In a rebuke to the administration of Governor Linda Lingle, the Natural Area Reserve System Commission rejected a proposal to allow a kayak concession in the very first unit of the system – ‘Ahihi-Kina’u, on the South Maui coast.
The reserve, along with neighboring Keoni’o’io (also known as La Perouse Bay) is rich in natural resources and historic features. Lately, visits to the area have grown exponentially as tourists, armed with the latest edition of Maui Revealed, bathe, snorkel and kayak in the pristine waters. Kayak tour operations in the area have grown as well, with most launching from unencumbered state land in Keoni’o’io, stopping to snorkel in one of two small coves in the ‘Ahihi-Kina’u reserve, and finally landing just outside the reserve boundary.
NARS rules do not allow commercial use without a permit. For more than a year, commissioners and environmentalists have watched in growing dismay as the Department of Land and Natural Resources, whose Division of Conservation and Resources Enforcement is charged with policing the reserves, claimed that the ban was unenforceable. Last year, behind the commission’s back, DLNR director Peter Young and his deputy, Dan Davidson, took the extraordinary step of meeting with commercial kayak operators in an effort to get them not to respect NAR rules, but to abide by a set of self-imposed rules governing how, where, and when to take their customers. Meanwhile, the NARS Commission set up a subcommittee to recommend a policy on commercial use in reserves statewide.
The two approaches diverged radically. The administration path led to the concession proposal; that taken by the NARS committee led to a recommendation for a “temporary kapu” (ban) on all public activity, not simply commercial activity, at ‘Ahihi-Kina’u until a management plan had been approved, “appropriate infrastructure” installed, monitoring protocols were in place, and enforcement could be assured.
On April 5, the commission considered both approaches. Toward the end of the meeting, however, when commissioner Sheila Conant moved to adopt the recommendations of the subcommittee, deputy attorney general Linda Chow advised that the commission could not vote on them, since the published agenda did not indicate that the subcommittee’s report would be acted upon. The draft concession plan had no such impediment to action.
Yet notwithstanding the heavy push by DLNR staff to win approval of the concession plan, the commission was unmoved. In the end, it was rejected on the vote of seven members. Two commissioners dissented – Davidson and Scott Derrickson of the Office of Planning, both representing Lingle appointees. A third state government appointee, Patrick Conant from the Department of Agriculture, abstained.
Full Court Press
Speaking in favor of the concession proposal was Davidson, who had dragooned DLNR staff into the fray as well. With DLNR chief Young observing silently from the rear of the conference room, Mike Buck, head of the Division of Forestry and Wildlife, presented the concession plan to the commission. Dave Gulko, a coral reef ecologist with the DLNR’s Division of Aquatic Resources, explained how the delicate reef organisms could co-exist with the level of activity anticipated by the concession.
Buck, who told the commission he “actually volunteered to make this presentation,” noted that a recent grant from the Hawai’i Tourism Authority has allowed portable toilets to be placed in the reserve and the hiring, expected by June, of two “rangers” (although they would not have police powers). In addition, he noted the DLNR had established (though not with NARS Commission input) an ‘Ahihi-Kina’u-Keone’o’io advisory committee.
“Obviously,” Buck said, “I don’t think you should reject the proposal. I think it’s a reasonable proposal. There’s biological underpinnings to it. It will provide some income for both management of state parks and the Natural Area Reserves. And I think it’s a limited proposal.” With just 36 people per day allowed on the kayak tours, he said, the impact of commercial use was minimal compared to “the impact of public use that’s not controlled.”
But the commission was confused by Buck’s presentation. Would the number of kayakers allowed daily be 36, as Buck said, or 72, as was indicated in the draft concession plan? Davidson clarified that the number was 72, involving two trips, with a maximum of 18 kayakers (including guides) per trip, twice a day to each of two coves.
Commissioners also were seeking specifics on the distribution of income. The draft plan included a proposal to set aside to the Division of State Parks the now-unencumbered land at Keone’o’io. Although Buck said income from the concession would support both State Parks and NARS, neither he nor Davidson could give an estimate on the amount of revenue a concession might generate or how the funds would be divided.
Despite the lack of specifics on income, Buck said the kayak tour vendors would be expected to charge a premium for customers going into the reserve – a comment that elicited sharp gasps from several of the kayak operators in the audience. “If allowed,” Buck said, referring to the concession, “this would be the premier kayaking [experience] in all of Hawai’i, so I think the upset price should be at a level that would recognize that… Whatever they’re charging now should probably be increased.” (A quick check on kayak tours advertised on the internet shows the per-trip charge is between $85 and $100 per person.)
Commissioners were generally frustrated by the vagueness of the DLNR proposal. “In terms of direct dollars, resources that can be put into management of ‘Ahihi-Kina’u, I can’t imagine that [revenue from the concession] would be very much,” said commissioner Jim Jacobi, a biologist with the U.S.G.S. Biological Resources Division on the Big Island. “I can’t understand why a feasibility study with at least some ballpark figures is not available.”
‘Eyes and Ears’
Another sore point with the commission seemed to be the fact that the DLNR was looking at just one part of the problem. “There’s other commercial use going on,” Jacobi said. “Why are we focusing only on kayaking?”
Buck replied that kayaking “is just the one in front of our face right now,” attracting “lots of public interest.”
“Based on the amount of issues involved,” he continued, “I’m comfortable taking a crack at this one.” The concession would give kayak companies “a vested legal limited commercial use” and would “bring in more allies.”
The idea that the concession operator would be “eyes and ears” for the DLNR, keeping out illegal operators, was raised not only by Buck but by every DLNR staffer speaking in support of the proposal as well as several kayak tour operators, who, although they admitted they’d been operating illegally for years, repeatedly stated that enforcement at ‘Ahihi-Kina’u would only be helped by their presence.
“We’ve asked for some time that there be a good permitting process in the area to control scofflaws, people doing things outside the rules,” said Brian Yesland, a tour operator.
But commissioners were openly skeptical about the sudden law-and-order stance of the department as well as the kayakers. One of them asked Yesland, “You talk about a permitting system, but are you aware you’re violating the rules?” (Yesland responded that he was indeed aware of that.)
“Nobody’s ever done any enforcement, so what’s the guarantee that there’s going to be any enforcement” with the concession in place, commission chair Annette Ka’ohelauli’i said in explaining why she intended to vote against the concession proposal.
Davidson was asked by Derrickson if the DLNR had “a commitment to enforce, from this point forward, both at ‘Ahihi-Kina’u and adjoining areas, this concession agreement as well as all other existing, legally enforceable rules and regulations?” His response did little to assuage concerns:
“We’re trying to get a handle on the single most problematic activity first. As we’ve told you and others repeatedly, we think the concession agreement is a way to reward whoever is going to do it right and absolutely prohibit and stop everybody else period on the commercial kayak side… So the commitment on the other commercial issues is to work as hard as we can on it and to do the very best we can… We will very much assist commercial kayak enforcement issues and will give our DOCARE people what they need.”
Davidson went on to say that enforcement of what is now a de-facto ban on commercial use of unencumbered state land, such as that at Keone’o’io, had been delayed by the public’s negative response to the draft rules that the DLNR floated earlier this year. “One other piece of the [enforcement] puzzle is what we call the unencumbered rules,” he said. Approval of the draft rules “wasn’t as quick as we thought it might be. People raised concerns that have to be addressed.”
A dozen or more people from Maui had flown to Honolulu to testify before the commission on the subject of the use and abuse of ‘Ahihi-Kina’u, while Representative Joe Souki walked over from the Legislature to add his voice to the opposition. “I’m opposed to kayaking,” he said. “I’ve seen the area being soiled. Defecation, urine, all over the place. This is a natural area reserve. The water should remain pristine. It should not be disturbed…. I urge you, listen to the people of Maui.”
Apart from the kayak operators using the reserve, almost all the other Maui residents who testified were vehemently opposed to administration’s plan.
Kahu Charles Kauluwehi Maxwell gave the commission a petition with 554 signatures of people opposed to the concession. ” ‘Ahihi-Kina’u is not a place for ecotourism,” he said, noting its many sacred areas. The road through the area should be closed, he added, and Keone’o’io should not be given to State Parks. “If you approve and allow limited commercial activity in this area, the kupuna, all the Hawaiians, and people of Maui who want this place protected will close it down by picketing and protesting at the entrance.”
Some of the most affecting testimony came from Dino Ventura and John Lu’uwai, whose families have lived in the area for generations. Ventura has his own kayak tour operation, which he runs out of Makena Landing. “A lot of these companies behind me,” he said, referring to the commercial operators running in the reserve, “they’re doing their best… I just think they’re doing it in the wrong place.”
Ventura asked for enforcement – not only of rules against commercial tour operators, but of the prohibition on camping. Homeless people were living in the reserve, he said, including one who camped in a bus. “If you can’t enforce that, I don’t know how you’re going to enforce anything else,” he said.
Both Ventura and Lu’uwai noted that their own families had stopped fishing in the area once it was set aside as a reserve, even though they had fished in the area for subsistence purposes for generations. Said Lu’uwai, whose family has since obtained a special use permit allowing subsistence fishing, “My family had to apply to the state and begged the state to go in there for subsistence gathering… There’s guys down there now that poach. There’s not enough enforcement.”
His approach to the problem? “A gate needs to be put up and no one allowed in. Completely. That’s why it is a reserve and must be maintained as a reserve.”
Three Maui County elected officials weighed in as well, with their testimony being read by representatives. All three – Mayor Alan Arakawa and council members JoAnne Johnson and Wayne Nishiki, who represents the area – opposed the DLNR plan.
Following the public testimony, commissioner Sheila Conant, a professor of zoology at the University of Hawai’i, made a motion that the commission not accept the concession plan. Davidson at once indicated he would vote against the motion. “We’ve been working on this for about a year,” he said. “It’s based on the science, and it’s not a question of starting from scratch. Starting from scratch, the issue of commercial use in the area might have a completely different outcome. Our goal in inheriting an out-of-control commercial situation is to improve it and make it better consistent with protection of the resources. So I’ll certainly vote against this motion.”
Commissioner Neil Evenhuis, an entomologist with Bishop Museum, saw the plan as being in direct conflict with the “charter of the NARS Commission.” “I believe I have to maintain my integrity as a commissioner and to vote in favor of the motion.”
Jacobi summed up his opposition to the plan. “I have not heard any convicing information that makes me feel that a commercial use permit will either provide a better system or situation for enforcement or for funding – two ideas that had been attached to this.”
After the vote rebuffing the DLNR plan, Sheila Conant made another motion – this time, to have the commission formally request the DLNR to “make enforcement of rules … in ‘Ahihi-Kina’u Natural Area Reserve a high priority for DOCARE staff,” “to start working with Maui County to decrease public use of the natural area by limiting access to it,” and finally, to have the matter of whether to limit public use at ‘Ahihi-Kina’u taken up at the next commission meeting, which would be held on Maui.
So emotional she could barely utter the words, Conant spoke in favor of her second motion: “First, let me say that I think it is appropriate to start working with Maui County, just as the administration started working with commercial operators… It is our No. 1 job to protect the resources. DOCARE is not enforcing the very clear Natural Area Reserve System regulation against commercial use. I was very convinced today, when I heard from people who live either in the reserve or very close to it, who respect the rules. The Lu’uwais have not fished in this reserve for 30 years except when two special use permits were approved.
“The commercial kayak operators, well intentioned as they might be, are not respecting the rules. And I have an ethical problem with that. I really feel – and this is hard for me to say – it almost seems as though the administration is promising to enforce regulations only if we approve commercial use. And the reason I say that is that so many people from DLNR have said it would be so much easier to enforce the rules if we have a permit. I fail to see the difference between enforcing the very clear regulation that there should be no commercial use and enforcing a special use permit to do commercial use.”
The motion passed without dissent; Davidson alone abstained.
Gary Moniz, head of the DLNR’s Division of Conservation and Resources Enforcement, said in mid-April that, following the NARS Commission vote, he would be meeting with Maui DOCARE staff to “get the ball rolling.”
On April 17, the department announced in a press release that 10 DOCARE officers had begun enforcing the prohibition on commercial activities not only at ‘Ahihi-Kina’u, but also on unencumbered state land at Keone’o’io.
Young was quoted in the press release as saying that if violations occur, “we anticipate taking them through an administrative process of the Land Board, however we also have the option to take violations through a criminal process in the courts.”
– Patricia Tummons
Expansion Proposals Linger In Young’s Office
Last August, NARS Commission staff in-formed the commission that proposals to add new reserves at Hono ‘O Na Pali on Kaua’i, Kanaio on Maui, and Poamoho on O’ahu were ready to be brought to the Land Board, which will ultimately decide whether or not to expand the NARS. But before the Land Board sees any proposal, the DLNR administrator or his deputy must sign off on it.
In January, NARS staff forwarded its recommendations – to add 650 acres at Hono ‘O Na Pali, 490 acres at Kanaio and 1,300 acres Poamoho – to DLNR director Young’s office for approval, but he has yet to let it go to the full board for a vote. When asked if the proposal will be heard by the Land Board any time soon, Young stated, “It is being reviewed – timing is unknown.”
— Teresa Dawson
Volume 14, Number 11 May 2004