A community effort to preserve a small, ancient fishpond in East Honolulu won support from the Legislature, which passed a law to keep the property in state hands and away from public auction. But the state agency controlling the property is still intent on a sale.

The new law, Act 210, prohibits the sale of state-owned Hawaiian fishponds.

The law that began as House Bill 1665 targeted a 3,600-square-foot beachfront fishpond below Niu Valley shared by two long-vacant homes owned by the state Department of Transportation, which has been a reluctant owner of the site for more than a decade.

DOT acquired the property in the early 1990s as part of widening Kalanianaole Highway. And though the parcels are prime real estate, they have proved difficult for the agency to maintain, sell or transfer.

"We’re not in the business of maintaining residential lots — much less fishponds," said DOT Director Brennon Morioka.

Morioka said the agency has to deal with homeless sometimes entering the property and other maintenance issues that take resources away from DOT’s mission.

"It’s not a prudent use of highway funds," he said. "It’s not fair to the taxpayers."

Widening Kalanianaole Highway in the early 1990s did not require DOT to condemn the two homes. The agency only needed a few feet of driveway frontage. But during construction a contractor inadvertently diverted an artesian spring that fed the pond.

One homeowner, Tad Hara, wanted DOT to repair the spring because the pond was a unique feature of his house, which was built on stilts with a glass living room floor for viewing the fishpond below.

DOT figured it would be less costly to acquire the two homes through condemnation. Hara fought the agency in court but lost. After almost 20 years, both homes still stand vacant beside the stagnant pond.

Now, one obstacle DOT cites as an impediment to getting rid of the parcels is a federal requirement to obtain fair-market compensation for the property, which could include proceeds from a sale or land swapped with another state agency. Morioka said his agency is bound by the requirement because DOT used federal highway money to acquire the parcels.

DOT previously had slated the two parcels for public auction, but past auction plans were deferred for various reasons.

Morioka said his agency’s preference in recent years has been to transfer the property to another agency in a land swap, but other agencies were not willing because of liability and expense issues.

Two years ago the University of Hawaii and a cultural preservation group explored acquiring the property and restoring the fishpond and the homes.

UH’s Hawaiinuiakea School of Hawaiian Knowledge in partnership with the nonprofit Maunalua Fishpond Heritage Center planned to restore the spring and convert the homes into classrooms for research, education and cultural programs including near-shore land management, fishpond care, celestial navigation and Hawaiian language.

Maenette Benham, Hawaiinuiakea dean, anticipated being able to raise what she estimated would be about $2 million for the restoration and three years of educational program funding. But UH backed away from the plan after the Office of Hawaiian Affairs expressed interest in the fishpond. Benham said UH felt OHA would be in a better position to own the property.

OHA spokesman Lloyd Yonenaka said the organization preferred not to comment on what transpired.

Morioka said discussions with OHA and other entities including the National Oceanic and Atmospheric Administration proved fruitless because of cost and liability concerns.

"Our only recourse is to go to public auction," he said.

But preservation and community groups fear a sale could lead to a new owner filling in the fishpond, which has cultural significance and is one of relatively few remaining fishponds on Oahu.

The pond known as Kalauhaehae, or Lucas Spring, is a registered Hawaiian fishpond on a site that was once a summer home and royal taro patch of King Kamehameha and Queen Kaahumanu, according to Chris Cramer, Maunalua Fishpond Heritage Center president.

When Hara lived in the home, the 3-foot-deep pond was filled with koi, aawa, aholehole, mullet, tilapia, prawns and crabs.

Cramer’s group, formed to preserve Honolulu’s last remaining fishponds for community education, still hopes to play a role in preserving Kalau-haehae. But Morioka said DOT is moving ahead with a new plan to auction the parcels despite the new law.

Morioka said the agency will ask the Legislature next year to sell the parcels under a prior law that requires a two-thirds approval to sell state land. Such approval, if given, would trump Act 210.

Rep. Lyla Berg (D, Kuliouou-Niu Valley-Aina Haina), said it would be unfortunate if DOT, which did not testify on HB 1665, obtained the votes to sell the land HB 1665 intended to protect from being sold.

"It’s an inconvenience for the DOT," she said. "I think they need to think a little bit more creatively. State government needs to open up their arms and their eyes and embrace the private resources that are out there."

Cramer believes Gov. Linda Lingle is in a position to find another agency to assume responsibility from DOT. However, Lingle let the bill become law without her signature, and she expressed concern that DOT would be required to keep maintaining the property after failed attempts to convince other agencies to take the fishpond.

The Office of Hawaiian Affairs, in testimony on HB 1665, raised another concern that the law might inhibit the fishpond parcels being sold or transferred to a private steward willing to restore the cultural asset.

Besides Kalauhaehae, the new law might affect a third residential property DOT owns in Kuliouou that includes a one-tenth interest in Kanewai fishpond connected to Paiko Lagoon.

Most other state-owned Hawaiian fishponds are ceded land that would require a two-thirds vote by the Legislature to sell. The state Department of Land and Natural Resources said there is no intention to sell any other state-owned fishponds.