BOAT RAMP NO RESORT FOR PUBLIC BOATERS

By Carroll E. Cox, EnviroWatch, Inc.

Over the past few months EnviroWatch, Inc.  received numerous calls from boaters and shoreline fishermen saying they were being turned away from the boat ramp at Ko Olina Resort where they normally go to fish or launch their boats.  This caused us concern because it is our understanding that access to the shoreline is a public right.

One boater also claimed Ko Olina told him the ramp was closed because they had started working on their new aquarium.  We subsequently found a letter from Ko Olina Resort & Marina addressed to the general public, stating:  “The Ko Olina boat ramp which has been a temporary private boat ramp with public use has closed.  The ramp closure is required for our resort’s continued development and marina expansion”.  The letter included a map to a new ramp at the Marisco Facilities (also known as Phoenicians), across the bay in Kalaeloa, or Campbell Industrial Park.

This started us on a mission to research the background and history of Ko Olina’s development and, in particular, their agreements with city, state and federal agencies. We looked into files and records from various government offices and found documents indicating that, in exchange for reclassifying the land from agricultural to a resort district, West Beach Estates (the original developer) and Ko Olina Resort agreed to give the public access to the shoreline, lagoons and a boat launch ramp.

We believe this agreement has been violated, and the proposed alternative is a breach of the permit conditions. 

DOT your I’s…….

First, information regarding the Phoenicians boat ramp.   A letter dated March 11, 2005, from the Hawaii State Department of Transportation (DOT), to Mr. Fred Anawati, Phoenician, L.L.C., states “the Harbors Division received inquiries from recreational boaters about a public launch ramp and, “if this is true, cease this activity immediately”.  It notes that Phoenician, L.L.C. only has a Construction Right-of-Entry agreement, dated October 31, 2001, to install a “haul out slip for a small boat repair facility”, and  “Phoenician, L.L.C. may do nothing else until a lease is signed”.  Several weeks later we noted boats were still being launched from the site.

So, where does that leave the public?   EnviroWatch, Inc. is attempting to sort out the mess.  Our initial inquiry to the Department of Boating and Recreation’s (DOBAR) Administrator, Mr. Richard Rice, was met with enthusiasm about how great an idea it was to replace Ko Olina’s ramp with the one at Phoenicians.  We were even more concerned after that, and filed a formal letter under the Uniform Information Request Act asking for all records relating to DOBAR’s involvement with Ko Olina and Phoenician, L.L.C.   To date we have not received a single document, even after faxing the request a second time, telephoning DOBAR several times, and meeting with the Department of Land and Natural Resources Chairman, Mr. Peter Young, to request the information.  (DOBAR is under DLNR).

Mind your DPP’s and Q’s

Then, things became even more muddled.  On March 21, 2005, we spoke with Eileen Mark, Branch Chief, Land Use Approval Branch, Department of Planning and Permitting (DPP).  She informed us that she “knew nothing” about the situation and “knew nothing” about the Phoenician facility.  We thought something was amiss with this statement so we conducted a more thorough investigation to get the facts.  We examined the Phoenician’s Major Special Management Area Permit file (2000/SMA-84) and found documents indicating that Ms. Mark was not only familiar with Phoenicians, she also served as the hearing officer at public hearings for the Phoenician’s Special Management Area Permit (SMP).  Documents also revealed that she oversaw the work of DPP staff person Ardis Shaw-Kim, who processed the application.

When asked again, Ms. Mark told us that certain Ko Olina files were not available and could not be found.  She has consistently refused to provide us with the public documents we requested under the UIPA, including POSSE documents (from DPP’s computer system).  Our suspicion of a governmental cover-up was heightened when she told us that the zone change file (number 85/Z-3) was “lost”.  The file dates back 20 years, so we questioned why DPP did not have a back-up copy of the original hardcopy file, for example on microfilm.  This should have been a standard procedure for government agencies.  And, if the DPP did microfilm the file, why isn’t the microfilm available to the public?  We believe the “lost” zone change file may contain documents that could help gauge actions taken in compliance with the approvals, and other documents that may clarify the facts and issues.  These documents, if available, may contain information that will protect the public’s interest.

…and Cross your t’s

During our research into Phoenician’s Major SMA Permit file, we obtained revealing information from five years ago, showing that Ko Olina has been making plans to move the ramp to Phoenicians for at least that long.  A letter dated December 15, 2000, from Ko Olina’s agent, Kusao and Kurahashi, Inc., and addressed to Ms. Mark, is entitled “Ko Olina Update on the Preparation of Easements to the Parks and Lagoons and the Progress on Providing a Replacement Boat Ramp and Trailer Parking Site for the Ko Olina Boat Launch Ramp and Parking”.  The letter states, “We are continuing to work with the Phoenician L.L.C. to provide a replacement boat ramp and trailer parking site on the southern side of the entry to Barbers Point Deep Draft Harbor”.

Another letter in the file, dated February 9, 2001, from the Department of Business, Economic Development & Tourism, to Mr. Robert Foster, concerns Coastal Zone Management (CZM) consistency for a proposal to construct a boat launch ramp at Phoenicians, and states “The proposal specifies that the boat ramp, which is subject to cost sharing with the Ko Olina Companies and could be eliminated from the project, would be open to the public and parking and a comfort station for public use would also be provided”.   (Mr. Foster is a former DPP employee who is now working for PlanPacific, the agent for the Phoenician’s SMA Permit).

Mix it up

Although the proposal to “replace” the public boat launch ramp at Ko Olina Marina with a boat ramp at Phoenicians has a direct impact on Ko Olina’s development, copies of the letters were not filed in the Ko Olina  SMP File (85/SMA-89), or in the Ko Olina Conditional Use Permit file for the Marina Facility (95/CUP1-82), thereby inhibiting the public’s access to important information regarding Ko Olina’s plans and proposals.

Furthermore, as previously noted, a public boat launch ramp at Phoenicians has not been authorized by DOT.  Phoenicians is only authorized as a “small boat repair and LPG facility located within an industrial subdivision”.  It is not authorized for use as a public boat ramp by the SMP (Special Management Area Permit).

Therefore, the proposal to “replace the Ko Olina ramp facility with a ramp at Phoenicians” represents a “Major Change in Circumstances” under which the Ko Olina SMP, zone change and SLUC boundary change were processed, reviewed and approved.  The City Council was the decision making authority on the Ko Olina (Resolution No. 86-61, March 12, 1986) and the Phoenician’s (Resolution No. 01-85-CD) SMA permits.  Because it is a provision of the CZM,  we believe the DPP has an obligation to bring the proposal to close Ko Olina’s boat ramp before the City Council, and the public, so that the issue of public access to recreational resources can be revisited.

Alphabet Soup

We uncovered documents showing a history of complaints about public access to Ko Olina’s beaches, lagoons and boat ramp.  Now, there are even more complaints due to the public being turned away from the public boat launch ramp at Ko Olina’s Marina.  As a result of our research and discoveries, we sent a letter to Mayor Hannemann stating “Although our investigation is not complete, we have uncovered instances of governmental misconduct that requires your immediate attention.  We ask that, until a proper investigation is conducted and completed, the DPP be instructed to cease any further authorizations of uses/activities at Ko Olina.  We also ask that DPP be ordered to reestablish public access to the Ko Olina Marina and other public access points.”

We have not received a response from Mayor Hannemann, and DPP continues to withhold documents relating to this matter.  DPP told us they are looking into the matter, they are reviewing the documents, and they will get back to us.  However, the documents we’ve obtained clearly speak for themselves and the agreements are binding.  DPP’s excuse for withholding documents is nothing more than a delaying tactic, illustrating their unwillingness to do right by the people.

On April 6, 2005, we again petitioned Mayor Hannemann on behalf of EnviroWatch, Inc. along with recreational boaters and fishermen along the Waianae Coat and elsewhere on Oahu, asking him to intervene to ensure compliance with the intent and provisions of the original Major Permit’s approval and agreements, to enforce the developer’s Unilateral Agreement, and to enforce the Council Resolution which approved the West Beach Estates’ resort development.  Compliance can only be achieved by requiring Ko Olina to immediately re-open the boat launch ramp to public access.

And Try Again

On April 10, 2005, we amended our complaint to Mayor Hannemann, informing him that the public access boat ramp at Ko Olina is permanently closed and is in the process of being demolished.  The ramp has been permanently blocked with a chain link fence, erected and affixed with cement footings and a foundation.  During our research we did not find a building permit for the fence, and, on April 13, 2005, we were advised by a building inspector that he conducted a site visit and found that the fence was put up without a permit.  A notice of violation has been sent to Ko Olina.

We were also told that the ramp itself was under the jurisdiction of the United States Army Corps of Engineers.  Based on this, we filed a formal complaint with the Corps, asking them to investigate the matter because we believe Ko Olina’s closure was a breach of its permit with the Corps.   Specifically, we believe they are in breach of permit conditions required by Department of the Army Permit #PODCO-01512-30, dated September 9, 1986, issued to West Beach Estates.

On April 13, 2005, Mr. Barry Fukunaga, from DOT, wrote a letter to State Senator Espero.  The letter says that, in the opinion of the Attorney General, “On the matter of the Ko Olina boat ramp closure, there was no finding that Ko Olina is legally compelled by the state to provide the boat ramp and its closure does not result in any violation insofar as the state is concerned”.   However,  in a letter dated December 20, 1995, from PBR Hawaii, an agent for the original developer of Ko Olina, to the Director of Land Utilization regarding their application for a Conditional Use Permit, PBR says “according to STATE LEASE No. H-89-1 (issued by the State DOT), the LEASE provides for the joint use of the Barbers Point Harbor and entrance channel and the rights of ingress and egress.  To provide enhanced public access to coastal resources and shoreline area, the applicant is proposing to construct a boat launch facility with trailer parking and a wash-down area open to the public”.  Clearly, the State is involved in this issue.

The Last Resort

We hope the Mayor and Ko Olina will do what is right, welcoming the public boating community back to Ko Olina, and once again allowing them to use the boat launch facility.  If not, EnviroWatch, Inc. is prepared to file a Motion to Show Cause with the State Land Use Commission.  The Commission originally granted the reclassification of the land from agricultural use to resort use, allowing the development to occur with the condition that Ko Olina give the public access to the shoreline and boat launch ramp.

Ko Olina got seventy-five million breaks from Governor Lingle and the legislators.   Now, we think Ko Olina, Mayor Hannemann, and the legislators should be giving the public boating community a break!

The story is not over yet.  We will keep you informed in the next issue.

Contact Carroll Cox, EnviroWatch, Inc., via email at envirowatch@envirowatch.org, 

or 808-625-2175