LIHU‘E — The state Board of Land and Natural Resources yesterday imposed $46,500 in fines and administrative cost against North Shore landowner James Pflueger for unpermitted grading that led to damages around homes along Pila‘a Bay and severe damage to a coral reef in the bay.
The muddy runoff from the grading area above the beach occurred in November 2001.
The board imposed an $8,000 fine for four grading violations in a conservation district above the bay, and assessed Pflueger $38,500 in administrative costs to process the fines for land and alleged reef-related damages.
Meeting on Kaua‘i yesterday, the board agreed to requests by attorneys representing Pflueger to hold a forthcoming contested case hearing on fines related to damages to the reef.
The Land Board agreed to the contested case hearing to allow Pflueger lawyers – Honolulu attorney William Tam and San Francisco attorney Noel Wise – to present more evidence and to determine what type of fines, if any, could be imposed.
Pflueger didn’t attend the Friday hearing, but some of his workers attended it to give their support.
Tam said the contested case hearing will allow for a more organized process to sort out numbers, “and frankly, I think we will get that sorted out pretty quickly.”
Tam asked for the contested case hearing partly because he had received on Aug.14 a state Department of Land and Natural Resources staff report calling for $5.9 million in fines and didn’t have time to prepare a response to the state’s recommendations on the fines.
Peter Young, chair of DLNR and the Land Board, said board members were “anticipating a contested case hearing the whole time anyway, just because of the magnitude of the fine.”
A contested case hearing is similar to a court proceeding and allows for the presentation of evidence and use of witnesses.
A hearing officer will later make a recommendation to the Land Board for possible action.
The hearing could result in resolution remaining fines proposed by the DLNR staff, minus the fines imposed by the Land Board yesterday.
Amy Marvin, who has filed a lawsuit against Pflueger for damages around her home from the mudslides, said she had hopes the board would approve $5.9 million in fines against Pflueger.
“I think they (Pflueger’s representatives) shot themselves in the foot again ( asking for the contested case hearing),” she said.
She said the $5.9 million fine “is not enough,” and that “more evaluation (during the contested case hearing process) is going to make the price tag go up, probably.”
The State Department of Land and Natural Resources staff had initially recommended $5.9 million in fines for unpermitted work in the conservation district above the bay and damage to the reef.
Stormwaters from Pflueger’s property in Kilauea flooded a new road that led to homes of Amy Marvin and others by the bay in November 2001, causing some damage around the properties.
The unpermitted work also sent sediment and mud onto the beach and a part of the reef, severely damaging and killing some coral.
The Land Board also could not move ahead with action on the reef-related fines because members didn’t know if a Florida state law on fines for damages to coral could be used in Hawai‘i. In that incident, a ship crushed the coral as it went over it.
Tam said the Pila‘a reef damage didn’t involve damage by a ship, only sedimentation that covered coral. Florida has such a law on the books, but Hawai‘i doesn’t, and it would be unfair to apply it in the Pila‘a Bay case, Tam said.
But DLNR spokesman Sam Lemmo said a comprehensive survey on the November 2001 incident showed the reef was severely damaged by the mud and sediment, and that hefty marine-related fines are in order.
Young said the board took a significant step in the case by approving recommendations from the DLNR staff that would help prevent further erosion on the state conservation lands immediately mauka of the bay.
Board member Kathryn Whang Inouye said it would be prudent to have those anti-erosion plans in place before the arrival of the rainy season. If not, more mud could its way into the bay in the future, she warned.
Hefty water-related fines should be imposed because the mudslides affected 13 acres within the reef at Pila‘a Bay, and reduced the coral population by nearly 80 percent, Lemmo reported.
The figures were based on a comprehensive study done by Dr. Paul Jokiel of the Hawaii Coral Reef Assessment and Monitoring Program (CRAMP). CRAMP was established in 1998 and its aim is to conduct research directed at understanding the natural and anthropogenic factors that control reefs.
In the reef area damaged by the mudslides, Dr. Jokiel and his team found “bleached, dying and dead and some normal coral,” Lemmo said.
Researchers also checked for algae populations on the reef and fish population, discovering fewer numbers of fish than what was found in a “control area” used for comparison. The control area was located about a mile west of the damaged reef.
But Tam said that it was a mistake to compare the two areas as a way to measure the reef damage, because the characteristics of the two areas are different.
“The critical differences is that water depth might be different, the control area reef is narrower, (which would accommodate more water flow that is essential for well-being of coral),” he said. Parts of the control area reef are deeper, allowing for better survival conditions for the coral, he added.
In the parts of the reef that were covered by mud and sediment in November, 2001, the water is calmer and parts of the reef are exposed during low tide, allowing for damage by the sun, Tam said.
In addition to the damage done to the reef in November 2001, unpermitted work in the early 1990s and at other times caused damage to the reef, Lemmo said.
Tam said that it would be wrong to say that the single mudslide event in November, 2001 caused the damage to the reef and killed coral.
As part of the life cycle, coral dies and regenerates, and the area where the coral reportedly died in large numbers is not an ideal living environment for them, said Dr. Steven Dollar of the Honolulu-based Marine Research Consultants, who is serving as a paid consultant to Pflueger.
The area is covered with sand, which is not conducive to healthy coral, he indicated.
Related to the case, Heidi Huddy Yamamoto and her 88-year-old mother, Elisabeth, asked the board to connect a road to a main road leading to their home by the bay.
Yamamoto said the Huddys have lived or used the property for about 100 years, and her mother can’t easily get to the family property on foot trails leading to the beach.
“Bumpy” Kanahele, who heads the Nation of Hawai‘i, said he was upset that racial slurs had been made about Hawaiians “making too much noise” at the Huddy property and along the beach fronting the reef, and that he was working with the Huddys to secure a road to their home.
Staff writer Lester Chang can be reached at 245-3681 (ext. 225) and mailto:email@example.com