Judge Overturns Default Approval Of Conservation Permit for HELCO
A judge in Kona has determined that the Board of Land and Natural Resources erred when it allowed a Conservation District permit for a 56-megawatt expansion of the Keahole power plant to be granted by default. As a result of Judge Ronald Ibarra’s decision, the Land Board was ordered to conduct the contested case hearing that had been requested by two residents living near the plant, which now has the capacity to generate 20 megawatts of electricity.
Within a week of the ruling, however, the Hawai`i Electric Light Company appealed it to the Hawai`i Supreme Court.
Last May 13, when the matter was before the Land Board for a vote, the board was up against what it saw as two competing claims. On the one hand was the claim of the parties granted standing for the contested case to have that procedure brought to completion before the board made a decision. On the other was the insistence by HELCO of its right to have the Land Board make a decision on its Conservation District Use Application within the 180-day review period established by law. The 180-day period could be extended only on the request of HELCO, the Land Board was advised by its staff.
The staff recommendation was for denial of the application, without prejudice. But, with the board failing to muster four votes in favor of the recommendation for denial, the permit appeared to be granted by default. (The default decision was the subject of the lead article in the June 1994 edition of Environment Hawai`i: [url=/members_archives/archives_more.php?id=1280_0_30_0_C]”By Default, Land Board Permits Expansion of Keahole Power Plant.”[/url])
From Bench to Board
Last year, the board approved the request for a contested case hearing made by three parties: Peggy Ratliff and Mahi Cooper, two residents on land adjoining the power plant’s lot, and Waimana Enterprises, Inc., which is seeking to build a power plant at Kawaihae, up the coast from Keahole. Waimana appealed the Land Board’s default approval of the permit to Judge Ibarra of the Third Circuit Court. On November 9, Ibarra issued his ruling.
Waimana was deemed by Ibarra to lack standing, and so will not be a participant in the contested case hearing the judge has order. “Waimana’s interest in contesting the CDUA appears to be purely economic,” the judge wrote, but added that this is not “a due process right to a contested case hearing because its economic interest does not constitute ‘property’ within the meaning of the due process clauses of the federal and state constitutions.”
Cooper and Ratliff, however, “have property interests entitled to due process protection,” Ibarra found. “Further, because Cooper and Ratliff have requested contested case hearings … they have done everything possible to establish and preserve their right to appeal.”
Conflicting Rules
One of the issues that played into the Land Board’s deliberations last May was the claim that no one except HELCO could request an extension of the 180-day processing time for its CDUA. Here’s Ibarra’s discussion of that point (with legal citations omitted):
“HRS Section 183-41(d) is clear on its face that the BLNR has 180 days, after receipt of the CDUA, to act on a pending CDUA or face default. The 180-day statutory provision is mandatory, not directory. However, the default provision, if applied literally in this case, would take away Appellees’ constitutional due process rights to a contested case hearing, a right conferred by HAPA [the Hawai`i Administrative Procedures Act], Chapter 91, HRS, and the BLNR’s own Rule 13-1-22…
“In promulgating the 180-day rule, the Legislature did not consider procedural safeguards for the rights of third parties like Cooper and Ratliff who were granted requests for a contested case hearing, being that no express provision is made for a non-applicant to request an extension of the 180-day processing period if a contested case hearing is not held by the 180-day deadline; such safeguards for the interested party intervenor are necessary to avoid the type of applicant-controlled process which the [Hawai`i] Supreme Court condemned in Town v. LUC…”
Ibarra’s language on this point is as strong as it gets: “[A]lthough Cooper and Ratliff had a right to a contested case hearing by law and it would have been to their advantage to have been able to request a continuance of the processing period in order to preserve this right, no such procedure exists to protect this right if, as in this case, the BLNR fails to hold the hearing within the 180-day period; to avoid this absurd result, the Court concludes that the default provision of the 180-day rule is inoperative when a contested case is pending.”
Apart from the constitutional rights of Ratliff and Cooper, Judge Ibarra found that the Land Board acted in ignorance of its own rule allowing it to extend the 180-day period apart from any request from the applicant or other party. “The BLNR erroneously believed that it lacked the authority to extend the 180-day processing period when, under its own Rule 13-1-14, it had the power to extend the period before the expiration of the prescribed period.”
Finally, Judge Ibarra determined that, in any case, the 180-day countdown could not have begun until such time as the Revised Final Environmental Impact Statement for the project had been accepted by the Land Board: “Though the Revised Final EIS was submitted to the DLNR on 12/9/93, the CDUA was not ripe for decision-making until the EIS was accepted by the DLNR on 1/7/94… Therefore, the 180-day period could not commence until the application was completed on 1/7/94; subsequently, the BLNR erred in setting 5/18/94 as the deadline for the 180-day processing period; instead, one-hundred-eighty days after 1/7/94, or 7/6/94 (49 days after the 5/18/94 deadline) was the proper deadline.”
By Order of the Court
Judge Ibarra ordered HELCO’s application back to the Land Board, which was instructed “to act consistently with” his findings of fact and conclusions of law. He further ordered that the BLNR grant Cooper and Ratliff the contested case hearing they had requested “within 49 days of the filing of this order.” If the Land Board cannot act within that time on HELCO’s CDUA, “the BLNR [shall] be allowed any extension of this deadline as provided by its rules.”
Moloka`i Ranch Rapped For Illegal Work
At its meeting of November 18, 1994 in Honolulu, the Board of Land and Natural Resources was asked by its staff to find that Moloka`i Ranch had violated Conservation District rules in undertaking two projects intended to be part of the ranch’s plan to cater to “eco-tourists.” One project, described in the November 1994 Environment Hawai`i [url=/members_archives/archives_more.php?id=1311_0_30_0_C]Conservation District column[/url], involved clearing about 24 acres of shoreline land at Halena Camp. The second project was the razing of what has come to be known as the old Kaupoa House and the construction of an entirely new structure on the same site.
Despite angry testimony from several residents of Moloka`i, Maui board member William Kennison appeared reluctant to impose fines or penalties on the ranch. Only when it became apparent that no other board member was willing to go along with him were stiffer penalties imposed — although in neither case were the penalties as high as what the staff of the Office of Conservation and Environmental Affairs had recommended.
Kaupoa House
The staff submittal on Kaupoa House reported that the ranch had ignored for 20 days an order from the department in October to stop work on the new house. That 20-day period was used in arriving at the staff’s recommendation for fines of $40,000 (20 days at the rate of $2,000 for each day of violation, as the law provides). In addition, the staff report sought reimbursement by the ranch of the department’s costs for investigation and enforcement efforts related to this violation. Finally, the staff asked that the board require the house to be torn down.
Moloka`i Ranch’s lawyer, Danton Wong, disputed the staff’s contention that the work required any Conservation District Use Permit. Wong pointed to a letter from Deputy DLNR Director Dona Hanaike in November 1993, in which Hanaike informed the ranch’s recreational resource manager, Jay Anderson, that no permit would be needed for the repair and refurbishing of the house. Pictures that Anderson had provided to Hanaike indicated that the “house seemed to be intact and in useable condition.” Thus, Hanaike said, “All that is needed are two sets of construction plans for the repair work.”
Wong said that the ranch became aware of the need for more extensive repair work on the house only after the renovation had begun. “In retrospect,” he told the board, “if that had been known at the beginning, we probably would have gone in for a CDUA.”
In any case, the board’s rules specifically allow for repairs and alterations of lawfully existing structures, Wong told the board as he handed out photocopies of the rules, with the pertinent passages highlighted in yellow. “The house has been repaired, but the house has not been changed, the use has not changed. It’s the same use as was existing prior to repair,” Wong said, and thus was allowed under the board rules.
A Hostile Crowd
Wong’s arguments did not sway the Land Board. Board member Libert Landgraf, examining one of the pictures of the new house, said it “looks like a total replacement to me.”
“It’s a complete repair,” Wong responded, drawing laughter from the audience and board.
Board member Christopher Yuen indicated his own displeasure with efforts to characterize the new construction as nothing more than a repair job. “You know, it’s been a long meeting, so I don’t want to get into this repair — No way, okay. Maybe other board members feel otherwise, but if you’re going to rebuild a whole house, you’re rebuilding a whole house. I just don’t want to spend a lot of time on this. I could illustrate why you can’t do that, but it’s a waste of time.”
OCEA Administrator Roger Evans, who had conducted a site visit earlier in the week, noted that when he was inside the house, he had asked Moloka`i Ranch officers if there was “any portion of this house — inside, upside, anything — that is remaining from the old house. The answer was no.”
Anderson, the ranch’s recreational resource manager, spoke up: “There’s no need for confusion and there’s no need for people to think anybody’s lying about this. We went down there to renovate the house… Bruce Duffy, our contractor, started work at the job site. He was instructed to renovate the house. He started renovating the house. One of the first things he did was to take the metal off the roof. He looked under the roof, all the plywood was rotten. He took that off. Then the four walls are wiggling in the 20-mile-per-hour trade winds. Our project manager, an engineer, met with him. What they were trying to accomplish was to renovate the house. To fix the cement foundation they would have had to jack the four remaining walls and several interior walls off the ground, little by little do foundation work, place it back down, move on, jack the wall up, replace it, move on — same thing right around the house.
“They simply made a business decision down there. They didn’t know on the spot to contact DLNR and go back in for a CDUA et cetera et cetera. Engineer talking to a contractor, out in the field, made a business decision. This is unsafe, it’s not practical, we won’t end up with a house that makes any sense. The way to do this is to knock the walls down. Then what they did, they used a jack hammer to destroy parts of the slab that were cracked, unlevel, so forth and so on. So in fact the only thing that remained the same in that house was the septic system in the ground and pipes coming in from that — and even some of those were replaced. So you’ve got chunks of foundation, covered by a brand new slab, with new construction starting from there up.”
The First Motion
On questioning from Landgraf, Anderson qualified the comment that it was purely a business decision to proceed with reconstruction. It was a business decision, he said, but one made “with safety in mind, and economics, and structural integrity.” Still, Yuen noted, the ranch had made no effort to inform the DLNR of the decision.
Landgraf inquired about the description in the staff report of the house being used for commercial purposes. According to Evans, representatives of the ranch had informed him that in the past, the house had indeed been used for commercial purposes — and that the ranch proposed that the commercial rental of the house continue. Had the ranch come in with a request for a Conservation District permit for the commercial use, Yuen noted, a public hearing would have been required.
Wong then told the board that the ranch wanted to use the house as part of a “recreation network,” referring evidently to Moloka`i Ranch’s plans to turn its land into a mecca for the eco-tourist market. “But,” Wong added, in an effort to defend the commercial use as pre-existing and needing no new permit, “realize that the house has been in existence since the 1920s. And its use has been since the 1920s.”
Landgraf: “Not after you tore it down and built a new one, sir. No way.”
Kennison made his first motion to deal with the house. He had visited the site, he said, and found the structure to be a new house. Still, he recommended that the proposed fine of $40,000 be reduced to $10,000 plus enforcement costs, payable in a to-be-determined in-kind donation to the Moloka`i community.
No second for the motion came from any of the three other board members. Instead, Yuen suggested that if the ranch was to be allowed to keep the house standing, the ranch would have to apply for an after-the-fact Conservation District permit — which, in the past, has been the DLNR’s usual practice in dealing with Conservation District violations. “They have a new house, maybe they should have a new permit — after the fact,” Yuen said.
Landgraf was a bit more blunt. “Mr. Anderson’s comment about a business decision, knowing full well he had an engineer on the premises — I gotta be honest with you, Mr. Anderson and people from the Molokai ranch: it sticks in my craw. And as far as a business decision, as a board member, I tell you, Mr. Kennison, I would say $20,000 fine at a minimum, at least. I think the attitude that it was a business decision, the representation of the building and what was done — I have a very difficult time with that. And I would like to remind you, Mr. Anderson, I know the cottage, and I know the area very well. And I don’t mean to come across hostile. I just feel bad. There’s a motion on the table. Mr. Kennison, you’re the board member from Maui. I do think we need also to address the matter if it is a new house and if it is going to be used for commercial purposes, what are future permit requirements?”
A ‘Clarification’
Anderson sought to expand on his earlier ‘business decision’ remark. “In regards to the business decision,” he told the board. “I wasn’t present. We didn’t have a meeting. In fact, I wasn’t responsible for that project at that time. I was off busy with other projects… These people are working on the — you just toured the west end of Moloka`i. You’re out in the middle of nowhere. So when I used very glibly the term business decision, all I’m describing is a contractor and our project manager — who is by the way managing several projects, and he’s going to Honolulu and going over –”
Landgraf: “Then maybe he ought to spend more time on Moloka`i. Quit while you’re ahead. Please, sir, quit while you’re ahead. You have a representation, you have people there. I find the claim that they’re busy and they’re elsewhere and they have other things to do –”
Kennison interrupted with a motion that the board move into executive session, to discuss certain legal issues with the board’s deputy attorney general.
The Second Motion
When the board filed back into the conference room, Kennison amended his original motion by adding a provision that within 60 days, the ranch submit an after-the-fact application for a Conservation District permit for the house or tear down or relocate the house.
The rest of the board agreed.
The Grading Work At Halena Camp
The Land Board also found Moloka`i Ranch had violated Conservation District rules by clearing an area around Halena Camp and imposed a fine of $2,000, payable in in-kind services to the community. In addition, Moloka`i Ranch is to return to the DLNR with an after-the-fact permit application within six months. (This grading at Halena Camp was detailed in the November 1994 [url=/members_archives/archives_more.php?id=1311_0_30_0_C]Conservation District column[/url] of Environment Hawai`i.)
The OCEA staff report to the Land Board contained information that was at variance with that provided by Moloka`i Ranch itself in the Conservation District permit it had earlier submitted — and then withdrawn — for work at the old camp site. While Moloka`i Ranch acknowledged grading 24 acres, the staff report indicated that only some 14 acres had been cleared. And while Moloka`i Ranch had included an archaeological survey that suggested historic sites had been damaged, the staff report stated: “Fortunately, no physical or social resources were affected” by the grading — which, the report said, was “the first instance of Conservation District violation by the Ranch.”
Testimony from the audience brought to the board’s attention the conclusions of the archaeologist’s report. When asked by board member Chris Yuen why these concerns were not addressed in the staff submittal, OCEA administrator Roger Evans dismissed them as unverified rumors.
Not the First
The staff report was also misleading in stating that this was the “first instance” of a Conservation District violation by Moloka`i Ranch. One of the items taken up by the Land Board at the November 18 meeting was approval of a public easement across ranch lands to the coast. The requirement that the ranch provide an easement was made as a condition of an after-the-fact permit issued in 1988 to resolve Moloka`i Ranch’s subdivision of Conservation District land without prior Land Board approval.
All totaled, Moloka`i Ranch must submit for Land Board approval three easements allowing the public access to coastal areas in western Moloka`i. From 1988 to 1994, however, the ranch has submitted just the one.
A number of Moloka`i residents spoke against the proposed alignment of the easement, which leads to a short, brown-sand beach just east of Pakanaka fishpond. They argued that it did not take them anyplace they wanted to go, nor would it afford them lateral access along the coast to more desirable spots for fishing, gathering, or recreation. Several challenged the ranch’s closure of roads that had been used freely by the public in years past, with one resident suggesting that the roads were, in fact, old government roads.
New Rules Approved For Conservation District
The reconstruction of the Kaupoa House and rehabilitation of Halena Camp are parts of Moloka`i Ranch’s plans to establish itself as a destination of choice on the eco-tourist’s map. Under present DLNR Conservation District rules, many of the elements identified in the ranch’s publicity brochures — primitive camps, tent camps, and trail networks — would require the permission of the Board of Land and Natural Resources.
Under new rules, Chapter 13-5, Hawai`i Administrative Rules, approved by the board on November 18 and forwarded to the governor for signature, the Land Board would no longer have any say over aspects of the plans of Moloka`i Ranch — or anyone else — to use the Conservation District in a manner that, while perhaps having a significant environmental impact, nonetheless involves no landscape-altering activity. In addition to the activities already cited, others include commercial tour operation, fishing, harvesting and gathering, filming, horseback riding, bungee jumping, and helicopter and boat landings.
The lapse in regulatory authority over activity had been lamented by both supporters and critics of the new rules.
Instead of regulating activity, the new rules contain merely an informational note, referring users to other sets of rules that might have overlapping jurisdiction in the Conservation District. Such rules include those governing activities in state parks, in forest reserves, in Natural Area Reserves, on unencumbered state lands, in Marine Life Conservation Districts, in Marine Fisheries Management Areas, in Freshwater Fisheries Management Areas, and on ocean waters, navigable streams, and beaches — all areas that involve use of state-owned land or resources clearly under state jurisdiction.
Deputy Director Donna Hanaike prepared a report, “The Process of Revision and Proposed Changes,” describing this omission. “While the Department is open to further discussion of regulating non-zoning activities on private lands, Chapter 13-5 is silent on this issue. Inclusion of language pertaining to these activities will depend on further articulation of what activities should be regulated, i.e., definition of the currently open-ended problem of (1) defining a threshold of utilization or impact on the resource that would trigger regulation; and (2) defining the type of regulation that would be required.”
In asking the board to approve the new rules, Hanaike also requested that the board give staff the go-ahead to attempt over the next six months to come up with amendments intended to regulate omitted activities. The board agreed.
The content of the proposed rules was the subject of several past articles in Environment Hawai`i. See, most recently, [url=/members_archives/archives_more.php?id=1312_0_30_0_C]”DLNR Pays Sole-Source Consultant $60,000 for New Conservation Rules,”[/url] October 1994.
Phase III
The Land Board also approved the hiring of a consultant to undertake what Hanaike and others have characterized as Phase III of the Conservation District review process. This stage involves inventorying the natural resources that lie within the Conservation District; recommending changes in subzone boundaries and, if needed, revisions to the subzone classification system; and formulating a Conservation District management plan.
Lacayo Planning was one of two qualified bidders on the project, according to Hanaike. That firm will be paid $286,650 for the Phase III work.
DLNR Rejects Plan For Carlsberg Restoration
The Department of Land and Natural Resources has rejected the plan submitted by Judith Carlsberg for restoration of state-owned Conservation District land adjoining her private house lot in Makena, Maui. Carlsberg had had the state-owned land filled and partly graded in anticipation of using it as an extension of the landscaping for her private house. Although she obtained an after-the-fact permit for this work in February 1994, that permit was revoked by the Land Board in July. (For details, see the May 1994 and July 1994 editions of Environment Hawai`i by scrolling down to their listings in the [url=/members_archives/archives1994]1994 Archive[/url].)
In a letter to Carlsberg dated November 21, 1994, Deputy DLNR Director Jack Keppeler told Carlsberg, “The plan is insufficient inasmuch as it does not address the department’s objectives for restoration of the subject state-owned parcel.”
Keppeler went on to list the “physical elements” that would have to be incorporated into any acceptable restoration plan. Among them are installation of bollards at the corners of Carlsberg’s private land; removal of all plants that Carlsberg had introduced to the state-owned parcel; and removal of dead brush and trees, as well as dirt piles and yard sod.
In addition, Carlsberg is required to re-establish the shoreline trail over the state parcel so as to allow access to and along the shoreline. Keppeler also instructed her to install public access signs, consistent with Maui County signage requirements, on both ends of Carlsberg’s wall fronting the public road.
Carlsberg was given 30 days to submit a final restoration plan to the department. “We remind you that the board’s directive to restore the land is the result of the applicant’s illegal encroachment into the subject state parcel,” Keppeler wrote. “Failure to comply with the board’s directive will result in legal action by the department.”
Cowell House Granted After-the-Fact Permit
On November 18, the Land Board approved the award of a Conservation District Use Permit for a house near Kealakekua Bay built by Rita and William Cowell. The permit was awarded on an after-the-fact basis for the house as a non-conforming use. (For a fuller discussion of this, see [url=/members_archives/archives_more.php?id=1311_0_30_0_C]”Illegal Kona Vacation House Sits Amid Ruins of Hawaiian Village,”[/url] Environment Hawai`i, October 1994.)
Volume 5, Number 6 December 1994