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Environment News Service

Hawaii Waves Goodbye to Environmental Protection Law

Sunny P. Lewis

An endangered Hawaiian monk seal resting as a Laysan Albatross flies overhead. Tern Island, Northwestern Hawaiian Islands. (flickr photo by angrysunbird)

HONOLULU, Hawaii - Two lawsuits filed within the past two weeks claim that the state of Hawaii is breaking its own law that requires protection of the largest conservation area in the United States.

KAHEA: The Hawaiian-Environmental Alliance Tuesday filed a lawsuit against the Hawaii Department of Land and Natural Resources for failing to conduct legally required environmental reviews before granting hundreds of permits for access to the protected Papahanaumokuakea Marine National Monument in the Northwestern Hawaiian Islands.

The region is world renowned for its diversity of endangered species, unique deep sea coral reefs, and rare predator-dominated ecosystem.

The KAHEA lawsuit, filed in state circuit court in Honolulu, seeks an injunction to halt the unlawfully permitted activities and the granting of new permits until the state agency complies with state law.

The islands are revered as sacred by Native Hawaiian cultural and religious practitioners as the path of souls to the next life, says KAHEA.

"Our Kupuna Islands are protected and revered for a reason," said Kumu Hula Vicky Holt-Takamine, KAHEA's Board president. "This is not the wild west; there are laws here. Laws that are meant to protect our natural resources and the best interests of Hawaii's people."

The Department of Land and Natural Resources, DLNR, must follow these laws, she said. "Monument managers can't just turn the Northwestern Hawaiian Islands into their own private research and fishing get-away."

The fragile coral ecosystems of the Northwestern Hawaiian Islands state lands and waters, extending three miles out from shore, were protected in 2005 as the Northwestern Hawaiian Islands Marine Refuge and the State Seabird Sanctuary at Kure Atoll.

In the process leading up to the refuge designation, more than 100,000 people wrote letters and submitted testimony in favor of strict protections for both state and federal waters in the Northwestern Hawaiian Islands.

On June 15, 2006, President George W. Bush created the Papahanaumokuakea Marine National Monument to protect federal waters extending from the three mile wide stretch of state waters seaward to the 200 mile limit of federal waters. Covering a 1,200 mile stretch of ocean, islands and atolls 100 miles wide, the monument is the single largest conservation area under U.S. jurisdiction.

Jointly administered by state and federal agencies as co-trustees, the Monument, Reserve and Refuges are intended to safeguard one of the most protected places on Earth, with access strictly limited by the do-no-harm policy and applicable state and federal laws.

In setting this region aside for protection, state and federal regulators committed to a "do no harm" policy for all human activities allowed there.

Yet since 2007, the DLNR, has approved over 100 permits to access the monument without conducting environmental reviews of the proposed activities, including dumping of vessel wastewater, taking thousands of marine species specimens, and fishing in the largest no-take marine reserve in the world.

"This is about protecting Hawaii's public trust resources," said KAHEA Board member, Cha Smith. "We praised the state for its leadership in setting the highest level of environmental protection within the Monument, but that praise was based on the belief that those strong protections would actually be enforced by the state. The state did not even make a cursory review of the cultural and environmental impacts of all these permits in the Monument."

On July 8, an attorney laid off from the DLNR filed a lawsuit in Hawaii Circuit Court alleging he was illegally fired for reporting these violations of state environmental law to his supervisors.

Attorney David Weingartner, formerly with the Alaska Attoney General's office, was hired to ensure compliance with state statutes during the final steps of developing the Monument's Management Plan and completing the plan's environmental assessment. The plan was published in December 2008.

The Hawaii Environmental Protection Act requires that DLNR assess potential impacts of proposed activities that are subject to that statute on the state's resources, Native Hawaiian culture, and traditional and customary rights. It requires that the DLNR prepare either an environmental impact statement, an environmental assessment, a categorical exemption determination or a statuatory exemption determination and allow for public comment before granting an access permit.

Weingartner's whistleblower suit alleges that DLNR had a policy of ignoring these requirements of the Hawaii Environmental Protection Act and never carried out a single one of them.

Weingartner states in his lawsuit that he informed his immediate supervisor, Athline Clark with the DLNR's Division of Aquatic Resources, and her supervisor, Dan Polhemus, who heads that division, that the agency was in violation of the Act, both verbally and in writing, to no avail.

In his lawsuit, Weingartner says he "specifically told Polhemus that the whole Monument permitting process would likely be subject to legal challenge if his noncompliance concerns were not addressed."

Conservationists are particularly concerned about the impact of this policy on the environment because most of the biodiversity and most of the coral reefs are in these near-shore waters and most of the access permits sought are for these waters.

"When the Monument was established, the state made certain it retained responsibility for all of its lands and waters, which are the most sensitive in the whole region," said Marti Townsend, staff attorney and program director for KAHEA. "We have been raising these concerns for a long time now, only to find out that staff had a policy of ignoring environmental laws. Joint management can only be successful when the strictest protections of the three co-managing agencies are followed. The law cannot be ignored."

"Such gross mismanagement of this fragile public trust resource calls for strong measures," said Stephanie Fried, executive director of 'Ulu Foundation, a new nonprofit organization that focuses on environment and human rights.

"We urge the DLNR to reinstate the protective state permitting guidelines and permit conditions originally established by the Land Board as a result of feedback from scientists and the public. The abrogation of state stewardship of these fragile and highly protected resources must cease," said Fried.

"What these recent events show," said Fried, "is that the so-called joint federal-state management process has been a failure. It has failed to protect the public trust resources."

Days before he left office, President Bush announced the nomination of Papahanaumokuakea Marine National Monument to the UNESCO World Heritage List. The Monument, which includes the islands and waters of the northwestern Hawaiian archipelago, is the nation's largest protected area.

But conservationists say the failure to apply Hawaiian law to these public trust resources could jeopardize the UNESCO World Heritage nomination.

"For too long we have done nothing but take, take, take from the Northwest Islands. It is time we change our attitude about this place entirely - there should be no human footprint there," said Louis "Buzzy" Agard, a former NWHI commercial fisherman as well as a KAHEA board member.

"If we leave it be, this remote ecosystem can be what replenishes the exploited waters of the Main Islands so they can once again be the refrigerator for the people of Hawaii," said Agard. "But when the 'do no harm' rule is ignored, the good work for which this area was set aside cannot be done."

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