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By Sydney Ross Singer

The Department of Land and Natural Resources Office of Coastal and Conservation Lands (DLNR OCCL) is responsible for overseeing approximately 2 million acres of private and public lands, including beach and marine lands. In an attempt to better protect these lands, certain changes are being proposed to the Hawaii Administrative Rules 13-5 which govern the management of conservation lands.

(To see the full text of the proposed amendments to the administrative rules, go to http://hawaii.gov/dlnr/occl/.)

Unfortunately, these proposed changes as currently drafted will initiate an environmental war that will include poisoning and infesting our forests, coastal and marine lands and implementing a witch hunt against any nonnative species someone decides to call “invasive”.

This goes against the Hawaii Constitution, Article XI, Section 1, which states, “For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self sufficiency of the State.” (Emphasis added.)

Note that the Constitution refers to natural resources, not just native resources. The framers of the Constitution realized the value of introduced species for food, fuel, environmental services, and natural beauty. As an island that began as a lava field in the middle of the Pacific ocean, the paucity of native resources has been supplemented with numerous valuable introduced species to provide Hawaii with more natural resources.

The DLNR’s emphasis, however, is to condemn any nonnative species that can gain a foothold in the environment and change its “native” character. Such species are termed “invasive”, as though these species were “invading” native realms. However, preserving and protecting certain species is not a license to target others as harmful.

This is not about pests of agriculture or human health, like mosquitoes or tree borers or fruit flies. Laws already exist for the control of noxious weeds and pests. This is about attacking beneficial species of trees and plants and animals that are natural resources, but that are also altering the native motif of our conservation lands. It’s about native species supremacism and immigrant species suppression.

The list of “invasive” targets is extensive and growing all the time. It includes the guava, strawberry guava, thimble berry, African tulip, banyan tree, monkey pod, ironwood, cats, pigs, sheep, goats, all nonnative birds, all lizards, all frogs and toads, nonnative fish, and virtually any nonnative species that takes up space or water or air that might otherwise be taken up by a native species.

Jacksons’ chameleons are considered invasive. So are endangered veiled chameleons. And endangered Mouflon sheep. Parrots. Songbirds. Cattle egrets. Peacocks. All are considered “invasive” in Hawaii and are routinely killed.

It used to be about protecting endangered species. Then it became protecting all native species, even if they are not endangered. In reality, it’s an anti-immigration policy, a bioxenophobia used to justify poisoning, clearing, and infesting nonnative resources.

In effect the DLNR is taking the naïve position that once a species is labeled “invasive” it no longer has any positive qualities, and its control or eradication can only help native species and native ecosystems regardless of the means to achieve that end, and regardless of the fact that returning to a native ecosystem is an unattainable goal in today’s changing world and climate. However, life is not black and white. Native is not necessarily good, and nonnative is not necessarily bad.

Once a species becomes part of the environment, attacking that species is an attack on the environment itself. And defining a species as “invasive” is often controversial and political.

To allow an unfettered environmental war against “invasives”, however, the DLNR must first change the rules. Currently, the administrative rules place limits on weeding and landscaping activities on conservation lands to prevent environmental damage.

The use of poisons, power tools, and biocontrol is prohibited. However, the proposed rule changes would lift all these safeguards for any attack on “invasive” species.

The proposed rule changes would allow poisons and biocontrol insects, fungi, and pathogens to be used to kill any “invasive” species of plant or animal on any number of acres of coastal or conservation land without requiring a permit or environmental assessment or any public hearing or public input.

No public input is allowed in making this determination of what is considered “invasive”, either. In fact, the proposed rule changes would severely restrict public oversight of DLNR decisions in violation of our Constitutional rights.

Proposed Rule Amendments

According to these rules, conservation lands are divided into different subzones depending on their qualities and the activities allowed. The most pristine and protected subzone is aptly called the Protective subzone. Next is the Limited subzone, with less restrictions of what you can do on these lands. Next is the Resource subzone, followed by the General subzone.

The first problem with these proposed rule amendments concerning invasive species control pertains to the definition of an invasive species.

I. Definition of Invasive Species

According to the draft proposal definitions,
“Invasive species” means any plant, plant pest, noxious weed, microorganism, biological control organism, or animal than can directly or indirectly injure or cause damage to the environment or to the interests of agriculture, horticulture, aquaculture, animal or public health, native species, natural resources, irrigation, or navigation, or otherwise defined in §520A-2, HRS.”

The problems with this definition:
The “interests” of agriculture, horticulture, aquaculture is not clearly defined, and can change with time and economic conditions. Also, some so-called invasive species can be also agricultural, horticultural or aquacultural.

Many so-called invasive species may also be natural resources. According to the draft proposal definitions, ““Natural Resource” means resources such as plants, aquatic life and wildlife, cultural, historic, recreational, geologic, and archaeological sites, scenic areas, ecological significant areas, watersheds, and minerals.” A species can therefore be both a resource in one context, and invasive in another context.

This means that natural resources can be devalued and destroyed if they are considered invasive, in violation of the state’s duty to protect our natural resources.

The definition of invasive species does not explained by what procedure a species would be determined to be invasive. Discretionary decisions on what species are “invasive” could be arbitrary and capricious (or political). Such decisions require public hearings and an environmental assessment. This makes sense since labeling a species “invasive” changes the applicable rules of what you can do without a permit on conservation lands.

A species can be “invasive” in one environmental context and invaluable in another. There are also important
interactions that can develop between native and introduced species, even if these introduced species can be labeled as “invasive” in certain contexts. labeling every member of a species as invasive is over simplistic and ignores the actual and potential benefits offered by a species in a wide range of contexts.

The definition of invasive species ignores the fact that environmental conditions change, altering the relationships between species and the proper goals of conservation. In addition to development and pollution and associated land usage changes over time, climate change in Hawaii is resulting in a shift in environmental conditions away from those that supported past native ecosystems and native species. This means healthy and robust exotic species that do well in Hawaii may become the dominant and valuable species of the future.

II. Removing Invasive Species

In an attempt to better manage the threat of so-called “invasive species”, proposed rule changes would allow any invasive species control activities on any number of acres of land, using power tools, poisons, and even using biocontrol insects, fungi, and pathogens, without any permit or site plan requirement. The underlying assumption is that the ends of controlling or eradicating invasive species justifies any means of killing them.
In contrast, if the species being controlled is not labeled an invasive species, then there are strict limits and requirements for permits and site plans. In other words, if someone wanted to poison 1000 acres of trees and leave them to rot, it would be prohibited unless the trees were considered invasive, at which time it could be allowed without any permit or even a site plan.

A. The most egregious application of this draconian environmental policy is in Hawaii Administrative Rule 13-5-22, “Identified land uses in the protective subzone.” This is identified as use (P-4) and would not require any permit or site plan.

P-4 “Removal of invasive species including clearing with power hand tools and herbicides and biocontrols. Includes invasive species control using herbicides and biological agents in accordance with state and federal laws and regulations for the purpose of protecting, preserving or enhancing native species, native habitat, or native ecosystem function that results in no, or only minor ground disturbance. The department or board reserves the right to require site plan, departmental or board approval if it is determined that the proposed action may cause secondary impacts on natural and cultural resources, or the surrounding community. Any replanting shall be appropriate to the site location and give preference to plant materials that are endemic or indigenous to Hawaii. For existing developed lots, compliance with section 13-5-23(L-2) satisfies the requirements of this section.”

The problems with this proposed use are:

“Removal of invasive species including clearing with power hand tools and herbicides and biocontrols.” Biocontrols, which constitute the release of insects, fungi, or other pathogens to attack the target species, do not remove the target species from the area. Gall forming insects used as biocontrol, for example as being proposed for the management of strawberry guava, infest the leaves of the tree but do not remove the tree. Poisons can kill a plant but do not remove it from the area.

“Clearing” protective subzone conservation lands of a so-called invasive species may result in soil erosion, aesthetic damage, impacts to native and endangered species, and other primary and secondary impacts.
Biocontrol agents are not limited to the areas in which they are released, and may therefore attack the target species on private property or other unintended areas where the target is desired, resulting in property damage. Biocontrol agents also evolve over time in unpredictable ways, posing a potential threat to other species. Clearly, the introduction of an alien insect or fungus or pathogen into our Protective subzone conservation lands is something that should require an environmental assessment and permit, if it is allowed at all.

“The department or board reserves the right to require site plan, departmental or board approval if it is determined that the proposed action may cause secondary impacts on natural and cultural resources, or the surrounding community.” It is not clear how the department or board will make this determination without a permit application, environmental assessment, and public comment. This clause also subverts the intention of these rules, which are to define categories of actions allowed in these subzones to allow ministerial, and not discretionary, decision making. This clause leaves it to the discretion of the department or board, and therefore should trigger an environmental assessment under HRS 343, which requires the preparation of an EA for discretionary decisions pertaining to actions on conservation lands. It may also constitute rulemaking under HRS 91 by ruling particular species as invasive.

“For existing developed lots, compliance with section 13-5-23(L-2) satisfies the requirements of this section.” HAR 13-5-23 (L-2) pertains to landscaping in the Limited subzone. Ironically, it is more stringent than P-4 in the Protective subzone, which in the old rules was also labeled as landscaping.

There are three types of landscaping actions addressed in L-2, depending on the area being landscaped. The first, least damaging landscaping is, “Landscaping, defined as alteration (including clearing and tree removal) of plant cover including clearing with power hand tools and use of herbicides in accordance with state and federal laws and regulations that result in no or only minor ground disturbance, in an area less than 2,000 square feet. Any replanting shall be appropriate to the site location and shall give preference to plant materials that are endemic or indigenous to Hawaii. The introduction of invasive plant species is prohibited.” This type of landscaping requires site plan approval.

The next type of landscaping is, “Landscaping, (including clearing, grubbing, and tree removal, including the use of herbicides in accordance with state and federal laws and regulations) of plant cover in an area of less than 10,000 square feet. Any replanting shall be appropriate to the site location and shall give preference to plant materials that are endemic or indigenous to Hawaii. The introduction of invasive plant species is prohibited.” This land use requires a departmental permit.

And then there is, “Landscaping, (including clearing, grubbing, and tree removal, including the use of herbicides in accordance with state and federal laws and regulations) of plant cover in an area of more than 10,000 square feet. Any replanting shall be appropriate to the site location and shall give preference to plant materials that are endemic or indigenous to Hawaii. The introduction of invasive plant species is prohibited.” This land use requires a board permit.

The difference between landscaping in P-4 and L-2 is that the P-4 refers only to invasive species, and L-2 refers to species not labeled as invasive. Clearly, however, environmental impacts may result from clearing and removing trees (regardless of their nativity or invasiveness). The protections afforded by L-2 should apply to the more protected Protective subzone, regardless of whether the protected land is already a developed lot. Indeed, the more protective L-2 makes even more sense for undeveloped lots, since more care should be required for actions on undeveloped lands.

Recommendation: Replace P-4 with the text of L-2, including all three landscaping types mentioned. However, L-2 should be changed as discussed in B.

B. Again, the Landscaping uses described in L-2 are:

“Landscaping, defined as alteration (including clearing and tree removal) of plant cover including clearing with power hand tools and use of herbicides in accordance with state and federal laws and regulations that result in no or only minor ground disturbance, in an area less than 2,000 square feet. Any replanting shall be appropriate to the site location and shall give preference to plant materials that are endemic or indigenous to Hawaii. The introduction of invasive plant species is prohibited.” This use requires site plan approval.

“Landscaping, (including clearing, grubbing, and tree removal, including the use of herbicides in accordance with state and federal laws and regulations) of plant cover in an area of less than 10,000 square feet. Any replanting shall be appropriate to the site location and shall give preference to plant materials that are endemic or indigenous to Hawaii. The introduction of invasive plant species is prohibited.” This land use requires a departmental permit.

“Landscaping, (including clearing, grubbing, and tree removal, including the use of herbicides in accordance with state and federal laws and regulations) of plant cover in an area of more than 10,000 square feet. Any replanting shall be appropriate to the site location and shall give preference to plant materials that are endemic or indigenous to Hawaii. The introduction of invasive plant species is prohibited.” This land use requires a board permit.

The problems with these uses are:

The sentence, “The introduction of invasive plant species is prohibited” is in each landscape use. Again, as discussed in Section I, the definition of invasive species is arbitrary and capricious, fraught with contradictions, prevents the use of possibly nonnative species that may be more appropriate than native species for a given site location, and excludes public input.

Recommendation: This sentence should be changed to say, “The introduction of noxious species is prohibited. Noxious species is defined by the chapter 152, HRS, and chapter 4-68.”

This amended L-2 should be used in place of P-4.

According to the proposed amendments, 13-5-23 Identified land uses in the limited subzone, it states, (a) “In addition to the land uses identified herein, all identified land uses and their associated permit or site plan approval requirements listed for the protective subzone also apply to the limited subzone, unless otherwise noted.” Unless P-4 is changes to read the same as L-2, this provision would expose Limited subzone lands to the same potential destruction caused by invasive species removal.

Note that the greater environmental care is required to remove noninvasive plants than invasive ones. However, the impacts to the environment can be just as damaging in either case. Ironically, landscaping that removes plants from an area of less than half an acre requires board permit and an environmental assessment according to L-2, while “removing” invasive species from any number of acres requires nothing according to P-4, unless, of course, the DLNR OCCL somehow decides permits may be needed.

C. 13-5-24 Identified land uses in the resource subzone.

All the above comments apply to this subzone, as well, since 13-5-24 (a) states, “In addition to the land uses identified herein, all identified land uses and their associated permit or site plan approval requirements listed for the protective and limited subzones also apply to the resource subzone, unless otherwise noted.”

D. 13-5-25 Identified land uses in the general subzone.

All the above comments apply to this subzone, as well, since 13-5-25 (a) states, “In addition to the land uses identified in this section, all identified land uses and their associated permit or site plan approval requirements listed for the protective, limited, and resource subzones also apply to the general subzone, unless otherwise noted.”

III. Land and Resource management

Returning to the Protective subzone, a newly proposed use is P-13, which requires no permit or site plan. P-13 is, “Basic land and resource management, including routine weed and invasive species control, clearing of understory, planting of native and/or endemic plants, tree pruning, predator and ungulate control (including fence enclosures for single plant or small native wildlife communities, less than one acre), invasive aquatic species control, fence maintenance, etc. The department or board reserves the right to require site plan, departmental or board approval if it is determined that the proposed action may cause secondary impacts on natural or cultural resources.”

The problems with this proposed use are:

The term “basic land and resource management” is poorly defined, and the examples given could entail significant primary and secondary impacts. While the fence enclosures indicated less than one acre, there are no area limits placed on clearing of understory or routine weed and invasive species control or aquatic species control.

This paragraph makes no mention of the methods allowed for clearing understory, predator and ungulate control, invasive species control, or aquatic invasive species control.

Predator and ungulate control may have significant impacts on hunters and wildlife resources, and may require an environmental assessment under HRS 343.

Realizing the potential for abuse, the proposed amendment includes departmental or board discretionary decision making. “The department or board reserves the right to require site plan, departmental or board approval if it is determined that the proposed action may cause secondary impacts on natural or cultural resources.” This may be in violation of HRS 91 and HRS 343. See comment to II A(4) discussed above.

Recommendation: P-13 is redundant with other landscaping actions defined by L-2. The only added action allowed by P-13 and not included in L-2 pertains to fencing. This action can therefore be changed to: “Fence enclosures for single plant or small native wildlife communities, less than one acre.” All the rest should be deleted.

IV. Standing for Contested Case Hearing

Pertaining to Departmental Permits, 13-5-33 (g) states, “The permit applicant or any person who has some property interest in the land, who lawfully resides on the land, or who otherwise can demonstrate that they will be so directly and immediately affected by the use that their interest is so clearly distinguishable from that of the general public may appeal the chairperson’s decision by filing a written appeal to the department not later than fourteen days after the date of the department’s determination of the departmental permit. The written appeal shall provide all relevant information and shall state with specificity the reason for the appeal.”

The problem with this is:

The original 13-5-33(g) allows “any person” standing, and this proposed amendment is designed to raise the bar to public challenges of departmental decisions. This goes contrary to the rights guaranteed in the Hawaii Constitution Article Xl Section 9 concerning Environmental Rights and ensuring a private cause of action to protect those rights, and HRS 344-10 and other statutes promoting public involvement in the environmental decision making.

Recommendation: Restore the “Any person” provision of this paragraph.

V. Conclusion

The proposed amendments to the Hawaii Administrative Rules governing how conservation lands are managed by the DLNR OCCL will cause the opposite of their intent.

We cannot achieve environmental protection by waging environmental war.

The public should be encouraged to participate in environmental management, not locked out of the process and denied Constitutionally guaranteed rights.

The DLNR needs to be reminded that it is the Department of Land and NATURAL Resources, not the Department of Land and NATIVE Resources.

Sydney Ross Singer
Director, Good Shepherd Foundation
P.O. Box 1880, Pahoa, HI 96778
808-935-5563