Wednesday, December 30, 2015

Musings: On Camps

Opponents of Kumu Camp are collecting signatures against the Anahola tourism project to present to the Department of Hawaiian Homelands at its January board meeting.

The petition calls for closing Kumu Camp, which rents 10 “high end” tentalows, two yurts,15 campsites and a “mobile certified kitchen” on Hawaiian Homelands in Anahola. The petition states that the project “has created unnecessary controversy and dissent in our community.”

The petition also states that the developers, who include Kauai County Councilman KipuKai Kualii and Robin Danner, “have been operating without regard for the laws and regulations that protect our land, water, and culture.”

“There should be NO development of an area known as a site of 'iwi kupuna,” the petition states in bold lettering, referencing the presence of ancient burials.

The petition also expresses a “lack of support” for DHHL to award a permit for the adjacent parcel, Camp Faith, to the same developers.

As I previously reported, though Kumu Camp has been in operation for three years, it only recently completed an after-the-fact Environmental Assessment.

The DHHL board voted to defer accepting that EA at its November meeting, in response to community complaints about the project, including construction of an unpermitted, above-ground waste water treatment system.

According to Anahola resident Pat Hunter-Williams:

A petition to DHHL was circulated in 2012 expressing concerns about Kumu Camp and the lack of information shared by the developers before the land clearing began, along with the lack of the developers engaging the community in addressing concerns.  Concern was expressed about the area known as the Anahola Sand Dune Burials and the environment.  Unfortunately, that petition was never sent at the time, but was recently found and has now been sent to the DHHL Commission.

Opponents are bolstering that with the second petition that is now being circulated.

Pat also noted that DHHL Commissioners had asked people testifying at its October meeting, held on Kauai, if they would be agreeable to relocating Kumu Camp — perhaps to the Anahola Beach Park area (across from Smith's Beach). However, the developers did not think they should have to "compromise" with a relocation, Pat said.

This time of year makes me think of a much different "camp" — Koloa Camp. During the holiday season of 2011, Grove Farm sent out eviction notices to the 13 families living there. This created great anguish and angst, partly because of the timing, and also because many were longtime  — even lifelong — residents of the former sugar plantation camp.

The state Legislature actually weighed in with a resolution urging Grove Farm to spare Koloa Camp. But the company refused to budge. Instead, it pushed ahead, claiming the evictions were needed to make way for an affordable housing project. 

At the time, residents wondered why they had to get out before Grove Farm had even submitted its plans to the county, and whether the project would ever go. And now here we are, four years later, and those questions still remain. Why did Grove Farm evict all those local families, and then just let the property sit? 

It was such a cruel and seemingly unnecessary action — especially for a company that takes great pride in being named, for the fourth year running, one of Hawaii's Most Charitable Companies. 

Tuesday, December 29, 2015

Musings: On Luddites and Lies

Perhaps it's a personal shortcoming, but I can't help but feel gleeful when folks get their comeuppance.

Especially when it's the Center for Food Safety (CFS), a mainland-based lobbying firm that has worked tirelessly in Hawaii and elsewhere to foment fear and loathing of GMOs, and backed a spate of poorly written laws aimed at destroying Island agriculture.

Now the fear-mongering group is getting some well-deserved recognition, as the Information Technology and Innovation Foundation nominates CFS for the 2015 “Luddite Award.” As ITIF notes:

CFS has many lawyers but only one scientist on staff. The organization has little or no expertise in food safety, but “demonstrated experience in promoting fear.”

“Their raison d’etre is to use misleading claims, lawsuits, and other harassment to oppose agricultural innovation and keep the world safe for Victorian farming methods. Besides opposing more affordable and healthier salmon, the Center for Food Safety also has pushed to stigmatize foods derived through biotech improvements by labeling them even when exhaustive research concludes there is no health, safety, or nutritional information to convey to the public.”

Speaking of stigmatizing by labeling, though CFS claimed credit for defeating the so-called DARK Act, which would've prevented states from imposing labeling laws, U.S. Ag Secretary Tom Vilsack is planning a little sit-down with industry and consumer groups in January to hammer out a labeling compromise.

The former Iowa governor said he is concerned about "chaos in the market" if more states implement labeling laws with differing provisions. “That will cost the industry a substantial amount of money, hundreds of millions of dollars, if not more, and it will ultimately end up costing the consumer” through higher prices, Vilsack said.

Sounds like CFS's victory celebration was a tad premature. Because no lawmaker wants to be blamed for higher food prices.

Returning to the “Luddite Award,” ITIF says the most comprehensive meta-analysis to date shows biotech innovations in crop improvement have increased agricultural yields on average by 22 percent, reduced pesticide use by 37 percent, and increased farmer income by 68 percent.

But hey, CFS makes its money suing the government over GMOs and begging the public for donations to fight the bogeymen it's created. So it doesn't matter what the facts say: CFS collects its kala fighting GMOs, so it ain't gonna stop.

Speaking of anti-GMO activists with financial interests in maintaining the fight, I noticed that Jeffrey Smith, head of the misnamed Institute for Responsible Technology, is now hawking a supplement called “Restore.” It supposedly closes the tight junctions between intestinal cells that are supposedly opened by GMOs. And such a deal: just $69.95 for 32 ounces.

Why can't folks see through these charlatans?

Meanwhile, in doing a Google search for Hawaii Center for Food Safety, I found this curious site, which claimed:

A little-known fact is that the “Original” and only Center for Food Safety and Applied Nutrition is a branch of the FDA.

We formed a Hawaii non-profit group called the Hawaii Center for Food Safety for the education about safe, affordable food for Hawaii. Then some time later the Center for Food Safety flew into town; that’s right we were grown here, and they flew here.

It seems that CFS applied some legal bullying, and the Hawaii nonprofit changed its name to Hawaii Center for Safe Affordable Food, though it retained the domain name. CFS then shamelessly snatched up the nonprofit's name for its own Oahu branch office.

Hmmm. This seems to be something of an MO in the ethically challenged anti-GMO ranks. As I noted previously, a new anti-ag/anti-GMO Oahu group stole the name North Shore Ohana from a legit Kauai group that successfully litigated for public shoreline access.
In closing, this quote from H.L. Mencken seemed appropos:

The men the American people admire most extravagantly are the most daring liars; the men they detest most violently are those who try to tell them the truth.

So it's not surprising at all that "the Donald," Jeffrey Smith and CFS have their ardent admirers.

As do the Luddites, who were, according to an article in the Smithsonian magazine:

neither opposed to technology nor inept at using it. Many were highly skilled machine operators in the textile industry. Nor was the technology they attacked particularly new. Moreover, the idea of smashing machines as a form of industrial protest did not begin or end with them. In truth, the secret of their enduring reputation depends less on what they did than on the name under which they did it. You could say they were good at branding.

Tuesday, December 22, 2015

Musings: Reality vs Facebook

Mark Zuckerberg, the fabulously wealthy guy behind Facebook, is now a resident of Kauai.

So I wonder if our new neighbor happened to read the Washington Post piece by Anne Applebaum – the one that suggested Zuckerberg, who recently announced his desire to give away $45 billion, should “use it to undo the terrible damage done by Facebook and other forms of social media to democratic debate and civilized discussion all over the world.”

And if he did read it, did he reflect at all on the damage that anti-GMO activists have wreaked, primarily through Facebook, on the practice of agriculture in his little paradise in the Pacific?

I mean, is he even slightly aware of how Facebook was — and still is — used to tear apart the island where he bought a couple hundred acres so he can safely retreat from the ugly world that his invention helped to spawn and continues to perpetuate?

Does he even have a clue how activist groups used their Facebook pages to foster fear, spread outrageous lies, harm small businesses, attack and malign lifelong residents of the Islands? Does he feel any sense of responsibility for the very dark side of his creation? Not just in Hawaii, but around the world?

Is his conscience ever pricked? And if it is, is it then assuaged by doling out cash?

As Applebaum writes:

If different versions of the truth appear in different online versions; if no one can agree upon what actually happened yesterday; if fake, manipulated or mendacious news websites are backed up by mobs of Internet trolls; then conspiracy theories, whether of the far left or far right, will soon have the same weight as reality. Politicians who lie will be backed by a claque of supporters.

Rich democracies haven’t realized that this is also fast becoming their problem. Whenever I’ve described the disappearance of facts and the growth of Internet fantasy while in London or Washington, the response has usually been rather smug: How very terrible for all of those people in Tunisia or Slovakia, but “it couldn’t happen here.” But it can and it has: Donald Trump claimed that “thousands” of Muslims in New Jersey cheered the collapse of the World Trade Center, and thousands of real commenters and bloggers rushed to his defense on Facebook and elsewhere. Never mind that it didn’t happen: It is now possible to live in a virtual reality where Trump’s lies are acclaimed as the hidden truth that the mainstream media have concealed from the masses.

Many of those who do the inventing have particular political goals.

But the longer-term impact of disinformation is even more profound: It creates cynicism and apathy. Eventually it means that nobody believes anything. People aren’t bothered by Trump’s lies — or Vladimir Putin’s lies, or the Islamic State’s lies — because they don’t believe anything they read anyway. There’s so much garbage information out there, it’s impossible to know what is true

Nobody yet knows what to do about this sea change, because few people have even accepted that it is happening or understand how it works. There’s a wide-open space for Zuckerberg to help journalists, academics, activists and politicians figure out how to bring reality back into public debate. 

Honolulu Star-Advertiser columnist Lee Cataluna referenced this same dynamic in her Sunday piece about visiting Monsanto's operations on Oahu:

How do you talk in an understandable way about reality versus what they read on Facebook?” asks Shay Sunderland, Ph.D., who has been with Monsanto for 23 years.

It’s a sincere question for this era, when hysteria and untruths have drowned out thoughtful conversation on a most crucial topic: how to feed the world’s people.

I grew up in a sugar plantation family. My father, both grandfathers and three great-grandfathers all worked in sugar. I grew up hearing about growing cycles and crop yields at the dinner table. Walking along a dirt road with blue-green mountains as the backdrop and a long sweep of rectangular fields stretching toward the ocean is like stepping back in time to a Hawaii I dearly miss.

So I am inclined to like agriculture. Not just hazy Pinterest photographs of darling boutique farms, but agriculture — the science of growing crops to feed the population.

I don’t understand why there is hysterical distrust of science. It is fearmongering. It is often wildly untruthful. It is unproductive. I can’t imagine Hawaii without agriculture. I’d rather see those lands in crops than in rows of look-alike houses.

So should we just stand down and trust everything Monsanto (and Syngenta and Dow and Pioneer, etc.) says? Of course not. We should be watchful and open-minded, willing to consider new, science-based data that may challenge our understanding about what’s safe and what isn’t. If you see something, say something. But that’s very different from forwarding a scary meme you saw on Facebook and trusting it as irrefutable truth.

I came home after my visit to Monsanto in the same shape as when I left, no obvious lingering effects from being so close to dust, pesticides and genetically manipulated plants. But I was no closer to understanding how we have allowed agriculture to become demonized in a place where so many of our families have such a strong connection to farming the land.

My own writings on this topic have been driven not by a love for Monsanto, or any multinational chemical company, or even support for GMOs, but a love for agriculture in Hawaii, and most especially, a love for the truth. And part of that truth-telling includes continuing to spotlight this issue, even though it makes some people — perhaps those who are ashamed of their behavior? — uncomfortable.

We aren't going to heal and progress as a community, a nation, a planet, unless we start valuing truth and ostracizing those who intentionally distort it.

Friday, December 18, 2015

Musings: Still Bitter

Though anti-GMO activists tend to downplay the polarization caused by their tactics in the Islands, a recent exchange at the Kauai County Council revealed the deep antipathy that bubbles just beneath the surface.

The panel had just finished wasting some 30 minutes on Councilwoman JoAnn Yukimura's petulance — she was demanding a woman repeat her entire six-minute testimony because she "didn't get it all down,” when she simply could've reviewed the written testimony that had been submitted.

But then, JoAnn has lost all semblance of reasonableness, and the bizarre exchange prompted one Council-watcher to observe that “JoAnn's lost it.” Sadly, she still has another year in her term.

Following this juvenile digression, the Council was visibly frustrated, as was the audience. 

Councilman Arryl Kaneshiro, who was chairing the public hearing, asked, “If there anyone else in the room who would like to testify?" And then he laughed, and added, "After that?”

A man in the audience called out, “Aren't you guys ashamed of the way you behaved?”

“Yes, I am, sir,” replied Council Chair Mel Rapozo, who had just said it was one of the worst days he'd ever experienced on the Council, which is saying a lot.

The man continued to call out questions and comments, and refused to sit down or stop talking, prompting several members to say police should be called.

“You're in charge of the meeting,” Councilman Gary Hooser said to Arryl. “Tell him to shut up.”

“No, you cannot act like 2491,” Councilman Ross Kagawa interjected, referencing the unruly hearings held on the anti-GMO/pesticide regulatory bill that was passed by the Council, but overturned by a judge. “That does not happen here.”

And then he looked at Gary and said, “Not like your son swearing at us. That does not happen.”

As the room erupted into chaos and Arryl called for a recess, Gary could be heard saying, “Where is this coming from? I'm sitting here minding my own business and you're like losing your temper. Get a grip on it.”

“You get a grip on it,” Ross replied.

“Yeah, bite me,” said Gary, employing one of his most juvenile comebacks. “What you bring my family up for?”

Uh, because you and your son were the thuggish ringleaders in the 2491 circus? And obviously those antics still grate.

Which brings us — again — to the question: How is Kauai going to come back together after the ugliness of 2491 tore it apart? Especially when some of the lead players have not changed their ways?

Thursday, December 17, 2015

Musings: Goose Chase

The Kauai Joint Fact Finding Group's draft report on pesticide use — set for release on Sunday — has been delayed until Jan. 6.

Why? Because “Councilmember JoAnn Yukimura has requested we change the public comment period in light of the holidays,” wrote JFFG Facilitator Peter Adler in Update #7.

It's unclear why JoAnn should have any say in the group's proceedings. What's more, her meddling actually works against the public interest. Now folks will have just five days — rather than 22 — to read and digest the document before the JFFG holds a public briefing on it Jan. 11.

Initially, the draft report was due to be posted on line Dec. 20, with public comments taken through Jan. 13. Now it's set for release on Jan. 6, with the public comment period ending Jan. 31. In any case, the briefing remains scheduled for Jan. 11, giving folks precious little time to prepare.

Regardless of the report's timing, it appears the JFFG has found no smoking gun, uncovered no evidence to support the oft-uttered claims that the seed companies are sickening folks on Kauai.

But that hasn't stopped certain interested parties — namely Councilman Gary Hooser — from trying to dredge something up. Last month, he began pressing the county water department to test Kauai's drinking water for the pesticide chlorpyrifos.

Why, you might ask, did Hooser only now make such a request, when it's been known for years that the seed companies apply it? (Golf courses and pest control companies use it, too.) Indeed, Hooser and other anti-GMO activists have fingered chlorpyrifos as the source of numerous human health woes. But they never requested testing until the JFFG, which will also address “Recent Pesticide Developments” concerning glyphosate and chlorpyrifos, is on the eve of releasing its report.

Studies have linked chlorpyrifos to neurological and other development problems, especially when there's prenatal exposure. But the key here is exposure. Hooser and the anti-GMO activists have consistently claimed that westsiders are being harmed by pesticide drift when chlorpyrifos is applied to the fields. This contention has underscored their demands for both disclosure and buffer zones.

Meanwhile, in the real world of science, the EPA has been conducting a review of chlorpyrifos for the past several years. Its studies have effectively undermined the contention that Kauai folks are even being exposed to airborne chlorpyrifos, much less harmed by it. To wit:

To increase protection for children and other bystanders, chlorpyrifos technical registrants voluntarily agreed to lower application rates and to other spray drift mitigation measures. The resulting buffer distances (feet) necessary to reach the level of concern for adults (females 13-49 years old) and children (1 to < 2 years old) with use of certain application rates, nozzle droplet types, and application methods range from 0 to 25 feet.The estimated buffer distances are less than those agreed to by the technical registrants in July 2012. 

Furthermore, emphasis added:

In January 2013, a preliminary assessment of the potential risks from chlorpyrifos volatilization was conducted. However, this assessment was revised in June 2014 following submission of two vapor phase inhalation toxicity studies which indicate no adverse effects occurred even at the saturation concentration for chlorpyrifos and chlorpyrifos oxon. Because these new studies demonstrated that no toxicity occurred even at the saturation concentration, which is the highest physically achievable concentration, there are no anticipated risks of concern from exposure to the volatilization of either chlorpyrifos or chlorpyrifos oxon.

It appears, then, that Kauai people are not at risk from either chlorpyrifos drift or volatilization, as has been widely claimed by Hooser and the anti-GMO activists. And with the seed companies voluntarily agreeing to 100-foot buffers, any risk is even further minimized.

So if you're trying to make chlorpyrifos the bad guy, the source of so many health woes among westsiders, you've got to try and find another source of exposure, with food and water the only possible culprits.

The EPA report notes:

Though there do not appear to be any risks from exposure to chlorpyrifos from food, when that exposure is combined with estimated exposure from drinking water in certain watersheds, EPA cannot conclude that the risk from the potential aggregate exposure meets the FFDCA safety standard.

There may be potential risks for people whose drinking water comes from small water systems in heavily farmed areas where chlorpyrifos may be widely used. 

Hence, Hooser's request for water testing. Because he's concluded that west Kauai is one of those “vulnerable watersheds." 

Is it? Well, according to data from the Good Neighbor program, the seed companies applied chlorpyrifos to about 1500 acres over the past two years. That's less than a tenth of the land they lease and a fraction of the overall westside acreage. Is that an intensive use in a small watershed? The state and county apparently don't think so.

On Nov. 2, Hooser sent a memo to Kirk Saiki, manager and chief engineering of the county Department of Water (DOW). Gary wanted to know if DOW is testing for chlorpyrifos in the county's drinking water. If so, had detectable levels been found, and where? And if not, why not?

Kirk replied that the EPA “has set a guideline for chlorpyrifos in drinking water at 2 ug/l (micrograms per liter or parts per billion), but has not set a drinking water standard likely due to the fact that chlorpyrifos exhibits a low solubility in water.”

DOW does not test for chlorpyrifos, Kirk said, but it did consult with the state Department of Health (DOH) “to determine if there was a concern about chlorpyrifos contamination of the groundwater on Kauai.”

The DOH noted that the largest user of chlorpyrifos is corn, and the organophosphate is applied to the plant, not the ground, so it has more potential to drift than fall to the ground. What's more, it has a short half-life of 51 days. Additionally, a model developed by DOH and the University of Hawaii to predict the leaching potential of chlorpyrifos “shows the chance of groundwater contamination by chlorpyrifos on Kauai to be unlikely.”

Even the EPA is not especially concerned about groundwater. It specifically notes, exposure to chlorpyrifos-oxon in drinking water derived from surface water may pose an exposure concern.” Kauai drinking water is primarily derived from groundwater sources, except in parts of Lihue.

So why not just go ahead and test? Well, testing costs money, and the water department already tests for dozens of compounds, including atrazine and glyphosate, that it believes are more likely than chlorpyrifos to find their way into water supplies.

In today's The Garden Island, Hooser is quoted as saying, in opposition to a half-percent increase in the general excise tax:

“Experience has taught me that we never have enough money to do what we need to do. I’m looking for other funding options.”

If Hooser sincerely believes the public is at risk from chlorpyrifos, and the county and state are derelict for not testing, perhaps he could convince one of his wealthy donors to pick up the tab. Or maybe HAPA and Center for Food Safety could have paid for some actual tests, rather than send people on a propaganda mission to Switzerland or bring in Vandana Shiva for yet another talk.

But then, why would they waste their own dough on a wild goose chase when they can try to bully public agencies into footing the bill?

Tuesday, December 15, 2015

Musings: Forbidden Fruit II

Following the Forbidden Fruit I post, several commenters asked why Kauai County allows the illegal vacation rental trade to flourish. Others questioned whether corruption or graft is at play.

Though I've been regaled with tales of applicants plying planners with food and liquor, paper sacks of cash changing hands, and county workers demanding that applicants use certain contractors in order to gain permits, I haven't been able to verify any of it, or get anyone to go on the record.

What seems more likely is that Kauai County allows illegal vacation rentals to continue because it directly profits in the form of higher real property taxes paid by landowners who are claiming a TVR use, even though they lack permits.

A limited review of county tax records shows that in Wainiha-Haena alone, 11 property owners are currently claiming a vacation rental use, or have recently switched from such a use to “commercial home business,” even though they lack valid TVR or homestay permits.

Another six are operating blatantly in the state conservation district, even though such uses are prohibited in that district and they lack county permits.

This is in addition to the 87 active and licensed TVRs in Wainiha-Haena, including four that were issued cease and desist notices for violations, though they continue operating pending their appeal.
And how many more, do you suppose, are running completely under the county's radar? Well, that's easy enough to find out. Just take a gander at the AirBnB site.

This is how a rural North Shore community — one with no services and serious flood exposure — turned into a de-facto visitor destination area and lost nearly all of its longterm rental housing, as the county deliberately looks the other way.

It's gotta be deliberate, an intentional inertia of political will. Because surely at least a few of these properties are sufficiently easy-pickings to catch the eye of the planning department. Especially when the County Council ordered it to go forth and harvest the low-hanging fruit.

The 11 property owners include: Patricia McConnell's Song of the Jungle; Lindon Keeler's Affordable North Shore Cottage; the Stocksdale 2000 Trust's River House; Bomun Bock-Chung's multiple TVRs, known variously as Pinao (currently on the market for $1.29 million), Rainbow Views, Lily Pad, Dawn and Moon; Martha Fritsch Trust's Halehanu Studio; Marcus Pettini's Hale Haena Vacations, with two B&Bs in the same house; Andrea Smith's TVR; David Rees' The Cottage; Steven “Esteban” Rogers, who rents Haena Hideaway, Haena Hale and one advertised as “New! Haena Haven,” and the Guyer-Searles' Revocable Trust's Hale Ho'o Maha.

Even though they have declared themselves as TVRs for tax purposes, many play coy or lie outright on their websites to avoid obvious detection. Take Halehanu:

Taxes & Cleaning are included in the nightly rate. Payment information is detailed in the initial quote given to our perspective guest from their inquiry here on VRBO. This studio is 'permitted' with a Transient Accommodation Registration Certificate Hawaii Tax ID#. Our Tax ID # is posted by law is: W91663365-0. This is a "Transient Accommodation Certified Registration".

Perfect for a couple, for long term not less than 180 days. If you're staying for less time as a guest of the owner, and have been invited to this site, welcome!!

Yeah, right. Because people always direct their personal guests to commercial websites.

Or the Lily Pad, Dawn and Moon studios, whose website with PayPal buttons reads:

Natural Kauai by private invitation only
Not for public use You are Booked :)

Others that previously claimed a TVR use switched to “commercial home use” to remain under the radar or to begin preparations for seeking approval as a homestay.

So why do people voluntarily pay far more taxes when they're already running an un-permitted visitor accommodation? If they're ultimately busted, will they claim they thought it was legit because they were paying taxes all along? This seems to be an attitude the county tacitly endorses.

How else to explain why Hale Ono remains in operation? As I reported back on March 18, 2013, in part six of the Abuse Chronicles, it has an illegal ground floor bedroom in the flood zone. Its first application for a TVR permit was denied, and the second was withdrawn. But all this time it's made like it did get a permit: paying TVR taxes, openly advertising on-line, renting for an average of $471 per night.

Isn't that rather ripe — a low-hanging morsel just waiting to be plucked? Especially since it was pointed out to planning two and a half years ago. Heck, it must be rotten by now.

Or Hale Ho'o Maha, which has been operating an illegal multifamily TVR since 2004, and only last year got DOH approval of its septic system. It's never ever had a permit. Yet it continues to operate as area residents and the county contest its bogus application for a homestay permit. But even if the contesters win, the owners' attorney, Jonathan Chun, can appeal, dragging citizens with no resources into court while he gets paid and his clients continue to generate income from their unpermitted use.

It's a dispiriting fight, let me tell you.

To put the property taxes in perspective, Nick Michaels — whose Blue Lagoon TVR was also featured in the Abuse Chronicles — can pay his half-year tax assessment in just 10 days with his $1,500-per-night rental fee. Though he never bothered to renew his TVR permit for several years, and the county recently sent out a cease and desist notice, he'll be allowed to keep operating while the appeals process drags on. 

In short, there are few to no serious consequences for either permitted or illegal TVR operators who flout the ordinance — perhaps because the county allowed so many of them to improperly obtain their lifetime permits in the first place.

There's another force, besides filling its own coffers, that compels the county to ignore all these illegal TVRs. It's called the high-end real estate market. Take, for example, that little cluster-fuck known as Haena Cove. It comprises three vacation rentals — Hale Kamani, Lihi Kai and Hale Mahana — on one oceanfront lot.

As I reported in part 11 of the Abuse Chronicles, the county initially denied applications for Lihi Kai and Hale Mahana because of zoning violations. Two years later, after the new owner hired Jonathan, the county approved the TVR permits, even as it re-issued the zoning violations. Meanwhile, the property had sold for $7.5 million. Now, despite receiving just two very questionable TVR permits, all three houses are listed as vacation rentals on their real property taxes.

I don't hold out much hope that Kauai County will get serious about TVR enforcement. As one commenter admonished:

Everybody should know by now especially Joan that THEY DON'T WANT IT!

But still, it's important to keep shining a light on this issue. 

I mean, just in case you were wondering why the county was able to strong-arm some of the mom-and-pop B&Bs into shutting down, even as the well-heeled illegal guys keep operating like it's business as usual.

Because it is.

Friday, December 11, 2015

Musings: Native Rights Upheld

The Hawaii Intermediate Court of Appeals has ruled in favor of kanaka maoli in a landmark case upholding a Kauai man's use of traditional gathering rights.

In a unanimous decision, the court upheld Kauai Circuit Judge Kathleen Watanabe's ruling dismissing charges against Kui Palama, who was arrested in early 2011 for hunting pig on Gay & Robinson land.

Kui was charged with simple trespass and hunting on private property. But his 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).

Judge Watanabe granted the motion, and the Kauai Prosecutor's office, then under the direction of Shaylene Iseri, appealed the ruling. The appeal was continued under Prosecutor Justin Kollar, and attorney Dan Hempey represented Kui in the appeal.

The ICA found that Watanabe did not err in finding that Kui passed the three-prong test, and that pig hunting is a traditional practice.

As Hempey noted, though the Hawaiian Supreme Court granted traditional Hawaiian practices the broadest of protections, but it seems that county prosecutors are often trying to narrow that protection.

It's been a long legal road for Kui, who was confident of winning the appeal. As I reported in a previous blog post:

Kui, whose family cultivates taro just downslope from Robinson land in Hanapepe, isn't worried about the appeal. “When you're right, you're right,” he said.

I was especially interested in how Kui, who had a whole binder full of court documents, instructed Tim in 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?”

Kui knew his family geneology and was able to bring in a witness who could confirm it. They also called Dr. Jon Osorio, a professor of Hawaiian Studies, as an expert witness. The prosecutors office argued against the designation, but if a Hawaiian Studies prof at UH isn't an expert in Hawaiian culture, who is? Anyway, he testified that hunting pig is indeed a traditional cultural practice.

Kui also was able to show that caused no disturbance. He killed the pigs with a knife, so guns weren't discharged, and he was on undeveloped land. Furthermore, he was killing pigs that were destroying his family's taro patch, and he was using the meat for food.

Though the lengthy court proceedings "were one headache and frustrating at first," Kui bears no malice.

I'm not upset with Gay & Robinson for arresting me because it pushed me in the right direction,” Kui says. “We keep hearing, you have these rights, but what does it mean? By actually going through the process I learned a lot.”

Kui hopes his experience will encourage other Hawaiians who are hesitant to exercise their traditional cultural rights because they fear being arrested. Though he's willing to help others go through the process, he can't understand why Hawaiians have to keep proving they're entitled to rights guaranteed by the state Constitution.

We were born here with this right,” he says. “They acknowledged we had this right. They didn't give it to us.”

Kui says it has become increasingly important for Hawaiians to exercise their access rights because mauka lands used for subsistence hunting are being blocked by private landowners. Gay & Robinson maintains a strict no trespassing policy and hires guards to patrol its extensive West Kauai holdings.

This is our life here in Hawaii,” Kui says. “How can they stop us from getting food for our table?”

Thursday, December 10, 2015

Musings: Forbidden Fruit I

In early February 2013, a visitor drowned after jumping off an unpermitted dock at a Wainiha vacation rental. That incident, which I wrote about here, led to the Abuse Chronicles, a 20-part investigative series that detailed the illegal shenanigans associated with transient vacation rentals (TVRs) on Kauai.

Following the series, the County Council threatened to investigate the county planning department. The administration of Mayor Bernard Carvalho Jr. promised to reform. Both sides were loath to go after the people who gotten their TVR permits improperly. Instead, the department was told to get its act together and go after the “low-hanging fruit” — the folks who were running totally illegal TVRs.

Fast forward to last week, when the Council began its review of a proposed law regulating homestay/B&B operations on Kauai.

As Council Chair Mel Rapozo noted:

This is an opportunity to craft legislation going forward. The TVR issue … really was an embarrassment. It's just horrible what has happened. The low-hanging fruit that has been promised, what has been done? It makes it difficult trying to pass B&B legislation when owners say you cannot even enforce the TVR law. There's violations everywhere you look in the TVR neighborhoods. It's horrific what we're finding, and where's the enforcement? It's not there.

He then asked Planning to attend a January meeting to update the Council on its TVR enforcement efforts.

Though I hate to spoil the surprise, the answer is simple: Not very much. In fact, it's pretty much same-old, same-old. Business as usual, and all that.

The Kauai Paradise House — the TVR where the visitor drowned, and which I revealed as having been fully renovated without permits — remains open.

According to county documents, owner Victoria Leadley was issued a cease and desist order for “failure to meet ordinance requirements.” But she's appealing that order, and continues to operate in the meantime. The house is booked through the holidays.

In fact, the county has yet to revoke a single TVR certificate, even though it's sent out 13 cease and desist letters for a range of violations. These include: failure to renew, some of them for years; failure to meet ordinance requirements; failure to meet special management area requirements; illegal conversion of a guest house; and failure to meet ownership authorization requirements.

All of the owners are appealing the cease and desist orders, which apparently were not issued until FY 2015, even though the violations occurred much earlier.

Another seven TVR owners voluntary relinquished their certificates.

Meanwhile, it appears that problems remain with the Planning Department's record keeping. For example, in response to my public records request, Planning sent me a list that included all the TVR certificate holders who had been sent cease and desist letters. The list included the owners' names, TMK numbers and TVR certificate numbers.

That list includes Aloha Kai Beachfront Rentals, a Haena house owned by Laura and David Bancroft. Problem is, they never actually got a TVR certificate. The county's TVR log listed the TVR application for that property as denied on June 27, 2009, denied on Sept.18, 2009, denied on Nov. 2, 2012 and closed on Nov. 15, 2012. It was designated a “dead file” on Sept. 17, 2013.

So if they never even got approval, why are they being allowed to appeal the cease and desist order?

The owners know they aren't legit, because they don't post a TVR number on their Internet ads. Instead they misleadingly advertise “Hawaii Vacation Rental Registration Number W87848647-01,” which is their general excise tax number.

And if they aren't legit, how come they can continue to operate, with bookings through the Christmas holidays?

The Bancroft property tax records also tell an interesting story. The property was classified “homestead” in 2010, 2011 and 2012. That changed to “vacation rental” in 2013 and 2014. For 2015 and 2016, it's designated “commercialized home use.”

Tax records also describe the property as having three bedrooms, three bathrooms and a half bath, with the only additions a deck and solar panels. Yet Aloha Kai variously bills itself as a 5-bedroom, 5-bath, sleeps-12 vacation rental “just 20 feet from the sand and a “charmingly rustic home … with 4 bedrooms and 3 baths.“ It's actually a main house and what appears to be an unpermitted cottage with its own kitchen. The “romantic upgraded” cottage is rented separately, which makes this an illegal multifamily vacation rental.
And according to FlipKey reviews, not everyone is happy with the arrangement:

We couldn’t figure out what was going on with the house that this studio is attached to. The house is above and next door, basically surrounding the studio. Sometimes it seemed like a local family was staying there with all the local vehicles parked behind the house. Lots of chatting and some work seemed to be going on. At the end of our stay a huge wedding party moved in. About 15 young people with 5 cars and they kept blocking us in. We lost all privacy and it became very loud. You could hear every foot step above and the toilet flushing down the wall. They even set up a tent in the front yard right in front of our patio. The worst part was that the property management company gave this group the key code to our unit instead of the attached house and they walked right in to our unit by mistake while we were there. I felt unconformable knowing that 15 20-somethings had access to our studio. There was no additional deadbolt or chain to secure the front door. I wouldn’t recommend staying here if the attached house is occupied. And I wouldn’t take the gamble staying here again.
An October guest was similarly displeased:

I wouldn't recommend this place to most people, but if you aren't super picky, want to be steps from the beach and don't want to be in the condo world this place might be worth a try.

Other reviewers dissed the main house, too:

We gave property 4 stars overall because of location, but dirty towels were folded on towel racks for our use, 3 lights out in one bathroom making it very dark & light fixtures very dirty, old junk left around property making it look shabby. It is obvious owners use this as a rental property lacking personal loving care. FYI - there is no hammock as shown in photo.

FYI: There's still something very fishy going on with Kauai TVRs. Will the Council finally press more vigorous enforcement? What will it take to clean up this mess?