Citizen Alleges DOCARE Stopped Him From Testifying Before Board
The plan was to keep the young men separated, perhaps seat them across the room from each other with enforcement officers on hand to quash any trouble. But that’s not what happened.
On June 22, officers with the Department of Land and Natural Resources’ Division of Conservation and Resources Enforcement stood guard outside the meeting room of the Board of Land and Natural Resources. According to state employees, the officers were there to keep the peace between two men who didn’t get along: Earl Kane II, owner of Hot Spots, a Waikiki surf school, and Noa Napolean of the ad hoc public access coalition Kaiser’s For All.
Hot Spots; Pure Hawaiian (another surf school, run by Clyde Aikau); Hilton Hawaiian Village, LLC; and concessionaire Waikiki Beach Activities, Ltd., were all accused that day of violating rules regarding unencumbered state land when they allowed or participated in the sale of surfing lessons on Duke Kahanamuku beach. It was a complicated story, with Hilton – the sole possessor of a concession to sell and conduct surfing lessons on that beach – allowing Waikiki Beach Activities to sell and advertise surfing lessons with Aikau and Hot Spots, which were conducted on Hilton property and on the state beach fronting the hotel. After much discussion and an executive session, the board voted to approve its staff’s recommendation to fine each of the entities $150.
Before the vote, however, an 11-page letter was submitted to the board by Kaiser’s For All, complaining that the scope of the alleged violations was too narrow and that the proposed fines were too small. The testimony, although unsigned, was written by Napolean and detailed how all of the parties involved had repeatedly and knowingly violated state rules and agreements. He argued that the state should impose the maximum fine of $500 per violation per day.
He also noted that Kane had filed a temporary restraining order against “a member of the public who has raised the issue with state officials about surf schools needing permits from DLNR.”
In his testimony before the Land Board, Kane (whose father is a DOCARE officer) said that all of the complaints that led to the state’s enforcement action came from one person, Napolean. Napolean was obsessed with his family, Kane said, adding that Napolean’s harassment led him to seek a restraining order. According to Napolean’s written testimony, however, he is merely a concerned citizen who wants state rules on beach-related commercial activities to be properly enforced.
At the end of the Land Board meeting, when all of the items had been voted on and most of the public had gone, Napolean, from the back of the room, asked to speak on the surf school item, despite the fact that the board had already taken action. Hearing that the board had approved the staff’s recommendation, Napolean requested a contested case hearing. He said that he had shown up to testify while the item was being discussed, but was prevented from entering the meeting room by DOCARE officers.
Confronted with the fact that Napolean had been denied an opportunity to testify in person before the board’s vote, board members noted that they had received and read his written testimony on the matter.
According to Land Division administrator Russell Tsuji, the department was made aware of the TRO by Kane’s mother days before the meeting. Because the TRO requires Napolean to stay 50 feet from Kane, staff had decided to allow Napolean to testify, but keep him away from Kane.
“The plan was to put him in the farthest part of the room,” Tsuji says, who was surprised when Napolean later said he was barred by DOCARE officers. Tsuji said he asked deputy attorney general Vince Kanemoto what happened to the original plan. According to Tsuji, on the day of the meeting, Kane apparently requested that DOCARE enforce the TRO, and DOCARE apparently obliged.
Haseko Drainage Project
Gets Green Light
“To me, it’s a sad feeling of déjà vu,” said Kai Markel, director of native rights, land and culture for the Office of Hawaiian Affairs. His comment was made at the Land Board’s July 13 meeting, where the DLNR proposed issuing an easement, land license, and construction right-of-entry to allow marina developer Haseko to dredge a drainage channel – covering about 2,320 square feet – in waters off `Ewa, O`ahu.
The project is part of a court-ordered mediation between Haseko, which plans to dredge a much larger channel – 400 feet wide – as part of its 1,100-acre marina development known as Ocean Pointe, and the `Ewa Beach community.
In the early 1990s, OHA sued the Land Board over its decision to issue a Conservation District Use Permit to Haseko for its proposed marina development, which threatened to adversely affect traditional and customary Hawaiian practices in the area. The Land Board was ultimately able to issue that permit years later.
More recently, in early 2006, the Land Board allowed Mike Lee, a native Hawaiian cultural practitioner who collects limu in the proposed drainage channel area, to contest Haseko’s application for a Conservation District Use Permit for the drainage channel.
“My `ohana and I have traditionally gathered limu and other natural resources, and continue to do so, from the area of the proposed Papipi Road Drainage Outlet, as well as practice traditional and customary practices involving native Hawaiian religion and cultural ceremony,” Lee’s contested case petition stated.
Although the Land Board ultimately approved that CDUP, as well, Lee challenged the board’s decision in First Circuit Court. Despite the ongoing litigation, at the July meeting, the DLNR’s Land Division recommended approving the easement, land license, and right-of-entry.
“Haseko is also requesting an early construction commencement date for the drainage improvements to provide relief of potential flooding for the `Ewa community, including the `Ewa Beach Elementary School, before the next rainy season,” a report by the Land Division states.
With regard to the court case, the report stated that the Land Board can still approve the request and that Haseko was willing to restore any dredged area should the board’s decision on the CDUP be overturned.
At the meeting, several `Ewa residents wanting an end to flooding in the area urged the board to approve Haseko’s request. Markel, however, argued that the board has failed to adequately assess the cultural significance of the project site areas, despite the fact that important burial remains have been found.
“It’s a spiritual relationship. It’s not just about the limu,” he added.
While he sympathized with the residents of Papipi Road, and the school children, Markel argued that the county should have addressed the flooding problem years ago.
“And, yeah, the poor kids at the school, I don’t want them tromping around in the water, but how come the Hawaiian culture always has to suffer?” he asked.
He admitted that the project at Papipi will have a very small impact on the reef compared to the football field-sized marina nearby.
Still, he asked the board to use its discretion, and added that nothing can undo the harm done if the court reverses the Land Board’s decision on the CDUP.
“You cannot put the rocks back. Pau already,” he said.
Land Board member Sam Gon expressed his appreciation to Markel for his willingness to voice his position. Ultimately, however, the board unanimously approved the Land Division’s recommendations.
Board Approves
Moloka`i Gill-Net Rules
When the Land Board voted last November to approve new rules regulating the use of lay gill nets in Hawai`i, a last-minute decision by staff to create a special set of rules for the island of Moloka`i was tabled because they had been deemed by the deputy attorney general to include substantive changes that needed to go through their own round of public hearings.
In January, the DLNR held public hearings statewide on the Moloka`i rules. Generally, they are more lax than the rules for the rest of the state. Even so, DAR’s Francis Oishi faced strong opposition from island residents.
During the public hearings on Moloka`i, “He got beat up, let me tell you,” Colette Machado, a Moloka`i resident and trustee of the Office of Hawaiian Affairs, told the Land Board at its May 25 meeting.
“Environmentalists were opposed to us getting an exemption,” she said, thanking former Land Board chair Peter Young for supporting a separate rule package for Moloka`i. “There was a lot of discussion of monitoring, as well as discussion of what to do if other from Maui or elsewhere start coming to Moloka`i to fish,” she said.
Because Moloka`i is sparsely populated and has a high percentage of subsistence fishermen, the DLNR chose to give the island’s residents greater input into the rules, which the Land Board eventually approved. Before they voted, board members Tim Johns and Sam Gon thanked Machado for her leadership and assistance in developing a culturally sensitive, community-generated set of rules.
Under the new rules, gill nets in waters around Moloka`i cannot exceed 750 feet in length or seven feet in height, nets may soak up to 12 hours (including at night) within a 24-hour period; nets must be placed at least 1,320 feet apart, and they must be inspected twice during the entire soak time. For the rest of the state (except around Maui and parts of O`ahu, where the nets are banned altogether), the maximum net length is 125 feet, the maximum soak time is four hours, late night setting is not allowed, and nets must be inspected every 30 minutes.
Koa Loggers File Complaint
Against Board, Attorney General
On June 28, Ronald Self, an attorney representing Steve and Iris Baczkiewicz, Steve’s Ag Services, Ltd., Contract Milling, and brothers Wesley and Raymond McGee, filed a complaint in Third Circuit Court against the Land Board and state Attorney General Mark Bennett for damages stemming from an enforcement case regarding alleged logging of state land.
Throughout the 1990s, Steve’s Ag, under an agreement with the Damon Estate, harvested dead or distressed koa and other trees from the estate’s Kahuku Ranch, located in Big Island’s Ka`u district. The ranch is now a part of Hawai`i Volcanoes National Park.
In June 2003, the Land Board, convinced by its forestry staff that the logging activities by Steve’s Ag and its contractor, Contract Milling, had strayed off the ranch and onto state land, fined Steve’s Ag owner Steve Baczkiewicz and Contract Milling owners Wesley and Raymond McGee $1.5 million for clearing state land and cutting some 200 koa trees. Attorney William Chikasuye, representing Baczkiewicz and the McGees, requested a contested case hearing.
The hearing officer in that contested case ruled that the state had not been able to prove that it owned the subject property. Attorneys for the loggers claimed that the land was part of Kahuku Ranch. Still, according to Self’s complaint, state deputy attorney general Willliam Wynhoff and Michael Constantinides of the DLNR’s Division of Forestry and Wildlife continue to seek to prosecute the loggers by trying to gain title to the land in question, “so that the state can pursue the case Plaintiffs ‘won.’”
The complaint charges that to respond to the state’s efforts to prosecute the loggers, they have incurred more than $200,000 in fees for professional services and other costs. They claim they have lost business and profits, that their reputation has been damaged, and that they have suffered emotional distress.
Longline Gear Approved
For Catching NWHI Sharks
The handful of Galapagos sharks preying on monk seal pups at French Frigate Shoals have outwitted federal researchers intent on killing them. In June 2006, amid some controversy, the Land Board permitted federal biologist George “Bud” Antonelis to kill up to 10 Galapagos sharks he thought were preying on pre-weaned endangered Hawaiian monk seal pups, but it did not allow him to use high-powered rifles, as he had proposed doing.
At the time the permit was granted, representatives from the native Hawaiian and environmental communities objected to the proposal. Antonelis returned to the Land Board last May for another permit to kill up to ten Galapagos sharks, this time using different methods, primarily a 100-foot bottom-set longline with five hooks. He proposed letting the line soak overnight and checking it every four hours during the day.
At the Land Board’s May 25 meeting, the DLNR’s Division of Aquatic Resources recommended denial. DAR’s permit coordinator Wayne Haight expressed concern that preliminary research tracking the movement of the sharks had not been done, and that the gear intended to catch the “bad” sharks would be unattended and would catch sharks randomly.
“The problem is with the method, not the taking [of sharks],” Haight said.
“You’re asking for something much broader than what we barely approved last time,” Land Board member Tim Johns told Antonelis.
Antonelis responded that the sharks – none of which were caught or killed over the preceding year – have become sensitized to efforts to remove them. “They’ve completely changed their behavior,” he said, noting that they have become more active at dawn, dusk, and at night, when it’s not safe for the researchers to be in the water.
Don Palawski of the U.S. Fish and Wildlife Service, which is a co-trustee of the Papahanaumokuakea Marine National Monument, defended the need for the project.
“Last year, not a single pup didn’t have some kind of injury at Trig,” he said. (Tiny Trig island is the main pupping island at FFS.) While he said he supported the removal of bad sharks, he did acknowledge that his own team of scientists were “split down the middle” on whether the project should continue.
Mike Tosatto of the National Marine Fisheries Service also supported the project, as well as the proposed fishing methods. Bottom-set gear is a relatively clean fishing method, he said.
Marti Townsend of KaHEA: The Hawaiian-Environmental Alliance, however, strongly objected to the proposal, noting that recent research efforts have resulted in the death of a monk seal.
“A female monk seal was killed in an effort to tag her in April. There is no room for error anymore,” she said.
Maui Land Board member Jerry Edlao agreed, and moved to approve staff’s recommendation to deny the permit.
“I’m not convinced hooking will catch the evil guys… Hurry up and come up with something more friendly,” he said.
Johns, however, felt that although the longline gear may not be as precise as methods used in the past, “taking this tool out of their hands is not something I’d like to have on my conscience.”
Edlao’s motion failed, 2-4. Johns then moved to approve the permit with special conditions, including one requirement that the fishing gear never be unattended. That motion passed, with Edlao dissenting.
State Water Monitor
To Access EMI Lands
On July 13, the Land Board authorized its Land Division to obtain a right-of-entry from East Maui Irrigation Company, Limited (EMI) for access to lands at Pauwalu in East Maui. The right-of-entry will allow state land agent Morris Atta to evaluate the adequacy of and ensure compliance with a March 23 Land Board order that requires EMI to release 6 million gallons of water a day into Waiokamilo stream to meet the needs of East Maui taro farmers.
The order stemmed from an ongoing contested case, brought by several native Hawaiian taro farmers, over EMI’s efforts to continue diverting hundreds of millions of gallons of water a day from East Maui streams to Central Maui for agricultural and municipal purposes.
— Teresa Dawson
Volume 18, Number 2 August 2007