Saturday, October 30, 2010

Musings: Saturday Samplings

The moon, a smidgen under half, was beaming down at me through the skylight, causing the raindrops on the glass to sparkle and me to get up and slip outside with Koko. The grass was wet and fast-moving clouds played dodge ball with the stars and sometimes blotted out the moon, but even then there was sufficient light to walk, and so we did, beneath ironwood trees that were sighing in the wind and shaking off the rain, causing secondary showers to spatter down on the lower canopy of guava and java plum, both of which are fruiting.

I’d been hearing a drone, a loud buzz, a hum, as I walked beneath various trees the past few days, and while I did not think it was bees, I couldn't identify the source of the sound until it arrived in my bedroom last night, in the corner of the ceiling above my bedside lamp, created by tiny winged insects that carried on until I turned off the lamp and plunged us all into darkness and silence.

They were gone this morning, save for a few corpses being carted off by ants in the kitchen, and I marveled that an ant can carry something larger than itself, accompanied by a few other ants that seem to serve as spotters. I often watch them at work, and it's always with a sense of awe. So when a friend brought over some ant poison the other day, I was aghast.

“Why in the world would I want to kill them?” I asked. “They’re so entertaining and efficient.”

It’s been delightful to have the rain return. It’s like we switched from summer into winter this past week, with the temperatures getting chillier and the beloved sound of rain drumming on the roof. Jan Tenbruggencate had an interesting blog post recently about the current historic drought and predictions for heavy winter rain, which was music to my ears. I may be one of the few people who liked the 40-day deluge of 2006.

Speaking of which, I had intended to mention when I wrote my last post on the new safety rules for dams and reservoirs that in researching that story, the state guys told me that every dam in the state has some sort of deficiency that needs to be corrected.

When I asked if the dams and reservoirs are safe now, four years after Ka Loko, Carty Chang, DLNR’s chief engineer, hedged a bit and said the inspection process, new rules and Dam Safety Act “gives everybody more peace of mind. That doesn’t say they will be totally safe. There’s more awareness and more oversight at this point, and dam owners recognize the need to make their dams safe. Even that is an improvement over Ka Loko.”

On Kauai, the state is decommissioning the reservoir it owns along Kahuna Road in Kapahi, and it’s not an easy matter, seeing as how the county must be involved since it will affect the road, too.

On this, the eve of Halloween, a friend sent an email with the subject line "Spooks" and a message that read:

Yes we have a scary day coming up!
2 Nov

Indeed. Especially when you look at some of the Republicans/Tea Partiers running in America. Like Ilario Pantano, the former marine running for Congress in North Carolina who admits shooting two unarmed Iraqis a total of 60 times, then hanging a sign over their corpses that read, "No better friend, no worse enemy."

Just the kind of guy you want in Washington. Like Sharron Angle, whose Senate run has been endorsed by failed presidential candidate John McCain. She ran a hit ad on her opponent with the message “Waves of illegal aliens streaming across our border, joining violent gangs, forcing families to live in fear” coupled with images of Latino-looking men in prison and gang attire.

Nice. It’s really unfortunate to see candidates playing the fear and racism cards. But then, they know what sells in America.

Of course, even if Republicans do capitalize on voter discontent and regain control of Congress, they’re not going to fix anything. People are so stupid that it’s only taken them two years to forget what party got us into this economic mess.

I was interested to read Duh Duke’s comments on legalizing marijuana, when he was questioned by Hawaii News Now:

The gain that you could get in taxes are [sic] going to be greatly outweighed by the cost that you're going to have in all the social issues that come with the use of marijuana. The teen pregnancy, the suicides, the domestic violence, etc. . It all comes with the use of marijuana.

I’d really like to see the data to support that contention. Cuz ya know, I don’t think it actually exists. Of course, the TV reporter doesn’t press, but just allows him to say any kine, unchallenged.

Abercrombie, who called for legalization back in the 1970s, said that issue is “so low on a priority list that it really doesn't come much into my consciousness. If we're going to grow things, we need to grow our own food. We're sending more dollars out of the state right now than we did in the 1970s for food."

And we’re definitely sending out WAY more dollars for cannabis than we did in the 1970s. You can thank Green Harvest for that.

While we’re talking about dollars, it’s quite clear that a very few select folks have a whole lot more than others. In fact, the 74 highest paid people in the U.S made as much as the 19 million lowest paid workers, according to David Cay Johnston on

Unreal. What’s more, they just keep getting richer:

The number of Americans making $50 million or more, the top income category in the data, fell from 131 in 2008 to 74 last year. But that’s only part of the story.

The average wage in this top category increased from $91.2 million in 2008 to an astonishing $518.8 million in 2009. That’s nearly $10 million in weekly pay!

You read that right. In the Great Recession year of 2009 (officially just the first half of the year), the average pay of the very highest-income Americans was more than five times their average wages and bonuses in 2008. And even though their numbers shrank by 43 percent, this group’s total compensation was 3.2 times larger in 2009 than in 2008, accounting for 0.6 percent of all pay.

Do you really suppose those top wage earners work that much harder than the guys picking lettuce and the women cleaning hotel rooms? And I wonder, how many of those 74 do you suppose are white men?

Thursday, October 28, 2010

Musings: Water and a Smile

If you're interested in water issues as they pertain to dams and reservoirs — Kauai has more than any other island — you may want to check out an article I just wrote for Honolulu Weekly.

Unfortunately, due to deadline and space constraints, I wasn't able to get in a few additional comments, but they raise good points, so I'll print them here:

From Dr. Carl Berg:

"I think it is very important that in-stream flow standards be set for all natural waters that have been dammed and where water has been impounded. We need to re-establish native stream ecosystems that have been destroyed by plantation-era diversions and dams. Only the natural, native ecosystems can help us restore both traditional uses of these waters and the fish populations in the streams, estuaries, and ocean."

From Kapua Sproat, water law expert and Assistant Professor, Ka Huli Ao Center for Excellence in Native Hawaiian Law, at UH Richardson School of Law:

The need to improve efficiency and ensure that water resources are managed as a public trust resource for the benefit of all -- not just a select few -- goes far beyond reservoirs.

For years now, community members have advocated comprehensively assessing our ground and surface water resources and infrastructure, including water taken by old systems that aren’t being adequately maintained. Much of our surface water infrastructure was engineered and constructed for plantations in the 1800s or early 1900s, totally dewatering streams for private use despite significant negative impacts on natural resources and other public rights. In 2010, we can do better; we have the technological capacity and the social responsibility to do more with less. The time is now for water managers, including the State Water Commission, to comprehensively address these issues and uphold the public trust (which is also the law) by restoring streams and ordering current owners to make plantation systems more efficient. Without better planning, management, and improved efficiency, these important issues will be resolved through litigation.

Agricultural interests are always complaining that the public needs to pitch in by subsidizing the operation and repair of antiquated private systems. The public has been subsidizing plantation systems all along by allowing private interests to use these public trust resources for their private commercial gain -- often with no compensation or payment to the public.

From Rep. Mina Morita:

Should the State take a comprehensive look at water distribution and storage systems? Yes, if we are serious about energy and food security efficient water storage and distribution systems are critical infrastructure necessary for agriculture. With limited resources available we need to identify the systems that best promote the public policies that support energy and food security.

And just to lighten things up on the campaign trail, a friend sent this photo, entitled "Team Work," with the message:

The new candidates to replace the incumbents?

If only....

Wednesday, October 27, 2010

Musings: The Great White Hope

I’m often asked where I stand on various ballot measures and candidates; heck, I’ve even had people call from the polls to ask how they should vote. I used to demur, thinking folks should figure that out for themselves, but when I see how much corporate money is being spent to cravenly influence voters, I figured, why should I hold back?

So for what it’s worth, here’s my take on a few of the issues and races.

I’ve already mentioned I prefer Abercrombie, and not because he’s so great, but because I don’t want to give a religious zealot like Duke “I own a” Bible — to borrow a play on words coined by a reader — any authority over the workings of the state.

The proposed Constitutional amendment to allow an appointed school board is a no-brainer. Giving up your right to vote on anything is a step backward. Besides, voting is the only way to keep people even marginally accountable and get rid of them when they’re blowing it. I mean, don’t you wish you could vote Ron Agor off the state Land Board?

Similar reasoning also causes me to reject a proposed County Charter amendment that would allow Councilmembers to serve two four-year terms, rather than four two-year terms. Come on. Would you really want to see dead wood like Daryl Kaneshiro lodged in there for another two years? Or have to pay for a special election to replace Lani Kawahara when she decided she couldn’t hack it?

Yes, best to put Council members up for a vote every two years. That gives us a chance to remove marginal new members — sorry, Dickie, I like you personally and appreciate your candor, but you’re just not a great Councilman — before they get too entrenched. It also affords us the opportunity to get rid of incumbents that really need to go.

Which brings me to Tim Bynum. I thought about voting for him the first time he ran, and lost. My ex-husband, who used to work with him, said he was a nice guy. And he is — if you can get past his propensity to whine and repeatedly pat himself on the back. No ha’aha’a (humility) with that guy.

When Tim finally did get elected, in 2006, I was hearing a lot of talk about how we — as in mainland haoles — needed to elect a haole to represent our interests on the Council and fight the “old boy” system. They saw Tim as "the great white hope."

Of course, Tim is actually a product of that very same system, seeing as how he was appointed by the late Mayor Baptiste to run the totally worthless, do-nothing county “outreach” program known as Ka Leo O Kauai — a position Tim lists as Community Response Specialist on his resume.

To me, that was a major red flag, but apparently others were willing to overlook it because Tim was saying things they wanted to hear, things like preserve ag land, protect beach access, make government open and transparent, listen to the people.

He’s still saying all those things. Heck, just look at his campaign flyer, the one that makes it seem like former county planning director Dee Crowell and Kauai Democratic Party Chair Steven Nishimura endorsed him, even though they didn’t. But after watching him in action these past four years, I know it’s just rhetoric.

Let’s take a look at some of Tim’s pledges, starting with his vow to protect ag land. Here’s his stance, as articulated in The Garden Island’s candidate questionnaire:

Specifically the GP [General Plan] stipulates that we support smart growth in and adjacent to our current towns, and that we preserve the land in-between (read ag land). Yet we have seen too little development in-town where it may be affordable for people who live and work here, and a huge amount of development away from town (pretending to be farms) that is now only affordable to wealthy people who may want to move here.

What Tim fails to mention is that he himself bought a lot in one of those pretend farm developments, built a house and let someone graze a horse in the yard to further the pretense.

What's more, he is the subject of a formal complaint alleging that he’s been operating an illegal dwelling unit within his single-family residence. However, when a county inspector went to check it out, Tim refused to give him access to the house — even though he had signed a use permit agreeing to periodic inspections. Tim also failed to respond to numerous susequent written requests for access. As a result, Tim was issued a zoning compliance notice and the county will seek a search warrant to conduct the inspection.

This sort of refusal has happened only once before, by a man who had 20 unpermitted houses on his property, and it's certainly surprising to such behavior in someone sworn to uphold the law. Normally, people want to give an inspector access to show they're in compliance. Unless, of course, they're not. Perhaps that's why Tim never replied when I asked him for a comment.

In further supposed support for farming, Tim recently introduced three bills related to agricultural lands. But because he has failed so miserably at consensus-building (another one of his campaign pledges), the Council nixed them immediately. However, his oft-stated quest to reduce density on ag land — which would hit family farms hardest — instilled sufficient fear in some large ag land owners that they moved to lock in their density, including CPRs, while they could. As a result, speculator/developerTom McCloskey now has 1,000 units all lined up and ready to go in Kealia.

It’s noteworthy that Tim, once viewed as a green, environmentally friendly candidate, did not receive the Sierra Club endorsement this year. They’ve looked at Tim’s record and know where he stands.

So I was really kind of startled to see some of the people who contributed to his campaign, people I know to be concerned about the environment, progressive thinkers. It seems the image Tim has created — an image not supported by reality — still endures.

A more accurate reflection of his constituency and values can be found in the $1,000 contribution he got from the vacation rental folks. It came after he pushed through a bill to grandfather in such uses on ag land, much to the dismay of people who had been following the law, and thus are now effectively aced out of such lucrative enterprises. So much for his campaign pledge to “base decisions first on what is best for Kauai residents.”

Regardless of how you feel about him handing speculators like Michele Hughes an incredibly valuable gift, Tim’s revision of the original TVR bill undermines the government transparency and public participation he supposedly holds dear.

For example, the original bill said the public and planning director may initiate proceedings to revoke or modify the terms of a non-conforming use certificate or stop an unpermitted use. His bill edged the public out of that process. Tim’s bill limited the planning commission’s review of TVR applications, thus removing yet another means of public participation. And since the county is no longer posting applications on its website, as it did with the first bill, the public has no easy way of knowing who is applying or getting approved.

Tim’s bill also nixed the requirement for mandatory inspections of TVR properties; indeed, his own actions show what he thinks of the inspection process. It also wiped out the prohibition against interior lock-outs, which opened the door to multi-family vacation rentals. And despite his oft-repeated claim that his bill stops vacation rentals, it actually will add more by re-opening the door that was firmly closed on ag TVRs and extending the application process for another year. This allows a whole new batch of owners to slip through, including some whose properties were previously denied.

All in all, it's pretty hypocritical for someone who wrote, in his response to the previously mentioned questionnaire:

I believe that public participation in government is essential, and helps us make better decisions. For that reason I have tried to improve the public process, specifically by advocating for easy access to public documents, release of county attorney opinions of Law, and public broadcast of all council proceedings — including budget hearings. Frankly, I am dismayed that this has been contentious and difficult.

Perhaps it was contentious and difficult because Tim, who was later joined by Lani, never sat down with the Council Chair or sought support from other Councilmembers to work out such a change. Instead, they turned it into a self-serving and very public crusade of “us against them,” making a mockery of his campaign pledge to “strive for consensus.”

And when asked at a public forum what he would do to ensure that all policy-related deliberations take place in public rather than in executive sessions, Tim replied that the vast majority of executive sessions are important. Compare that to Councilman Derek Kawakami’s response:

Councilmembers can walk out of executive sessions, he said. “You need to have a certain number of councilmembers in the executive session for it to be operating.”

Tim also pledged to support beach access, by which he apparently means that band of concrete known as The Path. I know a lot of folks like the Path. But will they still want to use it when it’s overrun by tourists, like Kee Beach? Let’s not forget that three more hotels, and thousands of guests, are slated to come on line in the Wailua corridor. Is the Path truly for the people, or a nice new amenity for the eastside resort owners? Perhaps a clue can be found in comments Tim made earlier this week:

“The path is a wonderful amenity for our island — a real win-win. This segment in particular will help ease traffic as visitors walk to dinner and shopping and spend days recreating on the path instead of driving.”

We have a chance, with this election, to make some significant changes on the Council. Two slots are open and all but one of the incumbents — Derek Kawakami — is vulnerable. Let’s vote in some promising newcomers, like Nadine Nakamura and KipuKai Kualii, and shake up the dynamics on the Council.

If you're just voting (white) race, there are other haole guys running. Give one of them a chance. The man that some once viewed as "the great white hope” should now be cast out as "the great white nope.”

Monday, October 25, 2010

Musings: Understanding Politics on Kauai

Yesterday morning I was treated to a scarlet ball rising out of a placid sea as a round, white moon peeked around the corner of Waialeale, where a smoldering pile of red and black clouds hovered just above the summit in an otherwise clear blue sky.

By this morning, everything had changed. The mountains were socked in and the sky was low and dense with gray, save for a flash of purplish-orange when the sun made a brief appearance before it was swallowed up by clouds that hold the promise of some much-needed rain.

It’s the final week before the election, the time when politicians step up their promises and the electorate should be looking closely at whether past promises have been kept, forgotten or flat out broken. It’s also the time when Honolulu media branch out to the Neighbor Islands in an attempt to freshen up city-centric political coverage that’s grown a bit stale.

Such was the case with Civil Beat, which today has a piece that purports to assess how the governor’s race is shaping up on Kauai. You can’t read it, unless you’re a member, so I’ll share a few of the highlights.

Actually, they might better be termed lowlights, like all the space the reporter gave to perennially defeated Republican candidate JoAnne Georgi, who talked about how “the Christians need to rise up and say we need to vote for candidates and vote for ones they believe in.” That was right before she repeated some of the common folklore about the Superferry protests, claiming it was just 200 to 300 noisy people who “punctured tires.”

Then he has Councilman Jay Furfaro saying that what's key to understanding Kauai is a general plan that only allows development in certain areas of the island — essentially, the four resort areas of Poipu, Lihue-Kalapaki, Kapaa-Wailua and Princeville.

Except Jay left out the part about how that’s been ignored, thanks to vacation rental bills that turned the entire island into a resort and gentrified agricultural subdivisions that have sprawled into all the open space in between. Here’s the key to understanding Kauai: if you’ve got money and the good old boys in your pocket, you can get whatever you want.

The reporter then maintains — quite humorously, to those of us who live here — that The Garden Island “offered a useful inroad into understanding Kauai's politics.” In fact, TGI doesn’t offer a useful inroad into understanding anything, except school sports, seeing as how it’s a compilation of press releases reprinted verbatim and articles that are so badly reported and written that readers often use the comment section to correct the mistaken impressions these stories leave.

He then asserts:

Community, family, the environment, civic participation — that's Kauai.

Um, no. Community, family, bitter, ugly fights about the environment and a dearth of civic participation — that’s Kauai.

By way of ascertaining just how conservative Kauai is, the reporter notes that three of the seven FM stations on his rental car dial were Christian themed — yeah, but they certainly aren’t the most popular stations — and a lot of people on the Westside drive pick ups trucks and wear cowboy boots. OK, but that’s Kauai style. It doesn’t mean they think like people in the Midwest, even if the reporter did say it looked “a lot like western Kansas.” Well, except for the ever-present mountains and ocean.

He did finally stumble on something, though he inexplicably buried at the very end of the story, and those were the points raised by Dee Morikawa, the woman who thankfully ended Rep. Roland Sagum’s piteous tenure in the Lege.

As Dee noted, voters on Kauai aren’t locked into party loyalties, but instead make decisions based on the person — you know, who you know and/or are related to and/or are told to vote for.

Which leads to the issue of race in the gubernatorial race, something I touched on in a post last week:

"Haole versus Hawaiians — they won't say it, but that has something to do with it," she said.

Now that’s the key to understanding politics on Kauai.

Friday, October 22, 2010

Musings: Only Ourselves to Blame

The moon, which will be full upon rising tonight, was high in the sky and almost perfectly lined up with Jupiter when Koko and I stood beneath its light last night, me petting the horses, she sniffing the scent history of the place.

This morning, as we prepared to walk out into the waning darkness, a barn owl screeched and I realized I haven’t heard one single Newell’s shearwater this season. I used to hear their distinctive wheezing-braying calls often, right after sunset or in the pre-dawn hours, but this year, nary a one.

I’ve found several dead ones, though, including as recently as a week ago when I passed one lying between the cones of the contra lane on Kuhio Highway. Like all the others I’d seen, it was lying beneath a death trap of a dozen utility lines strung between poles.

It was a sight that filled me with deep sorrow, but might have made Rich Rapozo happy. He’s been getting a lot of publicity, thanks to his oh-so-clever “Buck the Firds” tee-shirt and ugly warning, printed in a widely distributed AP story, that some people won’t pick up the fallen fledglings this month and next because they’re angry about Friday night football games being cancelled.

Hey, Rich, I realize you and the other football families are unhappy and I sincerely do sympathize. I know, from seeing the impact on a friend of mine, that the cancellation has been a drag, a disappointment and even a hardship. But please, don’t take it out on the birds. They’re just doing what they’ve been doing for millions of years, long before people came to Hawaii and greatly disrupted their way of life. If you want to lay blame, lay it where it belongs: on KIUC, the county — heck, even you and me, since we're the consumers of those services.

KIUC has known for more than 20 years that its power lines are killing birds, but it just blew off the problem until it finally got sued, as did the St. Regis, which recently settled by agreeing to reduce its nighttime glow and contribute about $150,000 to habitat restoration projects around the island.

Similarly, the county was warned more than five years ago to shield the stadium lights. It also blew off the problem, flagrantly flouting federal law until prosecutors put the county’s feet to the fire this year.

But rather than publicly acknowledge and accept responsibility for its own foot dragging, the county threw the birds under the bus. Friday night football games were cancelled — something that state and federal wildlife officials had never requested — and so began the backlash against the birds.

It’s a part of a backlash against native species that extended as well to reviewing the management plan for the Hawaiian Humpback Whale Sanctuary and a proposal to possibly add turtles, monk seals and corals to the list of species protected in it.

Suddenly you had people like Greg Holzman — a bottom fisherman whose industry keeps pushing Wespac for higher fishing quotas, even as scientists warn the stocks are crashing — whipping up hysteria by claiming that the feds were going to impinge on folks' ocean-going freedoms.

He was joined in his crusade by another free entepriser, Scott Mijares, who recently hosted a KKCR radio show in which he railed against federal plans to “take away our culture." I can only assume he was referencing his own transplanted Southern California Republican surfer culture.

Both he and Holzman, who also moved here from America, complained bitterly that “people from outside Hawaii" would have a say in what happened in the sanctuary, because public comments were being accepted from around the world.

As a result of these widely publicized hysterics, a friend approached me last week with a petition to sign. It stated that the undersigned supported the educational functions of the sanctuary, but not any expansion. He’d been motivated to seek signatures after being told the feds planned to ban all shore fishing on Kauai — no diving, no pole fishing, no net fishing, no nothing.

I tried to convince him his information was wrong, but as a fisherman who often feeds his family with his catch, he wasn’t taking any chances. And besides, that’s what he’d heard.

“What’s next?” asked another friend who was listening to our discussion. “Communism?”

I imagine many hundreds of signatures were collected in such a manner. Yet I have to wonder what value they have, what weight they'll carry, seeing as how they were gathered under false pretenses.

I understand animosity toward the feds, especially here in colonized Hawaii. Still, it wasn’t enough for Holzman and his tour boat buddies to blast the feds and the sanctuary and moan about losing their “rights.” They also began talking stink about the animals, spreading shibai like monk seals — one of the world’s most critically endangered marine mammals — are plentiful and humpback whales, which don’t even feed here, are becoming so abundant they’re threatening to outstrip the local food supply.

When it comes to the natural world, ignorance abounds and is intentionally disseminated by those — like Rich Rapozo and his simplistic “Buck the Firds” shirt — who just want to do what they want to do, without looking at the bigger picture.

What the bigger picture shows us is that far too many creatures have already been pushed to the fringes of their habitat, the brink of extinction, and if we keep pushing, they’re going to be gone.

I'm sure a lot of folks don't care if the animal world is reduced to pets and cloned livestock. But diminishing biological diversity has an affect on humans, too. Everything has a place and a role in the web of life, and as species decline and disappear, the overall ecosystem functions less and less efficiently.

We really don’t know where the tipping point lies, that place of no return where it all falls apart. But if we keep on pushing, we just may find out.

And we won’t have anyone but ourselves to blame.

Wednesday, October 20, 2010

Musings: Slogging Along the Campaign Trail

One stellar October day just keeps flowing into the next, prompting me to enthuse, when I called Farmer Jerry yesterday for a story I’m doing about water, “Well, it’s another gorgeous afternoon!”

“Yes, it is,” he said in a chipper voice. “Unless you’re a thirsty plant desperate for water.”

I always appreciate people who can make me laugh and offer a different perspective on things.

Later, returning with a friend from the beach, where the pohaku are donning their autumn coats of limu and the sand is starting to slip away to wherever it spends the winter, I mentioned that I was thinking of attending the Abercrombie-Aiona debate that evening.

“Do you want to go?” I asked.

He gave me an incredulous look. “Are you kidding? What a waste of a beautiful evening.”

We both agreed we already knew how we were going to vote — Abercrombie — although when I expressed surprise that the race is close, wondering if there was a trend toward conservatism in Hawaii, my friend, who is local, explained it this way: “No way. It’s who you gonna vote for, the locals or the haoles?”

Then we got to talking about the Council race.

“No need vote for Derek, because he’s gonna get in no matter what,” my friend said. “And you just watch. Kaipo’s gonna pull it off. He’s got a lot of supporters out there.”

We also agreed that Nadine Nakamura, JoAnn Yukimura, Mel Rapozo and Jay Furfaro are going to make it. So then who best to round out the Council, perhaps by plunking for one candidate? I like KipuKai Kualii, because he’s a caring person who supports progressive issues, has a strong sense of community and knows how to organize and work with a group. My friend is leaning toward Ted Daligdig, saying that earning the rank of colonel shows he’s smart, works hard and knows how to play politics.

Because in the end, we agreed, if a politician can’t build political alliances and work with others to get his or her bills passed, they’re useless, no matter how grand their dreams.

So instead of continuing on the campaign trail to the debate, I took Koko walking through the splendors of the mountain trail, returning by the light of a waxing moon cozying up to Jupiter as the last smoldering remnants of day were devoured by the blackness of night.

And it was confirmed I made the right choice when I read about the rather ho-hum debate this morning on Civil Beat. It offered a succinct rundown, although it seemed the reporter kind of gave the gubernatorial candidates short shrift. Guess we’re all wearying of the rhetoric.

Of note in the LG debate was the inclusion of “fresh topic” in reference to GMOs. Does that mean the subject never came up until the candidates got to Kauai? Anyway, both Schatz and Finnegan took the industry-friendly stance of opposing GMO taro, but supporting genetic modification of other crops.

Not so fresh was The Garden Island’s splashy report today on the $1 judgment in the Brescia vs Kaiulani Edens-Huff case, which I covered a week ago. Unfortunately, Paul Curtis still got it wrong, writing:

Although Brescia redesigned plans for the home to avoid directly disturbing the remains, protesters had camped on the public beach near his property and, in at least one case, were arrested for trespassing on the property where Brescia has been trying to build a home for seven years.

It’s been 10 years, Paul, and there’s no more “trying.” The house is pau already. And not only does Bresica’s house sit right on top of seven burials, a number of iwi were damaged by heavy equipment during an archaeological inventory survey. If that’s not “directly disturbing the remains,” I don’t know what is.

Monday, October 18, 2010

Musings: Different Values

The moon, big and getting bigger, and Jupiter, bright and getting brighter, were already nearly overhead before the last smudges of orange left the western sky, signaling the end of a beautiful day.

By morning, when Koko and I went out walking, both celestial bodies had disappeared, leaving behind a few twinkling stars, some drifting towers of clouds and smudges of orange in the east, signaling the start of a beautiful day.

“Early bird,” said one man I often encounter on my walks.

“You, too,” I said, and we both laughed, recognizing the value of being out when the world is still calm and quiet.

Seems other folks seek a different kind of value here on Kauai, as evidenced by an auction held last week in which six properties around Kilauea were sold. According to the PRNewswire, five of the properties are “within a private, gated subdivision adjacent to a reservoir on Kauai's lush North Shore known as Mali'e Wai, and the other which is known as the Villa at Secret Beach on exclusive Kauapea Road.”

All are on agricultural land that once was productive and now has been moved into the realm of “private” and “exclusive.” And all were sold with the help of Neal Norman, yet another one of those who talks about how much he loves Kauai and supports farming — even as he caters to the speculators who push land prices out of reach of farmers.

In a press release sent out about the auction sale, Neal says the properties hadn’t drawn any interest for 16 months, but after pairing with Concierge Auctions, gee, they were snapped right up.

Was it that, or was it the fact that the County Council had just legitimized the use of these properties as expensive vacation rentals? So I did quick Google search and voila, there’s Malie Wai — located on the “pristine” (um, if you say so) Kilauea Farms reservoir — which rents for $4,725 per week. As the website notes: “For larger groups rent together with Lake House II,” which goes for $6,000 per week.

Also included in the sale were 11 acres of “lakefront acreage,” which originally was listed for $900,000. It includes “an agricultural accessory building:”

This spacious, well-built structure with 1.5 bath, kitchenette, loft, and generous entry deck is currently used as an Ag/office. The Lakefront Acreage currently retains the guest house building right for the Mali’e Wai development: it is zoned for one building of 500 sq. ft. or less, to comply with County guest house regulations, however, additional agricultural accessory buildings can be permitted for this parcel.”

Or in other words, you can pass off more fake farm stuff to increase your density and the county won’t say a word.

As for the other property sold, The Villa at Secret Beach, why, that’s one of Michele Hughes’ vacation rentals. It goes for $1,850 per night. She already sold her Anini Vista TVR, Pueo Point, in August — a month after the law was changed to allow vacation rentals on ag land.

Even though she talked about how much she loved Kauai when she was asking the Council to change the law, her true sentiments were revealed in the press release (hat tip to Brad Parsons for the link) circulated by PRNewswire:

"Kauai is a special place to develop and own real estate, and I look forward to future projects on the Island," stated the Villa at Secret Beach seller and real estate investor Michele Hughes of the Michele Hughes Company.

Yeah, cuz it’s such easy pickings and they’re such a bunch of chumps you can pull off any kine.

My, what a lovely lucrative gift the County Council handed to the well-heeled developers and speculators on our island. But let’s not forget the rationale of Councilman Tim Bynum, who introduced the bill:

“Those of you who ordered your economic life, your well being, around the status quo, it’s not fair” to tell you to stop.

No, Tim, we wouldn’t want to throw a wrench into the lofty financial goals set by Michele, Neal and Malie Wai seller Jeff Smith.

While we’re on the topic of the vacation rental bill Tim drafted, it kind of blows my mind that we’re allowing people to apply for a use that could net them thousands of dollars per week, yet they don’t even have to pay an application fee. I mean, Planning Director Ian Costa earns over $100,000 per year. Don’t you think we should charge folks a fee to at least partially offset the cost of having him glance at their application?

And on a related note, remember how County Attorney Al Castillo and two of his beer-bearing deputies showed up, unbidden,, at the house of Councilman Dickie Chang one night to counsel him on the legalities of the vacation rental bill? By way of explanation, Deputy CA Mike Dahilig told me:

“We may even ask to sit down with Council members if we feel there is some confusion about the issue raised about them on the [Council] floor,” Mike said. “We’re going to advise and counsel, but never take any type of action to tell them how to vote. If we feel that there is some issues being raised that are not on point, we will raise issues with them.”

Yet even after Al advised Councilwoman Lani Kawahara to request an executive session when she complained of being harassed by Council Chairman Kaipo Asing, Al totally caved in the face of minimal resistance. According to the July 22, 2009 Council meeting minutes:

Mr. Castillo: Council Chair, Councilmembers. The subject
matter is an unanticipated matter and it does involve questions and issues
pertaining to the powers, duties, privileges, immunities, and liabilities of this body
under Chapter 92. I request that we go into executive session to discuss this matter
that falls under 92-5 subsection (4).
Mr. Bynum moved to go into executive session, seconded by Ms. Kawahara.

Chair Asing: There has been a motion to move into executive
session, there has been a second. I will not support going into executive session at
this particular time. I have not had an opportunity to make my presentation. I have
given the floor, the courtesy extended to both Councilmember Bynum and
Councilmember Kawahara, so I would like to finish up with my presentation. I
believe that it is fair and so I cannot move to go into executive session. I cannot
support going into executive session at this time.

Mr. Castillo: And Council Chair, I just wanted to say that means
that maybe at a later time today.

Chair Asing: Yes... well, maybe not even today.

Mr. Castillo: It is a totally... it might be a... it is a totally
unrelated to... not totally unrelated... it is unrelated to the presentation, but I will
just go take my seat.

So the CA’s office will fight for the rights of the TVR owners, but not its own Councilwoman.

Guess we know who, and what, is of value in this county.

Saturday, October 16, 2010

Musings: Grow Up

I’ve been thinking a lot about Councilwoman Lani Kawahara and her recent public announcement that she'd been the victim of harassment while serving on that panel.

It’s clear, given the large settlements the county recently paid out — and reports that several other settlements have been approved in secret — that the county has a major problem with sexual harassment and hostile work environments.

That fact is borne out by the county’s own revelation that the county attorney’s office, police department and liquor control had conducted no employee training on this topic, even though all three have been named in discrimination and harassment suits. Nor had such training been done for employees in the fire, housing and finance/risk management departments.

That’s inexcusable in this day and age, especially given the county’s abysmal record in this area. It’s also bizarre, considering the county’s deep-seated paranoia about liability in beach access and land planning issues.

So it’s great that Lani and her Council ally, Tim Bynum, brought up this issue in public session. The county obviously needs to get on it.

But that bigger issue unfortunately was eclipsed by Lani’s decision to throw her own experience into the mix by referencing an incident with Chairman Kaipo Asing that allegedly happened well over a year ago. Furthermore, it was an incident that the police initially determined to be unfounded and that she herself chose not to pursue, reportedly telling the cops four months later that Kaipo had not bothered her since.

Still, Lani apparently felt so deeply victimized that she tearfully brought up the alleged incident at a public Council meeting some 14 months after it happened. So the question is, why didn't she speak up sooner? She didn’t have to wait for a related topic to come up on the agenda. She could have made a public statement at any time, and I’m sure she would have found support. By doing so, it might have turned into an opportunity to make some positive changes that could have protected other Councilmembers from harassment in the future.

Instead, by waiting until just a few weeks before the election to air her allegation — and let’s not forget that it remains an allegation — it comes out looking like a political attack on Kaipo. And since she’s nearly out of office, she has lost all opportunity to affect any kind of positive changes in the county in this regard. So what, really, is the point of bringing it up now?

If Lani felt the Chair was harassing her, she should have brought it up with the other Council members, sought mediation, made an ethics complaint or taken some similar action. Calling the cops about an alleged hand gesture was overkill and ultimately a waste of everyone’s time, especially since she later withdrew the complaint.

That’s not to say there’s no problem on the Council. Anyone who has watched the current Council in action knows that it’s a deeply dysfunctional body with some pretty ugly interpersonal dynamics. Lani, Kaipo and Tim have been engaged in power struggles that haven’t served the public interest in any way, and the other members haven’t stepped in to stop it.

We need to restore some decorum to the Council chambers. I’m not talking about the kind of forced decorum you find in court, where the judge can lock you up if you don’t behave, but decorum based on mutual respect and consideration. I do see that with Jay Furfaro and Derek Kawakami, even though I don’t always agree with their votes, and since it looks like both will be re-elected, I hope one will be named chair and restore some dignity to that panel.

I’d also like to see people in general get away from this trend of calling the cops for every little thing — especially things that people really should be working out on their own.

The other day at work, two cop cars showed up to talk to a woman. Seems they’d been called by a man who didn’t want her to stop and chat with him anymore when she was out walking. They're called all the time for extremely minor stuff, which is why petty disputes turn into petty criminal charges that clog the judiciary. I saw that the other day in court, too, when a man was sentenced for harassment after cutting electrical power to a beach pavilion when a woman refused to turn down her music.

Really, people, do we need to call the cops for every little thing? Have we gotten to the place as a society where we can’t resolve even our smallest disputes without calling in a man with a gun?

Friday, October 15, 2010

Musings: Don't Ask

It started out as a gray kind of morning, but that state of affairs didn’t last long. As soon as the sun began cresting the horizon, the world turned lavender and then the eastern sky blazed in a fiery red-orange that cast everything — the jagged green ridges of Makaleha, the moist air, the pastures — in an ethereal rosy glow.

The Garden Island today has a story about the not so rosy statistic that a quarter of all Kauai real property transactions over the last 20 months are distress sales. Auwe, I thought. Must be some local families hurting.

But the reporter instead relayed the sob story of a couple whose plans to retire here on the income from their Haena vacation rentals — a place that was never even supposed to have such uses — went awry when tourism tanked. So in the end, they had to cut the price of their overbuilt Kalaheo “dream house” from $2.2 million to $750,000 to dump it in a short sale. Now they've moved on to Oregon.

Oh, poor tings, dem. I know the writer is new to Kauai, but really, can she be so clueless as to feature a couple whose situation elicits so little sympathy? One can only hope that more of the `aina exploiters and speculators are taking it in the shorts.

Curiously, the paper did not report the full story behind Councilwoman Lani Kawahara’s harassment claim today, as promised. However, I provided an update to yesterday’s post that gave the details of the July 2009 episode that prompted her to call the cops on Council Chair Kaipo Asing for a gesture he allegedly made that could be interpreted in many different ways.

Moving on to the issue of true harassment, it’s really hard to see how the Obama Administration can justify its plans to appeal the ruling that put an end to the military’s discriminatory “don’t ask, don’t tell policy.” That is, until you read the comments by Defense Secretary Robert Gates that make it clear the Pentagon still hasn’t gotten the message that homosexuals have the same Constitutional rights as heterosexuals:

Gates said the Pentagon needs until Dec. 1 to resolve questions such as whether heterosexual troops would be required to share housing with gays and whether the military would be required to provide benefits for same-sex partners of service members.

Huh? The answer to both is, of course!

Continuing on the topic of just how screwed up the military is, reported that Martin Seligman, the same psychologist who helped develop torture techniques, just got a $31 million no-bid contract to teach soldiers how to better cope with the psychological strain of multiple combat tours.

Seligman is most famous for his work in the 1960s in which he was able to psychologically destroy caged dogs by subjecting them to repeated electric shocks with no hope of escape. The dogs broke down completely and ultimately would not attempt to escape through an open cage door when given the opportunity to avoid more pain. Seligman called the phenomenon "learned helplessness."

Government documents say that the goal of Bush-era torture was to drive prisoners into the same psychologically devastated state through abuse. "The express goal of the CIA interrogation program was to induce a state of 'learned helplessness,'" according to a July 2009 report by the Justice Department's Office of Professional Responsibility.

Gee, what a guy. Psychologically destroying caged dogs to figure out how to do the same for caged humans. And those are the kind of fucked up people getting ahead in the fucked up world of DOD. Kinda makes ya wonder how they all sleep at night.

Oh, and while we’re on the subject of psychos, like Seligman and the folks who came up with the idea of using toxic, radioactive depleted uranium in weapons and tank armoring, a recent article and radio program delve into new research that shows DU can travel up the nerves in the nose right into the soldiers’ brains:

There is no cure and no treatment. The VA knows it and is stonewalling. They fired the only doc who stood up to them on DU. Word travels fast among the cowed medical staffs. So, the Vets get slapped with some fake diagnosis and sent to the shrink or told there is nothing wrong with them.

Major Doug Rokke, Ph.D, Ret., former Director of the Pentagon’s Depleted Uranium Project, puts it succinctly “It [DU] is killing our own troops.”

But hey, don’t ask. Cuz even if you do, they ain’t gonna tell.

Which brings us, finally, to a story in Navy News about how the feds bought the two Superferries real cheap. It states, emphasis added:

The ships are the largest commercial vessels built by Austal USA which is one of two competitors bidding for the Navy’s Littoral Combat Ship program. Austal USA already is building as many as 10 Fortitude-class Joint High Speed Vessels, which are similar to the Superferries, for the Army and Navy.

Meanwhile, Austal USA’s JHSV program got a boost Oct. 12, when the Navy announced a total of $204.6 million in construction orders for the fourth and fifth ships. The yet-to-be-named JHSV 4 will be built for the Navy, while JHSV 5 is intended for Army use. Both ships should be delivered by the end of 2013.

Gee, I remember how I asked the Superferry folks if the big boats were prototypes for military craft and they chuckled and said that was so far-fetched, ha ha, hee hee, guffaw, chortle.

So really, when it comes to military stuffs, don't bother to ask. Cuz even if you do, they'll lie.

Thursday, October 14, 2010

Musings: Attention Grabbers

I hadn't planned to blog today, because I'm in a hurry, but while doing a quick browse of The Garden Island, two stories caught my eye.

One, of course, was the cryptic piece about Councilwoman Lani Kawahara requesting time to talk about sexual harassment in the county. Then she went on to use it as a forum to levy her own public claim that she feels she's been harassed on the Council.

The article brought to mind two questions: first, if this happened at Wednesday morning’s Council meeting, couldn’t the paper have managed to file a full report in today’s paper, rather than print a teaser that then starts the rumor mill pumping? It’s not like they had any breaking news to cover or anything.

And second, if Lani filed a police report back in JULY, why is she waiting until three weeks before the election — an election in which the alleged perp is running hard to keep his seat — to make her complaints known? Why not mention it when she announced she would not be seeking re-election? Or was she waiting until she had access to the TV camera? And how fascinating that she’s dragged Tim Bynum into it as her champion.

Update: Here's what reportedly happened. It was in July 2009 — that's right, 2009 — during heated discussions over the "open government" debate and Tim and Lani's website. Tempers were starting to flare. The Council took a recess, and Lani claimed that Council Chairman Kaipo Asing looked at her, pointed at her and ran his index finger across his throat, which she interpreted as a threat to slash her throat. She freaked out and called the cops, who came and took a report and calmed her down.

Anyway, it looks like Lani and Tim are finally getting in some public cracks at Kaipo. Or as the old saying goes, revenge is a dish best served cold…..

The other piece was on the excessive police heat at last weekend's Homegrown Music Festival.

A friend happened upon the festival while out riding his motorcycle on Saturday evening and said he was stunned, upon leaving the event a few hours later, to see six police cars there, with the cops hassling people and asking for the names of those who were entering the event. He couldn’t see any reason why they were there, as there was no violence, no traffic jam, nothing. And since it was only 9:30 p.m., he didn’t see why it would register a noise complaint.

Then the next day, when he rode his motorcycle past the event, he saw six cop cars there again.

“They were the ones blocking traffic, putting tickets on cars,” he said. “I couldn’t see any reason for the tickets. The cars were all off the road and going the right way. It just seemed pretty heavy-handed."

And apparently it was, with organizer Dove Liddle arrested for disorderly conduct because he didn’t snap to when the cops told him to turn off the sound and some 60 traffic citations issues for super petty stuff.

Maybe the real reason why the cops showed in such force and stayed there is the same reason why they swarmed the Damian Marley concert a few years back and ticket cars belonging to people attending reggae concerts at the Taro Patch in Anahola.

It’s got nothing to do with “ensuring the safety of the concert-goers, those traveling through the Moloa‘a area, and the surrounding property owners,” as Chief Perry claimed in the paper.

Let’s face it. It’s an anti-marijuana thing.

Wednesday, October 13, 2010

Musings: Another Day, Another Dollar

Nearly two years of litigation ended yesterday when Joe Brescia, who built a house atop ancient burials at Naue, asked for and was awarded just $1 in damages from four defendants accused of civil conspiracy, trespassing, slandering his title and causing him financial harm.

As Andrew Salenger, Brescia’s attorney, told Circuit Court Judge Kathleen Watanabe via speaker phone, the law does allow a nominal award in recognition of the “technical injury” suffered by his client.

“I want to thank Brescia for not taking my money as he already took our land, our kupuna and all the other artifacts that were down in there,” said Andrew Cabebe, one of four defendants who will have to pay a share of the damages.

Kaiulani Edens-Huff asked for a change of venue, saying she is governed, as a Hawaiian national whose nation is occupied, by the Army Field Manual and Geneva Convention, not state court. “All rulings against me, even a dollar, are evidence of crimes against not only me, but the entire Hawaiian nation,” she said.

Brescia originally filed suit against 17 persons following a series of protests against the construction of his house that began in the summer of 2008. He never prevailed on his claims in court. Instead, he won default judgments against Cabebe, Edens-Huff, Hale Mawae and Dayne Gonsalves when they failed to appear for court hearings.

Edens-Huff was originally hit with damages amounting to several hundred thousand dollars, but that award was set aside pending the outcome of a trial against several other defendants.

The trial was averted when Louise Sausen, Jeff Chandler, Nani Rogers, Jim Huff and Palikapu Dedman signed settlement agreements. Salenger yesterday said Brescia also was dismissing charges against Hanalei Colleado, Andrew Perez, Ehu Cardwell, Kelii Collier, Skippy Ioane, Hanaloa Helela and Palani Kaauwai, who were named in the suit, but never served. Hanalei “Hank” Fergerstrom was earlier dropped from the suit.

As part of the default judgment, Cabebe, Edens-Huff, Mawae and Gonsalves, who never played any role in the protests against Brescia’s house, are prohibited from going to the site.

But Cabebe, who said he entered the court as a citizen of the Polynesian Kingdom of Atooi, which is led by Gonsalves, proclaimed both his innocence and his disdain for the default judgment against him.

“I stand here today not guilty,” he said. “I was brought to this property to protect my cousin [Edens-Huff, who was camping on the beach adjacent to Brescia’s lot]. I went there as a spiritual advisor. I went there for prayers. I did not want to go there. Who in their right mind would go to a graveyard to sleep? I had to go because I was called there by my ancestors. I fought them for weeks, but they would not let me alone until I submitted.”

After thanking Brescia for seeking nominal damages — “he’s finally come to his senses” — Cabebe said he answers to a higher power than the order Brescia won in Circuit Court.

“I don’t care what he says, I’m going to that property to do what I need to do for my ancestors,” Cabebe said. “I was called there and I don’t plan on leaving.”

Responded Judge Watanabe: “Let me just say, Mr. Cabebe, if you should consciously make a decision to defy any court order, which would include any kind of stipulation by the parties, you will have to be prepared to deal with the consequences, and I’ll leave it at that.”

Edens-Huff, while saying that Brescia’s decision to seek just $1 in damages was “very generous,” also noted that “my ancestors would never allow the destruction of a leina.”

Opposition to Brescia’s house was particularly vehement because the lot has at least 31 known burials, seven of them directly under the house. Cultural experts believe the site, which sits on a point, was a leina, a place where spirits jumped into the netherworld, and so is extremely sacred and likely to contain even more iwi kupuna than were disturbed for the house construction.

“In my great-grandmother’s time, to disturb a burial was punished by the crushing of a skull,” Edens-Huff said in court.

Tuesday, October 12, 2010

Musings: Unanswered Questions

The sky was demure, streaked with shades of gray and soft blue, when Koko and I went out walking this morning. The mountains were hidden beneath piles of clouds, perhaps the same ones that had dropped a bit of rain before dawn.

The medicinal smell of camphor hung heavily in the warm, humid air, mingling with the musky fragrance of hinano, the hala blossom, and the sweet, slightly fermented odor of rotting guava. Bees busily worked the inflorescence of a roadside palm, attracted by a scent that wasn’t noticeable to me.

Speaking of bees, Army and civilian scientists working on colony collapse disorder say it could be due to the combined effects of a virus and fungus:

Scientists in the project emphasize that their conclusions are not the final word. The pattern, they say, seems clear, but more research is needed to determine, for example, how further outbreaks might be prevented, and how much environmental factors like heat, cold or drought might play a role.

Or the stress caused by trucking them all over to service industrial ag, where they work in high pesticide environments and are treated chemically for mites, while being fed a diet of sugar water. As a beekeeper friend noted:

I think it all has an effect and this is just the tipping point for them. Since they are like one large organism, they don't have the best immune systems to begin with as the colony vs. the individual is more important. Other studies have found they had up to 21 different viruses and it's affected the genetic level - both RNA and DNA. Bees are a good canary though.

Seems there are still some unanswered questions about that unfortunate phenomenon.

Moving on to other topics, the mayor’s plan to build a new landfill on 120 acres at Kalepa, behind Hanamaulu, may have hit a snag. Several people brought up the issue of how the dump will impact drinking water wells and reservoirs at last night’s public meeting, where Bernard unequivocally told those present, “This is where it’s going, we’re putting it here” — before asking people for their opinion on the site.

Although about 100 people attended the meeting, only about 10 people spoke, perhaps because they were intimidated by Bernard, who stood right next to the microphone where folks had to speak. Unfortunately, neither the mayor nor the technical consultants addressed the questions about water issues.

They’re important, because activities at the site could affect a public drinking water supply, as well as Hanamaulu Bay, which is already classified as one of the top 10 most polluted waters in the nation. The consultants also said that recycling and reclamation projects associated with the dump will use a lot of water. It’s my understanding there’s been a problem drilling viable wells around Lihue, which is why Grove Farm was given permission to use treated surface water for its projects in the Hanamaulu-Lihue area. So is there sufficient water for the dump, agriculture and all the development planned for that region?

Waldeen Palmeira also brought up cultural issues associated with the site, and noted that cultural consultations will be required if federal funds are used for the road that is planned between Hanamaulu and Puhi.

Interestingly, the environmental justice consultant said that since no federal funds will be used for the project, EJ laws don’t apply. But it was also stated that Sen. Inouye has pledged his support for the project, which typically means money.

So it seems that a number of questions still need to be answered about the mayor’s preferred site. And as one speaker reminded him, a meaningful EIS has to also look at alternatives.

Update: I just talked with David Craddick, manager of the Department of Water, about the water issues related to the landfill. He said there are two low production drinking water wells in the vicinity; however, they would not necessarily need to be relocated right away. Problems typically arise 40 to 50 years after a landfill is constructed, so it would be more an issue of conducting ongoing monitoring to "see if there's a problem. If it appears a plume is headed in that direction, you would know to move it [the well.]"

The presence of the drinking water wells "is not definitely not a deal breaker" for the landfill, he said. "It just adds more expense to it, but you would still have to monitor the water in any location. That's because runoff from the landfill eventually "goes down and gets on the lens and floats out to the ocean. We live on an island, so that's the only place it can go."

His primary concern is that costs associated with monitoring and well relocation, if ultimately required, are tied to the landfill's operating costs, rather than imposed on water customers.

Craddick said the landfill is proposed for an area that is "a very tight geological formation, and by tight I mean as far as water producing, which makes it a good location for a landfill. If something gets away from you, it makes it easy to recover it, because it doesn't move too fast."

As far as contaminating a nearby reservoir used for drinking water, Craddick said the only way he could see that happening is if rubbish is burned and the wind blows it into the water. "That's the only way I could conceive it would be affected."

Sunday, October 10, 2010

Musings: Question of Ethics

Last night’s spectacle of a crescent moon nuzzling up to Venus in a soft blue and pink sky as light rays shot out from the cloud-cloaked summit of Waialeale was still on my mind when Koko and I set out walking this morning in the golden glow of dawn.

Makaleha was clear and green, and Waialeale was strategically adorned with apricot-colored puffs that gave her flat top the appearance of jagged peaks. As we headed on to the mountain trail, wind sighing through the trees, we passed a vacation rental on ag land that has been operating unabated for years now, even though it wasn’t until July 28 that the Council approved an ordinance that creates a process for making them legal.

So the Council rewarded the scofflaws, and not long after the vote, the scofflaws apparently rewarded the three incumbent Councilmen — Dickie Chang, Jay Furfaro and Tim Bynum — who were instrumental in getting the measure passed.

In the first two weeks of September, a group known as Kauai Alternative Vacation Accommodation Association (KAVA), which has been pressing to legalize vacation rentals (TVRs), gave $1,000 each to Jay, Dickie and Tim, who also got $100 from Mike Hough, who runs KAVA.

Derek Kawakami, who voted against the bill, received no contribution from KAVA, nor did anyone else running for Council. Kaipo Asing also opposed the bill, but does not accept campaign donations.

These contributions are significant in races where most donations come in under $100. In addition to the KAVA donation, Jay received just five donations of $1,000 each this year. Tim received three other donations of $1,000 or more, and one was from a family member. As for Dickie, he received just one other contribution of that size in 2010.

Such contributions are legal, but are they ethical? According to Section 20.02 of the County Charter:

No officer or employee of the county shall:

A. Solicit, accept or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence him in the performance of his official duties or is intended as a reward for any official action on his part.

So what do you think? Should Tim, Dickie and Jay have accepted those campaign contributions from KAVA?

In another question of ethics, Keith Kamita, chief of the narcotics enforcement division for the state Department of Public Safety, released statistics on medical marijuana users to the media, then went on to publicly question the legitimacy of some of the prescriptions and a doctor who has written many of them:

Today, more than 8,000 people statewide hold medical marijuana licenses, he said. Of those, just 2 percent suffer from cancer, AIDS, Crohn's disease and other debilitating ailments for which the legislation was intended to target, he said.

"The Big Island is our overachiever," he said about the island's 4,665 registered patients. There are 1,751 medical marijuana license holders on Oahu, he said.

Of those Big Island patients, 2,957 received their medical marijuana license from one doctor in Hawi, Kamita said.

"We're not saying he's not treating them, but, I don't know of any doctor able to handle that many patients," Kamita said.

Kamita then went on to belittle some of those had been given a prescription for medical marijuana:

The drug [sic] is also being prescribed to patients complaining of headaches, pain from wearing high heels, dry skin, insomnia and other ailments, he said.

"It's the physicians relaxing and authorizing patients and the law doesn't authorize us to do as much as we can do (enforcement-wise) with other controlled substances," Kamita said, noting officers have no authority to check on a licensed patient [oh, and they do have authority to check on, say, an oxy patient?] unless they come upon plants or other evidence while investigating a separate incident.

So WTF is Kamita doing releasing ANY details about these patients’ medical conditions to the press, much less ridiculing them? And what right does he have to start second-guessing the doctors? He’s a law enforcement officer, not a health care provider. His job is not to critique doctor's prescriptions, but fulfill the mandate of the Legislature, which is to provide people with an access to treatment through the use of cannabis at their doctor's discretion.

One also has to wonder if Kamita is similarly scrutinizing other patients who are given pain relief prescriptions, or singling out medical marijuana patients for public disparagement. Kamita should be reprimanded for his discriminatory remarks, which make it clear that his department is trying to undermine the law, rather than uphold it. Kamita's bad behavior provides yet more evidence of why the medical marijuana program should be moved out of the Department of Public Safety and into the Department of Health.

Saturday, October 9, 2010

KKCR Radio Show Link: Brescia & Shorelines

Here's a direct link to my most recent KKCR radio show. In the first hour, Kaimana and I discuss the origins of the controversy over the Joe Brescia house, and interview Camille Kalama of Native Hawaiian Legal Corp. about the recent developments in the litigation against the State Historic Preservation Division.

In the second hour, we discuss Kauai County's shoreline bill, as well as shoreline preservation and coastal hazards, with international coastal expert Thorne Abbott.

Mahalo to Angus, our engineer, for taping the show and for ace webmaster Laura Christine for posting it on the KKCR archives.

Friday, October 8, 2010

Musings: True, That

The first thing I saw, once my eyes became accustomed to the darkness, was a star shooting between Orion’s belt and Makalii. Later, another star streaked through the sky toward Waialeale, whose presence could be felt, but not yet seen.

Walking through the blackness, Koko and I saw the world wake up as the eastern slowly faded, finally settling on a shade somewhere between baby and robin’s egg blue. Soon after, a few wisps of cloud turned apricot and pink, drifting along above the Giant. Mist puddled and pooled in the hollows of the pasture.

“You’re early,” said Farmer Jerry, when I encountered him toward the end of my walk. “The sun isn’t even up yet. But you’ve already seen the best part of the morning.”

True, that.

He had listened to my radio show yesterday, and said the Brescia saga — 10 years of fighting his house and government agencies tooth and nail, with both the state and county screwing up in the process — was “almost too painful to hear.”

Sigh. True, that.

Native Hawaiian Legal Corp attorney Camille Kalama was our guest, and we talked about the ramifications of this case. I asked about the option of seeking changes in the burial protection law, which so many — including Judge Kathleen Watanabe — have suggested.

It’s not so easy to get a law changed as people imagine, she said, and in this current economic and political climate it’s not likely the Legislature would amend the law to specify that “preserve in place” means no building can be constructed atop burials. Besides, NHLC believes the language in the law is already clear, it just needs to be upheld by the courts.

And with the Honolulu rail project moving forward, and burials anticipated along at least part of its route, it’s even less likely that lawmakers will be entertaining law changes that could disrupt that massive project.

That’s why it would have been nice if the court, which is supposed to be immune from the economic concerns that drive politicians, could have interpreted the law, rather than punting to the Lege. Instead, it shut down NHLC on narrow procedural grounds, without addressing the broader, underlying issue.

Now we’ll continue to see burial preservation conducted in the same old angst-ridden, litigation-fraught, contentious ways, with citizens scrambling to get injunctions and restraining orders and the state and county terrified to say no to a landowner for fear of a dreaded “takings” lawsuit.

Interestingly enough, our guest in the second half of the show, coastal planning expert Thorne Abbott got into the issue of takings and liability when talking about shoreline development.

It’s not so easy to win a takings lawsuit, he said, because you have to show you have been denied any use of your land.

That certainly wouldn’t be the case if government simply told people to build a smaller house or push it back from the ocean.

And in response to a question from a caller about liability, he said property owners have successfully sued local governments that “knowingly allowed them to build in harm’s way.”

You know, in places like Haena and Anini and other areas ravaged by the tsunamis of 1946 and 1957. Or that whole section of the Poipu coastline that was wiped clean by Iniki's storm surge.

What’s more, and this is really fascinating, Thorne said that those kinds of lawsuits are far more prevalent than takings lawsuits.

That prompted a friend, in a phone call on my way home from the radio station, to rant a little about how “these rich fuckers are bullying their way into building right on the water, then when their house is destroyed by a tsunami or storm surge or flood, they’ll turn around and say, ‘you should have known, you shouldn’t have let us build there.’ They’ll fuck over our beaches, then turn around and sue us. And we the taxpayers will have to pay.”

Sigh. True, that.

Thursday, October 7, 2010

Musings: Criminals

The blackness of a new moon sky was broken only by Jupiter and starlight when Koko and I slipped out to take a look last night. The Milky Way swirled above us, cutting a broad swath through the blackness, as various stars and constellations glittered all around.

By morning, only a few random stars were left in a canopy of navy blue when Koko and I went out walking. Waialeale rose up before us, pale blue and clear in the west, while glowing orange clouds huddled together in the east.

I was huddled, too, into a sweatshirt, and walking fast to keep warm.

“It’s cold,” I told my neighbor Andy when we encountered each other on the road in the murky light of pre-dawn.

But not so cold as it was in the courtroom earlier this week. As I sat in the frigid domain of Babylon, many thoughts and questions ran through my mind, not the least of which was why they keep the courtrooms so damn cold. Even the bailiffs, one wearing a jacket, had no answer for the excessive chill.

As I watched, numerous attorneys and people charged with minor crimes paraded through the courthouse, uttering their “yes, ma’ams” and “no ma’ams” in response to questions from the judge. It seemed the biggest offense most of them had committed was being too poor to make bail.

That’s why one young woman, looking like a deer caught in headlights, keeps getting dragged over from the Oahu Correctional Center, doing time even before she’s been convicted of a crime, because the prosecutor’s office hadn’t yet gotten it together to proceed with her case.

Then there was the old guy, dying of cancer, who had already spent 176 days in custody for two misdemeanors. He finally changed his plea from not guilty to no contest so he could get the hell out of jail.

“I want to go home and die outside,” he said. “I don’t want to die in there.”

Judge Kathleen Watanabe, noting that “a lot of people who are adjudged guilty don’t spend as much time [in jail] as you have,” gave him credit for time served, prompting an observer to remark, “how kind.”

The pre-trail detainees were wearing baggy Kevlar-like jumpsuits that made them stick out as criminals, even though at that point, they were still presumably innocent, as they hadn’t yet been tried. And I wondered, why can’t they wear regular clothes for their court appearances? Why are they being treated so differently than other defendants just because they don’t have bail money?

Meanwhile, as folks charged with possessing a knife, threatening somebody over a dispute about noise at a beach park, calling in a false alarm, entering a motor vehicle without authorization and other manini misdemeanors got sucked into the workings of the judiciary machine, the real criminals -- the psychopaths who blow the tops off mountains and develop depleted uranium weapons and pollute the aina and send young kids off to die in senseless wars – are never even arrested.

Every time I sit in a courtroom I’m reminded that our legal system is terribly flawed, in part because it’s skewed in favor of those who are rich and white. One of the worst aspects of it, though, is the way it makes defendants kow tow to the judges, who have the power to decide their fate.

But one person didn’t, and that was Dayne [Gonsavles] Aipoalani, alii nui of the Kingdom of Atooi. He was there with Rob Pa for charges stemming back three years to the Superferry protests. That case, which should have been dropped long ago because it’s so damn bogus, won’t even go to trial until March 2011.

Raising the Kingdom flag, Dayne declared that he has diplomatic immunity and is recognized as a sovereign by other Polynesian nations. He then presented the judge with a copy of a treaty that was made between the Kingdom and other nations, which he wanted her to acknowledge receiving before it was sent on to attorneys at the International Court of Justice and the United Nations who are apparently working with him.

I don’t know what ultimately will happen with Dayne and his many legal issues, but he’s definitely taking a different approach.

As is Joe Brescia. Something I reported in yesterday’s post -- Alan Murakami of the NHLC told me last April that Brescia’s civil suit against those who protested his house was worrisome because it “has chilled people’s ability to speak up.” -- caught the eye of a reader, who sent me this email, which I found apt:

That sounds way too much like the effect of the Islamic actions when Salman Rushdi published Satanic Verses and the cartoons appeared in the Danish newspaper. The reluctance to say what you want to say or publish what you want to publish became known as "self censorship". That sounds ever so much more sophisticated than "got the crap scared out of em".

So at some point otherwise legal prosecution gets to be right up there with terroristic threatening in it's effect on free speech.

Yup,it does. But don’t be looking for any terroristic threatening charges to be filed against big landowners filing SLAP suits. At least, not anytime soon.

Finally, I heard an extremely disturbing report on Democracy Now! the other day about a government study on syphilis treatment that resulted in Guatemalans being infected with that disease in the 1940s. The medical historian who brought this abuse to light said she was especially disturbed to encounter correspondence that made it clear our government was aware of its wrongdoing at the time, even though it only now is apologizing:

"The surgeon general says, 'Well, we couldn't do this in the United States.’" And that’s just a stunning, absolutely stunning, acknowledgment of what was going on.

Kinda makes you wonder what the government, military and private companies might have been doing – heck, still are doing -- in Hawaii. And it again raises the question of who, really, are the criminals here?

Wednesday, October 6, 2010

Back on the Air

I'll be returning to KKCR to do a call-in show from 4-6 p.m. on the first Thursday of each month, starting tomorrow. Caren Diamond will be my co-host. We'll be talking about the decade-long battle over the Brescia house and the county's new shoreline bill. I hope you'll join us at FM 91.9, 90.9 or 92.7, or on-line at

Musings: Dangerous Precedents

We’ll continue today with a report on the litigation surrounding the house that Joe Brescia built atop ancient Hawaiian burials at Naue, and the precedents that are being set by this project.

There are two distinct legal actions stemming from that project, which marks the first time the State Historic Preservation Division (SHPD) overrode the recommendations of an Island Burial Council and allowed construction on a previously identified burial site.

One set of claims was brought by the Native Hawaiian Legal Corp. on behalf of its clients, Nani Rogers and Jeff Chandler, challenging the process SHPD followed in approving the Burial Treatment Plan (BTP) for Brescia’s property. As I reported yesterday, Judge Kathleen Watanabe ruled in favor of the state on Monday, effectively quashing those claims unless NHLC appeals.

The other action was brought by Joe Brescia, who filed a civil suit against Kaiulani Edens Huff and 15 other named defendants — several of them were never served — and numerous unnamed defendants. He claimed they had caused him to suffer financial damages due to slander of title, construction delays and the need to hire security due to actions taken at the job site back in June 2008.

Alan Murakami of the NHLC told me last April that Brescia’s civil suit against those who protested his house was worrisome because it “has chilled people’s ability to speak up.”

Or as Kaiulani noted the other day: “It’s heavy duty psychological warfare.”

Brescia already won default liability judgments against some of the defendants, and an October trial had been scheduled for his suit against Jeff Chandler, Nani Rogers and Louise Sausen.

But attorney Harold Bronstein negotiated a settlement on behalf of Louise, as did NHLC for Jeff and Nani. One provision called for offering a settlement to those with default judgments, absolving them of any damages. Jim Huff and Palikapu Dedman opted to settle, but Kaiulani, Hale Mawae, Andrew Cabebe and Dayne Gonsalves, who was never even involved in this issue, did not.

Next Tuesday, Judge Watanabe will decide what damages they have to pay. During Monday’s court proceedings, Brescia’s attorney, Andrew Salenger, noted that his client might be willing to seek minimal damages if the state prevailed that day in court, which it did. So I guess we’ll see on Tuesday whether Brescia lets them off the hook, or tries to stick it to ‘em.

Hanalei “Hank” Fergerstrom, who was initially named, then dropped from the action, argued against settlement, calling the suit a “well-worn scare tactic. If you went with the proper intent in mind, to protect the iwi kupuna, then we didn’t do anything wrong.”

He said that by going after money damages against the defendants, Brescia was “threatening to take away the stuff they have for protecting what’s theirs.”

The settlement, which Brescia apparently pushed because it would have kept NHLC from pursuing any action against the state that would have resulted in him having to take down his house, has a number of interesting provisions.

It specifies that Jeff may go on to the property to pay respects to the iwi kupuna four times each year, and he may be accompanied by a kahu and Chandler family members. Once a year he can take no more than 10 people, whose names must be provided in advance. The other three times he can be accompanied by no more than two persons.

They get a four-hour window for the visits, with two more than two hours on site, and they can come no earlier than 30 minutes after sunrise and stay no later than 30 minutes after sunset. They cannot visit on any of the conventional major holidays, and must give Brescia two weeks’ notice. Brescia, however, can cancel with 48 hours’ notice.

While on property, they can’t alter the “preservation sites” — aka burials — or disturb or destroy any vegetation. They cannot erect any altars or plant anything, either. And here’s my favorite: “The preservation sites must be treated with reverence and must not be covered in any fashion.”

Now that’s rich, considering he built his fricking house right on top of seven burials.

It further states that they must “exercise decorum,” which specifically precludes directing profanities at Brescia or any of his guests, engaging in unruly behavior, being intoxicated, consuming drugs and alcohol and bringing in unauthorized guests. Jeff will be held responsible for the conduct of all those he brings on site, and if any one acts up, no future visits will be allowed.

The settlement also specifies that neither side admit any wrongdoing. The defendants who signed also agreed “not to knowingly assist others to prepare for or conduct litigation against Brescia with regard to any issue regarding the property.”

If the property is sold, the settlement specifies that Brescia will contribute one-fourth of one percent of the actual gross sales price — not to exceed $7,500 — to a nonprofit organization that Brescia and Jeff choose, so long as he and Nani have complied with the agreement through that date.

The others who signed had to agree that they “will forever remain off the Property except as and if provided for in the Burial Treatment Plan.”

And just to make sure everything ends on a really positive note, Jeff, Joe and Nani “agree to meet at a mutually convenient time in the future to discuss any unresolved feelings.” I’d love to be a fly on the wall at that meeting....

As a result of this settlement, Jeff, Nani and Louise are spared the stress of a trial, as well as the prospect of possibly losing their homes if Brescia were to prevail. I certainly don’t fault them for settling. They’ve all been through a lot of turmoil and stress over the past two years, and for those who did not settle, the drama will continue at least through next week, when they’re finally told what they have to pay, and maybe longer, if they appeal.

But as Hanalei Fegerstrom noted, “getting a judgment is one thing. Collecting money is another.” Or to put in Kaiulani’s words, “you can’t get blood out of a turnip.”

As the litigation wraps up, I think it’s crucial to remember what is at the core of it, and that’s the state’s misdeeds in handling this project. If it had not improperly approved the BTP, Brescia wouldn’t have gotten his building permit and started construction and folks wouldn’t have needed to protest construction.

Unfortunately, as I noted in yesterday’s post, as a result of Monday’s court ruling, the state is still free to do it all over again.

What’s worse, developers can look at the dangerous precedents that SHPD set in the Brescia case — overruling Burial Councils, allowing construction atop a known burial site, failing to conduct meaningful consultation on burial treatment plans and allowing “buffers” between buildings and burials — and say, "I want that, too."

And how will the state be able to say no? And who, after a bruising battle like this one, will have the heart and means to challenge it?

Tuesday, October 5, 2010

Musings: Out in the Cold

After enduring five hours of bitter cold in a Kauai Circuit Courtroom yesterday, the folks who have been fighting the governmental process that allowed construction of Joe Brescia’s house atop burials at Naue were essentially left out in the cold.

Judge Kathleen Watanabe ruled in favor of the state’s motion for summary judgment, while suggesting that Native Hawaiian Legal Corp. and its clients, Nani Rogers and Jeff Chandler, might wish to pursue relief through the Legislature or administrative rule changes instead.

But before she issued her decision, Watanabe went to great lengths to make it clear that “these rulings are based on what should be, which is the law in effect and the facts as presented. This court is setting aside personal feelings and emotions, as it should.”

Before that, she talked about how she had been “surprised and disappointed” by the State Historic Preservation Division’s (SHPD) actions in the Brescia project. Nevertheless, she could not base her decision “on personal feelings or emotions or respect for cultural positions taken by the parties.”

Furthermore, she could not allow herself to be swayed by “community input and criticism of the court’s rulings in the past,” and “comments made by the community or media.”

“I believe there is a need for some finality in this matter…it is the court’s hope that this is final and we can all move on and do better in our respective cases,” she said.

As a result of her ruling, the core of the long-running dispute —the definition of “preserve in place” when it comes to Native Hawaiian burials, or iwi kupuna — remains unsettled. And an emotional, controversial, angst-ridden scenario like the one that's unfolded at Naue could happen all over again.

To provide a little backstory, the Kauai-Niihau Island Burial Council originally determined that the 31 burials found on Brescia’s lot should be preserved in place, which they understood to mean no structure would be built atop them.

Instead, Nancy McMahon of SHPD approved a Burial Treatment Plan (BTP) that allowed the house to be built atop seven burials. It was revealed in court yesterday that the so-called “buffers” between the burials and the house were determined not by archeological or cultural considerations, but solely by the house design.

NHLC challenged that approval, saying the Burial Council had not been properly consulted. In September 2008, Watanabe agreed and ordered SHPD to take the BTP back to the Council for the proper review. After much dithering and numerous revisions of the plan, SHPD finally took it back to the Council, which rejected it this past February. SHPD overrode the Council and approved it anyway.

Meanwhile, construction of Brescia’s house continued unabated because Watanabe refused to grant an injunction to halt it two years ago, even though the county had given him a building permit on the premise that he had met all of his conditions — one of which was satisfying all the requirements of SHPD and the Burial Council.

During this time, Brescia also filed a civil suit against 17 persons, not all of whom were ever served, claiming they had trespassed, slandered his title and generally caused him expense and aggravation by protesting against his house. Several of the parties, including Jeff and Nani, reached a settlement on that case, which I’ll get into tomorrow.

So by the time things went to court yesterday, NHLC had already agreed it wouldn’t challenge the approved BTP or try to make Brescia take down his house. What NHLC wanted, attorney Alan Murakami said, was for Watanabe to issue a declaratory order “that would basically invalidate” the process SHPD followed so it couldn’t be repeated in the future.

Watanabe asked if they had sought legislative relief, but Murakami said what is needed is a legal interpretation of the existing law.

At the core of the issue, NHLC attorney Camille Kalama told the judge, is the meaning of preserve in place. By allowing Brescia’s house to be built atop burials, “the state’s interpretation of that (burial preservation) law eviscerates the Legislature’s intent,” which was to protect Native Hawaiian burials and give the Burial Councils some say in their treatment by allowing them to recommend whether they should be relocated or preserved in place.

“If ‘preserve in place’ means only that burials are left in place, then the decision to preserve in place has very little meaning,” Kalama argued. “We are disputing the [state’s] interpretation of that statute, and until there is an interpretation [by the courts], a legislative remedy is not needed.”

Randy Ishikawa, deputy state attorney general, disagreed, saying they should be going through the legislative and administrative rule-making processes, not the courts. He said the only remedies available through the existing process are restraining orders and injunctions, not declaratory orders.

But Kalama said that if Watanabe went along with that argument, “it would mean the state is essentially insulated from court review unless a person can get an injunction. It would say the state’s actions are not reviewable.” And that puts tremendous burden on the public, she said, especially since they aren’t given notice when a BTP is approved and so can’t challenge it.

It was clear, however, that Watanabe did not want to do any defining or interpreting.

“If the court were to dictate what preserve in place means, this court would be clearly overstepping the administrative and legislative processes,” she said. “Perhaps you should be looking…to those processes.”

Afterward, Murakami said he didn’t believe the court’s power is as narrow as Watanabe claims. NHLC will be reviewing its options and deciding whether to appeal.

Despite Watanabe’s desire for closure on the Brescia case, it will be back in her courtroom next week when there’s a hearing to determine how much the remaining defendants in the civil suit should have to pay. I’ll delve into that aspect of this rather convoluted issue in tomorrow’s post.