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.


Anonymous said...

Hi Joan -

Are you shows going to be available anywhere on the internet? I am off island.


Joan Conrow said...

Yes, I'll be posting links to the archives on this blog. Thanks for your interest.

Unknown said...

For the sake of maintaining a bit of optimism, I'll object to the final point.
I don't see any reason to expect 'takings' lawsuits to be fewer than state/county liability suits. Takings are very rare, while development approvals are made daily. Naturally, the latter is more likely to come up in court.
I guess the real lesson is that it is hard to be the state. Writing bulletproof legislation is difficult. It should be a priority to elect people that can do so (and to keep them informed).

Anonymous said...

writing/passing any legislation is difficult and administering it sometimes nearly impossible, then regulating - takes an entire workforce.