Wailua Nui Update

SUBHEAD: No sign of County or State authorities yet as Hawaiian "occupation" of Kauai Coco Palms site continues.

By Brittany Lyte on 2 February 2018 for Civil Beat -
(http://www.civilbeat.org/2018/02/no-sign-of-authorities-yet-as-occupation-of-kauai-resort-continues/)


Image above: Photo of the entry gate to the Wailua Nui Hawaiian encampment. Photo by Brittany Lyte. From original article.

[IslandBreath Publisher's note: The young Hawaiians doing indigenous farming near the mouth of the Wailua River are doing what we all should be doing - living on the land and growing food. The Coco Palms Resort site was always an abomination to Hawaiian sovereignty, culture and history. The site is part of a large, intricate and most sacred Hawaiian cultural system on Kauai that extends from the mouth of the Wailua River (largest in Hawaii) past the giant heiau near Opaekaa Falls. The site is totally inappropriate for commercial resort development in that it is located at a choke point for traffic and is threatened by rising seas, beach erosion and storm surge caused by global warming. The developers of the Coco Palms Resort are scam artists who will be in and out of the deal as fast as they can, and off to paramilitary protected estates in New Zealand if their Ponzi scheme is successful. We stand with the Hawaiian "occupiers".]

Authorities have not intervened in the ongoing occupation of Kauai’s famed Coco Palms resort, but the number of people who remain there in defiance of a court order had dwindled Thursday night.

Four days after a judge-ordered property eviction went into effect for two encampment leaders, about a dozen Native Hawaiians claiming ancestral ties to the land continued to live on the property while farming taro, keeping watch over ancient burials and hosting Hawaiian language classes.

The State Sheriff Division is the entity that is responsible for responding to a violation of a court order, and Hawaii Department of Public Safety spokesperson Toni Schwartz said Wednesday that the division has received an official request for assistance from the property owner’s representative.

“The Sheriffs will work with the property owner, (Kauai Police Department) and the occupants towards a resolution to this matter,” Schwartz said in an email. “For safety and security reasons, we are not at this time, free to discuss any strategies that may be utilized in any related enforcement action.”

On Thursday evening, an ashen sky periodically squeezed out rain showers as a protester harvested a coconut tree. Seated in a row of folding beach chairs lining the encampment entry gate, five occupiers kept watch for anything coming their way — be it food donations from supporters or a widely anticipated visit from police. More than humidity, the night air held a palpable anxiety.

“I’m not trying to be a hero,” said Ke’ala Lopez, 22, an anthropology student at Columbia University who has been sleeping at the camp since New Year’s Day. “If law enforcement does come, I would like to have a civil conversation with them. I would like to show them documentation of why we are allowed to be here and why we are not under their direction or authority.

On social media occupiers made requests for supporters to join them in keeping a physical presence on the property. Beyond donations of tents, extension cords and ice, they asked supporters to bring cellphones and cameras to help document any police “action.”

“Sheriffs waiting for there to be little presence to move in, we need as many people as possible to hold space at gates 24/7,” Lopez posted on her Facebook page.


Image above: Photo of e’ala Lopez, 22, stands beside thriving taro plants cultivated by Coco Palms site Hawaiian gardeners. Photo by Brittany Lyte. From original article.

“We’re still here because we’re trying to continue our mission of stewarding the land regardless of what has been happening legally,” Lopez said Thursday. “If the sheriffs come and try to forcibly remove me from being able to do that then that’s a reflection on them. I am a peaceful person.”

At issue is an impassioned battle over land rights at the site of the long-shuttered resort. A judge’s ruling last week confirmed the validity of the special warranty deed to the property which Coco Palms Hui had purchased from an insurance company.

Defendants Noa Mau-Espirito and Kamu “Charles” Hepa employed Hawaiian kingdom law when they fought for their standing as the lineal descendants of the property’s last owners prior to the overthrow of the kingdom.

Judge Michael K. Soong ordered the ejection of the co-defendants from the property effective 6 p.m. last Sunday. Occupiers said Mau-Espirito and Hepa were still at the encampment Thursday night.

The dispute has lasted almost a year, stalling a planned redevelopment of the hotel where Elvis Presley’s “Blue Hawaii” was filmed in 1961. Long before the resort popularized torch-lighting ceremonies as a mainstay of Hawaii hospitality, the property was the 19th century home of Kauai’s last queen, Deborah Kapule Kaumuali’i.

Chad Waters and Tyler Greene of the Honolulu-based redevelopment firm Coco Palms Hui say they are committed to reopening the site as the Coco Palms Resort by Hyatt with an estimated $135 million project that will pay tribute to the property’s storied heritage.

The resort has been closed since it was heavily damaged in 1992 by Hurricane Iniki.

“Our commitment to rebuild the Coco Palms resort has never wavered,” Waters told Civil Beat. “All development projects have their own set of unique challenges. We work very hard to resolve all issues in a fair manner. “We know that when the court is asked to step in that it is going to take much longer than hoped or desired,” he said. “At this point, the Court has heard both sides and they have ruled that exclusive possession belongs to Coco Palms Hui, LLC. The writ was issued and now in the hands of law enforcement.

See also:
Ea O Ka Aina: Okay given to destroy Paradise 6/10/17 

Ea O Ka Aina: Occupying the Coco Palms 3/30/17
Ea O Ka Aina: Wailua self destruction 8/18/15 

Ea O Ka Aina: Coco Palms Good to Go 3/11/15
Ea O Ka Aina: Annals of pure bullshit - Coco Palms 6/22/14  
Ea O Ka Aina: Coco Palms Travesty 8/10/13
Ea O Ka Aina: Wailua Beach "Elephant Path" 12/22/12
Ea O Ka Aina: Wailua Bike Path Consideration  12/12/12
Ea O Ka Aina: Prehistory Wailua Ahupuaa 1/20/11
Ea O Ka Aina: Kauai Future 2020 - Part 1 1/18/10
Ea O Ka Aina: Hawaiian Ceremony for Wailua 11/11/09
Ea O Ka Aina: Preserve Wailua Beach 9/13/09
Island Breath: Annals of False Advertizing - Kauai Lagoons 3/18/08
Island Breath: Coco Palms Developers Break Promises 1/14/07
Island Breath: Coco Palms & Traffic Problem 3/1/06
Island Breath: Coco Palms Review 1/8/06
Island Breath: Kauai Coconut Coast Overdeveloped 11/12/05
Island Breath: Coco Palms Development 12/28/04

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Oppose US DOI takeover

SUBHEAD: Why you should oppose the US Interior Department and the State of Hawaii disenfranchising Hawaiians.

By Staff on 2 December 2015 for Aina Lahui -
(http://ainalahui.com/2015/12/02/why-you-should-oppose-the-doi-proposed-rule/)


Image above: Poster for "Our Aina, Our Kuleana" project. From (http://ainalahui.com/2015/12/02/why-you-should-oppose-the-doi-proposed-rule/#jp-carousel-59).

In 1993, the U.S., through Public Law 103-150 acknowledged that the Hawaiian people never gave up their rights to their national lands (aka “ceded lands”) to the U.S. government.

Now, the U.S. Department of Interior (DOI) proposed rule would unethically terminate Native Hawaiian rights to millions of acres of HAWAIIAN ‘ĀINA.

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The U.S. Department of Interior (DOI) is proposing to re-establish a formal government-to-government relationship with the Native Hawaiian community that will not affect the title, jurisdiction, or status of Federal lands and property in Hawaii.

In effect, the U.S. would continue to control nearly 900,000 acres of land in the main Hawaiian Islands and over 88 million acres of the Papahanaumokuakea Marine National Monument.

The absence of any reference to Hawaiian lands controlled by the State of Hawaii in the proposed rule is of grave concern. With this much at stake, we must submit testimony in opposition to the DOI’s proposed rule before December 30.

DHHL Beneficiary Form Testimony

We have added a form testimony specifically for Hawaiian Homestead beneficiaries (Lessees and individuals on wait list) on account of specific references in the rule to the Hawaiian Homes Commission Act (HHCA) and homestead communities.

The Department of Hawaiian Homelands (DHHL) has not yet taken a position on the DOI rule even though it has the potential to disband the HHCA altogether.

Although the DHHL has a fiduciary obligation to its beneficiaries, the department has not held any informational meetings on the proposed DOI rule in their beneficiary communities.

Is it because the DHHL protects the interests of Governor Ige and the State of Hawaii over the interests of their native Hawaiian beneficiaries?

Call your DHHL commissioner at (808) 620-9590 and tell them to oppose the DOI proposed rule.

SUBMIT TESTIMONY HERE:

For Native Hawaiians>>  LONG FORM Letter  |  SHORT FORM Letter
For DHHL Beneficiaries>> FORM Letter
For Non-Hawaiians >> LONG FORM Letter  |  SHORT FORM Letter

Deadline: DECEMBER 30, 2015

See graphic examples of land already stolen from Hawaiian control (like Kauai's Pacific Missile Range Facility operated by the US Navy for American weapon manufacturers).

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Hawaiian Homelands grab by feds

SOURCE: Kawai Waren (kawaiwarrenkhha@gmail.com)
SUBHEAD: The U.S. Department of Interior proposed rule changes for Hawaiian Homelands could be a land grab.

Edited by Juan Wilson on 7 July 2015 in Island Breath -
(http://islandbreath.blogspot.com/2015/07/hawaiian-homelands-grab-by-feds.html)


Image above: Don't trust the US government. The Federal government has a tragic history relating to  indigenous people. Detail of US troops slaughter of American Indians in a mural by Edmond J. Fitzgerald named "The Battle of Bear River" on a wall in the US Post Office in Preston, Idaho.  From (http://postalmuseum.si.edu/indiansatthepostoffice/mural19.html).

I have asked several legal and policy experts to review the DOI's proposed rules on land exchanges of Hawaiian home lands and the Federal government's proposed review and approval powers on amendments to the Hawaiian Homes Commission Act.

Conclusions described below. I hope that these help you as you pose questions and comments to the proposed rules.

Here is the link for you to send your comments until July 13th to the DOI:
http://www.regulations.gov/#!submitComment;D=DOI-2015-0002-0001

Points to consider re: DOI's proposed Federal rules:

It is important that beneficiaries understand that the proposed DOI rules are much more than "seek[ing] to clarify" aspects of the Hawaiian Homes Commission Act (HHCA), as stated in the DOI's May 8, 2015 public announcement.

The proposed rules may have enormous practical and legal implications that have not been either fully disclosed or fully explored by the beneficiaries, legal and policy experts, or the DOI itself.

For example, in the text of the proposed rules, the DOI explicitly states that the DOI interprets the HHCA word "rehabilitation" (of native Hawaiians) to include "political, social and cultural reorganization'" and that the proposed DOI rules will "further" "rehabilitation" under the DOI's unilaterally defined interpretation of "rehabilitation."

This seems to be a significant legal stretch, and the DOI announcement quite clearly states that these proposed rules are a stepping stone to Federally-guided "reorganization."

It is also not clear why the DOI has focused so intently on 1. its role and power specifically in "land exchanges involving Hawaiian home lands" and 2. its power to review and require Congressional approval on amendments to the Hawaiian Homes Act.


Video above: Will new rules lead to evictions of Hawaiian Homesteaders? From (https://youtu.be/0jaS55evi60).

There may have been legal overstepping by DOI in giving itself the powers recited in the proposed rules.  Records should be made available to show how and when these specific subject areas were selected for clarification by the DOI.

Additionally, the rule making process itself that resulted in the proposed draft Federal rules needs to be analyzed by more than just the DOI and CNHA and CNHA's circle of supporters.

DOI and other Federal departments should be asked by beneficiaries to provide copies and an official record of correspondences between the DOI, CNHA and SCHHA so that all within the native Hawaiian community and their many leaders can understand how these rules and this rule making process have transpired, who attended the consultation and planning meetings, and minutes of those meetings.

In this way, beneficiaries will have fuller knowledge.

Given the sensitive nature of the US Federal government's relationship and credibility with the many diverse native Hawaiian communities, and especially given that the Obama administration should desire to tread lightly and diplomatically with full and transparent public input on this matter, beneficiaries are advised to urge the DOI and Federal government to exercise legal caution.

Please review the recently released Hawaiian Homes Commission Resolution (its position statement) on the DOI's proposed rules.  See PDF file here (http://dhhl.hawaii.gov/wp-content/uploads/2015/06/Hawaiian-Homes-Commission-Resolution-283_approved-and-formatted.pdf).

The Resolution is a strong and effective statement and has merit in their statements.  

The following documents and links are provided for your review:

Actual Federal rules proposed by DOI: (http://www.regulations.gov/#!documentDetail;D=DOI-2015-0002-0001). It's Summary reads:

"This rule would remove ambiguities the State of Hawaii faces in administration of the Hawaiian Homes Commission Act. It would facilitate the goal of the rehabilitation of the Native Hawaiian community, including the return of native Hawaiians to the land, consistent with the Hawaiian Homes Commission Act, the State of Hawaii Admission Act, and the Hawaiian Home Lands Recovery Act.

The rule clarifies the land exchange process, the documents required, and the respective responsibilities of the Department of the Interior, the Department of Hawaiian Home Lands, and other entities engaged in land exchanges of Hawaiian home lands. It also clarifies the documents required and the responsibilities of the Secretary of the Interior in the approval process for proposed amendments by the State of Hawaii to the Hawaiian Homes Commission Act, 1920, as amended."

DOI process up to now has not included DHHL input.  Therefore, a better rule making process must be put in place to ensure real and full beneficiary and state input. A document describing DHHL's position on DOI proposed Federal Regulations is Resolution 283 here (http://dhhl.hawaii.gov/2015/06/26/hhc-urges-interior-department-consult-beneficiaries-and-dhhl-on-proposed-federal-rules/). It states:

"The rules proposed by the Interior Department seek to clarify the processes for approval of amendments to the Hawaiian Homes Commission Act and proposed land exchanges involving Hawaiian home lands; processes the HHC believes are already set forth, with sufficient detail, in the Hawaii Statehood Admission Act and the Hawaiian Home Lands Recovery Act."

See also the videobelow for the review of the four key points of the Resolution.


Video above: DHHL to DOI "Stop your power grab!" From (https://youtu.be/wa1Zf_WrKE8).
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Kokee & Kekaha Ditch Systems

SUBHEAD: The diversion of water from its normal course from the Alakai Swamp through the Waimea River.

By Juan Wilson on 29 April 2015 for Island Breath -
(http://islandbreath.blogspot.com/2015/04/kokee-kekaha-ditch-systems.html)


Image above: View from Waimea Canyon Lookout. In the distance and to the upper left is the Alakai Swamp. In the forefront is Wahane Valley in the Puu Ka Pele Forest reserve. Much of the stream water in the lower valleys is diverted from flowing through the Waimea Canyon. The water is used to power the Mauka Hydroelectric Station before traveling on through the Kekaha Ditch System. Photo by Juan Wilson.

Yesterday, the 28th of April 2015, the Commission on Water Resource Management (CWRM) of the Hawaii Department of Land and Natural Resources (DLNR) met on Kauai for the first time. It was a long day for its members who were committed to several events from morning and into the night. These included planned  site visits to several locations on the Kokee and Kekaha Ditch Irrigation Systems.

I attended three events between 9:30am until 4:30pm. There was a gathering of interested parties and an orientation at the Waimea Neighborhood Center. Then there were site visits to seven points long the ditch systems to get an understanding of the systems.

The CWRM conducted a site visits to several locations on the Kokee and Kekaha Ditch Irrigation Systems in connection with the complaint against waste in the Waimea River and its tributaries filed by then Earthjustice law offices on behalf of Poai Wai Ola organization and the est Kauai Watershed Alliance.

The purpose of the site visits were to give interested parties a better understanding of the system. The Kokee and Kekaha Ditches are interlinked at a number of points that create a more complicated network than I knew.

http://www.islandbreath.org/2015Year/04/150429ditchmapbig.jpg
Image above: Detail of handout map of Kekaha and Kokee Ditch System. Click to see it all larger.

SITE VISITS SITE # 1 Waimea Neighborhood Center 9:45 am A short briefing by Kekaha Agriculture Association (KAA) on the Kokee and Kekaha Ditch Systems. SITE # 2 Waimea Canyon Lookout 10:30 am Heading north on Kokee Road (Hwy 550), Turn right ~0.3 miles after mile marker 10 Waimea Watershed with view of Waipoo Falls (Kokee Stream). Flow in Kokee Stream is augmented by water returned from Kokee Ditch downstream of Kawaikoi, Waiakoali, and Kauaikinana Stream Diversions. SITE # 3 Puu Lua Reservoir 11:00 am Heading north on Kokee Road (Hwy 550), turn left at mile marker 12 Water from Kokee Ditch flows into Puu Lua Reservoir, which is located downstream of the sluice gate to Kauhao Gulch. The reservoir is maintained below 60 feet due to dam safety regulations and is used by the Division of Aquatic Resources (DAR) for sport fishing (trout are raised and released). Outflow from the reservoir continues towards the Puu Moe Divide. SITE # 4 Puu Moe Ditch Divide 12:30 pm Heading south on Kokee Road (Hwy 550), ~0.4 miles after mile marker 10 Kokee Ditch downstream of Puu Lua Reservoir. Water is divided between the Department of Hawaiian Home Lands (DHHL) lessees and the Kokee Ditch towards Kitano Reservoir. SITE # 5 Black Pipe Siphon Viewpoint 1:15 pm Heading south on Waimea Canyon Drive (Hwy 550), (See map) ~0.6 miles after mile marker 4 The Kekaha Ditch siphon conveys water from the eastern side of the valley to the western side. The siphon is located below the Mauka Hydropower Plant. Water continues in the Kekaha Ditch to the diversion point for the Menehune Ditch and on to the Mana Plain. SITE # 6 End of Kokee Ditch 1:45 pm Heading south on Waimea Canyon Drive (Hwy 550), ~0.1 miles after mile marker 3 Water exiting Kokee Ditch flows downslope into Kekaha Ditch. SITE # 7 Kekaha Ditch Crossing at Hwy 550 2:15 pm Heading south on Waimea Canyon Drive (Hwy 550), ~0.7 miles after mile marker 2 Kekaha Ditch downstream of Menehune Ditch withdrawal and before inflow from Kokee Ditch. SITE # 8 Waimea Neighborhood Center 3:00 pm Commission on Water Resource Management of the DLNR hears testimony from public on subjects from the Kokee and Kekaha Ditch Systems to need for water and homesteading on DHHL managed land to reach Kauai food self reliance.

One thing was clear from the presentation of Kekaha Agriculture Association representatives and the hydrologist hired by the Commission on Water Resource Management to survey the existing system - They saw the system with a mechanistic view. They read ditch flow in Millions of Gallons per Day (MGD) and siphon pipes as 48" diameter. They did not see the valleys, streams, and the plants, birds, fish and insects in them as a continuous living entity. Continuity in the living biosphere is a necessary condition for health and stability.

Many local westside people spoke eloquently on these issues. There were many influential people from Kauai and from the state as well as "stakeholders". The people were clear. Let them live on the land. Let the water be used by local people to farm, and feed people.  

My impression was that the members of the public that spoke were surprised by the warmth and sympathetic responses by the members that were present from the Commission on Water Resource Management: Chair Suzanne Case, Denise Antolini, Kamana Beamer, Jonathan Starr, and Michael Buck.

The questions the Earthjustice case has raised are related to the diversion of water from its normal course from the Alakai Swamp that on its own followed the natural terrain and into the Waimea River. These diversions were created in the early 20th century by plantation companies to grow sugar on the Mana Plain and the hilltops above it. These diversions have took tens of millions of gallons per day for almost a hundred years.

In my opinion, by taking the water out of a stream (along with fish, insects, plants) putting them through a ditch and a steel tubed syphon and running them through a hydroelectric generator creates a discontinuity in the fabic of life. There are many spots in many streams where the water does not run when it is "needed" by the KAA and its "customers". Those spots are where the biosphere breaks down.

Where Do We Go
By the early 21st century the sugarcane operations that demanded that water no longer existed. But the diversions continued. The biggest users are associated with Kekaha Agriculture Association (KAA) the Hawaii Agribusiness Development Corporation (ADC). Those users include the GMO chemical corporations BASF and Syngenta as well as Sunrise Capital that operates the Kauai Shrimp Farm. These corporations want a continued flow of the diverted water in the existing systems.

Other major players are looking for access to diverted water as well. KIUC wants access to Puu Opae Reservoir (now inactive). The plan would be to use the diverted water to drive a hydroelectric generator at night to provide electricity.

It is ironic that the users of water on the Mana plain feel they need the ditch systems. Before the Mana Plain was filled in by the sugarcane interests it was an extensive wetlands with swamps and ponds fed from the valleys above that extended to the top of the islands. Ditches were cut into the wetlands to carry the water away. To this day pumps are used to carry water to the ocean so as to control the level of water on the GMO fields. That pumping is done now "for free" by the US military to keep the Pacific Missile Range Facility dry and secure.

I believe in engineering the flow of water to slow its course through the island. It's a primary principle of permaculture. Never more than a small percentage of a stream should be taken from its natural course. The engineering of the sugarcane companies was to take all the water they could use (and more) and only let the overflow of their dams reach the the stream again.

I'd rather see the Mana Plain wetlands restored to their state before the 20th century. I'd rather see the current ditch system greatly reduced in scope and not allowed to create complete discontinuity in stream flows.

Global warming will bring water problems to Kauai. Even a few degrees of temperature rise will raise the altitude of rain forming clouds. Scientists at the University of Hawaii havce calculated that only a few hundred feet increase in cloud elevation will have a significant impact on Waialeale's ability to catch the rain. As it is, rain gauge measures their have been diminishing for decades. Global Waring are also making the Trade Winds less reliable and increasingly making El Nino and La Nina events more chaotic.

Bottom line: We have to prioritize how we use water on Kauai. Growing local food and providing for our people comes first. Fuck the corporations. And that is how the law is written that the Commission on Water Resource Management must follow.

Priority 1) Appurtenant rights of land that were cultivated in kalo(taro).
Priority 2) Hawaiian rights of traditional and customary practices.
Priority 3) Riparian rights protect people who live along the banks of rivers or streams. Priority 4) Correlative rights of those who own land overlying a ground water source.

See inset below for details.

HAWAIIAN WATER RIGHTS From (www.law.hawaii.edu) Today, Hawaii’s Constitution and Water Code recognize specific rights to ground and surface water, including appurtenant, riparian, Native Hawaiian, and correlative rights. To better understand how the Constitution and Code were designed to operate,it is important to have a basic understanding of these rights. 1. Appurtenant Rights Appurtenant rights appertain or attach to parcels of land that were cultivated, usually in the traditional staple kalo, at the time of the Mähele of 1848. Hawaii law recognizes that such land retained rights to the amount of water necessary to continue to cultivate crops. Although some kuleana land has appurtenant rights, land need not have been awarded as a kuleana to retain such rights. See, e.g., Haw. Rev. Stat. § 174C-101(d) (recognizing the “appurtenant water rights of kuleana and taro lands”). Because appurtenant rights attach to the land and not to any individual, they can be exercised by property owners irrespective of race or ethnic background. Appurtenant rights have the highest level of protection under Hawaii law and, as mentioned earlier, are a public trust purpose. For example, Hawaii’s Constitution recognizes that the Water Commission “shall set overall water conservation, quality and use policies”; but clarifies that any such priorities shall “assur[e] appurtenant rights[.]” Haw. Const. art. XI, § 7. The Water Code also recognizes the primacy of appurtenant rights: “Appurtenant rights are preserved. Nothing in this part shall be construed to deny the exercise of an appurtenant right by the holder thereof at any time. A permit for water use based on an existing appurtenant right shall be issued upon application.” Haw. Rev. Stat. § 174C-63. Despite these strong protections, the Water Commission has never inventoried or forecasted the amount of water necessary to supply existing or future appurtenant rights. See Haw. Rev. Stat. §§ 174C-31(c), (d). Although the Water Commission’s jurisdiction to make determinations of appurtenant rights was made explicit in 2002, at the time of this primer’s publication, the Commission has yet to issue a formal declaration of any appurtenant rights, even though individuals have applied for such determinations. Given the lack of action on the Water Commission’s part, appurtenant right holders have had difficulty protecting their interests. This has been complicated by the Hawai‘i Supreme Court’s ruling that appurtenant rights may be severed if attempts are made to transfer or reserve these rights. See Reppun v. Board of Water Supply, 65 Haw. 531, 552, 656 P.2d 57, 71 (1982). Such reservations or transfers were and remain commonplace in deeds conveying property; thus, some appurtenant rights have been extinguished. 2. Native Hawaiian Rights Given Hawaii’s unique history and background principles of property law, our laws recognize and protect traditional and customary Native Hawaiian rights and practices. “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.” Haw. Const. art. XII, § 7. In addition to that constitutional mandate, the Water Code includes specific provisions respecting and upholding the rights of Känaka Maoli, which recognize that the “traditional and customary rights of ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 shall not be abridged or denied by this chapter.” Haw. Rev. Stat. § 174C-101(c). The Code makes clear that such rights include, but are not limited to, the cultivation of kalo on one’s own kuleana, as well as the right to gather various resources for subsistence, cultural, and religious purposes, including: hïhïwai (or wï); ‘opae; ‘oopu; limu; thatch; ti leaf; aho cord; and medicinal plants. Haw. Rev. Stat. § 174C-101(c). Similar to the treatment of appurtenant rights, the Code specifically provides that the “traditional and customary rights assured in this section, shall not be diminished or extinguished by a failure to apply for or to receive a permit under this chapter.” Haw. Rev. Stat. § 174C-101(d). The Code also recognizes and upholds rights conferred by “the Hawaiian Homes Commission Act, 1920, as amended, and by chapters 167 and 168, relating to the Molokai Irrigation System.” Haw. Rev. Stat. § 174C-101(a). Moreover, the Code directs the Commission to “incorporate and protect adequate reserves of water for current and foreseeable development and use of Hawaiian home lands as set forth in section 221 of the Hawaiian Homes Commission Act.” Haw. Rev. Stat. § 174C-101(a). Comparable to the treatment of appurtenant rights, both traditional and customary Native Hawaiian rights and reservations for the Department of Hawaiian Home Lands are public trust purposes. Despite that status, the Water Commission has yet to forecast the amount of water needed to supply existing and future traditional and customary rights as well as the existing and future needs of the Department of Hawaiian Home Lands, frustrating the ability of those with such rights to effectively exercise them. See Haw. Rev. Stat. §§ 174C-31(c), (d); -101(a). As a result, the strong protections intended for these rights remain largely on paper and unenforced on the ground in the community. 3. Riparian Rights In Latin, ripa means river bank. Riparian rights protect the interests of people who live along the banks of rivers or streams to the reasonable use of water from that stream or river on the riparian land. Those rights are subject to other rights of equal or greater value, such as appurtenant, traditional and customary Native Hawaiian, other riparian rights, or reservations for the Department of Hawaiian Home Lands. Hawaii’s Constitution protects existing riparian uses. Haw. Const. art. XI, § 7. Due to the Water Code’s establishment of Water Management Areas as described in Part II(F), below, Hawaii has a bifurcated system of rights. In non-designated areas, the common law controls and anyone with riparian land retains riparian rights. Once an area has been “designated,” however, only existing riparian uses, as opposed to unexercised riparian rights, continue to retain preferential status. See Haw. Const. art. XI, § 7. Although riparian landowners who are not currently using water from the adjacent stream may apply for a permit, they will not receive any special preference if they seek to use that water on riparian land. Existing riparian uses, on the other hand, retain such a preference. In Reppun v. Board of Water Supply, the Hawaii Supreme Court ruled that riparian rights cannot be severed from riparian land. 65 Haw. 531, 550, 656 P.2d 57, 70 (1982). Efforts to sever or transfer such rights, which usually occur as part of a deed of sale, are ineffective. Reppun, 65 Haw. at 550, 656 P.2d at 70. This means that even if you have riparian land and the deed conveying the property reserves or transfers ripari rights or water rights in general, your land will still retain those rights unless the geographic region is designated a Water Management Area. 4. Correlative Rights Similar to the riparian right to surface water, correlative rights protect the interests of individuals who own land overlying a ground water source or aquifer. This land has rights that correlate to the water below it. Like riparian rights, Hawaii’s Constitution protects existing correlative uses, as opposed to inchoate correlative rights. This means that correlative rights are protected in non-designated areas, but only existing correlative uses receive priority in designated Ground Water Management Areas. Moreover, correlative rights are subject to the reasonable-use doctrine, which means that in times of a water shortage each use with correlative rights has a share to a reasonable amount of water as long as the correlative use does not injure the rights or interests of other correlative right holders. Hawaii courts first recognized correlative rights in City Mill Co. v. Honolulu Sewer & Water Comm’n, 30 Haw. 912 (1929). The Hawaii Supreme Court later clarified the current correlative rights rule in the context of the State Water Code in Waiahole I, 94 Hawaii 97, 9 P.3d 409. 5. Other Water Rights During the Hawaiian Kingdom and Territorial period, various court decisions created a range of rights, such as konohiki (or surplus) and prescriptive water rights. Those rights no longer exist under the current regulatory regime, and the range of rights now available are outlined and defined in the Water Code.

See also:
Ea O Ka Aina: The Mana Mirage 8/3013
Mana means supernatural and dry in Hawaiian and these visitors to Kauai in 1847 found magic there.

Ea O Ka Aina: The Golden Plain 8/27/13
Your guide uses his paddle to pole you into the marshy water of the Mana Plain as the canoe rocks.

Ea O Ka Aina: Eroding Kauai 3/16/13
These two areas were the largest Hawaiian wetland systems - Mana Plain and Pearl Harbor
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Anahola Biofuel Plan Back Again

SOURCE: Hope Kallai (lokahipath2@live.com)
SUBHEAD: Public meeting regarding the Green Energy Team's proposed bio-mass lease for 2,143 acres of land in Anahola.

By Jobie M. K. Masagatani on 19 June 2013 for the DHHL -
(http://islandbreath.blogspot.com/2013/06/anahola-biomass-plan-back-again.html)


Image above: Interior of Anahola Valley looking north-east. All would be part of 30 year long term biomass lease. From GoogleEarth.

DHHL INFORMATIONAL BULLETIN

Public Information Meeting and Special Commission Meeting Regarding the Green Energy Team's Proposed General Lease for 2,143 acres of land in Anahola.

• Download a  PDF version of this meeting notice letter
  (http://dhhl.hawaii.gov/wp-content/uploads/2013/06/130619-Anahola-Meetings.pdf)
• Visit the Anahola Renewable Energy Project Beneficiary Consultation page
  (http://dhhl.hawaii.gov/po/beneficiary-consultation/2013-beneficiary-consultations/anahola-renewable-energy-project/)

Aloha Anahola Beneficiaries:

As many of you know, the Department of Hawaiian Home Lands (DHHL) has been in negotiations with Green Energy Team LLC (Green Energy) to general lease 2,143 acres of land at Anahola, which includes all lands mauka of Kealia Road. At a special meeting of the Hawaiian Homes Commission (Commission) held last Friday, June 14,2013, Green Energy notified the Commission that they were not able to continue negotiations beyond June 30, 2013. To accommodate Green Energy's deadline, the Commission chose to modify its initial timeline, moving up both the informational meeting and decision-making dates.

As a result, I invite you to attend and participate in two meetings next week:

I. Informational Meeting - Thursday, June 27, 2013
6:30 to 8:00pm
Kapa'a Elementary School
Proposed terms oflease agreement to be presented
Members ofthe Commission will be in attendance

II. Special Meeting of the Hawaiian Homes Commission - Friday, June 28, 2013
10:00am to Noon
Kapa'a Elementary School
Decision-making on Green Energy's General Lease Agreement

To summarize and review this issue, Green Energy wants a 20-year general lease to establish a tree plantation which will supply fuel to Green Energy's biomass-to-energy facility located in Koloa. In return, DHHL will receive monetary and other benefits including improvements to DHHL's Anahola lands. In March of this year, DHHL conducted a beneficiary consultation meeting and two Hawaiian Homes Commission Public Hearings on the proposed project.

Mahalo to all of you who attended the meetings. You gave clear and thoughtful testimonies about your concerns and recommendations. A special meeting of the Commission was planned for April 2013 to approve the lease; however, due to the many comments and concerns raised in your testimonies, the special meeting was postponed. In addition, due to the concerns raised, I committed to conduct an informational meeting for Anahola beneficiaries on the terms of the lease prior to any decision-making by the Commission. I also explained at the March Public Hearings that we are required by law to conduct the decision-making Commission meeting on the island of Kauai.

As a result of your input in March, we were able to propose important changes to the lease terms, and I look forward to the opportunity to present this information to you next week. In order to prepare for the meeting, we encourage you to visit our website (dhhl.hawaii.gov under Beneficiary Consultations) where we will post the most up-to-date information we have. You can access more detailed information, including:

• The Beneficiary Consultation Report which includes a summary of the major concerns raised during the three meetings conducted in March, as well as the meeting handouts, maps, and detailed notes for each meeting.
   
• Staff responses and recommendations for each of the major issues raised in the Consultation Report.
   
• A clrronology of activities that have occurred from February 2013 to June 14, 2013.
   
• Green Energy's website address where you can review Green Energy's detailed responses to the concerns raised in the March meetings.

After you review the information on our website, if you have further questions or if you feel there are major issues that still need to be addressed, in the interest of having a productive informational meeting on June 27, I invite you to submit your additional questions and issues by June 25 to the Planning Office via email: dhhl.planning@hawaii.gov.

Aloha and mahalo,

Jobie M. K. Masagatani, Chairman
Hawaiian Homes Commission
MEDIA CONTACT
Darrell T. Young
Deputy to the Chair
Department of Hawaiian Home Lands
(808) 620-9510
Darrell.T.Young@hawaii.gov

See also:
Ea O Ka Aina: Hawaiians spurn "Green" Energy 3/11/13

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Comment on Anahola Fuel Farm

SUBHEAD: Plan to burn wood for energy on Hawaiian Homelands hits brickwall. Help make sure they don't get through it.

By Hope Kallie on 6 April 2013 in Island Breath -
(http://islandbreath.blogspot.com/2013/04/comment-on-anahola-fuel-farm.html)


Image above: Tragically, Rapanui was completely deforested by its residents not long before contact with the rest of the world. In this cartoon monumental moai statues comment on that fact. From (http://www.chrismadden.co.uk/cartoon-gallery/easter-island-statues-cartoon-no-trees-on-easter-island/).

Send comments by Monday, April 8, 2013

The Hawaiian community in Anahola rejected the Anahola Renewable Energy proposal to terun 2000 acres of Hawaiian Homelands forest into a fuel farm business. Burning wood for energy on a small tropical sounds like a replay for Rapanui (easter Island).

The only EA for this project considered fuelstock from Koloa only. Not harvesting, trucking and replanting albizia and eucalyptus next to our forests, from multiple sites, including Anahola Hawaiian Homelands. The EA minimizes water use and impacts.

Jobie K. Masagatani, Chairman Hawaiian Homes Commission, has made a tactical retreat for the Anahola community with this letter sent via mail and email to the people who attended either the March 8th Beneficiary Consultation meeting and/or one of the Public Hearings held on March 14th and 15th.

Please note that the decision-making meeting tentatively scheduled for April 9th has been postponed. You can still send in comments to this email address up until April 8th at this address:

(http://dhhl.hawaii.gov/po/beneficiary-consultation/2013-beneficiary-consultations/anahola-renewable-energy-project/).

HAWAIIAN HOMES COMMISSION STATE OF HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS Box 1879 HONOLULU, HAWAII 96805 April 3, 2013 Aloha, Thank you for attending the Beneficiary Consultation meeting on March 8, 2013, and/or one of the two (2) public hearings held on March 14 and 15, 2013, on the Proposed Anahola Renewable Energy project This is to inform you that the final decision‑makiing meeting tentatively scheduled for April 9, 2013, on Kauai has been postponed until further notice. The Department of Hawaiian Home Lands (DHHL) appreciates your manao expressed at the meetings. As a result, due to overwhelming concerns on the proposed project, DHHL is taking another look at the project. We will seek to propose changes to the portions of the lease that relate to the concerns raised. A formal report on the beneficiary Consultation meeting and the two public heal‑ings will be posted on our website by the end of April 2013. You may send in your comments to us online until April 8, 2013. Should you have any questions, please feel free to contact Julie Cachola at (808) 620‑9483 or Linda Chinn at (808) 620‑9451. Aloha, Jobie K. Masagatani, Chairman Hawaiian Homes Commission

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Hawaiians spurn "Green" Energy

SOURCE: Ken Tayler (taylork021@hawaii.rr.com)
SUBHEAD: If local residents have their way, the Anahola Renewable Energy Project will be stopped dead in its tracks.

By Chris DeAngelo on 11 March 2013 for the Garden Island News -
(http://thegardenisland.com/news/local/hawaiians-say-no-to-green-energy/article_d291dd5a-89fa-11e2-9d61-001a4bcf887a.html)


Image above: Erik Knutzen refers to a map on the wall to make a point about the albizia removal project before an overflow crowd at the Anahola Clubhouse, Friday evening. From original article.

[Source comment:  Kipukai’ Kuali‘i said he is in favor of the plan and believes the majority of others would be too if they had the correct information. Kipukai, what is the correct information, and why was it not available at this public meeting?] 

 [IB Editor's comment: Green - Schmeen! Burning biomass is not green. It may be more sustainable than relying on diesel fuel, but it produces plenty of CO2 and requires reducing 2000 aces of forest to a fuel farm. If this makes such good business sense, why aren't the private owners of large tracts, like nearby Grove Farms, providing all the needed thousands of acres for this biomass project? Could it be this is just modern style plantation scheme that robs Hawaiians of more of their land? It smells like the PLDC to me.]


WHAT:
Meetings on long term lease on Hawaiian Homelands for biomass operation.

WHEN/WHERE:
Thursday at 6:30pm on March 14th, 2013
King Kaumualii Elementary School
Hanamaulu, Kauai

Friday at 9:00am on March 15th, 2013
Aston Aloha Beach Hotel
Kapaa, Kauai

The meetings are scheduled for Thursday at 6:30 p.m. at King Kaumuali‘i Elementary School in Hanama‘ulu, and Friday at 9 a.m. at Aston Aloha Beach Hotel in Kapa‘a.
 
If local residents have their way, the Anahola Renewable Energy Project will be stopped dead in its tracks. Project supporters, however, are saying much of the opposition is being fueled by misinformation and rumors.

The Department of Hawaiian Home Lands is proposing to lease more than 2,000 acres of Anahola lands to Green Energy Team, LLC of Kaua‘i for the purpose of clearing existing albizia trees for its planned biomass-to-energy facility near Koloa.

More than 200 residents, mostly from Anahola, showed strong opposition to the project — concerned that the lease would privatize Hawaiian homestead lands — at a Beneficiary Consultation meeting held Friday evening at Anahola Clubhouse.

“With this lease, even a blind man can see, we’ll never get our lands back,” Joe Borden, the newly-elected president of the Anahola Farmers and Ranchers group, said prior to Friday’s gathering.

Tempers flared during the event — which lacked any sort of control by the meeting’s organizer, DHHL — with people screaming over one another from start to finish.

“Somebody along the way recommended this as a good deal for Hawaiians,” Anahola resident Shane Cobb-Adams said. “And I want to know who they are … It’s a bad idea.”

The 30-year proposed lease is for 2,143 acres of land belonging to native Hawaiians under the Hawaiian Homes Commission Act of 1920. If approved, the land would be used for clearing trees and replanting and harvesting biomass feedstock, which would be delivered to Green Energy’s state-of-the-art, $90 million facility.

Construction of the facility near the Knudsen Gap is scheduled to begin this year. When finished, it is expected to provide enough electricity to power 8,500 households, replacing 3.7 million gallons annually of imported oil, as previously reported by The Garden Island.

Erik Knutzen, co-founder of Green Energy, said Friday’s consultation was an important opportunity to provide information and allow the community to voice its concerns — which were plentiful.

“We heard everyone’s voice, and that’s important,” he said. “It’s not unusual when people first hear these things, that they create rumors.”

Knutzen said there is a lot of misinformation circulating regarding the proposal. The main objective is to clear the land — now deemed “unusable” for agriculture or ranching because of invasive albizia trees — and establish homesteading agricultural lots, he said.

“The Green Energy Project is only the shovel,” he said. “It’s their lands, and they can use the shovel to get to their vision of homesteading.”

In an email to all board members of Anahola Hawaiian Homes Association, the president of the Council for Native Hawaiian Advancement, Robin Danner, described the behavior at Friday’s meeting as “horrible.”

Danner, who is also AHHA’s secretary, said if the project is not carried out, the lands will remain unusable for another 20 years and not be issued for homesteading to beneficiaries on the waiting list.

“It’s too late for homesteaders of my generation to become farmers (we’re too old), but it’s not too late for the next generation,” she wrote in the email.

In addition to clearing the invasive trees and providing annual lease revenue, the proposal includes a Community Benefit Agreement to maximize value to the impacted community and its beneficiaries.

AHHA Board Member and former Kaua‘i County Councilman KipuKai Kuali‘i said he is in favor of the plan and believes the majority of others would be too if they had the correct information.

“I’m supporting it basically because it’s smart, it’s green, it’s renewable, it’s efficient use of the land,” said Kuali‘i, adding that the land right now is unusable.

The complaints Friday by local residents were “premature and unfounded,” he said.

“I just think that this is a great opportunity for positive things to happen,” Kuali‘i said. “It’s hard to find those truly win-win situations, but this is one of them.”

Kekane Pa, an elected Nobel of the Reinstated Hawaiian Government and one of the most outspoken opponents during Friday’s meeting, disagreed, saying the proposal is only part of a much larger “dog and pony show.”

“How is it possible that these people, who don’t have Hawaiian blood or qualify under federal regulations, can qualify for land leases?” he asked. “Our objection to this proposal has nothing to do with the Knudsens. It all has to do with the Department of Hawaiian Homelands.”

Pa said only 2 percent of the money generated from the project would go to the beneficiaries, while the rest would go to Kaua‘i Island Utility Cooperative and Green Energy.

“Why would the Hawaiian people — who are not federally recognized — agree to giving (up) the land, (when) in return they get only 2 percent?” he asked. “It’s about corporate greed, 98 percent for the corporation and 2 percent for the beneficiary.”

Kuali‘i argues that the 2 percent does not represent the total benefit to the Hawaiian people.

“The 2 percent is just the piece that is literally going back to the neighborhoods … for educational programs, job training programs, maybe maintaining the (picnic area).”

Other concerns raised at Friday’s meeting include the environmental impacts of planting what one person described as “nitrogen-sucking” eucalyptus trees; control of water; a lack of outreach and information from AHHA and Green Energy; the impact to current lessees; and how the project will affect recreational users, including hunters and dirt-bike riders.

“How much more land are you going to take?” a man repeated more than a dozen times.

“How come you feel like you got to help us so bad?” another man screamed from the audience. “Why Anahola?”

The public is invited to comment on the proposed energy project at one of two public hearings on Kaua‘i before the Hawaiian Homes Commission later this week.

The meetings are scheduled for Thursday at 6:30 p.m. at King Kaumuali‘i Elementary School in Hanama‘ulu, and Friday at 9 a.m. at Aston Aloha Beach Hotel in Kapaa.

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Lipstick on a PigLDC

SUBHEAD: Even lipstick can't hide the PLDC thinking behind SB168 - plus the possibility of legalized gambling.

Compiled by Andrew Walden on 24 February 2013 in Hawaii Free Press -
(http://www.hawaiifreepress.com/ArticlesDailyNews/tabid/65/articleType/ArticleView/articleId/8970/February-24-2013-News-Read.aspx)


Image above: Hawaiian style mashup by Juan Wilson from art be Mike Coulas at (http://momunicipallaw.wordpress.com/2011/05/07/692/).

By Shapiro: For instance there is Senate Bill 215, which creates the Public-Private Partnership Authority, the PPPA. This bill wants to create "a partnership agency to collaborate with all state agencies and private sector entities" to deliver services "more effectively."

The good works to be done would include "energy generation."

The hook to getting county support was to say that counties would be allowed to "waive zoning, land use and permitting requirements on any project."

It appears the bill would also encourage the development of a film studio on Maui and an unspecified project in Wahiawa. Critics immediately said the state was actually just "putting lipstick on the PLDC."…

If that bill smacks of lipstick on the pig, another one, SB 168, is like the PLDC on steroids.

It is another measure that starts out bemoaning our lack of money, and would allow the state Department of Hawaiian Home Lands to enter into a public-private partnership with individuals or private entity "to create revenue for the department."

Critics fear the partnership created would result in a casino, even though the words gambling or gaming never appear in the bill.

Here is the line that set off alarms: It would allow "development of any concept proposed by an applicant that would result in revenue for the department, even if the concept requires legislative changes to existing statutes or regulations."….

"That strange phrase … means it would allow or encourage something beyond the law. I can't think of any other subject other than gambling," said Nakata, who is against legalizing gambling.

Republican Sen. Sam Slom also said the bill is actually talking about gambling.

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PLDC staff kept on payroll for new role
By David Shapiro on 24 February 2013 for Star Advertiser - 
(http://www.staradvertiser.com/s?action=login&f=y)


….The Senate agreed to abolish the unpopular Public Land Development Corp., but unlike the House version of the bill, senators kept alive the agency's staff in another department. The stage is set for a PLDC-quel….

See also:
Ea O Ka Aina: PLDC Repeal Bill Head Fake 2/14/13
Ea O Ka Aina: Will Whack-A-Mole never cease? 2/14/13
Ea O Ka Ania: Ex DLNR Chair against PLDC 8/30/12


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Farm / Ranch Land for Hawaiians

SUBHEAD: Kekaha Hawaiian Homestead Association hosts informational meeting Monday, January 28.

By Kawai Warren & Phoebe Eng on 24 January for Island Breath - 
(http://islandbreath.blogspot.com/2013/01/farm-ranch-land-available-for-hawaiians.html)

[IB Publisher's note: Please pass this information on to those you know of Hawaiian heritage. This may be a unique opportunity. There are also many roles to play for non-Hawaiians in starting sustainable community models within this project.]


Image above: Fields divided by trail running along the ridge between Opelu and Waiawa ahupuaa. Photo by Juan Wilson.

West Kauai Hawaiian Beneficiaries and Wait List Applicants!

Do you want land for Farming and Ranching?

Do you want farming or ranching land on Hawaiian Home Lands at Puu Opae (mauka of Kekaha)?

Do you want a job or income in sustainable agriculture without putting poison in the ground?

Do you want your children and families to be healthier and eat better food?

Do you want to learn how to grow food in ways that malama aina and respect our water? 

If your answer is YES to any of these, come to:

Kekaha Hawaiian Homestead Association's Dinner and Information Session:

Date: Monday, January 28

Time: 6 pm

Place: A Special Party Tent at Kekaha Neighborhood Center Pavilions.

Kekaha Hawaiian Homestead Association (it's President is Kawai Warren) has been working hard for many years to bring you this opportunity.  After much hard work by KHHA Board, west Kauai homesteaders and friends, Kekaha Hawaiiian Homestead Association has received support from our Hawaii state land trustee to develop this project for you and your families.  We all worked hard to do this project with love in our hearts, and with pono, honest, respectful behavior.  Everyone worked as volunteers, with no self interest or self gain, to bring you this opportunity to malama aina.

The Puu Opae project will give you a chance to be on Puu Opae home lands and malama aina through growing healthy foods for our families.  It will also be an education and training project to ensure we have the skills to malama Puu Opae and help our future generations.

For more information, call (808) 639-2731 to contact KHHA with your questions.   

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