Judge approves agreement that stops cutting of live trees on wetlands parcel in Kīhei

WAILUKU — After more than five hours of talks on Friday, 2nd Circuit Court Chief Judge Peter Cahill approved an agreement Tuesday between the two sides of a dispute over the clearing of a 7.2-acre wetlands parcel in Kīhei.

The framework of the agreement was largely hammered out Friday behind closed doors. It puts a stop to the cutting of live trees and allows a conservation group that filed a complaint over the clearing to visit the site.

“Let’s put it this way: There will be no further breaking of the ground of any significant size,” Cahill said in court on Friday.

The clearing started after neighbors complained about overgrown trees and brush on the undeveloped parcel in the middle of a residential area. On Oct. 20, 2023, two months after the devastating wildfires in Lahaina and Kula, the Maui Fire Department issued the property owners a notice of warning to clear a firebreak around the property.

Fire Department spokesman Chris Stankis said a notice of violation was issued to the property owners on July 17. 

But residents have said the work has gone far beyond trying to clear a firebreak. On Aug. 27, the Maui County Planning Department issued a notice of warning for large-scale vegetation removal and soil disturbance without an assessment or determination required for property in the Special Management Area.

On Aug. 28, Ka ‘Ohana O Nā ‘Āina Pulu filed a complaint for declaratory and injunctive relief and a temporary restraining order against six developer LLC companies and the County of Maui “to prevent the on-going, un-permitted clearing of 7.2 acres of wetlands at 68-148 E. Waipuilani Road.” A temporary restraining order was issued on Sept. 3.

Ka ‘Ohana O Nā ‘Āina Pulu members describe themselves as “a hui of like-minded citizens.” They include Maui residents Robin Knox and Trinette Furtado, who are also leaders in the nonprofit Save the Wetlands Hui, which raised concerns over the clearing on the parcel.

Michael Babineck (left), one of the landowners of a property in Kīhei, discusses the case with plaintiffs Trinette Furtado (far right) and Robin Knox (behind Furtado) as attorney Diego Rivera (middle) looks on. HJI / ROB COLLIAS photo

The stipulations approved in the agreement include:

• The plaintiffs can visit the site for no more than an hour once a week if work was done in the previous seven days.

• The landowners will take steps to comply with the Special Management Area process prior to the Nov. 15 status conference.
• There will be no more cutting of live trees, although the landowners are allowed to move, mulch and chip the existing piles of brush and already cut trees from the parcel with limited or small amounts of ground disturbance. 
• The landowners will also be allowed to remove trash, but were ordered not to do any more ground-altering work until there was a settlement or a trial.

“The case itself is that the companies violated the Special Management Area requirements and various requirements pertaining to grading the area and grubbing, particularly grubbing,” said Christina Lizzi, counsel for Ka ‘Ohana O Nā ‘Āina Pulu, via phone on Saturday.

Lizzi said the county did not move quickly enough in enforcing its recent wetlands protection ordinance that was adopted in 2022 “as well as Constitutional obligations to protect public trust resources.”

Those include protections for the endangered ‘ōpe‘ape‘a (Hawaiian hoary bat) and Blackburn’s sphinx moth and “ensuring that customary practices of Native Hawaiians aren’t impacted.”

Cahill laid out ground rules on Friday, allowing for leeway in making sure necessary things could be done.

“You’re going to be moving, presumably, potentially large pieces of debris or vegetation that’s already been cut down,” Cahill said. “Well, that’s going to cause scraping of the ground, and that needs to be done. That has to be done because other things have to be done.”

During the hearing, one of the landowners, Michael Babineck, an O‘ahu real estate agent, told Cahill the property had been illegally dumped on for years, which he said was noted in an archaeological report exhibit from 2006. 

“So some of the trash is like an engine or a transmission or a boat trailer or whatever,” Babineck said. “And when it’s a boat trailer, it’s a boat trailer with flat tires. So you may need the excavator to pick up the boat trailer to transport it to a dump truck to be taken for recycling or these sorts of things.”

Cahill acknowledged that some work has to be done to keep the parcel in compliance.

“They can’t stop you from doing that which you are otherwise required to do,” Cahill said. “You have to be in compliance, and I get that.”

Lizzi added that the pupping season for the hoary bat runs from June to September.

“So typically all SMA permits prohibit cutting trees larger than 15 feet during that time period,” she said. “And a lot of the trees that were cut unfortunately over these past couple months were quite sizable.”

Babineck said that the work on the property did not include the removal of any roots of the vegetation, allowing for it to regrow. The procedure that was done is called coppicing, which he said is not grubbing, a process that removes roots from the soil.

Lizzi said that Maui County “agreed with us there needed to be an injunction, that the defendants needed to stop any further ground-altering work or work that could be considered development under Special Management Area rules. … The county agreed with us that we would likely prevail on that count if it went to trial, so they agreed with the injunction.”

The next step is for the landowners to apply for an SMA assessment and comply with the SMA process. That progress will be assessed at a Nov. 15 Zoom meeting. If the parties aren’t in agreement at that time, Cahill could set a trial date for nine to 12 months later.

“The SMA process could be anything from the county saying ‘you have an exemption for this’ to saying ‘you need a major permit,’ ” Lizzi said. “That could go from the director up to the Maui Planning Commission that has that public process for public involvement and participation in that determination.”

Lizzi noted that the county wetlands map was completed in June, just as this case was developing.

“This is going to be a new process for everyone whenever it is fully in effect and we’ll see how these wetlands are treated,” she said.