Wednesday, April 30, 2014


WE SHOULD BE TOGETHER: You've gotta be baffled at today's Civil Beat article on the Center for Food Safety's new office in Hawai`i and the tome's "Follow the Money" angle.

The point is what? That a public interest group is successfully raising money to fight the attempts by the chemical biotech industry to adulterate and control our food supply and spray it with more and more poisons?

Oh noooo- someone is challenging the pesticide purveyors and promoting sustainable agriculture and healthy food. And they're successfully raising money to do it. Katy bar the door.

Or is the point that a tiny percentage of CFS's money comes from people who are actually producing healthy foods? Perish the thought that organic farmers and stores should support organic farming. And how dare some of them get so big, because people want to eat healthy food, that they can afford to give CFS money?

Because we all know that, given the choice people eschew healthy eating for toxic "Frankenfoods."

Just why do you think it is that all these consumer protection groups are donating money? Could it be because people overwhelmingly want to eat healthier foods? Oh those evil foundations- protecting the public interest when we all know money should only be used to make more money and nothing else... what are they some kind of communists?

Sarcasm aside and pesticides and despoilment of the lands notwithstanding, no matter how many times the chemical and biotech industry repeats "the Big Lie"- that eating genetically modified foods is proven to be safe- their inability to follow basic scientific precautionary principles or produce their supposed "studies" in full (just try to find a link to one of them at Monsanto's web site) belies those claims... not to mention their well-documented revolving door control of the FDA and the massive funding of virtually all major university agricultural research.

Apparently they're not fooling anyone as evidenced by the millions raised by CSF.

To read the article you get the feeling that even the most virulent of industry shills like Jon Entine apparently accept the anti-GMO movement's characterizations except they try to play the print equivalent of scary music in the background while calling eating healthy food "elitist." Is that your best argument- "if I have to eat poison, you have to eat poison?".

The fact is that healthy, pesticide-free, heirloom, unpatented foods are not really much more expensive any more and the prices are becoming more and more the same every day. What keeps them a little more expensive is not the cost of producing them organically but industry propaganda that seeks to maintain their patents on our food supply by convincing farmers to stick with the corporate program. Just ask Wal-Mart which has recently announced that it has discovered it's more profitable to switch than fight.... and to do it at the same prices

Yes, to quote a the popular song from the 60's- "Everything that say we are, we are- and we are very proud of ourselves."

Sunday, April 20, 2014


It's no secret that the "sustainability movement" on Kaua`i is being squeezed.

To the west is a experimental pesticide industry with multinational chemical companies who gobble up state land leases and land-rich legacy corporations' acreage to test how well and how much genetically modified commodities can withstand poisons.

To the east farm lands have been sliced and diced into legally-questionable luxury residences that have driven up farm land prices until crop cultivation is economically unfeasible.

Whether the fast disappearing remaining "vacant" agriculturally zoned and districted land will grow organic crops or mansions for the rich and famous is up for grabs.

But depending on who is painting the picture, the lawyers or the community, the the Kahu `Aina Plantation Subdivision in Waipake could go either way.


Last Wednesday a meeting of the Planning Committee of the Kaua`i County Council once again took up what appears to be the last remaining obstacle in the way of Falko Partners' owner Larry Bowman's and his manager Shawn Smith's plans for 76 "luxury residential lots" as they were at one time advertised: the final official establishment of horizontal and lateral beach access which is guaranteed in the Hawai`i State Constitution, and whether it will include an ancient lateral trail system called "The Ala Loa" that gently meanders for miles adjacent to the coast and provides many points of easy beach access as it currently runs.

Even though the state actually has fee-simple ownership in the by-way that according to elders connects the towns of Anahola and Kilauea, the landowners have been using a series of flimflams, supposed legal loopholes, threats of lawsuits, fake maps, revolving door government regulators and the political intimidation of already bought and paid for government officials to gobble up the Ala Loa and easy beach access in an attempt to create what amounts to miles of a de facto privatized coastline... all in a state where no one can own the beaches.

They've gone as far as to get the state Department of Land and Natural Resources (DLNR) to accept maps that show the Ala Loa to be far inland from where actually is in one of the most "are you going to believe me or your lyin' eyes" boondoggles anyone has ever seen... or not seen as the case may be.

How the battle for access turns out though seems at times to be almost (but not really) secondary for Bowman, Smith and Falko to the urgency for it to actually "turn out"- finally and permanently.

And while it remains up in the air Falko seems to be changing the the image they are selling the community, doing a 180 and now claiming that each buyer will be "an active farmer engaged in farming" according to what lead attorney for Falko, Dennis Lombardi of the powerhouse Honolulu law firm of Case, Lombardi and Pettit told the council last Wednesday.

Huh? Could this really be true? Will this agricultural subdivision- the one that was supposed to be "the last" under the 2000 Kaua`i General Plan (it wasn't)- now be re-purposed for 76 farmers to till the land on the 376 acres and build the legally required "farm dwellings?"

Well, according to testimony Wednesday there is already an eight to ten acres plot (depending on who you ask and what day you're asking) planted in "organic" ginger root and, we've heard papayas and Olena (also known as turmeric).

And an ad recently appeared in the local Kaua`i newspaper announcing:

"Attention Non-GMO Organic Farmers:


Kahu `Aina Plantation is currently seeking proposals for non GMO, non pesticide Organic Farming ventures of 1 to 10 acres size on our Waipake property

Ample land and irrigation water
Organic farming experience required

Send written proposals to
Shawn Smith, Falko Partners
PO Box 588, Kapaa Hi 96746"

Can this be? The buzz in the sustainability crowd has been, well, "Wow."

Well if you believe this subdivision will be an organic paradise and not just another bunch of typical gentleman’s estates that have been built on many thousands of North Shore Ag land, we've got some, well, organic farmland to sell you.

Stick with us here- it's not as complicated as those who want you to think it's all too much for your poor little brain to comprehend would have you to believe.

Don't think for a minute that this is going to be happening on each one of those 76 "luxury residential farm dwellings" for lack of a less schizophrenic description. Actually the subdivision, depending on who you believe and what set of paperwork you're looking at, had 80 plots when you count up both the subdivided and "condominiumized" lots.

(For the uninitiated, to be brief, in Hawai`i we have what are called "Agricultural Condominiums," a legal fiction that was "discovered" in the 1970's to get around a "one time subdivision" law... a loophole that, one discovered, became way too lucrative for the legislature to close).

Sooo... apparently and presumably the 8-10 acres of "organic" ginger root, turmeric and papayas and the 1-10 acres of "organic farm land" (assuming it's not the same acreage) are not part of the "luxury farm lots" (or whatever they're calling them today) and will really not have anything to do with the farming that it has now been guaranteed will occur on each and every one of the 76 lots via the hands (dirty hands? farm hands?- either way. this we've gotta see) of the owners... owners who are going to be paying millions for the best and biggest of the lots.

Right now the "ginger-Olena " farm is on the edge of the property down wind and far away from where the luxury farms dwellings are being sold so there'll be no need to smell fertilizer or hear tractors.

But we say "presumably" and "apparently" and seem to be hedging our words. Well yes... that's because we can only base them on reported observation because the Kaua`i Planning Department is refusing to answer any questions or provide the latest up-to date public information information regarding the true location of these house lots, according to Moloa`a farmer Hope Kallai.

Kallai has been trying to reconcile different maps and descriptions provided by Falko, the Planning Department, the attorneys and the DLNR for years and recently asked the Planning Department to straighten it all out.

We're going to leave out all the shenanigans regarding what Kallai calls the "shuffling and reshuffling" of "kuleana" lots and Shoreline Management Area (SMA) and Conservation District boundaries (until they magically disappeared) as well as possible "additional dwelling units" that could double the 76 permitted "farm dwellings." Just be aware that there's been a lot of "now you see it now you don't" going on.

But here's a recent email exchange regarding just a few of her questions for one planner when Kallai finally got fed up with being hung up on, having calls unreturned and getting different stories every time she asked.

"From: Hope Kallai
Sent: Tuesday, April 08, 2014 12:49 PM
To: Jody Galinato
Subject: Kahu`Aina

Aloha e Jody - Can you please help with the following questions about the Kahu`Aina Subdivision Phase I and Subdivision Phase II?
1.  How many total House sites and Guest House site rights are attached to this project?
2.  Has the Parking Lot site been identified?  Size?  For how many vehicles?
3. How many house sites are planned for the SMA?  The Conservation District?
4.  Who will be responsible for the Conservation District Use Application for the public access easement - grantee or grantor?
Mahalo, Hope Kallai"

Galinato's answer?

"I cannot answer these questions and would refer to Dale or Kenny by means of the OIP form (emphasis added)  Jody"

For the uninitiated what "by means of the OIP form" means is that "we aren't giving you anything unless you file a formal request with the OIP (Office of Information Practices) under the Uniform Information Practices Act (the Hawai`i version of a freedom of information request) under which we will charge you untold amounts of money to research and segregate and if necessary redact material, possibly even having our attorney's go over it at $500 an hour.

And we can also delay the process for weeks, months or even years while we battle with OIP over what we absolutely have to release."

And all this for the current public information on the subdivision and the plans for Kahu `Aina.

So what's the big deal? Well as we said the access issue is the final barrier to approval for the project and once it's final all discretionary involvement by the county council and planning commission- and the public input and scrutinization that goes with it- is over.

And once it's all "final" the question of what exactly is going to happen on those 76 plots is up to Falko and, drum roll, the same Planning Department that won't even show the public the real maps of or give out information regarding Kahu `Aina Plantation.

And perhaps we're burying the lead here but it's no secret that the Planning Department has never- not once- actually enforced a case of a violation of one of these "farm dwelling agreements" that gentleman's estate owners must sign promising to farm their land whether on subdivided or condominiumized lots.

The history has been that, as long as you put a horse or two in the yard and plant a few fruit trees, voila!- you're a farmer.

And because they have somehow interpreted the law to say that their inspectors aren't really allowed inspect the lots without permission (unless it's for a rice-cooker.. you had to be there)- or don't have enough people or that they are "complaint driven" or whatever excuse they are using today- no one is ever "busted" for violating their agreement to farm their Ag land.

That's why the access issue is so important- not just for the access itself but because it's the last place for public testimony and/or council discretion.

That may just be what's behind this sudden turn-around by Smith and Falko because the very people likely to try to block the project by insisting on the type of access that Bowman doesn’t want to give, are the same North Shore folks who tend to see the advertised "non GMO, non Pesticide, Organic Farming ventures of 1 to 10 acres size on our Waipake property" and promises that every owner will be an active a farmer" as a reason to drop opposition to the finalization of the project.

The owner-farmer promise is just that- a promise that is not worth the paper it isn't written on, especially given the Planning Department's history of non-enforcement. And the 10 or even 20 some-odd acres of organic farming off to the side where it won't muck up the aesthetics of the "luxury farms" could be just enough to buy off those who do understand the land use issues and law or don't care when they hear the words "non GMO Organic Farms."

At last Wednesday's meeting you could see the desperation and exasperation of attorney Lombardi as he actually attempted to intimidate and threaten the council into accepting the lousy beach access which also seeks to locate the parking lot a mile from the beach, even claiming it was "not in the purview of this council to consider options relative to easement- absolutely not."

That raised the dander of most councilmembers who well understood that, despite the fact that Deputy CA Jung had, as he is wont to do, done his best at legal kow-towing to Lombardi, they do have the final say over this access issue.

Jung, who "negotiated" the proposed easement, has been bending over for land developers and local land use attorneys for years, readying himself, as many think, to enter the revolving door and eventually see his own name at the end of a partners list. He's best known for the "beer-gate" scandal when he tried to influence then Councilmember Dickie Chang to vote for a developer-friendly re-interpretation of the vacation rental laws through a beer-bearing home visit.*

Barely able to contain his rage, Lombardi tried to tell the council they had to accept the easements before them claiming there had already been 26 or 28 public hearings (a number that seem suspiciously imprecise and which no one seems to be able to remember) and then listing all the taxes and parks and housing fees they had paid (as they were legally required to do) as well as all the "millions" spent on local charity- the latter sounding suspiciously like a request for a quid pro quo bribe.

"We are good corporate citizens... I don't think we deserve what's going on here" he said of the community's demands for the access the government owns and the state constitution requires.

He also insisted that "there will be no debate" between the public and himself during the three site visits scheduled for April 30, May 30, June 27 - all at 10 am. The site visits are crafted to evade the sunshine law by having only two councilmembers at a time attend each visit and also so that the public can discuss the issues and everyone can see the lay of the land for themselves.

This didn't exactly endear him to councilmembers but the message was clear- the developers have more money than god and they will use it sue you and the taxpayers to get what we want. Put that in your November election and smoke it.

The matter will return to the Council's Planning Committee on July 2.

The question here isn't whether the community can strike a blow for "diversified agriculture"- much less those "non GMO, non Pesticide Organic Farms"- by stopping the chop-shop job on another vast agricultural swath of North Shore land, preventing it from becoming another playground for the rich and famous.

That boat has sailed. It's a fight that the community has been losing- or should we say "has lost"- since the end of the sugar cane era. All that's really left is to beg for the table scraps of being able to traverse the trail we own so as get to our beaches without risking life and limb in the process.

The original plans include a heliport and a clubhouse adjacent to what was going to be an essentially private beach where residents could walk the gently sloping access to the beach and the rest of us will have to walk miles before jumping off a cliff to get there.

This fight is actually over just how stupid they think we are and whether we can be bought off for a few acres of "silver" which may actually be nothing but an illusion cooked up in attorneys' offices here and in Honolulu.

*(The above has been corrected to reflect that Mauna Kea Trask did not attend the "beer-gate" visit.)
*(The above has been corrected to reflect that Mauna Kea Trask did not attend the "beer-gate" visit.)

Sunday, April 13, 2014


PLANT YOUR CLEAN-HANDS MANSION HERE: An article by investigative reporter Rob Perez in today's pay-walled Honolulu Star-Bulletin points in many ways to what's going on in the Kapa`a-Kealia-Anahola-Waipake-Lepa`uli (Larsen's)-Kilauea corridor on Kaua`i as it relates to the development of mansions-for-the-rich in agricultural subdivisions and "condominiumized" ag lands by Larry Bowman's Falco Partners as well as developers Jeff Lindner, Tom McCloskey and other more silent ag land owners.

Indications are that they are using "new and improved" combinations of loopholes, such as some being used in Kunia on O`ahu to build more "gentleman's estates."

Though the prime methods of building secret mansions that Perez pointed to have become more and more difficult to hide on Kaua`i recently, the dodgy nature surrounding the layers of state and county regulations, many containing built-in exemptions, are spurring a new generation of agricultural land development devised by land use attorneys who have worked hard to create the confusion and loopholes in the first place.

Though of course the destruction of the bank of agricultural lands through the building of luxury homes is nothing new, especially on Kaua`i, recently we've seen ads soliciting people to farm relatively minuscule plots of the lands apparently, our sources say, so that they can sell multi-million dollar mansions on the lion's share of the land, as indicated by recent announcements of the availability of small farming plots in the area.

The way it apparently works is that they divide up huge plots of land for McMansions for wealthy mainlanders then segregate a very small portion of land as far away from the estates as possible and find people to farm it, often soliciting for "organic" farms so as to distract and placate the members of the "sustainability" movement.

While the article seems to indicate our planning director Mike Dahilig- misidentified in the article as Vahilig- convinced Perez essentially that "there's nothing to see here- go back to your cramped apartments and clapboard homes," it appears that either Dahilig is narrowing his pish-poshing to the one 2012 loophole primarily cited in the article.

That or that perhaps Falco and the others have used teams of skilled attorneys to put together packages of loopholes to put up their multi-million-dollar "farm dwellings" while minimally fulfilling their obligation to do some actual farming beyond the current practice of putting in a few fruit trees or grazing a couple of horses or the like.

Although the specifics of the Kunia situation is different, many of the surrounding principles and loopholes are being applied here. The challenges of lack of access to the lands for inspectors is one that is compounded on Kaua`i by our complaint-driven system of inspections and lack of inspectors- in addition to notorious corruption in the buildings division.

That has meant that if you don't apply for a permit and no one can see the house and no one complains... well you get the picture.

That cat and mouse game- with plenty of cheese and kibble spread around for everyone involved- has worked well in the past. But with GPS and drone surveillance (and maybe inspectors willing to sneak onto the land and look for more than rice-cookers) it's going to be harder and harder to get away with "farm dwellings" that are essential "secret mansions."

We admit to seeing lots of external signs and not really being able to connect all the dots... yet. But it's worth a mention today because there are enough of them to start forming a definite picture of the final nail in the coffin of a sustainable small farm future for Kaua`i- one that makes the out-front chemical company plans to "seed" the end of clean environmentally-responsible farming seem half-assed.

We'll be following this story in the near future. Don't fail to contact us gotwindmills (at) if you have any "inside" information.

Here's an excerpt from Perez's article.


A building concern; Kunia farm structures may be prohibited homes

By Rob Perez

At least 10 structures that look like houses have been built on leased farmland in Kunia without the normal inspections that come with most construction projects and despite a state law prohibiting homes on such land.

One of the biggest buildings apparently is a Buddhist temple. Several other structures have second-floor windows and balconies offering sweeping ocean views features not typically found in barns or storage sheds.

The ability of owners to erect such structures free of normal regulatory oversight and in a remote agricultural subdivision unconnected to power, water, telephone and sewer lines has exposed a gap in the code enforcement system on Oahu and generated concern among some in the farming industry.
Even though a complaint was filed with the city in June alleging that unauthorized residences some with up to four bedrooms had been built at Kunia Loa Ridge Farmlands, the city took no action on that issue.

Because of a 2012 state law that exempts certain structures from building permit requirements, the city did not have the authority to enter the Kunia Loa structures, and without being able to do so, was unable to prove that they were being used as residences even if they looked like houses from the outside, according to a spokesman for the city Department of Planning and Permitting, the agency that issues building permits and investigates complaints.

The department did cite four lessees for violating an ordinance prohibiting the storing of industrial equipment on agricultural land. The equipment was seen when an inspector went to the subdivision to investigate the complaint.

The 2012 exemption law, widely supported by the agriculture industry, was designed to free farmers and ranchers from the time-consuming, costly process of obtaining building permits for small agricultural-related buildings, such as tool sheds. The idea behind the law versions of which are found in the majority of other states was to help farmers and ranchers better compete with imported food suppliers.

The permit exemption applies only to nonresidential structures constructed on commercial farms or ranches as long as certain conditions are met, such as the floor space is no more than 1,000 square feet, the land is outside the urban district, and the building is essential to the agricultural operation.
But the law has created some confusion and enforcement challenges.

Even if permitting department officials suspect a residential dwelling has been constructed on farmland by an owner claiming the exemption, they say they lack the authority to enter the structure to prove it.
"Enforcing building and zoning laws on agricultural land is difficult enough, but exempting certain structures from the building permit process makes it even more difficult and frustrating because the building permit is our enforcement tool," DPP Deputy Director Art Challacombe said in a written statement to the Star-Advertiser.

The law has prompted some property owners on Kauai to try to sneak proposed dwellings through the review process by calling them something other than a residence.

"People are trying to disguise houses as packing facilities," said Mike Vahilig, Kauai's planning director, estimating his office has seen five to 10 such cases over the past year.

In attempting the ruse, garagelike space has been labeled as packing floors, bedrooms as offices, and the kitchen as something else, Vahilig said.

Even though the property owners claimed the exemption, the county was able to block the proposed projects by denying a zoning permit, a separate approval needed before construction can start, according to Vahilig.

If Kauai didn't have that separate process, the owners would have been able to build the homes, he added....

Wednesday, April 9, 2014


DENIAL AIN'T JUST A SCREAM IN EWA: Just as Nixon felt the need to tell the country he was "not a crook" and 2010 Delaware US Senate candidate Christine O'Donnell just couldn't resist insisting that "I am not a witch," our own hate and fear-mongering homophobe-in-chief Hawai`i Republican State Rep. Bob McDermott (R, Ewa Beach-Iroquois Point) has declared "I'm not perverse," according to today's Honolulu Star Advertiser.

McDermott's infamous crusade against marriage equality last year continued into this year's legislative session when he attempted to whip up fellow Christian zealots into a orgasmic religious frenzy over the state's sex education curriculum called "Pono Choices."

The house refused to pass his amendment to a state DOE bill after "McDermott and others... complained that Pono Choices, a pilot sex education program for middle-schoolers, classifies the anus as genitalia and minimizes the dangers associated with anal sex" according to capitol reporter Derrick DePledge.

This led Rep. Della Au Belatti (D, Moiliili-Makiki-Tantalus), chairwoman of the House Health Committee to quip "'I think the level of specificity in this amendment that seems to focus perversely on these very specific sex acts misses the point' of teaching broad health education."

In response and in true American Knucklehead fashion, McDermott provided political satirists one of those "can't improve on that" moments.

DePledge writes that "McDermott jumped in to defend himself. 'My amendment, which is a reflection of me, is being called perverse," he said. "I'm not perverse; Pono Choices is perverse. That's what this is all about. I take that as an insult, and I ask the lady to withdraw it."

Forget the gauntlet slap. Perhaps if McDermott decides to run for re-election this fall he could do worse than to campaign walking the streets of Ewa Beach decked in leather and one of those ball-gags while bedecked in a statement-making back-door chastity belt.

After all, he couldn't possibly present a more ludicrous and preposterous image of himself than he has already.

Sunday, April 6, 2014


(PNN) -- While current Kaua`i Mayor Bernard Carvalho Jr. has already flied papers to run for another four-year term only one incumbent Councilmember, Mel Rapozo, has officially thrown his hat into the ring for another two years, according to the Friday's latest list of candidates.

Carvalho's potential opponents include minor and perennial candidates. Three out of the four listed have "pulled papers" but only one, Debralynn M Desilva Carveiro, has filed to oppose him.

But the list of 11 potential council candidates includes repeated after-ran, former Councilmember Kipukai Kuali`i who has filed to run after again failing to be elected in 2012 after being appointed to fill a vacancy, along with some other notable names and, perhaps, another former councilmember.

We say "perhaps" because among the names on this list is one "KANESHIRO, ARRYL J" a moniker suspiciously similar to that of long time Councilmember Darryl J Kaneshiro who lost a bid for reelection in the '00's, was appointed back onto the council when there was a vacancy, won re-election again and then retired in 2010.

(Correction: Arryl Kaneshiro is Darryl's son and works for Mike Tressler and Grove Farm.  That's what you get for writing on Sunday.)

Kuali`i also quite boisterously attempted to be appointed once again last year when a vacancy on the council opened up, claiming his eighth place finish in the 2012 election should have held sway even though no such qualification for appointment exists.

If all 11 filed it would supersede total number who ran for council in 2012 when only nine sought a seat. Some observers think that this year's total could top the record of 19 that ran one year in the 90's. The council has seven at-large members.

The list of those who have drawn a petition to run- a practice referred to as "pulling papers"- is eyeopening, for the inclusion of current Police Chief Darryl Perry with whom the mayor has feuded over who has the power to discipline the chief- the mayor or the police commission.

The Kaua`i County Charter gives the commission the power to hire and fire the chief but reserves disciplinary power over department heads to the mayor.

Currently the police commission is suing over the matter after the mayor suspended Perry last year over reported charges that Perry attempted to dissuade a female officer from filing sexual harassment charges against one of Perry's deputy chiefs- a charge civil rights law see as tantamount to sexual harassment itself.

While the list of council seat-seekers includes three new faces who have filed- Arthur Brun, Ronald Horoshko and Ernest Kanekoa, Jr- it also contains perennial candidate and Republican stalwart Joanne Georgi, Kaua`i police officer and legacy Joseph Kaauwai Jr who will try again for a council slot and the only other incumbent to pull papers, JoAnn Yukimura.

In the legislature, while all three incumbents have pulled papers and may face opposition if those who have pulled papers actually file, none of the current office holders have flied. The only one to actually file is Republican Steven Yoder who will no doubt prove to be an also-ran against Jimmy Tokioka.

Tokioka, who was originally appointed to his house seat, is expected to face his first-ever real opposition from legacy Dylan Hooser who has announced he will run but hasn't, as yer pulled papers. Hooser is the son of former State Senate Majority Leader and current Kaua`i Councilmember Gary Hooser.

The list of candidates who have pulled papers for governor includes 11 people (non-partisan Khistina C. Dejean, has filed) for US Senator seven names (Republican Harry Joseph Friel, Jr., has filed) and for 2nd U.S. Congressional District, three (Libertarian Joseph William Kent has filed).

The deadline to file to run for office is Tuesday June 3rd at 4:30 p.m. Candidates can pick up papers at the Historic County Building in Lihu`e. The deadline to register to vote in the August 9th Primary Election is July 10th. The deadline to register for the November 4th General Election is August 2nd.

Friday, April 4, 2014


DOWN THE RABBIT HOLE, DOWN THE DRAIN: Once again a land use ruling by Kaua`i 5th Circuit "junior" Judge, Katherine Watanabe who never met a claim of vested rights she didn't like- or a developer whose claims to have a right to do anything they damned-well please for that matter- has been overturned by the Supreme Court, at great time and expense for one of the few public interest law firms around.

According to a press release from Earthjustice

The Hawaiʻi Supreme Court recently issued another landmark decision on water resources and the public trust. The case, Kauai Springs v. Kauai Planning Commission, involved a company bottling and selling spring water on the island of Kauaʻi.

The court’s opinion strongly reinforced principles that water is a public trust, and that private companies profiting off these resources bear the burden of justifying their diversions and showing the resources will not be jeopardized...

The court’s decision is its latest statement on the public trust doctrine, the legal principle that the government holds water resources in trust for certain presumptively favored “trust purposes” including resource protection. This case builds on the court’s historic precedent in 2000 in the Waiāhole case, where Native Hawaiian and rural communities represented by Earthjustice successfully compelled the restoration of stream flows diverted by former plantation companies.

Some highlights from the court’s latest ruling include:

  • Contrary to the company’s claims of “grandfathered” diversions, “no person or entity has automatic vested rights to water.”
  • Private commercial users of water bear the burden of affirmatively justifying their uses. “[A] lack of information from the applicant is exactly the reason an agency is empowered to deny a proposed use of a public trust resource.”
  • This burden includes showing the use is reasonable and beneficial and consistent with trust purposes, has no practicable alternative water source, and implements mitigation of the cumulative impact of diversions.
  • Government agencies have “duties under the public trust independent of the permit requirements,” including a duty to hold private commercial users to their burden under the public trust...

(This case began in 2006 when the Planning Commission of Kauaʻi County cited the bottling company for unlawfully operating without required land use permits. Left with unresolved questions whether the diversion and sale of water was permissible, the commission denied the request for after-the-fact permits. On appeal, the lower court reversed and ordered the permits issued. The intermediate appeals court rescinded the permits, but sent the case back for more hearings. Finally, the supreme court ruled that the commission was justified in denying the permits without better information.)

Watenabe seems capable of bizarre rulings that fly in the face of Hawai`i State Supreme Court decisions in including this one which was based on the far-reaching Waiaholewater case that determined that water to be a constitutional public trust.

In addition, apparently even the broad "smart growth" concept that says that the local community should determine growth is an alien concept to Watenabe. She's made "give-backs"- things like roads parks and other amenities demanded by our local planning commission in exchange for development rights- all but impossible to attach to development approvals without some strict yet nebulous almost unattainable concept of a "direct nexus" being applied, as in the case of struck-down attempts to make the resort developers of that monstrosity right across from Safeway help to alleviate the traffic nightmare they helped create.

How many overturns does it take to unscrew a judge from her seat after her 10 year term is up? Many hope she's over her limit.

Tuesday, April 1, 2014


RIDE A PAINTED PONY LET THE SPINNIN' WHEEL TURN: I'm sure, as everyone says, Gerry Charle­­bois- the pilot of the ultra-light aircraft that crashed and burned in Polihale last month killing him and his passenger- was a great guy.

But these ultra-light "tours" are illegal as hell because they are not really "flight instruction" as they claim but simply thrill rides for tourists. And everyone know it.

Taking visitors up in these things is not permitted but there is a "flight instruction" loophole that has allowed the practice to continue.

It's one of those "and if anyone asks, you're learning to fly," dealies.

Of course not one news report has mentioned this- heaven forbid they should criticize anything to do with the visitor industry.

According to a local Kaua`i newspaper article:

The accident pilot had recently had problems with the fuel system suctioning the fuel supply out of the main vent line (located in the belly of the aircraft),” states a preliminary investigation report released Friday by the National Transportation Safety Board.
In an effort to fix the issue, Charlebois reportedly routed the fuel vent line up through the aircraft’s mast.

With all due respect to the pilot- with whom we apparently shared many friends-, it pains us to say that it sounds like the NTSB is saying that he "Gerry-rigged" the gas line so he could make money that day.

It's now six people who have died just on Kaua`i since 2011 in these ultra light "flight instruction" exhilaration excursions. Isn't it time to close this deadly loophole?