Critical habitats proposal raises concerns

WAILUKU – Farmers, ranchers and private landowners are worried that they could face more government regulations, see their businesses hurt and even be sued if their properties are included in federal proposed critical habitats for threatened and endangered species in Maui County.

The testimony came as the Maui County Council’s Policy and Intergovernmental Affairs Committee on Monday heard a presentation by the U.S. Fish and Wildlife Service on its proposal to add 38 species to the Federal Endangered Species List and to designate critical habitat for 135 species found on Molokai, Lanai, Kahoolawe and Maui.

The federal agency is seeking to designate 271,062 acres of privately owned and state, county and federal land in Maui County as critical habitat. Approximately 47 percent of the land already is designated for endangered species, the service said.

Federal officials said Monday that “generally” there will be no impacts to private landowners who may be subject to federal restrictions only if their properties and businesses have federal funding or permitting issues.

But the nine council members on the committee, led by its Chairman Riki Hokama, were skeptical. They voted to have Hokama write a letter to the agency on behalf of the committee and the public to address their concerns. The members also sought to extend the comment period on the draft economic analysis of the proposal, which ends next Monday, and to ask for more information.

Hokama said he will include the public’s written testimony from the meeting as well as a transcript from Monday’s meeting.

Several committee members were troubled by the proposed land designations. They were not satisfied with responses from agency officials that the designation would probably not impact land use issues or zoning and were critical of comments that the agency is aware that lawsuits could be brought against private landowners who have land in a critical habitat.

Council Chairwoman Gladys Baisa, who spoke out against the proposal at a public hearing last week, said that hearing an environmental lawyer and top environmentalists speak out against the proposals troubled her.

“It makes me concerned,” she said, adding that she wanted to “send a strong letter” to the agency about the committee’s concerns.

She and fellow committee member Mike Victorino also wanted Native Hawaiians consulted.

Several Native Hawaiians testified Monday that they did not feel a part of the process to designate the land.

“It disturbs me that they are disturbed,” Baisa said. “It’s our island. . . . It’s our people. We wish to be included.”

During her appearance before the committee, Christa Russell, assistant field supervisor for the Fish and Wildlife Service’s candidate conservation and listing program, acknowledged that private landowners could be open to third-party lawsuits and that landowners may have their land values drop as buyers may not want to pay a lot of money for land with a critical habitat designation.

Still, an economic analysis of critical habitats designated in Hawaii since 2003, done for this proposal, showed that land values have not gone down because of the designations. Courts also have ruled that designating lands for critical habitats is not considered “a taking,” and thus is not eligible for compensation, Russell said.

Private landowners may be asked to voluntarily help with protection efforts if their land is a critical habitat, but they do not have to follow regulations unless their land or their programs receive funding or assistance from the federal government or need permits from it, Russell said.

Even if the landowners do receive federal help, Russell said, they may not automatically be under restrictions unless the work or programs conducted on the land interfere or impact the threatened or endangered species.

In addition, the U.S. Fish and Wildlife Service still is considering the exclusion of 40,973 acres of private land from the proposed critical habitat.

When asked by council members why the agency is moving to designate these lands, Russell said that the agency was working to comply with terms of a legal settlement. She did not elaborate.

Russell provided her comments Monday afternoon following public testimony in the morning from business representatives, farmers and ranchers.

“I don’t think this rule is necessary,” said Lisa Bail, an environmental lawyer for Lana’i Resorts.

Landowners, including Lana’i Resorts, already have ongoing conservation efforts on their land and would be willing to work with the federal government, she added.

Bail questioned how the U.S. Fish and Wildlife Service came up with the proposed critical habitat designations, noting that the agency has designated the 18th hole on The Experience at Koele golf course, part of The Challenge at Manele golf course and the Lanai Cemetery as critical habitat areas. She said areas designated for conservation, according to the federal government, should be areas where the endangered species are found and where the species are able to recover, which wouldn’t be in some developed areas suggested by the agency.

James Nobriga of Nobriga’s Ranch in Kahakuloa agreed with Bail, saying his ranch already has been engaging in conservation practices for years, such as controlled grazing of its cattle. He would rather work one-on-one with federal officials on conservation issues and said that placing designations “discourages,” not encourages, partnerships with private landowners and the federal government.

Other farming and ranching officials said some of their members learned that their lands were on the proposed list only through word of mouth and that the agency may listen to their concerns but doesn’t include them in their plans.

Deputy Corporation Counsel Richelle Thomson told the committee that the critical habitat designations for county-owned lands could impact the county secondarily. Projects such as road construction and work involving the federal Army Corps of Engineers would trigger some federal review.

The designations to county land could increase costs to taxpayers because extra review and a consulting may be necessary when critical habitats are involved, she added.

For more information and to view the full draft economic analysis, go to

* Melissa Tanji can be reached at