posted in: Board Talk, February 2010 | 0

Fence to Protect Ka`ena Point’s Birds, Plants   

“The fence is an opportunity to give back to organisms we stomped on,” University of Hawai`i zoology professor Sheila Conant told the state Board of Land and Natural Resources at its meeting last month. At that meeting, the Department of Land and Natural Resources’ Division of Forestry and Wildlife recommended approving a right-of-entry to allow for the construction of a 600-meter predator-proof fence across nearly 60 acres at the Ka`ena Point Natural Area Reserve and State Park.

The fence would protect Ka`ena’s seabird colonies, 11 species of endangered plants, and monk seals from a wide range of predatory mammals, including mice, rats, mongooses, dogs, and cats. Part of the Ka`ena Point Ecosystem Restoration Project, which is a partnership between the Department of Land and Natural Resources, the U.S. Fish and Wildlife Service, and the Hawai`i chapter of The Wildlife Society, the fence would be the first of its kind in Hawaii (apart from a small experimental version on the island of Hawai`i).

After hours of testimony, which overwhelmingly favored the fence, the Land Board voted unanimously to approve the right-of-entry. One member of the public, however, Huang-Chi Kuo, requested a contested case hearing. Kuo argued that the fence may actually increase the ant population at Ka`ena, citing studies of offshore islets where ant population exploded and seabird numbers dropped after rats were eradicated.

Summer Nemeth, whose contested case hearing request opposing the multi-agency agreement for the project was denied months earlier, also testified against the fence, saying it was culturally inappropriate, because Ka`ena is where souls leap into the next world and is rife with burials.

“The birds aren’t native or endangered. The population is doing well. Shouldn’t we just leave it at that?” she said, referring to the fact that the seabirds at Ka`ena — albatross and shearwaters — are migratory. With regard to the endangered Hawaiian monk seals that use Ka`ena as a pupping site, she didn’t seem to think a fence would do much to help them. “The last time I checked, those animals swim all over the place,” she said.

In reply to the fence critics, University of Hawai`i botany professor David Duffy explained that no data exist to support the idea that rats control ants.

“Each island appears to be different in its response to ant control. I wouldn’t bet the ranch on ant futures,” he said. Regarding albatrosses, he noted that sea level is rising in the Northwest Hawaiian Islands and a one-meter rise would submerge the habitat for many birds there.

“Places like Ka`ena Point will be important,” he said.

Conant, who participated in one of those studies Kuo cited, said that the fence is not intended to control ants at Ka`ena Point. She added that many species of birds went extinct with the colonization of Hawaiians. Also, she noted that more plastic is found in the bellies of albatross at Kure and Laysan atolls in the Northwestern Hawaiian Islands than in birds at Ka`ena.

“I like people. But I really like plants and animals. Perhaps we could think of [the fence] as a sense of reparation,” she said.

Regarding the fence’s cultural impacts, practitioner William Aila, Jr., disputed Nemeth’s claim that the fence would prevent souls from moving into the next world. He added, “Without the birds, there is no culture. You can’t catch fish without the birds.”

Before voting, board members said they were satisfied with the public outreach done by the department, and felt there was compelling testimony to approve the project.

At-large board member Samuel Gon added, “In reality, fences are very ephemeral things. I don’t view this as the end-all. But unless we do things, all we’d be doing would be arguing about things…until they’re gone.”

To the representatives of the Office of Hawaiian Affairs in the room, board chair Laura Thielen said that with regard to Hawaiian cultural issues, “groups need to have a different, safer environment — not the DNLR — to resolve things…We need help. We’re not the appropriate party… We need to move beyond this head-butting.”

When Nemeth interjected that she didn’t think OHA was the appropriate agency, either, Thielen said, “The problem is, we certainly aren’t.”

* * *
Board Delays Closing Steve’s Ag Logging Case

“This is a case with a rather long and tortuous history,” deputy attorney general William Wynhoff told the Land Board at its January 8 meeting, referring to logging-related violations that occurred about a decade ago on state land in South Kona, on the island of Hawai`i.

In 2003, the Land Board fined Big Island logging company Steve’s Ag Services and
Wesley and Raymond McGee $1.1 million — a record fine at the time — for illegally logging about 200 koa and kolea trees and constructing roads on state land in the late 1990s. During the contested case hearing that followed, ownership of the alleged state land was called into question and the Land Board, upon the advice of its hearing officer and over the objections of its staff attorney, decided to dismiss the case in June 2005.

After further survey and review by the DLNR, the state filed a quiet title action in U.S. District Court in January 2007. According to a DLNR staff report, the loggers “vigorously contested the case,” claiming that the state property was included in lands sold by Kahuku Ranch owner Damon Estate to the United States government and The Nature Conservancy. The parcel’s adjacent owner, Yee Hop, Ltd., also claimed ownership.

On November 17, 2009. U.S. District Judge Samuel King ruled in favor of the state, and the loggers’ attorney has since filed an appeal.

On January 8, the DLNR’s Land Division recommended resolving the enforcement case by imposing a reduced fine of roughly $631,965, “considerably less than the maximum amount that might be assessed, which amounts would include a fine of $1,000 per tree and damages based on the amount grossed by loggers, $1,035,900.”

Attorneys representing the loggers, however, asked for more time to prepare a response. Wynhoff told the Land Board that he didn’t object to deferring the matter until the board meets again March 11. Big Island board member Rob Pacheco, however, opposed the delay.

“This has gone through contested case hearings and federal court rulings…We’re basically finishing up here and I’m not comfortable waiting another two months,” he said.

Over Pacheco’s objection, the board voted to withdraw the matter, with the understanding that it would return to the board in March.

* * *
Kona Fish Farm Transfers Lease

Kona Blue Water Farms, Inc., is selling its open-ocean fish farm in waters off North Kona to Keahole Point Fish, LLC, in order to expand its presence in the global seafood market. So at its January 8 meeting, the Land Board consented to the transfer of Kona Blue’s 90-acre ocean lease.

Rob Parsons, representing of the advocacy group Food & Water Watch, urged the board to defer the transfer. He said he worried about sustainability of the new company, as well as the transfer of the operation to a company that may be less interested than Kona Blue had been in local food security.

Parsons also said he was concerned that the farm’s mortalities were being disposed of at sea, citing reports from whale researchers who had allegedly seen dead fish when they transit near the cages. He added that the farm has also had problems dealing with a skin and gill fluke that infest the caged kahala fish, requiring chemical treatment.

Marti Townsend of KAHEA: the Hawaiian-Environmental Alliance also strongly opposed the transfer of public trust resources and said she was disturbed about private control of ocean resources.

When Land Board member Samuel Gon asked Kona Blue’s owner Neil Sims about the skin and gill fluke and efforts to monitor any environmental consequences of the operation, Sims explained that the company does regular water quality and benthic substrate monitoring in accordance with its National Pollutant Discharge Elimination System Permit, issued through the state Department of Health. He added that both the company’s state Conservation District Use Permit and NPDES permit require it to inform the DLNR Office of Conservation and Coastal Lands and DOH Clean Water Branch of diseases, pests or parasites. Sims said his company also monitors health of wild kahala and that while the penned fish do have a skin fluke, the wild fish don’t seem to.

Regarding the dead fish claim, he said, “We take very seriously the public trust. One of the CDUP conditions is that dead fish be disposed of in the landfill. It’s not just a permit condition, it’s common sense. If, indeed, there have been incidents of this, it sounds like rumor and innuendo… I will fire any employee that disposes of fish in the ocean. Maybe let’s look at some third party validation and not go on hearsay.”

With regard to Parsons’ concerns about the new company, Sims said Kona Blue will continue to operate the fish hatchery that provides the farm’s fingerlings and provide guidance on grow-out. It will also continue to conduct research to improve feed and fish health, and will sell and market the harvested fish as Kona Kampachi. Keahole Fish will merely be a third-party grower.

“How do we grow this industry to take Kona Kampachi from 500 tons a year to something that’s going to have an impact on the global seafood supply?” Simms asked rhetorically. “We need a third-party grower. It allows the industry to grow without having to keep our hands all over the place.”

* * *
New NARS Additions and an Off-Roading Park

On January 8, the Land Board increased its protection of the state’s forests when it expanded the Natural Area Reserves System, while also giving fans of off-road vehicles on O`ahu another legal place to ride. The board approved the addition of about 700 acres to East Maui’s Kanaio Natural Area Reserve, and about 5,800 acres to the Kahauale`a NAR, on the island of Hawai`i. It also granted a month-to-month revocable permit to the Sand Island Off Highway Vehicle Association for management of a 30-acre off-road park in the 141-acre Sand Island State Recreational Area.

The DLNR staff report on the off-road park notes that ATVs and off-road motorcycles “have been observed by public and private land managers as an increasing use, creating public safety, environmental and trespass issues statewide.” In 2005 an O`ahu group of off-roaders discussed with the DLNR the possibility of creating another legal place to ride, in addition to the North Shore’s Kahuku Motocross Park. The 30-acre Sand Island site, which had been subject to years of illegal dumping, was selected.

* * *
Army UXO Investigators Gain Access to Kulani

What does the military want with the now vacant Kulani Correctional Facility and the thousands of acres of forest surrounding it? That’s the question on the minds of a handful of community activists and Big Island residents, now that the U.S. Army Corps of Engineers has decided to search a portion of the property for unexploded ordnance (also known as UXO).

Kat Brady of the Community Alliance on Prisons, a vocal opponent of the facility’s closure, told the Land Board at its November meeting that the Army’s decision to search for UXO raised red flags with her. Brady says she is skeptical about why the state administration would close a good minimum security prison that provides millions of dollars worth of work to Hawai`i County, develops job skills for prisoners, and helps manage some of the state’s best native forest at a time when more beds are needed. Why search the area now, after it’s been populated for decades? she asked at the Land Board. Although it was later revealed that the area to be searched was far removed from the facility itself, Brady remained skeptical.

News reports published late last year when the decision to close the facility was announced noted that the state Department of Public Safety, which manages the property, was developing a two-year Memorandum of Understanding with the Department of Defense to allow the site to be used for the Hawai`i National Guard’s Youth Challenge Academy for at-risk teens. However, an email from Hawai`i County to the wife of the Kulani facility’s former warden states that the department actually is seeking a 25-year commitment, which led Brady and others to suspect that the military has other plans for the area.

Brady, Kyle Kajihiro of the American Friends’ Service Committee, Marti Townsend of KAHEA: The Hawaiian-Environmental Alliance, and two Big Island residents testified that there may be more to the Army’s plans than meets the eye. Some of them asked the board to defer granting a right-of-entry until it finds out the DOD’s full plan for the area, especially since, as Kajihiro testified, the future use of an area drives the level of remediation.

No one from the Army Corps of Engineers attended the Land Board meeting to answer questions. Without further proof of the claims made by several members of the public, the Land Board seemed loathe to withhold their approval of a mere right-of-entry, especially since DLNR Land Division administrator Morris Atta said that a delay may lead the Army to shift funds for a cleanup of Kulani elsewhere. The Corps has projects in the pipeline for decades to come, Atta noted.

“We were warned by the Corps, ‘Don’t hold up these projects because the money will be shifted to other priority sites,’” he said.

Land Board chair Laura Thielen added that she would hate to delay the UXO investigation/remediation and “see somebody out there stumble across anything and get hurt.” Thielen also noted that any changes in the use of the land would have to receive Land Board approval
Still, some board members shared the public’s concerns about the future use of the area. The DLNR (as reported in the October 2009 issue of Environment Hawai`i) has begun investigating the possibility of adding most of the Kulani lands to the state Natural Area Reserves System, which includes the best examples of native ecosystems and unique geological sites in the state. At-large board member Samuel Gon, who is also the chief scientist for The Nature Conservancy of Hawai`i, said that because the correctional facility was a major partner in the Three-Mountain Alliance (a watershed partnership that has managed and protected the area’s natural resources for several years), he was anxious to know how those lands would be managed after the facility closed at the end of November.

To help allay the concerns expressed by Gon and the public, Thielen suggested that the board follow a recommendation Townsend had made to include in its approval an affirmation that the board supports protecting the area’s valuable natural resources. In the end, the board voted unanimously to approve the right-of-entry with a statement that the Land Board “recognize[s] the value of the native species forest and the importance of that to the state and the DLNR.”

* * *
Critic Contests Curatorship at Keolonahihi State Park

In 2007, Mikahala Roy and members of the Betty Kanuha Foundation together celebrated the reopening of the 30-acre Keolonahihi State Park to the public. The park had never really closed, but, because of a lack of funds, had become overgrown with weeds and littered with refuse. Taking matters into their own hands, community groups, including the Betty Kanuha Foundation and Na Kahu o Kalua o Kalani (to which Roy belongs), banded together to restore the culturally significant area.

“Honoring the area’s role as a place where wisdom is passed from consecutive generations, its caretakers are inviting the community for the first time Saturday and Sunday into the complex to share in a cultural and educational event called Kakala o Kamoa,” West Hawai`i Today reporter Lisa Huynh wrote in an article at the time.

Despite the improvements the groups had made, the DLNR’s Division of State Parks was concerned about their ongoing clearing of the property and sought that year to establish a curatorship agreement with them. But in the years following the event, the groups seem to have reached an impasse over who the official curators should be.

At the Land Board’s November meeting, Roy testified against a recommendation by the Department of Land and Natural Resources’ Division of State Parks to enter into a three-year curatorship agreement with the Betty Kanuha Foundation. The foundation is a non-profit organization run by members of the Kanuha family and focuses mainly on educating the public, children especially, about Keolonahihi, which includes the Keakealaniwahine archaeological complex and is considered by many to be one of the most sacred Hawaiian cultural sites in the state.

The Kanuha family includes lineal descendants of the area, and the fact that it has stepped forward as stewards pleased at-large Land Board member Samuel Gon. But Roy, who also has family ties to the area, argued that a non-profit organization cannot be allowed to represent the spirituality of such a sacred place. She added that the members of Na Kahu o Kalua o Kalani have long served as caretakers for the area, as well.

In response to Roy’s concerns, Land Board chair Laura Thielen noted that the curatorship agreement, in acknowledgement of the various individuals and community groups with a stake in caring for the area, was specifically crafted to allow nearly anyone to sign onto the agreement. The agreement “recognizes the Betty C. Kanuha Foundation as a curator and gives families associated with Keolonahihi an opportunity to participate as volunteers and advisors,” a State Parks report states.

Even so, Roy, who threatened to take her fight against the agreement to court, requested a contested case hearing.

* **
Judge Rules Against Opponents of Mauna Kea Management Plan

Groups opposing the Land Board’s decision last April to approve the University of Hawai`i’s Mauna Kea Comprehensive Management Plan [CMP] have lost their appeal in Third Circuit Court.

On December 29, Circuit Judge Glenn Hara granted the university’s motion to dismiss the appeal, stating in his decision that the court lacked jurisdiction over the board’s approval of the plan, as well as the board’s denial of a contested case hearing requests filed by the plaintiffs, which include the group Mauna Kea Anaina Hou, the Royal Order of Kamehameha I, the Hawai`i chapter of the Sierra Club, KAHEA: the Hawaiian-Environmental Alliance, and Clarence Ching.

Hara’s four-page decision cited a 2006 Hawai`i Supreme Court decision, which states “a contested case must have occurred before appellate jurisdiction may be exercised.” The decision also states that if a circuit court lacks jurisdiction to hear an agency appeal, it can’t rule on the denial of a contested case hearing, either.

Hara added that the plaintiffs failed to prove the board’s approval of a plan adversely affected their rights, duties and privileges, and therefore did not show they were entitled to a contested case hearing.

“It may be that a future implementation of the CMP might trigger a requirement for a contested case, but the action of the BLNR in accepting and approving the CMP in and of itself does not do so,” he wrote.

(For more background on this case, read the “Board Talk” column in our May 2009 issue, available free to subscribers


Teresa Dawson


Volume 20, Number 8 — February 2010


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