Monday, June 20, 2011



Please vote "no" to the ballot measure that recently arrived in your mailbox and send KIUC a message that subterfuge, laziness and a lack of due diligence is not acceptable.

The issue is not hydro-electric power development as they would have you believe but Kaua`i Island Utilities Co-op's (KIUC) ill-considered decision to engage in the Federal Energy Regulatory Commission (FERC) process despite the state Department of Land and Natural Resources' (DLNR) opposition to the use of FERC in Hawai`i- opposition which dates back to a previous attempt to use FERC in the 1990's.

Not only did the KIUC board of directors either ignore or fail to discover the state's opposition but they were apparently unaware of a US Supreme Court case, California vs. FERC, which would give FERC the power to override the unique water use laws of Hawai`i.

The FERC process is so odious that Senator Daniel Akaka (D- HI) introduced legislation to remove Hawai`i from FREC control.

The KIUC board of directors was sold a bill of goods by new KIUC CEO David Bissell apparently, whether by malpractice or malfeasance, without discovering these factors and now has used lies and an overwhelming expenditure of co-op funds for a PR campaign to try to make people believe that they must vote "yes" in order to ever develop hydroelectric facilities on Kaua`i.

Nothing could be further from the truth. But the board has continued to try to make up for the lack of attention to their true fiduciary responsibilities- to serve the members of the co-op- and instead protect themselves from being accused of blowing, by some reports, up to $400,000 which has already been spent.

If KIUC members don't stop the process here it could cost KIUC members even more in defending a planned intervention by the state attorney general’s office as well as planned lawsuits by opponents federal control of Hawai`i water resources.

According to a Pacific Business News interview with William Tam, deputy director for water at DLNR, Tam threatened the intervention saying that

"the state does not want Hawai‘i’s in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams. Hawai‘i stream-flow standards should not be decided 5,000 miles away where it’s very hard for the people of Hawai‘i to effectively participate.”

In the Supreme Court of the US (SCOTUS) case the justices ruled that FERC's rules trump state regulations if the two conflict, despite assurances from Bissell and KIUC attorney David Proudfoot that all state regulations will be followed.

The fact is that Bissell, Proudfoot and the board have refused to directly engage with opponents on the specifics of the FERC process raised by Tam, Akaka and the SCOTUS ruling, rather taking a paternalistic "trust us" tact.

But trust is difficult if not impossible given KIUC's track record and the surreptitiousness of the vote to engage Free Flow Partners- the company applying for the FERC permits with which KIUC has a so far secret "memorandum of agreement."

Though they promise to engage "stakeholders" from now on, not only is the damage to any trust already done but they have made it clear that on the key issue of FERC involvement they will not budge no matter what future discussions with the community yield.

As a matter of fact Bissell and Proudfoot have admitted using the fact that they controlled the "voters' guide" that came with the ballot to misrepresent opponents' views.

An article in the local Kaua`i newspaper states that:

KIUC legal counsel David Proudfoot acknowledged the petition was ultimately about FERC issues, but indicated the co-op was not required to state the position of the opposition.

“There is a difference between the ballot, which needs to be neutral, and which is neutral, and the position of KIUC and its board,” Proudfoot said. “KIUC and its board, who were elected by its members, they obviously believe in the process they are using and they’re entitled to support it. They are not required to help someone else support their decision, that they don’t like, with the members’ money.”

(Opponent Pat) Gegen asked, “And that’s a democratic process?”

“Yes, it is,” Proudfood said. “Of the 250 members that signed the petition, if they want to be able to PR their case, they can do it as much as they want, but it’s not up to KIUC, who doesn’t believe in their position, to pay their money for it. It’s no different than any political democratic process. If you’re a republican, you don’t pay the democrats for their publicity. They pay their own and that’s why the Voters Guide is very carefully labeled as the KIUC Voters Guide.”

It's apparent that the extortionate efforts by KIUC to misrepresent the issue by threatening Kaua`i with a "vote yes or you will never have hydro" lie are, in and of themselves, a reason for continued mistrust.

In fact, an effort to recall all board members and fire Bissell and Proudfoot is being discussed by opponents of the decision to engage with FERC.

Don't knuckle under to KIUC's threats to deny us hydroelectric projects or believe the prevarications, misrepresentations and efforts to overwhelm us with false PR statements by voting "no" on the KIUC FERC "hydro" ballot measure.


cf said...
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charley foster said...

It's an interesting situation before the Supreme Court. While California v. FERC said the Federal Power Act supersedes state law under all but certain enumerated circumstances, the Court later ruled in PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, that the Clean Water supersedes the Federal Power Act and gives the power back to the states to set licensing requirements. In pointing out the seemingly schizophrenic decisions, the dissent in the later case pointed out that California would have prevailed in the earlier case had it asserted its requirements through the Clean Water Act rather than through the Federal Power Act.

In any case, I wouldn't want to be the attorney having to navigate through that legal mine field.