EDITORIAL

posted in: Editorial, February 1997 | 0

The Fatal Flaws of the Hanalei Plan

The name may conjure up visions of a tropical paradise for many, but increasingly, to people on Kaua’i as well as across the state, Hanalei is synonymous with intractable, deep-seated community conflict. People in Kane’ohe tell the Land Board they fear becoming “another Hanalei.” At a legislative hearing, senators question a prospective Cabinet member about his thoughts on the “Hanalei” situation.

Perhaps it is inevitable that a place of such great beauty should become a battle ground, pitting those who desire to protect its resources against those whose primary interest is to exploit them.

Now Lynn McCrory, Kaua’i member of the Board of Land and Natural Resources, and Gary Baldwin, chairman of the Kaua’i Planning Commission. Both pride themselves on their business acumen and can-do attitude. Since June, and possibly earlier, they have resolved to bring the Hanalei conflict to an end.

No one involved in, or even witness to, the extraordinarily rancorous and hostile conflict could possibly desire to see it protracted a minute longer. Yet precisely because it is so deep, the conflict is not likely to be easily or quickly resolved.

Without apparent regard to the origin of the conflict, complex legal questions, McCrory and Baldwin rushed in where no angel would dream of setting a timorous toe. Baldwin and McCrory determined that in six months, they could bring peace – or at least truce – to Hanalei.

And while that truce, uneasy or otherwise, holds for the next three years, the McCrory -Baldwin plan runs, the community can rally ’round a planning process in which McCrory has vested her full religious faith: Levels of Acceptable Change.

The outcome of that three-year process would be a plan for Hanalei that, McCrory believes, would be acceptable to all and objectionable (on the whole) to none. Boaters and environmentalists, like the lion and the lamb, would lie down together in peace. The state would enforce its laws. The sun would shine in Hanalei.

Yes, and pigs would sprout wings and fly. Were they naive? Yes. A less charitable observer might even call them arrogant.

McCrory has acknowledged to Environment Hawai’i that she took no special interest in the boating issue in years past, although she did watch cable television broadcasts of meetings on the Hanalei Estuary Management Plan back in 1991 and 1992. (She thought they were appalling.) She distributed to other Land Board members background papers on the dispute that contained numerous errors of fact or opinion expressed as fact. In short, while her good will seems abundant, her understanding of the issues is thin and not always drawn from reliable sources.

Top-Down Grass Roots

More to the point, her determination to resolve the issue through a grass-roots style of community planning is inherently contradictory. You simply can’t have top-down grass-roots planning. In addition, it ignores the fact that there have been many grass-roots organizing efforts in Hanalei and surrounding towns that have attempted to bring to the attention of legislators, Land Board members, county officials, and anyone else who would listen their concerns about the impact of boaters on their lives and life styles.

There have been the landowners at Makua, who organized in objection to the Land Board’s authorization of the beach fronting their property as a launching site for tour boats. They’ve been ignored for as many years as they’ve been organized.

There has been the grass-roots environmental organization Wai Ola, which has repeatedly been subjected to legal harassment, through the filing of SLAPP suits, by unpermitted boaters. (All such suits have been judged to be groundless and dismissed with prejudice, though not without cost to the defendants.)

There is the Hanalei Community Association, which was all but ignored in McCrory’s and Baldwin’s plan to fix the problem.

There is, finally, the county’s own Hanalei Estuary Management Plan. While many boaters did not like the outcome, and although McCrory has herself determined it to be inadequate, the community’s involvement in the process, from start to finish, would seem to be full and vigorous.

It is odd, indeed, to imagine that all the people whose voices have been ignored for years should now willingly and enthusiastically participate in a three-year long process just because Lynn McCrory has embraced it.

An EIS?

One of the central points made by environmentalists for the last decade is the need for an environmental impact statement, prepared according to state laws, to be approved before there is any permitting of boaters.

The boating industry developed in the absence of any environmental disclosure of its effects. By the time the community began to question its impacts, in the mid-1980s, the industry was carrying at times more than 1,000 passengers a day, in as many as 50 boats, up Na Pali Coast. The traffic on the roads, the congestion in the rivers, the use of state and country lands – all were of great enough significance to trigger the state EIS law, Chapter 343.

However, the state’s position has been that the simple promulgation of rules for boating does not in itself trigger Chapter 343.

Frankly, it makes no sense to establish maximum levels of activity and passenger counts through administrative rule-making unless there is an assessment of the environmental, social, and cultural impact such activity will have. All these impacts would be disclosed through preparation of an EIS.

The McCrory-Baldwin plan anticipates that some kind of environmental study would be done in the LAC process that would be used three years hence in setting appropriate levels of boating activity. This is tantamount to an admission that an EIS is needed. And once that admission is made, there can be no logical reason for postponing its preparation another minute, much less three years.

A Conflict?

To her credit, McCrory has disclosed to the public the Ethics Commission’s analysis of whether her financial interests disqualify her from voting on proposed rules for boating. That analysis, based on the state Ethics Code, found no problem.

However, the conflict-of-interest standard for Land Board members, as set forth in Chapter 171, is far more stringent than that contained in the Ethics Code. For an opinion on this, McCrory turned to the state Attorney General, which, frankly, has failed her.

It would seem as though Pam Matsukawa, the deputy attorney general to whom McCrory’s question was assigned, gave it only a cursory review before noting McCrory by telephone that there was no conflict. Although Marsukawa promised to give McCrory a written response, a month after that oral opinion was rendered, McCrory still had nothing in writing.

Chapter 171, Section 4 is extremely clear. If a board member has any interest, direct or indirect, in a matter pending before the board, he or she is prohibited from voting on or even discussing that matter. Period. There is no qualification as to whether the indirect interest is significant or substantial. As McCrory herself has acknowledged, she does have a potential indirect interest, however small, in the outcome of a lawsuit filed by permitted boaters against the activity desk operated by a company whose majority stockholder is McCrory’s boss and which pays substantial rents to McCrory’s employer.

Broken Promises

Land Board chairman Mike Wilson promised – sort of – to enforce state rules at Hanalei when he was confirmed by the Senate in 1995. Two years – and no enforcement – later, he made no bones about the fact he had decided not to enforce. Unpermitted boaters, he said, need not worry about enforcement. They’d be given plenty of notice before the state waltzed in.

Why has the state been reluctant to enforce? It is not simply because the county did not want the state to do so. As late as 1996, Mayor Maryann Kusaka expressed her disappointment with the lack of any state enforcement presence at Hanalei.

All things considered, it would seem as though Wilson, McCrory, Baldwin, and other elected and appointed officials, whose sworn duty is to uphold the law (and not just those portions of it they happen to like), have decided that, in Hanalei at least, all bets are off.

The signals sent to the illegal boaters are clear. They are placed squarely in the driver’s seat. Compliance with laws is not required and no new rules will be adopted if they aren’t acceptable to the boaters.

Under these circumstances, it is difficult to imagine that the boaters will ever accept limits on their activity. If someone does not now willingly obey a law he does not like, is it hardly reasonable to expect him to do so at a future time.

Yet this expectation is at the heart of the McCrory-Baldwin plan. For this reason alone, there can be but little hope that it will succeed.

Cautionary Tales

In our Island Watch column, we note the striking successes of two legal actions in which citizens challenged the actions of county agencies. In the first case, the Maui Planning Commission was found by the state Supreme Court to have erred in issuing a Special Management Area permit to a developer without having required an environmental assessment. In the second, the Hawai’i County Council was determined in Circuit Court to have violated the Sunshine Law.

When citizens participate in agency decisions, whether to comment on proposed actions or engage in contested case hearings, the playing field is not always level. Usually, they are disadvantaged by not having high-paid legal counsel, having limited free time and limited resources to cover costs of travel, copying, and other expenses associated with mounting an effective, persuasive case.

Our hat is off to Maui attorney Isaac Hall and the Kahana Sunset Owners Association, and to Judy Graham and Jerry Rothstein, who prevailed in the Hawai’i County case. May their examples inspire others to stand up for what is right.

Volume 8, Number 6 December 1997