Friday, May 29, 2009


DIGGIN’ UP THE DIRT: Public Broadcasting likes to tell us they “do what the commercial networks won’t”. And in Hawai`i they do, on the surface, with regularly scheduled local “public affairs” programming three nights a week where the local broadcast networks average about, well zero.

It’s questionable how topically relevant two of those programs are, like the local sports talk of “Leahey and Leahey” and Leslie Wilcox’s amazing ability to turn interviews with the most politically fascinating individuals in the state into fluff pieces in her “Long Story Short”.

But Dan Boylan’s “Island Insights” usually cooks up at least a promise of a wide ranging, panel discussion of the burning issue of the day.

That promise would be fulfilled if the panel actually pitted those who took diametrically opposed positions. But instead all too often the producer rounds up the usual suspects who represent the state’s corporate controlled oligarchy.

Never was that more so than last light’s installment on the “future of agriculture in Hawai`i”.

Promos promised discussion of “sustainability” and land issues and the political will to make diversified agriculture more than the empty campaign promise of aspiring pols.

But instead three of the four represented large corporate industrial money-driven farms and the fourth, Aussie transplant Gary Maunakea-Fort from the Big Island, an inarticulate organic farmer and opponent of what he called “industrial farms” who serves high end restaurants on Kona side with arugula on 4 acres there, although he is trying to expand to 16 acres.

The three corporate farmers included Adolph Helm of Moloka`i who represented the “Hawai`i Crop Improvement Association” and heads up the GMO-corn seed operation there, the Chair of the Hawai`i Board of Agriculture Sandra Lee Kunimoto and Richard Ha whose 600 acres Hamakua Farms plants 600 chemically-fertilized acres of whatever makes him the most money.

The sustainably discussion was a joke. Apparently none had any idea of what the movement toward sustainability was all about.

Ha was straightforward in re-defining sustainability as being economically based repeatedly saying whatever makes money is what is sustainable. Worse was Helm who not just agreed with Ha’s economic model but who claimed that “everyone has a different idea of what sustainability means” and went on to say how GMO corn seed is our best hope for sustaining agriculture”

Kunimoto seemed equally as clueless claiming that “best management practices” are the key.

The GMO discussion was equally obtuse with the three industrial farmers providing the tired old lies of “strict government oversight” and “higher yields” along with the “fully tested” and “strictly regulated”. The only real discussion was about how to deal with the “cultural” objections to GMO taro with the understanding among themselves that science” was on their side.

The fact that GMO products have never been fully tested and that science has been thrown under the bus with the precautionary principle—the main guiding standard in real science- getting the shortest of shrifts. Products are assumed safe with little scrutiny and voluntary compliance and self regulation providing for non-compliance- as violations and resulting fines across the county have shown- being the norm under the “deregulation” regimes of the last few decades.

When a viewer asked about labeling issue all they could do is repeat the “strict government regulation means it’s as safe an any other product” dodge.

Forth was not even asked to answer the question.

But if discussion on those two subjects were dismally one-sided the one on land use was doubly perverse.

The cost of land was never mentioned as a deterrent to farming even though any young aspiring farmer will tell you that that’s impediment number one. Even when the pressure to develop ag land came up the fact that, in order to farm one must invest more in land than one could ever possibly recover in order to start, never came up.

As a matter of fact they lauded the new “identification of important ag lands” study as the key to the future of agriculture, although none ventured a guess as to how reclassifying tons of ag land as urban and residential would help drive down ag land prices.

In an age when we are increasingly looking for ways to “grow” energy with solar wind and biomass “farming” to call any ag land at all “unimportant” is absolute insanity. Identifying land for development just squeezes that energy production onto more arable land, driving prices up not just for the land but the resulting food and energy even further.

That’s because every successful farmer in Hawai`i, for one reason or another, whether through inheritance subsidized lease or through some other circumstance, has not had to factor in land cost into the viability of their farm.

While some mentioned county regulation none recognized the state’s role in allowing “ag condominiums” over which the counties have zero control. That is what has driven prices sky high as ag land becomes “gentleman farms”.

None, including Forth, talked of sustainable small family farms. So of course the problems of hiring “agricultural workers” was the answer when Boylan asked why “young people don’t want to farm”.

That seems to be the mantra of corporate farmers almost all of whom started being land ag rich so never had to factor that cost into their profit equation. They simply seek to hire people to do the seasonal work at low wages rather than taking in partners or forming co-ops.

The fact is that there are hoards of young people who would love to become farmers- Forth says he hires them “for a few years” just so they can have the experience and had 75 applicants for 24 positions last year. But the cost of land is prohibitive because no crop and no amount of work can produce enough to sustain those who do the work and also pay off the exorbitant cost of obtaining land with prices that have been driven by making ag land in small de facto residential lots for rich mainland folks

The real solution to sustainable ag is multi pronged but not very complicated. It starts with bring down the cost by restricting use. Counties can easily remove density from ag land and open land and the state can just as easily eliminate agricultural condominiums making land useless for anything but agriculture.

The more of that “strictly ag use” land there is the lower the price will be. Every rezoning and ag subdivision drives prices higher still. Those need to stop entirely.

Once that is in place the business plan of the young farmer becomes easy to construct and one that, with hard work and knowledge, would make a career in farming a possibility.

The corporate model relies on “workers” and “jobs” that nobody wants- do you want to work for minimum wage (or less as farm workers may be paid)?

The fact that no one wants to do hard work for peanuts doesn’t mean young people don’t want to farm or do hard work at all. They just don’t want to farm for low wages for someone who somehow acquired land at a way-below-market-cost that they didn’t have to factor into their business plan.

The problem is that lip service to ag is all we get from short sighted pols who still think of sustainability in terms of an economically-driven industrial model of operation.

With people like Kunimoto overseeing and cheerleading factory farmers like Ha and “GMO is our future” Monsanto henchmen like Helm no one is holding their breath that our elected officials will remove the corporate yoke from farming by reforming our land use polices.

But we may never even get that far. When the “unimportant ag lands” study is done and most of the ag land is developed there may not be anything to reform.

Wednesday, May 27, 2009



(PNN) There is apparently a portion of the Moloa`a Ditch system that was seemingly designed to return water from the recently illegally reconstructed Moloa`a Ditch to Moloa`a Stream, according to local architect and engineer Juan Wilson.

A map produced by Wilson and posted as part of a Moloa`a Diversion Forensics
article on his Island Breath web site depicts what he says is the system of ditches that feed into Ka Loko reservoir which gave way in 2006 killing seven people in Waiakalua valley.

The map shows Moloa`a Stream and tributaries in light blue toward the bottom of the frame. Ka Loko Reservoir is at the right in blue and with a potion of Moloa`a ditch running left to right in the center in blue, connecting the point of diversion of the water out of Moloa`a Stream’s Kalawa`a tributary (a potato chip shaped blue patch at the left) with the Ka Loko ditch system at a point just to the left of the reservoir.

Then the water apparently connects to and dumps into Ka Loko Reservoir.

But there is also a blue a section that runs from where all the ditches come together just above (to the left) the reservoir and lead back to the Moloa`a stream watershed.

Wilson says this may be a section of the Moloa`a Ditch system that was apparently designed as a safety feature to take excess water out of the system and return it to Moloa`a Stream and was designed to prevent the Ka Loko Reservoir from taking in more water than it could hold.

The elevation of the point just above the reservoir is more than a hundred feet higher than the point where it connects to Kalawa`a stream so it could only run in that direction according to Wilson.

PNN previously reported, first that a letter to the EPA said the main Moloa`a Ditch may have had its flow reversed 10 years ago but later reported that that, according to other documents, was apparently not the case. Wilson’s depiction may shed light on the discrepancy.

It’s unknown at this time whether the section in question was reconstructed when the diversion, as described above, was established about 10 years ago according to a recent county-funded study on agricultural water in the Moloa`a-to-Kilauea area, all centered around Ka Loko Reservoir.

It is apparently not referred to in any documents in the reports as being currently functional.

Though no proof exists as to who did the 10 year old work diverting Moloa`a Stream water, all evidence points to land owner Jimmy Pflueger who did extensive work in the area prior to the dam break and is scheduled to stand trial for manslaughter and in numerous civil cases this summer in connection with the dam break.

The map was put together by Wilson using Google Earth 3D and his work on cataloguing ahupua`a on Kaua`i as well as information contained in the recently released county-funded Kilauea Irrigation Water Engineering Design and Monitoring Study and state Godby Report on the dam break as depicted and provided by Hope Kallai of Malama Moloa`a.

Kallai says there are signs in the various reports that there are currently non-functional parts of the system designed to take excess water out of the ditches and return it to Moloa`a Stream before it gets to the reservoir. She says she isn’t sure where this specific depiction by Wilson fits in but that apparently there is an “clean out weir” that can dump excess water down a small valley that leads from the area above Ka Loko to either Moloa`a Stream’s Kalawa`a tributary or Moloa`a Stream proper.

The problem has been that exhibits in both reports are at times contradictory and it’s unknown whether, when the documents were prepared- some going back decades- they were based on factual material or speculation at the time.

It isn’t known how may “safety features” may have been built in the past and the one described by Wilson may, Kallai says, be one of as may as three according to the documents.

Kallai says that it seems that she believes that water can be returned to Moloa`a Stream as easily as turning a valves to release the water, citing a time when this apparently happened for a period of days last summer during the time the county study was being conducted when the valve was turned and she and others noted that Moloa`a Stream flowed as it had prior to the diversion 10 years ago.

What is apparent is that currently no water return mechanism is in use.

For further details see the left rail for prior PNN reports on the theft of Moloa`a Water. PNN will continue to follow the story as details emerge.

Tuesday, May 26, 2009


MEANWHILE, BACK AT THE LAB(YRINTH): Few on Kaua`i dispute that Uncle-Chair Kaipo Potter operates his Council Chamber of Secrets with a iron-fisted and paternalistic combination of deceit and intimidation.

But never is that more so than when he and his fellow Minotaurs cut short testimony they don’t like by falsely claiming the state sunshine law forbids members of the public from discussing matters not specifically on the agenda.

What does not bode well for the future of open governance on Kaua`i is that at last Wednesday’s council meeting someone who should know better didn’t, as usual, just remain silent when Chair Asing used this misrepresentation to cut off testimony he didn’t want spoken on television but, without invitation, that someone initiated a challenge to public testimony based on the falsification.

New County Attorney Al Castillo is apparently so new to the job that he has yet to review the essential Office of Information Practices (OIP) rulings on the matter and has rather let Asing’s mealy-mouth interpretation guide his actions.

While testifying before passage of the council’s ill-advised million-dollar flush down the crapper of toruism promotion, council watchdog and “nitpicker” Ken Taylor used the opportunity to suggest the money might be better spent on other essentials- such as addressing one of his pet issues, peak oil.

But while Asing sat passively giving Taylor his perfunctory “three minutes” who should rudely interrupt and raise an objections but Castillo who has no business in any way shape or form doing so, warning Asing that the testimony was “off-agenda” and should not be allowed.

The issue was quite clearly addressed by the OIP relatively recently, in 2005 when someone on the Big Island raised the issue of their council’s tradition of allowing members of the public to speak on any subject they desire- on or off the agenda- for a short period of time at the end of each meeting.

The OIP said two things quite clearly and forcefully.

First of all OIP opinion 2005-02 says

A board may permit members of the public to speak at a meeting on matters that are not on the agenda but is not required to do so.

The important word there is “may”. The discretionary term gives the chair the ability to disallow testimony that is not about something that is on the agenda. But though he is allowed to do so, he is not required by law to stop it, as Asing has consistently claimed for years.

This has led to councilmembers- each of whom chairs a council committee- to use the same lie to control testimony at their various committee meetings... especially councilmembers Jay Furfaro and Darryl Kaneshiro who routinely follow Asing’s lead when someone says something they don’t wish to hear- or more importantly something they don’t want others to hear.

Each has refused to admit that it is up to them to allow it or not, going so far as to reiterate that they would gladly allow the testimony but state law forbids them from doing so.

Castillo was certainly not just reminding them they had the discretionary power to disallow the testimony but warning them that to allow the testimony might be counter to the Sunshine Law.

Secondly, the other half of the ruling is restrictive of what one certain group of people can and can’t discuss at the meetings- councilmembers themselves.

It says:

Board members may not discuss, deliberate or decide matters that are not on the agenda, Thus if a board elects to hear public statements regarding matters not on the agenda and the statements relate to matters over which the board has supervision, control, jurisdiction or advisory power, the board must be careful not to respond by discussing the matter.

Apparently, rather than doing his homework and verifying whether Asing and the Kaua`i County Council’s standard operation procedure complies with state law, Castillo made the fatal mistake of assuming that Asing and his henchman County Clerk Peter Nakamura weren’t willfully ignoring the Sunshine Law and OIP and substituting their own outlaw justice for the actual meaning and intent of the statute.

Since Castillo is new on the job and indeed new to governmental and public policy law we’ll assume this was a mere understandable oversight. Afterall, hey- who would figure that the council chair and the county clerk would conspire to violate the Sunshine Law- something that, if true, could yield jail time for the two?

We’ll assume that Castillo isn’t “in on” the plot as the last two county attorneys apparently were after having this matter brought to their attention numerous times by various “nitpickers”- and PNN reports- in the past.

We do hope that Castillo will take this as a wakeup call to make sure he personally dots the i’s and crosses the t’s on the legality of the council’s maze of procedures.

One incident like this under the new CA is understandable but a second would indicate complicity in activities that have given Kaua`i a statewide reputation as “a separate kingdom” when it comes to complying with state law, especially the Sunshine statutes.

Monday, May 25, 2009


ANOTHER COLLIE FLOWER YEAR: A year ago we asked “Where Have All The Collie Flowers Gone” saying in part

It’s dead soldier day again. People are honoring those who took the lives of others for no reason other than that they were young and stupid and were told to do so by demented old men who sought to plunder, rape and pillage.

Not us. Today we honor the veterans of anti-war movements throughout history...

Every dead soldier died in vain. There never was a noble cause or even a valid one. The soldiers died protecting nothing but greed and avarice.

The notion that soldiers protected our right to say this is ludicrous. Every war has been accompanied by a diminution of our constitutional rights. Those that fought against the war are the ones who kept free speech alive in the face of depraved and often felonious attempts of the war mongers to stifle it.

Only a true coward kills because they are told to do so. But there have been a few truly courageous young men and women that have been there to say no- we will not go and kill for your plunder. We will not demonize and dehumanize to enable those without the guts to stand up and say no to that which they know to be wrong to pull a trigger and delay the remorse until they get home- if they get home.

We took a lot of heat from both expected and unexpected sources such as Doug White at Poinography (link lost in a hard drive crash) who was so offended our previously congenial interactions grew a bit cold afterward.

While we were saddened by that course of events- and wish Doug would go back to daily or even regular posting- a year later we wouldn’t change a word except, with a change in D.C. administration, by adding another name to the list of war criminals and by referencing the mad rush to kill more brown people in the new and improved Afghani war “theater”.

Rather than say it again we’ll let Cindy Sheehan- the “mother whose oldest child, Casey, was killed in Iraq (and who) camped out in front of (George Bush’s) Texas ranch demanding that “he tell me for what noble cause that he killed my son” according to her bio- say it for us in a different way this year.


Day of the Dead
by Cindy Sheehan

I was on an airplane flying to Orange County from Sacramento to attend the al-Awda Conference; which is a Palestinian Right’s Conference. Al-Awda translates to “The Returning, “ when the Pilot voice filled the cabin to make an announcement that I think went unnoticed by most of my fellow passengers, but I heard it.

As the plane was on the approach to John Wayne airport, the Captain came on the intercom to remind us all to “remember our brave troops who have died for our freedom.” Even in this post 9-11 paranoid paradigm, if I wasn’t belted in for landing, I would have popped out of my seat at 13D and charged up to the cockpit to let the pilot know that my son was killed in Iraq and not one person anywhere in this world is one iota more free because he is dead.

As a matter of fact, the people of Iraq, the foreign country thousands of miles away where my oldest child’s brains, blood, and life seeped into the soil, are not freer, unless one counts being liberated from life, liberty and property being free. If you consider torture and indefinite detention freedom, then the Pilot may have been right, but then again, even if you do consider those crimes freedom, it does not make it so.

Here in America we are definitely not freer because my son died, as a matter of fact, our nation can spy on us and our communications without a warrant or just cause and we can’t even bring a 3.6 ounce bottle of hand cream into an airport or walk through a METAL detector with our shoes on. Even if we do want to exercise our Bill of Rights, we are shoved into pre-designated “free speech” (NewSpeak for; STFU, unless you are well out of the way of what you want to protest and shoved into pens like cattle being led to slaughter) zones and oftentimes brutally treated if you decide you are entitled to “free speech” on every inch of American soil.

If you watch any one of the cable news networks this weekend between doing holiday weekend things, you will be subjected to images of row upon row of white headstones of dead US military lined up in perfect formation in the afterlife as they were in life. Patriotic music will swell and we will be reminded in script font to “Remember our heroes,” or some such BS as that.

Before Casey was killed, a message like that would barely register in my consciousness as I rushed around preparing for Casey’s birthday bar-be-que that became a family tradition since he was born on Memorial Day in 1979. If I had a vision of how Memorial Day and Casey’s birthday would change for my family, I would have fled these violent shores to protect what was mine, not this murderous country’s. Be my guest, look at those headstones with pride or indifference. I look at them, now with horror, regret, pain and a longing for justice.

I can guarantee what you won’t see this holiday weekend are images of the over one million Iraqi dead. Say we assign, in an arbitrary way for purely illustrative purposes, an average height of 5 feet for every person killed in Iraq and then lined those people up from head to toe. That gruesome line would stretch from Los Angeles to Portland, Oregon…950 driving miles up Interstate 5. If we count the Iraqis who have been forced to flee, we would have to go back and forth between L.A. and Portland another four times.

There are obscene amounts of people who have been slaughtered for the US Profit Driven Military Empire who do not count here in America on any day. People in Vietnam are still dying from the toxins dumped on their country by the US, not to mention the millions who died during that war. Let the carnage escalate in Afghanistan while we protect our personal images by turning a blind eye to Obama’s war crimes. Are you going to feel a lump of pride in your bosom when the coffins start to be photographed at Dover for this imperial crime of aggression? Will you look at those flag-draped boxes of the lifeless body of some mother's child and think: "Now, I am free." Is it better to be dead when Obama is president?

A tough, but real, aspect of this all to consider is, how many of the soldiers buried in coffins in military cemeteries killed or tortured innocent people as paid goons for Empire? To me, it is deeply and profoundly sad on so many levels. If I have any consolation through all of this, I learned that my son bravely refused to go on the mission that killed him, but he was literally dragged onto the vehicle and was dead minutes later before he was forced to do something that was against his nature and nurture.

Casey will always be my hero but he was a victim of US Imperialism and his death should bring shame, not pride, as it did not bring freedom to anyone. I will, of course, mourn his senseless death on Memorial Day as I do everyday.

However, we do not need another day here in America to glorify war which enables the Military Industrial Complex to commit its crimes under the black cloak of "Patriotism."

From Palestine to Africa to South America, our quest for global economic domination kills, sickens, maims or oppresses people on a daily basis and about 25,000 children per day die of starvation. I am not okay with these facts and I am not proud of my country.

I will spend my reflective time on MD to mourn not only the deaths of so many people all over the world due to war, but mourn the fact that they are the unseen and uncared for victims of US Empire.

Friday, May 22, 2009



(PNN)- Hope Kallai of Malama Moloa`a has filed a detailed complaint with the state Commission on Water Resources Management (CWRM), a division of the Department of Land and Natural Resources (DLNR), providing evidence and documentation and that she hopes will lead to investigation and the restoration of water illegally diverted from Moloa`a Stream.

The complaint and it’s 77 endnoted exhibits detail the history of the Moloa`a Ditch from the sugar cane era through the illegal diversion that occurred apparently about 10 years ago and which increased the amount of water supplied to Ka Loko Reservoir and other lands owned by Jimmy Pflueger and the Mary Lucas Estate causing Moloa`a stream slow to a virtual trickle.

After reviewing the voluminous files contained in the state ordered Godby Report and it’s extensive document appendix (compiled after the 2006 Ka Loko dam break that killed seven people), a recent county funded report on the Kilauea area irrigation systems and other documents, the complaint details the apparent theft of Moloa`a water that has caused wells to run dry and farmers to cease operations in the valley since the illegal diversion was completed.

The complaint clears up the history of the Moloa`a Ditch saying

There were previously 2 historic Moloa`a ditches. In the late 1890’s, the original Moloa`a Ditch carried a minimal amount of water from a high contour ditch to Waipake. The second historic Moloa`a ditch followed easement “W-11” and was used from the 1920’s to about 1965-1968 to carry high rain runoff to Ka Loko ditch near the Parshall Flume, mainly during the winter months. According to Jack Gushiken, this ditch was not used during the summer during sugar plantation days because Pu`u Ka Ele ditch had plenty water. In the late 1960’s insignificant water flow led to no maintenance which lessened flow to non-existent. The Moloa`a ditch was non-functional before the demise of Kilauea Sugar in 1972. It was non-functional for about 20 years at the date of declaration need by the State Water Code in 1988. It had not ever been declared because it was not in use until about 2000.

Apparently, according to Kallai’s research, the theory presented in a pre-dam break letter to the EPA- as PNN reported last week- saying that Moloa`a Ditch originally may have acted as an overflow spillway for the Ka Loko ditch system and ran “in reverse” in order to return excess water to Moloa`a Stream, was incorrect.

Though there is no concrete proof, the illegal diversion is thought to be the work of Pflueger who has been found guilty of various land moving violations in the area including one that resulted in the largest fine for reef destruction in federal Environmental Protection Agency history.

As PNN has reported, according to multiple friends of Pflueger, he had planned a water-sports-based resort in the area and apparently needed more water than the Ka Loko Ditch could provide in order to fill artificial lakes he constructed as well as fill existing area reservoirs like Ka Loko for water and jet-skiing.

According to two area residents who examined the pipes and watched them being installed, the water system crosses the highway through culverts at Pila`a and supplied a series of Pflueger constructed “lakes” makai of the highway which were just recently removed as part of the remediation ordered by the EPA.

Pflueger is set to stand trial for manslaughter this summer as well as defend multiple civil suits for damages related to the Ka Loko dam break and other incidents in the area

The CWRM complaint describes the current reconstructed ditch based on the studies and documents saying

The unpermitted diversion of Kalua`a/Moloa`a stream begins at a new dam (”Pre-2001” according to the Kilauea Irrigation Report April 2009), constructed on state land in the Moloa`a Forest Reserve, continuing 2,750 feet towards Ka Loko through a system of ditches, flumes and tunnels to Mary Lucas Trust lands, where a diversion structure directs water underground through pipes either into Ka Loko reservoir or to the Mary Lucas Trust lands and the Kilauea Irrigation Company (KICO) system distribution lines for sale. These pipes are carried underground through other lands belonging to the State of Hawaii , (TMK (4) 5-1-2:3), according to the above report, and export millions of gallons of water per day out of the watershed of Moloa`a, without engineering, metering or monitoring for about a decade.

The complaint then details the deleterious effects on Moloa`a resident saying

The unpermitted exportation Kalua`a/Moloa`a stream has caused a perennial stream to go dry for 2 summers (2007 & 2008) and had serious negative impacts to the aquatic ecosystem of Moloa`a, seriously diminishing nesting habitat for 3 endangered water bird species and an assemblage of endangered stream and pali plants. Water quality is diminished in the remnant pools. Impacts to the ecosystem must be considered before the massive exportation of water resources.

Since this un-engineered, un-maintained diversion was installed, Moloa`a has experienced many dirty water events – both brown water and grey water reported. Moloa`a stream has experienced un-explained extreme flood events that have damaged stream property and county infrastructure. The ground water aquifer has diminished due to lack of recharge from the stream aquifer. Water well pumps have had to be lowered due to diminished aquifer and most people self-ration. Neighbors with declared Stream Uses are not able to use their water rights. There is no county water distribution system for potable or agricultural water throughout Moloa`a; most farms are dependent upon well water. Now we are having a hard time planting because we cannot depend upon having water.

Many stream front lands are going unworked now because owners do not feel safe due to unknown factors/persons manipulating and controlling the waters.

The complaint was filed with the CWRM which establishes Instream Flow Standards and issues Water Use Permits, Stream Channel Alteration permits and Stream Diversion Permits.
Kallai told PNN there are at least three things she hopes the commission will do.

1 See that Moloa`a water returned and natural stream flow restored.

2 Investigate and prosecute whoever is responsible for stealing our water and selling it

3 With the fines, fund a stream research center and watershed restoration effort and funding for environmental enforcement and enough researchers to perform statewide assessments of our water resources and where they're going

For more background on the Ka Loko ditch and reservoir system and work done on Moloa`a ditch resulting in a lack of water in Moloa`a, refer to the four previous PNN reports.

For the record, below is the full complaint, including endnotes

DLNR - CWRM Complaint Resolution Form Kalua`a Moloa`a Stream DiversionDate: Thu, 21 May 2009 15:22:55 -1000Complaint/Resolution Information1. Hope KallaiPOB 655Kilauea HI 96754Location: Moloaa Forest Reserve and Mary Lucas Trust lands Headwaters of Kalua`a/Moloa`a streamsMoloa`a Forest Reserve and Mary Lucas Trust lands listed as Land and Landowner State Lands are TMK (4) 5-1-2:3 and 5-1-1:? MLT lands are 5-1-2:5 and 5-1-2:1Parties Responsible1. Unknown person(s) who constructed unpermitted stream diversion from Kalua`a/Moloa`a2. All parties aiding and abetting the exportation and distribution of unpermitted Kalua`a/Moloa`a water3. a. Kilauea Irrigation Company b. Hitch Co. c. all past water managers of that PUC regulated company during construction and operation of Kalua`a/Moloa`a ditch
4. The unpermitted diversion of Kalua`a/Moloa`a stream begins at a new dam (~”Pre-2001” according to the Kilauea Irrigation Report April 2009), constructed on state land in the Moloa`a Forest Reserve, continuing 2,750 feet towards Ka Loko through a system of ditches, flumes and tunnels to Mary Lucas Trust lands, where a diversion structure directs water underground through pipes either into Ka Loko reservoir or to the Mary Lucas Trust lands and the Kilauea Irrigation Company (KICO) system distribution lines for sale. These pipes are carried underground through other lands belonging to the State of Hawaii , (TMK (4) 5-1-2:3), according to the above report, and export millions of gallons of water per day out of the watershed of Moloa`a, without engineering, metering or monitoring for about a decade. According to the areas identified on the maps as “Overflow Erosion Channels”, this system shows evidence of breaching both into Ka Loko reservoir and back into the Moloa`a system, which could be responsible for Moloa`a stream’s dirty water events.

Please see Inclusions: 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 23, 24

5. The unpermitted exportation Kalua`a/Moloa`a stream has caused a perennial stream to go dry for 2 summers (2007 & 2008) and had serious negative impacts to the aquatic ecosystem of Moloa`a, seriously diminishing nesting habitat for 3 endangered water bird species and an assemblage of endangered stream and pali plants. Water quality is diminished in the remnant pools. Impacts to the ecosystem must be considered before the massive exportation of water resources.

Please see Inclusions: 68, 69, 77

Since this unengineered, un-maintained diversion was installed, Moloa`a has experienced many dirty water events – both brown water and grey water reported. Moloa`a stream has experienced un-explained extreme flood events that have damaged stream property and county infrastructure. The ground water aquifer has diminished due to lack of recharge from the stream aquifer. Water well pumps have had to be lowered due to diminished aquifer and most people self-ration. Neighbors with declared Stream Uses are not able to use their water rights. There is no county water distribution system for potable or agricultural water throughout Moloa`a; most farms are dependent upon well water. Now we are having a hard time planting because we cannot depend upon having water.
Many stream front lands are going unworked now because owners do not feel safe due to unknown factors/persons manipulating and controlling the waters.

6.In the late 1990’s – early 2000 or 2001, Moloa`a Steam started behaving totally different. High precipitation events would not raise the stream level; sometimes the stream would rise without rain! The sand berm at the mouth of the river didn’t clear for 3 years making anoxic conditions and prohibiting the migration of o`opu. Moloa`a had many dirty water events reported to DOH-CWB.

Please see Inclusions: 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 45, 46, 51

7. The Kalua`a/Moloa`a diversion is unpermitted and undeclared. There were previously 2 historic Moloa`a ditches. In the late 1890’s, the original Moloa`a Ditch carried a minimal amount of water from a high contour ditch to Waipake. The second historic Moloa`a ditch followed easement “W-11” and was used from the 1920’s to about 1965-1968 to carry high rain runoff to Ka Loko ditch near the Parshall Flume, mainly during the winter months. According to Jack Gushiken, this ditch was not used during the summer during sugar plantation days because Pu`u Ka Ele ditch had plenty water. In the late 1960’s insignificant water flow led to no maintenance which lessened flow to non-existent. The Moloa`a ditch was non-functional before the demise of Kilauea Sugar in 1972. It was non-functional for about 20 years at the date of declaration need by the State Water Code in 1988. It had not ever been declared because it was not in use until about 2000.

This Kalua`a/Moloa`a dam, ditch, flume, tunnel and underground pipe system is a new design and installation (“Pre-2001”) and has been installed and operated FOR PROFIT without monitoring, engineering, permits, source water considerations, or any regard to laws or safety.

Until the recent release of the Kilauea Irrigation Report we had no ability to prove the obvious causes to our diminished stream flow. We have been told repeatedly that there is no connection between Moloa`a stream and Ka Loko reservoir. There is no connection visible on the surface. The waters are hidden underground, in pipes, and have been installed on state land to transport water without the state’s permitting process. There is a well documented history of environmental abuse and water mis-management in the Ka Loko area. Difficult access and legal posturing have made an exclusive, uncontrolled and discriminatory use of the state’s water, as District Forester Robert Daehler worried in1988 “Unless an equitable distribution system and volume allotment system is specified in the agreement the “Public Utility” could become dictatorial enjoying a monopolistic hold on the State’s public water resource.”

And continued
Will the granting of a public utility permit such as being considered serve to provide equal opportunity of water for agricultural pursuits on all lands previously serviced by the Ka Loko system? If not, the question of the advisability of locking up a public resource for 30 years should certainly be asked.

Please see Inclusions: 2, 3, 4, 5, 6, 23, 24, 50

The water from the Ka Loko system previously irrigated over 6,000 acres of the Kilauea Sugar Plantation holdings from Moloa`a to Kalihiwai. The original KICO PUC permit considers re-watering important ag lands from Moloa`a to Kalihiwai. Moloa`a, Lepe`uli, Ka`aka`aniu, and Waipake have been important and productive lands and are still zoned for agriculture. In 1984, an extensive study was performed, the Kilauea Agricultural Water Management Study, considering 10 different alternatives for the Ka Loko water.

Please see Inclusions: 65, 66, 67, 68

Now KICO only services about 20 customers, making the waters of Ka Loko geographically exclusive. KICO is a nebulous company at best and has been operating without insurance since December 2006. KICO management practices have enabled disaster. Regardless of whoever covered up the spillway, KICO daily operations continued without any ability to safely release overspill. KICO manages the unpermitted diversion and aids in the export and sale of unpermitted water.

Please see Inclusions: 4, 5, 6, 7, 61, 62, 64, 65, 66, 67, 68

Management of a dam must include operations of the safety features: a spillway and the ability to divert water from the impoundment for emergencies and maintenance. The increased elevation of the dam face and the removal of the spillway enabled storage of more water. The unpermitted diversion from Kalua`a/Moloa`a stream brought millions of gallons of additional water into Ka Loko reservoir. If the new Kalua`a/Moloa`a ditch system only carries ¼ of the flow of the Ka Loko flow (a very conservative underestimate), see historic charts, and the inflow from Ka Loko ditch was estimated at 205 cfs during the 4 days pre-breach, then at least 50 cfs were being added into Ka Loko from the Kalua`a/Moloa`a ditch. The added inflow from the new Kalua`a/Moloa`a ditch system could have added over 200 million gallons of previously un-accounted for water into the water body of Ka Loko reservoir in only a few days.

As explained in KIR, the unpermitted Kalua`a/Moloa`a ditch water can be diverted to KICO and Mary Lucas Trust lands. What was the flow operation of the Kalua`a/Moloa`a ditch water during the high precipitation event of Feb-March 2006? Historically, Kaluamakua stream was used to divert Ka Loko ditch water from entering Ka Loko reservoir. KICO has failed to maintain this flume system resulting in an inability to redirect high flows.

Please see Inclusions: 47, 48, 49

9. We, and many others, have made ongoing attempts to stop this massive export of Public Trust water to protect the environment and public for the past decade. Lack of access, lack of appropriate corrective response from agencies and letters from attorneys speculating on plumbing has thwarted investigation for almost a decade. Now 8 people are dead and most parties involved are involved in lawsuits. Except the farmers in Moloa`a. We just don’t have water to farm or live.

Please see Inclusions: 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 52, 53, 54, 55.

10. The only successful and fair remedy is to immediately return the waters of Kalua`a/Moloa`a ditch to the stream systems of Kalua`a/Moloa`a to restore the natural streamflow. For the purposes of the KIR study, Kalua`a/Moloa`a ditch waters were returned on August 27-29, 2008 by turning a valve on the Mary Lucas Trust land “diversion structure”. The turn of one valve returns the water to Kalua`a/Moloa`a. This ditch system, operating on state land, without permits, engineering, insurance or permission must be REMOVED.

Please see Inclusion: 47, 48, 49, 50, 51

A thorough investigation of the construction of this ½ mile ditch system must begin immediately and prosecution of the builder to the fullest extent of the law must follow.

Fines must be imposed for the theft of Public Trust waters with the resulting funds being used to expand Hawaii stream research, establishment of Instream Flow Standards for all streams in Hawaii and to support the re-establishment of ditch waters, where appropriate.

There needs to be a thorough investigation of the PUC regulated operations of KICO and their business conditions. How long is the state willing to let them operate without insurance? Another 3 years? An investigation must include why the former ag lands of Kilauea Sugar have been removed from irrigation water consideration by KICO.

There have been many attempts to stop this illegal diversion for the past decade. There has been a total breach of the environmental protection and enforcement system, not just a breach of Ka Loko dam. A thorough investigation must include all agencies involved and why the system has failed and prevent this atrocity from ever happening again.

An unsafe, unpermitted theft of Public Trust waters has been allowed to continue for a decade. It must stop today. Please turn the valve on Mary Lucas Trust lands re-diverting the stolen Kalua`a/Moloa`a waters back to the streams of origin.

I request that the Commission on Water Resource Management assist in resolving the matter described herein.

­­­­­­­­­­­­­________________________________ ­­­­­­­­­­­_________________________
Signature Date

Kalua`a/Moloa`a Stream Diversion

Complaint Resolution Request

Inclusions: Most found in &
Complaint Resolution Form
Streams & Ditches of Kilauea
Figure 20 Aerial photo Ka Loko
Figure 5-2 Moloa`a Ditch
Figure 2-3 Ka Loko Reservoir Infrastructure
Figure 5-5 KICO Pipeline System
Figure 9-1 Alternative Concept Solution Design 2
Exhibit A Eastment W-11
Figures 21 & 22
Figures 23 & 24
Figures 25 & 26
Figures 27 & 28
1998 Malama Moloa`a & List
Nov. 2001 CWRM letter
Nov. 2001 CWRM attached map
Nov. 2001 CWRM attached photo
Nov. 2001 CWRM attached photo
Nov. 2001 CWRM attached photo
Feb. 2002 CWRM letter DLNR 1285
Feb. 2002 CWRM attachments (same as Nov. 2001)
March 15 2002 Memo DLNR 1286
Sept. 2 2002 CWRM letter
Kilauea Irrigation Report April 2009 Pages 11-14
Kilauea Irrigation Report April 2009 Pages 37-39
March 25 1955 BLNR letter DLNR 532

Kalua`a/Moloa`a Stream Diversion

Complaint Resolution Request

March 20 1073 Dyer letter to DLNR-Land DLNR 803
Sept 14 1979 DLNR-DFW - Land DLNR 674-675
Sept 27 1979 County of Kauai Planning DLNR 655
October 24 1979 BLNR DLNR 658 662
Nov 28 1979 DoA-BLNR letter DLNR 657
Dec 19 1980 Hawaiiana to DLNR letter DLNR 641
Nov 17 1988 District Forester - DVM Land letter DLNR 75-76
Sept 21 1988 DWLD-Land letter DLNR 83
Godbey Report Pages 29-52
Dec 2006 DLNR land & AG to McCorriston letter Exhibit D
Sept 28 2007 Termination letter D-5
Sept 28 2007 Press Release
BLNR Minutes Sept 28 2007
KICO Meeting Oct 29 2007
Moloa`a Flood Feb 2006 picture
Moloa`a Flood Feb 2006 picture
Moloa`a Flood Feb 2006 picture
Ka Loko Reservoir bathymetry
Ka Loko Reservoir 1980-2006
Godbey Report Pages 58-69
Godbey Report Pages 72-78
Figure 5-1 Ka Lo Ditch & Kaluamakua
March 29 2006 Tom Hitch letter TH002 Exhibit 1
Kilauea Irrigation operations page (Brewer) B00678
Kilauea Irrigation Report Inflow & Outflow Control

Kalua`a/Moloa`a Stream Diversion

Complaint Resolution Request
Godbey Report Pages 12-14
October 2001 Garner Complaint Resolution Form DLNR 1287-1293
Feb 1 2002 Request to Enter DLNR 1294-1300
Feb 15 2002 DLNR to to Garner DLNR 1301-1302
Undated Letter to Catherine Kuhlman EPA EPA 000001-000006
June 1988 Heacock-CWRM letter - Waiakalua DLNR 1278-1283
October 28 2005 Complaint Resolution Form-Perius DLNR 1327-1328
March 14 2006 Phone memo from Mike Perius DLNR 1324
Sept 1992 CWRM Stream Use Declarations
2005 State Water Project Plan Inventory of Stream Diversions
March 2001 - Aug 2001 PUC memos PUC 001109 -001144
April 2001 PUC staff report PUC 001186
May 19 2003 Pu`u Ka Ele Dec of Water Use & Stream Diversion DLNR 1325-1326
FY 2005-2006 State of Hawaii Annual Report Pages 24 & 25 (excerpted)
1984 KAWMPS Preface
1984 KAWMPS Map and Kilauea Sugar plantation irrigation sphere of influence
1924 Moloa`a Picture showing extent of plantation agriculture
Table 4. Annual Average Rainfall Kilauea Irrigation System Watershed DLNR 1752
1996 Bioeconomics of Stream Management in Hawaii M. Kido
East Kauai Water User's Co-Op
May 3 2009 Malama Moloa`a CRWM IFS Request
May 3 2009 Malama Moloa`a EPA letter
May 8 2009 Malama Moloa`a BLNR letter
May 4 2009 Malama Moloa`a DLNR-Land letter
Malama Moloa`a AG correspondence
Moloa`a Stream Gone Dry article
Moloa`a bridge article

Thursday, May 21, 2009


BARKING IN THE DARK: The Sunshine Law in Hawai`i is known nation-wide as one of the best. Yet in situ, access to government records and meetings is acknowledged to be pitiful.

One of the main “jokes” in the law is that the open meetings requirements that the state legislature has enacted, apply to the others but not themselves.

That’s especially true of the notice requirements that force county councils and state and county boards and commissions to publish virtually un-amendable agendas at least six days before they meet.

Not so the legislature. There is only a two day notice requirement on the books and it has so many loopholes at so many points in the four month session that even that notice doesn’t happen sometimes.

In practice there are two speeds a which legislation moves- lightning fast and zero mph. A bill might sit in an acceptable form for months and literally overnight be amended in a way never contemplated by anyone and moved to a full vote.

But even if the two day notice is given that still makes it impossible for councils, boards and commissions to fairly consider and testify on measures that effect them, because in order to even discuss them they need to put them on an agenda six days in advance of meeting.

That’s only one of the reasons why county councils across the state have asked the legislature to either get them out from under the Sunshine Law or subject themselves to the same restrictions, which go way beyond just notice requirements.

So it’s especially strange that the one Sunshine-related measure passed into law this year- one that hasn’t received any “ink” (or bandwidth) that we can find- was Senate Bill 438, now Act 24, that allows the Board of Education- and only the BOE- to “file any notice that specifies only legislation or legislation-related agenda items, no fewer than two calendar days before the meeting” while the legislature is in session.

The bill passed into law without Governor Linda Lingle’s signature and her statement of concern starts off making a good point by saying

I am concerned that making an exception to shorten the time requirement for filing meeting notices may not be the correct approach for resolving the issue of responding to legislation in a timely manner.

I am also concerned that this bill will allow for special treatment of the Board of Education under the Sunshine Law, as no other board or commission will be provided with the same exception provided under this bill. This bill will require the Office of Information Practices to make a distinction for the Board of Education and treat it differently from the numerous other boards and commissions that must also respond to tight legislative deadlines.

Moreover, because the Sunshine Law, like the Uniform Information Practices Act, is supposed to be administered uniformly across all agencies and boards, creating a special exception for only the Board of Education sets an unnecessary precedent.

I call upon the Legislature to address in a comprehensive manner the conflicts between the Sunshine Law and legislative notices that provide inadequate time for boards, commissions, and the public to respond.

But if hopes that she would call on the legislature to conform with the notice requirements for others were raised by that premise, her conclusion is one that goes in the direction of less sunshine rather than more, saying

At a minimum, the Legislature should consider revising emergency meeting procedures for all boards and commissions that should be afforded the opportunity to comment on pending legislation.

Though on the surface that might seem like a reasonable solution it is one that fulfils the fears that the step in the wrong direction that this legislation embodies makes the slope all the more slippery.

The nuts and bolts problem addressed in the new law is one of many presented by the legislature’s exemption from the Sunshine Law, supposedly because the legislature meets in a hurry up and wait four month session.

That in and of itself is problematic and leads to flawed legislation every year. This year already it has been reported that the new cigarette tax may not be able to be implemented because the two bills that deal with it are inconstant.

The pitfalls of the four month session and exemption allow county councils to argue that they should be exempt too if only as a matter of fairness because to ask the legislature to follow the Sunshine Law would be to ask them to fully reform the way they conduct business and require a constitutional amendment.

But participation in government process is the foundation of democracy and, as Thomas Jefferson said, the solution to the messiness of democracy is more democracy, not less.

Every year some “problem” posed by the legislature’s four month session crops up and is the subject of proposed legislation that tinkers around the edges, usually producing a less than acceptable bill that dies because the piecemeal approach to legislation rarely makes for good lawmaking

Yet when these bills do pass and they’re flawed many times it’s because, in the rush of a short, rigid schedule, those in the public who might be able to offer a better way or at least point out the potential flaws are shut out by the lack of sunshine in the legislative process.

To use the problems posed to create less participation, as this new laws does, is a step in the wrong direction. But until people get fed up enough to demand a change to a year-round legislature with full-time legislators bad laws produced in the dark will be the order of the day.

Wednesday, May 20, 2009


SAIL AWAY: We couldn’t help but be amused by an article in the Maui News describing the Superferry supporters picking over the bones at the auction of the venture’s paraphernalia

Reporter Chris Hamilton described the paltry pickin’s and said

All who were interviewed said they were Superferry proponents. Although excited by an auction atmosphere, most still called it a glum day. Many people, though, expected Superferry to return in a couple years after the legal wrangling has run its course.

It’s hard to imagine upon what the wishin’ and hopin’ crowd are basing their expectations these days but Monday Dave Shapiro’s post-mortem tried to stare down reality by rehashing one of the original argument for the ferry- that car and passenger transport ferries are successful businesses on islands across the world and so we should have one here too.

In trying to make the case he quoted a couple of US professors, Dick Miller and Betty Sugarman, as saying the state should be establishing an interisland ferry just like they do on the mainland as part of their highway systems

They concluded by saying

"To serve these needs the closest equivalent to a highway system would be inexpensive, reliable, and regular ferry service. It is the state’s job to fulfill this responsibility, just as all states assume responsibility for highways."

Politics, state misdeeds and military madness issues aside, none but the Pollyannas can deny the venture was a dismal failure in a business sense. Even with far-below-cost fares they couldn’t attract enough passengers in the two years they operated to have made money even if they had been charging full fare.

Yet the quotes in Hamilton’s article and comments on Shapiro’s post indicate that people apparently ignore all that and continue to look country and world-wide and say “if it works there it will work here”.

But one fact has seemingly been overlooked since the days almost 10 years ago when this false truism reared it’s ugly head.

Every single successful ferry system in the world connects islands with a continental “mainland” of some sort. All of them have a point of connection or terminus that allows the customer base that includes “the rest of the world”.

And because that’s not possible in Hawai`i without a 2,000 mile ferry link there simply is not a sufficient customer base to make a ferry successful in a financial sense.

That is the fatal flaw in the Superferry’s business plan, one that ultimately brought down the venture and should put a nail in the coffin of any future attempts at reviving the concept of an “H-4”.

Successful ferries in places from the islands around the Seattle, Washington area to Scandinavia all connect to vast continents and customers from perhaps thousands of miles around have access to them if they desire to go to the island destinations.

The number of cars and people that can patronize those ferries in is the tens if not hundreds of millions whereas, even assuming service between all of the main Hawaiian islands, the number of vehicles and adult passengers here tops out at about a million or so.

And don’t forget- in order to forge a dependable convenient “highway” type system, ferries in most places run many times a day making “early morning in, late evening out” a possibility for passengers.

Many factors came up over the years that led to the demise of the Superferry. But those who refuse to learn from the experience would do well to look at those aspects as merely small contributory factors to a venture doomed to failure from the start due to the forced economy of scale that a handful of tiny islands thousands of miles from a land mass presents.

Tuesday, May 19, 2009


HOWLER: Though we rarely had anything good to say about the late Mayor Bryan Baptiste he did have at least one redeeming quality- though he was a hot-head who exploded when criticized he knew enough to take the word of his yes-men and women with a grain of a salt, giving him a good ear for the political ramifications of his actions so he could maintain his public persona of “Mr. Aloha”.

And therefore he never tried to sing.

But his hand picked successor Bernard Carvalho seems to be tone deaf in more ways than one.

At first this was a local secret shared by those who chanced upon his weekly tax-payer supported cable TV extravaganza and were subjected to his ukulele accompanied off-key and almost-whispered rendition of his apparently self-penned theme song, “Together We Can”, which echoes the campaign slogan he blatantly plagiarized from the presidential ’08 race.

But we on the Garden Isle need no longer cringe in obscurity after Kaua`i-raised Keahi Tucker and his crew at KGMB-Ch. 9 news took a serio-comic stab at Carvalho’s stlylings obviously after reviewing the B-roll they received from this weekend's charity walk.

Though the piece is suspiciously not at their web site, last night at 5,6 and 10 p.m. their self-created feature story was promoed as “The Other Singing Mayor” and led with Keahi saying something along the lines of, we all know that Honolulu Mayor Mufi Hannemann envisions himself a wanna-be vocalist and has even dropped a CD. But there’s another singing Mayor in the islands.

Cue tape of a stiff-as-a-board Carvalho flanked by a couple of saluting Boy Scouts crooning a passage of the National Anthem in a booming yet sour basso-profundo.

It might have been a case of pity if had been some pol who knew his voice was jaw-droppingly bad but reluctantly got caught in front of the open mike while others off-mike similarly warbled the song in unison.

But Carvalho appeared so chest-puffed proud of his voice that any understanding and compassion was buried in tear-inducingly hilarious shadenfreude.

But after the laughter the message was clear- poor Bernard, not the sharpest tack in the box, obviously a bit loopy from being hit in the head by defensive linemen for many years, is receiving the instant karma of surrounding himself with cronies and sycophants who are all apparently afraid to tell the emperor he has inadequate talent for intonation.

Knowing Kaua`i voters this circus will only further endear him to them but for the rest of us under the local big top this circus is worth the price of admission.

Monday, May 18, 2009


A LITTLE LIGHT DOG WAGGING: Last Thursday the Kaua`i Board of Ethics (BOE) finally and unexpectedly released the county attorney opinion that had apparently caused them to ignore the plain reading of the ethics section of the county charter in favor of the subordinate county code provisions on ethics

It confirms the suspicions we expressed in our three part series on the “Unethical Culture” (see left rail) of the BOE- that somehow, despite a strict ban in the charter on county officials- including board and commission (B&Cs) members- appearing on behalf of private interests before other B&Cs, the opinion lets the tail wag the dog by giving legitimacy to provisions of subservient law that seek to contradict the charter.

And indeed in the second paragraph of the opinion it says

Section 20.02(D) of the Charter reads: "No officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency." On its face, this language appears to be a complete prohibition, preventing any officer or employee from acting for the benefit of any private interest before a county agency, board or commission.

But the next sentence is key to the disconnect, penned by former Deputy CA Margaret Sueoka who, perhaps not so coincidentally, was recently fired by Castillo and has filed a discrimination complaint against the county over the firing.

She wrote:

The language of the Code elaborates upon the Charter provision, and identifies more specifically those types of conduct which would constitute conflicts of interest

And there lies one of the “fatal flaws” apparently cited by BOE member Paul Weil, according to Michael Levine’s article on the meeting in the local paper.

The language of the “code” or ordinance, does not “elaborate” on the charter- which is what an ordinance is supposed to do- but rather, at best is silent on the charter provision and if applied, would contradict the charter.

As we discussed on our three part series Section 3-1.7 of the county code details many specific conflict of interest situations that are strictly prohibited. But the code specifically says these are based on Charter Section 20.01 which bans acts to confer special benefits on one’s self or others among other things.

In fact the code does not even mention 20.02(D) specifically anywhere, leaving unaddressed the matters brought up by what Sueoka admitted is a strict prohibition,.

The opinion seeks to use the state constitution and out-of-state court rulings to say that the charter and code must be read together and while that is true it’s the relevant sections of each that must be read together.

It would sort of be like reading a strict charter prohibition on robbing banks and saying because it isn’t addressed in the dog leash ordinance, bank robbery is ok.

But, even of there were a confluence of the specific conflicts in the code and the strict prohibitions of the charter, just because there are specifically described “conflict of interest” prohibitions in the code does not make the code a complete list of actions banned in the charter and in fact that contention is never made in the code.

Also on Thursday the BOE called on Castillo to look at the opinion with an eye toward “withdrawing it, affirming it, or modifying it” according to Levine’s article. But it appears our hopes for an honest legal look at the provisions from Castillo might have been dashed if comments from Castillo are indicative of his intentions.

Instead of addressing the legal ramification of the plain reading of 20.02(D) and the existing CA opinion Castillo seems infatuated with the political ramifications.

He’s quoted by Levine as saying

“What does this legal mumbo jumbo mean?” Castillo said when discussing the issue less than an hour before the board released the opinion. “To me, what this means is, to read Section 20.02 by itself would give an unwarranted chilling effect to contributing members of our society who desire to volunteer their time and their expertise to help this county become a better place.”

In the interview, (BOE Member and Food Bank ED Judith)Lenthall said it was not fair that she be expected to give up the rights of a private citizen, including the right, for example, to challenge a property tax assessment.

That “right” as we said before is not being challenged by anyone. What is being challenged in a complaint filed by fellow BOE member Rolf Bieber is the privilege of sitting on a county board that may in fact sit in judgment of a county councilperson while she is also asking the council for money for the Food Bank.

“That’s where I drew the line regarding the absurdity of just sticking to 20.02,” Castillo said. “That’s why we’re saying that the County Charter and the County Code should be read in conjunction because to do otherwise would create absurd results.”

It appears that Castillo is buying into the tail “wagging the dog” interpretations by saying that because the law has results that are perhaps politically uncomfortable, it is up to him to issue a quasi-judicial “opinion” to correct that “absurdity” rather than doing it legislatively- by ordinance if possible or by changing the charter.

The reason for this attempt to hijack the political process may be that last fall the citizens were asked to exempt board and commission members from the onus of 20.02(D) but that measure was soundly defeated.

After the citing of the legal need to read the code and charter together the opinion goes on to make one of its more absurd arguments regarding “intent”.

It cites the charters of Maui and Hawai`i counties saying

as we can see from the Charters of Maui and the Big Island, the effect of reading our Charter and Code provisions together is to achieve the same basic scope as those of the Charters of these other Counties.

This is a another “fatal flaw”, coming from a 1976 letter from then CA Michael Belles as the council debated and later passed Sect. 3 of the county code.

The flaw becomes immediately apparent because it then quotes the charters of those others counties which are substantially different from ours on Kaua`i. Theirs start out with the same type of prohibitions as 20.02(D) but go on to say

An officer serving the county without compensation, however, may appear for compensation in behalf of private interests before county agencies other than the one on which the officer serves and other than those agencies that have the power to review the actions of the agency on which the officer serves or to act on the same subject matter as the agency on which the officer serves.

If the intent in the Kaua`i Charter was to do that they obviously would have done it- and could easily have done it as the other counties did. The fact that they didn’t include the language shows if anything a desire for a higher ethical standard than the other counties.

Perhaps by wrongly reading some intent that wasn’t there the council that passed the code on Kaua`i sought to make believe that provision was in the charter. But wishing doesn’t make them suddenly appear in the charter- only an illusionist can do that.

An email that arrived today from BOE watchdog Horace Stoessel states it clearly and unambiguously

He states:

Like the charters of Maui and Big Island , the Kaua’i County Charter prohibits members of government from appearing in behalf of private interests before County agencies. But whereas the other charters exempt members of boards and commissions from having to comply with the prohibition, our Charter Section 20.02D does not exempt them.

Last year the Charter Commission proposed exempting board/commission members from having to comply with 20.02D. The voters rejected the proposed charter amendment.

No matter how much Castillo- and apparently last year’s Charter Commission- wishes that the Kaua`i Charter read differently the strict prohibition remains in place today and will for at least the next year and a half.

The code addresses only specific concrete conflicts of interest that are specifically banned and then, as it states, based only on the “special favors” provisions in 20.01 of the charter. Nowhere does it say it is an exclusive list and nowhere does it address the prohibitions of 20.02(D) which are included to ensure Kaua`i officials conduct business with the highest possible level of ethics.

20.02(D) is signed to avoid even the appearance of the type of impropriety that could result in a tit-for-tat approval by a member of one B&C, of a request from a member of another B&C- who would then presumably be tempted to turn around and approve the request of a member of the first B&C.

The Kaua`i provision is specifically to remove those temptations.

County attorney options have as close to the effective weight of an actual judicial ruling as one can get. All county entities are expected to abide by them as if they were case law and indeed can lose protections against lawsuits if they don’t.

They become the de facto “law of the land” and can only be challenged by going to an actual judge or having them reversed by, most likely, a subsequent CA.

It is the responsibility of the county attorney to opine only on the law and to separate out the political considerations and notify the political entities that the have two choices- to either change or abide by the law as it stands.

It is not the bailiwick of the County Attorney to make those political decisions for elected officials by attempting to read into the law what should be or what they would like to see in the law.

That right is reserved for the political apparatus of the county- the council and mayor.

Castillo would do well to remember the fact that 99% of the residents of Kaua`i would never have the types of conflicts that people like the Bieber-complaints-cited Lenthall, Mark Hubbard and Lorna Nishimitsu because 99% of Kaua`i residents never appear “on behalf of” others before county entities and only occasionally if at all, appear as themselves.

The availability of that 99% for county service is the blind spot in Castillo’s claim that the law, as it stands, yields “absurd results”. Indeed it is the opposite of absurd- it denotes the highest of ethical standards are expected of those that serve the county.

Castillo’s “absurdity” claim is valid only if one is intent on supplanting government by the people and- more importantly OF the people- with a handful of revolving-door, paternalistic oligarchs.

Friday, May 15, 2009




(PNN) A 1986 internal C. Brewer memo indicates that repairs to the Moloa`a Ditch were contemplated when the Ka Loko Ditch was repaired to provide water to the first “diversified agriculture” project in Kilauea after sugar cane operations in the area ceased in the early 1970’s .

The memo indicates that there was a cost “estimate” for re-establishing the Moloa`a Ditch prepared and is one of a series of memos (contained in one of the appendices of the state’s “Godby Report”) that indicate that it was written after extensive repairs to Ka Loko Ditch were completed in order to provide water for Brewer and it’s subsidiary Hawaiiana Investment Co to establish a prawn farm in Kilauea.

The prawn operation failed reportedly because the area was too wet and Brewer subsequently used the water to supply a guava farm in Kilauea that only recently went defunct.

Though the repairs to Moloa`a Ditch were apparently contemplated there is no indication in the memos- the last of which described more repairs to Ka Loko Ditch after a 1991 flood that killed three people in Anahola- that Brewer or anyone worked on the Moloa`a Ditch prior to the work that seemed to have been done in the late 90’s apparently by Jimmy Pflueger.

PNN reported a week ago Wednesday that a recent county study found that Moloa`a Ditch had been re-established about 10 years ago and now feeds a series of underground pipes above Ka Loko Reservoir in the area where Pflueger had been fined for land moving violations in 2001. Though the report did not speculate about the purpose of the ditch, PNN also reported that it was probably re-built to provide more water for a Pflueger-planned “water resort” that, according to sources close to Pflueger, was to center around Ka Loko Reservoir and use other “lakes” he had established in the area for water and jet-skiing.

That would explain the sudden drop in water flow in Moloa`a stream that, according to area residents and farmers, occurred 10 years ago- the same time the report estimated the work re-establishing Moloa`a Ditch was done.

As PNN reported last Friday an undated anonymous letter to the EPA indicates that Pflueger may have not only re-established the Moloa`a Ditch but may have reversed it’s flow direction to put water into the Ka Loko system rather than take it out as, the letter alleges, the ditch originally did when it was built in the late 19th and early 20th century for sugar cane operation in the area.

The May 20, 1986 memo that mentions Moloa`a Ditch is on C. brewer letterhead and addressed to R.L. Herberg, part-owner of Hawaiiana Investment and is from Brewer’s Gordon C. Wentworth.

It reads:

In preparing my May 18, 1986 memo to you on the Ka Loko Repairs I inadvertently failed to include the attached estimate for repair to the Moloa`a Ditch Flume which I had set aside while preparing a submission to DLNR.

In addition to the repair to the flume the Moloa`a Ditch needs clearing of the trail and ditch although the magnitude of the job is much smaller than was encountered in a similar length of Ka Loko Ditch.

Although the Moloa`a Ditch does not carry flow of water under normal conditions it can provide a contribution to the system during period of high rainfall. (emphasis added)

Though the memo presumes the flow was into the Ka Loko system there is no indication whether that supposition was based upon observation during a high rainfall incident or is based upon speculation or presumption.

The rest of the memos detail extensive restoration of the Ka Loko Ditch, which is the primary ditch feeding Ka Loko Reservoir which failed during a 2006 storm killing seven people and leading to manslaughter charges against Pflueger as well as numerous civil suits.

The work on Ka Loko Ditch was done by hydrologist John Weirheim and had been completed sometime between February 12, 1981- when the first memo indicates they had received DLNR permits for the work on Ka Loko Ditch- and November 15, 1985 when the second in the series of memos described the amount water flow in Ka Loko saying “(n)ow that the KaLoko Ditch repair is completed, and water is again flowing in the system...”

None of the memos describe any work to the Ka Loko Reservoir itself, nor do they refer to any actual Brewer work done on Moloa`a Ditch, only to an estimate of cost to re-establish it. It does however confirm that it was not carrying any water in 1986.

The memos do refer a spillway in Ka Loko Ditch which was designed to relieve the flow into Ka Loko reservoir but does not indicate where that spillway emptied nor if it was in the vicinity of the Moloa`a Ditch.

It has been publicly alleged by the state and plaintiffs in the civil suits that Pflueger covered the spillway of the Ka Loko Reservoir itself apparently leading to the dam break, but the contribution of any flow from Moloa`a Ditch has not been established nor mentioned publicly by the state or any of the plaintiffs.

Thursday, May 14, 2009


DIGGIN’ DEEPER: We’re back to looking at some of the bills that are either relevant to Kaua`i or that we’ve mentioned during the legislative sessions that were passed by the legislature and await the governor’s signature or veto by July 15.

One that sounds good to some but may be one of the worst bills in the lot due to both intended and unintended results is, HB589 HD1 SD2 CD1 “Relating To Renewable Energy Facilities”. It “(e)xempts leases and easements for renewable energy projects from subdivision requirements; defines ‘subdivision requirements’”.

While “fast tracking” renewable energy projects may sound appealing what this does is give projects a pass on many county permitting restrictions. That means that large scale projects may come under some limited scrutiny but approval is guaranteed- and it automatically happens if 90 days pass without county action on an application.

Although it provides for the counties passing administrative rules regarding these “renewable energy projects” none are currently in place meaning that if someone applies the day after the bill is signed it would be impossible for the county to scrutinize it at all since it takes many months to pass those administrative rules in accordance with HRS Chapter 91.

In addition it doesn’t define “renewable energy”. That means that things like dirty technologies will be springing up everywhere and anywhere- things such as garbage to energy incinerators, bio-diesel plants and even hydro-electric projects all without any county say so.

Farmers who produce renewable energy would be able to get “preferential rates” from their electric company when they sell it under HB591 HD1 SD2 which “(a)uthorizes preferential rates for the purchase of renewable energy produced in conjunction with agricultural activities.”. It will encourage farmers to set up renewable energy projects on their farms since they can get a fair price for their excess power and even serve to sustain some farms.

For that past decade or so charities in Hawai`i have been free of state regulation. But after an excellent series on charity abuses by the Honolulu Advertiser’s Rob Perez, all that will change if HB618 SD2 CD1 is signed .

It establishes “The Uniform Prudent Management Of Institutional Funds Act”. The particulars are many and varied but essentially it would bring about long needed transparency to non-profit organizations in the state. They used to answer only to the IRS but if it’s signed they would now have to meet the kind of standards that most other states require.

Kaua`i has a plethora of “private” roads and right now when there’s an abandoned car on one the county won’t haul it away. If HB1422 HD1 SD1 CD1 makes the cut the county will be able to do so.

Another bill to help legitimate farmers is one to allow "agricultural education programs" to supplement farming operations. That’s defined as “activities or events designed to promote knowledge and understanding of agricultural activities and practices conducted on a farming operation”. They have to be “accessorily or secondary” to the farming operations (as defined by in HRS 165-2) and still must meet county permitting requirements. It does not mention overnight accommodations.

It’s been a nightmare getting timely records from the Bureau of Conveyances. Sometimes it has taken forever and a day to get up-to-date records of who owns what land.

SB521 SD2 HD1 “(r)equires the registrar of the bureau of conveyances to provide, within 10 days after each week and free of charge, an image and index of all documents and instruments that have been recorded in the registrar's office that week relating to regular system land in all the counties, to the county designated in a memorandum of understanding agreed upon by the counties to act as a central clearinghouse”.

Why Hawai`i needs SB1005 SD2 HD2 CD1 is not apparent since it seems that federal copyright laws should suffice but nonetheless it would (e)stablish... property rights in the commercial use of a person's name, voice, signature, or likeness”. It’s long, rambling and very specific and knowing the legislature’s penchant for shoddy rush job legislation we’ll bet dollars to donuts it does something completely unintended.

Finally, even though many thought it became law last year, a bill to allow everyone to hang their clothes on a clothes line was for some idiotic reason vetoed by the governor and for some equally insane reason the veto was not overturned. SB1338 SD2 HD2 CD1 will serve to try again to “(a)llow... the use of clotheslines on any privately owned single‑family residential dwelling or townhouse.

If you didn’t find your bill here check the full list.

Wednesday, May 13, 2009



(PNN) The federal Environmental Protection Agency (EPA) was apparently informed about the Moloa`a stream diversion in an anonymous, undated, detailed letter appended to the state’s Godby Report on the Ka Loko Dam break. It alleges that the work apparently done to restore the Moloa`a ditch actually reversed the direction of the flow which originally took water away from Ka Loko and into Moloa`a Stream.

Though the letter was also sent to the Honolulu Advertiser, the Garden Island newspaper and David Henkin of Earth Justice neither they, Godby nor the EPA apparently noted or acted upon the letter that appears in an appendix of EPA documents.

According to the letter, the long-in-disrepair Moloa`a ditch that currently feeds Ka Loko reservoir was originally designed to dump excess water before it reached the reservoir, which is constructed in a cinder cone and fed by a series of ditches rather than sitting in the path of a regular stream as most reservoirs do.

The letter alleges that Jimmy Pflueger fully reconstructed the ditch about 10 years ago and reversed the flow in order to feed an “irrigation system”, with the overflow dumping into Ka Loko reservoir.

It confirms many of the allegations made by Malama Moloa`a and Hope Kallai, as PNN reported last week, that work apparently done by Pflueger- as described in detail in a recent county report on the future use of the Ka Loko irrigation system for Kilauea farmers- recently re-constructed and established the ditch and adds the allegation that it reversed the flow of the ditch which, it says, was originally designed to take excess water from the Ka Loko system and dump it into Moloa`a stream by diverting it through a series of three tunnels.

Though the letter was contained in the state’s Godby report’s appendix of EPA documents apparently the EPA did not investigate the ditch when they investigated and fined Pflueger’s for activities in the area about five years prior to the dam break that killed seven people in March 2006.

The letter does not refer to the dam break and apparently was written well before the event although it is undated and unsigned.

It also contains maps and photos although it says they the writers did not physically investigate the whole ditch system which it says is fairly inaccessible due to topography. They do describe the “source”-which used to be the end- as being on state land in the Moloa`a Forest Reserve and in a manner similar to the way the county report does, noting a dam, the Moloa`a stream diversion and an almost dry river bed below it.

The county report contains a description of the whole path of the ditch but does not conclude that the recent construction it noted actually reversed the flow.

Moloa`a residents noticed a severe decline in water flow occurred suddenly 10 years ago, about the time that the ditch was apparently repaired and made functional. They say the lack of water has made agricultural land in Moloa`a valley un-farmable due to lack of water.

PNN has previously reported that the 80-year old ditch master who claims to have tended the Ka Loko system said at a meeting last Wed. that the ditch fell into disuse decades ago, perhaps as long ago as the 1920’s.

Many of the suppositions about the physical set up of the ditch and the re-construction allegedly done by Pflueger that are contained in the letter were confirmed by the county survey.

The additional water that presumably flowed into Ka Loko dam has never publicly been cited as a contributory factor in the 2006 tragedy.

Pflueger is currently set to stand trial for manslaughter and is also embroiled in multiple party civil suits both of which are scheduled for trial late this summer.

Although the state and county are defendants in the civil suits, the EPA is not as yet a party to the suit despite the apparent negligence in not following up on the letter.

The letter is contained in pages 7-12 of the appendix and is followed by photos and maps which are explained in the letter.

The pdf file of the appendix is not directly convertible to text and PNN is in the process of obtaining a text copy and will update this story at a later date.

Tuesday, May 12, 2009


AND SO THE POOR DOG HAD NONE: Our three part series on the Unethical Culture of some members of the Kaua`i Board of Ethics (BOE) detailed the cases of three members of that board who have and continue to violate the plain reading of the county charter’s Code of Ethics which prohibits members of boards and commissions from appearing on behalf of private interests before other boards and commissions, including the county council.

As we concluded. what was missing was that, in order to get the ball rolling to force them to either remove themselves from office or quit representing private interests was an actual complaint filed with the BOE.

So over the weekend, Rolf Bieber felt responsible as a BOE member to take matters into his own hands and file three complaints- two against his fellow BOE members Mark Hubbard and Judy Lenthall and one against attorney Lorna Nishimitsu who sits on the Cost Control Commission.

Bieber, who ran for mayor last fall, told us it wasn’t anything personal and that he respects the three immensely but that the board needed to move forward on the matter because, as it stands there was no enforcement whatsoever of the provision based on BOE decisions in other cases last and earlier this year.

His notarized complaints include the transcripts from the three county council meetings where the three represented private interests- Hubbard for the Kaua`i Action and Planning Alliance, Lenthall for the Kaua`i Food Bank and Nishimitsu for Kikia`ola Land Corporation.

Although none of them would comment for our series, that wasn’t the case when reporter for the local newspaper Michael Levine contacted them for comment on his story today regarding Bieber’s complaints.

And if anyone thought that perhaps Hubbard- the former Chair and now Vice Chair of the BOE- was in need of professional mental health after reading his ramblings in our article his comments to Levine certainly approximate the classic response of a paranoid schizophrenic.

There are apparently at least two Mark Hubbard’s existing nowhere but in Hubbard’s own mind depending on what covers the head that contains the various Hubbard’s.

In classic gibberish Hubbard told Levine:

“The way I read it (Section 20.02(D)) is very simple. When I was sitting there in front of the County Council, the hat I wore was Kaua`i Planning and Action Alliance. I made no representation, I was not considered, not looked upon as vice chair of Ethics. It had nothing to do with Ethics even though I am on that board.

“I didn’t appear as the Ethics person, I appeared as the treasurer of Kaua`i Planning and Action Alliance,” Hubbard said. “The Board of Ethics person wasn’t around. The treasurer of Kaua`i Planning and Action Alliance was around. Yes, it happens to be the same person.”

Hats? What awesome powers do bonnets bestow? They apparently give the wearer the ability to change identity like some kind of incognito emissary in a spy movie attempting to bamboozle his enemies.

Perhaps Hubbard has a secret collection of headwear that allows him to change personas whenever he chooses, much like Superman’s glasses can convince Lois Lane he’s actually mild mannered reporter Clark Kent.

One possible explanation is that it’s the good Mark Hubbard that selflessly appears on behalf of KPPA and his evil twin that sits on the BOE.

But we can only hope Hubbard guards his chapeau collection well lest they fall into the hands of those who do us harm. Imagine the problems it would pose for the courts if the criminal element could avoid prosecution by simply making the right choice at the haberdashers.

Good thing we can trust Hubbard not to abuse his Superhero status...uh he does belong to the Legion of Justice doesn’t he?... or does he simply have a hat for that.

He must have had Tom Terrific’s magic thinking cap to come up with what Levine reported he said next

Asked about the potential for the appearance of a conflict of interest if council members were to one day have to answer to the Board of Ethics, Hubbard said “there’s no such thing.”

“When people talk about the appearance of conflict of interest, to me, that has nothing to do with the Board of Ethics,” he said. “Is there a conflict of interest or isn’t there? There’s no such thing as appearance."

No such thing? Good thing the news hasn’t reached Kaua`i Mark because there 943,000 results for “appearance of a conflict of interest” at Google including the one at Wikipedia which starts off it’s “conflict of interest” entry by saying

A conflict of interest occurs when an individual or organization... has an interest that might compromise their reliability.

A conflict of interest exists even if no improper act results from it, and can create an appearance of impropriety that can undermine confidence in the conflicted individual or organization.

Ask yourself what you would do if appointed for a body that oversees ethics and deals with conflicts of interest. Would you not review what an appearance of conflict of interest actually is before you said it doesn’t exist?

Not our pal Mark- get this final gobbledy-gook

“There is no conflict because I went and asked the council for something. Their choice is to say yes or no. ... I could feel good about that, or bad about that, and I could act. I have some authority, I have a vote on the Board of Ethics. ... (but) I didn’t have a financial interest (in KPAA). That’s the charter and the county regs — it has to be financial.”

No financial interest? KPPA is one of the Kaua`i government’s favorite recipients of their largess, to be distributed to others for various planning projects at PPPA’s pleasure... quite the powerful position.

As a matter of fact, Levine’s article reports, Hubbard’s appearance was quite successful since an extra $14,500 appears in the supplemental budget that came after his “appearance on behalf of” KPPA.

The article also notes that Executive Director Lenthall got $20,000 more in the supplemental budget after her appearance on behalf of the Food Bank.

Lenthall for her part still clings to the inability to distinguish between a personal and private interest telling Levine:

Lenthall said it was unfair to her as an unpaid volunteer that she be expected to give up rights guaranteed to private citizens, citing as an example her right to appeal a property tax assessment, and said the language as currently written could discourage volunteers from helping the county, something she does “out of the goodness of my heart.”

What Lenthall fails to recognize is that it has nothing to do with the “goodness of her heart” and whether she wants to “help the county”. 99.9% of the residents of Kaua`i have and will never come before a board or commission asking for money or tangible considerations. The fact that a small handful of those who do populate these boards and commissions reflect the inherent moral bankruptcy and corrupt mindset of those who feed at the government trough is no coincident born of necessity.

The insinuation that Hubbard is not Hubbard at certain times or that there are multiple Hubbard’s stretches credulity to the breaking point, especially with the quasi-judicial nature of the BOE.

In any other judicial proceeding just the fact that a judge or juror even knows the defendant is cause for them to be excused from the proceedings.

The fact that Hubbard has ruled on the ethics complaints filed against member of the county council in the past makes his claim that he should be permitted to solicit funds from them the construction of an unethical if not criminal mind and one certainly not suited to sit on any county body much less the ethics board.

What are we- a bunch of freakin' idiots? You can certainly check off a big fat “yes” when it comes to what Hubbard and Lenthall think.