Musings: Smells Stink

As the reds and the blues gather again today before the County Council, it seems an apt time to paraphrase a quote from Shakespeare: something is rotten on the island of Kauai.

And I'm not talking about the usual county cronyism and corruption. I mean Bill 2491 and the movement behind it.

Not the entire movement, mind you. Many passionate, caring, concerned people have thrown their hearts and souls into this process — political novices who never guessed their movement had been hijacked by those whose intention is to ensure that a pesticide bill is never approved on this island.

What we're seeing play out on little Kauai is a misinformation campaign by the biotech/pesticide multinationals, replete with plants. Infiltration is an old trick used to destabilize and derail political movements, and that's what's happened here.

Yup, the red shirts have been infiltrated by the other team, and by that I don't mean blue shirts, because it goes deeper than that, to the corporations themselves.

I smelled it from the start, which is why I never could don a red shirt and joyfully jump on the band wagon — even though I've been a longtime opponent of GMOs and pesticides, a longtime advocate of the environment and the underdog.

The movement quickly turned toxic, choosing to employ fear-based, combative tactics that were designed to polarize, alienate, misinform, inflame and ultimately defeat the bill or weaken its legal defensibility. I was thoroughly repelled, and many people crucial to building a broad-base movement — Hawaiian elders, kama`aina, middle-of-the-roaders, business leaders and others — have told me they felt repelled, too, even though we share concerns about the chem companies and their activities on this island.

With those folks — many of them akamai about pesticides and the political process — pushed to the side, it was easy for the infiltrators to grab the steering wheel. And to make sure they stayed out, anyone who dared question or criticize was branded a sell-out, in the pocket of the chem companies. 

Certain politicians, too, have been undermining the intent of the bill, even as they claim to be champions for the people.

Councilman Gary Hooser brought in the GMO language — and with it, the more rabid anti-GMO activists — even though he was warned it would harm the bill. He continues to maintain — you can listen to him on HPR's The Conversation — that no environmental or health testing can occur without first having disclosure.

But as I noted in my interview on The Conversation, while I support disclosure, there's no reason to delay such tests because we do know what the companies are using. We have their restricted use pesticide records from the state. Yes, I know that is only a record of what they bought, but why would they buy it year after year if they aren't using it? And if Gary is using those same records to claim they're drenching the westside with 18 tons of pesticides annually, then why can't we also use those records to say, OK, let's start looking for that stuff?

Gary also has maintained there's an urgency to pass the bill because of health problems, including an increased rate of birth defects and rare tumors. Health fears have driven much of the debate, and they may well be real, given the toxic effects of pesticides. But why the reluctance to accumulate any real data? When I checked with the Department of Health, I learned no one has asked for a review of the state birth defects or tumor registries to see if Kauai does have higher rates, as often claimed. Is that because the review of the cancer registry — requested by one of our state legislators — showed Kauai's rate is actually lower than the statewide average?

And why, if human and environmental health, is supposedly the main driver behind this bill, did Gary argue yesterday against the resolution that would launch an Environmental and Public Health Impacts Study (EPHIS)? Wouldn't you want to get that study rolling if you felt the situation was urgent?

Why is Councilwoman JoAnn Yukimura insisting the group that designs the EPHIS include community stakeholders — a requirement that will taint the process with subjectivity and needlessly delay it with internal wrangling — when a group of objective experts could easily be assembled to figure out how to plan such a study to produce some meaningful results?

As a result, the EPHIS resolution has been sent to committee where it could languish indefinitely. Yet there's been nary a peep from the reds. Why?

Why did JoAnn add language at the eleventh hour that further undermined the legality of the bill, such as prohibiting the cultivation of any crops in the buffer zone, which could be construed as a violation of the “right to farm” law? Why did she change the trigger for disclosure to using 15 pounds or five gallons of any single pesticide, when it had been stronger, trigged by a cumulative use?

Why did Gary, JoAnn and Councilman Tim Bynum, usually the transparency advocates on the Council, suddenly clam up and vote against releasing the county attorney's opinion? Despite the red herring claims that have been raised, there is nothing unusual about releasing opinions. What's more, nothing was revealed to the chem company attorneys that they don't already know, as evidenced by the Aug. 30 legal analysis of Bill 2491 that they sent to the county.

And finally, why did Chairman Jay Furfaro push the bill through that night, even though significant amendments were added in a back room session, even though the county attorney had pointed out flaws? Why not take the time to let people review the changed bill, amend it further to address possible legal challenges? What's the point of rushing it to the mayor, when careful crafting could have forestalled his veto?

We've witnessed an awful lot of drama, street theater, political pandering. We've witnessed a videotaped mob scene, physical threats against the mayor, metal scanners and security checks in the Council Chambers. 

And yet here we are, quite a ways down the road, but still right back at the beginning, with nothing. Nothing except a weak, watered down bill that appears headed for the trash can and a tattered, shell-shocked community that will be loathe to go down this road again.

Exactly as planned.

Musings: Giving Way to Good

Venus, bright as a UFO in the west and just an arms width from a golden crescent moon, gave way to Jupiter, burning like a yellow coal directly overhead, which gave way to clouds the color of a shiner, streaks of pink and a band of gold in the east.

Slowly, KIUC's reliance on fossil fuel is giving way to renewables, with groundbreaking planned today on a $40 million solar project that will allow our utility to burn 1.7 million fewer gallons of oil every year while keeping tons of emissions out of the air. And it might even save everyone a few bucks. 

Meanwhile, up in Wainiha, swaths of naupaka, heliotrope, spider lilies and other coastal landscaping are giving way to sand. That's right, the state Office of Conservation and Coastal Lands is finally making landowners give us back our beach under authority of Act 160.

In some places, as much as 20 feet of beach has been cleared. And when the beach is just 60 feet wide, well, that's significant. Now folks can actually walk that beach when there's big surf without fearing for their lives.

For example, this is a BEFORE picture of the beach in front of actor Pierce Brosnan's place, where an April 2011 post documented his long-term, systematic planting of the beach, replete with chicken shit and wood chips.

And here it is AFTER the state made him, and other landowners, get their vege off the public beach:

To give you an idea of the extent of encroachment along the stretch of beach near YMCA Camp Naue, this picture shows an area where one lot has been cleared, but the other hasn't yet come into compliance:

And yet another example of a cleaned lot next to one not yet cleaned:

Clean up is under way at this lot, where ironwoods were removed:

Unfortunately, Joe Brescia is still encroaching, but feel free to use his lawn chairs and hammock, since he's positioned them on the public beach:

Of course, the state will need to stay on it, since seeds are already sprouting:

But at least for now we have our beach back!

Big shout out to Caren Diamond, who proves once again that persistence, coupled with civility, intelligence, networking, scrupulous research, and a carefully executed lawsuit or two, can bring about positive change. 

If it weren't for people like Caren, Lucinda Pyles (her Oahu counterpart), Mina Morita, Harold Bronstein and a few key others — Rep. Derek Kawakami, who championed the bill's extension, and Sam Lemmo of OCCL for following through on enforcement — this problem would not have been addressed. We owe them a super-sized mahalo for devoting countless hours of their lives to protecting our beaches.

Musings: Funny, Sometimes

This morning, walking with the dogs through rosy rain so fine that it appeared as mist floating over the hills, past pig tracks in the mud, grass and weeds uprooted by their rutting, I thought about how it's funny, sometimes, the way things turn out.

Like the way Gary Hooser left the Senate in a failed bid for lieutenant governor, leaving us with Ron Kouchi, who was one of just a few senators in the entire state to vote against same-sex marriage, which Gary championed.

Like the way Scott McFarland, former community outreach specialist for DOW Agrochemical on Kauai, is now the interim CEO for Hawaii Health Systems Inc., which runs Mahelona Hospital, clinics in Kapaa and West Kauai, and Kauai Veterans Memorial Hospital — places where many of the doctors and nurses who support Bill 2491 work.

Like the way the video showing Mayor Bernard Carvalho being mobbed upon announcing his veto of Bill 2491 — presumably posted as a proud portrayal of “people power” — is working instead to generate sympathy for the big guy, as expressed so well by a woman who told me, “I don't really know anything about the issue, but when I saw the video on Facebook, I felt sorry for him. I had compassion for him as a human being, because you could tell he was really hurting. It took a lot of courage to stand up to a crowd like that.”

Like the way Andrea Brower claimed the mayor's “double deception” of vetoing Bill 2491  and releasing the county attorney's opinion tipped the county's hand, without considering this scenario: the opinion reflected weaknesses in the bill that chem corp counsel themselves had pointed out to the county. Because really, Andrea, do you think former state Attorney General Margery Bronster and Paul Alston, who whooped the county's ass at Papaa Bay, need Deputy County Attorney MaunaKea Trask to write their playbook? 

And like the way the Hawaii Supreme Court finally took up the case of Prime Minister Henry Noa and other two other members of the Reinstated Hawaiian Nation — convicted of trespassing after occupying Kahoolawe back in 2006 — but only on narrow procedural grounds, without considering the larger issue of Hawaiian sovereignty. 

Funny. But no laughing matter.

Musings: Correction Through Connection

Out in the world when nearly everyone is asleep, darkness broken by points of ancient light, promise of a new day behind massing storm clouds, I am washed with chicken skin in recalling a vivid dream I had last night.

In this dream, people were pouring out of their homes and gathering in the loi, on the beaches, along the stream banks, in a spontaneous swelling of support for kanaka maoli. There were no signs, no costumes, no shouts, no slogans, no leader, so far as I could tell, save for the propelling guide of conscience stirring in countless hearts.

As I stand looking up at the stars, flesh puckering, my own heart stirring in the transitioning time between dark and light, I see, as clearly as the seven-starred constellation of Makalii, that overthrow and occupation are the fundamental hewa that must be corrected in Hawaii. Colonization is the the grave injustice upon which so many other wrongs have been perpetrated.

Why are we surprised that a nation that would, by force, dominate and enslave another, also allow the soil to be paved, the rivers to be poisoned, the iwi to be desecrated, the political system to be corrupted, the indigenous people impoverished, imprisoned for petty crimes?

Why do we rail against the symptoms, while failing to address the disease?

I think of Kamehameha, who waged war, and then returned to the loi, and my friend Kaimi, a true maka'ainana, who once told me that every kalo plant is a kanaka, a warrior in waiting. The necessary correction, he said, will occur not in the voting booth or offices of government, but through connection: opening loi, clearing auwai, working together to get kanaka back on their 'aina, the life-producing land.

When the deluge passes, leaving the clouds pale pink, the mountains misty, the ground soft and yielding, I step into my own taro patch and begin pulling weeds, discovering dozens of keiki beneath the overgrowth, ready to thrive.

As the weed pile expands, I reflect on a conversation I had yesterday with another young kanaka, who told me, I have become increasingly aware that politics is an outmoded and inefficient vehicle for positive change. As an empowered individual, I think I can accomplish more without the constraints of an inherited political system. 

And my reply to him was, I agree.

Musings: Now What?

Like the folks waking with a post-Halloween hangover — the keiki from candy, the adults from alcohol — Kauai politicos and activists are trying to figure out how to make the pain of the mayor's veto go away.

Because certainly the County Council doesn't want to again listen to hours of testimony — ramped even higher by rage and despair. And the pro-2491ers aren't especially keen to again don their red shirts and camp out at the county building. As GMO Free Kauai's Blake Drolson said on KKCR yesterday, we were looking forward to taking it easy this month, preparing for the holidays.

No such luck.

Instead, as Elton John would say, the bitch is back. Back on the Council's doorstep, where Chair Jay Furfaro has been handed a hot potato he thought he'd successfully tossed two weeks ago.

And back in the lap of activists, whose leader, Councilman Gary Hooser, failed to prepare them for this eventuality, apparently believing the bill was in the bag with the rest of his treats: national publicity, an adoring throng, political notoriety.

No such luck.

Instead, the nitty gritty reality of real politics — not the make-believe magick kine, where the biotech boys bow out, Gay & Robinson gives away organic farmsteads and Steve Case kicks down tractors — has intruded.

So now what? 

First, face facts.

Though no one knows exactly how the public feels about 2491, the mayor never would have vetoed the bill if he thought 80 to 90 percent of Kauai residents support it, as one KKCR caller maintained. As I've been saying from the get-go, people are forgetting the quiet constituency that doesn't march, send the mayor pens or post skin shots on Facebook. They don't need to. They've got the direct line, the key to the back door, the money and influence to get the mayor re-elected.

I know, I know, it sucks, it's unfair, it's wrong, it's hard to be the underdog. I've cried those same tears. But that doesn't change what is. Ignore the powerful at your peril, and don't be wasting your energy on foolishness like impeachment.

Second, get over the sentiment expressed by Sol Kahn in today's paper, that this is not the mayor's bill, but the people's bill.

Uh, no, Sol, in a democracy, it is the people's bill AND the mayor's bill AND the Council's bill. As in collaboration is the name of the game. Time to ditch the “us against them, with us or against us” mindset that has people donning different colored shirts and anonymous snipers snarking at me, for daring to criticize the missteps of the movement, “What's your agenda?”

My agenda? Same as it ever was: tell it like it is.

Third, don't count on the Council to salvage the wreckage. The Council has 30 days to act on the veto — a time frame that coincidentally coincides with the need to pick a replacement for Nadine Nakamura, now the mayor's right hand woman.

So who do you suppose it might be? Let's go over the list. Throwing their own hats in the ring are Felicia Cowden, Pat Gegen and former Councilmen KipuKai Kualii, Dickie Chang and — hold on to your hat— Kaipo Asing. Nominated by others are Sandi Kato-Klutke and former Councilwoman Lani Kawahara — both of whom reportedly withdrew — Mason Chock, Jan TenBruggencate and former Councilman Daryl Kaneshiro.

Now I'll give you a hint: it won't be anyone who will rescue Bill 2491 from the dumpster.

Fourth, make lemonade. If the purpose of this bill was truly to raise awareness about pesticides, and protect the health of people and the environment, then it has been somewhat successful. The issue is on the table, the chem companies are taking notice — we shall see if they actually act — and the county is poised to launch a study that can, if properly guided, assess the health of westsiders, identify pesticide impacts and hopefully give us a better handle on what's really going down.

Fifth, put pressure on the state to commit resources to health studies, environmental testing, pesticide enforcement, education. Wanda Shibata is the governor's liason on Kauai. Start showing up regularly at her office, located in room 106 of the state building, to see how things are coming along. And since they'll no doubt be moving slowly, state-style, politely push for progress.

Sixth, begin drafting a new bill, one that actually will fly, one that doesn't merely monitor pesticide use on this island, but actually reduces it.

And seventh, start grooming some serious, electable candidates for the Council — Mason Chock, Luke Evslin, Kepa Kruse and Fern Rosenstiel are a few up-and-comers that come to mind — because it will take a good year to get their names positively positioned in the minds of the voters.

Or, whimper, whine, bang your head against the wall, stick pens in a BC voodoo doll, go back to bed, slip back into delusion, disillusion, give up.

The choice, as always, is ours.

To end on a lighter note, I'll share this contribution from a friend:

Mayor Vetoes Pesticide/GMO Disclosure Bill

Kauai Mayor Bernard Carvalho Jr. has vetoed the pesticide/GMO disclosure bill, saying the county does not have the legal authority to enact most of its provisions.

“I do not make this decision lightly, and I know that it will be controversial,” a press release stated. “However, I believe it is the right thing to do given the circumstances before me.”

The news came as a shock to many Bill 2491 supporters, who apparently thought the battle was over when the Council voted 6-1 to approve the bill in the wee hours of Oct. 16 after an emotional and contentious 18-hour meeting.

Bill 2491, Draft 2 has now been returned to the County Council, which must act on the veto within 30 days. Five votes are required to override the veto. Though the bill passed the Council 6-1, Nadine Nakamura, who voted affirmatively, has since left the Council, and Ross Kagawa, who also voted yes, has repeatedly expressed concerns with the measure and could change his vote.

The Council also could amend the bill to address Carvalho's concerns and return it to him for signature.

Carvalho said he agrees with the general intent of the bill, including pre- and post-disclosure of pesticide use, buffer zones and an independent study to determine whether pesticides are harming human and environmental health.

The mayor urged the Council to quickly fund the joint fact finding study group that will lead to the environmental public health impact study (EPHIS) outlined in the bill. He said a resolution on next week's Council agenda could get that process moving, despite the veto.

Though a County Council majority — including bill co-sponsors Gary Hooser and Tim Bynum — previously had voted against releasing the county attorney's opinion on Bill 2491, Carvalho produced a copy to justify his decision. (Link leads to PDF download of news release, mayor's statement and opinion.]

Carvalho pointed to a number of legal concerns, including a prohibition against growing any kind of crops, even those that don't use pesticides, in the buffer zones. He also noted that existing state and federal laws appear to pre-empt the county's ability to enact its own pesticide regulations.

The bill “will also likely be challenged as an invalid exercise of the County's police power, an invalid exercise of the County's ability to regulate public nuisances and/or a violation of the Hawaii Right to Farm Act's prohibition against any public officials” declaring” such farming operations a nuisance, according to the County Attorney's opinion.

Another legal issue stems from the Council's decision to move the bill's implementation and enforcement from Public Works to the Office of Economic Development. Since OED is not a regulatory agency, “the Council would be in violation of the charter by assigning new functions to OED,” Carvalho wrote.

“As I have said all along, I truly believe that we could have accomplished these goals faster and in a legally sound manner by working cooperatively with the state, which has clear legal authority over buffer zones and pesticide disclosure,” he wrote.

Carvalho noted in his letter that that “the state Department of Agriculture has been working with the five companies that would be impacted by this bill on voluntary pesticide disclosure and buffer zone guidelines. We anticipate an announcement of their product in two to three weeks. Governor Abercrombie has informed that he will be seeking funding for additional inspectors that could service Kauai.

These efforts are positive steps forward in realizing the goals of the bill, until the EPHIS is complete and its recommendations can be adopted by the appropriate parties."

The community is “deeply divided over 2491 and we can't allow that to continue," the mayor wrote. "It is my hope that after reviewing the opinion, the reasons for this action will be clear, and we can then focus on finding common ground and moving forward.”

“Since receiving the opinion I’ve spent hours and hours understanding the points raised and questioning our attorneys on the legal issues,” the press release stated. “While I believe a veto is necessary, we can and will find legal means to address these important health and safety issues.”

Though Blake Drolson of GMO Free Kauai sent out a last-minute email urging people to show up in force at the mayor's office for his announcement, only about two dozen protesters were on hand. Drolson's email stated:

If the Mayor chooses to VETO the bill, we need to fulfill our kuleana and show our disapproval.  

After all, our children need to know that we will protect them.

And our community needs to know that democracy exists on Kauai.

The group also was running an survey on whether the mayor should be recalled. It asked people to click either YES, The Mayor needs to honor the Council's 6-1 decision, or NO, The Mayor does not need to honor the Council's 6-1 decision.

Others on Facebook posted comments about how the mayor was "committing political suicide" and will pay in 2014, though both assertions are doubtful, given that no one has yet emerged to challenge his re-election and few of those active in the pro-2491 were Carvalho supporters, anyway. One of the Biotech Babes — a resident of Oahu — posted a photo saying "enjoy your permanent vacation from office. Shame on you," along with the message:

RECALL GMO GROUND ZERO MAYOR of Kauai! "Uncle Bernard" sells out entire Ohana and poisoned kids to GMO pesticide companies and will veto Bill 2491, he will not protect children or adults, land or sea from poisoning, he MUST BE RECALLED. ALL WILLING DOOR TO DOOR CANVASSERS EMAIL BABESAGAINSTBIOTECH@GMAIL.COM AND MAKE SURE YOU ARE REGISTERED TO VOTE AND YOUR ADDRESS IS UPDATED. WE CANNOT TOLERATE THE WILLFUL ENDORSEMENT OF THE CONTINUED POISONING OF KAUAI. 

Some have said that a veto could also energize the movement for a referendum. However, the last two referendums approved by Kauai voters were defeated in legal challenges, despite overwhelming voter approval.

Musings: Dollars to Donuts

I know The Garden Island has had a lot of really pressing, super important and urgently timely stories to cover in the past few days, like Laird Hamilton building a $1.5 million house in Hanalei and Terry Lilley and Mike Sheehan taking sediment samples in a supposedly “independent” study that has self-promotion and hidden agenda written all over it.

But surely it could have squeezed in the news that developer Shawn Smith was appointed to represent Kauai on the Board of Land and Natural Resources a little bit sooner than the day of his Senate confirmation hearing. Just so people could have submitted testimony if they wanted. I mean, heck, I broke the news back on July 1.  [Update: Shawn Smith withdrew his name from consideration today.]

The story on Smith contains a sentence that conveys everything that is wrong with the fake “ag subdivisions” that Smith's Falko Partners and other land speculators promote:

The project, which is listed for $70 million, includes 2,500 linear feet of direct beach access and a 27-acre agricultural easement consisting of permanent and organic crops, such as palm trees, ginger, turmeric and papaya.

The rest of the land will grow McMansions and guest houses, many of which will no doubt become illegal TVRs.

Yes, it's that blatant. In a 357-acre ag subdivision, just 27 acres will actually be used for farming. And even that's a stretch, if you're counting palm trees as a crop. But not so much of a stretch as the “turf” that one Kilauea landowner was allowed to grow for his “crop,” thanks in part to the reasoning of then-Planning Commissioner Jimmy Nishida:

“I saw you guys’ farm plan, I thought this is one good solution,” Nishida said. “The pay scale for landscapers tends to be more than agricultural labor.”

Yeah, so let's not bother with this pesky farming business and food sustainability and all the rest of the crap. Just turn the ag land over to the Shawn Smiths of the world and let the mowing and blowing begin. 

But somebody better quick notify the Kauai Planning and Action Alliance, which in similar day-late, dollar-short fashion has finally identified water and agriculture as the top issues impacting Kauai and its future. Mmmm, where the heck have you guys been for the last two decades? (And have you actually accomplished anything of value?)

Getting back to Jimmy, he's now using his position on the Charter Commission to derail a Council districting proposal. After conducting its own investigations and hearings, the Commission had proposed a charter amendment calling for five members to be elected by geographic district, and two at large. At the last minute, Jimmy pushed through a proposal for electing all seven by district — a far less publicly palatable plan — and then on Monday, again maneuvered to keep the amendment off the ballot pending public hearings.

The way to truly gauge public sentiment about a charter amendment is to put the measure on the ballot, not conduct hearings in a thinly veiled attempt to pre-empt that public vote.

I'm not necessarily a supporter of districting, though I know why Jimmy folks oppose it. Districting is viewed by many as the best way to break the lock that the old boys currently have on the Council. So betcha dollars to donuts districting won't get on the ballot.

In working on this post, it became apparent that feature writer Darin Moriki is now covering government stories, while government writer Léo Azambuja's byline has been appearing on fluffier fare. Which is not to criticize Darin, as he's a good writer. But it takes time to get up to speed on government, and Leo was doing a fine job. Instead, their beats have been switched as TGI continues its transformation to news-ultralite.

Meanwhile, have you noticed that MidWeek, also owned by Oahu Publishing Inc., is getting slimmer and slimmer? Wonder if the two publications are going to merge....

And finally, I have to correct a common misperception that was perpetuated in TGI's most recent story on the pesticide/GMO disclosure bill, where it was reported, emphasis added:

Bill 2491, which affects Kauai’s five heaviest users of restricted-use pesticides, would go into effect nine months after it becomes law.

That's not true, and it makes me wonder if the reporter has even read Bill 2491, Draft 2, which clearly states:

In 2012, restricted use pesticides were used on Kaua‘i by agricultural operations (7,727 pounds and 5,892 gallons, or 13%), county government operations (28,350 pounds and zero (0) gallons of Chlorine Liquefied Gas for water and wastewater treatment, or 49%), and non-government operations for structural pest control termite treatment (25,828 pounds and 20 gallons, or 38%).

Or to make it very plain: those five ag companies are the third-largest users of restricted use pesticides on this island, yet they are the only ones being scrutinized and regulated. 

Betcha dollars to donuts, that's one part of the bill that's gonna come back to bite us.

Musings: Overwhelmed

Lumpy, bumpy towers of cumulus, faces and figures lined up Mt. Rushmore-like, reaching toward stars, a waning moon,  cloud sculptures that flush first orange, then fade to gray, then flame purple-pink as an explosion of scarlet sun overwhelms the east and touches the fluff floating atop Waialeale, turning it soft lavender.

Transient vacation rentals (TVRs) have overwhelmed the communities from Hanalei and Haena, according to a power point presentation that Protect Our Neighborhood Ohana (PONO) made to the Kauai County Council last week.

Some 55.1 percent of all TVRs approved through the county's nonconforming use certificates are located between Hanalei and Haena. That figure does not include all the illegal TVRs that further swell the numbers.

Or to put it another way, the smallest geographic area on Kauai has the largest percent of TVRs.

This photo vividly shows the concentration of TVRs on just one block in Wainiha, near the YMCA Camp, where 20 properties were investigated in the Abuse Chronicles series.

Some 65.2 percent of the North Shore TVRs are located in the Special Management Area. Yet none were required to obtain an SMA permit, which is intended to assess the cumulative impact of development on environmentally sensitive areas. 

And make no mistake, these TVRs do have substantial impacts on infrastructure and resources. Using census data and TVR ads, PONO found that TVRs in the Wainiha-Haena area accommodate an average of 6.8 occupants per unit, compared to just 2.7 persons in a longterm residential unit. Some of these mini hotels house 12 to 14 guests, many of whom are sleeping in ground floor units in the tsunami and flood zone.

And just look at how many of the TVRs are operating with only cesspools in that same neighborhood! Surely all that untreated sewage must be having an adverse affect on the nearshore waters there.

The graphic also shows that nearly all of the TVRs in this neighborhood failed to prove they were eligible for the valuable life-of-the-property certificates, but they received them, anyway.  Again, this does not even include the numerous illegal vacation rentals in the area.

This profuse proliferation of TVRs undermines the goals of the North Shore Planning Area, which call for preserving the area's natural beauty and special rural charm. It also violates the county General Plan, which states: permitting processes should consider the cumulative impacts that a large concentration of alternative visitor units can have on a residential neighborhood.

Though the Abuse Chronicles brought the problems to light, they shouldn't have come as any surprise to the county. Back in 2005, when the county was running its “TVR stakeholders” process and the Council was working on an ordinance, the planning department hired a consultant to conduct a TVR study. 

That consultant made the following findings for the Wainiha to Haena area eight years ago:

Neighborhood impacts are significant; the community character has been altered; houses have been illegally converted to multi-family dwellings, and TVRs have disproportionately impacted the North Shore. 

The consultant's recommendation?

Channel TVRs to areas set aside for resort uses.

Instead, the county actually cemented the intensive impacts into place through a flawed ordinance and its horribly botched implementation. In the process, residential neighborhoods were turned into defacto resorts.

The question now is, how can we reclaim the far North Shore from the county's serious screw up? Is the community, the special area that was supposed to be preserved, lost forever? Will the Council, Administration and planning department actually address this issue? Or must we wait until a tsunami sorts things out?

Musings: Worth Noting

It's hard to buy the argument that same-sex marriage, up for a vote in next week's special Legislative session, would weaken traditional marriage. How so? Allowing same-sex couples to wed doesn't take anything away from anyone. It merely expands to all the same rights now enjoyed by some.

It's even harder to buy the claim that allowing same-sex marriage will expose public school students to graphic depictions of homosexual sexual practices. Mmmm, they aren't being exposed to graphic depictions of heterosexual sexual practices, are they?

And it's really hard to see how state Sen. Ron Kouchi, elected to represent the entire island of Kauai, can justify his opposition to same-sex marriage by saying he's "invoking my constitutional rights to express my freedom of religion."

Yes, Ron has the right to express his religious freedom in terms of where he chooses to worship on his down time. But when he's in the Legislature, he needs to set his religious beliefs aside and consider the interests of all Kauai, not just the beliefs and doctrine of his church. Because last time I looked, the Lege was a secular body.

Legislators also will be considering a number of Gov. Abercrombie's proposed appointees, including developer Shawn Smith as the Kauai representative to a term on the Board of Land and Natural Resources that runs through 2016.

As I've previously reported, Shawn is part of Kahuaina Plantation, the uber upscale gentleman's estates at Waipake being passed off as an “agricultural subdivision.” And we're supposed to believe he'll be a conscientious caretaker of the state's natural resources?

Abercrombie is also asking the Lege to approve Genevieve Salmonson as director of the Office of Environmental Quality Control. Gary Hooser held the post prior to his election to the Kauai County Council. As The Hawaii Independent reports:

Salmonson previously held this position under the Lingle administration, during which time she controversially agreed that the Superferry project was exempt from having to provide the State with an Environmental Impact Statement (EIS), leading to a long and bitter fight between the State and environmental groups that eventually ended in 2009 when the Supreme Court ruled that the law allowing the Superferry to operate without an EIS was unconstitutional.

In other news, for the first time ever a majority of Americans favor legalizing marijuana. A Gallup poll shows 58 percent support — up 10 points in just the last year and a whopping 46 points since 1969. Americans 65 and older are the only age group that still opposes legalizing marijuana, while 67% of Americans aged 18 to 29 back legalization.

We need to seriously consider legalization and decriminalization because let's face it: the war on drugs has utterly failed. Or as Esquire reports:

Not only are drugs way purer than ever, they're also way, way cheaper. Coke is on an 80 percent discount from 1990, heroin 81 percent, cannabis 86 percent. After a trillion dollars spent on the drug war, now is the greatest time in history to get high.

Both the legal and illegal alteration of consciousness is at an all-time high.

In 2010 the CDC found that 48 percent of Americans used prescription drugs, 31 percent were taking two or more, and 11 percent were taking five or more. Two of the most common prescription drugs were stimulants, for adolescents, and anti-depressants, for middle-aged Americans.

And finally, I urge anyone who loves the ocean and cares about the planet to read “the ocean is broken,” a haunting article in the Newcastle Herald. A friend described it as an “astonishingly captivating piece” recounting the shocking change in ocean conditions that Newcastle yachtsman Ivan Macfadyen encountered while recently sailing the same same course from Melbourne to Osaka that he'd taken 10 years earlier:

It was the silence that made this voyage different from all of those before it.

No fish. No birds. Hardly a sign of life at all.

Spooky, scary and sad.

Musings: TVR Transformations

Walking through chill air, sand coarse beneath my feet, warm waves lapping at my ankles, Koko and Paele sniffing whatever it is they sniff, I watch the sun, trapped behind a band of steel gray, glower red above and below, and then it is free, bright yellow in blue sky, sea sparkling and shimmering, whole world transformed.

Though the County Council yesterday rejected a resolution to investigate the transient vacation rental debacle, it did hint that the law itself may be transformed and some questionable “grandfathering” rights challenged in court.

The investigation, proposed by Councilman Mel Rapozo, first came up in May as a way to determine how the numerous problems outlined in this blog's Abuse Chronicles came to be. But it was deferred while the Council gave the planning department a chance to get its act together.

Yesterday, though that act isn't quite together, a Council majority felt the department was far enough along and the root causes of the problem sufficiently revealed to forestall a full scale investigation.

“I will not be voting for this resolution,” said Councilwoman Nadine Nakamara, who then outlined why the law had not been properly implemented: the TVR applications didn't support the requirements of the ordinance; planning staff was insufficient and improperly trained; planning department rejected help when it was offered; inspections were limited; and the Council approved a second TVR ordinance “against the wishes of the community,” which wanted the first ordinance to play out.

As Mel noted, that second ordinance, as well as a third that stripped inspection and eligibility requirements and allowed agricultural landowners to apply, was proposed by the Administration, even as its staff was failing to properly carry out the law. “Were we set up to fail?” he asked.

Nadine, attending her last meeting before assuming her new post as the mayor's managing director, said the Council needs to look at attrition, analyze fees and fines, strengthen the ordinance and “look at the whole improperly granted permit issue to resolve that.”

A planning department review of its files found that 84 percent of the applicants were missing documents required by law to prove eligibility for the life-of-the-property TVR certificates. Applicants had to show they were engaged in the non-conforming TVR use prior to bill's passage, which would qualify them for “grandfathering.” But the county attorney issued an opinion that those certificates must be allowed to stand because the flawed applications were approved by former Planning Director Ian Costa and his deputy, Imai Aiu.

“We know what the problems are and we've got to work together on the solution,” said Nadine, who has requested a Council vote on whether that opinion should be released to the public.

Councilman Gary Hooser, supporting the resolution, said the county would be wise to “hire a qualified independent firm to help us clean this up. It will only add value at the end of the day.”

Councilman Ross Kagawa, who voted against the resolution, said he felt the planning department was making progress, which is what he had requested two months ago when the issue was deferred. Still, he said, “the huge problem is the improperly granted permits that were allowed to continue. We need to find some means to cure that problem.”

Councilwoman JoAnn Yukimura, who also voted in opposition, said she would like to identify an especially egregious example of an ineligible landowner who got a TVR certificate and take that case to court. If the county prevails, it could then move against others who were not eligible to grandfather their nonconforming use.

Mel and Gary plan to develop proposed amendments to the TVR law, such as requiring applications to provide more eligibility documents upon renewal. Higher fees are also possibly on the horizon.

Planning Director Mike Dahilig said the current yearly fee of $500 does not cover the cost of enforcing and managing the program. “It should be four-to-five times that.”

Higher renewal fees, coupled with the higher property taxes now assessed on TVRs, could prompt some attrition, which is needed to reduce the impact on residential neighborhoods that have been turned into defacto resorts by a proliferation of vacation rentals.

Gary also said the planning department needs to work harder to go after vacation rentals that are operating without any county permits. “It's so in your face to see these ads that are so blatantly illegal,” he said.

Council Chair Jay Furfaro, who left the meeting mid-way to attend a conference, said he had been disturbed watching this week's planning commission meeting, where numerous TVR owners successfully appealed the department's decision not to renew their certificates. He felt “ local attorneys” were unduly influencing the process.

“I get a bit turned off when I see them making suggestions for their clients,” he said. “The tail's wagging the dog here.”

Jay said he also plans to send the Administration a letter advising it to be realistic about the staff needed to properly enforce the TVR law so as to avoid the resurgence of past problems.

“People quite frankly were asleep at the switch,” Jay said. “We need to send a really strong message going forward that we're on top of this. We still have a long ways to go.”

But it least it appears that a transformation is under way.

Musings: On Momentum

Though Bill 2491, Draft 2 — the pesticide/GMO measure passed last week by the Kauai County Council — has not yet been signed into law, some folks are already using it to make money.

The San Francisco-based Pesticide Action Network North America (PANNA) sent out a fundraising appeal to its mainland email list under the subject heading: A victory for Kaua'i and beyond!

The less-than-truthful message read, in part:

A diverse coalition of local advocates, including Hawaii SEED and Ohana O' Kaua'i, led the creative, powerful campaign to "Pass the Bill" — collecting more than 50,000 signatures, coordinating a march of more than 4,000 people, and packing the house at multiple marathon council meetings. And PAN was with them.

Testing has found the known neurotoxin chlorpyrifos in the air, and the potent endocrine disruptor atrazine has been found in the island's drinking water.

Support communities in action » Kaua'i residents took matters into their own hands — and won! The new law requires public disclosure of pesticide use on the island. It puts more protective buffer zones in place. And it requires that pesticides be monitored for their effects on community health and the environment.

With your gift today, you'll help continue this important work. Momentum is building. Working together, we can overcome the power and influence of the pesticide industry — in Hawai'i and beyond.

I suppose they figure it's their due, considering they paid for the Stop Poisoning Paradise website and funded “Kaua'i-based organizer” Jennifer Ruggles, who arrived on the island a few months ago.

And why slow the momentum with such dreary details as it's not yet a “new law,” it will be another two years before any pesticide disclosure occurs and the Environmental and Public Health Impacts Study (EPHIS) — whose scope remains undefined — won't be pau for 40 months?

Speaking of EPHIS, my ears pricked a bit when I heard Councilwoman JoAnn Yukimura suggest that perhaps the Ceres Trust or Hawaii SEED could fund the study. Really? Mmmm, or how about they split the bill with the chem companies and then we can be assured of a totally discredited effort?

Which leads me to another bizarre twist in this saga: an email that Blake Drolson circulated to his GMO Free Kauai mailing list "in gratitude to JoAnn for her work in passing Bill 2491."  In it, JoAnn denies that the angry crowd in the Council chambers pressured her into voting for the bill, rather than a deferral, as blogger Andy Parx speculated in his post “How fast can you turn on a dime?”

Her statement was supported by her husband, John Wehrheim, who wrote:

The most important point I want to clarify is the rumor that JoAnn was in any way swayed by the exhausted, frustrated and emotional outburst of the crowd when she began her convoluted rational of why she was voting for the bill--leading with why she had wanted a deferral!!!  This was an almost tragic rhetorical error [that lead to a near riot...] but typical of JoAnn's indirect and tortuous style of speech.

To think for a moment that JoAnn’s vote was in any way swayed by the crowd’s outburst that night is to completely misunderstand her very tough and stubborn nature. JoAnn cannot be swayed by threats, anger or outbursts. They only make her more stubbornly fixed in her position.

I never believed JoAnn was going to vote for a deferral or kill the bill. Why should she, when her amendments had already successfully gutted the measure and introduced loophole language that chem company lawyers can exploit?

What struck me was the way she apologized for not getting to the point sooner, so as to prevent that "near riot" that John referenced, rather than chewing out the disruptive rowdies for their lack of civility:

I was trying to explain my reasoning in my exhausted 3:30 am speech. In retrospect, I should have started with my conclusion to vote against deferral, but instead, I led to my conclusion by first outlining my thought process. In retrospect, this was not very smart.

No, let's not waste time with reasoning, or decorum, or any public discussion of the final weakening amendments that were hashed out entirely behind closed doors after midnight.

Momentum is building, so all aboard......