In the coming weeks, the state Board of Land and Natural Resources is expected to decide whether or not to allow the non-profit Kua`aina Ulu `Auamo (KUA) to replace native Hawaiian educator and cultural practitioner Henry Chang Wo, Jr., as petitioner in the contested case over an `Ewa Beach drainage project that would funnel more urban runoff into the marine waters where he and his kupuna used to collect limu (seaweed) and where he for decades led community efforts to maintain the beds.
When Chang Wo died from mesothelioma on September 19, he was in the midst of a decade-long fight to prevent Haseko (`Ewa), Inc., from directing drainage from its Ocean Pointe development into the waters off One`ula Beach Park. After the Land Board denied Haseko’s bid several years ago for a state Conservation District Use Permit (CDUP) to lower a 500-foot-wide sand berm spanning the park by a few feet to create a larger outfall, the company tried again in 2011. This time it was joined by the state Department of Hawaiian Home Lands, the City and County of Honolulu, and the University of Hawai`i. The parties argued that lowering the berm would meet the city’s 100-year storm flow requirements for the Kalo`i Gulch watershed and, thereby, allow them to develop lands currently used or reserved for stormwater retention.
Over the objections of Chang Wo and Michael Kumukau`oha Lee, also a native Hawaiian cultural practitioner, the Land Board granted the CDUP in March 2012. Chang Wo and Lee argued that the increased runoff resulting from the project would harm the seaweed that they used for their traditional and customary native Hawaiian practices.
After a contested case hearing in 2013, the Land Board again issued the permit in June 2014. Chang Wo appealed to the 1st Circuit Court, which in December remanded the issue of whether a supplemental environmental impact statement for the project should be done. The Land Board heard oral arguments in March, but held off on issuing a decision pending a site visit, which took months to get court approval for.
In asking the court’s permission in June, state deputy attorney William Wynhoff noted that since the Land Board granted the permit, the composition of the board has significantly changed. Of the board’s seven members, only Maui Land Board member Jimmy Gomes signed the original decision and order.
After the March hearing on the SEIS issue, Wynhoff wrote, “Board members were concerned that they had not been to the subject area [and] felt they would be able to make a better and more informed decision if they first did a site visit.”
On August 5, the court issued its order granting permission for the Land Board to conduct a site visit, which was scheduled for late September. By early September, however, Chang Wo’s health had sharply declined and his attorneys at the Native Hawaiian Legal Corporation were preparing to substitute KUA as the petitioner in the contested case hearing.
In their September 17 motion to the Land Board, NHLC attorneys David Kimo Frankel and Li`ulā Nakama wrote, “Because the BLNR has all the information it needs to make a decision and because it even has proposed orders from the parties, Uncle Henry urges the BLNR to promptly issue a decision once it concludes its site visit.”
“Corporations may live forever, but people do not. Mortality should not extinguish the ability of Hawaiians to carry on their cultural traditions. Allowing KUA to grab the `auamo for him is fitting. Please permit KUA to substitute for Uncle Henry,” they wrote. (An `auamo is a “pole or stick used for carrying burdens across the shoulders,” according to the Hawaiian dictionary site wehewehe.org.)
Chang Wo himself stated in his September 10 affidavit that he wished to ensure that his cultural tradition could be carried on by future generations. He added that he had been working with KUA and its predecessor organization for several years “networking with other limu practitioners and passing on my knowledge and skills to a new generation of limu
KUA executive director Kevin Chang added in his declaration that Chang Wo was a founding kupuna of KUA, which “empowers communities to improve their quality of life through caring for their biocultural (natural and cultural) heritage.
Inspired by Chang Wo, KUA has organized a network of limu practitioners “committed to sharing knowledge and perpetuating practices,” Chang wrote.
The Land Board has not decided on the NHLC’s motion, but instead issued a minute order on October 9 requiring the permittees to submit any opposition by October 23 and the NHLC to provide its response by October 30.
According to DLNR staff, the majority of the Land Board visited the site on September 24; its chair, Suzanne Case, went on her own on October 6.
The Right Venue
Whether the Land Board or the 1st Circuit Court should be the entity approving Chang Wo’s replacement is a question apparently up for debate.
On September 25, less than a week after Chang Wo’s passing, attorneys for the University of Hawai`i filed what’s called a “suggestion of death upon the record” with the 1st Circuit Court — a “pretty rude” move, according to Frankel.
“They didn’t need to do that so quickly,” he says.
In its filing, the university cited rule 25(a)(1) of Hawai`i Rules of Civil Procedure, which states that if a party dies and the claim is not thereby extinguished, the court may order a substitution.
“The motion for substitution may be made by any party or by the successors or representatives of the deceased party,” and it must be filed within 120 days after the death is suggested upon the record. Otherwise, “the action shall be dismissed as to the deceased party.”
Frankel noted in a September 30 letter to 1st Circuit Judge Rhonda Nishimura that UH had failed to note in its filing that he had already filed a motion for substitution with the Land Board.
“Given the primary jurisdiction of the BLNR in this case as to the motion to substitute, the court should await the BLNRs’ decision,” he wrote.
Nishimura held an off-the-record status conference on October 2 with attorneys for all the parties. Given the Land Board’s minute order, it appears that the court is at least allowing the NHLC’s substitution motion to proceed. Whether or not it will require the same type of motion to be filed in the court case remains to be seen.
On October 23, all of the attorneys representing the permittees filed a joint memorandum with the Land Board opposing the substitution. They argued first that the Circuit Court, not the Land Board, had the authority to decide the matter. They added that, in any case, KUA was “not a proper party for substitution” because Chang Wo never transferred any of his personal rights to the organization.
— Teresa Dawson
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?” EH-XTRA, April 1, 2015.
Volume 25, Number 7 November 2015