Friday, January 2, 2015

Musings: Doctrinaire

Invoking the Hawaii Public Trust Doctrine for projects involving water use is becoming de riguer among those who are pursuing various anti-something agendas.

Most recently, we see it being touted by Friends of Mahaulepu in an petition to Gov. Ige warning there's a “big problem” on Kauai because someone wants to start a dairy and is voluntarily doing an EIS to address community concerns.

Uh, what was the problem again?

The group bizarrely believes that it's a violation of the trust doctrine for Grove Farm to provide Hawaii Dairy Farms with water from Waita Reservoir. As The Garden Island reports:

“It’s not really theirs to sell,” [group leader Bridget] Hammerquist said of the water from Waita.

Bridget is woefully misinformed, and TGI, sadly, perpetuates her ignorance with its regurgitative reporting. Here's how it really works:

In 1989 the state required all water users to declare their water source — diversion, well pumping, etc. — to the state Commission on Water Resource Management. That data was and still is used to determine allocation of water, provided that you have a permit from DLNR.

Grove Farm has a permit to divert water into the Waita reservoir and deliver it to farmers, and that includes a dairy. What's more, the Mahaulepu acreage was designated Important Ag Lands in large part because it has a viable water source for agriculture.

Under the faulty reasoning of the petition, all IAL designations are meaningless and no one can use any water in the state because it “all belongs to the public.”

Wrong. In reality, water resources don't actually “belong” to the public. According to the pertinent sections of the State Constitution, emphasis added:

“All public natural resources are held in trust by the State for the benefit of the people.” 

Which means the State decides how public water sources — streams and aquifers — are used.

And yes, the State is obligated “to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.” Which does not mean water can't be used, or that citizens have veto power. “Final delegated power rests in the hands of the commission.”

Though Bridget tried to use the Hawaii Supreme Court decision on Kauai Springs  to back her claims, that ruling never said water can't be sold. It merely affirmed that private commercial users of water bear the burden of justifying their uses.

The Constitution further states, emphasis added:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.

A dairy that seeks to produce milk for local consumption — as HDF has promised to do, despite repeated lies by opponents that it's going to “ship it to China” — is clearly in furtherance of the self-sufficiency of the State.

Furthermore, the State has a constitutional mandate to promote diversified agriculture, which is why agriculture is a protected use of water, warranting its own plan under the state water code.

Bridget's ignorance isn't limited to the public trust doctrine and water code. She is also quoted as saying:

“We’re trying. We’re trying to be heard. We don’t want to be the little island in the north that becomes their waste dump for a product that they make here and take elsewhere and leave the waste behind.”

Oh, I see. But it's perfectly OK for other places to be the waste dump for stuff that is shipped to Kauai because The Garden Island is just too pure and pristine to actually produce its own food — or any of its industrial and manufacturing needs for that matter.

Meanwhile, hapless tourists are signing the petition, oblivious to the impact they and their rental cars are having on the environment, or how construction of their own resort rooms and vacation rentals changed things.

The group's petition further states: “HDF must not be permitted to operate a dairy in Mahaulepu.” 

Mmmm, so why demand an EIS when you won't accept it, make like you're even the tiniest bit reasonable when you're not?

We'll soon see whether reason or rhetoric prevails as the Council pursues what appears to be a near unanimous goal of providing affordable housing. Councilman Arryl Kaneshiro seemed the most realistic when he told TGI:

There is a need for development because there is a housing need, so if we need houses, we need to develop — they’re not just going to show up.

Councilman Gary Hooser was the most rhetorical in his call to “aggressively expand the available inventory of affordable housing through public/private partnerships”—  even as he seeks to derail such construction in the Lihue-Hanamaulu area, where nearly all the new affordable inventory is planned, by pursuing a ground water management designation for the area.

Gary went on to say he intends to ensure “the very largest businesses in Kauai County are complying with the laws governing property taxes and (grading and grubbing).”

Oh, so you going after the Hyatt, Wilcox Memorial Hospital, Manu Kai (PMRF), St. Regis, Ohana Pacific Management, Aston Aloha Beach, Sheraton Kauai, Kauai Beach Resort and Bayada Home Health Care now, Gary? Cuz that's the most recent line-up of the Top 10 Kauai businesses.

Or are you still singling out the seed companies, even though Pioneer is the only one in the top 10, ranking number six? 

Or perhaps you, like Bridget, aren't concerned about facts, you're just going for effect.


Anonymous said...

Great Gobs of Giant Cowpies- Ms. Joan? When have facts ever been important?

Anonymous said...

Wait so lemme get all of this straight. First of all, thee isn't any affordable housing on this island. We need low income housing. And because it isn't profitable, we can't get any built. As more rich people move here, the median income increasingly skews our median income, thus driving up the limit to the quarter million dollar mark for affordable housing. Which makes it not affordable.

The candidate that says let us build true affordable housing, and low income housing for real workers, kupuna elderly, handicapped, and single parent families, of which there are many here, who may be on disability, or who are working, but working minimum wage dead end jobs, that they cannot sustain themselves on here, without being on food stamps...that person will get my vote.

Agriculture that grows food here, and sells it here, to us, for a reasonable price comparative to the mainland gets my vote.

The state is not the owner of anything. The people are the owner of all. Cumulative impacts of all of those developments will mean gridlock for the roads, people that cant get to work on-time, or school, will strain every single resource we have.

Water belongs to everyone, and no one has the right to divert amounts that are not necessary, without ensuring adequate flow and access to others. It is the same principle as the right to traverse mauka and makai to access trails, hunting and fishing.

my 2015 opinion

Anonymous said...

Housing is the most important issue.
The lack of Housing is the FAULT of the County. The rules, regs and antiquated zoning laws are core to the problem. JoAnn Yukimura is by far the largest contributor to the lack of simple subdivisons and basic housing on the island.
She has used the "inch by inch" strategy. Inch by inch she has put Anti-housing attitudes, rules and regs into the County ethos.
Kauai has many people that would contribute their talents for housing. But, JoAnn wants people to be stuffed into apartments and wastes all the "affordable housing" ransoms paid by developers to pay for these overpriced future ghettos.....all the Council has to do with a "stroke of a pen" is allow greater density on certain Ag lands and hundreds of home sites will be created.
If we get rid of da Hoos, JoAnn and Mason, maybe the county can relax some density.....Total BS, even the Plantations provided a house and land enough for fruit trees and gardens.
We are over run by newcomers who have their piece of paradise and do NOT want any change. I gots mine and now raise the drawbridge. My house isn't really development, but yours is-
We need subdivisons with at least 7,000 sq ft of land, small units for aging (duplex, fourplex etc)people and studio apartments.
Remember, da Hoos and JoAnn both made MILYUNS of dollahs when they developed their own lands or were in the real estate business....getting rid of these two would be a good start for local housing....Mason must go as well, he follows Gary like a hungry little pup, as Gary says, Mason does.
There is moocho empty land out there and it doesn't take very much to put in some decent houses...
As far as water goes, it is he who TRANSMITS the water that controls the water.....and again JoAnn, Gary and Mason have f*cked around with the landowners who have the property necessary for water transmission and management.
Some times I wish the Plantations still ran everything.....even if we had to put a Bull Durham sack on the water pipe.
Facts, not rhetoric.

Anonymous said...

What would also help alleviate traffic is getting rid of Yukimura's big box ban.

You build a big box like a Target or Albertsons in Anahola or at the old Moloaa dairy farm then the TRAFFIC in Kapaa to lihue would trickle down.

You create jobs, alleviate traffic by having Northshore to Kapaa from going to Walmart and creating a grid lock, build affordable housing around that area, and during natural disasters people from the Northshore to Kapaa have an alternate big box to shop at so supply can be sufficient to weather the storm(s).

Or the county could go back and put a cap on the car rental agencies which they had in place before the economic collapse.

To me that would make more sense than the county funding a Northshore shuttle to the tune of $150K for a 3 month trial period. (Not as bad as the GAS theft but that private company got handed 2 1/2 times what the county officials stole in gas for that 1 year audited).

The best way to committ grand theft is to have friends and family in the county administration.

Anonymous said...

It's true North Shore peeps make the traffic bad in Kapaa but no body stole gas so get over it. Sheesh,

Anonymous said...

Our council has done everything it can to ensure housing is unaffordable. By over regulation and ruinous fees.
So now it wants to do the same with agriculture.
We should be so proud.

Anonymous said...


Keep lying to yourself but the best thing for you is to educate yourself.

Lifeguards get retaliated for whistle blowing fire fighters stealing gas for their fishing boat side jobs.

All he gotta do is slide a couple hundo's to buy beer and meat and also give a few free fish and can turn the other cheek and No Need see what is going on.

That's why it's gonna cost us in retaliation lawsuits from the county auditor and a couple of life guards suing the county.

Learn You Some in 2015 Kid.

Anonymous said...

@ my 2015 opinion 3:33 PM

What is a "real worker" ????

How are they differentiated from an unreal worker? So, is the latter not really real or are they so good that one says, that person's unreal! Wow!

Anonymous said...

PS - And everyone wants local food grown (organically, of course) at reasonable prices. Thank you, my 2015 opinion, for stating the obvious! Oh ya, and no one owns the land or anything else that you don't have because we've abrogated all property rights in favor of complete socialism that is for the PEOPLE!!! "Yes, anything I don't have must be given to me FREE because I'm THE PEOPLE!"

Anonymous said...

Yukimura is the biggest impediment to affordable housing by her very naive and ill-considered polices that make it far more difficult and expensive to build it. She's been around for a long time and still doesn't get it!! When will she wake up and realize she's been wrong all these years and her ideas are crap? They sound nice when stated, like the a typical demagog, but in reality they're ineffective and hurt more than help. The problem is that,as she is an example, voters on Kauai don't vote for substance, but rather, for style.

Anonymous said...

The rest of the State needs to stop supporting Kauai, since they kill all business, agricultural and other activity on their island.

Joan Conrow said...

8:30-- There was no retaliation against the auditor because he didn't actually uncover gas theft. In fact, the auditor, who isn't actually qualified to conduct an audit, manipulated the report to make it look like gas theft and then retaliated against the real auditor who called him on it, prompting the real auditor to file a whistle blower suit.

Anonymous said...

Joan, did you see Gary's latest fb post? He is soliciting help from uh law school students for work on GMO issue. I hope no aspiring lawyer is crazy enough to bite.

Anonymous said...

What a bunch of fallacious half-baked garbage. The usual fare of absurd premises and falsification of factual material.
Where exactly is that water "plan?"
You've turned into a hateful spiteful "former" journalist. I feel sorry for you.

Joan Conrow said...

11:27 -- I wouldn't think you are a very good judge of what is "fallacious" or even "half-baked garbage" considering you aren't bright enough to follow the link to the water plan.

It looks like you're the one spreading hate and spite, too. So I suggest you keep your sympathy for yourself. You appear to need it far more than I.

Joan Conrow said...

Oh, and no, 11:07, I didn't see Gary's latest FB post because Gary, the man who advocates for transparency everywhere but in his own dealings, blocked me from his FB page. But thanks for sharing. I, too, hope no aspiring attorney is foolish enough to align him/herself with Da Hoos.

Anonymous said...

I too was blocked from Hooser bullshit propaganda page. But if I ever wanted to see his page, which I did just now, I signed in with another FB account. So blocking doesn't work does it Ignorant Hooser?

Anonymous said...

So if GAS was stolen then why are 2 life guards suing the county fire department for retaliating for whistling blowing on fire fighters stealing GAS to fill their boats to go fishing?

Are the 2 life guards lying about the fire fighters stealing county GAS?

Inquiring minds would like to know.

And if you look at how many people got hired by the county, state and at PMRF without being qualified then about 50% or more people would be disqualified from nepotism employment.

Anonymous said...

Two Lifeguards just inquired about County gas and County vehicles being used for PRIVATE enterprise (many many times, gas was taken for private use) After the simple inquiry they were f*cked around with by the stuperviser, who IS involved in the private business. The Stupervisor and his friend, another lifeguard were using County gas AND County jetski to patrol a water event.(of course they were paid outside County employment, County check made out to the private business)..Now Kauai has lost a TRUE waterman as a lifeguard...the whistleblower is out of a job. Kauai has lost a person who the tourists and locals loved. He is waterman- through and through....some of the workers do NOT know how to patiently put their cases forward and get thrown aside as garbage....he who knows the system, gets the prize.
But shucks ma'am, what is a life dedicated to saving lives tossed aside...tis nothing, I guess. Most lifeguards are great...but as the case with this supervisor it is who you blow, not what you know. And MONTY Downs, did the right and correct thing in NOT pursuing this because he did not want to cast a cloud on the department..but Monty knows this whole lifeguard gas-gate sucks pilau water.

Anonymous said...

Hah? Real Workers are the ones that do the work of the masses, the people that need the low income housing. you know, the blue collar guys. The ones that make the beds, clean your lawns, cook your food, and work at big box stores, and toe the minimum wage line, and have two jobs, while trying to raise kids, as the family falls apart, because there are 20 people living in the house because there is no goddamned motherf*cking housing!

Real workers are not the trust fund babies here for an adventure, and woofing, real workers are not people who come over here, buy a house, land, and buy a business and hire 50 people, who become the real workers, that they pay minimum wage too, and they can't find low income housing. Those aren't the real workers.

The real workers are the low income guys struggling that keep this goddamned canoe afloat, and without them none of you will have anything, and this place will sink under the weight of tourist cars and asphalt and new stores and subdivisions.

Water is a human right and belongs to everyone. There is nothing socialist about that.

One day, when you are thirsty you better hope there is a so called socialist around to give you a damned drink.

PS I am tired of the so called "State" and the so called 'County" running the show.

We run the show. This is a representative democracy.


Anonymous said...

If the auditor had gone after the lifeguard and fire department gas theft he might have been on to something and made a difference. Instead he decided to try and go after his political vendettas. Auwe.

Anonymous said...

Thank you very much for clarifying the County of Kauai GAS Theft Ring.

The lifeguards also got SCREWED in the FAKE County of Kauai FURLOUGH. They took a pay cut and the county spent the excess of 35-60 million to hide their profits and wrongfully took away food off the table of these men and women who's JOBS are to save lives.

The county government is sickening and full of corruption.

We need General Hertog to run for Mayor or be Kauai's County Manager.

I have trust, faith, and confidence that a retired 2 Star General would be able to take care of the MESS Kauai is in.

Anonymous said...

Joan, you are correct on the gas theft. It was all nonsense.

Anonymous said...

Pretty tiring hearing how we need to protect the tourist industry so no agriculture is allowed. Cow piss is not the end of the world, more tourists, now that sucks. Hyatt built on ag land, and now they cry no ag allowed? What a crock.

Anonymous said...

"I have trust, faith, and confidence that a retired 2 Star General would be able to take care of the MESS Kauai is in."

Because, ya know, they did a terrific job in Iraq.

Anonymous said...

"We run the show. This is a representative democracy."

Tell that to the multinationals that invest in our political system.

Anonymous said...

"Yukimura is the biggest impediment to affordable housing by her very naive and ill-considered polices that make it far more difficult and expensive to build it."

Wow, no wonder there's so much affordable housing on every island except Kauai. Love all those cheap condos being built in Honolulu.

Anonymous said...

"You build a big box like a Target or Albertsons in Anahola or at the old Moloaa dairy farm then the TRAFFIC in Kapaa to lihue would trickle down.

You create jobs, alleviate traffic by having Northshore to Kapaa from going to Walmart and creating a grid lock, build affordable housing around that area, and during natural disasters people from the Northshore to Kapaa have an alternate big box to shop at so supply can be sufficient to weather the storm(s)."

Nominee for the stupidest comment of the decade.

Anonymous said...

What have you accomplished if your life?

You're probably one of the uneducated/undereducated county welfare recipient(s).

There's no way most of the cronies would have a county job if the federal standard was applied to the hiring process.

General Hertog has done line by line weekly, monthly, quarterly, semiannual, and annual budgets.

Outsource nonessential employees like the federal government and the military does so it doesn't cost the tax payers in future losses and taxes.

She can bring in accountability in every department and ensure management(s) are held responsible for their actions and in actions.

Kauai needs real LEADERSHIP instead of high school boys and girls reliving their adolescent click(s) days.

Anonymous said...

Not as ignorant as your mind trapped in the wonder years.

Her family make millions off of the food delivery truck.

"nominee for the stupidest comment of the decade"

You don't get out or read much do you? Good little SLAVE plantation boy/girl you are.

Listen and Obey your mASTEr.

Anonymous said...

The auditor was used as a pawn.

Find out who is the puppet masters and you will answer your question(s).

Anonymous said...

I sometimes wonder if Joan isn't the puppet-master.

She gets us all dancing on a string.


Anonymous said...

Good little slave plantation boy? Your bigotry, while stunning, is off the mark. I prefer potatoes and pasta.