NOW YOU SEE IT...

NOW YOU SEE IT...: It’s always worth a chuckle whenever malihini- even ones who’s been around for a few years- try to navigate the Minotaur’s labyrinth.

So it was this morning as attorney-blogger Charley Foster wrote

Copies of ordinances are available at the County Clerk's Office for purchase by the public. For further information, please call"

That's what one finds under the "County Ordinances" tab on the County web site. 'If you want to know what the law says, you can purchase it from us.' Does that strike anyone else as potentially unconstitutional? I think I feel another non-billable research project coming on.

Charley doesn’t say what he thinks is worse, the fact that the “county code”- the place where ordinances are compiled- isn’t available on-line like it is in just about every other local jurisdiction in the country and all in the states - or the fact that you have to pay for it and then get it piecemeal, ordinance by ordinance... and travel downtown to get it to boot.

But while that’s an old story you’d expect that once we’re assured that information and documents will be posted on-line- especially after a brouhaha- it would be there.

But a trip to the “Council Documents” page at the county’s web site shows the last time the minutes and the recap memos were posted was early January.

As many will remember, after Councilmembers Tim Bynum and Lani Kawahara tried to bring some sanity to the way county government operates and especially the way they make (or more accurately don’t make) documents available, they were assured by the chair and administration that from then on the council’s minutes and "recap memos"- a document which lists the actions taken at each council meeting that’s very existence was thentofore a secret- would be posted on the council’s web site.

STILL PEEIN’ ON THE TIRES

STILL PEEIN’ ON THE TIRES: The latest version of the flim-flam shell-game theft of kanaka maoli lands known as the Akaka bill that was passed by the U.S. House of Representatives yesterday has us thinking of our favorite “inside” joke of late.

It was just a throwaway bit on Jon Stewart’s “Daily Show” about the way the congressional Repugnacan’t are screwin’ with the Dummocraps and Oh-bummer by saying they want to work with them, and then unanimously refusing to vote for anything, even the stuff they said they supported the day before.

He compared it to a movie clip of a car-full of the “cool” kids who invite a dweeb to “get in” and open the door only to drive off just as the kid reaches for the handle. They stop 50 feet away and say “get in- we promise- we’ll let you in this time” so the kid runs to the car only to have them drive off another 50 feet away and the process repeats itself over and over with the gullible kid running to the new location in the insane hope they will let him in the next time.

“But guess what” Stewart says, leaning into the camera. “THEY’RE NEVER GOING TO LET YOU IN THE CAR”.

Over and over we see it- people banding together with faith that the U.S. government is that mythical one they were told of as children, only to find it populated by power-hungry corporate servants dedicated to strengthening the walls that keep them in and us out.

Whether it’s the local county council telling the good governance duo of Tim and Lani they too want reform before slamming the door on any reform of our Minataur system of governance, the advocates for civil rights for same gender couples who are jerked around by state legislators who claim to support them and then sabotage bills behind closed doors or the kanaka maoli who yearn for the independent nation with a land base that was stolen from them 117 years ago only to be offered a bill of goods that steals their land “one last time fair and square”, you ain’t getting in the car- not now, not tomorrow, not the next day... not ever.

In many places those who’ve had the car leave without them once too often take matters into their own hands and sabotage the brakes or maybe toss a lit bottle of gasoline at the fleeing vehicle.

Around here all we can say to the “in crowd” is that, to use another catch phrase, “the natives are getting restless”.

THEIR MASTER’S VOICE

THEIR MASTER’S VOICE: When the hand-held cell phone ban was passed a couple of weeks back a few members of the council- most notably Chair Kaipo Asing as well as Dickie Chang and Darryl Kaneshiro- expressed some reservations with their “aye” votes when a national study was revealed a few days before passage, questioning whether there were really any less deaths due to accidents involving people who were talking and/or texting while driving.

But Wednesday, when the bill was “reconsidered” for a minor “tweak” as the local newspaper called it, it seems a much more reliable and authoritative voice convinced the three that the study was in error.

Chang told the council that his doubts had been assuaged after hearing from none other that Oprah who has apparently entered the fray and declared cell phones to be deadly weapons.

Reassuring everyone he wasn’t a regular viewer or anything, by telling the assembled that he came across the vital information “while flipping channels” Chang said that if Oprah herself supports a cell phone bans, well that was good enough for him to now wholeheartedly support interdiction.

But, well, that’s Dickie- we would expect no less reverence for the infallibility of TV show hosts from him. As a matter of fact we pretty sure it was the basis of his campaign for office.

Less expected was that Dickie’s off-the-cuff recitation of Oprah’s spiel was followed by Kaipo who. saying Dickie had “taken the air out of his balloon”, read from an apparent print out of Oprah’s anecdotal admonitions against the evils of driving while yakking or texting, replete with descriptions of exploding train and bus wrecks.

Not to be outdone, Kaneshiro decried his original reservations saying basically that if that’s what Oprah thinks it was enough to remove his hesitations and reservations and that he was now in full support of the prohibition.

Then it was 4 p.m. and they all took an hour long recess to do their daily due diligence.

Well, alright maybe not but it sure goes a long way toward explaining how the council can so often be so misinformed. But it also explains why they are reelected over and over.

But it could be worse – they could be watching and citing Fox News.

NOT DEAD YET

NOT DEAD YET: We’ve been getting a bunch of emails lately from Larsen's (Lepeuli) Beach activist Richard Spacer with his hair on fire asking us to say something again about the battle against land-owner Waioli Corporation and rancher Bruce Laymon to preserve the easier- and traditional- access to the beach which has appeared all but lost lately with the issuing of Lymon’s Conservation District Use Permit (CDUP).

We told him that what we had discovered is that there was a split among many in the environmental community- including some who may be way too close to Waioli Corp to have full objectivity on the matter- with some claiming that easy access to all areas (and specifically this one) may not be the best thing lest we “love the place to death”... which many others think is code for “keep the naked hippies out”.

So we’re glad to hear the news today that, as usual, it’s Sierra Club- along with the Native Hawaiian Legal Corporation (HLC) and the Surfrider Foundation- to the rescue and they’re ready to continue the battle and appeal the decision to grant a Conservation district Use Permit (CDUP) to Lymon to construct a fence across the traditional access and allow cattle to graze just above the beach.

But they really do need more cash to pay HLC than the SC or SF have provided thus far. As the letter we received says:

A coastal trail on Kaua`i, created hundreds of years ago by Hawaiians treading the path by foot, will be obliterated by cattle in a matter of months unless we act now.

Please read below to see how you can help preserve public access and set a precedent in protecting trails.

A traditional trail following the coastline leading to Larsen's (Lepeuli) Beach is on the verge of being turned into pasture land for a commercial cattle enterprise which will block public access to and along the trail. This ancient (alaloa) trail has been used by Hawaiians for subsistence fishing, gathering and cultural practices for many generations.

This past week the Department of Land and Natural Resources inappropriately granted Waioli Corporation’s lessee a permit for cattle fencing in 18 acres of conservation land next to the beach. They already have cattle operations in the adjacent 600 acres. This decision will have environmental impacts and threaten coastal and cultural resources.

Fortunately, Native Hawaiian Legal Corporation will appeal DLNR's decision, on behalf of a Native Hawaiian, provided they receive funding by Thursday, February 25th. The Kaua`i Group Sierra Club and Surfrider Foundation have contributed toward the appeal, but a significant amount still needs to be raised.

We're asking people who care about preserving public access on traditional trails, who can make a contribution of any amount, to please help now.

Please make your check payable to "Sierra Club". If you wish to make a sizeable donation and want it to be tax deductible, make check payable to "Sierra Club Foundation". All checks to mailed to:

Sierra Club Kaua`i Group
PO Box 3412
Lihue, HI 9676

In addition, if you want to help in other ways please email: AuntyLokeWouldGo(at)gmail.com

Mahalo!

The Kaua`i Group Sierra Club

Attached to the letter was an amazingly complete and detailed letter listing all the deficiencies in and discrepancies with Hawai`i Administrative Rules (HAR) contained in the permit which the Department of Land and Natural Resources (DLNR) ignored in granting it.

It’s pretty long but worth the read so we’re posting the entire Jan. 8th Sierra Club letter to DLNR. It really puts together the way the sham of due process and the outright illegal nature of the granting of the permit occurred and includes all the reasons why the permit should be rescinded.

-----------

Sierra Club Kaua`i Group of the Hawai`i Chapter

January 8, 2010
Laura H. Thielen Samuel J. Lemmo, Administrator
BLNR Chairperson Office of Conservation & Coastal Lands
Department of Land & Natural Resources Department of Land & Natural Resources
P. O. Box 621 P. O. Box 621
Honolulu, HI 97809 Honolulu, HI 97809
SUBJECT: Conservation District Use Application (CDUA) KA‐3525; TMK (4) 5-1-003:003
Lepeuli, Kaua`i – Paradise Ranch, LLC
Dear Ms. Thielen and Mr. Lemmo:
The Sierra Club Kauai Group (SC) is extremely concerned that many of the requirements prescribed by HAR Chapter 13-5 are missing from the CDUA referenced above. In addition, many statements in the application do not bear up under examination of the facts. This letter provides further detail, supplemental to our October 23, 2009 letter to OCCL. The application should be denied based on reasons enumerated herein.

1. A Department Permit was not appropriate. According to HAR 13-5-40 and HAR 13-5-
33(j) a board permit with a public hearing should have been required (as requested in SC’s October 23, 2009 letter) because it involves: (1) land use for commercial purposes (ranching) and (2) that public interest warrants a hearing based on significant impacts.

2. The CDUA is not “complete” according to HAR 13-5-31(c) because many Adjacent Property Owners were not notified. Failure to notify, as required on page 14 of the Department’s CDUA Instructions, is one reason why this application incomplete.

3. Failure to comply with Required Attachments, Item 2 - Maps: Submit detailed contour maps for ocean areas and areas where slopes are 20% or more according to CDUA Instructions on page 2 and HAR 13‐5‐31(a). The CDUA survey map does not include elevation contours as required. From the plateau, a series of hills descend to the beach. The sloping terrain does not afford appropriate pasturage. Severe scarping already occurs in areas and cattle will exacerbate the erosion. Within the 20‐acre Conservation District, the degree of slope exceeds forty percent which is why it falls within the “Limited Subzone”. Any reference to slope is omitted in the application, but it is very relevant because the proposed use is a fence ‐‐ a structure which constitutes development.

4. Of the proposed fence replacement, only 1/3 is an “existing fence”. Only one-third of the proposed fencing was “existing”. Within the 20.7 acre Conservation District, which is primarily coastal scrub, only 3-acres might have been pasture. The pre-existing fence has not been in continuous use pursuant to Non‐conforming Shoreline Structures, HRS 13-222-19.

5. Failure to comply with Required Attachments, Item 2 – Maps: Provide a Certified Shoreline Map for shoreline parcels (see CDUA Instructions on page 2). The most recent certified shoreline was approved in 1978. To waive the certified shoreline requirement in lieu of the 110’ setback agreed to by the applicant is not prudent based on 30‐years of erosion (as much as .5‐ft per year in some areas). Further, evidence of the debris line indicates that the survey stakes did not correctly identify the high wash of the waves, especially at the property’s north end.

6. A Description of Coastal Hazards was Omitted in the CDUA. The applicant failed to describe the shoreline erosion that prompted subdivision of this property in Land Court Decree Application No. 1161, March 2, 2000.

7. The Unimproved Existing Road on the Beach Encroaches on State Property. The CDUA survey map indicates “existing roads”. Portions of this roadway are located on the sandy beach, within the shoreline and on state property. Requiring a certified shoreline would verify this encroachment.

8. Reference to Lepeuli Stream was omitted in the CDUA. The stream channel is a distinct topographic feature. It was not identified in the application or on the survey map. Environmental impacts of grazing in proximity to the riparian zone of Lepeuli Stream were not examined.

9. The NRCS Conservation Plan does not identify the Conservation District (Field 12) for “Prescribed Grazing” (see Enclosure A). This fact was omitted in the CDUA. According to HAR 13-5-42(19): Use of the area shall conform with the program of appropriate soil and water conservation district or plan approved by and on file with the department, where applicable. In the Plan, grazing is disallowed in the Conservation District because the land is unsuitable; it is: a) susceptible to erosion due its slope and shallow soil profiles. b) designated by FIRM Maps as zone VE -- subject to wave action, high‐velocity flow, and erosion during the 1000 year flood.

10. The CDUA did not provide written justification to deviate from the NRCS Plan according to HAR 13-5-42(c). Any deviation from the standard conditions (i.e. HAR 13- 5-42(19) -- described above -- must be supported by a satisfactory written justification stating: (1) the deviation is necessary because of the lack of practical alternatives; (2) the deviation shall not result in any substantial adverse impacts to natural resources; and (3) the deviation does not conflict with the objective of the subzone. No justification was provided. Grazing in Field 12—the 20.7 acres of the Conservation District was not permitted by the NRCS Conservation plan. The applicant has practical alternatives for pasturage within the other 600+ acres he leases. Cattle do not benefit coastal ecosystems.

11. The Brush Management Plan to enhance wildlife habitat fails to identify what species are to be “enhanced”. Brush management as a tool to “eliminate the frequency of trespass transients” that are “camping illegally” is not the purpose of an NRCS conservation plan or a CDUP – that is the jurisdiction of law enforcement.

12. Existing Fauna was not Described and the Wildlife Management Plan was omitted from the CDUA (although it was referred to several times in the application). No list of wildlife species to be benefited is provided in the CDUA. There is no evidence corroborating the applicant’s need for “brush management for wildlife purposes”.

13. Endangered and threatened species were not adequately identified in the CDUA. New evidence regarding the presence of endangered and threatened species needs to be included in this CDUA. An Hawaiian monk seal (endangered species) was born at Larsen’s Beach and 94 green sea turtles (a threatened species) hatched on the beach Fall 2009. Migratory birds of concern – the Laysan albatross – nest on the property. Impacts of fencing and cattle on these species was not addressed in the application. The NRCS Conservation Plan should be updated as well to identify these species.

14. The CDUA Failed to describe Existing Flora and provide general locations and types on a map entitled resources as required in the application. There are a number of threatened medicinal plants species, the ihi, ilima, and pohinahina. The endangered Hawaiian ground cover, ulei, and the native pohuehue are also found in this area. These species will be decimated once cattle are introduced. When pesticides or herbicides are introduced, the gathering of la`au that grow in this coastal area will have to cease because of contamination by proximity.

15. The CDUA fails to comply with HAR 13-5-22 and 23 - in the Limited Subzone, “Natural vegetative plant cover, where disturbed, shall be restored or replaced with endemic or indigenous planting.” The CDUA states that the applicant will remove trees and undergrowth to encourage reestablishment of grasses, however, no grass species have been identified for preservation or reestablishment. Only naupaka is designated for “protection” in the Conservation District but this is the same location where the applicant wants to graze cattle.

16. Tree replacement should be required in the CDUA with a one-for-one replacement of trees 6-inches or more in diameter. The species and size of those trees to be removed and the species and size of the replacement trees should be identified in the CDUA. The backshore is covered with beach heliotrope, naupaka, milo, and false kamani.

17. The CDUA failed to identify the historic, archeological and cultural sites within or near the parcel. The application denied that any Hawaiian habitation occurred on the property after the 1850’s despite readily available evidence that: - There were 35 acres of lo`i kalo agriculture in Lepeuli according to Kilauea Sugar Plantation’s 1932 map. Most were located in the SMA and Conservation District along stream channels or on auwai and next to native Hawaiian habitation (kuleanas).
- The 1835 census recorded a population of 85 adults and children in Lepeuli.
- Kuleana claims for Lepeuli are found at www.ulukau.org
- Known cultural resources in the coastal zone area of the Conservation District include: streams, trails, coral reef, fishing areas, a possible fish trap, historic cultivation areas and house sites, a burial, limu gathering areas, sandy beach, turtle nesting area, native plants and possible fish sighting spots (kilo i`a).

18. The CDUA failed to describe how the proposed project would impact the historic resources and Hawaiian cultural resources, usage and rights in or near the project area. It omitted any discussion of traditional and customary Hawaiian practices for subsistence, cultural, medicinal or religious purposes that take place in or near the project area. It erroneously states that there is no record that the property was being used by native Hawaiians for their cultural beliefs, practices or resources (page 6) as it was under private ownership since the 1850’s. Evidence of kuleana lands and taro lo`i dispute that assertion.

19. Archeological Sites at Lepeuli are not acknowledged in the CDUA. Based on the quantity and significance of finds documented in the archeological inventory surveys for the adjacent coastal properties, a study should be required. A Kaua`i resident reported to SHPD on December 17, 2009 a new archeological site on the property having been exposed by erosion from recent high wave events and storm runoff. A complex of rock walls, terraces and a possible subsurface house overlooking the Lepeuli Stream channel have also been reported by residents and photo documentation is available.

20. There is no Cultural Resources Assessment in the CDUA. Practitioners of Hawaiian culture who live in, have experience with, or have knowledge about the affected district were not contacted for this application. Based on historic documentation about coastal habitation in Lepeuli and the well-known Ka`aka`aniu Reef which is a valued resource for throw-netting, spear-fishing, pole fishing, seaweed harvesting, etc., a cultural resource assessment is warranted.

21. Traditional and customary native Hawaiian rights exercised in the Conservation District will be affected or impaired by the proposed action. By law, such traditional and customary rights shall include, but not be limited to the gathering of hihiwai, opae, o`opu, limu, thatch, ti leaf, aho cord, and medicinal plants for subsistence, cultural and religious purposes.
a) The State and its agencies are obligated to protect the reasonable exercise of customarily and traditionally exercised rights of Hawaiians to the extent feasible;
b) The agencies are obligated to make an assessment of impacts upon traditional and customary practices of native Hawaiians that is independent of the applicant;
c) The independent assessment must include the following:
(1) the identity and scope of “valued cultural, historical, or natural resources” in the area, including the extent to which traditional and customary native Hawaiian rights are exercised in the affected area;
(2) the extent to which those resources – including traditional and customary native Hawaiian rights will be affected or impaired by the proposed action; and
(3) the feasible action, if any, to be taken by the agency to reasonably protect native Hawaiian rights if they are found to exist.

22. No legal basis is provided for the assertion that no prescriptive rights accrue over lands registered with the Land Court of the State of Hawaii. It is in the interest of the public, that the State provide definitive legal documentation as to whether its right to the traditional and customary trail has been relinquished.

23. Consideration of Traditional Hawaiian Values and Native Hawaiian Access was Omitted from CDUA. HRS 205A-2(b)(2)(A) establishes the objectives and policies of the coastal zone management program and provides that the objectives should, -Protect, preserve, and where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture.- Evidence of settlement patterns as of 1932, demonstrate that the coastal area was inhabited by Hawaiians. And, the coastal alaloa was the means by which they would walk from lo`i to kuleanas. The applicant’s denial of any native Hawaiian cultural resources contradicts testimony of neighbors, community organizations, and cultural practitioners. Attached (Enclosure B) is the March 2, 2007 letter from Curt Cottrell, NAH Program Manager to Patricia Hanwright, the adjacent property owner in the ahupua`a of Ka`aka`aniu, stating that ”DLNR has determined that the historic trail identified on registered maps is still owned by the State pursuant to Chapter 264-1, Hawaii Revised Statutes.”

24. The CDUA failed to describe the traditional use of the “existing trail” behind the beach which is identified as “existing trail” on the CDUA survey map.
a) Hiranaka Surveyor’s analysis of Registered Map No 432 dated 1833, depicts the approximate location of Koolau Road. This is clearly not the coastal trail when compared with the government Survey Registered Map No 1395 of the Island of Kauai, dated 1878 (submitted by SC) documenting the coastal alaloa and Koolau Road. Both run parallel to the coast and Koolau Road is mauka of the coastal trail.
b) Identified as State Archeological site No. 50-30-04-1034, the alaloa is “an important access route in both traditional and historic times”.
c) The statement that the existing trail “appears to have been created” by current day beachgoers is contrary to historic evidence. This coastal right‐of‐way provided native tenants and travelers access between kuleana lands, cultivating fields and ahupua`a linking the past to present use. The coastal trail through Lepeuli, which connects the adjacent ahupua`a of Ka`aka`aniu and Waipake has been used continuously by cultural practitioners and the public.
d) Fencing will suppress, limit and restrict native Hawaiian rights to use the traditional and customary trail for access to and along the shoreline for subsistence gathering of food and plants for cultural and medicinal purposes.

25. The existing County right-of way is currently under scrutiny by county officials due to several discrepancies. An apparent boulder fall on the original trail decades ago and a boundary fence blocking access to that trail are prompting the county to conduct a survey to verify whether the existing public trail alignment corresponds to the metes and bounds in the deed for the county’s purchase from Waioli Corporation in 1979. The path currently maintained by the county is apparently sited on Waioli’s private property. Sierra Club Kaua`i Group recommends that the OCCL staff and Board members come to Kaua`i for a site visit to fully understand the threats and impacts to the resources that the Coastal Zone Management Act seeks to protect.
The applicant has not met the burden of demonstrating that the proposed land use is consistent with the criteria of HAR 13-5-30(c). Procedurally, many of the requirements prescribed by HAR Chapter 13-5 are missing from the CDUA. Furthermore, the facts would have been flushed out had a Board permit been sought instead of a Department permit which does not provide for a public hearing. As noted in SC’s October 23, 2009 letter, a hearing is warranted based on significant impacts and public interest.
Lastly, we find that the November 11, 2009 letter to SC from Ms. Nishimitsu, the applicant’s representative, is wholly unsatisfactory in addressing the concerns outlined in our letter to OCCL on October 23, 2009. Procedurally, the department should not have to rely on information that is incomplete, inaccurate or false. And, if approved, the permit may need to be modified, suspended or revoked after-the-fact in accordance with HAR 13-5-42 (11).

It is paramount to preserve the integrity and fragile nature of the Lepeuli coastal resources, species and cultural assets -- they deserve the conscientious stewardship afforded in Conservation District permit regulations, in which this application has fallen short. CDUA KA‐3525 should be denied.

Sincerely,
Judy Dalton and Rayne Regush
Sierra Club Executive Committee
Kaua`i Group, Hawai`i Chapter

cc: Ron Agor, Kaua`i Rep, BLNR
BLNR Members
Bob Schleck & Board Members, Waioli Corporation
Mayor Bernard Carvalho
Kaua`i County Council
Ian Costa, County of Kaua`i Planning Dept.
Kai Markel, OHA
Lex Riggle, NRCS
Robert Harris, Sierra Club Hawai`i Chapter

(PNN) ABREW SUCCEEDS IN OBTAINING PROSPECTIVE B&C MEMBERS’ APPLICATIONS

ABREW SUCCEEDS IN OBTAINING PROSPECTIVE B&C MEMBERS’ APPLICATIONS

(PNN) -- The county council finally complied with an Office of Information Practices opinion and the county charter last week in making applications of prospective board and commission (B&C) member available to the public before council confirmation and asking them about their political party affiliation.

Open and good governance activist Rob Abrew- who has battled the council for months to get them to comply- said he was pleased to be able to get the applications in a timely manner although he continued to question why the council had to wait for the administration’s B&C office to do the job of redacting certain confidential information contained in the applications such as addresses and phone numbers.

Although the B&C office did draw up a new application form to comply with the charter provision that B&Cs contain no more than a bare majority of any one political party and nominees did fill out that section of the new forms, the county apparently still does not have a way to confirm that the answers were truthful.

It is unknown whether the county will attempt to verify the party affiliation, if any, of the new board members. According to Abrew, who has reviewed the applications, almost all of them answered that they were not a member of any party.

Party membership in Hawai`i is strictly the domain of the individual parties and is optional on the part of voters. The lists of members is not considered public information under state sunshine and open records law.

Once someone “signs a card” for membership in one of the two major parties they are considered members for life unless or until they act to leave the party or change affiliation.

That has meant that many in Hawai`i may not even be aware of whether or not they are members, including the tens of thousands who joined the democratic party to vote in the Obama-Clinton presidential primary held in 2008.

See the following for PNN’s past coverage of Abrew’s efforts:

Monday, January 25, 2010 (PNN) COUNCIL CONFIRMS B&C NOMINEES WITHOUT RELEASING APPLICATIONS, REFUSES KAWAHARA DEFERRAL REQUEST

Monday, January 11, 2010 (PNN) ABREW FILES WRITTEN RECORDS, CLARIFICATION REQUESTS WITH COUNTY CLERK AT OIP’S URGING

Friday, January 8, 2010 (PNN) COUNCIL IGNORES, FLOUTS OIP IN CONFIRMING BOARD, COMMISSION MEMBERS

ONE WAY OR ANOTHER

ONE WAY OR ANOTHER: Watching yesterday’s council meeting we feared the council as a whole might have to march en masse to the hospital after their session to have the same kind of shoulder surgery we recently endured due to the way they twisted themselves into pretzels patting themselves on their own backs over the increase in ratings for the $120 million dollars in bonds they plan to issue on March 3.

And indeed, credit where credit is due. It will mean that the county will have to pay a lower interest rate to service those bonds saving the taxpayer money over the years. In addition we’re borrowing enough to cover outstanding bonds that we’re now paying off at a higher interest rate.

As the Honolulu Advertiser wrote yesterday:

Standard & Poor's Ratings Services has raised it's rating on Kaua`i County outstanding general obligation bonds to AA, it's third-highest rating for municipal bonds.

The ratings agency also assigned an AA rating to the county's $120 million general obligation bond sale that's expected in early March. Standard & Poor's said the ratings upgrade related to Kaua'i's strong financial performance and its reserve position.

Fitch Ratings assigned an AA- rating on Kaua`i bonds that will be sold, and upgraded its outstanding general obligation debt to AA- from A+.

The council touted how they had done it by fully funding their obligations to the county retirement funds unlike the other counties and fixed the 19 different “problems” a required audit found a couple of years back.

But one thing barely mentioned- and for good reason- is that the primary reason for the better rating is that Kaua`i has been operating with huge surpluses for many years.

Now don’t get us wrong- we’re not one of those “lower my taxes” wing-nut tea-baggers, especially when it comes to the progressive types like property and income taxes. We often joke that the reason we don’t run for office is they we favor more government- especially fiscal and environmental regulations - and higher taxes to fully fund safety net and social spending.

One of the problems has been that there is a question of exactly how much money is in this slush fund awaiting appropriation- a question that has never been answered despite the queries from council watchers from Glenn Mickens to Ray Chuan over the last 20 years.

Trying to find out from that shell game they call the annual financial audit has been an exercise in frustration according to those with the skills to try.

Another is that is isn’t spent on social programs... it just kind of sits there like a slush fund ready for appropriation whenever someone convinces the council to spend it.

But the main problem in all this is that at the very moment the council was claiming to be flush out of one side of our collective mouths the administration was talking out of the other side while testifying before a legislative committee in Honolulu where they are considering stealing the counties’ shares of the transient accommodations tax (TAT) which could cost Kaua`i around $15 million this year.

As the Advertiser reported this morning, at the hearing

(Kaua`i Administrative Assistant) Gary Heu, administrative assistant to Kaua`i Mayor Bernard Carvalho Jr., said they would have to raise property taxes to a level necessary to offset the TAT losses.

So are we flush enough to achieve a better bond rating because of our vast surpluses or are we so broke that losing 10% of our resources will cause an increase in our property tax rates to fund the same level of services as last year?

All we know is you can’t have it both ways.

ON HIS OWN TERMS

ON HIS OWN TERMS: There are two worlds in Kalalau Valley. One is populated by tourists hikers and campers. The other is inhabited by the “outlaws”... some of the best people you’d ever want to meet.

Rodney Ahn was one of them and that’s where we met him about two decades ago.

Those self proclaimed “outlaws”- who, like the “nitpickers” at county council meetings take pride in the pejorative name given them by the authorities who harass them and chase them down- are the heart and soul of the valley and without them the valley would suffer tremendously.

They are the ones who are always there- except for when they become all but invisible upon the invasions of the conservation enforcement agents who “sweep” through the valley now and again- and remind the real transients to be respectful of not just the physical environment but the more intangible elements with which they co-populate the hills.

We met Rodney there sitting across a circle, the two of us playing the only two guitars in the valley, reeling off Elton John songs- of which Rodney, despite being a local boy, somehow had an encyclopedic knowledge.

We saw him back there over the years and also we’d see him around town. We ask “whatcha up to Rodney” and he’d say “just got out of the valley and I’m headed back in as soon as I can”.

He’d usually find some work, buy some supplies and return to the world he loved.

Rodney and the other outlaws have found something back there that is impossible to find anywhere else, at least for them. It’s not always clear what that is as we live out our lives here on the outside. But every time we go back there we remember what that is and what drives Rodney and the other handful of outlaws to return over and over despite the dozens of tickets and even jail time some receive for daring to live their dream.

We’ll always envy Rodney. As his brother was quoted as saying in today’s newspaper

(Rodney) told him, “‘That’s where I wanna be and that’s where I want to end up.’ So I guess he was happy.... He got all the choices he wanted. Maybe we should all get that lucky,”

It was a shock but not a surprise to find out that he left this world from his camp in the valley.

Even those who spew venom at the “outlaws” have said they envied Rodney.

See ya in the valley brother.

CANIS CANTANKEROUS

CANIS CANTANKEROUS: Having spent two years (and four days) at this daily, frothy-foamy hydrophobic-hysteria we’ve come to appreciate that people are entitled to their own opinions but they’re not entitled to their own facts.

That’s been pounded into our brain over and over as we’ve observed “the Kaua`i way of doing things” inexpertly performed by our various and sundry county entities- ones who are intent on not just reinventing the wheel but doing so to produce a square one derived through the limited self-interest of the individuals involved in the decision-making

The archetype of this warped behavior has been a Board of Ethics (BOE) made up of the ethically-challenged, carving out exemptions to conflict-of-interest laws for their own conflicts-of-interest with logic only the truly mentally-challenged could appreciated.

We’ve written extensively on the Kaua`i County Charter- section 20.02(d)- while a stream of dedicated citizens bang their heads against the wall and still the board continues to try to “carve out exceptions”, the latest for (run-to-the-dictionary) “eleemosynary” (it means charitable) activities.

But while we have felt like we were screaming in outer space someone in higher places was seemingly listening and today, in covering the latest machinations of the BOE, local newspaper reporter Mike Levine presented sections of a State Ethics Commission letter sent to him by State Senator Les Ihara that makes you wonder what these BOE dolts and their amateurish lawyers have been doing for the last year.

It states plainly what we’ve been writing in literally dozens of articles over the past two years- there is a purpose in the law that forbids county officials from appearing on behalf of private interests before county boards, commissions and agencies and it doesn’t matter what kind of cockamamie excuse you have for doing so... even if you are “doing good work”.

Levine writes:

In March 2003, the Hawai`i State Ethics Commission told Sen. Les Ihara (D-Kapahulu, Kaimuki, Palolo) that serving even as an uncompensated director of a non-profit corporation does create a “financial interest” because the Hawai`i Revised Statutes define that term to include directorship in a “business,” and define business to include a corporation, whether operated for profit or not.

“The term ‘financial interest’ pertains, of course, to having an actual monetary interest in a business, and so forth, but also includes situations where one is not receiving actual compensation or monetary gain, but the ‘interest’ in the matter is so strong as to reasonably have a possible effect upon one’s decision-making as a state official,” states the letter, provided unsolicited by Ihara to The Garden Island. It also identifies fiduciary responsibilities and the potential for a lawsuit as financial interests not generally considered by the general public.

“While such service may appear to be merely the providing of volunteer services as a good citizen, in reality, under the law, there are substantial and real financial interests that a member of the board of directors of a non-profit corporation has, whether the individual is compensated or not,” the letter concludes.

Though the state Ethics Commission is not really a controlling authority in that they rule on the activities of state officials, you’d think as a political subdivision of the state the county would take a hint- or at least check with the grownups on how they do it

The fact is that 20.02(d) is a direct challenge to the crony-crammed board and commission system that is populated by a politically connected cadre of corrupt colleagues, carefully chosen by Carvalho’s contemptuous cabal, concentrating on conniving and circumventing conventional codes of conduct.

The fact is that this “interpretive” rule is only needed for those who want to interpret the rule out of existence- it presupposes that they’re entitled to allow their opinions to drive the facts.

And when it comes to county governance that IS the Kaua`i way.

ALL ABOARD

ALL ABOARD: Almost every parent has said it to their kids at one time or another when trying to protect the implements they use for work- “this is not a toy- it’s a tool. Leave it alone. If you play with it you’ll break it and I won’t have it when I need it.”

Someone should have said that to the county council and other department heads last Wednesday when daddy told the family they was going to have to buy a helicopter to take care of us all and of course everyone wanted to use it to fart around in.

Papa Bob- Fire Chief Bob Westerman- puts up with a lot. Generally he’s one of the only people in county government that comes before the council prepared- he knows his business, answers all questions professionally and completely in a transparent open and honest manner.

On Kaua`i this is unheard of behavior.

So after Bob made the case for the fact that we seemingly need this tool for firefighting and search and rescue- to replace the current system of hiring private companies on an “as needed” standby basis- it was time for the kids to think of all the ways they could use it, all of which would for all intent and purpose make its use for emergencies impossible.

The session was pretty well described in the local newspaper- where the two articles need a search and rescue of their own this morning since they’ve apparently disappeared from the web site- with the council suggesting that everyone from the planning and pubic works departments could use it for things like mapping and inspections and Police Chief Perry saying he wants to go joy riding to look for pakalolo based on a “hot tip” or to harass protesters if the Superferry returns.

The editorial in the paper, while mainly criticizing the proposed purchase based on the expense and the timing of the appropriation- for a budget that is guaranteed to come up way short this year- did finally refer to the main bugaboo, saying:

And if county officials are selling this to us as a safety necessity, the helicopter must be reserved for such use in a centralized location. If a fire breaks out or some other emergency situation arises, we should have our chopper and pilot ready to go at a moment’s notice.

We shouldn’t have to first track down where the bird is — whether it’s the police using it for a green harvest mission, the film commission using it to give some producer a tour or the planning department checking for grubbing violations — and then re-route it, refuel it, reload it and embark on the emergency task at hand. This could present a dangerous situation that flies in the face of county officials who have touted improved reliability and response times if we had our own chopper.

You’d have thought the council would have thought of this but it was not even a consideration. Instead it was “ooo- we could use it for this” and “ooo we could use it for that”. At one point someone even mentioned using it to fly county people to Honolulu for meetings, attempting to use the increased demand from the kids who wanted to play with it to justify the expense.

As it turns out the FAA has been on our ass for years for relying on contracting with local tour helicopter owners to do our search and rescue making training impossible. But despite the fact that it was reported a couple of years back that local fire and police departments across the country were being given helicopters they didn’t even need or want through homeland security grants, we missed that boat and now can’t seems to line up a grant... at best we’re looking for a grant for the first year’s payment.

However the main thing that everyone is failing to see is that, as happens many times due to living on an island with a small population, we’re trapped from the start by our economy of scale and, like most jurisdictions we’re going to need at least two helicopters to do the job.


Helicopters need maintenance- and lot of it. Not just to fix it when it needs repair but for scheduled maintenance and even scheduled engine rebuilds. That means times when it cannot be used... and of course fires and people who need rescue don’t wait until it’s convenient.

In other places neighboring communities can back each other up during down time, something impossible to do here where we’re faced with one not being enough but two being way too much.

According to Aviation Attorneys.com

The inspection, maintenance, and overhaul of aircraft are never-ending endeavors that include many people and teams of people to accomplish and maintain...

Aircraft maintenance checks should be performed periodically after a certain amount of flying time or length of time from the last check. They are broken down into four periodic maintenance checks by frequency and thoroughness of check. The more routine and frequent test should be done about every month but can vary according to the cycle of takeoffs and landings or the length of time from the last check. It is usually performed overnight at an airport gate. The next check is done roughly about every three months. It also can vary according to flying cycle or time from last check. This check is normally conducted at an airport gate. The next periodic maintenance check is more thorough and is performed in a hanger. It is done every twelve to eighteen months depending on the aircraft type and flying cycle frequency as well as other factors that may require the check sooner.

You get the idea.

Even if it were for the exclusive use of the fire department- and possibly related civil defense disaster services- we’d still have to have those individual contractors we have now standing by for when the chopper is unavailable.

If you really want a good laugh check out the tape of last Wednesday’s meeting for some of the “suggestions” from the council.

It’s amazing the way daddy Westerman puts up with these bozos. It was probably all he could do to refrain from reminding the boys to keep their grubby paws off his tool.

CHOKIN’ ON THOSE BONES:

CHOKIN’ ON THOSE BONES: Today’s follow-up on a for-the-most-part erroneous January 15 article in the local newspaper that has left the community- with the exception of our and Joan Conrow’s readers- thinking that Mayor Bernard Carvalho had acquiesced and removed the bike path from Wailua Beach does one thing.

It answers affirmatively the question of whether Carvalho and his administration has heard the old joke about ascertaining that their lips are moving in order to tell if they are lying.

They seemingly live by the motto “if you don’t speak no one can accuse you of deceit”.

Though the matter has gone from clear as mud to clear as muddy water it’s not as though it wasn’t a valiant effort on the part of ace reporter Mike Levine who seemingly couldn’t get anyone to give him a straight answer and couldn’t even get the protesters to admit they were duped by hizzonah.

Once again the headline is somewhat unclear in saying New path route to straddle shoulder, sand because, as we wrote the Monday following the original article, the definition of the “shoulder” is in question- it the shoulder the paved part or is there a shoulder” that’s on the sand? And what does straddle mean in that context? And what exactly does “straddle” mean in this context?

The lead seems to make it clear at least that:

A concrete multi-use path will still sit on the sand dunes in Wailua even after last month’s compromise moved the proposed route from the county park to the state highway right-of-way, officials recently confirmed.

But the next paragraph is again somewhat baffling:

“Based upon the preliminary plans for the path, the maximum distance from the edge of the current pavement out to the outer edge of the new path will be between four and five feet,” state Department of Transportation spokeswoman Tammy Mori said via e-mail after consulting with Kaua`i District Engineer Ray McCormick.

It would seem to say that part of the path is going to be where the paved shoulder currently sits and go to up to five feet onto the beach. But what the rest of the article says indicates is that no one but Mori would talk to Levine and she might not be too sure of her facts.

That’s followed by a roundabout quote from Building Division Chief Doug Haigh- one that had to be obtained through an email from the county’s public information officer Mary Daubert rather than through a conversation with Haigh himself.

And no wonder- it’s so confused and uninformative, it begs a few follow-up questions, ones which Haigh was of course unavailable to answer.

First he says:

“Along the middle of Wailua Beach, the path will essentially straddle the location of the existing rock wall (to be removed),”

The “middle” of Wailua Beach? The middle of what? And it does not say whether it will be fully on the beach since the rock wall is on the beach, not the paved shoulder.

Another key of the original deception was the use of the word “shoulder” without referring to the paved part so that when they said it was on the shoulder it was actually on the beach sands. When combined with the term “right of way” it seemed to indicate the paved shoulder.

But Haigh’s next statement confirms our suspicion that the use of the term “right of way” was being used by Carvalho and his mouthpiece Beth Tokioka to confuse people.

“The Kuhio Highway right-of-way is approximately four to five feet makai of the rock wall. Some vegetation may be removed and some earth shoulder may need grading.”

That confirms that the right of way extends onto the beach so that statement itself can’t be right either since the “right of way” includes all of the highway. To say the “right-of-way IS approximately four to five feet makai of the rock wall” can’t be true- only that it “extends” to that point.

We pick this apart to show the obvious attempt by county officials to try to cover for Carvalho’s and Tokioka’s attempted bamboozle by using confusing terms and seemingly contradictory statements.

Also note that Mori made her statement “via email after consulting with Kaua`i District Engineer Ray McCormick”. That means McCormick- who when cornered was quoted by participants at the mayors meeting with dissidents on Thursday Jan. 14 as saying the bike path would start where the pavement ends- also apparently wouldn’t take calls or answer Levine’s questions, pushing the question “upstairs” to Mori

What exactly did he tell Mori? And why was it different than what he told people at the meeting? Did Mori get it right? Did she even ask the question Levine wanted answered?

Who knows- we’ve danced this reporter’s dance before and can recognize it when it gets into print. Obviously Levine was stymied at every turn in attempting to get to the truth, as evidenced by the fact that it took him almost a month to get this much.

The mere fact that neither Haigh or McCormick- nor apparently Carvalho- would speak to him directly tells you that all is not as it appears and someone is fudging something.

And to make the whole thing even more confusing there was another paragraph with more of Mori’s statement.

(T)he state Department of Transportation is still planning to widen the road to four lanes. The widening project will add one 11-foot-wide lane to the Lihu`e-bound side of the road and a turn lane for Kuamo`o Road, and all the widening will take place on the mauka side, Mori said. The maximum distance from the existing edge of the pavement to the furthest point of new pavement will be approximately 15 feet. (emphasis added)

The question is of course does that refer to the “existing edge of the pavement” on the mauka side or makai side? To say “all the widening will take place on the mauka side” obviously isn’t true since she already admitted that it will be widened onto the beach.

Don’t forget- Mori is just a spokesperson, not an engineer and apparently has a very loose grasp on what is actually happening.

Well at least the wider community now knows that the bike path was not removed from the beach. But it’s still unclear how much of the beach it will take. Is it four or five feet?... is it 11 feet?.. is it more?

Don’t expect the truth from Carvalho’s lips. When they move they apparently speak only the words of his spinmeister Tokioka , warbling “Together We Can... Hoodwink Them All”.

--------

We’ll be taking a long weekend- unless something sets our hair on fire we’ll see ya Monday.

HAHAHAHAHA

HAHAHAHAHA: Shadenfreude was never as sweet as with the news that the owners of one of the gaudy obnoxious gated homes in Tom and Bonnie McCloskey’s and Justin and Michelle Hughes’ land-raping “Kealia Kai” ag subdivision are apparently being forced to auction it off for a pittance.

The Concierge Auctions’ Kaua`i Luxury Auctions web site says the auction for the home at 4380D Paliku Place- which was previously offered for $9,995,000- has a “reserve” of $2,000,000 and gives a pre-sale estimate of $3,000,000-$7,000,000 although there is no minimum bid..

In this market it could well go for a song.

The development became a symbol for everything Kaua`i people hated in the 90’s when the Colorado developer came here and bought the entire Kealia Ahupua`a for a ridiculously low $17 million- or less since that was only the asking price- while the community and even county and state government was considering how to purchase and preserve it as a park.

Although the land had long been thought to be Hawaiian “crown” land- or stolen land as it is known in kanaka circles- that had merely been leased to Makee Plantation by King Kalakaua in the 1880’s, no one ever challenged the sale or deed.

McCloskey tried to turn the entire makai-of-the-highway portion from Kealia to Anahola into a private beach community and block all public access.

The Sierra Club and a group called “Friends of Kealia” threatened a lawsuit and McCloskey agreed to move the homes back from the edge of the bluff to a place inland enough so that they could not be seen from the beach areas.

But he did that in exchange for a promise from the Sierra Club and the group that they would go away d not try to stop him from doing anything else he wanted to in Kealia, a decision many decried since the only ones with deep enough legal pockets to challenge him was the Sierra Club Legal Defense Fund, as EarthJustice was called at the time.

The project went forward due to the greasing of the wheels by friend of the McCloskeys, then-Mayor Maryanne Kusaka who had been rumored to have been given a plot and home in the subdivision although no evidence could ever be found of any corrupt transaction.

Could this be the house that was built for her but had to be withdrawn not just because of the scrutiny but due to Kusaka’s losses in the ill-fated renovation of Coca Palms, as PNN has exclusively reported?

Maybe, maybe not- we’ll probably never know for sure. The current listed owners are Patricia Dzubera and Richard E Nelson of 2115 S Ocean Blvd Apt 16 Delray Beach Fl 33483-6487.

According to many who have seen the area in mauka Kealia McCloskey has developed it into a series of luxury lots and homes raping the land there and getting out from under the grubbing and grading ordinance under the guise of an Agricultural Conservation Plan that was approved by the East Side Soil and Water Conservation Board which gives votes to its members like McCloskey based on the acreage each members owns.

Traditional access to the mauka area in Kealia- including access to the Waipahe’e Slippery Slide via the “landing strip” past the Spaulding Monument- has been eliminated by McCloskey after the planning department under Kusaka failed to require any in exchange for the subdivision.

The web site for the auction- replete with pictures and descriptions of the house and views- advertises:

Premier Estate Residence on nearly Six Oceanfront Acres, & Adjacent Five Acre Homesite

Selling at auction to the highest bidder on March 8th and located in the secluded subdivision of Kealia Kai, this exclusive property and premier homesite are pure tropical luxury living at its finest, offering residents unsurpassed privacy, extraordinary panoramic views and convenient beach access. From the breaking waves on white sand beaches to the deep blue ocean and vast skyline, Kealia Kai, nestled between the Aliomanu Mountains and the Pacific Ocean, is the gateway to the North Shore, one of the most popular and pristine areas of Kauai.

Nestled between the Aliomanu Mountains and the Pacific Ocean, this private, premier property in Kealia Kai is perched atop Paliku Point (Paliku means “vertical cliffs”), offering stunning panoramic views. From the breaking waves on white sand beaches to the deep blue ocean and vast skyline, Kealia Kai is the gateway to the North Shore, one of the most popular and pristine areas of Kauai. Pure tropical luxury living at its finest, this secluded subdivision offers residents unsurpassed privacy, extraordinary views and convenient beach access. Follow Kauai Path, winding along the shoreline, south through Kealia and to Kapa`a, and north to Donkey Beach.

Recognized as one of Hawaii’s finest architects, Alwyn Trigg-Smith blends contemporary design with a hint of tropical style in this luxurious property, resting on nearly six oceanfront acres. Offering three en suite bedrooms, two flex rooms, two half baths and a detached guest house with full bathroom, kitchen and garage, the layout is both expansive and functional.

You can click here to view the area on google maps.

THE BITE IN THE BARK

THE BITE IN THE BARK: About 10-plus years ago when the various electric companies started a state-backed program offering low or even zero-percent interst loans to install solar hot water heaters we started asking around at every opportunity with state legislators what the possibility was of doing the same for the then-nescient photovoltaic systems.

Just like the hot water systems the loans would be designed to pay for themselves in electricity savings over the life of the systems and eventually produce “free” power.

Every year it was a no-go mostly we found, after a few years of persistence, due to the seemingly counterintuitive opposition of the solar installation companies that reasoned that the small number of existing companies already had cornered the market and that an influx of state money would spur endless new competition.

This past fall though we heard the scuttlebutt that a plan for a $50 million program would be introduced in this year’s legislature.

So the article in today’s local newspaper noting the program came as little surprise.

But not so those almost absurdly devilish details.

Rather than channel the loans through the various eclectic companies- KIUC here and HELCO in the other counties- like the proven solar hot water heater program, the scheme will try to force the counties to insure the state will get their money back by tacking the repayment onto participants’ property tax bills.

Though the bill- the one that survives at this point- doesn’t say so in so many words it’s obvious who will get stuck holding the bag should repayment not be forthcoming- the counties, who are solely given the right to tax property in Hawai`i.

We presume the state is selling this as a way to insure that the loans are more likely to get repaid since people are subject to losing their property if they don’t pay their property tax and individuals would have to be taken to court to collect loans. But of course the state, through the electric companies- could also loan to individual homeowners with a provision that the property serve as collateral and a lien could then be placed with non-payment.

What the counties are being asked to do though is take on the responsibility for repayment when and if an owner who has taken out one of these loans falls into arrears on their property tax, even if it’s for unrelated reasons.

The state is assuming that the counties are a collectively a bunch of idiots here, especially when being asked to do a favor for a legislature that is threatening to take way 10% of their budgets with proposed stealing of the counties’ share of the transient accommodations tax (TAT). which is supposed to pay for the impact of tourism on our state-mandated and county-paid infrastructure including police, fire and many other services.

While the program- which will include other alternative non-fossil fueled energy systems like wind as well as energy efficient home improvements- is a long ignored no-brainer whose time came years ago, the way the state is going about it is a dishonest attempt to screw whomever they can for their shortsightedness over the years now that the sh-t has hit the fan.

We’ll see how stupid and subservient our county leaders are here. Will county governments be the ones left holding the bag when defaults comes? Or will they be able to leverage not only a guarantee from the state that they won’t be responsible should the owner fail to pay but maybe in addition that the state will guarantee our share of the TAT for the foreseeable future?

Can anyone here play this game? We’ll soon find out. The bill’s status is that it was up for decision-making in committee this morning but further action will depend on whether the game the county plays is hardball.

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.

LYIN’ DOG AND SLEEPIN’ BABY

LYIN’ DOG AND SLEEPIN’ BABY: Our Monday ridicule of the county’s explanation for why they paid $7.5 million in the Ka Loko Dam tragedy lawsuit while the state only paid $1.5 million elicited two quite opposite responses from readers.

While one close to the story said we pretty much got it right another challenged our interpretation asking for specific references.

In attempting to debunk County Attorney Al Castillo’s contention that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” and show it had everything in the world to do with culpability we noted that there had to be some kind of gross misconduct or even malfeasance on the part of the state to override any general immunity.

So we turned to the Hawaii Dam and Reservoir Safety Act (DRSA [§179D]) and found yes, the state has a pretty much blanket immunity regarding dams and reservoirs in that “no action or failure to act under this chapter shall be construed to create any liability in the State” [§179D-4] .

And yes that can be overridden by “willful acts or negligence by the board or its agents” [§179D-6] in certain situations- the precise situation that occurred between the state and the county in failing to “enter upon such private property of the dam or reservoir”.

In other words it’s even worse than we suspected in terms of culpability of the county because it seems it was indeed the county’s willful inactions that precipitated the state’s liability in the case.

Those that sat through the marathon year-and-a-half “Developers Gone Wild” Kaua`i County Council grubbing and grading investigations will remember that a good deal of it dealt with asking then-Acting County Engineer Ian Costa and Chief of Engineering Division Wally Kudo why the heck they didn’t just go onto Jimmy Pflueger’s (and Tom McCloskey’s) properties and inspect them.

Though they had the legal right to do so they claimed it was a lot more difficult for them to do it than the state, needing assistance from the county attorney’s office and the courts.

At that point members of the council got them to say they would try to work with the Department of and Natural Resources (DLNR) which oversees the DRSA and is specifically “authorized to enter upon such private property of the dam or reservoir as may be necessary in making, at the owner's expense, any investigation or inspection required or authorized by this chapter”.

Presuming that, under pressure from the council- and despite the interference of then Mayor Maryanne Kusaka who according to an internal memo from one of Kudo’s underlings squelched any action against landowner Jimmy Pflueger- Kudo and Costa contacted DLNR to have them assist them, and again presuming that the DLNR failed to assist them- as evidenced by the fact that it eventually took the federal EPA to come in and enter the property- it would seem that the state’s liability consisted entirely of a small ancillary amount of grossly negligent culpability in the county’s malfeasance and misconduct.

That, if anything, makes Castillo’s contention that

While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us

even more absurd because it would seem that if anything it was the state that gambled that, by virtue of having even “deeper pockets” than the county, paying their relatively small share was better than trying to show it was entirely the county’s fault in that any “negligence” was primarily purely driven by the county’s actions and inactions.

The responsibility for the whole debacle- and therefore the deaths of the seven people who died primarily due their concerted effort to obstruct justice- seems to sit squarely in the laps of Kusaka, Coast and Kudo.

According to the DRSA [§179D-8b]:

Any person who negligently or after written notice to comply, violates this chapter or any rule, order, or condition adopted, issued, or required under this chapter, or knowingly obstructs, hinders, or prevents the department's agents or employees from performing duties under this chapter, shall be guilty of a class C felony.

Why the trio are not facing criminal charges along with Pflueger is a question that must be addressed by Kusaka’s fellow Republican Linda Lingle’s Attorney General Mark Bennett who is selectively and personally prosecuting Pflueger in a trial scheduled for this summer.

But the question one person who knew the seven who died rhetorically asked us recently- “how does Kusaka sleep at night”- is one only she can answer.

Only a true sociopath could.

POND SCUM VS. TOXIC SLIME

POND SCUM VS. TOXIC SLIME: The state house’s disgraceful action in denying civil unions was made more unpalatable by the repugnant voice vote that tried to hide their positions.

But while most just accepted the bamboozle of many of the assorted scumbags, one reporter, Adrienne LaFrance of Honolulu Weekly (thanks to Larry Geller for the heads-up) took it upon herself to find out who voted which way by a simple method – she asked them.

Of course North Shore Representative Mina Morita had the strongest statement of all as to why she opposed the vote to indefinitely postpone action saying:

“I voiced my ‘no’ to the motion… To say that I am disappointed and ashamed on what happened on the House floor would be an understatement.”

That was obviously a truncated version a post on her new blog which said:

The vote on House Bill 444 has been postponed indefinitely. To say that I am disappointed and ashamed on what happened on the House floor would be an understatement. I believe the public, whether one was for or against civil union, deserved a definitive closure on this issue. I have been clear where I stand on this issue. I support civil unions. The posturing on this bill, by not correcting a defective date and all the procedural maneuvering, has been shameful. We were not leaders today.

As to the other two Kaua`i reps, well known bigoted racist Jimmy “Can’t keep his pants on” Tokioka was at least straightforward in his assholedom saying simply

“I voted yes.”

But of course we knew he would based on his opposition last year.

For the worst in mealy mouth bullsh-t responses we’ve gotta give the prize to West Side Rep. Roland Sagum. After voting against the original bill last year he had the nerve to say:

“People in the gallery wanted a roll call but it went down as a voice vote. It wasn’t because we are trying to hide anything… I don’t want to tell you, though. I’m trying to honor the process.”

Can we please do something about ditching these two embarrassments next November? Somebody... please... if you live in one of those two districts run for the state house. These guys have had a free pass long enough.

ON MONKEYS AND WEASELS

ON MONKEYS AND WEASELS: The music is playing and to no one’s surprise one of the oldest if not the goodest of boys Ron Kouchi has publicly announced he is circling the state senate seat being vacated by Gary Hooser, who is running for lieutenant governor.

Despite what many might think long time Councilmember and sometimes Chair Kouchi is anything but a shoo-in after his recent identity crisis blew up in his face when he lost his first council election after one term that followed a hiatus when he lost his first race ever to Bryan Baptiste in 2002 when the “developer’s best friend” suddenly attempted a chameleon-like rebirth as a slow growth, environmental champion- in an unsuccessful attempt to end the Republican reign of Maryanne Kusaka.

Kouchi lost the mayor’s race because, despite the utter disgust with Baptiste among much of the populace his attempt to corral the “JoAnn Yukimura vote”- while she was absent from the political scene following her mayoral loss in 1994- was greeted with more than cynicism and derision when many kept their promises to themselves to never vote for Kouchi, who was the main thorn in the side of Yukimura during her six year administration.

The result is that Kouchi’s mostly local base of support now sees him of something of a traitor and opportunist who abandoned them for the “haole vote” while the controlled-growth crowd had their suspicions of his intent confirmed when he went to work for the developers of whatever-the-heck they’re calling the Westin these days after his mayoral race loss.

There his crowning achievement was bamboozling the council into giving up massive development rights to the area above Nawiliwili in exchange for the donation of a “park” along the coastline, giving up only an area that was a tax liability that could never have been built upon and yielding a county run- and taxpayer maintained- amenity for the patrons of the development.

Kouchi learned this ploy during the Trojan horse “gift” of the Kealia to Kuna Bay (donkey beach) area by Kealia Kai developer Tom McCloskey.

Because areas by the beach are generally in the state conservation district they are a two sided sword for developers these days. Though they are desirable areas for those patronizing an ocean front property they are not only undevelopable without a severe setback- out of the conservation district- but the property taxes on conservation land are the highest of all.

That plus “recent” (over the past 20 years) legislation requiring pubic access – including lateral access- leads to a great expense for a developer- a virtual public park on their private property which they must not only pay to build but pay to maintain.

McCloskey came up with the idea of the gift horse of the ocean front land to the county- along with restrictions that would have turned it into a county owned and run private beach with severely restricted access- and it was only the mouth examination of then councilperson Gary Hooser (over the objections of then councilperson Bryan Baptiste) that put a stop to a quick, first blanch approval making sure access would be maintained.

That was the time when, as public outrage over the restrictions grew so did the idea of “the bike path”. Kusaka- whose support of McCloskey was similar to that of Jimmy Pflueger in terms of the “hands off” directive to Public Works Department personnel- came up with the plan and convinced the none too swift Baptiste to accept the land to serve as “matching funds” for federal transportation bike path money sitting untouched in the state highways division coffers.

Few really understood the true motivation behind McCloskey’s gift at the time but it was not lost on Kouchi who used the same gift ploy to earn his big bucks for the Nawiliwili developer in obtaining massive, previously-denied development rights in a win-win for the developer and a lose-lose for the county which would have had a virtual public park with no development rights if they would have refused the “gift”.

Kouchi’s public announcement comes at a time when his notorious “war chest” is down to $725.01 according to his recent Supplemental (July 1 - December 31, 2009) filing for the 2008-2010 period which shows he somehow spent $3,552.54 since the last election.

His early announcement is quite obviously designed to scare off competition, depending on his reputation as a prodigious cash producer in the past.

And his actions over the past eight years portend well for his continuing to lead the money race for the Senate seat.

ASKIN’ FOR IT

ASKIN’ FOR IT: It hasn’t just been a kick we’re on lately- that of examining laughably lame and confusingly contentions, slanted statements from bumbling bureaucrats designed to amply appeal to our guileless gullibility.

But it certainly isn’t just here on little Kaua`i where a post plantation populous is too busy beachcombing and bathing to understand unctuous utterances from corrupt capos and cronies.

Behold the corporate actions in the case of the runaway Toyotas whose corporate overlords have apparently set up their own demise by just replacing the gas pedals.

We’ve spent the past few days asking our more mechanically inclined acquaintances, car mavens and repair people who have been following the story and not one- not a single one- believes that fixing the gas pedal alone will stop these cars from having a mind of their own.

One and all believe it has to be the electronic “brain” that they put in cars these days so that any repair at all starts at $1000 and can only be done at the dealership.

In that sense it was inevitable that those chickens would come home to roost and they would become so complicated that even they can’t figure out what’s wrong with their own Frankencoupés.

If you’ve been following this debacle you’ll know that Toyota has spent months- actually years now- trying to figure out why on occasion their cars accelerate but then won’t stop doing so.

First they said it was the floor mats, then it was something with the gas pedal. Meanwhile most who independently looked at it concluded that it had to be something in the computer electronics that control acceleration.

But when the feds told them to fix it NOW, in a “that’s our story and we’re sticking with it” manner they’ve settled on putting in new gas pedals in millions of cars and denying that it’s anything more in a move seemingly destined to destroy any future for the company when it continues to happen.

The hastily concocted explanation for what’s supposedly wrong with the pedal mechanism doesn’t even make sense. It basically says that due to “wear and tear” the mechanism sticks where two pieces come together, But if something “wears” it wears down not up and its not going to stick, rather it’s going to become looser, according what a couple of engineers told us last night after the “explanation” was given by Toyota.

So why should we care if corporate malfeasance brings down a car company other than the gazillion of manufacturing jobs?

It’s simply the other side of the corporate personhood that’s on many people’s minds after the US Supreme court humanized them for purposes pumping more money into elections.

Because while this personhood extends to elections it doesn’t extend to corporate wrongdoing and responsibility. Don’t forget, it’s people who are making the decision to do this without regard to the fact that it will almost assuredly blow up in their faces in a year or so once the crashes continue and we figure out that the “fix” fixes nothing.

But don’t expect anyone to be punished for that. If anything happens to Toyota it will be because no one will buy one, not because the company is arrested and tried for murder.

But by the time anyone figures it out the same executives that made the decision to do this will no doubt have passed the hot potato to another ambitious young executive, received their golden parachute and gone on to bigger and better corporate criminal capers.

If you live on Kaua`i and own a newish Toyota and are headed down to the dealership for your “fix” and are then planning on driving off as if nothing is wrong you’re probably the same person who believed that the new alignment of the bike path isn’t going to be on Wailua Beach and that the $7.5 million the county paid in the Ka Loko Dam tragedy settlement wasn’t due to culpability.

So we’ve just gotta ask you – what are you, a freakin’ idiot?

BELIEVE IT OR ELSE

BELIEVE IT OR ELSE: How dumb are we? You don’t wanna know... no, really, seriously, apparently you actually don’t want to know.

Or at least the county once again is relying on that premise.

Because everywhere we went this weekend all we heard was the gurgling sound of people swallowing the hook, line and sinker of Al “The Mad Hat Police” Castillo’s improbable spin on the county’s whopping close to 1/3 of the responsibility in the Ka Loko Dam break tragedy.

Instead of admitting to the scandalous behavior of Mayor Maryanne Kusaka and her Department of Public Works henchmen Cesar Portugal, Wally Kudo and Ian Costa (among others) in intentionally allowing accused murderer Jimmy Pflueger to do whatever the hell he wanted with his “lakes”, Castillo wants us to believe that that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” according to a county press release.

Ah- pay no attention to the man behind the curtain. I am The Great and Powerful Al...

The fact is there is no immunity law that distinguishes between the gross incompetence of the state and the malfeasance of the county.

Government employees usually receive a broad immunity in performing their duties. The general rule is that as long as they aren’t unbelievably and grossly incompetent- and usually forewarned of the potential results of their incompetence- they and/or their government can’t be held financially responsible.

But even more lacking of that kind of protection is something like what occurred on Kaua`i- a criminal conspiracy among government officials to lie, cover-up and generally block enforcement of the law.

You don’t have to go far to find the damning evidence of that- just review the year and a half of public exposition of their malfeasance through testimony contained in the verbatim minutes of council meetings in the late 1990’s and early 2000’s.

Some we’ve spoken to have an inking that we’re being sold a bill of goods here but can’t really put their finger on it. That may be because preceding the paragraph containing the “culpability” BS was this little ditty:

“While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us,” said County Attorney Alfred Castillo. “Since this case had potentially huge damages, well in excess of our insurance limits, the County and its insurance carriers believed that settling was in the best interest of the County.”

Joan Conrow smelled a rat , in her Saturday column, but understandably took the mis-directional bait in assuming the razzle-dazzle of that paragraph had anything to do with the culpability paragraph saying:

Something’s not right here. Doesn’t the state have insurance, too? And does this talk about “financial realities” mean that the county now has deeper pockets than the state?

What about former Mayor Maryanne Kusaka, who told the county inspector to lay off in his investigations of Pflueger’s illegal grading at the dam? Will she be charged for the $250,000 that the insurance doesn’t cover? Will she ever be held accountable for her deeds? Is the desire to spare her one reason why the county decided to settle out of court?

The state in fact is self insured while the county holds a policy- one for which premiums are bound to be going up by a hefty amount... something Castillo fails to mention in assessing the cost to the county.

But the fact is this has nothing to do with the state’s liability law because no law can protect government officials when they are grossly negligent or even in fact engaged in malfeasance.

Of course the “deep pockets” excuse is total bullsh-t- the state’s would even be bigger with its deeper pockets if that had any relevance whatsoever- unless of course the county was far more to blame.

But since the depositions are sealed- which we would argue in the case of state and county culpability they shouldn’t be under the sunshine and open records laws- we’ll never see the evidence... a fact Castillo is relying upon.

One question should show what a load of shibai Castillo is trying to get the press and the people to believe- apparently successfully until now.

If Castillo’s claim were to be taken seriously, apparently that there has to be some kind of state law giving the state some kind of total immunity to their own incompetence and malfeasance under all circumstances- one that doesn’t so protect the counties. If that were true- which is isn’t- how did the state come to be held responsible for any amount at all, much less the reported $1.5 million for which they settled?

Answer- of course there can’t be. It’s simply based on the responsibility of each entity- in the state’s case, regular inspection of the dams but in the county’s case, enforcement of grubbing and grading laws.

The fact is that the $7.5 million the county was assessed shows nothing if not culpability and means the actions- or inactions as the case may be- of the Kusaka Administration were more than four times worse than the state’s.

As the years have gone by most observers- especially those in Honolulu but also notably the handful of supporters and family members of Pflueger’s have filled the comment pages of the newspapers- and in the case of the latter, our email inbox- contending that the lack of state inspections means that the state should be held partially responsible- or fully in the case of Jimmyphiles.

It’s the old “oh the cops didn’t stop me from robbing that bank so they’re responsible” defense.

We don’t expect anything to satisfy those who think Pflueger can do no wrong but it makes it understandable why they never brought up the county’s part in this because that would mean that, since Pflueger himself was both involved in and the beneficiary of the local corruption he can’t claim it should relieve him of any and all liability.

But it should also give the rest of the state $1.5 million reasons to stop ignoring and laughing at local Kaua`i corruption and joking about “a separate kingdom”.

And those of you who think it’s ok because we on Kaua`i won’t have to actually pay anything but $250,000 ought to be asking about what we are paying for our insurance policy- or will be in the near future... assuming that at this point we’re even insurable.

And don’t think the bond rating people for the county’s bond float- currently being negotiated- haven’t noticed the same thing.