Circuit Court Dismisses Appeal Of Kaloi Gulch Permit 

posted in: November 2017 | 0

Stewards of the famed seaweed resources off ‘Ewa Beach suffered a major blow earlier this year. On September 29, 1st Circuit Judge Keith Hiraoka issued his official order denying a years-long effort by the group Kua‘aina Ulu ‘Auamo (KUA) to replace the late limu expert and teacher Henry Chang Wo, Jr., as the petitioner in a contested case over a state permit for drainage improvements at the mouth of Kalo‘i Gulch in ‘Ewa Beach.

In June 2014, following a contested case hearing, the Board of Land and Natural Resources granted a Conservation District Use Permit to Haseko (‘Ewa), Inc., the University of Hawai‘i, the state Department of Hawaiian Home Lands, and the City and County of Honolulu’s Department of Planning and Permitting. The permit would have allowed the lowering of a sand berm at One‘ula Beach Park to allow an increased amount of stormwater runoff to enter the ocean where Chang Wo collected limu and taught community members how to maintain the beds. Represented by the Native Hawaiian Legal Corporation, Chang Wo fought the permit in 1st Circuit Court.

The court remanded back to the Land Board the matter of whether or not the permittees needed to conduct a supplemental environmental impact statement following the sighting of an endangered Hawaiian monk seal on the beach. By the time it did so, however, the board had taken on a number of new members who took some time to familiarize themselves with the case. They did not make a decision by the time Chang Wo passed away in September 2015.

Shortly before his passing, the NHLC asked the Land Board to allow KUA to take his place as the petitioner in the case. The permit applicants, however, argued that the authority to allow a replacement rested with the 1st Circuit Court, not the board.

To allow KUA to take Chang Wo’s place as petitioner “would be to open the back door to KUA’s participation where it would not have been allowed entry through the front door,” their memo in opposition states.

In their response, NHLC attorneys David Kimo Frankel and Liula Nakama wrote, “It would be illogical and unfair to interpret [the Land Board’s substitution rule] to allow perpetual corporations and agencies to freely substitute and sell interests, but deny that ability to Native Hawaiians who live, breathe and die.”

The Land Board ultimately decided that KUA could replace Chang Wo as the petitioner, but the permit applicants appealed to the Circuit Court.

On September 20, Judge Hiraoka held a hearing and orally ruled that, despite the caliber of the NHLC’s arguments, the Land Board did not have the authority to grant the substitution. “Since the time period to request the substitution [from the court] had lapsed, a new substitution request can no longer be entertained by the court,” KUA reported in a hearing update. Hiraoka also granted the University of Hawai‘i’s motion to dismiss Chang Wo’s appeal altogether. His written order followed on October 3.

For Further Reading 

“Limu Stewards Oppose Plan to Alter Sand Berm in ‘Ewa”,
Board Talk, May 2012;

“Board Grants Contested Case on Kalo‘i Gulch Berm Project,” Board Talk, October 2012;

“Fight Over ‘Ewa Drainage Project Continues as Limu Gatherer Challenges It in Court,”
October 2014;

“Does the Kalo‘i Drainage Project Need a New EIS?” EHxtra,
April 1, 2015;

“Future of Kalo‘i Gulch Case Hinges On Limu Group Replacing ‘Uncle Henry,’” November 2015; and

“NHLC: It Would Be ‘Illogical, Unfair’ To Bar Substitution in Kalo‘i Gulch Case,” December 2015.

All articles are available at environment-hawaii.org.

— Teresa Dawson 

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