Board Talk: Banned Expert in Coral Disease Returns to Northwestern Isles

posted in: August 2011, Board Talk | 0

As the group of scientists filed out of the room, Bob Nishimoto, a state aquatic biologist, clamped his arm around Greta Aeby’s shoulder and gave it a pat. After five years of exile, Aeby was finally going to resume her coral disease research in the Northwestern Hawaiian islands (NWHI), despite opposition from two environmental groups.

On June 8, the state Board of Land and Natural Resources approved a recommendation from its Division of Aquatic Resources (DAR) to grant Aeby a permit to conduct research and experimental management in state waters within the Papahanaumokuakea Marine National Monument.

The permit, which runs from July 15 to September 30, allows Aeby to assess the incidence of disease on corals at several sites throughout the NWHI, determine whether tumors afflicting Acropora cytherea affect the coral’s growth, and test whether removing those tumors will help it grow and reproduce. She will also study diseases in surgeon and butterfly fish.

Locked Out

Aeby, an assistant researcher with the University of Hawai`i’s Hawai`i Institute of Marine Biology (HIMB), had been effectively banned from working in the NWHI since July 2007, when the Land Board found she had violated her 2006 permit. 

The violation occurred when the research vessel she was on unexpectedly left French Frigate Shoals for Gardner Pinnacles with two live coral fragments she had collected still on board. Her permit prohibited the transport of live organisms taken within the state’s NWHI marine refuge to areas outside it.

Under the penalty section of DAR’s refuge rules, an applicant can’t apply for a permit within one year of a violation. Another section states that the board shall deny applications based on past violations.

In early 2007, DAR recommended suspending Aeby from working in the NWHI 

for one year and imposing a fine. In July of that year, the board fined her $1,000, but deferred her request to join the research cruise that year, in part, because deputy attorney general Linda Chow had advised that the board’s rules precluded it from granting a permit to anyone who had violated a previous one. The cruise left before the board could decide on her permit.

A June 2008 proposal that would have allowed UH researcher Evelyn Cox to continue Aeby’s work failed. Cox had requested that Aeby be allowed to join her in the NWHI. Although it was DAR’s position at the time that refuge rules permanently banned Aeby from the NWHI, some Land Board members, including Rob Pacheco and Sam Gon, weren’t so sure. At the board’s June 13, 2008 meeting, however, while discussing Cox’s permit request, then-Land Board chair Laura Thielen quashed attempts by Aeby’s attorney and husband to weigh in on the lifetime ban issue.

The board eventually granted Cox a permit, but not her request to have Aeby tag along. According to last month’s DAR report to the board, Cox never carried out the activities listed in her permit.

In April 2010, Aeby sought a Land Board permit to conduct coral and fish disease research in the NWHI, but DAR recommended denial, citing its rules requiring the board to “deny an application based on a past violation or non-compliance with any term or condition of a permit.” However, DAR also stated that it wanted clarification on the rules “as they pertain to permitting.”

The Papahanaumokuakea Marine National Monument Management Board (MMB) supported Aeby’s application on the conditions that she not SCUBA dive or handle or process samples and that a monument employee be onboard to oversee her permit activities.

The board deferred her request, which she later withdrew because of DAR’s recommendation.

A Change of Heart

When Aeby re-applied for a permit to resume and expand her work in the NWHI this year, the MMB appeared supportive, concluding that understanding coral disease is vital to the management of the NWHI. But due to her violation, members could not agree that granting a permit was entirely appropriate.

“The MMB continues to explore unresolved federal policy and legal issues, related to the previous state violation by this applicant, that may preclude issuance of this permit,” DAR’s June 8 report to the board states. Even so, the MMB supported DAR’s proposed permit conditions.

Absent from DAR’s report is any mention of its previous determination that refuge rules banned violators from the NWHI for life, but its recommendation to approve the most recent application suggested a change in legal advice.

At the Land Board’s June 8 meeting, KAHEA: the Hawaiian-Environmental Alliance and the `Ulu Foundation submitted written testimony against DAR’s recommendation.

Both groups argued that the Land Board could not legally issue a permit to an applicant that has violated refuge regulations and expressed concern about the number of samples Aeby proposed to take and the possibility that her work could actually spread disease.

“Even if the board could issue [a permit], doing so would not be in the best interests of the resource because the applicant is requesting to take 2,600 samples of coral without knowledge of its consequences for the resource,” KAHEA’s written testimony states.

“Do not allow this one-strike rule to be watered down,” KAHEA’s program director Marti Townsend told the board. Because NWHI research permits are only issued once a year, a one-year suspension is equivalent to none at all, she argued.

In defending her proposal, Aeby noted that Acropora tumors aren’t found — and therefore, cant’ be studied — in the Main Hawaiian Islands and that the tumors should “pop right off”. As far as the 2,000-plus samples mentioned in her permit application, Aeby said she would only take coral samples if she found new diseases.

After an executive session, Land Board chair William Aila said that deputy attorney general Pamela Matsukawa had advised the board that state regulations allow it to issue Aeby a permit. Matsukawa told Environment Hawai`i that the rationale behind the change in position was privileged information.

Lessons Learned

When Pacheco asked what lessons she had learned from the whole experience, Aeby maintained that she had not violated her permit. The violation occurred when the cruise itinerary changed without her knowledge, she said.

If anything, the case was a lesson in communication and human nature, Aeby said, adding that had she known the boat was leaving FFS early, she would have had asked the lead scientist onboard what to do with the coral fragments.

“I just wanted to know, can we keep healthy [Acropora] coral onboard,” she said. “It wasn’t an important part of my research. It was just really follow-up for future stuff. I would have been happy to sacrifice it. … I will take responsibility for not keeping the door of communication open and being a little more aware of politics and social …”

“A little more aware?” Pacheco interjected.

“A lot more aware,” she said. She then assured him that she would adhere to every permit condition this time. I’ve certainly learned my lesson,” she said. She also noted that she is one of only a handful of coral disease experts in the Indo-Pacific.

Before voting, Pacheco said that with just one board member being a trained scientist (Sam Gon) the Land Board needs to be careful vetting scientific information. He said the board has its own staff and federal partners to do much of that.

Pacheco then likened Aeby’s case to that discussed in a recent study of Big Island activist Sydney Singer’s campaign against efforts to control strawberry guava and other invasive species (For more on the study, see last month’s issue of Environment Hawai`i.)

“It’s a case study of situations like this where citizens intervene. [It’s about] public perceptions of science and making management decisions. It’s a very enlightening studying … o
n how these kinds of public processes can really derail good science and lead to poor decisions,” he said.

In the end, the board voted 4-1 to approve the permit, with Kaua`i member Ron Agor being the sole dissenter.

* * *

KAHEA Contests Exemption from Environmental Review

Also on June 8, the Land Board granted permits to researchers hoping to study ocean carbon and nutrient productivity in the NWHI. It also gave a permit to HIMB’s academic program specialist, who planned to document field work in the monument for education and outreach purposes.

As with all of the Land Board’s NWHI permits, the board declared that the permitted activities were exempt from state environmental assessment requirements.

“The exemption class for scientific research with no serious or major environmental disturbance appears to apply,” DAR’s report to the Land Board states. It adds that the activities appear to “fall squarely” under an exemption in the 1976 list for the Division of Fish and Game (DAR’s predecessor agency). That exemption covers “surveys, censuses, inventories, studies, photographing, recording, sampling, collection, culture and captive propagation of aquatic biota.”

These permits, in particular, involved photography, filming, and the collection of water samples, reef algae, and small bivalves.

Despite DAR’s opinion that the activities would have no significant immediate or cumulative impacts, KAHEA’s Marti Townsend renewed her longstanding argument that the cumulative impact of research in the monument needs to be evaluated in an environmental assessment (EA). Neither the EA done for the monument’s management plan nor a 2009 scientific paper on the cumulative impacts of human activities in the monument (including research) satisfied legal requirements, she told the board.

“The basis for making a determination on whether something has cumulative impacts is an EIS [environmental impact statement]. The EA that was done for the monument management plan does not include research,” she said.

Townsend added that DAR does not have its own exemption list and that even if it did, it could not allow an exemption because the actions are proposed for a highly protected, particularly sensitive environment.

“I don’t want to discourage important research, but I do also want to implement and uphold the precautionary principle as high as possible. An environmental assessment should be part of the research process,” she said.

She recommended that the board defer acting on the items until an EA is completed.

With regard to research activities in the NWHI, the EA for activities in the Papahanaumokuakea Marine National Monument did cover things like mapping and monitoring deep-water habitats; measuring connectivity and genetic diversity; developing a Natural Resource Science Plan (NRSP); implementing management-driven research priorities identified in the NRSP (approved on April 11); including an educational component in marine research expeditions; and using materials gathered and created to develop or enhance education and outreach products.

The EA also notes that some activities won’t have any environmental impacts, either individually or cumulatively, “and are therefore categorically excluded from further analysis under a categorical exclusion by one or more of the co-trustee agencies.”

Although the EA states that the development and implementation of the NRSP might be addressed in future environmental assessment documents, attorneys with the National Oceanic and Atmospheric Administration have determined that an EA is not required since the plan doesn’t commit agencies to a course of action or fund or permit research, according to the NWHI Reserve Advisory Council’s June 2009 meeting minutes.

Been There, Done That

To HIMB’s Rob Toonen, an even better cumulative impact assessment than Townsend wants was done years ago. He told the Land Board that research he co-authored on human impacts in the NWHI work has undergone international peer review and was published in 2009 in the Journal of Coral Reefs.

“It has been held to a much higher standard than the actual [environmental assessment] that Marti has been talking about. It found there was no significant cumulative impact of the research being done or proposed within the monument,” he told the board.

“We voluntarily undertook a study to look at potential impacts and likely cumulative impacts that would take place in monument boundaries…. What we found is all the top threats are things that are essentially global — ocean acidification, climate change, marine debris, not the impact of research vessels,” he told Environment Hawai`i, adding that the most popular site has been visited by 160 people since the monument was designated in June 2006.

In April 2010, DAR cited Toonen’s article, as well as its own statistics on research impacts, when it presented its case to the Land Board on why NWHI permits qualify for an exemption.

Although Townsend had asked that DAR’s data, as well as Toonen’s article, be included as part of an EA, attorney Douglas Codiga (representing the University of Hawai`i) argued that the information satisfied the state environmental review law’s exemption requirements. The Land Board has agreed and DAR has been successfully applying the 1976 Fish and Game research exemption for more than a year.

In May 2010, DAR did submit a proposed exemption list for state Environmental Council approval that included a specific exemption for Papahanaumokuakea permits, among other things. Even so, Toonen said he believes government agencies and permittees are meeting all legal requirements.

“The lawyers have all weighed in on it, the categorical exemption. The attorneys, federally and locally, say the letter of the law has been met. Marti doesn’t want to accept that. What everyone is worried about, what Marti is pushing for, is to have an EIS [environmental impact statement] for every permit that comes up. …. That’s dozens, at least, a year, if not hundreds a year,” he said. “The state and federal governments can’t afford to do that.”

* * *

Native Hawaiian Contests Purchase of Kawa Bay by County of Hawai`i

Hawai`i County’s acquisition of land at Kawa Bay could involve the eviction of a 68-year-old native Hawaiian man who has been living in the area for 23 years, albeit illegally in the eyes of the court.

There is little mention of this in a Division of Forestry and Wildlife report to the state Board of Land and Natural Resources, whose blessing was needed for the purchase to move forward. But on the Big Island and to members of the state’s Legacy Land Conservation Commission, the battles of Abel Lui to stay on the property are well known.

Since 1991, Lui, a Hawaiian sovereignty advocate, has been arrested and convicted of trespassing on land in Kawa multiple times. He’s fought for title and lost and recently lost ejection lawsuits from the county and from the land’s recognized owner, the Edmund C. Olson Trust, in 3rd District Court.

On May 27, shortly before the District Court decisions, he pleaded with the Land Board to deny the county’s acquisition of the land.

“Show me your aloha,” he said.

Although the board approved DOFAW’s recommendation to enter into an agreement with the county to provide $1 million in U.S. Fish and Wildlife Service funds for the land’s purchase, board members also recommended informally that chair William Aila work with the county on conditions that might allow Lui to stay on, perhaps as a caretaker.

Lui has requested a contested case hearing.

Immovable Abel

For the last several years, the county of Hawai`i has been buying coastal lands in Ka`u — rich in natural and cultural resources — to protect them from development. The Olson Trust’s 550 acres at Kawa include heiau, endangered seabirds and sea turtles, and nat
ive coastal strand vegetation. From the start, the presence of Lui and the dozen or so family members who live with him in Kawa has been a concern of both state and county agencies.

Lui grows taro, sweet potato, banana, and watermelon throughout the area and is regarded by many as a caretaker. He holds surf contests and Easter egg hunts, has kept tabs on the effects pesticide spraying in the area may be having on native birds and has befriended a monk seal (he calls her “girlie”) that frequents the area. He has also fiercely defended his right to stay on the lands, which he says belong to his family.

“[Former] Mayor [Harry] Kim came to visit me five times. I told him I am here for the duration,” he told the Land Board.

Last year, the county acquired 234 acres at Kawa from Marcia Johnson for about $2 million, most of which came from the Legacy Land program. Lui’s house sits on this parcel, but he claims title to lands owned by the Olson Trust as well.

When the county’s Public Access, Open Space and Natural Resources Preservation Commission discussed plans in late 2007 to buy the Olson lands and what to do about Lui, then-county property manager Harry Yada said that it would address Lui’s presence on the property after completing the sale.

Commissioner Kim Garcia suggested that traditional caretakers could establish a non-profit organization “to possibly manage the property.”

During subsequent meetings of the Legacy Land Conservation Commission, commissioners struggled to address Lui’s concerns about possible infringement of his native and property rights. The commission ultimately recommended Land Board approval of the project.

Then in March of this year, the county filed a motion in 3rd District Court to remove Lui from the property. The Olson Trust, which contends that Lui and his family are simply squatters and have no proof of ownership, filed a similar motion. Lui lost both cases. A hearing on a lawsuit the Olson Trust filed in U.S. District Court to settle title issues is ongoing.

‘A First Step’

At the Land Board’s May 27 meeting, Keola Lindsey of the Office of Hawaiian Affairs supported DOFAW’s recommendation to enter into the agreement and help the county buy the land.

“We see it as a first step in a long process to get to a positive result,” he told the board. Title issues would be worked out elsewhere, he said.

“The action gives the Land Board chair the ability to impose terms and conditions that best serve the interests of the state and the community,” he said, while asking that future actions regarding the land be coordinated with community members and families on the land. He also wanted those actions to comply with state environmental laws.

At-large Land Board member Sam Gon agreed with Lindsey’s recommendation to work with community members who traditionally use the property. Gon asked DOFAW administrator Paul Conry whether there was any plan for or increased likelihood of evictions after the purchase.

Conry answered that he wasn’t urging anyone to do that, but noted that the county, not the state, will hold title to the property. The agreement does require the county to work with the community on managing the lands, he said.

Board members Jerry Edlao and David Goode, eager for more specific, definite answers, asked Conry why no one from the county attended the meeting.

Goode said that $4.5 million — the county’s share in the $7.68 million purchase — is a significant amount of money for any county, especially a neighbor island. 

“I’m very surprised that no one for the county showed up. It kind of tells me how interested they really are. You can’t spend that kind of money, in my opinion, and not show up and tell us what are you planning on doing with the land, how they plan to work with lineal descendants and … community groups. They mentioned one [Ka `Ohana o Honu`apo] but I don’t know what any of the other ones are. I’m kind of at a loss for words,” he said.

Kaua`i Land Board member Ron Agor proposed inserting a provision in the agreement that would direct the county to enter into some kind of stewardship program to allow Lui’s family to help care for the land and allow it to remain there. 

“I don’t hear that there’s a whole bunch of other families there. I’m throwing it out there,” he said.

Goode supported the idea, noting that the land ownership issue will likely be adjudicated by the courts. 

“[Regarding] folks that are on lands where there may be questionable ownership, this is the first case I’ve seen that’s like, this guy knows this piece of land. This individual … knows the land, the flora, the fauna, the spirits. What I saw was very good. Hopefully … there is a place for you and your family and what you do to continue in the right way,” he told Lui.

O`ahu board member John Morgan was a bit more cautious about Agor’s proposal.

“I kind of agree,” he said. He pointed out that the board had only known for an hour and a half about Lui’s story. Because the county has been involved for much longer than that, Morgan said, the board should “have some kind of deference to their wisdom, too. I’m kind of uncomfortable being the puppet master here. I would support accepting staff’s recommendation without additional strings [and let the chair work out conditions].” He added, “I will go on record to say I’m very surprised that the county is not here.”

Ultimately, the Land Board decided to let chair Aila negotiate conditions regarding Lui. It did, however, add a condition to the agreement requiring the county to brief the board on any management plans for the property before final approval.

“If the county asks what happened, tell them, if they showed up, they would know,” Edlao told DOFAW staff.

After the board’s decision, Lui requested a contested case hearing. As of press time, DOFAW staff was still awaiting guidance from the Attorney General’s office on how to proceed.

The $1 million Recovery Land Acquisition grant from the U.S. Fish and Wildlife Service and the state’s $1.2 million Legacy Land grant were set to expire on June 30, but have been extended for another year.

According to county property manager Ken Van Bergen, as of mid-June, no one from the DLNR had discussed conditions regarding Lui with him. In fact, he did not seem aware of the suggestion by some board members that Lui be allowed to stay. 

Aila says the board’s intent was to determine if the county could devise an agreement so Lui can continue to care for the property, but he has not recommended any specific conditions since his department is still evaluating its legal options.

* * *

Coal Carrier Nearly Escapes Board Scrutiny of Grounding

Over the last several years, the Land Board has aggressively pursued millions of dollars in fines against vessel owners and polluters for damaging coral in state waters. So board members were shocked in May when staff with the DLNR’s Division of Aquatic Resources revealed that it had no plans to pursue a violation case against the Voge Trader, a 734-foot bulk carrier that ran aground off O`ahu more than a year ago, damaging a 3,500-square-meter area.

The Liberian-flagged vessel hit the reef in the Kalaeloa-Barbers Point harbor entrance channel on February 5, 2010, and DAR was expected to assess the extent of the damage. But according to DAR’s Francis Oishi, key staff involved in the case (including former administrator Dan Polhemus) left the division before a recommendation on fines could be brought to the board.

Since the incident, the National Marine Fisheries Service has worked to mitigate the resource damage — at the cost of the vessel owner — under the authority of the federal Oil Pollution Act. On May 27, Oishi requested Land Board approval of special activity permits to Matthew Perry of the NMFS and Randy Cates of Cates International, Inc. to restore live cor
al and clear loose dead coral in the channel.

When asked by Maui Land Board member Jerry Edlao why the DAR has not pursued a fine, Oishi said it was because the agency lacked the manpower.

“You’re kidding,” Edlao said.

“No, I’m not,” Oishi responded, adding in an exasperated tone, “Where is our administrator?” He was referring to the fact that DAR has been without one since Polhemus left in March 2010.

When pressed, however, Oishi said DAR could still look into pursuing a violation case.

O`ahu board member John Morgan said that while he has always been uncomfortable with the methods the DLNR has used to determine the value of damaged coral, he was also uncomfortable that the department was not being consistent in its enforcement.

The same issue also plagued at-large member David Goode, who noted that the Land Board had recently decided on a very difficult case involving a much smaller area.

Last year, the Land Board fined American Marine Corporation $132,000 for damages to 312 square meters of coral near Maui’s Keawakapu artificial reef. DAR had proposed a fine of $400,000.

“To let these guys sail away … doesn’t sit well with me. You guys gotta make the time,” Edlao told Oishi.

In the end, Oishi promised to update the Land Board in one month on DAR’s efforts to resolve the case, but he had not done so by the end of July.

Teresa Dawson

Volume 22, Number 2 — August 2011