Council refers bills to resolve ambiguities over sand mining

Maui County Council members unanimously adopted a resolution Friday to refer to county planning commissions a bill to protect dune areas with potentially culturally sensitive sites from sand mining other than for on-site construction.

Council Member Don Guzman, who holds the Kahului residency seat, proposed the measure amending the definition of “resource extraction” and one beefing up enforcement when people fail to comply with archaeological monitoring, preservation or mitigation plans.

“The council’s role is to clearly define the resource extraction process so the administration can better regulate and safeguard our finite resources and sensitive cultural sites, complexes and landscapes,” Guzman said.

The aim of the measures was to bring “clarity and certainty” to county laws, he said.

Guzman said he drafted the measures following council consideration of a temporary moratorium on sand mining in Central Maui.

The controversy surfaced in late April following a Honolulu TV news report that Honolulu Construction & Draying was moving excavated sand from Maui to Oahu for construction projects. Although the county determined that grading permits were properly issued, questions were raised whether the excavation and exportation of high-quality sand for making concrete and other purposes met the definition of “resource extraction,” and that it may have required special or conditional use permits.

In early May, HC&D stopped hauling sand out of a Maui Lani project after Maui County issued warning letters. Those informed the company that resource extraction was not permitted within the Maui Lani Project District.

The company maintained its work was in compliance with its grading permit.

The location of the sand mining has been reported as being adjacent to Maui Lani Parkway and west of the Dunes at Maui Lani Golf Course.

The KHON2 report said trucks transported sand to a mound on land leased from Alexander & Baldwin. HC&D, formerly known as Ameron, leased the land and trucked the sand from the site to Kahului Harbor, where it was shipped to the company’s plant on Oahu.

The Maui Lani project drew fire from community opponents. They charged the sand mining inflicted archaeological damage and that sand dune resources were being depleted. The Sierra Club’s Maui Group advocated for the preservation of Central Maui’s inland sand dunes and the protection of Native Hawaiian burial complexes that contain iwi kupuna.

HC&D maintained that its earthmoving activities were for erosion and dust control and stabilization of work areas.

The dispute led to a request for a preliminary injunction against Maui Lani Partners to stop earthmoving work at its Phase IX site, and 2nd Circuit Judge Joseph Cardoza ordered a stop to the activity on Sept. 27, finding that “at least preliminarily” the company had not followed a state-approved archaeological monitoring plan.

A bulldozer operator, Sam Miguel of HC&D, testified that he did not need an archaeological monitor because he was screening stockpiled sand that had been monitored previously at the Maui Lani project. He rebutted previous testimony that a bulldozer operator was moving sand from a large dune and putting it on a platform without required supervision from an archaeological monitor.

Plaintiffs Malama Kakaniula and individuals Clare Apana and Kaniloa Kamaunu filed the lawsuit July 24 in 2nd Circuit Court to stop earthmoving activities on the Maui Lani Partners site until the company complies with an archaeological monitoring plan.

Cardoza dismissed without prejudice two of the plaintiffs’ counts. Those were charges that earthmoving work violated a grading permit and the county zoning ordinance.

Plaintiff attorney Lance Collins said Friday that the judge ruled the plaintiffs need to exhaust their administrative remedies with the county first before pursing those counts in Circuit Court.

In a third count, the judge ordered Maui Lani not to do any earthmoving work unless certain conditions were met.

Those included that the plaintiffs or their attorney must be notified at least 48 hours before the work is conducted. But that condition does not apply to emergency work.

A written ruling from the judge was being drafted as of Friday afternoon.

Guzman said the legal dispute showed “areas of concern and ambiguities” in county policies.

“As the residing council member of Central Maui this is of serious concern to me,” he said.

One of Guzman’s bills changes the definition of “resource extraction” in the Maui County Code to more narrowly defined sand mining for purposes other than on-site construction. That bill was referred to the Maui, Molokai and Lanai planning commissions Friday. The panels will review the bills and provide their recommendations to the council.

The second bill would enhance enforcement when people fail to comply with state and federal regulations affecting archaeological monitoring, preservation or mitigation plans — or requirements of the soil and water conservation districts. The measure includes a provision to allow state and county officials to enter a property to ensure compliance with rules and regulations.

Both bills were referred to the council’s Land Use Committee.

A 2006 study reported that Central Maui’s sand dunes would have a five- to seven-year lifespan if mining were to continue at the pace at that time. Mayor Alan Arakawa asked council members to consider a moratorium on sand mining exportation. He said the export volume of Maui sand to Oahu exceeds the county’s use by a 2.5-to-1 ratio.

* Brian Perry can be reached at