In the past, the use of beaches for commercial purposes has required a Conservation District Use Permit to be issued by the Board of Land and Natural Resources. But in the last eighteen months, the staff of the Department of Land and Natural Resources appears to have turned its back on that requirement. Why? What is being proposed in lieu of the Conservation District permit? Environment Hawai’i looks at these questions.
The Ancient Regime
All beaches in Hawai’i belong to the state. All of them, in addition, have been placed by law in the Conservation District, one of four land use districts established by statute. Commercial users of the Conservation District are required by statute to obtain a permit from the Board of Land and Natural Resources, and, before that permit may be granted, the board must hold a public hearing on the request.
Putting all these requirements together, the Land Board in the past has held that commercial tour boat operators whose passengers cross beach lands or use beach lands as a staging area must obtain a Conservation District Use Permit for the purpose of’ “beach transiting.” And, since beaches are state lands, most of those permits contain as a condition the requirement that the tour operator obtain from the Division of Land Management, within the Department of Land and Natural Resources, some type of license, permit, or easement to use state land.
Many tour boat operators complain that the process is cumbersome. The Division of Land Management has indicated it is less than pleased to have to deal with the “land dispositions” required of permittees. Yet in August 1991, when the DLM asked the Land Board for a determination that beach transiting was not a “land use” – and so would not require land dispositions be issued by the DLM- the Land Board took the item off its agenda. (For a fuller discussion of this, see [url=/members_archives/archives_more.php?id=647_0_33_0_C]”DLNR Divisions Cross Swords Over Regulation of Beach Use,”[/url] Environment Hawai’i, September 1991.)
Since then, the Land Board has considered several additional requests for “beach transiting” permits from commercial operators in the Conservation District. So far as the Land Board is concerned, it would seem that Conservation District Use Permits continue to be required for such uses.
A Palace Coup?
Meanwhile, starting in early 1992, staff of the Ocean Resources Branch of the Department of Business, Economic Development and Tourism began its own review of the types of permits commercial ocean recreation businesses need to have to be operating legally in Hawai’i. In this review, DBEDT turned to guidance, with respect to DLNR rules, to the DLNR’s Division of Boating and Ocean Recreation. (DOBOR, as it is called, had been administered under the Department of Transportation until July 1992, when legislation moved it back to the DLNR.)
According to a draft DBEDT report, the Department of Land and Natural Resources was “in the process of simplifying its permit structure in order to provide a permit system that is effective in wisely managing public resources.”
The report, titled “Commercial Ocean Recreation Permits, Issues and Analysis,” continued: “Although this structure has not been fully implemented, the following changes are planned. DOBOR will be responsible for: 1) Regulation and management of commercial recreational boating and other ocean-based activities affecting beaches and nearshore submerged lands; 2) Processing boating activities and regulation of transitory use of state beach lands within the Conservation District… DLNR has determined that a Conservation District Use Application (CDUA) is not needed for boating and other ocean-based activities transiting through state beach lands within the Conservation District; however other DOBOR regulations and permits may apply…”
At several meetings of the state Coastal and Ocean Management Policy Advisory Group, DBEDT was questioned on the “determination” by the DLNR that Conservation District permits would no longer be required for beach transiting in connection with commercial operations. The determination had not been made at any public meeting of the Board of Land and Natural Resources, several COMPAG members noted.
Athline Clark, the DBEDT staffer who had prepared the report on permits, informed the group that the determination had been announced in a memo from then-DLNR Director William Paty – although the memo was never produced for COMPAG members to review. In addition, several COMPAG members (including the editor of this newsletter) expressed doubts over the ability of any DLNR officer, including the chairman, to override Board policy on the matter of beach transiting.
The Stealth Memo
While the memo appears not to have been made public nor to have been the subject of any deliberation on the part of the Board of Land and Natural Resources, Environment Hawai’i has obtained a copy. Dated May 29, 1992, it is addressed to DLNR “Divisions and Offices” and is from Paty. The subject is “Procedures for Departmental Review of Commercial/Recreational Boating and Other Ocean-Based Activities Affecting Beaches and Nearshore Submerged Lands.” The memo was occasioned, apparently, by the imminent transfer of the Division of Boating and Ocean Recreation to the DLNR.
“Processing boating activities including regulation of transitory use of state beach lands within the Conservation District shall no longer be processed through OCEA, Land Management and State Parks,” the memo reads – language identical to that contained in the DBEDT report on permits. The memo has yet to come before the Land Board for public discussion and approval, yet the state Attorney General’s office is using the memo as justification for turning its back upon a decade of prior AG opinions and Land Board practice.
Coming to a Head
The stunning reversal in announced policy – without benefit of rule change or Land Board consideration – is more than academic. It has been invoked by the DLNR in a contested case hearing challenging the Board’s extension of a Division of State Parks’ Special Use Permit issued to a Zodiac boat operator on Kaua’i’s North Shore and the Board’s authorization to DOBOR to issue a commercial use permit to the operator. (The contested case, which revolves around the operations of Clancy Greff’s Na Pali Zodiac, is ongoing.)
In responding to the petition of Wai Ola, a citizens’ group, Deputy Attorney General Dawn Chang argued that “walking across the beach, whether it is part of a commercial or recreational activity, is not a land use which requires a CDUA,” and to back up her argument, cited the Paty memo of May 29, 1992.
Harold Bronstein, attorney for Wai Ola, answered: “As to the ‘transiting’ issue, i.e., walking across the beach, it is totally misleading. The issue is the commercial use of conservation land, i.e., in this case Makua Beach, which is to be regulated by the CDUA process. No permit can be issued until that use has been approved by the Board. The ‘transiting’ of the beach, i.e., conservation lands, by persons who have paid monies to a commercial enterprise for the purpose of embarking and disembarking at a public beach on a boat tour and/or transportation to the Na Pali State Park is an activity which is an integral part of the commercial venture and is ‘related to or connected with trade, traffic or commerce”‘ as defined in the Land Boards administrative rules (Hawai’i Administrative Rules 13-2-1 and following).
In an answering memo to Chang’s brief Bronstein hauls out a long list of attorney general opinions supporting the view that Conservation District Use Permits should be required of commercial operators using beach lands. Two of the earliest such opinions were written by then-Deputy Attorney General (and now Deputy DLNR Director) Dona L Hanaike, in March and May of 1982. Again, on October 5, 1984, Deputy Attorney General Johnson H. Wong informed then-DLNR Director Susumo Ono: “Where commercial landings [on beaches] are involved, a CDUA permit should be required as well as a land disposition by the Land Management Division.”
‘A CDUA Is Required’
In May of 1985, Deputy Attorney General Chelun Huang reaffirmed Hanaike’s earlier opinions. “Occasional use of the beach or sandbar may not deprive the general public of the functional use of the land or have an adverse effect upon the conservation area,” Huang wrote. “However, daily or weekly use of the beach and sandbar would deprive the public of the beaches and sandbar use and would probably be harmful to the land itself. More importantly, one must look at the nature of the entire operation and not at a small segment. The operation from start to finish is commercial. The tourist who goes on the tour bus or tour boar does not end his tour until he is returned to his starting point or drop-off point. The tour doesn’t fluctuate from being commercial to non-commercial to commercial, it remains commercial the entire period of time… In summation, commercial tours remain commercial throughout the operation, and use of conservation lands by commercial tour operators requires a CDUA.”
Huang was asked to reconsider the matter on August 12, 1985. In response to that request, he wrote, on September 10, 1985:
“In discussing this problem with Mr. Roger Evans [administrator of the Office of Conservation and Environmental Affairs], I understand that his position is that we should only be concerned with the type of activity occurring within the conservation area. For example, if a tour group is transiting a beach then the act of transiting is not a true commercial activity.
“I have also discussed this problem with Deputy Attorneys General Edwin P. Watson and Dona L. Hanaike who believe as I do that the Department should not focus upon the actions of the tourists that comprise a tour group but should focus upon the overall operation which is a commercial venture…A CDUA is required. Deputy Attorneys General Hanaike and Watson have pointed out that if CDUAs were not required commercial activities would run unchecked… in Waikiki, Ka’anapali, and Hanalei.”
In all, by 1991, there were at least a dozen legal memos issued by the Attorney General concerning commercial use of beaches. All support the view that a CDUA is required for commercial operators.
Eh, Times Change
In answer to Bronstein’s recitation of the long history of attorney general opinions, Deputy Attorney General Dawn Chang wrote, on August 19, 1993: The DLNR “does not dispute the context of the legal memoranda which were written between 1984 to 1985. However, when the legal memoranda are read in its [sic] entirety, they conclude that, ‘[w]hether you [DLNR] desire to so require a CDUA is your administrative decision.’… Notwithstanding DLNR’s previous decisions regarding CDUA requirements, it has determined that a CDUA is not required for Na Pali Zodiac’s activities at this time…”
Chang continued: “Times have changed,” citing transfer of jurisdictional authority from the Department of Transportation to the DLNR (and omitting to mention that, at the time of the 1984 and 1985 attorney general opinions, recreational boating was still under the jurisdiction of the DLNR). “As a result of the transfer of ocean recreational boating to DLNR, DLNR reassessed its permitting process in the area of ocean recreational based activities… Instead of requiring a CDUA for activities occurring on conservation lands, a disposition by the Division of Land Management for a permit to conduct the activities on public lands, and a permit from DOBOR for the ocean based activities, DLNR now requires only one permit to be issued by DOBOR.”
Rules in Limbo
At the moment, the ability of DOBOR to enforce any rules or issue any permits is in doubt. The administrative rules that guided DOBOR’s activities at the Department of Transportation were transferred virtually unchanged to the DLNR. However, according to DOBOR administrator Dave Parsons, enforcement of any DOBOR rules is being held up pending completion of work by the advisory committee that the DLNR has established to review Conservation District rules.
According to members on that committee, at the time of Parsons’ remark made at the October 6, 1993, COMPAG meeting, the committee had at no time considered the matter of commercial use of beaches nor the possible transfer of permitting for such use to DOBOR. In the preliminary discussion draft of that committee’s report (dated September 30, 1993), there is no mention of any transfer of permitting activities from the Office of Conservation and Environmental Affairs, which now oversees activities in the Conservation District, to DOBOR. Similarly, there is no discussion whatsoever of how the commercial use of beach lands shall be regulated.
At the October 6, 1993, meeting, Parsons described what he said was the DLNR’s proposed means of dealing with commercial activity in beach areas. According to Parsons, the Division of Boating and Ocean Recreation would develop management plans for commercial activities in designated beach areas. These management plans, Parsons stated, would go before the Land Board for approval, along with all documentation needed to satisfy the requirements of Chapter 343, the state’s environmental disclosure law. If management plans were approved by the Land Board, DOBOR would then issue permits to commercial operators administratively, without further action by the Land Board, Parsons explained.
When Parsons was asked whether DOBOR would prepare environmental impact statements for those areas already in commercial use – specifically, the North Shore of Kaua’i – Parsons indicated it would not. Only areas proposed for future administration under area-wide boating management plans would be subject to the new policy requiring DOBOR to prepare an environmental impact statement or environmental assessment, he said.
Volume 4, Number 5 November 1993
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