Board Talk: Kekaha Kai Park, Forest Reserve Rules, Airport Facility

posted in: June 2017 | 0

Kekaha Kai State Park Gets Permit For Upgrades Over Surfer’s Objection

No surfer likes it when one of their favorite breaks is crowded. That includes Hawai`i island resident Janice Palma-Glennie, who sits on the executive committee of the Surfrider Foundation’s Kona Kai Ea chapter.

At the April 13 meeting of the Board of Land and Natural Resources, attorney David Frankel testified on behalf of Palma-Glennie and urged the board not to include road paving among the activities to be included in a Conservation District Use Permit for improvements to Kekaha Kai State Park, on the Kona Coast north of the Keahole airport.

“Kekaha Kai State Park has an annual visitation of 235,700, with 73,400 visiting the Mahai`ula Section and 162,300 visiting Manini`owali. It is estimated that 57 percent of these park visitors are from out-of-state and the other 43 percent are Hawai`i residents. There is a need for additional improvements at Kekaha Kai State Park to safely, equitably and efficiently accommodate the existing level of use at these parks, in keeping with the low-key character of the park,” states a report to the Land Board by the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands.

Improvements proposed by the DLNR’s Division of State Parks include additional showers and picnic tables, restroom upgrades, and walkway and road repairs at the Manini`owali section. At the Mahai`ula section, where Palma-Glennie surfs regularly, the division plans to repave and repair the access road, make way for more parking, and add new picnic tables and barbecue pits, among other things.

According to Frankel, Palma-Glennie worries that the road improvements at Mahai`ula will make it too easy for people to crowd the section of the park where she frequently surfs.

“This is a fantastic park. … It’s just glorious,” Frankel said. “One of the visions was Mahai`ula was going to be wilderness area, low-impact, less crazy, less urbanized. The road into Mahai`ula is awful and that’s great. … It impedes access, which is great. You don’t want it to be overcrowded.”

He admitted that the division did need to fill in some of the worst potholes, but stressed that Palma-Glennie and others who use the park did not want the road paved.

Land Board member Chris Yuen, a Hawai`i island resident and a surfer, did not share her concern.

“I don’t see any objection the surf community would have to these approvals. … All we’re approving is some small facilities to be changed … that is going improve the parking for surfers at Mahai`ula,” he said, noting that at a county meeting and hearing in Kona on the overall project, no one expressed any opposition.

“I don’t think there’s any reason to hold up approving this Conservation District Use Permit,” he said.

Board member Stanley Roehrig (also from the island and a surfer) said he would support the permit only if State Parks got together with Frankel and the surfing community to get their input.

“It is a cherry area for surfing. If we don’t address it now, we’re not going to see it again,” Roehrig said.

“In this day and age, the balance is very difficult because of the amount of tourists we have and the amount of surfers we have now. We have more surfers than we had in the `60s,” added Kaua`i Land Board member Tommy Oi, who said he supported the division’s plan.

The Land Board ultimately approved the permit, but with a number of conditions: that State Parks (1) monitor the shower areas to ensure soapy water is not entering the ocean and that sand is kept on beach as much a possible; (2) discuss the access issues with the surfing community as requested by Roehrig; (3) report back to the Land Board on the results of its monitoring and community discussions; and (4) refrain from using barbed wire in any fencing, unless necessary for security reasons.

 

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New Airport Inspection Facility

 

The U.S.Department of Agriculture’s Animal and Plant Health Inspection Service is privatizing the construction and maintenance of its new plant inspection facility at the Honolulu International Airport as a way to cut costs, according to Ross Smith of the state Department of Transportation’s (DOT) Airports Division.

On April 13, Smith sought and received approval from the state Board of Land and Natural Resources to issue a direct 20-year lease to an unnamed third party to develop, construct, and manage the USDA Honolulu Plant Inspection Station.

He explained that because of funding cutbacks, the USDA had originally asked the DOT to construct the building, which the federal agency would then lease.

“It became clear we’re not in the business of being able to maintain lab facilities … at the level they need to” be maintained, Smith told the Land Board. Instead, it was decided that the DOT would issue a lease to a third party to build and maintain the facility.

“It’s a little bit convoluted,” he said.

Land Board member Chris Yuen praised the fact that an improved, larger facility was going to be built, but was largely taken aback by the fact that APHIS was passing off such a significant task to a contractor.

“It’s just amazing to me that the federal government is not going to maintain its own building. Like … I don’t get it. This is a tremendously important function,” he said.

“People talk about biosecurity and invasive species. This is the front line, having a facility like this. I mean a lot of APHIS protects the mainland against us rather than the other way around, but it’s, you know, still important for the country to have facilities like this. The idea that they could be so starved of money that they have to do some strange workaround … just boggles my mind as far as the priorities of the country,” he said.

 

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Cultural Practitioners Pan

Changes in Forest Rules

 

An effort in April by the DLNR’s Division and Forestry and Wildlife to update its administrative rules for activities in forest reserves was met with considerable backlash from native Hawaiian cultural practitioners who worried that the proposed amendments would inhibit their ability to exercise their constitutionally protected rights to gather and conduct ceremonies there.

Upon the advice of the Department of the Attorney General, DOFAW proposed amending its rules to incorporate the fees and other charges it had been assessing with regard to forest reserve activities. Since the division’s forest reserve rules had not been comprehensively updated in more than two decades, it decided to also include changes that address current problems. For example, DOFAW proposed adding a new section establishing a process to deal with abandoned property, such as vehicles, waste, or dumped bulky items.

At the Land Board’s April 13 meeting, a handful of native Hawaiians, as well as one non-Hawaiian cultural practitioner, testified in opposition to DOFAW’s request to take its proposed rule amendments out to public hearings. Three of the testifiers requested a contested case hearing.

One of them, Halona Fukutomi, expressed his concern that the rules would restrict access and negatively impact his ability and that of other cultural practitioners to conduct cultural practices, such as picking ti leaf for attire or collecting rocks.

“Are you aware that, currently, collecting requires a special use permit in the forest reserves?” Land Board member Sam Gon asked.

“I’m not aware of that,” he said.

A subsequent testifier, Healani Sonoda Pale of Ka Lahui Political Action Committee, argued that native Hawaiians don’t actually need a permit to gather from forest reserves, as their rights to do so have been preserved “since the Mahele and the Kuleana Act of 1850.”

“The amendments are definitely targeted against kanaka maoli, specifically our kia`i Mauna Kea,” she said, adding, “We don’t need a permit to access. It’s in our laws.”

The proposed fees and charges, in particular, posed undue hardship and stress to people who are already socio-economically challenged, she said.

As Mauna Kea is our most sacred mountain, these rules target Mauna Kea protectors, she said.

With regard to DOFAW’s proposed rules regarding the disposition of abandoned and unattended property, she said that kanaka maoli — including herself and her family— often have temporary shelters in the mountains and at the ocean that they use while practicing their culture. “This infringes on our rights to access,” she said.

And as for DOFAW’s proposed language to allow for the closure of certain areas to the public, she asked, “What if you do it on a night that is the night of the akua and we need to access the forest during that night? That is going against our religious practices.”

After an executive session to discuss the matter of the contested case hearing requests, board member Chris Yuen, who is also an attorney, made a motion to deny them.

“A contested case is when a board applies existing laws,” he said. “Making rules is not a subject of a contested case.”

After the board approved his motion, Yuen made another motion to approve DOFAW’s request to take the rules out to public hearings, with one amendment regarding area closures. Yuen said he wanted the rules to allow the Land Board chair to independently close an area for up to 90 days in emergency cases.

“There may be a situation where the chair must do something immediately,” he said, offering as examples a case of a plant disease outbreak that needs to be contained and people need to stay out of the area to prevent its spread, or when a geological condition emits poisonous fumes out of the ground.

His proposed amendment would allow the chair to take immediate action and then bring a recommendation to the full Land Board for an extension beyond 90 days if necessary.

Before the final vote, Yuen tried to reassure those who had raised concerns that the proposed rules would infringe on their cultural access rights.

“We’re thinking of closing [forest reserve areas] for lava hazards, plant disease, and the like. On the question of native Hawaiian rights, we are bound and we do respect and obey those,” he said. However, he added, the state constitution allows traditional and customary practices to be subject to reasonable regulations, such as bag limits and fishing gear restrictions.

“All these are in the realm of reasonable regulation,” he said.

The Land Board unanimously approved his motion.

— Teresa Dawson

June 2017

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