Blog

From Marti:

The State is considering additional regulations on shoreline recreational fishing on Oahu.  According to the Starvetiser, informational public meetings are being held this week and next:

The meetings are scheduled in Kaneohe at Benjamin Parker Elementary School cafeteria on Friday, at Mililani High School cafeteria on July 13, and in Honolulu at Stevenson Middle School cafeteria on July 15. The meetings start at 6 p.m.

Here is a link to the full article.  The comments on this one are thoughtful and enlightening.

From my perspective, while I appreciate the lessons many commenters try to draw from the permitting systems in “other coastal states,” I feel it is crucial to remember that Hawaii is not a coastal state. It is an island nation.  Not only does Hawaii have a uniquely different political history that we must respect, it also has a unique geography.   So while there may be lessons to learn from how other places protect their marine resources, I don’t think that is the one.

Welcome Tyler Gomes! Tyler is serving as a summer legal Fellow at KAHEA through the Center for Excellence in Native Hawaiian Law at the UH Richardson School of Law. He has been working at KAHEA’s Environmental Justice Program, assisting Staff Attorney Marti Townsend with a petition by the Concerned Elders of Waianae to intervene at the state’s Land Use Commission.

Last week, Tyler was witness to an amazing victory–the LUC unanimously granted the Elders petition!

This intervention will allow them them to formally bring evidence and testimony about why they oppose changing the zoning of a large parcel of agricultural and preservation land to allow industrial land use. This zoning change would allow the construction of a large industrial park next to small farms and homes in the back of Lualualei Valley on O’ahu’s west side, and pave the way for a proposed new landfill. (The developers are also seeking this zoning change through the Sustainability Plan process, which we’ve written about here.) This community is a population center for one of the largest communities of Native Hawaiians in the islands.

Over 400 of you have already signed the petition in support of farms, not dumps for the Waianae Coast! Mahalo! To add your name, click here: http://tiny.cc/purplespotpetition

From Tyler, in his own words:

On July 1, the Land Use Commission held a preliminary hearing on whether the Concerned Elders of Waianae can intervene on Tropic Land’s proposal to reclassify farmland to urban and build an industrial park at the back of Lualualei Valley. The Concerned Elders are an all-volunteer group of mostly aunties who want to protect the Waianae they love.

Before I give you the scoops on the day-long process, some back story:
In the process to change a boundary classification (whether a piece of land can used for a farm, a house, or a shopping mall), the LUC gives a chance for people other than the property owner, the state office of planning, and the city department of planning to also be parties to the decision-making process. As parties, you get to put on evidence, question the other parties’ witnesses, and make detailed written suggestions to the LUC every step of the way. It is a lot of work and it is not easy to get. But, the Concerned Elders wanted to be at that table.

So our sole obstacle was: prove that the Elders have a reason to be at the table.

But…sometimes…things don’t happen as planned. Sometimes somebody might miscount a day and miss the filing deadline. That’s exactly what happened. I know. It was heartbreaking for all of us. We were told — on multiple occassions, by multiple people — these LUC rules are complicated and hard to follow and totally unforgiving. That was where our second obstacle came in: how do we address the fact that we filed late?
Thanks to some creative legal research I found a “Motion to Waive Commission Rule.” It had gotten a pardon for other mistakes made before other commissions in other jurisdictions, maybe it would work here, too. So, we immediately filed a follow up motion to support our petition… and waited for Tropic Land’s response. Nothing came. Did they waive their objection to our request to intervene? Highly unlikely. We called the LUC. No, they did file an objection, but they just sent our copy to the completely wrong address — someplace in Oregon. Here was our chance! Surely the LUC would forgive our one-day late filing, when a fancy, well-experienced law firm could make a similarly human mistake. We were back in the game; admittedly, with only one day before the hearing to file our reply to their opposition. In 24 hours, we wrote a brief to answered every one of their objections to our intervention, got declarations from members signed, made 20 copies of everything, collated it (on the floor) and served it — properly — on all parties.

So the LUC hearing addressed two things: 1) Should the LUC give us an extra day and excuse the late filing? and 2) Should the LUC give the Elders their seat at the table?

Here’s the play by play:
8:20 AM- Marti and I trek to the office from our parking gravel pit (four blocks away)…IN THE RAIN.

8:30 AM- We get in and begin prepping whatever documents she may need to reference, getting everything in order, whilst drying off.

9:00 AM- We get to the LUC and students from the Kamakani Kaiaulu O Wai‘anae are all there prepared with signs and speeches. They’re excited. It seems to be the general mood of the morning. Kind of like static electricity, but the good kind.

9:15 AM- The room is already filled, and we’re second on the docket. So there’s a crowd outside. The LUC staff is adamant that the public testimony needs to be about why the Elders should be given their seat, NOT why an industrial park should be built in Wai’anae (though there are so many reasons).

9:30 AM- The first item is up on the docket. Some of the kids sit inside to listen with Aunty Alice and Ms. Nordlum. The first item is a status update, so this should end quickly. Marti, Aunty Walterbea, Shelley, Miwa, Kanoe, Ms. Stack, and myself sit outside on the floor and prepare.

10:00 AM- Still waiting. The excitement is wearing off.

10:30 AM- Quick?

11:00 AM- The LUC takes a break and lets us know to come back at 1:30 PM for our hearing. The kids are a bit restless because they’ve been sitting for almost two hours, and now we need to make arrangements because they weren’t anticipating staying in town for so long. The kids’ testimony also needs to be edited. There is concern that the LUC may be a bit touchy after the long morning, and having multiple kids each read a piece of the testimony may not over well. They decide that they’ll all stand, but one student will read the testimony. The kids go on a downtown field trip for lunch. Marti, Shelley, and I head to the office to regroup and rethink. Many of our Elders have to leave because of the unexpected plans.

1:30 PM- Back at the LUC. We’ve had lunch and talked it through. We’ve got answers for every question they could throw at us. Exhibits. Caselaw. The Wai‘anae Sustainable Communities Plan. The EIS — tabbed ad infinitum. We were set. Some might think us “rag-tag,” but even rag-tag can never be too prepared.

1:35 PM- The head of the LUC reminds us that our public testimony should not speak to the merits of an industrial park; just why the Elders should get their seat at the table. It seems to be a point of concern for the LUC.

1:40 PM- At this point, the excitement got so high, I don’t really have any concept of time.
They begin. The Kamakani kids give a great testimony about why the kupuna should be admitted. Heartfelt. Tearjerking for some. Legit.

Then Aunty Walterbea offers her testimony. It spoke to the point and was so real. Marti asked Aunty Walterbea some clarifying questions in order to strengthen the arguments.

The LUC asks for any more witnesses. No others?

Wait! One of the Kamakani kids, Kimi Korenaga, volunteered to give her own testimony, much to everyone’s surprise. She spoke about how the kupuna have offered her such a unique point of view in life, it would be unwise to dismiss the kind of knowledge and insight they have in the proceedings. She brought the hammer down on the nail’s head.

The LUC then asks Marti for her argument about our shot-in-the-dark “Motion to Waive Commission Rule.” Marti takes full blame for miscounting the days. True leadership. While anyone could’ve caught the mistake, Marti explains to the Commission that she miscounted. She then cites a Supreme Court case that procedural rules are not there as a “game of skill” to boot out players on a small slip-up, but rather ensure a “proper decision on the merits.” Marti continues on about how we fixed the issue immediately in less than 24 hours and we have proven that we are committed to a fair process.

Commissioner Devens clarifies: it was just miscounting, and it was rectified immediately. Marti also reminds the Commission that anyone can make this mistake, and that even Tropic Lands can sympathize with the inability to serve papers on time.

Tropic Lands objects without comment. Department of Permitting and Planning does not object. The Office of Planning does not object. The LUC throws the motion on the table, it’s seconded. The Comission takes a roll call vote……

8-0! Unanimous. They’ve waived their deadline rule, and without hesitation grant us the extra day…which means we aren’t technically late anymore!

Now onto the meatier of the two issues. Should the Elders be admitted? (Obviously! But does the Commission think so?)

Again, Marti gives our statement. Emphasizing the unique interests of the Elders. Explaining why the Elders will be affected by the outcome of this decision, and therefore they should participate in this decision-making process. Commissioner Devens again asks for clarification regarding the Elders’ group itself. Marti explains about the history of the Elders. He’s satisfied.

Tropic Lands, unsurprisingly, objects with no comments. The DPP does not object. The OP conditionally supports our petition. The Commission throws down a motion to grant our petition.

Whoa. Wait. Where’s the questions? And the interrogations? We have citations! And papers. Lots of papers! And answers! We have tons of answers! But that seems to be it. The staff prepares to take the roll call.
But wait, the OP has one more question. The petition to intervene says that Marti is currently the attorney for the Elders. Will there be someone else? Marti, very humbly, tells the Commission that we’re actively looking for a more experienced attorney who “knows what they’re doing” because this is the closest she’s come to this type of work before the Commission. She asks the LUC for any suggestions. They laugh (this disproves my theory that Commissioners are robots.) Marti explains, though, that until they find someone, she has vowed to stand by the Elders until the end. Very chivalrous. The Deputy Attorney General tells Marti that she’s doing a great job, because, duh, she is!

At this point Marti, Shelley, and I have this odd moment of clarity. You know that feeling where you realized you’ve prepared yourself so much more than you ever needed to? That’s the feeling we got.

They take the roll call vote in support…

1 yes. 2 yes’. 3…4…5…6…7…and…8! YAHTZEE!!! Again unanimous. There seems to be a common air of disbelief at how simple it all was. Tears are shed. Many tears are shed. Two wins in a row provides great momentum for the hearings to come!

We regroup in the lobby and discuss how great it went. There are some fantastical dance moves thrown around. Some wildly giddy laughs. A plethora of smiles. Hugs and kisses. More dancing, just me though. Marti thanks the kids for coming out and representing their communities. They perform Oli Mahalo to the Elders that were able to stay, and Aunty Walterbea responds with Oli Aloha. It all seems so….balanced. Pono, if you will.

Mahalo again to Alan McNarie for excellent investigative piece on Depleted Uranium (DU). Schofield Barracks (O’ahu) and Pohakuloa Training Area (Hawai’i Island) are main areas where DU is a concern, but the Army has also admitted that there may be DU at Makua (O’ahu).

According to a high Army official, the Army never intended to remove depleted uranium ammunition remnants from Pohakuloa Training Area and Shofield Barracks, and it has no plans to do so for as long as the firing ranges at those facilities are still in use.

See the full article in the Big Island Weekly at: http://bigislandweekly.com/articles/2010/06/30/read/news/news02.txt

From Shelley:

Two weeks ago I attended a Food Sovereignty Conference in Waimanalo.  I was a little bummed because I was on the planning committee, working on behind the scenes stuff, but in retrospect I can’t complain!  Went to some awesome workshops and met some incredible people.

The first day was devoted to the Youth Delegation to learn more about the concept of Food Sovereignty and about the leadership qualities it will take to turn Hawai`i’s food dependency around.

The next day was open to the general public and after an opening plenary we embarked on huaka`i (field trips) to various farms and other food systems in the area.  The sites were UH SOFT Garden, Mala Laulima, Olomana Gardens, Aina Aloha o na Limahana and an on-site Aquaponics demonstration.  That was a HOT day, I got burnt.  I went to Mala Laulima, an organic garden behind Waimanalo Elementary School.

The last and final day was full of workshops to attend.  I attended `Ai Pono, Local Pollinators, and Native Limu.  It was awesome.  `Ai Pono was Uncle Herbert Hoe and his daughter Aunty Tammy.  They are working hard to incorporate fresh and traditional foods into school lunches!  This past year they only served at Hakipu’u Learning Center (a charter school run by their family), but next year they are expanding to 7 schools!  Exciting! They said the kids get mountain apple in their fruit salad–so lucky! They use `ulu from their yard, and are able to buy produce from nearby farmer’s (they’re from Waiahole).  Aunty’s message: “It CAN be done!” So inspiring.

The session on Local Pollinators was so awesome!  They brought different kinds of honey for us to try–so ‘ono, as well as a display bee colony.  Did you know that Princess Bernice Pauahi Bishop was the first one to introduce honeybees to Hawai`i?  We learned all about how different kinds of bees pollinate different kinds of plants.  Here’s one of the coolest images they used.  The top is a cucumber that had been “visited” (supposed to be by a bee, but this might have been hand pollinated) only a few times, next to one that was “visited” many times.  Night and day!

the power of pollination!

Bees are so important!  I learned of a new deleterious effect of pesticides and herbicides–they can kill bees!  The presenters were saying that bee folks think that this is a contributing factor to the decline in wild bee populations.  Another reason to go organic! The other cool thing I learned was that we have native honeybees!

The bummer thing is that the other day I saw this article about how they are being considered for federal protection because they’ve become extremely rare. They are endemic, not found anywhere else in the world! The article said that they may be getting pushed out by honeybees, but the presenters said that studies in Brazil said that honeybees are not known to be invasive, but instead pollinated enough plants so that native bees continued to have habitat and food.  Not sure which one is the case in Hawai`’i.

The last workshop I went to was on Native Limu–wow, so much knowledge!  Uncle Henry Chang-Wo shared about how he can look at the limu on the shoreline to tell what kind of fish are present in the area–because certain fish only eat certain limu.  Wow!  He also shared about how some kinds of limu can only grow in areas where there is fresh, clean water outflow–if you see that one on the shore you know that the watershed of the area is somewhat still intact. He explained that limu was to Hawaiians what herbs and spices are to other cultures.  I could go on and on, but really, if you ever get a chance to meet Uncle Henry, be ready to learn!

Mahalo to all the presenters, hosts, and participants–see you all next year!

From Marti:

On Sunday June 27th starting at about 2:00 pm, fishers and ‘ohana will be gathering in Waiawa to discuss issues surrounding the management of Ka‘ena Point on O‘ahu. (Click to see map)

Located at the most northwest point of O‘ahu, Ka‘ena is one of the last relatively wild shorelines left on the island. It is a beloved fishing spot for many families, a spiritual pathway into the afterlife, and a refuge for endangered birds.

Its extreme weather and remote location helped to limit development, though it has suffered its share of urban burdens, including train tracks, military training, and most recently mud-bogging and uncontrolled bonfires.

As you may already know, Ka‘ena has been the focus of many regulatory attempts over the years.  Most of these past efforts have met with failure due to lack of community support. Here is a link to the long list of abandoned management schemes at Ka‘ena.

With a brand of tenacity unique to state government, once again, the community faces a new management plan developed by staff at the Department of Land and Natural Resources with only selected input from community members.  The state needs a new management plan because Ka‘ena will likely be highlighted as one of O‘ahu’s wilderness camping areas under DLNR’s new “Recreational Renaissance.”   Recreational Renaissance is just a nifty name for another scheme to raise money from the use of state land in a wide range of not-always-compatible ways, including the collection various permit and entry fees to state parks.  A draft of the state’s plan for Ka‘ena will be open for general public comment at a hearing in late July.

In anticipation of this meeting and in response to many complaints about state management, shoreline fishers from around O‘ahu are gathering at a farm in Waiawa on June 27th to talk about the many issues facing this community.  The recent trend in harassment of fishers by DLNR enforcement officers and HPD has led many to forego fishing the way their families have for generations.  This is related to current state regulations that limit the longstanding practice of over-night fishing and current proposals to impose new permitting requirements on shoreline fishers.  Click here to visit a blog specific to Ka‘ena management issues.

This is a tough issue to grapple with.  For me, I think the disconnect was said best by one lifelong fisherman from Waipahu:

“Why you imposing fees on me, when I only can catch enough to feed my family, but you do nothing, nothing to prevent the massive fish takes by these commercial guys, who come in here just when the fish start to run and take the whole school one time?”

If you are interested in learning more about shoreline fishing issues on O‘ahu and want to connect with the local fishing community, please contact Summer at 753-4221/ culturalpractice@gmail.com to RSVP for the public meeting on June 27th at 2pm in Waiawa.  She asks that you bring own chairs.

From Marti:

The first preliminary hearing in the whole purple spot saga was held on May 20th before the Land Use Commission.  The Land Use Commission met to decide whether the Environmental Impact Statement is complete for Tropic Land’s proposal to turn 96 acres of fertile farm land into an industrial park at the back of Lualualei Valley (the industrial park is the purple spot).

All six commissioners present agreed that the EIS is complete, but some of them made clear that based on the public testimony presented they had serious concerns about the proposal itself.

Testimony presented to the Land Use Commission alleged that Tropic Land, LLC  is operating an unauthorized truck baseyard on agricultural land and has illegally mined pohaku from a known ancient Hawaiian cultural site.

“At least 85% of the farmland has been covered with asphalt,” said one eye-witness.

Activities like storage of trucks, and vehicle repair and maintenance are not allowed on land zoned for agricultural use.  Waianae Coast residents said they filed complaints with both the Department of Land and Natural Resources’ Enforcement Branch and the City and County of Honolulu.

Tropic Land, LLC has been cited on at least three other occasions for engaging in activities on the Lualualei property that were not consistent with its agricultural classification.

Pictures also documented the mining of stones on preservation land adjoining the Tropic Land parcel.  Cultural surveys conducted on the parcel in the 1990’s confirm that this stones comprised a substantial, culturally significant platform.

A Nanakuli resident testified that ¾ of the substantial stone platform had been removed and some of the stones were used to make a sacred place to reinter Hawaiian burials exhumed by Wal-Mart on Keaaumoku Street.  Tropic Land, LLC did not have authorization from the State Historic Preservation Division to remove stones from this site.

Tropic Land, LLC was before the Land Use Commission to change the classification of their Lualualei Valley property from agricultural to urban, in order to allow them to construct an industrial park on the property.

The Land Use Commission accepted Tropic Land, LLC’s final environmental impact statement for the industrial park proposal, but not before voicing concerns about the testimony presented by the public.

Holding up a picture of trucks parked behind a fence on the Tropic Land parcel, Commissioner Contrades  asked Tropic Land’s attorney William Yuen, “is this correct?”  Mr. Yuen said he had not seen the photograph, but that the property is not paved and trucks are not being stored on the property at this time.

Commissioner Wong asked Yuen a series of questions to clarify that acceptance of the EIS did not in anyway demonstrate support for or ensure approval of the project.

Commissioner Teves requested that the Commission perform a site visit to “see the so-called commercial use of the property in its present form, to see if it is true or not.”

What does this mean for the future of the purple spot?

It means that the formal one-year process to decide whether to rezone this part of Lualualei Valley from ag to urban has started.  The hearing on the actual rezoning decision will be held on September 9, 2010 at 9:30 before the Land Use Commission.

It also means that the developer will have a very hard time arguing that this industrial park proposal is consistent with Waianae’s Community Sustainability Plan, since the current has no purple spot allowing for industrialization of this area… and the amended one with the purple spot has not been adopted by the Honolulu City Council.  In fact, staff at the city said they don’t expect the Waianae Community Sustainability Plan to come before the Council the Fall of 2010.