Two court cases at either end of the islandchain bring home one lesson: counties

may not escape their constitutional duty toprotect the public trust.

On Kaua‘i, the issue before the Intermedi-ate Court of Appeals was whether the countyPlanning Commission erred in denying thepermits needed for a private water bottler tooperate in the state Agriculture District. TheICA upheld the commission’s right to do so,but faulted it for not doing enough to carryout its public trust duty. That’s the subject ofour cover story.

On the Big Island, the question before the3rd Circuit Court was whether the countyPlanning Department had improperly permit-ted a planned unit development proposed foran old-growth ‘ohi‘a forest in South Kona.Judge Ronald Ibarra found that, indeed, ithad.

Also in this issue, we report on the disputeddecision of the Agribusiness DevelopmentCorporation to allow tobacco to be planted onits land; we update readers on the case of theBig Island developer who has run afoul of thePlanning Department and the State HistoricPreservation Division; and we wrap up theissue with our regular Board Talk column.

that the Planning Commission give the per-mit application a higher level of scrutiny and,although Kaua‘i Springs’ use of the water is notillegal or improper per se, Kaua‘i Springscarries the burden to justify the use of the waterin light of the purposes protected by the publictrust,” the court wrote.

The ICA had not finalized its ruling by presstime. Once a final judgment is issued, Kaua‘i

Springs has 30 days to appeal tothe Supreme Court. AttorneyRobert Thomas, who representsthe company, said it had not yetdecided whether to appeal.

“We were obviously disap-pointed. We think the appealscourt got it wrong,” he toldEnvironment Hawai‘i.

In the meantime, Kaua‘iSprings continues to operateunder an injunction against thecounty imposed by the 5th Cir-cuit Court, which the countydid not oppose.

Big PlansKaua‘i Springs owner JamesSatterfield first got the idea to

bottle the island’s water in 1992 after hurricaneIniki caused a massive power outage. Henoticed a line of cars parked at Kahili moun-tain in Koloa, where a spring, tapped morethan a century ago for sugar and now ownedby Grove Farm, supplies about 50 to 60customers with fresh water.

“They were loading up until pumps wereback up. That’s when I said, we gotta bottlethis. We gotta be bottling our own water,” saysSatterfield, who once ran a water bottlingcompany in Alaska.

In 2003, with a 15-year license from MakanaProperties, LLC, for land with access to the

In a recent decision regarding the Kaua‘iPlanning Commission’s denial of a Koloa

water bottler’s use and zoning permits, theIntermediate Court of Appeals has reaffirmedthat county agencies are bound by the stateConstitution to protect the public trust andthat statements in general plans and zoningcodes requiring the protection of water re-sources aren’t just platitudes.

On April 30, the ICA vacated a 2008ruling by the 5th Circuit Court, which hadfound that two of the three permits Kaua‘iSprings, Inc., sought from the Planning Com-mission should have been automatically ap-proved. The higher court also vacated thelower court order that the third permit beissued, as well.

The issue was remanded back to the Plan-ning Commission, with instructions that itmake appropriate assessments and requirereasonable measures to protect water re-sources.

“[B]ecause Kaua‘i Springs seeks to use thewater for economic gain, this case requires

IN THIS ISSUE

Price: !".##

Volume $%, Number &$ June 2013

2New & Noteworthy:

Whale Petition, Telescope Appeal3

Judge Invalidates PermitFor Subdivision in ‘Ohi‘a Forest

4Developer Challenges Ability

Of County to Establish Setbacks8

ADC Approves Tobacco Planting,Gives Galbraith License to Former Member

10Board Talk: Monk Seals, a Timber License,

And a New Kaua‘i Subzone

Counties Count

to page 6

Appellate Court Overturns Judge’s RulingAllowing Kaua‘i Water Bottler to Operate

Kaua‘i Springs bottles water diverted from a spring in Kahili mountain,pictured here. PHOTO: KAHII MOUNTAIN PARK FACEBOOK PAGE

Page $ ■ Environment Hawai‘i ■ June $#&%

Quote of the Month“[B]ecause Kaua‘i Springs seeks

to use the water for economic gain,this case requires that the Planning

Commission give the permit applicationa higher level of scrutiny ...”

— Hawai‘i IntermediateCourt of Appeals

Environment Hawai‘i'$ Kapi‘olani StreetHilo, Hawai‘i ()'$#

Patricia Tummons, EditorTeresa Dawson, Staff Writer

Environment Hawai‘i is published monthly by EnvironmentHawai‘i, Inc., a 501(c)(3) non-profit corporation.Subscriptions are $65 individual; $100 non-profits, libraries;$130 corporate. Send subscription inquiries, address changes,and all other correspondence to Environment Hawai‘i,72 Kapi‘olani Street, Hilo, Hawai‘i 96720.Telephone: 808 934-0115. Toll-free: 877-934-0130.E-mail:ptummons@gmail.comWeb page: http://www.environment-hawaii.orgTwitter: Envhawaii

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NEW AND NOTEWORTHY

A publication ofEnvironment Hawai‘i, Inc.

Humpback Delisting Petition: A newlyformed association claiming to representHawai‘i fishermen wants to remove the NorthPacific population of humpback whales fromthe federal list of endangered species.

The group, calling itself Hawai‘i Fishermen’sAlliance for Conservation and Tradition, Inc.(HFACT), was formed just a few weeks before itfiled the petition in April. Signing its corpora-tion papers filed with the state were two indi-viduals with strong ties to the Western PacificFishery Management Council: Roy Morioka, aformer council member who has also served asa paid consultant to the council; and EdWatamura, chairman of the council’s advisorypanel.

The president of HFACT, Phil Fernandez,vigorously denies any association with Wespac,however. He told Environment Hawai‘i that the

OfficersPatricia Tummons

President andTreasurerRon Terry

Vice PresidentTeresa Dawson

Secretary

DirectorsKathy BaldwinDeborah ChangMary EvansonMina Morita

group coalesced over the course of several yearsas fishermen with common interests continuedto meet at various hearings and conferences.Until recently, Fernandez represented fishinginterests on the Hawai‘i Humpback WhaleNational Marine Sanctuary’s advisory council.Today, Fernandez still serves on that panel as analternate.

Fernandez stated that he was aware that theNational Marine Fisheries Service had alreadybegun a global review of the status of humpbackwhales several years ago. “One of the reasonswhy we did this, was to require them to finishtheir global review,” he said. “They’ve beendragging their feet; this [petition] is a legal wayto put their feet to the fire.”

John Calambokidis of the Cascadia ResearchInstitute and principal author of a 2008 defini-tive study of Pacific humpback whales said hehad looked over the petition. There are “goodsigns of recovery for humpback whales, espe-cially those in the Central Eastern Pacific, thosethat breed in Hawai‘i and some of their feedingareas,” he noted. “If there was one area thatconcerned me, and where I think they missed an

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Volume 23, No. 12 June 2013

important aspect of our studies, it’s that there isa very defined structure of populations in theNorth Pacific, not just one intermixing group.

“The petition would have been stronger ifthey had focused on recognizing as a distinctpopulation segment the Hawai‘i humpbackwhales, where there’s the strongest evidence ofrecovery. They didn’t do that. They talk aboutthe North Pacific as a whole. Unfortunately,that’s what would make it harder for me to viewthe petition as favorably as if they had focused onthe segment of the population that we know isdoing well.”

The petition may be viewed online at http://www.nmfs.noaa.gov/pr/species/petitions.htm.

TMT Permit Is Appealed: At the 11th hour andpractically the 59th minute, the petitioners in thecontested case hearing over a Conservation Dis-trict Use Permit for the Thirty-Meter Telescopeappealed the award of the permit to the 3rdCircuit Court. The state Board of Land andNatural Resources had approved the findings offact, conclusions of law, and decision and orderof the hearing officer on April 12. On the finalday in which an appeal could be filed — May 10— and in the final hour — at 4:01 p.m. – thepetitioners lodged their notice of appeal and thestatement of their case.

The appeal rehashes many of the same claimsthat were put forward in the contested casehearing and dismissed by the hearing officer:that the telescope will harm underground aqui-fers and damage historic sites, that it entails anillegal subdivision of Conservation District land,that the construction of the telescope, practicallyat the summit of Mauna Kea, will violate theCoastal Zone Management Act by increasingthe risk of water pollution, will lead to “multi-generational trauma upon the health of nativeHawaiians,” violates the religious freedoms ofNative Hawaiians, and so on.

Representing the petitioners – KAHEA: theHawaiian Environmental Alliance; Mauna KeaAnaina Hou; Clarence Kukauakahi Ching; theFlores-Case ‘Ohana; Deborah J. Ward; andPaul K. Neves – is Richard Wurdeman, whoonce served as corporation counsel to HonoluluMayor Frank Fasi and Big Island Mayor SteveYamashiro.

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An old-growth ‘ohi‘a forest in South Konahas been spared the developer’s ax – for

now, at least. Judge Ronald Ibarra of the 3rdCircuit Court has determined that the Countyof Hawai‘i planning director, Bobby JeanLeithead-Todd, and the county’s Board ofAppeals erred when they approved a plannedunit development calling for 14 house lots onjust over 72 acres in the ahupua‘a of Waikaku‘u.The PUD called for 13 of the lots, each abouttwo acres, to be built on the heavily forestedupper slopes of the property, adjacent to a stateforest reserve.

In his April 23 order invalidating the PUDpermit, Ibarra found that Leithead-Todd andthe appeals board violated the county generalplan and the Kona Community DevelopmentPlan (CDP), that they “did not review the PUDapplication pursuant to their constitutionalduties and responsibilities with regard to thepublic natural resources trust,” and that thepermit itself is not valid “because it does notcontain specific measures that require projectlots to be used for bona fide agricultural uses.”

Ibarra remanded the issue “for further pro-ceedings consistent with” his order. That meansthe Board of Appeals is to hear the case againand make a decision in line with Ibarra’sfindings.

Richard and Patricia Missler, who ownland adjacent to the site of the proposed PUD,appealed Leithead-Todd’s original approval tothe BOA and, when the BOA affirmed thepermit, they appealed to Circuit Court. Theywere represented by Mike Matsukawa. (Envi-ronment Hawai‘i reported extensively on thiscase in our June 2012 edition.)

A ‘Duty to Conserve and Protect’Ibarra did not agree with Matsukawa thatLeithead-Todd had improperly granted timeextensions in her department’s considerationof the PUD application. Nor did he accept theargument that the BOA decision should bevoided because some members were absentduring part of the administrative appeal hear-ing.

The judge did, however, strongly agreewith Matsukawa on two points: that the countyagencies had failed to carry out their duty toconserve and protect natural resources, andthat both Leithead-Todd and the Board ofAppeals had erred in their determination thatthe Kona CDP did not have the force of law.

Ibarra devoted nearly a quarter of his 36-page ruling to the county’s evasion of its

responsibilities under the public natural re-sources trust. The area to be developed, henoted, is designated by the state as a “PriorityI” watershed and has been included for nearlytwo decades on county watershed maps.

Invoking a series of rulings by the Hawai‘iSupreme Court, Ibarra wrote that govern-mental agencies, “[a]s guardian of the waterquality in this state, … ‘must not relegate[themselves] to the rule of a mere umpire ...but instead must take the initiative in consid-ering, protecting, and advancing public rightsin the resource at every stage of the planningand decision-making process.’”

The attorneys for the Board of Appeals andLeithead-Todd argued that this responsibilitydoes not fall to the Planning Department, butrather to the county Department of PublicWorks, whose comments were incorporatedin the one of the conditions – Condition 10 –attached to the PUD permit.

Ibarra rejected that claim. “Appellees [thecounty] miss the mark with this argument intwo crucial ways,” he wrote. “First, … [theplanning director] may not avoid [the] obliga-tion to uphold the public natural resourcestrust doctrine and its ‘affirmative duty topreserve and protect the state’s water resources,’by arguing that another agency carries theresponsibility. Second, Condition 10 of thePUD fails to meet the duty by deferring deci-sion-making to a future time.”

The “[a]ffirmative obligation to preservethe public natural resources trust according to

Judge Invalidates Permit for SubdivisionPlanned for ‘Ohi‘a Forest in South Kona

law is among the responsibilities of the direc-tor as an officer of the county,” Ibarra wrote.“… The county’s duty to conserve and pro-tect is clear. The director may not defer deci-sion-making action with regard to the publicnatural resources trust to another agency norto a future date. The director, as an officer ofthe county, has a constitutional duty to ‘con-serve and protect Hawai`i’s natural beautyand all natural resources, including … water,’in her official decision-making. In deferringthis responsibility, the director’s decision vio-lated constitutional provisions.”

Ibarra also noted that Leithead-Todd’sdecision to approve the PUD permit “improp-erly describes the land in question. The direc-tor described the vegetation on the property as‘a combination of kiawe, koa haole, and avariety of grass, shrubs and weeds…’ Whenquestioned about this portion of the decisionletter during the May 11, 2012 appeals hearing,the director admitted that the language hadbeen included in the decision letter in error,that it was taken from an unrelated decisionletter that was being used as a sample, and thateven without that language included, thedirector would have approved the PUD appli-cation.” Leithead-Todd acknowledged thather staff “could have considered commentsmade by neighbors that characterized theproperty as including an old ‘ohi‘a forest, butthat these would not be required to be in-cluded,” Ibarra noted, but, he continued: “thegeographical makeup of the property is rel-evant. … Accurate findings of fact are essen-tial to protecting the rights of the parties andthe public and to creating a record that may beeffectively reviewed on appeal.”

Residential vs. AgIn its findings in favor of the planning director’sdecision, the Board of Appeals claimed thatthe Kona CDP was not an “ordinance” andwas unenforceable if not outright illegal.

Matsukawa argued that the Board of Ap-peals had no basis for such a claim and Ibarraagreed. “The KCDP was adopted as an ordi-nance by the Hawai‘i County Council onSeptember 28, 2008,” Ibarra noted, and theBoard of Appeals “may not nullify an ordi-nance that it is charged to administer.”

The BOA went on to determine that theCommunity Development Plan did not ap-ply to PUDs and, in any event, the Waikaku‘uPUD was “grandfathered” – that is, it had beenentitled before the CDP was enacted. Ibarrarejected both claims.

Ibarra also noted that while the PUD appli-cation stated that the lots to be created wouldsupport a “farm dwelling” whose design wouldbe governed by CC&Rs (covenants, condi-tions and restrictions) attached to the subdivi-

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Old ‘ohi‘a trees in the Waikaku‘u forest.

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A developer who has a history of floutingconditions of permits issued by the

Hawai‘i County Planning Department hasnow taken the county to court. At issue are theconditions of a Special Management Areapermit governing a luxury, gated subdivisionalong the Hamakua Coast, about 10 milesnorth of Hilo.

In essence, Steven D. Strauss, attorney forbuilder Scott Watson, is challenging thecounty’s very ability to establish setbacks fordevelopments in coastal areas.

The origins of Watson’s dispute with thecounty go back more than a year, when hebegan seeking approvals for plans to build ahouse he is calling the Pepe‘ekeo Palace on a1.8-acre lot near the old Pepe‘ekeo sugar mill.When the mill was active, the site of his house

Hawai‘i County Is Challenged in CourtOver Ability to Determine Coastal Setbacks

was heavily used by its workers and the millitself. A communal pig pen and several ware-houses dotted the site now owned by Watsonand a San Jose attorney, Gary L. Olimpia.

As part of receiving county approval for thehouse as well as a planned swimming pool andtennis court, Watson was required to get theblessing of the State Historic PreservationDivision. In doing so, Watson agreed to avoid“all of the concrete foundations and structuralremains, with the exception of the large store-house foundation, which will be convertedinto a tennis court.” He also agreed to docu-ment all of the foundations and concretefeatures with photographs, narrative descrip-tions, and measurements before beginningany construction work. A large storehouseand stairway was to be left intact.

Watson began work in mid-year without fulfilling SHPD’srequirements. By late Novem-ber, SHPD had received com-plaints about Watson’s work.Theresa Donham, archaeologybranch chief for SHPD, in-formed the county thatWatson had not complied withthe mitigation measures he hadagreed to, asking the county toorder him to stop work “sothat we can determine the ex-tent of damage … and recom-mend revised mitigation mea-sures.”

Separately, the Planning

Department had already fined Watson forwork he had done on the site that was contraryto other permit terms. No sooner had he paidthe county $8,000 to settle those violations, inmid-November, than the Planning Depart-ment began to receive complaints from hikersover blocked public access on the pedestrianeasement running along the makai (ocean)side of his lot.

On November 29, the Planning Depart-ment notified Watson and Olimpia that theywere to cease all work on the site, survey theshoreline and the top of the pali (cliff) thatfronted the property, obtain SHPD’s approvalof work done to comply with a historic sitemitigation plan, and relocate all new con-struction to within county-approved setbacks.The Planning Department also imposed a$20,000 fine.

Through his attorney, Watson filed anappeal with the county Board of Appeals onDecember 31.

Moving SetbacksAs Environment Hawai‘i reported in our De-cember 2012 cover article, the Planning De-partment had allowed Watson to build up to20 feet from the edge of his property, invokingthe side-yard setback distance. The SpecialManagement Area permit for the subdivisionthat includes Watson’s lot calls for minimum40-foot setbacks along the entire coast.

The November 29 notice of violation statedthat the foundation for an exterior wall ofWatson’s house was 19 feet from the propertyboundary. The open-space requirement forside yards is 14 feet, the NOV stated. Watsonhad also encroached on this setback as well,the county claimed, with the grand lanaiextending nine feet into the setback. The roofoverhang was going to project three more feet,leaving just 8 feet of open space in the “sideyard.”

The county inspector also determined thatthe construction encroached into the 50-footshoreline setback.

On February 3, the county planning direc-tor, Bobby Jean Leithead-Todd, amendedthose numbers on the basis of a December 10inspection, increasing the setback encroach-ments by one foot. The county inspector hadalso noticed that an area south of Watson’s lothad been filled and graded without approvalfrom the county and without any silt fence tostop the fill from eroding into the ocean.

That wasn’t the end of it, however. OnApril 5, Leithead-Todd wrote Strauss again:“After further research of our files, we realizethat we inadvertently failed to take into con-sideration the conditions of approval of SMANo. 450” – the Special Management Areapermit governing the entire subdivision —

sion, such CC&Rs were missing from theapplication, contrary to county zoning coderequirements. Neither did the applicationcontain the required “agricultural plan.”What’s more, “the director’s own September14, 2011 decision letter described the project asa ‘housing’ project to be built as a ‘residentialcommunity,’” Ibarra wrote.

Next StepsThe Board of Appeals must once more takeup the matter of the Waikaku‘u developmentand reconsider it in light of Ibarra’s findings.According to Matsukawa, the BOA has littlechoice but to conclude that the PUD applica-tion should be sent back to the planningdirector, who, in turn, should conclude thather prior decision is void and that the appli-cation should be rejected.

The foundation of Watson’s house encroaches into the setback, thePlanning Department has determined.

“A prudent planning official should tellthe applicant, ‘I am denying your applicationfor non-compliance with the law; you mayresubmit if you wish, but you must meet theguidelines set forth in the law, backed up bythe judge’s decision as the law of the case,”Matsukawa stated in an email to Environ-ment Hawai‘i.

Late last month, Matsukawa filed a mo-tion seeking $141,000 in attorney fees andcosts to be levied on the planning director,the landowners, and the Board of Appeals.He acknowledged that it was unusual to seekcosts against a tribunal such as the appealsboard. However, he told EnvironmentHawai‘i, “we argue that the board’s conductis so egregious that an award of fees and costsagainst the board is proper.”

— Patricia Tummons

June $#&% ■ Environment Hawai‘i ■ Page "

when the county issued its permit forWatson’s house.

Those conditions state that “no fence,wall, structure, or landscaping shall be in-stalled that impedes usage of the publicaccess easement,” and that “no house orother substantial structure shall be builtcloser to the ocean than 40 feet from the topof the sea cliff.”

The side-yard setback of 20 feet and thetemporary blocking of public access that thePlanning Department had earlier allowed“are both contrary” to the conditions ofSMA No. 450, she stated. She closed bynoting that Watson and the owners of the10 other lots in the subdivision could ask thePlanning Commission to revise the SMAconditions but that she lacked the authorityto override those conditions.

Strauss did not respond directly to thecounty’s April 5 letter. Instead, eight daysbefore the Board of Appeals was scheduledto hear Watson’s appeal, he filed a com-plaint in 3rd Circuit Court against Leithead-Todd, the Planning Department, the chair-man of the Planning Commission, and theCounty of Hawai‘i itself.

Usurped AuthorityThe complaint alleges a wide array of im-proper actions by the county, but the mostcritical is that the county usurped stateauthority by imposing a 40-foot setback onthe makai boundary of the lot.

Strauss argues that only the state Depart-ment of Land and Natural Resources canestablish and enforce shoreline setbacks. Hecites the Hawai‘i’s Coastal Zone Manage-ment Act, Chapter 205A, which states thatshoreline setbacks are to be no less than 20feet and no more than 40 feet from theshoreline.

Legal definitions of shorelines, Straussnotes, do “not include ‘top of cliff, ‘top ofsea cliff’ or ‘top of pali,’ all terms thatagencies of defendant County of Hawai‘ihave used in place of the statutory definitionof ‘shoreline.’”

In fact, the setback imposed on Watsonwas not a shoreline setback per se, but ratherthe setback from a property line, since thereis another lot of record that lies betweenWatson’s lot and the ocean. However,Strauss maintains that the long, skinny lotthat lies between all the lots in the subdivi-sion and the ocean is only a “remnant” lotand may not be used to trigger setbacks. Bytreating this lot as a parcel that can be usedfor setting setbacks, he states, the PlanningDepartment “exceeded its authority.”

In short, Strauss argues, the SMA permitfor the subdivision “adopts a definition of

shoreline, and certification thereof, contrary tothat provided for [in the CZM law] and is thusvoid, unlawful, and unenforceable as presentlywritten.”

The complaint asks the court to provide“declaratory relief” by estopping the countyfrom holding to the conditions in SMA No. 450and to grant “temporary, preliminary and per-manent injunctive relief” by prohibiting thecounty from applying definitions of shorelineand shoreline setback that are inconsistent withstate law and from using the coastal lot as atrigger for setbacks.

On May 10, more than a week after thelawsuit was filed, the Board of Appeals met.Watson’s petition was on the agenda. After alunch-break discussion involving Strauss,Watson, Leithead-Todd and Amy Self, thecounty deputy corporation counsel represent-ing the Planning Department, Strauss informedthe board, “There has been an agreementreached between the landowner and the Plan-ning Department.

“That agreement,” he went on to say, “in-cludes as a condition a continuance of theBoard of Appeals appeals…. We’ll keep theboard apprised of developments in that case,because continuance is pending resolution byother agencies.” Neither he nor anyone elsementioned the lawsuit.

! ! !

The HelipadAnd the Three Kitchens

In addition to the infractions the countyfound at Watson’s Pepe‘ekeo worksite, the

county also cited him for unauthorized im-provements at two other houses he has built onthe Hamakua Coast.

In one case, Watson and his real estate agenthad advertised a house in Pauka‘a, just north ofHilo, as having three kitchens. It had beenpermitted as a single-family residence, with justone kitchen allowed. In a letter dated April 10,

Leithead-Todd stated that the violation hadbeen resolved to the county’s satisfaction andthe civil fine of $500 “has been waived due tofull compliance.”

The matter of a public access easement overthat same property to a pool in Pauka‘a Streamhas not yet been resolved. The county has notissued any notice of violation in connectionwith Watson’s failure to comply with thatcondition of his permit to develop the lot.

Then there is the case of the helipad atop ahouse that Watson finished building last yearin Ninole, around 20 miles north of Hilo. ThePlanning Department sent a notice of viola-tion to Watson and co-owner LaurieRobertson about the helipad on December 6.

Watson did not appeal the county’s find-ings. On February 25, Leithead-Todd notifiedWatson and Robertson that their right toappeal had expired and that, as of that date,total fines came to $14,800, “based on initialfines of $500 for a zoning violation, $10,000for a Special Management Area violation anddaily fines of $4,300.” The daily fines began totoll on January 9, the day following the dead-line for appeal or resolution.

A schedule of fines included in the lettershowed that for the first three months follow-ing a notice of violation, daily fines accrue at arate of $100 a day. From the fourth to the sixthmonth, they rise to $200 a day, topping out at$500 a day the ninth month and thereafter.

Watson and Robertson were given untilMarch 27 to pay the fine and cease the viola-tion. Should that not happen, Leithead-Toddwrote, “the matter will be transferred from thePlanning Department to Corporation Coun-sel for legal action.”

That deadline passed without event.On May 6, Leithead-Todd sent a “Follow-

up Letter #1” to Watson and Robertson. Shestated that the amount of fines due on thatdate came to $23,700.

But instead of following through on thethreat to turn the case over to corporationcounsel if the March 27 deadline for resolu-tion was unmet, Leithead-Todd offeredWatson yet another deal: “If you resolve thismatter by the deadline date of May 23, we willconsider reducing the fine to 10 percent of theamount due, otherwise, after this date, thematter will be transferred … to CorporationCounsel for legal action.

According to the Planning Departmentinspector, having heard nothing fromWatson, he shipped the matter over to thecounty corporation counsel on May 23.Now into the fourth month of the infrac-tion, fines are accumulating at a rate of $200a day. By the end of the month, the totalstood at more than $28,000.

— Patricia Tummons

Watson had told SHPD he would build a tennis courtinside the walls of this old warehouse. Instead, he has builtforms inside the foundation walls that, according tostatements on his Facebook page, are to support aswimming pool.

Page ) ■ Environment Hawai‘i ■ June $#&%

Kaua‘i Springs from page 1

eight-inch pipeline that taps the Kahili spring,Satterfield applied for and received a buildingpermit and Class IV zoning permit from thecounty to build a 1,600-square-foot “water-shed,” which consisted mainly of two shippingcontainers connected by a roof.

The county planner who processed the appli-cations testified later that the shed “looked ... likeany other ag building at the time.”

“However, the ‘watershed’ was actually asemi-automated water-bottling facility capable

of filling at least 1,000 five-gallon bottles perday,” the county wrote in its opening brief to theICA.

Once the state Department of Health issuedKaua‘i Springs a permit to bottle water in July2004, Satterfield, his wife, and their five sonsbegan operations.

After they had been bottling water for abouttwo years, the county received a complaint —allegedly from an employee from an O‘ahuwater bottler — that Kaua‘i Springs was illegallyoperating an industrial facility on agriculturalland. Satterfield argued to the county PlanningDepartment that water bottling was an agricul-tural use. The county disagreed and requiredhim to apply for a special use permit to operatea bottling facility in the Agriculture District.Because the property is zoned for agricultureand open space, he also had to apply for a countyuse permit and a Class IV zoning permit.

On May 15, 2006, the Planning Departmentissued a cease-and-desist letter to Makana Prop-erties, stating that unpermitted industrial pro-cessing and packaging was occurring on theproperty.

Faced with being shut down, Kaua‘i Springseventually submitted the required permit appli-cations on July 5, 2006. Satterfield later testifiedbefore the Planning Commission that heplanned to increase his production substan-tially, from about 2,500 gallons a week to 35,000gallons a week.

The commission first took up the matter ofKaua‘i Springs’ permits at its August 8, 2006,meeting. As it struggled to get some basic scope-of-operations information, as well as answers tocomplex water-related legal issues, the commis-sion delayed decision-making meeting aftermeeting.

“At this point there is no limit on how muchwater I can extract that I know of in any docu-ment that we have written out,” Satterfield toldthe commission at one point. He added that hedid not plan to ship any water off Kaua‘i “untilwe have saturated the island.”

In written testimony opposing the per-mits, Maka‘ala Ka‘aumoana, vice chair ofHui Ho‘omalu I Ka ‘Aina, pointed outthat Kaua‘i Springs receives its water fromGrove Farm, which is not authorized bythe state Public Utilities Commission topurvey water.

In response to an inquiry from the Plan-ning Department, the PUC stated that, givenwhat little information it had on the case, itwas unlikely that Kaua‘i Springs would needPUC regulation, although Grove Farm, onthe other hand, might.

Ka‘aumoana also stated that the coun-ties, as subdivisions of the state, have anobligation to conserve and protect Hawai‘i’snatural resources, including water. And hersentiments were supported by the Hawai‘iSupreme Court. A little more than a weekbefore the Planning Commission began de-liberations on the permits, the Hawai‘i Su-preme Court ruled in Kelly v. 1250 OceansidePartners that counties, as subdivisions of thestate, have public trust duties with regard towater.

To determine what, if any, water-relatedpermits Kaua‘i Springs needed, the Plan-ning Department consulted with the stateCommission on Water Resource Manage-ment. The Water Commission is respon-sible for generating the state’s Water Planand allocating waters within designatedmanagement areas. Since Kaua‘i has no suchareas, Kaua‘i Springs would not need apermit from the Water Commission unlessthe operation induced more water to flowfrom the spring or modified the source of thewater, the commission’s Dean Nakanostated in a letter to the Planning Depart-ment. Nakano also stated that “ground-water withdrawals from this project mayaffect stream flows, which may require aninstream flow standard amendment.”

To appease some of the concern over hisexpansion plans, Satterfield offered to limithis water use to 1,000 gallons a day, whichwould still allow him to more than doublehis output at the time.

Over the course of the PlanningCommission’s deliberations throughout thelatter half of 2006, the deadlines to decide ontwo of the permits -- the county use permitand the Class IV zoning permit -- came andwent. Without assent from Kaua‘i Springsto extend those deadlines, the permits wouldhave been automatically approved.

The automatic approval deadline for thespecial use permit was January 31, 2007.

With equivocal advice from the PUC andthe Water Commission about Kaua‘i Springs’operation, an automatic approval deadlinelooming, and little to no experience dealingwith water issues, the Planning Commissionvoted on January 23, 2007 to deny all threepermits.

In its Decision and Order, the commissionwrote, “In view of comments received fromCWRM and PUC, the land use permit processshould insure that all applicable requirementsand regulatory processes relating to waterrights, usage, and sale are satisfactorily com-plied with prior to taking action on the subjectpermits. The applicant ... should also carry theburden of proof that the proposed use and saleof the water does not violate any applicable lawadministered by CWRM, the PUC or anyother applicable regulatory agency.

“There is no substantive evidence that theapplicant has any legal standing and authorityto extract and sell the water on a commercialbasis.”

Satterfield asked the commission to recon-sider its decision, but the commission deniedhis request at its February 15 meeting. Hesought an appeal from the county and inMarch was again denied. So he turned to the5th Circuit Court. On May 15, 2007, CircuitJudge Kathleen Watanabe granted him a pre-liminary injunction against the county.

The Appeal“Under the pressure of a looming deadlinewhen the last of three zoning permit applica-tions submitted by Kaua‘i Springs, Inc., wouldbe automatically approved by operation oflaw, the Kaua‘i Planning Commission cobbledtogether a hasty denial,” wrote Thomas andMark Murakami, attorneys for Kaua‘i Springs,in their April 2008 appeal of the PlanningCommission action to the 5th Circuit Court.

“[The Planning Commission] ... based itsdenial on criteria wholly outside of its jurisdic-tion and competence, and wrongly concludedit had the authority to deny the zoning permitsbecause it believed Kaua‘i Springs ‘extractsand sells’ water,” they wrote. The commissionshould have limited its deliberations to whetheror not Kaua‘i Springs’ operation was “in har-mony with its neighbors on land zoned ‘Agri-culture’ and ‘Open,’” they argued.

In any case, they wrote, the county usepermit and Class IV zoning permit were auto-matically approved on October 18, 2006, andNovember 2, 2006, respectively.

They also argued that the letters to thePlanning Commission from the PUC andWater Commission proved that both agencies“disclaimed any interest in Kaua‘i Springs.”

Judge Watanabe agreed with them on allpoints.

“We gotta be bottling our own water.” — James Satterfield, Kaua‘i Springs

June $#&% ■ Environment Hawai‘i ■ Page '

With regard to automatic approvals,Kaua‘i Springs’ attendance and participationin all of the Planning Commission hearingsdid not constitute a waiver of any deadlines,she wrote in her September 17, 2008, order.

“[T]he record in this case is devoid of anyevidence that Kaua‘i Springs’ existing or pro-posed uses might affect water resources sub-ject to the public trust,” she continued, add-ing that no evidence was presented that thecompany didn’t carry its burden to show itwas entitled to its permits.

She ordered the commission to issue allthree permits immediately and made thepreliminary injunction permanent.

ICA AppealOn October 30, 2008, the Planning Com-mission filed a notice of appeal with the ICA.

“In this case, the court must decide whethera county agency may deny land-use permitsfor an activity involving the commercial ex-ploitation of an unregulated ground-waterresource, when the permit applicant fails toestablish a legal right to remove and distributewaters subject to the public trust. Appellee, anambitious water-bottling company with bigaspirations to profit from Kaua‘i’s limitedfresh-water resources, is attempting to cir-cumvent the constitutional, statutory andcommon-law requirements standing in itsway,” the county’s attorneys wrote in theiropening brief. To assist in this case, thecounty retained David Minkin and Christo-pher Bayne from the firm of McCorristonMiller Mukai MacKinnon, LLP.

“The Planning Commission attempted toreconcile its duty to both evaluate appellee’sland-use application and protect Hawai‘i’swater resources by seeking input from otherstate agencies tasked with water regulation.After carefully evaluating appellee’s applica-tion, the Planning Commission concludedthat appellee failed to meet its burden of proofthat the use of water was legal,” they wrote.

During the course of its deliberations, thePlanning Commission was unable to getdefinitive answers from Kaua‘i Springs or theKnudsen Trust, which owns the cave wherethe spring is located, on how much water isdiverted. The scope of Kaua‘i Springs’ opera-tion also remained unclear, with Satterfieldtwice amending his proposed operating ca-pacity at the commission’s meetings.

“As late as the November 14 and 28, 2006,hearings, commission members were stilluncertain about the number of hours appel-lee intended to operate in its facility on a dailybasis and whether the water used was subjectto chlorination,” the county’s attorneys wrote.

With regard to Watanabe’s conclusionthat two of the permits Kaua‘i Springs

sought were automatically approved, theypointed out that language in the countycode requires only assent from the appli-cant, not a waiver. And by its conduct at thePlanning Commission meetings, Kaua‘iSprings had, in fact, assented to an exten-sion, they argued.

“ ‘Assent’ is defined as ‘verbal and nonver-bal conduct reasonably interpreted as willing-ness,” they wrote, citing Black’s Law Dictio-nary.

Not only did Satterfield and his attorneyattend and participate in all of the PlanningCommission’s hearings, they negotiatedconditions for the county use permit morethan a month after the approval deadline.Such action “could only be construed bythe Planning Commission as a willingnesson the part of appellee to delay a finaldecision on the matter,” the county’s legalteam wrote.

Amicus BriefsGiven the public trust issues involved, theOffice of Hawaiian Affairs and and twoenvironmental groups -- Hawai‘i’s Thou-sand Friends and Malama Kaua‘i -- filedamicus briefs in the case.

OHA’s attorneys, Ernest Kimoto and JohnVan Dyke, argued that Kaua‘i Springs wasnot entitled to the permits because the ad-ministrative process failed to evaluate theimpact of the operation on traditional andcustomary native Hawaiian rights in accor-dance with the Hawai‘i Supreme Court deci-

sion in Ka Pa‘akai O Ka‘aina v. Land UseCommission.

Earthjustice attorney Isaac Moriwake, rep-resenting Hawai‘i’s Thousand Friends andMalama Kaua‘i, added in his brief that simplyconsulting with other agencies does not fulfillthe Planning Commission’s public trust dutyto protect water resources.

“Regardless of the statutory authoritygranted to other agencies, including CWRMand PUC, [the Kaua‘i Planning Commissionor KPC] remains subject to the constitutionalpublic trust doctrine.

“Moreover, in this case, no other state orcounty agency besides KPC exercised juris-diction over Kaua‘i Springs. KPC soughtinput from both CWRM and PUC, andboth declined to act at the time. Thus, evenif Kelly did not already reject the notionthat KPC could pass off its public trustduties to other agencies, no other agencywas willing to take any responsibility. Thiscompelled KPC all the more to fulfill, and

not abandon, its trustee obligations,”Moriwake wrote.

ICA OpinionAfter hearing oral arguments on March 14,2012, the ICA issued a 51-page opinion onApril 30 largely in favor of the county.

With regard to the automatic approvalissue, the ICA agreed with the county thatKaua‘i Springs’ actions could reasonablyhave been interpreted as assent.

The ICA noted that the parties in thecase don’t dispute that the county haspublic trust duties, but disagree on thescope of those duties and the applicablestandards for the three permits.

To determine those, the ICA looked to thecounty zoning code, general plan, and stateland use law. With regard to the zoning code,which governs county use and zoning per-mits, it states that the permits may be grantedonly if the Planning Commission finds thatthe permitted activity “will not cause anysubstantial harmful environmental conse-quences on the land of the applicant or onother lands or waters, and will not be incon-sistent with the intent of the [zoning ordi-nance] and the General Plan,” which con-tains some broad language in its visionstatement about the county playing a role inprotecting the island’s waters.

The state’s land use law, Chapter 205,governs special use permits. The purpose ofChapter 205 is, in part, to conserve naturalresources, including water, the ICA noted.

“Therefore, the Planning Commission’spublic trust duty under [the state Constitu-tion], coupled with the state’s power tocreate and delegate duties to the counties,establishes that the Planning Commissionhad a duty to conserve and protect waterresources in considering whether to issuethe special permit to Kaua‘i Springs,” theICA wrote.

Despite having clear standards, the Plan-ning Commission failed to apply them, theICA found.

“The Planning Commission essentiallyrequired Kaua‘i Springs to prove that itswater usage — and the sale of the water by theKnudsen Trust and Grove Farm’s operationof the water system — were legal and met allpotentially applicable regulatoryrequirements. No concerns are articulated inthe Planning Commission Order related perse to Kaua‘i Springs’ water bottling operationor its particular use of the water,” the ICAwrote.

“I think it’s significant in raising the bar for planningagencies across the state.” — Isaac Moriwake

Page + ■ Environment Hawai‘i ■ June $#&%

Over the objections of an incensedWilliam Tam, the Agribusiness

Development Corporation board voted toapprove a three-year license to LBD Coffee,LLC, to test its tobacco crops on three acresin Kekaha, Kaua‘i.

A version of the project — for a two-yearrevocable permit —- first came to the boardin January but failed to win enough votesbecause one board member had to recuseherself, Tam voted against the project, anda couple of board members were absent. (Inour February issue, we incorrectly statedthat Paula Hegele and board chair MarissaSandblom had both recused themselves.Only Hegele, whose company wholesalesLBD cigars, recused herself. Sandblom,whose employer, Grove Farm, leases landto LBD, did not.)

At that meeting, Tam argued that pub-lic lands should never be used to grow

tobacco, especially when the state spendsso much money trying to prevent peoplefrom smoking or to get them to quit. Alengthy debate ensued over whether cigarsshould be viewed in the same light ascigarettes, whether tobacco is any worsethan other crops that could potentiallycause cancer, and whether the board shouldbe making moral judgments about cropson the ADC’s land.

After a motion to approve a one-yearpermit to LBD failed, the matter was de-ferred without any motion or vote to do so.

On May 8, the board took the matter upagain. This time, the proposal was for athree-year license. Tam argued that theboard had already voted on the matter andthat that should have been the end of it. Butdeputy attorney general Myra Kaichi coun-tered that the agenda item presented inJanuary — to approve a two-year revocablepermit — was a mistake since such a thingis not allowed under state law. (Revocablepermits are limited to one year.) The boarddidn’t have enough members present toamend the agenda to correct the error, shesaid.

“I don’t think its improper, the fact thatit’s on the agenda today,” she said.

Tobacco Project Wins ADC LicenseDespite Board Member’s Objections

With no members of the public testify-ing on the matter, board member DavidRietow made a motion to approve the li-cense, which was seconded. Tam, however,vowed to fight the project.

“I will take it to the governor. This is nota neutral [project]. This is not acceptable. Iam extremely unhappy. This is a moral issuewith me and it’s a policy issue for the state.This is not just another crop,” Tam said,adding that he thought a vote on the matterwould be illegal.

“I will take legal action if necessary,despite our counsel,” he said, arguing againthat once a matter is voted on, “it’s fin-ished.”

As he did in January, Rietow said he feltthe ADC board’s purpose it to lease land tofarmers, “not to pass judgment.”

“These people [LBD] are talking aboutcigars, not cigarettes,” he said, pointing out

that people already object to some of theADC’s largest tenants for “moral” reasons.Referring to the controversy over transgeniccrops, commonly referred to as GMOs (ge-netically modified organisms), Rietow said,“We’ve got [transgenic] corn in Kekaha.They say, ‘It’s bad for you. It’s GMO.’ Theycan’t even define GMO.”

When it came time to vote, Tam againwas alone in his opposition. This time themotion received the six votes necessary topass.

In January, LBD owner Les Drent saidthat if the crop test in Kekaha proves suc-cessful, he will seek a license for 40 acres fromthe ADC.

! ! !

Former ADC Board MemberWins First Galbraith License

Kunia farmer Larry Jefts, one of the mostproductive farmers in the state, has be-

come the first lessee of the ADC’s newlyacquired Galbraith Estate lands. Under anagreement with Ho‘opili developer D.R.Horton, the ADC promised to give farmersdisplaced by the impending residential devel-

Raising the BarAlthough the company hasn’t decidedwhether to appeal the ICA decision to thestate Supreme Court, for now, the ruling isseen by some as a victory for the state’s waterresources.

“I think it’s significant in raising the barfor planning agencies across the state. Noweveryone’s on notice you can’t put blinderson towards the effect of these planningagencies’ actions on the environment, [and]in this particular case, water,” Moriwakesaid of the decision.

“As far as water bottling goes, that’s alarge issue that remains unresolved. It seemslike the issue of can a company stick a strawin the ground and start selling the water isproblematic on various levels — the envi-ronmental protection aspect [and] ... sellinga public resource as well. This case reallydidn’t resolve that,” he added.

For Satterfield, who says he is currentlyoperating at his proposed capacity of 1,000gallons per day, the case has been a waste oftax dollars, as well as his own.

“We’ve been operating the business for10 years without complaint ... and no quan-tity-of-water issues,” he says. Throughoutthe appeals process, he added, “we havebeen suppressed. If they [his competition]wanted to stifle us, they did a good job.”

Kaua‘i county officials did not respondto questions by press time.

Whether counties or the state will everdevelop a policy on water bottling remainsto be seen.

“The Water Commission itself has notfaced this issue,” says commission directorWilliam Tam.

In 2008, then-state Rep. Mina Moritaintroduced a bill that would have taxedwater bottlers, with the proceeds going to-ward invasive species control. The billmorphed into one that instead would havefunded water protection and planning ef-forts by the state and counties, but eventu-ally died.

Last year, then-state Sen. Shan Tsutsuiand six other senators introduced a bill toprevent taking and bottling water from anylocal source for export without a permitfrom the Water Commission. Currently,the commission only issues permits for with-drawals within designated water manage-ment areas.

The bill passed first reading, but wentnowhere and received no written testimony.

That’s just as well, says Tam.“There wouldn’t be a basis for a permit

unless it was a designated area. It would bean awkward way to handle things,” he toldEnvironment Hawai‘i. —Teresa Dawson

“This is a moral issue with me andit’s a policy issue for the state.This is not just another crop.” — Bill Tam, DLNR

June $#&% ■ Environment Hawai‘i ■ Page (

opment in Central O‘ahu first crack at 500 ofthe 1,200 acres. Jefts leases 400 acres fromHorton. On May 8, the ADC voted unani-mously to issue Jefts a 10-year lease for 150acres.

At first, Jefts will pay only $100/acre/yearwhile he works on developing a water sourceand preps the land. During the latter half ofthe lease term, he’ll pay $200/acre/year.

“Those are prettytough lands to develop,$1,000 per acre to pre-pare and that’s not in-cluding water,” explainedADC executive directorJames Nakatani. In addi-tion to giving Jefts a breakon rent while he makes

the land farmable, the ADC has also hired himthrough a competitive bidding process toprepare an additional 200 acres of Galbraithlands for other, smaller farmers to use.

So far, Jefts has removed trees from the area

and once the rain subsides, he’ll mow it,Nakatani said. He added that Jefts is having ahard time acquiring coral lime from the stateDepartment of Transportation to prep thesoil. (The state procurement office has re-jected an ADC request to purchase lime forJefts.)

“We have not gotten developmental fundsfrom the Legislature,” Nakatani continued.“By using the private sector partnership, wecan develop these things [and] hopefully seesome farming in 2014.”

“This land is not good or bad land. It iswhat it is,” Jefts told the board. But it doesneed help. He said farmable soil is usuallyaround 6.5 pH. The Galbraith soils are moreacidic, with a pH of around 4.

A pH of 4 is good for pineapple but littleelse, he said, adding that he plans to dump asemi-truck load of sand on every acre as soonas possible.

“Small farmers are not going to be able todo this on their own,” he said.

Board member William Tam asked Jeftshow he planned to water to his lease area andthe 200 acres he’s preparing for others.

The one well on the property can deliverabout 3 million gallons a day. But with no dripirrigation, no main line, and no reservoir, it’sgoing to take a lot of capital to make a systemsuitable for farming, Jefts said, adding thatpumping the well is going to be more expen-sive than paying municipal water rates. Evenso, it’s “doable,” he said.

Jefts also said he plans to use water fromLake Wilson, but did not describe how thatwould be done.

Board member Mary Alice Evans askedNakatani whether he planned to limit otherfarmers’ tenure to 10 years.

“Not necessarily,” he said. “We wanted togive Jefts a longer tenure,” he went on to say,but without knowing how productive theland would be, 10 years was thought to be agood test run.

Jefts predicted it would be four years beforehis lands yield a successful crop.

“You must begin to plant crops that willwork there and be willing to accept smalleryields. If the sand and water is ready, we’ll startplanting as soon as possible,” he said.

Aside from the D.R. Horton farmers withan option to lease the Galbraith land (whichwill likely include Aloun Farms and HoFarms), Nakatani said his office has receivedrequests from nearly 70 farmers to farmthere.

“We’ll learn a lot by getting him [Jefts]started,” he said. “We have all of thesechallenges to bringing the land into produc-tion.”

! ! !

PLP Squeaks ByFinancing Hurdle

After more than an hour in executivesession, the Agribusiness Development

Corporation announced to a nearly emptyroom last month that Pacific Light & Power(PLP) had met its license requirement to pro-vide evidence of financing for its proposedrenewable energy projects in Kekaha. Boardmember William Tam, who is also director ofthe state Commission on Water ResourceManagement, recused himself because of thewater issues involved.

Now if only the company could get theisland’s utility, the Kaua‘i Island UtilityCooperative (KIUC), to agree to buy itspower. It’s a goal that has eluded the com-pany ever since KIUC filed applications inlate 2010 with the Federal Energy Regula-tory Commission to build two hydropowerplants on the ADC’s Kekaha and Koke‘editches, the same ones PLP had planned touse. KIUC filed its FERC applications aroundthe time PLP won preliminary approval formore than 1,000 acres of ADC land, beatingout Pacific West Energy, LLC, which had an

agreement with KIUC to provide 20 mega-watts of biofuel-generated power.

In April 2011, the ADC finalized a 25-yearlicense to PLP, which had proposed growingbiofuels and building three hydropowerplants and a bio-gas plant. The power gener-ated — an estimated 11 megawatts — wasexpected to be used first by the KekahaAgriculture Association, which includes all ofthe ADC’s tenants in Kekaha. Any excesspower would be sold to KIUC.

Under its license, PLP had to meet anumber of benchmarks, including providingevidence of financing and completing thestate environmental review process. PLP hasrecently begun an environmental assessmentand late last year provided some evidence offinancing. (Canada’s Kreuger Energy hasagreed to provide $10 million in equity fi-nancing for the $40 million project.)

Representatives from KIUC and/or its hy-dropower consultant, Free Flow Power Cor-poration, have been attending recent ADCboard meetings to monitor the fate of PLP’sproject. With a handful of green energyprojects under development, the utility ex-pects renewables to supply more than 41percent of its customers’ electricity needswithin a couple of years. KIUC has identifiedfive hydropower projects — including thoseproposed for the Koke‘e and Kekaha ditches— that could bring that total to 64 percent.

KIUC’s goal is to generate 50 percent of itselectricity by 2023. In late March, the KIUCboard authorized CEO David Bissell to con-tinue working with Free Flow Power onstudying the feasibility of hydroelectricprojects on the island.

! ! !

Former Kaua‘i CommissionerReplaces Sandblom on Board

HAW

AI‘I

DEPT

.OF

AGR

ICUL

TURE

Larry Jefts

“This land is not good or bad land.It is what it is.” — Larry Jefts

MarissaSandblom

SandiKato-Klutke

Gov. Neil Abercrombiechose not to nominate

Marissa Sandblom for a sec-ond term on the ADC board.Sandblom, a vice president forKaua‘i’s Grove Farm, cur-rently serves as the board’schair.

Next month, former Kaua‘iAston hotel manager and plan-ning commissioner SandiKato-Klutke will takeSanblom’s seat on the board.Kato-Klutke has been an advocate for theKaua‘i Farm Bureau and received strongsupport from the Kaua‘i farming commu-nity, as well as ADC executive director JamesNakatani. — Teresa Dawson

Page &# ■ Environment Hawai‘i ■ June $#&%

Use of Monk Seal Bait Sparks DebateOver Permit to Cull Sharks in NWHI

B O A R D T A L K

There’s a big difference between taking anaction to kill versus using the flesh of an

animal already dead,” said at-large Board ofLand and Natural Resources member SamGon of the “warped argument” that somehave made to board chair William Aila.

In discussing a proposal last month to usethe meat of salvaged monk seal carcasses asbait to catch the 20 or so Galapagos sharksthat have learned to prey on pups at FrenchFrigate Shoals (FFS), Aila said, “The questionasked of me is, ‘You’re going to put me in jailfor killing a seal, but you’re going to cut upand feed [the seals] to sharks?’”

Resentment by the fishing communityagainst the seals has peaked in recent yearsfollowing National Oceanic and AtmosphericAdministration proposals to temporarily re-locate seals from the Northwestern HawaiianIslands to the Main Hawaiian Islands and toexpand critical habitat for the animals. Al-though the relocation proposal has been with-drawn, it was not before a number of seals onKaua‘i, Moloka‘i, and O‘ahu had been inten-tionally killed or injured.

In the case of the recent permit applicationby NOAA’s Frank Parrish and Alecia VanAtta to kill up to 18 sharks at FFS usingsalvaged seal meat (among other things) asbait, the seals are already dead, NOAA monkseal recovery coordinator Jeff Walters pointedout.

“We’re trying to use their bodies in arespectful way, to keep their brothers andsisters alive,” Walters said. He later added,“We’re not talking about chumming. ...[T]here is going to be one piece of bait, noopportunity to train or habituate an animal toseal bait.”

Aila, however, was concerned that NOAA

had not discussed the issue enough withnative Hawaiian cultural practitioners, espe-cially those who have been taking a lot of heatfor defending seal protection efforts.

For years, the Land Board has begrudg-ingly issued permits to NOAA to cull thesharks, which some native Hawaiians con-sider sacred. In recent years, the Office ofHawaiian Affairs and the Papahanau-mokuakea Marine National Monument cul-tural advisory group have refused to supportany of the shark culling permits. This year wasno exception.

But to NOAA monk seal expert CharlesLittnan, the predatory sharks at French Frig-ate Shoals need to be eradicated now morethan ever. Juvenile survival in the NWHI hasimproved in recent years, and now sharkpredation is the main source of mortality inthe NWHI. Making matters worse, fewerpups are being born.

“In the past, we had leeway. There used tobe hundreds of pups at French Frigate Shoals.Last year there were 34,” Littnan said.

Ever since the state established a reserve inthe NWHI, NOAA has been using frozen tunaheads as bait, with little success. NOAA scien-tists have managed to catch just two sharkssince the agency started getting permits fromthe Land Board for the work. Before thereserve was established, NOAA caught 12sharks between 1999 and the early 2000s.

Back then, there were about twice as manysharks and they weren’t as wary of humans asthey are now, Littnan said. What’s more, thescientists were able to use salvaged seal flesh asbait. Seal bait was used 15 times, with a total ofthree sharks captured as a result, Littnan said.

Even so, Aila seemed to want more discus-sion with cultural practitioners. He askedLittnan what would happen if the boardrequired NOAA to take a year to do morecommunity outreach. Littnan replied by say-ing he estimated 17 percent of the pups bornthis year at FFS could be lost. Sharks hadalready killed two pups at the time of theboard meeting.

In the end, although some members wereworried about backlash in the Main Hawai-ian Islands, the board approved the permit onthe condition that NOAA have more discus-sion with cultural practitioners about the useof seal meat.

“The seal meat is a resource for them to use

to move through this issue,” Big Island LandBoard member Rob Pacheco said.

The permit covers activities from June 1 toMay 31, 2014.

! ! !

A New TradewindsGets Timber License

Don Bryan’s dream to build a timber millon the island of Hawai‘i has been given

new life. On May 10, the Land Board ap-proved the transfer of the timber license heldby Hawaiian Island Hardwoods (HIH) toBryan’s Tradewinds Hawaiian Woods, LLC.The transfer provides him with about 1,000acres of feedstock for a commercial-scale saw-mill he plans to start building next summer.

More than a decade ago, the Land Boardissued to Bryan’s Tradewinds Forest Prod-ucts, LLC, a timber license for 9,000 acres inthe state’s Waiakea Timber ManagementArea on Hawai‘i island, near Hilo. Thecompany’s plans to log the area and build aveneer mill on the Hamakua coast sparkedcontroversy, with many residents concernedabout potential harm to native forest speciesand a host of other environmental impacts.But waylaid by years of permitting and fi-nancing troubles, the mill and logging opera-tion never materialized. In the meantime, thecompany racked up more than $1 million inlicense fees and penalties. Finally, in July 2011,the Land Board approved Bryan’s request toterminate the license.

Like Tradewinds, HIH also struggled tomeet the construction and payment dead-lines of its Department of Land and NaturalResources license, issued in 2007, for 1,095acres in Waiakea. HIH was never able to builda commercial-scale mill, although it managedto harvest and mill some timber early on.

Rather than continue to accumulate feesand fall behind on its deadlines, HIH chose tosell its mill equipment to Tradewinds Hawai-ian Woods, which Bryan formed in 2010.The sale, according to a March letter fromHIH to the DLNR, would be contingent onthe Land Board approving a transfer of theHIH license to Tradewinds.

At the Land Board’s May 10 meeting,DLNR Division of Forestry and Wildlifeadministrator Roger Imoto recommendedapproval. The move would help the depart-ment meet its objective to promote the localforest industry and would provide a steadystream of revenue as well, he said.

The board received written testimony inopposition from Big Island resident CoryHarden, who pointed out that Bryan’s earliercompany had failed to comply with terms of

About 20 Galapagos sharks have learned to prey onmonk seal pups at French Frigate Shoals in theNorthwestern Hawaiian Islands.

PHOT

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OAA

June $#&% ■ Environment Hawai‘i ■ Page &&

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its license, was fined for various violations,and sparked community opposition, amongother things.

When at-large board member DavidGoode asked what the difference was be-tween Tradewinds Hawaiian Hardwoods andTradewinds Forest Products, Imoto re-sponded, “The main part is financial backing.One could make it happen. One could not,”Imoto said.

Former Kamehameha Schools land man-ager Peter Simmons testified on behalf of theHawai‘i Forest Industry Association in sup-port of the transfer.

“I just want to encourage you to do this.It’s a milestone event,” he said.

Simmons’ testimony seemed to carry someweight with board member Sam Gon.

“I appreciate that you’re present. Givensome of the testimony that we’ve receivedspeaking of historical disappointments ... yoursaying, ‘yes, give this a chance,’ is important,”Gon said.

Bryan testified that his mill will initiallyprovide 36 jobs and over the course of threeyears provide as many as 64.

“We now have an appropriately zoned,well-suited site for the operation,” he said.Dan Fuller of Fuller Smith Capital Manage-ment added that his company is prepared tofund the project through an “equity capitalstructure” without any contingencies.

! ! !

Special Subzone ProposedFor Kaua‘i Ahupua‘a

On May 10, the Land Board added aneighth special subzone to the Conserva-

tion District at the request of the NationalTropical Botanical Garden (NTBG). TheLawa‘i Kai subzone encompasses what’sknown as the Allerton Garden, a long narrowstrip of about 110 acres in south Kaua‘i frontingLawa‘i Bay. It also includes submerged lands.

The fast land is owned by the AllertonGarden Trust and managed by the NTBG asa center for public education and botanicalresearch. The new subzone allows the NTBGto manage the garden without having toacquire a Conservation District Use Permit

subzone is the first step in implementing themaster plan. “[We’ll be] working withDOBOR and DAR on what are the kapu weplace in this area. That’s what has taken sevenyears. If we were just trying to create anMLCD [Marine Life Conservation District],that would have been a different process,”Wichman said.

! ! !

Fish Cage ProjectGets Extension

The Land Board has chosen to ignore itsprevious recommendation that no fur-

ther extensions of construction deadlines begiven to Hawai‘i Ocean Technology, Inc.(HOTI), which years ago proposed con-structing floating open-ocean fish cages offthe Kohala coast to grow tuna.

HOTI received a Conservation DistrictUse Permit from the Land Board in October2009. It was supposed to have deployed itsfirst cage a year later. Permitting delays,however, led HOTI to ask the Land Board foran extension of its initiation and completiondeadlines, which it received in March 2012on the condition that no further extensionsbe granted.

At the Land Board’s April 26 meeting,OCCL administrator Sam Lemmo said thataside from a major letter-writing campaignin opposition to the project, he could find noreason in the record why the Land Boardvoted in March 2012 to deny further exten-sions beyond the one granted then.

Lawa‘i Kai Bay

from the Land Board for every activity. In-stead, the DLNR’s Office of Conservation andCoastal Lands and other agencies would re-view any proposed activities to ensure theycomply with the recently drafted Lawa‘i KaiManagement Plan and Master Plan.

The plan seeks to establish the South ShoreKaua‘i Ocean Recreation Management Areafor all of Lawa‘i Bay and unencumbered statelands as well. According to an OCCL staffreport, to fully implement the portion of theplan dealing with Lawa‘i Bay, NTBG may alsoneed to seek amendments to rules relating tothe DLNR’s Land Division, its Division ofBoating and Ocean Recreation (DOBOR),and its Division of Aquatic Resources (DAR).

“This is the first time someone has everproposed creating a special subzone involvingnot only their own private land, but includingadjacent submerged land. They’re looking atan ahupua‘a perspective,” said OCCL admin-istrator Sam Lemmo. “Everybody in the com-munity seems to be on board with the ac-tions,” he added. Public hearings on theproposed rule change were held in May 2012.

NTBG director and CEO ChipperWichman explained that the goal of thesubzone is to try to reconnect the managementof the ocean with management of the land.

“We’re trying to create a holistic vision. ...Our community needs to step up and takeresponsibility for this,” he said, noting that theproperty contains ancient burials and othercultural sites. The garden also contains morethan 860 species and varieties of floweringplants.

Wichman said the establishment of the

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“The ‘no more extension’ language hasbeen reserved for entities where it’s clearthey’re speculating or not pursuing theproject,” Lemmo said “I don’t see that evi-dence in this case.”

For years, HOTI has been waiting for theU.S. Army Corps of Engineers to issue apermit. Opponents say the delay has beenself-induced because the company’s projectkeeps changing.

HOTI CEO Bill Spencer testified that theproject may, indeed, not be the same asinitially proposed. He had originally pro-posed building 12 cages, but the Army Corpssaid it will only permit one.

What’s more, he added, “There’s beennew inventions, new technologies to allowthis project to be more effective and safer forthe environment.”

“I think it would be unwise to allow thisapplication to become null and void at thistime,” Lemmo told the board. Last April,HOTI received its National Pollutant Dis-charge Elimination System permit from thestate Department of Health. And its lease forthe site was finalized in February.

“The Army Corps, they’ve been telling us‘two weeks’ since May of 2010,” Spencer said.

Although members of the North Kohalacommunity submitted a petition with 1,700signatures against open-ocean aquaculture,Big Island Land Board member Rob Pachecosaid, “It’s not my place as a board member tobring in opinions about what I think is rightand wrong when I have legislation, foodsovereignty mandates. ... We’re here to makesure we’re working through the process cor-rectly.”

Pacheco asked Lemmo whether HOTIwas responsible for the delay.

“I can’t say that I personally am cogni-zant,” Lemmo said. “He may have donesomething that caused the delay with theArmy Corps. ... I’m not going to make anyspeculation until I see what the Army pro-duces.”

In the end, the board chose to grant theextension.

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Ship Grounding FundsTo Help Control Seaweed

As much as $600,000 of the $8.5 millionreceived for reef damages caused by the

U.S. Navy’s USS Port Royal’s 2009 ground-ing off the Honolulu International Airportmay be used to continue invasive seaweedcontrol in Kane‘ohe Bay. Specifically, theUniversity of Hawai‘i plans to use “supersucker” vacuums to clean Kappaphycus andEucheuma algae from coral heads and put inplace more native sea urchins to preventfurther infestation.

The Land Board approved the expendi-ture at its April 26 meeting.

The work has been going on for about adecade with a hodgepodge of funding sources,but recently ran out of money. The Port Royalfunds will provide the project some continu-

ity until another source of funds is found,DLNR water deputy William Tam told theLand Board.

“Hopefully, we’ll not use this wholeamount,” Tam said, adding that the depart-ment may, at some point, seek to fund theproject with the $38,000 settlement from theCape Flattery grounding in 2005.

! ! !

Two New Board Members,One Still-Vacant Seat

The Land Board’s Kaua‘i seat will remainempty come July. No one was nomi-

nated to fill the vacancy left by Ron Agor in2012.

Ulupalakua Ranch’s James Gomes willreplace outgoing Maui member Jerry Edlao.Contractor Reed Kishinami will take O‘ahumember John Morgan’s seat.

—Teresa Dawson

On that date, William Aila will be thefeatured speaker at the annual fund-

raising dinner for Environment Hawai‘i. Ailais the chairman of the Board of Land andNatural Resources.

The dinner and silent auction will be heldat the ‘Imiloa Astronomy Center in Hilo.

Tickets are $60 per person, which includesa $20 tax-deductible donation to Environ-ment Hawai‘i. A table of eight may be re-served for $500.

Save the Date: August 23.

To make reservations, call our office at 808 934-0115.Seating is limited; please reserve early.

William Aila