In a March 1991 article of Environment Hawai`i raised questions concerning the state’s management of a tract of more than 100,000 acres in an area on the Big Island known as Pu`uwa`awa`a. In hearings before the Legislature, environmentalists posed still more questions about the uses to which the land was being put by the lessee. As a result of those hearings, the Legislature adopted a concurrent resolution calling on the state Board of Land and Natural Resources to prepare a report to the Legislature by the opening of the 1992 session on the management of state-owned lands at Pu`uwa`awa`a.
Twenty Questions …
The House of Representatives was concerned enough about Pu`uwa`awa`a to establish a special subcommittee, headed by Representative Jackie Young, to look into the matter further.
Young met with environmentalists and DLNR personnel in two separate meetings in September. Most members of her subcommittee, several other Big Island legislators, DLNR agents and officials, and a small delegation from the environmental community made a field trip to Pu`uwa`awa`a in late September.
Young wrote to William Paty, BLNR chairman, on October 25, 1991, requesting that the DLNR “prepare written responses to the attached list of questions.” The information given in response “will be very useful to the subcommittee in developing its recommendations to the full House.”
The questions number 13, of which several deal generally with the adequacy of staff within the DLNR’s Division of Land Management. Most, however, concern Pu`uwa`awa`a specifically. Question 5, for example, asks why the DLNR required three years from the time the survey of lands to be withdrawn at Pu`uwa`awa`a was completed to the time the withdrawal agreement was signed (in April 1991, just days after the first legislative hearing into Pu`uwa`awa`a).
Question 6 asks the DLNR to describe how lease compliance is evaluated; Question 7 inquires as to what procedure the DLNR would normally follow when a lease such as that at Pu`uwa`awa`a expires, as it will in the year 2000.
Question 8 is more pointed: “The subcommittee learned that DLNR inspects the Pu`uwa`awa`a Ranch property on the average of once every two years. How does this level of inspection compare to the coverage given to other general leases elsewhere in the state? If it was impossible to detect when unauthorized improvements were made on Pu`uwa`awa`a Ranch lands, what assurance can DLNR give this subcommittee that similar unauthorized improvements such as landfills are not being established elsewhere?” (The lessee at Pu`uwa`awa`a, one F. Newell Bohnett, built two house-type structures, hangars, and utility sheds, cleared and paved an airstrip, and created a new dump for use by people at the neighboring subdivision, Pu`u Lani, he had developed — with none of this being detected in the DLNR’s inspections.)
In Question 9, the DLNR is asked what techniques, besides on-site inspections, it relies on in determining the lessee is in compliance with “the provisions of the lease as well as with the law.” “What alternative techniques has DLNR considered? Does DLNR coordinate its inspections with the county building departments?” The department is asked to evaluate the feasibility of using aerial photographs, relying on a “checklist-type of self-disclosure form” to be completed periodically by the lessee, and “developing incentives (or stronger penalties) to ensure greater compliance.”
The last two questions concern the extent to which the DLNR has undertaken research of the sort that it claims is needed into fountain grass — a ground cover that makes for good grazing, but pushes out indigenous plants and poses a fire hazard — and into the relative rarity of certain species of plants found at Pu`uwa`awa`a .
… And More
Young’s questions build upon others raised by the environmental community. In Environment Hawai`i‘s March 1991 edition, concerns were raised that Bohnett had not applied for or received permits for buildings on state-owned land; that he was not in compliance with the terms of the after-the-fact permit issued for his airstrip by the county; that he had not provided the state with evidence of his leasehold lands being insured, with the state named as additional insured (a requirement of the lease); that the state had no evidence Bohnett had posted a performance bond (a lease requirement); that Bohnett had not filed the required annual reports listing, among other things, improvements to the property; that he had destroyed a reservoir in the area of the Kiholo well long after he was to have surrendered all improvements in that area to the state; that a new lease rental fee, which was to have been agreed upon and in effect as of August 1990, had not been established, leaving open the possibility that once more, as had happened in 1985, Bohnett would be allowed to pay back rent owed over time and without interest or penalty.
Others, especially members of the Hawai`i Audubon Society and the Conservation Council for Hawai`i, were eager to learn what intentions the DLNR had for protecting what remains of the dryland forest that Pu`uwa`awa`a once boasted of. While most of the dryland forest area has been taken over by fountain grass, destroyed by fire, or both, it may be possible, with intensive management, to restore some areas to flourishing good health.
Last, but certainly not least, members of the Moku Loa group of the Sierra Club were concerned to know what was being done about Bohnett’s new dump. An inspection by the state Department of Health disclosed actually three landfills — an old one, no longer in use; the new one, covering approximately five acres of state-owned land; and a litter site at the foot of a turn-out along the Mamalahoa Highway, which cuts through Pu`uwa`awa`a Ranch.
Selective Answers
At the BLNR meeting of December 20, 1991, the Division of Land Management presented its draft report for Board approval. Testimony from the public was harsh. Nonetheless, the Board approved the report, with only minor changes — perhaps the most significant being the imposition of $5,000 in fines for two of the landfills. (The Division of Land Management had proposed no fine at all for the landfills. The only fines it had proposed were two fines of $500 each for construction of two unauthorized buildings on the leased premises. A third unauthorized structure, a shed, was still under investigation at the time of the report. If the DLM found it was built after Bohnett took over the lease, the DLM proposed fining Bohnett another $500 for that.)
The report, as submitted to the Legislature, notes just three lease violations: unauthorized improvements; use of the leased premises for purposes unrelated to pasturage; and the landfills. For all three, the Division of Land Management has proposed resolutions. For the first, it has extracted from Bohnett “construction plans and drawings of improvements placed on the demised premises” — although it acknowledges Bohnett has yet to submit construction plans and drawings for two structures. “Those uses and improvements that we feel are acceptable under the lease will be approved after the fact by the Chairperson,” the report states. “Those improvements that are determined to be in violation will be removed. Should the violation remain unresolved, we will bring this matter back to the BLNR.”
To resolve the second violation, the fines were imposed for the unauthorized structures. In response to a plea from Jackie Young, the DLNR has agreed to “delay any order to dismantle or destroy” structures not related to pasturage use, “to allow time for interested parties to discuss alternative uses with the Lessee and present such alternatives to the DLNR and the BLNR for approval.”
The landfill violation is proposed to be resolved by the fines and by having Bohnett’s agents, R.M. Towill Corporation, develop a plan for corrective action and, upon approval by the Department of Health, carry out any and all clean-up work required.
Commuting? What Commuting?
The use of the airstrip by Bohnett for commuting was listed by the Division of Land Management as no more than a “possibility for violation.” The possibility becomes reality only if Bohnett uses it for activities not related to pasturage — for example, commuting.
In three separate reports to Hawai`i County, Bohnett has acknowledged using the airstrip for commuting to and from Honolulu International Airport. The reports have been obtained by the Division of Land Management as well. Still, the DLM tells the Legislature that it will review these reports “to see that the prohibitions against commuting … and other non-ranch uses are being followed.”
“The county of Hawai`i and the Lessee are working on this matter in a good faith effort,” the DLM report states. “Should a violation develop, we would expect the County of Hawai`i to take the necessary action for compliance under their permit. If required, we will work with the county to insure compliance or eliminate the use.”
The disappearance of `alala (the Hawaiian crow) from Pu`uwa`awa`a during Bohnett’s tenure, the deliberately set fires damaging the dryland forest, and the unauthorized logging of koa trees are dealt with not as “violations,” but as “concerns.” The first is resolved by noting that the wildlife sanctuary (what remains after Bohnett’s logging) may be used for reintroducing captive-hatched forest birds to the wild. Fire damage is proposed to be resolved by having the Division of Forestry and Wildlife work with Bohnett’s ranch manager in setting up a “plant sanctuary” and developing a fire suppression program. “[A]lthough all agreements so far have been verbal, [DOFAW] hope to have something in writing by early 1992.”
In that regard, the report commits the DLNR to developing “an action plan for the lama-kauwila dryland forest and other rare plant communities in consultation with the Lessee, the Natural Area Reserve System Commission, and interested environmental and community groups.” The plan is to be readied within one year and is to address “the protection, restoration and long-term management of the rare plant communities found in the Pu`uwa`awa`a lease area, fire suppression, and fountain grass control.”
The koa logging problem was addressed and resolved back in 1984, the DLM says. “We know of no further koa cutting violations and have received no complaints.”
Paying the Rent
The DLM faced a bundle of questions concerning rental rates and the by all accounts unduly long time taken to effect the withdrawal of 80,000 or so acres of land from the lease ordered by the Land Board in 1984. As to rental fees, the DLM notes that an appraiser has been retained to begin the process of renegotiating lease rent for the period that began August 1990. (The report does not mention that the appraiser was not hired until December of 1991.) It is silent as to why redrawing the lease boundaries should have required seven years.
The concern that Bohnett illegally bulldozed a 9-million gallon reservoir on land that was no longer encumbered by his lease is dismissed by the DLM report. As reported in Environment Hawai`i, the basis for that concern is found in a memo of April 24, 1987 by Ron Bachman of Hilo’s DOFAW office to Ron Walker, DOFAW acting director in Honolulu. Bachman placed destruction of the reservoir sometime after the Pu`u Anahulu fire of September 1986, at which time, he stated, the reservoir was still intact.
The DLM report glosses over the destruction of this reservoir. First, it diminishes the standing of the person reporting its destruction (calling him “someone” rather than identifying him as the Hawai`i district wildlife biologist). Second, to refute Bachman’s claims, Hawai`i District DOFAW manager Charles Wakida provided a memo on November 29, 1991, to Mason Young: “This memorandum is to certify that the makai reservoir at Pu`uwa`awa`a which was fed by the Kiholo well was already covered in September 1986. During suppression activities on the Pu`uwa`awa`a fire … I observed the well and reservoir sites which were located near the southwest corner of the burned area, both from a helicopter and on the ground. The reservoir was covered and the well was capped.”
Ongoing Issues
The report does not address several other matters of lease compliance and management of the lease. Specifically, it does not deal with questions about the legality of allowing Bohnett pay off back rent owed over the remainder of the lease term, without interest. It does not touch upon questions as to the adequacy of Bohnett’s insurance policy. It does not deal with the fact that from 1972, when Bohnett acquired the lease, until 1991, following legislative hearings, Bohnett did not submit one annual report, as required by the lease.
Representative Young’s list of 13 questions remains unanswered as well. Although they have a direct bearing in the effort to determine whether the mismanagement of Pu`uwa`awa`a land was an isolated problem or part of larger, systemwide defects, and thus also relate directly to efforts to find legislative or budgetary solutions, Young was informed by BLNR Chairman William Paty on November 25, 1991, that “the additional 13 questions that you are requesting us to address appear to go far beyond the limits of the House Concurrent Resolution. Furthermore, some of the questions would require a great deal of additional staff resources to research. At this time, we are concerned about completing the report to the Legislature.”
Volume 2, Number 9 March 1992