Board Talk

posted in: Board Talk, September 2013, Tourism | 0

Land Board Finds Three Kayak Vendors Guilty of Illegal Use of Maui Beaches

After years of lax enforcement, the state Department of Land and Natural Resources’ Land Division has begun cracking down on commercial tour companies on Maui that use state land to stage gear and orient guests.

“The Maui District Land Office has received numerous complaints from the public regarding the overcrowding of shoreline areas due to vendors laying out kayaks or surfboards along the beach while awaiting the arrival of clients or during lessons and safety briefings being conducted prior to moving out into the water for tour or surf lessons,” states a June 28 DLNR Land Division report. It adds that the public is “now being forced out of these locations because of the impacts brought by the presence of unauthorized commercial operators.”This summer, the division brought three violation cases to the Board of Land and Natural Resources. All three companies were found to have broken department rules prohibiting commercial use on state land without a permit. But in two of the cases, the board eliminated the recommended fines. Two of those companies requested and recently received approval for a contested case hearing.

At the board’s June 28 meeting, Land Division administrator Russell Tsuji asked the board to assess a $1,000 fine and $420 in administrative costs against Island Adventure Tours, LLC (doing business as Keli`i’s Kayak Tours) which he said had been illegally operating at Olowalu State Beach Reserve.

Company owner Brian Yesland readily admitted that he been using the beach for the past 20 years, but denied that he was conducting any commercial activity.

“We use the area strictly for ingress and egress to the ocean,” he told the board.

Yesland has a permit to conduct his tours at the county’s park at nearby Ukumehame. But the park, popular with surfers, is too crowded, he said.

“Years ago, we started to move to Olowalu because it’s sparsely used. We are not running financial transactions there. We give a safety briefing and launch the boats. It’s no different from what we do at the beach park. We’re still crossing unencumbered [state] land. I don’t know why you want to create user conflict by moving us back [to the park],” he said.

He added that DLNR enforcement officers have only told him to keep his gear off the beach.

To then-Maui board member Jerry Edlao, it didn’t matter that Olowalu is less crowded.

“Over the years, maybe nobody really said anything, but it’s getting to the point DLNR is catching up to the issues going on. Now they’re looking at you. … I would suggest you go back to the county park, utilize your permit, and that way everybody is happy,” he said.

Rob Pacheco and John Morgan, the Hawai`i and O`ahu representatives on the board, seemed concerned that the case was only now coming to the board, five years after the initial incident. (Pacheco runs Hawai`i Forest and Trail; Morgan, Kualoa Ranch, both of which operate commercial tours.)

Pacheco also lamented the fact that the department’s rules allow for commercial activity with a permit, but there is no process that would allow a tour company to get a commercial permit for unencumbered lands. The DLNR quickly established a permitting system for beach weddings, he pointed out.

Tsuji countered that for commercial tour permits, his staff would have to evaluate the location and may have to conduct an environmental review. He also clarified that it is fine for tour groups to traverse the beach, but conducting operations there is not.

After discussing legal issues in executive session, Edlao moved to find that the company committed a violation, but forgo the fine and administrative costs. He added that he wanted the Land Division and the Division of Conservation and Resources Enforcement “to continue vigilance of commercial use of unencumbered lands.”

Edlao’s motion passed, but board members Pacheco and Morgan voted against it.

Pacheco said bringing a violation case five years late wasn’t reasonable. “This doesn’t work for me,” he said.

Morgan added that he hoped the department continued to try to find a solution. The commercial tour companies are providing a service, he said, “and it’s a worthwhile service. … I think it’s worthwhile to try to minimize conflict.”

Yesland requested a contested case hearing, which the Land Board granted at its August 9 meeting.

Olowalu Offender II

In 2011, DOCARE officials photographed South Pacific Kayaks & Outfitters and Tiki Team Adventures doing much the same thing as Keli`i’s Kayak Tours – setting kayaks along the sand and briefing customers. At the board’s June 28 meeting, Land Division staff recommended the same penalties: $1,000 fine, $420 in administrative costs.

Roger Simonot, owner of parent company KRS Investments, LLC, did not attend the meeting, but in a letter requested a contested case hearing.

Continuing the discussion from the previous case, Tsuji told the board that the DLNR’s top priority is preserving natural resources, and by law, it must also protect traditional and customary practices.

The shoreline and everything seaward “is held in trust by the state,” he said. “The Land Division is not out looking to commercialize the shorelines at all. Uses get scrutinized very carefully before being brought to board.”

He pointed out that the board had recently caused a stir when earlier this year it voted to allow the Four Seasons resort on Maui to preset chairs on the beach. Outraged community members quickly filed a lawsuit noting, among other things, that no environmental review of this use of state land had been done. The resort has since chosen not to use the easement provided by the board.

“There are people out there watching to make sure we staff and the board look out for the interest of the public, especially in the shoreline area,” he said.

Should the board ever entertain the matter again, Tsuji said an environmental assessment would need to be done and, at least, a determination as to whether a Conservation District Use Permit would be required.

Looking at Olowalu beach, “it doesn’t look like there’s a lot of room for a commercial operation,” he said.

Maui land agent and former DOCARE officer Larry Pacheco added that several vendors with county permits to operate at Ukumehame use Olowalu instead because it’s not only less crowded, but is less windy and has more reef.

“Residents across the street complain tourists are there at 7 a.m.,” he said. “The general public goes there. If [tour operators] have 10 kayaks lined up, there’s no place for families to go.”

And the tour companies know they’re not supposed to be there, he said. His office partnered with the county to conduct a presentation for operators explaining the shoreline boundaries of county land, private property, and unencumbered lands.

“In class, we tell them, if they do everything on private property, but traverse the shoreline, that’s okay. Once they use the shore for their commercial operation, that’s a problem,” he said.

Board member Rob Pacheco asked whether the guests were showing up in their own cars.

“Their own cars and even buses are showing up. It varies. It depends on the company. Some of them have tour vans,” Larry Pacheco said.

Again, the time lag between the violation and the recommendation to the Land Board bothered the Hawai`i board member. “Why now is this coming to us?” he asked.

The Maui land agent blamed a lack of staffing, noting that there are only two land agents for all of Maui County. He added that DOCARE held back on enforcing because there is no process in place to get a commercial tour permit for the beach.

Rob Pacheco asked whether it would be beneficial to try to work with the county on a joint permit for these operators.

Board chair William Aila said that option already exists. “We could issue a permit, but we choose not to,” he said.

Jimmy Gomes, who has since replaced Edlao on the board, testified that Olowalu may not be the best place to direct tours.

“From road to ocean, I don’t think you have 60 yards. When it’s high tide, [even less],” he said.

According to Tsuji, controlling illegal kayak vendors is difficult with so little staff.

In the end, the board voted to approve staff’s recommendation. At a subsequent meeting, the board granted the company a contested case hearing.

Third Time’s a Charmer

At its July 26 meeting, the Land Division brought its third illegal kayak vendor case to the board. But this time, because the owner was contrite and promised to stop operating on Wailea beach, Tsuji recommended forgoing the proposed $1,000 fine, but not the administrative costs of $420. Should the company, Maui Ocean Activities, commit another violation, however, Tsuji recommended that the fine be reinstated.

The company had been operating adjacent to the area where the Land Board had agreed to allow the Four Seasons to preset chairs. Company manager Cardoza said he wasn’t aware he could not stage his kayaks on the beach.

“We just didn’t know,” said Cardoza, whose company operates out of the nearby Grand Wailea resort. “We were under the the impression it was business as usual.”

“Are you okay with administrative costs?” asked at-large member David Goode.

“What are you gonna do? … It’s the cost of ignorance,” Cardoza replied.

The board then approved a motion finding that the company had committed a violation. The board waived the $1,000 fine with the understanding that should the company commit another violation, the recommended fine would be higher.

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