Chris Yuen has been the Big Island member of the Board of Land and Natural Resources since 1990. His second term will expire on June 30. Recently, Environment Hawai`i met with Yuen to discuss his views and experiences on the Land Board. Excerpts from that discussion follow:
Environment Hawai’i: One of the big differences that I feel has occurred over the time you’ve served on the board has been that nowadays, far fewer high-profile, controversial Conservation District cases come before you for decision-making.
Chris Yuen: Yes, those big, inappropriate residential developments seem to have fallen off. There was just a whole slew of them in the late ’80s. They were a product of the times, you know. I think that if we didn’t have the rules, size limits, probably these sorts of things would come up from time to time. Maybe not all in a rush, like they did in the late ’80s, but there still would be some attempt.
Do you think maybe now the Land Board is a little less willing to go along with those proposals, even if you didn’t have the rule change? I think there’s a heightened sensitivity among board members that wasn’t there when you joined the board.
Well, probably. There’s been more resistance to it, and I can’t really cite anything in particular. I mean, Engelstad has had its problems, of course, and eventually what was approved was much downsized from what he started with. [Ed. note: “Engelstad” refers to the proposal for a large house in the Conservation District above Lanikai, O’ahu, whose approval has been the source of great controversy stretching back two decades.]
Could you talk about some of the changes you’ve seen?
The board – the people are more individualistically strong-minded. More than when I joined the board, they have their own opinions about things. And so, I think you’ll see it’s a little more difficult to achieve consensus sometimes on the board.
I think they’re all good board members, they’re all pretty smart at what they’re doing. I think that when I was first on the board, there was more of an idea of just trying to achieve consensus all the time.
Led by the island board members?
It tended to be that way, but there were some times when that wasn’t true, or people didn’t have a strong opinion one way or another. There was also more of a tendency for the board to just approve the staff’s recommendation. Now the board tends to look at staff proposals a little more critically.
Board members had started to do that in the past: T.C. Yim, for example, or Libert Landgraf, Colbert Matsumoto’s carrying on that tradition. I think that’s a little different than in the early 1990s.
Even from before I was on the board, the department has become more environmentally responsive. I think it started to happen, certainly in Bill Paty’s time, and has continued in Mike Wilson’s, where there’s a much stronger environmental emphasis. So I think those are many of the changes that have happened that are good.
And we’re not approving a lot of bad things. I would say that the problem with environmental policy in Hawai’i now is, while the environmental movement is pretty good at stopping bad things from happening, there is a problem with implementing positive change. The environmental movement is very good at getting out and fighting particular permits or development proposals that are destructive, but a lot of the things that are going on are – well, there is no permit involved. Banana poka overrunning the upland forests – you can’t just sit there and take a vote and stop it. You have to implement a program to do something about it. And that’s where we are still, the DLNR is not doing as much as it should.
And just in general, the environmental community is not really focused on those kind of issues.
For things that are enforcement related issues – there was an interesting story in the paper recently about dumping in Wai’anae. You had people just going around dumping. Nobody seems to get that excited about it.
Where environmental people are active is on the zoning, rezoning, permitting, things like that. At the moment, I think that’s a less important part of the picture as far as environmental policy in the state overall.
One of Mike Wilson’s big priorities is trying to beef up funding for DLNR so that it can better handle these environmental management issues, particularly with ocean resources. He’s had some success, which is remarkable given the state’s overall budget climate, but these issues of management and funding are things which the environmental community needs to work on more.
Can you comment on the HELCO decision?1
I can discuss the question of the effect of the 3-2 vote by the board against granting the permit, with one member recused. It seems to me that that should be a denial.
This question of the effect of a vote by the board on a Conservation District permit where there aren’t four votes either for or against is a big unresolved issue. When I got on the board we were told that the permit would be automatically approved if there weren’t four votes against it. The reasoning was that the law says that the owner can put the land to the requested use unless the board makes a decision in 180 days, and that a valid action requires a majority of the board.
I went along with this unquestioningly until the first vote taken on Keahole in 1994, where three members just refused to vote.
Right after that I did some legal research that shows that in these automatic approval situations, the better legal interpretation is that if the board votes on the matter on time, the permit is defeated unless it gets enough votes to pass. This is the normal way that voting works: if you don’t pass something, it fails, and there are many Mainland court decisions which agree with this.
It’s one thing to say that an agency’s got to bring a matter up for a vote or a decision, but when you couple it with the idea that you have to have a majority to defeat the proposal, then you’re not only imposing a time frame, but you’re skewing the voting, you’re juicing the voting.
Especially if you have a member who has recused himself?
Right, which then counts the same as a yes vote, or a vote in favor of the permit. It’s just ridiculous.
Referring back to Chapter 171 [Hawaii Revised Statutes], it just requires action be made by a simple majority of the members voting; it doesn’t say total members.
What it says is that any action taken shall be by a simple majority of the members. The question is, do you count members who are absent or recused? The practice on the BLNR has been to assume you still need four votes to act under those circumstances, but there’s never been a definitive legal ruling. If you look at Mainland cases, they go both ways on this. So this is another ambiguity. By the way, most state boards and commissions operate under a different law, which clearly says you need a majority of the entire membership to make a valid decision.
There was a bill at the Legislature which would have solved this problem by saying that as long as the board voted on time the permit would pass only if it got a majority of those present and qualified to vote in favor. For example, if one member was absent or disqualified,, three votes would be enough to approve the permit. The bill has passed the House two years in a row but Randy Iwase and Malama Solomon have refused to hear it in their committee in the Senate.
This is going to become a broader issue, because the 1998 Legislature passed a law that some other kinds of permits will be automatically approved unless a decision is made within a time limit, including many County Planning commission decisions. The Legislature didn’t specify what happens where there is a tie vote of less than a majority either way, so this is going to be a problem.
As far as the HELCO court case, Judge Ibarra ruled that a 3-2 vote against was not a denial, so the project could go forward. This is on appeal. I think that the judge was locked in to ruling this way to some extent by the fact that the people opposed to the permit had argued that the 2-0 vote in 1994 was going to result in approval, and that they would then not have a contested case hearing, which would be a denial of due process. And Judge Ibarra agreed with that.
So they were all locked into the line of thinking that the failure to get enough votes for a denial was approval. They were probably thinking the same way I was until I started looking into it.
You have a background in law and biology, but one of the things I’ve been impressed with over the years is how you protect the state’s financial interest. The most remarkable example that stands out in my mind is the negotiation with AT&T over the state’s share in the sale of the lease of its berthing space at Sand Island.2
Oh, yeah, we did make some money on that one. I earned my per diem.
More than that. You earned hundreds of thousands of dollars for the state at that meeting.
I think it was something between 100, 150 thousand dollars.
Right. And that all revolved around a rather arcane argument, as to when you start amortizing capital improvements.
The whole thing was a little bit of an arbitrary situation, but, using the logic of how AT&T had come up with the first figure, really, it was more logical to do it the way I said to do it, which did result in some more money for the state, which is what we’re supposed to be doing.
You know, the point you’re making here is a good one. The Land Board does two things, which are somewhat distinct and actually quite different. Two main things: one is, we decide on the use of state land, does it become a school site, or a highway if the Department of Transportation wants it. And the other thing is Conservation District permits, and usually a little more attention is paid to those.
But it’s amazing what comes up.
Were you prepared for that?
I knew what the board did, because I had been involved in issues before the Land Board. Certainly, I knew what the major responsibilities were. I know what had changed from the 70s to the 80s to the 90s. In the 80s, they stopped taking a lot of things to the board that probably never belonged there. They used to take everything – promotions, things like that, to the board, including many that really shouldn’t have come to the board.
So, yes, I did know what the main responsibilities are.
And it’s amazing, the amount of power – there really is a lot of power on the board.
I think you may be the exception, because at least you had attended board meetings before you joined the board. There are new members who have never attended a board meeting before they were appointed.
The board members have all been basically pretty astute. I don’t know what their background is in any detail. There’s a briefing, division heads talk to you, explain what they do.
One of the most controversial decisions the board has made in your tenure was the denial of the Oji lease for a eucalyptus plantation on the Big Island. As late as February 1997, the board seemed prepared to approve it, having voted over your dissent to sign a letter of intent with Oji, but by November, it had fallen through.
That was a very tough issue. After it had been worked on in the department, the project that was brought to the board in November 1997, with all the conditions that were there and the lands that had been taken out, it was a very defensible project. I don’t think it was a bad project, from an environmental point of view. It could have been a bad project in the sense that there may have been something better that the land could be used for. I think time will tell for that.
There was fairly broad opposition within the community. Not so much that it was vocal, but a pretty broad base of people, not just one segment. I think that affected board members.
There was a lot of interest expressed, people saying at least that they wanted to go out and farm. I would like to see a very strong community of small-sized but commercially viable farms out there. We looked at all of this.
Back in 1994, when the original idea went out to forestry, we thought we had held enough land out for farming purposes, and we even added another 500 or 600 acres below the highway and below the ditch in the course of the Oji negotiations.
It may turn out that that was way more than enough, and in a few years time, it may not have been the right decision. Who knows, at this point?
I would say if the land becomes pasture, then we would have been better off going with Oji, because pasture provides fewer jobs and less revenue for the state. That’s my assessment of how to judge this in four or five years’ time. But for the moment, we’re going to try, working first with the better lands, to put those out for auction, and see if people show up and want to farm them.
In light of the ardent, emotional, sometimes abusive testimony, was there any way at all that the land Board could have approved the Oji lease?
I don’t think we were on the verge of any kind of a riot. I hope not. The board could have approved it. It would have been against the testimony that was there.
The Honolulu Advertiser had a pretty good editorial about it: we don’t necessarily agree with all the things people say, but this is the way government is supposed to work, by listening to what people want or don’t want.
I was a little concerned at one point because people were sort of, not exactly booing, but noises were being made over people that were testifying the other way, and I get concerned about people being intimidated from testifying, saying what they had to say. Clarence Souza, for example, who is a person who’s been involved in things in the community over the years, and he wanted to speak, there was some noise being made concerning what he had to say. That’s too bad.
There have been some watershed events in the DLNR – perhaps the most significant, the reorganization that has been effected. The Office of Conservation and Environmental Affairs is no more; the Division of Water and Land Development is no more. Their functions, to the extent those functions continue, have been soaked up by the Division of Land Management. Was the Land Board consulted about this?
I wouldn’t say consulted in the sense of being sounded out as to whether this is a good idea or not. I think it’s Mike Wilson’s prerogative to do it. I knew about it happening, but I don’t look to Mike to come to me on this kind of a decision.
I feel that personnel decisions are a matter for administration, not for the board. We are just not there, we don’t work with these people except at board meetings, when they come in to make presentations. So it’s very hard for me to know how the department should be organized.
I do think there are times when the staff reports are not as thorough as one might hope. I know it helps me to go in and look at the records. Do you do that?
Very rarely. You’re right – when I was an activist, I really hit the files. You really learn a lot when you do that, but it’s just very hard to take that time. When I have a question now, generally, I will call up.
There are times when I get an environmental impact statement, which we don’t normally get. This natatorium issue, for example, most of what I need to know is in the EIS.
You know the effort you take in writing a feature article about a particular episode -that’s about how much work it is to really be well-informed. Some of these things are very convoluted. Your articles have helped us sometimes, because the board doesn’t get the detail that your articles provide, typically, in staff reports.
I don’t know how much to expect from staff. I don’t have to walk in their moccasins and I don’t know how much time they have to prepare these reports. One thing you’ll find is the DLNR is a very thin organization, in terms of what bodies are actually out there. And a lot of effort does get put into servicing the board and explaining things to the board. You have all these top level people who are spending the better part of the day during meetings hanging around the board room, to talk about things that they themselves don’t have the time to learn chapter and verse.
So if you really want to get in there and learn something inside and out, it’s hard to do it. And there have only been a few times when I’ve gone to original source materials and pulled files and looked at leases. There are more times when I’ve gotten an EIS, and probably even more when I’ve made phone calls to supplement what comes in from the staff. But unless you decide – you have to pick your spots and decide what you re interested in, to make an informed decision about a lot of these things.
Most of them aren’t that big a deal, fortunately. But you have to get in there.
Some things, you know, you make a judgment on, based on your general experience of what is significant and what is not significant. For example, on this natatorium thing, I have a pretty good idea of what the ocean bottom looks like where they want to dump the rocks, so if you have that kind of experience, it helps. If I know a site, it helps.
Unfortunately, a lot of times, our staff planner that does the work-up has never gotten to the site, particularly on the neighbor islands, because they don’t have any staff there. It makes a big difference when you can go out and see something.
What were the cases when you did look into the files?
Recently, I checked into our pasture leases. The state has a big opportunity in that a lot of upland areas that are presently in pasture could be converted back into koa forest, either for the economic value of the koa forest or for wildlife habitat – or perhaps there’s a degree of compatibility, when you’re not talking about absolutely pristine sites.
Some of our leases, especially on the slopes of Mauna Kea, near Keanakolu cabin – I thought I couldn’t do anything about them, because they’re leased to the year 2011, but I found a clause in them, at least some of them, that the lessor and lessee shall cooperate in a koa management plan. So I’ve been trying to get something going there. I haven’t got too far, but I will be talking to some of the lessees about doing something up there.
Plus, thinking about Oji, I looked at all the cane leases, I was trying to get an idea of how many usable acres there were in the property we were looking to lease to Oji and the property that the state was looking at keeping for diversified ag purposes.
Other things I’ve spent a lot of time on: Onomea I spent quite a bit of time on, Mauna Kea I spent quite a bit of time on. There are a lot of other things I’ve spent a lot of time on, but those two especially come to mind. The draft EIS for the Hapuna [state park] expansion.
But as far as going and looking at the complete permit file on a particular permit, I don’t know how often I’ve done that.
What is the hardest decision that you made?
I think Oji was a really difficult one. I had some concerns – I didn’t want to see a bunch of cattle out there, which I think is worse environmentally, it’s worse from the standpoint of the state’s finances. I would like to get a forestry sector going.
Another one that was really, really difficult was the access easement for Koa Aina – Kyle Dong – up in South Kona.
He’s in the ag district. He could cut down every tree on the property.
But he can’t take it down without the state easement.
He could sling-load it down in a helicopter. There are other ways to get up there, although they’re harder.
The balance there was, put some control on the site. If the conditions are enforced and are followed-up, then it’s the proper decision to have made. He won’t take down all the trees; he’ll leave old trees; they’re supposed to replant and re-establish the stands and keep feral animals out. The whole thing should be a better place than it was in 50 years time. If it’s not enforced, then it could be a bad decision.
It’s sometimes easier just to say no and walk away from things. But the environment has to be managed in a lot of areas because it’s going downhill if left on its own – because it’s not really being left on its own; there are feral animals, exotic plants. You’ve got to take an active management role to maintain a particular area. But then that exposes you to a lot of risk, if not done properly.
You mentioned earlier you’d spent a lot of time on the issue of the telescopes on Mauna Kea.
Once the state decided to have the astronomical facilities on Mauna Kea, the way the landscape looks is pretty changed. To me that’s an irrevocable decision.
Once you’ve made that decision, there are still natural resource issues. You’re not just making this an industrial waste site or a sacrifice area. The live issues are historic sites, archaeological sites, bug communities, cleanliness of the area, public safety issues, some culturally significant areas.
For all the criticism and the auditors report – I just don’t see a lot of harm that’s been done to those resources by the astronomy facilities being put up there and with all this activity in the last 20-25 years.
The one thing that happened was the side of the cinder cone being graded out by the Subaru telescope, which I was very critical of. And that may or may not turn out to be a very important thing. The arthropod study is being done now. If it turns out that they [wekiu bugs] are all over the place, the amount of habitat that was lost may turn out to be relatively insignificant. At this point, you have to take it quite seriously, because they’ve only been identified in a small area of course, that’s the only place you looked for them.
Putting aside that the basic view of the mountain was changed by having the telescopes put up there – probably there’s been very little damage to habitat; the archaeological sites are all there; the cultural sites unless you take the view the whole thing is a cultural site – the things people have identified as cultural sites in the past are all untouched.
Why then has Mauna Kea become such a charged issue?
It’s funny. I met with Nelson Ho in 1993, 1994, and I have a list of what his concerns were then and the issues. And I thought they were all management level issues – picking up the trash, completing the arthropod study, improving the staffing of the visitors center, so people had a better education. I think there’s been pretty good progress made on all those issues. They’re all completely manageable and they can all be taken care of – and they have all been taken care of.
The auditor’s report was critical. There were some delays. The big archaeological study was late, certainly the arthropod study was delayed. But if you try to identify what has gone wrong – has something been destroyed or lost? Again, apart from just the thing that you have all those domes sticking up there, it’s been done in a pretty responsible way.
There are people that don’t like having all those buildings up there – which is a valid point of view, but the basic decision was made, almost 20 years ago. And, honestly, I don’t see what difference it would make to have a few more telescopes up there as long as you site them properly. It doesn’t make a qualitative change in the mountaintop if you do that.
I suppose the ultimate reason that Mauna Kea has been a hot issue is that it is a very important, prominent place.
What accomplishments have been most satisfying?
There are some good things that happened – I hate to characterize them as my accomplishments: It’s kind of post hoc, ergo propter hoc again. I was on the board, and therefore these things happened.
Early on, I was very active in negotiating the Awake’e land exchange, which I think was a great exchange for the state. The state traded for about 350 acres of shorefront property at Awake’e by giving up about the same area of the adjacent property, but one thousand feet back from the shore. The state got a mile of shoreline. I was just down there last weekend, and there are a lot of people who go down to Awake’e and use that as an access into Makalawena. Not that much has been done on the state park, but the whole development concept was to have a pretty low-key state park. You have Mahai’ula, which is a much nicer swimming and beach area than people in Kona had available to them ever before, so I’m really happy with the implementation of the Kekaha Kai state park and the Awake’e land exchange and all that’s happened down there in the last few years.
I think the Conservation District rule change was a very positive change in 1994. The rule changes that were made then greatly limited the possibilities of mischief by the Land Board by making it clear that there are only certain things you can do in the Conservation District, just like any other zoning district. Before that, if you could sell two or three members on an idea, you could get a permit.
Are you going to keep attending board meetings?
Not as a regular thing. There are times I thought I would be a responsible activist and go back to doing what I did before. Get involved in a couple of things and put a lot of effort into them. I’m still interested in a couple of things – proper environmental management is what is really needed. There are people who do activism pretty well.
But I’m not going to become the board watchdog. They’ll have to make do without me. I’ve had my chance.
Any parting words?
I think the environmental community needs to look at the fact that a lot of the ongoing management of the environment that government ought to be doing is really seriously underfunded. I had no idea of how thin and understaffed the DLNR is as an organization for what they are doing. They have four or five foresters on this island; two land agents for all the state land, and hundreds of thousands of acres that are being leased.
The same thing is true for other environmental programs. So people need to focus on not just fighting the bad things that could happen, but on taking better care and more active management of the resources that we have.
I think we also have to address the depletion of near-shore fisheries. I’ve been pushing for large zones, more protected inshore areas, and I think gillnetting will be a big issue.
I also want to put in a plug for land exchanges by the state as a means of protecting important areas, like prime beaches. Often the public is relying on the zoning to protect these areas, but it’s hard to count on zoning forever. There can be a win-win for the state and the private landowner through an exchange for state land with developmental potential. This is what happened at Awake’e. There has been some opposition in the Hawaiian community over the possible loss of ceded land, but I think that’s a misunderstanding – the land the state gets must be treated the same as ceded land so there’s no net loss.
- 1. For a summary of this, see the May 1998 issue of Environment Hawai`i.
2. This meeting occurred in June 1997. As part of a much larger scale of corporate assets, AT&T wanted to convey its lease of state land at Sand Island, used as a berth for its cable-laying ship, to another company. Calculating the value of that lease involved a detailed analysis of the improvements that AT&T had gotten the DLNR staff to go along with a formula that counted all the improvements as having been made at the time the lease started. In other words, according to the AT&T formula, the improvements would be counted as being much older than many of the actually were. What Yuen proposed, and what the board eventually decided to do, was to figure out, as much as possible, when the improvements were built, and amortize them from that date instead of from the beginning of the lease. Given that AT&T had made several millions of dollars of improvements in the leased area, the difference in value between the AT&T formula and that which Yuen proposed resulted in the state receiving a far greater payment as a result of the sale of this lease than it would have under the AT&T proposal.
— Patricia Tummons
Volume 9, Number 1 July 1998
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