Island Watch

posted in: April 1993 | 0

DLNR Refuses to Require Public Hearing on Private Park

The private park along the cliffs at the Big Island’s Puakea Bay, adjoining the huge white stucco mansion of George and Shirley Isaacs, was built in the middle-1980s without benefit of a Conservation District Use Permit.

To be sure, one is needed, as the successive owners of the park land have always acknowledged. In 1984, Isaacs, who then owned the land, sought a Conservation District permit for the park before it was built. However, after Isaacs was notified by the DLNR on May 2, 1984, that the application would require a public hearing, Isaacs’ agent, Glen Koyama of the planning firm of Belt Collins & Associates, requested that the application for the park be withdrawn. In a letter May 25, 1984, Koyama stated that the “owner of the property … has concluded that the project is premature at this time. Consequently the lot will be left in its natural condition as an open space amenity.” (For details on this, readers may wish to consult the [url=/members_archives/archives_more.php?id=793_0_32_0_C]January 1992 article[/url] of Environment Hawai`i.)

Two False Starts…

The lot was not left in its “natural condition.” Over the next few years, the park was developed, substantially as anticipated in the withdrawn application, for use of the members of the Puakea Bay Owners’ Association, which took over ownership of the park lot.

In late 1991, following publicity over certain unpermitted developments on both the house and the park lots (publicity generated by the group Citizens for Protection of the North Kohala Coastline), Isaacs and the Puakea Bay Ranch Owners’ Association applied for after-the-fact Conservation District Use Permits. Again, the park application was deemed to require a public hearing, which was scheduled on April 9, 1992. In conjunction with that, the Board of Land and Natural Resources scheduled what was described as an “informational meeting” on the various unauthorized improvements to the Isaacs house. (On Conservation District permits for single-family dwellings, BLNR rules do not require any public hearing.)

When the hearing and informational meeting began, Roger Evans, administrator of the DLNR’s Office of Conservation and Environmental Affairs, announced that once more, the application for the park permit had been withdrawn — this time because compliance with county Shoreline Management Area rules could not be achieved within the 180-day processing period for Conservation District permits. Nonetheless, Evans said, the Land Board was going ahead with the informational meeting as “a land use review of the use, subdivision, and alleged violations” at the Isaacs’ property as well as the park. The withdrawal had been made March 17, 1992, Evans said, after the notice for the hearing had been mailed out. Because no notice had been given to the public on the withdrawal of the park application, the Land Board allowed people at the meeting to submit their testimony on the park as well as the house. …

And A Third?

In late January 1993, the Puakea Bay Ranch Owners’ Association came forward yet again with an application for a Conservation District Use Permit for the park. In a letter to the association’s attorney, Everett Kaneshige, dated February 19, 1993, acting DLNR director Jack Keppeler put the applicant on notice that “a public hearing … will be required.”

By March 8, however, the DLNR had changed its mind. On that date, Keppeler notified Kaneshige (in a letter drafted by Ed Henry, assistant OCEA administrator) that “the Department will utilize recent prior public hearing records relative to the subject application … In this regard, the public hearing requirement is considered met through a prior public hearing held on April 9, 1992.”

Toni Withington, chairperson of the Citizens for Protection of the North Kohala Coastline, has protested this determination to the DLNR. Withington noted Keppeler’s March 8 letter is wrong in stating that that the Land Board had ever held a public hearing on the park application. At the time of the April 9 informational meeting, the park application had been dead for more than three weeks.

In addition, Withington’s group says that Isaacs has not lived up to the conditions set in the Special Management Area permit for his house concerning public shoreline access. Also, she says that when the Land Board approved last July (at a meeting in Honolulu) what agents for Isaacs said to be an agreement on a shoreline trail worked out with her group, the actual document that the Board was given, by Isaacs’ agents, different substantially from the document that the Citizens had agreed to.

* * *

Contested Case Sought Over House at Luahinewai

Two centuries ago, the ruler of Ka`u, Keouaku`ahu`ula, performed a cleansing ceremony at Luahinewai, a lovely anchialine pool along Kiholo Bay, in the North Kona district of the Big Island.  Keoua was on his way to the dedication of the last great heiau built in the islands – Pu`u Kohola – which had been built by Kamehameha to ensure his success in efforts to unify his rule over the island of Hawai`i. Keoua was aware that upon his arrival at Pu`u Kohola, he would meet death.  According to an account of the event by Keone Nunes in the March 1990 edition of Ka Wai Ola O OHA, the newspaper of the Office of Hawaiian Affairs, “at Luahinewai Keoua accepted his fate and, to take revenge on those who would kill him, emasculated himself.”

Eight years ago, the Land Board approved construction of a large house in the Conservation District overlooking Luahinewai. Applicants were Ann and Robert Keenan.

As with the Isaacses, the Keenans did not build according to their permit.  Moreover, starting about three years ago, people seeking to use the beach in front of Luahinewai began to report that they had been chased away from the area by goons hired by the Keenans.

Following up on those reports and other accounts from the public of bulldozers operating in the vicinity of the pond, the DLNR in January 1992 issued a cease-and-desist order for further work.  Last fall, under pressure from the DLNR to resolve the violations, Ann Keenan applied for an after-the-fact Conservation District Use Permit.  A structure that was to have been a garage had been converted to guest quarters, contrary to DLNR rules that require all approved dwellings in the Conservation District to consist of a “unified” structure. To resolve this, Ann Keenan proposed extensive landscaping and a trellis, to “create the appearance of a unified structure.”

The environmental assessment accompanying the after-the-fact application stated that there were no known rare or endangered species in the area. When the Division of State Parks was asked to comment on the EA, it noted that “anchialine pools, such as Luahinewai, are known to contain rare animals. Neritilia hawaiiensis (anchialine pool snail), a candidate for listing as endangered or threatened by the U.S. Fish and Wildlife Service, was reported in 1971 to occur in Luahinewai.” 

As early as 1990, the state’s Historic Preservation Division informed Land Board Chairman William Paty of its distress over the Keenans’ construction. “If such a CDUA was reviewed by our current staff,” Division director Don Hibbard wrote on October 11, 1990, “we would have recommended denial.”

An inspector from Historic Sites had found “no-trespassing signs around the pond on the beach, which apparently is a major irritant to the public.”

The Land Board considered the after-the-fact application at its meeting in Hilo on March 25, 1993.  The staff submittal to the board recommended fining Ann Keenan a total of $2,500 for five separate violations, calculated on the basis of $500 per violation, regardless of the duration of each violation.  Deborah Ward of the Sierra Club suggested that separate violations be counted for each day they remained uncorrected – as has been proposed for the Brown and Bonar cases – and that money from the fines be used by the state to purchase through condemnation the land around Luahinewai pond and place it back in the hands of the public. Dennis Lombardi, lawyer for the Keenans, seemed to be of the erroneous opinion that this was altogether outside the scope of the board’s authority.  Board members themselves were dismissive of Ward’s suggestion, noting that the Brown and Bonar fines were still only recommended, not approved.

Two requests were made to the board for a contested case hearing on the application  – one from Deborah Ward, the other from an attorney representing E Mau Na Ala Hele, a private group seeking to protect ancient trails.  Pending action on those requests, the board deferred any decision on the Keenan application.

* * *

“State of the World” Blindered on Geothermal

The annual State of the World report by the Worldwatch Institute is generally a thorough, accurate account of the world’s progress over the last 12 months toward creation of a sustainable society. But in the case of geothermal energy, the 1993 report displays a curious lapse.

In discussing the potential contributions of geothermal energy worldwide, the report notes that “geothermal energy contributed 21 percent of the electricity in the Philippines; 18 percent in El Salvador and 11 percent in Kenya in 1990.” It goes on, then, to say that geothermal energy “can play a role in other countries as well, as large, untapped resources exist in Bolivia, Costa Rica, Ethiopia, India, and Thailand. Another two dozen countries appear to have equally good, though less explored, potential” (page 114).

But in the preceding chapter, whose topic is “Supporting Indigenous Peoples,” nearly two pages are devoted to a discussion of the way in which development of geothermal energy on Mount Apo in the Philippines disrupted the traditions and disturbed the beliefs of the indigenous Lumad people.

The report notes that, “as everywhere that indigenous people stand between industrial developers and ancestral homelands, the Lumad confront an adversary better equipped, better financed, and better connected with centers of power than they are. All that the Lumad have on their side is the strength of their convictions. Their experience is unusual only in the degree of support they have received from afar.”

That support includes the publicity and sympathy of the authors and researchers at the Worldwatch Institute. And they are correct in acknowledging a link between the strength of the Lumad and “support they have received from afar.”

That said, one can only wonder why the people at Worldwatch continue to ignore the struggle of Hawai`i’s indigenous people over the development of geothermal energy here, which has destroyed native forest stands and has resulted in the release of dangerously high levels of hydrogen sulfide.

It may be time, in fact, for Worldwatch Institute to reconsider its embrace of geothermal energy in general. If the experience in Hawai`i is any indication, developing geothermal resources in countries where environmental and health protection standards are more lax than they are here, and where the ability of residents and environmental groups to monitor development and, when called for, to mount protests is less well assured, it may be inappropriate for Worldwatch to advocate any type of industrial development (geothermal or otherwise).

* * *

Morgan Is Charged With Polluting Water

Francis Morgan, owner of the bankrupt Hamakua Sugar Company, his son David, company vice president, and three plant supervisors have been charged with conspiracy to violate the federal Clean Water Act as well as 14 separate illegal discharges of polluted water from July 1989 until November 1990, when investigators from the Environmental Protection Agency and the Federal Bureau of Investigation raided the sugar plantation’s offices and plant at Haina.

The charges were listed in an indictment handed up February 24, 1993, by a federal grand jury that had been looking into the case for more than a year. The defendants entered not guilty pleas upon arrangement. A trial may come as early as this summer.

The indictment alleges that the two Morgans and Bernard Heron, mill superintendent, P. Douglas Cheape, boiling house superintendent, and Paul Eggel, another boiling house superintendent.

During the period of the violations, Hamakua was making monthly discharge monitoring reports to the state Department of Health, which reports were to disclose to the department (and, indirectly, to the EPA) whether the plant was operating in compliance with the terms of its federal permit to discharge polluted water to the ocean. On occasion, those reports showed the discharged water, which passed through a measuring device called a Parshall flume, to have far higher concentrations of suspended solids than those called for in the permit.

For violating the permit levels, the state Department of Health filed a complaint, seeking fines and other remedies. That complaint is still unresolved.

The discharges that form the basis for the federal indictment, however, are over and above any exceedance over the permitted level of pollutants reported to the state in the monthly reports. What the federal indictment claims, in fact, is that starting about fall of 1987, Morgan and his co-defendants “willfully and knowingly did combine, conspire, confederate and agree with each other and with divers other persons to the grand jury known and unknown to commit” offenses against the United States. Those offenses involved the knowing discharge of pollutants from a pipe that bypassed the Parshall flume and the concealment of those discharges from the state Department of Health, including the filing of discharge reports known to be false.

The purpose of the actions was “to maximize profits and minimize costs of Hamakua by illegally disposing of and otherwise handling wastewater in violation” of its permit.

According to the indictment, the defendants undertook the illegal discharges “on periodic occasions when the mud ponds … were full of mud.” By diverting the contents of the ponds to a pipe that bypassed the Parshall flume, the muddy water was released directly to Kahaupa Gulch where it flowed into the ocean.

When the Department of Health would send inspectors to the plant to conduct independent tests of the discharged water, plant employees were instructed to add “an unusually large amount of polymer … to it, so that the wastewater would have an atypically low amount of mud, dirt and debris” in it, according to the indictment. (Polymer compounds aid in the settling of solids from wastewater. Although they are effective, they are also relatively expensive.)

As to the conspiracy counts, the indictment states: “On numerous occasions between May 1990 and November 1990, the foregoing activities … were discussed at the daily morning meeting of Hamakua management regularly attended by Francis Morgan, David Morgan, Bernard Heron, and P. Douglas Cheape.”

The indictment states clearly that, from at least June 1990 on, Francis Morgan was aware that this activity was illegal. In that month, the indictment says, Morgan consulted with an attorney who advised him that these discharges were illegal.

Volume 3, Number 10 April 1993