A landmark case involving a Kauai man's use of traditional gathering rights has been scheduled for oral arguments before the Intermediate Court of Appeals.
As I initially reported in the Honolulu Weekly, Kauai Circuit Court Judge Kathleen Watanabe dismissed charges against Kui Palama back in 2012. He'd been arrested on Jan. 17, 2011, and charged with two misdemeanor counts of trespassing and hunting on private property after a security guard found him with pig meat on Hanapepe lands held by Gay & Robinson.
But defense attorney Tim Tobin successfully proved that Palama is a descendant of the indigenous peoples who occupied the Islands prior to 1778; the G&R land where he was hunting is mostly undeveloped, and pig hunting is a traditional and customary practice.
All three criteria must be fulfilled in order to meet the standard for exercising traditional rights as protected by the state Constitution and established in the Hawaii Supreme Court’s landmark decision, Nansay Hawaii vs Public Access Shoreline Hawaii (PASH), written by Justice Robert Klein in 1995. In his motion to dismiss, Tobin argued that by charging Palama with trespassing, the state was effectively imposing a blanket prohibition on his right to engage in customary practices.
The Kauai Prosecutor's office under Shaylene Iseri appealed the ruling, and it's now before the ICA. When the charges were dismissed, I wrote a post for Kauai Eclectic in which Kui talked about the process of waging a PASH defense:
He said Tim, his court-appointed attorney, was initially reluctant, telling him that he'd seen a lot of guys claim a sovereignty defense, but still go down.
“I told him this has nothing to do with sovereignty, well, it does have to do with sovereignty, but this is in the state Constitution,” Kui said. “If they already passed it, why are they still arresting me?”
And why are they appealing Watanabe's ruling?
In other legal proceedings, isn't it odd that Oregon attorney Charlie Tebbutt has come to fight the proposed Mahaulepu dairy when Kawailoa (the Hyatt) already has an excellent lawyer in Lisa Bail? Of course, Tebbutt, who doesn't have a Hawaii law license, isn't actually working with Lisa, but representing Friends of Mahaulepu. In other words, he's riding on Lisa's coattails in hopes of picking up legal fees if she wins.
He's a “green ambulance chaser,” pursuing an increasingly common practice known as the nonprofit legal fee hustle, in which you can rack up millions in legal fees if you bill high enough and drag it out long enough.
It's how Earthjustice and Center for Food Safety make much of their dough — along with begging for dollars. As I've pointed out previously, those two mainland-based organizations helped write the flawed GMO/pesticide bills in Hawaii and are now pursuing the appeals, which they're using as a fundraising tool.
Why, just last Friday CFS sent out a fundraising email, using its usual deceptive language:
Right now, the CFS legal team is hard at work defending several county ordinances restricting genetically engineered (GE) crops in both Oregon and Hawaii; defending a county ordinance in Hawaii about pesticide spraying disclosure and buffer zones; and helping the state of Vermont defend its GE labeling law.
At CFS, we do all of our work, including our legal efforts, without charge, representing you, our members, and other nonprofits or local citizens. Instead, we count on donations from our members to support these critical efforts.
Of course, CFS and Earthjustice aren't actually fighting “food and chemical corporate giants” on the Big Island, but a coalition of small local farmers and ranchers who are opposing the GMO ban passed there.
They're aren't defending Kauai's pesticide/GMO disclosure law, either. David Minkin is. EJ and CFS are just sponging off him as he does the heavy lifting — like Tebbutt will be. And they'll be right there with their hands out if the real attorneys win the case. It's to their advantage to write bad bills and keep them going through the court system for years while the citizens and counties are stuck in legal limbo.
Yes, it appears the first of those dreaded flies have indeed arrived at the Mahaulepu dairy. But then, they've been cruising the seed fields for a couple years now and the anti-ag folks haven't seems to mind.
The CFS appeal ends with its director, Andrew Kimbrell, saying:
Together, we can succeed in defending justice, democracy, and our right to know.
Ah yes, justice, democracy and our right to know. As practiced by lobbyists and political advocates masquerading as nonprofits, hiding their income and expenses, and using money donated by the heirs of industrialists and oil barons while denouncing corporate influence in the process.
It's the kind of democracy practiced by people like Makoto Lane, vice chair of Kauai Young Democrats:
Poor little Makota. He not only has a problem with my free speech — and fails to recognize the hypocrisy inherent the comments he made to The Garden Island today: "In the age of information, any campaign to censor my access of information is bad. At the very core of the issue is people’s sense of freedom." — he utterly fails to recognize the influence that outside corporate interests — those funding CFS and others pushing the anti-GMO movement he embraces — have had on Hawaii politics.
And it's the kind of democracy practiced by CFS Hawaii Director Ashley Lukens, who similarly see can't the hypocrisy in her own sour grapes post about a hearing that didn't go her way:
Oh, yeah, I can feel the love, Ashley.
Returning to the topic of flies — gadflies, in this case — I couldn't help but laugh at Councilman Gary Hooser's claim to The Garden Island that his fireplace-banning bill is just on "a pause" before the Council takes "a re-look at the whole issue."
Uh, Gary, the bill is dead. The Council deferred it indefinitely. It ain't never coming back up.
So you can return to your real job: using Council services staff to write
HAPA's your anti-GMO testimony on Council letterhead, most recently in support of GMO labeling, which is yet another issue the Council hasn't taken a stand on, other than to trash-can an old resolution that supported it.
Note to Council: when are you folks gonna rein him in? Unless, of course, you're all totally OK with him speaking on your behalf and misusing county resources for his own political gain.