FIND THE PEA

FIND THE PEA: A slew of emails over the past two days have come in from activists on Maui, the Big Island and Kaua`i with a subject line of “Bad Bill Alert” regarding a hearing for HB2433, scheduled for tomorrow at 9 a.m..

Simply put, according to it’s purpose the bill, if passed, “(e)xempts from county approval state department of transportation development and construction of highways and airports”.

But while some of the emails were partially accurate, overall they were confusing and incomplete.

According to the bill itself:

Notwithstanding any law to the contrary, all structures and improvements to land to be used for state or county highway purposes:
(1) May be planned, designed, and constructed by the appropriate state or county department without the approval of county agencies;
(2) Shall be exempt from any county permitting requirements; and
(3) Shall be exempt from any county agencies' special management area permitting requirements.

It also similarly exempts airports.

Let’s start with some debunking. First of all the bill would not, as some said, exempt the Harbors Division because harbors are the one area that is already exempted from county permitting That includes exemption from the Shoreline Management Area (SMA) permits for which the counties are responsible, as PNN exclusively and extensively reported in the fall of 2007 during the Hawai`i Superferry (HSf) debacle.

This bill- which is similar to ones that have been introduced every session of the legislature in recent years- would grant the same exemption to airports and this year adds on state highways, something that Kaua`i Representative Mina Morita told PNN at the time she opposed but feared would someday pass.

At the time we tried to find out why there was no SMA permit for the Superferry and our queries wound their way from the unreturned phone calls to the Kaua`i Planning Department all the way up to Mike Formby the head of the Harbors Division of the Department of Land and Natural Resources (DLNR) who informed us of and cited the exemption.

But the problem is that the state has no right to trump the federal Coastal Zone Management Act (CZMA) which requires the states to protect the shorelines.

As we wrote in a November of 2007 investigative report:

Formby has repeatedly refused, in writing, to answer repeated requests for required documentation of compliance with the federal Coastal Zone Management Act (CZMA). Rather, has refused to answer or discuss any issues of federal law.

When asked for the documentation of state compliance with various processes required by federal law, Formby, an attorney, has refused to provide documentation for compliance. He also refused to discuss and legal issues relating to any federal regulations

He has cited a state law exempting harbors from compliance all county permits, including Shoreline Management Area (SMA) permitting which though federal law is issued at the local level- in Hawai`i at the county level.

The state is in effect playing a shell game in which they have given the responsibility for enforcing the CZMA- imposed upon it by the federal government and which they can’t legislate their way out of- to the counties under one shell and under another they have exempted harbors from county permitting which they can legislate.

Neat trick, eh?

So with all the legal actions at the time why didn’t anyone file suit in federal court based on the lack of enforcement of the CZMA in order to stop the HSf until the counties issued SMA permits?

That became PNN’s $64,000 question at the time. Turns out it would have cost even more than $64,000- and another set of attorneys- to open another suit, especially in federal court where Maui attorneys who were fighting the infamous HSf “EIS” case had already lost an earlier unrelated round.

Although a small group of concerned Kaua`i citizens contacted a prominent CZMA attorney in San Francisco and tried to secure funding for a federal challenge to the exemption, the lion’s share of the legal fund contributions for fighting the HSf were being directed toward the EIS case on Maui and the federal suit was never filed.

We’re pretty sure the legislature is counting on the fact that they’ve been exempting harbors from the SMA for years without a challenge to say they can also exempt airports and now highway projects given their Superferry-proven penchant for the Minotaur behavior of “doing what’s wrong as long as they can”.

While the Bad Bill Alert alerted us to the upcoming hearing in Morita’s EEP Committee tomorrow they failed to report the current status of the bill which has already been heard and passed unanimously out of the Joe Souki’s TRN Committee and in fact has passed second reading in the house with the referral to EEP.

Testimony for tomorrow’s EEP hearing can be entered directly at the email testimony web site. When you get there, type in HB2433 in the box and click button that says "get latest hearing" and it will auto fill-in the info for you. Then type your name, email and address and enter your testimony. Click and submit.