I don't know when the transition occurred; but, at some point, the "Fraidy Cats" started calling the shots for us. This country became great because men with courage and imagination made it great. Now the imagination of far too many is turned toward worst case scenarios and fear. They imagine their Island being destroyed by a single daily boat trip, or being ravaged by dogs (on leashes no less) on a coastal path, or GMOs devouring our food, or "peak oil" wrecking our lifestyle. Any act of boldness is soon paralyzed by fear of litigation. It's time to Get A Grip.
I moved here from California many years ago. In that State, you have 30+ million people looking out for your safety and protecting you from yourself. That first year, I drove past a spot in Kokee where you and your car could visit the Waimea River in a matter of seconds. Like a Californian I thought: "Someone has to do something about this!" By the next year, when I drove by, I thought "Going over this edge would have to be a deliberate; I'm safe; but, what about the suicidal?" By the third year, when I drove by, I celebrated the fact that the site was unchanged. That celebration and perspective continues.
We can't rejoice in our "rural lifestyle" and then do something like ban convertibles from the tree tunnel because a falling branch could put your eye out. Now don't be disingenuous and suggest I'm writing against ocean safety or using armed force against crazed druggies. Those things are real. I'm writing about the things that are imagined and the fraidy cats that imagine them. I'm writing that we should end the uncommon nonsense behind banning boats, banning dogs, and banning science.
I don't care for the trend in abbreviated language; but, I'm still suggesting this texting acronym: FDR. It will be short for: "The only thing we have to fear, is fear itself."
Tuesday, May 20, 2008
Let's Ban Fraidy Cats
Another new conspiracy theory -
and a new anti-Superferry meme to be to be launched as part of the Eco Roundtable tonight: The Alakai is "unsafe."
"Development is not the enemy of agriculture."
Farmer and executive director of the Maui County Farm Bureau, Warren Watanabe argues in the Maui News that the "Important Ag Land" bill, SB 2646 is being unfairly maligned.
The IAL bill (SB 2646) is being maligned as a pro-development measure rather than an ag measure. Nothing can be further from the truth. Development is not the enemy of agriculture. Stopping development will not save agriculture.Dean J. Okimoto, president of the Hawaii Farm Bureau Federation, recently made a similar plea in the Star Bulletin -
...
The IAL bill is a comprehensive package of economic measures and incentives to build up agriculture and help farms continue or expand their operations, for the long-term. It does NOT allow landowners to “willy-nilly” designate their property to urban, or to bypass all of the land development requirements, or to arbitrarily pull their lands out of the IAL classification. It is not a “gift to landowners” and it does not blindly hand over millions of dollars in tax credits and loan guarantees. What the IAL bill does is provide real incentives for them to keep their land in productive agricultural use rather than letting it lie fallow or changing it to nonagricultural uses.
There has been a lot of misinformation about the last section of this bill pertaining to the "85-15" provision for the landowners, which would allow them to designate 85 percent of their lands as important agricultural land and 15 percent being zoned rural, urban or conservation. In the bill, there are many safeguards to discourage the kind of abuse that the environmentalists are claiming. Lands put into IAL would have to be the best quality agricultural lands and not those marginal agricultural lands or lands just for open space. Lands reclassified would have to fit county or community development plans, and most important, the process to take lands out of "important agricultural lands" status under this provision are the most stringent on the books.
A new conspiracy theory and a new local blog devoted to it
I haven't heard of this one. Don't tell Senator English!
"Unbiased" Superferry information at the Eco-Roundtable?
Andrea Brower is quoted in a GI article about tonight's Eco-Rountable meeting as saying, “This is a chance for us to come together, get reliable and unbiased information [about the Superferry] and engage in action as a community.”
The thing is, the Eco-Roundtable isn't particularly constituted to present unbiased information about the Superferry. Its membership is pretty much a Kauai who's who of who's against the Superferry. And that's fine. It's great. Freedom of association and speech and all that. But the Eco-Roundtable is an activist group and claiming the meeting will deliver unbiased information about the Superferry is probably insincere.
Just look at the parade of horribles the Superferry shares on tonight's agenda:
The return of the Superferry. Unrestrained development. Toxic emissions from cruise ships. Pesticide spraying near Westside schools.The Superferry. It's right up there with unrestrained development, toxic emissions, and poisoning kids.
Monday, May 19, 2008
The problem with Hawaii politics
University of Hawaii law professor Randy Roth, co-author of the Bishop Estate expose, Broken Trust: Greed, Mismanagement, And Political Manipulation at America's Largest Charitable Trust, discusses the problem with local politics in Honolulu Magazine -
From my experience co-authoring the “Broken Trust” essay in 1997, advising the Lingle administration, and observing local politics as a law professor since I arrived here in 1982, I’ve become convinced that what is broken in local politics is the lack of transparency and accountability. At so many levels, in so many of its doings, Island politics are opaque, and those who operate in its protective murkiness face no consequences, whether they literally do wrong or merely fail to do right.
Today's County Charter Review Commission meeting
...could be interesting. A number of controversial subjects are on the agenda, including weakening the county sunshine law; discussion of a proposed charter amendment on County Manager versus Mayoral System; allowing members of county boards and commissions to represent private business interest before other county departments, agencies or boards; and a proposed amendment from Glenn Mickens, making County Attorney opinions available in writing within two business days of issuance.
It's at 4pm in the Council Chambers, 2nd floor of the Historic County Building.
Sunday, May 18, 2008
Speaking of sovereignty
I mentioned the other day that I am reading Jon Van Dyke's book, Who Owns the Crown Lands of Hawaii. Well, in one of those coincidental happenings, Ian Lind this morning linked to an article about Texas sovereignty issues by a legal scholar who is also highlighted in a footnote of Van Dyke's book for the relevance of of his writings about Texas to the issue of Hawaii sovereignty. Ian writes -
Ah, the whole sovereignty issue has come up previously in Texas, with many of the same pseudo-legal claims heard among sovereignty circles here. Here’s an article worth reading for its parallels to the islands– “Still True Today: ‘The Republic of Texas is no more‘. ”The footnote regards the annexation of both states by joint resolution - a consititutionally controversial method. The article asserts that the constitutional question has been pretty much resolved. The other link in Ian's post takes the reader to a wikipedia entry about Texas sovereignty issues that compare interestingly to Hawaii's own -
The dispute dates back to events in the 19th century. In 1845, the Republic of Texas was admitted to the Union. However, this was done via a Joint Resolution of Congress which many scholars believe is not legal under international law.[1][2] In 1861, citizens of the state voted overwhelmingly not to be part of the United States. The United States invaded Texas and forced it to be a part of the United States. Republic of Texas supporters feel that these actions were illegal and that Texas remains an independent nation under occupation.
This article deals primarily with theoretical arguments regarding Texas's de jure status under certain interpretations of international law. The debate is considered by some to resemble the same academic discourse being argued by several other activist groups in the United States, including the Hawaiian and Alaskan Independence Movements.[3] Texan sovereignty proponents and some scholars believe that Texas's history as an independent republic, the presence of the U.S. military during the American Civil War, and the asserted violations of international treaties make the situation of Texas unique. Others see no great difference in the assertions of Texan sovereignty activists and regional independence movements such as in Hawaii which was also a formerly independent nation annexed by a joint resolution of Congress. Parallels are also drawn between Texas and the legal status of Hawaii regarding U.S. military presence, although the case of 162 military personnel in Hawaii in 1893 does not easily compare to the invasions of the Union Army in Texas from 1861-1865.
The Garden Island Superferry poll
I think most everyone agrees on the meaninglessness of the GI's online Superferry poll which asked whether Kauai is ready for the Superferry. Nevertheless, the results are announced on the front of todays Business Week section (you'll have to ignore the errant date at the top of the page. It's today's section even though it still bears last week's date).
TGI poll: Kaua‘i not ready for ferryThe results are a lot closer than I thought they would be. I really thought a motivated and mobilized opposition was going to swamp the disorganized and tepid support as it did on Mel Rapozo's online poll. If the GI poll had been an actual random sample limited to Kauai residents (which, of course, it wasn't), the result would be essentially a statistical tie with neither side gaining the right to claim a meaningful majority of support (the margin of error would be between 2 and 2 1/2% given the sample size making the actual difference between "ready" and "not ready" a mere 1% to zero). Iiiiiiinteresting. I'd really like to see an actual random sampling of island opinion.
The Garden Island’s online poll on the Hawaii Superferry revealed the majority of participants feel Kaua‘i is not ready for the vessel to return.
The seven-day poll received a total of 1,895 votes.
Of those, 1,050, or 55 percent of participants, said Kaua‘i was not ready for the Superferry. A total of 845, or 45 percent of votes, said Kaua‘i was ready.
Saturday, May 17, 2008
Walter Lewis on the question of ceded lands
Walter Lewis has a piece in this morning's Garden Island addressing the ceded lands issue. It's sure to engender loads of commentary (as Walter points out, "The ceded lands issue is important and it is a pity that it cannot be addressed without vitriolic ad hominem rancor").
Friday, May 16, 2008
The law of burial sites
I was in the law library this morning and I got sidetracked by a sudden curiosity about whether the legislative record might reveal any controversy during passage of the state Prehistoric and Historic Burial Site law (HRS 6E, esp. 43.5, passed in 1988 in response to thousands of iwi kupuna unearthed in a resort development at Honokahua, Maui). The law applies to all burial sites over 50 years old. It requires that the State Historic Preservation Division in the Dept. of Land and Natural Resources review any project requiring state or county approval. Burial councils determine whether previously identified burial sites are preserved in place or removed and relocated. The Division has final say over whether inadvertently discovered burial sites are preserved in place or relocated. The same criteria are used by both bodies to make the determination. All burial sites must be left in place until this process is completed, and violations incur fairly stiff penalties.
I had hoped to find some interesting floor debate but there was none. The committee reports reveal some back and forth between the houses on some technical matters, but there's no indication that passage of the act was a particularly controversial event. It appears to have easily passed both houses with large majorities. The law was amended in 1990 and a standing committee report described the purpose of the bill:
[T]o provide comprehensive statutory protection to the unmarked burial sites of Native Hawaiians through the establishment of procedures that would address Hawaiian cultural and religious beliefs as well as the legal rights, interests, and needs of private landowners.There was no mention of public testimony against the original act. The committee notes to the amendment mention positive testimony from the OHA, Kamehameha Schools, Hui Malama I Na Kupuna O Hawaii Nei, the Native Hawaiian Legal Corp., among others. But the amendment strengthened the original act in various ways so obviously support for the amendment doesn't necessarily translate into support for the original act. I would be curious if there are any Native Hawaiian groups who oppose the law or categorically oppose the relocation of burial sites.
A legal encyclopedia entry on the law pertaining to cemeteries revealed that the intentional excavation and removal of Native American and Hawaiian human remains is permissible on federal lands by permit under 25 U.S.C.A. 3002(c).
An entry in the Am Jur (a legal encyclopedia) about the abandonment of cemeteries generally was interesting -
The mere passage of time does not extinguish the rights of descendants in a family burial ground, but where the family has ceased to visit the cemetery and they have so long neglected to care for it that the ground is no longer recognizable as a cemetery, the family burial ground has been abandoned, and with it the private standing of the descendants to require that those who own the land abstain from using the land for other purposes.
Thursday, May 15, 2008
A Vermont burial site controversy
Someone who had seen a previous post here about the current local burial site controversy sent me this link -
The 130-acre property was exactly what Michel Guite and his family wanted: an old Vermont farm with mountain views, rolling hills and meadows.
There was, however, one wrinkle: The property included a small family cemetery — with the grave of a War of 1812 veteran — surrounded by a fence on a scenic knoll. ...
Wednesday, May 14, 2008
More Hallucinations and Associations from the Fringe
Wednesday, Andy Parx posted on his Got Windmills? Blog, the implication that Planet Kauai was sympathetic to "...an out-to-lunch UH law professor trying to represent the constitutional right to be compensated for government-taken property as a right to put up a hotel or industrial factory anywhere a land-owner’s greedy little heart desires." This was the smoking gun to link Planet Kauai not only to Libertarianism; but, by incredibly creative association, an illegal dump discovered on Oahu. All this because Charley Foster reported Jon Van Dyke's new book as a great read for either side and predicted his upcoming lecture would be "interesting."
Andy has encouraged others to "Do ten minutes of research on the Internet." In this case, he failed to do ten seconds; even though the link was provided by Planet Kauai. Some of that link presented the following on Jon Van Dyke's book Who Owns the Crown Lands of Hawaii?
"Jon Van Dyke describes and analyzes in detail the complex cultural and legal history of Hawai‘i’s Crown Lands. He argues that these lands must be examined as a separate entity and their unique status
recognized...drawing attention to past injustices and pointing toward possible restitution among which would include use of the Crown Lands as a land base for the Native Hawaiian Nation...This volume will become a primary resource on a fundamental issue underlying Native Hawaiian birthrights."
From H Ad, Jerry Burris: Van Dyke argues that "...since the overthrow was illegal, per the apology resolution, the monarchy and its purposes never ceased to exist in any legal sense. And while there are five purposes for the ceded lands, many subsequent federal laws and, critically, the 1978 state Constitutional Convention, recognized a special trust obligation to Hawaiians."
I don't think Andy has done a "sea change" on sovereignty. I think this is one more shining example how absolutely no one in the fringe has demonstrated any skills whatsoever for academic level meaningful research or the evaluation of same. This means there is no reason to respect or apply credibility to any information on any subject generating from the fringe until somebody does.
Tuesday, May 13, 2008
Regarding Ka‘iulani Huff
In the recent Planet Kauai Post, "From shoreline setbacks to iwi in the Brescia saga," Charley wrote: ''I'm not clear whether Huff is alleging that the rules were followed but the outcome resulted in some violation, or whether there has been an actual violation of the rules. It would be interesting as well to get some flesh on the accusation of a fraudulent land transfer.'
In the thread, I wondered where the action was leading and what would happen once construction began.
On Public Radio Tuesday afternoon, Ka‘iulani Huff was interviewed, or more accurately, given broadcast time to present her thoughts on the matter. The result was way beyond the TGI article or any speculation on this blog.
She made it clear that she was not "protesting." She made it clear that the word did not apply and neither did the word "taking." After all, how can you take something that you've always owned. What she did announce was that she was simply assuming control, or power, over land belonging to her. This included the whole neighborhood and beyond. It included the beach and out to sea "as far as the eye can see." Building on this, she also said that anyone wants to do anything on the North shore would have to come to her and that she "was going after Princeville next." When the radio host laughed, and each other time he did, she tersely said "This is no joke." I believe she meant it. She then talked about how people would have to go through her to use the beach and how the beach was going to be a "hostile experience" like it had been for her.
It was quite breathtaking actually; in the same way as the train wreck in the movie The Fugitive. We have seen barbers and boat tour operators reach this delusionary peak, stop paying taxes, lose everything, and end up in jail. At least they were not a danger to others in the process. I do think that Huff is too clever, despite evidence to the contrary, to end up in jail herself. I do believe she will inspire some others to end up there; beginning with the young man camping with her who is already fired up and ready to unload.
Are people so intimidated by Ka‘iulani Huff that she never gets any constructive advise? Is she the antiDaleCarnegie? Look around these days, the so called "fringe" is developing it's own fringe. In Hanepepe, one loose container in a flood quickly became four. I think one of them was carrying the Roswell Aliens and another had nuclear waste from Three Mile Island. Of course there really were four; three were sunk by the military conspiracy submarine docked at Port Allen. Some of this is reaching the level of dreams and hallucinations. I worry that my truck may appear as something else coming the opposite way on the highway.
Regards, Pete Antonson
Litigating the Claims of the Native Hawaiian People
William S. Richardson School of Law professor, Jon Van Dyke, is giving a talk before the Native Hawaiian Chamber of Commerce May 22 on "the basis for the claims of Native Hawaiians, how they have been handled by the courts, and what the impact of the Akaka Bill would be."
I've been reading Professor Van Dyke's book, Who Owns the Crown Lands of Hawaii? and I've found it to be a really great, readable cultural and legal history of Hawaii. Regardless of where you come down on the issues of sovereignty or the proper disposition of the Crown Lands, I recommend it for its clear exposition of the history and the issues. I suspect the same will be true of his talk - that whether you agree with his conclusions or not, it will probably be pretty dang interesting.
(I should give credit to Costco, where I bought the book, and to the Hawaiian Independence Blog where I originally saw the meeting announced).
Hawaiian Water Rights
I would have said something earlier but I just noticed over on InverseCondemnation a seminar tomorrow in Honolulu called Integrating Water Law and Land Use Planning.
Moses Kalei Nahonoapi`ilani Haia III and Alan T. Murakami are presenting an interesting sounding program called Hawaiian Water Rights – Where Culture and the Law Merge. According to promotional material, they will discuss, among other things, how Hawaii's water law has evolved in a unique way relative to the other states; the constitutional recognition of traditional and customary uses of water (Article XI, Sec. 7; Art. XII, Sec. 7); the assertion of the water priority for development of Hawaiian Home Lands; the Hawaii Water Code; recognition of Hawaiian water rights; and current and future battles over water.
Robert Thomas will address Water Rights, Property Rights and the Law of Settled Expectations. Lenore Nakama Ohye will talk more about the Hawaii Water Plan, and Lawrence E. Beck will discuss the County of Hawaii Water Use and Development Plan. Big day. It sounds really interesting. Maybe Robert will blog about it later.
The expensively strained relationship between the County Council and the County Attorney
This morning's Garden Island reports the latest...
The Kaua‘i County Council plans to put extra money in its fund to hire outside legal counsel in part to send a message to the Kauai County Attorney’s Office saying service continues to fall short of expectations.It seems to me the county is in critical need of sound legal advice. (The planning department, for instance, seems either woefully deficient in any understanding of the laws that guide and constrain its actions or it cavalierly ignores them on a semi-regular basis). And this ends up costing us a lot of money in outside counsel. We really shouldn't put up with this juvenile lack of cooperation between the Council and the County Attorney. And we also shouldn't put up with the Council spending $63,000 to "send a message." If the Attorney's office is understaffed, then solve the problem. Don't play games with our money.
...
“There’s a total lack of respect for any activity that is going on here,” Councilman Ron Kouchi said, referring to Pyun reportedly saying he does not want his deputy attorneys wasting their time sitting through often lengthy council meetings.
The attorney’s office did not respond to a request for comment by press time.
Council members said they want a county attorney on hand at their meetings to answer legal questions, a service that has been intermittent over the past year here but should regularly occur as it does at council meetings across the country.
Some county attorneys have been unable to stay for council meetings that stretch late into the night because they have to catch flights home to O‘ahu, officials say.
“It’s obvious that we’re not going to get the level of service from the County Attorney’s Office that I would like,” Councilman Mel Rapozo said.
He suggested increasing the special counsel fund in the council services budget from the proposed $12,000 to $100,000.
“Is that the perfect system? No, but I’m a realist,” Rapozo said.
The council compromised at $75,000 total, a $63,000 jump.
The attorney’s office budget for special counsel remained the same as proposed in March at $1.2 million.
“We need to develop a working relationship of mutual respect,” Councilman Tim Bynum said, adding that trading blows with the attorney’s office needs to stop at some point.
The county often hires outside legal counsel for expertise in areas such as transient vacation rentals and shoreline setbacks. It has also contracted special counsel because of staffing shortages at the attorney’s office.
Monday, May 12, 2008
County charter development amendment
I just got around to reading the County Charter amendment recently proposed to slow development. It's been advertised as moving the responsibility for permit decisions from an appointed administrative body (the planning commission) to a politically accountable body (the county council). I hadn't realized it was aimed exclusively at development of tourist accommodations. Even more, what jumps out at me is the less advertised feature that "the issuance of a zoning, use, subdivision or variance permit for more than one accommodation unit" would require a 2/3 supermajority of the council. It seems to me that's the real instrument aimed at subduing development.
It would be interesting to see how such an amendment might fare in the Hawaii courts. Recall the fate of the county property tax charter amendment shot down by the state supreme court. Here there is even arguable authority that an initiative touching on zoning violates the law.
Sunday, May 11, 2008
From shoreline setbacks to iwi in the Brescia saga
The Garden Island reported today about Ka‘iulani Huff's siege of the Brescia property.
At [a Kaua‘i Island Burial Council meeting on April 3], the council voted 4-2 that the 30 burials discovered on Wainiha landowner Joseph Brescia’s property last year must all be left in place in order for him to build a residence. Brescia would also have to change the burial treatment plan for the property.I've noticed in the past that she often speaks in legal conclusions, and her quotes in this article are no exception.
Huff set up an encampment on the beach fronting Brescia’s property in protest, and she remains there today.
“The burial treatment plan is very flawed,” Huff said. “It is a clear violation of our rights as indigenous people.”There are of course laws and rules governing the treatment of burial sites. I'm not clear whether Huff is alleging that the rules were followed but the outcome resulted in some violation, or whether there has been an actual violation of the rules. It would be interesting as well to get some flesh on the accusation of a fraudulent land transfer.
...
“We will be staying until further notice and until the state of Hawai‘i acknowledges the property was fraudulently sold to Brescia,” Huff said.
