Musings: Rewind

The rain returns to replenish the earth, the full moon returns to illuminate our shadows, Valentine's Day returns to open our hearts and this post returns to previous topics to bring them up-to-date.

First, Earthjustice attorney Paul Achitoff says his organization and Center for Food Safety still fully intend to provide pro bono legal services to fight the chem corps lawsuit. But rather than represent the County, which is being sued over Bill 2491/Ordinance 960, they plan to seek intervenor status on behalf on an unnamed community group(s).

Paul says they will be seeking to intervene and he thinks there's “more than a 50-50 chance” the court will let them in. If it does, he says, “our role will be identical” to the one played by the attorneys representing the county. Except they'll have different clients, and he wouldn't elaborate on how the interests of those clients might differ.

Speaking of Center for Food Safety, they have a new video out that features Councilman Gary Hooser along with Vandana Shiva, attorney Andrew Kimbrell and Hawaii Seed President Jeri Di Pietro making her usual outrageous claims:

“There's an epidemic of cancer, leukemias, obesity, asthma and there's more of these diseases in people living near these chemical crops.”

I guess Jeri missed the report from the Hawaii Tumor Registry that found “there is no evidence of higher incidence of cancer on the island of Kaua‘i overall or for specific geographic regions of the island, as compared to the state of Hawaii,” except on the north shore, where there was more skin cancer among haoles.

Which is why I couldn't agree more when I read these words in Dylan Hooser's letter to the editor today:

We should be debating the facts and the issues.

Yes. It's only too bad we didn't start there, instead of passing a bill driven by ego, innuendo, bullying, speculation, hyperbole, hysteria and the fanned flames of fear. And as the CFS video makes clear, those tactics are still being used by at least one of the entities that wants to defend some of our citizens, but not our whole county, in court.

Defeated Prosecutor and former Councilwoman Shaylene Iseri appears poised to re-enter the political arena. She attended Wednesday's Council meeting, where she made a multi-minute rant against the county attorney's request for $500,000 to refill the Special Counsel account. It was followed by this pronouncement: 

I will be here hopefully almost every week to bring forth these deficiencies.

While the County Attorney's office has plenty to ding, it rings a bit hollow to hear a woman who has personally cost the county hundreds of thousands of dollars in legal fees and settlements rail against escalating legal costs.

And finally, following several complaints, the county issued a cease and desist order on the Wainiha house that was being systematically dismantled under a $45,200 building permit for an “unsubstantial improvement," as detailed in a Jan. 31 post.

After the shut down, I got a call first from the contractor, Jeff O'Hara, and then from the architect, Adam Brown, both of whom wanted to say the owners — a young family from New Jersey — are nice people who were not trying to skirt the flood law, had no intention of turning the house into an illegal vacation and truly did want to preserve the adorable modest surf shack they'd purchased.

Adam said he had done everything “by the book," it took nearly a year to get the building permit for the remodel approved and the contractor was never authorized to take down as much of the structure as he did. Jeff admitted he got carried away when he saw the termite damage, but thought he had verbal approval from the building division to remove walls.

Adam has now gotten a permit to demolish the home, and the owners are deciding what's next. In the meantime, Adam wanted to share his perspective with readers, especially those who currently own the classic beach cottages and plantation-style houses sitting at grade in the flood zone:

Many people see the non substantial improvement rules as a way to increase home size, county cheating, etc.  The reality is the non substantial improvement laws are an attempt at systematic removal of Pre Firm homes in the flood zones.  Don't forget that.  FEMA does not want these homes in the flood zone.  The new Biggert Waters Reform Act of 2012 rules coming into effect will substantially raise insurance rates for those homes that are Pre Firm Flood Zone homes.  No longer will government subsidize the insurance.   

A home in this category can only have a maximum of 50% (40% if you don't want to itemize contractor bids) of its value used to repair it every ten years.  The lowered valuations by the county makes the reality of fixing a damaged home difficult.  If you notice the costs that must be included in the calculation are almost everything structural, as well as superficial.  As we discussed, the county uses a higher rate to assess value to repairs past the Hanalei Bridge.  Elevated rates, coupled with lowered assessed tax values makes it more difficult to restore these homes.  I don't just mean the off islanders, this applies to everyone who lives here in an on grade home in a flood zone and wants a permit to fix it.

It is very important that people that own these homes, and want them to stay here and the life it represents, maintain the homes carefully and use these rules to their benefit. They should be making permitted repairs  to correct their homes every ten years, if their home needs correction.  Some are using the rules to maintain size, density and local character but the government is using the rules to remove the homes entirely. Once they are gone, they are never coming back and that time will be sooner than anyone realizes. 

Musings: Pay the Piper

The promise of free legal services to defend Kauai County's controversial pesticide/GMO regulatory law has been relegated to the realm of feel-good fantasy, alongside Santa Claus, the Easter Bunny and the Tooth Fairy.

Like most myths, it was perpetuated for a purpose: lulling a poorly-informed populace into believing Councilman Gary Hooser's ego-driven foray into poor policy-making would have no cost and a happy ending.

Meanwhile, in the real world, the county attorney is asking the County Council today to approve $75,000 to hire special counsel to launch a defense against the chem companies' lawsuit. The county is required to respond to the 70-page complaint by Friday.

Another bill asks the Council to move $500,000 into the special counsel account “for several other ongoing cases, and in anticipation of future needs,” according to county spokeswoman Beth Tokioka.

Returning to the land of make-believe, attorneys like Teri Tico, Peter Schey,  Earthjustice's Paul Achitoff and Center for Food Safety's Andrew Kimbrell lobbied hard for Bill 2491. It's a great law, they said, and we'll be right there to defend it. Here are the letters from Schey, Kimbrell and Achitoff outlining their original unconditional offers. Schey even specifies "without charge to any party."

The County Administration played along, duly giving pro bono attorneys a chance to step up to the plate, even as Maui attorney Lance Collins, supposedly driven by his deep concern for lawyerly ethics and the sanctity of our County Charter, filed a protest against the freebie procurement process — the day before pro bono proposals were due.

Ultimately, only Tico and Schey, director of the California based-Center for Human Rights and Constitutional Law, submitted a joint pro bono proposal, with Tico slamming Mayor Bernard Carvalho Jr. in the process.

Yesterday, the Administration slammed her right back. In rejecting the Tico-Schey offer, the county found the pro-boners were non-responsive to the bid requirements and “did not have the requisite qualifications and experience for the job.”

“That's nonsense,” sputtered Tico, who apparently thinks her provincial personal injury practice on par with the chem companies' heavy hitters — attorneys like former state Attorney General Margery Bronster, land use shark Paul Alston, Nancy Bryson, an expert in biotech, agricultural and federal regulatory law, and John A. Bryson, who litigated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) on behalf of the Justice Department.

Actually, what's nonsense is Tico's claim to The Garden Island that the “county wanted her to disclose every law firm she has every worked with, as well as every case she has been involved in” over 38 years of practice. 

In truth, the required disclosure was quite a bit narrower (emphasis in the original):

A list of projects of similar scope for public agencies or private industry, including corrective actions and other responses to notices of deficiencies undertaken and completed within the last five (5) years (including dates); owners of the projects and the scope of work performed; the names of up to five (5) clients who may be contacted, including at least two (2) for whom services were rendered during the preceding year.

But Tico isn't the only truth-challenged attorney in this fairy tale. In the same article, Collins told TGI:

The county’s secret request for lifting the stay on procurement last week while not informing my office seems to suggest bad faith on the county attorney’s part.

In fact, it was no secret, since the special counsel procurement request was placed on the very public County Council agenda, which was published last week. What's more, notice was emailed to Collins yesterday morning, at least six hours before TGI's reporter would have been calling for comments.

Meanwhile, Collins is pressing on with his protest, though the pro bono procurement process is effectively moot. A pre-conference hearing on his appeal is set for Friday. He now plans to file a motion to freeze the procurement process pending the resolution of his protest, which could extend beyond that day.

No worries, Collins cavalierly claims. The federal judge will let the chem corps complaint slide until my manini, and now irrelevant, issue is resolved.

The County Attorney's office sees it differently. In a Feb. 6 memo to the finance director seeking to move forward to review the pro bono offer and, if it's not satisfactory, secure special counsel, first deputy County Attorney Jennifer Winn wrote:

The risk of harm to the County should special counsel not be in place by the scheduled answer date [Friday] could be substantial and irreparable. 

So whose interests would be served by the delay that Collins is seeking?

Though most of the coverage has focused on Collins' claim that it's unethical to require pro bono attorneys to pay court fees and other costs, he's also challenging the county's long-standing interpretation of the charter.

Collins claims our charter “leaves hiring of special counsel and the scope and terms solely to the County Council,” not the administration. In other words, he thinks the same Council that overturned the mayor's veto of Bill 2491 should now be deciding who defends it, and how much they're paid.

Yet we're supposed to make-believe he's acting solely on his own, as an attorney interested only in process, not politics, personalities or publicity.

Don't get me wrong. I love fairy tales, myths and make-believe. 

But Kauai residents need to shake off the spell that's been cast over them, abandon the fantasy that Hooser is a dragon slayer and face reality: we're getting sued by some of the most powerful corporations on earth over a bill that is more frog than prince. And there ain't no white knight in this or any other kingdom that's gonna ride in and save us. So open up the treasure chest and prepare to pay the piper. Because "poof" — the pro-boners have vanished in thin air.

Musings: Debating the Candidates

Over at a friend's house, rainy afternoon, I spot his mail, piled on the kitchen counter.

“I see you haven't opened your KIUC ballot yet, either. Who are you gonna vote for?”

“Let's see what they got to say for themselves.” He rips open the envelope, scans the glossy KIUC Board of Directors Election Guide, flips it over, expands it to all four panels, flips it over again.

“All the Filipinos gonna vote for him,” he says, stabbing a finger at the picture of Phil Tacbian. “Oh, there's David Iha. All the educators gonna vote for him. He was the KCC chancellor, you know.”

“Yeah.”

“Who's this guy?” He points to Neal Chantara.

“Smart meters. But he's asking the two people who were gonna vote for him to cast their ballots for Jimmy, Jonathan and Adam instead. You know, the guys who just lost the opt-out fee election.”

“Adam Asquith. Oregon State. It says he is a mahi'ai kalo, hoa'aina ha'aha'a — a taro farmer, a humble steward of the land,” my friend translates. “Oh, and a Hawaiian patriot. OK, you know he's goin' for the local vote. Look, his photo even get one extra dark tint.”

I look. 

“Chuck Lasker. Self-employed. Doing what? For sale to the highest bidder?”

“Is that what self-employed means to you?” says I, self-employed, slightly affronted.

He laughs, ignores the question.

“I know this guy.” He is staring at the photo of DJ Jackson. “Oh yeah, he helped me when I had my dive accident. See, he's an ER nurse.”

“He's also the director of Malama Pono, and a friend who worked for him did not have good things to say.”

“That's the PMRF guy,” he says, pointing to Stu Burley. “Swabbie. He was on the board before.”

“What do you really know about Peter Yukimura?”

“Businessman. Isn't he on the board now?”

“Interesting how they don't have the incumbents clearly labeled. Just the code, 'nominated by nominating committee,' which means a group of board members picking each other and past board members. But the other guys only gotta get 25 signatures to run. Anybody could do that.”

“Hmmm,” says my friend. He is looking at the photo of Daniel Erickson. “Masters in science. But what does he do?”

“Who is he?” I lean over my friend's shoulder, read the blurb. “It says he works at KCC.”

“But who is he?” asks my friend.

I shrug, shake my head. “As you can see, I'm not really keen on any of these boys, old or new.”

“Yeah.” He tosses the paper back onto the counter.

“So where does that bring us?”

“Back to the old boys?” he asks dubiously, and then laughs. “Well, they do already know how the whole system works.”

“I'm hungry.”

Musings: Full Disclosure

If Hawaii is the melting pot, well, Kauai could fairly be described as the crackpot of the archipelago. We all know it's hard to find decent, affordable rentals on this island, and for some folks, it's obviously harder than others, as this Craigslist ad makes clear:

Aloha,

Once again I'm looking for that place to call home.

First, I am open to sharing a home as long as there is respect and a good match in lifestyles. It is much better for the environment to share resources rather than having every single person having a refrigerator, etc. and I love having eco conscious people around. I would like to keep rent under $1,000 a month, but can go a little higher.

Major requirements:

A wireless radiation free home - including no smart meter. I am totally willing to pay for cable/telephone service using ethernet cabled internet, phone and TV as well as for opting out of a smart meter. See - http://www.bioinitiative.org/ to educate yourself on this if you do not know how harmful this non ionizing radiation is. I do not own a cell phone, but if a potential housemate does they can have their calls forwarded to a house phone when they are home and then keep their phone either off or in airplane mode to limit exposure to the Class 2B carcinogen they emit.

Eco cleaning and living products used in the home - including pest control. There are safer alternatives readily available today. See - http://www.plusnaturalenzymes.com/ and http://www.seventhgeneration.com.

A full kitchen and indoor shower. Outdoor showers are great, but not as the only option.

A fun and friendly community. I'm open to living on property with landlords present as long as:

* There are no expectations that an intimate relationship is part of the deal.

* Privacy is respected, i.e. no entering the rental without notice and permission and no peeking in windows.

* Totally legal property - I am not willing to live on property that has illegal units, etc. as I have found this leads to landlords who insist on no visitors.

* Preference to have separate utilities - I find it is best if tenants can choose how much they use and pay their way rather than having utilities included and then have landlords who try to limit appliance usage. I am very energy efficiency minded, but do expect to be able to store and cook food.

* Either distance or tolerance for listening to music and having occasional small gatherings. I'm not into wall shaking music. I just like having music or the radio on at times and a few friends over.

Space to garden. Organically of course. A nice sized veggie patch and maybe some beds that could have more permaculture type plants added would be Heaven on Earth.

Smoking - I do not smoke tobacco, but sometimes friends do and I am open to housemates who smoke as long as it is limited to outside, natural organic products and is sensitive to wind direction/open windows.

Other mind altering drugs - I am open to others using mind altering drugs as long as they are not some of the more dangerously addictive ones. I think many of us self medicate with mind altering drugs and that some of these are safer alternatives than anti depressant pharmaceuticals. I also think that many mind altering drugs can be helpful in creative and spiritual pursuits. Drug dependency is a serious problem and is not something I have or wish on anyone. I am very much aligned with the philosophies of Passages - http://www.passagesmalibu.com where they seek to address the underlying cause of why someone would allow themselves to become dependent on a drug. Passages has found that there is good research that shows that many psychological problems are due to a chemical imbalance and that diet and nutritional therapy can cure the underlying cause. As most of us cannot afford or have sufficient health insurance to go there, I suggest reading their book The Alcohol and Addiction Cure if you or someone you loved has a drug and/or destructive behavior dependency.

Good air flow and sunshine would help to keep me smiling.

Safe roads and bike paths for bike riding. (I know this is a long term goal.)

I love living with non human animals too. I do not have any living with me now, but would love to have a few around eventually.

About me:

Okay, obviously I'm an idealist. Everyone tells me put out what you want and you will get it. So here it is. I am 50, female and deeply spiritual. I love to have fun. For me that is listening to music. Dancing to music. Swimming, hiking, and biking. Playing in my garden. I eat a mostly organic, local vegan diet, but I admit I like to eat animals on occasion. I don't pretend it is meat or seafood though. And definitely will not eat factory farmed anything.

I'm not set for life financially, but can cover rent for the foreseeable future. I have some ideas I am investigating as far as long term finances go. I would love to live where I can run a business from my home. Value added food or other plant products is the area I am focused on. My goal is to produce for kama 'aina and not a high priced tourist product.

I want to stay on the North Shore, but am open to other areas of Kaua'i. But not near a cell tower or downwind of GMO fields. Cell towers do not belong in our neighborhoods and should be sited far from where we live and work. People who do live near GMO fields and/or cell towers should be evacuated and compensated for the loss of their right to life, liberty and the pursuit of happiness that a home should provide.

Final note: I am into total disclosure and expect that of others.

So please do not contact me if you plan on misrepresenting your rental situation.

On my part, I have to disclose that I have a stalker. I don't know who it is, but do have some suspects. It could be a total stranger, a man I know who wanted sex or it could be harassment due to my environmental activism. This has been going on for months. This person gets past my security camera. Their MO is to move things so I know they have been here and to turn on the interior lights of my car in an effort to kill the battery.

My philosophy is that we are here for the experience. All is not good, but maybe all is necessary. While I am determined to catch this stalker I also feel compassion for anyone who is compelled, whether voluntary or paid, to live with such an obsession.

While I would like to report that I have excellent references I have not had a great experience with my last two landlords here. Otherwise I do have excellent references.

Mahalo Nui Loa for your kokua.

Musings: Limelight and Darkness

The adage, “you get what you pay for,” certainly seems to ring true with Teri Tico's offer to defend Kauai County pro bono against the chem companies' lawsuit over Bill 2491/Ordinance 960. 

I mean, what kind of attorney apologizes in advance for likely losing the case? And in the process, tells a little fib in order to pre-emptively blame the client?

Because surely Teri knows that an attorney's opinion belongs to the client — in this case, Mayor Bernard Carvalho Jr. — so his decision to make it public couldn't have been an “unauthorized release” as she falsely claims in today's issue of The Garden Island.

And if she's actually read the very detailed complaint, then she also knows that it goes well beyond the issues and concerns raised in the county attorney's opinion.

But why let the truth cloud an attempt to bask in the limelight?

Speaking of which, Maui attorney Lance Collins left a blog comment expressing his surprise at the “vitriol” and “xenophobia” some Kauai folks had directed at him for challenging the county's pro bono procurement process:

I have assisted many people and groups across this state (and internationally) in my years as an attorney and this is the first time that my status as a resident of a different island has ever been made an issue.

Mmmm, perhaps that's because those people and groups requested his assistance, whereas he waded into our muck unaffiliated and uninvited. Or so he claims.

Still, it seems likely that the county's decision to extend the definition of pro bono to include all costs, as well as services, won't fly. In which case, the administration will go back to its list of vetted for-hire attorneys and start racking up the big legal bills — just in time to enrage voters preparing to cast their ballots for a new Council.

Speaking of which, KipuKai Kualii, still smarting at being passed over for Mason Chock in the huli huli hustle to fill Nadine Nakamura's seat, is first out of the block in the Council race. Compared to some of the incumbents, he's looking better by the minute. And for now, he has the limelight all to himself.

Kauai politicians, meanwhile, were apparently kept in the dark about Senate Bill 172, which would turn Niihau into its very own county. Or more accurately, a little colony of the Department of Land and Natural Resources, with Bruce Robinson continuing in the role of king. Seems like a heavy-handed way to push through fishing restrictions. But then, it's the sort of thing one would expect from Sen. Clayton Hee, who seems to fancy himself a legislative god, with other lawmakers apparently willing to sell him their souls.

What's next? Creating the County of Lanai, under the jurisdiction of wind-harvesting HECO?

Though the Legislature continues to stumbles along in the darkness, as is its way, Hawaii residents are seeing the light when it comes to cannabis. A recent poll, commissioned by Hawaii’s Drug Policy Action Group, finds that:

• Today, 77% of Hawaii voters think that jail time is inappropriate for marijuana possession, an increase of 8 percentage points over 2012.

• Furthermore, 66% of voters are in favor of outright legalization for adult use (an increase of 9 percentage points over 2012).

• A large majority of 85% of voters continue to support Hawaii’s medical marijuana program (up 4 percentage points from 2012) while support for a dispensary system so patients do not need to use the black market to find their medication increased sharply to 85%, a 7 percentage point increase over 2012.

A number of bills addressing the medical marijuana law — including proposals to authorize dispensaries — have been introduced and referred to committee, while a slew of bills dealing with decriminalization and legalization, including two carried over from last year, are also pending.

Unfortunately, and discouragingly, none of the cannabis bills have been scheduled for hearings, which means they may never see the light of day. 

Musings: Peeking Through the Cracks

Sometimes, the facade of law and order cracks and we get a peek at what really lies beneath. Like the lurid look into the Kauai jail provided by two federal lawsuits alleging warden Neal Wagatsuma subjected female inmates to psychological violence, sexual abuse and sexual humiliation in front of male prisoners.

The claims are being made by former prison social worker Carolyn Ritchie and ex-inmate Alexandria Gregg. They allege Wagatsuma developed a rogue “treatment program” that involved male inmates videotaping female inmates while they detailed past episodes of sexual abuse and drug-induced sex, with the videos later shown to other detainees.  

Wagatsuma also allegedly held a jailhouse screening of a violent rape film; allowed male detainees to question women during "public sex shamings " which were sometimes videotaped; and harassed female inmates, requiring them to hold up sexually provocative photos of themselves as he called them "whores."

Women also allegedly were directed to write up accounts of traumatic sexual abuse suffered during childhood, with the reports posted in a book that inmates and staff could read. Those who refused to participate were allegedly transferred to other facilities, denied privileges or incarcerated in the most restrictive cell blocks.

As a result, the complaint states, many of the female inmates suffered "from various mental injuries." 

Ritchie claims she and others suffered retaliation after reporting the abuses, which the  state Department of Public Safety allegedly failed to properly investigate. Gregg filed a class action lawsuit that can be joined by female inmates who were incarcerated at KCCC up to five years ago.  They are represented by attorneys Margery Bronster and Dan Hempey.

Though Wagatsuma has won praise for his innovative approach to incarceration, he certainly has no authority to provide any sort of psychological treatment, especially using a homespun model that further victimizes women already suffering the effects of sexual abuse.

Meanwhile, yesterday's County Council meeting revealed a crack in that panel's facade of civility and collegiality. Though far less disturbing than the peek into the jail, it underscores the ugly rift that has developed in our community over the pesticide-GMO disclosure law, Bill 2491/Ordinance 960.

During a discussion on narrowing the scope of the related Environmental and Public Health Impacts Study (EPHIS), Councilman Tim Bynum angrily denounced Councilwoman JoAnn Yukimura, saying she “took command of this process and told the Council, my way or the highway.” He also laid into her during a heated exchange at last week's meeting.

Councilman Gary Hooser quickly piled on, saying JoAnn's amendments “weakened and diminished the intent of both 2491 and EPHIS. I'm disappointed it's not stronger.”

Well, Gary, that's what happens when you get too big for your britches and introduce a bill that you don't actually have the political power to pass — even when backed by fear-frenzied “fisties” and mainland groups.

Gary wanted to hog all the glory, so he made the conscious choice to team up with Tim, the Council's other political weakling, rather than JoAnn or Nadine Nakamura. As a result, he could only sit there impotently as they rearranged the bill — which he helped rush through and voted for repeatedly, let's not forget. So why is he dumping all the blame on JoAnn?

But some members of the Council were in a blaming mood. Though Tim, JoAnn and Council Chair Jay Furfaro all admitted the county should have conducted the EPHIS before it passed Bill 2491 — you know, so they could actually ascertain the scope of the problem before attempting to solve it — they refused to accept responsibility for putting the cart before the horse.

Instead, Jay and Tim blamed the state. “Why did these huge changes come to Kauai without review?” Tim said. “Huge changes were happening here on Kauai and nobody told us. We're here because nobody did the study.”

That still doesn't explain why the Council couldn't have ordered the study before passing the bill. No doubt the state could've done more, but did the county ever hold its feet to the fire?

As Councilman Mel Rapozo noted, in the discussion over whether the EPHIS should include an environmental justice component, doesn't the EPA typically deal with that? “Has anyone from the westside submitted such a request?” Mel asked to a resounding silence. “This Council constantly tries to do the work of others, and that concerns me.”

In eliminating environmental justice, economic impacts and food sustainability from the study, the Council majority also dealt a blow to the Gary-Tim-Mason Chock bloc, which was defeated in every amendment it put forth.

Gary's amendment tried to eliminate anyone “employed by or receiving any compensation or financial benefit from any entity directly impacted by Ordinance 960” from participating in the process, but a Council majority successfully argued that seed company workers are key stakeholders who cannot be excluded.

“If you're currently suing the county and getting paid, you don't get to be a stakeholder,” said Tim, who is suing the county that pays him while continuing to serve on the Council.

Mel pointed out that Gary's amendment also would prevent any of the 150 westside residents now suing Pioneer from participating, prompting Tim to reply he didn't have a problem with that, because “what's good for the goose is good for the gander.”

After the EPHIS vote, Gary announced that he's “been spending a lot of the time at the Legislature.” Yes, we noticed. He didn't mention leading the “shame on you” chant at the People Not Profit rally, but instead focused on his attempts to derail the “right to farm” bills that could pre-empt 2491, which is being challenged in federal court. He said he hasn't asked the county to pay any of his transportation costs, though we are paying his salary while he lobbies the Lege.

Gary lauded state Sen. Ron Kouchi — previously excoriated by the “red shirts” for his ties to biotech — for helping to kill SB 110. That bill was a crude attempt by the Senate ag committee to push the legislation through using a despicable “gut and replace” technique in which the language from a live bill from the last session is replaced with new verbiage, giving the public little time or opportunity to respond. 

This prompted Tim to denounce the Legislature for its smarmy tactics, while conveniently forgetting his own role in the dubious maneuver of slipping Chock onto the Council to override the mayor's veto of Bill 2491.

Yes, once you start peeking through the cracks there's no shortage of sleazy scenes to be seen.

Details on the New Dairy

Though we're already hearing some stink talk about the new dairy planned for the southside of Kauai, actual details have been slim. Curious, I spent some time researching to find out what's really going down.

Hawaii Dairy Farms is a $17.5 million enterprise funded solely by the for-profit arm of Ulupono Initiative, which is financed by billionaire Pierre Omidyar to work on local sustainability projects.

It's planned for 528 acres in Mahaulepu, about four miles inland from the Hyatt, off the dirt road that runs past the old sugar mill. The acreage has an Important Ag Lands designation and will be leased from Grove Farm. In modern times, it was used for sugar, then a dairy and most recently as beef cattle pastures. The dairy will not affect the Haraguchi taro land lease in the valley.

The dairy is not a feedlot style, as we previously saw in Moloaa. Instead, it is based on a rotational pasture system that is popular in New Zealand, though Ulupono says a similar model has not been been used elsewhere in the U.S. 

The cows, which have a social order, will be kept in “mobs” of about 300-330. In groups larger than that, they tend to get stressed. Each mob will have 18 different pastures that they will rotate through, spending no more than a few days in each pasture. This is intended to spread manure and urea evenly and give pastures a chance to recover. They will spend about 22 hours per day in the pasture and an hour twice a day in the milking area.

Kiwi-cross cows on New Zealand dairy farm.

Waste from the milking parlor will be washed into two effluent holding ponds. One pond will be lower than the other. 

Effluent holding ponds on New Zealand dairy.

Water, containing about 3 percent effluent, will be sprayed from the second pond back onto the pastures. The ponds will occasionally be dredged, with the sediment returned to the pastures.

An irrigation ditch and stream on the property will be fenced off to keep the cows out of the waterways. A large earthern berm runs along the dirt road, which will allow the dairy to control runoff from the site, even during floods. “We are planning for all contingencies, even with super maximum rainfall,” said Ulupono spokeswoman Amy Hennessey.

As for permitting, no EIS is required. The dairy has gotten its Natural Resources Conservation Service (NRCS) permit, which includes a conservation plan for the land. It is now seeking two state Department of Health permits needed for animal feed operations. Since it is a closed loop system, it does not have to comply with regulations imposed on confined animal feeding operations, or feedlots.

Hennessey said she visited a number of New Zealand dairy farms using the rotational model, and was surprised that they didn't smell. The odor did not carry more than 10 or 20 feet from the ponds. She said she was accidentally sprayed with one of the irrigation systems, and even that water didn't stink.

New Zealand pasture irrigation.

The dairy will start with 880 cows, which are a Kiwi-cross breed that is smaller than American dairy cows and produces more milk, with a higher fat content. They also live for 14 to 15 years, as compared to the typical 5-year life span of an American dairy cow. Their hooves are adapted to wetter climates. The cows have been purchased and are currently in Missouri, awaiting transport to Kauai. 

Over time, as the cows are bred, the dairy will expand to about 1,800 cows. Each cow will have an ear tag with am embedded computer chip that gives readings on her health and productivity. The milking operation will be a mechanized rotary system. Each cow will kick off the milking gear and exit the barn when she feels her udders have been sufficiently emptied, and her spot on the milking platform taken by another cow.

Rotary milking platform at New Zealand dairy.

The cows will feed primarily on kikiyu grass, which is now being planted in the pastures. Hennessey said Ulupono spent several years on grass trials to pick the best forage crop for dairy cows. While in the milking barn, the cows will receive supplemental feed, and Ulupono is still trying to determine what that will be. Though initially it most likely will be imported, Ulupono is hoping the dairy will inspire folks to start raising some forage crops on Kauai.

Other details are also still in flux, including what will happen to the milk. “We won't process the milk,” Hennessey said. Instead, it most likely will be sent to Oahu for pasteurizing. The dairy is expected to produce about 37 million gallons of milk annually, which is roughly equivalent to the output of the two Big Island dairies. In the future, the dairy may venture into value-added products, such as dairy and cheese.

Another topic still under discussion are the cow-calf and bull operations, which will be off-site and perhaps contracted to Kauai ranchers. Some of the female calves will become dairy cows, while the males will be sold into the beef market. Though some folks have expressed concern about how the steers will impact the local ranching business, Hennessey said the operation is intended to help expand and supply the market for local grass-fed beef. The goal is to eliminate the current practice of sending young steers to mainland feed lots and then importing beef back to Hawaii.

The cows will consume about 50,000 gallons of water per day, and additional water will be used for irrigation as needed. The water will come from the Waita reservoir, which is the largest in the state.

The dairy will employ 10 to 15 workers, in two shifts, and Hennessey said “women are more effective herders than men.”

Construction will be minimal, and county building permits are being sought for concrete pads, a milking parlor with solar panels on the roof, two newborn calf sheds and related electrical systems. Groundbreaking is tentatively scheduled for March, with calving and dairy operations possibly set to begin in December.

Though Ulupono hopes the dairy will eventually be profitable, Hennessey said it's intended as a model that will be refined, with the goal of having it replicated elsewhere in the Islands to improve food sustainability.

“If we can prove its viability, it will encourage other people to get involved,” she said.

Musings: Statewide Pesticide Sampling

Two state agencies and the U.S. Geological Survey are teaming up to test for pesticides in surface water and sediment throughout Hawaii.

Approximately 24 stream locations representing four different land uses will be sampled statewide. Eight of the sites are on Kauai. Another eight sites are on Oahu, six are on the Big Island and two are on Maui.

According to a fact sheet from the state Department of Health, which is leading the “snapshot” study in partnership with the Department of Agriculture and USGS:

The State of Hawaii has no ongoing stream monitoring program for pesticides and consequently there is very little information available to evaluate whether current pesticide use practices are resulting in off-site movement of pesticides into state waters. The data from this pilot study will provide preliminary information on the presence or absence of pesticide residue levels in surface waters. The results will be compared to water quality standards, environmental action levels and other state and federal guidelines, to provide a mechanism to rate risks of differing compounds detected.

The samples are being collected from locations that are most likely to reflect pesticide usage and impacts, including monoculture crops (seed corn, sugar, mac nuts, coffee); mixed use ag (taro, veggies, papaya, banana, ornamentals); golf courses and resorts that use pesticides for landscaping; and mixed urban and residential.

The sampling will focus on perennial streams adjacent to or downstream from the pesticide usage areas. In areas without perennial streams, anchialine pools, wetlands and lagoons that have storm overflow to the ocean and agricultural drainage systems will be tested.

DOH personnel have collected nearly all the samples of surface water and sediment, and USGS labs on the mainland will test them for more than 100 different pesticides. Water and sediment from up to six sites will be tested for glyphosate (Roundup) “due to community concern about use and fate of this herbicide,” the fact sheet states. Testing is expected to take two to three months.

The Garden Island touched on this statewide sampling in Sunday's article on the atrazine study, which I reported way back on Dec. 26. Unfortunately, though TGI has been quick to report allegations of pesticide-related illnesses, the reporter failed to include some crucial data from the atrazine report.

Though 293 pesticide complaints were made statewide between 2010 and 2013 — just 42 were from Kauai — “less than half are due to agricultural activities.” Yet Bill 2491/Ordinance 960 targeted only ag activities for pesticide disclosure and buffer zones.

TGI also failed to report that the atrazine study included a summary of calls to the Hawaii Poison Center:

Of the 4,800 human pesticide exposure calls, approximately 90% of the exposures occurred in a residence, 4.4% in the workplace and 1% in a school. The remaining 4% consisted of miscellaneous locations (i.e., other/unknown, public areas, health care facilities, and food service.) 

At least 90 percent of the exposures caused no or minimal health effects. There were three deaths. None of the pesticide complaints were linked to atrazine exposures.

I recently spoke with Barbara Brooks, the state toxicologist, who said some Kauai County Council members had asked the DOH to “biomonitor people for pesticide residue,” which she said is “very resource-intensive.” It's typically been done only in Superfund sites, and by the Agency for Toxic Substances and Disease Registry (ATSDR).

Hawaii farm workers are regularly tested for pesticide poisoning, including organophosphates and heavy metals like mercury, arsenic and lead, she said. But DOH isn't seeing evidence of poisoning even among workers with direct exposure.

“I believe we should be putting our resources into making sure pesticides are applied properly,” said Brooks, noting the overwhelming majority of pesticide exposure calls originated from residential use.

Dr. Carl Berg of the Kauai chapter of the Surfrider Foundation termed the statewide pesticide sampling now under way a “great study.” Though the organization has done some pesticide sampling in the past, he said, “Surfrider won't continue its testing until the results are available from the DOH study, so that the tests will most accurately assess the presence of pesticides in the environment."

But no matter how many tests are done, some folks will remain unconvinced. Blogger Andy Parx dismissed the atrazine study as “lies, damnable lies and statistics,” though he offered nothing to refute it. And Terry Lilley, refusing to accept that the chromium, arsenic and other metals he found in ocean sediment are naturally occurring in Kauai's volcanic soil, wrote in an email:

Weather [sic] or not the heavy metals are "natural" they should not be out on the reef in the first place!

I'm not sure how he proposes to stop the islands from eroding. Even “home rule” won't halt that act of nature.

Musings: Dredging Dreck

The political season opened not with a bang on Kauai, but a dredge — as in dredging up some old gunk to smear on Mayor Bernard Carvalho.

The accusations are being levied by Ken Taylor, Glenn Mickens and Michael Sheehan — via his lawyer, Richard Wilson, who is also the attorney for defeated prosecutor and rumored County Council candidate Shaylene Iseri-Carvalho, whose ardent supporters include Ken and Glenn. 

They contend that Bernard refused to answer questions during the county auditor's 2010-12 investigation into the use of a county gas card and thus must immediately step down. Meanwhile, Auditor Ernie Pasion, another Shay ally, is suing the county, claiming retaliation for that inquiry. 

Got those dots connected?

As Wilson wrote in a Feb. 1 letter to Bernard  [Wilson's emphasis added]:

More specifically, you refused on the advice of counsel to answer questions in connection with an investigation undertaken by the County Auditor regarding the Fuel Audit (“gas card scandal”). Pursuant to Haw.Rev.Stat. §78-9, you are no longer the Mayor of Kauai.

Haw.Rev.Stat. §78-9 states as follows:

If any person subject to sections 78-8 to 78-11, after lawful notice or process, wilfully [sic] refuses or fails to appear before any court or judge, any legislative committee, or any officer, board, or commission, or having appeared refuses to testify or to answer any question regarding (1) the government, property or affairs of the State or of any political subdivision thereof, or (2) the person's qualifications for public office or employment, or (3) the qualifications of any officer or employee of the State or any political subdivision thereof, on the ground that the person’s answer would tend to incriminate the person, or refuses to testify or to answer any such question without right, the person’s term or tenure of office or employment shall terminate and the office or employment shall be vacant, and the person shall not be eligible to election or appointment to any office or employment under the State or any political subdivision thereof.

The persons subject to sections 78-8 to 78-11 are those elected to or appointed or employed in the government of the State or any county, or in any political subdivision thereof, or appointed to or employed in any office or employment any part of the compensation of which is paid out of public funds.

Bernard's attorney, Eric Seitz, issued a press release on Saturday dismissing the claims as “politically motivated. These allegations are without merit, and an examination of the facts will show the Mayor has done nothing wrong.”

On Jan. 29, County Attorney Al Castillo wrote to Ken and Glenn that Section 78-9 “is arguably not applicable to the situation in question and may be unconstitutional.” County insiders told me that Bernard's attorneys determined the auditor's investigation wasn't a proceeding covered by the statute.

When I first heard about this, I immediately flashed back to when Shay refused to answer routine questions posed by the County Council and demanded special counsel to protect her from self-incrimination. How come Ken, Glenn and Mike never demanded her immediate removal?

Wilson finishes up his letter in an almost ridiculously threatening tone:

Your tenure as Mayor has ended.

Mr. Sheehan’s sole question is how do you intend to proceed? You can acknowledge that you are no longer the Mayor of Kauai pursuant to §78-9, and so advise the Council. That would be Mr. Sheehan’s preferred avenue. At least you would be able to control the news release and leave 4444 Rice Street on your own terms. The alternative is for Mr. Sheehan to obtain the relevant transcript, provide it to the Attorney General and then demand your removal in compliance with §78-10. If you choose the latter, you will have no control over the situation and it will be a media circus. Mr. Sheehan would, of course, advise the media that you refused to voluntarily leave which required him to seek your removal. The choice is yours.

Yes, let's all watch Mike spend some of the money he's due to receive from the county's contested condemnation of his Hanalei boatyard to seek Bernard's removal. No political axes being ground here.

I guess since no one has yet stepped up to challenge Bernard's reelection, they're trying another strategy: get him removed from office so there is no powerful incumbent to oppose. 

I'd been hearing talk it would be an ugly campaign….

Speaking of which, there was something really shame about watching Councilman Gary Hooser lead a crowd of 300 in a chant of "shame on you" against companies that are suing us over a law he wrote. Regardless of how one feels about the bill, or the lawsuit, it seems undignified and juvenile for an elected official to act that way. It's also inane. Though corporations may be "people," they do not feel emotions. If they did, we wouldn't be in this situation.

But even sadder was seeing Gary leading this chant outside the state Capitol, a place where he was a powerful insider before he succumbed, again, to the temptations of ego and made his ill-fated 2010 run for lieutenant governor after getting his ass kicked in a 2006 Congressional bid.

Hey, maybe he'll get really ballsy and take on the governor himself this time. It doesn't appear that state Sen. David Ige is making much headway in his challenge against Neil Abercrombie for the Democratic nomination. Don't let Neil's $2.2 million war chest scare you, Gary. After all, aren't you guy who took on the multi-billion-dollar chemical companies?