The 2011 session of the Hawai`i Legislature won’t go down as a great one so far as the environment is concerned. Robert Harris, executive director of the Sierra Club, Hawai`i Chapter, has called it “deeply disappointing.” Still, several of the bills that made it into law will probably have far-reaching consequences, for better or worse, for Hawai`i’s natural resources and environmental health.
One of the shortest bills – less than a page long – is, from an environmental standpoint, also one of the best: Act 36 (House Bill 865). This raises the agricultural inspection fee on imported freight to 75 cents per one thousand pounds from the previous tariff of 50 cents, allowing beefed-up quarantine inspections for incoming freight, whether it arrives by air or sea.
One of the longest – at 44 pages – is among the most controversial: Act 55 (Senate Bill 1555). This sets up a new agency, called the Public Land Development Corporation, and gives it broad powers to develop state land and partner with, even finance, private enterprises. In addition, the corporation is exempt from compliance with the state land use law and county zoning and subdivision standards.
Bills to promote energy independence, to reset the requirements for a minor Special Management Area permit, to set up (again) a South Kona wilderness area, and to clear the way for cleanup of brownfields in Kapolei are also now the law of the land.
What follows is a more detailed analysis of several of the new laws.
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Act 55: The Public Land Development Corporation
If one reads no further than the “findings and purpose” section of Senate Bill 1555, introduced by Donovan Dela Cruz, it seems innocuous enough. “Public lands in certain areas may serve the State and its people better if managed and developed into suitable recreational and leisure centers where the public can congregate and where visitors to our State can go as part of their holiday experience,” it reads.
“However, the department of land and natural resources is hamstrung by its limited mission,” the preamble continues. The establishment of the Public Land Development Corporation “may help to create these recreation and leisure areas, while also creating revenue-generating opportunities for the new corporation.” The revenues generated “may be used to offset the regulatory functions” of the DLNR, the bill goes on to say.
The DLNR response was chilly: “as drafted,” said administrator William Aila in his written testimony, “the bill will likely only serve to create an additional organizational layer, and … the transfer of all of the public lands suitable for development from the Department to the new corporation will hamper the Department’s attempts to expand its revenue generation because any revenue generated from those lands would first go to the new corporation and only the excess, if any, would be transferred to the Department to cover operational expenses and programs.”
Initially, the bill also proposed allowing commercial vessels to use Ke`ehi Lagoon and Ala Wai small boat harbors. Members of the boating community and owners of condos at the Ilikai protested, and by the time the bill made it out of both chambers, the provisions offending to these groups had been largely removed. However, subject to the approval of the DLNR, the corporation may still “assume management responsibilities for small boat harbors … for periods not to exceed one year.” Also, the legislation provides for the corporation taking over development projects at all small boat harbors by June 30, 2013, at the latest.
Apart from the boaters and condo owners, the bill attracted little public attention as it moved through the Legislature. The only testimony of agency heads came from Aila and Kalbert Young, director of the Department of Budget and Finance. Young was critical of the bill from a technical viewpoint. He observed that any revolving fund (such as that to be set up by this bill) should show “a clear nexus between the benefits sought and charges made upon the users,” provide “an appropriate means of financing for the program or activity,” and “demonstrate the capacity to be financially self-sustaining.”
“In regards to Senate Bill No. 1555,” he commented, “it is difficult to determine whether the fund will be self-sustaining.”
Young also observed that the language of the bill anticipates that the corporation could be operated as a for-profit entity, and in that case, it would probably not be able to issue tax-exempt revenue bonds. “Taxable revenue bonds, with interest rates higher than those of tax-exempt revenue bonds, may need to be issued to finance the project.”
The bill passed through conference committee and sailed through to passage in both houses. Ten representatives (Karen Awana, Dela Au Belatti, Tom Brower, Fay Hanohano, Jo Jordan, Chris Lee, Sylvia Luke, Scott Saiki, and Jessica Wooley) voted against the bill, as did one senator (Les Ihara). Governor Abercrombie signed it into law on May 20, despite an eleventh-hour effort by Hawai`i’s Thousand Friends and some members of the Environmental Caucus of the Democratic Party to derail the measure.
From Shadow to Spotlight
Only in June, after Richard Lim, director of the Department of Business, Economic Development, and Tourism, spoke to the Hawai`i Economic Association, did Act 55 begin to receive greater scrutiny. Dan Nakaso, a reporter for the Honolulu Star-Advertiser, covered the event, quoting several inflammatory statements from Lim in the article he wrote, published on June 3.
Lim called for improving parks and other state lands that have been taken over by “undesirable elements,” Nakaso reported. Lim went on to pin “vicious maintenance costs” that “drain[ed] our economy” on vandalism.
Although in his prepared remarks he insisted that he was “all for protecting the environment,” he mocked the groups that defeated the Hawai`I Superferry: “Ten surfers and a couple of well-heeled NIMBYs can wipe out economic development in the state,” Nakaso quoted Lim as saying.
Lim described the state as having “vast land resources which currently represent a drain on the state’s coffers due to heavy maintenance costs…. By engaging in public-private partnerships, we hope to turn this situation around.”
On June 22, Ian Lind, apparently spurred by an email from Donna Wong, director of Hawai`i’s Thousand Friends, connected the dots between Lim’s comments to the HEA and Act 55. “State moves towards privatization and development of public lands without regard to zoning or land use laws,” read the headline on Lind’s blog that day. Act 55, he wrote, “will create a potentially very powerful Public Land Development Corporation to implement Lim’s strategy for privatizing public resources.”
“The new PLDC is charged with selecting land from the state inventory and promoting private development for projects,” which may include office space; parking; commercial uses, hotel, residential and timeshare units; fueling facilities; storage and repair facilities, and seawater air conditioning plants, Lind noted. He went on to quote Wong, who had “warned in an email that ‘all public land will be for sale.’”
(Lim did not submit testimony at any of the hearings on the bill. However, after the measure became law, he is now “pushing everything” so far as setting up the corporate board goes, according to a source at the DLNR.)
Yes – and No – and Maybe
Whether Act 55 does, in fact, allow the PLDC to pluck the plums from the state’s land inventory and dump them into the laps of developers is not clear. One paragraph tucked into the law would seem to put beyond the corporation’s reach any lands in the DLNR’s current inventory.
Specifically, the language of Section 4(b) reads:
Notwithstanding subsection (a) to the contrary [subsection (a) lists 21 powers
of the new corporation], the corporation shall not acquire, contract to acquire by grant or purchase, own, hold, sell, assign, exchange, transfer, convey, lease, or otherwise dispose of, or encumber any real, personal, or mixed property that is owned by the department as of July 1, 2011, except as expressly provided in this chapter.
What the new law expressly provides addresses development proposals at the small boat harbors managed by the DLNR’s Division of Boating and Ocean Recreation.
On its face, the law would thus seem to deny the corporation any use of land now held by the DLNR. If that is the case, it would seem to stall out the PLDC before it gets started.
However, in an interview, Dela Cruz stated that it is wrong to read Section 4(b) as though it were telling the corporation to keep its mitts off public land now in the DLNR’s inventory. Instead, he insisted repeatedly, Section 4(b) means only that any requests for proposals that the DLNR has outstanding as of July 1 shall not be taken over by the PLDC, with the “express provisions” referring to the PLDC taking over all developments at small boat harbors within two years. To Dela Cruz, the language had no ambiguity; he defended it as having been drafted by attorneys on the Senate staff and in the Legislative Reference Bureau.
The apparent hands-off language was not a part of the bill as it moved through committees in the House and Senate. It was rather inserted at the last minute by the conference committee, chaired by Dela Cruz and David Ige for the Senate, Jerry Chang and Sharon Har for the House. (Other conference committee members were Senators Brickwood Galuteria, Ron Kouchi, Malama Solomon, and Sam Slom; and Representatives James Tokioka and Gil Riviere.)
Whatever the meaning of this paragraph, language further on in the law seems to open the DLNR’s land pantry to PLDC raids: “Notwithstanding Chapter 171 [dealing with public lands] or any provision of this chapter to the contrary, the department may transfer, subject to the approval of the board of land and natural resources, development rights for lands under its jurisdiction to the corporation…” One source at the DLNR suggested that by giving the corporation development rights to state land instead of title to it, the corporation could get around the earlier restriction on use of lands in the current inventory. But if the development requires bonding (as the new law anticipates), and the bonding entails placing a lien on the real property being developed, it would run up against the many prohibited actions listed in 4(b).
Act 55 also seems to undercut Chapter 171 in another way, through the direct lease of state lands. Anyone now wanting to use state lands is required to obtain the lease through a public auction, but the PLDC can apparently lease the lands directly to an entrepreneur whose development plans are included in the PLDC’s Public Lands Optimization Plan. Dela Cruz emphasized that if the Land Board does not agree to a proposal of the PLDC, it doesn’t have to approve it. And should members of the public have concerns or objections to a given project, they can make their views known at the publicly noticed board meeting where the subject is to be taken up, he said.
The very way in which the corporation acquires lands for its projects is left ambiguous. One part provides for the corporation acquiring land “by grant or purchase.” Another part says the corporation may “recommend to the board of land and natural resources the purchase of any privately owned properties that may be appropriate for development.” In the interview, however, it was clear that Dela Cruz anticipates that most, if not all, of the lands the corporation will be developing will be drawn from the DLNR’s present inventory.
The new law gives the corporation a free pass to ignore a wide range of other laws: “projects pursuant to this chapter shall be exempt from all statutes, ordinances, charter provisions, and rules of any government agency relating to special improvement district assessments or requirements; land use, zoning, and construction standards for subdivisions, development and improvement of land; and the construction, improvement, and sale of houses thereon.” The PLDC is required only to “coordinate” with county planning departments and land use plans, not hew to them.
Dela Cruz said that it would be up to the Land Board to ensure that any development the corporation was proposing would be consistent with Chapter 205, the state’s land use law. “There’s already a process” for complying with Chapter 205, he said. “The Land Board is the board that has to transfer over development rights of property to the corporation. So there’s going to be ample dialogue. The Land Board will have to take it up, follow the Sunshine Law before it transfers it over.”
The law does not exempt the corporation from compliance with Chapter 343, the state’s environmental policy act, Dela Cruz noted. He was asked at what point Chapter 343 would be triggered – whether it would be before the corporation received development rights to public lands or afterward. In responding, he laughed at the very question. The transfer would be based on a plan, and plans don’t require any Chapter 343 review, he said. So it would be left to the corporation to prepare and accept an environmental assessment or environmental impact statement for any given project.
More than Just Land
While most public attention has been focused on the PLDC’s potential use of public land, Act 55 does far more than encourage public-private partnerships on state parks or urban lands. It allows the corporation to acquire stakes in start-up enterprises, and not just ones that will be using public land or which promote tourism or recreation. The definition of “enterprise” in the act is wide-ranging: “a business with its principal place of business in Hawai`i, which is or proposes to be engaged in recreational and commercial area development, development of new value-added products, enhancement of existing recreational or commercial commodities, and the application of existing recreation or commercial areas and appurtenant facilities to productive uses.”
Dela Cruz insisted, however, that “there has to be a land nexus” for any project in which the PLDC is involved.
Although the act limits the corporation to holding no more than a 49 percent or $500,000 stake in any one such enterprise, that restriction can be lifted if the enterprise is in trouble: “if a severe financial difficulty of the enterprise occurs, threatening the investment of the corporation in the enterprise, a greater percentage of those securities may be owned by the corporation.” The dollar limit may be lifted “if the corporation finds … that additional investments … are required to protect the initial investment.” As much as 50 percent of the corporation’s assets can be invested in this way.
The corporation can also develop “project facilities” – infrastructure, that is – that can be financed through bonds and by levying assessments against owners of other properties not directly in the project but which may benefit from the improvements. The bonds are not to be issued in the name of the state, but rather only in the name of the corporation – something that may make interest rates on the bonds higher than otherwise. (That is over and above the concerns, included in Finance Director Young’s testimony, that the bonds may be more expensive than otherwise if they are not tax-exempt.)
The PLDC is also allowed to undertake activities that seem to step on the toes of the Hawai`i Tourism Authority. It can award grants for “new recreation and visitor-industry related products.” In developing its “public land optimization plan” – or PLOP – it is required to develop “feasible strategies for the promotion and marketing of any projects, including … timeshare [and] hotel … projects, in local, n
ational, and international markets.”
Another state agency whose kuleana is usurped, at least in part, by the PLDC is the Hawai`i Strategic Development Corporation. The PLDC is authorized to invest its revolving fund in enterprises needing “seed capital,” if (among other things), “there is a reasonable possibility that the corporation will recoup at least a part of its investment.”
The PLDC board has five members: the head of the DLNR (Aila), the head of the Department of Budget and Finance (Young), and the head of DBEDT (Lim) are ex officio, while the speaker of the House of Representatives and the president of the Senate are to appoint one each, “provided that the persons appointed … shall possess sufficient knowledge, experience, and proven expertise in small and large businesses within the development or recreation industries, banking, real estate, finance, promotion, marketing, or management.” As Lind observed: “Conservation? Environment? Public interests? No seat at the table.”
Although Act 55 stresses that the PLDC is to administer an “appropriate and culturally sensitive public land development program,” there is no provision for anyone with expertise in Hawaiian issues to advise the board.
The corporation was placed under the aegis of the DLNR “for administrative purposes.” As of press time, no date had been set for the first meeting. The act authorizes $165,000 for an executive director but provides no funds for planning.
Dela Cruz said that he had not talked with anyone about the legislation before he introduced it, except for Malama Solomon, the vice chair of his Committee on Water, Land, and Housing. What got him thinking that there was a need for such an entity was seeing opportunities in his home district being unused. For example, he said, many people would like to see a fishing lodge built at Lake Wilson or a marina developed at Hale`iwa small boat harbor. Such projects, he said, would bring much-needed employment and economic opportunities to his depressed area.
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Act 153: Raising the Threshold for SMA Permits
This act (House Bill 117) raises, from $125,000 to $500,000, the threshold above which developments within the Special Management Area of the state are required to obtain an SMA major use permit.
Most of the county planning agencies offered strong testimony in support of the measure, noting that the $125,000-valuation had not been increased since 1991. The Office of Planning supported a repeal of the value-based threshold altogether, but acknowledged that some counties “are concerned that a permitting process based solely on discretionary considerations without cost thresholds would require far greater effort and expense in evaluating SMA permit applications.” The OP’s proposed compromise – setting the threshold at $250,000 – was rejected in favor of the higher value.
The Office of Hawaiian Affairs opposed the measure, saying it would result in “an increase in the amount of minor SMA permit applications, which will lack the depth of information compiled for an SMA use permit through public hearings and the completion of environmental review under Chapter 343.” Several environmental groups and numerous private citizens submitted testimony in opposition as well.
When the bill reached the Senate, the committees on Water, Land and Housing, chaired by Donovan Dela Cruz, and Energy and the Environment, chaired by Mike Gabbard, inserted a significant amendment that gives a pass to the Department of Land and Natural Resources’ Division of Boating and Ocean Recreation. With the enactment of this bill into law, DOBOR no longer needs to obtain any SMA permit, be it major or minor, for any construction work at the state’s small boat harbors.
The DLNR provided no testimony on the matter. According to Dela Cruz, it was his idea to put the exemption into the bill. When small boat harbors were under the jurisdiction of the Department of Transportation, he said, there was no requirement for SMA compliance. All he was doing was restoring the way things used to be, he said. Small boat harbors were last under the DOT’s umbrella more than two decades ago.
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Act 45: EIS Exceptions Are Extended for Two Years
In 2009, the Legislature carved out a temporary exemption to Chapter 343, the state’s environmental disclosure law. The exemption (Act 87) generally allows projects that involve work in public highways or rights-of-way, but which do not require discretionary permits or which are ancillary to other projects, to proceed without preparation of an environmental impact statement or environmental assessment. In the absence of Act 87, any project that involved the use of state or county lands – such as installation of utility lines, private driveways, sewer lines, and the like – pulled one of Chapter 343’s “triggers.”
With Act 87 set to expire on June 30, 2011, House Bill 424 was introduced, giving the exemption another two years of life (to July 1, 2013).
The bill received enthusiastic support from the Department of Transportation, utility companies, developers, and even the Office of Environmental Quality Control, which is to give the Legislature a report on the effectiveness of Act 87 before the start of next year’s legislative session.
The only testimony in opposition was submitted by Denise Antolini, director of the Environmental Law Program at the University of Hawai`i’s Richardson School of Law and co-principal investigator of the University of Hawai`i research team that conducted a two-year study of Chapter 343 at the request of the 2008 Legislature.
House Bill 424 contained no justification for the extension of the exemptions, she noted, adding: “If an extension is granted, then the Legislature should require an objective analysis that the extension continues to be warranted.
“Whatever the motive, the mis-interpretation in the past by some state agencies of the scope of the state’s environmental review law is not a sound policy reason for continuing this kind of piecemeal change to Chapter 343.”
Two bills that would have implemented, in part, the changes proposed by Antolini’s team were Senate Bill 729 and Senate Bill 699. The former was intended to strengthen the Environmental Council. Despite supportive testimony, it did not emerge from House committees. The second bill, which would have set up a fee-based special fund to support modernization of the OEQC, made it to conference committee but did not cross the legislative finish line.
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Act 78: DOCARE Gets Special Enforcement Fund
The DLNR’s ability to enforce its laws and rules has been weak, especially in the area of the coastal and near-shore resources. To give the DLNR’s enforcement arm, the Division of Conservation and Resources Enforcement (DOCARE) a boost, two private foundations – Conservation International (based in Virginia), and the local Harold K.L. Castle Foundation – had offered substantial grants to the agency. However, with no special fund, the DLNR lacked the ability to receive them and at the same time assure the donors that the funds were being used for the intended purpose.
As DLNR administrator William Aila said in testimony favoring House Bill 1082, “While the Department can accept and establish trust accounts to manage a one-year grant from foundations, multi-year non-governmental funding should be placed into an established and dedicated account.”
House Bill 1082 was introduced to cure that. It passed both chambers without recorded opposition and a spending limit of $250,000 was set for the current fiscal year.
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Act 28: Sugar’s Lasting, Costly Legacy
Ever since sugar plantations went out of business across the islands, the public has learned of sites they left behind that require cleanup before they can be put to new uses. One of the most notorious of these is in the Kapolei area, in west O`ah
u. In 1994, the state paid landowner James Campbell Estate more than $30 million for 1,100 acres, taking the property “as is.” In 2004, the Department of Hawaiian Home Lands took ownership of 318 of those acres, hoping to eventually build 1,100 houses for Native Hawaiian beneficiaries.
Before that could happen, the DHHL needed to address serious contamination on .6 acres, where Amfac had had a pesticide mixing and loading plant. The DHHL had a report prepared on cleanup options, showing a range of costs – from a low of nearly $2 million to cap the site, to a high of up to $17 million to excavate the contaminated soil. (For more background, see articles in the September 2010 and July 2001 issues of Environment Hawai`i.)
The DHHL received a grant of $200,000 from the federal Environmental Protection Agency to help with initial work. In 2009, the agency signed an agreement to receive a $1.97 million loan from the state’s Brownfields Cleanup Revolving Loan Fund. The amount represented nearly all of the fund’s $2 million balance at the time, which was provided by a grant from the EPA.
This is the background to House Bill 1015. The Department of Business, Economic Development, and Tourism, which administers the fund, was given a limit of just $1 million in disbursements from the fund for the current fiscal year. However, the EPA required the entire grant to be disbursed by the end of the fiscal year (June 30).
Acting with appropriate haste, the Legislature passed the measure, and the governor signed it into law as Act 28. According to DBEDT, repayment is promised in 2012. The DHHL has told the EPA that remedial action at the site should be completed by the end of this year.
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Act 69: Spreading the Pain of a Renewable Portfolio
The title of Senate Bill 1347, “relating to public utilities,” gives little clue as to its real effect. It began life as a modest measure, instructing the Public Utilities Commissions to accept electronic filings.
But on March 14, at a hearing of the House Committee on Consumer Protection and Commerce, Kevin Katsura, the associate general counsel of Hawaiian Electric Company, proposed an amendment to the bill that changed it into a measure that will almost certainly have wide-ranging, and expensive, consequences to most customers of HECO utilities across the state.
What Katsura proposed was language that would let the PUC allow HECO to place a biofuel surcharge on the bills of electric consumers. Earlier this year, HECO had proposed just such a scheme to the PUC in regards to the agreement between its Big Island subsidiary (the Hawaiian Electric Light Company, or HELCO) and Aina Koa Pono, calling for annual purchases of some 16 million gallons of biodiesel a year from a plant that Aina Koa Pono proposes to build in Ka`u. On March 4, the PUC rejected the proposal, finding the surcharge was “beyond the scope of the commission’s authority and jurisdiction.”
Katsura appealed to the committee, chaired by Robert Herkes (whose district includes Ka`u): “The purpose of this amendment is to clarify the legislative intent that the renewable portfolio costs of an electric utility and its affiliates may be aggregated and allocated among the customers of the utilities when the electric utility and its affiliates are aggregating their renewable portfolios in order to achieve the renewable portfolio standard.”
The language Katsura drafted would have specifically allowed the PUC to let HECO allocate among customers of all its utilities (Maui Electric, HELCO, and Hawaiian Electric, on O`ahu), whatever surcharge for biofuels it had to pay in order to meet its renewable portfolio standard.
Chris Eldridge, a partner in Aina Koa Pono, told the committee that if HECO were not allowed to allocate its costs among all utilities, “large-scale biofuel projects like AKP will not succeed.”
The contract between his company and HECO “is the cornerstone on which AKP is financing and developing the project,” Eldridge said in his written testimony. “Although biofuel will soon be cheaper than petroleum-based oil, it will be more expensive for the first few years while the industry is developing. The state cannot expect Hawai`i island rate-payers to shoulder this increase in utility costs by themselves, when the project will open a new industry in Hawai`i, will significantly advance the statewide goals of developing clean and independent energy sources, and will insulate the state from spikes in the price of petroleum fuels. Accordingly, any short-term rate increases in utility rates as a result of this project should be allocated across the state.”
The bill passed out of both chambers with the language HECO’s counsel had drafted pretty much intact. It was signed by Governor Abercrombie and became Act 69.
(A postscript: In its latest filing with the PUC, HECO is excluding its Maui subsidiary from the surcharge proposal so that now it will only apply – if approved by the PUC – to ratepayers on the Big Island and O`ahu. On August 2, the PUC will hold hearings on the proposal, in Hilo in the morning and in Kona in the afternoon.)
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Act 178: South Kona Wilderness, Round Two
For the last 40 years, various proposals have been floated to establish a wilderness park in South Kona. The first was made in 1971 by the Association of Hawaiian Civic Clubs, supported by the Bishop Museum, a year after the Hawai`i County Council asked the Navy to cease practice bombings in the Honomalino and Okoe ahupua`a. Several legislative resolutions were adopted since then, calling for the Department of Land and Natural Resources to conduct studies. One adopted in 2001 finally seemed to get traction, spurring the department to prepare a report on actions needed to make the park happen.
Partly on the basis of that report, in 2003, the Legislature passed House Bill 1509 (Act 59), establishing a wilderness area of 22,000 acres from Miloli`i south to Manuka, extending from the shore to 6,000 feet inland. The area included nearly 8,000 acres of land in the ahupua`a of Kapu`a owned by private parties, with the majority interest being held by companies affiliated with Honolulu developer Jeff Stone. Back then, Stone supported the measure, which called for the state to acquire private holdings through a value-for-value exchange of other state lands (with the appraisal costs to be borne by the private parties). In an interview with Environment Hawai`i that year, Representative Robert Herkes, one of the prime movers behind the legislation, said that Stone’s support was tied to another measure that gave Stone a $75 million tax credit over ten years in return for developing an aquarium at the Ko Olina Resort and for acquiring the Makaha Resort and dedicating a portion of it for use as educational and training facilities. Stone, Herkes said, even made a video about the resources in the lands of Kapu`a, which Herkes showed to members of the various committees hearing the bill.
A year later, with no appraisal having been done – and the clock ticking toward the December 31, 2006, deadline by which the wilderness park legislation would expire if the private lands were not acquired – Herkes was pushing for passage of a bill that would have the state pay for the appraisal. When that bill failed to make it out of conference committee, the park was doomed.
Fast forward to 2011. Gil Kahele is the new state senator for the area, appointed by Governor Abercrombie to replace Russell Kokubun, now the head of the Department of Agriculture. Kahele has had a long involvement with the South Kona park idea, first testifying for it in 1985. Kahele introduced Senate Bill 1154, with language identical to that of the 2003 measure.
This year, however, Jeff Stone was not supportive. In testimony to committees hearing the measure, Abbey Seth Mayer, the former head of the state Office of Planning and now vice president for Government Relations of Stone’s The Resort Group, listed the numerous
reasons why the 7,780 acres owned or controlled by Stone companies should not be included. The same reasons existed in 2003 as well, but Stone had no objection then. Now, however, Mayer cited concerns with regulatory taking issues owing to automatic reclassification of Agriculture land into the Conservation District, prohibitions on subdivisions and construction, and appraisal costs being borne by private owners. In addition, Stone was now objecting to the “value-for-value” exchanges. “TRG notes that during the effective period of Act 59, several ideas for state lands exchange were explored,” Mayer wrote. “In all of these cases, regardless of valuation issues, TRG found that potential land exchanges were very controversial, in that there is a great deal of public sentiment and often complicated legal histories tied to state public lands. TRG would ask the state to authorize condemnation or sale for cash as the only method for acquisition of the Lands of Kapu`a” (emphasis in original).
Joining in the opposition were the Land Use Research Foundation of Hawai`i and the Attorney General’s office. Testifying in support were numerous residents of Miloli`i and attorney James Case, who mounted a vigorous argument that the bill did not constitute a taking since it would not deprive a landowner of “ALL economically beneficial use of the property.”
By the time the bill emerged from conference, the lands of Kapu`a had been removed from the wilderness boundaries and the automatic redistricting of all land into the Conservation District went with it.
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`Aha Kiole Council Bill Is Vetoed
One bill that did not make it into law, despite the Legislature’s best efforts, was Senate Bill 23, which would have set up permanently an `Aha Kiole Advisory Council within the Department of Land and Natural Resources. The council would have advised the Legislature and the chairperson of the Board of Land and Natural Resources on “issues related to land and natural resource management through the `aha moku system, a system of best practices that is based upon the indigenous resource management practices of moku (regional) boundaries, that acknowledges the natural contours of land, the specific resources located within those areas, and the methodology necessary to sustain resources and the community.”
The eight council members were to be selected by members of `aha moku councils, though the bill was silent as to how those would, in turn, be selected. The bill gave the council an initial two-year appropriation of $129,000 to hire an executive director; it promised that members would be reimbursed travel expenses associated with meetings, but made no provision to pay for that.
Governor Abercrombie announced his intention to veto the measure, saying there was little provision for oversight and that it called for the use of public funds for an entity whose members are self-selected without confirmation, have no term limits, and cannot be removed for cause.
The bill, introduced by Brickwood Galuteria, received support from several Hawaiian Civil Clubs. Among those submitting testimony was Kitty Simonds, president of the Maunalua Hawaiian Civil Club and also executive director of the Western Pacific Fishery Management Council. As Simonds noted in her testimony, Wespac “supported this initiative since 2006. … The Aha Moku system working together with the regional fishery management council, will strengthen the support for sustainable management of the ocean and land natural resources.”
Wespac’s (and Simonds’) involvement with the `Aha Kiole council in the past sparked much criticism and controversy. It led at one point to charges that she, as a federal employee, and the council, as a federal agency, were improperly involved in lobbying state officials. Although a report from the Department of Commerce’s inspector general found no overt wrongdoing, Simonds was given clear instructions on circumstances under which she could testify for Wespac. (Environment Hawai`i has reported on Wespac’s involvement with the `Aha Kiole and `Aha Moku committees over the last several years.)
Volume 22, Number 2 — August 2011