CIRCLE GAMED

CIRCLE GAMED: It seemed too good to be true when those who have been fighting to keep the alaloa at Lepe`uli (Larson’s) Beach informed us that, through his attorney Lorna Nishimitsu, Bruce Laymon said he was surrendering his Conservation District Use Permit (CDUP) and apparently would not be fencing off the ancient trail, denying easy access to the shoreline.

But there it was in black and white. And when the Board of Land and Natural Resources (BLNR) made it official at its meeting in Honolulu a week ago the activists couldn’t believe all their hard work had paid off.

But guess what- as if you haven’t already?

Yesterday the calls and emails started flowing in saying that Laymon had begun clearing and fencing off the alaloa anyway.

According to a email from Hope Kallai of Malama Moloa`a, Laymon is “actively preparing to fence in the area of the alaloa.”

Laymon has already “brushhogged dunes 2 weeks ago (before the surrender)” according to Kallai and she cites an informed source who spoke to Laymon who told her Laymon is “planning to remove all the ironwoods and plant grass.”

Kallai also says that the harassment has begun again and that “(p)ig hunters were shooting this weekend towards the beach. Beach goers were discussing caliber size not wave height.”

And while Kallai could not be reached for further clarification today, others who phoned told us that the fencing work has actually begun.

But how could that be?

Kallai says that “(t)he ‘victory’ was all smoke” and that apparently Nishimitsu is claiming that the conservation district ends makai of the alaloa.

In her letter to the BLNR surrendering the CDUP Nishimitsu cryptically wrote:

Paradise Ranch has been waiting far too long to fence the makai section of its leased lands to expand its pasture area and needs to attend to confining its livestock while providing it the best forage possible.

The contested case before the BLNR was going to rest in small part on past contentions from Nishimitsu and Laymon about the actual location of the alaloa that have since been shown to be false. But thus far there had never been a contention that the alaloa did not rest in the conservation district and, rather, was in the state Agricultural District.

But while how the BLNR will react and how the determination of the conservation district boundary will be made isn’t yet clear, there is another, more local apparent violation- that of the “over the counter” or “minor” Shoreline Management Area (SMA) Permit Laymon has to do the clearing and fencing.

The SMA is a federal provision under the Coastal Zone Management (CZM) Act that is administered by the county under state law. And any work done in the SMA- which many times exceeds the reach of the state conservation district as it apparently does in this case- no matter how minor, must have an SMA permit.

A “minor” SMA permit is different from a regular SMA in that it is not determined by the planning commission which would call for staff reports and public hearings but is issued “over the counter” based on representations to department staff. And the main determining factor for whether a “minor” SMA can be issued is the cost of the work to be done in the SMA area.

And that cost, last we checked, is $125 or less.

Of course there’s no way in hell the cost of the clearing and fencing operations are that low but a complaint must be filed and the department staff must ascertain the truth of the matter.

While it should be pointed out that we haven’t been able to actually see the operation and haven’t been able to independently verify what is going on at Lepe`uli with Laymon or Nishimitsu, multiple sources apparently confirm each others’ stories.

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.