I passed through blowing mist and then a full-on squall on my way to the Lihue courthouse this morning, but when I saw a bright rainbow shining over Babylon, I figured things were going to be alright.
And they were. District Court Judge Trudy Senda dismissed trespassing charges against four of the guys arrested following an attempt last Aug. 7 to stop Joe Brescia from building his house atop burials at Naue. Charges also will be dropped against the other two who were arrested. It’s unclear what’s going to happen to the two men who have not yet been served with warrants.
Trial on the case was set for next Thursday, but attorneys Peter Morimoto and Dexter Kaiama were in court this morning defending motions to have the charges dismissed on constitutional grounds and insufficient evidence.
In the end, deputy prosecutor Justin Kollar, who was obviously anxious to avoid a trial, joined Peter and Dexter in stipulating to some rather dramatic findings of fact and conclusions of law that Judge Trudy deemed were “reasonable and appropriate” to grant the motions to dismiss.
The findings of fact stated that the defendants had pursued all the administrative remedies available to them to malama iwi kupuna — take care of ancient burials — on the property, but the administrative process had failed them. It states:
As a result of the failure of the administrative process, Defendants, believing that further desecrations were imminent, were compelled to occupy the property on August 7, 2008 to malama iwi kupuna.
The conclusions of law were based on the “choice of evils defense” established by State v. Marley, which held that defendants are justified in violating the law so long as there is no alternative available that does not involve violating the law, the harm to be prevented is imminent and the defendant’s actions are reasonably designed to actually prevent the greater harm. It states:
In this case, defendants (1) did not have any alternatives available on August 7, 2008 due to the failure of the administrative process, as subsequently recognized by the 5th Circuit Court, (2) were acting to prevent imminent harm to the iwi kupuna at the property and (3) acted reasonably to prevent further harm by peacefully placing themselves between construction and iwi kupuna.
“My main thing is that we are decriminalized,” said defendant Andre Perez of Oahu. “We walk away from this thing with dignity. We know who the real criminals were that day.”
The prosecutor’s office earlier had offered to reduce the charges to second-degree trespassing, but the defendants balked. “I’m not going to agree to something like that because I'm not guilty,” said Andrew Cabebe of Kauai. “I know in my heart I’m right.”
Still, Judge Trudy made it clear that she wasn’t giving the guys carte blanche to occupy the property, noting that “this isn’t a precedent-setting ruling in this case. These stipulations are limited to the allegations of Aug. 7 only.”
The Naue defendants weren’t the only kanaka smiling in Babylon today. I also ran into attorney Dan Hempey, who had just gotten charges dismissed against Titus Kinimaka, who had been cited for running a surf school without a county license. But as Dan pointed out to the judge, the county ordinance stated that only those without licenses could offer commercial services in county parks. “I’m going to have to take it literally,” Judge Trudy said in dismissing the charges.
I imagine that bit in the ordinance will be revised — eventually. How long do you suppose it takes the county to get around to fixing stuff like that? And do they employ proofreaders? In the meantime, Titus can keep on teaching, and as Dan noted, surfing is about as Native Hawaiian as you can get.
Dayne Aipoalani, leader of the Kingdom of Atooi, was also in court today and had charges dropped against him, although I’m not sure what the alleged offense was. Like others who challenge the Western system, he ends up spending a lot of time in court extricating himself from it. He’s still facing trial for charges stemming from the Aug. 26, 2007 protest over the Hawaii Superferry.
Interesting, that of all the people arrested, only Dayne and Robert Pa, two kanaka, are still being prosecuted. Everybody else got off. Should be interesting to see what Hempey has up his sleeve when he takes that case to trial as Dayne's court-appointed attorney.
Showing posts sorted by relevance for query Titus Kinimaka. Sort by date Show all posts
Showing posts sorted by relevance for query Titus Kinimaka. Sort by date Show all posts
Thursday, January 15, 2009
Wednesday, May 26, 2010
Musings: The System
Out in the night, a ghost moon on the cusp of full glowed through a blanket of clouds that by morning had subsided enough to let some gold slip through around the edges. The sun was already up, a red disc on the horizon, when Koko and I set out walking and it shone spottily, creating patches of soft light on green mountainsides streaked with waterfalls.
The sky was dotted with puffs of pink and orange, but before long the sun lost its way and the world turned gray. However, things brightened up considerably when I encountered Farmer Jerry, whom I hadn’t seen in weeks because he’d been sidelined with an injury.
“Well, today’s the big showdown for the farm worker housing bill,” Jerry said, noting that Councilman Darryl Kaneshiro, a rancher, recused himself from the last vote, and will do so again today, at the direction of Council Chair Kaipo Asing.
It seems the pro-development Land Use Research Foundation has come out against the bill, which is a point in its favor. That’s their usual tactic: come in late and apply heavy pressure, which is how they got the Legislature to allow landowners to develop 15 percent of the acreage they designate as Important Ag Lands.
So it’ll be interesting to see if any radical amendments are offered — and adopted — at LURF’s behest.
Ironically, the bill – heavily touted as helping ag – could actually end up harming some small farmers in Moloaa, where workers are currently living in tents, buses, cargo containers and other substandard housing. If the bill passes, they’ll have to clean up their act, but some of them don’t have the money to build worker housing. So what will become of them?
Anyway, Jerry said he thinks the bill has been tightened up enough to withstand abuse by gentleman farmers. Besides, applicants will have to go before the Planning Commission for approval.
And we know they’re always on it. Yesterday, they granted Pierce Brosnan permission to vacation rental his oceanfront Wainiha house, with its landscaping that extends well onto the public beach, even though he's been living in it, so it wasn’t a pre-existing use of that property. Not that Pierce actually showed up for the meeting, of course. That’s what lawyers are for.
The approval prompted one observer to remark: “Even the rich guys have to commercialize the beach. Is it never enough?”
Apparently not, if there’s more money to be made. And indeed, it primarily IS the rich guys commercializing the beach. When the small guys try to do it, like a kanaka offering a surf school without a permit or something, they get dinged. As I noted in a January 2009 blog entry:
I also ran into attorney Dan Hempey, who had just gotten charges dismissed against Titus Kinimaka, who had been cited for running a surf school without a county license. But as Dan pointed out to the judge, the county ordinance stated that only those without licenses could offer commercial services in county parks. “I’m going to have to take it literally,” Judge Trudy said in dismissing the charges.
I wonder if they've changed that ordinance yet?
Speaking of Kauai judges, and the Wainiha coastline, it seems the state has decided to blow off Circuit Judge Kathleen Watanabe, who last month rejected the state’s certified shoreline for a property there. As I wrote in a piece for The Honolulu Weekly:
Watanabe found the state had improperly relied upon cultivated vegetation and current, rather than historical, wave wash data when setting the shoreline for a North Shore Kauai lot now owned by Craig Dobbin.
The decision stemmed from a long-standing dispute over the Wainiha lot’s certified shoreline, which is used to determine how far a house will be set back from the beach.
“The judge said, in effect, your decision is wrong and you have to go back and do it the right way,” [Kauai attorney Harold] Bronstein said. “She’s also saying, interpret the law correctly.”
But the state went ahead and certified the exact same shoreline that Watanabe (who I hear is on the short list for the Hawaii Supreme Court) had overturned.
So now Harold, who did the case pro bono, will have to go back to court to again challenge the state and by the time it gets resolved, the house could be built.
Do you see why people get so disgusted with the system?
The sky was dotted with puffs of pink and orange, but before long the sun lost its way and the world turned gray. However, things brightened up considerably when I encountered Farmer Jerry, whom I hadn’t seen in weeks because he’d been sidelined with an injury.
“Well, today’s the big showdown for the farm worker housing bill,” Jerry said, noting that Councilman Darryl Kaneshiro, a rancher, recused himself from the last vote, and will do so again today, at the direction of Council Chair Kaipo Asing.
It seems the pro-development Land Use Research Foundation has come out against the bill, which is a point in its favor. That’s their usual tactic: come in late and apply heavy pressure, which is how they got the Legislature to allow landowners to develop 15 percent of the acreage they designate as Important Ag Lands.
So it’ll be interesting to see if any radical amendments are offered — and adopted — at LURF’s behest.
Ironically, the bill – heavily touted as helping ag – could actually end up harming some small farmers in Moloaa, where workers are currently living in tents, buses, cargo containers and other substandard housing. If the bill passes, they’ll have to clean up their act, but some of them don’t have the money to build worker housing. So what will become of them?
Anyway, Jerry said he thinks the bill has been tightened up enough to withstand abuse by gentleman farmers. Besides, applicants will have to go before the Planning Commission for approval.
And we know they’re always on it. Yesterday, they granted Pierce Brosnan permission to vacation rental his oceanfront Wainiha house, with its landscaping that extends well onto the public beach, even though he's been living in it, so it wasn’t a pre-existing use of that property. Not that Pierce actually showed up for the meeting, of course. That’s what lawyers are for.
The approval prompted one observer to remark: “Even the rich guys have to commercialize the beach. Is it never enough?”
Apparently not, if there’s more money to be made. And indeed, it primarily IS the rich guys commercializing the beach. When the small guys try to do it, like a kanaka offering a surf school without a permit or something, they get dinged. As I noted in a January 2009 blog entry:
I also ran into attorney Dan Hempey, who had just gotten charges dismissed against Titus Kinimaka, who had been cited for running a surf school without a county license. But as Dan pointed out to the judge, the county ordinance stated that only those without licenses could offer commercial services in county parks. “I’m going to have to take it literally,” Judge Trudy said in dismissing the charges.
I wonder if they've changed that ordinance yet?
Speaking of Kauai judges, and the Wainiha coastline, it seems the state has decided to blow off Circuit Judge Kathleen Watanabe, who last month rejected the state’s certified shoreline for a property there. As I wrote in a piece for The Honolulu Weekly:
Watanabe found the state had improperly relied upon cultivated vegetation and current, rather than historical, wave wash data when setting the shoreline for a North Shore Kauai lot now owned by Craig Dobbin.
The decision stemmed from a long-standing dispute over the Wainiha lot’s certified shoreline, which is used to determine how far a house will be set back from the beach.
“The judge said, in effect, your decision is wrong and you have to go back and do it the right way,” [Kauai attorney Harold] Bronstein said. “She’s also saying, interpret the law correctly.”
But the state went ahead and certified the exact same shoreline that Watanabe (who I hear is on the short list for the Hawaii Supreme Court) had overturned.
So now Harold, who did the case pro bono, will have to go back to court to again challenge the state and by the time it gets resolved, the house could be built.
Do you see why people get so disgusted with the system?
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