It seems no decision regarding activities in the Northwestern Hawaiian Islands is made without some controversy.
Last summer, when the state Board of Land and Natural Resources established a no-take marine refuge in state waters around the Northwestern Hawaiian Islands, some members of the fishing community protested the move, while many in the environmental community lined up to praise the board and its chair, Peter Young, for taking such a bold conservation stance.
But now that the first permits to conduct research in the refuge are coming before the Land Board for approval, some of those same environmentalists are questioning the need, the goals, and the methods of what is being proposed.
In testimony submitted to the Land Board at its April 28 meeting, Stephanie Fried, writing on behalf of Environmental Defense, KaHEA: The Hawaiian Environmental Alliance, and the `Ilio`uokalani Coalition, complained that publicity surrounding the National Oceanic and Atmospheric Administration’s effort to establish a National Marine Sanctuary in federal waters around the Northwestern Hawaiian Islands has sparked a “research gold rush.”
“[I]t turns out that much of this research is to be carried out in the highly protected no-take waters of the state refuge, without relevance to the management needs of the state and with the potential to seriously threaten the state refuge,” Fried’s testimony continued.
At the meeting, the board was considering the recommendation of the Department of Land and Natural Resources’ Division of Aquatic Resources that it give its approval to several requests to conduct research and cleanup activities within the NWHI marine refuge:
• The Coast Guard requested permits to enter the refuge and to remove marine debris between May 12 and May 29.
• NOAA requested permits to enter the refuge and to observe, monitor, and facilitate marine research. NOAA’s research vessel, the Hi`ialakai, would transport a host of scientists from the University of Hawai`i’s Hawai`i Institute of Marine Biology and elsewhere to the refuge to conduct a variety of activities from May 18 through June 11, from June 23 to July 19, and from August 26 to September 29.
• Carl Meyer of the Hawai`i Institute of Marine Biology requested permission to capture, tag and release ten tiger sharks, seven gray reef sharks, ten whitetip reef sharks, and ten grey snappers in the NWHI. Meyer also asked to deploy and download acoustic receivers to track the movement of these apex predators.
• Brian Bowen, also of HIMB, requested permission to take genetic samples of 22 fish species from Nihoa, French Frigate Shoals, and Gardner Pinnacles to study coral reef connectivity. Thirty fish of each species would be taken at each location, with no more than 10 individuals of each species collected per hectare.
• Robert Toonen of HIMB requested a permit to take up to 150 samples each of about 30 invertebrate species from Nihoa, French Frigate Shoals, and Gardner Pinnacles for genetic sampling to study coral reef connectivity.
• Michael Rappe and Ruth Gates of HIMB requested permits to sample corals to identify biological indicators of coral disease and/or bleaching susceptibility.
• Greta Aeby and Stephen Carl of HIMB also requested permits to sample corals to investigate coral disease and bleaching susceptibility.
• Cynthia Vanderlip of the DLNR’s Division of Forestry and Wildlife requested a permit to remove marine debris at Kure Atoll.
Fried told the board that research cruise ships should not be allowed to dump raw sewage into refuge waters.
“Over the past five years, since the establishment of the NWHI [Coral Reef Ecosystem] Reserve and its management by NOAA, we have received frequent reports by researchers, as well as educators on NOAA’s NWHI education voyages, expressing concern that NOAA’s own research vessels dump raw sewage mixed with other waste effluents into Reserve waters on essentially a daily basis,” her written testimony stated.
Concerned that the thousands of samples these scientists were proposing to take were just a hint of more to come, Fried, a scientist with Environmental Defense, criticized what she saw as a “fast and loose” use of extractive sampling techniques.
She added that some of the proposed research, the coral reef sampling, for example, could be done in the Main Hawaiian Islands.
Fried then cited a letter algae expert Isabella Abbott had written about the proposed research. Abbott wrote, “Why would anyone think that he/she should be granted a permit to take ANY species of invertebrates? (Never mind how many or how much?) They are not that well known in the MHI (Main Hawaiian Islands) – why not start there? I won’t belabor the issue any further, but I would hope that both applicants and reviewers might focus on the questions that are being asked and the hypotheses to be tested – and to keep in mind that the NWHI is essentially a ‘no-take’ area and not open to exploitation of any kind.”
Don Palawski, refuge manager for the U.S. Fish and Wildlife Service’s Hawaiian Islands National Wildlife Refuge, said that his agency has also received permit requests from HIMB researchers to conduct similar sampling at Johnston Island. The FWS had permitted much of the same research last year, but did have concerns about over-sampling, Palawski said. While the service generally supported the work, Palawski said it was still evaluating Stephen Carl’s proposal, which was a new request.
In response to the complaints about over-sampling, Toonen said that his project involved the taking of only “two-ten-thousandths of one percent” of the resources in the northwestern islands. He added that his coral sampling methods, which will have the same impact on sampled corals as a single parrotfish bite, had been peer reviewed. Bowen stated that his samples will fit in a five-gallon bucket.
Responding to claims that the coral sampling work can be done in the Main Hawaiian Islands, Aeby showed the Land Board pictures of two coral diseases recently found at French Frigate Shoals in the northwestern islands.
Refuge and reserve managers need to know, “Is this a cold? Is this strep throat? Or is it AIDS? This is a time-sensitive issue,” Aeby said.
In the end, the Land Board voted to approve all of the permit requests. Stephen Carl’s permit was approved on the condition that the FWS approve his work at Johnston Atoll.
The Fight Is On
Over Pao`o Home
Massachusetts resident Jonathan Cohen, whose company Aloha Properties, LLC, owns roughly ten acres in Pao`o, North Kohala, wants to build a residence on the Conservation District portion of his coastal property. If he succeeds in winning a Conservation District Use Permit from the Land Board, he could construct the first single-family-residence on the remote shoreline, according to one DLNR official.
Standing in his way, however, are the DLNR’s Office of Conservation and Coastal Lands, which has recommended denial of Cohen’s CDUP application; and the grassroots groups Kamakani O Kohala Ohana (Kako`o, for short) and Malama Kohala Kahakai (MKK), which have requested a contested case hearing on Cohen’s application.
The fight over proposed construction on this site is nothing new, but it’s been dormant for several years. In 1987, the Land Board approved a Conservation District Use Permit to previous owner Michael Rearden to build a home there. Back then, North Kohala residents, particularly the group Hui Lihikai (Citizens for Protection of the North Kohala Coastline), fought the development vigorously. Despite four permit extensions by the Land Board, the permit expired in 1995 because a house had not been constructed by the deadline set forth in the permit. (For details, read the October and November 1993, May and August 1994, and July 1995 issues of Environment Hawai`i.)
In September 1999, then-owner Heidi Galke hired the local law firm Cades Schutte Fleming & Wright to prepare a new CDUP application. Before filing the application, however, Cades attorney Roy Vitousek consulted with Hui Lihikai’s Toni Withington, and at her suggestion, asked then-Land Board chair Timothy Johns to consider a land exchange.
No exchange ever occurred and in August 2000, Cohen bought the property for $1.5 million. It wasn’t long before Vitousek began working on Cohen’s behalf to obtain a CDUP.
The oceanfront lot is surrounded by unencumbered, undeveloped state land and is just south of Lapakahi State Park, which is rich with Hawaiian archaeological sites. The Cohen property itself is littered with archaeological sites and provides the only access to “Secrets” beach, where many Kohala residents go to surf, hike, fish, and camp.
Given the past controversy over the parcel, some time in 2002, Cohen began working with a land trust called `Ike `Aina to resolve some of the cultural and public access issues before they became problems within the community. By October 2002, a stewardship agreement, where `Ike `Aina would care for the parcel’s cultural resources and provide educational opportunities, had been drafted. But the partnership went south after that, following a disagreement with `Ike `Aina’s Fred Cachola, who is also a member of Malama Kohala Kahakai.
“Unfortunately, word got back to Mr. Cohen and his consultants that Mr. Cachola had held a community meeting and had made representations that he would be managing the property and that there would be school groups and the like using the property as a cultural resource center under his direction. These representations were not consistent with Mr. Cohen’s understanding of the status of the discussions with `Ike `Aina and raised concerns as to the advisability of proceeding with an agreement with `Ike `Aina,” Vitousek wrote to the DLNR on April 5.
Despite the fallout, Cohen proceeded with an environmental assessment, filed a CDUA and prepared plans to deal with archaeological sites and burials. Within the Conservation District, Cohen proposes to build a residence consisting of a pool and five separate structures surrounded by rock wall terraces, a propane storage area, a store room/generator shed, and a septic tank and leach field. While the roofed areas are just shy of the 5,000 square-foot limit for single family residences in the Conservation District, total improved areas (including lanais and partially enclosed areas) total more than 7,000 square feet. The house will be built 50 feet from the shoreline. On the agricultural portion of his property, Cohen wants to reroute a portion of the jeep road used by the public for beach access onto adjacent state property.
On April 28, OCCL planner K. Tiger Mills recommended that the Land Board deny Cohen’s application for a Conservation District Use Permit. Her report stated that the residence would have an adverse effect on the open space and rugged character of the area, the historic Ala Kahakai Trail, customary access to the ocean by the public, and would jeopardize the integrity of many of the nearby archaeological and cultural sites. Mills also recommended that Cohen investigate a land exchange, conservation easement, purchase by a third party, or relocation of the residence.
In the days preceding the Land Board’s April 28 meeting, Kohala residents who use the area regularly had flooded the DLNR with testimony opposing the project.
Withington wrote, “Pao`o is a public resource used by the people of Kohala since it was first settled. It is not a piece of land. It is lihikai, a linking of land and sea. It is a portal through which people go into and come out of the ocean. On O`ahu you have many portals. On the rugged, rocky coast of Kohala we have very few. This is one. To put a giant house on our portal is worse than building a fence and a gate.”
Supporting the project, however, were Valerie and Anthony Anjo, Luhiau `Oahana, and Papa Arthur Mahi, lineal descendants of native Hawaiians buried in the area. After the fallout with `Ike `Aina, Cohen began working with the lineal descendants of the area to protect the cultural sites.
“For too long Pao`o has been unprotected. Finally, secure the land around Pao`o including all of the sites. [Cohen] is the caretaker, as the landowner of Pao`o. He will watch over these sites and protect them, as he and his family live among them. There are other groups, whose motives are so ‘insulting’!… We do not want these sites opened to public display but to remain undisturbed,” they wrote in an email to Land Board chair Young.
Upset with how the OCCL had handled Cohen’s application, on April 19 Vitousek submitted a written request for a contested case hearing.
Vitousek wrote in his request that OCCL’s report to the Land Board was “incomplete, inaccurate and, unfortunately, demonstrates a significant bias on the part of OCCL staff.” Vitousek noted that the environmental assessment for the project had received a Finding of No Significant Impact, and that its burial treatment plan had been approved by the Hawai`i Island Burial Council.
“Staff Planner Tiger Mills advised the Applicants representatives that she just ‘didn’t like the project’ and OCCL Administrator Sam Lemmo said that we ‘would not give a favorable recommendation unless everyone was in agreement,’” he wrote.
At the Land Board’s meeting, Cachola explained that he had backed out of the partnership with Cohen because Vitousek had altered the draft MOA with `Ike `Aina and had taken out “all the historical significance of the area… I don’t believe there was sincerity there about protecting cultural significance from the beginning, when they talked about moving trails,” he said.
Withington, now a member of Kako`o, and Native Hawaiian Legal Corporation attorney David Kimo Frankel, representing Malama Kohala Kahakai, both requested a contested case hearing on the application.
Frankel made clear that his request was not about how OCCL had processed the application, but whether Cohen had proven that his proposal met CDUP requirements.
“We’re ready. Bring it on,” Withington said.
On May 12, the Land Board waived the oral request requirement regarding contested case hearing requests (which states that requests must first be made orally at a public hearing) and authorized its chair to appoint a hearing officer in a contested case hearing to include all three parties, should they all be determined to have standing.
NRCS Pays Fine
For Soil Excavation
How’s this for irony? The U.S. Department of Agriculture’s Natural Resource Conservation Service (formerly the Soil Conservation Service) has been fined $1,292.50 for the illegal excavation of 470 cubic years of topsoil from the its Hawai`i Plant Material Center on Moloka`i, which sits on land leased from the state.
The fine, imposed by the Land Board, stems from work done by contractor Dedric Manaba, who had been hired by the NRCS to remove some 150 ironwood windbreak trees from the center and dispose of them at the local landfill.
“To expedite disposal of the trees, the southern end of the subject area was excavated in order to bury the trees,” states an April 28 DLNR Land Division report. The excavation – a violation of the NRCS’s lease, which prohibits removal or sale of soil, gravel and other materials from the property – was reported to the NRCS by Moloka`i residents George Peabody and Donovan and Lenora Keli`ipuleole. In August 2005, the NRCS’s contracting officer, Keith Harada, reported the incident to the DLNR’s Maui District Land Agent.
“It is worth noting that staff initially thought that this matter could simply be resolved by having Mr. Manaba return the soil that was improperly taken from state lands. However, staff learned that Mr. Manaba had since transported the soil to his own property and built a loading dock by apparently mixing the soil from the USDA-NRCS site with gravel and soil he obtained from other projects involving non-state lands,” the Land Division report states.
In an email to Land Division administrator Russell Tsuji, Peabody, who felt Manaba had scammed the state when he sealed the stolen dirt under a loading ramp, asked that both the USDA and Manaba’s company, Manaba Enterprises, be held accountable for the violation.
“Manaba should be punished with fines and forced to return the dirt even if it has some gravel rather than Manaba benefiting from his scam and USDA [that is We Taxpayers] paying for the unlawfully removed dirt from state land. If that is the agreement, it is a ripoff of Taxpayers, and shows that crime does pay, and pays big,” he wrote.
DLNR staff, however, wrote in its report to the Land Board that Manaba’s culpability was a matter between the USDA and Manaba. Staff recommended, instead, that the Land Board fine the NRCS for the value of the soil taken ($2.75/cubic yard). The board unanimously approved staff’s recommendation.
Board Approves Funds
For 3 TNCH Preserves
The Nature Conservancy of Hawai`i will receive roughly $3 million of state money over the next six years to help manage its Kamakou and Mo`omomi preserves on the island of Moloka`i and its Waikamoi preserve on Maui. On April 28, the Land Board approved another round of funding for the preserves, all of which are enrolled in the state’s Natural Area Partnership Program. The NAPP provides $2 in matching funds for every private dollar raised.
The 921-acre Mo`omomi preserve on the northwest coast of Moloka`i includes one of the state’s most intact coastal sand dune ecosystems, is a nesting site for seabirds and threatened green sea turtles, and contains eight rare plant species. Over the next six years, TNCH will remove kiawe, control small mammals (cats, mongooses) that threaten nesting seabirds and chicks, and build community support for conserving the area’s native natural resources. The state will provide $314,097, which will be matched by $157,048 in TNCH funds.
TNCH’s 2,774-acre Kamakou preserve in east Moloka`i was established in 1982 to protect endemic forest birds and lies just south of Kalaupapa National Historic Park, the state’s Pu`u Ali`i and Oloku`i Natural Area Reserves, and TNCH’s Pelekunu preserve. The preserve is part of the East Moloka`i Watershed Partnership. Over the next six years, TNCH will receive $1,280,773 in state NAPP funds and will provide $640,386. The preserve contains 40 rare plant species and five rare land snail species. It was or is home to three rare bird species: the oloma`o, or Lana`i thrush, the `i`iwi, and the kakawahie, or Moloka`i creeper (last sighted in the early 1960s).
TNCH’s Waikamoi preserve in East Maui is located on 5,230 acres owned by Haleakala Ranch Company and is part of the East Maui Watershed Partnership. TNCH will receive $1,320,000 in NAPP funds over the next six years, and will provide a match of $540,978.
Earlier this year, the state Natural Area Reserves System Commission had recommended that the Land Board approve NAPP funding for the three preserves. In discussing the management of the preserves, NARS commissioner Jim Jacobi said he felt that the monitoring component in all of the proposals needed to be stronger. Monitoring accounts for five to eight percent of the budgets for the preserves – too low for Jacobi, who believes ten to 15 percent of management efforts should be devoted to monitoring.
TNCH’s Sam Gon (who has recently been appointed to the Land Board) explained that large areas with canopy systems are difficult to assess with on-the-ground monitoring. At Mo`omomi, he said, there is the potential for on-the-ground monitoring of weed and mammal control impacts on shearwater populations. To determine things like the effectiveness of fencing on a landscape scale is difficult, but is something TNCH is interested in developing the ability to do, Gon said.
Natural Area Reserves System program manager Randy Kennedy added that monitoring is a difficult task to tackle. “There are all different kinds of monitoring…We’re waiting for a tool to implement and fund,” he said.
Edlao, Gon, Johns
The Senate has confirmed the appointment of two new members to the Land Board and the reappointment of a third.
Jerry Edlao, who owns Accu-Pest and Termite Control, has replaced outgoing Maui Land Board member Ted Yamamura. Edlao is a former chair of the Maui County Planning Commission and vice chair of the county’s Board of Variances and Appeals.
Sam Gon, senior scientist and cultural advisor for The Nature Conservancy of Hawai`i, replaces at-large member Toby Martyn. Gon has been an affiliate faculty member of the University of Hawai`i’s Department of Urban and Regional Planning and is a Hawaiian cultural practitioner.
Elado’s and Gon’s terms will expire June 30, 2009.
The governor reappointed at-large member Timothy Johns for a second four-year term. Johns’ term expires June 30, 2010. Because the maximum time a board member can serve without interruption is eight years, Johns is being required to step down from his post on May 6, 2009, according to DLNR public information officer Clifford Inn.
Johns, a former director of the Department of Land and Natural Resources and Land Board chair, replaced at-large member Colbert Matsumoto in May 2001, when Matsumoto left his post a year early to serve on the state’s Employee Retirement System Board. Johns was appointed to his first four-year term in 2002. (Attorney General Opinion 74-4 states, “A board member who has served a partial term followed by a complete term may continue to serve until he has served eight consecutive years.”)
Although Hawai`i island member Gerald DeMello’s term ends this month, the Senate rejected Governor Linda Lingle’s Big Island nominee, rancher Frank De Luz III. Many senators said he lacked a basic understanding of land and natural resource issues and failed to identify potential conflicts of interest he might encounter while serving on the Land Board.
— Teresa Dawson
Volume 16, Number 12 June 2006