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.
Showing posts with label Attorney General Mark Bennett. Show all posts
Showing posts with label Attorney General Mark Bennett. Show all posts
Friday, February 5, 2010
Thursday, May 7, 2009
NOT EVEN A BONE
NOT EVEN A BONE: It’s never easy to fight city hall but in Hawai`i it’s usually downright impossible.
Trying to accomplish anything in the public interest is an exercise in frustration as officials simply stonewall and deny, deny, deny, often in defiance of the law, telling citizens “if you don’t like it, sue us”.
But even if you had the money for a lawsuit just try to finding a lawyer willing to buck the system, take on the deep pockets of government and developers and risk never getting a hand into those pockets with one of those well-paying “special counsel” or corporate gigs in a state where revenge is the top coin of the realm.
So your average Joe Activist ends up depending on a dwindling handful of attorneys and organizations to defend our rights by going though the often interminable process that leads to the little victories that uphold the law in what should be no-brainer cases.
The problem is that when we put ourselves at the mercy of those who filed the suit, when they get paid off or when their self-interest wins out over principle not only are we left on the losing side with little or no recourse but a precedent is set that makes re-filing the case all but impossible.
Once again the people have been sold down the river with an unfathomable “settlement” by the Office of Hawaiian Affairs (OHA) and a string of litigants, after they were hoodwinked into signing away all rights to pursue the stolen lands case that was recently returned to the state courts by the US Supreme Court.
After reading the settlement agreement it’s apparent that we got exactly nothing and in addition the plaintiffs are forbidden from ever again pursuing any legal action the case.
OHA’s press release makes a big deal out of what they supposedly did get- the settlement is dependant on the about-to-become law requiring a 2/3 vote of the legislature to dispose of any of the so-called “ceded lands”- an Orwellian construction that wrongly presumes anyone ever did any ceding.
And that and $10 billion will get you onto the Honolulu elevated subway because what the legislature giveth, the legislature taketh away.
The agreement says that
Senate Bill 1677 Conference Draft 1 is condition precedent to this Settlement Agreement, and if it does not become law, this Settlement Agreement shall be of no force and effect.
But sly Attorney General Mark Bennett, in the ignominious American tradition of genocide by pen, got them to sign without any “out” if the law is repealed or even “amended” by a future legislature- something that would only take a majority vote.
We all remember how effective HRS 343 was in stopping Act 2 when the state’s environmental protection act was “amended” to give it absolutely no effect on the Hawai`i Superferry’s illegal exemption from completing an environmental assessment as a “condition precedent” to operation.
It was only a constitutional provision having nothing to do with environmental law that saved us here on Kaua`i from the invasion of thousands of cars and tens of thousands of campers descending on our fragile environment and underfunded and inadequate infrastructure.
The law- which will apparently become law with or without the settlement after passing through conference committee- is not just subject to repeal but subject to the same kind of “act”, “amending” it to allow Hawaiian land to be sold by the state.
But one thing that OHA did get is a paragraph saying that
Nothing in this Settlement Agreement shall prohibit OHA plaintiffs from seeking payments as set forth in Act 318 (SLH 1992) should the Hawai`i State Legislature hereafter approve the sale of Act 318 lands to third parties.
Act 318 of course is designed to comply with the one condition of the transfer of the stolen lands from the USA to the State that list five purposes the lands can be used for, one of which is to benefit the kanaka maoli or “native Hawaiians”.
Although one plaintiff, UH Professor Jonathan Kamakawiwo`ole Oshiro, refused to sign- perhaps seeing that it was nothing but another con job from shyster Attorney General Mark Bennett, the agreement actually asks the court to dismiss his case too... and even if they don’t Oshiro certainly doesn’t have the resources to pursue a case that the attorneys involved don’t want to pursue any more.
In her post today Joan Conrow relates the story of a young kanaka who was harassed away from his traditional fishing hole in a river his family has fished for generations by a rich, illegal-vacation-rental owner who treated him as an “outlaw”, threatening to have him arrested despite his constitutionally protected right to fish there as a kanaka maoli.
When it comes to American genocide some things never change.
As Woody Guthrie wrote in the 1939 Ballad of Pretty Boy Floyd
Yes, as through this world I've wandered
I've seen lots of funny men;
Some will rob you with a six-gun
And some with a fountain pen.
And as through your life you travel,
Yes, as through your life you roam,
You won't never see an outlaw
Drive a family from their home.
Trying to accomplish anything in the public interest is an exercise in frustration as officials simply stonewall and deny, deny, deny, often in defiance of the law, telling citizens “if you don’t like it, sue us”.
But even if you had the money for a lawsuit just try to finding a lawyer willing to buck the system, take on the deep pockets of government and developers and risk never getting a hand into those pockets with one of those well-paying “special counsel” or corporate gigs in a state where revenge is the top coin of the realm.
So your average Joe Activist ends up depending on a dwindling handful of attorneys and organizations to defend our rights by going though the often interminable process that leads to the little victories that uphold the law in what should be no-brainer cases.
The problem is that when we put ourselves at the mercy of those who filed the suit, when they get paid off or when their self-interest wins out over principle not only are we left on the losing side with little or no recourse but a precedent is set that makes re-filing the case all but impossible.
Once again the people have been sold down the river with an unfathomable “settlement” by the Office of Hawaiian Affairs (OHA) and a string of litigants, after they were hoodwinked into signing away all rights to pursue the stolen lands case that was recently returned to the state courts by the US Supreme Court.
After reading the settlement agreement it’s apparent that we got exactly nothing and in addition the plaintiffs are forbidden from ever again pursuing any legal action the case.
OHA’s press release makes a big deal out of what they supposedly did get- the settlement is dependant on the about-to-become law requiring a 2/3 vote of the legislature to dispose of any of the so-called “ceded lands”- an Orwellian construction that wrongly presumes anyone ever did any ceding.
And that and $10 billion will get you onto the Honolulu elevated subway because what the legislature giveth, the legislature taketh away.
The agreement says that
Senate Bill 1677 Conference Draft 1 is condition precedent to this Settlement Agreement, and if it does not become law, this Settlement Agreement shall be of no force and effect.
But sly Attorney General Mark Bennett, in the ignominious American tradition of genocide by pen, got them to sign without any “out” if the law is repealed or even “amended” by a future legislature- something that would only take a majority vote.
We all remember how effective HRS 343 was in stopping Act 2 when the state’s environmental protection act was “amended” to give it absolutely no effect on the Hawai`i Superferry’s illegal exemption from completing an environmental assessment as a “condition precedent” to operation.
It was only a constitutional provision having nothing to do with environmental law that saved us here on Kaua`i from the invasion of thousands of cars and tens of thousands of campers descending on our fragile environment and underfunded and inadequate infrastructure.
The law- which will apparently become law with or without the settlement after passing through conference committee- is not just subject to repeal but subject to the same kind of “act”, “amending” it to allow Hawaiian land to be sold by the state.
But one thing that OHA did get is a paragraph saying that
Nothing in this Settlement Agreement shall prohibit OHA plaintiffs from seeking payments as set forth in Act 318 (SLH 1992) should the Hawai`i State Legislature hereafter approve the sale of Act 318 lands to third parties.
Act 318 of course is designed to comply with the one condition of the transfer of the stolen lands from the USA to the State that list five purposes the lands can be used for, one of which is to benefit the kanaka maoli or “native Hawaiians”.
Although one plaintiff, UH Professor Jonathan Kamakawiwo`ole Oshiro, refused to sign- perhaps seeing that it was nothing but another con job from shyster Attorney General Mark Bennett, the agreement actually asks the court to dismiss his case too... and even if they don’t Oshiro certainly doesn’t have the resources to pursue a case that the attorneys involved don’t want to pursue any more.
In her post today Joan Conrow relates the story of a young kanaka who was harassed away from his traditional fishing hole in a river his family has fished for generations by a rich, illegal-vacation-rental owner who treated him as an “outlaw”, threatening to have him arrested despite his constitutionally protected right to fish there as a kanaka maoli.
When it comes to American genocide some things never change.
As Woody Guthrie wrote in the 1939 Ballad of Pretty Boy Floyd
Yes, as through this world I've wandered
I've seen lots of funny men;
Some will rob you with a six-gun
And some with a fountain pen.
And as through your life you travel,
Yes, as through your life you roam,
You won't never see an outlaw
Drive a family from their home.
Thursday, April 23, 2009
ELEPHANT IN THE DOGHOUSE
ELEPHANT IN THE DOGHOUSE: Kaua`i usually gets the shortest of shrifts when it comes to the two Honolulu dailies.
But when the big guns air lift in such as they did yesterday to bring Jimmy Pflueger to justice for murdering seven people (ok “allegedly”- there ya happy now) not only does the Advertiser fetch Diana Leone out of mothballs but the Star Bulletin adds insult to injury by asking downsized Tom Finnegan to file a “special to” report.
And as they and the local paper’s Michael Levine reported, Mike Dyer wasn’t the only one to warn Pflueger about filling in a spillway. The grand jury heard from Tom Hitch- who operated the irrigation system. He did the same and was also told to get lost.
The problem is that the picture that the Honolulu-bound get is one that Pflueger’s lead attorney attempts to paint- that somehow Pflueger isn’t to blame because the state and county didn’t stop him... kind of like saying a bank robber isn’t guilty because no one stopped him until after he robbed it.
And so a comment typical of many appeared below Leone’s piece today saying
Don't comment on this story until you have read the Kaloko dam report for yourselves. After reading that you can see that it wasn't one man all alone at that dam working all the construction himself to create that hazard. Do you know how OLD that man is? There was plenty of contributors to this tragedy, the STATE, and people like THE MAYOR, have some blood on their hands too, even if they dont (sic) want to admit it with such an accessable (sic) scape goat (sic) right there.
The incomplete, quickly-assembled “report” notwithstanding, no one is saying that the state and county weren’t lax, perhaps intentionally and corruptly on the part of the county and former Mayor Maryanne Kusaka who Pflueger says took a bribe from him to make sure the county looked the other way, if Malia Zimmerman’s report is to be believed.
How that somehow exonerates Pflueger is hard to fathom.
The fact that few outsiders know is that Ka Loko wasn’t the first time Pflueger made headlines on Kaua`i.
Two prior incidents- the infamous Pflueger “berm” and the Pila`a mudslide that presaged Ka Loko- should have raised red flags with county administration officials and did with the county council, especially then Councilperson Gary Hooser, when outraged local resident successfully demanded stricter grubbing and grading regulations.
During the “Developers Gone Wild” series of county council meetings over almost a year long period Hooser demanded that the matter be kept on the agenda every week as citizens presented weekly videos of the damage that Pflueger did, along with that caused by developer Tom McCloskey who also enjoyed a “special relationship” with Kusaka. McCloskey donated huge sums to a favorite charity foundation Kusaka controlled and allegedly promised her a luxury oceanside home in his Kealia Kai development.
The first time people on Kaua`i heard the name Pflueger- other than in ads for his Honolulu car dealership- was in the early 90’s when a “berm” appeared along the highway- a 40 foot high embankment that Pflueger illegally constructed on his property’s border without permits and with Pflueger at times seen personally driving the heavy equipment.
The Pflueger Berm, as it became known, blocked ocean view planes and after much protest he was made to take it down.
According to residents- many of whom told their stories before the county council- Pflueger has always had his scofflaw attitude, one that he had learned from McCloskey.
Historically on Kaua`i all that was ever done when illegal construction was done - especially so-called “grubbing and grading” which often included the flattening of hills and mountains- the only punishment the county had ever imposed had been to fine the developer a small amount of money and then usually allow them to file for “after the fact” permits which allowed construction that would have never been allowed in the first place to remain, sometimes with minor and usually useless “mitigations”.
It was way cheaper and more productive to just go ahead and do the dirty work and pay the fines and wind up with what they wanted than to go through the county permitting system and risk being denied.
One complicating factor- one that still has not been “fixed”- is that there were then and still are not now any administrative rules on the books for grubbing and grading fines on Kaua`i even though they were promised by Costa “within six months” after the new grubbing and grading ordinance was passed. The only way for the county to proceed is and was through judicial proceedings with a penalty of only up to $1000 and six months in jail.
But even after the berm episode the only lesson Pflueger apparently learned was that if he were going to do these things without permits, don’t do them along side the highway and block view planes.
His next move was to construct a road- with no plans or permits, using a bulldozer he rode himself- leading down the cliff side of his Pila`a property just above the kuleana of Rick and Amy Marvin.
And when the next heavy rains came a short time later the mountainside fell on top of the Marvin’s tiny house and the beach next to it, killing the reef by burying it under a few feet of mud.
This time Pflueger was fined by the federal government in what was the biggest fine of it’s type ever levied at the time. He still faces- and has managed to stall for many years- a civil damages lawsuit filed by the Marvins.
Then came Ka Loko.
Today Levine for the first time in the mainstream media reports part of what PNN has reported many times in the past:
Bennett also told Valenciano that the Grand Jury had heard testimony that Pflueger had filled in the spillway himself because the permitting process “took too long.” Bennett said illegal grading had been done on the North Shore property in the late 1990s to make room for a private home and a 49-unit condominium project that would have increased the land’s appraised value from $19 million to $68 million.
And Finnegan ends his piece by saying:
Bennett also provided evidence that, while doing the grading work in 1997-98 that allegedly caused the spillway to fill, Pflueger was making home sites so that he could subdivide his land and the land around the reservoir owned by the Mary Lucas Trust, of which he was a trustee and beneficiary.
Now we’re getting somewhere. As we have reported before, according to two sources- FOJ’s or Friends of Jimmy as many called them- this was the whole motive for filling in the spillway- to provide a “lake” as Pflueger called it and provide the “best water skiing on the island” as he told his FOJ's and even promoted in his plans for the development.
To say the county was at best negligent and more likely and apparently complicitous is not a new charge here on Kaua`i. And although the state was technically responsible under a then little known law requiring them to inspect reservoirs in practice the state depended on the county for enforcing grubbing and grading violations without which the dam probably wouldn’t have had any problems.
The county did it’s level best to look the other way, at times even falsely claiming to the council that it was impossible get access to the property unless Pflueger allowed them in until the council appropriated money to at least take an aerial look. As PNN reported at the time the Public Works Department hadn’t even asked the county attorney regarding entry and Kusaka had blocked them from doing so.
Then, after all that, after all the red flags, after all the uproar, after Pflueger was even fined again, this time for grubbing and grading just above the reservoir, the dam broke and killed seven people.
And despite that the current county council is still intent on spending millions defending the county rather than cooperating in the investigation and seeking to settle.
Yes, the county quite obviously is responsible too. And if criminal charges are pursued against Pflueger, to let Kusaka or County Engineer (CE) Cesar Portugal and Deputy and once-acting CE Ian Costa (who is now Planning Director)- both of whom knowingly did the bidding of Kusaka in obstructing any investigations- off the hook is certainly an abuse of prosecutorial discretion on the part of Attorney General Mark Bennett.
So of course Pflueger’s lawyers aren’t going to push the county’s guilt since it would be tantamount to admitting Pflueger’s guilt too. Instead they are concentrating on attacking the state, even though the state’s complicity is actually just negligence due to their dependence on a corrupt county as opposed to the active complicity of county.
How, given the bribery and persistent illegal activity for financial gain in the face of prior citations and outraged community, all this makes Pflueger a sympathetic figure and somehow immune from prosecution is something only the underinformed readers of the Honolulu papers could cogitate.
But when the big guns air lift in such as they did yesterday to bring Jimmy Pflueger to justice for murdering seven people (ok “allegedly”- there ya happy now) not only does the Advertiser fetch Diana Leone out of mothballs but the Star Bulletin adds insult to injury by asking downsized Tom Finnegan to file a “special to” report.
And as they and the local paper’s Michael Levine reported, Mike Dyer wasn’t the only one to warn Pflueger about filling in a spillway. The grand jury heard from Tom Hitch- who operated the irrigation system. He did the same and was also told to get lost.
The problem is that the picture that the Honolulu-bound get is one that Pflueger’s lead attorney attempts to paint- that somehow Pflueger isn’t to blame because the state and county didn’t stop him... kind of like saying a bank robber isn’t guilty because no one stopped him until after he robbed it.
And so a comment typical of many appeared below Leone’s piece today saying
Don't comment on this story until you have read the Kaloko dam report for yourselves. After reading that you can see that it wasn't one man all alone at that dam working all the construction himself to create that hazard. Do you know how OLD that man is? There was plenty of contributors to this tragedy, the STATE, and people like THE MAYOR, have some blood on their hands too, even if they dont (sic) want to admit it with such an accessable (sic) scape goat (sic) right there.
The incomplete, quickly-assembled “report” notwithstanding, no one is saying that the state and county weren’t lax, perhaps intentionally and corruptly on the part of the county and former Mayor Maryanne Kusaka who Pflueger says took a bribe from him to make sure the county looked the other way, if Malia Zimmerman’s report is to be believed.
How that somehow exonerates Pflueger is hard to fathom.
The fact that few outsiders know is that Ka Loko wasn’t the first time Pflueger made headlines on Kaua`i.
Two prior incidents- the infamous Pflueger “berm” and the Pila`a mudslide that presaged Ka Loko- should have raised red flags with county administration officials and did with the county council, especially then Councilperson Gary Hooser, when outraged local resident successfully demanded stricter grubbing and grading regulations.
During the “Developers Gone Wild” series of county council meetings over almost a year long period Hooser demanded that the matter be kept on the agenda every week as citizens presented weekly videos of the damage that Pflueger did, along with that caused by developer Tom McCloskey who also enjoyed a “special relationship” with Kusaka. McCloskey donated huge sums to a favorite charity foundation Kusaka controlled and allegedly promised her a luxury oceanside home in his Kealia Kai development.
The first time people on Kaua`i heard the name Pflueger- other than in ads for his Honolulu car dealership- was in the early 90’s when a “berm” appeared along the highway- a 40 foot high embankment that Pflueger illegally constructed on his property’s border without permits and with Pflueger at times seen personally driving the heavy equipment.
The Pflueger Berm, as it became known, blocked ocean view planes and after much protest he was made to take it down.
According to residents- many of whom told their stories before the county council- Pflueger has always had his scofflaw attitude, one that he had learned from McCloskey.
Historically on Kaua`i all that was ever done when illegal construction was done - especially so-called “grubbing and grading” which often included the flattening of hills and mountains- the only punishment the county had ever imposed had been to fine the developer a small amount of money and then usually allow them to file for “after the fact” permits which allowed construction that would have never been allowed in the first place to remain, sometimes with minor and usually useless “mitigations”.
It was way cheaper and more productive to just go ahead and do the dirty work and pay the fines and wind up with what they wanted than to go through the county permitting system and risk being denied.
One complicating factor- one that still has not been “fixed”- is that there were then and still are not now any administrative rules on the books for grubbing and grading fines on Kaua`i even though they were promised by Costa “within six months” after the new grubbing and grading ordinance was passed. The only way for the county to proceed is and was through judicial proceedings with a penalty of only up to $1000 and six months in jail.
But even after the berm episode the only lesson Pflueger apparently learned was that if he were going to do these things without permits, don’t do them along side the highway and block view planes.
His next move was to construct a road- with no plans or permits, using a bulldozer he rode himself- leading down the cliff side of his Pila`a property just above the kuleana of Rick and Amy Marvin.
And when the next heavy rains came a short time later the mountainside fell on top of the Marvin’s tiny house and the beach next to it, killing the reef by burying it under a few feet of mud.
This time Pflueger was fined by the federal government in what was the biggest fine of it’s type ever levied at the time. He still faces- and has managed to stall for many years- a civil damages lawsuit filed by the Marvins.
Then came Ka Loko.
Today Levine for the first time in the mainstream media reports part of what PNN has reported many times in the past:
Bennett also told Valenciano that the Grand Jury had heard testimony that Pflueger had filled in the spillway himself because the permitting process “took too long.” Bennett said illegal grading had been done on the North Shore property in the late 1990s to make room for a private home and a 49-unit condominium project that would have increased the land’s appraised value from $19 million to $68 million.
And Finnegan ends his piece by saying:
Bennett also provided evidence that, while doing the grading work in 1997-98 that allegedly caused the spillway to fill, Pflueger was making home sites so that he could subdivide his land and the land around the reservoir owned by the Mary Lucas Trust, of which he was a trustee and beneficiary.
Now we’re getting somewhere. As we have reported before, according to two sources- FOJ’s or Friends of Jimmy as many called them- this was the whole motive for filling in the spillway- to provide a “lake” as Pflueger called it and provide the “best water skiing on the island” as he told his FOJ's and even promoted in his plans for the development.
To say the county was at best negligent and more likely and apparently complicitous is not a new charge here on Kaua`i. And although the state was technically responsible under a then little known law requiring them to inspect reservoirs in practice the state depended on the county for enforcing grubbing and grading violations without which the dam probably wouldn’t have had any problems.
The county did it’s level best to look the other way, at times even falsely claiming to the council that it was impossible get access to the property unless Pflueger allowed them in until the council appropriated money to at least take an aerial look. As PNN reported at the time the Public Works Department hadn’t even asked the county attorney regarding entry and Kusaka had blocked them from doing so.
Then, after all that, after all the red flags, after all the uproar, after Pflueger was even fined again, this time for grubbing and grading just above the reservoir, the dam broke and killed seven people.
And despite that the current county council is still intent on spending millions defending the county rather than cooperating in the investigation and seeking to settle.
Yes, the county quite obviously is responsible too. And if criminal charges are pursued against Pflueger, to let Kusaka or County Engineer (CE) Cesar Portugal and Deputy and once-acting CE Ian Costa (who is now Planning Director)- both of whom knowingly did the bidding of Kusaka in obstructing any investigations- off the hook is certainly an abuse of prosecutorial discretion on the part of Attorney General Mark Bennett.
So of course Pflueger’s lawyers aren’t going to push the county’s guilt since it would be tantamount to admitting Pflueger’s guilt too. Instead they are concentrating on attacking the state, even though the state’s complicity is actually just negligence due to their dependence on a corrupt county as opposed to the active complicity of county.
How, given the bribery and persistent illegal activity for financial gain in the face of prior citations and outraged community, all this makes Pflueger a sympathetic figure and somehow immune from prosecution is something only the underinformed readers of the Honolulu papers could cogitate.
Tuesday, March 31, 2009
NOT SO FAST THERE ROVER
NOT SO FAST THERE ROVER: Tempest in a teapot, much ado about nothing, not with a bang but a whimper.
Pick you trite cliché but it’s gratifying to see the US Supreme Court (SCOTUS) tell everyone from the respondents to the pundits- and especially to the Hawai`i Supreme Court (SCOHI) - to go home shut the hell up in today’s decision on the “ceded lands” case.
Because despite what the mainstream media and the state is saying the decision did not establish any new federally-sanctioned state “ownership” in any way shape or form, it simply vacated it and remanded it back to the SCOHI.
What they actually said - not what the Honolulu Advertiser or state attorney general wishes they said- was:
(W)e have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judgment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Seems like another typical case of American blind justice and the judges were going to look at the 27 8x10 color glossy photographs with the circles and arrows on the back that purportedly showed state ownership the lands stolen from kanaka maoli lands
The SCOTUS just sent the whole matter back to the SCOHI to re-write their opinion without mentioning the 1993 “Apology Law”.
The decision wasn’t based on their stilted and selectively amnesic recitation of the Amerikan view of the thrift-based “ownership” of the “crown lands”. It was solely based on the use of federal law by the SCOHI.
Most people expected this would happen after the oral arguments. Even most of us who asked what part of the apology’s “confession” made the illegal theft legal didn’t expect true justice from a court that has always endorsed the genocidal underpinnings of Amerika.
Still it was nice to see a rap on the knuckles for both Governor Linda Lingle’s corrupt shyster mouthpiece Attorney General Mark Bennett and the state Office of Hawaiian Affairs (OHA) who thought they were going to get some kind of definitive ruling answering the question of who ‘owns’ the land.
Even we momentarily expected the worst, especially after, as the SCOTUS said,
even respondent OHA has now abandoned its argument, made below, that "Congress . . . enacted the Apology Resolution and thus . . . change[d]" the Admission Act.
But as any SCOTUS watcher knows the prime directive of the Roberts Court is, to paraphrase him, to not make any decision it doesn’t have to make and push it all down the road as long as possible.
What may be the best part of the decision is that it exposes OHA for what it is- nothing more than a cog in the genocidal state and federal machine.
When push came to shove, during the hearing, OHA showed it’s true stripes, basically begging the justices to spare their life, saying they agreed with Bennett et. al, on state ownership of the land... because without state ownership, as a creature of the state they would have and be nothing at all.
Dropping all 30 years of pretense in claiming that they represented the kanaka maoli in any way shape or form, their duplicitous “please have pity on your humble servant oh wise, wonderful and benevolent court” plea was a disgusting show of bureaucratic self- preservation even if it meant the betrayal of their charges.
There’s little doubt that the SCOTHI will go back and purge their opinion of the apology law references and replace them with state law. The process for doing that is contained in the OHA brief in opposition filed in the case.
But then what? Is kicking the can further down the road a strategy that will do anything but allow the thieves to consolidate power behind the now official concept of Amerikan Justice that says that land can owned after being stolen... fair and square?
Certainly this is nothing new in US jurisprudence. Ask any descendent of mainland natives who thought they had rights to their land rights, many with better paperwork than na kanaka have.
Some may think that for now it is a bullet dodged none the less for those who have any hope of maintaining a land base for the reestablishment sovereignty over these islands.
All we can say is don’t count on it being anything beyond, to cite another cliché, the calm before the storm.
For those who haven’t seen it, here’s the SCOTUS decision
When a state supreme court incorrectly bases a decision on federal law, the court’s decision improperly prevents the citizens of the State from addressing the issue in question through the processes provided by the State’s constitution. Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past.” Brief for Respondents 18. But we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judgment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered
Pick you trite cliché but it’s gratifying to see the US Supreme Court (SCOTUS) tell everyone from the respondents to the pundits- and especially to the Hawai`i Supreme Court (SCOHI) - to go home shut the hell up in today’s decision on the “ceded lands” case.
Because despite what the mainstream media and the state is saying the decision did not establish any new federally-sanctioned state “ownership” in any way shape or form, it simply vacated it and remanded it back to the SCOHI.
What they actually said - not what the Honolulu Advertiser or state attorney general wishes they said- was:
(W)e have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judgment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Seems like another typical case of American blind justice and the judges were going to look at the 27 8x10 color glossy photographs with the circles and arrows on the back that purportedly showed state ownership the lands stolen from kanaka maoli lands
The SCOTUS just sent the whole matter back to the SCOHI to re-write their opinion without mentioning the 1993 “Apology Law”.
The decision wasn’t based on their stilted and selectively amnesic recitation of the Amerikan view of the thrift-based “ownership” of the “crown lands”. It was solely based on the use of federal law by the SCOHI.
Most people expected this would happen after the oral arguments. Even most of us who asked what part of the apology’s “confession” made the illegal theft legal didn’t expect true justice from a court that has always endorsed the genocidal underpinnings of Amerika.
Still it was nice to see a rap on the knuckles for both Governor Linda Lingle’s corrupt shyster mouthpiece Attorney General Mark Bennett and the state Office of Hawaiian Affairs (OHA) who thought they were going to get some kind of definitive ruling answering the question of who ‘owns’ the land.
Even we momentarily expected the worst, especially after, as the SCOTUS said,
even respondent OHA has now abandoned its argument, made below, that "Congress . . . enacted the Apology Resolution and thus . . . change[d]" the Admission Act.
But as any SCOTUS watcher knows the prime directive of the Roberts Court is, to paraphrase him, to not make any decision it doesn’t have to make and push it all down the road as long as possible.
What may be the best part of the decision is that it exposes OHA for what it is- nothing more than a cog in the genocidal state and federal machine.
When push came to shove, during the hearing, OHA showed it’s true stripes, basically begging the justices to spare their life, saying they agreed with Bennett et. al, on state ownership of the land... because without state ownership, as a creature of the state they would have and be nothing at all.
Dropping all 30 years of pretense in claiming that they represented the kanaka maoli in any way shape or form, their duplicitous “please have pity on your humble servant oh wise, wonderful and benevolent court” plea was a disgusting show of bureaucratic self- preservation even if it meant the betrayal of their charges.
There’s little doubt that the SCOTHI will go back and purge their opinion of the apology law references and replace them with state law. The process for doing that is contained in the OHA brief in opposition filed in the case.
But then what? Is kicking the can further down the road a strategy that will do anything but allow the thieves to consolidate power behind the now official concept of Amerikan Justice that says that land can owned after being stolen... fair and square?
Certainly this is nothing new in US jurisprudence. Ask any descendent of mainland natives who thought they had rights to their land rights, many with better paperwork than na kanaka have.
Some may think that for now it is a bullet dodged none the less for those who have any hope of maintaining a land base for the reestablishment sovereignty over these islands.
All we can say is don’t count on it being anything beyond, to cite another cliché, the calm before the storm.
For those who haven’t seen it, here’s the SCOTUS decision
When a state supreme court incorrectly bases a decision on federal law, the court’s decision improperly prevents the citizens of the State from addressing the issue in question through the processes provided by the State’s constitution. Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past.” Brief for Respondents 18. But we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judgment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered
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