DLNR Winks at Private Lodge On State Land in South Kona

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In early May of 1986, Jon Giffin, a wildlife biologist with the Hawai`i District office of the Division of Forestry and Wildlife, was looking for `alala on the slopes of Mauna Loa in an area known as Kukuiopa`e, on the Big Island. The land, owned by the state, had once been leased to Yee Hop Ranch but was now unencumbered. With most of it heavily forested, it was thought to be likely habitat for `alala, the native Hawaiian crow whose population is critically low.

Giffin did not find `alala that day — nor did anyone really expect him to. He did, however, come upon something at least as unexpected: a furnished cabin, showing evidence of recent occupation, several cattle traps, horse paddocks, and a corral.

The First Investigation

The use of state land is — in law and in theory — strictly regulated by the state, with the Department of Land and Natural Resources’ Division of Land Management acting as landlord. If anyone wants to build on state land or use it in any other way, permission must be sought from the state. When Conservation District land is involved (as it may be in Kukuiopa`e, which is within the South Kona Forest Reserve), the state is even more particular about the purposes to which such land may be put.

In this case, no permits had been sought or obtained for a cabin, corrals, cattle traps and the like. Giffin reported his findings by telephone to Libert K. Landgraf, then the administrator of the Division of Forestry and Wildlife. The phone call was followed up by a memo May 16, 1986, to Landgraf from Charles Wakida, who was at the time Hawai`i District Forester.

Besides the structures, Wakida wrote, there was also “a more recently constructed road on the 1950 lava flow… Jon followed the road down to the 3,900-foot elevation. The road continues down the flow for a yet undetermined distance. It is speculated that the road probably extends to the highway and is used for hauling out cattle.”

“A formal complaint has been filed with DOCARE,” Wakida continued. (The Division of Conservation and Resource Enforcement, which is the police agency for the Department of Land and Natural Resources.) Wakida asked Landgraf to approve helicopter services so that DOCARE could make an aerial inspection of the remote site.

A Second Complaint

In March of 1987, Giffin participated in another `alala survey. On Mauna Loa, only two `alala were sighted on the Waiea Tract (a state-owned parcel leased to McCandless Ranch), according to his memo of May 19, 1987, to the district wildlife biologist, Ronald Bachman. No `alala were found in Kukuiopa`e; however, “illegal forest clearing activities and various hunting violations were noted” there. In addition, “numerous ‘trails’ had been recently bulldozed through the Kukuiopa`e section… These trails were apparently being used to remove wild cattle from the forest reserve. Water troughs with fresh water were also found in the forest. Water provides an effective bait for wild cattle during the dry conditions. A large corral-type pig trap was also in operation within the forest reserve.

“Bulldozing and wild animal trapping violations were first noted last year. A formal complaint was filed with DOCARE on May 14, 1986, but no legal action has occurred to date.”

This time, a follow-up memorandum was sent on May 28, 1987, to Ronald Walker, acting administrator of DOFAW, from Thane Pratt, a wildlife biologist, and Michael Buck, then a resource evaluation forester (Buck is now DOFAW administrator).

“On March 17 we drove into the South Kona Forest Reserve, Kukuiopa`e section,” they wrote. “The road we used for access was the same, illegally bulldozed road reported by Jon Giffin in May 1986 and confirmed by air with DOCARE officers in June 1986…. The following day we surveyed for crows in the lands of Pahoehoe 2, Kaohe 1-5, and Kukuiopa`e. Other recently cleared roads were observed in the forest reserve at Kukuiopa`e between the elevations of 4,200 and 4,800 feet.

“The illegal cabin reported in May ’86 on the unencumbered state land at Kukuiopa`e was still in use, furnished with bedding, kitchenware, radio, etc. The ‘owner’ of the cabin was notified in advance of our survey, and we used the cabin that night. A small corral and several cattle and pig traps were also observed on the unencumbered parcel, as were several herds of feral cattle.

“We are much concerned that such illegal use of state-owned forest reserve lands will lead to other violations by increasing the disregard for regulations governing the use of lands in the public domain. We recommend four ways that this forest be better protected: (1) that the persons involved in these illegal activities be prosecuted; (2) that the forest reserve be patrolled, on at least an annual basis (with a written report); (3) that wild cattle be removed from the South Kona Forest Reserve; and (4) that the mauka boundary of the Kukuiopa`e section of the South Kona Forest Reserve be moved to the top of the ahupua`a, thereby including the unencumbered state-owned forested lands which are in need of protection from the illegal activities described above and from feral cattle.”

Walker in turn forwarded that memo, as well as his own covering memorandum dated June 16, 1987, to William W. Paty, chairman of the Board of Land and Natural Resources. He noted the history of these violations and stated: “It seems that these uses have not been stopped, but have increased with new road building being observed within state-owned and forest reserve land.”

“We need to determine (1) whether any of these activities was ever authorized (not to our knowledge); (2) what action was taken after the alleged violations were reported in 1986; (3) what these uses or developments constitute as violations (Conservation District Use, Forest Reserve rules, Land Management rules, etc); and (4) what action should be taken in terms of punitive procedures, removal of any unauthorized structures, and restoration of the sites.

“I am concerned,” Walker wrote, “that the uses of these lands as described have had and will have an adverse impact on forest and state land resources, unless corrected. I suggest a meeting of representatives of OCEA [the Office of Conservation and Environmental Affairs], Division of Land Management, Division of Conservation and Resource Enforcement, Division of Forestry and Wildlife, and your office as soon as possible to discuss this matter and possible corrective actions.”

Another Year Passes

In May of 1988, the Conservation Council for Hawai`i, through its chairman, Rick Scudder, wrote to Governor John Waihe`e expressing its “strong concern over the continuing lack of action” with regard to the violations at Kukuiopa`e.

No response was made to CCH. However, the letter was apparently given to Ronald Walker, who was asked to provide Board Chairman Paty with background on the matter. Walker did so in a memorandum bearing the date May 11, 1988.

After recapping the events and memos described above, Walker concluded: “As the Division of Forestry and Wildlife has provided known information on the violations; has DOCARE has made an investigation of the violations; as some violations have occurred on unencumbered state lands; and as the Conservation District is involved, I reiterate my recommendation of June 1987” — to have a meeting of agency representatives. “An appropriate response to the complainant could then be formulated. Lacking information on what ensued after the reports were provided and the investigation was conducted,” Walker wrote, he was unprepared to draft any response to the Conservation Council.

When Scudder wrote a follow-up letter to Waihe`e in July of 1988, Waihe`e’s right-hand man, Joshua Agsalud, responded. Agsalud informed Scudder that as a result of the 1986 investigation, “the DLNR was assured by the violator that he would cease all illegal activities immediately,” but then added:

“Due to the inaccessibility of the site, the difficulty of determining land boundaries, and problems with locating the individuals who were responsible, another investigation triggered by information received in your letter of May 6, 1988, has been taxing. We have been assured by the DLNR, however, that this matter will be resolved and corrective actions taken without further and unnecessary delays. DLNR will notify you of the final disposition of this case.”

Awaiting Notice

As Environment Hawai`i went to press, Scudder was still awaiting notification of the “final disposition” promised by Agsalud. In January of this year, a formal request was made by the publisher of this newsletter to Chairman Paty, seeking access to DLNR files concerning investigations and enforcement actions, if any, relating to the Kukuiopa`e area. Paty’s response was to state that “alleged violations are not public records.” Enclosed with his response was an advisory opinion from the state Office of Information Practices. That opinion, dated February 12, 1990, concerned the disclosure of “drafts of correspondence and staff notes about an alleged zoning violation.” The opinion acknowledges, however, that “correspondence to an alleged violating party is public” under the state’s Uniform Information Practices Act.

Volume 2, Number 9 March 1992