Contested Case To Be Held For Maunalua Bay Dredging
“I ask for help, help, help. Nobody gives help,” Marshall Rosa told the Board of Land and Natural Resources at its meeting on July 7.
Rosa entered the meeting carrying a clear plastic tube containing 30 inches of sand he had taken that morning from a site in the Hawai`i Kai Marina. The state Department of Land and Natural Resources’ Division of Boating and Ocean Recreation wants to dredge the site and deposit the dredged spoils on the beach fronting Rosa’s house. Rosa, whose house is closest to the dredging site, showed the board the core sample. At just 30 inches below the surface, the sand was a smelly, dark, silty, gray. The project calls for dredging down to six feet, yet no core sample was taken to measure the sand’s quality.
“They’re not doing their homework,” Rosa said of DOBOR. To make passage to the private marina safer, the agency plans to dredge 6,500 cubic yards of sand from the entrance channel and dump it on Portlock Beach. To keep the dredged sand in place, a groin made of sand-filled polyester bags will be constructed on the channel’s east side.
On June 8, Rosa petitioned the DLNR for a contested case hearing. His petition stated that he was concerned about damage to the marine environment and erosion to the shoreline, and that the beach replenishment portion of the project was not well studied.
“Dredged material may not be suitable for placement on the beach,” he said in his petition. “Core samples should have been taken. If [the sand is] not suitable, then what? There are no funds to bring in sand from elsewhere. How will it be placed on the beach? Noise control? If the sand is not clean, what about the damage to the marine environment?” he wrote.
He added that, according to DOBOR acting administrator Howard Gehring, the groin is a “demonstration sandbag groin” and “does not require a lot of complex calculations and is not an optimized structure. Its performance will indicate the need for design modifications.”
When Gehring testified before the Land Board on July 7, he practically asked the board to deny Rosa a contested case hearing, warning the board that delays could mean reducing the project’s scope.
“We’ve already reduced the scope of work from the original amount due to a funding shortfall. Whatever costs and whatever further delays in this due process could reduce it even further. So I have concerns associated with that,” Gehring told the Land Board.
Land Board member Colbert Matsumoto had different concerns. On July 24, 1998, the Land Board had held up the award of a construction contract for the project as a result of concerns raised by the Sierra Club, according to the staff submittal, prepared by DOBOR. According to Matsumoto, the staff submittal failed to reflect the fact that the opposition was not only from the Sierra Club, but from many Hawai`i Kai area residents. In addition, Matsumoto told Gehring, “I had raised a concern regarding the legal liability and exposure the state was assuming almost a year ago. I would anticipate that I could have an opinion on that by now. I’ve yet to see anything addressing that…. I made it very clear that I wanted an analysis because some of the people that oppose the project have raised concerns as to the potential adverse impact that this project would have on their property and have made it clear that they intend to hold some party responsible if there is that kind of damage.”
Board chairman Johns also reminded Gehring that “the fear of losing funding is not one of the criteria that you examine when you determine whether someone has a right to a contested case.”
“Understood,” Gehring replied. “But I thought I would be remiss if I left out where the money is coming from to support it.”
A handful of Hawai`i Kai Marina Association members testified against the contested case, with most urging the state to get on with the project.
Over their protests, the Land Board voted to approve the contested case.
Johns added, “The reason for the system we operate under is to prevent, at times, the tyranny of the majority. The number of dollars that are involved, the number of petitions that are signed, do not change whether this person has due process rights or not.” Also, Land Management administrator Dean Uchida assured Matsumoto that a legal analysis of the state’s liability with regard to the project would be completed before the contested case.
Board Renews Kane`ohe Bay Permits
“Why do we need to fight this battle today?” Tim Johns asked Joe Pickard, John Reppun, and the few other testifiers who showed up at the June 25 meeting of the Board of Land and Natural Resources to oppose the issuance of new permits to Kane`ohe Bay commercial operators.
Johns, the Land Board’s chair, was referring to the argument, put up repeatedly by Kane`ohe Bay Regional Council members Pickard and Reppun, that the Land Board should vote in accordance with the recommendations made in the Kane`ohe Bay Master Plan. That would mean ending thrill craft and high speed uses and moving vessels to locations specified in the plan when permits are abandoned, e.g. when permittees fail to apply for new permits. The Land Board’s continued renewal or issuance of permits with the conditions inconsistent with the master plan — completed in 1992 — has been a bone of contention for years. This is due, in part, to the fact that the language in the plan is “not artfully drafted,” Johns said.
According to the master plan, thrill craft operations in the bay will end only if permits are “sold or terminated.” Some of those who testified against the permits — including state Senator Bob Nakata and Kane`ohe Bay Regional Council member David Higgins — argue that operators who fail to apply for new permits once their old ones expire are abandoning their permits. And to them, “abandoned” equals “terminated.”
All of the Ocean Recreation Management Area permits for Kane`ohe Bay commercial operators that were extended by the Board of Land and Natural Resources last December were to have expired on June 10. However, as the Division of Boating and Ocean Recreation did not get Land Board approval for new permits before the expiration date, the permits were administratively extended until June 27 so that the Land Board could vote on the matter.
At the June 25 Land Board meeting, DOBOR staff recommended that the board authorize new ORMA permits for one year for 11 commercial operators in Kane`ohe Bay under substantially the same terms and conditions of previous permits.
Staff also mentioned it had suspicions about snorkel tour operator North Bay Boat Club’s reports of gross receipts and recommended that an audit be done. According to the staff submittal, “In addition to untimely submittal of monthly gross receipts, they regularly report zero gross receipts when we have observed them in operation on the bay.”
The first to testify against the permits was Pickard, who told the board that, since the permits expired on June 10, staff recommendations should have been in accordance with the Kane`ohe Bay Master Plan, which would prevent Morning Star Cruises from staying at the bay’s sand flat area. Since the DLNR staff recommended that Morning Star stay there, Pickard argued that the DLNR was therefore creating a new permit, one that he had a right to apply for. (This same issue was raised in June 1998. For a fuller discussion, see the July 1998 cover and July 1998 editorial of Environment Hawai`i.)
In 1998, Pickard requested a contested case hearing, claiming that the DLNR was acting illegally by allowing Morning Star to stay at the sand flat.
Pickard, who received no response from the DLNR regarding his contested case hearing, sued the Land Board, but the lawsuit was eventually dismissed. At the board’s June 25 meeting, the DLNR’s position on the matter was apparently the same, and Pickard again asked for a contested case hearing regarding Morning Star Cruises’ permit for the sand flat area.
Questioning Authority
John Reppun, who was with Pickard at the June 1998 meeting and who had also requested a contested case hearing then, expressed a number of concerns.
“The expiration of these permits, in past Land Board hearings, brought on questions regarding the authority under which permits were extended. Was that authority delegated properly (if that is possible) then or now? There were at lease two requests for contested case hearings (one of them my own) that were submitted in timely fashion then blatantly and illegally ignored… Some raised the question — still appropriate today — over the lack of proper notice and the required 30-day agency/public review. Those questions go unanswered. Others have asked how it is that permits are given formal consideration … when no one has applied! At least one fisherman stated, in writing, that he was interested in applying for a commercial permit – so he could supplement a dwindling income from slow fishing. He received no response and was — and maybe will be again — passed over. Lots of questions here, but few answers,” he stated in his written testimony.
In oral comments, Reppun spoke to the contested-case issue. Reppun told the board that if someone requests a contested case, the matter of standing must be discussed before action is taken on that issue. That was not done last time, he said.
Reppun also addressed DOBOR’s recommendation to give Kualoa Ranch a full-service permit, despite the state’s contention that Kualoa Ranch does not have a lease to use the land where it operates (an area known as Secret Beach or White Sands). “How do you issue a permit to an operator with no lease?” he asked.
All of the 11 Kane`ohe Bay ocean recreation management area permits should be denied based on DOBOR’s failure to give a 30-day notice for public and agency comment, Reppun argued, since the Kane`ohe Bay Master Plan states that applications for permit renewal shall be publicized for comment 30 days before action on the renewal.
According to Johns, however, the 30-day notice is not mandatory or statutory. “Only part of that [Kane`ohe Bay Master] plan is the Legislature part,” he told Reppun. “The rest is your dream.”
Reppun then asked for a contested case hearing.
After an executive session, the Land Board approved staff recommendations, with the addition that DOBOR audit permittees regarding their gross receipts. Other amendments related to the wording of an insurance provision and the submission of a review by the Kane`ohe Bay Regional Council of “sea walker” activity.
Regarding contested case hearings requested by John Reppun and Joe Pickard, the board found that there was no basis in statute or law for granting their requests.
Lu`uwai Family Gains Access to Maui Reserve
On June 25, the Land Board granted two senior members of the Lu`uwai family a one-of-a-kind special use permit to practice cultural fishing in Ahihi-Kina`u Natural Area Reserve on Maui. This permit is the state’s first attempt to regulate traditional and cultural gathering rights in a natural area reserve. (For details, see the February 1999 issue of Environment Hawai`i.)
On September 17, 1997, Rudy Lu`uwai submitted his first application for this permit. The Natural Area Reserve System Commission established a working group to evaluate the issue. Its proposal was sent to the NARS Commission earlier this year, which voted unanimously to forward it on to the Land Baord, with a recommendation for approval.
What the Land Board approved was a one-year permit that will start August 1. The delayed issuance was requested by DLNR staff so that the Division of Aquatic resources would have some time to monitor the area before the Lu`uwais begin their fishing. The family can fish four days out of the year and must prepare a list of those Maui relatives who may fish. One permit will be issued to the two senior members of the Lu`uwai family.
At the Land Board meeting, Robert Lu`uwai testified that he and his family would help monitor and report poaching by other fishermen in the area.
— Teresa Dawson
Volume 10, Number 2 August 1999