OHA against Lepeuli changes

SUBHEAD: The Office of Hawaiian Affairs has joined the Sierra Club in questioning the permit to cut off Lepeuli access by rancher Layman. Kauai rep Ron Agor's support for Laymon was in fact the deciding factor for approval according to minutes of the BLNR.

By Andy Parx on 4 May 2010 in Parx Daily News -  
(http://parxnewsdaily.blogspot.com/2010/03/pnn-oha-joins-fray-in-questioning.html)


Image above: GoogleEarth view of Kauai shoreline showing 3 ahupuaa (l. to r.) Kaakaaniu, Lepeuli and Waipake in green. Red lines are traditional paths from USGS maps. Tan lines are property bounds and yellow lines are archeological sites. Blue lines are streambeds. Map by Juan Wilson. Click to enlarge.  

The movement to reverse a Conservation District Use Permit (CDUP) issued by the Department of Land and Natural Resources (DLNR) to Waioli Corporation lessee Bruce Laymon, one which would cut off traditional access to Lepeuli (Larsen's) Beach and potentially pollute the reef by allowing cow grazing just above the beach, has another ally.

The Office of Hawaiian Affairs’ (OHA) Clyde Namu‘o has joined the Sierra Club in questioning the permit and, in a letter to Tiger Mills of the state Office of Conservation and Coastal Land, points out the shoddy nature of the application and process in granting the permit, asking pointed questions as to what much of the permit was based on.

While the Sierra Club letter- which we posted in full a week ago Monday- detailed the specific discrepancies and deficiencies Namu’o simply puts the onus on Laymon and the DLNR to fully explain themselves focusing on the cultural, access and gathering rights issues involved.

 “We have concerns that the project will impact constitutionally-protected traditional and customary Native Hawaiian rights. We note that the project site is located near the shoreline where Native Hawaiians engage in a number of traditional and customary practices, such as fishing and gathering” the letter states.

He asks how, as the permits states, the ranching operation will get rid of “nude sunbathers” but not “Native Hawaiians exercising their traditional and customary rights along the shoreline (who) will be impacted by this project in the same way nude sunbathers will be affected.”

He also questions the contention in the application that that "there is no record of native Hawaiian usage" of the area which, he says, is contrary to the statements of people in the area and he puts the onus on Laymon to substantiate his statements. In his application and testimony before the Board of Land and Natural Resources (BLNR) Laymon and his attorney Lorna Nishimitsu tried to create confusion over where the traditional “alaloa” in the area actually runs saying opponents should prove that it runs across the fenceline that would cut off the trail that’s been used for as long as people in the area can remember. But Namu’o says “It is our understanding that traditional use of this trail has never ceased. We fear that the proposed fence will disrupt our beneficiaries' use of the trail and impact the trail itself. Moreover, there seems to be disagreement between the applicant and the community regarding the exact location of the alaloa and the Ko`olau Road. We request that state officials and the applicant consult with the community and OHA to discuss appropriate measures to mitigate the impacts this project will have on cultural sites and traditional and customary Native Hawaiian practices.” Laymon’s has a history of environmental degradation and Waioli has seemingly turned a blind eye to what he’s doing on their land as we detailed last October. But despite promises from Kauai BLNR representative Ron Agor to recognize the issues and try to block the permit, his support for Laymon was in fact the deciding factor according to minutes of the BLNR meeting at which the pertinent was granted. The following is the text of OHA’s letter in full:
February 9, 2010 Tiger Mills Office of Conservation and Coastal Land Department of Land and Natural Resources P.O. Box 621 Honolulu, HI 96809 RE: Paradise Ranch LLC, Hanalei, Kam TMK: (4) 5-1-003: 003. Aloha e Tiger Mills, The Office of Hawaiian Affairs (OHA) received your letter requesting comments on the above-mentioned project. Paradise Ranch LLC proposes to construct a fence for pasture purposes that will run parallel to the sea, 100 feet from the shoreline. OHA has reviewed the project and offers the following comments. We have concerns that the project will impact constitutionally-protected traditional and customary Native Hawaiian rights.
We note that the project site is located near the shoreline where Native Hawaiians engage in a number of traditional and customary practices, such as fishing and gathering. The applicant states on page 5 of the CDIJA that the fence project will bring its ranching operation close enough to the beach to impact "nude sunbathers." However, the applicant states that its operations will not impact fishers or other beachgoers.
The applicant must explain why its ranching operation will impact nude sunbathers but not other users. We suspect that if the ranching operation affects one user, it will likely affect all users in the same way. We assume then that Native Hawaiians exercising their traditional and customary rights along the shoreline will be impacted by this project in the same way nude sunbathers will be affected. The applicant must fully explain these impacts and offer mitigation measures.
Page 6 of the application states that "there is no record of native Hawaiian usage" on the property since the 1850s. We ask to review the records the applicant used to arrive at this conclusion. Further, OHA is troubled by the applicant's suggestion on page 6 that the state "should not take any action to establish any protection" of traditional and customary Native Hawaiian rights.
The Hawai`i Constitution specifically asserts that the state must protect Native Hawaiian rights. In addition, the Hawai`i Supreme Court ruled that the state must assess the impacts its actions will have on Native Hawaiian resources and rights (See the three-part test the court established in Peakai O Ka `Aina v. Land Use Comm'n, 94 Haw. 31, 47 (2000)) OHA has specific concerns regarding the project's impact on area trails, particularly the alaloa, which is designated as State of Hawai`i Historic Site No. 50-30-04-1033.
It is our understanding that traditional use of this trail has never ceased. We fear that the proposed fence will disrupt our beneficiaries' use of the trail and impact the trail itself. Moreover, there seems to be disagreement between the applicant and the community regarding the exact location of the alaloa and the Ko`olau Road.
We request that state officials and the applicant consult with the community and OHA to discuss appropriate measures to mitigate the impacts this project will have on cultural sites and traditional and customary Native Hawaiian practices. In addition, the historic, archaeological and cultural sites section of this CDUA is incomplete as no sites are listed, not even the alaloa, which as mentioned earlier is a state historic site. Please note that the applicant must identify and submit management plans for historic, archaeological and cultural sites located not only within the subject parcel but also near it.
We request the applicant's assurances that should iwi kapuna or Native Hawaiian cultural or traditional deposits be found during the construction of the project, work will cease, and the appropriate agencies will be contacted pursuant to applicable law. The applicant states on page 5 that the proposed fence will bring the applicant's ranching operations closer to the beach. The applicant must explain the impact this will have on the marine resources of the area.
Many of our beneficiaries' traditional practices rely on these marine resources. The applicant also must explain how the expansion of its ranching operation will affect endangered and threatened species such as monk seals and green sea turtles. These animals may be impacted in the same way as the nude sunbathers. Thank you for the opportunity to comment.
If you have further questions, please contact Sterling Wong by phone at (808) 594-0248 or e-mail him at sterlingw@oha.org.
'O wau iho no me ka `oia’i’o,
Clyde . W. Namu‘o
Chief Executive Officer
|C: OHA Kaua`i CRC Office

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