Court Denies Motion for Injunction in Ka`anapali Catamaran Case

On January 31, U.S. District Judge Leslie Kobayashi denied a motion by Ka`anapali Tours, LLC (KTL) for a preliminary injunction that would have forced the state Department of Land and Natural Resources to allow the brand new Queen’s Treasure catamaran to operate pending a decision on the company’s effort to get a permanent injunction.

KTL had ordered Queen’s Treasure custom built more than a year ago, relying on terms of a DLNR-Division of Boating and Ocean Recreation (DOBOR) permit that had been issued by a someone (a low-level planner) without the authority to do so. The unique permit appeared to allow KTL to operate either a monohull vessel or a catamaran. This, in effect, would have allowed KTL to bypass DOBOR’s waiting list for a Ka`anapali catamaran permit.

Alerted by a competing catamaran operator that KTL’s permit defied DOBOR’s rules and management scheme for Ka`anapali, DOBOR attempted last summer to cancel the permit and prohibit KTL from using Queen’s Treasure.

KTL sought a jury trial for a permanent injunction preventing DLNR and DOBOR from hampering the operation of Queen’s Treasure. It also sought a preliminary injunction.

In her order denying the preliminary injunction, Kobayashi concluded that DOBOR was not required to honor erroneous terms of an erroneously issued permit.

“Instead, DLNR/DOBOR had the authority to suspend or revoke the permit. To the extent that the terms of the permit were inconsistent with the procedures under the applicable law, plaintiff was on notice that it could not rely on those inconsistent terms as superceding the applicable statutes or regulations. ...

“The Court therefore finds that plaintiff has not shown that it had a legitimate claim of entitlement to substitute/add the Queen’s Treasure to the inventory of vessels on the permit. Thus, plaintiff has not established a likelihood of success on the merits of its due process claim,” she wrote.

Under an agreement with the DLNR, Queen’s Treasure had been allowed to operate pending Kobayashi’s decision.

The U.S. Fish and Wildlife Service is proposing to issue a permit to allow the take of seabirds by Hawai'i-based longliners that target swordfish, using the Migratory Bird Treaty Act as the regulatory basis for the action.

This marks the first time that the MBTA has been proposed to be used to regulate fishing activity. Until now, only the federal Endangered Species Act had been invoked to address the harm to seabirds by fishing gear. Under the ESA, only bird species that were listed -- particularly the short-tailed albatross -- were protected. Last October, the Fish and Wildlife Service determined that the black-footed albatross did not warrant listing as an endangered species.

In the January 10 Federal Register, the Fish and Wildlife Service published notice of availability of a draft environmental assessment for the proposed action. If the environmental assessment is eventually approved, the service will issue the permit to the National Marine Fisheries Service, whose request for the permit set this process in motion. As explained in the draft EA, "Although regulations implemented by NMFS have led to an important reduction in take of migratory birds in this fishery, the take that remains is prohibited under the Migratory Bird Treaty Act."

The outcome will not likely change the operation of the swordfish fishery significantly. Three proposed alternatives are examined in the draft EA: no action, issuance of the permit as requested, and issuance of the permit with additional conditions to conduct new research and increase the conservation benefit to seabirds. The preferred alternative is the second one, the FWS states.

"Because the amount of take reported in the fishery is low and the best available scientific information indicates that the populations of Laysan and Black-footed Albatrosses are stable or increasing, our analysis indicates that none of the alternatives would lead to significant impacts to the birds during the next three years (the term of a Special Purpose permit)."

The comment period for the draft EA closes on February 9. For more information, see the the Federal Register notice: January 10 FR.

Total estimated bycatch of Laysan albatross in 2005 was 2,500 birds. The number of black-footed albatross taken in the same year was estimated at more than twice that -- 5,228 birds.

Photo credit: Rob Shallenberger

The director of the state Department of Agriculture, Russell Kokubun, has issued a finding of no significant impact for the release of a scale insect that many in the conservation community hope will deal a blow to the so-far unstoppable march of strawberry guava – a.k.a. waiawi or Psidium cattleianum -- through Hawai`i’s native forests.

The FONSI appears in the November 8 edition of The Environmental Notice, published by the Hawai`i Office of Environmental Quality Control.

Accompanying the FONSI was a final environmental assessment and a summary of the expected impacts of the release onto state lands of Tectococcus ovatus, the scale insect. According to the summary, "T. ovatus is a highly specific natural control agent producing leaf galls on strawberry guava that reduce its vigor and fruiting in its native range in Brazil, where it is host to various natural predators and control agents. Strawberry guava has no such controls in Hawai`i, and their absence contributes to this fast-growing tree’s ability to outcompete native plant species of Hawai`i."

The release of the insect was delayed for years by the protests of a small group on the Big Island, where T. ovatus is proposed to be released on state land. (Our July 2011 issue had an article on the protests led by Sydney Singer.) Comments on the draft EA received by the Department of Agriculture ran nearly two-to-one in favor of the insect's release (136 in favor versus 70 opposed).

The final EA and FONSI may be viewed on the website of the OEQC: Waiawi.

Photo of strawberry guava courtesy Forest and Kim Starr

The state Department of Land and Natural Resources has just released a plan to protect vital watersheds across the state. And the first order of business is to fence them all, doubling the total acreage of watersheds protected from the ravages of pigs, deer, goats, sheep, and cattle.

“Statewide, only 10 percent (approximately 90,000 acres) of the priority watershed protection areas are fenced from hooved animals – the first step towards protection,” the plan states. The “essential first step” in protecting these areas is to fence them and take out the ungulates. Hunters will be given a chance to take out the animals from fenced areas wherever it is “safe, feasible, and effective.” Around 35 percent of lands under the jurisdiction of the DLNR’s Division of Forestry and Wildlife is included in the category of Priority I watersheds. Just 4 percent of that land is currently fenced.

The cost of the proposal has been put at $11 million annually, but that amount pales alongside the cost of doing nothing -- and suffering further losses to watershed quality. "Water users already pay for the loss of native forests – and those costs are high," the plan notes. Invasive plants such as strawberry guava (waiawi) don't hold as much water on the land as natives do, it goes on to say. "For example, in East Hawai`i, invasive plants have already reduced estimated groundwater recharge by 85 million gallons a day."

Click here for a link to the plan: "The Rain Follows the Forest"

The iconic Haleakala silversword, or hinahina, is in 'drastic decline,' report two scientists who have been regularly monitoring the plant. This year, 565 plants were in bloom, a "medium-flowering" year, write Forest Starr and Kim Starr. But in the 11 plots that have been monitored annually since 1982, the number of live silverswords declined by more than 5 percent, all without flowering.

"The total number of live silverswords in the plots has dropped by 80 percent since 1982, from 437 to 86," they write. "This steep decline has occurred since an all-time high of 488 silverswords in 1989, with 17 of the last 18 years showing decline."

In addition, no new seedlings were recorded in any of the plots this year, nor in the previous four years.

This year's census was conducted by the Starrs and Paul Kruschelnycky. To read the report, click here: Silversword Report.

(Photo: Forest and Kim Starr)

The highly anticipated Rainfall Atlas of Hawai`i is now available online. The atlas, assembled by University of Hawai`i geography professor Tom Giambelluca and colleagues, contains maps that show rainfall patterns in the major Hawaiian islands, based on records over three decades, from 1978 to 2007. Check it out at http://rainfall.geography.hawaii.edu

Want to know how patterns have shifted over time? Click on the "History"link at the top of the page. Want to know how much rain your community gets? Go to the "Interactive Map" link, where you can zoom in on any neighborhood in the state.

The atlas was a joint project of the state Commission on Water Resource Management and the U.S. Army Corps of Engineers.