Monday, March 9, 2015

Musings: Buzz Awhile

A landmark case involving a Kauai man's use of traditional gathering rights has been scheduled for oral arguments before the Intermediate Court of Appeals.

As I initially reported in the Honolulu Weekly, Kauai Circuit Court Judge Kathleen Watanabe dismissed charges against Kui Palama back in 2012. He'd been arrested on Jan. 17, 2011, and charged with two misdemeanor counts of trespassing and hunting on private property after a security guard found him with pig meat on Hanapepe lands held by Gay & Robinson.

But defense attorney Tim Tobin successfully proved that Palama is a descendant of the indigenous peoples who occupied the Islands prior to 1778; the G&R land where he was hunting is mostly undeveloped, and pig hunting is a traditional and customary practice.

All three criteria must be fulfilled in order to meet the standard for exercising traditional rights as protected by the state Constitution and established in the Hawaii Supreme Court’s landmark decision, Nansay Hawaii vs Public Access Shoreline Hawaii (PASH), written by Justice Robert Klein in 1995. In his motion to dismiss, Tobin argued that by charging Palama with trespassing, the state was effectively imposing a blanket prohibition on his right to engage in customary practices.

The Kauai Prosecutor's office under Shaylene Iseri appealed the ruling, and it's now before the ICA. When the charges were dismissed, I wrote a post for Kauai Eclectic in which Kui talked about the process of waging a PASH defense:

He said Tim, his court-appointed attorney, was initially reluctant, telling him that he'd seen a lot of guys claim a sovereignty defense, but still go down.

“I told him this has nothing to do with sovereignty, well, it does have to do with sovereignty, but this is in the state Constitution,” Kui said. “If they already passed it, why are they still arresting me?”

And why are they appealing Watanabe's ruling?

In other legal proceedings, isn't it odd that Oregon attorney Charlie Tebbutt has come to fight the proposed Mahaulepu dairy when Kawailoa (the Hyatt) already has an excellent lawyer in Lisa Bail? Of course, Tebbutt, who doesn't have a Hawaii law license, isn't actually working with Lisa, but representing Friends of Mahaulepu. In other words, he's riding on Lisa's coattails in hopes of picking up legal fees if she wins.

He's a “green ambulance chaser,” pursuing an increasingly common practice known as the nonprofit legal fee hustle, in which you can rack up millions in legal fees if you bill high enough and drag it out long enough.

It's how Earthjustice and Center for Food Safety make much of their dough — along with begging for dollars. As I've pointed out previously, those two mainland-based organizations helped write the flawed GMO/pesticide bills in Hawaii and are now pursuing the appeals, which they're using as a fundraising tool.

Why, just last Friday CFS sent out a fundraising email, using its usual deceptive language:

Right now, the CFS legal team is hard at work defending several county ordinances restricting genetically engineered (GE) crops in both Oregon and Hawaii; defending a county ordinance in Hawaii about pesticide spraying disclosure and buffer zones; and helping the state of Vermont defend its GE labeling law.

At CFS, we do all of our work, including our legal efforts, without charge, representing you, our members, and other nonprofits or local citizens. Instead, we count on donations from our members to support these critical efforts.

Of course, CFS and Earthjustice aren't actually fighting “food and chemical corporate giants” on the Big Island, but a coalition of small local farmers and ranchers who are opposing the GMO ban passed there.

They're aren't defending Kauai's pesticide/GMO disclosure law, either. David Minkin is. EJ and CFS are just sponging off him as he does the heavy lifting — like Tebbutt will be. And they'll be right there with their hands out if the real attorneys win the case. It's to their advantage to write bad bills and keep them going through the court system for years while the citizens and counties are stuck in legal limbo.

Yes, it appears the first of those dreaded flies have indeed arrived at the Mahaulepu dairy. But then, they've been cruising the seed fields for a couple years now and the anti-ag folks haven't seems to mind.

The CFS appeal ends with its director, Andrew Kimbrell, saying:

Together, we can succeed in defending justice, democracy, and our right to know.

Ah yes, justice, democracy and our right to know. As practiced by lobbyists and political advocates masquerading as nonprofits, hiding their income and expenses, and using money donated by the heirs of industrialists and oil barons while denouncing corporate influence in the process.

It's the kind of democracy practiced by people like Makoto Lane, vice chair of Kauai Young Democrats:
Poor little Makota. He not only has a problem with my free speech — and fails to recognize the hypocrisy inherent the comments he made to The Garden Island today: "In the age of information, any campaign to censor my access of information is bad. At the very core of the issue is people’s sense of freedom." —  he utterly fails to recognize the influence that outside corporate interests — those funding CFS and others pushing the anti-GMO movement he embraces — have had on Hawaii politics.

And it's the kind of democracy practiced by CFS Hawaii Director Ashley Lukens, who similarly see can't the hypocrisy in her own sour grapes post about a hearing that didn't go her way:

Oh, yeah, I can feel the love, Ashley.

Returning to the topic of flies — gadflies, in this case — I couldn't help but laugh at  Councilman Gary Hooser's claim to The Garden Island that his fireplace-banning bill is just  on "a pause" before the Council takes "a re-look at the whole issue."

Uh, Gary, the bill is dead. The Council deferred it indefinitely. It ain't never coming back up. 

So you can return to your real job: using Council services staff to write HAPA's your anti-GMO testimony on Council letterhead, most recently in support of GMO labeling, which is yet another issue the Council hasn't taken a stand on, other than to trash-can an old resolution that supported it.

Note to Council: when are you folks gonna rein him in? Unless, of course, you're all totally OK with him speaking on your behalf and misusing county resources for his own political gain.


Anonymous said...

So much for protecting kanaka rights. Kanaka wins. OPA appeals. Shows what election promises are worth.

Anonymous said...

Let the man hunt pig.

Anonymous said...

The prior administration filed the appeal.

Unknown said...

The sad thing is that Ashley Lukens totally mischaracterized the hearing on HB 1514. I know. I was there. And I sat for nearly 3 hours as first, neighbor islanders were allowed to testify before me because they had a flight to catch which turned out to be false. The same group of people stuck around for the GMO labeling bill in the afternoon and were then seen heading out for drinks after that. So much for having a plane to catch. Additionally, Chair Tsuji bent over backwards to accommodate the neighbor islanders. Even after an eco-Warrior with blue hair threatened to sic ISIS on the members of the committee and those of us there to testify in opposition to the bill. When it became apparent that not all could testify in the time frame allocated to the hearing the Chair limited the testimony to 1 minute. Keep in mind this was for everyone who testified, not just those supporting the bill. Despite that limitation there were those bill supporters who took more time than that and were treat cordially and professionally. The reason that bill was killed was because it was a bad bill. No matter who testified in support or opposition it was a bad bill. It would have done nothing to make it safer in the community but would mainly pinpoint corporate agriculture that has been the target of all of this nonsense since the beginning. I am thankful that the representatives on that committee recognized that the bill was bad and gave it the early death it deserved. I think when people stop being so disingenuous about their motives that maybe, just maybe, we can create a climate in which we can all talk to each other rather than take the route of adding a new, unenforceable law. It's sad to me to see that we have slipped into this quagmire of pointing fingers and making up stories but that's where we are now. We have lost our aloha and it is going to be very hard to get it back.

Anonymous said...

Someone else filed it. You guys gonna finish. OPA could have withdraw it. These MFs are like professional liars.

Anonymous said...

@unknown, people can just watch. they don't need you to tell them what happened. Tsuji cut some testifiers off at their name. There is no need to make up stories.

Anonymous said...

Good article. Wonder what other private rights Gary and Joanne decide to meddle in next?

Anonymous said...

12:51--No one was cut off at their name. He was reading names of people who submitted testimony. he cut others off because they only had limited time for the hearing and 5 other bills to deliberate.

Anonymous said...

Makoto and Hoosers (dad and sunrise shell stealer) are Loosers. Follow them and you get fears and lies. They have no power at all to pass didly. Can't wait for next election, Hooser will be out for sure, Adios.

Anonymous said...


Your comment about folks hiding behind dubious non profits; hustling for opportunities to sell their sorry asses to folks willing to pay for the questionable services they offer, is spot on.

For some, the non profit scam is easier than a real job; especially if you have the qualifications; including being a hypocrite, have no conscience, no morals, ability to lie, cheat; as skeletons rattle in the closet.

Anonymous said...

Mel will never muzzle Da Hoos. Mel is afraid that he will be perceived as an insensitive person. So Mel, in his quest for harmony, sacrifices the ethical core of the Council.
The Council is all on Arryl on any vote that remotely touches Grove Farm. And Arryl, instead of saying "F*ck off" kowtows. Arryl should vote on GF items, just as MANY Council people have in the past, that have worked for large companies and still voted. No names mentioned. But-
Our Council seems to be a group of very soft weenies. Da Hoos and JoAnn are the big sausages in the group...and Mason, by his close fondling of Da Hoos gets included in the Big Sausage group....sad, sad sad.
And all along we thought Mel would be a leader. Nope, he allows personal testimonies to be submitted on County letterhead, allows BS Fireplace smoke bills, does not question Gary's seamless alliance with HAPA and other mainland anti-everything groups...and the Council will dither about with more nonsense from Da Hoos/Joann and the County will suffer.
Property Tax reform, drug rehab, New Dump, road repair...maybe we should just ask Gary to get some of these things expedited..He is in Charge..he is running the show. Babeeze, babooze...

Unknown said...

For 12:53, we all know that videos are never edited to skew a point of view!

Anonymous said...

And Beth Tokioka joins Syngenta. How convenient. How much was her salary raised after getting county Cadillac retirement?

The checks and no balances keeps Kauai's royalty stuffing their pockets.

Anonymous said...

You think David Minkin is doing the heavy lifting? Not a chance.

Anonymous said...

Joan sez "It's to their advantage (lawyers) to write bad bills and keep them going through the court system for years while the citizens and counties are stuck in legal limbo."

Those bad attorneys can write all the bad bills they want but it is the majority of elected representatives put in office by the voters that pass those bad bills into law. The problem is not "green ambulance chasers" but our elected reps.

Anonymous said...

So when our elected representatives are swayed by the attorneys by telling them the bills are legal and they have your back, it gives them reasons to support the bills. That our elected representatives aren't smart enough to see that the agenda of those lawyers...

Anonymous said...

8:05 "That our elected representatives aren't smart enough to see that the agenda of those lawyers..."


Anonymous said...

I am waiting for the day all of you run, and we can have a go atcha.

Should be fun!

See you guys thought you were dancing on peopl'se lives and careers with a one issue backed council from both sides. Everyone loses when you vote based on one single issue alone, and do not understand that everyone is muzzled on the council, because once you sit in the seat you are bound to play nice in the playground or absolutely nothing gets done.

Following rules and process allows council-members to do the process of the job. That is why Gary went ballistic. Because he was being stopped from going through the motions as was his right. All of them know this. And after Gary pressed the issue and got the settlement everyone has to just cool their jets no matter what is proposed and procedures must be allowed to play out.

You all may not like watching it but that's the way it is folks.

IT is what it is peeps. Better you guys run then and change it up more to your liking.

Anonymous said...

The Prosecutor Koller said during campaign he was pro Kanaka.
Now we get the truth.

Anonymous said...

Did the appeal court rule yet on Kanaka game hunting?

Joan Conrow said...

Not yet. I'll write about it when they do.

Anonymous said...

Are Gay and Robinson really the “private property owners” of Hanapepe, Currently identified as TMK 4180010010000?
1848 Mahele, Kamehameha III reserved the Hanapepe Ahupua'a as his personal property; "subject only to the rights of native tenants."
1865 An Act "Relieve the Royal Domain from Encumbrances and to Render the Same Inalienable" Crown Lands still subject only to the rights of native tenants and subject to be leased for any term not exceeding 30 years.
Elizabeth Sinclair had a lease from the Commissioner of Crown Lands December 27th 1887 for 30 years.(B.110 P.58-60; Bureau of Conveyances).
1848 Mahele, William Lunalilo claimed the ili of Manuahi(Mahele Book P.22);
Land Commission Award 8559-B "Life Estate" (B.10 P.489, Ap.41)"reserving the rights of native tenants" "koe nae na kuleana o na kanaka"; Boundary Certificate No. 15, 867 acres. "Estate of William Lunalilo (Ordered by Charles Bishop);
Mrs. Sinclair leased Ili of Manuahi, Kona, Kauai for 20 years from Lunalilo Estate (State Archives "Dole's Collection).
KoiKoi; ili of Manuahi, Land Commission Award 9654 (B.5 P.173), Royal Patent 3000 (B.13 P.483).
1848 Mahele, 1/2 ili of Koula claimed by Paniani (Mahele Book P.61); other 1/2 ili of Koula granted to the Hawaiian Government (Mahele Book P.224); Privy Council, February 15th 1850, Paniani Petitions to the Minister of the Interior to grant a fee simple title for Koula, the Governments 1/2 and the 1/3 governments interest in his half. As Land Grant 1108 (B.6 P.193-194).
Konohiki Paniani dies about 1852-53, Privy Council, April 25th 1853, Waialoe Paniani, petitions to the Minister of the Interior that her late husband's granting request for Koula in Hanapepe, Kauai be declared null and void and the land revert to government.(Vol.7 P.169); Request granted purchase annulled (Vol.7 P.199).
August 24th, 1860, An Act "For the relief of certain Konohiki(s)," whose names appear in the Mahele Book of 1848, but who had failed to present their claims before the Land Commission. Granted Land Commission Award MA55 to Paniani "Life Estate" Expired upon death 1852-53(B.3 P.336).
In 1873 Eliza Sinclair orders Boundary Certificate No. 14 for Paniani's claim (Vol.1 P.64-69)
In 1887 Land Commission Award MA55 to Paniani was conveniently granted a Royal Patent 6998 by someone claiming to be his wife(B.25 P.115-116). "INSURGENTS"
Territory v. Gay & Robinson, 25 Haw, 651; “Territory files a action of ejectment for ili of Koula in Hanapepe, 740 acres. G & R claimed predecessors in title "the Kingdom of Hawaii" had released and quiet-claimed all its right and interest in the land described in the complaint by RP 6998. “
753 F2d 1468 Robinson V. R Ariyoshi; “Gay and Robinson, owned substantial land grants within the ahupuaa of Hanapepe, a local designation of land extending from the top of the central mountain mass of the Island of Kauai to the sea and roughly encompassing the drainage of the Hanapepe River. By 1922 Gay and Robinson had been to court at least once and had their title confirmed by the territorial courts to a substantial portion of the lands. "CROOKS & CROOKS FRAUDULENT CLAIMS"
Namoki; ili of Koula, Land Commission Award 10457 (B.9 P.449), Royal Patent 3855 (B.16 P.469).
Alaiki; ili of Koula, Land Commission Award 8035-X (B.9 P.476) and (B.5 P. 546).
“The Major issue here is not that the Kanaka maoli was trespassing and hunting on private property without the consent of the owner, "Robinson Family" who claims that their ancestors were the konohiki of the subject property and that hunting was never allowed on “their private property”. Robinson Family has always claimed that they have Deeds from the King and they where asked personally by King Kamehameha V to be the saviors of the Hawaiian race and preserve their culture; prima facie evidence says otherwise.”

Anonymous said...

“To even further the FRAUDULENT claims of private property ownership, Aubrey Robinson, co-founder of Gay & Robinson "Ownership British"(1893 Report of James Blount) was never naturalized as a Hawaiian subject but a resident alien as of 1893. Confirmed as a resident alien on May 28th 1896 at the age of 40, Aubrey Robinson, National Register of the Republic of Hawaii (State Archives).
Haole "Alien" were granted proprietary rights or Fee-simple Real Estate, ("subject to the rights of native tenants"). Under the conditions of Allegiance and obedience of laws to the kingdom. Thus, eliminating the currently assumed vested rights the "Robinson Family " claim to have under evidence of possession for all there land holdings.”
[Ni'ihau included, declared forbidden by Aubrey Robinson in mid 1900's during the Territory era; thus, not declared by the King to be isolated by the outside world, since Ni'ihau was Hawaiian Government Land, that belonged to the chiefs and people forever “subject always to the rights of native tenants”. Hawaiian Government Land was to be sold by Minister of the Interior, upon approval of the King in Privy Council. Therefore, King Kamehameha IV or V didn't have the constitutional authority as an individuals to dispose of such lands without going through the checks and balances of law. “I'd love to see the land documents for this one”]

Joan Conrow said it best in her Friday, April 17, 2015 article pertaining to Hanalei Golf & Beach Club; “There you have it. The super rich are proclaiming themselves the new konohiki. Yeah, just go ahead and claim not only the island, but the culture and the mana”...“So act like you own the whole dam place.”

"The lease of 1887 to Eliza Sinclair had long EXPIRED, yet Gay & Robinson continue to perpetuate the lies of their ancestors. Theft by deceit, "PILLAGING"! Diverting the waters of Koula and other watersheds to other lands they claim to own for domestic, irrigation purposes and hydro-plant; Leasing of allodial lands held in TRUST by Kamehameha III. Crown and Government Lands were not subject to adverse possession, nor could they be claimed by prescription base on the expiration of said lease. And since allodial lands of the ali'i, konohiki and maka'ainana class weren't included in the 1898 Joint Resolution “FAKE ANNEXATION” to legally transferred title from the Republic of Hawaii to the United States, the land remains in “Kamehameha III Land Trust”,res judicata."

In re Title of Pa Pelekane, 21 Haw. 175; “the Territory, as successor to the Kingdom of Hawaii, has obtained title to this lot by prescription.” 1893 Act of Treason upon the Constitutional Monarchy by Committee of Safety, Provisional Government, and Republic Of Hawaii does not give the Territory title by prescription nor the State of Hawaii Absolute Title to Hawaii. “Allodial title, unalienable forever, no government, agency, bank or other sovereign power could place any lien, attachment or encumbrance on land held in an allodial state. A title derived from the original, Land Commission Award upon confirmation of Royal Patents or Land Patents are still today the highest evidence of superior title and have never been refuted by any court of competent jurisdiction.” Kiekie v Dennis, 1 Haw, 42 and Thurston v Bishop, 7 Haw, 421.

Anonymous said...

Kanaka Maoli Vested Rights in the Allodial Royal Domain.
1847 Joint Resolution on the Subject of Rights in Lands and the Leasing, Purchasing and Dividing of the Same; Hoa'aina rights, [1/3 undivided interest.] “the rights of the Hoa'aina shall be repected.”
Included in these vested rights were "usage rights": water, fishing, gathering; access, cultivation, pasturage of animals, and burial etc.
1850 Kuleana Act established to the Maka'ainana fee-simple title by Land Commission Award [1/3 divided interest.] “the rights of the Maka'ainana shall be repected.”
Maka'ainana could not be divided out as a class like the 252 Konohiki class; thus, Kanaka Maoli, PAST, PRESENT, FUTURE, hold a 1/3 undivided interest and at any time may exercise that right. ["ua koe ke kuleana o na kanaka" (Garoovy 2004)]

1846 Statue Laws of His Majesty Kamehameha III, Compiler's Preface;
“Many cases must necessarily arise that can only be measure by the old law. New laws or amendments of the old, cannot divest rights previously acquired, and, as in other countries, so in this, the repealed ordinances modification. Means and remedies may be altered, but the rights themselves, if vested, cannot be constitutionally disturbed. This is one admitted doctrine of civilized jurisprudence. Another of its admitted doctrines, even in the exposition of new laws is, that the old law must first be understood and the mischief intended to be cured by it, in order to apply the remedy.”

Hawaii Revised Stautes – Hawaiian Kingdom Law
172-11 Land patents on land commission awards; to whom, for whose benefit. [L1872, c 21, §1]
172-12 Land patents issued after boundary and commutation settled. [L1872, c 21, §3]
1-1 Common law of the State; exceptions. [L1892, c 57, §5; L 1847, p 5; cc 1859, §§14, 823]
7-1 Building materials, water, etc. [L1859, §1477]
Hawaii State Constitution
Article 9 §10 Public Safety; Kamehameha I, 1797 Law of the Splintered Paddle
Article 12 §7, Protection of vested rights, they being protected by the law in their hoa'aina rights as before prior to 1778 regardless of blood quantum.

Act of 1846 Introduction to the “Principles Adopted by the Board of Commissioners to Quiet Land Titles in Their Adjudication of Claims Presented to Them.”
“The same rights which the King possessed over the superior landlords and all under them the several grades of landlords possessed over their inferiors, so that there was a joint ownership of the land; the King really owning the allodium, and the person in whose hands he placed the land, holding it in trust...It seems natural then, and obviously just, that, the king, in disposing of the allodium, should offer it first to the superior lord, that is to the person who originally received the land in trust form the King; since by doing so, no injury is inflicted on any of the inferior lords or tenants, they being protected by the law in their rights as before; and most obviously the King could not dispose of the allodium to an other person without infringing the rights of the superior lord. But even when such lord shall have received an allodial title from the King by purchase or otherwise, the rights of the tenants and sub-tenants must still remain unaffected, for no purchase, even from the sovereign himself can vitiate the rights of third parties. The lord, therefore, who purchase the allodium, can no more seize upon the rights of the tenants and dispossess, them.”

“Kamehameha III Land Trust, res judicata”...“Ua Mau Ke Ea O Ka 'Aina I Ka Pono” His Majesty King Kamehameha III.”

Anonymous said...

Link to mp3 of Oral Argument for STATE OF HAWAII V KUI PALAMA

Anonymous said...

Everyone must visit the
King Kamehameha V Judiciary History Center

Here is a film about:
Oni vs. Meek/Hoa'aina vs. Haole


Who was right you are the judge...

State of Hawaii vs. Ku'i Palama

Proof Hoa'aina rights and Native Tenant Rights held by Kanaka Maoli(Native Hawaiian) continue to exist within the Illegal State of Hawaii system.

Anonymous said...

no rights.

the "hawaiians" killed the original inhabitants (ie.Menehune) of the islands when they arrived from Polynesia 1250 ad. the so - called hawaiians are actually trespassers themselves. Sort of like what the americans did to the indians to get their land. But then you are saying the hawaiians are just like the white americans; killers and land grabbers.