NOT DEAD YET

NOT DEAD YET: We’ve been getting a bunch of emails lately from Larsen's (Lepeuli) Beach activist Richard Spacer with his hair on fire asking us to say something again about the battle against land-owner Waioli Corporation and rancher Bruce Laymon to preserve the easier- and traditional- access to the beach which has appeared all but lost lately with the issuing of Lymon’s Conservation District Use Permit (CDUP).

We told him that what we had discovered is that there was a split among many in the environmental community- including some who may be way too close to Waioli Corp to have full objectivity on the matter- with some claiming that easy access to all areas (and specifically this one) may not be the best thing lest we “love the place to death”... which many others think is code for “keep the naked hippies out”.

So we’re glad to hear the news today that, as usual, it’s Sierra Club- along with the Native Hawaiian Legal Corporation (HLC) and the Surfrider Foundation- to the rescue and they’re ready to continue the battle and appeal the decision to grant a Conservation district Use Permit (CDUP) to Lymon to construct a fence across the traditional access and allow cattle to graze just above the beach.

But they really do need more cash to pay HLC than the SC or SF have provided thus far. As the letter we received says:

A coastal trail on Kaua`i, created hundreds of years ago by Hawaiians treading the path by foot, will be obliterated by cattle in a matter of months unless we act now.

Please read below to see how you can help preserve public access and set a precedent in protecting trails.

A traditional trail following the coastline leading to Larsen's (Lepeuli) Beach is on the verge of being turned into pasture land for a commercial cattle enterprise which will block public access to and along the trail. This ancient (alaloa) trail has been used by Hawaiians for subsistence fishing, gathering and cultural practices for many generations.

This past week the Department of Land and Natural Resources inappropriately granted Waioli Corporation’s lessee a permit for cattle fencing in 18 acres of conservation land next to the beach. They already have cattle operations in the adjacent 600 acres. This decision will have environmental impacts and threaten coastal and cultural resources.

Fortunately, Native Hawaiian Legal Corporation will appeal DLNR's decision, on behalf of a Native Hawaiian, provided they receive funding by Thursday, February 25th. The Kaua`i Group Sierra Club and Surfrider Foundation have contributed toward the appeal, but a significant amount still needs to be raised.

We're asking people who care about preserving public access on traditional trails, who can make a contribution of any amount, to please help now.

Please make your check payable to "Sierra Club". If you wish to make a sizeable donation and want it to be tax deductible, make check payable to "Sierra Club Foundation". All checks to mailed to:

Sierra Club Kaua`i Group
PO Box 3412
Lihue, HI 9676

In addition, if you want to help in other ways please email: AuntyLokeWouldGo(at)gmail.com

Mahalo!

The Kaua`i Group Sierra Club

Attached to the letter was an amazingly complete and detailed letter listing all the deficiencies in and discrepancies with Hawai`i Administrative Rules (HAR) contained in the permit which the Department of Land and Natural Resources (DLNR) ignored in granting it.

It’s pretty long but worth the read so we’re posting the entire Jan. 8th Sierra Club letter to DLNR. It really puts together the way the sham of due process and the outright illegal nature of the granting of the permit occurred and includes all the reasons why the permit should be rescinded.

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Sierra Club Kaua`i Group of the Hawai`i Chapter

January 8, 2010
Laura H. Thielen Samuel J. Lemmo, Administrator
BLNR Chairperson Office of Conservation & Coastal Lands
Department of Land & Natural Resources Department of Land & Natural Resources
P. O. Box 621 P. O. Box 621
Honolulu, HI 97809 Honolulu, HI 97809
SUBJECT: Conservation District Use Application (CDUA) KA‐3525; TMK (4) 5-1-003:003
Lepeuli, Kaua`i – Paradise Ranch, LLC
Dear Ms. Thielen and Mr. Lemmo:
The Sierra Club Kauai Group (SC) is extremely concerned that many of the requirements prescribed by HAR Chapter 13-5 are missing from the CDUA referenced above. In addition, many statements in the application do not bear up under examination of the facts. This letter provides further detail, supplemental to our October 23, 2009 letter to OCCL. The application should be denied based on reasons enumerated herein.

1. A Department Permit was not appropriate. According to HAR 13-5-40 and HAR 13-5-
33(j) a board permit with a public hearing should have been required (as requested in SC’s October 23, 2009 letter) because it involves: (1) land use for commercial purposes (ranching) and (2) that public interest warrants a hearing based on significant impacts.

2. The CDUA is not “complete” according to HAR 13-5-31(c) because many Adjacent Property Owners were not notified. Failure to notify, as required on page 14 of the Department’s CDUA Instructions, is one reason why this application incomplete.

3. Failure to comply with Required Attachments, Item 2 - Maps: Submit detailed contour maps for ocean areas and areas where slopes are 20% or more according to CDUA Instructions on page 2 and HAR 13‐5‐31(a). The CDUA survey map does not include elevation contours as required. From the plateau, a series of hills descend to the beach. The sloping terrain does not afford appropriate pasturage. Severe scarping already occurs in areas and cattle will exacerbate the erosion. Within the 20‐acre Conservation District, the degree of slope exceeds forty percent which is why it falls within the “Limited Subzone”. Any reference to slope is omitted in the application, but it is very relevant because the proposed use is a fence ‐‐ a structure which constitutes development.

4. Of the proposed fence replacement, only 1/3 is an “existing fence”. Only one-third of the proposed fencing was “existing”. Within the 20.7 acre Conservation District, which is primarily coastal scrub, only 3-acres might have been pasture. The pre-existing fence has not been in continuous use pursuant to Non‐conforming Shoreline Structures, HRS 13-222-19.

5. Failure to comply with Required Attachments, Item 2 – Maps: Provide a Certified Shoreline Map for shoreline parcels (see CDUA Instructions on page 2). The most recent certified shoreline was approved in 1978. To waive the certified shoreline requirement in lieu of the 110’ setback agreed to by the applicant is not prudent based on 30‐years of erosion (as much as .5‐ft per year in some areas). Further, evidence of the debris line indicates that the survey stakes did not correctly identify the high wash of the waves, especially at the property’s north end.

6. A Description of Coastal Hazards was Omitted in the CDUA. The applicant failed to describe the shoreline erosion that prompted subdivision of this property in Land Court Decree Application No. 1161, March 2, 2000.

7. The Unimproved Existing Road on the Beach Encroaches on State Property. The CDUA survey map indicates “existing roads”. Portions of this roadway are located on the sandy beach, within the shoreline and on state property. Requiring a certified shoreline would verify this encroachment.

8. Reference to Lepeuli Stream was omitted in the CDUA. The stream channel is a distinct topographic feature. It was not identified in the application or on the survey map. Environmental impacts of grazing in proximity to the riparian zone of Lepeuli Stream were not examined.

9. The NRCS Conservation Plan does not identify the Conservation District (Field 12) for “Prescribed Grazing” (see Enclosure A). This fact was omitted in the CDUA. According to HAR 13-5-42(19): Use of the area shall conform with the program of appropriate soil and water conservation district or plan approved by and on file with the department, where applicable. In the Plan, grazing is disallowed in the Conservation District because the land is unsuitable; it is: a) susceptible to erosion due its slope and shallow soil profiles. b) designated by FIRM Maps as zone VE -- subject to wave action, high‐velocity flow, and erosion during the 1000 year flood.

10. The CDUA did not provide written justification to deviate from the NRCS Plan according to HAR 13-5-42(c). Any deviation from the standard conditions (i.e. HAR 13- 5-42(19) -- described above -- must be supported by a satisfactory written justification stating: (1) the deviation is necessary because of the lack of practical alternatives; (2) the deviation shall not result in any substantial adverse impacts to natural resources; and (3) the deviation does not conflict with the objective of the subzone. No justification was provided. Grazing in Field 12—the 20.7 acres of the Conservation District was not permitted by the NRCS Conservation plan. The applicant has practical alternatives for pasturage within the other 600+ acres he leases. Cattle do not benefit coastal ecosystems.

11. The Brush Management Plan to enhance wildlife habitat fails to identify what species are to be “enhanced”. Brush management as a tool to “eliminate the frequency of trespass transients” that are “camping illegally” is not the purpose of an NRCS conservation plan or a CDUP – that is the jurisdiction of law enforcement.

12. Existing Fauna was not Described and the Wildlife Management Plan was omitted from the CDUA (although it was referred to several times in the application). No list of wildlife species to be benefited is provided in the CDUA. There is no evidence corroborating the applicant’s need for “brush management for wildlife purposes”.

13. Endangered and threatened species were not adequately identified in the CDUA. New evidence regarding the presence of endangered and threatened species needs to be included in this CDUA. An Hawaiian monk seal (endangered species) was born at Larsen’s Beach and 94 green sea turtles (a threatened species) hatched on the beach Fall 2009. Migratory birds of concern – the Laysan albatross – nest on the property. Impacts of fencing and cattle on these species was not addressed in the application. The NRCS Conservation Plan should be updated as well to identify these species.

14. The CDUA Failed to describe Existing Flora and provide general locations and types on a map entitled resources as required in the application. There are a number of threatened medicinal plants species, the ihi, ilima, and pohinahina. The endangered Hawaiian ground cover, ulei, and the native pohuehue are also found in this area. These species will be decimated once cattle are introduced. When pesticides or herbicides are introduced, the gathering of la`au that grow in this coastal area will have to cease because of contamination by proximity.

15. The CDUA fails to comply with HAR 13-5-22 and 23 - in the Limited Subzone, “Natural vegetative plant cover, where disturbed, shall be restored or replaced with endemic or indigenous planting.” The CDUA states that the applicant will remove trees and undergrowth to encourage reestablishment of grasses, however, no grass species have been identified for preservation or reestablishment. Only naupaka is designated for “protection” in the Conservation District but this is the same location where the applicant wants to graze cattle.

16. Tree replacement should be required in the CDUA with a one-for-one replacement of trees 6-inches or more in diameter. The species and size of those trees to be removed and the species and size of the replacement trees should be identified in the CDUA. The backshore is covered with beach heliotrope, naupaka, milo, and false kamani.

17. The CDUA failed to identify the historic, archeological and cultural sites within or near the parcel. The application denied that any Hawaiian habitation occurred on the property after the 1850’s despite readily available evidence that: - There were 35 acres of lo`i kalo agriculture in Lepeuli according to Kilauea Sugar Plantation’s 1932 map. Most were located in the SMA and Conservation District along stream channels or on auwai and next to native Hawaiian habitation (kuleanas).
- The 1835 census recorded a population of 85 adults and children in Lepeuli.
- Kuleana claims for Lepeuli are found at www.ulukau.org
- Known cultural resources in the coastal zone area of the Conservation District include: streams, trails, coral reef, fishing areas, a possible fish trap, historic cultivation areas and house sites, a burial, limu gathering areas, sandy beach, turtle nesting area, native plants and possible fish sighting spots (kilo i`a).

18. The CDUA failed to describe how the proposed project would impact the historic resources and Hawaiian cultural resources, usage and rights in or near the project area. It omitted any discussion of traditional and customary Hawaiian practices for subsistence, cultural, medicinal or religious purposes that take place in or near the project area. It erroneously states that there is no record that the property was being used by native Hawaiians for their cultural beliefs, practices or resources (page 6) as it was under private ownership since the 1850’s. Evidence of kuleana lands and taro lo`i dispute that assertion.

19. Archeological Sites at Lepeuli are not acknowledged in the CDUA. Based on the quantity and significance of finds documented in the archeological inventory surveys for the adjacent coastal properties, a study should be required. A Kaua`i resident reported to SHPD on December 17, 2009 a new archeological site on the property having been exposed by erosion from recent high wave events and storm runoff. A complex of rock walls, terraces and a possible subsurface house overlooking the Lepeuli Stream channel have also been reported by residents and photo documentation is available.

20. There is no Cultural Resources Assessment in the CDUA. Practitioners of Hawaiian culture who live in, have experience with, or have knowledge about the affected district were not contacted for this application. Based on historic documentation about coastal habitation in Lepeuli and the well-known Ka`aka`aniu Reef which is a valued resource for throw-netting, spear-fishing, pole fishing, seaweed harvesting, etc., a cultural resource assessment is warranted.

21. Traditional and customary native Hawaiian rights exercised in the Conservation District will be affected or impaired by the proposed action. By law, such traditional and customary rights shall include, but not be limited to the gathering of hihiwai, opae, o`opu, limu, thatch, ti leaf, aho cord, and medicinal plants for subsistence, cultural and religious purposes.
a) The State and its agencies are obligated to protect the reasonable exercise of customarily and traditionally exercised rights of Hawaiians to the extent feasible;
b) The agencies are obligated to make an assessment of impacts upon traditional and customary practices of native Hawaiians that is independent of the applicant;
c) The independent assessment must include the following:
(1) the identity and scope of “valued cultural, historical, or natural resources” in the area, including the extent to which traditional and customary native Hawaiian rights are exercised in the affected area;
(2) the extent to which those resources – including traditional and customary native Hawaiian rights will be affected or impaired by the proposed action; and
(3) the feasible action, if any, to be taken by the agency to reasonably protect native Hawaiian rights if they are found to exist.

22. No legal basis is provided for the assertion that no prescriptive rights accrue over lands registered with the Land Court of the State of Hawaii. It is in the interest of the public, that the State provide definitive legal documentation as to whether its right to the traditional and customary trail has been relinquished.

23. Consideration of Traditional Hawaiian Values and Native Hawaiian Access was Omitted from CDUA. HRS 205A-2(b)(2)(A) establishes the objectives and policies of the coastal zone management program and provides that the objectives should, -Protect, preserve, and where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture.- Evidence of settlement patterns as of 1932, demonstrate that the coastal area was inhabited by Hawaiians. And, the coastal alaloa was the means by which they would walk from lo`i to kuleanas. The applicant’s denial of any native Hawaiian cultural resources contradicts testimony of neighbors, community organizations, and cultural practitioners. Attached (Enclosure B) is the March 2, 2007 letter from Curt Cottrell, NAH Program Manager to Patricia Hanwright, the adjacent property owner in the ahupua`a of Ka`aka`aniu, stating that ”DLNR has determined that the historic trail identified on registered maps is still owned by the State pursuant to Chapter 264-1, Hawaii Revised Statutes.”

24. The CDUA failed to describe the traditional use of the “existing trail” behind the beach which is identified as “existing trail” on the CDUA survey map.
a) Hiranaka Surveyor’s analysis of Registered Map No 432 dated 1833, depicts the approximate location of Koolau Road. This is clearly not the coastal trail when compared with the government Survey Registered Map No 1395 of the Island of Kauai, dated 1878 (submitted by SC) documenting the coastal alaloa and Koolau Road. Both run parallel to the coast and Koolau Road is mauka of the coastal trail.
b) Identified as State Archeological site No. 50-30-04-1034, the alaloa is “an important access route in both traditional and historic times”.
c) The statement that the existing trail “appears to have been created” by current day beachgoers is contrary to historic evidence. This coastal right‐of‐way provided native tenants and travelers access between kuleana lands, cultivating fields and ahupua`a linking the past to present use. The coastal trail through Lepeuli, which connects the adjacent ahupua`a of Ka`aka`aniu and Waipake has been used continuously by cultural practitioners and the public.
d) Fencing will suppress, limit and restrict native Hawaiian rights to use the traditional and customary trail for access to and along the shoreline for subsistence gathering of food and plants for cultural and medicinal purposes.

25. The existing County right-of way is currently under scrutiny by county officials due to several discrepancies. An apparent boulder fall on the original trail decades ago and a boundary fence blocking access to that trail are prompting the county to conduct a survey to verify whether the existing public trail alignment corresponds to the metes and bounds in the deed for the county’s purchase from Waioli Corporation in 1979. The path currently maintained by the county is apparently sited on Waioli’s private property. Sierra Club Kaua`i Group recommends that the OCCL staff and Board members come to Kaua`i for a site visit to fully understand the threats and impacts to the resources that the Coastal Zone Management Act seeks to protect.
The applicant has not met the burden of demonstrating that the proposed land use is consistent with the criteria of HAR 13-5-30(c). Procedurally, many of the requirements prescribed by HAR Chapter 13-5 are missing from the CDUA. Furthermore, the facts would have been flushed out had a Board permit been sought instead of a Department permit which does not provide for a public hearing. As noted in SC’s October 23, 2009 letter, a hearing is warranted based on significant impacts and public interest.
Lastly, we find that the November 11, 2009 letter to SC from Ms. Nishimitsu, the applicant’s representative, is wholly unsatisfactory in addressing the concerns outlined in our letter to OCCL on October 23, 2009. Procedurally, the department should not have to rely on information that is incomplete, inaccurate or false. And, if approved, the permit may need to be modified, suspended or revoked after-the-fact in accordance with HAR 13-5-42 (11).

It is paramount to preserve the integrity and fragile nature of the Lepeuli coastal resources, species and cultural assets -- they deserve the conscientious stewardship afforded in Conservation District permit regulations, in which this application has fallen short. CDUA KA‐3525 should be denied.

Sincerely,
Judy Dalton and Rayne Regush
Sierra Club Executive Committee
Kaua`i Group, Hawai`i Chapter

cc: Ron Agor, Kaua`i Rep, BLNR
BLNR Members
Bob Schleck & Board Members, Waioli Corporation
Mayor Bernard Carvalho
Kaua`i County Council
Ian Costa, County of Kaua`i Planning Dept.
Kai Markel, OHA
Lex Riggle, NRCS
Robert Harris, Sierra Club Hawai`i Chapter