The Annual Legislative Sneak Attack

The Hawaii State Legislature is at it again, looking to create bills allowing government to bypass protections designed to preserve the public trust.

The public’s overwhelming response effectively killed the Public Lands Development Corporation but now the magicians of Honolulu have unveiled the 

“Public-Private Development Authority” as a new scheme to shortcut public input to government processes.

Likewise, SB 1171, SD1 looks to gut Historic Review process due to Supreme Court rulings in favor of Hawaiian’s rights to protect their ancestors, even as the National Park Service waits at the door to sanction SHPD for sitting on its hands for decades. 

Thanks to Donna Wong and Hawaii’s Thousand Friends for compiling the following legislative alert. Please respond by contacting your representatives today.

~~ ALERT ~~

Next Tuesday 3/5, the entire Senate will vote on THREE bad bills.

Including SB 215 SD2, a PLDC look-alike.

Send opposition testimony on these bad bills to all senators or contact your senator here:   

Senators by Island  

 See article on PLDC-like SB 215:       

"New Development Authority Moves a Step Closer to Reality" 

SB 215 SD2 Relating to Economic Development (Dela Cruz, Chun Oakland, Kidani, Solomon) creates the Public-Private Partnership Authority.

            http://www.capitol.hawaii.gov/session2013/bills/SB215_SD2_.pdf 

Sound like PLDC? Let us count the ways:

PLDC and SB 215 SD2 purposes are to "create a vehicle and process to use public land...for the economic, environmental, and social benefit of the people of Hawaii."

Like PLDC, under SB 215 SD2 the public-private partnership administers appropriate and culturally sensitive projects.

Like PLDC, under SB 215 SD2 the "authority shall coordinate and administer projects while ensuring that resources are maintained for the people of Hawaii."

Like PLDC, SB 215 SD2 has a board of directors but only 5 voting members: 3 heads of state departments, 1 member appointed by the Senate president, 1 member appointed by the speaker of the House and 1 non-voting member from the aha moku advisory committee.

               

Like PLDC, SB 215 SD2 dictates that House and Senate members shall "have expertise in small and large businesses within the development or recreation industries, banking, real estate, finance, promotion, marketing or management."

               

SB 215 SD2 allows the counties to waive zoning, land use, and permitting requirements on any project by passing an ordinance or memorandum of agreement.

               

SB 215 SD2 has no process for public hearings or public involvement on the projects, other than the rule-making process.

SB 215 SD2 shall initiate 3 pilot projects: 1) a film production facility on state lands somewhere on Maui, location not specified; 2) 1 unknown county-initiated project; and 3) a mysterious main-street project on previously identified state lands in Wahiawa that currently contain a DOE building, a library, Wahiawa Clinic and a transit center. Could these public lands be slated for a Transit Oriented Development project?

SB 215 SD2 allows for additional projects for educational purposes or to stimulate development and job creation.

SB 1027 SD1 Relating to Coastal Zone Management (governor's package)

            http://www.capitol.hawaii.gov/session2013/bills/SB1027_SD1_.pdf 

Exempts any development by a state agency on state land within the Special Management Area (SMA) from the counties' Special Management Area Permit and shoreline setback variance processes.

Exempts development by a state agency on state land from having to be consistent with county general plans and zoning.

Creates a new state consistency review process that will be conducted by the state agency proposing the project, with only a 30-day comment period.

State consistency certificationis a statement by a state agency that it has completed the state consistency review and the development is consistent with SMA objectives.  Fox guarding the henhouse? 

 State agencies are only required to respond to relevant public comments.

After the State Office of Planning publishes the state consistency certification in the OEQC bulletin, development may proceed.

NO  more public hearings or public involvement.

NO  contested case opportunities as provided for under the county SMA process for Maui County, Kauai and Hawai`i Island residents.   

   

SB 1171 SD1 Review of Historic Preservation Projects (governor's package)

http://www.capitol.hawaii.gov/session2013/bills/SB1171_SD1_.pdf 

SB 1171 SD1 is in response to the Hawai`i Supreme Court's unanimous ruling, in Kaleikini v. Yoshioka (Honolulu's director of transportation), that phasing of archaeological studies is not allowed under HRS Chapter 6E - Historic Preservation.

SB 1171 SD1 would allow construction of development projects to start before an inventory of all archaeological resources has been completed.

When burial sites and historic properties are not identified before basic planning decisions are made, the many options that could protect those sites are effectively foreclosed.

SB 1171 SD1 is all about Oahu's rail project:  without the high court's ruling, the `iwi kupuna would not have been discovered before the 4th and final phase of the 20-mile rail line, and then the argument could have been made that it was too late to stop the train to look for "bones."     

____ 

Hawaiians and Palestine

The recent drama in the United Nations over granting limited-nation status to the Palestinians is informative for all Hawaiians bent on achieving their rightful status as a sovereign nation. 

Palestinians, like Hawaiians, have every right to establish a nation under the U.N. protocols established after World War II. The Jewish people established Israel under the same conventions. 

According to some observers, the Palestinians just failed to get it together at the time, and were given Jordan as their “reservation” instead. I don’t know. You should check out the internet on this subject. Unbelievable. So much info and so many scenarios are set forth, that it really does become “unbelievable:” You can’t tell who to believe. 

One thing is certain: Both sides are holding tight to their versions of how they got where they are.

Fact is, it doesn’t matter what went before. It matters where we are now.

The Palestinians have a right to sovereign ground, and so does Israel. Both sides need to accept the other.

The United States’ “no” vote on this issue at the U.N. should come as no surprise to Hawaiians. After all, Hawaiians also have an inherent right to independence, which the United States has successfully thwarted since the overthrow of the Hawaiian monarchy? in 1892. The U.S. apologized, and we all know it’s true -- but you can be assured that’s the end of it. It’s kind of ironic, given that President Obama is a keiki of Hawaii. I wonder if he ever puts these two issues together in his head?

Whatever the case, the U.S. position on Palestine is short-sighted and undemocratic. All the Palestinians want is to be seated at the table as an equal partner. Can’t the most powerful nation in the world deal with them as an equal on the international stage? 

The fact that most of the world is open to Palestine’s achieving limited-nation status should cause Hawaiians to take notice. The international body is the path to sovereignty for Hawaiians as well. 

Senator Akaka is retiring, and passage of the Akaka Bill, which would allow native Hawaiians to gain federal recognition similar to Native American tribes, looks increasingly doubtful. That’s a good thing. The Akaka Bill wouldn’t give Hawaiians a seat at the big table either. 

Who is going to pick up the mantle of Hawaiian sovereignty? If the community leaves it up to the Office of Hawaiian Affairs, sovereignty is not what Hawaiians will get.

Thank God for Obama

Photo by New York Times

Thank God for Obama! 

Against all odds -- despite the expenditure of millions of dollars of private money from undisclosed sources, despite the Republican strategy of lies engineered by Karl Rove to confuse and distort the campaign, despite the effort to deliver the presidency on the backs of a gullible, uninformed constituency -- President Obama won out over the darkest of dark sides. With his victory, we can reclaim the hope for an America where equality and a fair chance for all is the central theme and goal of government

When the smoke clears, it will be apparent that the President has more overall support than he did even in 2008.

The Election Night scene at Romney campaign headquarters, as defeat became more and more clear, reflected the overall mindset of Romney and his followers. After the networks had predicted an Ohio victory for the Prez, the Romney campaign rejected the news, saying the networks’ calls were premature. 

As things got worse for the Romney camp, his operatives turned off the sound on their TV feeds, leaving supporters standing around glaring at their cell phones. Maybe officials thought if they couldn’t hear the bad news, it didn’t exist? That seems consistent with a campaign strategy where Romney continually shifted his positions to fit his audience, hoping they would believe whatever he had to say that day. 

Next, Romney’s top guys started packing their bags to fan out across the country and initiate lawsuits challenging the vote in key states. But Obama kept rolling, leaving no road open to a theft of the presidency such as the one many people believe the Republicans pulled off in 2000. In that race, a hotly contested Florida vote count and recount delivered a narrow win to George W. Bush over Vice President Al Gore.

What the country had to say was, “Hey Mitt, you can’t lie your way to the presidency. We’re not that stupid.” At least, a little over half the country said that. 

To the rest, what are you thinking? I can understand wanting to support the Republican agenda. But when your candidate throws outright untruths into the fray, such as Romney’s eleventh-hour misstatements about Jeep manufacturing moving to China, you have to wonder whether you want this guy running the country. 

Of course, Romney wouldn’t really have been running the country anyway. Republican strategist Karl Rove, former vice president Dick Cheney and the neo-cons would once again have been in the driver’s seat. 

The rejection of those road-weary philosophies of the Bush years is probably the highlight of Obama’s win. The Republicans need to look long and hard at throwing off the yoke of the Bush years. They need to bury Rove and Cheney -- once and for all.

The aina just don't get no respect

Coal burning power plants like Keahole need to be a thing of the past.

The public voice is alive and well in Hawaii, due in no small part to the Abercrombie administration’s extreme efforts to marginalize public dissent, as well as other government attempts to sideline long-powerful environmental and cultural interests. 

The governor’s public comments deriding those who would “stand in the way of progress,” the creation of the Public Lands Development Corporation, and the state legislature’s full-court press to gut environmental and cultural regulations have all met a powerful wave of recoil and resistance among activists. Awesome! 

For a while, the situation was looking pretty weak. It’s typical, I guess, that in times of economic downturn, the pressure on the aina is somewhat relieved. But when the money returns -- so do the problems.  

The aina just don’t get no respect these days. 

I’m listening to the Presidential debates, and both these guys are touting drilling in the Arctic Refuge, the Beaufort Sea, Virginia, Florida. Don’t get me wrong -- I love Obama. But the fact is, both sides have buckled to big industry in the wake of the 2008 economic crisis. The fracking of the North American continent in pursuit of natural gas is a vicious, dangerous phenomenon. And it’s coming soon to a neighborhood near you. 

Coal? Filthy coal? Damn, I just drove through the Black Hills of South Dakota, heading north from Nebraska. Gorgeous country. As I drove, one long coal train after another moved slowly south to the massive Grand Island switching yards -- 90 trains a day. 

I drove through the Black Thunder Mine in Wyoming, the largest thermal coal mine on the continent. It was like headquarters for the evil empire, spewing filth and dirty air on a ravaged landscape. Most of this coal moves by rail to the Mississippi River, where it is barged to the Gulf of Mexico, then exported to Asia. Now these producers want to run coal trains to the Oregon Coast, enabling them to export even more coal to Asia. 

Hey, China, get off the coal! It’s hard to say that, though, when we’re burning it ourselves, as well as enabling China.

Glad to see in Hawaii Civil Beat that the Hawaii Sierra Club and the Blue Planet Foundation have come out strong against the importation of LNG, or liquefied natural gas. The proliferation of LNG markets threatens mainland forests and wild lands, and does nothing to further a worldwide shift to renewable  energy.

The aina don’t get no respect. It doesn’t seem the environmental community on the mainland has any voice left at all. Or is it just difficult to get any coverage of their efforts? Why, in this new age of massive information flow, is it difficult to get any real, substantial, verifiable information? 

You know, to me, it’s not all about jobs – no matter what the candidates say. 

It’s about a healthy, happy future for our children and grandchildren.

A Victory for Preservation

The Hawaii Supreme Court made history last week when its August 24 ruling in Kalekini v. Yoshioka, http://caselaw.findlaw.com/hi-supreme-court/1610559.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawHawSup+(FindLaw+Case+Law+Updates+-+HI+Supreme+Court) was published. 

The lead plaintiff in the case is Paulette Ka‘anohiokalani Kalekini, a veteran of several legal actions demanding protection for her ancestors. Paulette has been involved in such highly visible cases as the Honolulu Walmart debacle, the disturbance of Hawaiian graves at the Kawaiaha’o Church in downtown Honolulu, and most recently, this challenge to the over-the-top Rail Project that would have cut a destructive swath through historical properties from the Eva plain to Kaka‘ako.

The Supreme Court’s ruling effectively shuts down the project, and if people look at the situation with their eyes open, it should stay shut down. It’s doubtful, however, that the project’s proponents are going to fold their tents just yet.

In supporting Paulette’s claim that the Archeology Inventory Survey must be completed in its entirety before any project can be approved, the Court effectively puts an end to the decades-long shibai known as Interim Preservation Plans, which allowed approvals and actual construction to begin on projects while Archeological Inventory Surveys were still in progress. 

In this case, Rail officials had segmented the project into four parts and proposed to do the surveys piecemeal, saving for last the most difficult area, in downtown Kaka‘ako. 

The likelihood of encountering native Hawaiian remains in Kaka‘ako is high, well-documented and widely known. To justify removing them, Rail developers had planned to drag out their age-old argument: “The plans can’t be changed because too much work has already been done, the amount of money already spent is enormous, we can’t go back now, the community has a vested interest …” And so on.

The plaintiffs in this important case foresaw the argument, as the court wrote in its opinion: “Kaleikini asserted that the failure to complete an archaeological inventory survey prior to the start of construction jeopardized the integrity of native Hawaiian burial sites by foreclosing options such as not building the rail, changing its route, or using a technology that would have less impact on any sites,” the court wrote in its opinion. 

In agreeing with Kalekini, the Court also explained to officials of the city and the State Historic Preservation Division that their reading of the rules put the cart before the horse: “In sum, the SHPD failed to comply with HRS chapter 6E and its implementing rules when it concurred in the rail project prior to the completion of the required archaeological inventory survey for the entire project.  The City similarly failed to comply with HRS chapter 6E and its implementing rules by granting a special management area permit for the rail project and by commencing construction prior to the completion of the historic preservation review process,” wrote Justice C.J. Recktenwald for the Court.

The Justice continues: “In the instant case, the SHPD failed to follow its own rules when it concurred in the rail project prior to the completion of an archaeological inventory survey for the entire project.” 

The opinion went on to say the project’s “programmatic agreement” calling for archaeological surveys to be completed later failed to serve as an “interim protection plan,” which the defendants claimed would have justified moving ahead with the project right away. “A plain reading of the rules indicates that the Programmatic Agreement is not an interim protection plan,” which “can be developed only after an AIS has been completed,” the ruling states.

SHPD’s concurrence with the project was characteristically weak-kneed and politically inspired. It’s SHPD’s job to protect these sites, not just roll over for the Governor. Good for the Oahu Island Burial Council, which stood strong in refusing to go along with the Programmatic Agreement! The Sierra Club’s David Frankel and the Native Hawaiian Legal Corp. deserve all kinds of acclaim as well, for their continued work in this arena.

Thinking back to last year’s state legislature, where a blitzkrieg of bills proposed dumping oversight regulations such as Environmental Impact Studies and Archeological Inventory Surveys for the sake of expediting state projects, I’d say the Honolulu Rail Project, like the Superferry before it, is proof positive that we need these protections more than ever.

Clearly, even with the laws in place, government and private enterprise continually join hands to usurp the rights of the citizenry, above and below the ground. Thanks to citizens like Paulette Kalekini, they are not always successful. If these protections are suspended, what are we left with -- a Democracy? We’re not against rail projects, highways and other projects aimed at meeting the many-layered needs of modern society; some may have an impact on cultural resources. But we have in place rules that protect the rights of the individual as well. 

Can’t we just play by the rules?

  

Public-Private Partnerships

The intuitive mind is a sacred gift and the rational mind is a faithful servant. We have created a society that honors the servant and has forgotten the gift.
Albert Einstein

It’s been a while since my last post. I’ve been busy muddling about, traveling and taking photographs. I took a trip to Utah and saw the Mormon Temple, Zion National Park and Bryce Canyon. Gorgeous country, interesting politics. Driving down Interstate 15 toward southern Utah, you see signs for “Rest Area,” as you do in most places. But when you get close to the highway exit, the signs are likely to say, “Rest Area: Public-Private Partnership.” Turns out there is no real “Rest Area” -- just restrooms inside a Chevron Mini-mart. The only benefit I could see for the average traveler is that no one will yell at you for using the restroom if you are not a paying customer of Chevron. Interesting concept, this “public-private partnership,” and one that should be of great interest to citizens in Hawaii.

 

The new Public Lands Development Corporation, which has been given free rein by the state legislature, is intent on developing many of these public-private partnerships in order to fund the Department of Land and Natural Resources, the state department assigned with policing these same relationships. For me, this suggests it's time to consider how these partnerships might change Hawaii.

Remember when Hapuna Beach State Park didn’t have a Prince Hotel looking down on it from above? 

Remember when the A-frames were OK to rent, and the park was well-kept? Now, the park is a dump. The beach is still great, of course -- but the park is a dump. 

Let’s just imagine for a minute that Prince Resorts were to enter into a public-private partnership to manage the beach park. They tear down the A-frames and build some fancy quads, put in some exclusive-looking landscaping, with maybe a pool and a cabana where you can get towels and food. The park and beach is open to all -- for a fee, and only when you are lucky enough to find parking. No camping is allowed, but anyone can enter a lottery for the chance to stay in one of the quads for $100 a night -- which is, after all, way cheaper than the hotel. The DLNR, for its part, is very glad to get rid of the headache of actually having to do its job. DLNR leases the park to Prince Resorts for next-to-nothing, plus a piece of the action. As time goes by, the beach park that used to be for everyone is converted to what is essentially a part of the hotel, managed with the hotel's business interests as the No. 1 priority. 

I don’t know. Would you feel shafted? Would you feel that your park had been given away to the private owners of the hotel? Or would you think this new public-partnership is a good thing?  The park would be a lot nicer, and better-kept. Maybe a day there would make you feel as if you were staying in the hotel itself ... which of course you would just love.

I don’t know.

Hands Across the Sea

Looking south from Mount Shasta we get a glimpse of the sacred lands of the Winnemem Wintu.

Thanks to all who helped support the Winnemem Wintu in their fight to preserve their rights to access their traditional cultural landscape.

  Hundreds of supporters showed up for the tribe’s H’up Chonas, or War Dance, on Memorial Day. The event, which signified tribal resistance to threats to its culture, would have been mostly peaceful except for the constant attempts at intimidation by our own U.S. government, with rangers cruising through camp with their attack drug dogs and similar childish  behavior. 

The Forest Service hasn’t yet acted on the tribe’s request for a permit for the planned Coming of Age ceremony in late June. Chief Caleen Sisk’s strategy is to move forward and do what has to be done, whether the Forest Service likes it or not. She’s right; it is the Forest Service’s duty to accommodate the tribe, not the other way around. But officials remain blind to that fact.

Chief Sisk is requesting that concerned advocates contact Donald Laverdure at the Bureau of Indian Affairs, at donald.Laverdure@bia.gov, and tell him how they feel about the U.S. Forest Service’s denial of the tribe’s human rights to conduct ceremonies, to exist, and to practice religious freedom. 

The Chief is meeting again with regional forester Randy Moore today. Every request the tribe has made has been rejected. The tribe is now asking for a mandatory closure of 400 yards of the McCloud River and the land on either side, and is refusing to pay fees the government is attempting to impose. 

“It is not right to charge fees to a tribe who does ceremony in that area, and in doing so keeps it alive. Ceremony is not only the center of the Winnemem tribe, it is the center of the river and the sacred places. So no fees,” the tribe says in a written statement.  

Fact of the Day:  The California Claims Case established a list of California Indians that was certified by Bureau of Indian Affairs, making all these tribes eligible for all federal government services! “We are FEDERALLY RECOGNIZED, we just have to assert that fact!,” Chief Sisk says.

Amen!

On the home front, several articles in the Honolulu press lately have focused on the deplorable situation of our island Burial Councils, including their inability to achieve quorums and conduct business. Governor Abercrombie and his cronies are out to kill the process that gives voice to Hawaiians; they want to disband the island’s burial councils and have one central burial council on Oahu. 

As we all know, the Oahu council tends to be a rubber stamp for developers, in contrast with the more forceful, strident positions of the “neighbor” island councils.  This plan would be one more step toward the neighbor islands’ losing representation, strengthening continuing attempts by Honolulu interests to extract natural resources in support of the unsustainable urban megalopolis. 

Perhaps it’s time for Hawaii Island should go pre-Kamehameha and assert its sovereignty.