GET BACK JACK: More than two years ago in May and June of 2009 PNN posted a series of six articles detailing the alleged illegal diversion of Moloa`a stream which, it appears, at least contributed to the Ka Loko Dam break if not actually being the proximate causal event.
The diversion- allegedly done by landowner Jimmy Pflueger- caused Moloa`a stream to be diverted into the reservoir according to documents provided by Hope Kallai, a Moloa`a farmer who says she has been denied water to her property.
As we wrote in compiling the articles on our left rail:
It’s not Chinatown Jake, but it’s close.
About 10 years ago “someone” dammed up Moloa`a stream and re-built the long-defunct and dilapidated Moloa`a Ditch, diverting almost all the water that serves Moloa`a Valley through three tunnels that lead to Ka Loko Ditch.
From there the water flows into a system of underground pipes that serves Jimmy Pflueger’s properties in the Pila`a/Waiakalua/Wailapa area and with the excess dumped into the Ka Loko Reservoir which gave way killing seven people in 2006.
And despite two years of begging the Department of Land and Natural Resources (DLNR) to at least inspect the apparently still active diversion, no action has been taken.
But Kallai hasn't given up and today we present her latest appeal to new DLNR chief William Aila- which she plans to present at the DLNR "listening sessions" scheduled for later this month- detailing her thus far futile efforts to regain what she calls her "stolen" water.
----
17 Aug 2011
Hope Kallai
Malama Moloa`a
POB 655
Kilauea, HI 97654
Lokahipath2(at)live.com
Chairperson William J. Aila, Jr.
Department of Land and Natural Resources
Kalanimoku Building
1151 Punchbowl Street
Honolulu, HI 96813
William.J.Aila@hawaii.gov
DLNR@hawaii.gov
DLNR2011ListeningSessions@hawaii.gov
Re: Topic For Listening Session 2011 Kauai
Remove the Moloa`a/Kalua`a Stream Diversion
Moloa`a Forest Reserve, Kauai
Aloha e Chairperson Aila:
Mahalo for taking the time to come to Kauai again and especially taking the time to listen to us. I have written ridiculous amount of correspondence to DLNR without response. Mahalo for changing this pattern.
Moloa`a Stream was a perennial stream; it always had flowing water - enough to support several hundred people. About a decade ago, the flow in Moloa`a Stream changed. The stream would not rise during heavy precipitation events; sometimes it rose when it was not raining mauka. There were unexplained dirty water events both brown water and grey water. There were no flushing flows to clear out the sand berm at Moloa`a Stream mouth. Moloa`a Stream began being seriously diverted about 2001, continuing today.
The kumuwai of Moloa`a is in the Moloa`a State Forest Reserve, mauka of Ka Loko Reservoir. The Moloa`a system is fed by perennial tributaries of Kalua`a Stream, including Kanalohewahewa, stemming from a perennial bog. The ahupua`a of Moloa`a has no community water system, either potable or irrigation. Recently, our family’s water well went dry. After 10 years of an un-permitted stream diversion removing our groundwater aquifer, we had to dig 150’ deeper (at $55/ft) to find water to be able to live and farm on our 5 acres..
Two different individuals complained to CWRM before our ahupua`a-based community group did in 2001(Godbey Exhibits: DLNR 1285 to DLNR 1296, EPA 001-033), about the diversion of upper Moloa`a Stream. A formal Stream Resolution Complaint No. 01-12 was filed Oct 3, 2001 by Daniel Garner, complete with maps and photos but Mr. Pflueger’s attorney responded that water does not run upgrade and that the diversion would originate mauka in the State Forest Reserve (DLNR 1297-1303). An offer was made to escort state representatives to the alleged “landlocked” State Forest Reserve. As Mr. Garner told CWRM in 2001, “growing taro with no water is difficult, if not impossible” and he abandoned his lo`i kalo on Moloa`a. When is CWRM going to act on the 3 Moloa`a Stream diversion complaints?
The newly released KalokoPhase II Dam Report documents exactly where in the forest the ditch originates, by GPS measurement. The 2009 Kilauea Irrigation Company Report (Draft April 2009, Final October 2009) maps and documents when the diversion was constructed (about 2001). It further documents how this un-permitted, un-engineered, illegal 7’ ditch terminates into an 8” underground irrigation system on Mary Lucas Trust lands, goes through a 90 degree angle, then is reduced from 8” to 6”. The KICO report maps how the ditch has overflown into Kaloko Reservoir, causing “Overflow Erosion Channels”. The construction of a new, additional inflow into Kaloko is an alteration of appurtenant dam works. This is illegal and needs to be removed immediately. Moloa`a needs it’s water. KICO has been dumping excess diverted (stolen) water into the ocean in the area of 4170 North Waiakalua for years, all to the detriment of the Moloa`a ahupua`a. When are the alterations to the Kaloko system going to be removed?
We have filed a Stream Resolution Complaint - the 3rd on Moloa`a . We have asked for Flow Standards to be established for Kalua`a and Moloa`a Streams. We filed a Complaint Dispute Resolution Response request on 14 March 2011. We have gotten no resolution yet to our steam diversion complaints. We have gotten no responses. What are we doing wrong? How can CWRM keep permitting groundwater well withdrawals without understanding the water budget of Moloa`a?
We cannot wait another decade for our stream flow to be restored. What can we do to remove this illegal diversion from taking and selling stolen Public Trust water from the State Forest Reserve (designated for watershed protection)? The KICO inflow/infiltration study documents how the turn of one valve returns the stolen water into the Moloa`a ahupua`a, but the entire ½ mile ditch and new headwaters impoundment, in trespass in the forest, must be removed. Moloa`a Stream and Kalua`a bog, (one of the last low elevation bogs in Hawaii) need to be restored.
The BLNR voted to revoke Revocable Water Use Permit S-6240 to Kilauea Irrigation System in September, 2007 but left the termination date to be decided by DLNR staff (. I previously requested the termination of Revocable Permit S-6240 (2009 June 3 Termination of Revocable Permit S 6240), but have not received an answer yet. Can you please tell me the status of this permit? Does KICO have insurance? According to the Phase II report, KICO is failing to maintain the Kaloko Ditch from Pu`ukaele Stream. Are they relieved of this maintenance kuleana? Has the hazard rating of Kaloko been determined? Is there an Emergency Action Plan yet?
We have written many letters about the diversion of the upper Moloa`a Stream system, but have gotten no responses. We warned people about these un-permitted diversions mauka of Kaloko before the Kaloko dam breach (EPA 000034- . Dam Safety inspectors were not sent out in response to a flood that destroyed a bridge (2009 Jan 26 State Ended Safety Inspections Before Hawaii Dam Collapsed). 1 week before 8 people died, the EPA and DOH were sent to Kaloko (EPA 000064-000105). DOH Environmental Health Specialists and the Enforcement Section Supervisor didn’t notice the lack of a spillway -they checked silt fences. Nobody checked the stream diversions mauka of Kaloko (-the ditch goes underground on Mary Lucas Trust land) which had been reported to the state for 5 years by then. They were more interested in “closing the loop” (EPA 000045, EPA 000050) and checking Pila`a Consent Decree mitigation remediation actions.
We’ve been told:
“You cannot go up there - it’s private land.”
“You’re crazy - Moloa`a and Kaloko are not connected,”
“Don’t worry, If Kaloko blows, it’ll take out Kilauea side, not Moloa`a.:
“It’s Pflueger’s land, he won’t let the state go there.”
‘Moloa`a Ditch never went into Kaloko - only into Kaloko ditch above the flume.”
“Moloa`a Ditch went pau in the 1960’s. Only carried water during high rain storms. Kilauea Sugar quit maintaining it before plantation went pau.”
“Moloa`a ditch doesn‘t exist anymore. It is functionally obsolete.”
“We have no record of this ditch. We cannot talk about it.}
“We are not interested in pursuing another Clean Water Act violation against Jimmy Pflueger.”
“We have to get Jimmy Pflueger’s permission to inspect the breached dam..”
“Kaloko never had a spillway.”
“The dam is not a dam anymore. Too small. No more state jurisdiction.””
“Water does not flow upstream.”
“I’ll perform my own Phase II investigation, but the it will be private.”
“We’re looking into it.”
“We cannot discuss this - it’s under litigation.”
On December 22, 2006, Attorney General Wynoff wrote Jimmy Pflueger about Kaloko:
Third, we are informed of a second source of water to the reservoir, of unknown origin. Please provide all available information as to this source, including date of installation, plans and specifications for its construction, origin of the water, any documentation as to authorization for use or diversion of the water, and your plans (if any) to cease and desist receiving water from this second source.
There’s plenty information about this un-permitted ditch now. There is no authorization for the use of this water. Why does Jimmy Pflueger get to decide when (if ever) he plans to cease and desist receiving and selling stolen water? When is the State going to remove this illegal, un-permitted, un-engineered ditch system and restore the flow of Moloa`a/Kalua`a Streams back into the Moloa`a ahupua`a? Our downstream neighbor had to water the o`opu in what used to be Moloa`a Stream with a garden hose from his well to keep them alive. The o`opu need their water. We need our water back now. We cannot wait for water pending litigation against Jimmy Pflueger. Nobody downstream is safe until these un-engineered ditches are removed. Ua hewa i ka wai. Nobody has been listening.
I realize this has gone on for a decade under the previous administrations, before being presented to you, but I hope you can realize how the piracy of public trust resources cannot be allowed to continue. Mahalo for taking quick action and putting an end to this decade of deception and denial. We all live downstream.
Hope Kallai
Showing posts with label DLNR. Show all posts
Showing posts with label DLNR. Show all posts
Wednesday, August 17, 2011
Monday, June 20, 2011
(PNN/gw?) REJECT EXTORTION, LIES, INCOMPETENCE; VOTE "NO" ON KIUC'S BALLOT MEASURE
PNN: REJECT EXTORTION, LIES, INCOMPETENCE; VOTE "NO" ON KIUC'S BALLOT MEASURE
Please vote "no" to the ballot measure that recently arrived in your mailbox and send KIUC a message that subterfuge, laziness and a lack of due diligence is not acceptable.
The issue is not hydro-electric power development as they would have you believe but Kaua`i Island Utilities Co-op's (KIUC) ill-considered decision to engage in the Federal Energy Regulatory Commission (FERC) process despite the state Department of Land and Natural Resources' (DLNR) opposition to the use of FERC in Hawai`i- opposition which dates back to a previous attempt to use FERC in the 1990's.
Not only did the KIUC board of directors either ignore or fail to discover the state's opposition but they were apparently unaware of a US Supreme Court case, California vs. FERC, which would give FERC the power to override the unique water use laws of Hawai`i.
The FERC process is so odious that Senator Daniel Akaka (D- HI) introduced legislation to remove Hawai`i from FREC control.
The KIUC board of directors was sold a bill of goods by new KIUC CEO David Bissell apparently, whether by malpractice or malfeasance, without discovering these factors and now has used lies and an overwhelming expenditure of co-op funds for a PR campaign to try to make people believe that they must vote "yes" in order to ever develop hydroelectric facilities on Kaua`i.
Nothing could be further from the truth. But the board has continued to try to make up for the lack of attention to their true fiduciary responsibilities- to serve the members of the co-op- and instead protect themselves from being accused of blowing, by some reports, up to $400,000 which has already been spent.
If KIUC members don't stop the process here it could cost KIUC members even more in defending a planned intervention by the state attorney general’s office as well as planned lawsuits by opponents federal control of Hawai`i water resources.
According to a Pacific Business News interview with William Tam, deputy director for water at DLNR, Tam threatened the intervention saying that
"the state does not want Hawai‘i’s in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams. Hawai‘i stream-flow standards should not be decided 5,000 miles away where it’s very hard for the people of Hawai‘i to effectively participate.”
In the Supreme Court of the US (SCOTUS) case the justices ruled that FERC's rules trump state regulations if the two conflict, despite assurances from Bissell and KIUC attorney David Proudfoot that all state regulations will be followed.
The fact is that Bissell, Proudfoot and the board have refused to directly engage with opponents on the specifics of the FERC process raised by Tam, Akaka and the SCOTUS ruling, rather taking a paternalistic "trust us" tact.
But trust is difficult if not impossible given KIUC's track record and the surreptitiousness of the vote to engage Free Flow Partners- the company applying for the FERC permits with which KIUC has a so far secret "memorandum of agreement."
Though they promise to engage "stakeholders" from now on, not only is the damage to any trust already done but they have made it clear that on the key issue of FERC involvement they will not budge no matter what future discussions with the community yield.
As a matter of fact Bissell and Proudfoot have admitted using the fact that they controlled the "voters' guide" that came with the ballot to misrepresent opponents' views.
An article in the local Kaua`i newspaper states that:
KIUC legal counsel David Proudfoot acknowledged the petition was ultimately about FERC issues, but indicated the co-op was not required to state the position of the opposition.
“There is a difference between the ballot, which needs to be neutral, and which is neutral, and the position of KIUC and its board,” Proudfoot said. “KIUC and its board, who were elected by its members, they obviously believe in the process they are using and they’re entitled to support it. They are not required to help someone else support their decision, that they don’t like, with the members’ money.”
(Opponent Pat) Gegen asked, “And that’s a democratic process?”
“Yes, it is,” Proudfood said. “Of the 250 members that signed the petition, if they want to be able to PR their case, they can do it as much as they want, but it’s not up to KIUC, who doesn’t believe in their position, to pay their money for it. It’s no different than any political democratic process. If you’re a republican, you don’t pay the democrats for their publicity. They pay their own and that’s why the Voters Guide is very carefully labeled as the KIUC Voters Guide.”
It's apparent that the extortionate efforts by KIUC to misrepresent the issue by threatening Kaua`i with a "vote yes or you will never have hydro" lie are, in and of themselves, a reason for continued mistrust.
In fact, an effort to recall all board members and fire Bissell and Proudfoot is being discussed by opponents of the decision to engage with FERC.
Don't knuckle under to KIUC's threats to deny us hydroelectric projects or believe the prevarications, misrepresentations and efforts to overwhelm us with false PR statements by voting "no" on the KIUC FERC "hydro" ballot measure.
Please vote "no" to the ballot measure that recently arrived in your mailbox and send KIUC a message that subterfuge, laziness and a lack of due diligence is not acceptable.
The issue is not hydro-electric power development as they would have you believe but Kaua`i Island Utilities Co-op's (KIUC) ill-considered decision to engage in the Federal Energy Regulatory Commission (FERC) process despite the state Department of Land and Natural Resources' (DLNR) opposition to the use of FERC in Hawai`i- opposition which dates back to a previous attempt to use FERC in the 1990's.
Not only did the KIUC board of directors either ignore or fail to discover the state's opposition but they were apparently unaware of a US Supreme Court case, California vs. FERC, which would give FERC the power to override the unique water use laws of Hawai`i.
The FERC process is so odious that Senator Daniel Akaka (D- HI) introduced legislation to remove Hawai`i from FREC control.
The KIUC board of directors was sold a bill of goods by new KIUC CEO David Bissell apparently, whether by malpractice or malfeasance, without discovering these factors and now has used lies and an overwhelming expenditure of co-op funds for a PR campaign to try to make people believe that they must vote "yes" in order to ever develop hydroelectric facilities on Kaua`i.
Nothing could be further from the truth. But the board has continued to try to make up for the lack of attention to their true fiduciary responsibilities- to serve the members of the co-op- and instead protect themselves from being accused of blowing, by some reports, up to $400,000 which has already been spent.
If KIUC members don't stop the process here it could cost KIUC members even more in defending a planned intervention by the state attorney general’s office as well as planned lawsuits by opponents federal control of Hawai`i water resources.
According to a Pacific Business News interview with William Tam, deputy director for water at DLNR, Tam threatened the intervention saying that
"the state does not want Hawai‘i’s in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams. Hawai‘i stream-flow standards should not be decided 5,000 miles away where it’s very hard for the people of Hawai‘i to effectively participate.”
In the Supreme Court of the US (SCOTUS) case the justices ruled that FERC's rules trump state regulations if the two conflict, despite assurances from Bissell and KIUC attorney David Proudfoot that all state regulations will be followed.
The fact is that Bissell, Proudfoot and the board have refused to directly engage with opponents on the specifics of the FERC process raised by Tam, Akaka and the SCOTUS ruling, rather taking a paternalistic "trust us" tact.
But trust is difficult if not impossible given KIUC's track record and the surreptitiousness of the vote to engage Free Flow Partners- the company applying for the FERC permits with which KIUC has a so far secret "memorandum of agreement."
Though they promise to engage "stakeholders" from now on, not only is the damage to any trust already done but they have made it clear that on the key issue of FERC involvement they will not budge no matter what future discussions with the community yield.
As a matter of fact Bissell and Proudfoot have admitted using the fact that they controlled the "voters' guide" that came with the ballot to misrepresent opponents' views.
An article in the local Kaua`i newspaper states that:
KIUC legal counsel David Proudfoot acknowledged the petition was ultimately about FERC issues, but indicated the co-op was not required to state the position of the opposition.
“There is a difference between the ballot, which needs to be neutral, and which is neutral, and the position of KIUC and its board,” Proudfoot said. “KIUC and its board, who were elected by its members, they obviously believe in the process they are using and they’re entitled to support it. They are not required to help someone else support their decision, that they don’t like, with the members’ money.”
(Opponent Pat) Gegen asked, “And that’s a democratic process?”
“Yes, it is,” Proudfood said. “Of the 250 members that signed the petition, if they want to be able to PR their case, they can do it as much as they want, but it’s not up to KIUC, who doesn’t believe in their position, to pay their money for it. It’s no different than any political democratic process. If you’re a republican, you don’t pay the democrats for their publicity. They pay their own and that’s why the Voters Guide is very carefully labeled as the KIUC Voters Guide.”
It's apparent that the extortionate efforts by KIUC to misrepresent the issue by threatening Kaua`i with a "vote yes or you will never have hydro" lie are, in and of themselves, a reason for continued mistrust.
In fact, an effort to recall all board members and fire Bissell and Proudfoot is being discussed by opponents of the decision to engage with FERC.
Don't knuckle under to KIUC's threats to deny us hydroelectric projects or believe the prevarications, misrepresentations and efforts to overwhelm us with false PR statements by voting "no" on the KIUC FERC "hydro" ballot measure.
Monday, June 13, 2011
ACCESS SCHMACCESS
ACCESS SCHMACCESS: For a moment it looked like the story of the new apparently illegal fence at Lepeuli (Larsen’s) Beach had hit the big time.
After seeing the headline and subhead in this morning's Honolulu paper stating that "Development blocks traditional access; Landowners on three isles prevent people from using trails crossing their land" and seeing the story began with the name of Linda Sproat- one of those who has been most aggrieved and active in preserving the Alaloa that is now blocked by the fence- what else could it be?
But although the article is an all too familiar story of Kaua`i Planning Department bungling in preserving an access to Kauapea (Secret) Beach, nothing on the blocking of the ancient traditional access by Paradise Ranch's Bruce Laymon.
And there's nothing new on our story of Jesse Reynolds' allegation that Laymon tried to kill him last month although County Public Information Officer Mary Daubert says that "(a)ccording to KPD, the case is under investigation pending further developments, therefore, we cannot comment."
But there is news from Hope Kallai of Malama Moloa`a who has filed a complaint with the Land Use Commission asking how the heck they can ignore the fence which was apparently constructed in a conservation district (CD) without a conservation district use permit (CDUP) after Laymon withdrew his permit when the Department of Land and Natural Resources (DLNR) decided to take a second look at it.
Kallai presents documentation noting that in 2009 the DLNR had already determined the fenced in area to be in the CD when they cited Laymon for unpermitted work and essentially asks for action.
She then presents the whole sordid history of Laymon's action in the area- a story which deserves a concise presentation.
Which is why today we present her letter in full.
-----
1 June 2011
Hope Kallai
Malama Moloa`a
Fred Talon
Land Use Commission
Department of Business, Economic Development & Tourism
State of Hawaii
P.O. Box 2359
Honolulu, Hawaii 96804-2359
(808) 587-3822 Fax: (808) 587-3827
Re: Prioritization of Conservation District Boundary Interpretation Request TMK (4) 5-1-3:003
Waioli Corporation (owner), Paradise Ranch (lessee)
Lepeuli, Kauai,
Aloha e Mr. Talon:
I would like to request prioritization of the Conservation District Boundary Interpretation on Waioli Corporation lands in Lepeuli, Kauai, that we previously spoke about on the phone (Feb., 2011 and April 2011). This request was also made by the Kauai Chapter of the Sierra Club (attached Feb. 10, 2011 letter). I understand that your office is understaffed and that your work load is heavy, but there is a need for this boundary determination interpretation to be expedited. Fencing has been recently constructed by lessee, Paradise Ranch LLC, in what appears to be this Conservation District.
May 2011 Fencing in Lepeuli
In 2009, Paradise Ranch was cited for performing work in the Conservation District. Paradise Ranch applied for a SMA Minor permit from the county of Kauai for fencing and this fencing map were submitted then.
2009 Lepeuli Map with County Engineer’s notes
An After-The-Fact CDUP was applied for work in this Lepeuli Conservation District, CDUP KA-3525, (attached), with fencing proposed at 110‘ from the shoreline. This permit was awarded, appealed by community groups, then later surrendered by the applicant, stating they had decided to move operations out of the Conservation District. After community members requested that stamped surveyors maps be presented as per the County Engineer’s original 2009 request (attached), Paradise Ranch LLC recently presented a stamped map (below) with a proposed fenceline in very close proximity to applicant’s interpretation of the CD location. This map states “minimum distance to be 110’ from shoreline” for the proposed fenceline.
2011 map with fenceline next to CD Boundary (as interpreted by Paradise Ranch)
Attached Conservation District maps and articles show the Conservation District to be 300’ from a certified shoreline in this area.
A entirely new fence was recently constructed by Paradise Ranch LLC in Lepeuli. We believe this fence is in the Conservation District and blocks the lateral coastal Alaloa. This project is federally funded through NRCS EQIP program. The pasture created by this new makai fence configuration will enable cattle to graze on a site where Hawaii State Department of Historic Preservation relocated human skeletal remains from 3 individuals. This is illegal as well as socially unconscionable.
Paradise Ranch has continued to manage the coastal vegetation in the Conservation with heavy equipment, brushhogs and chainsaws. The fenceline has been constructed in the apparent Conservation District, blocking an ancient lateral trail.
Steps need to be taken to determine the location of the boundary between the Conservation District and the Agricultural District in Lepeuli, as soon as possible. The Conservation District boundary presented on the maps by Paradise Ranch LLC is erroneous and and the fencing negatively impacts public access, human remains and archaeological sites.
This makai Conservation District is a primary monk seal pupping and rearing area. Two pups are being reared at Ka`aka`aniu reef right now. Impacts must be considered to endangered species by the restriction of public access on the ancient Alaloa trail. This forces all lateral transit on to the beach.
There are significant impacts to this fencing project. The Conservation District Boundary needs to be interpreted and determined by the state as soon as possible. What can we do to expedite this? Mahalo for your help.
Hope Kallai
Attachments:
Sierra Club Land Use Request
SMA-Minor
CDUA 3525
2011 map
CD maps
CD Boundary article
Engineers notes
After seeing the headline and subhead in this morning's Honolulu paper stating that "Development blocks traditional access; Landowners on three isles prevent people from using trails crossing their land" and seeing the story began with the name of Linda Sproat- one of those who has been most aggrieved and active in preserving the Alaloa that is now blocked by the fence- what else could it be?
But although the article is an all too familiar story of Kaua`i Planning Department bungling in preserving an access to Kauapea (Secret) Beach, nothing on the blocking of the ancient traditional access by Paradise Ranch's Bruce Laymon.
And there's nothing new on our story of Jesse Reynolds' allegation that Laymon tried to kill him last month although County Public Information Officer Mary Daubert says that "(a)ccording to KPD, the case is under investigation pending further developments, therefore, we cannot comment."
But there is news from Hope Kallai of Malama Moloa`a who has filed a complaint with the Land Use Commission asking how the heck they can ignore the fence which was apparently constructed in a conservation district (CD) without a conservation district use permit (CDUP) after Laymon withdrew his permit when the Department of Land and Natural Resources (DLNR) decided to take a second look at it.
Kallai presents documentation noting that in 2009 the DLNR had already determined the fenced in area to be in the CD when they cited Laymon for unpermitted work and essentially asks for action.
She then presents the whole sordid history of Laymon's action in the area- a story which deserves a concise presentation.
Which is why today we present her letter in full.
-----
1 June 2011
Hope Kallai
Malama Moloa`a
Fred Talon
Land Use Commission
Department of Business, Economic Development & Tourism
State of Hawaii
P.O. Box 2359
Honolulu, Hawaii 96804-2359
(808) 587-3822 Fax: (808) 587-3827
Re: Prioritization of Conservation District Boundary Interpretation Request TMK (4) 5-1-3:003
Waioli Corporation (owner), Paradise Ranch (lessee)
Lepeuli, Kauai,
Aloha e Mr. Talon:
I would like to request prioritization of the Conservation District Boundary Interpretation on Waioli Corporation lands in Lepeuli, Kauai, that we previously spoke about on the phone (Feb., 2011 and April 2011). This request was also made by the Kauai Chapter of the Sierra Club (attached Feb. 10, 2011 letter). I understand that your office is understaffed and that your work load is heavy, but there is a need for this boundary determination interpretation to be expedited. Fencing has been recently constructed by lessee, Paradise Ranch LLC, in what appears to be this Conservation District.
May 2011 Fencing in Lepeuli
In 2009, Paradise Ranch was cited for performing work in the Conservation District. Paradise Ranch applied for a SMA Minor permit from the county of Kauai for fencing and this fencing map were submitted then.
2009 Lepeuli Map with County Engineer’s notes
An After-The-Fact CDUP was applied for work in this Lepeuli Conservation District, CDUP KA-3525, (attached), with fencing proposed at 110‘ from the shoreline. This permit was awarded, appealed by community groups, then later surrendered by the applicant, stating they had decided to move operations out of the Conservation District. After community members requested that stamped surveyors maps be presented as per the County Engineer’s original 2009 request (attached), Paradise Ranch LLC recently presented a stamped map (below) with a proposed fenceline in very close proximity to applicant’s interpretation of the CD location. This map states “minimum distance to be 110’ from shoreline” for the proposed fenceline.
2011 map with fenceline next to CD Boundary (as interpreted by Paradise Ranch)
Attached Conservation District maps and articles show the Conservation District to be 300’ from a certified shoreline in this area.
A entirely new fence was recently constructed by Paradise Ranch LLC in Lepeuli. We believe this fence is in the Conservation District and blocks the lateral coastal Alaloa. This project is federally funded through NRCS EQIP program. The pasture created by this new makai fence configuration will enable cattle to graze on a site where Hawaii State Department of Historic Preservation relocated human skeletal remains from 3 individuals. This is illegal as well as socially unconscionable.
Paradise Ranch has continued to manage the coastal vegetation in the Conservation with heavy equipment, brushhogs and chainsaws. The fenceline has been constructed in the apparent Conservation District, blocking an ancient lateral trail.
Steps need to be taken to determine the location of the boundary between the Conservation District and the Agricultural District in Lepeuli, as soon as possible. The Conservation District boundary presented on the maps by Paradise Ranch LLC is erroneous and and the fencing negatively impacts public access, human remains and archaeological sites.
This makai Conservation District is a primary monk seal pupping and rearing area. Two pups are being reared at Ka`aka`aniu reef right now. Impacts must be considered to endangered species by the restriction of public access on the ancient Alaloa trail. This forces all lateral transit on to the beach.
There are significant impacts to this fencing project. The Conservation District Boundary needs to be interpreted and determined by the state as soon as possible. What can we do to expedite this? Mahalo for your help.
Hope Kallai
Attachments:
Sierra Club Land Use Request
SMA-Minor
CDUA 3525
2011 map
CD maps
CD Boundary article
Engineers notes
Wednesday, January 12, 2011
WILL IT GO ROUND IN CIRCLES?
WILL IT GO ROUND IN CIRCLES?: We know better than to get too get delusional when the prospects for a governmental action exceeds expectations.
And after eight years of getting up every day wondering what kind of f**ked-up s**t ex-Governor Linda Lingle (boy it feels good to write that) has cooked up today we have to be careful not to engage in too much relativism.
But even before tomorrow’s first meeting of the Board of Land and Natural Resources (BLNR) under new Chair Bill Aila takes place his appointment has already bourn fruit with the news that the infamous rage-a-holic Bruce Laymon has given up his efforts to fence off the alaloa at Lepe`uli (Larsen’s) Beach.
Copies of a letter (thanks to Joan Conrow and Roger Jacobs for the document postings) from Laymon’s attorney, Lorna Nishimitsu, to the BLNR’s staff surrendering his Conservation District Use Permit (CDUP) came flying into our inbox Monday from many who had fought to stop Laymon from harassing beach goers and violating kanaka rights.
It comes on the heels of a new staff report recommending a contested case hearing be granted after the original report was found to be a bunch of bogus bullbleep that simply ignored the testimony of many in the community and rammed through the permit based on Laymon’s misrepresentations.
The problem is that now comes the hard work for Aila, mostly because he’s stuck with most of Lingle’s appointees like the Kaua`i BLNR “representative” Ron Agor whose two-faced actions led to the permit being issued in the first place.
While Agor was telling opponents of the permit that he would fight it, records showed that his support for Laymon was the deciding factor in convincing the board to approve it since many times the board relies on neighbor island reps in deciding issues on their islands.
Aila- and Kaua`i- is stuck with Agor for another year and a half since his four-year term doesn’t end until June 30, 2012- unless he can somehow be forced or persuaded to resign.
In addition to the issue of prescriptive and PASH rights to access to the alaloa- an historic trail that runs around the island near the shore which Laymon’s permit allowed him to fence off in the area- one of the issues has been Laymon himself and his campaign to “clean up” the area.
Although the “cleaning” was said by Laymon and his handful of supporters to relate to trash that’s been left in the area it’s been clear that the real cleansing Laymon desired was that of haoles from the area with a plethora of notorious episodes of harassment of tourists and local Caucasians reported over the last few years in which Laymon insisted on characterizing them all as “hippie campers.”
Laymon was even accused of vandalizing his own equipment and blaming “campers” to gain public sympathy although no one was able to prove who did it one way or the other.
Another winner in all this, aside from the people of Kaua`i, appears to be the owner and leaser of the land, the Waioli Corporation, whose non-profit, do-good, historical-preservation mission has been tainted in all this and will now be able allow the episode to fade into memory.
As we said, we’re not ready to declare a new era for the Department of Land and Natural Recourses and it’s Board. But it is nice when the good guys win every once in a while.
For more information on some of the incidents see our past coverage and Joan Conrow’s Tuesday report and recap.
And after eight years of getting up every day wondering what kind of f**ked-up s**t ex-Governor Linda Lingle (boy it feels good to write that) has cooked up today we have to be careful not to engage in too much relativism.
But even before tomorrow’s first meeting of the Board of Land and Natural Resources (BLNR) under new Chair Bill Aila takes place his appointment has already bourn fruit with the news that the infamous rage-a-holic Bruce Laymon has given up his efforts to fence off the alaloa at Lepe`uli (Larsen’s) Beach.
Copies of a letter (thanks to Joan Conrow and Roger Jacobs for the document postings) from Laymon’s attorney, Lorna Nishimitsu, to the BLNR’s staff surrendering his Conservation District Use Permit (CDUP) came flying into our inbox Monday from many who had fought to stop Laymon from harassing beach goers and violating kanaka rights.
It comes on the heels of a new staff report recommending a contested case hearing be granted after the original report was found to be a bunch of bogus bullbleep that simply ignored the testimony of many in the community and rammed through the permit based on Laymon’s misrepresentations.
The problem is that now comes the hard work for Aila, mostly because he’s stuck with most of Lingle’s appointees like the Kaua`i BLNR “representative” Ron Agor whose two-faced actions led to the permit being issued in the first place.
While Agor was telling opponents of the permit that he would fight it, records showed that his support for Laymon was the deciding factor in convincing the board to approve it since many times the board relies on neighbor island reps in deciding issues on their islands.
Aila- and Kaua`i- is stuck with Agor for another year and a half since his four-year term doesn’t end until June 30, 2012- unless he can somehow be forced or persuaded to resign.
In addition to the issue of prescriptive and PASH rights to access to the alaloa- an historic trail that runs around the island near the shore which Laymon’s permit allowed him to fence off in the area- one of the issues has been Laymon himself and his campaign to “clean up” the area.
Although the “cleaning” was said by Laymon and his handful of supporters to relate to trash that’s been left in the area it’s been clear that the real cleansing Laymon desired was that of haoles from the area with a plethora of notorious episodes of harassment of tourists and local Caucasians reported over the last few years in which Laymon insisted on characterizing them all as “hippie campers.”
Laymon was even accused of vandalizing his own equipment and blaming “campers” to gain public sympathy although no one was able to prove who did it one way or the other.
Another winner in all this, aside from the people of Kaua`i, appears to be the owner and leaser of the land, the Waioli Corporation, whose non-profit, do-good, historical-preservation mission has been tainted in all this and will now be able allow the episode to fade into memory.
As we said, we’re not ready to declare a new era for the Department of Land and Natural Recourses and it’s Board. But it is nice when the good guys win every once in a while.
For more information on some of the incidents see our past coverage and Joan Conrow’s Tuesday report and recap.
Thursday, January 6, 2011
AND THE WALLS CAME TUMBLIN’ DOWN
AND THE WALLS CAME TUMBLIN’ DOWN: It was a good news/really bad news moment when the Honolulu-based, on-line news venture Civil Beat launched a while back.
Many were excited over the prospect of whatever each envisioned was needed until we learned that it was going to be, in the words of Disappeared News’ Larry Geller, a “gated community” and would cost $240 a year to enter.
Worse yet, for Kaua`i at least, it meant losing ace reporter Big Mike Levine who moved on to become one of their “reporter-hosts”.
But we heard from Mike yesterday that there are going to be “some changes to civilbeat.com” and that “(e)verything we've been working on is now free for occasional readers.”
No telling what “occasional readers” means but we were able to read stories yesterday and again today.
We wonder what those who paid for a year are thinking... probably much the same thing we did when we got to Woodstock after having paid 18, 1969 dollars for tickets and found the fences on the ground.
Many have wondered how they were doing, especially since they’ve been tight-lipped about how many subscribers they have. And things might have gone from bad to worse recently with the blow back against CEO, Publisher and Co-founder Pierre Omidyar’s other venture, “Pay Pals,” after they banned Wikileaks from using the service- causing at least one notable cancelled subscription.
But really the prime subject of Mike’s letter was to point us to an article by one of his fellow “host-reporters” Adrienne LaFrance headlined “Obama's Winter White House an Illegal Rental”
According to her story:
Obama did not break the law by staying at the house, but the property owner who rented his house to the Obamas does not have the permit that would allow a stay of fewer than 30 days.
Although the owner claims he got around the law by leaving a 30-day window between rentals, the
explanation is one that's commonly offered, but that still represents an illegal renting practice...
"Maybe it's that the people are circumventing the law or thinking, 'Oh, I'll only rent it to one person in a (30-day) period," said Andrew Malahoff, a spokesman for Honolulu City Council member Ikaika Anderson, who chairs the city's Zoning Committee. "They say, 'Even though they're only going to stay there for seven days, I'll charge them for (30) days, and prorate that.' But as far as we know, that is also not legal. You will not rent for a period of less than 30 days. That's what's in the land-use ordinance. It's not just about multiple rental parties, it's the period of days."
It’s hard to see how, if the owner just rented it out for 30 days and the vacationer decided to stay there for only two weeks it could be illegal. But then again we’re not really familiar with all of the planning and zoning laws in Honolulu.
But one thing we are familiar with that LaFrance is apparently unaware of- something that occurred to us years ago when we first heard of the President’s beach house rental- is the fact that the Department of Land and Natural Resources’ (DLNR) Division of Conservation and Resource Enforcement (DOCARE) has cracked down on vacation rentals in the state conservation district (CD) sending “cease and desist” letters to those operation in Wainiha on the North Shore of Kaua`i and in Kane`ohe on O`ahu- not far from the president’s rental.
According to an April 2007 article in the local Kaua`i newspaper
The state Department of Land and Natural Resources has issued notices to 16 property owners in Ha‘ena to halt alleged unauthorized use of multi-million-dollar homes as vacation rentals.
Most of the 16 homes are on makai, or on the ocean side, of Kuhio Highway, from the YMCA’s Camp Naue to Limahuli Stream. Most are clustered around Makua Beach, also known as Tunnels.
A condition in the state Conservation District Use Application, which a property owner secures before building in the state’s conservation area, stipulates a single-family home cannot be used for rental or any other commercial purposes, Peter Young, chairman of the Board of Land and Natural Resources, said in a March 23 letter to alleged violators.
In one case, the cease-and-desist order could force the owner to sell a property worth millions, and may be the scenario facing other supposed violators as well, said Gary Stice, a Kaneohe, O`ahu resident who received one of the letters.
At the time of the letters many of the operators shut down their rentals but according to at least one anti-vacation rental activist many have reopened and DOCARE has apparently dropped the ball.
It also brings up the question of whether the house has a Shoreline Management Area (SMA) permit- which generally include use descriptions- for a vacation rental. But that would also be a City and County of Honolulu issue.
So far the report hasn’t gotten any press either statewide or nationally. But whenever the president is involved, stories including the word “illegal” tend to grow virally.
And the vacation rental issue could certainly use a little viral publicity considering the disease they cause in otherwise quiet residential neighborhoods.
Many were excited over the prospect of whatever each envisioned was needed until we learned that it was going to be, in the words of Disappeared News’ Larry Geller, a “gated community” and would cost $240 a year to enter.
Worse yet, for Kaua`i at least, it meant losing ace reporter Big Mike Levine who moved on to become one of their “reporter-hosts”.
But we heard from Mike yesterday that there are going to be “some changes to civilbeat.com” and that “(e)verything we've been working on is now free for occasional readers.”
No telling what “occasional readers” means but we were able to read stories yesterday and again today.
We wonder what those who paid for a year are thinking... probably much the same thing we did when we got to Woodstock after having paid 18, 1969 dollars for tickets and found the fences on the ground.
Many have wondered how they were doing, especially since they’ve been tight-lipped about how many subscribers they have. And things might have gone from bad to worse recently with the blow back against CEO, Publisher and Co-founder Pierre Omidyar’s other venture, “Pay Pals,” after they banned Wikileaks from using the service- causing at least one notable cancelled subscription.
But really the prime subject of Mike’s letter was to point us to an article by one of his fellow “host-reporters” Adrienne LaFrance headlined “Obama's Winter White House an Illegal Rental”
According to her story:
Obama did not break the law by staying at the house, but the property owner who rented his house to the Obamas does not have the permit that would allow a stay of fewer than 30 days.
Although the owner claims he got around the law by leaving a 30-day window between rentals, the
explanation is one that's commonly offered, but that still represents an illegal renting practice...
"Maybe it's that the people are circumventing the law or thinking, 'Oh, I'll only rent it to one person in a (30-day) period," said Andrew Malahoff, a spokesman for Honolulu City Council member Ikaika Anderson, who chairs the city's Zoning Committee. "They say, 'Even though they're only going to stay there for seven days, I'll charge them for (30) days, and prorate that.' But as far as we know, that is also not legal. You will not rent for a period of less than 30 days. That's what's in the land-use ordinance. It's not just about multiple rental parties, it's the period of days."
It’s hard to see how, if the owner just rented it out for 30 days and the vacationer decided to stay there for only two weeks it could be illegal. But then again we’re not really familiar with all of the planning and zoning laws in Honolulu.
But one thing we are familiar with that LaFrance is apparently unaware of- something that occurred to us years ago when we first heard of the President’s beach house rental- is the fact that the Department of Land and Natural Resources’ (DLNR) Division of Conservation and Resource Enforcement (DOCARE) has cracked down on vacation rentals in the state conservation district (CD) sending “cease and desist” letters to those operation in Wainiha on the North Shore of Kaua`i and in Kane`ohe on O`ahu- not far from the president’s rental.
According to an April 2007 article in the local Kaua`i newspaper
The state Department of Land and Natural Resources has issued notices to 16 property owners in Ha‘ena to halt alleged unauthorized use of multi-million-dollar homes as vacation rentals.
Most of the 16 homes are on makai, or on the ocean side, of Kuhio Highway, from the YMCA’s Camp Naue to Limahuli Stream. Most are clustered around Makua Beach, also known as Tunnels.
A condition in the state Conservation District Use Application, which a property owner secures before building in the state’s conservation area, stipulates a single-family home cannot be used for rental or any other commercial purposes, Peter Young, chairman of the Board of Land and Natural Resources, said in a March 23 letter to alleged violators.
In one case, the cease-and-desist order could force the owner to sell a property worth millions, and may be the scenario facing other supposed violators as well, said Gary Stice, a Kaneohe, O`ahu resident who received one of the letters.
At the time of the letters many of the operators shut down their rentals but according to at least one anti-vacation rental activist many have reopened and DOCARE has apparently dropped the ball.
It also brings up the question of whether the house has a Shoreline Management Area (SMA) permit- which generally include use descriptions- for a vacation rental. But that would also be a City and County of Honolulu issue.
So far the report hasn’t gotten any press either statewide or nationally. But whenever the president is involved, stories including the word “illegal” tend to grow virally.
And the vacation rental issue could certainly use a little viral publicity considering the disease they cause in otherwise quiet residential neighborhoods.
Tuesday, November 30, 2010
UNDER FURTHER REVIEW
UNDER FURTHER REVIEW: Our, shall we say, less than enthusiastic “endorsement” of now Governor-elect Neil Abercrombie was partially based on years of disappointment in the appointments of appointed appointees.
Though those of the departing Republican Governor Linda “Ding-a” Lingle were particularly egregious we’ve watched equally in horror at most of the democratic governors’ department heads, especially those at the helm of the all powerful position of the head of the Department of Land and Natural Resources (DLNR).
And though we saw the petition effort to see former Kaua`i State Senator Gary Hooser appointed DLNR director as a nice thought but doomed to failure, we couldn’t believe our ears last night when we heard that Waianae harbormaster and environmental and kanaka activist Bill Aila will be in charge of the many-tentacled department- if he’s confirmed by the state senate.
Laura Thielen, the current DLNR Director- who also sits as Chair of the Board of Land and Natural Resources (BLNR) where most of the nitty gritty decisions effecting the future of “land and power in Hawai`i” are made- has been an unmitigated disaster. Under her mismanagement developers have received rubber stamps from republican appointees to the Board like developer’s friend Ron Agor, our Kaua`i Rep.
Aila, a former Sierra Club Executive Committee member who ran for governor in 2006 will have a chance to, among other things, fix the broken State Historic Preservation Division (SHPD) which has bungled the treatment of `iwi kupuna (burials), kill the planned commercialization of Koke`e and stop the onslaught of state redistricting of agricultural lands that are now required under the Judge Ibarra Hokulia ruling ending de facto resorts on ag lands.
For the uninitiated, Hawai`i has two levels of approval for land classification. While the county “zones” land in classifications like agricultural, rural, open, urban and resort, laid on top of that is a template of state “districting” which classifies land in the four basic categories that dictate county zoning.
While in law zoning is supposed to follow districting the practice has been to have counties approve zoning and the state follow suit with redistricting. But sometimes the applicants have been afraid of rejection by the DLNR-chief-chaired Land Use Commission (LUC) for redistricting so they just don’t apply once they have “bought” county approval, especially in the case of ag lands that have been cut up into high-priced “gentleman farmers' estates”.
But recently, because of the Ibarra ruling which said “no- you can’t do that anymore,” projects have been going before the LUC before the counties get to rubber stamp these projects.
We’re used to being disappointed and will certainly be watching and holding Aila’s feet to the fire- just as we would have done were Gary to have been appointed. But with Aila at the head of the table it might just be possible to do things like stop the theft of access at Lepe`uli or reverse the theft and sale of Koke`e cabin leases to the highest bidder.
We’ve seen the position corrupt people with good intentions before. But then we’ve never started from this kind of “advantage: environment” arrangement before.
We aren’t exactly ready to break out the rose colored glasses but we can’t imagine anyone better in the seat from which springs all clout in the islands.
Though those of the departing Republican Governor Linda “Ding-a” Lingle were particularly egregious we’ve watched equally in horror at most of the democratic governors’ department heads, especially those at the helm of the all powerful position of the head of the Department of Land and Natural Resources (DLNR).
And though we saw the petition effort to see former Kaua`i State Senator Gary Hooser appointed DLNR director as a nice thought but doomed to failure, we couldn’t believe our ears last night when we heard that Waianae harbormaster and environmental and kanaka activist Bill Aila will be in charge of the many-tentacled department- if he’s confirmed by the state senate.
Laura Thielen, the current DLNR Director- who also sits as Chair of the Board of Land and Natural Resources (BLNR) where most of the nitty gritty decisions effecting the future of “land and power in Hawai`i” are made- has been an unmitigated disaster. Under her mismanagement developers have received rubber stamps from republican appointees to the Board like developer’s friend Ron Agor, our Kaua`i Rep.
Aila, a former Sierra Club Executive Committee member who ran for governor in 2006 will have a chance to, among other things, fix the broken State Historic Preservation Division (SHPD) which has bungled the treatment of `iwi kupuna (burials), kill the planned commercialization of Koke`e and stop the onslaught of state redistricting of agricultural lands that are now required under the Judge Ibarra Hokulia ruling ending de facto resorts on ag lands.
For the uninitiated, Hawai`i has two levels of approval for land classification. While the county “zones” land in classifications like agricultural, rural, open, urban and resort, laid on top of that is a template of state “districting” which classifies land in the four basic categories that dictate county zoning.
While in law zoning is supposed to follow districting the practice has been to have counties approve zoning and the state follow suit with redistricting. But sometimes the applicants have been afraid of rejection by the DLNR-chief-chaired Land Use Commission (LUC) for redistricting so they just don’t apply once they have “bought” county approval, especially in the case of ag lands that have been cut up into high-priced “gentleman farmers' estates”.
But recently, because of the Ibarra ruling which said “no- you can’t do that anymore,” projects have been going before the LUC before the counties get to rubber stamp these projects.
We’re used to being disappointed and will certainly be watching and holding Aila’s feet to the fire- just as we would have done were Gary to have been appointed. But with Aila at the head of the table it might just be possible to do things like stop the theft of access at Lepe`uli or reverse the theft and sale of Koke`e cabin leases to the highest bidder.
We’ve seen the position corrupt people with good intentions before. But then we’ve never started from this kind of “advantage: environment” arrangement before.
We aren’t exactly ready to break out the rose colored glasses but we can’t imagine anyone better in the seat from which springs all clout in the islands.
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