Board Talk: `Ewa Sand Berm; Kealakekua Kayak Tours; Ha`ena Vacation Rentals; Kahala Beach Armor

posted in: Board Talk, October 2012 | 0

Board Grants Contested Case on Kaloi Gulch Berm Project

The Land Board has granted a contested case hearing to two O`ahu seaweed gatherers seeking to preserve a sand berm at the mouth of Kaloi Gulch in `Ewa that they say filters stormwater runoff and protects the limu beds they rely on from pollutants.

Haseko `Ewa, Inc., the Department of Hawaiian Home Lands, the University of Hawai`i, and the City and County of Honolulu have proposed lowering the berm to increase the gulch’s drainage capacity, which will allow them to develop lands currently used or slated for retention basins. In March, the Land Board approved a Conservation District Use Permit for the project, despite testimony from native Hawaiian cultural practitioners Michael Kumukauoha Lee and Henry Chang Wo that losing even a portion of the berm could harm the famed native limu beds of `Ewa. Chang Wo, represented by the Native Hawaiian Legal Corporation, and Lee requested a contested case hearing.

At the board’s September 14 meeting, Department of Land and Natural Resources’ Office of Conservation and Coastal Lands administrator Sam Lemmo first noted that in making its March decision, the Land Board failed to make specific findings regarding traditional and customary native Hawaiian rights as required by a 2000 Hawai`i Supreme Court decision, Ka Pa`akai O Ka `Aina v. Land Use Commission.

Lemmo gave the board two options: either deny the petitions, but reconsider the March decision and issue additional findings regarding traditional and customary native Hawaiian rights, or grant a discretionary hearing, with Chang Wo and Lee as parties, then decide whether or not the CDUP should stand. The hearing would be limited to identifying traditional and customary rights practiced in the permit area, the extent to which such rights may be affected by the permit, and what feasible, protective actions, if any, should be taken.

Lemmo recommended that the Land Board defer making a decision on the contested case hearing and hold a discretionary hearing.

Although Lee thought the idea of a discretionary hearing was brilliant, since it might save the department the expense of contested case and/or court hearings, he argued that there is no question he would have standing in a contested case hearing.

He pointed out that he was granted standing in a related contested case in 2008. “I’ve already done this dance,” Lee said.

To NHLC attorney David Frankel, the deputy attorney general’s advice to the OCCL that a contested case hearing was not required in this case was “a really radical, new position.”

“It sets back law in the state 30 years,” he said. “The agency is telling you when traditional and customary practices are involved …. no contested case hearing is required and the only entities that have a right to [one] are landowners when talking about a CDUA [Conservation District Use Application]. That is wrong.”

Frankel pointed to a case where Hawaiian Electric Company proposed building a dam on Honoli`i Stream on the Big Island.

“Honoli`i is the only real surf spot in the Hilo area,” he said. Surfers asked for a contested case hearing then and won. “Under the AG’s [attorney general’s] analysis, they would not have had a right to a contested case hearing. We would have a dam there today.”

Frankel said he was amazed how often in the last several years the Land Board has denied a contested case hearing “when the law clearly requires it.”

“In this case, you have multiple practitioners engaged in traditional and customary practices. This board has conducted two contested case hearings already regarding discharges in this area; the first went to the Supreme Court,” he said.

Frankel cited a peer-reviewed study on the harmful effects stormwater runoff has on `Ewa Beach’s native algae abundance and diversity.

“Your staff clearly hasn’t read it. You need this kind of information before making a decision,” he said.

Frankel, Haseko attorney Yvonne Izu, and the University of Hawai`i attorney Lisa Bail all said they thought the discretionary hearing could be a waste of time.

If, after the discretionary hearing, Lee and Chang Wo are still able to get a contested case hearing, “we might be duplicating some effort here,” Izu told the board.

A discretionary hearing would take a minimum of six months to complete, Lemmo said.

“If you think the court’s just going to laugh at you and say do a contested case hearing, that’s fine. … We’re not necessarily going to agree there’s a right [to one],” Lemmo told the board.

Big Island Land Board member Robert Pacheco said he was concerned about Lemmo’s recommendation to give Chang Wo and Lee standing in a discretionary hearing, but not in a contested case hearing.

“What’s the difference there, really?” he asked.

“[The discretionary hearing] is a fact-finding tool to gather information for the board to make findings regarding the Ka Pa`akai analysis. The standing issue is a whole separate issue,” said deputy attorney general Linda Chow. (Ka Pa`akai strengthened the responsibilities of state agencies to protect cultural rights.)

“It sounds like the quickest way to decision making is to deny a contested case hearing,” O`ahu Land Board member John Morgan said. But after discussing legal issues in executive session, the board unanimously approved a motion by Morgan to approve both contested case hearing requests.

Hapa Road

Frankel’s arguments that the Land Board must grant a contested case hearing to those whose rights to exercise their traditional and customary practices are affected by a project failed to sway the Land Board in a separate item on its decision in January to grant an easement to the Eric A. Knudsen Trust over a road in Po’ipu, Kaua`i.

The trust wanted the easement across the historic Hapa Road — a popular hiking trail — to provide highway access to its Villages at Po’ipu subdivision. Frankel’s client, Theodore Blake, opposed the easement, claiming that providing vehicular access across the trail would adversely affect Blake’s traditional and customary practices, as well as his recreational, historic preservation, and environmental interests. Blake testified to the Land Board that he had hoped to restore the trail’s rock walls.

In a report to the Land Board, the DLNR’s Land Division included an analysis provided by the Department of the Attorney General of why Blake was not entitled to a contested case hearing. The report stated that Blake had not identified any property interest that would rise to the level of an entitlement and that the easement did not affect his rights, duties or privileges.

DLNR Land Division administrator Russell Tsuji suggested that the recent Hawai`i Supreme Court decision that found that kuleana landowners and native Hawaiian cultural practitioners in West Maui were entitled to a contested case hearing on interim instream flow standards did not apply in this case.

“In the `Iao water case, people were kuleana landowners, asserting kuleana water rights. That’s separate and apart from native Hawaiians for traditional and customary uses. … That’s more similar to interest in aesthetics. … It doesn’t rise to a property interest,” he said.

“We obviously disagree with your analysis,” Frankel said, noting that the court’s findings in the Maui water case did not rely solely on property ownership, but included people engaged in traditional and customary practices.

“It’s not a one-way street [where] the landed, rich and powerful are the only ones that have a right to a contested case hearing. Our system of government is not so one-sided as that,” Frankel said. “Native Hawaiians practicing traditional and customary rights have a right to a contested case hearing.”

After an executive session, the Land Board unanimously approved the Land Division’s recommendation to deny Blake’s contested case hearing request.

“The substantive issues are different,” said board member John Morgan before the vote.

* * *

Kayak Company Loses Kealakekua Bay Permit

On September 14, the Land Board revoked the landing permit for Hawai`i Pack and Paddle, LLC. The action against the Big Island company follows an incident on July 4, when a teenager on a company tour was swept by waves into Kealakekua Bay. His body was never recovered.

The company was one of only four commercial kayak tour companies to receive a revocable permit in 2006 to land and launch tours at Ka`awaloa Flats in Kealakekua Bay Historical Park. The permits were an attempt to control overuse of the park and included several conditions to protect its sensitive cultural and natural resources, as well as public safety.

On the day of the incident, the company violated three of those permit conditions. Its tour group exceeded the number allowed on a single trip; the group spent more time at the flats than is allowed, and, most importantly, it strayed about a quarter mile from the designated hiking area.

Under the permits, guided tourists are allowed to land at Ali`i Point, traverse a trail to the Captain Cook monument, then leave. On July 4, however, some members of a mainland group of teens that was also accompanied by a Colorado-based tour company hiked to tide pools near the ocean’s edge, where two boys were washed away by a strong south swell. A Pack and Paddle guide managed to rescue one of them. The other, Tyler Madoff, is presumed dead.

O`ahu Land Board member John Morgan asked whether flouting permit conditions is a regular occurrence among the Kealakekua Bay kayak operators, or was a “one-off kind of thing.”

Because the parks division relies solely on the honor system at Kealakekua Bay, State Parks assistant administrator Curt Cottrell said he couldn’t say.

Cottrell added that while some of the violations seemed minor, his division wanted to send a message:

“Our [revocable permit] holders need to know, even though we cannot monitor, when we get knowledge, we need to take action. [Some feel] once they’re in, they’re in. … That’s something that’s partially devastating this division,” he said, adding that the division may allow the three other kayak permits to expire at the end of the year so the department can work on a comprehensive solution to overuse of the park.

Attorney Bob Frame, representing Hawai`i Pack and Paddle, asked for a deferral to “sort out all the factors surrounding this.” The company’s position is it had no choice but to deviate from the trail “because of the actions of their client,” he said.

Leaving the designated area was “something out of the norm for this company and something they argued against,” Frame said.

Big Island Land Board member Robert Pacheco asked how the teens knew the tide pools were worth seeing.

“I can’t answer that,” Frame said.

Pacheco moved to approve Cottrell’s recommendation to terminate the permit, but offered Hawai`i Pack and Paddle the opportunity to request reconsideration no later than the Land Board’s first meeting in October.

At-large board member David Goode added that it was important the company stop conducting tours immediately.

“Staff said they don’t have the resources to enforce [and] we have to trust. It’s clear that trust has been broken,” he said.

The board unanimously approved Pacheco’s motion.

* * *

Board Fines Owners of Ha`ena Vacation Rentals

“If you believe everything on the internet is true, Elvis is alive and Obama was born in Kenya,” attorney Randy Vitousek told the Land Board at its September 14 meeting. That day, Vitousek disputed the DLNR Office of Conservation and Coastal Lands’ use of internet site postings as proof that his clients are operating vacation rentals illegally in Ha`ena, Kaua`i.

Vitousek represents Gary, Paraluman, Ligaya and Apolonia Stice, who own a property advertised on the Vacation Rental by Owner website as “Kahelelani,” and David Kuraoka, whose “Makana Lani” home is also advertised on the same site. The OCCL recommended fining the Stices $15,000 and Kuraoka the same amount. $15,000 is the maximum allowable penalty for a single Conservation District violation.

The Stices were part of a group who received cease and desist orders from the OCCL in 2007 to stop using their homes in Ha`ena as vacation rentals because their Conservation District Use Permits include conditions prohibiting such use. The Stices, among others, sought a deviation from those permit conditions, but were denied. They then sought a contested case hearing, but later withdrew their request.

“Despite this, [Gary] Stice continues to use his single family residence as a vacation rental,” OCCL administrator Sam Lemmo told the Land Board.

Kuraoka was not part of the group that sought permit deviations in 2007. However, Lemmo said, he received a CDUP in 2006 to build a single-family residence with the express condition against vacation rentals.

“His attorney said his client would comply with all of the conditions,” Lemmo said. “My point is to highlight the willfulness.”

In both cases, Lemmo said he had a lot of evidence, including TripAdvisor reviews, that the properties were being used as vacation rentals.

Vitousek requested a contested case hearing for both cases.

“Lemmo uses ‘evidence’ a little bit loosely. Printouts from internet? … It proves somebody advertised something. … You haven’t authenticated who downloaded this, where it came from,” Vitousek said.

“Are you denying they’re renting it out?” Big Island Land Board member Robert Pacheco asked.

“I’m denying it’s a violation,” Vitousek replied.

Pressing the issue, at-large board member David Goode warned Vitousek, “I’m going to make a reservation tonight when I get home.”

Lemmo assured board members that his evidence consisted of more than just internet research and included interviews with people.

“We’re not a court of law. I’m comfortable moving forward. I can’t believe there are some hackers up there putting this on the internet to get somebody in trouble,” Pacheco said.

“For whatever it’s worth, I’m looking at it right here. I’m about to press send,” Goode told Vitousek, holding up his smart phone.

“Quite frankly I’m up for a maximum fine. And if you lose [the contested case], you cover our costs,” Goode said.

The board unanimously approved Lemmo’s recommendations, which included the fine, as well as a requirement that the Stices and Kuraoka submit proof within 60 days that they have ceased using their properties as vacation rentals.

* * *

Kahala Erosion Control Must Be Removed

A Kahala beachfront corporate landowner has requested a contested case hearing over the Land Board’s decision last month to require the removal of an erosion control structure fronting its property.

The sand-filled bags made of biodegradable coconut fiber were meant to be a temporary measure, but three years after installation, the landowner — 4615 Kahala Ave. Corp. — has made no attempt at a long-term solution, according to Sam Lemmo, administrator for the DLNR’s Office of Conservation and Coastal Lands.

His office should never have approved a minor permit for the bags, which are now posing a hazard to the public and are impeding lateral access, he told the Land Board at its September 14 meeting. But because his office had forced the corporation in 2009 to remove hau and naupaka from the beach fronting its property, it allowed the bags to go in as a temporary stabilization measure until a long-term solution could be found.

But the office has received complaints about the bag pile, which, Lemmo contends, is being maintained by the landowner rather than being allowed to degrade. As a result, it’s causing erosion, in addition to threatening public safety, he told the board.

“People have to walk over or at the base of the structure. It’s very dangerous from my perspective,” he said.

Lemmo admitted that removing the bags will result in some erosion of the sand bank and landscaping on the property, but argued that the house, some 70-80 feet inland, will not be threatened.

“The property owner would likely suffer some loss of land, but everybody else in the state is suffering from the same problem, sand erosion. They don’t have the right to armor the shoreline at the expense of public,” he said.

Attorney Greg Kugle, representing 4615 Kahala Ave. Corp., argued that if the shoreline is allowed to erode, about a dozen 100-foot tall coconut trees and a hollow tile wall on the property’s edge will end up on the beach. (4615 Kahala Ave. Corp. is a company owned by the Honolulu consulate of the Republic of San Marino, a tiny, land-locked country in northern Italy.)

Contrary to Lemmo’s claim that the beach would eventually stabilize after some initial erosion, Kugle argued, “Our property will fall into the ocean significantly. [Erosion] doesn’t yet jeopardize the house, but it will.”

Kugle also argued that a nearby drainage pipe owned by the City and County of Honolulu is somehow taking sand from the beach and transporting it offshore.

Kugle said his client would be willing to contribute funds toward a beach nourishment project, but not unless or until the impacts of the pipe were mitigated first.

“We have retained experts; we are studying the effects of pipe,” he said.

Lemmo disputed Kugle’s claim that the pipe is causing erosion, telling the board earlier, “This is just not the case, flat out. If you look at shoreline recession maps by [coastal geologist Chip] Fletcher at UH, you would see some erosion signature. It’s not there. It’s a total red herring.”

He also assured the board members that should erosion ever threaten the house, the company can apply for an emergency authorization to install erosion control measures.

In the end, the board ordered the removal of the erosion control measures within 60 days. Removal would basically involve digging the bags up and slicing them open.

Teresa Dawson

Volume 23, Number 4 — October 2012

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