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HomeMy WebLinkAbout2014-05-19 Game Management Advisory Commission Minutes Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 Game Management Advisory Commission County of Hawaii Minutes Meeting Date: May 19, 2014 Time: 6:36 p.m. Place: Puna Conference Room, 25 Aupuni S., Ste 1501, Hilo HI & Video Conference to West Hawaii Civic Center, Mayors Conference Room 74-5044 Ane Keohokalole Hwy., Kailua-Kona HI CALL TO ORDER: Chair Sylvester ROLL CALL: B. Kossow: Willie-Joe Camara, District 1 Dwayne “Ike” Yoshina, District 2 Anthony “Tony” Sylvester, District 3 Paul Bueltmann, District 4 Thomas H. Lodge, District 5 Kenneth “Kalani” DeCoito, District 6 District 7 - Vacant Mark C. Bartell – District 8 District 9 – Vacant ALSO PRESENT : B. Command, Deputy Planning Director Chris Schulueter, Corporation Counsel Barbara Kossow, Administrative Specialist GUESTS: Larry Brown, Planner with the County Planning Dept. APPROVAL OF THE MINUTES OF April 21, 2014 rd Correction to page 23, 3 paragraph, remove R. Kohatsu and replace with W. Camara and correction to D. Yoshina’s last name. Action: W. Camara moved to accept the minutes as corrected; second by D. Yoshina, and carried unanimously by voice vote. PUBLIC TESTIMONY ON AGENDA ITEMS: None 1 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 REPORTS/SPECIAL COMMITTEE/PRESENTATOIN: 1. Larry Brown will brief the GMAC on public access, who they work with to identify, enforce and maintain access and easements to public lands and any suggestions that he may have to help GMAC better understand the process. Chair Sylvester welcomed Larry Brown who is a Planner with the County of Hawaii’s Planning Dept. Mr. Brown will cover the public access process which is under Chapter 205 A of the Hawaii Revised Statutes. L. Brown primarily concentrates on shoreline areas. When a special management area use permit, minor permit or any determination of exemption to the SMA assessment application he typically looks at the potential for public access to or along the shoreline over the property that is being proposed for some sort of development activity and where appropriate they will utilize the authority granted HRS 205 A to require public access. The process would be either through a public access agreement or grant of easement document. Non access have been relatively few and far between because they’re basically – the only power the county has under the county’s Chapter 34 – Chapter 34 is an ordinance that’s out of the Hawaii County Code that receives its authority under Chapter 46 or Hawaii Revised Statutes that said that the county shall enact an ordinance creating accesses where there’s subdivision activity and Chapter 34 it’s where you have a lot – in a subdivision that’s creating six lots or more or where you have six or more multi-family residential units going on to a property. Planning Dept. sees so little subdivision activity on properties that lead to mountain accesses in Hawaii County that this has only come up maybe three or four times in the last ten years. Planning Dept. has secured one and they are working on another one right now. And these weren’t in connection to subdivisions – there have been none to L. Brown’s knowledge, ever, with regards to the other trigger which is a six-unit or more multi-family development. These are much more frequent in the shoreline areas that you probably could well understand so Chapter 34 has come up several times and for development activities in shoreline areas but more often than not are shoreline accesses are the result of the imposing of any requirement for public access under the Special Management permitting process and the authority granted under HRS 205 A. Mr. Brown stated that all of this really, and admittedly, he is not the attorney here – that his understanding of this stems from HRS 115, which was the, as has been explained to him the infamous un-mandated mandate from the state legislature that the counties shall acquire public accesses to and along the 2 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 shorelines as well as into the mountain areas, which was all well and good but it didn’t come with any money to do that. Mr. Brown further stated that to his knowledge (HRS 115) never really been utilized as the authority. He supposes it could be cited as the authority if the county were to try to exercise the right of eminent domain to secure access over private property to the mountain area and to the shoreline area. Q&A Q.: If a new subdivision or existing subdivision is being built is this incorporated at that point? For example, Hamakua area supposed to have access or easements as part of the stipulation with building a subdivision but there are no accesses. A.: The trigger is they’re proposing to do a subdivision and that subdivision is, if you’re taking one lot and you’re making six lots or more out of that one – then the trigger kicks in. If you have a 50 acre parcel and you’re adjacent to the Hilo forest reserve, for example, you’re going to subdivide it into four lots – Chapter 34 doesn’t trigger. Q.: Is that per one tax map key number? A.: Yes. A parcel of land on a tax map key number. Most of the time it’s the same thing, however, there are some rare exceptions to that. Q.: When buying a large track of land 20 acres or more for example, Hamakua with different tax map keys - does that trigger any access if you develop? A.: Just purchasing the land, no. Q.: Is eminent domain applicable for access to the forest? A.: It’s a tool that’s in the county and the state and the federal government’s tool box that could be used. Mr. Brown has never seen it used for public access with the exception of the one action he is working on at Papaikou. The county’s council last year approved the use of eminent domain to acquire public access over the old mill property down to the beach at Papaikou. To the best of Mr. Brown’s knowledge eminent domain for public access has not been used up until now in this county. Eminent domain’s primarily used for things like road right-of-ways, or on occasion it might have been for a floodway through private property but usually the county hit those through easements. Q.: What would make something so important as to trigger eminent domain? 3 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 A.: Mr. Brown is not an expert on eminent domain and would refer to an attorney, but basically there has to be a pretty significant public need to require it. C. Schlueter (Corp Counsel): Agreed with that opinion that eminent domain is preserve for the instances where public interest is served over the common individual goal of a person. In his experience, it’s very unusual for that to occur and there are a lot of litigations in different states and he has not seen it in Hawaii, but it makes big news in certain jurisdictions where eminent domain occurs. Mr. Brown said, if you wanted to use eminent domain as the tool for acquiring public access and the landowner challenges that – you might end up buying a piece of right-of-way that’s only worth $10,000 dollars but it’ll probably cost you $200,000 dollars to get it by the time you get it fighting the legal battles. Q.: Chapter 34 would be used to gain public access to the mountain - was used only three times in the last 10 years, is that a correct statement? A.: Mr. Brown answered, approximately yes to two and could not recall the name of third one. Q.: Have there been lots or acreage that have been divided six times or six lots that the county has chosen not to get public access? A.: Mr. Brown answered, not that he is aware of. Close tabs were not kept. He could not name an instance where it had happened. Q.: Is this “Chapter 34” good enough to go forward in the future to ensure that when large landowners who border public property subdivide that the public can get access after that subdivision? And as ranch land or farm land or sugar land continues to be sold and subdivided – it’s likely that it’s gonna border some public land that’s landlocked now. What is it that you would recommend for us to do to ensure that when someone comes in to the planning department and says “I want to subdivide” that we get public access? Is what’s on the books good enough? A.: Mr. Brown said, the short answer to that question in my opinion, is “yes” and “no.” Chapter 34 is adequate up to a certain point is that what we lack in Hawaii County and I think it’s been a serious lacking in both shoreline and mountain accesses – is a lack of a public access planner – a program for this county. It’s been hit and miss, sporadic, inconsistent, we can be very aggressive about acquiring accesses under one administration and very lax about it under another and not necessarily due to whoever happens to be mayor at a given point in time or who might be on the Council at any given point in time – though just by prevailing attitudes within the bureaucracy itself, given the political climate, and the economy – that if we don’t have a comprehensive plan that lays out specific 4 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 criteria and standards – the public access – whether you’re heading for the mauka regions or makai regions – then it’s up to whoever’s at our level to ensure that there’s some consistency in the application of the laws that are on the books. Because if we don’t see it and we don’t push it it’s very easily overlooked by people who have other primary responsibilities whether they’re in the planning department or elsewhere in the administration. We have different planners who are responsible for subdivisions. They should be looking at Chapter 34, they should be looking at HRS 205 A. But understandably to a certain extent – I’m not excusing that but – they may have so much detail that they really need to be looking at underneath the zoning code and the subdivision code that often times things like Chapter 34 kind of get overlooked. And it’s easy to do. When I first started working on subdivisions back in 2003 – and for the short period of time that I did do it – Chapter 34 was at the bottom. In fact I was doing it for six months before I even realized what was there. And I don’t have an answer to that or an explanation on how to deal with but the lack of having a comprehensive program to guide the acquisition to government and management of public accesses in this county is chaos. Q.: At the county level, who would be accountable for putting such a plan together? A.: Mr. Brown stated, it’s up to the planning director and or the mayor and or the council. Also, organizations such as GMAC could lend support or community development plan action committees particularly the one in North Kohala – that have a very pro-active public access community-based group. They need to make this a priority for the county. It needs to become a priority and it’s been really tough to do, especially in the last 7 or 8 years with the economic downturn that there just wasn’t the money available. Maybe hiring a consultant and dedicating staff to work on putting something together that works. A plan was started back in the late 70s. They got a draft done. but for whatever reason that draft plan when it hit the adoption phase died. It didn’t go anywhere. It was a good start. I’ve looked at it and it needs to be seriously updated and detailed out to a greater degree than it was originally produced but it was a beginning. Q.: Is there anything like if you sell a tract of land or small ranch or wherever you have like 2500 acres or 1,000 acres or more – is there any mechanism to have access through to a contiguous – not six lots – but just one piece of property – agricultural land or whatever? A.: Always go to individual property owner and try to negotiate either an easement or an outright purchase, fee simple purchase of a right-of-way. The funding that’s provided through the Public Access, Open Space Commission could be utilized for that, but somebody needs to take the initiative to identify and get a particular alignment on their list, so you need to submit an application and apply for it that way. 5 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 Q.: Unless there’s a subdivision application you guys (the county) don’t plan? A.: We (county) have no authority. We have no power to require it. There should be a comprehensive program plan which is not in the General Plan. Mr. Brown said that he feels a comprehensive program would be something that would be adopted such as a resolution. However, if adopted by ordinance it would have more implementation authority. This is something that would need to be discussed between, the county’s attorneys and the planning director to figure out what is really the best vehicle to create, and implement that kind of a strategy. Also, it needs something that provides guidance that says, “Planners in that are doing subdivisions shall do this…” and there’s the criteria. The county has a little bit of it in Chapter 34. Q.: If someone wanted to do something that was more than just the subdivision, how is that addressed? A.: I think we should still do that within the context of that plan or program. I think it needs to be a program because when you’re talking about public access it’s more than just getting a right-of-way. If you don’t talk about who’s going to be responsible for improving it, maintaining it, signage, liability, parking, especially, if you’re going mauka and you want to access – and there’s no place to park – what are you going to do have the guys line up on the easement and the guy that got here first can’t get out cause the guys blocking. Q.: Does PONC have any guidelines and if so, can it be used? A.: PONC has their guidelines. No, the guidelines cannot be used because it’s not comprehensive. They’re just for acquisition. And all they do – they have the authority to identify, prioritize, and then the funds are there for the County to make the acquisition. PONC doesn’t do anything except identify, evaluate, and prioritize. After that it’s up to the Mayor and the Council to decide what properties to go after and negotiate with the landowners and if they have an agreeable seller then they usually will come to an agreement. If they don’t have an agreeable seller, it usually just ends up being a nice try. Q.: What would it take for the County to following up on this issue (public access)? (Question addressed to C. Schulueter, Corp Counsel and B. Command, Deputy Director of Planning). A.: C. Schulueter said a communal effort between the planning department and the Council and the Mayor’s office – that’s sounds essential for this to get going because I don’t think one body alone be able to have this happen, but I would agree that there needs to be some kind of fundamental change in the way of doing business. B. Command: A clear message must reach the legislative body or the administrative side. Mr. Brown’s has a good point regarding some sort of 6 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 baseline study – what we can do and what we cannot do. Good idea to obtain a consultant or something to help achieve our goal so everybody can understand it. It was determined that a recommendation from GMAC would be entirely appropriate when situations arise regarding public access or anything that relates to its mission statement. In addition, this commission needs to come together and formulate a motion. It is not GMAC’s responsibility to actually put together a study but GMAC have to move to do something. The letter may be brief just stating the motion itself. Once the county staff receives your letter, if there are any questions about the scope or the range of the questions or the proposal that you’re making in the motion, then they can come back to you and follow-up with that. Q.: Is a resolution needed to move forward to conduct a comprehensive public access program? A.: No clear answer given. Possible motion would be to advise the Mayor to conduct a uniform practice comprehensive public access plan for the County of Hawaii whether it be on public or private land. Request involves a dedication of financial resources on part of the County for a consultant to do this and an extensive public outreach program and dedication of staff to manage a project. Q.: If a road is shut down and gated, no public access to the area which is now ten acres or five acres lots. Owner will say why do we have to reopen the road? A.: The Chapter 34 and the six-lot subdivision rule is only going to kick in if they try to subdivide. If they don’t try to subdivide it doesn’t come into play at all. The only other alternative you have is called prescriptive rights and that’s where the public has used a right of way over a given period of time, usually quite extensive period of time, with no restrictions, as I understand it. The attorneys are going to have to be a little more specific on this than I can be. But as I understand it, it requires a lot of documentation to be able to establish a right under prescriptive rights – a right of access. The other way, would be if we can purchase the right-of-way. Either the land owner agrees to grant an easement for a fee or to sell the right-of-way fee simple to the government. The last way, without having something like Chapter 34 or some other mechanism that we haven’t created yet, kick in. In a situation where like what you’re talking about – we have private property, we used to go there – because we got permission from the plantation operator – to go up there to go hunting – or fishing or whatever, is if you can establish a public right-of-way under the Highways Act of 1892, where it’s a public right-of-way that existed on the maps prior to 1892, then if we can prove that, then it’s a public right-of-way no matter what the landowner says. 7 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 The plantations usually exercise a stategy that kept that from kicking in, by closing that access off at least one day out of a year and that protected their private property. Q.: If a road is being maintained and paved by the County then that’s a right-a- way? What if the road is blocked off? A.: Yes, county roads are accessible. Report blocked road to the Department of Public Works (DPW) and they should do something about it. The county does not pave private roads. If you feel that is happening report it to DPW. Q.: Is the old roads (paper roads) county owned? A.: B. Command said some of them, yes. All government roads are public roads – that doesn’t mean they’re a county road or a state road. There is a disagreement right now between the state and the county for what are called roads in limbo. They’re public roads but they’re neither paved by the state nor the county. If the county is resurfacing a road it is a county road, same for a state road. Action: T. Lodge moved to advise the mayor and planning director on doing a study on the feasibility of a comprehensive access plan on both public and private lands. Seconded by M. Bartell and carried unanimously by voice vote. It was shared that the Office of State Planning is just completing a draft report titled “Alternative Funding Mechanism for Shoreline Public Access.” PBR Hawaii is the consultant. Suggest this committee obtain a copy as it will relate to the feasibility of a comprehensive access plan. 2. 2014 Legislative update on “Hunter package” and related bills. Chair Sylvester shared the following. HB 1902, HD 2 which Rep. Cindy Evans introduced as a inter-state wildlife violators compact. That bill was mainly towards helping DLNR with some enforcement activities and what that would have done is prevent out-of-state violators coming to Hawaii, purchasing a hunting license or hunting here in Hawaii. It passed through the House and referred to the Senate of Water and Land where it died. Seem to have a lot of problems in the Senate – bills getting passed. All our bills went through the house except for Families A Field. 8 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 HB 1902, SD 2 , it passed through the House and Senate failed to secure funding in House and Senate conference committee. B. Command stated, just for the record – the Senate asked for $110,000 dollar commitment from the County of Hawaii and we were prepared. The County, especially Mayor Kenoi, Bobby Command and others were commended by this committee for its support on HB 1902 during this legislative session. HB 1905, HD 1 , Family A Field - It went through Water and Land in the House and it had trouble in Judiciary due to age requirement and concerns on children with guns. The bill died. HB 1907 – that was the disabled hunters for the veterans or disabled veterans – a hunting license one-time fee – that passed the House and it sat in the Water and Land. It never made it to the Senate. The bill died. HB 2633 – Heritage Breed Animals – that wasn’t put through this commission. However, Chair Sylvester shared his thoughts that this commission should look at supporting this bill and to support a study on some of the animal breeds here something that needs to be done before the animals are eradicated. We have some unique breeds here in Hawaii of diverse genetics that could be used around the world. HB 1903, HD 1 - Outdoor Heritage Month was the only thing that ended up passing. It went to the Governor Act 012. Rep. Evans asked this commission to try to get some support for this. Working with an outside organization and to possibly focus on how we can publicize and promote outdoor heritage awareness around the island and to the outer islands, perhaps some short You Tube videos. Also, Chair Sylvester will draft a proposal to the Mayor highlighting Outdoor Heritage Month and meet with B. Command to discuss how to proceed with this project and go after any resources from the county to promote and publicize this event. Possibly work with County Parks and Recreation Cultural Education Administrator Roxcie Waltjen. The following bills were opposed by this commission. HB 1904 - This bill was on appropriating which started out with $2 million dollars for invasive species. This commission campaigned hard against that and got it to die in the House. This bill was a blanket one for education outreach, basically eradication. It did not specify what the money would be used for and that’s probably why it died. 9 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 HB 2070 – the Watershed Initiative Program – that established a new program under DLNR for staffing. They wanted to have a whole covey of DLNR people to work on the Watershed Initiative, which would hire probably six or seven more people. So Water and Land deferred that in the House and that was Rep. Evans. HCR 98 – a house concurrent resolution that requested DLNR to work collaboratively with the Department of Agriculture and the Agro-Business Development Corporation to eradicate for all pigs statewide. Other groups that opposed were the Hawaii Hunting Association and the Wild Turkey Federations, and others poured in a lot of opposition to kill this resolution. SCR 143 – that was a Senate concurrent resolution – SCR 143 – and, this is directly linked to HB 1902 – this was in total retaliation for what this commission is doing because this is something that came up 2/3rds of the way through the session and it was done in the Senate and SCR 143, SD started off as – it was to urge the federal government to adopt federal policy to prohibit introduction of non-native species to Hawaii. It passed the Senate and we pressured it to be put on House in the Water and Land we got it to die in that committee. HB 1700 – $750,000 that was our comprehensive game management plan monies which we do not know what happened. It was reduced to $250,000 and then no word about it. Jordan Jokiel was trying to work on this. We believe it got corrupted mightily along the way. M. Bartell shared his observation that the House has been very helpful to this commission and the Senate has been very problematic to us. We need to figure out how to work on our state senators. 3. Addressing issues relating to the Endangered Species Act \[ESA\] There is no separate state listing for threatened and endangered species. All threatened and endangered species are listed under the Endangered Species Act and the U.S. Fish and Wildlife Service is the regulatory agency. Ike (D. Yoshina) offered to continue to work on this issue with Steve Arrujo on a species specific listing and delisting. Suggestion was made to seek help from the Congressional Sportsmen’s Caucus which may have a strong impact. Also, invite someone from Fish and Wildlife do a presentation on the critical habitat. UNFINISHED BUSINESS: 10 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 1. A call for an executive meeting to be set for the month of June. HRS Chapter 92-4 Executive meetings: To consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities. Action: T. Lodge moved that an executive meeting to be set for the month of June. To consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities. And this is in part due to the 1978 Constitutional Convention and whether game animals was removed but was never ratified from the Constitution as a natural resource of the State; Seconded by D. Yoshina, and carried unanimously by voice vote. NEXT MEETING The next meetings will be held in Hilo on Monday, June 9, 2014 at 6:00pm executive session first followed by the public meeting. 2. Discussion on the use of snares in Hawaii County and what can be done to bring awareness through our county council. Suggest continuing this discussion regarding snares to next meeting. M. Bartell offered to research the law on snares. It was shared that DLNR can snare and a public hunter can’t, that is the way the statue is written. 3. Elect our new Chair and Vice Chair: The committee unanimously agreed that Tom Lodge will serve as the new Chair and Willie-Joe Camara will serve as Vice Chair. NEW BUSINESS: Discussion followed regarding inviting someone from the state Aha Moku to do a presentation on the moratorium on fishing on the Kona coast at a future meeting to be held in Kona. Suggest contacting the DLNR Aha Moku Advisory executive director Leimana DaMate. Also, rescheduling Malia Chow, Superintendent Hawaiian Islands Humpback Whale National Marine Sanctuary, NOAA. 11 Hawaii Game Management Advisory Commission Meeting Minutes – May 19, 2014 ADJOURNMENT Action: It was moved by W. Camara to adjourn; second by D. Yoshina, and carried unanimously by voice vote. The meeting was adjourned at 8:32pm. Respectfully submitted by, Barbara Kossow Secretary ATTEST Anthony H. Sylvester, III 12