THE CONTADINA CONSPIRACY

THE CONTADINA CONSPIRACY: This week is commonly known as "are you insane?" week. Okay no it's not... we made that up. So sue us.

But it's a different March Madness that is driving us batty, not the one that has been- and will be- absorbing all of our time and keeping the care and feeding of this beast to a minimum.

It's "Crossover" week at the state legislature when, every year, there are a number of Frankensteinian, "what could you possibly be thinking" bills that have actually passed either the house or senate and are "still alive"... and about to be considered by the power-drunk, disconnected-from-reality officials on the other side (certainly not "our" side) of the lege.

But this year the sheer number if not the content of a passel of piss-poor provisions- ones seemingly designed to eliminate all environmental and land use protections in the name of "economic development"- can only be the product of a group of truly warped, if not criminally corrupted, minds.

We were going nuts over which was more important- this week's conference tournaments or compiling a list of these bills and giving a brief explanation of each... maybe even come up with an algorithm of the precise angle and number of times we should bang our head against the wall.

It was looking like the latter was losing out to that soothing sound of sneakers screeching on gym floors.

But wouldn't you know darn it- you're in luck.

Eleven term State Representative Cynthia Thielen- a Republican of all things and the ranking member of the House Energy and Environmental Protection, Water, Land and Ocean Resources and Judiciary Committees- has penned a handy-dandy guide to what she calls the "Dirty 8 (that) Erode Three Decades Of Landmark Environmental Law," as published in yesterday's "Civil Beat."

In her tome she lists the bills that have "crossed over," describing each and prefaced by the history of how the Hawai`i Environmental Protect Act (HRS § 343) and Shoreline Management Area legislation (HRS § 205A) came to be law.

She writes that :

our State Legislature is ignoring what this body established over three decades ago by now passing legislation that exempts government projects from this public environmental review process. This includes exemptions for government departments and agencies with long track records of being in violation of this landmark law, such as the Department of Transportation (think back to the lawsuit against DOT's H-3). This is a sad day for our public, and it brings shame to our Legislature.

Uh, we might have mentioned the SuperFerry instead but why quibble.

Thielen goes into greater detail and for how diabolical these eight pieces of crap really are and we urge you to read it in full... if you really want to get infuriated that is.

But, somewhat truncated, here they are:

1) HB530 is perhaps the worst of the Dirty 8 as it gives the Office of Planning the ability to grant or deny Special Management Area permits and shoreline setback variances for State structures and activities in shoreline areas. HB530 essentially exempts DOT and the Department of Land and Natural Resources (DLNR) from the Coastal Zone Management Act. More specifically, HB530 has the potential to exempt an undersea cable from environmental review.

2) HB2145 is simply titled "Relating to Economic Development" yet it states it is the policy of the State to complete certain key projects by December 31, 2023, such as the undersea, interisland cable and fixed rail.

3) HB2154 endangers Hawaii's shorelines by adding a temporary exemption from the Special Management Area Use and Minor Permit requirements for certain airport development.

4) HB2324 exempts the upgrading and new construction of broadband facilities on State and County property from State and County permitting processes.

5) HB2325 requires the State and Counties to approve, approve with modification, or disapprove all broadband related permits within 45 days. If no action is taken, the application will be approved on the 46th day. This bill allows for automatic approval of projects without first considering their impact.

6) HB2611 (and its Senate companion SB2873) temporarily amends Chapter 343, HRS, to clarify current EIS exemptions for certain secondary actions. The Department of Transportation sought the exemptions instead of seeking the Environmental Council's approval for secondary action exemptions on highway projects.

7) HB2613 exempts the Department of Transportation, Harbors Division from the permit and site plan approval requirements relating to submerged lands within the State land use conservation district, which contains important natural resources essential to the preservation of the State's fragile natural ecosystems and sustainability of the State's water supply.

8) HB2690 streamlines the geothermal development process by exempting all exploration and drilling from any environmental review, allowing such activity in all State land use districts and conservation district zones and repealing geothermal resource subzone provisions under State land use law.

She concludes by saying

As the Dirty 8 bills move swiftly through the Legislature, we are in danger of rewriting our legacy of environmental law by exempting projects from the specific environmental review processes which protect our vital natural and cultural resources and ensure our economic stability. These bills ignore decades of law introduced by Hawaii's esteemed leaders and environmental pioneers, and threaten the integrity of Hawaii's environment and the prosperity of its people. Instead of tearing down environmental protections and reversing laudable statutes, we should be heeding the wisdom of our predecessors and ensuring a viable future for generations.

If you want to help kill the beast where it lives, tracking bills is easier than ever. Have you pitchfork and torch at hand and go to the Capitol web site Once there enter the house bill (HB) number at the top on the left where it says "Bill Status/Measure Status." That will let you know what the number of the senate version (SB) is- once it is given one.

Then, when it says (at the bottom of the status page) that a hearing has been scheduled you can click on the "Submit Testimony" button which takes you to a page where you can do just that.

If you can't wait you can email all the senators at sens@capitol.hawaii.gov or all representatives at reps@capitol.hawaii.gov . Although tracking the bill and submitting testimony when it is scheduled is said to be more effective it's incredibly difficult and time consuming especially when you're opposing things like eight lousy tomatoes shoved up our little bitty cans- and especially since hearings only have 48 hour notices, even less if they don't feel like it.

Be back Monday.

Go 'Cuse.

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.

AND THE WALLS CAME TUMBLIN’ DOWN

AND THE WALLS CAME TUMBLIN’ DOWN: It was a good news/really bad news moment when the Honolulu-based, on-line news venture Civil Beat launched a while back.

Many were excited over the prospect of whatever each envisioned was needed until we learned that it was going to be, in the words of Disappeared News’ Larry Geller, a “gated community” and would cost $240 a year to enter.

Worse yet, for Kaua`i at least, it meant losing ace reporter Big Mike Levine who moved on to become one of their “reporter-hosts”.

But we heard from Mike yesterday that there are going to be “some changes to civilbeat.com” and that “(e)verything we've been working on is now free for occasional readers.”

No telling what “occasional readers” means but we were able to read stories yesterday and again today.

We wonder what those who paid for a year are thinking... probably much the same thing we did when we got to Woodstock after having paid 18, 1969 dollars for tickets and found the fences on the ground.

Many have wondered how they were doing, especially since they’ve been tight-lipped about how many subscribers they have. And things might have gone from bad to worse recently with the blow back against CEO, Publisher and Co-founder Pierre Omidyar’s other venture, “Pay Pals,” after they banned Wikileaks from using the service- causing at least one notable cancelled subscription.

But really the prime subject of Mike’s letter was to point us to an article by one of his fellow “host-reporters” Adrienne LaFrance headlined “Obama's Winter White House an Illegal Rental”

According to her story:

Obama did not break the law by staying at the house, but the property owner who rented his house to the Obamas does not have the permit that would allow a stay of fewer than 30 days.

Although the owner claims he got around the law by leaving a 30-day window between rentals, the

explanation is one that's commonly offered, but that still represents an illegal renting practice...

"Maybe it's that the people are circumventing the law or thinking, 'Oh, I'll only rent it to one person in a (30-day) period," said Andrew Malahoff, a spokesman for Honolulu City Council member Ikaika Anderson, who chairs the city's Zoning Committee. "They say, 'Even though they're only going to stay there for seven days, I'll charge them for (30) days, and prorate that.' But as far as we know, that is also not legal. You will not rent for a period of less than 30 days. That's what's in the land-use ordinance. It's not just about multiple rental parties, it's the period of days."

It’s hard to see how, if the owner just rented it out for 30 days and the vacationer decided to stay there for only two weeks it could be illegal. But then again we’re not really familiar with all of the planning and zoning laws in Honolulu.

But one thing we are familiar with that LaFrance is apparently unaware of- something that occurred to us years ago when we first heard of the President’s beach house rental- is the fact that the Department of Land and Natural Resources’ (DLNR) Division of Conservation and Resource Enforcement (DOCARE) has cracked down on vacation rentals in the state conservation district (CD) sending “cease and desist” letters to those operation in Wainiha on the North Shore of Kaua`i and in Kane`ohe on O`ahu- not far from the president’s rental.

According to an April 2007 article in the local Kaua`i newspaper

The state Department of Land and Natural Resources has issued notices to 16 property owners in Ha‘ena to halt alleged unauthorized use of multi-million-dollar homes as vacation rentals.

Most of the 16 homes are on makai, or on the ocean side, of Kuhio Highway, from the YMCA’s Camp Naue to Limahuli Stream. Most are clustered around Makua Beach, also known as Tunnels.

A condition in the state Conservation District Use Application, which a property owner secures before building in the state’s conservation area, stipulates a single-family home cannot be used for rental or any other commercial purposes, Peter Young, chairman of the Board of Land and Natural Resources, said in a March 23 letter to alleged violators.

In one case, the cease-and-desist order could force the owner to sell a property worth millions, and may be the scenario facing other supposed violators as well, said Gary Stice, a Kaneohe, O`ahu resident who received one of the letters.

At the time of the letters many of the operators shut down their rentals but according to at least one anti-vacation rental activist many have reopened and DOCARE has apparently dropped the ball.

It also brings up the question of whether the house has a Shoreline Management Area (SMA) permit- which generally include use descriptions- for a vacation rental. But that would also be a City and County of Honolulu issue.

So far the report hasn’t gotten any press either statewide or nationally. But whenever the president is involved, stories including the word “illegal” tend to grow virally.

And the vacation rental issue could certainly use a little viral publicity considering the disease they cause in otherwise quiet residential neighborhoods.

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.