FORMER CA TAGUPA’S “BLUNDER” TO COST COUNTY OVER 6K:
(PNN) It’s the perennial question regarding governmental SNAFUs, especially on Kaua`i, one taken advantage of by many a county worker- was it malfeasance, malpractice or simply incompetence?
Case in point an item on today’s council agenda:
C 2009-344 Communication (10/01/2009) from the County Engineer, requesting Council approval to write-off delinquent tipping fees in the amount of $6,044.98 for Eric Taniguchi dba Eric Taniguchi Trucking & Equipment ("Taniguchi") (Account #55445-432027), pursuant to Kaua`i County Code Section 21-9.4, relating to uncollectible delinquent tipping fee accounts (Department of Public Works Solid Waste
Division).
Matters like these seem to pop up on the agenda now and then, mostly for sewer fees that are uncollectible due to things like bankruptcies or simply the fact that it would cost more to sue the delinquent individual than they owe.
But a tipping fee- the money that commercial businesses pay per ton to dump their load in the county landfill? That’s a new one on us.
A look at the paperwork behind the request though shows a story of either the worst bungling incompetence in a long time or an effort by one individual- then Deputy County Attorney James Tagupa- to help Taniguchi get away without paying the $6,044.98 he owes the county.
According to a letter to the council from County Engineer Donald M. Fujimoto with the concurrence of Director of Finance Wallace G Rezentes Jr., it all goes back to May of 2001 when Taniguchi was issued a delinquency letter for $34,704.49 in tipping fees. After a June follow-up letter, in August Taniguchi’s tipping privileges were revoked after the county attorney’s (CA) office unsuccessfully attempted collection.
In September Taniguchi and the county reached a “payment plan” and the suit was dropped but apparently by January 2004 Taniguchi had fallen into delinquency and another plan was formulated to make him pay off $15,986.64 over the next 12 months.
Strangely enough considering the non-payment and default over the previous three plus years, Tagupa recommended that “no collateral be collected, given Taniguchi’s previous record of payment”.
Or non-payment as the case may be.
By November Taniguchi was in default again and was sent a letter by the Solid Waste Division that remained unclaimed and was returned. The County Engineer then asked the CA to file suit against Taniguchi for $3,681.52 and in March 2005 District Court entered a judgment for the county which was recorded with the Bureau of Conveyances against Taniguchi’s assets.
That’s when all the extremely specific facts in the letter turn vague.
For some reason “(a) satisfaction of judgment was filed by Tagupa with the District Court in July 2008 and subsequently with the Bureau (of Conveyances) in August of that year. The filings do not indicate why Tagupa filed the Satisfaction of Judgment” since apparently the judgment was never satisfied, although the letter fails to say this in so many words.
There is also no explanation of the discrepancy between the $3,681.52 that was apparently awarded in court and the $6,044.98 that the council is being asked to write off.
As the letter’s penultimate paragraph says “(a)s a satisfaction of judgment was filed, we are unable to pursue this debt further. Upon recommendation of the county attorney we request the said amount be written off.”
Tagupa no longer works for he county attorney’s office and County Attorney Al Castillo did not return a late morning phone call by press time requesting further information on why Tagupa filed the satisfaction of judgment or whether he was fired for the action.
Others in the CA’s office were apparently terminated when Castillo took over last spring including Margaret Hanson Sueoka who has filed a discrimination action with the federal Equal Employment Opportunity Commission (EEOC) as PNN reported last April.
Many of those hired by Castillo were attorneys that had been apparently fired by new Prosecuting Attorney Shaylene Iseri-Carvalho who was elected last November after serving two terms on the county council.
Wednesday, November 4, 2009
Monday, November 2, 2009
PUPPY LOVE
PUPPY LOVE: You can’t pick up a newspaper, watch the local TV news- or what passes for “Hawai`i News, Now”- or for that matter hold a conversation these days without someone bemoaning how our keiki are suffering by “missing out” on 17 instructional school days.
Everyone that is but the kids themselves. Oh sure the media has managed to scrounge-up a handful of Goody-Two-Shoes, “I’m gonna teeeeeell” types and stick cameras in their faces so they can parrot what their parents told them to say about “sacrificing our future” because a petty vindictive governor and a pompous and lazy legislature fiddle while education burns.
But move outside the ear-shot of the grown-up and ask any red-blooded kid- especially those who are bored to tears at this year’s “long division again” curriculum- and you’ll hear nothing but “Hip Hip Hooray for “Furlough Fridays”
They’re ecstatic about the fact that the so-called adults are so busy fighting over political considerations that they can’t come up with a lousy $60-85 million to keep the schools open despite the half-a-billion federal stimulus dollars that were supposed to be spent specially for education but instead went for everything but.
$60-85 million?... hmmmm- why does that number sound familiar?
Oh yeah- that’s the same range of the estimate of how much the self-same governor and legislature blew trying to pull a super-fast-one and ram the super-fast-tracked super-fast-Superferry down our gagging throats.
When you include not just the base $40 million bucks for the unneeded, now-useless harbor improvements but stuff like keeping the half-assed barge loading system running, the millions in legal fees and state-worker time and expenses as well as dozens of other costly incidentals, it comes out to... let’s see, divide by the arrogance, carry the corruption, multiply by the “legal bribe” corporate campaign contributions.... oh, around $60-85m.
So kiddies, the least you could do with all your free time is get busy writing to your military-madness-mindset-muddled senator, your Stepford Wife governor and your bought and paid for state legislative leadership and thank them for the gift of “Superferry Fridays”.
With any luck these dolts will figure out a way to fritter away another $60-85 million and make all weekends the three-day variety.
Everyone that is but the kids themselves. Oh sure the media has managed to scrounge-up a handful of Goody-Two-Shoes, “I’m gonna teeeeeell” types and stick cameras in their faces so they can parrot what their parents told them to say about “sacrificing our future” because a petty vindictive governor and a pompous and lazy legislature fiddle while education burns.
But move outside the ear-shot of the grown-up and ask any red-blooded kid- especially those who are bored to tears at this year’s “long division again” curriculum- and you’ll hear nothing but “Hip Hip Hooray for “Furlough Fridays”
They’re ecstatic about the fact that the so-called adults are so busy fighting over political considerations that they can’t come up with a lousy $60-85 million to keep the schools open despite the half-a-billion federal stimulus dollars that were supposed to be spent specially for education but instead went for everything but.
$60-85 million?... hmmmm- why does that number sound familiar?
Oh yeah- that’s the same range of the estimate of how much the self-same governor and legislature blew trying to pull a super-fast-one and ram the super-fast-tracked super-fast-Superferry down our gagging throats.
When you include not just the base $40 million bucks for the unneeded, now-useless harbor improvements but stuff like keeping the half-assed barge loading system running, the millions in legal fees and state-worker time and expenses as well as dozens of other costly incidentals, it comes out to... let’s see, divide by the arrogance, carry the corruption, multiply by the “legal bribe” corporate campaign contributions.... oh, around $60-85m.
So kiddies, the least you could do with all your free time is get busy writing to your military-madness-mindset-muddled senator, your Stepford Wife governor and your bought and paid for state legislative leadership and thank them for the gift of “Superferry Fridays”.
With any luck these dolts will figure out a way to fritter away another $60-85 million and make all weekends the three-day variety.
Thursday, October 29, 2009
(PNN) HIGH COURT DENIES OIP APPEAL OF “ES-177” CASE
HIGH COURT DENIES OIP APPEAL OF “ES-177” CASE:
(PNN) -- In a stunning rebuke to the authority and power of the Office Of Information Practices (OIP) the Hawai`i State Supreme Court, without comment, upheld the intermediate court of appeals denial of OIP’s ordered release of the infamous minutes of the “ES-177” Kauai County Council meeting held in January of 2006.
The Monday decision upholds the original ruling of fifth circuit court Judge Kathleen Watanabe that the attorney-client protected material in the minutes is “irretrievably intertwined” with the material that the OIP ordered released to the public.
More importantly it also sets a precedent upholding the notion that individual agencies may now sue in circuit court to overturn OIP rulings despite apparent legislative intent and construction that allowed OIP to have “final say” on matters involving the state sunshine (open meetings- HRS 92-section 1) and Uniform Information Practices Act or UIPA (open records- HRS 92F) laws
The executive session was called to purportedly allow the council to discuss a council investigation of the Kaua`i Police Department (KPD) but the minutes were believed to contain a wide ranging discussion of specific charges against KPD personnel by former police officer and then council member Mel Rapozo according to OIP letters to the county attorney that were released to the public at the time.
For a detailed analysis of and links to the OIP brief see our July 1 post or click here to listen to the entire audio recording of the audio arguments or here to read the background at the state judiciary web site.
The following is the full text of Monday’s ruling:
ORDER AFFIRMING JUDGMENT ON APPEAL
(By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Hare, in place of Recktenwald, J., recused)
Petitioners/Defendants-Appellants Office of Information Practices filed a timely application for a writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA) dated February 19, 2009, entered pursuant to the publishedopinion dated January 30, 2009 in County of Kauai v. Office of Information Practices, 120 Hawaii 34, 200 P.3d 403 (App. 2009) which affirmed the February 11, 2008 judgment of the circuit court of the fifth Circuit. This court accepted certiorari on June 23, 2009, and subsequently ordered oral argument.
Upon careful review of the record and the briefs submitted by the parties, having given due consideration to the arguments advanced and the issues raised, and also having heard and carefully considered the parties' respective arguments at oral argument held on August 10, 2009,
IT IS HEREBY ORDERED that the ICA's February 19, 2009 judgment on appeal is affirmed.
DATED: Honolulu, Hawai`i, October 26, 2009.
(Sent to attorneys) Paul T. Tsukiyama, Cathy L. Takase, and Jennifer Z. Brooks, (of Office of Information Practices) , and Gail Y. Cosgrove and Kunio Kuwabe (of Hisaka Yoshida & Cosgrove) for petitioners/defendants/appellants
Alfred B. Castillo (of Office of the County Attorney, County of Kauai) David J. Minkin and Becky T. Chestnut (of McCorriston Miller Mukai MacKinnon LLP) for respondents/plaintiffs appellees.
(PNN) -- In a stunning rebuke to the authority and power of the Office Of Information Practices (OIP) the Hawai`i State Supreme Court, without comment, upheld the intermediate court of appeals denial of OIP’s ordered release of the infamous minutes of the “ES-177” Kauai County Council meeting held in January of 2006.
The Monday decision upholds the original ruling of fifth circuit court Judge Kathleen Watanabe that the attorney-client protected material in the minutes is “irretrievably intertwined” with the material that the OIP ordered released to the public.
More importantly it also sets a precedent upholding the notion that individual agencies may now sue in circuit court to overturn OIP rulings despite apparent legislative intent and construction that allowed OIP to have “final say” on matters involving the state sunshine (open meetings- HRS 92-section 1) and Uniform Information Practices Act or UIPA (open records- HRS 92F) laws
The executive session was called to purportedly allow the council to discuss a council investigation of the Kaua`i Police Department (KPD) but the minutes were believed to contain a wide ranging discussion of specific charges against KPD personnel by former police officer and then council member Mel Rapozo according to OIP letters to the county attorney that were released to the public at the time.
For a detailed analysis of and links to the OIP brief see our July 1 post or click here to listen to the entire audio recording of the audio arguments or here to read the background at the state judiciary web site.
The following is the full text of Monday’s ruling:
ORDER AFFIRMING JUDGMENT ON APPEAL
(By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Hare, in place of Recktenwald, J., recused)
Petitioners/Defendants-Appellants Office of Information Practices filed a timely application for a writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA) dated February 19, 2009, entered pursuant to the publishedopinion dated January 30, 2009 in County of Kauai v. Office of Information Practices, 120 Hawaii 34, 200 P.3d 403 (App. 2009) which affirmed the February 11, 2008 judgment of the circuit court of the fifth Circuit. This court accepted certiorari on June 23, 2009, and subsequently ordered oral argument.
Upon careful review of the record and the briefs submitted by the parties, having given due consideration to the arguments advanced and the issues raised, and also having heard and carefully considered the parties' respective arguments at oral argument held on August 10, 2009,
IT IS HEREBY ORDERED that the ICA's February 19, 2009 judgment on appeal is affirmed.
DATED: Honolulu, Hawai`i, October 26, 2009.
(Sent to attorneys) Paul T. Tsukiyama, Cathy L. Takase, and Jennifer Z. Brooks, (of Office of Information Practices) , and Gail Y. Cosgrove and Kunio Kuwabe (of Hisaka Yoshida & Cosgrove) for petitioners/defendants/appellants
Alfred B. Castillo (of Office of the County Attorney, County of Kauai) David J. Minkin and Becky T. Chestnut (of McCorriston Miller Mukai MacKinnon LLP) for respondents/plaintiffs appellees.
Wednesday, October 28, 2009
MAYBE IF OUR DOGS NEEDED IT
MAYBE IF OUR DOGS NEEDED IT: It’s nice to see that the local newspaper is putting their time-money where their print-mouth is in pushing the administration to promptly comment on the current Green Harvest helicopter operations after the coconut wireless brought the annoying and absurd disturbance to their attention yesterday
After an editorial this Sunday dealing with the brain-dead few who still oppose marijuana reform, especially for the sick, who would expect anything less?
The irony of the coincidental start of both the expensive expedition and yesterday’s state senate hearings on reforming the medical cannabis provisions- which uniquely administer the law through the Department of Public Safety rather than the Department of Health and don’t afford provision or distribution of people’s medicine- isn’t lost on anyone.
After all much of the western US, where medical marijuana laws have been on the books for years, are rapidly moving to regulate and even tax their ubiquitous distribution centers.
It’s about time for the legislature to act this year to remove all the Catch-22’s from our state’s laws by making it legal to obtain a legal medication. putting regulation of a health- related matter in a health-related department and removing control of a legal-to–possess substance from the control of those who deal with illegalities.
A between-the-lines reader of today’s newspaper report might think that it’s up to the Kaua`i and Maui Police Departments as to whether they will participate in the eradication program- a notion that belies the experience of those on the Big Island.
On Hawai`i Island after years of debate their county council has refused to take the federal money that enables Green Harvest and has in fact commanded their PD to give enforcement of all pot-prohibition laws the “lowest priority”.
Yet the Kaua`i County Council continues to accept the funding year after year without debate much less testimony from the public.
As we did last time, we’ll let the our readers know the next time it comes up on the council’s agenda. Maybe this time people will speak up and bring Kaua`i into the 21st century.
After an editorial this Sunday dealing with the brain-dead few who still oppose marijuana reform, especially for the sick, who would expect anything less?
The irony of the coincidental start of both the expensive expedition and yesterday’s state senate hearings on reforming the medical cannabis provisions- which uniquely administer the law through the Department of Public Safety rather than the Department of Health and don’t afford provision or distribution of people’s medicine- isn’t lost on anyone.
After all much of the western US, where medical marijuana laws have been on the books for years, are rapidly moving to regulate and even tax their ubiquitous distribution centers.
It’s about time for the legislature to act this year to remove all the Catch-22’s from our state’s laws by making it legal to obtain a legal medication. putting regulation of a health- related matter in a health-related department and removing control of a legal-to–possess substance from the control of those who deal with illegalities.
A between-the-lines reader of today’s newspaper report might think that it’s up to the Kaua`i and Maui Police Departments as to whether they will participate in the eradication program- a notion that belies the experience of those on the Big Island.
On Hawai`i Island after years of debate their county council has refused to take the federal money that enables Green Harvest and has in fact commanded their PD to give enforcement of all pot-prohibition laws the “lowest priority”.
Yet the Kaua`i County Council continues to accept the funding year after year without debate much less testimony from the public.
As we did last time, we’ll let the our readers know the next time it comes up on the council’s agenda. Maybe this time people will speak up and bring Kaua`i into the 21st century.
Monday, October 26, 2009
THE ROAD MORE TRAVELED
THE ROAD MORE TRAVELED: The pilikila over the Larson’s Beach access has finally gotten some attention after a fine article in the Hawai`i Independent by Joan Conrow detailed how once again the public is about to lose a path that has been historically ours forever because of some slight of hand by a big landowner.
She writes:
An outcry over plans to fence off a trail to Larsen’s Beach is causing Kauai residents to revisit two longstanding issues: Should concerns about liability restrict access; and is the county properly recording public easements?
The controversy arose over cattle rancher Bruce Laymon’s plans to install a fence on northeast Kauai coastal land that he leases from the Waioli Corp., a kama`aina landowner whose holdings include the historic Waioli Mission House and Grove Farm Homestead Museum.
But the rest of the article deals for the most part, not with Laymon but with Waioli Corp and the history of the access.
Although going forward it’s Waioli’s actions that will determine the future of the access it’s Laymon’s past actions- with the ok of Waioli- that has brought the issue to a head.
Local rancher Bruce Laymon would have people believe, as his attorney told the Board of Land and Natural Resources (BLNR), that he “is a rancher and landscaper... an avid fisherman who loves Kauai and the community... and is not a sophisticated developer as the Sierra Club would like to have the Board believe”
That, in part was what influenced the BLNR to approve staff recommendations to reduce his fine for illegally clearing the bluff above Larsen beach- a secluded clothing optional North Shore beach where travel-book-reading sunbathers from around the world come to vacation- from $15,000 to $2,000 according to the minutes of it’s July meeting.
Laymon claims that it was an innocent and understandable mistake when he relied on an approved “conservation plan” for his ranch, to do work along the ancient historic Alaloa trail above Ka`aka`aniu (rolling coconut) beach and reef- also knows as Larsen’s Beach after a Kilauea sugar plantation luna- which is famous for its limu kohu according to the BLNR staff report which PNN has obtained but is apparently not posted on line.
The work not only went well beyond what was permitted by the East Kaua`i Soil and Water Conservation District (EKWCD) Board when they approved his Brush Management Plan that had been developed with the help of the Natural Resources Conservation Service (NRCS) but encroached on the state conservation district and county special management area where permits are required to do any work.
Rather than just carefully hand- remove all the non-native plants and leave the foliage in place to hold together the hillside- as the “approved plan” for the other areas required- Laymon apparently came in and cleared the entire area of “brush” denuding the hillside including cutting large trees down to stumps in order to harass the homeless in the area.
According to the report Laymon apparently tried to dispose of the campers’ property calling it “household trash”, engaging in a confrontation with some when they tried to retrieve their belongings.
Though Laymon claimed ignorance and said he was “doing something good for the community”- a position with which members of the BLNR agreed- this isn’t his first run-in with the law for land-clearing operations without necessary permitting- nor is it the first time he’s had confrontational run-ins with nude sunbathers or so-called “illegal campers” on property he leased.
In 2003 Laymon did apparently illegal grubbing and grading on a three acre parcel above Kealia for which he didn’t have an NRCS approved plan. But the EKWCD Board said he made an “honest mistake” in including the three acre parcel in a plan for a different 2011 acre parcel in Kealia according to a lengthy article on the subject in the local newspaper.
This occurred during the infamous Kaua`i County Council “Developers Gone Wild” grubbing and grading hearings, spurred by the 2001 Pila`a mudslide disaster for which developer Jimmy Pflueger received the then-biggest-ever fine for a federal Clean Water Act violation.
Despite the fact that Council Chair Kaipo Asing called actions “another Pila`a waiting to happen” Laymon’s buddies on the EKWCD Board- a group comprised of large landowners in the area who obtain votes based on the acreage they own- cleared him of all charges saying Laymon was just an unsophisticated rancher and landscaper who actually made the area look “beautiful” despite the fact that if a heavy rainfall had occurred while the land was denuded it could have despoiled the reef at Kealia.
Laymon was also involved in the similarly infamous harassment of nude sunbathers in 1990 when he apparently organized an armed vigilante squad that roamed Kaupea Beach- aka Secret Beach- on ATVs at the behest and in the employ of landowners above the beach until the state told him to stop because the beach was state property.
Among those owners were Michelle and Justin Hughes who leased Laymon the Kealia Property that they had obtained from developer Tom McCloskey who bought the entire Kealia ahupua`a after area sugar cane went defunct.
But it seems the BLNR staff either never heard about these incidents or chose not to tell the board about them and rather convinced the board that Laymon was just an unsophisticated rancher and landscaper who made an understandable mistake in clearing the area above Larsen.
The minutes of the BLNR meeting are revealing for what they don’t contain as much as what they do. Although Kaua`i member of the Board Ron Agor told many people that he would push for the full fine the minutes reveal that he actually led the other board members to accept the staff report and reduce the fine.
Laymon is currently applying for an “after the fact” permit from the BLNR for not just the denuding of the hillside but to do the real work he intended to do before complaints stopped him in October of 2008- changing not just the historic Alaloa trail but the traditional easier access to the beach and substituting one more treacherous.
As to the future, the Sierra Club has been on the case and, in a letter, refutes testimony by Laymon’s attorney Lorna Nishimitsu who at one point actually tried to claim to the BLNR staff that the Alaloa trail was actually Ko`olau Road.
The Sierra Club letter to the board details the issues and misrepresentation in the after the fact permit application and is apparently not available on line so is reproduced in full here.
As you know, Paradise Ranch has submitted a CDUA for land leased from Waioli Corporation. This application calls for brush management for ranching and the construction of two sections of fence – one portion designated as pre-existing (near the northern boundary), and additional fencing that is not pre-existing, approximately twice the length of the first portion. We agree that cattle should be kept off the beach. However, the siting of this additional fencing raises a number of concerns.
Safe Beach Access
We appreciate that Waioli Corporation provided a public access easement to Larsen’s Beach years ago, but that route is steep and difficult for both children and elderly to use. The CDUA survey map Exhibit E, indicates that the proposed fence will block the favored public access along the gradual slope labeled “Existing Road” and “Existing Trail”. Emergency responders who routinely rescue visitors from the two rip currents at Larsen’s Beach also favor this route. Therefore, we ask you to keep the existing trail behind the beach unblocked.
Historic Alaloa
Exhibit D in the CDUA notes the State of Hawaii’s claims of ownership of the historic coastal trail – the Hawaiian Alaloa. The Alaloa is not Ko`olau Road as put forth by attorney Lorna Nishimitsu in a letter dated August 5, 2009 (Exhibit C). The evidence of the trail’s location is provided in the document called Ref: K98:1 Moloa`a (from September 1, 1998) which was not included in the CDUA exhibits, but is cited at the top of the Na Ala Hele Memo dated March 1, 2000 (Exhibit D).
Therefore, attached to this letter is documentation from the 1998 Abstract Ref: K98:1 Moloa`a which includes an historic map labeled: Na Ala Hele Exhibit B – “Portion Registered Map 1395 dated 1878 depicting portion of Old Alaloa”.
It is clear from this map that the Alaloa is a coastal trail and not the Kauai Belt Road, Kuhio Highway or Ko`olau Road. Furthermore, there is ample oral testimony collected by Na Ala Hele Kauai Advisory Council members in the late 1990’s that the path traversed close to the coastline and over the Pali. Kupuna in the area can corroborate this.
The “pre-existing” fence does not interfere with the Alaloa. However, the proposed alignment for the new, additional fencing is makai of the existing trail ( see CDUA Survey Map-Exhibit E). The fence would block the “Existing Trail” at two points, cutting off existing public access to Larsen’s Beach via the Alaloa. We encourage Waioli Corporation to seek confirmation from the Na Ala Hele staff abstractor as soon as possible on this matter and to encourage DLNR to conduct a metes and bounds survey of the Alaloa in order to properly site the fence, and submit a corrected survey map for the Conservation District Use Application.
Endangered Species
The project area is adjacent to the sensitive coastal habitat of monk seals, green sea turtles, albatross and other endangered seabirds. Has the lessee considered using fencing that is dog proof so that endangered ground nesting birds would be protected? We hope that the U.S. Fish and Wildlife Service will be consulted and afforded the opportunity to comment.
Summary
We ask that you relocate the proposed fencing so that it is mauka of the trail/road. Doing so would:
a) Preserve the traditional and customary Alaloa;
b) Provide the only safely graded beach access from Larsen’s Beach parking lot;
c) Assist lifeguards and emergency responders in their rescue efforts, and
d) Allow the public access when Monk Seal volunteers routinely ribbon off sections of this beach.
If liability is a concern, Waioli Corporation could dedicate the existing trail/road/Alaloa to the State under the Na Ala Hele Hawaii Trail & Access System, thereby removing the threat of liability. Neighboring Moloa`a Bay Ranch also has a portion of the Alaloa and that easement was adopted into the State Na Ala Hele trail system several years ago. Also, please note that your neighbor Falko Partners, north of Larsen’s Beach, is currently in discussion with the Kauai Public Land Trust about transferring rights to the coastal portion of the Conservation District to the public.
Thank you for your consideration. Perhaps board members would benefit from a site visit to better understand the significance of this coastal gem and its importance to the community.
Sincerely,
Judy Dalton
on behalf of the Executive Committee
(Sierra Club)Kaua`i Group, Hawai`i Chapter
--------------------------
We’ve managed to screw-up the handiwork of our shoulder surgeon and are back to hurtful hunting and painful pecking. We may be posting a little lighter than usual in the coming weeks. Pardon the interruption- try to do better next time.
She writes:
An outcry over plans to fence off a trail to Larsen’s Beach is causing Kauai residents to revisit two longstanding issues: Should concerns about liability restrict access; and is the county properly recording public easements?
The controversy arose over cattle rancher Bruce Laymon’s plans to install a fence on northeast Kauai coastal land that he leases from the Waioli Corp., a kama`aina landowner whose holdings include the historic Waioli Mission House and Grove Farm Homestead Museum.
But the rest of the article deals for the most part, not with Laymon but with Waioli Corp and the history of the access.
Although going forward it’s Waioli’s actions that will determine the future of the access it’s Laymon’s past actions- with the ok of Waioli- that has brought the issue to a head.
Local rancher Bruce Laymon would have people believe, as his attorney told the Board of Land and Natural Resources (BLNR), that he “is a rancher and landscaper... an avid fisherman who loves Kauai and the community... and is not a sophisticated developer as the Sierra Club would like to have the Board believe”
That, in part was what influenced the BLNR to approve staff recommendations to reduce his fine for illegally clearing the bluff above Larsen beach- a secluded clothing optional North Shore beach where travel-book-reading sunbathers from around the world come to vacation- from $15,000 to $2,000 according to the minutes of it’s July meeting.
Laymon claims that it was an innocent and understandable mistake when he relied on an approved “conservation plan” for his ranch, to do work along the ancient historic Alaloa trail above Ka`aka`aniu (rolling coconut) beach and reef- also knows as Larsen’s Beach after a Kilauea sugar plantation luna- which is famous for its limu kohu according to the BLNR staff report which PNN has obtained but is apparently not posted on line.
The work not only went well beyond what was permitted by the East Kaua`i Soil and Water Conservation District (EKWCD) Board when they approved his Brush Management Plan that had been developed with the help of the Natural Resources Conservation Service (NRCS) but encroached on the state conservation district and county special management area where permits are required to do any work.
Rather than just carefully hand- remove all the non-native plants and leave the foliage in place to hold together the hillside- as the “approved plan” for the other areas required- Laymon apparently came in and cleared the entire area of “brush” denuding the hillside including cutting large trees down to stumps in order to harass the homeless in the area.
According to the report Laymon apparently tried to dispose of the campers’ property calling it “household trash”, engaging in a confrontation with some when they tried to retrieve their belongings.
Though Laymon claimed ignorance and said he was “doing something good for the community”- a position with which members of the BLNR agreed- this isn’t his first run-in with the law for land-clearing operations without necessary permitting- nor is it the first time he’s had confrontational run-ins with nude sunbathers or so-called “illegal campers” on property he leased.
In 2003 Laymon did apparently illegal grubbing and grading on a three acre parcel above Kealia for which he didn’t have an NRCS approved plan. But the EKWCD Board said he made an “honest mistake” in including the three acre parcel in a plan for a different 2011 acre parcel in Kealia according to a lengthy article on the subject in the local newspaper.
This occurred during the infamous Kaua`i County Council “Developers Gone Wild” grubbing and grading hearings, spurred by the 2001 Pila`a mudslide disaster for which developer Jimmy Pflueger received the then-biggest-ever fine for a federal Clean Water Act violation.
Despite the fact that Council Chair Kaipo Asing called actions “another Pila`a waiting to happen” Laymon’s buddies on the EKWCD Board- a group comprised of large landowners in the area who obtain votes based on the acreage they own- cleared him of all charges saying Laymon was just an unsophisticated rancher and landscaper who actually made the area look “beautiful” despite the fact that if a heavy rainfall had occurred while the land was denuded it could have despoiled the reef at Kealia.
Laymon was also involved in the similarly infamous harassment of nude sunbathers in 1990 when he apparently organized an armed vigilante squad that roamed Kaupea Beach- aka Secret Beach- on ATVs at the behest and in the employ of landowners above the beach until the state told him to stop because the beach was state property.
Among those owners were Michelle and Justin Hughes who leased Laymon the Kealia Property that they had obtained from developer Tom McCloskey who bought the entire Kealia ahupua`a after area sugar cane went defunct.
But it seems the BLNR staff either never heard about these incidents or chose not to tell the board about them and rather convinced the board that Laymon was just an unsophisticated rancher and landscaper who made an understandable mistake in clearing the area above Larsen.
The minutes of the BLNR meeting are revealing for what they don’t contain as much as what they do. Although Kaua`i member of the Board Ron Agor told many people that he would push for the full fine the minutes reveal that he actually led the other board members to accept the staff report and reduce the fine.
Laymon is currently applying for an “after the fact” permit from the BLNR for not just the denuding of the hillside but to do the real work he intended to do before complaints stopped him in October of 2008- changing not just the historic Alaloa trail but the traditional easier access to the beach and substituting one more treacherous.
As to the future, the Sierra Club has been on the case and, in a letter, refutes testimony by Laymon’s attorney Lorna Nishimitsu who at one point actually tried to claim to the BLNR staff that the Alaloa trail was actually Ko`olau Road.
The Sierra Club letter to the board details the issues and misrepresentation in the after the fact permit application and is apparently not available on line so is reproduced in full here.
As you know, Paradise Ranch has submitted a CDUA for land leased from Waioli Corporation. This application calls for brush management for ranching and the construction of two sections of fence – one portion designated as pre-existing (near the northern boundary), and additional fencing that is not pre-existing, approximately twice the length of the first portion. We agree that cattle should be kept off the beach. However, the siting of this additional fencing raises a number of concerns.
Safe Beach Access
We appreciate that Waioli Corporation provided a public access easement to Larsen’s Beach years ago, but that route is steep and difficult for both children and elderly to use. The CDUA survey map Exhibit E, indicates that the proposed fence will block the favored public access along the gradual slope labeled “Existing Road” and “Existing Trail”. Emergency responders who routinely rescue visitors from the two rip currents at Larsen’s Beach also favor this route. Therefore, we ask you to keep the existing trail behind the beach unblocked.
Historic Alaloa
Exhibit D in the CDUA notes the State of Hawaii’s claims of ownership of the historic coastal trail – the Hawaiian Alaloa. The Alaloa is not Ko`olau Road as put forth by attorney Lorna Nishimitsu in a letter dated August 5, 2009 (Exhibit C). The evidence of the trail’s location is provided in the document called Ref: K98:1 Moloa`a (from September 1, 1998) which was not included in the CDUA exhibits, but is cited at the top of the Na Ala Hele Memo dated March 1, 2000 (Exhibit D).
Therefore, attached to this letter is documentation from the 1998 Abstract Ref: K98:1 Moloa`a which includes an historic map labeled: Na Ala Hele Exhibit B – “Portion Registered Map 1395 dated 1878 depicting portion of Old Alaloa”.
It is clear from this map that the Alaloa is a coastal trail and not the Kauai Belt Road, Kuhio Highway or Ko`olau Road. Furthermore, there is ample oral testimony collected by Na Ala Hele Kauai Advisory Council members in the late 1990’s that the path traversed close to the coastline and over the Pali. Kupuna in the area can corroborate this.
The “pre-existing” fence does not interfere with the Alaloa. However, the proposed alignment for the new, additional fencing is makai of the existing trail ( see CDUA Survey Map-Exhibit E). The fence would block the “Existing Trail” at two points, cutting off existing public access to Larsen’s Beach via the Alaloa. We encourage Waioli Corporation to seek confirmation from the Na Ala Hele staff abstractor as soon as possible on this matter and to encourage DLNR to conduct a metes and bounds survey of the Alaloa in order to properly site the fence, and submit a corrected survey map for the Conservation District Use Application.
Endangered Species
The project area is adjacent to the sensitive coastal habitat of monk seals, green sea turtles, albatross and other endangered seabirds. Has the lessee considered using fencing that is dog proof so that endangered ground nesting birds would be protected? We hope that the U.S. Fish and Wildlife Service will be consulted and afforded the opportunity to comment.
Summary
We ask that you relocate the proposed fencing so that it is mauka of the trail/road. Doing so would:
a) Preserve the traditional and customary Alaloa;
b) Provide the only safely graded beach access from Larsen’s Beach parking lot;
c) Assist lifeguards and emergency responders in their rescue efforts, and
d) Allow the public access when Monk Seal volunteers routinely ribbon off sections of this beach.
If liability is a concern, Waioli Corporation could dedicate the existing trail/road/Alaloa to the State under the Na Ala Hele Hawaii Trail & Access System, thereby removing the threat of liability. Neighboring Moloa`a Bay Ranch also has a portion of the Alaloa and that easement was adopted into the State Na Ala Hele trail system several years ago. Also, please note that your neighbor Falko Partners, north of Larsen’s Beach, is currently in discussion with the Kauai Public Land Trust about transferring rights to the coastal portion of the Conservation District to the public.
Thank you for your consideration. Perhaps board members would benefit from a site visit to better understand the significance of this coastal gem and its importance to the community.
Sincerely,
Judy Dalton
on behalf of the Executive Committee
(Sierra Club)Kaua`i Group, Hawai`i Chapter
--------------------------
We’ve managed to screw-up the handiwork of our shoulder surgeon and are back to hurtful hunting and painful pecking. We may be posting a little lighter than usual in the coming weeks. Pardon the interruption- try to do better next time.
Wednesday, October 21, 2009
‘TWERN’T SHE
‘TWERN’T SHE: Carol Ann Davis wants to make one thing perfectly clear- she was not the one who provided Walter Lewis with a nine page opinion “letter” from Deputy County Attorney Mauna Kea Trask to the charter review commission (CRC) regarding the county manager proposal.
“I’d swear on a stack of bibles it wasn’t me” she told us in a telephone interview yesterday, despite the veiled implication in Lewis’ two part column in the local newspaper last weekend that it came from her
Davis, as a member of the CRC did receive the letter at a meeting of the CRC but said she cannot discuss specifics. She did say that it read like "a lesson in Poly Sci 101" not a legal opinion, something she said she told the commission in open session.
She said she tried to have the letter released but was thwarted by the rest of the commission.
For Davis or anyone to release the letter could be a misdemeanor in violation of Charter Section 20.02B.
Our column last Friday also alleged that the true “writer” of the proposed amendment originally submitted to the CRC by then- CRC member, Davis’ late husband, Walter Briant. was indeed Lewis not Briant and Lewis claimed.
By way of explanation regarding the question of who “wrote” the draft, although according to Davis, Briant was the one who actually went through the county charter by hand and changed all the references to “mayor” to “county manager” (CM) and Davis was the one who typed it up in the proper format, we stand by our statement that according to Briant and another Kaua`i `Ohana member familiar with the process it was Lewis that conceived of and in that sense “wrote”- meaning “authored” rather than scribed”- the draft by instructing Briant precisely what to pen.
Davis admits that the draft was ridiculously inadequate in that all it did was eliminate all references to the post of mayor and substitute the words “county manager”, leaving other details unaddressed.
As far as Lewis is concerned he has refused to speak to the issues on the record writing to us that:
I value my privacy... My personal role is not relevant.
A number of your statements were inaccurate. I expect that you may already know some of them. If you wish, though, I will provide a few corrections and comments for your private information if you will agree to refrain from any publication or distribution of them without my permission.
Though normally we speak to many people “off the record” in this case due to past dealings with Lewis we have chosen to tell him that if he has any corrections of fact and wishes to have them noted in this space we would be glad to check them out and if verified we will publish a correction.
We respect Lewis’ right to publish – and in fact encourage in publishing- factual information contained in the letter while refusing to state who gave it to him. The question of whatever Lewis is a journalist aside, journalists are protected by the new Hawai`i Shield Law which protects them from revealing anonymous sources
Lewis has apparently refused to tell anyone how he obtained the letter including his editor at the local newspaper which published his column.
Upon our inquiry Editor Michael Levine said he did check with the county attorney’s office and
While I don’t love the fact that our columnist is quoting a letter that we haven’t gotten our hands on yet, I do have every reason to believe that it exists and that it says what he says it does. I’ve just gotten off the phone with someone in the Office of the County Attorney who tells me there are no major factual inaccuracies in the column to speak of and that their reading of it was that it was comprised mostly of opinion and not of fact.
And on a final somewhat related note, a comment on Friday’s post took issue with our characterization of the `"Ohana" property tax charter amendment passed “by a huge margin”, saying that blank votes are counted as no votes. While that is true for state constitutional amendments due to the “majority of (total) ballots cast” language in the constitution, our charter provides for yes vs. no vote be counted for a majority in local charter amendments.
In the future if we deem inaccuracies of consequence to be the intentional result of sniping and trolling we will delete the post rather than just ignore the troll as we do now. We don’t care if you want to show everyone what an jerk-wad ass-wipe you are or attack our integrity or hygiene. But we will not allow directed misinformation to appear in this space.
For the record we correct all errors of fact when verified as such. If in the future you see a comment making a claim of error and don’t see a correction it means we stand by our original reporting.
“I’d swear on a stack of bibles it wasn’t me” she told us in a telephone interview yesterday, despite the veiled implication in Lewis’ two part column in the local newspaper last weekend that it came from her
Davis, as a member of the CRC did receive the letter at a meeting of the CRC but said she cannot discuss specifics. She did say that it read like "a lesson in Poly Sci 101" not a legal opinion, something she said she told the commission in open session.
She said she tried to have the letter released but was thwarted by the rest of the commission.
For Davis or anyone to release the letter could be a misdemeanor in violation of Charter Section 20.02B.
Our column last Friday also alleged that the true “writer” of the proposed amendment originally submitted to the CRC by then- CRC member, Davis’ late husband, Walter Briant. was indeed Lewis not Briant and Lewis claimed.
By way of explanation regarding the question of who “wrote” the draft, although according to Davis, Briant was the one who actually went through the county charter by hand and changed all the references to “mayor” to “county manager” (CM) and Davis was the one who typed it up in the proper format, we stand by our statement that according to Briant and another Kaua`i `Ohana member familiar with the process it was Lewis that conceived of and in that sense “wrote”- meaning “authored” rather than scribed”- the draft by instructing Briant precisely what to pen.
Davis admits that the draft was ridiculously inadequate in that all it did was eliminate all references to the post of mayor and substitute the words “county manager”, leaving other details unaddressed.
As far as Lewis is concerned he has refused to speak to the issues on the record writing to us that:
I value my privacy... My personal role is not relevant.
A number of your statements were inaccurate. I expect that you may already know some of them. If you wish, though, I will provide a few corrections and comments for your private information if you will agree to refrain from any publication or distribution of them without my permission.
Though normally we speak to many people “off the record” in this case due to past dealings with Lewis we have chosen to tell him that if he has any corrections of fact and wishes to have them noted in this space we would be glad to check them out and if verified we will publish a correction.
We respect Lewis’ right to publish – and in fact encourage in publishing- factual information contained in the letter while refusing to state who gave it to him. The question of whatever Lewis is a journalist aside, journalists are protected by the new Hawai`i Shield Law which protects them from revealing anonymous sources
Lewis has apparently refused to tell anyone how he obtained the letter including his editor at the local newspaper which published his column.
Upon our inquiry Editor Michael Levine said he did check with the county attorney’s office and
While I don’t love the fact that our columnist is quoting a letter that we haven’t gotten our hands on yet, I do have every reason to believe that it exists and that it says what he says it does. I’ve just gotten off the phone with someone in the Office of the County Attorney who tells me there are no major factual inaccuracies in the column to speak of and that their reading of it was that it was comprised mostly of opinion and not of fact.
And on a final somewhat related note, a comment on Friday’s post took issue with our characterization of the `"Ohana" property tax charter amendment passed “by a huge margin”, saying that blank votes are counted as no votes. While that is true for state constitutional amendments due to the “majority of (total) ballots cast” language in the constitution, our charter provides for yes vs. no vote be counted for a majority in local charter amendments.
In the future if we deem inaccuracies of consequence to be the intentional result of sniping and trolling we will delete the post rather than just ignore the troll as we do now. We don’t care if you want to show everyone what an jerk-wad ass-wipe you are or attack our integrity or hygiene. But we will not allow directed misinformation to appear in this space.
For the record we correct all errors of fact when verified as such. If in the future you see a comment making a claim of error and don’t see a correction it means we stand by our original reporting.
Tuesday, October 20, 2009
CARVING OUT A THIRD WAY
CARVING OUT A THIRD WAY: Something subversive clicked this morning when we read the headline in the Honolulu Advertiser saying “Burial council won't sign rail pact”.
Seems that:
(t)he Oahu Island Burial Council has decided not to join other parties ... in signing an agreement on mitigating the rail project's impacts on historical, cultural and archaeological resources...
The burial council decision is largely symbolic and isn't expected to stop or delay the 20-mile elevated commuter train project.
That last sentence seemed odd considering how much power the Kaua`i Island Burial Council (KIBC) has apparently had in recent doings up at Naue where developer Joe Bresca continues to build a massive house on top of burials despite warning from Judge Kathleen Watanabe, while the planning commission has voted to consider revoking his building permit based on the fact that he doesn’t have the proper “sign off” from the KIBC.
What occurs to us is that the oft repeated conundrum for the KIBC- that they are limited to the two bad choices of either leaving the burials in place or removing them- may not actually be the case.
Because, as the months-long delay in holding a KIBC meeting due to a lack of appointments sufficient to maintain a quorum, they have, in a de facto manner, carved out a third choice- to simply not act on the request.
We’re not sure what the planning process on O`ahu calls for but here one of the numerous “sign-offs”- a so-called “punch list” of agency approvals that the planning commission and department rules mandate- is one from the KIBC.
Though the delay was unintentional, apparently, since the “automatic approval” law is inoperable here, if the KIBC simply “receives the matter for the record” – as the county council does when it doesn’t want to discuss an issue anymore- the planning department would be unable to issue a building permit.
After all it’s only been the widely reviled and truth-challenged State Archeologist Nancy McMahon’s -so that there are only two useless wrenches in the KIBC toolbox.
Who’s to say that if they take a page from the county council’s playbook of obstruction they can’t carve out a third?
Seems that:
(t)he Oahu Island Burial Council has decided not to join other parties ... in signing an agreement on mitigating the rail project's impacts on historical, cultural and archaeological resources...
The burial council decision is largely symbolic and isn't expected to stop or delay the 20-mile elevated commuter train project.
That last sentence seemed odd considering how much power the Kaua`i Island Burial Council (KIBC) has apparently had in recent doings up at Naue where developer Joe Bresca continues to build a massive house on top of burials despite warning from Judge Kathleen Watanabe, while the planning commission has voted to consider revoking his building permit based on the fact that he doesn’t have the proper “sign off” from the KIBC.
What occurs to us is that the oft repeated conundrum for the KIBC- that they are limited to the two bad choices of either leaving the burials in place or removing them- may not actually be the case.
Because, as the months-long delay in holding a KIBC meeting due to a lack of appointments sufficient to maintain a quorum, they have, in a de facto manner, carved out a third choice- to simply not act on the request.
We’re not sure what the planning process on O`ahu calls for but here one of the numerous “sign-offs”- a so-called “punch list” of agency approvals that the planning commission and department rules mandate- is one from the KIBC.
Though the delay was unintentional, apparently, since the “automatic approval” law is inoperable here, if the KIBC simply “receives the matter for the record” – as the county council does when it doesn’t want to discuss an issue anymore- the planning department would be unable to issue a building permit.
After all it’s only been the widely reviled and truth-challenged State Archeologist Nancy McMahon’s -so that there are only two useless wrenches in the KIBC toolbox.
Who’s to say that if they take a page from the county council’s playbook of obstruction they can’t carve out a third?
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