Canoe club: DLNR violating its own environmental review rules

Citing a perceived lack of openness of process and failure to adhere to the state’s environmental rules, the Keauhou Canoe Club is taking legal action against the Department of Land and Natural Resources.

The club filed suit against the department in December, after club President Bill Armer spent months trying to talk to officials there about his concerns over their plans to nearly double the number of moorings in Keauhou Bay.

“These people will not listen,” Armer said, referring to DLNR officials. “They will not meet.”

Armer said DLNR was acting “secretively and furtively” and its plan to add seven recreational moorings to the small bay was “not right and it’s not appropriate.”

A spokeswoman for the Attorney General’s Office declined to comment on the lawsuit. The state was supposed to file a response by today, an attorney representing the canoe club said.

According to the lawsuit, filed with the 3rd Circuit Court in Kona, the DLNR violated its own rules when Division of Boating and Ocean Recreation Administrator Ed Underwood decided the state’s environmental assessment laws, known as Chapter 343 rules, did not apply to the project.

Underwood, in a letter to Armer in December, said adding the extra moorings was not a trigger for an environmental assessment.

“As Keauhou Bay is an existing mooring facility, the proposed mooring project is an improvement to an existing use of the bay,” he wrote.

That is problematic on two levels, the canoe club’s motion for summary judgment, filed March 20, argues, because Underwood earlier claimed DLNR had to address the bay’s existing nine moorings, which he said were never properly permitted by the U.S. Army Corps of Engineers.

The canoe club’s argument, filed by attorney Peter Olson, is that Underwood is taking a contradictory position.

“This begs the question, how can something be an ‘improvement’ of something which, technically does not exist, according to law,” the motion said. “Even if the existing moorings have a legal existence, a more apt interpretation is that it is a ‘new’ project, rather than an improvement.”

Projects funded by the state or county, on state land, within the shoreline area and within any designated historic site all can trigger the environmental assessment requirement.

This project hits all of those points, the canoe club’s argument said. The State Historic Preservation Division — part of DLNR — submitted a finding that the project could impact Kamehameha III’s birth site near the bay — a historic site — the motion said.

The decision to skip an environmental review denied bay users, including the canoe club’s roughly 500 members, some of whom can trace their ancestry to the region before Western contact, the opportunity to comment on the mooring plan’s impact to the bay, the motion said. Those environmental and public health impacts include physical damage to the plants and animals that live in the bay, the addition of bottom paint to the bay from the extra moored vessels, public health and water quality concerns from additional marine sanitation systems, impacts to the Hawaiian monk seal and the potential to attract more invasive species by mooring anchors and chains, the motion said.

Paddling is a constitutionally protected activity in Hawaii, the motion said, and adding extra moored vessels will effectively prevent the club from continuing to use the bay, the motion said.

Club members “will be significantly impacted by the increased density of Keauhou Bay,” the motion said. “This affects paddlers’ ability to safely navigate within the bay, and the cultural aspect of canoe paddling as people have done since ancient times.”

The lawsuit asks for a temporary restraining order to stop DLNR from implementing any new mooring plan, if the Army Corps of Engineers issues a permit, until an environmental assessment is completed.

For Armer, the best outcome of the lawsuit is simple.

“They would not put in the seven additional moorings,” he said. “They would scrap that.”