In the Conservation District

Land Commission Rejects Plan to Put Laupahoehoe Streams in Conservation

On October 10, 1995, the state Land Use Commission voted 7 to 1 to deny a petition to place into the Conservation District state-owned land along three streams along the Hamakua coast of the Big Island. The decision was contrary to the recommendation made by the appointed hearings officer, Benjamin Matsubara, who had heard the testimony and conducted the contested case hearing on the LUC’s behalf. The decision also was a setback to the Office of State Planning’s hopes to protect resources in high-quality streams of the state by surrounding them with buffer of land subject to regulations afforded land in the Conservation District.

Before the LUC voted, Matsubara spoke a few words about the case before summarizing his proposed findings of fact, conclusions of law, and decision and order. The case was the last to be heard by Matsubara, whose contract with the LUC (the subject of some press attention recently) ended with completion of duties associated with this boundary review petition. Not only was it the last, Matsubara said, but it was also the most difficult.

After Matsubara’s presentation, Commissioner Trudy Senda, from Kaua`i, asked the only question. Was there testimony that the proposed redistricting prevented farmers in the area from continuing with their agricultural activities, she inquired. Matsubara answered in the affirmative.

Commissioner Eusebio “Bobo” Lapenia, an officer of the International Longshoremen and Warehousemen’s Union, made a motion to deny the petition. Among the reasons he listed (in a prepared statement) for denial were: the economic hardship imposed by the closure of Hamakua Sugar Company and the Hilo Coast Processing Company; the fact that lands surrounding the streams were in the Agriculture District; redistricting would impose restrictions on how the streams could be used to promote agriculture and limit opportunities for the employment of many left jobless after the close of the sugar industry; the “outstanding soils” of adjacent lands, which are “conducive to higher agricultural potential” that could be “enhanced by use of streams;” the lack of any endangered species in the petition area. And, while the “conservation interests” to be served by redistricting were worthy and would have “much merit” in another area, the “economic hardship faced by surrounding communities” in the Laupahoehoe area meant that the need for economic options had to be considered; that the petition had no management plan for the area if it were to be reclassified into conservation; and “the great majority” of people living in the area testified strongly in opposition to the redistricting — evidence that “does not bode well for the kind of support and cooperation that would be necessary to implement any kind of effective management program so vital to the very concept of conservation.”

Lapenia’s motion was seconded by Merle Kelai, a vice president of Matson Navigation Company who was appointed by Governor Ben Cayetano on August 9 of this year, making him the most junior member of the panel. Joining Kelai and Lapenia in voting to deny the petition were Commissioners Senda, Joann Matson, Rupert Chun, Lloyd Kawakami, and Chairman Allen Hoe. Casting the sole vote in favor of the petition was Commissioner Casey Jarman.

The Land Board has transferred management of Kealakekua Bay to the DLNR’s Division of Boating and Ocean Recreation. Lands included in the transfer are the Napo`opo`o pier and parking area (0.77 acres of state-owned land previously unencumbered) and the submerged lands of the Kealakekua Bay Marine Life Conservation District (previously under the management of the Division of State Parks).

The transfer was approved by the board at its meeting of September 29, 1995.

Board Member Chris Yuen asked several questions of David Parsons, boating administrator, about the effects of and reason for the transfer. According to Parsons, his division would be able to control boating activities (largely kayak rentals) at Kealakekua Bay because with the set-aside of the land to his division, “it would automatically make it a boating facility and they [kayaks] would be immediately subject to our rules requiring commercial permits to operate from that area… [The transfer] would give us immediate authority to address at least the kayak issue at this point in time.”

The transfer would have no impact on the status of the bay as a Marine Life Conservation District, Yuen was assured. All of the rules for the MLCD established by the DLNR’s Division of Aquatic Resources would remain in force, Parsons said.

Limits to Use?

Yuen’s questioning of Parsons led eventually to the following exchange about future commercial use of the bay:

Yuen: “Suppose we do this set-aside. And I come, and I apply as a kayak businessman. How do I get a permit?”

Parsons: “Since, from what I understand, there are several people vying for that location, we would probably recommend going out with a short-term concession lease by public auction… [W]henever we know that there’s demand by more than one party for that particular type of activity, we would recommend going out for concession lease at public auction.”

Yuen: “Would there be any opportunity for public input as to whether we ought to have a kayak operation leased in that spot?”

Parsons: “Not necessarily, if we decided to go through a public auction for a lease process. But if we would rather go through the regular commercial permit type of provisions that we have for our other harbors, … we would have to have a — have to do additional rule-making to establish whether or not commercial operations should be permitted at all and, if so, what would be an appropriate level of activity…”

Yuen: “It seems to me we ought to have a process that the public can have input as to whether there should be commercial activity at this pier and how much. Can we do that? … Because I don’t — if we set this aside, I don’t want it to be just automatically that it becomes a commercial facility and it’s only limited by how many boats you can get in and out of there.”

No Guarantees

When the Land Board finally approved the staff submittal, however, there was no amendment requiring public hearings to determine the proper level of commercial activity, if any, under DOBOR’s management of the bay.

Under terms of the approved submittal, before issuance of the governor’s executive order conveying the lands to DOBOR, the division is required to “comply with: (a) requirements of Chapter 343, Hawai`i Revised Statutes, as amended, relating to environmental impact statements; and (b) requirements of Chapter 183C, HRS, and Title 13, Chapter 5, Hawai`i Administrative Rules,” relating to the Conservation District.

Whether this is sufficient to require DOBOR to hold public hearings on any proposed commercial use is arguable. In the past, DOBOR has argued that the use of state land in the Conservation District by commercial tour operators is not a commercial use subject to regulation under the state’s Conservation District rules. Now that the rules have been amended so that the only activities subject to regulation are those involving physical alteration of the landscape, it may be even more likely that DOBOR will argue that the Conservation District rules do not apply to any proposed boating activity, commercial or otherwise.

No Harbor

Yuen also queried Parsons about whether managing Kealakekua Bay in a manner protective of its abundant resources was consistent with DOBOR’s “mission,” as he phrased it.

Yuen: “You know, in some ways, it shouldn’t make a lot of difference who has it. But your mission is generally a little different, and your constituency is more a recreational boating constituency. But it’s not your intent to look at this as a harbor area?”

Parsons: “No, no, not in the least.”

— Patricia Tummons

Volume 6, Number 5 November 1995