Deputy Attorney General Undercuts Board Decision on State Land at Onomea
For years, advocates of coastal access in the area of Onomea, on the eastern side of the Big Island, have been awaiting resolution of a dispute over ownership of lands that have been claimed by the Hawai`i Tropical Botanical Garden.
In August, the Board of Land and Natural Resources approved the garden’s request to install utility lines inside the garden, subject to several conditions, including the condition that within 90 days, the state and garden were to “complete a mutually acceptable resolution of the state land remnants … which may affect the proposed alignment” of the power lines. “If state land remnants are impacted by the proposed alignment, HTBG must obtain all necessary land disposition approvals,” the condition went on to say.
Another condition required the garden to “continue to implement the mediation agreement on Onomea Public Access, … particularly those elements specific to the resolution of land ownership, title, and public access.”
At the time, members of the community group Share Onomea Access, which had lobbied for access for years, were heartened by what seemed to be the Land Board’s prodding of the garden to bring the land dispute to resolution.
During the Land Board’s consideration of the matter, Dean Uchida, administrator of the DLNR’s Land Division, explained the need for resolution to the board: “If the [utility corridor] goes over the remnant, they [the garden] may need an easement from us or if it’s approved by the board, we can sell the remnants to Hawai`i Tropical Botanical Garden. So right now, we’re trying to locate where the remnants are, or agree where the remnant locations are first.” After that, Uchida said, if it turns out that the utility corridor crosses the remnant state lands, the state could “then determine whether an easement or sale would be more appropriate.”
Barely a month later, however, Dawn Chang, a deputy attorney general for the board, appears to have undercut the board’s decision. On September 25, Chang wrote Scott Lucas, the garden’s administrator, in response to two letters Lucas had written, asking the Department of Land and Natural Resources for approval of construction plans and specifications for the utility lines.
“Based upon our September 4, 1997 site visit in Hilo and discussions with you and [the garden’s surveyor], we have not reached a mutually acceptable resolution to the state land remnants,” Chang wrote.
Specifically, she said, the state disagreed with the garden’s position that there “are no state land remnants situated along the Kahali`i Stream and Onomea Stream.” The utility access was proposed to areas that would be affected by the utility lines.
“However,” she continued, “consistent with the Mediation Agreement, I am recommending that the Department issue HTBG a non-exclusive easement and construction right of way, as per your request, to facilitate the installation of the utility lines.” This, Chang said, was to allow the garden “to provide access in compliance with ADA requirements,” referring to the Americans with Disabilities Act. (The garden claimed that power lines were needed to recharge the golf carts that would be used to allow disabled tourists to visit the garden.)
Ed Henry of the Land Division’s planning branch, confirmed to Environment Hawai`i that he had already approved construction plans and that he understood the work was nearly done. He was asked whether this had the effect of giving away any leverage the state might have had to ensure compliance with the condition that resolution of the remnant issue might be completed within the 90-day time frame of board action (which expired November 21).
Henry had no answer. Nor could he say whether the state had issued an easement or right of entry to the garden covering the work. “I don’t do rights of entry,” he said, suggesting that the question be posed instead to the state land agent in Hilo.
Charlene Unoki, the Hawai`i District land agent, told Environment Hawai`i that no easement for construction of the utility line had been granted to the garden by her office or, to her knowledge, by any one else in the department.
Land dispositions — including easements and rights of entry — are decided by the Board of Land and Natural Resources rather than its administrative staff. Chapter 171 of Hawai`i Revised Statutes is clear on the point that there can be no disposition of public land at anything other than a regular public meeting of the Land Board. Since the August 21 meeting where the board gave its conditional approval to the garden for construction of the utility lines, there has been no board meeting to consider any land disposition (including an easement) for any remnant parcels along Kahali`i Stream or elsewhere within the garden.
For more information see the [url=/members_archives/archives1995.php]June 1995 issue[/url] of Environment Hawai`i.
Garden Discourages Public Access
In 1995, the Land Board determined that the public had a continuing right to use an old government road at Onomea that the Hawai`i Tropical Botanical Garden had blocked with a locked gate and, at one time, razor wire. Since then, the DLNR has erected signs where the road meets the Old Mamalahoa Highway (also known as the Scenic Route), letting the public know it can continue down the road to the ocean. The state road, maintained now by the DLNR’s Na Ala Hele (trails) branch, passes through parts of the garden, which lies beyond a high chain-link fence. One side trail runs alongside Alakahi Stream a short distance to the ocean. The main road leads to Onomea Stream, where, on the other side, it links up with what has become known as the Donkey Trail (itself another subject of disputed access, resolved ultimately in the public’s favor).
Recently, Share Onomea Access has become concerned that garden employees stationed on the bridge over Alakahi Stream have been informing people that they may not continue to Onomea and that access is limited to the Alakahi Stream trail. In early December, Ed Johnston wrote Rodney Oshiro of Na Ala Hele, detailing at least two instances where garden employees provided misleading information to members of the public.
“It’s my guess,” Johnston wrote, “that people who do not speak with the employee but simply press on down the trail are probably not impeded; too many people know the trails down there. But people who look like tourists (unfamiliar with the area and good for the price of garden admission) and who ask for information are misinformed. This clearly constitutes an impediment to access on the trail and to the Onomea shoreline.”
Johnston went on to suggest that the public access sign at the start of the trail should include a map “showing exactly where the public can go… Perhaps Share Onomea Access can do some fund-raising to help defray the cost of additional signage.”
Finally, Johnston noted that the garden continued to use the road for vehicular access. The mediation agreement, concluded in October 1995, allows the garden to use the Old Government Road (called the Onomea Access Road in the agreement) “until such time that all permits for an alternative access trail … and a new visitor center and administrative office … have been constructed.”
“Upon completion of the construction of the visitor center and administrative office,” the agreement states, “HTBG shall discontinue use of the Onomea Access Road for vehicular use.” In addition, the gate at the top of the trail is to be removed and a post placed in the center of the road to prevent vehicular traffic.
Construction of the visitor center and new access trail was completed some time back, with the official opening occurring on November 24. Well into December, however, garden vehicles continued to use the trail. “We request that Na Ala Hele notify HTBG that vehicles (other than state) are no longer allowed on the Onomea Access Trail,” Johnston wrote.
According to Johnston, Oshiro has said he will work with Share Onomea Access in developing new signage for the garden trails.
McCrory Recuses Self From Hanalei — For Now
On December 16, when the Land Board held its hearing on proposed rule changes for commercial tour boat operations in the Hanalei River mouth area, Kaua`i Board member Lynn McCrory announced that she would recuse herself, pending a determination from the attorney general as to whether she had a conflict of interest in the matter.
As detailed in the [url=/members_archives/archives1997.php]November issue of Environment Hawai`i[/url], McCrory works for one part of a time-share management company. Another related company is a defendant in a lawsuit filed last spring by permitted Hanalei boaters who say they have been harmed by sales and promotion of unpermitted boat operators that have occurred in activity desks of several Kaua`i resorts and time-share operators.
At a board meeting on October 30, McCrory had announced she had been given a clean bill of health from the state Ethics Commission, with respect to the state ethics law. She also said she’d been given an oral clearance from the state deputy attorney general with respect to her situation in light of the much more stringent conflict law that applies specifically to the Land Board.
Many people at the December 16 hearing were prepared to challenge McCrory’s participation, given the much stricter conflict definition that applies to Land Board members (board members are barred from participating in any decision in which they have a direct or indirect interest). Shortly after the hearing opened, McCrory announced she was recusing herself until the attorney general gave her an opinion on the subject.
A Raucous Meeting
That December 16 hearing was attended by approximately 200 people, most of them residents of the North Shore of Kaua`i. The hearing was conducted jointly with the county Planning Commission, which was considering a petition from its Planning Department to repeal its own Hanalei boating rules.
Public testimony was overwhelmingly opposed to the proposed rule changes. Many of those testifying were of Hawaiian ancestry; they claimed that boating operators destroyed many of their most sacred places and destroyed or damaged natural resources that it was their constitutional right to harvest (fish, limu, and opihi, especially). Several of those testifying called for a contested case hearing.
Many people also demanded that the state prepare an environmental impact statement before approving the rules. When this point was raised by David Henkin of the Earthjustice Legal Defense Fund, Land Board chairman Mike Wilson asked him on what basis he was making such a demand, given that the attorney general’s office has held that rule-making in and of itself is exempt from having to meet the requirements of the state’s EIS law, Chapter 343.
Henkin listed the various triggers that set the EIS process in motion. Among them, he noted, was the requirement that an EIS be prepared for any state “program.”
“Before a program is adopted that could have environmental impacts, you have to do an environmental assessment, and because of the significance, the community concern, and clear environmental impacts an EIS would be required,” Henkin said. “There are very different kinds of rules… This particular rule-making is one that proposes a specific number of permits, a maximum number of passengers that can be carried, a very specific program and exactly how that will be carried out. In fact, it does pretty much everything, almost down to identifying the individuals who will receive permits. That’s different than enacting rules which have some very general pronouncements about how things will happen but does not envision a particular result. The rules you’re considering envision a particular result, and therefore, it’s a program that is being enacted rather than a broad rule with general application.”
Many of those in the audience expressed frustration with the inability or unwillingness of the county and state to enforce existing rules that were the outcome of the Hanalei Estuary Management Plan development process in 1992 and 1993. They had participated fully in the development of those rules, they noted. A statement repeated by many of those testifying was that the government’s failure to enforce those rules were not a signal of the rules’ failure, but rather that of government.
The board hearing lasted until 8:45 p.m. By then, 79 people had testified. While the Land Board had promised the Kaua`i community that the full board would hear testimony — as opposed to an appointed hearing officer — in fact, by the end of the hearing, there remained just two board members, Chris Yuen of the Big Island and William Kennison of Maui. (McCrory remained in the audience.) Chairman Wilson walked out of the hearing at 3:30, apparently to attend the governor’s $1,000-a-plate fundraiser in Honolulu that evening.
Moloka`i Ranch Settles Outstanding Violations
On November 20, the Land Board heard a staff report on the status of three long-standing infractions of board rules and permit conditions by the Moloka`i Ranch. (Many of these have been reported extensively by Environment Hawai`i. For more information, go to “[url=/members_archives/archives_more.php?id=1089_0_29_0_C]Board Defers Action on.. Dam by Moloka`i Ranch[/url].”) The review was prompted by the desire of Moloka`i Ranch to “move forward with plans to install approximately 3,000 feet of waterline to replace an existing line that is deteriorating,” according to the staff report. The pipeline lies within the Moloka`i Forest Reserve.
The three issues reviewed in the staff submittal concerned the replacement in 1994 of about 2,000 feet of the pipeline; unauthorized grubbing of about 24 acres at Halena Camp on the southwest shore of the island; and public access along the south and west shores of Moloka`i.
The pipeline work. The pipeline work first came before the board in May 1995. At that meeting, the staff recommendation was that the board find the ranch in violation of its Conservation District rules and fine the ranch $2,000. The board deferred action, however, and instead asked the attorney general to review the matter. “A request for a legal opinion was solicited from the AG,” the staff report states, “but the case appears to have been dropped.”
In the most recent report to the board, staff planner Sam Lemmo describes the work as maintenance of “an existing non-conforming structure,” and, as such, not requiring any special board permit. However, in doing the work, the ranch appears to have cut trees and laid a concrete swale in a stream bed. “Staff believes that these activities do constitute land use violations punishable by fines,” Lemmo’s report states. For this, Lemmo recommended a $2,000 fine be assessed against the ranch.
Halena Camp. The Halena Camp matter began when Moloka`i Ranch grubbed an area of up to 24 acres in the course of preparing the area for use as part of the ranch’s commercial tourism program. In November 1994, the Land Board found that the unpermitted work violated Conservation District rules. It fined the ranch $2,000 and ordered the ranch to apply within six months for an after-the-fact permit application. At the same time, the ranch was fined $10,500 for Conservation District violations that occurred when the ranch rebuilt the Kaupoa House.
According to Lemmo’s report to the board, vegetation had regenerated and covered much of the graded area at Halena Camp. Rather than insist on an after-the-fact permit application, Lemmo recommended that the board revisit the matter “when Moloka`i Ranch decides to restore the camp.” (Also, Lemmo reported that the fines for both Kaupoa House and Halena Camp violations had been satisfied by the ranch’s purchase of an equivalent amount of books for Moloka`i schools.)
Coastal Access. In the 1980s, the ranch subdivided land along the western and southern coasts of Moloka`i without obtaining a required Conservation District permit. When the after-the-fact permit was approved in 1988, the Land Board required that shoreline access be allowed over each lot created by the subdivision. Most of the land is in the state agricultural district, but, as Lemmo notes, “board involvement was triggered by a thin strip [of] land along the coastline zoned Conservation, which was affected by the subdivision.” Separately, the ranch was required by the board in 1996 to grant the public unimpeded vehicular access to Hale o Lono Harbor. Finally, when the board approved the after-the-fact permit for Kaupoa House reconstruction, it required coastal access be required there, too.
Lemmo conducted a site visit in March and September of 1997 to determine the ranch’s compliance with access requirements. In general, he found the ranch in compliance. The ranch, he said, had give the state ownership over a roadway providing access to Hale o Lono. “Pedestrian access has also been provided to the shoreline in the area of Kaupoa House,” Lemmo wrote. “Although staff was satisfied with the location and condition of the access route, additional signage is needed to guide the public to the beach at Kaupoa. Moloka`i Ranch agreed to install additional signage.”
Access along the southern shore to Pala`au was as prescribed by the Land Board in its action of November 1994, Lemmo found.
One of the lots created by the subdivision still has no access. The Land Board action in 1988, however, in which the subdivision was approved after-the-fact, calls for access to be provided as soon as any portion of the lot is developed, Lemmo noted.
In sum, Lemmo recommended that the Land Board fine the ranch $2,000 for the tree-cutting and other violations that occurred in 1994 for work in the Forest Reserve and that it authorize a site visit to the intake by the Maui aquatic biologist to see “if stream restoration is required or feasible;” that the board authorize a site inspection within one month of board action to check whether additional signs along the public access routes had been installed, as the ranch had promised it would do; and that it require the ranch to submit to the department for approval and eventual recordation the conveyance documents that will guarantee perpetual public access in the manner prescribed by the board.
The recommendations were approved unanimously.
For more information, go to “[url=/members_archives/archives_more.php?id=1089_0_29_0_C]Board Defers Action on Replacement of Pipeline, Dam by Moloka`i Ranch[/url],” Environment Hawai`i, July 1995.”
(For details of the grading at Halena Camp, see “[url=/members_archives/archives_more.php?id=1321_0_30_0_C]Moloka`i Ranch Withdraws Application for Grading as DLNR Pursues Enforcement[/url],”; Environment Hawai`i, November 1994; and “[url=/members_archives/archives_more.php?id=1327_0_30_0_C]The Grading Work at Halena Camp[/url],” Environment Hawai`i, December 1994.
(For details of the access along the southern coast, see (in the middle part of the article) “[url=/members_archives/archives_more.php?id=1089_0_29_0_C]Shoreline Access Plan Is Deferred[/url],” Environment Hawai`i, July 1995.)
Will Summit Road Get a Toll Booth?
On November 20, the Land Board considered a staff recommendation to renew the permits of operators who take tour groups to the summit of Mauna Kea. There was no testimony in opposition to the recommendation. The representatives of the association of operators of Mauna Kea tours asked that the duration of the permits — one year — be increased and that the permits be made transferable.
In response to Mike Wilson’s question about illegal operators, Ron Koehler of Mauna Kea Support Services, which manages the state-owned facilities at Hale Pohaku and maintains the road to the summit, said he knew of no operator taking tours to the summit without a permit.
In light of testimony that present tour van traffic was far below permitted levels, board member Chris Yuen made a motion to add three more permits to the present level of nine. The overall limit of 18 vans and 250 passengers a day would remain, however.
Following Yuen’s motion, Wilson commented: “This motion is not meant to disqualify the idea of eventually having some kind of a booth, a toll booth, at Mauna Kea.” No one present at the meeting voiced any objection.
In June of 1997, Wilson was criticized for suggesting that public access to the summit would need to be restricted to protect the facilities and resources there. That sentiment was echoed in October by Kenneth Mortimer, president of the University of Hawai`i.
St. Theresa’s Church Gets RP for Ball Field
The request of St. Theresa’s Church in Kekaha, Kaua`i, to use vacant state land for a ball field and other recreational activities was finally approved at the Land Board’s November 20 meeting. The church, which earlier had been denied a lease for the land at discounted rates made available to charitable and religious organizations, will pay $60 a month for the two-acre vacant lot.
(The Land Board’s earlier denial of the church’s request to lease the lot was discussed at length by Environment Hawai`i.) For more information see “[url=/members_archives/archives_more.php?id=941_0_27_0_C]Land Board Debates Practice Of Rent Discounts to Non-Profits[/url],” November 1997.
Board Minutes Continue To Be Late
In response to the lawsuit filed by Environment Hawai`i and Common Cause/Hawai`i over the Land Board’s failure to comply with the state’s Sunshine Law, the Land Board has stated it has taken steps so that it is in “substantial” compliance with the law.
Among other things, the lawsuit alleged that the board violated the law by failing to prepare minutes of its meetings within the 30-day time period required; that it conducted informational briefings, notice of which was not mailed to parties on the Land Board’s mailing list; and that it did not allow public testimony at these briefings, even when members of the public attended and desired to present testimony.
Between the time the lawsuit was filed (on June 10, 1997) and the Land Board’s last meeting of 1997 (held December 12), the board approved minutes of 15 meetings. (The minutes for the board’s meeting of June 23, 1995, were finally approved on October 10, 1997, two years and three months late.)
Has the board changed its ways?
A review of meetings held since June and the dates of approval for minutes would suggest the board is improving, but is not yet in compliance. Thirteen board meetings were held in the June through December period (not counting “briefings”). Of those, the board should have approved minutes for 12 by the year’s end.
In fact, the board has approved minutes for just nine of the 12 meetings. In addition, of those nine minutes, five were late. In other words, minutes for just four of 12 board meetings were approved in a manner compliant with Chapter 92, for a success rate of 33 percent. And this the Land Board’s attorney general defines as “substantial” compliance in a statement filed with the Circuit Court.
Actually, the compliance rate is even worse. Not counted in the list of meetings are the “briefings” that the Land Board continues to conduct. Since the filing of the lawsuit, Board Chairman Michael Wilson has been announcing at the outset of the briefings that public testimony is allowed. Also, notice of the briefings has been mailed to members of the public on the Land Board’s mailing list.
In its response to the Environment Hawai`i and Common Cause lawsuit, the Land Board acknowledges that these “briefings” are meetings. However, there are no minutes for any of the four briefings the board has held since June. (Nor does it appear that minutes would be possible, since the Land Board has had no clerical staff present at any of the briefings.)
Despite this, in a court hearing on the lawsuit held December 16, Deputy Attorney General Linnel Nishioka informed the court that the board was, indeed, providing minutes of its briefings. After hearing arguments, Circuit Judge Kevin Chang took under advisement the request of Environment Hawai`i attorney, Paul Achitoff, for an injunction barring further violations of the Sunshine Law by the Land Board.
Volume 8, Number 7 January 1998
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