A logging operation that spilled onto state land in South Kona – accidentally, according to the loggers’ attorney – ended up taking from state land timber worth more than a million dollars. But when the Board of Land and Natural Resources was asked to consider issuing fines to the violators, it deferred action at the attorneys’ request.
The illegal logging occurred between 1997 and 1999 in the Kipahoehoe Natural Area Reserve in South Kona and on neighboring unencumbered state lands. According to information in a write-up of the events by the Department of Land and Natural Resources’ Land Division, the case had its start a decade ago, when the Damon Estate allowed Steve Baczkiewicz of Steve’s Ag Services, Ltd., to log koa trees on its Kahuku Ranch lands in Ka`u. The company agreed to pay the estate $800 per thousand board feet of koa milled and removed from the area.
In May 2001, a Natural Area Reserves staff member reported to the DLNR’s Division of Conservation and Resource Enforcement (DOCARE) that someone was removing koa trees from state land in the Kipahoehoe Forest Reserve. Upon inspection it was found that koa were also being taken from adjacent state lands.
Investigators then determined that Baczkiewicz and Wesley and Raymond McGee of Contract Milling were responsible. When the men were questioned, they said they had used a Global Positioning System reading from two points, “drew an imaginary line, and stayed above that line,” believing the area they were working within was above state land, according to a DLNR staff report. “Having walked the site with the DOCARE officer,” the report said, “Mr. Baczkiewicz admitted that he could see more clearly that he used one of the wrong points and further stated that when he walked in here to locate this point, the weather was bad with thick fog.”
In September 2001, the Division of Forestry and Wildlife surveyed the area to assess the impacts. It arrived at an estimate of the volume of cut koa by measuring and counting stumps and comparing them to existing trees. Altogether, it found:
-157 koa trees containing 74,791 net board feet of wood were taken from state land.
-50 koa tress containing 4,974 net board feet were felled but not removed from the site.
-Four kolea trees containing 357 net board feet were harvested.
-About two-tenths of a mile of road was cleared, resulting in the loss of eight-tenths of an acre of productive forest ecosystem.
-The total area cleared for processing felled trees was about half an acre.
Raymond McGee disputed the quantity estimated by DOFAW, saying he, Wesley McGee, and Baczkiewicz had removed no more than 15,000 board feet from the unencumbered state land. In defending their action, their attorney, C. William Chikasuye, said the men “made every effort to insure that they were on privately owned land.”
In August 2001, a board foot of koa cost $13.85. Using DOFAW’s estimates of board feet taken, the trees taken from state land would have been worth about $1,035,900. DOFAW estimates that if the state had allowed the harvest, it would have received at least $213,000.
Although DOFAW had surveyed the situation, it was Land Division staff that recommended a fine of $500 for each of the 211 trees removed, or $105,000. In February 2002, DOFAW prepared a plan to address the ecosystem degradation. The plan estimated that an initial $291,000 would be needed for reforestation, with and additional $3,050 a year for monitoring and maintenance.
Land Division staff recommended that the loggers pay a $105,000 fine, $291,000 for damages, and $9,886.46 for administrative costs.
But DOFAW administrator Mike Buck apparently felt the proposed fine was not high enough and would set an unfortunate precedent. In an email to the Land Board, Buck expressed concern that the value of the trees taken was not included in the penalty. “From a policy perspective, I believe that the material value of the resource illegally removed from DLNR lands should be part of the penalty. I understand this is standard practice in timber trespass incidents on the mainland,” he wrote. “I believe that in this case, damages should include the diminished value of the property as a result of the removal of the logsÉ” How the board votes in this issue, he said, “will set a precedent on how DLNR deals with illegal timber harvesting on public lands as well as other situations where public values are removed from public lands and waters illegally.”
Before the Land Board met on December 13 to decide on the issue, Chikasuye asked Land Division administrator Dierdre Mamiya for a deferral, since his clients want to do their own survey of the harvested trees. “He has hinted that he will likely ask for a contested case hearing at which time he’ll ask to do this survey anyway,” Mamiya wrote in an email to the Land Board.
Conservation Violations In Ha`ena and Hana
Although the Land Board deferred action on the koa logging violations, it approved several thousand dollars in fines as a result of three Conservation District violations on Kaua`i and Maui.
On their coastal property in Ha`ena, Ed and Joan Ben-Dor built a wastewater system and bamboo water closet without a Conservation District Use Permit. For this, they were fined $6,268 and ordered by the Land Board to tear down the water closet they had built to shower and change in. According to the Ben-Dor family’s attorney, Lorna Nishimitsu, they planned to build a house on the property, but not right away. In the meantime, they built the wastewater system and water closet to accommodate their frequent trips to the beach, not knowing they needed a permit to do the work, Nishimitsu said.
The Ben-Dors did apply for a Conservation District Use Permit for a house, but this was denied since the location of wastewater system they had already installed would cause the house to be too close to the beach. According to Sam Lemmo of the Land Division, the area is in the limited subzone of the Conservation District and is subject to serious erosion hazards. Years earlier, he told the Land Board, waves caused massive erosion and nearly destroyed some of the nearby houses. Currently, some of those properties are using sand bags to keep their land in place.
The Land Division had recommended that the wastewater system, along with the water closet, be removed. The family’s attorney, however, asked that they be allowed to leave it for now, in case some way could be found to place the house at a safe distance from the ocean.
With a warning that the system may have to be moved to get a CDUP, the Land Board allowed the system to remain.
In other shoreline issues, the Land Board found Josh Simpson had illegally built a rock wall and placed fill behind it on a beach in Aliomanu, Kaua`i. Simpson’s property is being eroded because of another rock wall along the same stretch of beach, his attorney, Jonathan Chun, told the Land Board. That problematic wall, however, has been “legalized” by the county and is not going to be torn down, he added.
According to Chun (who is a state senator), previous landowners had placed many of the boulders on the beach abutting Simpson’s property. Simpson simply added more boulders on top. Chun said that Simpson had already removed the dirt fill, much of which he said was also put in by previous landowners. Mitigation costs so far totaled $10,000, Chun said, adding, “We spent money fixing somebody else’s problem.”
The Land Board voted that in lieu of paying a fine, Simpson must spend $4,000 over the next year in shoreline mitigation that protects the point. Chun said Simpson is looking into beach nourishment.
For Conservation District violations in Hana, Bryce Buchanan, Doyle and Randall Bestill, and the Estate of Stephen Betsill were fined $7,000. In October 2000, DOCARE officers reported that five to six acres of their 26-acre property had been illegally graded and grubbed, trees had been cut, and that cattle were being grazed without permission.
The owners’ attorney, Gary Zakian, argued that there is no clear delineation between the part of their land in the Conservation District and that part in the Agriculture District, and that the violations weren’t intentional. The owners “just wanted to raise cattle on the property and did not understand the implications of the Conservation District,” Zakian said. He asked that the fines be reduced and suggested that in the future, more timely notice should be given so violators can begin mitigation as soon as possible.
The Land Board voted to keep the fine as staff recommended, but before voting, at-large Land Board member Toby Martyn said he found it hard to believe that the Betsills, who are developers on Maui, wouldn’t be mindful of the Conservation District.
Hana Violators Obtain Permits For Restoration
At its November meeting, the Commission on Water Resource Management approved an application for an after-the-fact stream channel alteration permit, a stream diversion works permit, and a petition to amend the interim instream flow standard to Gene and Lajon Weaver.
The Weavers had violated Conservation District rules last year when they graded and landscaped large portions of their land in Hana, began growing crops and built several structures without permits. On July 26, 2002, the Board of Land and Natural resources approved $10,000 in fines against the Weavers and ordered them to take down all of the structures unless otherwise allowed by DLNR staff, submit and implement a land restoration plan approved by the state Division of Forestry and Wildlife (DOFAW) and the Hana Soil and Water Conservation District, work with DOFAW on other violations committed in the Ko`olau Forest Reserve, and work with the Water Commission to resolve an unpermitted water diversion from Kopiliula Stream. The diversion occurred when the Weavers dammed a tributary of Kopiliula Stream and caused the water to flow into a storage tank.
The approved diversion is temporary, “solely for the purpose of implementing the Land Restoration Plan which was ordered by the [Land] Board,” which will be complete within one year, a CWRM report states. The commission also fined the Weavers $750 for not following procedures and not having proper permits. But because the Weavers have been quick to try to remedy their violations and because the diversion is meant to help fulfill the Land Board’s orders, $500 of the fine was deferred.
— Teresa Dawson
Volume 13, Number 7 January 2003