Musings: Stick a Fork in It

As Kauai's pesticide/GMO regulatory law moves through federal court, former state Attorney General Margery Bronster will be squaring off against the same law firm she confronted while investigating the Bishop Estate: McCorriston Miller Mukai MacKinnon LLP.

Bronster is representing Dow Chemical's Pioneer Hi-Bred International and Agrigenetics Inc., which joined Syngenta and BASF in suing the county over Bill 2491/Ordinance 960. Kauai County just hired McCorriston to handle its defense, allocating $75,000 to get started. Oh, and thanks to The Garden Island for letting us know that Gary Hooser and Tim Bynum approve. Whew.

The Honolulu firm is a regular presence on Kauai, representing Jimmy Pflueger in his criminal case following the Ka Loko dam break, KIUC and frequently the County. In fact, it was hired to conduct an extensive audit into county fuel use, resulting in a report that county Auditor Ernie Pasion and then-Prosecutor Shaylene Iseri allegedly altered to make the mayor look bad.

Speaking of bad, I wrote previously about Huffington Post Hawaii's penchant for insipid pieces about the Islands. Most recently, it published “The 18 worst things about Hawaii,” which essentially bemoaned the fact that this ain't the mainland, as one offended local described it.

But Jonathan Likeke Scheuer fought back, publishing “Seven of the truly worst things about Hawaii” in an effort to “stick a fork in the idea of Hawaii as paradise.” His excellent essay touches on the real issues here, including grave diggers, hunger, homelessness, political retribution, racial discrimination and “the continuous stream of crappy writing about Hawai‘i by people not from here.”

Which leads us to this piece of shit: “Paradise Lost.” Here's its teaser:

A pristine, Eden-like land is settled by a small band who set about to create a modern-day utopia—only to have it all ruined by one devilishly handsome, charismatic interloper.

It's an article that glorifies the squatters who trash Kalalau, focusing on sex-and-drugs and the sensationalism of the Justin Klein case, while throwing in a few bogus celebrity references for good measure: “Will Smith owned a house close by” and “Mark Zuckerberg was recently hunting for a home near the valley.” Oh, really? 

In perusing it, after reading about Surfrider's antipathy for the new dairy, I couldn't help but wonder why that group has never said a peep about hundreds of people living illegally in a wilderness valley, planting alien species, destroying cultural sites, overloading the toilets, polluting the stream and leaving piles of rubbish that have to transported out at public expense. But god forbid there should be a dairy 2 miles from the ocean on “pristine” ag land that's currently being used to raise cattle and was in sugar for a century before that.

Anyway, it's Friday, and it's been kind of a heavy week, so let's end it on a lighter note with this cool Big Island video that reminds us dolphins — like all creatures — are a lot more tuned in than we like to admit.

Musings: Dances, Political and Otherwise

It's been delightful these past few mornings to watch brilliant Venus and the crescent moon dance in the lavender pre-dawn sky. But today Venus pulled ahead as a sliver moon, new tomorrow, struggled to emerge from a cloud bank on the horizon.

If you thought the political dance between Councilman Tim Bynum and former Prosecutor Shaylene Iseri ended when his case against her finally settled, think again. With her allies — Councilmen Ross Kagawa and Mel Rapozo — reluctant to pin the blame on the donkey, they're now focusing on County Attorney Al Castillo's office, which has his enemies — Shay and Councilman Gary Hooser — piling on.

As ably reported in today's The Garden Island, Mel wants to release the Council's executive session minutes on Tim's lawsuit, which I would certainly love to see. Let's hang all the dirty laundry on the line.

Hawaii News Now is doing its part, reporting that Tim will receive more $250,000 — it's actually just under $300,000 — and rehashing some of Shay's previous “highly-publicized misconduct incidents.” The report also noted that “the settlement is significant because prosecutors are usually immune from such lawsuits.” It then quoted Honolulu defense attorney, Victor Bakke, who wasn't involved in the case, as saying:

For the county to give up their immunity defense and settle for a sum of that amount is a good indication that not only did they not have a good case but they would be punished even more.

Another political dance is under way at KIUC, where we're voting on three new members of the Board. If you haven't voted yet, your ballot envelopes are probably glued shut from all the rain, but you can still vote on line or over the phone.

I asked a friend recently who he voted for, and at first he didn't want to say, because he thought I'd get mad, but he finally fessed up: he'd cast his ballot for Jonathan Jay, Adam Asquith and Jimmy Trujillo, whom he characterized as the “three rebels.”

Except they're not, I told him. They're just like the county folks who are wasting our money on frivolous lawsuits and using the process to settle personal grudges. All you have to do is look at their “to do list” for the KIUC Board, where the number one priority is “Cre­ate & Hire a new Com­mu­nity Engage­ment Department.”

Really? Their top priority is to replace community relations director Jim Kelly, one of the best things that ever happened to KIUC? And why? Because he's the only who has had the balls to stand up to those guys and call them on their bullshit, including monopolizing the KKCR airwaves (where all three have programs) with KIUC-bashing.

Btw, the only KIUC candidate who was never invited to be a guest on KKCR was Chuck Lasker, who is hated by the station's “red shirts” for his pro-GMO stance. How's that for fairness and equal time on our "community" radio station?  [Update: One of the programmers said she did call him but did not get a response, though he told me he'd received no communication at all.]

One of their other proposals, I told my friend, is to institute free smart-meter opt-outs, even though the members just rejected that. Another goal is solar hot-water on more than 90 percent of all roofs within a decade. Which sounds great, but who is going to pay for that? And how likely is that people who already paid for rooftop solar will want to subsidize that cost, especially when they didn't want to spend even $1 per month to pay for other members' smart-meter opt-out fees?

It'll never fly, my friend acknowledged.

Exactly. But that's the kind of pie-in-the-sky crap they throw out to make themselves look good. Meanwhile, they haven't been attending Board meetings or otherwise doing anything to get akamai should they actually win.

I know they'll never get elected, but I just wanted to make a protest vote against the status quo, my friend said. “You used to be a dreamer, too.”

And I still am, I told him. Only my dream is for people who truly want to serve the people — folks who aren't motivated by ego, pettiness, retribution and revenge. 

Finally, we continue on this island to dance around the tough question: what the hell are we gonna do with our ag lands? The proposed new dairy is already getting thrashed, though many of the bashers don't even know exactly what's planned.

I don't know if the dairy can fly, or if it's a good thing. Questions still remain and need to be answered. But it's important to resist these knee-jerk rejections of every agricultural proposal that requires more than an o'o stick and imported bat guano.

Because I'm cynical enough to see Grove Farm — now clearly a land-banking company — going to the state Land Use Commission and saying, hey, we can't make ag fly even on our Important Ag Lands with a project financed by a billionaire who doesn't care if he makes a profit. How the hell do you expect us to make ag work on our other lands? We need to have them reclassified.

We could just end up dancing with developers, instead of dairies. And while new management models may keep the latter from stinking, I'm not convinced the same holds true for the former.

Musings: Pawns

It was never more apparent that Kauai is a pawn in a bigger battle than when mainland-based nonprofits moved this week to intervene in the defense of our controversial new pesticide/GMO regulatory law.

Through the motion filed in federal court, Earthjustice, Center for Food Safety, Pesticide Action Network North America and Surfrider are trying to stay aboard the train they built, engineered and promoted, with Councilman Gary Hooser waving from the caboose and calling “all aboard.”

The motion states the ordinance goes to “the core of Proposed Intervenors' organizational interests.” And therein lies the rub. What's good for the national political agendas and fund-raising desires of PANNA, Surfrider, Earthjustice and CFS isn't necessarily what's best for little Kauai and our citizens.

Heck, we could have created buffer zones simply by amending the zoning ordinance. But that wouldn't have given Gary the national exposure he sought. And when Gary chose to align himself with the mainland groups — he's now actively shilling for CFS — he signed all of us up for the ride, too.

To make it seem like it's still about us, rather than their national agenda, they also brought in a new “community group” — Ka Makani Ho`oponopono — comprising people who live and work near the seed fields, and so “have unique personal interests in the transparency and protection guaranteed by Ordinance 960,” according to the motion.

But wait. Wasn't the bill written expressly for those very same people? Because if it was about protecting Kauai from pesticides, it wouldn't have targeted just five agricultural companies on the leeward side.

At least now the mainland groups are finally admitting, in their motion, that they “vigorously supported” the bill, helped write it and "actively participated in the legislative process to ensure its passage.” The admission finally exposes as false the insistent claims that the “red shirt” movement was a spontaneous, leaderless, local initiative.

The motion claims the county “does not share, and will not adequately represent” the proposed intervenors, which have “substantive interests in ensuring Ordinance 960's implementation.”

That's new. Because Hooser told me himself, when I expressed concerns about implementation: It doesn't matter if the law is enforced, all that matters is getting it passed.

As supposed proof of the county's lackadaisical approach, a press release issued by Earthjustice and CFS notes that although the chem companies sued the county in January, “six weeks later, the County has yet to even retain counsel to defend itself....”

Hmmm. As I recall it, the county's hiring of special counsel was delayed first by the promise of pro bono representation, a charade that fell apart, and second by attorney Lance Collins and his protest of the pro bono procurement process. Curiously, though Lance claimed he was working solely on his own, the motion references the gist of his protest as evidence of the county's attorney's intent to “undermine the County's defense of Ordinance 960.”

The motion also references the 5,500 pounds of restricted use chemicals annually applied by the companies — which again exposes as false the “18-ton” (36,000 pounds) figure that Gary intentionally introduced into local lore.

But despite its kernels of truth, the motion's “factual background” section contains a lot of unsubstantiated statements, including:

The constant application of pesticides...has detrimentally affected human health and the environment on Kauai. Pesticides drift beyond fields of application to pollute neighboring lands, harming, plants, wildlife and people.

Yet the only "proof" offered is a declaration from Malia Chun that she developed adult asthma after moving to Kekaha, and her daughter suffered bloody noses and doctors couldn't diagnose the cause.

As a related aside, Chris D'Angelo of The Garden Island yesterday reported Mark Sheehan from Maui claiming:

“On Kauai, for example, a documented correlation has been made between rising levels of pesticide application and rising incidences of birth defects."

Though I asked both Chris and Mark for verification of that “documented correlation,” neither responded.

Similarly, in his declaration, Surfrider President Gordon LaBedz claims the Kauai chapter “paid for some very expensive preliminary tests for pesticides and we found toxic levels in a number of streams.”

But Carl Berg, the group's vice president, recently told me the results had been “inconclusive.”

In a communique posted on Facebook, this is how CFS solicited participation in the motion to intervene:

In order to act, CFS and our community needs your help!

Are you aware of bill 2491? Are you concerned about the risk to yourself and/or your family’s health or the environment from pesticide spraying? Do you live near spraying or have you experienced adverse health effects previously that you attribute to unregulated and undisclosed pesticide spraying? Do you think it has damaged your property or native environment? If so we’d love to hear your story.

Except, how could you attribute your health effects to something you weren't even sure had happened, since it was “undisclosed?”

Ultimately, the court will decide whether the groups meet the four-part test for intervention by right:

The application must be timely; the application must have a significant protectable interest; the application must be situated that disposition of the action may, as a practical matter, impair or impede the application's ability to protect that interest; and the applicant's interest must be inadequately represented by the existing parties in the lawsuit.

The motion contends the mayor already made it clear he won't be representing those interests  when he vetoed the bill and declared it "legally flawed."

The motion also claims the intervenors “will offer unique elements to the present litigation not shared with—and in fact neglected by— the existing parties.” But since the county hasn't responded to the complaint yet, we don't know what elements it will include in the litigation.

What we do know is despite all the angst, money and energy devoted to this issue, Kauai residents are no closer to knowing whether the chem companies are actually poisoning us, much less getting any relief if they are.

But it's working out just fine for the self-interested "public interest" groups that are playing a bigger, different game.

Musings: Tim vs Shay = Over

A federal judge has ended a politically-fueled legal battle between Kauai Councilman Tim Bynum and former county prosecutor Shaylene Iseri-Carvalho.

In a withering order that rejected all of Shay's attempts to keep the case alive, U.S. District Judge J. Michael Seabright wrote:

[P]roceeding in this action, where Plaintiff [Bynum] has been compensated and seeks dismissal with prejudice, would serve no purpose other than to feed the fire of Plaintiff’s and Carvalho’s public feud. Needless to say, such purpose does not justify the expenditure of the parties’ or the court’s resources. 

The court will not be drawn into this continuing political feud.

In his September 2012 lawsuit, Tim claimed that Shay and planning inspector Sheila Miyake violated his civil rights by pursuing him on a zoning violation to squelch his free speech on the Council and harm his re-election bid.  

He walked away from the bruising battle with money and some court-sanctioned vindication, if not victory.

As I previously reported, Tim reached a settlement with the county, Sheila and Shay in her professional capacity. But Shay resisted his move to dismiss the case against her personally, saying she wanted a trial to dispel the "cloud of suspicion and doubt" that marred her image.

Judge Seabright, however, found that Shay had “utterly failed” to establish legal grounds for her request. He went on to write:

Proceeding with this action would provide Carvalho no assurances that she would prevail in this action, much less regain standing in the public eye.

Shay also wanted the court to declare the case frivolous, so she could recoup legal fees. But the judge again rejected her request, citing five examples of evidence presented to bolster Tim's case (emphasis added):

Plaintiff claimed that Carvalho violated his civil rights by, among other things, improperly investigating him for zoning violations, bringing a criminal action against him that was not supported by probable cause, and seeking his recusal from Council matters involving her office by publicizing Plaintiff’s alleged bias.

Whether or not this evidence establishes Plaintiff’s claims (an issue the court need not decide), it shows that Plaintiff had at least some factual basis for his claims, and that they do not appear to be frivolous, unreasonable, or groundless.

The court therefore finds that Carvalho would not be entitled to her attorneys’ fees even if she prevailed at trial.

It's unclear how much Shay's personal attorney, Richard Wilson, has racked up in fees, though he previously told the court it was “substantial.”

The case reportedly cost the county $500,000 in legal fees, with its insurance company paying Tim's settlement. Tim claimed he suffered financial damages because the zoning prosecution scuttled the pending sale of his house.

Sheila, meanwhile, continues to earn a comfortable salary and build her retirement fund in the county planning job that was handed to her by former Mayor Maryanne Kusaka. Shay is rumored to be considering a Council run.

And Kauai taxpayers will once again pick up the tab for political shenanigans, blood feuds and outright dirty tricks.  

Musings: Different Standards

Why is agriculture the only economic enterprise under scrutiny on Kauai?

In a letter to the editor today, Jose Bulatao writes:

A summit meeting bringing all interested parties to the table to discuss the following must be scheduled:

1.) What basic requirements must be met by all those engaged in agricultural activities on our island(s) that will meet “malama aina” practices and principles?

Why only agriculture?

What about construction, with its tons of treated lumber, its endless sheets of plastic, its toxic solvents, paints and glues, its rainforest woods, its tremendous impact on the landfill, its materials that are almost 100 percent imported?

What about tourism, with its irreversible damage to the environment and indigenous culture, its carbon-producing airline flights, its gasoline-guzzling rental cars, its electricity-sucking resorts, its 25,000 visitors per day who require vast quantities of imported food, booze and other supplies, use our finite water, and leave behind their pee, poo and mountains of trash? 

What about the military, with its top-secret operations, its beach closures, its toxic missile launches, its fossil-fuel-intensive training exercises, its extensive occupation of so-called ceded lands?

What about high-end real estate, with its gentrification of agricultural lands, its catering to the second- and third-home crowd that engages in uber-consumerism, its constant luring of new “residents” who take up space, use up resources and move on with their profits?

What about pest control, with its restricted use chemicals that are released into the atmosphere each time a house is tented for termite, its routine spraying of high-end homes, hotels and businesses?

Why no call for a meeting to impose basic requirements that all these economic enterprises must meet to achieve “malama aina” practices and principles? Why is only agriculture under the microscope, under the gun?

Similarly, agriculture is the only economic enterprise on this island that folks say must be sustainable — which is defined all too often by people like “Sustainable Kauai” founder Megan Pittsley-Fox, an East Coast transplant whose husband is a cook at Merriman's, a high-end restaurant that depends on unsustainable tourism and the unsustainable super rich buying at A&B's unsustainable Kukuiula development.

But wait, the sustainability requirements aren't applied to all agriculture. The organic guys who import chicken manure, soil amendments and inputs, plastic irrigation, plastic pots, plastic sheeting, plastic hydroponic supplies and a stready stream of indigent “woofers” to live in the Moloaa mud — they get a free pass, even though their operations are no more sustainable on this remote island than anything else.

Now the focus is on the proposed pasture-raised dairy at Mahaulepu. The Koloa Community Association and Malama Mahaulepu, having declared it “industrial agriculture,” are hosting an informational meeting Thursday night with the folks from Hawaii Dairy Farms. That entity is an offshoot of Ulupono Initiative, which gets its money from Pierre Omidyar and has funded pro-sustainability groups like Malama Kauai.

Personally, I don't really care if we have a dairy on this island. I don't drink milk, and it seems like a lot of cows for a small area. It especially bothered me to learn they won't have any shade in that hot southside sun, because cows wisely tend to gather under trees. But then their manure piles up there, rather than being spread evenly across the pastures. And with climate change bringing us more Kona storms and flooding, it's certainly possible and plausible that run off could occur.

So no, I don't have a problem with people asking questions, voicing concerns, and yes, I believe we should live on the land as lightly as we can and embrace the concepts of malama aina.

But I do object to agriculture being held to a higher and different standard than other enterprises on this island. Especially when it's being done by people who have no idea what farming is all about, and hypocrites who are not living sustainably or otherwise practicing what they preach.

Musings: Truth vs "Truth"

A resolution of Councilman Tim Bynum's civil rights lawsuit against the county has hit a snag, with defeated Prosecutor Shaylene Iseri refusing to settle.

In September 2012, Tim sued Shay and planning inspector Sheila Miyake in both their professional and personal capacities, as well as the county, claiming false and malicious prosecution of zoning violations.

After burning through $500,000 in legal fees, the county reached its insurance deductible and the carrier took over, which means it assumed full control of the case in all its aspects. Though several motions are pending, including a request for summary judgment to dismiss the case, the insurance carrier moved to immediately settle. Everyone agreed — except Shay in her personal capacity.

Instead, her personal attorney, Rich Wilson, told a federal judge that Shay's career as a prosecutor was ruined by Bynum's “frivolous” lawsuit, and she must be allowed to go to court to vindicate her reputation. The judge has set a meeting for next week.

Curiously, Wilson is simultaneously arguing, on behalf of another client, that the mayor must resign and never run for another office because he violated state law by “pleading the fifth” during an auditor's inquiry into use of a county fuel card. However, Shay also pled the fifth while in office, refusing to answer the County Council's questions about procurement irregularities related to her POHAKU program.

So if you follow Wilson's line of reasoning, it appears Shay's career as a prosecutor and politician would be over in any case.

But neither that, nor the fact that the County Council no longer has any say in the case, prevented Shay and Wilson from appearing at yesterday's televised Council meeting to bash County Attorney Al Castillo.

Council Chair Jay Furfaro displayed his usual gutlessness in dealing with Shay, allowing her to go well beyond her allotted six minutes of testimony and present, unchallenged, a power point titled “county attorney's insurance scam.” Each slide bore a heading that asserted Al had “violated his fiduciary duties to COK and our people by acting against the county's best interests.”

Shay and Wilson claimed Al had “overspent” on legal fees to get the case to the insurance company and asked the Council to conduct an investigation. Wilson said the county invited more litigation by settling actions it “could win.” It's like “painting a big bullseye on the back of the county,” he said. Wilson, however, has apparently managed to hit that “big bullseye” only once, though he's sued the county numerous times.

Both Shay and Wilson contended that Al had compromised the process by being in cahoots with Tim's attorneys. They referenced a Sept. 19, 2012 press release in which Tim's attorney, Margery Bronster, claimed:

I have spoken with Kauai County Attorney, Al Castillo, and he seems to understand the gravity of the situation.

I remember getting that press release, which included Al's phone number and a sentence about how he was open to media calls, which is highly unusual. But when I immediately contacted Al, he was obviously stunned by Margery's assertion. As I previously reported, Al said he had not read the complaint and had no comment.

Wilson ended his pitch to the TV cameras Council by saying, “Isn't the truth worth any expense?”

It's important to note that “the truth” they're seeking is not a determination of whether Shay engaged in political retribution, but rather if she had immunity, as prosecutor, from being sued. 

Since Wilson is so keen to have the county spend more of the taxpayers' money to get at “the truth” about his client, perhaps we should start by ferreting out the facts as they pertain to POHAKU, her prosecutorial procurement practices and her alleged improper use of both a county vehicle and county gas.

While we're on the topic of truly sucky politics, it's so disappointing to learn that Gov. Abercrombie apparently plans to give PUC Chair Mina Morita the heave-ho. Mina, who has repeatedly demonstrated her integrity and concern for the public as both a legislator and a policy-maker, has properly scrutinized biofuel projects that advance the governor's “renewable energy” initiative but don't make economic sense.

The only good thing that could come from her leaving the PUC would be her possible return to Kauai politics, where she would be welcomed, and a shoo-in for either Council or the state House.

Abercrombie has repeatedly shown himself to be a foe of the environmental community, though he makes fake "concessions," like nominating Circuit Judge Mike Wilson — former director of the Board of Land and Natural Resources — to the Hawaii Supreme Court. 

With that nomination, the guv is essentially saying to conservationists, “If you can get your complaints to the high court, you'll probably prevail. But since that's expensive, time-consuming and very hard to do, I've got years to screw over the environment in the meantime.”

Musings: Washed Up

At the beach, in addition to a big red ball rising from a silver sea, I spotted what appears to be tsunami debris: the door to a mini-fridge and a piece of wood with finished ends and distinctive notching.

It seems quite a bit of debris from the Fukushima earthquake and tsunami is now washing up locally, as documented in part on this website.

I was talking to a reporter friend on the mainland who covers nuclear issues, and he said radiation from the Fukushima nuke plant meltdown is not being diluted in the Pacific, as is commonly claimed. Radiation follows clearly defined currents, with boundaries defined by salinity and temperature, he said. One of those currents goes north, and the other east to the Hawaiian Islands, then on to the West Coast of the U.S.

Meanwhile, he said, the radiation initially released into the atmosphere has already traveled around the earth 28.8 times in the 1,078 days since disaster struck. And more radiation continues to be released into the atmosphere and ocean as super hot material from the damaged reactors hits the permanent water table and causes steam explosions, he said.

Well, after hearing rumors for decades that the FBI was on island for this or that, it appears they finally came. And despite all the sketchy stuff going down here, what they honed in on was gambling, searching Brad Chiba's house and allegedly removing a computer and some paper documents.

Though Brad has not been charged or arrested, he resigned from the police commission, but not his job as manager of the Intake Service Center at KCCC. Hmmm, I wonder what he knows about the allegations against jail warden Neal Wagatsuma.

Speaking of allegations, I learned that a citizen did indeed file a police report regarding Mayor Bernard Carvalho Jr. pleading the fifth during an auditor's probe into his use of the county's fuel card. As I reported earlier, the state Attorney General's office had curiously suggested such an approach, even though the statute in question does not have a criminal conduct nexus.

Anyway, I checked in with Prosecutor Justin Kollar, who had this comment:

"After discussing the matter with the Police Chief, we agree that this is a civil matter and not a law enforcement issue. We are focused on addressing the crime issues facing our community, including violent crime, drugs, thefts, and domestic violence."

Now, it seems, the ball is literally in the court of Michael Sheehan and his attorney, Richard Wilson, who have advanced the election year allegations. How much is Mike willing to spend to mess with the mayor?

Meanwhile, cops are investigating the case of a Maui guy who went off on some folks at a beach park, doing a rant about white people and how they messed up Hawaii. They recorded it on their phone and posted it on youtube. I watched it and thought it was very sad, feeling especially sorry for the young woman who eventually led the snap case away. Cause you know it ain't the first time he's gone off on somebody.

And then I thought, this is the kind of video Huffington Post Hawaii should post on its website instead of its usual glowing gibberish urging mainlanders to move to the Islands ASAP and no worries, you'll fit right in and it's all aloha toward haoles. It's not, and tensions will only mount as the locals get squeezed even more.

Musings: Revolution of Perception

Walked out the door last night and gasped. Stars! The flat gray cloud cover had finally moved on, revealing a deep black bowl chock-a-block full of twinkle and glitter. It did this soul good to see the source, and brought to mind words in an email, with a link, I'd just received from a friend:

Remember that the calcium in your bones and the iron in your blood were originally created at the core of a red giant star that died billions of years ago.

Yeah, in case you hadn't noticed, or forgot, there's this connectivity thing going on....

The rainy weather allowed me to catch up on my reading, including Elizabeth Kolbert's excellent two-part piece on extinction, published in The New Yorker. She wrote of how Georges Cuvier caused a sensation in 1796 when his work with ancient bones offered proof of extinction:

[The] bones hinted at events both strange and terrible. They “seem to me,” Cuvier said, “to prove the existence of a world previous to ours, destroyed by some kind of catastrophe.”

Darwin's theory of extinction — that it was a routine side effect of evolution— contradicted Cuvier's, which held that species died out as a result of catastrophes, or, as he also put it, “revolutions on the surface of the earth.” Darwin's view prevailed, Cuvier's was discredited, and for more than a century Cuvier was ignored. More recent discoveries, however, have tended to support the theories of Cuvier's that were most thoroughly vilified. Very occasionally, it turns out, the earth has indeed been wracked by catastrophe and, much as Cuvier imagined, “living organisms without number” have been their victims. This vindication of Cuvier would be of interest mainly to paleontologists and intellectual historians were it not for the fact that many scientists believe we are in the midst of such an event right now.

It seems that it began about 13,000 years ago, when modern humans started spreading out and killing off big animals, in what is now called the megafauna extinction. And as our numbers have grown, we've continued to expand our reach to all corners of the earth, sowing the seeds for cataclysmic change in our wake. As Kolbert writes:

Humans are now so rapidly transforming the planet — changing the atmosphere, altering the chemistry of the oceans, reshuffling the biosphere — that many scientists argue that we've entered a whole new geological epoch: the Anthropocene. In this sense, the crisis that Cuvier discerned just beyond the edge of recorded history was us.

Where it will lead us, we do not know. Perhaps the rapid erasure of species will allow aggressive, highly adaptable animals like rats to change and evolve to fill the newly created “ecospace,” the “ecological niches that....[they] helped to empty.” Quite possibly, it will bring about the end of humans and our reign on earth.

It's been more than 200 years since Cuvier stunned the world with the concept of extinction. Now it's a part of our everyday experience. Our children play with plastic dinosaurs, we maintain lists of endangered species, we have people among us on this island who heard the last, haunting call of the 'o'o bird in the Alakai swamp.

It is real to us, our ability to extinguish life, but also strangely unreal. We know we are having a hand in it and we fear the outcome, largely because of what it might mean for the human race. Though some of us also have moral qualms about our systematic destruction of the vast, beautiful complex web of life that has been spun since the last "revolution upon the surface of the planet."

It seems we must "do something." So we talk of changing our fuel sources, our carbon emissions, the genetic structure of plants and animals, as if we can just continue on the same general trajectory using slightly different technology. We talk of sustainability, as if such a state is possible with our numbers in the multi-billions, our appetites voracious and never-whetted.

But we don't talk much about changing our ourselves, of radically shifting our perception so that we no longer see ourselves as the oh-so-clever, big-brained masters of the universe, but merely the stuff of a giant red star that burned out billions of years ago.

We are creating the current “revolution upon the surface of the planet.” The course we've set will only be altered if we simultaneously stage a revolution within ourselves. How different might we be, the future be, if we aced a dramatic perceptual shift? 

To borrow the words of Gil Scott-Heron:

The revolution will put you in the driver's seat. The revolution will not be televised, not be televised, not be televised. The revolution will not be a re-run, brothers. The revolution will be live.

Musings: Political Grenades

After a couple of weeks of steady rain, it's so delightful to see shadows and sunlight on the face of Waialeale, towering cumulous clouds tinged pink, droplets sparkling like diamonds on ironwood trees, a white moon, well-waned. Of course, now I can also see the sheen of mildew on the screens…..

It was a little surprising to see the state Attorney General's office hand KPD a political grenade to use against the police chief's arch enemy, Mayor Bernard Carvalho Jr. But that's what it did when confronted with the dispute over whether the mayor should've resigned for pleading the fifth in the county auditor's fuel card probe. As The Garden Island reported today:

“That particular investigation is something our department is deferring to the police department,” said Anne Lopez, special assistant to the AG’s office. “The police department can proceed with what they think is best.”

Gosh, are we gonna see Chief Darryl Perry arrest the mayor, bring him into the station for questioning, release a booking mug shot to the newspaper?  Send the SWAT team to take him down on the highway, ala Dayne Aipoalani? Maybe even Taser the big guy and claim he resisted arrest?

At issue is a comma in a statute — and years of political grudges involving Hanalei boatyard owner Mike Sheehan, county auditor Ernie Pasion and former prosecutor Shaylene Iseri. Even without the recent rains, there's always plenty of mud to sling during campaign season on Kauai.

Of course, this is all likely to go nowhere. Because even if KPD does pursue a complaint, it will land on Prosecutor Justin Kollar's desk. And he has neither an ax to grind against the mayor nor his predecessor's predilection for vendettas.

Speaking of which, it appears Councilman Tim Bynum's lawsuit against Shay and the county is close to resolution, with a special executive session set for Thursday to brief the Council on a settlement. As was mentioned during last week's Council meeting, the case has been turned over to the county's insurance company. And now, surprise-surprise, it's fast-tracking toward a settlement. Maybe the county should lower its deductible so cases get settled before we burn through half a million bucks in legal fees.

Meanwhile, BASF has joined the other chem companies in their lawsuit against the county over Ordinance 960, the county's pesticide/GMO regulatory law, prompting Councilman Gary Hooser to regurgitate one of his stock responses:

“BASF is the largest chemical company in the world and suing the smallest county in Hawaii for the right to spray poison next to schools fits right into their historical corporate culture.”

Except BASF is the only company targeted by the law that actually has no fields near schools, homes or hospitals. But why let the facts get in the way of a good sound bite?

As for bad sound bites, I happened to tune into KKCR while driving to the North Shore last evening, thinking I'd hear music. Instead, I got Gordon LaBedz and Ya Kaduce going on about how it was ridiculous that an experienced firm like Earthjustice wasn't allowed to represent the county pro bono against the chem corps.

Except Earthjustice didn't even submit a proposal, and as I wrote the other day, never ever intended to actually represent the county, only a community group(s). But why let the facts get in the way of a typically ill-informed KKCR dee-jay rant?

They next turned their attention to local elections. Ya identified Jimmy Trujillo, Jonathan Jay and Adam Asquith as KKCR dee-jay's and then endorsed them for the KIUC board. Though the station made the three candidates relinquish their shows during the campaign, it's allowing their buddies who remained on air to stump for them.

How can that be fair to the other candidates?

Jimmy, meanwhile, offered evidence of his own lackluster interest in the election by posting on Facebook, if you're like me, your KIUC ballot is still unopened.

But maybe he'll get around to opening it in the next couple of weeks and blackening the oval next to his name. His enthusiasm, yawn, is contagious.

Musings: Public Trust vs Privateers

Today's Star-Advertiser published my guest commentary on shorelines, which they titled “Land board needs to toe line in sand,” though I had posed it not as a declaration, but a question. 

Because while the Hawaii Supreme Court did issue such an order, it's unclear whether BLNR will finally “get it” when it comes to setting the shoreline. The state Water Commission has had a similar big disconnect between state law and its decisions, as I previously reported for Honolulu Weekly. In both areas, the private sector has tended to benefit at public expense. 

In this instance, attorney Harold Bronstein worked tirelessly and pro bono, winning two landmark shoreline decisions at the Hawaii Supreme Court. Caren Diamond, Beau Blair, Barbara Robeson and others persevered and did the solid, thoughtful homework to document their case. 

Overall, it's a great role model for successful hyper-local activism — focusing on an exquisite stretch of Wainiha coastline — that achieves a statewide reach.

Here's the commentary:

The ocean itself draws the proverbial line in the sand, leaving a debris line of sodden sticks, coral chunks, shells and bits of plastic each time it washes up onto the shore.

In Hawaii, that line is especially important, marking the boundary between public and private and signifying the point where building setbacks officially begin.

It's a line that varies naturally from year-to-year, depending on the size of the swells, the fierceness of the storms. And it's a line that has been manipulated by coastal landowners who want to build closer to the ocean than they'd normally be allowed. To hinder the wave wash, or obscure its evidence altogether, they've planted thickets of dense vegetation on some of the most beautiful beaches in Hawaii.

For more than a decade, a handful of Kauai residents have pushed back, winning two key lawsuits that lay the legal framework for halting the ongoing privatization of our public beach. The Hawaii Supreme Court issued the most recent ruling just last month, and it builds on shoreline decisions dating back to 1968.

In its earliest decisions —Ashford and Sotomura — the high court found that state policy intends to give the public as much use and ownership of the shoreline as is reasonably possible. In Diamond I — the decision rendered in the first Kauai case — the Justices specifically defined the public beach as extending to the upper reaches of the highest seasonal wash of the waves. That 2009 ruling stopped the state from setting the shoreline at the lowest vegetation line, a practice that typically shortchanged the public.

In response, the Board of Land and Natural Resources (BLNR) adopted a “multi-variable approach,” in which the state surveyor considered various factors, but primarily relied upon a “single-year snapshot” — what he saw the day of the site visit. Unfortunately, that “snapshot” was often blurred by vegetation that had been intentionally cultivated. Kauai residents, alarmed that the state was setting shorelines too far makai, presented photographs showing waves had washed 15 to 30 feet higher before the landscaping was installed.

But the state refused to consider that evidence, and Kauai residents filed their second suit. As the case moved through the courts — a four-year process — the BLNR continued to approve shorelines that favored landowners at the expense of the public beach. The impacts of this policy have been felt throughout the state, and most especially on North Shore Kauai, where many houses have been built dangerously close to the water and Joe Brescia's house was constructed atop iwi kupuna.

In its Jan. 27, 2014, Diamond II decision, the high court reiterated the findings in Ashford, Sotomura and Diamond I. The Justices found that “artificially induced and enhanced vegetation is incorrectly being used to currently locate the shoreline,” and directed the BLNR to stop relying on even salt tolerant plants to set shorelines. They also ruled the state must consider historical evidence, including documentation compiled by non-expert kamaaina witnesses, like the Kauai folks who brought suit.

Most importantly, the Justices reminded BLNR that it does not have the authority to come up with its own definition of shoreline. That definition, the Justices wrote, has already been articulated by public policy and law, and it favors the citizens who have used and relied upon Hawaii beaches for centuries.

When it comes to the shoreline, the ocean and the Hawaii Supreme Court have clearly drawn a line in the sand. Will the BLNR continue to cross it, or finally start to toe it?

Musings: Rewind

The rain returns to replenish the earth, the full moon returns to illuminate our shadows, Valentine's Day returns to open our hearts and this post returns to previous topics to bring them up-to-date.

First, Earthjustice attorney Paul Achitoff says his organization and Center for Food Safety still fully intend to provide pro bono legal services to fight the chem corps lawsuit. But rather than represent the County, which is being sued over Bill 2491/Ordinance 960, they plan to seek intervenor status on behalf on an unnamed community group(s).

Paul says they will be seeking to intervene and he thinks there's “more than a 50-50 chance” the court will let them in. If it does, he says, “our role will be identical” to the one played by the attorneys representing the county. Except they'll have different clients, and he wouldn't elaborate on how the interests of those clients might differ.

Speaking of Center for Food Safety, they have a new video out that features Councilman Gary Hooser along with Vandana Shiva, attorney Andrew Kimbrell and Hawaii Seed President Jeri Di Pietro making her usual outrageous claims:

“There's an epidemic of cancer, leukemias, obesity, asthma and there's more of these diseases in people living near these chemical crops.”

I guess Jeri missed the report from the Hawaii Tumor Registry that found “there is no evidence of higher incidence of cancer on the island of Kaua‘i overall or for specific geographic regions of the island, as compared to the state of Hawaii,” except on the north shore, where there was more skin cancer among haoles.

Which is why I couldn't agree more when I read these words in Dylan Hooser's letter to the editor today:

We should be debating the facts and the issues.

Yes. It's only too bad we didn't start there, instead of passing a bill driven by ego, innuendo, bullying, speculation, hyperbole, hysteria and the fanned flames of fear. And as the CFS video makes clear, those tactics are still being used by at least one of the entities that wants to defend some of our citizens, but not our whole county, in court.

Defeated Prosecutor and former Councilwoman Shaylene Iseri appears poised to re-enter the political arena. She attended Wednesday's Council meeting, where she made a multi-minute rant against the county attorney's request for $500,000 to refill the Special Counsel account. It was followed by this pronouncement: 

I will be here hopefully almost every week to bring forth these deficiencies.

While the County Attorney's office has plenty to ding, it rings a bit hollow to hear a woman who has personally cost the county hundreds of thousands of dollars in legal fees and settlements rail against escalating legal costs.

And finally, following several complaints, the county issued a cease and desist order on the Wainiha house that was being systematically dismantled under a $45,200 building permit for an “unsubstantial improvement," as detailed in a Jan. 31 post.

After the shut down, I got a call first from the contractor, Jeff O'Hara, and then from the architect, Adam Brown, both of whom wanted to say the owners — a young family from New Jersey — are nice people who were not trying to skirt the flood law, had no intention of turning the house into an illegal vacation and truly did want to preserve the adorable modest surf shack they'd purchased.

Adam said he had done everything “by the book," it took nearly a year to get the building permit for the remodel approved and the contractor was never authorized to take down as much of the structure as he did. Jeff admitted he got carried away when he saw the termite damage, but thought he had verbal approval from the building division to remove walls.

Adam has now gotten a permit to demolish the home, and the owners are deciding what's next. In the meantime, Adam wanted to share his perspective with readers, especially those who currently own the classic beach cottages and plantation-style houses sitting at grade in the flood zone:

Many people see the non substantial improvement rules as a way to increase home size, county cheating, etc.  The reality is the non substantial improvement laws are an attempt at systematic removal of Pre Firm homes in the flood zones.  Don't forget that.  FEMA does not want these homes in the flood zone.  The new Biggert Waters Reform Act of 2012 rules coming into effect will substantially raise insurance rates for those homes that are Pre Firm Flood Zone homes.  No longer will government subsidize the insurance.   

A home in this category can only have a maximum of 50% (40% if you don't want to itemize contractor bids) of its value used to repair it every ten years.  The lowered valuations by the county makes the reality of fixing a damaged home difficult.  If you notice the costs that must be included in the calculation are almost everything structural, as well as superficial.  As we discussed, the county uses a higher rate to assess value to repairs past the Hanalei Bridge.  Elevated rates, coupled with lowered assessed tax values makes it more difficult to restore these homes.  I don't just mean the off islanders, this applies to everyone who lives here in an on grade home in a flood zone and wants a permit to fix it.

It is very important that people that own these homes, and want them to stay here and the life it represents, maintain the homes carefully and use these rules to their benefit. They should be making permitted repairs  to correct their homes every ten years, if their home needs correction.  Some are using the rules to maintain size, density and local character but the government is using the rules to remove the homes entirely. Once they are gone, they are never coming back and that time will be sooner than anyone realizes. 

Musings: Pay the Piper

The promise of free legal services to defend Kauai County's controversial pesticide/GMO regulatory law has been relegated to the realm of feel-good fantasy, alongside Santa Claus, the Easter Bunny and the Tooth Fairy.

Like most myths, it was perpetuated for a purpose: lulling a poorly-informed populace into believing Councilman Gary Hooser's ego-driven foray into poor policy-making would have no cost and a happy ending.

Meanwhile, in the real world, the county attorney is asking the County Council today to approve $75,000 to hire special counsel to launch a defense against the chem companies' lawsuit. The county is required to respond to the 70-page complaint by Friday.

Another bill asks the Council to move $500,000 into the special counsel account “for several other ongoing cases, and in anticipation of future needs,” according to county spokeswoman Beth Tokioka.

Returning to the land of make-believe, attorneys like Teri Tico, Peter Schey,  Earthjustice's Paul Achitoff and Center for Food Safety's Andrew Kimbrell lobbied hard for Bill 2491. It's a great law, they said, and we'll be right there to defend it. Here are the letters from Schey, Kimbrell and Achitoff outlining their original unconditional offers. Schey even specifies "without charge to any party."

The County Administration played along, duly giving pro bono attorneys a chance to step up to the plate, even as Maui attorney Lance Collins, supposedly driven by his deep concern for lawyerly ethics and the sanctity of our County Charter, filed a protest against the freebie procurement process — the day before pro bono proposals were due.

Ultimately, only Tico and Schey, director of the California based-Center for Human Rights and Constitutional Law, submitted a joint pro bono proposal, with Tico slamming Mayor Bernard Carvalho Jr. in the process.

Yesterday, the Administration slammed her right back. In rejecting the Tico-Schey offer, the county found the pro-boners were non-responsive to the bid requirements and “did not have the requisite qualifications and experience for the job.”

“That's nonsense,” sputtered Tico, who apparently thinks her provincial personal injury practice on par with the chem companies' heavy hitters — attorneys like former state Attorney General Margery Bronster, land use shark Paul Alston, Nancy Bryson, an expert in biotech, agricultural and federal regulatory law, and John A. Bryson, who litigated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) on behalf of the Justice Department.

Actually, what's nonsense is Tico's claim to The Garden Island that the “county wanted her to disclose every law firm she has every worked with, as well as every case she has been involved in” over 38 years of practice. 

In truth, the required disclosure was quite a bit narrower (emphasis in the original):

A list of projects of similar scope for public agencies or private industry, including corrective actions and other responses to notices of deficiencies undertaken and completed within the last five (5) years (including dates); owners of the projects and the scope of work performed; the names of up to five (5) clients who may be contacted, including at least two (2) for whom services were rendered during the preceding year.

But Tico isn't the only truth-challenged attorney in this fairy tale. In the same article, Collins told TGI:

The county’s secret request for lifting the stay on procurement last week while not informing my office seems to suggest bad faith on the county attorney’s part.

In fact, it was no secret, since the special counsel procurement request was placed on the very public County Council agenda, which was published last week. What's more, notice was emailed to Collins yesterday morning, at least six hours before TGI's reporter would have been calling for comments.

Meanwhile, Collins is pressing on with his protest, though the pro bono procurement process is effectively moot. A pre-conference hearing on his appeal is set for Friday. He now plans to file a motion to freeze the procurement process pending the resolution of his protest, which could extend beyond that day.

No worries, Collins cavalierly claims. The federal judge will let the chem corps complaint slide until my manini, and now irrelevant, issue is resolved.

The County Attorney's office sees it differently. In a Feb. 6 memo to the finance director seeking to move forward to review the pro bono offer and, if it's not satisfactory, secure special counsel, first deputy County Attorney Jennifer Winn wrote:

The risk of harm to the County should special counsel not be in place by the scheduled answer date [Friday] could be substantial and irreparable. 

So whose interests would be served by the delay that Collins is seeking?

Though most of the coverage has focused on Collins' claim that it's unethical to require pro bono attorneys to pay court fees and other costs, he's also challenging the county's long-standing interpretation of the charter.

Collins claims our charter “leaves hiring of special counsel and the scope and terms solely to the County Council,” not the administration. In other words, he thinks the same Council that overturned the mayor's veto of Bill 2491 should now be deciding who defends it, and how much they're paid.

Yet we're supposed to make-believe he's acting solely on his own, as an attorney interested only in process, not politics, personalities or publicity.

Don't get me wrong. I love fairy tales, myths and make-believe. 

But Kauai residents need to shake off the spell that's been cast over them, abandon the fantasy that Hooser is a dragon slayer and face reality: we're getting sued by some of the most powerful corporations on earth over a bill that is more frog than prince. And there ain't no white knight in this or any other kingdom that's gonna ride in and save us. So open up the treasure chest and prepare to pay the piper. Because "poof" — the pro-boners have vanished in thin air.