Broken Home

JLor years, Cynthia Salley, her sister, Elizabeth "Tita" Stack, and her brother, Les Marks, owned in common the almost mythic sixty-thousand-acre Mc-Candless Ranch—half outright, half leased from the Bishop Estate. It was a mostly magnificent tract of forest and pasture reaching from South Kona to Ka'u, from ocean shore to the alpine zones of leeward Mauna Loa—and, for the family, a place of mostly pleasant memories going back just about as far as anyone could remember.

But common were the scars of human habitation: roads old and new, fence lines, and areas of cut forest, most of the natural lowland trees and cover having been cultivated out of existence a thousand years ago. And, like the rest of Hawai'i, it was a land continually besieged by foreign species, including feral pigs and cattle.

When Cynthia and Tita's brother, Les, died in 1989, it became necessary to partition the ranch so that his share could be given to his three daughters. By the mid-1990s, the contentious partitioning process, driven largely by Cynthia Salley, was well under way. Throughout it, all eyes were on the 'alala because whichever piece of property ended up with the most birds would also end up with the most biologists and other "damn federal bureaucrats," as the ranchers often called them.

In the end, Cynthia Salley claimed the southernmost section of the original ranch, which retained the McCandless Ranch name. Tita Stack settled for the northernmost section of the original ranch, known as Kealia Ranch. Les' three daughters, who operated as the Les Marks Trust, inherited the center portion of the original ranch. They called their ranch Kai Malino. Each party also received a parcel of coastal land.

That all overlapped 'alala habitat was only one potential complication of the partition. Inheritance and other taxes were another. In inheriting their father's land, Les' three daughters were hit with a large inheritance tax. They decided to sell part of Kai Malino to pay it.

In the 1996 federal budget, Congress earmarked funds to buy 5,300 acres of Kai Malino. The Service had only to await the final appropriation. In the interim, an American conservation organization that specializes in transactions of conservation land worldwide, The Nature Conservancy (TNC), negotiated an option to buy the Kai Malino property for $7 million so that the three sisters could pay their taxes and move on with their lives and the property would not be at risk for development or other sale while the Service awaited the money. Once the congressional appropriation was approved, TNC would sell the land to the Service, adding a modest fee for serving as middleman. If all went according to plan, everyone would live happily ever after—maybe even the 'alala.

Over the next three years, TNC paid the owners nearly a third of a million dollars to maintain the option while the Service waited for the money. When Congress severely cut back on funds for conservation, the final appropriation became stalled. TNC, fearing that the money for Kai Malino would not be forthcoming, allowed the option on the property to expire. To the three sisters, still stuck with a large, interest-accruing tax bill, the broken deal only proved what they had already long assumed: that dealing with federal bureaucrats—even through a middleman such as TNC—was a waste of time.

After the purchase stalled, a front-page article in the Honolulu Advertiser stated, "Owners of the last habitat for the endangered Hawaiian crow—frustrated with government delays to buy their land—plan to begin logging rare koa there." That, the sisters argued, would provide the money they needed to pay their taxes. They also believed that it was sure to light a fire under the Service.

But the article quoted Robert P. Smith as saying that he still couldn't guarantee that Congress would authorize the expenditure anytime soon: "We've been negotiating in good faith for 18 months or so. Recently one of the owners said they were going to engage in a logging program. I didn't have any money, so I wished them luck." The article also quoted Nohea Santimer, one of the sisters: "We've given up our lives for the last three years to make this plan work, and it really hasn't come to fruition. I would really have liked the Fish and Wildlife Service to have bought it, but the Fish and Wildlife Service doesn't have the money."

The ranchers' intentions for Kai Malino were laid out in a "forest restoration plan" written by a forester and family friend, Bill Rosehill, whose reputation in the environmental community preceded him. In the 1980s he had overseen logging on a portion of the Bishop Estate's Keauhou Ranch in Ka'u, where, according to Environment Hawai'i, he was "remembered for clear-cutting the area in the name of restoring a 'decadent' koa forest."

Not long after the plan for Kai Malino became public, the Sierra Club Legal Defense Fund sued the ranch to prevent the cutting of trees in 'alalaa habitat.

The 'alala "faces a new, deadly threat," the suit read.

The owners of the Kai Malino Ranch . . . home to the last 14 'alalaa known to exist in the wild, are poised to commence logging operations that will destroy the native forest habitat on which these last wild 'alala depend for their continued survival. This habitat is so vital to the 'alala that the United States Fish and Wildlife Service ("Service") has identified Kai Malino as its single highest priority for habitat acquisition in the United States. Without it, the 'alala face almost certain extinction.

Even Michael Buck, head of the Division of Forestry and Wildlife and a forester's friend if ever there was one, said that while South Kona needed a responsible forestry plan, cutting shouldn't start in the middle of the 'alala habitat.

While the Service continued to wait for Congress to appropriate the money, the sisters refused to allow biologists on the would-be refuge. Rosehill said that the government had bungled the deal by not dealing fairly with the owners of Kai Malino. Access would be denied until the land was actually paid for. Anyone who trespassed would be arrested.

Cynthia Salley, meanwhile, had been quietly cutting koa on McCandless Ranch. Fearing a similar suit, she stopped. The ranch continued to make up some of the shortfall with ecotours, inviting birders to come and see the 'alala, which had become a holy grail for birders. As long as there were 'alalaa, the tours proved popular, sometimes attracting a dozen or more people in a day—at $200 each.

The owners of Kai Malino, meanwhile, abandoned their logging plan two months after the lawsuit was filed. Finally, about $7 million in federal money became available, and the Service began negotiations to buy the property. They were contentious from the start. As Robert Smith later characterized the situation, "every other word out of those ranchers' mouths was 'damn federal bureaucrats this, damn federal bureaucrats that.' It would be hard to overestimate just how much they hated any government interference in their affairs."

Rather than buy the land outright, it was agreed that the Service would initiate a friendly condemnation, meaning that it would take possession at an agreed price through the law of eminent domain. This course was taken because the three sisters did not have clear title to all their land. In fact, down the mountain, the Medeiroses, whose ancestors had historically used the area, considered making a legal claim to part of it. For the sisters, having the Medeiroses involved at Kai Malino would have been worse than meeting the Minotaur in the Labyrinth. By condemning the land, the government could preempt complicating claims of landownership.

In December 1997, the Service finally took possession of the 5,300 acres of Kai Malino for about $7.8 million. The news only got better when the California-based David and Lucile Packard Foundation promised the Service $1.1 million to build a pig-proof fence around the entire refuge. At last the 'alala would have a place to call its own.

While many were relieved by the purchase, the Sierra Club Legal Defense Fund was eager to drive home its original point: "Without vigorous citizen enforcement under the ESA [Endangered Species Act], there might not have been a forest worth purchasing or any 'alalaa left in the wild." Linda Paul, president of Hawai'i Audubon, was about as gracious: "Our lawsuit demonstrates the important role citizens play under the federal Endangered Species Act in conserving critically endangered species like the 'alala."

These claims of credit rankled McCandless Ranch manager Keith Unger, who had always believed that the ranchers, paradoxically, had protected habitat for the 'alala. He fired off a letter to the editor of West Hawaii Today:

There is something missing here. It appears that the USFWS has mobilized and is swooping in to save the forest and all that is in it.

From whom? The previous landowners? This area is rich and botani-

cally diverse due to the private landowners stewardship for the past 80

years. . . . Rather than implying that the feds are performing an emergency rescue, wouldn't it be more appropriate to give credit where it is due and thank the present landowners of Kai Malino for their history of good stewardship without which there would be no forest to save?

Not long after the purchase, Bill Rosehill, the three sisters, and Georgia Shirilla, a senior realty specialist from the Service's Division of Realty in Portland, Oregon, who had done most of the negotiating, gathered at Kai Malino. It wasn't long before Shirilla got the distinct feeling that her work was not yet done. "The surveyors and engineers walked up the hill with Rosehill," she said. "When they came back down we knew there was a disagreement." 'Alala, we've got a problem.

Because the new refuge was an island of federal land amid a raging sea of private property, the purchase agreement identified various rights-of-way through the properties for both the ranchers and the Service. According to Shirilla, one clause stipulated that the Service would pay to build a half-mile connector road from the main highway up to an existing ranch road that led to one corner of the refuge, a mile farther on. Service employees would use this mile-and-a-half stretch—located on ranch property—to reach the new refuge.

But Rosehill and the sisters maintained that the agreement guaranteed no such access along the sisters' existing mile-long road. Rather, they insisted that the Service build not only the half-mile connector road but also an additional mile of new road along the refuge's northern boundary. Shirilla called their conditions for gaining access to the refuge "outrageous."

But the access disagreement was just the beginning. Along with the purchase agreement, the Service, as a federal agency, was required to help the sellers pay for moving certain personal items from the property. The list of personal property that the ranch sent to the Service included customary items—vehicles and cattle, for example—and a lot more, including wildlife: 2,500 turkeys; 8,000 Kalij pheasants; and 300 Erkel's francolins, African game birds related to partridges. The ranch also demanded compensation for "all contents within all lava tubes (caves) including but not limited to: all living organisms, bones, remains of any kinds, artifacts, petroglyphs, etc." Clarence Medeiros Jr. and his wife, Nellie, who believed that many of their ancestors were buried in some of the caves, called the claim a "declaration of war."

"We offered what we felt was a fair price for legitimate claims," said Shirilla. "The sellers rejected our offer and took us to court."

As if the problems on Kai Malino were not enough, soon trouble began brewing next door at Kealia Ranch.

Tita Stack, Salley's sister and the owner of Keaalia Ranch, had recently received from the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) a grant for pasture improvement. But Service officials worried that the "improvements" were occurring in 'alalaa habitat, and this was a serious problem because, by law, government officials from any federally funded project that might harm an endangered species have to "consult" with the Service. And the regional NRCS office in Kona had not consulted with the Service about the project on Keaalia Ranch.

One day in the spring of 2001, biologist John Klavitter returned to Kealia Ranch to monitor the last remaining 'alala in the wild. It was then that he discovered that a bulldozer had knocked down trees and displaced large rocks to clear the way for the new NRCS-funded fence. Klavitter immediately told the refuge manager, Dave Ledig, and supervisory wildlife biologist, Jeff Burgett. They drove up the mountain in their four-wheel-drive vehicle to survey the damage. Ledig told me that he then called Tita Stack and warned, "Your activities may have been in violation of the Endangered Species Act."

Stack said she was surprised and felt "censured" but took the call in stride. "Using a bulldozer to clear a fence line had been standard practice for the ranch for decades," she said. "We didn't give it a second thought. That's how all the roads were made, including the one that the biologists routinely used to reach the ranch." Still, Stack knew that running afoul of the Endangered Species Act, even inadvertently, was not a matter to be taken lightly. If she needed an attorney, she had one in her husband, but rather than risk entanglement with the government, she withdrew the grant application. The ranch paid for putting in the new fence. But the matter was not over.

When Salley got word of the episode, she angrily called an emergency meeting of the all-but-defunct 'Alala Partnership, which woke up like a dead man. At the meeting were Ledig and Burgett. Paul Henson, field supervisor for the Service's Pacific Islands office in Honolulu, joined by conference call. New to paradise and new to the job, Henson had never met Salley. But even his experience with the controversial northern spotted owl controversy would not have prepared him for this first meeting with her. Nor was Salley fully prepared for him.

At the meeting, Salley railed that reporting the bulldozer incident broke the spirit of the so-called partnership. Anyone who had a problem, she said, should tell the involved parties directly, not run to the authorities. And "if reporting the bulldozer incident was an attempt to teach the NRCS a lesson for not consulting with the Service, Kealia Ranch should not be the 'sacrificial lamb.'"

Salley then reminded Ledig, Burgett, and Henson that, until the Kai Malino access fiasco was resolved, the only access to the new refuge was over McCandless land. The bulldozer incident, she said, was sorely tempting her to eliminate that.

As it stood, the court-negotiated settlement that, several years earlier, had broken the McCandless kapu was still in effect, and the Service was paying Salley $30,000 each year to help maintain the gravel road it used. Salley emphasized that the earlier informal conditions—conditions that had been accepted by Robert Smith — set for individuals to cross her property remained even though Smith had retired.

Depending upon who you talked to, Salley's list of "Thou Shalt Nots" was nearly as long as Hammurabi's, and the punishment for breaking them seemingly as severe. Some of the rules were based on what Smith called the ranchers' "paranoia of the federal government," while others were built on Salley's own hard experience.

One time, Salley's husband, Ray, who made fine wood furniture, had gone up the mountain to salvage a koa tree that had fallen across the road. After his bulldozer—koa log in tow—passed the Hula Dome, one of the field technicians stepped out of the forest and snapped his picture, apparently unaware that the dozer had rearview mirrors. Ray feared that the photograph was just the kind of "evidence" that could stir up trouble. The technician was promptly fired. When Cynthia met with him on his way out that night, she confiscated his film and had it developed. She discovered that the technician had also photographed survey lines — long, straight corridors that had been plowed through the forests as a necessary part of the partitioning process. "This is what he called 'habitat destruction,'" she said. 'Alala researchers were henceforth prohibited from bringing cameras onto the ranch.

Researchers were also prohibited from taking notes about anything other than 'alala and 'io, from deviating from any path except in direct fulfillment of their 'alalaa duties, and, of course, from otherwise recording or reporting on any activities that might be construed as a violation of the Endangered Species Act.

Despite the bulldozer incident and "out of the kindness of our hearts," Salley said, she would continue to allow passage through McCandless Ranch to the new refuge until the Kai Malino mess, now in litigation, was sorted out. And she still insisted that anyone who came onto her property take the McCandless oath of allegiance by promising not to gather any evidence "to build a case or another lawsuit against us."

Then there was the steep access fee Salley had imposed, which in December 1999—less than a year before the bulldozing incident—had been increased from $30,000 to $100,000, according to several Service biologists. Unger called the increased fee a matter of "prudent business." Ledig interpreted it as a brazen attempt to raid part of the Packard Foundation grant, which had been awarded to the Service but not yet spent. The fee also rankled Ledig because most of the access to the refuge was across the Waiea tract, land that the ranch leased from the state; only a short stretch was across McCandless property. Whatever the reasons for the increased fee, Salley said that it would be needed to maintain the road after it was "torn up by Service people who didn't know how to drive their 4-wheel drive vehicles."

Whereas Smith might have been comfortable with these previous handshake agreements, Henson, Burgett, and Ledig were not — at least not with the new price tag. Henson thought that Salley, knowing how desperate the government was to reach the refuge, was trying to take advantage of the situation. Ledig had also come to deeply resent the "humiliation" that all government biologists —would-be visitors of the ranch — had to suffer. "Cynnie or Keith would sit us down and give us the third degree about what we could and could not do," he said. "They were interrogations. I don't know what else to call them."

When Ledig accused Salley of "jeopardizing our jobs by asking us not to report illegal activities," the emergency meeting of the 'Alala Partnership grew more heated. "You want us to continue to turn a blind eye toward the degradation of 'alalaa habitat on the ranch," he said.

"You're telling us we can't come on your land unless we promise not to report or notice or see anything potentially illegal," Burgett chimed in, reasoning that this could have potentially meant "a dead body on the side of the road." He continued, "In the past, we turned a blind eye. We can't operate like that any more. At Kealia we saw something that we thought was potentially illegal, and we were obliged to report it."

Salley shot back: "Our family has been managing this land for eighty years with 'alala. We know good stewardship!"

"Bulldozers and crows just don't mix!" Ledig defiantly replied. "We can't be bulldozing next to crows' nests and expect them to survive!"

When Salley sailed into Ledig with her choicest invectives, reserved for Service employees and other federal bureaucrats, Henson retorted: "I'm completely taken aback by the disrespect you show to someone you hardly know! I'll tell you right now, I respect what Dave's trying to do. He's worked successfully on the California condor with just about every kind of person — ranchers and cattlemen and everyone else!"

Fearing the worst, several Service employees at the meeting made silent mock slashes at their throats with the sides of their hands — futile gestures, since Henson was on a speakerphone. Henson continued. "You have a hostile view of anyone with a Fish and Wildlife patch on his shoulder. Dave is extremely dedicated and energetic and respectful of private landowners. He's just the kind of guy you want to be working on a project. We aren't here to hunt for crimes. We're here to work with everyone we need to, to help this bird. We're here to work with you if you'd let us!"

Surprised that the Service would not agree to her conditions for access, Salley no longer felt obligated to allow its employees on her land, since no crows were left on McCandless. And she knew that barring them from her land would eliminate the only road access to the new refuge. "Fine! You can no longer enter my ranch. Take a helicopter to the new refuge," she huffed. The Kai Malino refuge had become Kai Limbo.

The emergency Partnership meeting still wasn't over. Rosehill accused Henson—or, rather, the Service — of being a serial "wife-beater." It had beat up Salley to gain access to McCandless, it had beat up the three sisters in the process of buying part of Kai Malino, and now it was beating up Tita Stack for her activities on Keaalia Ranch. And each time the Service beat up on someone, Rosehill continued, it would come back the next day profusely apologizing, begging for forgiveness, and promising never to do it again. Henson was infuriated by the comparison. Even Salley, who wasn't one to mince words, admitted that Rosehill's analogy was extreme.

At one point during the meeting, Rosehill was leaning over angrily, on the verge of "losing it," as one Service employee put it. At that point, John Klavitter interceded.

"Bill, if we're going to work this out, you're going to have to calm down."

"Don't tell me to quiet down!" Rosehill retorted.

Henson then effectively banned Rosehill from further Partnership meetings. That is, if Rosehill showed up, no one from the service would.

After the explosive emergency meeting, Henson said that he called Tita Stack to "make up" for the bulldozing debacle. According to Henson, he told her, "We have no problem with the work you're doing." He explained that, under the law, the NRCS had to consult with the Service, which it had failed to do. "If they don't, and some group like Hawai'i Audubon wanted to stop the work, they could file suit and the work would stop in a minute." (Stack recalled no such conversation.) Henson subsequently wrote a letter to the NRCS "reminding them" of their obligation to consult with the Service. "We exchanged letters with them. The consultation requirement was met," Henson said. But not without a black eye for the NRCS and bruises for nearly everyone involved.

An intensely private person, Stack later said that the bulldozer incident was "a little thing that got blown out of proportion." Through it all—and to the admiration of all—she continued to allow biologists to monitor the last wild 'alalaa on her land. "I invited biologists on the ranch because it was a natural extension of the work they were doing. Having the last two birds arrive here, I allowed the biologists to follow them," Stack told me. "Make no mistake: I minded the biologists' being on the ranch. But allowing them on was the right thing to do."

"On one hand, I can't blame the ranchers for being a little suspicious of the 'government is here to help' approach," Henson said. "We don't want to create any bad blood with any private landowners because it makes our job a lot harder or even impossible," he explained, referring to the fact that most endangered species are found on private land. "But we're renting Salley's son-in-law's house on the ranch as refuge headquarters and the Service is pumping money into the area, and she's denying us access across the same land. You can't take advantage of the federal government. And there was a lot of that going on."

"It was phenomenal," Ledig recalled. "I spent twelve years on the California condor, whose politics were amazing, but I had never seen anything at the level of the 'alala. It was extremely frustrating to deal with someone who tried to control what activities occurred on a national wildlife refuge, based on her personal attitudes, by controlling access to that refuge. There were some very well qualified restoration ecologists she refused to allow to cross her land because she was afraid they might spot something. This really hindered the elimination of wild pigs and other exotics on the refuge. It really set the program backward. McCandless Ranch activities and attitudes were not beneficial for the 'alala."

Through the fog of personal invectives, realities about the new refuge were setting in. Soon the sound of whirling helicopter blades throbbed above Kai Malino. Because there was still no fence, wild cattle and pigs continued uprooting understory plants. Without road access to bring in fencing materials, the Packard Foundation finally withdrew its grant. All this was costing the last wild pair of ravens precious time that they did not have to lose.

As Henson summed it up, "At Kai Malino the Service got shafted. The poor 'alala was in the middle."

+1 0

Post a comment