision. And so we were trying to get in a dialogue that would enable us to narrow the rule so that those people who wanted to continue to vacation rent and fight it could fight it. And the other people could know what their rights are and whether to long term rent and go 21 forward. Maybe we're successful, maybe we weren't that's the basis ofour request. We submitted a draft revision to the rule and thank you for your time. Member Johns: One question about the DAC action, I think that approach makes sense if there's a contested case or not. Mr. Vitousek: Well, it might, but the problem with it is ...one problem from our perspective is what we are trying to do is keep it limited to the specific context ofthese clients, again, Haena. Ifwe got into DAC action it might have broader implications so we got to be challenging the validity ofthe enforceability ofthat rule. We're not trying to create a statewide issue, we're trying to say Haena is different and just deal with this specific issue. That is the problem I see with it. I guess it's feasible. It's not a good alternative to change a condition. It might be a good alternative to address the enforceability ofthe rule, the validity ofthe rule, but it doesn't really address the condition. Chair Thielen: Mr. Vitousek, bringing up that point, you recognize that you say Haena is different and you're trying not to create statewide implications. One ofthe things that was raised the last time you cam~ before us is your clients do have the option also, ifthey wish to pursue it, to go through the Land Use Commission to take this area out ofthe conservation district because ifit is so different and they state more ofa urban or suburban area. Mr. Vitousek: I understand. The problem is this is only 14 out ofthe 99 property owners in the conservation district ofHaena and the application for a district boundary amendment based on a small number ofowners may be very problematic. Really, the impedance for a change in district should come from the Office of State Planning or from Department ofLand and Natural Resources. It should be part ofa general review ofthe districts. We would be happy to apply for a change in subzone to a special subzone. In fact, we volunteered to do that as part ofthis process and to make rules on the subzone to be more specific to the conditions at Haena. I think that is a viable alternative. Chair Thielen: Thank you. We do have four other people signed up to testifY. I will let you four select your order. Bo Blair: Submitted a letter on behalfofthe Hanalei to Haena Community Association (HHCA). She introduced herself and read testimony. Because we received this matter on December 8th there was no time to discuss the matter with our entire membership. Therefore the following testimony is that ofthe HHCA II member Board ofDirectors which unanimously endorsed this testimony at its December IIth meeting rather than the position ofthe Hanalei to Haena Community Association as an organization. The Board concurs fully with the proposed recommendation ofthe DLNRlOCCL staffas stated in a 19 page report that was attached to Ms. Dawn Hegger's December 7th letter to Mr. Vitousek that the petition for deviation from conditions should be denied. First in regard to the substance ofthe matter, the HHCA has consistently submitted testimony to the DLNR in connection with new conservation district use application, CDUA, in which we 22 have stressed the importance ofincorporating conditions that explicitly note the existing prohibition against the establishment ofcommercial activities such as transient vacation rentals in the conservation district consistent with that position the Board ofthe HHCA believes that existing prohibitions against commercial activities in the conservation district should remain in place and should be enforced less those prohibitions be rendered meaningless. Second in regard to the process, no CDUA has been filed, no environmental assessment ofthe petition has been performed and no public hearings have taken place on Kauai on this matter. These important procedural safe guards must not be circumvented should this matter ultimately become more than an action to enforce the explicit conditions ofexisting CDUA permits. Thank you for your consideration ofthese comments. She explained Haena is the least developed and this is nothing new to the owners. They are aware ofthis (condition). Haena has become a more transient area and these activities have not been enforced. Member Johns: Who are the members ofthe HHCA? Are they land owners? Ms. Blair: We are all community owners. Member Johns: Are there any people in the association that are not land owners? That might be renters? Ms. Blair: Oh yes. Renters, tenants, you could have a business, real estate... it's completely open. It's a community association. Member Johns: There might be renters in Haena? Ms. Blair: Hanalei to Haena. Member Johns: There might be people in this association that are supporting this petition that are renters themselves in Haena. Ms. Blair: Yes. Well, these are Board members. Member Johns: I know. I'm just asking about the association to your knowledge. Because Randy or Mr. Vitousek earlier said some ofthe people who are testifying today are renters, they might be long term renters, but they are renters in the Haena conservation district. That's what I'm asking. Ms. Blair: I don't know anyone today that is a renter who is testifying from the Haena district. Member Johns: But there might be people in the association that are? Ms. Blair: Yes, but not testifying today. 23 Member Johns: Ok. Caren Diamond: Introduced herself and reported she used to live in the conservation district, but the owner was harassed to not rent it to her anymore. She explained the beauty and how it is threatened by commercial use. The county is going over their vacation rental ordinance and she wanted to clear up some mis-conceptions. It is not legal to rent vacation rentals in Haena right now. The county is trying to clarify through a new ordinance for no more transient vacation rentals in residential lands. Member Johns: Is it defined as under a month transient rental under the county? Ms. Diamond: I think the state law has under a 180 days and the county had 180 days, but they might have reduced it to 30 days. So that the areas adjacent to this in Haena that are not part ofconservation when they were developed part oftheir XME permit was clear that they were not to do any vacation rental, no commercial use. And to this day although some ofthose houses are illegally being used as vacation rentals those conditions still exist. Another one ofthe things that was cited was the tax issues. Our county has a lot oftax programs so that ifyou are a resident living in your house you qualify whether your property is in conservation or ago land or regular county land, you can qualify for tax exemptions. The amount ofpeople that come to stay at these vacation rental houses far exceeds the amount ofresidences that a family would have. So that when you have 12 people that regularly come who don't have any idea ofwhat the resources are or that they shouldn't be walking on the reefor they shouldn't be swimming in this incredibly high wave season. There are a lot ofproblems. Haena is a coastal hazard area. It's a high wave area. It's a tsunami district. There's no evacuation route for people. There are a lot of issues with granting visitors the ability to come in who don't have the knowledge that residents do. I ask you to please deny this petition. There should be no commercial use in conservation land. There is a very large community that depends on the resources of Haena different from the land owners who are using it for commercial purposes. We ask you to please preserve Haena and its rich cultural history and not commercialize it. Member Johns: Would you support rentals ofover a month, a year or no rentals at all? How do you define it? Ms. Diamond: I'm not against long term rentals. Member Johns: How do you define long term as oppose to transient? Ms. Diamond: Over a 180 days. 24 Member Johns: 180 days. JeffChandler: My name is JeffChandler. I am a native Hawaiian descendent. Hawaiian family name is Mahuiki. I belong to two hui, one founded by his family for the Haena boating controversy and the other is Hui Maka'ainana 0 Makana which manage and restore the taro lo'i in Kihei and Haena. He explained who these members are. I never read about nor had permission on the vacation rentals and can only tell you what I know. And I ask this is what I'm here for. First is the historical part ofHaena, the culture... Chair Thielen: Mr. Chandler, I know you have a long history in this area and that you want to share it with us, but so that you know since you mentioned you haven't read what's in front ofthe Board today because we can only decide what's been put on the agenda and nothing else. Mr. Chandler: I understand. Chair Thielen: A request by the property owners to be permitted a deviation from their permit conditions that would allow them to operate rentals on their property. That's the only thing before us. Mr. Chandler: I understand that. That's about aliI know. Chair Thielen: Ok. Mr. Chandler: But what I think is very important is the historical, cultural significance of this place. He presented a map ofHaena. This map comes out ofthe master plan of Haena State Park. That information came from our kupunas naming the specific names on the reefs ofHaena. Ifyou look at the names all those names tell you specifically what the most important thing is on that reefat that specific spot. I also work for Historic Preservation Division. I'm the cultural. .. I've been taking care ofa heiau at Kihei for the past 12 years. I can tell you that cultural practice still exists. There is reintroduction of the lua to the native people ofHaena. La'au lapa'au is still practiced by his family. That is how culturally significant this area is. Spiritually, he presented a package with a piece ofcoral, but what is significant is what the person wrote. Chair Thielen: Mr. Chandler, the Board would like to hear what your position is on the issue before us. We appreciate... Mr. Chandler: But I think you guys need to know culturally what it means to us before I go on because after that I going tell youwhat happened to me and my family because of these vacation rentals. It's been years. Chair Thielen: Maybe we should get to that point. 25 Mr. Chandler: Madame Chair it's not been years, but generations. Chair Thielen: Ok, again Mr. Chandler, I'm sorry to do this because I know this is not the environment you would prefer to share more ofthis information with us, but we do have a room full people here with other agenda items too that also want the opportunity for us to address their issue. I need to ask you to please focus your comments on the matter that is in front ofus. And maybe you can give us... Mr. Chandler: This is it culturally as a native Hawaiian what I present to you this industry has impacted. Yeah? My ancestors no can talk for themselves. The iwi no can come over here and talk for themselves. My mom just passed away. She can't be here to talk for herself. No it's my tum to speak for our place. This is not the first time this has happened to us. This is not the first industry that has done this to us native people. I used to be able to walk any time over the land to go fishing whenever I wanted to. Today, I'm fenced off! I've been treated like a tourist! You make little pathways for me to go fishing! I cannot go fishing because all the tourist takes up all the parking! Because of what industry, the tourism industry, the vacation rental industry we lost our land because ofthis vacation rental. We were told we couldn't build on our land. We couldn't cut the trees and so we couldn't build! That was the way to stop us from building on our land. And people come buy land from outside and just cut all the trees down and put up the houses and put fences. That's good for me, that's good for my family, that's good for my people that they dig up the iwi! They remove urn to save them for whom!? For us? For me? When will I have the opportunity to go and visit that iwi? Will I ever have that opportunity? This is just not in my house. So ifyou cannot sit down and listen to me, this is generations coming out ofme. It's not just me. This is something that I have to live through with my ancestors, my parents they not like me. They probably more like your parents who come out and say nothing. And you got to get rid ofthe land because the land taxes just go up to the thousands! Our home land, the designation is suppose to protect them. What about the protection ofthe native people? There is only a few ofus own land over there, native ofthat land. And we live watching these people making money offthese places. Fencing us off, stopping us from going to beach through the right-of-way. You know what they do is they put a private road sign and I can take you there and show you the sign, but it is a right-of-way to the beach. They put posts so you cannot park! Some ofthem pull out the right-of-way sign out so nobody know where stay. I've been fighting most ofmy life so we can eat offthe land because that is the only way we survive and how I've survived. And I'm still fighting. This is something that has happened to Hawaii, not just us. I have witnessed this from Kauai down to the Big Island in different communities. Someday they could come up and tell you so you truly understand. There is not much ofus like me, but I cannot sit back and not tell you something you should know that is so important one ofthe most sacred places ofall of Hawaii has been over run not just this industry, other commercial ventures. We're on our way going to the legislature to get help so we can stop all this problem ourselves! It's up to me, up to my people and up to the people ofHawaii to malama the aina. That is what is missing to be responsible. When I come to you I no need to hold you accountable 26 cause I know I no can. That I know. I apologize and I thank you for allowing me to say my manao. Mahalo. Wendy Wickman: I represent the Wickman family and we have lived at Haena for 60 years. I'm going to read my statement. In addition to what I wrote, Haena should be a conservation district. The reason it is so beautiful today is because it has been. And it didn't always have 750,000 people going into it. That's been recent in my lifetime. I think that the permits, ifyou look at why some have restrictions, are probably houses that were built after the visitor population began to impact the area. Maybe I'm guessing there is some way ofcompromising on use ofsingle family residences because the older homes don't have that restriction. Our family would like to thank the DLNR staffand Dawn Hegger, for their time and hard work in researching this issue and for recommending that the CDUA permanent restrictions be enforced. These property owners knew and agreed to the restrictions against rentals and commercial use oftheir property when they built or purchased their houses. They knew they were in a limited subzone ofthe conservation district. The objective ofthe limited subzone is to limit use and I'm quoting "for natural conditions suggests constraints on human activity" that's why it's a limited subzone. This is very true ofHaena. This fragile and beautiful area is unsurpassed and its beauty is undisputed. Its Bali Hai image is inmore photos ofKauai than any other. These homes are lucrative rentals for this very reason that they exist in a limited subzone that's protected from excessive development. It seems wrong that a property owner can agree to conditions that make their property valuable in the first place and then turn around and disregard those same instructions. These property owners are wealthy, educated individuals with access to first rate realtors and legal counsel. They knew or should have known about these restrictions on their property when they purchased their property. And they should not be above the law just to make a profit. So for all these reasons we agree to staffs recommendation to deny this deviation from conditions. Thank you. Leah Suesen: Aloha, my name is Leah Ka'aihue. I'm here before you not only to represent myself, but my generation. A lot ofthe local people who do live in Haena can't afford to come here. First ofall I want to state I thank you for everything that you are doing. I request you deny the petition. She passed out signatures from residents and past residents who were forced out. Many don't know what is going on and will be affected by your decision. I want to say I am a resident ofHaena. My parents do own their home. I'm not a renter. I just want to ask you to keep Hawaii's conservation lands for conservation use. We need to enforce the laws and not change them. These conservation land owners have knowingly been conducting vacation rentals, commercial business illegally violating land commission use permits. Some longer than I've lived here. It is an illegal act and they chose to ignore and break conservation laws. Vacation rentals outside the DVA and on conservation lands have a great impact on our local community and native life. Impacts on our local lifestyle, Hawaiian culture, Hawaiian cultural sites, Hawaiian burial sites, Hawaiian legends and meles. Meles that every year many Halau come to share that experience for the Merry Monarch. We are concerned with the use of long term vacation rentals, deterioration ofneighborhoods and local style communities, lack ofinfrastructure and constant increase of land taxes. We are residents 24/7. We live 27 and work here trying to survive abide by the law. Do not allow these illegal actions to continue. Enforce our conservation laws. Do not change them, enforce them. Some of those names on the petition are original traditional Hawaiian families ofHaena and they do take offense to the term Haena Hui Hou. They have the true meaning ofHaena Hui and not what they are trying to do. She emphasized Haena is a beautiful place and to visualize these vacation rentals. Think about her generation and the future because what you decide on is very important. Thank you. Member Edlao: Appreciate her coming here representing her generation. Member Gon: I to want to laud you for taking the time to come here. It's not easy to come before the State Board and say what is needed to be said. Mahalo for that. Ms. Suesen: Thank you. Heidi Guth: I'm the advocate for native rights for the Office ofHawaiian Affairs (OHA). Unfortunately, this is our first hearing on this issue. I wanted to support in part our beneficiaries who came before you today and also to remind the Board ofthe importance ofthe conservation district not only in this particular place for the endangered species and the beauty and the natural resources that are there, but the cultural resources which are also natural resources in this area that cannot be simply defined in briefwords. I think it was important to hear some ofthe genealogy ofthe people who spoke to you earlier today and all ofthat would have come forward in a CDUA and an EA ifsuch were required. The Office ofHawaiian Affairs generally is against any after the fact sorts of permits that would allow for people to deviate or go against any kind ofpermitting conditions or regular laws and regulations. We're going to keep with that stand and hope that you follow your bright and able staff. Thank you. Member Johns: Sam what happens ifthe Board approves your recommendation? What happens going forward? Assuming that the two gentlemen have asked for a contested case and I guess they would still put in their written request and the AG would work with you to determine ifthere will be a contested case. Although, our advice has been there isn't one available. What else would happen? Mr. Lemmo: That sounds reasonable. Based on the advice ofthe AG we would need to s proceed to enforce come January 1 t. Member Johns: There would be no further discussions amongst the parties? Mr. Lemmo: Not unless they wanted to, but the indication is that they don't want to cease. We told them six/seven months in advance that we would be going to enforcement. We already done some, but we will continue with that effort come the New Year. Member Johns: What would happen ifthe Board deferred the action on this matter today? 28 Mr. Lemmo: Then we would continue to do enforcement on January I st. Member Johns: Because in your recommendation part #2 says there has been no EA, there's been no public hearing, ifthe parties or the applicants agree to file a CDUP or a EA or public hearing would you still pursue enforcement? I'm not sure why you put that recommendation in there? Mr. Lemmo: It's to illustrate why the deviation should not be granted. We would continue with enforcement. Member Johns: Ifwe deferred and they pursued that? Chair Thielen: I think the confusion is the motion is by the petitioner to grant a deviation ifwe defer it there is no deviation. Member Johns: Right. Chair Thielen: The deviation would only take affect ifthe Board were to support it. Otherwise you would go back to the permit conditions. Member Johns: I understand. I'm just trying to figure out what the Department is going to do to resolve the issue and what path that might take. Mr. Lemmo: We gave them six months notice to comply and we told them ifthey don't comply we will proceed with enforcement responsibilities come January Ist unless someone else orders us to do otherwise. Member Pacheco: I was intrigued by something that Mr. Vitousek said in that he be given clarification on the permit condition what the nature ofthe rental is to tighten up that language. That would further or could possibly refine the parties who want to continue this fight. There are certainly people who are only going to stop until they either give the right to do short term vacation rentals or they're told in a legal proceeding that is not going to happen ifthis Board chooses not to allow that to happen. I don't know ifthis deviation motion allows us to actually tighten up the language on that permit condition at this meeting to say that the permit doesn't allow transient vacations rentals as defined by 90 days rental agreement or something like that. Allow a long term rental issue, I don't know ifthat is good enough to clarifY who the parties would be going forward because this will go to a contested case hearing at some point, right? Or some kind ofcourt? Vince Kanemoto: Doesn't the condition also say prohibit commercial use? Mr. Lemmo: Some do. It's either rental, no rental or no commercial. In some case no rental and commercial because the conditions were applied under different regimes over the past 25 years. 29 Member Johns: Regarding Board Member Pacheco's question is there going to be any movement from the Department to clarify what does commercial rental (mean). Are you going to make it clear that there is no rental allowed for five years, one year, 180 days? Mr. Lemmo: Not unless I'm told to. Member Johns: It seems like an open issue that needs to be discussed or resolved at some point. Chair Thielen: Clearly the Department would need in moving forward in any enforcement action feel confident that it would be able to prevail that the action that it's saying it's a violation ofthe permit condition actually does violate those conditions. Member Johns: Then it would go into the decision making about the pursuit ofthe enforcement action? Mr. Lemmo: That is part ofthe meeting at the AG's office. The deputy AGhas told me that we have sufficient.. . Member Johns: Wait the enforcement action didn't come from the Board? Chair Thielen: The Department would need to consult with our attorney to determine which enforcement action to move forward with and that would be on a case by case basis depending upon the factual substance ofthe investigation and the conditions contained within the specific permits. Member Johns: Ok. Chair Thielen: It would come back to the Board ifthere is a contested case hearing or if there is enforcement that needs to be brought to the Board. Member Johns: But the particular empathies for these enforcement did not come from a Board action. Once you determine there was a violation then you would bring it to the Board for some sort ofdetermination? Mr. Lemmo: Right. Member Johns: And then there would be no continuing discussion ofthe resolution of the issue then? Mr. Lemmo: Ifthey came to us and said "Sam, we are not going to rent any longer" then that is the discussion we will have. Without that we are continuing to pursue the enforcement action on a case-by-case basis. And each case will be evaluated on it own merits. You will be presented with at some point a formal action. 30 Member Johns stated he will make a motion. He didn't think that the case has been made for the deviation, but he is not really comfortable with what is left as an inappropriate way to resolve the situation. Being that it is made and this is what is in front ofus he'll approve staff's recommendation. Member Gon second it. All in favor. Motion passed. Unanimously approved as submitted. (Johns, Gon) Item K-4 Conservation District Use Application MA-3426 to Construct the Proposed Kapalua Coastal Trail Project, Honolua and Honokahua Districts, Kapalua, Maui, Maui Land & Pineapple Company - TMKs: (2) 4-2-004:010, 015, 016, 017, 032, 034 Sam Lemmo representing OCCL gave submittal background. He requested changing on page 20, condition 17 to say "Maui Land & Pineapple will get the prior approval from Department ofTransportation (DOT) for the proposed trail alignment. .Strike out the part in the conservation district because if it is in the DOT right-of-way then DLNR is not involved. Tom Schell representing Maui Land & Pineapple Company was here to answer any questions. Chair Thielen inquired should it be required. Does staffknow if a DOT approval is needed? Mr. Lemmo presumed that. The Board: Amendment to staff's condition #17, page 20: Maui Land & Pineapple Co. will get prior approval for proposed trail alignment. And strike "conservation district" because the department is not involved in a DOT right-of-way. Unanimously approved as amended. (Edlao, Johns) Item K-2 After-The-Fact Conservation District Use Application OA-3431 for an Erosion Control Wall, for the Completion of an Unfinished Portion of the Wall, and for On-Going Maintenance of the Wall, along Ka'elepulu Stream, Kailua, Oahu, Mr. Read Spencer - TMKs (1) 4-2 50:75 and (1) 4-2-49:87 Sam Lemmo ofOCCL reported on background and no changes to submittal. 31 Read Spencer, owner, was embarrassed by the condition ofthe land. He noted he'll lose his house ifthis isn't approved. He realized he made a mistake while trying to correct the erosion and described his problems with the loss ofland and trees. Mr. Spencer understands the conditions ofthe recommendation and he wants to maintain the wall. Unanimously approved as submitted. (Schuman, Gon) Item F-I Enforcement Action Against Maui Snorkel Charters, Inc. for Damaging Coral within the Molokini Shoal Marine Life Conservation District Written testimony was received from Thomas Cole. Dan Polhemus, administrator for Division ofAquatic Resources (DAR), informed the Board on submittal background. Staffrecommends the Board revoke Maui Snorkel Charters commercial use permit for one year pursuant to Chapter 190 ofthe Hawaii Revised Statutes ofTitle 13, Chapter 31 ofthe Hawaii Administrative Rules because it is a significant penalty that reflects both the seriousness ofthe damage and the circumstances associated with this incident. The Board has the option of imposing a fine and assessing fees and costs pursuant with Hawaii Revised Statutes § 187A-12.5(a) ofup to $672,618. At its discretion the Board may want to consider the imposition ofa fine in addition to the permit revocation or the imposition ofa substantial fine in lieu ofthe revocation. DAR is amendable to either ofthese options. Mr. Polhemus noted that the responsible party has sent a representative today and that they contacted him in advance requesting a continuance until January 25,2008. Given the size ofthe penalty involved and the relative complexity ofthe damage assessment DAR is willing to support such continuance at the Board's discretion. JeffStraund ofMaui Snorkel Charters distributed a revised copy oftheir letter. He admitted to the accident and requested to defer to January 25th to present their case and position. Member Edlao requested he would like to get the Coast Guard comments and all the information. But, he doesn't want to keep delaying this. He made a motion to defer to January 25,2008. Member Johns second. The Board: Deferred staff's submittal to January 25, 2008 Board Meeting to obtain Coast Guard's report and/or bring in a Coast Guard representative. Deferred. (Edlao, Johns) Recess 1:34 pm Reconvened 1:40 pm 32 Item F-3 Request for Authorization and Approval to Issue a Papahanaumokuakea Marine National Monument Conservation and Management Permit to the Monument Co-Trustee Representatives of the U.S. Department ofthe Interior, U.S. Fish and Wildlife Service; U.S. Department of Commerce, National Oceanic and Atmospheric Administration; and State of Hawai'i Department ofLand and Natural Resources, for Access to State Waters to Conduct Conservation and Management Activities. Written testimony was provided by Marti Townsend. Dan Polhemus, representing DAR, briefed the Board on the background. Informational briefing covered most ofthis. Staffrecommends approval with set ofconditions which are the imbedded special conditions previously approved by this Board. He noted condition number 3 where some management activities involve monk seals. This condition is limiting the very activities staffseeks to pursue and the Board may need to consider this. The V.S. Fish and Wildlife Service have certain concerns with condition 10 which Susan White will speak on. Mr. Polhemus suggested amending condition 3 to say conservation and management activities, except those directly related to management ofHawaiian monk seal, only those activities directly related to monk seals are allowed to continue ifmonk seals are in the vicinity and active participants. Member Gon suggested conservation management activities ofHawaiian monk seal present in the immediate vicinity, except as permitted for specific management of Hawaiian monk seals. Member Edlao asked for clarification ofcondition 2 regarding subsistence fishing. Mr. Polhemus replied only for the traditionaJ cultural practices ofnative Hawaiians. Sustenance fishing is allowed in Federal waters. Member Edlao conveyed he does not support fishing in any waters. Mr. Polhemus stated he will convey his position to the Federal management. Chair Thielen inquired ofthe conditions on pages 4 and 5 are special conditions attached to these permits. How many special conditions were approved? Mr. Polhemus acknowledged these special conditions are optional where general conditions are required ofall permits. This is the full list. Susan White representing V.S. Fish and Wildlife Service explained special condition 10 is problematic for them because its one ofthe things they are specifically requesting which is to be able to access state waters to provide support services for their field stations on the islands. She asked to amend by adding after the comma that says "except 33 for those directly related to emergency response actions" to add "in field stations supplying support." She elaborated on these field stations' activities. Discussion whether this affects other agencies like NOAA. Chair Thielen suggested bringing supplemental amendments separately at a later Board meeting because they can only allow so much change in one Board meeting. Aulani Wilhelm, NOAA supervisor for the monument, noted these conditions were previously approved: 1, 4, 6, 7 and 8. Condition 2 was approved conceptually, but the words were different. 1t says "fishing is prohibited" and the previous version says "no fishing is allowed." Condition 3, 5, 9 and 10 were not part ofthe package from the information that was sent out. She apologized that she didn't have that information. Mr. Polhemus explained that staffconsistently recommended conditions on monk seal that are actions. This is a staffopinion. 1t contains all ofthe previously imbedded and approved conditions that came out ofthe joint legal team. Staffhas recommended several additional special conditions that were warranted. Discussion over additional special conditions and whether the joint team approved it. Member Schuman inquired ifthese general terms and conditions are the same conditions that were attached to last year's permits or have these general conditions changed. Mr. Polhemus replied these general conditions are the same. Nothing new on them. Marti Townsend representing KAHEA - Hawaiian Environmental Alliance explained it's important for the Board to apply permanent activities language from last year's permit to this year's permit. KAHEA echoes the Board's concern regarding sustenance fishing and encouraged the Board to be strict and not allow fishing in the North West Hawaiian lslands. She requested the Board consider for a daily take log and referred to the incident last year. Chair Thielen asked Ms. Townsend to briefly explain the distinction between the permit's language last year and this year. Ms. Townsend referred to attachment B in her testimony on page 2, part D. She described each ofthe 4 permitted activities. She noted that NOAA did not sign this permitand went without a manager's permit last year. KAHEA has met with NOAA and its Ms. Townsend's understanding that it's NOAA's policy to permit separately all research activities. Member Schuman queried that Ms. Townsend's handout has 30 conditions. Are some conditions combined with others? 34 Mr. Polhemus explained last year there were 3 separate permits everyone had to get depending on the research: Fish & Wildlife, NOAA and DAR. These 3 moved to ajoint permitting scheme as specified by the MOA. Each permit had its own general and special conditions where some special conditions were becoming general conditions. The lawyers got together and went through all the general and special conditions. These revised fully bedded general conditions came back to the Board, who concurred, voted on them and that is what is in the permit. Everyone, including KAHEA, was in agreement. A set ofspecial conditions went through the same process and those 5 are in this permit. Staffrecommended 5 additional conditions in the context ofthis permit. One is a minor reword. How to deal with those 4 additional special conditions? Chair Thielen asked ifthe Board supports all 10 special conditions ofthe permit. Both Federal partners may have questions about these special conditions. The proposal from KAHEA is this same language included in the permit? Taking the language from the permit approved last year #1-4 under permitted activities, what is DAR's response to that? Mr. Polhemus replied DAR's response is supporting broader management discretion rather than limited management discretion which KAHEA would propose. That is the combined response ofDAR and DOFAW (Division ofForestry & Wildlife). It comes back to how often should there be a discussion about basic management activities. KAHEA's proposal would use up a lot ofthe Board's time because it's restating a policy that is already in place. Ifdoing research obtain a research permit. Ifdoing management don't need one. The Office ofAttorney General recommended not restating the obvious. Paul Conry, administrator for DOFAW, concerned with listing every activity anticipated because staffcan't cover everything and there are contingencies that come up. He noted the State ofHawaii has that broad management authority to take endangered species which involves the stewardship, research study without having to get a specific Fish & Wildlife permit. It is not unusual for management and conservation purposes to be given fairly broad latitude to conduct those. Chair Thielen stated once. a management plan is in place staffcould switch to a more functional permit. A concern by the public is without that management plan in place what is the framework about the clear policies ofwhat can or cannot do. Mr. Conry concerned that for 20 years staffhas been doing routine management activities and a new contingency comes in that stops everything. The result would hinder management practices and hurt the resource. Staffwants to continue management practices. Ms. Townsend clarified KAHEA wanted to ensure there are no oversights in the monument. Ms. Wilhem described the three conditions. Number 3 which is the best management practice that NOAA NMFS (National Marine Fisheries Service) protective species 35 recommends for permittees as the best management practice. Number 10 which the Board has heard is Fish and Wildlife's concerns. Regarding 9, on whose signature is going where, is contained within the general condition number 8 which is imbedded and approved by the co-trustee agencies. She referred to the check box from the 12/13/08 briefing and described it. In regards to the refueling provision she'll support what Fish and Wildlife supports. . Discussion regarding conditions and best management practices. Margaret Akamine ofNOAA explained best management practices are attached to the permits to keep permittees out oftrouble. This is one ofmany best management practices. There are laws that also prevent, for example, harassment ofmarine mammals. Ms. Wilhem noted all the special conditions have been imbedded by the co-trustee agencies and they want the ability to add special conditions to any future permits. The co-trustees are still working out the process. She referred to last year's meetings and she was concerned that the wording in the testimony/minutes was not in the permit in its entirety. In reference to KAHEA's comment on no management permit, the Fish and Wildlife Service conservation management permit allowed for transient through waters, but not work in the waters. State ofHawaii permit allows for Kure Island activities on land. But, none ofthe co-trustees had a conservation management activity for "in" water activities with the exception oftransient separate from any other permit such as research that was signed. All are assuming responsibility. Discussion on research activities requiring a separate permit from management permits which is done. Discussion on monthly activity logs. Ms. Wilhem clarified that the actual activities outlined in the permit that is issued are based on the application and that this appears to be standard practice for all Board actions, as actual permits are never approved by the Board, but the content ofthe activities is. The permit was a document developed by the staffafter the Board has made its decision. Board members agreed. NOAA is committed to revising the general and special conditions together with the co-managers over time and will keep the Board apprised. She supports making revisions when necessary to enhance management and conservation. 2:40 pm Member Edlao departed. Miwa Tamanaha, executive director ofKAHEA, explained they are not asking for additional special conditions, but how the permitted activities are defined. In absence of a management plan it's too broad. KAHEA wants to specify what management is and what is research. Chair Thielen suggested that the co-trustees discuss this with KAHEA or other interested parties to come up with language that is mutually satisfactory that defines the distinction 36 between management activities that are acceptable or have a broad consensus and work towards defining that better. In the absence ofhaving that language in front ofus she feels using the language in section 6 provides for some guidance. The Board: Amendment to stafrs recommendation: The Board recommends the committee working on the management plan discuss with interested parties to come up with language that is mutually satisfactory that defines the distinction between management activities that are acceptable or has a broad consensus and work towards defining that better. In absence of having that language in front of us, use the language in section 6 for guidance. Member Gon moved to accept the recommendation of staffwith amendments to the conditions as listed keeping as is conditions 1,2, keep 3 with amended except as permitted for specific management ofHawaiian monk seals, 4, 5, 6, 7, 8, delete 9 and 10 with the amendment of the addition of field station, supply and support. Member Pacheco second. Unanimously approved as amended. (Gon, Pacheco) Item F-2 Request for Approval to Add Funding ($158,155) and Increase Scope ofServices of a Research Corporation ofthe University of Hawaii Stream/Estuarine Studies Project Agreement (Contract No. 51059) in FY08 Dan Polhemus, administrator for DAR, described background. Board declared they liked the idea. Unanimously approved as submitted. (Pacheco, Gon) Item C-l Subject: Carnegie Institution Contract for the Collection and Analysis ofRemotely Sensed Hyperspectral and LiDAR (a Laser Based Data Collection System) Imagery for Wao Kele 0 Puna, the Kapapala Koa Canoe Log Management Area, and a Portion ofKa'u Forest Reserve. Item C-2 Subject: Request for Amendment ofthe Hawaii Invasive Species Contract 53599 to Resolve Conflicting Terms in the Scope ofServices and Copyright Ownership by Amending the Special Conditions #26 Paul Conry, administrator for Division ofForestry & Wildlife, informed the Board that there are no changes. He noted staffreceived comments from OHA on Item C-2 37 questioning whether to allow a copyright by an author and a publishing company for the product that is under contract. Staffs analysis is that they believe they are getting a broader circulation ofthe materials as oppose to posting it to the website. The provision is it will be more readily available. Staffsupports this. Unanimously approved as submitted. (Gon, Schuman) Item J-l Request for Approval to Repeal Hawaii Administrative Rule, (HAR), 13-242-13 Ed Underwood representing DOBOR explained what the rule was for and staffwill come back to implement the new statutes. Unanimously approved as submitted. (Pacheco, Schuman) Item M-l Modification No.1 to Lease No. DOT-A-06-0016 U.S. Federal Aviation Administration Kona International Airport at Keahole Item M-2 Issuance of Direct Lease - Rotor Wing Hawaii, Inc., Lihue Airport, Kauai Ross Smith representing DOT - Airports gave background on each submittal. Unanimously approved as submitted. (Pacheco, Gon) Item K-l Conservation District Use Application SSBN MA-07-04 for a Small Scale Beach Nourishment Project (Board Consent for Chair Approval), at Laulea Cove, Spreckelsville, Maui, Cirrus, LLC - TMK: (2) 3-8-2:072 Sam Lemmo representing OCCL reported he has no changes. Unanimously approved as submitted. (Pacheco, Schuman) Item D-l Request to Approve Revised Application and Qualification Questionnaire for Agricultural, Pasture, Business, Commercial, Industrial and Resort Leases. Item D-3 Consent to Assign General Lease No. S-5824, Andy B. Alfiler and Mary G. Alfiler, Assignor, Andy B. Alfiler and Mary G. Alfiler, and LBD Coffee, LLC Assignee, Kapaa, Kauai, Tax Map Key: (4) 4-6 05:11. Item D-4 Grant of Perpetual, Non-Exclusive Easement to Francis U. Merriman for Access and Utility Purposes, Waioli, Hanalei, Kauai, TMK: (4) 5 5-08:02, and 5-6-02:01. 38 Item D-6 Consent to Assign General Lease No. S-4640, Michael G. Mentnech, Assignor, to Snnny Stewart and Mya Paw'U, Assignee, Waiakea, Sonth Hilo, Hawaii, TMK: (3) 2-4-49:23 Item D-7 Sale of Remnant, State Lands, Abandoned Railroad Right-of-way to Hilo Meishoin, Waiakea, South Hilo, Hawaii, Tax Map Key: (3) 2-4 57: portion of 01. Item D-8 Amend Prior Board Action ofJune 22, 2007, Agenda Item D-4, Cancellation of Revocable Permit No. S-7174 to J.J. Andrade Slaughterhouse, Inc., and Issuance of Month-to-Month Revocable Permit to Jill J. Andrade dba R.J. Ranch for Pasture Purposes; Kawela and Papaki, Hamakua, Hawaii, TMK: (3) 4-6-02:07. Item D-ll Issuance ofRevocable Permit to King Center, Ltd. for Parking Purposes, Honolulu, Oahu; TMK: (1) 2-3-18:45. Item D-13 Consent to Assign General Lease No. S-4901, Leina'ala M. Lopes and Carolyn Leina'ala KahiH, Assignor, to Leina'ala M. Lopes, Carolyn Leina'ala KahiH, Wilfred A. Lopes and Darren Kealii Lopes, Assignees, Maunalaha Homesites, Maunalaha, Honolulu, Oahu, TMK: (1) 2-5-24:12. Item D-15 Amend Prior Board Action of December 8, 2006, Item D-14, Approval in Principle of an Exchange between the State ofHawaii and Tiana Partners and Hawaiian Hnmane Society for State-Owned Springing Executory Interest in Land at Niu, Honolulu, Oahu, Tax Map Keys: (1) 3-7-04:01,02 & 20 and Privately-Owned Land at Niu, Honolulu, Oahu, Tax Map Key: (1) 3-7-04:02, and Rescind Prior Board Action of October 28, 1994 Under Agenda Item F-13, Amendment to Prior Board Action of February 12, 1988 (Agenda Item F-24) Relating to an Agreement to Partition Land at Nin Valley, Honoluln, Oahu; Accept Quitclaim to a Portion of Property; Issue Quitclaims to the Remainder of Property; and Set Aside to the Division ofForestry and Wildlife, TMK 3-7-04: 01,02 &20. To Reflect Parties' Intent to Exchange Present and Future Interests in Land Situated at Niu, Honoluln, Fnrther Identified as Tax Map Keys: (1) 3-7-04:01,02,20 and 21 Item D-16 Rescind Prior Board Action ofAugust 26, 2005, Agenda Item D-13, Sale of Remnant to G&I Watnmnll Limited Partnership, Waimanalo, Koolaupoko, Oahu, TMK: (1) 4-1-09:274. 39 Item 0-20 Cancellation of Grant ofNon-Exclusive Easement Bearing General Lease No. S-5172 to Stanley Chun and Katherine S. Chun and Grant ofTerm, Non-Exclusive Easement to Gilbert K. Chun and Leialoha K. Chun for Seawall Purposes, Kahaluu, Koolaupoko, Oahu; TMK: (1) 4-7-19:26 seaward. Item 0-21 Sale ofReclaimed Land to the Dorothy Ikeda Family Trust, and Amend the Prior Board Action of November 8,1963 Under Agenda item F-8, Kaneohe, Oahu, TMK: (1) 4-7-19:78 por. Item 0-22 Grant of Perpetual, Non-Exclusive Easement to Department of Defense, for Civil Defense Warning and Communication Siren Purposes, and Issuance of a Construction & Management Right-of Entry Permit, Hauula, Koolauloa, Oahu, Tax Map Key: (1) 5-3 001 :039 (por.) Item 0-26 Sale of Lease at Public Auction for Intensive Agriculture Purposes, Waikele, Oahu, TMK: (1) 9-4-12:01, 02, 03. 27. Item 0-27 Report of Board of Education Action Regarding Acquisition of Private Lands and Set Aside to Department ofEducation for Expansion ofHaaheo Elementary School, Wainaku, South Hilo, Hawaii, TMK: (3) 2-6-32:01 por. & 27. Unanimously approved as submitted. (Pacheco, Gon) Item 0-12 Enforcement ofViolation ofUnencumbered Public Lands for Unauthorized Commercial Activity by Nita Kalamafoni at Duke Kahanamoku Beach, Waikiki, Oahu, TMK: (1) 2-3-37:21. Morris Atta ofLand Division infonned the Board ofthe background situation. He was not sure why she wasn't there for this meeting because she said she would be there to defer. Unanimously approved as submitted. (Schuman, Gon) Item 0-10 Acquisition of Government Lands and Set Aside to (1) Department of Transportation for Manifested Cargo and Passenger Operations, and (2) Department of Business, Economic Development and Tourism, Foreign-Trade Zone Division for Foreign Commerce, Portion of Kaakaukukui, Honolulu, Oahu, TMKs: (1) 2-1-15:por. 09, 19, 15, 21, 25,26,27,28,29,30,31,32,33,36,37,38,39,42&46. Morris Atta representing Land Division spoke to DOT - Harbors and Foreign-Trade Zone to proceed because ofthe timing concerns. Ifnecessary, staffcould come back to amend the Board action. 40 Chair Thielen explained she wants DOT to amend this because at the last meeting Mike Formby, deputy director for Harbors, presented that they are shifting all harbor activities to language consistent to where it's all maritime related activities. She doesn't want to be in a situation where leases are not in compliance in the future. She requested DOT add an amendment. Unanimously approved as submitted. (Pacheco, Schuman) Item L-l Permission to Hire a Consultant to Update the State Water Projects Plan Item L-2 Request for Authorization to Hire Consultant(s) and Authorize the Chairperson to Negotiate Agreements with a Consultant(s) to Conduct Hearings and Coordinate Work for the Promulgation of Administrative Rules and Procedures as Required by the "Hawaii Dam and Reservoir Safety Act of2007," Chapter 179D HRS - Dams and Reservoirs Unanimously approved as submitted. (Agor, Gon) Motion to adjourn. (Gon, Agor) There being no further business, Chairperson Laura Thielen adjourned the meeting at 3:00 pm. Tapes ofthe meeting and all written testimony submitted at the meeting are filed in the Chairperson's Office and are available for review. Certain items on the agenda were taken out ofsequence to accommodate applicants or interested parties present. Respectfully submitted, .., ,Ac;:Q~~~ Adaline Cummings Board ofLand & Natural Resources Secretary Approved for submittal: URA . THIELEN Chairperson Department ofLand and Natural Resources 41