Fallen Fruit Chronicles 1

After the Abuse Chronicles exposed the tangled, rotten roots of Kauai's “legal” vacation rentals, a complaint was repeatedly lodged in comments that went something like this: 

Why aren't you exposing the “real” culprits, the illegal TVRs that fly under the radar, the folks who didn't even bother to apply for one of the county's now discredited permits?

Weary, I urged a persistent commenter to begin his/her own documentation. The response was a snarl: “So you want everyone else to do the work that you should be doing yourself.”

Really. What was I thinking?

Though I understand the county has to prove an illegal use through a little sting operation, it's easy enough to red flag some renegades. All ya gotta do is surf airbnb.com. Heck, TVR inspector Bambi Emayo could even do it on his smart phone while he's checking out the waves.

Right off the bat I found this gem, which I'm pretty sure not even Imai Aiu would have approved with one of his undated, unsigned form letters that gave people a lifetime TVR, no questions asked.

Billed as a Japanese teahouse, it has no walls — and yikes, no bathroom, either. A *note* warns on the website:

Guest will not have any access to home or any other homes on property. THIS MEANS NO RESTROOM ON PROPERTY BESIDES USING THE YARD!!! Guest [sic] are encouraged to use ocean or YMCA camp restrooms located down street.

Fortunately, they won't have to hold it long, as they're assured “Guest will also have total beach access within 100 yars [sic] of hale” — which conveniently takes them right to the swath of sand privatized by the exclusive “Banana Beach House" TVR (Abuse Chronicles #12). 

Though the ad says the platform accommodates three — at $100/per — its description hints that many more could crash there, which is not far-fetched, considering the place caters to Kalalau Trail hikers:

Within the "teahouse" there is a Californian king size bed, two swinging hammocks, single sleeper couch and outdoor style table/chairs. Guest have access to "teahouse" area, lawn.

The ad promises that a 5 a.m. hot breakfast and trailhead drop off is included. Rides to the airport are offered for an additional fee. Hmmm. I wonder if they have a taxicab driver's certificate, issued by the county via lottery. But then again, why bother?

The sad demise of Wainiha-Haena as a residential community is reflected in this verbiage from the ad:

Our Neighborhood is made up of most vaction [sic] style rental homes and scattered within that is small Hawaiin [sic] style bungalow homes as the one we live in.

So who da guy? The ad identifies “James,” and includes this profile:

School: Cadillac High School, go fuck yourself university Work: Kayak Kauai About: Chill family full of Aloha spirit.

Yes, take heart, the aloha spirit does live on, as reflected in the "house rules," if not a willingness to share toilets:

Live Aloha. This means live true agape or basically love. We feel we are though we are giving up our space in order to have travelers of all types come, be blessed and move on towards their hiking adventure. Please be respectful of us and our family. This is our home and it is very apart of us and who we are as a family. We invite you and others to be apart of our kinship, have a sat, talk story and be blessed. Aloha.

Aw. You know it's true aloha when there's no extra charge for talk story. Still, that respect bit kinda rings hollow. 

It's gotta be a parody, I tell a friend. No way that funky setup can be for real, even on Kauai.

Surfing, surfing — wow, 394 listings. That's kinda plenty.

Hey, I know that beach. It featured prominently in the Abuse Chronicles. It used to be so fabulous — before the vacation rentals took it over.

Odd, it's being used to advertise a “beachfront studio in Haena.” Wait, that's Leila's place. You know, Leila, the woman who lives next door to Kaulana Haena — Abuse Chronicles #18 — and manages it, but is always late with the renewals. Hope she got it in on time this year, or #18 is gonna be tagged as “low-hanging fruit” under the county's radical new enforcement plan.

Gee, it looks like she's enclosed her own downstairs and turned it into a little rental studio, right there in the flood zone. Wonder where she came up with that idea? 

Well, I know for sure that place doesn't have a TVR permit.

But at least it has a bathroom. And I hear Leila works very hard to keep it nice and clean.

One guest review detailed the accommodations, which luckily for Leila do not include a rice cooker, or the county would really clamp down hard:

Leila is a very thoughtful host, she sent us detailed driving directions and prepared the room with lovely ocean theme decor, beach and bath towels, coffee maker/small fridge, and many other charming details.

A few other things I really like about the place -- 
- Privacy - there is plenty of privacy, the room is downstair (host's family living upstairs ), with it's own bathroom/outdoor shower. 
- Hammock - as shown in leila's pictures. I like chilling there

Oh, yes, the hammock. The one that's permanently strung on the public beach. Does that mean we can lie in it, too? 

Based on the reviews, the other guests seem happy, if deluded:

Leila's guest house is just lovely and she is an excellent host. The property is truly magnificent, private oceanfront, magical part of the island just down from tunnels beach. If u want to stay away from tourists and pricey resorts, this is a welcome oceanfront hideaway.

Except, of course, the tourists actually are right there, in the other vacation rentals — “legal” and otherwise — that line that entire stretch of coastline, which was never supposed to be a resort. The TVRs have literally consumed the public beach with their vegetation and lawn furniture:

We put our bags down, grabbed the bottle of wine we bought on the way to the place and enjoyed the moonlit beach on the hammock just steps from the waves.

Gushed Leila in reply:

I love where I live and I am so stoked to be able to share it with fabulous people like you!!!! Please come back soon!!!!!

But if you can't make it right away, no worries. It took the county five years and the threat of a special Council investigation to organize a TVR enforcement action that plucks the “low-hanging fruit” of late renewals.

It could be decades before it stumbles upon the fruit that has already fallen in its long-neglected and overgrown orchard.

Musings: Odd, Even Fishy

Does anyone else find the eleventh-hour resurrection of the Coco Palms odd, even fishy? The giddy promise of a restored Elvis Presley cottage, a Larry Rivera headline act, doubtful? 

I mean, after 21 years and four failed proposals, two Realtors decided they could make a go of it after all, simply by rebuilding what was there?

Then there was the way one of those Realtors, Chad Waters, reportedly told The Garden Island that he and the other investors in Coco Palms Hui LLC had a right to rebuild the property the way it was, and Mayor Bernard Carvalho and Planning Director Mike Dahilig were on board. 

In response, the county issued a press release putting the project at a distinct arm's length.

In an email yesterday, Beth Tokioka wrote: 

“We learned yesterday that he [Waters] had obtained his demolition permit. To date, the Mayor has not seen Mr. Waters' plans so he couldn't say one way or another whether he supports them or not.”

The mayor appeared to have a different plan for Coco Palms. His administration pushed the planning commission to revoke the last set of permits after eight years of inactivity and repeated extensions. Then he moved to rescind the “Iniki ordinance,” which allowed nonconforming structures to be rebuilt to their pre-hurricane condition — a major perk for developers, who claim it exempts them from the EIS process. 

With the ordinance's expiration looming, up steps the latest music man, playing a tune that so many would love to hear: the return of the old familiar Coco Palms! Or as Waters put it, “a 2014 version of the original Coco Palms.” Whatever that means.

So what are we looking at here? Another round of the developer's favorite game: lock-in permits — this time cemented by the long-desired demolition of that derelict dive — and flip the property? 

A quick-and-dirty Elvis-themed timeshare project with mayor-turned-Realtor Maryanne Kusaka managing the sales team? 

An actual 396-room hotel right smack in the tsunami zone at the most traffic-congested spot  — many would say the most sacred — on Kauai, with the county's hands oh-so conveniently tied by the Iniki ordinance, which it should have revoked long ago? 

Or a fight to hold off the building permits until the Council can rescind the ordinance, with the developer claiming vested rights because of the demo and launching a big "takings" lawsuit?

At any rate, I hope the state checks out the new "security lighting" to make sure it's seabird friendly, since that's a major flyway.

There's another wrinkle: the state legislature funded a $270,000 grant-in-aid for the Hawaiian Islands Land Trust to study possible public uses for the Coco Palms site, a process that has apparently begun. It would probably wouldn't hurt for HILT to continue its work — you know, on the off chance that this latest proposal does a belly flop.

Because something about this whole deal just smells a little odd, even fishy.

Musings: No Good From Bad

Kauai landowners who got vacation rental certificates improperly will be allowed to keep them, under a directive from County Attorney Al Castillo's office.

Planning Director Mike Dahilig yesterday told a stunned County Council that he must renew TVRs approved by his predecessor, even if the original applications were flawed or incomplete. Some 84 percent of the files are missing documents required by law. 

But Mike said he can move to revoke the improperly issued certificates only if he has evidence they were fraudulently obtained.

Though many people never proved they were eligible for the valuable life-of-the-property permits — as exposed in the 20-part Abuse Chronicles — the flawed applications were essentially legitimized when former Planning Director Ian Costa and his deputy, Imai Aiu, approved them in 2008-10, according to the county attorney's directive.

“Anything after a bad application, how can it be good?” asked an incredulous Councilman Mel Rapozo.

Deputy County Attorney Ian Jung said technically it wasn't a bad application because the former director had signed off on it.

Councilman Tim Bynum said a fundamental component of the TVR law was requiring applicants to prove use prior to 2008. “The most key thing, they didn't even bother, they didn't even ask for it,” he said of Ian Costa and his staff. “This is not incompetence. This is a decision to fail to implement the law. That is unacceptable and now look at the consequences we're dealing with.”

Though Costa and Aiu were never named, both Councilwoman JoAnn Yukimura and Chair Jay Furfaro referenced their shockingly poor performance.

“The damage that bad managers do sometimes is irreversible,” JoAnn said. “I hope the mayor is listening, because it's not only in planning, it's in all parts of county government. There is no substitute for a good manager.”

Jay said he plans to write a performance evaluation and will put it the personnel jackets of the former directors “as a documentation of the poor management that got us where we're at.”

The Council also got irritated when Mike prevaricated about numbers. In a power point presentation, he said the department had compiled 657 unique TVR files: 158 are considered “inactive,” 75 are appealing the loss of their permit because they renewed late, and 413 are “active without issues.”

Mel asked how many of the 413 had incomplete files. “It's not overwhelming, but it is significant,” Mike hedged. After Mel repeatedly pressed him, Mike finally replied that “upwards of 84 percent” were missing one or more documents.

“I would encourage you to be forthright and just put it on the table when we're asking,” said Councilman Gary Hooser, who with JoAnn had also been given the run-around by Mike. “When you know 84 percent are incomplete and others ask about the numbers and you say you'll get back to us, that bothers me.”

Mike also told the Council the department was “going after the low-hanging fruit” by issuing cease and desist notices to 101 TVRs that missed their annual renewal deadlines. Ian Jung said the tardiness ranged from a few days to two years, but all would be treated the same. Mike said those that have not appealed “are ripe” for a second level of enforcement: “tighten the screws.” The owners could be fined, or referred for criminal prosecution if they keep operating.

Mel asked whether Mike had pursued the photos of a bare lot with no house that had been given a TVR certificate. “Not yet,” Mike said, prompting JoAnn to ask why that wouldn't be a low-hanging fruit case.

Several Councilmembers expressed dismay that the law was passed five years ago, but the department is only now creating a system for managing the TVR certificates. And even that action was prompted largely by the Abuse Chronicles and a threatened Council investigation.

“They are moving, but to where?” Mel said. “The concern is that the illegals will be allowed to continue and I disagree with that entire rationale."

Tim, Mel and Gary said Mike's report on the depth of the TVR debacle underscores the need for a Council investigation.

“It's clear the Administration does not want to look at what happened, at least not publicly,” Gary said. "In my opinion, past actions are being swept under the rug."

"I think that discussion's important, not just to us, but the public," agreed Councilwoman Nadine Nakamura.

Many of the TVR certificates were approved after Mayor Bernard Carvalho took office. In late 2010 he moved Costa and Aiu to other county agencies, and put Mike, a former county attorney, in charge of planning. As documented in the Abuse Chronicles, some of the improper permits were signed by Bambi Emayo and Vil Baliscan, who continue to work as TVR inspectors.

The question now is whether Ian, Imai and Bambi just decided on their own to blow off the TVR law, or if they were acting at the direction of others.

Hempey Files Complaint Against Rep. Hanabusa

Kauai attorney Dan Hempey has filed a federal Elections Commission complaint against Rep. Colleen Hanabusa over possible links between her campaign and the Pharmaceutical Research and Manufacturers of America (PhRMA) lobby.

The complaint stems from a Washington Post article that published communications between Hanabusa’s staff and campaign detailing PhRMA's plans to “pull together” an independent expenditure on her behalf, which is prohibited by both federal elections law and the House of Representatives Code of Official Conduct.

The communication occurred when the House was deliberating a bill about how much elderly citizens should pay for their medications.

“I was shocked to learn that the Hanabusa campaign appeared to be actively coordinating with those same corporations that would profit from her position, to the detriment of some of our most vulnerable

citizens,” Hempey said in a news release.

He called for a thorough investigation. “These issues are too important for us to be worrying about whether legislative decision making is infected by big money.”

Hanabusa recently announced plans to abandon the Congressional seat she won just last year to run against Brian Schatz, who was named by Gov. Abercrombie to fill the late Sen. Dan Inouye's seat. 

Kauai residents may know her better as presiding over the state Senate when the Legislature held a special session to exempt the Hawaii Superferry from the state EIS process.

Musings: Burning Rush

Get ready to fish or cut bait in 30 days. That's the message Councilman Gary Hooser delivered to his colleagues at the end of yesterday's Committee meeting on 2491, his pesticide/GMO regulatory/disclosure bill.

“I would ask the Council members to be prepared to vote in a month, offer amendments if you'd like, or vote it up or down, and not kill this bill via deferral,” said Gary, who chairs the Committee. “If you don't like the bill, we vote it up or down. Amend it as you wish and move on. That would be my suggestion.”

I can understand why Gary doesn't want to dilly-dally on this hot topic, or let the bill shilly-shally into the often-lethal abyss of deferrals. It's far too important an issue to languish in Council Committee Purgatory as we all pray for its ascension.

I can also understand why he was resisting the call of his less zealous colleagues to wait until the legal opinions come out.

Because let's be realistic. The Attorney General is not likely to issue an opinion supporting a bill that says counties can make any kine with an industry the state has aggressively courted. Nor is Deputy County Attorney MaunaKea Trask expected to back a bill he balked at before it was even introduced.

So no, let's not be waiting for those opinions to give the Council a convenient out.

But up or down in 30 days on a bill of this complexity? An issue that has each side ardently proclaiming only they speak the truth? A measure that generated more than 2,000 Council emails, countless phone calls, hours of testimony, and submittals that included studies and reports? A law that will require our rather hapless county to perform a number of new functions?

Is it really fair to expect the Council to digest all that and get up to speed in 30 days, when Gary himself spent months working on the bill and co-sponsor Tim Bynum claims he's been boning up on pesticides/GMOs for a decade?

More importantly, are we likely to get a good law if it's cobbled together in one marathon Committee meeting? Because even if we pretend that Bill 2491 is perfect, Gary clearly does not have the votes to pass the bill as written. Which means amendments and compromises for sure are coming. And all that is to be hammered out in one meeting? With the public weighing in where?

What's the burning rush?

It's already evident the Council is not going to pass "the bill" as introduced. So we need to make sure they pass a good bill — one that's not too watered down, one that can effectively protect environmental and human health from toxic pesticides. Based on what I've seen in my 26 years of following county government, that ain't gonna happen in one meeting, or 30 days.

I think we can get a Council majority to do something about the pesticide problem. But if they're cornered into a 30-day decision on a bill of this magnitude, I'm frankly afraid they'll vote no — even if it will expose them to more fury from the haters who characterized them as "pesticide-lovers" and "Satan's vipers" because they didn't pass the bill yesterday.  

And where will that will leave those of us who are seeking disclosure on restricted use pesticides, and more controls on the companies that apply them?

It reminds me of a post I saw on Facebook yesterday about the new cloned hamburger. The poster commented, If it's a choice between that and cutting down Amazon rainforests for beef, I'll choose that. To which I replied, Surely those aren't the only alternatives!

I'm pretty sure there's a middle ground somewhere between endless deferrals and up or down in 30 days. Let's steer for that place.

Bill 2491: Round One

Kauai County Council members today publicly weighed in on Bill 2491, the pesticide/GMO bill, with a majority making it clear the measure will not pass in its current form.

Attorneys for the chemical/seed companies also made it clear that a lawsuit is a given, especially if the proposed EIS and moratorium are adopted.

Councilman Gary Hooser, who introduced the bill, said the Council has never had a public hearing with as many people or as much testimony as this one. “It's unfortunate it has to come to a jobs vs health issue, and I don't see it like that.” The bill was “drafted specifically not to impact the industry or create an significant disruption whatsoever.” He said many doctors and nurses have spoken in favor of the bill, including the state health officers for Kauai and Maui, who testified in a personal capacity. 

“Both sides have exaggerated and misled people,” he said.

Councilwoman JoAnn Yukimura said, “I support and agree with the intention of 2491, which is to inform and protect the public and natural environment,” and she thinks everyone on Kauai would agree with it. “However, we know that good intentions are only the start. Without effective provisions in the law that will stand up in court, we'll get nowhere.” She said the Council needs to work on a bill that “does not cause significant unintended consequences and that do not harm individuals or organizations unjustly. We need to look at what the impacts of what this bill will be.”

JoAnn went on to say she is still going through 2,000-plus emails, and while she expects a form of the bill to pass, “there's still a lot of work to do. It's a very complex bill with multiple facets.”

She also urged people to “please exercise real aloha here. There's tremendous intimidation going on here,” with small farmers being trashed by false information posted on Facebook, Yelp and elsewhere because they spoke out against the bill. Others won't speak up because they're afraid of being targeted.

“This is not what a democracy is about and that is not what our community is about,” she said. “It's happening on both sides.” She urged “the caring majority” to speak out against the bullying.

Amen. 

First-term Councilman Ross Kagawa, who has been reviled by some for his stance against the bill, started by saying “I feel very loved by all.” He hails from the westside and has friends on both sides of the issue. Ross said it is a state and federal responsibility to deal with pesticides and the ag industry, and if state health officers and others are concerned, they should be talking to the state and federal officials who oversee these activities. 

“I don't believe they're all corrupt when it comes to protecting people's health and safety," Ross said. "I believe they'll do the right thing.” He said the county has enough trouble taking care of its own responsibilities without picking up state and federal functions, too.

Councilman Mel Rapozo said, “I don't remember a more divisive issue on this island, as far as the emotions that are running on this issue.” He has been receiving 200 to 400 emails per day, as well as phone calls, “many of them unpleasant. People who don't even know me are accusing me of selling out.” He said it isn't reasonable to expect the Council to get up to speed on the issue in a few months. 

“We have the responsibility of sorting out the testimony, the emotions from the facts," Mel said. Doctors are saying they're seeing “all this happening on the westside, but we don't know what the causes are. I'm interested in finding out what those causes are.” 

The Council also needs to keep the end goal in mind, which is adopting a law that can be enforced, he said. “The seed companies need to step it up, too, and make the community feel safe.”

Mel went on to say the Council is “getting inundated by emails …. from all over the world about banning GMOs. It's not a banning GMO bill.”

Councilwoman Nadine Nakamura said she hadn't been planning to make a statement, but “I would like to echo everything Mel said.”

Councilman Tim Bynum, who co-sponsored the bill, said he's spent the last 10 years getting educated about pesticides and GMOs. He said the chemical/seed companies are not engaging in production agriculture because they don't produce a commodity that's sold. “It's agricultural research practices, which are entirely different.” While he has “no doubt they put safety first” because the companies are run by scientists, and “they're very meticulous,” research fields are sprayed two or three times more frequently than production ag fields.

“What would you say if I told you they were spraying on Kauai 240 days out of the year?” Tim also said that kamaaina ag producers are being kicked off the land in favor of seed companies. This is the most important bill that's ever come before Kauai," he said, urging people to get involved.

Council Chair Jay Furfaro said, “I see myself as an exceptional steward of this place,” and he does it for his grandchildren and future generations. “Let's have an open dialogue and know that there are restrictions within the political subdivisions of Kauai that limits what we can do.”

The Council, meeting in committee, then questioned attorneys for Pioneer and Syngenta, as well as Earthjustice attorney Paul Achitoff. The private attorneys said the bill would be tossed out because some provisions are ambiguous and vague and others constitute an illegal taking. Paul disagreed, and said the U.S. Supreme Court “decided 30 years ago that counties do have the right to enact ordinances that restrict pesticide uses.”

Pioneer attorney John Hoshibata said, “The moratorium is going to kill the seed companies, and that's clear as day.”

Added Syngenta attorney Paul Alston, “Bear in mind it won't destroy Pioneer and Syngenta. It will destroy Kauai as a viable location for these kinds of activities.”

The bill states, “There shall be a temporary moratorium on the experimental use and commercial production of genetically modified organisms until such time as the County of Kaua’i has conducted a complete Environmental Impact Statement (EIS) on the health, environmental, and other effects of the production, propagation, or development of genetically modified organisms within the County. The moratorium will further continue until the County has developed and put into place a permitting process sufficient to protect the residents and environment of the County of Kaua’i from any significant effects that may be identified in the Environmental Impact Statement.”

Nadine said she has requested an opinion from the state Attorney General.

“I just wish we could do this without going to court,” Mel said, noting that Kauai shouldn't be the vehicle for deciding case law on this issue.

“We don't have a pot of gold to really challenge the laws and go through a long court battle,” Ross said.

Musings: Tidying Up

The Kauai Planning Department is set to make its first progress report Wednesday on its tidy-up of the transient vacation rental (TVR) mess, in response to a threatened County Council investigation.

Planning committee chair Nadine Nakamura requested the presence of Planning Director Michael Dahilig to “provide a status report on the renewal of Transient Vacation Rental (TVR) Certificates and a briefing on any administrative or court proceeding(s) involving TVR applications, certificates, or operations."

It's timely, since most people were required to renew their TVR certificates by July 31, though some had different deadlines. Previously, as I've outlined in the Abuse Chronicles,  the department simply rubber-stamped renewals, even if they were a year late. But it's tightening up under intense scrutiny. 

"More than 70 letters have been issued since February for no or late renewals," county spokeswoman Beth Tokioka wrote in a July 12 email. "In these instances, the NCUC's [nonconforming use certificates] were forfeited and they were issued cease and desist letters.  Of those, at least 30 have appealed, and it's likely that number will grow."   People have 21 days to appeal. Despite the cease and desist order, they are allowed to continue operating pending their appeal, which could drag on for months.

With renewals on the front burner it's time to again raise the oh-so-thorny but fundamental question: how many of those TVR certificates were issued fraudulently or improperly from the get-go, and so shouldn't be renewed, because they shouldn't have been granted? The Abuse Chronicles series outlined 25 such certificates, and no doubt there are many more.

At one time, the idea that undeserving owners might be getting a valuable life-of-the-property   TVR certificate really stuck in the craw of Councilwoman JoAnn Yukimura. She attended a July 28, 2009 meeting of the planning commission, as it was preparing to issue a batch of previously-denied TVR certificates, and delivered this strong testimony (emphasis added):

The law says that the burden of proof is on the applicant to show that they were operating legally at the time that the law was passed. This is a grandfather status of vacation rentals. The law abhors grandfathering, they want to minimize it but you do want to allow those who were legally operating at the time of the law. They are entitled to a grandfather status.

But those who were not operating legally are not entitled to it and that is the job of the Planning Department to discern, in terms of a burden of proof is on the applicant. It is not on the citizens who are questioning the issuance. 

So I think the concern is has there been enough scrutiny? Has there been enough investigation? Once you [issue] a nonconforming status, that is a very strong statement and so it should not be done unless there has been good investigation of any claims, there has been a record of legal operation. So whether or not there is technically legal appeal from the citizens is almost irrelevant, it is your job to make sure that this job of the Planning Department was done correctly.

And I don't know the details but from what I have heard there hasn't been full investigation of some of the claims, there has been no clarification on the part of the Planning Department how they made their decisions, how they answered these different things. And if there hasn't then the certificates shouldn't be issued, never mind about revoking it later, it shouldn't be issued in the first place.

But they were, and here we are, four years later.

So does JoAnn still care enough to push the matter? Or will she and the others who shrank at the prospect of a Council investigation allow the department to keep sweeping this key critical issue under the rug?

Meanwhile, Koloa resident Tom Bartlett complained in a letter to the editor today first about property taxes increasing on his long-term rental in Princeville, which generates much his retirement income, before going on to claim: 

Second, for those owners who vacation rent, their taxes are really increasing. Most have a substantial negative cash flow. Will this be the tipping point where they just say sell, thus lowering the value of a significant portion of Kauai real estate having one of the highest tax rates?

If TVR owners are experiencing "a substantial negative cash flow," and now find it burdensome to be properly taxed as vacation rentals after years of sliding by at residential rates, the solution is simple: relinquish their TVR certificates. 

Then we'll finally start seeing the attrition that was always envisioned for this industry.

Because Tom certainly can't be suggesting that other taxpayers subsidize the TVR owners just to prop up a real estate market that was wildly inflated by treasure-hunters during the TVR gold rush. 

At least TVR owners will no longer be allowed to claim a permanent home use exemption  under Councilman Tim Bynum's property tax bill, which is set for a public hearing Wednesday morning. 

It's taken five years to close that loophole, but as we all know, the county moves slowly. And it never deep cleans.

Musings: Making Sense of it All

Awoke to the call of a Newell's shearwater, a sound I've been hearing a lot this year, encouragingly, and found Moon, a golden grin, shining in my window, with Jupiter beaming by her side. 

I took it as an invitation to go walking, which Koko and Paele gladly accepted. 

We hadn't gone far when wild pigs grunted a greeting (warning?) that got the dogs all excited and as they strained against their leashes a barn owl flew overhead, so low I could see its scalloped feathers, its pale, heart-shaped face.

Good morning!

Pink clouds, orange clouds, an explosion of color on the horizon.

Back home, checked the bees, already hard at it, and then the nest a little shama thrush has made in a rather vulnerable spot that neither the neighborhood cats nor my dogs have discovered.

Then I checked email and found a link to a story about how Wisconsin sent out a squad of nine wildlife agents and four deputy sheriffs to take down a fawn at an animal shelter there, resulting in death threats against the Department of Natural Resources.

And I was reminded of the comment that Beth-Ann Kozlovich made when she interviewed me on HPR's “The Conversation” this past Monday about how federal laws had failed to prevent the shabby treatment of a disabled 95-year-old woman living at Lihue Court.

“[W]here's the common sense?” Beth-Ann asked.

Exactly.

Musings: An Opening

After I quoted Kepa Kruse in yesterday's post, he called me and we shared our dismay over the growing divisiveness and ugliness of the GMO-pesticide debate, the polarization of our island evidenced so starkly by the blue and red shirts at Wednesday's Council hearing on Bill 2491, the structure of public hearings, which more closely resemble a boxing match where people are issued gloves, but told, "don't fight."

So much energy has been expended trying to destroy and discredit the other side, and it's staged to continue as the Council begins to massage the bill in Committee. How can we marshall it into something more positive?

“I'm interested in exploring solutions,” Kepa said. “I would love to hear what other people have in their minds. We should stage an open discussion where people could share ideas.”

As in ideas for developing good jobs on the westside, remediating the soil, generating products and/or services that directly benefit our island. In other words, if we don't want biotech, what can take its place and how do we get there?

Kepa is a thoughtful man with a lot of ideas, and one of them is a partnership agreement — as opposed to a lease — that has the Department of Defense financing a massive solar farm on Hawaiian Homelands. The system would generate enough power for PMRF's needs, while also producing electricity that could be fed into the KIUC system to produce revenues for DHHL and subsidize (lower) the cost of electricity elsewhere on the island. “The westside has 321 days of sun a year,” he said.

And with the ample water resources on that side, some of that energy could be used to pump water uphill during the day that would be released as hydro-power to generate electricity when the sun goes down. “That's being done all over the world,” he said.

“We also need to have discussions about finding a process to clean the soil of pesticides over time,” Kepa said, noting that he'd read about the use of mushrooms and other fungi to remediate soil.

Unfortunately, a bill that would have authorized UH to establish a two-year pilot project to study the use of industrial hemp in soil remediation and as a biofuel crop got stuck in the last legislative session. All the Kauai legislators supported it, so perhaps we can urge them to move it through in the next round, with the westside as the test site.

I've heard some folks call for replacing the biotech fields with small farms, which is a lovely vision, and no doubt many of the green-thumb folks who now work in biotech would be very successful at running their own farms, which could feed us. But that requires the state and private landowners to bust loose with some affordable land — land they are leasing to the seed companies, sometimes displacing ranchers and small farmers in the process, because they pay top dollar.

Our discussions need to be broadened to include the landowners, who have been pretty much flying under the radar as the arrows fly at their biotech tenants. But let's be honest here. The biotech companies didn't just walk in, the door was opened. There are a few local companies — most notably, Grove Farm and Gay and Robinson — that should be thoroughly questioned about their long- and short-term goals for their land and the island. These companies love to claim they're good neighbors and good stewards, and they need to be held accountable.

“I'm sure that other people have lots of great ideas,” Kepa said. “I'd love to hear more about Pat Gegen's plans for solar. I know we can come up with some solutions, but it will take open eyes, open ears and open hearts.”

I'm hoping those same open eyes, ears and hearts will come into play as the bill moves through the Council. Because if it's left solely to reds and blues with blinders on, we're going to end up with either nothing, or a piece of crap that the Council cobbles together in appease whichever side screams loudest or turns up the most heat.

It's not a pleasant arena, and it's no surprise that thoughtful, akamai people want to avoid it like the plague. But this is our home, and with an issue this emotional and divisive, it requires our best effort.

Let's start sharing ideas now for improving Bill 2491 — Councilman Gary Hooser himself called for suggestions on ways to make it better — and transitioning the westside into something beyond biotech.

But first, let's open our eyes, ears and hearts.

Musings: Team Purple

Yesterday's public hearing on pesticide/GMO Bill 2491 was akin to lancing a boil — though some yucky stuff oozed out, a lot of painful pressure was released, and perhaps the healing can now begin.

Much of the testimony was passionate and surprisingly compelling, and some interesting information came to light.

For instance, Dr. Richard Goding, an orthopedic surgeon, said he works all around the island, and in discussions with other physicians, it appears that westside kids are experiencing more nosebleeds and asthma than their eastside counterparts. The westside also seems to have cancer clusters and a higher rate of serious birth defects.

While the reports are all anecdotal, “we want to do the studies to confirm it,” Goding said, noting there appears to be “a very big difference in ailments” suffered by kids living in the Hanapepe to Kekaha corridor, compared to the Kapaa-Haena area. It's important to know what pesticides are being sprayed, Goding said, “so we can consider that” in diagnosing and treating patients.

Dr. Evslin submitted a letter in support of the bill “signed by most of the pediatricians on island.” He cited the 2012 American Academy of Pediatrics policy statement, which indicated that pesticide exposure may be “more of a problem than was known in the past” for kids and has “a big impact on the unborn.” Evslin said there should be a pesticide-free zone around schools.

Though Roundup use is not addressed by the bill, Evslin said there are numerous published scientific reports on the ill-effects of Roundup exposure, including its apparent ability to kill the good bacteria that live in our bodies and are crucial to digestion and strong immune systems.

Thomas Matsuda, pesticides program manager at the state Department of Agriculture, said sales records kept by the agency show that Kauai companies purchased “significantly less” than the 18 tons of restricted use pesticides (RUP) that bill supporters claim are used on-island each year. It sounded like 18 tons isn't a firm number, but was extrapolated from various reports. At any rate, that's going to be hashed out a bit more at Monday's Council committee hearing.

A worker for the chemical/seed companies pointed out that a number of pesticides approved for organic use have labels referencing deleterious environmental impacts, yet these substances, as well as products containing RUPs, can be purchased and used by citizens with no regulatory oversight or training. Others questioned whether the county was also going to look at the chemicals used by resorts, landscapers, swimming pool companies and its own agencies.

I was especially struck by the very different experiences that people are having. For example, a Waimea Valley mom said she hasn't opened the window in her kids' bedroom for four years because of fears about pesticide dust, and won't let her children linger in the bubble bath because she's worried about what's in the water. Contrast that to the lady who said she worked in the fields through two pregnancies and delivered healthy children, and the man who said he brought his days-old child to “the farm.”

One eyebrow-raiser came when Councilwoman JoAnn Yukimura asked a field worker how much she was paid. When the woman demurred, JoAnn said she hoped company officials would provide that information. What has that got to do with this bill, and is it really the Council's kuleana to scrutinize the pay of private workers?

It also became evident pretty quickly that virtually all of those who spoke against the bill actually work in agriculture — many are from multi-generational farm families — whereas the majority of those who support the bill may at best maintain home gardens. Even though you may oppose pesticide use and conventional farming practices, I think you do have to concede that the people who are doing it probably know more about it than those of us who aren't.

Which brings me to the most heart wrenching aspect of this issue, and that's the employees, many of whom are former sugar workers from longtime westside families. I felt a lot of sympathy and compassion for them, because it was clear from their testimony that they take pride in their work. It must be pretty humiliating and painful to be suddenly treated like pariahs and accused of poisoning people and the aina.

It's very easy to diss the international chemical and pharmaceutical firms that own the seed companies and call for them to be expelled from the island. But it's not so easy to engage in that abstract demonization when the guy who runs the spray rig is standing right there saying he takes his job seriously, he is governed by numerous regulations and he would never do anything to harm his kids, his neighbors, the environment.

It was also apparent they're very afraid for their jobs right now. It doesn't really matter whether the fear is reasonable, or planted as a scare tactic by the owners. The workers are feeling it, and we need to have empathy for the stress, worry and deep uncertainty that such fear brings.

I've heard anti-GMO people express some pretty cavalier attitudes about the workers, stuff like, “it can't be that hard to come up with 500 jobs” and “oh, we can find something else for them to do.” But as we saw when sugar collapsed on the westside, it isn't a snap to find new jobs for those folks, which is why they're now working for the seed companies.

So it rang a little hollow when a KKCR talk show host who has relentlessly vilified the industry and its operations for months stood there in her red shirt and said, "We love you guys."

Oh, yes, I'm sure they're feeling the love.

As this contentious issue continues to be debated, I urge people to lose their blue and red tee-shirts and come together to listen, learn and craft solutions. If you combine red and blue, it makes purple, which just so happens to be Kauai's color.

The comments by Kepa Kruse, reported in today's The Garden Island, express that sentiment well:

“Both sides are fighting for the same thing, their families,” he said. “One side is fighting to feed their families; the other side is fighting to feed their families good food.”

“There has to be a unification of people for this to work,” Kruse said. “Otherwise, one side is going to lose.”

Musings: Celebratory and Not

Up early, unable to sleep; out early, walking with the dogs. The sky is buried beneath a blanket of gray; the air is thick, wet, dead. I am thinking, this is what it must be like to live in Guam, or the Midwest — ugh — when suddenly the wind gusts, gentle rain begins to fall and the birds bust out a celebratory songfest.

Councilman Gary Hooser is quoted in today's paper as describing what's happened over the last month on Kauai in response to his pesticide/GMO bill as a “celebration of grassroots democracy.”

It doesn't feel very celebratory to me, unless you're talking about the kind of celebrations staged by dysfunctional families where everyone's fighting and distrustful and taking sides and talking stink. The energy on the island has felt downright turbulent, with a striking number of people using the word “growly” to describe their state of mind.

But it does feel very much like democracy, in that what is being served up is not exactly what you want, but it's the only thing on the menu.

I think there's pretty widespread sentiment that the seed industry, like the tour boats and TVRs before it, needs to be more carefully scrutinized and managed. But when I look at the boating issue – that bitter standoff ended only when then-Gov. Cayetano stepped in, and two decades later the county is struggling with rules and threatened lawsuits — and the complete and utter debacle of the TVR law, well, let's just say it requires a greater imagination than mine to believe the county can implement Gary's bill.

And if 2,000 people show up, as Gary expects, at a venue that can seat 500 to 600 and even half want to give their three-minutes of testimony in an event that will last roughly 12 hours, you don't have to be a genius to see the math doesn't work. Which means a lot of folks will be left out, just like in a democracy.

I didn't end up going to last night's forum sponsored by the biotech industry. I thought about it, but I'd just been swimming in the ocean, and so I was happy, and I knew that if I went, I would get unhappy. Besides, I'm pretty well-versed in the pro-biotech arguments. I have actually studied both sides.

And I can totally relate to the concerns voiced by small farmers and ranchers who feel they are already over-regulated and fear their own pesticide practices will be scrutinized and possibly banned next. It ain't easy to make it as a farmer on Kauai, and I give kudos to every one who is pulling it off, conventional and organic alike. They really are getting it from all sides, and the new food safety laws will only make things harder.

As one non-farmer friend who opposes the bill put it: “I feel like I should be standing up for the farmers. It's kind of like that saying, 'first they came for the communists, but I didn't speak up because I wasn't a communist, then they came for the trade unionists and I didn't speak up and by the time they came for me, there was no one left to speak up.' Is it going to get to where I have to report to Gary Hooser every time I buy a can of Raid?”

To which I might reply, well, first we noticed that we no longer have bugs on our windshields, but nobody said anything, because we don't like bugs. Then we saw the amphibians die off — a new study has found pesticides in frogs 50-100 miles from California's Central Valley, at body concentrations higher than was found in the remote mountain ponds where they live — but we didn't say anything, because who cares about frogs and toads? Then we saw the bees dying off – the newest study implicates fungicides and the cumulative impacts of multiple pesticides in colony collapse disorder — and that got our attention, because they pollinate our food. But still, we didn't say much, because they're just insects.

I'd like to speak for all of them, because these die-offs are a way of speaking to me, as in canary-in-the-coal-mine early warning signs about the dangers of our pesticide use.

In a letter to the editor today, we have the Hawaii Nurses Association speaking up in support of pesticide disclosure and buffer zones to protect human health.

In testimony submitted on Bill 2491,  Dr. Carl Berg writes:

My preliminary testing for the pesticide Atrazine on Kauai has found positive readings for two west-side ditches and four streams. More sophisticated analytical techniques will be used to confirm these results.

A very preliminary survey by the Hawaii Department of Health in 2012 found detectable amounts of Atrazine, the insecticide Carbaryl, and the Nonylphenol surfactants used as wetting agents in pesticides, in Kauai streams. This was part of a preliminary nationwide survey and did not look for the full range of pesticides being used on Kauai. The raw data is under review by the HEER office and the results will not be released right away.

A study of more streams and looking for more types of pesticides is needed to show how widely agriculture, as being practiced on Kauai, has polluted our waterways and the ocean, and is detrimental to the health of our community and to the environment. Pesticides in the water are unhealthy for our people and for the tourist industry. If high levels of pollutants are found, the beaches must be posted and closed.

As an example of how pesticides may be entering the waterways, this video depicts erosion and runoff from one of Pioneer's Kaumakani fields last year.

So while this bill isn't exactly what I'd order up, it's at least got people speaking up about an issue that really does concern us all, in one way or another. If we can get to the place where we're actually conversing, well, then that will be cause for a celebration.