Board Talk: Ala Wai, Electrofishing, Coral Coring, and Mauna Kea

posted in: August 2015, Board Talk | 0

Ala Wai Developer Dodges Lease Termination Again

If Honey Bee USA, Inc., fails to secure a new funding partner before the Board of Land and Natural Resources meets later this month, company representatives have said they’ll walk away from their lease to develop the Ala Wai boat harbor.

On July 10, the DLNR’s Division of Boating and Ocean Recreation had recommended that the Land Board cancel the lease due to the company’s failure to pay rent, post a performance bond, and remain free of encumbrances. The division had first sought termination in March for the same reasons, but deferred with the expectation that Honey Bee would cure its defaults and find the necessary financing to meet its development goals, which include a boat repair facility, a fuel dock, wedding chapels, a commercial center, and a world-class kayak training facility.

Honey Bee eventually did pay its back rent of more than $400,000, but the company immediately fell into arrears again. The funding partner Honey Bee had identified, Next Realty, backed out “and we still don’t have a bond and encumbrances aren’t cleared up,”DOBOR administrator Ed Underwood told the board on July 10.

Underwood acknowledged that Honey Bee had found a new potential equity partner and lender for the project, but did not back off his recommendation that the board terminate the lease.

Honey Bee consultant Deron Akiona asked the Land Board to defer its vote until the end of August and blamed the loss of Next Realty in large part on the lease terms giving the state as much as 50 percent of any profits on the sale of the development.

Those terms have “been an issue with every lender we’ve spoken with, with good reason,”Akiona said.

Even so, ICON Commercial Lending tentatively agreed in June to provide $35 million in construction funding in exchange for a 50 percent equity interest in Honey Bee. Should ICON back out as well, so would Honey Bee, Akiona said.

“If ICON does not come up with this funding by your August meeting, I will be more than willing to come to this board to pull the lease,”he said. “I‘ve been before four [Land] boards and four directors. …My patience is kind of run down.”

He noted that Honey Bee has paid the DLNR $1.6 million in development fees and lease rent —“$1 million more than the state would have gotten under the previous lease.”What’s more, he added, the company spent some $3.5 million in planning and improving the property, largely to accommodate DOBOR’s requirements that the development include a boat repair facility.

DLNR staffer Keith Chun, who is helping DOBOR oversee the lease, told the Land Board that the requirement to build a boat repair yard —a low-revenue use —forces other tenants that may occupy the development to subsidize it.

“If the lease is terminated, I would seriously reconsider that kind of low-revenue use in that part of Waikiki,”Chun said.

Under the current language of the lease, Honey Bee performed as required, but then got stuck with financial problems when its principal pulled out, Chun continued.

“It is what it is,”he said.

Chun seemed amenable to giving Honey Bee until August to secure its financing, but said he needed more information to vet ICON, which would eventually have to be added as a co-lessee.  “I would want at a minimum a detailed history of ICON, their experience, what other projects they completed,”he said.

Some of Chun’s requirements, such as requiring ICON to put its first round of funding —$12 million —into escrow by August 1, seemed too strict for some Land Board members.

“I don’t think we should be putting a whole bunch of constraints on before they even commit and scare them away,”said board member Stanley Roehrig.

Akiona stated that ICON paying $12 million in escrow by August 1 was simply not going to happen.

In the end, the Land Board agreed to give Honey Bee one last chance and deferred the matter until its second meeting in August.

Before the vote, Underwood said that should Honey Bee’s project not pan out, DOBOR would want to seek new development proposals for the old fuel dock, boat repair facility, and adjacent lands.

“Taking it to one entity is the way to go,”he said.

(For more information on this, see the Ala Wai item in our April 2015 Board Talk.)

 

***

Permit Allows

Rare Electrofishing

To allow the DLNR’s Division of Aquatic Resources to learn more about how electrofishing can best be used as a resource management tool, the Land Board granted a special use permit to researcher Michael Blum of Tulane University, who proposes to shock portions of about a dozen streams on O`ahu that are infested with invasive fish species.

“It’s not been used very often in Hawai`i. We would like more information on the effects of the tool for management purposes,”DAR acting administrator Alton Miyasaka told the Land Board at its June 26 meeting.

Years ago, Blum requested a permit to use electrofishing to assess native stream fish populations, but was denied and was forced to hand-net the fish. The only other electrofishing permit the Land Board has granted was to Robert Kinzie, who planned to test it in a wetland area as a potential way to control invasive frogs and fish.

In that case, Kinzie only managed to kill cane toads because the wetland was filled with vegetation, according to DAR staff.

Under Blum’s current proposal, he plans to clear by hand native species from sections of each stream before shocking it, then return them after the introduced species are removed. Blum said he is focused on taking out guppies, mollies, swordtail, and armored catfish. He said he expects to begin work in December and continue over the next three years.

“When you give the fish the shock, it reminds me of when I was young. One of my relatives got a shock to the head. How do the fish enjoy that?”asked Land Board member Stanley Roehrig.

Blum said the shock momentarily stuns the fish, adding that the extent of the effect depends on the fish’s size and physiology and the conductivity of the water.

“There is a possible collateral mortality,”he said. (All of the removed introduced fish will eventually be ground up and examined.)

Blum said similar work has been done in the Caribbean and Puerto Rico, with a high success rate post-removal.

DAR biologist Glenn Higashi explained that electroshocking native fish can kill them, which is why it’s not used here to assess fish populations.

“We know some o`opu (native stream goby), it does hurt them until they actually break their back,”he said.

“One of the reasons why we want to do a permit is to show the limits of electroshocking,”he continued. “We do not use electric shocking for assessment. We do snorkeling in the streams. When you electroshock, sometimes [the fish] sticks under the rock. They don’t have swim bladders.”

However, Higashi suggested there may be instances where electroshocking is more desirable than snorkeling.

“There are some places on O`ahu you don’t particularly want to stick your faces in,”he said, naming the Ala Wai canal in Waikiki as one.

“Because they’re willing to document what kind of currents, what kind of water chemistry and what kind of species it’s going to affect and how, we think it’s a very valuable thing for us to have done. We’re not really trained to use the equipment,”Higashi said of Blum’s research.

“For us, our use would only be for eradication purposes, not for assessment,”he said.

A couple of Land Board members expressed their reluctance to issue the permit, but voted in the end to approve it.

“I have strong reservations about this, but if it’s going to provide an opportunity to have our native species flourish more than they are, that would be a great thing,”Roehrig said.

Blum assured the board that he would work closely with DAR on the project.

“Our aim is to improve the populations of native fauna in the streams,”he said.

 

***

Scientists Study Effects

Of Climate Changes on Corals

It’s common for tempers to flare at Land Board meetings, given the controversial nature of some items that come before it, such as the development of telescopes on Mauna Kea. But it’s rare for Land Board members to tell testifiers to “tone it down” when discussing requests for research permits.

But that’s what happened at the board’s June 26 meeting. To assess historic effects of climate changes, Hawai`i Pacific University researcher Samuel Kahng had proposed collecting up to 15 large cores —up to four meters long —from coral colonies on O`ahu, Kaua`i, and Maui. The DLNR’s Division of Aquatic Resources had recommended approving a permit for the work, but wanted to include several conditions aimed at mitigating potentially adverse impacts of the coring.

Kahng argued that a number of those conditions were unnecessary, baseless, and showed an ignorance of coral biology.

DAR had added a condition requiring Kahng to photograph all cored areas for one year afterward to provide the agency with hard evidence of impacts. It also suggested that the photo documentation continue for three years. DAR staff explained that it only has anecdotal testimony from researchers on the impacts of coral coring. Generally, they say colonies have recovered, albeit slowly in some cases.

Kahng proposed to take cores 5.5 centimeters in diameter and one to four meters long. He planned to take five cores from each island, but DAR recommended he be allowed to take only two from Olowalu, Maui, because cores had already been taken from the area by researchers from the U.S. Geological Survey. Furthermore, the corals at Olowalu had suffered heavy impact from a bleaching event last year and the area is also affected by sediments, DAR staff stated.

In addition, DAR asked that Kahng not take cores between August and November, when sea surface temperatures are high and corals are more vulnerable.

Maui DAR biologist Russell Sparks crafted many of the recommendations and the agency’s report to the Land Board detailed his concerns about Kahng’s research, including the fact that the work would be done on colonies that are hundreds of years old.

Because he was on a research cruise, Sparks was unable to attend the June meeting. Even so, DAR acting administrator Alton Miyasaka said the division felt it necessary to bring the permit request to the Land Board because Kahng’s application had been under review for “a very long time.”

“We felt it was important to bring the permit to the board at this time so there would be some clarity for funding [and to decide] whether or not this project was even going to go forward,”Miyasaka said.

“What’s the value to the state for this project?”asked Land Board member Keoni Downing.

Miyasaka replied that the board’s previous chair, William Aila, “felt it was important for the state to get as much information on potential climate change impacts as soon as possible.”

In written responses to DAR’s concerns, Kahng stated that the cores will provide a historical log of temperature, salinity, nutrient input, and other environmental variables.

“Analysis of these historical trends would provide the Department with more information to better plan for climate change. Additionally, analysis of coral cores will lend information to determine the novelty or regularity of recent temperature events and the compounding impacts of anthropogenic activities,”he wrote.

Land Board chair Suzanne Case, formerly the head of The Nature Conservancy of Hawai`i, seemed more comfortable than DAR staff with the work Kahng proposed. Coring is not an unusual research method and has been done at Palmyra atoll (where TNC has a preserve), she said.

“Coral is a rock with living tissue. …The only living part of it is at the surface,”she said.

Kahng’s frustration with the whole review process showed immediately when it came time for him to testify.

“This has been reviewed for eight months. I have been responding to an unending litany of accusations and concerns. These concerns are not based in peer-reviewed science,”he said.

The risk that his coring would somehow seriously injure or kill a 400-year-old colony is minuscule, given that the area of live tissue harmed would represent only  .01 percent of the colony’s tissue, he argued.

“After one year of growth, that tissue will be replaced many times over. In 2.5 days, it will be replaced,”he said. He likened the coring’s effects on live coral tissue to taking a teaspoon of blood from a human or taking a branch from a tree.

“This sampling is done all over the world,”he said. “Climate change is one of the biggest issues facing our society. …We have no clue on what’s going to happen on a statewide scale. To say that this data is essentially worthless is bunk!”

At that point, Land Board member Roehrig said, “I’ve had a short fuse. I’ve been asked to tone it down. I ask you to tone it down a little bit.”

Kahng replied that the review process has been unprecedentedly long and he’s sent about 30 emails to DAR biologists trying to get his permit.

“I’ve provided responses any time there was a concern. Any time I asked for justification, no response. It’s been a one way flow,”he complained.

When asked how he felt about DAR’s proposed permit conditions, Kahng said that, at this point, he could live with them.

“I don’t think they’re based on the best available science, but I want to move on,”he said.

He did not, however, immediately agree to DAR’s suggestion that he photograph all of the cored corals for three years. He said he’s not funded for any follow up, so O`ahu is the only feasible area he could do it.

Board member Ulalia Woodside told Kahng that he’ll be working with his samples for a long time and advised him to have a care for the site he took them from.

“Part of that care should be to what we leave behind. I know you don’t have that funding yet. I think you’ll maybe be getting other funding,”she said.

“I’m fine with that. The only thing I ask is to be treated equitably and fairly,”Kahng replied.

Miyasaka said DAR could probably find some funding to hire Kahng to look at the coring impacts, but Kahng was still reluctant to commit.

Kahng noted that coral cores have been taken in the past and said that if the state wants to see the result, it can do that right now.

“Go take a picture,”he said.

The Land Board eventually voted to make the three-year follow-up a condition of the permit, but not before Roehrig urged DAR to get Sparks and Kahng to collaborate on a solution.

“When you get all stallions in the corral, they like to kick rather than to nuzzle. You gotta get them to work together,”he said.

Maui Land Board member Jimmy Gomes opposed the permit, in part, because Sparks had been unable to present his case to the board.

 

***

Land Board Approves

Emergency Rules for Mauna Kea

It was really all about controlling crowds while the $1.4 billion Thirty Meter Telescope (TMT) could is being built. And in the eyes of Ulalia Woodside, a member of the state Board of Land and Natural Resources, adopting emergency rules banning the possession of camping gear and barring public access to Mauna Kea at night wasn’t the best way to achieve that.

But she and Maui Land Board member Jimmy Gomes were alone in that belief.

On July 10, the board’s five other members voted to approve the rules proposed by the Department of Land and Natural Resources’(DLNR) Division of Forestry and Wildlife (DOFAW) and drafted in conjunction with the state Department of the Attorney General.

Specifically, the rules prohibit the possession of a sleeping bag, tent, camping stove or propane burner within the state public hunting area on Mauna Kea that encompasses lands surrounding the road to the summit. Also, no one will be allowed in the area between 10 p.m. and 4 a.m., unless they are transiting or lawfully inside one of the observatories operated by the University of Hawai`i.

As reported widely by the local and national press, recent efforts to start construction of the TMT on the slopes of Mauna Kea have drawn hundreds of protesters seeking to protect what they consider to be sacred land. Some have blocked the road with boulders or their bodies. Dozens have been arrested. Even so, a small contingent of protesters, calling themselves protectors, maintain a vigil on the mountain, day and night.

Attorney General Douglas Chin explained to the Land Board that the emergency rules, good for 120 days, were necessary because the DLNR’s existing rules prohibiting camping were too vague for prosecutors to enforce.

Before the final vote, which took place near 11 p.m., after several hours of public testimony followed by an hour-long executive session, Woodside said she was disappointed in the words of violence that had been used by both supporters and opponents of the TMT, and that she felt for the DOCARE officers tasked with controlling the volatile situation on Mauna Kea. However, she lamented that the emergency rules might not be the right tool to address the problems surrounding the protests against the TMT’s construction.

She suggested that the state had not taken full advantage of the groups and organizations that have been established specifically to address native Hawaiian issues: the Office of Hawaiian Affairs, Kahu Ku Mauna (tasked with advising the University of Hawai`i-Hilo Office of Mauna Kea Management on cultural matters regarding Mauna Kea), and the Aha Moku Advisory Committee, created by the state Legislature to advise the DLNR.

“We didn’t use them beforehand,”she said. She went on to express her dismay that she had not heard from any state representatives who supported the rules “a genuine understanding of what it means to have cultural practice on Mauna Kea.”

Indeed, she suggested that the rules DOFAW proposed to prevent camping (which would presumably help avert potential violence) might also impede people legally exercising their First Amendment rights and/or their rights to engage in traditional and customary Native Hawaiian practices.

Although many testifiers that day stressed that their protests were peaceful and bristled at any suggestion they would become violent, the Land Board’s large stack of reports and written testimony included screen shots of several facebook posts by some apparent TMT opponents threatening sniper attacks, suicide bombing, and more blockages of the road

As dangerous as some of the posts seemed, Woodside expressed her concern that all of the TMT opponents were being lumped together. Although she shared her fellow board members’fear of violence, violence “is very different from perseverance,”she said.

Woodside’s comments in some ways echoed testimony given by Native Hawaiian Legal Corporation attorney David Kopper, who opposed the rules. (The NHLC represents Kalani Flores, one of the original parties in the appeal of the TMT’s Conservation District Use Permit.)

Copper argued that the DLNR had failed to comply with the Hawai`i Supreme Court’s ruling in Ka Pa`akai, which requires the agency to identify and mitigate adverse impacts the rules may have on native Hawaiian practices.

What’s more, he argued, the DLNR’s current rules already prohibit things such as putting rocks in the road.

“Just enforce the rules you already have,”he said.

However, when Land Board member Chris Yuen and chair Suzanne Case asked whether the protesters’encampment on Mauna Kea was illegal camping under the current rules, Kopper couldn’t say.

“You tell me. …I’ve not been up there,”he told Case.

To Case, Kopper’s inability to answer seemed to prove Chin’s point that her department’s rules against camping are so ambiguous they warrant the adopting of the emergency rules.

Rather than adopting new rules, Marti Townsend, head of the Hawai`i Chapter of the Sierra Club and former head of KAHEA: the Hawaiian-Environmental Alliance (also a party to the TMT contested case hearing), suggested that the Land Board simply stay any construction under the TMT’s 2011 Conservation District Use Permit until the Hawai`i Supreme Court rules on an appeal of that permit. Oral arguments have been scheduled for August 27.

When it came time for the Land Board to discuss how to proceed, however, the CDUP never came up, at least not during the public hearing. In the end, after hearing hours of passionate testimony from more than 100 testifiers, most of whom opposed the rules, the Land Board seemed most swayed by DLNR enforcement chief Jason Redulla’s assessment of the situation.

In trying to convey the imminent threat to public health and safety the protests posed, Redulla recalled when people blocked the summit access road in April and June and placed rocks and built a shrine, or ahu, on the road on June 24.

“Obstruction of the roadway hinders emergency vehicles,”he said, adding that vehicles that had tried to pass the obstructions came very close to the edge of the road, which has steep drop-offs.

Given the road’s steepness, the lack of space puts DOCARE officers in a dangerous situation, he said.

Woodside asked how prohibiting access to Mauna Kea between 10 p.m. and 4 a.m. helps prevent anyone from blocking the road. She had noted earlier in the meeting that there are some Native Hawaiian cultural practices that take place at night on the mountain.

Redulla responded that it would minimize the presence of people in the area, which would, in turn, make it safer for vehicles to use the road.

The Land Board ultimately went along with the rules largely to support the DLNR’s Division of Conservation and Resources Enforcement and out of concern over future road blockages.

“Our people need the tools to keep order on the mountain,”said board member and Hawai`i island resident Yuen, who made the motion to approve the rules. He said that based on the information presented to him, he was convinced there was an imminent safety threat on Mauna Kea. Earlier in the meeting, Yuen stressed that there are legal ways to protest the TMT and “it’s not standing in the road, rocks in the road. I don’t know what they expect the government to do when the government has to follow the rule of law.”

Perhaps addressing cultural uses or concerns expressed by hunters who may have to unexpectedly stay on the mountain past dark, Yuen added that the DLNR can and may grant special use permits to allow overnight stays.

Board member Stanley Roehrig, also from Hawai`i island, seconded Yuen’s motion. Roehrig said it was a painful decision for him to make and laid out several things he thought should be done to address the various issues that had been raised. For one, he said the university’s Mauna Kea advisory group, Kahu Ku Mauna, needed to have more of a say in what happens on the mountain than it has had in the past. And to encourage more peaceful protests that do not include blocking the road, he suggested that a permanent protest site be designated.

“The chair is open to considering that and so are we,”he said.

When it became clear that the emergency rules would pass, one TMT opponent exclaimed, “Ku Kia`i Mauna,”a phrase calling for protectors of the mountain to stand strong.

“I’ll see you on the mountain,”he said as he left of the room.

Gov. David Ige signed the rules on July 14 and DOCARE officers have reportedly been handing out fliers to protesters about the rules. Even so, some of them continue to occupy their encampment.

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