Board Determines Conservation Needs Trump Demand for Kapahulu Parking

posted in: March 2008 | 0

The critical need for parking in Kapahulu just couldn’t beat the need to replenish the coffers of the Department of Land and Natural Resources’ dwindling Land Development Special Fund, which is the sole source of funding for the Land Division, the Office of Conservation and Coastal Lands, and several other vital programs.

On February 8, the Land Board voted four-to-one to auction a 24,500-square-foot lot in Kapahulu for commercial use. The upset price, or minimum bid, was set at $180,000 a year. Because the property is not ceded land, the income generated goes into the DLNR’s Land Development Special Fund instead of the state general fund.

At the board’s meeting, many Kapahulu residents, business owners, and elected officials testified against auctioning the property for unrestricted commercial use and asked that the use of the parcel be limited to commercial parking.

“Displacement of the 60 or so existing parking stalls at 548 Kapahulu Avenue will cause a ripple effect, forcing business patrons who currently use the lot to seek street parking in the residential area, thus displacing area residents who need to use street parking to accommodate a second family vehicle,” state Rep. Scott Nishimoto wrote in a letter to the board.

The Land Division’s Keith Chun and state Sen. Les Ihara presented conflicting data on how much revenue the site would generate as a commercial parking operation. Chun said it would be less than $10,000 a year, while Ihara said it was closer to $85,000 a year.

Nishimoto asked the board to defer the matter for two weeks to allow the community to provide more information on the profitability of commercial parking on the site.

“Deferring two weeks is not going to make or break this,” he said. Although Hawai`i Land Board member Rob Pacheco agreed and made a motion to defer a vote on the item, the motion failed.

“If there was someone who wanted to do parking, they would have come forward and we would not be here at this point,” Maui Land Board member Jerry Edlao said. The Land Board has been planning to auction the property for commercial use since 2004, but had to wait until the Honolulu City Council rezoned the property. Now that the property has been rezoned, the DLNR’s Chun is eager to get things moving, as are several other division heads whose work is supported by the special fund.

Kaua`i Land Board member Ron Agor echoed Edlao’s sentiments and added, “I only think a deferral will show the difference between $80,000 [a year for commercial parking] and [the current upset rent of] $180,000, and I’m going to go with $180,000.”

Edlao’s motion to approve Chun’s recommendation to auction the property for commercial use passed with Pacheco dissenting.

* * *
Volcanic Hazards Force Closure
Of Kahauale`a Natural Reserve

Fires, fissures, and volcanic fumes are just some of the hazards that led to the Land Board’s February 8 vote to keep the Kahauale`a Natural Area Reserve closed to the public until July, 25, 2009. Last July, following recommendations from the Hawai`i Civil Defense agency and the U.S. Geological Survey’s Hawai`i Volcano Observatory, the Department of Land and Natural Resources closed the NAR after volcanic activity from Kilauea Volcano’s Pu`u O`o vent opened a series of fissures in what had become a popular hiking and hunting area.

The eight-mile trail that runs through the reserve saw increasing use by visitors in recent years, a report by the DLNR’s Division of Forestry and Wildlife states. The report notes that visitor guidebooks, such as Hawai`i: The Big Island Revealed, encourage people to use the trail to access Pu`u O`o. Judging by testimony from Hawai`i Island NAR manager Lisa Hadway, public use of the area has become a problem.

“There have been 26 rescues in the area in the last four years,” Hadway told the Land Board last month. Hawai`i Land Board member Rob Pacheco, who runs a hiking tour company, added that the reserve has been a problem for a while because people barred from accessing Pu`u O`o from Hawai`i Volcanoes National Park were using the NAR instead.

“You couldn’t really access Pu`u O`o legally going out there. The national park boundary was closed,” he said.

Hadway said that based on previous eruptive events and analogies to others, the volcanic activity is expected to last a while. Should the danger end before July 2009, she said, the department would come back to the Land Board to lift the closure.

Before the Land Board unanimously approved DOFAW’s recommendation to close the NAR and to authorize the Land Board chair to sign an agreement with the volcano observatory to monitor the lava flow, chair Laura Thielen recommended that the department work with the hotel and rental car industries to spread the word about volcanic hazards.

Hadway had testified that despite posting warning signs and erecting a fence across the trail, “We know people are getting in because we’ve had various rescues since the closure [last year].”

Deputy attorney general Linda Chow assured the board that her office would work with NARS staff to ensure that signs in the reserve adequately describe the hazards and penalties for entering the reserve.

* * *
Molokini Damages To Include
At Least $550,000 Fine,
Permit Suspension

The largest dive operation on Maui will receive the second largest fine for coral damage ever levied by the state Board of Land and Natural Resources. At its January 25 meeting, the board instructed the Department of Land and Natural Resources to negotiate a settlement with Maui Snorkel Charters, Inc. (MSC) for violations stemming from the sinking of one of the company’s boats at Molokini atoll in the fall of 2006.

That settlement, the Land Board decided, must include a permit suspension and payment of no less than $550,000 in fines and $10,000 in administrative costs. Also, the DLNR’s Division of Aquatic Resources was ordered to brief the board on the settlement’s status in one month.

The board made its decision after a lengthy executive session in which members discussed a recent proposal by MSC to pay $500,000 in fines into a “Molokini Conservation Fund” over a 10-year period, instead of more substantial penalties proposed by the DAR. In its report to the Land Board, the DAR had recommended suspending MSC’s commercial operating permit for one year. If the board wished to impose fines as well, the DAR stated that based on its calculation of damaged coral specimens, the board could fine MSC up to $672,618 ($661,000 for damaging or killing 661 coral specimens plus $10,618 in administrative costs).

When MSC proposed its alternative to the Land Board, DAR administrator Dan Polhemus said he felt it was a reasonable compromise and urged the board to impose a fine that was collectable and could be used to benefit the resource.

Several snorkel tour operators testified that the proposed fine would put Maui Snorkel Charters out of business, and they praised the company’s marine conservation efforts over the years.

“This is a responsible operator. This is not going to happen again,” said Jim Coon of the Ocean Tourism Coalition.

Some board members expressed doubts. In its report to the board, DAR recounted the events that led to the coral damage. Disagreements between the boat’s captain and an onshore mechanic over whether the boat needed a tow may have squandered opportunities to save the ship. Also, it appeared that a hole was later deliberately punched into the hull so that it would sink to the bottom.

Dive tour operator Ed Robinson testified that much of what went wrong back in 2006 could be blamed on stupidity. “How do you protect yourself against stupidity? ….You can’t.”

To which board member Sam Gon responded, “Yes, you can. [Molokini] is an MLCD [Marine Life Conservation District] and you can end all commercial use.”

Jeff Strahn, general manager and co-owner of Maui Snorkel Charters, apologized for his company’s actions and asked the board to “at least give us an opportunity to make it right.”

In the end, the board reduced the fine amount, but decided to also suspend the company’s permit for an unspecified amount of time. Strahn testified before the board’s vote that a permit suspension of one year may as well be a revocation, since the business would not likely survive.

* * *
Board Denies Permit
For Hulakai Surf Contest

When the state bought 40 acres along the Mahai`ula coastline in 1993, the land, now part of Kekaha Kai State Park, was intended to be a wilderness park. So when the DLNR’s Division of State Parks issued a permit last year for a surfing contest/fundraiser to benefit the Make-A-Wish Foundation, the contest’s large tents and sponsor banners, the trucks on the beach, and the jet skis in the water, among other things, rubbed many community members the wrong way.

When promoters of the Annual Hulakai Longboard Surf Classic contest applied for another permit to hold a Make-a-Wish Foundation surf contest at Mahai`ula in February, dozens of people sent testimony to Land Board members asking that the permit be denied.

In an email to State Parks administrator Dan Quinn, Kona resident Andrew MacIsaac wrote, “The permit to allow a surf contest run by those interested in promoting their commercial interests is not in the interest of the public use of the park. Whether the contest itself is a money maker or a donator is irrelevant; it promotes the commercial interest of the operation and its sponsors and therefore is part and parcel of the commercial activity of both.”

The appearance of commercial use also concerned Land Board members Rob Pacheco, Sam Gon, and Tim Johns.

“If the contest appears to be a commercial venture that, at the end of it, writes a check to Make-a-Wish, then that’s something I want to know about before we make our decision,” Johns said.

Jon Moon of Hulakai surf company testified that the event’s sponsors post signs and give away their products to children, but added, “Everything we make goes to Make-a-Wish.” He said the foundation also posted its own banner and handed out brochures at the last event, which raised money so that the daughter of a DLNR Division of Boating and Ocean Recreation employee could “go play in the snow.”

Johns said that while he did not have any problem with the foundation, “It’s more about the use of a state facility, a state park that was not intended for commercial-type use…. The question is, is it appropriate for a surf contest sponsored by a surfboard manufacturer at a wilderness park?”

“I understand the contribution and I appreciate the work that Make-a-Wish does, but I do have real concerns about this as a precedent,” Pacheco added.

Maui member Jerry Edlao made a motion to approve the permit but directed Hulakai to find another place next year in a less sensitive area. The motion failed, with chair Laura Thielen and members Agor and Edlao voting in favor and members Pacheco, Johns, Taryn Schuman, and Gon voting in opposition.

After the board’s vote, the applicants requested a contested case hearing on the matter.

* * *
DLNR May Inspect
Kaloko Dam Again

Days after Kaua`i’s Kaloko dam broke in March 2006, killing seven people, DLNR staff conducted a cursory inspection of the area to assess whether the dam was in danger of deteriorating further. Although the area seemed stable in a visual inspection, the Land Board voted on January 25 to authorize its staff to conduct a second, more thorough, inspection, including topographic surveys and soil cores, among other things.

No one from the public testified on the matter, but a representative from the law firm McCorriston, Miller, Mukai, MacKinnon requested a contested case hearing later in the board’s meeting. The firm represents Pflueger Partners, one of the Kaloko reservoir’s owners and a party to a number of lawsuits that were filed in the aftermath of the collapse.

Although Pflueger Partners and reservoir co-owner Mary Lucas Trust provided access to the site for the first inspection, they have not done so for the second.

“They have not agreed to do so in connection with the Phase II, apparently because they are concerned about how the Phase II may be used in ongoing litigation concerning the loss of life and property destruction caused by the dam’s partial failure, The dam and reservoir are operated by Kilauea Irrigation Company, Inc., under a Water Rights Agreement between it and the trust,” a January DLNR report states.

Even so, the Dam and Reservoir Safety Act of 2007 “empowers the Board of Land and Natural Resources to enter upon private property of the dam or reservoir as may be necessary in making, at the owner’s expense, any investigation or inspection authorized by Chapter 179D” of Hawai`i Revised Statutes. That law, relating to dams and reservoirs, was passed specifically in response to the Kaloko tragedy.

According to a November 2007 report based on the initial site inspection at Kaloko, a follow-up is necessary. The report concluded, “Although the Kaloko Reservoir dam appears to be stable at this time, a better knowledge of the dam structure is essential before a rational decision could be made about its stability and safety…. It is our opinion that an additional in-depth study and discussions regarding the stability of the Kaloko Reservoir dam structure is necessary before any reasonable professional judgment can be made.”

At the January meeting, DLNR chief engineer Eric Hirano asked the board to approve enforcement of the state’s right to enter private property to conduct surveys and authorize and direct the department, its agents and consultants to “utilize physical means of opening locked or other blocked access ways to the dam as deemed necessary, should the owner fail to provide access, authorize the chair, with the assistance of the Department of Attorney General, to collect from the landowners expenses of the Phase II investigation, and authorize the chair to initiate penalties, fines or other charges in accordance with Chapter 179D.”

Deputy attorney general Bill Wynhoff said that the final Phase II report will be a public document.

Board member Johns asked whether the attorney general’s office had determined whether, given the ongoing litigation, Chapter 179D might be tantamount to asking the landowner to abridge his right to avoid self-incrimination.

“If you already solved the public safety issue back then…what are you doing now? Are you overreaching for litigation advantage?” Johns asked.

Wynhoff responded that the statute had been reviewed by the AG’s office and that, with regard to the public safety issue, “We haven’t solved the problem. When we went in there originally, it was really fast.”

Hirano said Phase II will require topographic surveys to calculate the slopes of the embankment, as well as soil samples. The consultant, Earth Tech, will also do a hydrologic analysis, he said.

Hirano also noted that there may be a stream that is feeding the reservoir that was not a registered diversion with the Commission on Water Resource Management.

The board unanimously approved Hirano’s recommendations.

* * *
Eucalyptus Replaces Albizia
In Planned Biomass Farm

Two months after the Land Board and several east Kaua`i farmers objected to a proposal to plant invasive albizia trees for use in a nearby energy plant, a revised project using different tree species was approved, in concept, by both groups.

At its January 11 meeting, the Land Board approved in principle the issuance of a revocable permit to Green Energy Team, LLC, for an estimated 1,000 acres of state land at Kalepa, Kaua`i, subject to the development of a co-existence plan with the farmers and ranchers already using the land. The board also approved in principle the transfer of 6,700 acres of DLNR land at Kalepa, formerly leased to the Lihu`e Plantation Company, to the state Agribusiness Development Corporation. (In a separate item, it also approved the transfer of Hawai`i island’s Ka`u irrigation system to the ADC.)

Last November, the DLNR’s Land Division had recommended that the board approve a revocable permit to Green Energy for 2,160 acres at Kalepa, on which the company would plant albizia trees, which would be chipped and burned in a nearby plant. Problems quickly arose with permittees already on the land, and after several of them testified against the project in November (as did staff with the DLNR’s Division of Forestry and Wildlife), the Land Board deferred the matter and ordered the Land Division and the ADC to work toward a solution with the existing permit holders and Green Energy.

By the Land Board’s January 11 meeting, the parties had met three times and Green Energy had agreed to harvest existing albizia trees on state land for ten years and plant either Eucalyptus urophylla or E. grandis on just 1,000 or so acres of Kalepa lands. Most of the area’s farmers and ranchers, collectively known as the Kalepa Koalition, agreed to help identify the most appropriate acreage for tree planting, and the DLNR had agreed to pursue transferring the entire agricultural area, totaling 6,700 acres, to the ADC. Once the terms and conditions of Green Energy’s revocable permit and the transfer to ADC are worked out, both items will be brought to the Land Board for final approval.

— Teresa Dawson

Volume 18, Number 9 March 2008

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