Board Talk: Shark Cull Permit, Palolo Violation, and Another Seawall Problem

posted in: Board Talk, June 2015 | 0

NMFS Gets OK To Cull Up to 20 Sharks To Protect Monk Seal Pups in NWHI

In past years, when the National Marine Fisheries Service asked for — and received — permits to cull “rogue” Galapagos sharks that were preying on endangered Hawaiian monk seal pups at French Frigate Shoals in the Northwestern Hawaiian Islands, Charles Littnan, lead monk seal scientist for the agency, was grilled by Land Board members unconvinced that the behavior is unique to the area and that culling would solve anything.

This year, weeks before the Department of Land and Natural Resources’Division of Aquatic Resources presented NMFS’s permit request to the Board of Land and Natural Resources to cull up to 20 of the sharks, Littnan briefed the board on NMFS’s overall program to protect the seals, as well as on the science behind and need for the shark-culling permit.

The permit was swiftly and unanimously approved on April 24.

At the April 10 briefing, Littnan chose his words carefully when characterizing the predation of the seal pups by Galapagos sharks at French Frigate Shoals. He described the behavior, where the sharks swim into the shoals’nearshore waters to kill and eat newly weaned seal pups, as “atypical.”

While it seems natural for sharks to prey on helpless pups, he said, research has shown that the Galapagos sharks in the NWHI are not preying on seal pups anywhere but French Frigate Shoals.

“When I say, ‘atypical,’I hope you hear I’m not saying, ‘unnatural,’”he told the Land Board.

“I can’t emphasize this enough. This is a very unique situation at French Frigate Shoals, a behavior that evolved in the period of time starting in 1994 and has not been observed anywhere at the archipelago,”he continued, adding that Galapagos sharks generally stay outside the atoll and rarely come into the shallows.

Before 1994, monk seal survival at FFS was high, but it now has one of the worst first-year survival rates, predominantly due to shark predation, he said.

When Maui Land Board member Jimmy Gomes asked why predation jumped in 1994, Littnan said he was unable to answer the question definitively, but the best hypothesis is that the change in shark behavior resulted from the 1993 closure of the lobster fishery in NWHI, which was particularly intense at FFS.

Each year before the closure, fishers tossed many tons of bait into lobster traps at FFS – a practice, he said, that could have artificially enhanced the Galapagos shark population.

“When the food stream was taken away, the sharks became aggressive. In the following years we saw the escalation [of pup predation],”Littnan said.

“A small subset of the Galapagos population used this novel behavior. …It’s not that they never took pups, just never to this degree,”he said.

When NMFS was allowed to cull sharks in the late 1990s, before the area became a marine reserve and then a national marine monument, dozens were removed and researchers saw a precipitous drop in predation at Trig island at FFS. Between 2000 and 2005, 12 sharks were removed. Two more were removed between 2010 and 2011.

“We haven’t removed sharks in the last couple of years and [predation] has jumped,”Littnan said.

Littnan explained that the NMFS has done research to make sure Galapagos sharks alone are the culprits and that the pups at FFS aren’t behaving any differently than pups elsewhere. The agency has also tried to harass the sharks to prevent predation, to no avail.

“That only served to spread the behavior to other islands [in FFS] and they started hunting at night,”he said.

NMFS also translocates pups as soon as they wean to Trig or Tern island in FFS, where the sharks do not prey on them.

“None of those have proven to be long-term solutions. We’re at a point where shark removal is only thing left. We need to try to remove that threat permanently,”Littnan said.

NMFS wants to remove a total of 18 sharks by fishing within 700 meters of islands at FFS. Scientific samples from the sharks will be collected and their remains returned to sea.

When Gomes asked what the ratio of Galapagos sharks to seals was, Littnan said the Hawai`i Institute of Marine Biology estimates that there are 600 to 1,200 sharks. There about 117 monk seals at FFS, he said.

“The work we’ve done has demonstrated it’s a small number of sharks. Twenty sharks are doing this… learned behavior. If we remove 20 sharks are 20 going to replace it? We don’t know. … We’re going to continue to monitor. If more do it, there won’t be a culling program. If it’s a conveyor belt, we would focus on translocation,”he said.

He added that NMFS won’t do any more culling than is necessary.

“If we get six sharks and see predation drop, we’ll stop fishing …We won’t turn this into a large-scale culling program. The fundamental assumption is this is a specific population,”he said. “We’re not hoping. We’re making a pretty informed conclusion.”

Although the Office of Hawaiian Affairs opposed the permit, the Land Board approved it with little discussion on April 24.


Board Imposes $15,000 Fine

For Massive Soil Dump in Palolo

On April 24, the Land Board fined Frank Fistes $15,500 for dumping several hundred cubic yards of soil over a steep hill in the Conservation District in Palolo. Fistes blamed his contractor for the illegal work, which occurred earlier this year and was brought to the attention of the DLNR by June Watanabe, Kokua Line columnist for the Honolulu Star-Advertiser.

Fistes’ lot at the top of the hill spans 13 acres. Roughly 3,000 square feet of this lies in the Urban District; the rest is in the Conservation District. The Urban portion sits atop the hill and the Conservation lands stretch about halfway down the hillside. In mid-March, staff from the DLNR’s Office of Conservation and Coastal Lands inspected the site and advised Fistes to stop his unauthorized work in the Conservation District. Weeks later, OCCL staff visited the site again and found that work in the Conservation District was continuing, according to an April 24 report to the Land Board.

At the Land Board’s meeting, OCCL administrator Sam Lemmo explained that Fistes was apparently building a driveway on the Urban part of his property and seemed to have pushed excavated soil from that work onto the Conservation District portion of his property.

Lemmo said after inspecting the site himself, he felt the need to bring the matter to the Land Board as soon as possible, mainly to remedy the potential public health and safety threat posed from a possible mudslide or rockfall from the disturbed area. Dozens of residences sit at the bottom of the hill, which is known to be unstable. In 2011, large boulders dislodged from the hill and crashed into one of the homes while residents were inside.

The OCCL recommended that Fistes obtain a geotechnical engineer to determine how best to stabilize the slope and provide reports to the OCCL before and after remediation.

Lemmo added that he was confused about Fistes’ plans for the property.

“I’m not sure what’s going on, to be honest with you,” Lemmo said. Fistes is “building a driveway in that little notch and he can’t build a house in there. There’s not enough space. The only place he could build a house realistically is on the slope.”

Lemmo noted that his office had not issued the Conservation District Use Permit that would be required for a house.

Fistes explained that he had hired a contractor to excavate the driveway and when he found out that the soil had been dumped over the ledge, “I fired the guy instantly.”He also said that after the OCCL’s first visit, nothing was touched on the hillside.

He also pointed out that he had built a house in the Conservation District nearby in the 1980s and was well aware of the permitting process.

“This is not what I do. I’m not one of those lawbreakers,”he said. “I’m here today asking for forgiveness.”

He also asked that the Land Board consider reducing his fine.

When the Land Board started asking Fistes questions about his plans for building a house in the Conservation District, it became clear he was fully prepared to spend whatever it would take.

For the OCCL to even consider a permit for a house on that hill, Lemmo said, Fistes would need to hire a professional planning consulting company, complete an environmental assessment, and have fairly complete engineering specifications and designs for drainage and erosion control measures, as well as geotechnical work on the foundation issues posed by the hillside.

“Right off the bat, it would be several hundred thousand dollars just to get an application to you,”Lemmo told the board.

When asked by Land Board member Stanley Roehrig whether he was prepared to spend that much, Fistes said he was and that the money would come from a family trust.

Regardless of whether or not Fistes had approved of the work by his contractor, Land Board member Jimmy Gomes said a violation had occurred and recommended approving the fine suggested by the OCCL.

“Had there been a storm or an earthquake …you’d be here telling us you’re sorry rocks went into a guy’s house,”Gomes told Fistes.

Fistes tried to counter that the large rocks had been pulled out from the soil and had been placed along the top of the ledge to prevent bicyclists from riding over the cliff.

To this, Gomes replied, “Are you listening to yourself? Are you listening? You’re putting those rocks there for a bicycle?”

Interim Land Board chair Carty Chang added, “Are you aware of the rock falls in 2011?”

Fistes said he was not, but assured the board members that he was going to fix things. “I’m not gonna let you guys down,”he said.

Andy Weinard, whose home was devastated and whose son was nearly killed by the 2011 rock fall, testified in support of the OCCL’s recommendation. He added that the city’s decision to grant grading permits for the driveway was unconscionable given that Fistes has only 3,000 square feet of Urban land. With several hundred cubic yards of soil excavated from the area, “I don’t know where that was supposed to go other than the hillside. The flaw was in granting the permit in the first place,”he said.

He asked that the Land Board ensure that any remediation would be supervised by an engineer. “The hillside is very unstable. …I’m grateful and thankful there has only been property damage so far,”he said.

In the end, the Land Board voted to fine Fistes the maximum $15,000 for unauthorized land use plus $500 in administrative costs. He must also remediate the land under the direction of a licensed professional. The board also recommended that Fistes remove the boulders he placed at the edge of the cliff as soon as possible.


State Land Sold Years Ago

Becomes Public Again

In 2007, Eddie and Lorraine Holmes paid the state Department of Land and Natural Resources about $70,000 for 1,222 square feet of filled land along O`ahu’s Kane`ohe Bay where their seawall jutted past the certified shoreline. They thought that would remedy their encroachment issues. They were wrong.

Today, they want to build on their property, but a small portion of the seawall and some stairs that lead to the beach have, again, been determined to lie seaward of the shoreline. But rather than requiring the Holmeses to purchase a non-exclusive, long-term easement from the state, which is what the DLNR’s Land Division recommends nowadays for such encroachments, land agent Barry Cheung recommended on April 24 that the Land Board issue a right-of-entry permit, at no charge, to allow them to proceed with their plans for their property.

State law requires the Land Board to charge fair market value for easements, despite repeated efforts in recent years by the division to get the Legislature to allow the board to charge less. Because the Holmeses already paid for the land beneath the wall eight years ago, “staff does not believe another payment to the state is appropriate,”Cheung wrote in his report to the board.

Absent a change in the way the state charges for easements, Cheung recommended a right-of-entry to allow the Holmeses to maintain their wall and, at the same time, to protect the state’s interest by “securing indemnity and insurance in favor of the state for the encroachments.”

“This has been kind of an ordeal,”Eddie Holmes said at the Land Board’s April 24 meeting. He explained that when he and his wife bought the strip of reclaimed land in 2007, it was supposed to have been consolidated with their adjoining lot. But, Holmes said, the land agent who had been overseeing the case died and the consolidation “kind of fell through the cracks,”a situation the Holmeses realized only this past summer when they tried to build on their property.

“We found out the lot was never consolidated and now all the rules have changed,”he said, referring to changes in how shorelines and ownership of submerged lands are determined.

Hawai`i island Land Board member Stanley Roehrig sympathized with Holmes, a California resident, stating that “when it comes to the board on these shoreline problems, it goes on and on and on.”However, he noted that the Land Board was not being asked to decide whether or not the state owned the stairs, only to approve the right-of-entry permit.

In the end, the Land Board approved the Land Division’s recommendation. The permit’s commencement date is to be determined by the Land Board chair.

— Teresa Dawson

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