Two years ago, the Board of Land and Natural Resources was asked to grant another one-year extension to the permit issued by the Department of Land and Natural Resources’ Division of State Parks to Clancy Greff’s boating operation.1 Greff was the first boater to be issued a permit to operate along Kaua’i’s Na Pali coast. In the years since that first permit was issued in 1978, Greff’s operation, which loads passengers at Makua, or Tunnels, Beach near Ha’ena, expanded from two inflatable boats to 10 (in 1985), and back to two, as of October 1991. On June 26, 1992, the Land Board was being asked to approve Greff’s operations out of Makua as well as his landing and pickup of campers at Kalalau Beach and Miloli’i, within Na Pali Coast State Park, and landings (up to four a day) at Nualolo Kai, also within the state park.
The Land Board approved the request. But by July 6, the citizens group Wai Ola had filed a petition with the Land Board for a contested case hearing on the matter. In August, the Land Board asked the Department of Commerce and Consumer Affairs’ Office of Administrative Hearings to assist in the contested case process. June 1993 rolled around, and still no hearings had been held, owing to a number of delays. That month, the Land Board approved Greff’s operations for still another year, but with a twist: this time, the Land Board authorized the DLNR’s Division of Boating and Ocean Recreation to issue a commercial use permit to Greff for the use of Makua Beach.
The hearing on the contested case request occurred on August 23, 1993. On February 22, 1994, Sheryl Lee A. Nagata, the hearings officer assigned this case, finally issued her findings of fact, conclusions of law, and recommended order (subject to approval by the Land Board). Since then, attorneys for the parties involved (the Land Board, Wai Ola, and Greff) have filed assorted objections and motions. Eventually, the hearing officer’s final recommendation will be presented to the Land Board for a decision.
A CDUA Is Needed
At the heart of the contested case hearing is a dispute between Wai Ola and the Land Board over the very need for Greff to obtain a Conservation District Use Permit for the continuing use of Makua Beach. The beach is within the state Conservation District. The DLNR’s rules governing use of the Conservation District by commercial ventures (such as Greff’s) require that the user file a Conservation District Use Application (CDUA). That application, in turn, requires compliance with the state’s environmental impact disclosure law (Chapter 343, Hawai’i Revised Statutes) and a public hearing on the proposed commercial use.
As Environment Hawai`i has reported,2 the DLNR has recently taken the position that the use of Makua Beach by Greff is incidental to his commercial operation and that therefore no CDUA is required. In making this argument, the Land Board’s attorney for this case, Dawn Chang, turned her back on at least a dozen previous findings by past Land Board attorneys. Among the various deputy attorneys general who came down in favor of requiring a CDUA were Dona Hanaike, now a deputy director in the DLNR, and Chelun Huang. Nagata, the hearings officer, rejected Chang’s argument. The evidence presented established that … at least part of Respondent Greff’s commercial activity at Makua (Tunnels) Beach occurs on conservation land,” Nagata wrote. “The first issue to be resolved is whether a CDUA is required for the activity occurring on conservation land. The Hearings Officer finds the opinions issued by Deputy Attorneys General Hanaike and Huang to be convincing, and accordingly concludes that a CDUA is required for Respondent Greff’s activities at Makua (Tunnels) Beach.”
A CDUA Exists
Greff’s first Conservation District Use Application, filed in 1978, did not specifically cover the use of Makua. At the time, Greff was operating out of Ke’e Beach. When the Land Board approved that CDUA, it stipulated that Greff was no longer to use Ke’e, but rather that “landings be operated only along those beaches designated – the Division of State Parks.”
The area used by Greff at Makua is not adjacent to any part of a state park. Instead, it is fronted by a number of private homes. But the hearings officer determined that “the after-the-fact CDUA approved in April 1978 encompasses Respondent Greff’s activities at Makua (Tunnels) Beach because State Parks has, at least since 1979, designated Makua (Tunnels) Beach as a landing site.”
Where’s the EA?
As mentioned above, obtaining approval for a CDUA requires compliance with Chapter 343, among other things. Hearings Officer Nagata concluded that no environmental assessment had been prepared for the use of Makua Beach. For this reason, Nagata determined that the Land Board failed to comply with Chapter 343 when it authorized the issuance, through the Division of Boating and Ocean Recreation, of a commercial use permit to Greff in 1993. “Based on the absence of any evidence regarding compliance with HRS Chapter 343,” Nagata wrote, “the Hearings Officer must conclude that the Board did not have the authority to authorize DOBOR to issue a commercial use permit to Respondent.”
The Objections
In March, the state, through its attorney Dawn Chang, and Wai Ola, through its attorney Harold Bronstein, filed objections to Nagata’s findings.
Chang argued, as she had previously, that to interpret state law “to mean that walking across the beach is a land use would result in an absurdity because the consequence of such an interpretation would mean that any and every person walking across the beach would be required to obtain a CDUA permit.”
Bronstein agreed with Nagata’s conclusion that a CDUA is needed for Greff’s activities, but disputed her conclusion that the April 1978 CDUA “encompasses Greff’s activities at Makua (Tunnels) Beach…” Bronstein points out that conditions of Greff’s 1978 CDUA required him to “obtain from the Division of Land Management proper disposition of the land” – something Greff has never done, according to Bronstein. In addition, Bronstein argues, “the Division of State Parks simply does not possess the authority to authorize landings at Makua, as it is outside their jurisdiction.”
Finally, Bronstein takes exception to Nagata’s finding that Greff need not obtain a county Special Management Area permit in keeping with the Hanalei Estuary Management Plan, since Makua is outside the Hanalei area. Nagata errs in this, Bronstein says, inasmuch as Greff “launches and retrieves his commercial tour boats in the Hanalei Estuary without the required permits. These are the same boats which Greff uses for his commercial activities at Makua.” By not complying with county rules, Bronstein argues, Greff also fails to comply with the 1978 CDUA, which requires compliance with “all applicable statutes, ordinances, rules and regulations of the federal, state and county government.”
Greff Weighs In
Yet a third party responded to Nagata’s findings: Clancy Greff. Although Greff purported to be representing himself throughout the course of the contested case hearing prior to March, in March he was represented by attorneys from the firm of Watanabe, Ing & Kawashima. Not surprisingly, Greff’s lawyers, Pamela J. Larson and Lyle Y. Harada, dispute Nagata’s finding that a CDUA is required for his use of Makua (which Greff insists on calling Tunnels), echoing many of the same arguments of the state’s attorney.
Greff’s attorneys also take exception to Nagata’s finding of no Chapter 343 compliance with respect to the DOBOR commercial use permit authorized in June 1993. Pointing to the 1977 negative declaration issued for Greff’s 1978 CDUA, they argue that this “covered all of the activities subject to the CDUA application, including those at Ha’ena.”
“Even if Tunnels was not specifically mentioned in the CDUA application,” Greff’s lawyers write, “the Board considered the application broad enough to include Tunnels… Because the 1977 Negative Declaration encompassed all of the activities subject to the CDUA, and the CDUA encompassed Greff’s activities at Tunnels, the 1977 Negative Declaration likewise encompasses those activities.”
Finally, nearly two years after the contested case hearing was requested, Greff’s lawyers were asking in March 1994 to have the record in the case reopened, “to include certain additional documents and matters, including the negative declaration of 1977.”
A Secret History?
In April, Larson and Harada filed an additional statement in support of most of Nagata’s findings of fact – a document that is unremarkable but for a long and rambling affidavit attached to it. That affidavit, of Greff, hears the date of March 5, 1993, and is indicated as having been sworn to in Ketchum, Idaho.
In the affidavit, Greff describes the early years of his operations. “In the beginning,” he says, “I ran my 13′ Zodiac along the Na Pali Coast in search of surfing waves and a little extra cash on the weekends and during the summer months. 1974 was a great year and on a normal weekend, I would bring in up to $200 cash.”
Eventually, Greff says, he met George Nutani, who later became the Kaua’i manager of the Division of State Parks, and Sam Lee, of the state Division of Land Management. At their suggestion, he says, he applied for the permit to take people in and out of Na Pali Coast State Park.
“Through Sam Lee, I was introduced and contact was made with a man named Roger Evans … We met with Mr. Evans several times and he was quite helpful in assisting us with the preparation of our original CDUA,” Greff says. In the weeks before the public hearing on the CDUA, he continues, “a friendship was struck between Mr. Evans, myself, Pat Hanes, and Joel Tamura,” whom Greff describes as Evans’ girlfriend. Tamura, Hanes and Greff each put in $500 to start up a corporation called Na Pali Coast Productions, Greff says, whose purpose was going to be the manufacture and sale of souvenir items, such as T-shirts, to Greff’s customers.
Political Intrigue
On the advice of his father, though, Greff told Evans that Tamura’s involvement in the new company “could possibly be a conflict of interests and down the road could cause a question concerning the association with Mr. Evans and Na Pali Coast Productions.”
“On informing Mr. Evans, he blew up and threatened to ‘kill’ our permit,” Greff says. “After Mr. Evans made certain remarks to the press which were negative about our operation, I happened to meet Senator Dennis O’Connor and related the situation regarding Mr. Evans’ threats and our pending permits. There were subsequent letters and a meeting was held with Dennis Yamada, Senator O’Connor, Rep. Richard Kawakami and Senator George Toyafuku.
“[Land Board] Chairman Bill Thompson later removed Mr. Evans from any further actions involving Kaua’i for several years. Also a meeting between myself and Deputy State Attorney General Johnson Wong took place so that Attorney General Wong could decide if any state action was required regarding this incident. For the next ten (10) years, Mr. Evans refused to have any dialogue with myself or any associates involved in the proposed T-shirt company.
And Further Objections
Bronstein, the attorney for Wai Ola, filed a formal objection to Greff’s choice of lawyers. “Douglas Ing is a named partner in the law firm,” Bronstein notes, who “previously served as a member of the Board of Land and Natural Resources from approximately 1984 through 1990.” During that time, “he discussed and voted upon the issues raised by the petitioner in the contested case hearing,” Bronstein writes. Were the firm allowed to represent Greff, he argues, it would violate the Land Board’s rule prohibiting any board member, officer, employee, or counsel “to appear before the board in behalf of or to represent in any manner, any parry in connection with any proceeding or matter which the person has handled or passed upon while associated in any capacity with the board.”
As Environment Hawai’i goes to press, the contested case awaits further action by the hearings officer.
Club Lanai Assessment Is Withdrawn…
The DLNR’s Division of Boating and Ocean Recreation has withdrawn an environmental assessment for the beach-loading of passengers onto a Club Lanai catamaran at two sites in Wailea, Maui. This EA, described in a [url=/members_archives/archives_more.php?id=1243_0_30_0_C]January 1994[/url] article of Environment Hawai’i, was the first submitted by DOBOR for regulation of commercial beach activities, as anticipated in the May 1992 memo from William Paty referred to above.
The document was deficient in many respects, as DOBOR Administrator David Parsons admitted to us in December.
On April 18, Parsons informed the Office of Environmental Quality Control that “publication of this draft Environmental Assessment for this activity was premature.” Notice of the withdrawal appeared in the April 27 OEQC Bulletin.
As DOBOR Cites Boats in Kihei Area
Seven tour boat operators loading passengers on the Maui coast from Ma’alaea to La Perouse (including the Kihei area) have been issued cease-and-desist orders by the Division of Boating and Ocean Recreation. In addition, a hearing was scheduled for May 17 in District Court over the ticket issued to a boat operator who was caught loading passengers on the beach without a permit.
According to DOBOR Administrator David Parsons, the ticket was issued by a Marine Patrol officer who witnessed the unpermitted activity. That the activity was ongoing was known to DOBOR since at least last August, however. “We knew it was going on and had been looking at remedies and alternatives,” Parsons told Environment Hawai’i.
Parsons said he was expecting the boat operators, who among them run nine boats, to join forces in court and seek an injunction or a temporary restraining order to stop the state from enforcing its administrative rules.
Parsons told The Maui News that at one point, the state as prepared to allow boats to land on county parks if the county granted them permits. But, Parsons told the paper, the County Council is not agreeable to the commercialization of county parks.
1 For more background on the long controversy involving boating operations on Kaua`i’s North Shore, see the [url=/members_archives/archives1994.php]September 1991[/url] issue of Environment Hawai`i. For a fuller discussion of the Land Board policy on commercial use of state beaches, see [url=/members_archives/archives_more.php?id=1226_0_31_0_C]”Without Public Notice, DLNR Alters Policy on Commercial Use of Beaches”[/url], November 1993, Environment Hawai`i.
2 See “Without Public Notice, DLNR Alters Policy on Commercial Use of Beaches”, November 1993, Environment Hawai`i.
Volume 4, Number 12 June 1994
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