Board Talk: Proposed Changes to Wildlife Rules May Prevent Rogue Introductions

posted in: Board Talk, December 2011 | 0

Under rules proposed by the state Department of Land and Natural Resources’ Division of Forestry and Wildlife, transporting or releasing introduced wildlife without a permit would be a petty misdemeanor.

In addition to a minimum fine of $100, first-time offenders would be fined $500 per bird or mammal released. What’s more, the Board of Land and Natural Resources could charge up to $10,000 for administrative costs, damages, and/or remediation. 

Repeat offenders could face more than $26,000 in penalties. If convicted of a petty misdemeanor, violators could also be sentenced to up to 30 days in jail.

Prompted by the confirmation this year that axis deer now roam parts of the Big Island, DOFAW has proposed new administrative rules to prevent future introductions of potentially harmful species.

A loophole in the division’s current rules allows the transfer of non-native wildlife between private lands, according to DOFAW administrator Paul Conry.

“[M]any very harmful species are not currently listed as injurious and the rules do not currently prohibit the introduction, transport, or release of those species,” a DOFAW report to the Land Board states.

“For instance, non-native axis deer are established on Maui, Moloka`i, and Lana`i, where they are well documented to cause significant environmental damage. … [I]t is suspected that their presence [on the Big Island] is the result of the purposeful introduction of those species,” the report states.

It adds that mongoose, which are absent from Kaua`i, are not on DOFAW’s list of injurious wildlife. Given the potential impact to indigenous bird species on the island, the report states, the rules “alarmingly” do not prevent the introduction of mongoose.

To address such loopholes, DOFAW struck the exception for game birds and mammals from the definition of injurious wildlife. It also added several animals, including the mongoose, to the list of injurious wildlife.

With regard to game mammals, the proposed rules would allow their introduction with the proper permits. DOFAW plans to strike the exception for game birds and mammals from the definition of injurious wildlife and add to its list “even-toed ungulates, except for game mammals.”

To address the release of game mammals, DOFAW added a new section that would ban the unpermitted release of any introduced wildlife where it is not already established. But to some, the qualification – “where they are not already established” – created yet another loophole.

In testimony, Mary Ikagawa, who works with the O`ahu Invasive Species Committee, wrote that the language was “an invitation to spread disease and parasites to existing populations.” 

“Under this draft rule, if some Big Island hunter finds a valley on Moloka`i with really big pigs that he thinks would improve the Big Island stock near his house, can he bring pigs from Moloka`i to the Big Island since feral pigs are already established there?” she wrote.

Volcano resident Patrick Conant, an entomologist, recommended that DOFAW develop an island-by-island list of injurious wildlife. And biologist Rick Warshauer, also from Volcano, asked the division to specifically designate axis deer and black-tailed deer as injurious wildlife.

“All species of wild ungulates in Hawai`i cause ecological and agricultural damage on all islands they occur on. There is no good reason to move them intra-island or between mountains inter-island. … If a species of wild ungulate does not occur on that island or is incipient there, it should be on the list for that island,” Conant wrote in his testimony, submitted in late October.

Conant and Warshauer also recommended that DOFAW: 1) make it illegal to hold or harbor introduced species; 2) remove axis and black-tailed deer from its lists of regulated game mammals to allow hunters to take as many of the animals as they want; 3) increase the proposed penalties; and 4) delete a condition in the existing rules that allows game control on large parcels (300+ acres) “only when it has been determined that public hunting is not a reasonable and appropriate method of control.”

“As we have seen with the decades-long court-ordered efforts to eradicate mouflon from Mauna Kea, public hunting, even when matched with unmotivated staff hunting, is ineffectual at control,” Warshauer wrote. 

The Land Board was to vote on DOFAW’s request to hold public hearings on the proposed rules on October 28, but had to defer the matter until November. The reason given was that the description of the item on the published agenda had been too vague.

At the Land Board’s November 11 meeting, DOFAW amended its proposed rules to address some of the concerns raised, deleting language allowing introductions where introduced species are already established.

“It was pointed out to us that we should prohibit the release of introduced species anywhere. We agree with that,” DOFAW biologist Scott Fretz told the board.

Conry said it is possible to obtain a permit from the Land Board (or its authorized representative), or the state departments of Agriculture or Health to release introduced species.

Maui Land Board member Jerry Edlao asked whether the rules prohibited breeding introduced animals, noting that on his island, “they’re breeding axis deer for hunting.”

Fretz replied that his division doesn’t regulate game mammals on private lands.

The board unanimously approved DOFAW’s request to hold public hearings on the proposed rules.

* * *

Senator May Escape Fine For Trespass, Damages

In late October, the Land Board fined a handful of men $300 to $400 each for possessing alcohol at Kane`ohe Bay’s `Ahu O Laka sandbar during Labor Day weekend. The board based the fines on administrative costs incurred by its Division of Conservation and Resources Enforcement.

The department must, at the very least, cover its costs in violation cases, Maui board member Jerry Edlao stressed at the time.

When it came to state Sen. Malama Solomon’s trespass on and damage to unencumbered state lands on the Big Island, however, the board applied no such standard.

In August, Solomon — vice chair of the Senate Committee on Water, Land and Housing — hired a bulldozer operator to grub agricultural lands she owns in North Kona for a planned breadfruit farm.

The operator crossed unencumbered state land to get to her property, damaging a historic cart path and other archaeological features along the way, according to a report by the Department of Land and Natural Resources’ Land Division.

Responding to an August 30 complaint by a neighbor, staff from the DLNR’s Na Ala Hele program and State Historic Preservation Division (SHPD) inspected the site, as did the department’s land deputy, Guy Kaulukukui.

In his October 28 report to the Land Board, Big Island Land Division agent Kevin Moore stated that bulldozing an access route over unencumbered state land would have required an environmental assessment and a Finding of No Significant Impact. 

“The EA process would likely have identified the archaeological sites and avoided the results that occurred in this case,” he wrote.

Under Hawai`i Revised Statutes, the Land Board has the ability to impose a fine of $5,000 per violation on public lands as well as administrative costs and damages. In addition to seven violations of historic preservation laws, the Land Division found that Solomon’s contractor incurred two violations of statutes relating to public lands: 1) driving a motor vehicle outside a designated road or path; and 2) damaging archaeological features.

The Land Board clearly had the authority to impose a fine, Moore wrote. Because Solomon had been cooperative during the investigation and committed to restoration, he recommended only that the board require her to remediate the damaged sites, which spanned bot
h public and private property, within six months and in accordance with a corrective action plan approved by SHPD. He added that the Land Board reserved the right to impose a fine should the restoration not be “timely completed” to the satisfaction of SHPD.

Solomon explained to the Land Board that there was “some confusion on the part of my contractor [Warren Matsumoto] and myself” regarding whether or not the path used was a public access road.

“They didn’t know who had jurisdiction. … They moved the pohaku [rocks] so they could get into the `aina. It was never our intention to blatantly destroy the wall,” she said, referring to one of the damaged sites.

She added that she was never instructed to preserve the sites on her property.

Since the incident, she has planted a barrier around a house site on her property.

“It’s really kind of small kine,” she said of the damages.

Kaulukukui agreed somewhat. He told the Land Board that the wall that had been damaged was “unremarkable.” 

“It’s the kind of wall I could build myself. There were two rock mounds that were impacted, no more than one row high. There was an interior habitation wall on state land that was impacted. One place where the wall already was disturbed, the makai side was disturbed by the bulldozer. I would tend to concur that we weren’t talking about remarkable features,” he said.

The Land Board unanimously and with very little discussion approved Moore’s recommendation.

Last month, Edlao, while discussing a proposed $18,000 settlement for coral damage around Molokini (see below), again hammered on the need for the DLNR to recover its administrative costs.

When asked his thoughts on the board’s decision not to fine Solomon, he said he went along with it because remediating the site will take “time and money on her part.” He also reminded Environment Hawai`i that should Solomon fail to remediate the damage within six months, “she will be back with a fine and administrative costs.”

* * *

Land Board Grants Hearings for New Legacy Land Rules

Last month, representatives from local land trusts lauded the DLNR for drafting rules to govern its Legacy Land Conservation Program, which, for the past several years, has funded the purchase of thousands of acres of lands and conservation easements throughout the state.

Some of the standards to be imposed on conservation agencies, however, may be a little too strict, they said. Under the rules as proposed, a nonprofit land conservation organization must obtain a conservation easement over any land bought with Legacy Land funds. What’s more, the organization must be accredited.

There is currently only one accrediting agency in the nation, the Land Trust Accreditation Commission, and only one accredited land trust in Hawai`i: the Hawaiian Islands Land Trust, which is the merger of the Hawai`i Island, O`ahu, and Maui Coastal land trusts.

“The challenge is this may have unintended consequences,” said Mark Fox, director of external affairs for The Nature Conservancy of Hawai`i. Directors of the Moloka`i and North Shore Community land trusts echoed his concerns.

Although TNCH may soon receive its own accreditation, the process is long and expensive, said Dale Bonar, executive director of the Hawaiian Island Land Trust.

“It’s a big hurdle,” he said.

“We don’t want to draft rules that have a chilling effect,” added Doug Cole of the North Shore Community Land Trust.

To ease matters, the state could develop its own accreditation process, said Paul Conry, administrator for the DLNR’s Division of Forestry and Wildlife, which administers the Legacy Land program.

With regard to ensuring that lands or easements purchased are conserved in perpetuity, Bonar said he thought the draft rules weren’t strict enough.

The rules state that the DLNR may monitor the awardee of Legacy Land funds “to determine the status of any resource values protected under the terms of the grant agreement,” and may require it to submit reports, photos, or other supporting documents.

Annual monitoring and reporting should be required, not optional, Bonar told the Land Board. “These are critical to our credibility,” he said, adding that nonprofit land conservation organizations are required by the Internal Revenue Service to do monitoring and reporting.

Rather than amending the draft rules to reflect the concerns raised, the Land Board voted to send them out for public hearings as DOFAW proposed.

* * *

DOD School Stays at Kulani, For Now

The state Department of Defense’s Youth ChalleNGe Academy may remain at the former Kulani prison site for a while longer.

In late 2010, after the prison closed, the Land Board decided to add most of the land — some 6,000 acres — to the Pu`u Maka`ala Natural Area Reserve. The remaining 600 or so acres would go to the DOD to be used for a military-style camp for troubled youth. 

The state Legislature later decided that the DOD prison site should remain with the Department of Public Services for use as a prison.

With the DPS currently without adequate funds to reopen the Kulani prison, the Land Board, at its October 28 meeting, approved a request by the DOD for a permit to continue running its academy there until it can find a new site.

The board also rejected contested case hearing requests from Michael Kumukauoha Lee, the Community Alliance on Prisons, and DMZ-Hawai`i/Aloha `Aina regarding the Land Board’s 2010 decision. 

* * *

DOFAW to Charge Hourly Fee for Conservation Plan Review

The DLNR’s Division of Forestry and Wildlife may now charge $50 an hour for any work related to habitat conservation plans (HCP).

With any HCP application, the division will discuss with the applicant the estimated processing time, DOFAW biologist Scott Fretz told the Land Board at its October 28 meeting. The board unanimously approved the fee.

The amount of time spent on a given application will be by mutual agreement with the applicant, Fretz said. “We modeled this off similar rules set up by [the Department of Business, Economic Development, and Tourism’s] renewable energy division. They were doing similar technical work.”

The fees will enter a trust fund that might eventually allow the division to hire additional staff, he said. A representative from Maui’s Kaheawa Wind Power supported the idea and said similar fees are not uncommon on the mainland.

“It’s nice to see the department covering expenses for a change,” said Maui board member Jerry Edlao.

At its November meeting, the Land Board approved incidental take licenses and habitat conservation plans for wind power projects on Maui and O`ahu.

The license and plan for the proposed 21-megawatt Kaheawa Wind Power II project on Maui cover the take of the Hawaiian petrel, the Newell’s shearwater, nene or the Hawaiian goose, and the Hawaiian hoary bat.

O`ahu’s Kawailoa Wind Power project, expected to produce 70 MW, may affect the bat and shearwater, as well as four species of endangered Hawaiian waterbirds.

* * *

Molokini Coral Damage Nets $19,000 Fine

The Land Board has finally closed the book on a 2008 violation case involving damages to 121 coral colonies that occurred when a sailboat ran aground at the islet of Molokini off Maui.

The DLNR’s Division of Aquatic Resources recommended that the owners of the Maka Kai be allowed to apply a $18,000 fine toward coral reef educational and outreach projects.

After a heated discussion about whether or not $3,183 in administrative costs were included in the $18,000 settlement amount, the board voted to impose an additi
onal fine of $1,000. Maui Land Board member Jerry Edlao, who wanted the full $3,183 added, was the sole dissenter.

Teresa Dawson

Volume 22, Number 6 — December 2011