HONOLULU — The state Board of Land and Natural Resources on Friday was poised to make a landmark decision on fines for alleged violations on conservation lands on O‘ahu’s North Shore.
Violations included the unauthorized decimation of two acres of critical habitat for Hawaii’s endangered yellow-faced bees, plus the unpermitted construction of an iron fence contributing to the death of a female Laysan albatross.
The named defendants are all connected to the Marconi Point Condominiums, an agricultural condo development east of Turtle Bay Resort in Kahuku.
At stake? More than $3.1 million in combined administrative fines for the alleged violations, which included $5,000 for each of the 300 yellow-faced bees killed by the destruction.
The board, however, was unable to vote on the agenda item when several attorneys for the defendants stated their intent to file contested case hearings. Members of the community were also unable to testify.
“For the community, our coalition of community members and environmental organizations, we are very disappointed,” said Maxx Phillips, staff attorney for the Center for Biological Diversity. “We’re very disappointed that the developers did not allow for public testimony at this hearing.”
The nonprofit is part of the Malama Marconi Coalition, made up of community leaders advocating against harmful development at Marconi Point.
The named defendants include Sushil Garg; Benjamin Lassary, vice president of RCA Trade Center Inc.; developer Makai Ranch LLC; and Yue-Sai Kan, trustee of Yue-Sai Kan Trust.
Garg, a tech entrepreneur, is manager of LKG HI Properties LLC, which owns a majority of the beachfront properties, and manager of Greystone HI Investments LLC. Lassary is the landscaper hired by Garg and Kan.
Kan, a Chinese American television host and cosmetics entrepreneur, is the owner of Unit 1 at Marconi Point Condominiums.
In documents submitted to the board, DLNR’s Office of Conservation and Coastal Lands said it conducted a site investigation in mid-October in response to complaints.
An investigation found the actions of these three defendants resulted in the devastating loss of critical, coastal habitat for two species of Hawai‘i’s endangered yellow-faced bees.
This included the chopping down of more than 100 heliotrope trees, along with naupaka brush and other vegetation, which had been cleared, cut to the ground and pulverized into mulch. DLNR staff saw tire tracks on the beach, and workers with excavators, a chipper and other equipment.
This unauthorized clearing of habitat along this shoreline area constituted “major harm to the resource,” DLNR said, altering an “important part of a natural and healthy beach, dune, and backshore environment.”
As a result, the highest wash of the waves now reaches farther inland than before the trees and foliage were cleared. The mulch is a concern as a breeding habitat for invasive coconut rhinoceros beetles, which destroy palm trees.
Staff counted 106 heliotrope tree stumps, 40 of which were makai of the shoreline and therefore on state land.
At that time DLNR notified 15 Marconi Point landowners of potential violations due to the unauthorized clearing of land and spreading of mulch in the conservation district, with potential fines of $15,000 per violation per day.
About a week later, DLNR staff met with Garg about the violations and were told that he hired Lassary to clear the trees and brush due to concerns about the dry brush and fires but did not know about the vegetation’s importance as habitat for endangered bees.
The area, officials said, was one of only three known habitats of the Hylaeus anthracinus species of yellow- faced bees on O‘ahu.
Federal and state wildlife biologists concluded that at a minimum, 300 bees were killed as a result of the clearing and mulching activity that occurred Oct. 14-18 at the Marconi Point property. That’s a conservative estimate, biologists said.
Another key violation is the boundary fence built on the west side of the property alongside a conservation easement on Turtle Bay, without legal authority to do so.
This iron fence, which is more than 6 feet tall in some areas, was authorized by Kan, and allegedly poses a threat to the natural behaviors of Laysan albatrosses that potentially become trapped by it.
Ho‘okipa, a female albatross, had made a nest and laid her egg next to the fence in November 2022, but both parents were unable to get to it to incubate it due to the fence being in the way.
That egg did not make it, but Ho‘okipa laid another egg by the fence on Yan’s property in November 2023, which lead to fatal consequences in December.
Ho‘okipa became entangled in the fence while trying to incubate her egg, according to volunteers, after yard workers with weed whackers startled her. They disentangled Ho‘okipa from the fence, but she was bleeding from the mouth.
She was rushed to a veterinarian but died before getting there, DLNR said. A follow-up necropsy determined she died of blunt force trauma to the head that appeared to be intentional. An investigation into the death is still ongoing.
DLNR sought $45,000 in administrative fines from Kan, including $30,000 for the unauthorized fence and $15,000 for the injury and death of Ho‘okipa.
Landowners also must pay a third party to restore the damaged habitat to its previous condition, with a plan approved by DLNR and its agency partners.
Environmental advocates also had reached out to the city, requesting that the fence immediately be removed because it was built without proper permits. The city never responded to that request, said Phillips.
The contested case hearings will not be public, but will take place before a hearings officer who will then make a recommendation to BLNR before making it back onto the agenda, a process that could take up to a year.
“In my experience as an environmental lawyer in Hawaii for the last 34 years, I have never seen a proposed fine this large for destruction of native species and habitat,” said Denise Antolini, a retired law professor.
During a recent beach cleanup in the area Sunday over Earth Day weekend, Antolini said it was “absolutely shocking” to see the destruction done to the coastal habitat that was there.
“It looks like a moonscape,” she said, “compared to a lush, coastal landscape with mature trees.”
The project is considered an “agricultural condominium property regime,” marketed by real estate agents as “unique oceanfront property” with private access to a sandy beach.
Separately, there is also a petition filed by the Malama Marconi Coalition with the state Department of Commerce and Consumer affairs over the hijacking of its name.
The coalition says the developer, Makai Ranch LLC, has registered its name and modified its mission statement with the department in a move that could confuse the public, plus reserved domain names for URLs with the names “Malama Marconi Coalition” and “Malama Marconi.”
The developer also has filed suit against the city’s Department of Planning and Permitting over the requirement of a special management area permit for the construction of farm dwellings and agricultural warehouses at Marconi.
