IN THIS ISSUE

Price: $5.00

Volume 23, Number 5 November 2012

New NMFS Rule Allows Increased InjuryTo Turtles By Hawai‘i Swordfish Fleet

The National Marine Fisheries Service hasapproved a new rule that significantly

increases the potential number of loggerheadand leatherback sea turtles that can be harmedby the Hawai‘i swordfish fleet in a given year.

On October 4, the Federal Register pub-lished notice of NMFS’ approval of the rule.When it takes effect on November 5 – absenta court-ordered stay – the swordfish fisherywill be able to interact with, or “take,” up to 26leatherbacks and 34 loggerheads a year beforeit is shut down. The new numbers representan increase of 62 and 100 percent, respec-tively, over the previous incidental take limitsof 16 leatherbacks and 17 loggerheads.

As the non-profit group Oceana noted ina press release following the Federal Registernotice, “The timing for this approval is par-ticularly paradoxical, as NMFS upgraded thestatus of the Pacific loggerhead sea turtle from‘threatened’ to ‘endangered’ little more than a to page 6

year ago, and designated almost 42,000 squaremiles of ocean waters off the coasts of Califor-nia, Oregon, and Washington as critical habi-tat for leatherback sea turtles earlier this year.”

Catherine Kilduff of the Center for Bio-logical Diversity, a group that had previouslysued to protect the turtles from harm inflictedby longline interactions, made a similar point.The new rule, she told Environment Hawai‘i,is “definitely dismaying, because since ourprior court challenge, the loggerhead in theNorth Pacific has been upgraded” to endan-gered from threatened under the EndangeredSpecies Act.

As of press time, no one with any of thegroups that expressed opposition to the ruleswould say whether they would be suing NMFSto block implementation of the new rule.However, the Hawai‘i Longline Association,which has been a strong supporter of lifting

A War on Turtles?

Sea turtles, those gentlest of creatures,seem to have come under attack by

myriad forces in the last few months.The National Marine Fisheries Servicehas proposed new rules for the swordfishfishery in Hawai‘i that will allow it tointeract with far more endangeredloggerhead and leatherback turtles thanhad been allowed previously.

And the same agency has looked withfavor on a proposal, initiated by theWestern Pacific Fishery ManagementCouncil disguised as a Hawaiian CivicClub, to remove the green sea turtle inHawai‘i from all protections it hasenjoyed under the federal EndangeredSpecies Act.

Public outrage to both has beensignificant, with tens of thousands morepeople taking the trouble to oppose thechanges than those who support them.

And, on the subject of outrages: don’toverlook our articles on the Public LandDevelopment Corporation and Wespac’snew book.

2New & Noteworthy

3Wespac Book a Costly EffortTo Justify ‘Aha Kiole Push

4PLDC Adops Strategic Plan

10Land Board: Plans Approved

For Ka‘u Forest, ‘Ahihi-Kina‘u

12Whatever Happened to...

Tropic Land?

Loggerhead sea turtle

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Page 2 ■ Environment Hawai‘i ■ November 2012

Environment Hawai‘i72 Kapi‘olani StreetHilo, Hawai‘i 96720

Patricia Tummons, EditorTeresa Dawson, Staff Writer

Susie Yong, Office Administrator

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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Production: For Color Publishing

Copyright © 2012 Environment Hawai‘i, Inc.ISSN 1050-3285

NEW AND NOTEWORTHY

A publication ofEnvironment Hawai‘i, Inc.

Volume 23, No. 5 November 2012

False Killer Whales Protected: Thelawsuit brought last June against theNational Marine Fisheries Serviceover failure to protect false killerwhales from injury inflicted byHawai‘i longline fishing vessels hasbeen settled. Under an agreementannounced last month, the servicewill implement protections for theanimals – which are actually largedolphins – by the end of the month.

The service had developed a planto protect the animals more than twoyears ago. At that time, and again inresponse to litigation, it convened atake reduction team. Within six

Officers

Patricia TummonsPresident and

Treasurer

Teresa DawsonVice President and

Secretary

Directors

Kathy BaldwinMary EvansonMina MoritaRon Terry

false killer whales. However, until now, NMFShad not taken steps to implement the measurescalled for.

Last June, six months after the legal deadlinefor NMFS to act had passed, Earthjustice suedthe service, on behalf of the Center for Biologi-cal Diversity and Turtle Island RestorationNetwork.

In announcing the settlement, Earthjusticenoted that NMFS’ “own data have shown forover a decade that Hawai‘i-based longline fish-ing kills false killer whales in Hawaiian waters atunsustainable rates. The latest data, which theagency released in August 2012, reveal that,each year, longline fishing kills an average ofmore than 13 false killer whales from the Hawai‘iPelagic Stock (animals found more than 22nautical miles from the main Hawaiian is-

◆

◆

Quote of the Month“[I]t appears NMFS is taking the

position that the North Pacificloggerhead population is declining

towards extinction anyways, so why notjust let U.S. fishermen kill a few more.”

— Ben Enticknap, Oceana

lands), nearly 50 percent more than what theagency has said that population can sustain.”

Also, “False killer whales in the Hawai‘iInsular Stock (animals found within 76 nauti-cal miles of the main Hawaiian Islands) arebeing killed … at nearly twice the sustainablerate… Only about 150 of these animals remain,and the Fisheries Service has proposed to listthem as ‘endangered’ under the EndangeredSpecies Act.”

According to Earthjustice attorney DavidHenkin, “It has taken three lawsuits over nearlya decade to compel the Fisheries Service finallyto protect Hawai‘i’s false killer whales. Withoutcitizen suits, the agency may well have draggedits feet until it was too late to save these uniquemarine mammals.”

A Cancelled Meeting: Last month, staff withthe Department of Land and Natural Resources’Division of Forestry and Wildlife were forcedto reschedule a meeting of the Forest Steward-ship Advisory Committee. The reason?

Failure to comply with the Sunshine Law.The meeting had been scheduled for Octo-

ber 11. However, contrary to Sunshine Lawrequirements, no notice of the meeting was sentto those individuals (including EnvironmentHawai‘i) who had requested to be notified ofthe committee’s meetings. The notice posted atthe Lieutenant Governor’s office included nostart time for the meeting.

When Environment Hawai‘i was informedof the meeting, just two days before it wasscheduled to be held, we asked that it be can-celled. After consulting with the attorneygeneral’s office and the Office of InformationPractices, DLNR staff made the decision tocancel. The meeting was later rescheduled toOctober 29.

Environment Hawai‘i first requested to benotified of FSAC meetings in 2007. At thattime, we were informed that the committee wasnot subject to the Sunshine Law. We appealedto the OIP, which, in July 2011, issued a memo-randum opinion that found the committee did,indeed, have to give notice of its meetings toanyone who requested.

False killer whales in waters off Kaua‘i.

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months, the team had come up with a plan tosignificantly reduce, if not altogether eliminate,the interactions between the longliners and the

November 2012 ■ Environment Hawai‘i ■ Page 3

eries Management in the Western Pacific. Ablurb on the book’s back cover states that it“documents a three-part series of workshopsconvened by the Western Pacific RegionalFishery Management Council to facilitateunderstanding of this promising new ap-proach” to managing fisheries.

And although the book was published byWiley-Blackwell, the council’s logo appears

Book Price: $210. Taxpayers’ Cost: $540.prominently on its front and back covers – atip-off that the book did not go through theusual rigorous process of peer-review to whichscientific texts are customarily submitted. In-stead, according to information provided toEnvironment Hawai‘i through a Freedom-of-Information Act request, council ExecutiveDirector Kitty Simonds contracted with thecompany to print the book for $12,000, inreturn for which the council would receive200 copies.

The contract makes it clear that absent thepayment, Wiley-Blackwell would not pub-lish the volume. In a paragraph titled “SpecialProvisions,” the contract states: “Publicationof this work is dependent on receipt of apurchase order from [the council] for 200copies at the price of $60 per copy prior to

manuscript delivery.”The council also paid the book’s editor,

Edward Glazier, for his services. Glazier, afrequent contractor to the council and aprincipal of Impact Assessment, Inc., thecompany whose name appears on the in-voices, was paid at least $95,500 for his ser-vices, which included helping to organize theworkshops, preparing the report of the pro-ceedings, and finding a publisher for it.

All totaled, the book cost the taxpayer-financed council a minimum $107,500, or$540 per copy. That doesn’t include thesubstantial costs associated with holding theworkshops, which were attended by invitedguests from throughout the Pacific, the con-tinental United States, and from as far awayas England. Or, to quote the book, theworkshops involved “local, regional, national,and international experts representing a vari-ety of relevant disciplines.”

— Patricia Tummons

In the category of expensive books that fewwill ever read, this recent publication of theWestern Pacific Fisheries ManagementCouncil ranks high. With a list price of$209.95 – a few dollars less, if you orderthrough Amazon – and a table of contentsthat is Sominex on a page, Ecosystem-BasedFisheries Management in the Western Pa-cific is never going to make the best-seller list.

Of course, given that it is a volume entirelyconceived, written, printed, and distributedwith one sole purpose – to justify the council’spush to manage near-shore and on-shoreresources – the idea that the book would be acommercial success probably never enteredinto the picture.

Probably few people outside the council’simmediate circle have heard of or seen thebook. It came to my attention only by chance:At this spring’s meeting of the Council Coor-dination Committee, hosted by Wespac, cop-ies of the volume were stacked next to thetable where I was asked to register. When Iinquired about the book – “Are these for

Wespac’s Book Is a Costly EffortTo Justify ‘Aha Kiole, ‘Aha Moku Push

B O O K R E V I E W

Edward Glazier, editor. Ecosystem-BasedFisheries Management in the Western Pacific.Published by Wiley-Blackwell and theWestern Pacific Fisheries ManagementCouncil, 2011. 280 pages plus 24 pages ofcolor plates. $209.95 hard cover.

sale?” I asked – I was told to just take one.That the book has received little – make

that virtually no – attention in scientific pub-lications is hardly surprising. Although a num-ber of respected experts participated in thethree council-sponsored workshops that arereported in this volume, the work they pre-sented broke no new ground and consistedlargely of summaries of work they had pub-lished (or were to publish) elsewhere.

Beyond recapping the experts’ presenta-tions, the book reports on the discussionsbetween the experts in western science and thepeople in attendance who advocated resourcemanagement based on traditional practices. Inthe end, there seems to have been no meetingof the minds on this score. For example, at theconclusion of the first workshop (on ecosys-tem science and management), participantscame up with recommendations on how tobegin to develop ecosystem management plans(as opposed to single-species or suite-of-spe-cies plans), all of which were unexceptional.But then Glazier adds a cautionary note thatwalks back some of them. Among other things,he says, fishery managers should “apply theprecautionary principle as a default, but gaugethe potential human impacts of doing so.”

What’s more, the reporting verges on fic-tion – a point Glazier seems to acknowledge.“The summaries [of discussions] are consis-

tently presented in a third-person narrativeform so as to minimize use of quotations andredundant shifting between person and tense,”he writes. “Interpretive-artistic license wastaken in certain cases with the intent of clari-fying points being made by the presenters.”

A New FoundationIn hindsight, the purpose of the workshops,and this volume that commits the proceed-ings to history, has become clear. Councilexecutive director Kitty Simonds began refer-ring to them early on in her push to get localgroups of Hawaiians to assert a role in thestate’s management of near-shore fisheries.The first of several puwalu convened in Au-gust 2006, just a few months after the secondof the three workshops on ecosystem manage-ment. The Wespac-sponsored puwalu ledeventually to the establishment of ‘Aha Kiolecouncils across the state and ultimately to theirbeing enshrined in state law this year as the‘Aha Moku advisory committee within theDepartment of Land and Natural Resources.(For further background on the ‘Aha Kiolecouncils, the puwalu, and Wespac’s role inthem, see the many articles that EnvironmentHawai‘i has published on this subject.)

In this light, the book gains significance,since it bolsters arguments made by Simondsand others for a greater role for native peoplesin managing resources. In fact, in the write-upof the last of the three workshops, on ecosys-tem policy, Glazier notes that the council hasalready moved in this direction. At this work-shop, he writes, “Council staff members re-lated that the Western Pacific Council hadcollectively arrived at a vision for the future of

In the spring of2011, Wiley-Blackwell, thewell regardedpublisher of sci-entific texts,came out withnew title: Ecosys-tem-Based Fish-

Page 4 ■ Environment Hawai‘i ■ November 2012

If public testimony is any indication, thePublic Land Development Corporation has

swayed none of its major critics by adopting astrategic plan. And recent amendments to theagency’s proposed administrative rules havealso quelled no concerns.

Those who already support the agency —the General Contractors Association, renew-able energy developers, and their consultants— testified in favor of the PLDC board’sadoption of the plan, its associated flow chart,and the proposed rule amendments at thePLDC’s meeting on October 11.

The critics, while expressing their appre-ciation for the PLDC’s effort to address com-munity concerns, only stepped up their criti-cism.

Their main beef with the strategic plan: Itscomponents aren’t reflected in the statuteestablishing the PLDC or in the agency’s pro-posed administrative rules. Therefore, the planhas no legal significance.

“The failure to incorporate the strategicplan into your rules renders the strategic planan empty gesture,” wrote Native HawaiianLegal Corporation attorney David KimoFrankel in testimony to the PLDC.

As for the proposed rule amendments,Frankel and others pushed the PLDC to in-clude provisions of some of the environmentalregulations the agency is now exempt from. Itwas a recommendation they had raised duringpublic hearings on the first draft of adminis-trative rules, to no avail.

“[The Office of Hawaiian Affairs] andothers submitted a lot of the same language toyou before you went to public hearings thefirst time. You would have saved a lot ofheartburn. If they’re not incorporated a sec-ond time, you will have a lot of heartache,”Frankel warned.

PLDC Adopts a Strategic Plan,Amends Rules for Public Hearings

Public FearsFor months, the staff and creators of thePLDC (including the governor’s office) havebeen trying to extinguish the public’s fearsabout an agency that can allow developers ofpublic lands to bypass most of the state’sregulations that protect environmental andcultural resources – regulations that, accord-ing to Frankel, have protected O‘ahu’s Ka Iwishoreline and ‘Ewa beach, Moloka‘i’s La‘auPoint, Hanalei on Kaua‘i, Honoli‘i on the BigIsland, and many other places, from inappro-priate development.

Under Act 55, which established the PLDCin 2011, developers working with the PLDCwould, indeed, appear to be exempt from allstate and county land use laws, so long as thePLDC had “coordinated with” county plan-ning departments and county land use plans,policies, and ordinances.

Such language has appeased neither thepublic nor the counties. The Kaua‘i andHawai‘i county councils have recently adoptedresolutions calling for the repeal of Act 55,something that state House RepresentativeCynthia Thielen has promised to try to donext legislative session.

Frankel told the PLDC board that thepublic distrust stems from a lack of candor. Todate, the PLDC has not said whether it willcomply with statutes regarding the Conserva-tion District, the state Land Use Commis-sion, and coastal zone management.

“Will PLDC comply with Chapter 183,205, 205A? Why don’t you tell the public?” heasked.

“It’s not absurd for the public to have fear”about inappropriate development, Frankeladded, since, even without PLDC involve-ment, the City and County of Honolulu isentertaining a proposal by developer Andy

Anderson to build a hotel on city-owned parkland in Hale‘iwa, on O‘ahu’s North Shore.

“There’s litigation over it,” Frankel said.

Just a ConduitTo clarify what the PLDC will do and how itwill operate, state Senators Malama Solomonand Donovan Dela Cruz helped PLDC staffdevelop a strategic plan.

Under the plan, the PLDC now has guid-ing values, such as “be fair,” “support and aid,”and “facilitate and connect.”

The plan lists nine guidelines, some ofwhich simply restate laws that the PLDC isrequired to follow. Under other guidelines,the PLDC promises not to sell land or developlands eligible for designation as importantagricultural lands (IAL). It will also heed con-ditions imposed on projects by the state orcounty agency holding title and county con-ditions on infrastructure connection.

One guideline seems to go beyond whatAct 55 allows. It promises to give 85 percent ofthe state’s share of project revenues to anyagency that has title to or management overthe underlying state or county lands. The act,however, states that 85 percent of the state’srevenue must go to either the Department ofLand and Natural Resources’ special land anddevelopment fund or its boating special fund.

The plan lists key components of PLDCprojects:

• Achieve department and agency goals.• Have value and significance to the

community.• Help preserve culture, agriculture, con-

servation and preservation.• Be self-sustaining.• Have a positive economic impact.• Have long-term value.At the PLDC’s October meeting, executive

director Lloyd Haraguchi stressed that thePLDC’s work will be achieved through part-nerships with state and county agencies andnon-profits “to create jobs for the publicbenefit.”

In all cases, he said, the title agency leasingland or transferring management to the PLDCwill take the lead.

“They’re driving the bus, we’re the con-duit,” he said. “The county has control overwater, sewer. Without cooperation by thecounty ... the project stops. This is an effortwhere the people driving the bus will be thetitle agency and the county.”

The plan’s flow chart first outlines howproject applications will lead to leases ormemorandums of understanding between atitle agency (i.e., the DLNR) and the PLDC.Once the PLDC gains control over the land,projects can follow one of three tracks —depending on what kind of development/

the ecosystem approach and that objectiveshad been developed to satisfy that vision.Those relate primarily to the process fordeepening relationships with island commu-nities over the course of time, and to immedi-ate and practical plans for initiating thatprocess. Efforts were currently being under-taken to successfully initiate the [RegionalEcosystem Advisory Committees], whichwere intended to improve the Council’s un-derstanding of the biophysical and humandimensions of the region’s marine ecosystemsand thereby introduce a more effective and

empowering management regime.”And what of the council’s jurisdictional

limits? By federal law, it has no say-so inmanagement of waters from shore to threemiles out.

Never mind that, Glazier suggests. “It wasagreed [at the workshop] that the REACprocess could and would allow the Council toconsider and address issues extending beyondthose it had traditionally considered, such asterrestrially generated pollution and otherfactors affecting comprehensively envisionedmarine ecosystems.” — Patricia Tummons

November 2012 ■ Environment Hawai‘i ■ Page 5

management partner, if any, is involved —eventually resulting in a lease and/or partner-ship agreement between an applicant and thePLDC.

Under the scenarios set forth in the flowchart, the public will have four to seven oppor-tunities to comment at a public meeting,depending on which track an application takes.(The flow chart misidentifies these as publichearings.) Instances where outside agencies areproposing projects would require seven publicmeetings, while those where the PLDC is sim-ply taking over management would requirefour.

“This [addresses] one of the major con-cerns, that we were providing maybe just oneopportunity for public input,” Haraguchi said.

The county and title agency would setproject conditions based on an initial projectproposal, and compliance with state historicpreservation and environmental review lawscould occur after the title agency transfersmanagement or issues a lease to the PLDC,according to the flow chart.

‘Not Legally Binding’Frankel, and representatives of the Hawai‘ichapter of the Sierra Club, the Office of Ha-waiian Affairs, and Life of the Land asked thePLDC not to adopt the strategic plan until orunless its terms are incorporated into the pro-posed administrative rules.

Former state deputy attorney generalPatricia Talbert (now with Innovations Devel-opment Group), however, said she wasn’t surethe plan was meant to be legally binding.

“These things speak to how a board is goingto function. Statutes and rules don’t tell youhow you’re going to open the doors each day,”she said.

In any case, the strategic plan’s terms don’tquite match up with the proposed administra-tive rules, OHA senior policy analyst JocelynDoane told the board.

For example, the plan suggests that the titleagency and counties will recommend projectconditions based on an initial project proposal.Under the proposed administrative rules, how-ever, such a proposal will only be done if thePLDC’s executive director thinks it’s required.

In written testimony, OHA noted that theadministrative rules were unclear how thecounty would provide comments on infra-structure requirements if the executive direc-tor doesn’t require an initial project proposal.

Another inconsistency between the planand the rules involved the six key componentsof a PLDC project. The plan simply lists thecomponents without indicating whether aproject needs to meet them all or just one. Theproposed rules require projects to be either self-sustaining or generate revenue. As for the rest

of the key components, a project would needto meet only one of them, under the rules.

Rep. Thielen noted that the proposedrules originally required a project to meet allof the components.

“[T]he word ‘and’ has been replaced withthe disjunctive word ‘or.’ This means that inreality, only ONE of these five elements - forexample ‘positive economic impact’ — willbe required. ... EVERY proposed project canbe said to have some kind of positive eco-nomic impact, even if it ultimately fails on theother five elements,” she wrote.

That the flow chart appeared to allow atitle agency to approve projects well beforethey complete the environmental review pro-cess worried Frankel.

“The title agency shouldn’t approve aproject unless Chapter 343 is done. They willbe making a decision without the informa-tion it needs. And they will be sued and we willwin,” he said.

(According to deputy attorney generalLinda Chow, although the flow chart indi-cates Chapter 343 environmental review willaccompany a final project proposal submittedafter PLDC has control of the land, the reviewcould be done any time before then. Theproposed administrative rules would requirethat a finding of no significant impact accom-pany initial project proposals “if applicable tothe project at this stage.”)

The strategic plan’s commitment not todevelop eligible IAL lands is not mentioned inthe rules at all, Doane and others noted.

“Members of the public understand thatthe strategic plan is not legally binding. If youmean it, put [its provisions] in the rules,”Frankel said. “You say you’re not going todevelop important agricultural lands. Youdon’t say it in the rules. Say it!”

The Sierra Club and OHA argued that thePLDC’s strategic plan and rules should alsocommit to leaving lands in the county specialmanagement area and state ConservationDistrict alone.

“These lands often contain Hawai‘i’s mostfragile natural and cultural resources, includ-ing those that are critical not only to NativeHawaiians’ immediate well being, but to thevery survival of our culture and way of life,”wrote OHA CEO Kamana‘opono Crabbe intestimony to the PLDC.

“There are certain projects I think we canagree should be off the table. We should agreeto that,” added Sierra Club, Hawai‘i Chapter,executive director Robert Harris.

With regard to Haraguchi’s earlier com-ment on the need for the county’s coopera-tion on water and sewer connections, Frankelargued that Haraguchi had a fundamentalmisunderstanding of the county’s role in

controlling development.The county’s concern about a particular

project may not be with wastewater, but withthe traffic it may generate, he said. By limitingthe county’s input to certain infrastructurerequirements, “it’s deceptive to say the countyhas this large role,” Frankel said.

Administrative RulesRep. Thielen’s comments on the proposedadministrative rules also touched on thePLDC’s apparent lack of commitment to fol-low county plans. She notes in her writtentestimony that the proposed rules only requirethat projects be “consistent with county com-munity or development plan for the area, asclosely as is practical.”

“[T]he phrase ‘as closely as is practical’renders this ‘requirement’ purely aspirational,”she wrote.

After the first round of public hearings, thePLDC made several amendments, includingexpanding the definition of culturally sensi-tive, requiring an initial project proposal, anddeleting sections on financing, among otherthings.

To Doane, more changes were neededbefore the board approved a second round ofpublic hearings.

“You’d need to go back again if substantialchanges are made again. We are concernedabout the lack of provisions to ensure transpar-ency, accountability, and due diligence, andthe lack of provisions to ensure the PLDC isable to fulfill obligations regarding culturalsensitivity,” she said.

Frankel asked the board not to assume thatthe title agency will review PLDC projects“according to the standards it currently oper-ates under when deciding whether to approvea project.”

He argued that the title agency may knownothing about the nature of a proposed projectbefore land is transferred.

“Second, and much more importantly,there are no standards that govern the agency’sdecision to transfer development rights to thePLDC,” Frankel wrote in testimony.

Doane, Harris, and Frankel also again triedto get the PLDC to forfeit some of the exemp-tions granted by Act 55 by incorporating someof the protective language contained in stat-utes regarding coastal zone management andthe Conservation District, among other things.They also tried to get the board to includeprovisions in the rules to prevent developerswith a history of violations from applying forprojects.

The board ignored all of their recommen-dations and approved the amendments to theadministrative rules as submitted byHaraguchi. — Teresa Dawson

Page 6 ■ Environment Hawai‘i ■ November 2012

Swordfish from page 1

the turtle limits, indicated in its commentsthat a court challenge is practically a foregoneconclusion. Jeffrey W. Leppo, an attorneyrepresenting the HLA, concluded his com-ment letter with the statement, “we hope andanticipate that NMFS will fully defend itsfinal decision on the merits in the inevitablelegal challenge that will be pursued by envi-ronmental advocacy groups.”

A Recycled RuleBack in 2009, NMFS proposed raising theallowable take of loggerheads and leather-backs in a nearly identical way, lifting thelimit on loggerheads from 17 to 46 and onleatherbacks from 16 to 17. The Center forBiological Diversity, Turtle Island Restora-tion Network, and KAHEA: The Hawai‘i-Environmental Alliance jointly sued theagency. In a settlement approved by Hono-lulu federal Judge David Ezra, NMFS setaside the proposed rule as it applied to theturtle limits (other aspects of the rule, includ-ing a lifting of curbs on the number ofswordfish sets that could be made in a givenyear, were adopted). NMFS also agreed toprepare a new biological opinion within 135days of its having made a final determinationon the proposed uplisting of nine distinctpopulation segments of loggerheads, fromthreatened to endangered.

The HLA challenged the settlement in the9th U.S. Circuit Court of Appeals. In a deci-sion published just last March, the appellatecourt rejected HLA’s arguments. By then,however, NMFS had issued a new biologicalopinion (BiOp), which had been blessed bythe HLA even prior to its public release in lateJanuary. On June 11, NMFS opened a one-month period of public comment on theproposed rule based on the new BiOp. Thefinal rule – unchanged in any meaningful wayfrom the draft one – was published on Octo-ber 4.

‘Fatally Flawed’ BiOpMany of the comments harshly critical of theproposed rule focused on the supportingbiological opinion. David Henkin, an attor-ney with Earthjustice (which represented theplaintiffs in the 2009 court challenge), de-scribed the opinion as “fatally flawed.”

For one thing, Henkin argues, the popu-lation models for leatherbacks and logger-heads used by NMFS produce “an overlyoptimistic view of the status of these speciesand the effects of NMFS’ proposed action.”

The climate-based population modelNMFS relies upon minimizes the effect ofhuman-caused mortality, he goes on to say.

“By comparing the effects of only one fisheryto a measure of large-scale environmentalvariability, NMFS has essentially guaranteed ano-jeopardy determination,” he writes. “AsNMFS admits, ‘[f]urther research is needed onhow climatic and anthropogenic forces to-gether impact the trends of turtle popula-tions,’” he continues. “Therefore, it is too earlyto allow climate models to overshadow effectsfrom fishing mortality, especially in the con-text of an [Endangered Species Act] jeopardyanalysis.”

Oceana also had harsh words for the cli-mate-based population model. “The modeldoes not include other anthropogenic mor-talities (e.g., bycatch in other fisheries), butrather just the direct effects of the proposedaction,” writes Ben Enticknap, Pacific projectmanager for the organization. “Even so,” hecontinues, “with this model NMFS finds that[the] North Pacific loggerhead sea turtle popu-lation is at ‘a heightened risk of extinction’ andthe population will decrease significantly overthe next 25 years.” More than 99 percent of thescenarios in this population model show thepopulation declining over the next genera-tion, he notes, even without the increasedincidental take of loggerheads by the sword-fish fishery. The increased take, he observes,“inflicts an additional loss of four to elevenpercent.”

“The proposed action to allow 34 logger-head sea turtle takes, making up seven mortali-ties a year, would be an increase in the govern-ment-authorized killing of what is now anendangered distinct population,” Enticknapwrites.

But even the agency’s estimate of sevenmortalities a year is flawed, he goes on to argue:“NMFS is being overly risky in assuming that34 takes equals only seven mortalities and onlyone adult female. This then increases the riskthat the [population models] are underesti-mating the true impact of the proposed ac-tion.”

“Ultimately, … it appears NMFS is takingthe position that the North Pacific loggerheadpopulation is declining towards extinctionanyways, so why not just let U.S. fishermen killa few more…. This is not only unlawful, it isreckless and irresponsible [and] … in contra-vention to NMFS’ affirmative duty to recoverthe species.”

NMFS’ population models for the leather-back are similarly problematic, Enticknapwrites, with the agency discounting “the em-pirical data showing a population decline andthe many other factors affecting the popula-tion that were not addressed by the climate-based” model.

“The loss of even a few individual logger-heads and leatherbacks is all the more signifi-

cant in light of the species’ poor baselinecondition,” writes Henkin of Earthjustice. Asthe BiOp itself acknowledges, he continues,“Climate-change impacts are expected toresult in the inundation of nesting beachesand possibly skewed sex ratios as tempera-tures at nesting beaches continue to rise.”

Telegraphing possible legal objections tothe increased incidental take limits, Henkinnotes that the 9th Circuit has already madeclear, in a 2008 case, that “where baselineconditions already jeopardize a species, anagency may not take action that deepens thejeopardy by causing additional harm.”

A ‘Beneficial’ FisheryNot surprisingly, Leppo, the attorney repre-senting HLA, has a view of the regulationsdiametrically opposed to those of Earthjustice,Oceana, and the more than 2,000 individualswho signed petitions or weighed in with theirown critical remarks during the public com-ment period last summer.

According to Leppo, “the regulatoryrecord establishes that, taken as a whole, theeffects of the shallow-set fishery are beneficialto both leatherback and North Pacific logger-head sea turtles” (emphasis in original). Thechief argument he is able to muster to supportthis point of view is that there is a marketdisplacement effect, or “spillover effect” thatoccurs when the regulated boats capture fishthat otherwise, the argument goes, would becaught by less regulated, less turtle-friendlyfleets.

The “scientific community (includingNMFS) has demonstrated that as the shallow-set fishery increases its effort, it displaces theeffort of high-impact foreign swordfish fish-eries,” Leppo writes.

Earlier this year, the 9th Circuit panelhearing the HLA’s appeal roundly rejectedthis argument, noting that the 2008 BiOp“found the market transfer effects argument‘too speculative to be persuasive.’” In thatBiOp, the study that supported the spillover-effect argument had been bought and paidfor by the HLA.

The 2012 BiOp, prepared after the appealscourt heard arguments, relied on a new studyof market transfer effects conducted by HingLing Chan (with the University of Hawai‘i’sJoint Institute for Marine and AtmosphericResearch) and Minling Pan (with NMFS’Pacific Islands Fisheries Science Center). Thatstudy, which was released by NMFS the samemonth as the BiOp, found that “higherHawai‘i swordfish production results in lowerdemand for imported swordfish, which inturn reduces sea turtle bycatch worldwidebecause the sea turtle bycatch rates in theexporting countries’ fleets are higher than

November 2012 ■ Environment Hawai‘i ■ Page 7

that in the Hawai‘i shallow-set longlineswordfish fishery.” Also, they write, theirstudy “implies that reducing Hawai‘i shal-low-set longline swordish productionthrough regulatory changes … did not causean overall lower level of sea turtle bycatch inthe North and central Pacific… because theHawai‘i … swordfish fishery has one of thelowest sea turtle bycatch rates among thefleets fishing” in the area. In other words,despite the imposition of regulations on theU.S. fleet intended to protect turtles, theturtles did not benefit, since the swordfishwere pursued by vessels from countries un-constrained by such regulation.

The Pan and Chan study was harshlycriticized by Jason Scorse, professor of inter-national environmental policy at theMonterey Institute and also the director of itsCenter for the Blue Economy. The study isflawed because the authors did not show thatany increase in foreign production of sword-fish occurred directly as a result of the Hawai-ian restrictions and would not have occurredotherwise, he argues. Or, as he writes, “theonly robust way to show that the restrictionson Hawaiian swordfish production lead toincreases in global turtle mortality would beto show that the actual swordfish not caught[by the Hawai‘i fleet] are caught by non-U.S.producers with higher turtle bycatch ratesAND that these represent additional catch forthese non-U.S. producers…. Unless it can beshown that the swordfish not caught byHawaiian swordfish producers are caught byothers, leaving total global production un-changed, then the case for increased turtlebycatch simply does not exist.”

Restrict Imports?Oceana’s Enticknap also disputes the centralthesis of Pan and Chan, which is a corner-stone of the BiOp’s finding that turtle takescan be increased without putting their popu-lations in jeopardy of extinction. Etnicknapcites many of the same reasons set forth byScorse, but goes on to note that NMFS cantake action to minimize the turtle bycatch ofthe less regulated nations through restrictionsof imports.

The Secretary of Commerce, he writes, “isrequired to make a determination that thegovernment of a harvesting nation has ‘pro-vided documentary evidence of the adoptionof a regulatory program governing the con-servation of the protected living marine re-source that is comparable to that of theUnited States … and which, in the case ofpelagic longline fishing, includes mandatoryuse of circle hooks, careful handling andrelease equipment, and training and observerprograms.’ This has not occurred.”

Henkin of Earthjustice makes the samepoint: “if NMFS is serious about reducingU.S. swordfish imports and the bycatchassociated with them, the agency has legaltools available to address the issue directly,rather than relying on an unproven ‘spillovereffect.’ ” The Center for Biological Diversityand Turtle Island Restoration Network“petitioned NMFS to ban swordfish fromseveral dozen nations” under the provisioncited above, Henkin notes. “NMFS has yet totake any decisive action on the petition. Giventhat NMFS has not used the legal tools thatnot only authorize, but require it to addressforeign bycatch of sea turtles and other marinewildlife through direct means, its purportedinterest in spillover effects rings hollow. All inall, NMFS’s attempts to use theoreticalmarket-based effects to justify allowing theHawai‘i fishery to kill more turtles is bothirrational and unlawful.”

Fewer Observers?Although the new rule is silent on the subjectof observers, several of the commenters re-mark that the Biological Opinion does notrequire continuation of the policy of having100 percent observer coverage for the sword-fish fleet.

In setting the conditions that NMFS mustfollow in permitting the swordfish vessels tooperate, the BiOp states only that NMFS“shall maintain observer coverage at rates thathave been determined to be statistically reli-able for estimating protected species interac-tion rates onboard Hawai‘i-based shallow-setlongline vessels.”

As Henkin notes, “One of the keys toreducing bycatch … has been the require-ment of 100 percent observer coverage andthe implementation of ‘hard caps’ that re-quire the fishery to close as soon as theincidental take limit for loggerheads or leath-erbacks has been reached.”

Eliminating this requirement will “under-mine the effectiveness of the ‘hard caps’ ontake,” he writes. “Without 100 percent ob-server coverage, NMFS must gather and ana-lyze raw data from a subset of vessels, andcome up with an estimate of take for thefishery as a whole. This can involve a signifi-cant lag time between when the takes occurand when NMFS analyzes the data and deter-mines that the fishery has met or exceeded itsincidental take limit. Moreover, there is agreat deal of uncertainty involved in estimat-ing actual take based on less than 100 percentobserver coverage. The combination of thatuncertainty and reduced reporting by vesselswithout observers could easily translate into asignificant increase in take that would not beimmediately detected by NMFS.”

NMFS states in response to the commentthat the new rule “does not change the 100percent observer coverage for the fishery.”Mike Tosatto, administrator for NMFS’ Pa-cific Islands Regional Office, was askedwhether the agency was committed to retain-ing this level. He did not respond by presstime.

Advance ApprovalIn the past, the longline industry and Wespachave bitterly complained that NMFS did notallow them to review biological opinions inadvance of their publication. In 2002, HLAwon a federal court ruling that determined,under the Endangered Species Act, the orga-nization could be considered an applicantand, as such, have the right to review a BiOpin its draft form.

And it did so in this case. According to theBiOp, “On October 28, 2011, and November21, 2011, conference calls were conductedbetween NMFS PRD [Protected ResourcesDivision], SFD [Sustainable Fisheries Divi-sion], and the applicant, the Hawai‘i LonglineAssociation (HLA) in order to provide anupdate on where NMFS PRD was in theprocess…. On January 2, 2012, the draftbiological opinion was provided to the Appli-cant, HLA, for the proposed action. A confer-ence call was conducted with HLA on January6, 2012. Comments were received from HLAon January 17, 2012.”

The HLA’s comments on the draft rulemention these letters in a footnote and statethat “they are incorporated by reference.”(Environment Hawai‘i asked NMFS for cop-ies of those letters but had not received themby press time.)

In his comments on the draft rule, Leppopraises the achievements of the shallow-setfishery, stating that since tight regulationswere imposed on it in 2004, “loggerhead andleatherback bycatch [has been reduced] by 97percent and 83 percent, respectively, fromprior levels.” He also claims that the fisheryhas “initiated and continues to support suc-cessful sea turtle nesting beach conservationin a direct effort to offset the already negli-gible adverse impacts of the shallow-set fish-ery and to promote the recovery of Pacificloggerheads and leatherbacks.”

In filings with the Internal Revenue Ser-vice, the HLA, which is a 501(c)(6) organiza-tion (one advancing the interests of busi-nesses), the HLA reports it had $594,455 inincome for 2010, with expenditures of$772,404. Of that, $580,620 was used to help“formulate fishery regulations and establishsea turtle conservation measures.” And ofthat amount, $524,982 was paid to StoelRives, Leppo’s law firm. In 2009, HLA spent

Page 8 ■ Environment Hawai‘i ■ November 2012

The popular verdict on a proposal toremove Endangered Species Act protec-

tions for the Hawai‘i population of the greensea turtle is in: by a staggering margin, oppo-nents of the proposal outnumber those whofavor it.

Of course, the National Marine FisheriesService, whose proposed delisting of the turtleprompted the outpouring of support, is notsupposed to be guided by public opinion.Rather, the determination it makes is to bebased on the best science available. Still, thesupport for the Hawaiian green turtle, orhonu, as it is called in Hawaiian, has beenimpressive: As of October 1, when the publiccomment period closed, more than 100,000people had signed petitions, submitted let-ters, or otherwise expressed their oppositionto the delisting.

The proposal to delist was submitted ear-lier this year to NMFS by the Association ofHawaiian Civic Clubs. Comments favoringthe proposal came from the Western Pacific

Proposed Delisting of Green Sea TurtleSees Thousands Rally to Honu’s Support

Fishery Management Council (Wespac) anda handful of individuals, including some whosit on Wespac advisory panels or who other-wise interact frequently with the council.None of the comments came from anyonewriting on behalf of, or identifying himself orherself as a member of, any Hawaiian CivicClub. Nor did the Association itself submitcomments.

Most of those commenting, whether foror against, simply expressed personal views.But several environmental groups, whosecombined membership reaches into the hun-dreds of thousands, weighed in with exten-sive scientific and legal arguments against thefinding.

The Wespac comment letter, signed bycouncil executive director Kitty Simonds,points out that NMFS’ recovery plan forPacific populations of the turtle “includeseight recovery criteria, all of which must bemet to be considered for delisting.” Simondsthen goes on to argue that those criteriashould not apply to the honu, since thedelisting criteria “were not created specific tothe Hawaiian population, but instead werecreated for all green turtles inhabiting U.S.Pacific waters.”

The turtle’s protection under the Endan-gered Species Act (ESA) “not only prohibitedtraditional, cultural, and subsistence use ofhonu, but also deprived local communities ofthe ability to take care of the resource uponwhich they depended,” Simonds argues.

Red List StatusAs far as scientific arguments are concerned,Wespac’s comments rely almost exclusivelyon the “Red List Assessment” of the Hawai`igreen sea turtle published earlier this year bythe International Union for the Conservationof Nature. In a review of the turtle’s status inHawai‘i, the IUCN determined that it hadrecovered sufficiently to merit “least concern”status.

That finding was challenged, however, inthe extensively footnoted, 41-page commentssubmitted jointly by representatives of theCenter for Biological Diversity, Turtle IslandRestoration Network, the Humane Societyof the United States, and Earthjustice.“IUCN’s positive review of Hawai‘i’s greensea turtle has several significant flaws,” theirletter states. “Its conclusions cannot be readilyaccepted as true if this population is strippedof protections offered by the federal ESA andother protections that may be removed as aconsequence.”

First, they note, removing protections“would reel back many of the importantmeasures that have prevented anthropogenicharm to the sea turtles and their habitat.”

Second, “the IUCN classifications con-sider different criteria than are used to deter-mine threatened and endangered status un-der the ESA.” While advocates for delistingclaim that the turtle’s population now standsat some 83 percent of what it was beforeexploitation, they write, “under the ESA, a 17percent overall decline of the species withongoing threats would warrant continuedprotection.”

Third, “the threats from climate change,including sea level rise, ocean warming, andocean acidification, were underestimated bythe IUCN status review.”(The IUCN assess-ment dismisses the potential impacts of sea-level rise with the statement that, while “in-creases in sea-surface temperature andintensity and number of severe storms arepotential climate change-induced threats fac-ing sea turtles… , there is evidence of long-term accretion of islands, so that this effectmay be somewhat mitigated.” It also notes,however, that with warming temperatures,more males may hatch, “leading to a propor-tional increase in male production.”)

Ongoing ThreatsThe Conservation Council for Hawai‘i ad-dressed many of the same points. In a 13-pagecomment, heavy with citations to law, legalprecedent, and scientific literature, the grouppoints out that in considering whether todelist a given species, NMFS must considerfive criteria for listing set forth in the ESA. Ifany one of those five criteria persists, a species

Green sea turtle.

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$404,986 for the same purpose, according toits IRS filing, with $374,086 of that going toStoel Rives.

In an email, Environment Hawai‘i askedLeppo to identify those “successful sea turtlenesting beach conservation” measures men-tioned in the comment letter, but no re-sponse was received by press time.

— Patricia Tummons

November 2012 ■ Environment Hawai‘i ■ Page 9

may not be delisted, CCH notes. Those fac-tors involve: harm to the animal’s range;overutilization; disease or predation; inad-equacy of existing regulations; and ”othernatural or manmade factors affecting its con-tinued existence.”

CCH argues that recent case law from the9th Circuit suggests that NMFS must considerthe potential impacts climate change mayhave on “all stages of honu life history.” And,notwithstanding the optimistic view in theIUCN assessment, those impacts could wellbe devastating. CCH and other commentersreference studies that show sea level rise asso-ciated with warming oceans could wipe out orinundate 30 percent or more of the land massof islets at French Frigate Shoals, where mostof the green sea turtles nest. “Whale-SkateIsland serves as a prime example of honunesting habitat loss due to sea level rise,” CCHnotes. “Before 1997, Whale-Skate Island wasthe second largest honu nesting beach atFrench Frigate Shoals. By 1997, however,Whale-Skate Island eroded away and com-pletely submerged underwater.”

Whatever the effect of climate change,CCH states, “the precautionary principle mustapply.”

As for overutilization, that, too, is an ongo-ing condition, CCH notes. Not only are greenturtles hooked by longline fishing vessels – in2011, the incidental take limit of 4 turtles peryear was exceeded by the shallow-set longlinefishery – but near-shore fisheries and recre-ational users exact high tolls as well, account-ing for about 12 percent of the turtles strandedbetween 1982 and 2003.

“Although fisheries interactions have de-clined,” CCH continues, “NOAA should con-sider that Hawai‘i’s increasing population,expanding fisheries, and ever-expanding tour-ism economy might cause these threats toescalate.”

CCH also takes exception with the petitionstatement that Hawai‘i has regulations inplace that will give the turtle adequate protec-tion if it loses its federal status as threatened:“Even if the State of Hawai‘i did have amanagement plan, many private citizens andenvironmental organizations have questionedthe State of Hawai‘i’s ability to enforce amanagement plan that would continue tosustain honu population.”

Contrary to ESAThe Hawaiian Civic Clubs’ petition to delistproposes a two-step process. First, NMFS isasked to find that the Hawai‘i green turtlesconstitute a “distinct population segment”(DPS), separate from the wider Pacific popu-lation of green turtles. Second, it is asked tofind that this new DPS is healthy enough to

warrant removal from the protections affordedby the Endangered Species Act.

But the Conservation Council for Hawai‘iraises the point that the petition to delist theHawaiian green turtle and at the same timedetermine it to be a distinct population seg-ment violates the ESA.

“Congress intended the DPS [distinctpopulation segment] to provide a means togive species greater protection, when the dataare limited to one segment of the species andnot on the global level,” it notes. “Logically, apopulation can only be listed if it is ‘threat-ened’ or ‘endangered.’ A species cannot besimultaneously imperiled and recovered.Therefore, if the [Fish and Wildlife Service]and [National Oceanic and AtmosphericAdministration, NMFS’ parent agency] de-cide to list honu as a DPS, the logic of the ruleappears to require the agencies to also developand implement a recovery plan pursuant toESA.”

In other words, the act of designating a DPSis a tool intended to protect small populationsof species when their larger populations donot qualify for ESA protection.

CCH notes that “previous attempts to useDPS Policy to delist species have resulted inconsiderable litigation. In such cases, courtswithin the 9th Circuit have preserved the ESAlisting. For example, the United States Dis-trict Court for the District of Oregon inter-preted the DPS rule to mean that ‘listing ofpopulation segments is a proactive measure toprevent the need for listing a species over alarger range – not a tactic for subdividing alarger population…”

Defenders of Wildlife and the Sea TurtleConservancy address the same point. “Weagree that DPS designation can provide ben-eficial distinctions in protections needed be-tween truly discrete populations,” they state.“Nevertheless, we are concerned in this in-stance that DPS designation not be used im-properly to carve out and prematurely dimin-ish protections for species that do not meet theDPS criteria or have not fully recovered.”

By law, NMFS must make a decision on theHawaiian Civic Clubs’ petition within oneyear of receiving it – in this case, by February14, 2013.

Meanwhile, in Hawai‘i…Last spring, the Hawai‘i Legislature’s HouseCommittee on Water, Land, and Ocean Re-sources held a hearing on a resolution thatwould have had the state urge NMFS to delist

the green turtle. Among other things, theresolution (House Resolution 61 and the iden-tical House Concurrent Resolution 87) statedthat the delisting was warranted because turtleshad now recovered to the point that theirnumbers were too great and were inflictingharm on the environment.

Hundreds of individuals submitted testi-mony, with the overwhelming majority op-posed to the resolution. Speaking in its favorwere representatives of a number of HawaiianCivic Clubs as well as the president of theassociation, Soulee Stroud. Many of thosesupporting the resolution repeated the claimthat the environment was burdened by toomany turtles.

That idea was rejected, however, by NMFS.Lisa Croft, deputy regional administrator ofNMFS’ Pacific Islands Regional Office inHonolulu, took the unusual step of submit-ting testimony disputing the claims.

“The resolutions state that ‘the environ-ment and ecosystem are suffering from thecurrent over-protection, over-population, andlack of management of honu,’” she wrote.“The resolutions suggest that this is scientific

and accepted fact. However, it is not. The levelof scientific study necessary to support thebroad statement in the resolution is unavail-able. The green sea turtle has and continues tobe an important part of the marine and coastalecosystem of Hawai‘i, and it is inaccurate toassign broad environmental and ecosystemproblems to the honu.”

In his testimony on the resolution – whichwas eventually shelved – Stroud, the AOHCCpresident, singled out one Civic Club forspecial praise for its role in pushing for thedelisting of the turtle: “We especially want tocommend the Maunalua Hawaiian Civic Clubfor their patient reviews and analyses of thehonu situation and for bringing the resolutionto [the AOHCC] convention for so manyyears.” According to Stroud, the AOHCC hadbeen discussing the turtle issue since 2007.

The Maunalua Hawaiian Civic Club wasformed in October 2006, just months beforethe AOHCC first took up the turtle delistingproposal. Since that time, Kitty Simonds,Wespac executive director, has served as itspresident, or pelekikina. Its vice president isMark Mitsuyasu, a fishery program officer forthe council. One of its four directors is CharlesKa‘ai‘ai, yet another Wespac employee. In all,of the eight named officers or directors of theclub, three are directly employed by Wespac.

— Patricia Tummons

“The green sea turtle has and continues to be animportant part of the marine and coastalecosystem of Hawai‘i.” — Lisa Croft, NMFS

Page 10 ■ Environment Hawai‘i ■ November 2012

Board Approves Management Plan,Accepts EA for Ka‘u Forest Reserve

B O A R D T A L K

To many conservationists, the 61,600-acre Ka‘u Forest Reserve on the Big Is-

land contains some of the best forest in thestate, particularly for native birds.

So when the state Board of Land andNatural Resources recently entertained a rec-ommendation from its Division of Forestryand Wildlife (DOFAW) to approve a 15-yearmanagement plan for the reserve that pro-posed fencing off and actively managing 20percent of the reserve, the Conservation Coun-cil for Hawai‘i (CCH) and The Nature Con-servancy of Hawai‘i (TNCH) offered theirenthusiastic support.

“The Ka‘u Forest Reserve is the missinglink ... between the forest bird habitats on theBig Island,” CCH executive director MarjorieZiegler told the Land Board at its September28 meeting.

While her organization would have pre-ferred that DOFAW protect the entire reservefor native species, “you have to start some-where,” and the plan does commit to protect-ing the upper half of the reserve for nativespecies, Ziegler said.

TNCH’s Mark Fox also testified in supportof the plan, stating that it was “a pleasure andhonor” for his organization to have had an

opportunity to participate in developing theplan. TNCH staff helped bring more than 80members of the public to the forest “to seewhat this plan is all about,” he said. TNCHmanages four inholdings within the Ka‘u for-est totaling 3,500 acres.

In addition to fencing and weed control,the plan calls for developing and maintainingaccess roads for recreation, hunting, gathering,and other appropriate purposes, Fox said.

These other uses — hunting, in particular –were some of the main reasons why only afraction of the reserve will be fenced, and thisdisturbed biologist and Big Island residentRick Warshauer.

“None of the three management optionspresented (each is only 20 percent of the Ka‘uFR total area) is anywhere close to what isneeded to protect the most important array ofbiological resources on the island. The largescale option (fence and remove ungulates fromall of Ka‘u FR) was ‘Dismissed from FurtherConsideration’. This was following a string ofrational reasons within the same paragraphwhy the large-scale option should be done.The stated reasons for dismissal were concernsover adverse effects on hunting opportunitiesand cost,” Warshauer wrote in his comments

on the plan’s environmen-tal assessment, prepared byRon Terry of Geometri-cian Associates. (Terryserves on the board of di-rectors for EnvironmentHawai‘i, Inc..)

Warshauer called thepreferred management op-tion, which would requirefencing off the middle-upper half of the reservefrom ungulates, a “smartstep in the right direction,unless it is the only step,which it appears to be.”

The Ka‘u FR is a pro-posed reintroduction sitefor the endangered ‘alala(Hawaiian crow), which isextinct in the wild.Warshauer argued thatmore than 12,000 pro-tected acres are needed tosupport a wild populationof ‘alala, which at times

travels to low elevations.“To expect the ‘alala to remain within the

12,000 acre safe zone is unrealistic, and havingthe surrounding forest reserve prioritized fornon-protective uses is unfortunate for thebirds,” he wrote.

“[T]o restrict protective management,fencing and clearing of ungulates, to 12,000acres is in effect to fragment the forest as itmoves into the future, and to lose a great dealof these resources as a consequence,” he wrote.

At the September meeting, Big Island LandBoard member Robert Pacheco asked Foxwhat he thought DOFAW could do to mini-mize the deterioration of the Ka‘u forest “sowe don’t end up with [just] one 12,000-acrepiece that’s good.”

Fox said only that the state needs to followGov. Neil Abercrombie’s “The Rain Followsthe Forest” plan to manage core forest areaswell and promote game management in ap-propriate areas.

“I apologize if this is a bit of a dodge,” hesaid. “I’m not going to sit here and say fence12,000 today and another 40,000 in [so many]years. I’m not qualified to say that.”

The proposed plan was an important stepin the right direction and should any morefencing be proposed for the area, it must gothrough rigorous public review, he said.

During scoping meetings for the plan,local hunters vociferously argued against fenc-ing off even 12,000 acres. None testified againstthe plan at the Land Board’s meeting inHonolulu.

Addressing DOFAW’s approach to hunt-ing in general, Ziegler argued that some of theagency’s proposed rules “are just not aligned[with] what you are trying to accomplish inthese sensitive native areas.” In written testi-mony, Ziegler specifically mentionedDOFAW’s bag limits, which she felt should beremoved for all game species.

She also encouraged more fencing. CCHsupports responsible hunting and responsiblegame management, she told the board, but“letting animals run where they want to run isnot responsible game management.”

Acting DOFAW administrator RogerImoto told the board that his agency alreadyhas more than half a million dollars to imple-ment the plan.

“It’s a plan that’s not just going to sit up ona shelf,” he said. “We are actively getting rid ofcattle in the area, getting access for huntersinto the area, and working with private land-owners.”

The Land Board ultimately approved theplan and accepted the finding of no significantimpact of its EA.

“This is exciting. I support the recommen-dation wholeheartedly and am looking for-

November 2012 ■ Environment Hawai‘i ■ Page 11

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ward to a new year for the Ka‘u forest,”Pacheco said.

� � �

Board ApprovesManagement Plan

For ‘Ahihi-Kina‘u Reserve

The majority of the ‘Ahihi-Kina‘u Natu-ral Area Reserve has been closed since

August 2008 and will remain so until at leastAugust 2014. But if it ever opens again, man-agement will be far stricter than it was in thedays when some 250,000 visitors a year over-ran the place, using anchialine pools as toiletsand crushing fragile corals underfoot.

The Land Board initially closed the reserveto protect the natural and cultural resourcesthere from throngs of visitors and to preventthose crossing the remote, treacherous lavafield to reach popular swimming coves fromgetting hurt. The reserve has remained closedbecause unexploded ordnance left by the U.S.Navy has been found and the U.S. ArmyCorps of Engineers is still evaluating the area.

In the meantime, the ‘Ahihi-Kina‘u NAR/Keone‘o‘io Advisory Group — a group ofcommunity members created by the Depart-ment of Land and Natural Resources —developed a management plan with help fromDLNR staff, local and federal governmentofficials, The Nature Conservancy of Hawai‘i,and others.

On October 11, the Land Board approvedthe plan, which aims to build managementcapacity, manage human uses, control bio-logical threats, and prevent land-based im-pacts.

Under the plan, the portion of the NARthat is currently closed will be accessible onlyunder a special use permit or via a staff-lededucational hike or service project. The oceanportion of the reserve would be closed at nightand motorized vessels and anchoring wouldbe prohibited at all times.

The plan also recommends establishing aparking or other user fee to fund the reserve’smanagement. Without a fee, DOFAW willnot be able to fund even the most basicmanagement tasks and would fall hundreds ofthousands of dollars short of what would berequired to fully implement the plan.

The most important goal of the plan, tohire a new reserve manager, has already beenachieved. DOFAW has recently hired DavidQuisenberry for the job. Quisenberry told theLand Board that a new volunteer coordinatorhas also been hired and that they are recruitingnew volunteers and developing an interpre-tive program in accordance with the plan.

DOFAW is still awaiting a report from theU.S. Army Corps of Engineers on an ordnancesurvey conducted in the reserve last year. Thereport is expected to include recommenda-tions to minimize the impacts of unexplodedordnance.

� � �

DLNR Acquires LandFor Honolulu Reserve

The Honolulu Watershed Forest Reserveis about to get a little larger.

On September 28, the Land Board voted toexchange its interest in four parcels in NiuValley for the fee simple interest in one ofthem, which will be added to the forest reserveafter the DLNR holds public hearings.

The 263-acre parcel has been valued at$710,000, which is more than ten times theappraised value of the state’s interest in the fourparcels.

Until the board’s decision, the HawaiianHumane Society held a 52 percent interest inthe parcels, the deeds for which required theorganization to operate a public educationpreserve on the land “for flora and fauna.”Otherwise, the land would go to the state foruse as a park.

“This deed provision constitutes the state ofHawai‘i’s springing executory interest,” statesa DLNR Land Division report to the board.

The property had been in the Lucas familyfor several generations, according to Laura

Thompson, whose mother, Elisabeth Lucas,sold her interest in the parcels to the Hawai‘iHumane Society more than 20 years ago.

“This is family property. ... My father andmother wanted to keep it the way it is,”Thompson told the board. “Thank you forconsidering this.”

� � �

Wespac May GrantAquatics Division $450,000

The DLNR’s Division of Aquatic Re-sources may be getting a windfall to

improve its online reporting system for fish-ermen and fish dealers if the National Oce-anic and Atmospheric Administration ap-proves a $1.8 million grant application fromthe Western Pacific Fishery ManagementCouncil (Wespac).

The application, submitted in August,seeks to add a new data coordinator positionfor Wespac and lists nine projects aimed atimproving data collection for nearshore fish-eries.

At $457,000, developing, implementingand maintaining online reporting forms forfishermen and fish dealers is the priciest ofthe proposed projects.

On September 28, the Land Board unani-mously approved a recommendation by thedivision to accept grant funding fromWespac should it become available. — T.D.

Page 12 ■ Environment Hawai‘i ■ November 2012 Non-ProfitOrganizationU.S. Postage

PAIDPermit No. 208Honolulu, HIAddress Service Requested

72 Kapi‘olani StreetHilo, Hawai‘i 96720

Printed on recycled paper

One of the original owners of the in-famous “purple spot” in West O‘ahu’s

Lualualei Valley is under greater pressure tosqueeze the most money out of the propertynow that he has lost his fight to keep hisinterest in Tropic Land, LLC, out of thereach of creditors.

On August 21, the U.S. Bankruptcy Appel-late Panel of the 9th Circuit affirmed decisionsby the U.S. Bankruptcy Court for the Districtof Hawai‘i that allowed Hawai‘i NationalBank to collect $2.4 million from SunraCoffee, LLC, and Michael Nekoba.

Nekoba, owner of The Mortgage Groupand a member of Sunra, is one of the threeoriginal principals of Tropic Land, which afew years ago proposed developing nearly 100acres of agricultural land in Lualualei Valleyinto a light industrial park. State businessregistration records also list Nekoba as TropicLand’s agent. (Arick Yanagihara, a financialconsultant at The Mortgage Group, is TropicLand’s project manager.)

The other Tropic Land investors weredeveloper Tom Enomoto and entrepreneurClyde Kaneshiro. Enomoto has since trans-ferred his interest in the company to MSSherwood, a company owned by his sister. Ina declaration to the court, Nekoba stated thathe, Enomoto, and Kaneshiro paid $3 millionfor 260 acres in Lualualei Valley. Nekoba’scontribution to the purchase was $870,000.

According to attorneys representingNekoba and HNB in the bankruptcy case, thebankruptcy appellate panel, or BAP, imposeda lien on Nekoba’s interest in Tropic Land.Although a March 2011 writ of executionfrom the bankruptcy court suggests thatNekoba’s interest was to be sold at public

Tropic Land’s Proposal to BuildA Light Industrial Park in Lualualei?

auction within 60 days, Keith Yamada, HNB’sattorney, says no deadline applies.

The bankruptcy action began after Sunraand Nekoba defaulted on an HNB loan fortheir Royal Hualalai Gardens developmenton the Big Island. The bank filed a complaintin 3rd Circuit Court in December 2008, whichwas moved to federal bankruptcy court abouta year later.

The bank bought the 214-acre Hualalaiproperty at a foreclosure auction, leavingSunra and Nekoba with a remaining debt of$2.4 million. The court issued a judgmentagainst Sunra, Nekoba, and real estate invest-ment company ADI, LLC, for that amount onSeptember 23, 2010. (ADI, now defunct, wasrun by Sunra member Mariko Ejiri.)

When it came time to disclose his assets,Nekoba argued that his one-third interest inTropic Land was off limits, since it was heldjointly by his wife, Daryl.

“HNB argued that, as to Tropic Land,LLC, Nekoba had owned his member interestin that company for five years as an individualbefore transferring it to him and his wife onSeptember 30, 2010, seven days after entry ofthe judgment against him on September 23,2010,” the BAP decision states.

In Honolulu, U.S. bankruptcy judge Rob-ert Faris determined in October 2011 thatNekoba intended to “hinder, delay, or de-fraud” HNB when he transferred his interestto him and his wife. The bank was, therefore,entitled to “enforce its remedies as a judg-ment creditor” against Nekoba’s interest inTropic Land, Faris found.

Nekoba challenged the court’s jurisdic-tion over the case, but both Faris and the

appellate panel found that his challenge cametoo late.

“[W]e agree with the bankruptcy courtthat it is simply too late for Nekoba tocollaterally attack the bankruptcy court’s sub-ject matter jurisdiction, because the judg-ment is clearly final,” the appellate panelwrote, noting that it wasn’t until July 2011that Nekoba changed his position on themerits of the case and challenged the court’sauthority.

The BAP decision heaps another large debton Nekoba. Last year, along with Enomoto,the Sunra-related Two Tigers Fund, LLC,and others, Nekoba was found by a 1st Circuitjudge to owe Central Pacific Bank roughly $4million for defaulting on a loan for the BayView golf course in East O‘ahu.

How these judgments will affect the pro-posed development on Tropic Land’s prop-erty in Lualualei Valley is unclear. NeitherNekoba nor Yanagihara returned calls oremails by press time. Before any developmentcan occur, the company will need the stateLand Use Commission to redistrict the landfrom Agriculture to Urban.

On May 16, 2011, after a series of hearings,the LUC denied a petition from Tropic Landto amend its property’s designation. On April21, the LUC had voted 5-3 to approve aboundary amendment, but because six affir-mative votes are needed, the commissioneffectively denied the petition.

Nekoba told the bankruptcy court lastyear, after the LUC’s decision, that TropicLand was looking for other uses of its propertybecause the agency’s rules prevented the com-pany from reapplying for a boundary amend-ment for one year after a denial. It’s been morethan a year now since the LUC’s decision, butno new petition had been filed as of mid-October.

In February, the Honolulu City Councilvoted to approve a new Wai‘anae SustainableCommunities Plan, which allows the countyto spot zone Tropic Land’s property as Indus-trial. — T.D.

W H A T E V E R H A P P E N E D T O . . .