Blades of grass peek through the spokes of an iron wheel half buried in the pasture high on the western slopes of Mauna Loa. For unnumbered years the wheel and a few other indecipherable machine parts, bright orange with rust, have lain there, abandoned to the elements. Whatever useful purpose they had has long since past, but the former owners of the land, who say the rusty parts are their personal property, insist the government has a duty to pay them or a commercial mover $3,600 to dig them up and haul them down rutted jeep roads to a storage site.
The same goes for a half-buried water line. To trench it up, haul it off, and reinstall it has been estimated to cost at least $28,800, four times the cost of new pipe. Also for koa brush leftover from logging operations in the early 1990s and arrayed as a kind of disorganized rail fence at a pasture’s edge; the cost of moving it to the headquarters of the former owners’ ranch has been put at $20,000.
These and nearly 60 other items appear on a list over which the U.S. Fish and Wildlife Service has locked horns with former owners Moani Zablan and Nohea Santimer and their associates – Joe Santimer (Nohea’s husband) and Bill Rosehill, an adviser who says he is unpaid. The dispute concerns what things should be counted as personal property and how much the government is obligated to pay to have them removed from the land, purchased by the government in 1997 as a wildlife refuge. Before the matter became a federal court case last year, Zablan and Nohea Santimer offered to settle their claims for relocation expenses with the government for just under $250,000. The government’s counter-offer was $85,000.
The clash over moving expenses is just one stumbling block, albeit a huge one, the Fish and Wildlife Service faces as it tries to manage 5,300 acres in the South Kona district of the Island of Hawai’i. As reported last month, a nasty disagreement over terms of access to the government land has also blocked the service from implementing its plans for the area, purchased at a cost of $7.78 million. With the parties unable to agree on these and most other matters that have come up over the last six years, the service last June closed its Kona refuge office.
In dozens of letters to the agency, the sellers or their spokesmen have made it clear that they believe the problem lies with heavy-handed bureaucrats who have no respect for private property rights or the inconvenience their wishes may impose on others. They have attempted to bill the agency for millions of dollars for the time they say it has cost them to deal with the agency and the income from the property they say they could have had but for selling it to the government.
Officials with the Fish and Wildlife Service, on the other hand, say off the record that they have never before dealt with sellers as difficult as these. Most involved with the South Kona refuge would probably agree with the view expressed by the author of a memo in 2000, who, in summarizing the dismal history, wrote:
“Soon after possession was granted to the service, LMT [the Les Marks Trust, made up of three sisters – Zablan, Santimer, and Noenoe Lindsey] turned over some of the remaining tasks, i.e., relocation and refuge access, to one of the trustee’s husband, Mr. Joe Santimer, and a consultant, Mr. Bill Rosehill. Since that time, there has been a series of actions and inactions by LMT and Messrs. Santimer and Rosehill that have greatly impeded the administration of the relocation program and has left the refuge landlocked by lands owned by LMT.”
Valuable Assets?
In the early 1990s, the last wild flock of ‘alala (Hawaiian crow) was found in the South Kona lands that once made up the huge McCandless Ranch. By this time, the ranch had been informally divided among three Marks heirs (grandchildren of Lincoln McCandless). Elizabeth Marks Stack received the northern third of the lands, renamed Kealia Ranch. The Les Marks Trust received the middle lands, renamed Kai Malino Ranch. Cynthia Marks Salley retained the most southerly portion, which became known as the McCandless Land & Cattle Co. In settlement of a lawsuit, the ranch owners agreed to allow the Fish and Wildlife Service access over their lands to observe the ‘alala and remove eggs from the wild pairs’ nests, for hatching at a captive propagation facility.
Through cooperative agreements, all three ranches received funds from the Fish and Wildlife Service for use of ranch roads and jeep trails across the steep, rugged terrain. Meanwhile, the owners of Kai Malino Ranch, facing a large inheritance tax, put their land on the market. By 1997, Congress had appropriated the necessary funds (thanks in no small part to the sisters’ active lobbying) to acquire most of the ranch between the 2,000-foot and 6,000-foot elevation, a span that included high-quality native forest in the lower ranges and more open pasture higher up. In March of that year, the three daughters of Les Marks signed an agreement to sell the property to the Fish and Wildlife Service. As title to the land was clouded with numerous claims, they opted to have the government acquire the land through condemnation, which was done in December of that year.
The government’s first notice to vacate arrived in March 1998. Realty specialist Georgia Shirilla, in the service’s regional office in Portland, Oregon, informed the sellers of their rights under a federal law providing for relocation expenses. Either the service would hire a commercial mover to transfer the sellers’ personal property to a new site up to 50 miles away, or, if the owners chose to move it themselves, the service would pay them an amount equal to the lower of two estimates from commercial movers, she wrote.
“We know you have cattle on Refuge lands and need to do some containment fencing in the area where the cattle will be moved,” Shirilla wrote. “Also, we are limiting access to Refuge lands through July 1 because of endangered species concerns. With these considerations in mind, we are hereby giving you until December 31, 1998, to remove all of your personal property from the Refuge,” even though the law required only 90 days’ notice.
Not that there appeared to be much to move. Most of the water troughs and salt boxes were broken beyond repair. The higher open areas were dotted with derelict and rusted metal parts long separated from any working machinery. Two piles of discarded and rotting koa, a native Hawaiian hardwood, bore testimony to logging years ago.
Be it ever so humble, all this and more appeared on the initial list of personal property that the sellers gave to Shirilla. Also included were eight miles of fences and posts, 300 head of wild cattle, all gates, two water tanks, and 90 head of domestic cattle.
Shirilla at once objected to the claim on the fences, which, she argued, the government acquired when it got the land. That prompted a three-page-long letter from Nohea Santimer to John Doebel, assistant regional director, in which Santimer complained that she and the other sellers “have come to an impasse as to whether or not the fences and gates on our former property are actually our personal property.”
“We have been put out of business by virtue of the sale/condemnation and perhaps the Government feels/thinks we have no need for the fences and gates,” Santimer wrote. “In addition we have not been paid for these valuable assets. Does either of these facts warrant that these assets automatically do not belong to KAI MALINO RANCH and therefore to the Government? I think not! Ms. Schirilla [sic] appears to be trying to steal these specific improvements to the benefit of BIG GOVERNMENT! We already have been through the scenario of the exclusion of a valuation on the easements and were forced by BIG GOVERNMENT to donate that to the Government… We have no intention of donating any more anything to BIG GOVERNMENT. Do not ask.”
Doebel attempted to reassure Santimer that “we are not trying to ‘steal’ the fences or any personal property from you. It is our position that we acquired the fences as a part of the real property. The miles of log/wire fencing are deeply entrenched in the landscape, and the other fencing is attached to the land.”
When Joe Santimer provided the Fish and Wildlife Service in August with a longer list of personal property, the eight miles of fencing were included. Also listed were items of dubious or little value, such as a pile of disintegrated bags of potting soil, “broken mineral boxes,” “rusty machinery parts,” and a rusted 55-gallon drum. The two slash koa piles and a stack of culled koa logs appeared on the list as well.
The list included domestic livestock – 146 head of cattle (not all of them on refuge land), 13 horses, and seven donkeys. The claim to own wild cattle was repeated, although this time the number was estimated at “500+.” Other wild animals the sellers claimed to own were 300 feral sheep, 1,500 feral pigs, 2,500 wild turkey, 8,000 Kalij pheasants, 300 Erckel’s francolin, 20 goats, 150 chukar, and 300 California quail.1 Certainly the most creative claim was for “all contents within all lava tubes (caves) including but not limited to: all living organisms, bones, remains of any kind, artifacts, petroglyphs, etc.”
High Bids
Shirilla arranged to have a handful of commercial movers and ranchers inspect the refuge land so they could provide estimates of costs of relocating the personal property to Waimea, about 75 miles away, where the Les Marks Trust said it planned to start a new ranch. The service did not take seriously the claim to own game birds and lava-tube contents. Nor was it ready to concede their ownership of feral cattle, although movers were asked to estimate the cost to capture and relocate them.
The sellers had informed the service, Shirilla told the movers, “that they will charge commercial movers for the use of their access roads to and from the refuge lands… If this is the case, we understand that the access fee will need to be added to your bid.” Also, “You will be required to carry liability insurance … LMT [Les Marks Trust] has asked for a $3,000,000 insurance policy.”
The estimates arrived at the Portland regional office in December. Only two of the parties who had toured the ranch submitted bids for moving about 30 items on the list that were on refuge land (about a dozen of the items on the list were on adjoining land still owned by the Les Marks Trust). Not counting costs of removing the cattle and other livestock, the lower of the bids, provided by Ernest Pung, came to $344,340. The higher bid, from rancher Freddy Rice, came to $415,850.
Three estimates came in for the capture and transport of livestock to Waimea. Assuming 89 head of feral cattle (the number estimated by the Fish and Wildlife Service following helicopter surveys) and about 36 head of cattle (the number claimed by the LMT), as well as 13 horses and seven donkeys, it would cost anywhere from $234,330 (from Kuahiwi Contractors), to $575,500 (from Pung), to $1,237,850 (Rice) to relocate them.
Suddenly, the Fish and Wildlife found itself looking at moving costs ranging from more than half a million dollars to three times that for equipment, fixtures and livestock whose replacement value, even new, would not be a fraction of that. And the sellers were pressing for even more, challenging the decision not to pay to move items not on the government’s land.
Stalling Out
In hopes of settling the dispute, the Fish and Wildlife Service brought to Hawai’i Barbara Satorius, a relocation expert with the Federal Highways Administration, which is the lead agency for federal relocations. Notes of the meeting she had with the sellers in January 1999 show Joe Santimer walked out barely half an hour after the meeting began, leaving Rosehill alone to argue the sellers’ position (although he indicated he was doing so only as a friend, not as an agent). The two-day meeting ended with no resolution of the issues, although the service agreed to give the sellers a formal list of items eligible for relocation assistance.
At about the same time, the service notified all the parties who had submitted moving estimates that it was rejecting all bids. A realty office spokesperson, asked to explain, told Environment Hawai’i that the bids came from friends of the sellers and were inflated. Yet Freddy Rice disagreed. Just the cost of getting the required insurance, he said, was $90,000. In other respects, too, the move would have been “totally prohibitive.” “We would have to make the roads that the trailers could go up” to take down the cattle, he added. “We’d have to hire big tractors to make the roads. I know it’s a horrendous figure,” he said, referring to his total cost, “but for less than that, we couldn’t do it.
Rice discussed the feral cattle and his bid of more than $11,000 per head to remove them. “The owners claimed that [feral cattle] as an asset. They could harvest it at leisure, use it for hunting – this and that. So … they just stuck the government on that. The government asked us for a bid. It would be a year’s work. I’d have to hire equipment, men, liability coverage. I added it all up, then I divided that figure by maybe 200, 300 head of cattle there.
“The first fifty percent are easy to get out. The second fifty percent, when they get thinned out – you might go up there for a week and come out with maybe 10 head. It’s forested and mountainous, lots of lava. Once the cattle catch on with what you’re up to, they can figure it out. Then they get really difficult to catch.
“I sit here now and think about it, and I’m still worried that the government may take me up on my bid.”
Rice noted that in all his years of ranching, he had never heard of anyone trying to relocate feral cattle. If they’re not where they belong, he said, “you shoot ’em.” The very idea of capturing and moving them was absurd, he said, adding: “The owners were just being da kine.”
The dispute over what constituted personal property (subject to relocation at government expense) and what assets ran with the land was appealed to the appraiser. Don Hallstrom of The Hallstrom Group, Inc., had conducted the appraisal that set the sales price. The service asked Hallstrom to indicate what value, if any, he had assigned to roads and fences. On behalf of the sellers, Rosehill asked Hallstrom for clarification also on the value assigned to lava tube contents, “including but not limited to bones, feathers, artifacts, fossils, all living organisms including those yet undescribed, etc.” “Would you please indicate whether these tangible items were a part of the appraisal as well?” Rosehill asked.
Hallstrom insisted that his valuation, first made in 1994 and updated in 1996, followed industry standards. Roads and fences like those found on the refuge parcel are “generally found on most properties similar” to it, he wrote. “Discussions with involved parties in comparable transactions suggested there was no consideration for fencing as additional compensation,” since that “was incidental to large landholdings of this nature.”
“Our assignment,” he continued, “was to value ‘real’ and not ‘personal’ property…. While the question of what constitutes real and personal property may sometimes be debatable, our experience suggests items such as [lava tube contents] generally stay with the land when ownership is transferred…. [W]e have never heard of ranch or agricultural land being stripped of all living organisms before transfer, or any compensation for such when they remain.”
But Rosehill didn’t let it drop. In June 1999, he wrote Hallstrom: “Lava tube contents, should there exist yet-to-be-named organisms, are in great demand and hence command a substantial value to anyone in the scientific community. A ‘discoverer’ of such can acclaim worldwide recognition, authority, prestige, and substantial financial gain. Such recognition is valuable and should not be at the expense of the Les Marks Trust.”
In any event, Rosehill told Environment Hawai’i, he did not want to have the lava tube contents relocated; “I only claimed that they were the property of Les Marks Trust and should be paid for,” he said.
A First Offer
In April 1999, the Fish and Wildlife Service issued its initial determination of items eligible for relocation assistance and the form of assistance the service would provide. Any payment for wild animals and lava tube contents was ruled out, as were claims for items or livestock not on land acquired by the Fish and Wildlife Service. For items of little or no value, the service would conduct a “minimal-cost move,” whereby refuge personnel would throw them in the back of a pickup and haul them down the hill to ranch headquarters. (This, the service claimed, was an offer made at the request of the sellers.) For other items, including domestic cattle, the service offered to have the items sold on site (with proceeds to the sellers) or moved “if move cost does not exceed value.” In a few other instances, the service’s offer was to replace the property with new goods (for example, the rotted bags of potting soil, two water tanks, and a solar panel and battery). Other eligible items could be moved at “reasonable cost,” the service said. Under federal relocation regulations, that meant that the sellers could have them moved commercially, with the service paying the lowest bid. Or the sellers could self-move, with the service paying them the lesser of the low bid from a commercial mover or the sellers’ actual costs.
In May, Rosehill notified the service that he was appealing the service’s determination. Anne Badgley, regional director for the service, responded with a letter to the Les Marks Trust. Did Rosehill’s appeal notice really represent the sisters’ wishes? she wanted to know. If so, the sisters would have to “provide a written statement signed by the trustees notifying us that [he] is your designated representative.” Also, she pointed out that the appeal process “does not delay the final date for removal of your personal property from refuge lands… Within the next couple of weeks, we need to know which method of reimbursement or payment you are electing.”
Rather than continue Rosehill’s involvement in the appeal, the sisters turned to the Native Hawaiian Legal Corporation, a non-profit law firm. Then-staff attorney Arnold Lum filed the formal appeal.2 Badgley’s warning that the property would have to be moved even as the appeal was pending was ignored.
By December 1999, the Office of the Solicitor of the regional Fish and Wildlife Service office had issued his findings. To resolve the dispute over the koa slash piles and cull logs, the solicitor had obtained estimates from Big Island miller Edward Winkler on the value of the wood in them and moving costs. (Winkler determined the two slash piles had no salvage value, although it would cost $20,000 each to move them to ranch headquarters; the logs had a value in place of $8,102.10, with moving costs to ranch headquarters estimated at $1,700.)
The bottom line on all moving costs, as determined by the regional solicitor, came to approximately $72,000. No payment would be made for relocation of wild animals or items not on refuge land. In lieu of moving domestic cattle, estimated at this time to number about 63, the service said it would be willing to pay the Les Marks Trust $20,000 and let it remove as many of them as it wanted. Two of the water tanks the service would purchase “as a concession” to the sellers for $16,000, if the trust relinquished its claim to them, and it would give the sellers about $7,000 as payment for a water line along a north-south road crossing the refuge if the sellers terminated their easement for this. The service accused the sellers of destroying half a mile of electric fence; if the sellers repaired that, the service was willing to buy the existing solar panel and battery based on the cost to purchase them new (around $500). If they did not repair the fence, the service would remove and store the panel and battery.
Low-value items would simply be hauled off the refuge land by refuge staff (the “minimal-cost” move). These would be stored at a commercial warehouse for up to a year. The service would pay $1,700 to move the cull logs to ranch headquarters, plus $20 a mile beyond that, to a distance of 50 miles. No payment would be made for the slash koa piles, but the sellers “could remove these piles at [their] own expense.”
Round Two
At once, Lum of NHLC appealed the regional solicitor’s findings to the Department of Interior’s Office of Hearings and Appeals. Among other things, he challenged the denial of moving costs for property not on refuge land; the decision to pay fair-market value for some items instead of relocation costs; the denial of moving costs for the koa slash piles; and the minimum-cost move for items of little value. Lum reasserted the claim that the Les Marks Trust owned the feral ungulates on refuge land and was entitled to relocation costs. The sellers did agree to accept the $16,000 offer for two water tanks (although this was later rejected) and $390 worth of potting soil delivered to the relocation site.
For two years, the matter was before the Office of Hearings and Appeals. In March 2002, the office issued its decision. On the matter of feral animals, the board found that ownership runs with the land; once title was transferred, the sellers’ ownership rights were extinguished. The sellers also lost their appeal of the denial of moving costs for property not on refuge land.
The hearings officers remanded to the service its decision to pay replacement value for the water line. They also decided that the sellers should have boarding costs for horses paid for up to a year, as well as livestock insurance and road user fees.
On the matter of the minimum-cost move for low- and no-value items, the hearings officers decided the service lacked regulatory authority to do this (although by this time the matter was moot: the sellers had withdrawn their request to have the service do this). And on the service’s decision to pay the replacement cost of items instead of the greater cost of moving them, the hearings officers found that the Fish and Wildlife Service’s “Relocation Handbook” provides only for the service to “negotiate” these issues with the owners. In any case, they wrote, “fair market value payments are intended to be made only when a displaced landowner elects to leave certain items” of personal property in place.
“The proper focus of whether an item is to be moved, substituted, replaced or considered abandoned,” they wrote, “is on the specific displaced business person. It is not up to the FWS to determine whether the displaced business should move, substitute, replace, or consider abandoned an item and calculate the compensation due.”
Still, the hearings officers rejected the sellers’ “insistence that FWS merely tender it the dollar figure represented by the lowest of the two bids without reference to actual costs” if they went with a self-move. The service was entirely justified in asking the sellers to present it with receipts and other documents to justify their demand for payment of moving costs, they wrote.
Moving – to Court
The Fish and Wildlife Service gave the sellers notice to vacate on May 1, 2002. Ninety days from the time the notice was received (May 10), their personal property had to be off refuge land. Within two weeks of receipt (May 24), the service wanted to know what items the sellers would be moving themselves, would have a commercial mover relocate, wanted to have stored, or intended to leave on site.
Attorney Lum responded with a “global settlement” offer. If the service agreed to pay $249,890, Nohea Santimer and Moani Zablan would consider all of the relocation issues resolved. The service counter-offered with its own proposal to settle relocation issues for $85,000.
The service and the sellers engaged in discussions aimed at finding common ground for much of June 2002. By June 21, talks had broken down and Lum notified the service that the sellers wanted their property moved commercially. Furthermore, since the option of relocating to Waimea had been lost, all the property “must be moved to storage.” Lum repeated past demands that the movers be insured for $3 million, that livestock insurance be obtained (requiring the presence of veterinarians when animals are loaded and unloaded), and payment of access fees for use of the sellers’ roads.
By this point, the Fish and Wildlife Service was no longer interested in helping arrange a commercial move. On July 11, regional solicitor Richard A. DeClerck informed Lum that the sellers’ failure to observe the notification deadline set in the service’s letter of May 1, “together with unresolved issues” such as access fees, insurance, and need for veterinary services, “have made it impossible to complete a commercial move within the required time frame.” If the sellers chose, they could still complete a self-move before the notice to vacate expired, DeClerck noted. “Fortunately, LMT earlier elected to utilize its more than adequate 2400 adjoining acres as its replacement s ite,” he added, pointing out that the sellers had earlier identified their adjoining lands as the replacement site “in order to receive FWS’s $10,000.00 business reestablishment payment.”
The Fish and Wildlife Service would still pay for the self-move, DeClerck added, but only under guidelines he had spelled out in his May 1 letter: “LMT will be required to fully and clearly document and itemize its actual costs, including records of hours worked and wages/labor paid (by and to specific individuals), number of trips, vehicles used, mileage, invoices, proof of payment (by specific individuals) and any other documentation needed to support its claims.”
This set the stage for the final exchange between Lum and DeClerck. On July 22, Lum set DeClerck straight on the parties involved: the Les Marks Trust had been dissolved for more than two years, he said, and its assets were now owned by Moani Zablan and Nohea Santimer. He disagreed that it was too late to arrange a commercial move: the service “has had three commercial movers/bidders waiting for the ‘go ahead’ to move the owners’ property for several years.” The August 10 deadline the service was working against had been set the service itself, he observed: extending a “self-imposed deadline should not be an obstacle.”
Further, Lum wrote, “the owners’ replacement site was never intended to be solely on adjacent non-acquired lands,” which, he wrote, could be used only seasonally. He repeated the offer to settle for $249,890 and closed by reminding DeClerck that under federal relocation regulations, “the displaced person, not the acquiring agency, has the right to choose between a self-move and a commercial move.”
DeClerck responded on July 25. He asked for documentation of the dissolution of the trust; if indeed it no longer existed, “clarification is needed … as to the ownership of” road and water easements across refuge land.
The movers’ bids Lum mentioned had been rejected in 1999, he continued. To carry out a commercial move at this time, new estimates would be required. “FWS, of course, needed the cooperation of the owners” in obtaining these, but since the information requested back in May had not been provided by the deadline, he added, it was impossible for the service to facilitate a commercial move.
That was the last direct communication between the sellers and the service. On August 7, three days before the deadline to vacate, Lum filed a complaint in U.S. District Court in Honolulu against Secretary of Interior Gale Norton, the acting director of the Fish and Wildlife Service, and the regional director. The lawsuit asked the court to overrule the finding that the feral cattle were not the plaintiffs’ property, to find that the service’s “refusal to accord plaintiffs adequate time to remove and store their property using commercial movers” violated federal law, and to impose appropriate relief.
After the lawsuit was filed, the service and the sellers embarked once more on a course of negotiations (with NHLC attorney Andrew Sprenger replacing Lum, who retired). A deadline for filing of motions for summary judgment was extended from November to June and again to August, with the parties telling Judge Susan Oki Mollway that they were “optimistic that settlement can be reached.”
On July 29, yet another extension request was made, although this time it was not to accommodate negotiations. With the parties “unable to reach agreement,” the judge ordered motions for summary judgment to be submitted by September 12. The matter is scheduled for hearing November 24.
- The cattle and other wild ungulates and game birds were valuable for commercial hunts. Bill Rosehill provided the Fish and Wildlife Service with a brochure on hunts conducted on the adjoining Kealia Ranch to establish the feral animals’ value. Guide fees are listed at $400 an hour per hunter, while fees for game that is shot range from $75 for a pheasant, to $200 for a wild boar, to $1,500 for a wild bull.
- When asked how a dispute over relocation costs fit into the NHLC’s mission, executive director Mahealani Kamau’u told Environment Hawai’i that when the case was brought to them by Nohea Santimer, who is part Hawaiian, it appeared to present some native rights issues. Since then, she said, the case “seemed to take unusual turns” that veered away from NHLC’s core mission: land title and title defense, protection of customary and traditional practices, and Hawaiian Home Lands and ceded land trusts. “When folks apply to have us represent them, we go over their request and evaluate it. The number one criterion is that the case fits within our scope of services.” In the Santimer case, she said, “having made the decision to commit to providing legal services, we were obligated to follow through. We are trying to see through with our commitment without compromising the clients’ interests, but also without compromising our mission.”
— Patricia Tummons
Volume 14, Number 5 November 2003
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