Board Talk

posted in: Board Talk, January 2005 | 0

Land Board Issues Concessions To Na Pali Zodiac, Kayak Operators

The three companies operating boat tours along Kaua‘i’s Na Pali Coast have been awarded three-year concession permits from the Board of Land and Natural Resources to continue their operations in three areas of Na Pali Coast State Wilderness Park.

Under the new permits, Na Pali Eco Adventure/Capt. Zodiac, Kaua‘i Sea Tours, and Lady Ann Cruises will be allowed to take a total of 120 people a day to Nualolo Kai, 60 people to Miloli‘i, and 12 people per day to Kalalau. Under their old permits, they were taking 150 people to Nualolo Kai, 36 to Miloli‘i, and 24 to Kalalau.

The Land Board also approved three-year concession permits for three commercial kayak tour companies that had permits from the Department of Land and Natural Resources’ Division of Boating and Ocean Rec reation, but none from State Parks. The kayak companies have been taking people from Ha‘ena beach to Polihale State Park, resting and lunching at Miloli‘i on the way.

Initially, the Miloli‘i kayak permits were proposed to be “annually renewable.” But Land Board member and former DLNR ad ministrator Tim Johns warned State Parks Division chief Dan Quinn that using the term “annually renewable” would “make it harder for your lawyers to protect you” if the DLNR were sued for not renewing a permit.

“I don’t think we should be making statements that there’s an expectation of renewal,” he said. “If it’s a one-year permit, it’s a one-year permit. You’re not barred from being renewed, but saying it’s annually renewable almost makes it…is it automatic? If it is then we should face that and make that determina tion, that they’re automatic.”

Land Board chair Peter Young suggested that the board could reserve the right to terminate permits based on impacts to the resources.

While Quinn noted that there are always cancellation clauses in any permit, Johns said, “I’ve been in too many meetings with lawyers arguing that these [permits] are tantamount to a property right.” (While Johns was DLNR director, the department was sued successfully by commercial boaters operating on Kaua‘i’s north shore after the Land Board voted to end all commercial boating in the Hanalei area.)

“If we’re going to make a policy decision that these guys get forever, then let’s do it. But if we’re not, then we shouldn’t make it easier for the lawyers to make that case. I can see the argument for saying once we’ve chosen an operator, they should be there until they violate the rules of the contract we’ve made with them. That’s a position, but I don’t think that’s the position the state has taken… Up till now [the state’s position] is, [a permit] is not a right, it’s a privilege that’s granted at the discretion of the department, year to year.”

Young tried to assure Johns, saying, “The department has consistently, in discussion with these operators and others, reaffirmed that it is a privilege that is granted and specifically stated that it is not a right.”

To avoid the pitfalls of annually renewable permits, the board voted to make the kayak concessions three-year permits.

For both the zodiac and kayak concessions, the permits will come back to the board after two years to allow the board to decide whether to continue the permit, giving the permittee a year to prepare in the event the board chooses not to renew it.

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Privatizing Parks

With its parks division lacking adequate staff and money to do even basic maintenance, the Department of Land and Natural Resources is hoping to develop concessions at “underutilized” recreation areas across the state. One of the first of these was established at the Land Board’s November meeting, when the board approved a concession agreement with the Hawai‘i Nature Center to develop and manage an educational center and other activities, including fishing for a fee, at Kaua‘i’s Wailua Reservoir.

Last month, the Land Board gave conceptual approval to a similar proposal to develop recreational and educational opportunities at Pu‘u Wa‘awa‘a in West Hawai‘i. According to a State Parks report to the Land Board, the DLNR hopes to introduce more revenue-generating activities in the former pasture lease area, including camping, and trail, vehicle and hiking tours, and establish education programs and centers.

A structure known as the Pu‘u Wa‘awa‘a meeting house, illegally built by a former lessee, is “currently being underutilized,” the report states, adding that the Pu‘u Wa‘awa‘a master plan prepared earlier this year by the Division of Forestry and Wildlife proposes to use the house as an educa tion center.

On the state’s makai lands, adjoining Kiholo Bay, sits country singer Loretta Lynn’s former residence, which the state acquired in 2001 through a land exchange with Big Island resident Earl Bakken. The house has been boarded up as it lacks water and electricity, but the Pu‘u Wa‘awa‘a master plan proposes to bring this house up to county code and turn it into an interpretive center and office facilities.

As part of the Bakken exchange, Bakken agreed to manage the three-acre parcel that includes the Lynn house until July 2006, after which State Parks will take over. Because State Parks doesn’t have the resources to transform the meeting house or the Lynn house, the division requested that the Land Board staff allow it to issue a request for information (RFI) to solicit interest and proposals for the education/recreation con cession concept. The RFI will advise appli cants to comply with guidelines prepared by the Pu‘u Wa‘awa‘a advisory council and require them to explain their qualifications. The winning concessionaire will be required to comply with Hawai‘i’s environmental review law, Chapter 343, the proposal stated.

Board member Johns asked that when State Parks returns to the board with its proposals, they be put in the context of the master plan for Pu‘u Wa‘awa‘a.

Also at the December meeting, the board approved a State Parks request to “issue, evaluate, accept and select a request for qualifications/request for proposals” to develop, maintain and manage public recreational fa cilities at Hapuna Beach State Recreation Area on Hawai‘i.

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Arboretum Violates Conservation Rules

Lyon Arboretum has been fined $10,250 for a series of Conservation District violations on its 124-acre Manoa Valley property. The University of Hawai‘i-run facility, which was recently shut down for safety reasons, existed before the Conservation District was established in 1964, and had therefore been allowed to continue operating as a non-conforming use.

Over the years, however, the arboretum built several structures and undertook activities on the property without permission from the Land Board. At the Land Board’s Decem ber meeting, the DLNR’s Office of Conservation and Coastal Lands recommended fining the arboretum $2,000 for renovating and al tering seven existing structures; $2,000 for building a Children’s Learning Center; $2,000 for landscaping (including a memorial gar den, water features, signs, statutes, benches, trails, and pathways, and drainage); $2,000 for conducting commercial activities (visitor gift shop, plant sales, etc.); $500 for building a visitor kiosk, rain shelter, and pavilion; $500 for building a storage shed; $250 for building a large greenhouse and acclimation yard; and $1,000 in administrative fines.

OCCL staff recommended that in addition to paying the fines, the UH College of Natural Sciences submit an after-the-fact Conservation District use application for the illegal structures. College of Natural Sciences interim Dean Chuck Hayes did not contest the fines and the Land Board voted unanimously to approve OCCL’s recommendations.

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Maui Wind Lease Changes Hands

A new developer has received Land Board approval for a lease of state land on which it plans to construct a long awaited wind farm at Ukumehame, Maui. Kaheawa Wind Power, LLC, received Land Board approval of its lease on December 10. The Hawai‘i-based com pany is owned jointly by UPC Wind Partners, LLC, of Massachusetts and Makani Nui Asso­ciates, LLC, a Maui based company.

Kaheawa has taken over development of the 30-megawatt wind farm from Hawi Renewable Development, which received Land Board approval for a lease and a Conservation District Use Permit last year to build the project on state-owned land in the Conserva tion District.

In a November 8, 2004, letter to Land Division administrator Dierdre Mamiya, Kaheawa’s vice president Mike Gresham explained how the project changed hands.

Maui developer Kent Smith and engineer Hilton Unemori were HRD’s partners in 2003, Gresham wrote. After HRD and its then-partner GE Wind Energy received the necessary Land Board approvals, he continued, “all parties thought that Maui would soon have a source of renewable energy for the local community. Unfortunately, the prior applicant did not aggressively develop the project.” GE decided to focus more on manufacturing than on project development, Gresham wrote, and HRD decided to focus on other projects. Those decisions gave Smith and Unemori “the opportunity to add a partner with exceptional renewable wind energy experience to the team.” (Actually, Smith and Unemori sued HRD in federal court for breach of contract; for details, see the September 2004 Environment Hawai‘i.)

Gresham continued that Smith and Unemori “quickly searched for the best candi iate with which to partner to achieve the original goals of the project. The principals of UPC Wind Partners, LLC [namely Keith Avery, formerly of Zond Pacific, which initiated the project in the 1980s] were already aware of the project, and let Mr. Smith and Mr. Unemori know of their interest. Both parties recognized each others strengths and agreed to a partner ship to see the project to completion.”

Smith and Unemori formed Makani Nui Associates, which owns 49 percent of UPC Hawai‘i Wind Partners, LLC, of which Kaheawa Wind Power is a subsidiary. UPC Wind Partners owns the other half of UPC Hawai‘i and Kaheawa.

While the board had no objection to the change in ownership, it was concerned about Kaheawa’s ability to finish the project, given the poor track record of former lessees. Since Zond was issued a right of entry in 1995 to collect wind data from the site, nothing has been built. Instead, the project has been passed from one company to another. In 1997, Zond was acquired by Enron Wind, whose assets were then sold to GE Power Systems in 2002. In 2003, GE sold its interest in the project to HRD, which then sold its interest to UPC in 2004.

The DLNR’s Land Division initially proposed that Kaheawa post a $90,000 performance bond for the project. Performance bonds are supposed to help cover rental delinquencies and remediation costs. The board decided $90,000 wouldn’t be nearly enough to cover removal of the $62 million project if for some reason, Kaheawa abandoned it. On the condition that Kaheawa work with the Land Division on an acceptable performance bond amount, the Land Board approved a 20-year lease to Kaheawa, with an option to extend 20 more years. Annual rent for the first ten years will be the greater of $150,000 or 2.5 percent of gross revenues. Rent for the second decade will be between 2.5 and 3.5 percent gross revenue.

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State Sells Parcel To Big Surf Trust

As a developer who does a lot of work on the Big Island, Land Board member Kathryn Whang Inouye says it’s important to listen to the Hawaiians who have ancestral ties to the areas her company is developing. In the case of 3,096 square feet of filled land abutting the former estate of newspaper publisher Lorrin Thurston, Kalani Nakoa, a Kona beach boy and Kona residents Clement “Junior” Kanuha and David Roy, Jr., opposed the idea of allowing public access anywhere near King Kamehameha’s former home and seat of gov­ernment, citing its history of being kapu to commoners.

So despite arguments by Public Access Shoreline Hawai‘i’s director Jerry Rothstein that the parcel was easily accessible by the public and should remain in public hands, the Land Board voted unanimously to sell the land to the current owner, Big Surf Trust.

At a previous Land Board meeting, Rothstein proposed that the trust build a footbridge connecting the two portions of filled land separated by a channel that Thurston illegally dug decades ago. The Big Surf Trust has rejected this, according to a report presented at the December Land Board meeting by agents for the trust.

Traditional access in that area was never laterally along the shore, the trust argued. The trust’s property is where King Kamehameha spent his last days, according to Roy, a native Hawaiian consultant. And to reach the larger portion of the filled land, one must walk along a seawall abutting the trust’s property.

The trust’s report states, “It is not culturally appropriate to consider this sacred area a prime ‘recreational resource.’ The grounds of the king were accessible only to those of high mana. The state should work with Ahu`ena Heiau, Inc. [which maintains the nearby heiau fronting the Kona Beach Hotel] and Big Surf Trust to protect this historic area rather than increase the likelihood of abuse to this site. Ahu`ena Heiau, Inc. and the Kona Beachboys have had problems with vandalism and transients in the past.”

The trust stated that Ahu‘ena and the Kona Beachboys believe a footbridge would increase the number of transients and drug users in the area. Furthermore, “The estate has several historic sites, including several prehis toric rock walls that would be damaged if unlimited public access is allowed.”

At the Land Board’s meeting, Rothstein argued that the parcel did not meet the state’s criteria for sale since it was still accessible to the public along the shoreline. But board mem ber Inouye countered Rothstein, saying that the lineal descendants of the area “don’t want the public near the heiau.” She moved to accept staff’s recommendation to sell the property.

After the board’s unanimous approval, Rothstein accused the board of “working for private, not public, interests.” He has indi cated his group will consider challenging the board’s decision in court.

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Secret Minutes

On December 2, 2003, the Land Board voted to go into executive session to discuss “private” matters with the attorney representing the family of someone accused of Conservation District violations. After Environment Hawai‘i reported on the vote and subsequent closed meeting, state Senator Les Ihara asked the Office of Information Practices to investigate whether this executive session was appropriately conducted.

The OIP found the meeting was improper. In a ruling last August, it stated, “if an alleged violator offers information about personal problems as a defense or mitigating factor for the alleged violation, then the public has a strong interest in knowing the information the board had before it in making a decision.”

In November, Environment Hawai‘i requested and received a copy of the minutes of that executive session. They appear in their entirety below:

“Motion made at 9:37 a.m. by member McCrory and seconded by member Johns to move into executive session to discuss confi dential matters pertaining to this submittal.

“Members present: Chairperson Young, Kauai Board member Lynn McCrory, at-large board member Timothy Johns, Maui board member Ted Yamamura, deputy attorney general Linda Chow, Land Division administrator Dede Mamiya, and John Carroll [attorney for the Alfred J. Andrade LTP Partnership, which was accused of unauthorized use of state land, and illegal grading and dumping of trees onto state lands].

“Mr. Carroll informed the members of the board the family of Alfred J. Andrade has filed a petition for guardianship of Mr. Andrade. The hearing for guardianship is scheduled for December 17, 2003. He told the board the partnership has agreed to pay the fines and will complete the remediation plan. Mr. Carroll informed the board any fines set by the board will not be coming out of Mr. Andrade’s funds but from his wife. Lastly he made it known the trees cut by Mr. Andrade were on private property but Mr. Andrade used the state’s property as a means to remove the trees that were cut.”

— Teresa Dawson

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Congress Reinstates Winter Ban On Maui Thrillcraft

A state DLNR rule intended to protect migrating humpback whales from interacting with parasail operations and jet skis has been temporarily reinstated. The ban was thrown out in a lawsuit heard by U.S. District Judge Susan Oki Mollway, who ruled that the state effort to protect whales did not comply with requirements in the federal Marine Mammal Protection Act. (For details, see the October issue of Environment Hawai‘i.)

Language put into the federal appropria tions act for fiscal 2005, however, gives the state the authority that Judge Mollway said it lacked. Judge Mollway immediately granted a 30-day stay on her earlier order prohibiting the state from enforcing the ban, which runs from December 15 to May 15. Now, says deputy attorney general Bill Wynhoff, the state will ask the 9th Circuit Court of Appeals to send the case back to Mollway for reconsideration in light of Congress’ action.

The appropriations act did not amend the Marine Mammal Protection Act generally, but rather gave Hawai‘i a specific exemption: “Hereafter, notwithstanding any other Federal law related to the conservation and management of marine mammals, the State of Hawai‘i may enforce any State law or regulation with respect to the operation in State waters of recreational and commercial vessels, for the purpose of conservation and management of humpback whales, to the extent that such law or regulations is no less restrictive than Federal law,” the legislation reads.

“Bottom line,” says Wynhoff, for now, “the parasailers aren’t parasailing – or at least I assume they’re not.”

— Patricia Tummons

Volume 15, Number 7 January 2005

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