Friday, April 18, 2014

Musings: Different Mind Sets

Is it better to have more restrictive public access to protect a still-pristine beach? Or should the most generous access be required in exchange for the right to develop a 76-lot luxury “ag subdivision” along the coast?

That's the question the Kauai County Council is grappling with as it decides whether to accept a beach access the planning commission approved for Falko Properties' Kahuaina Plantation subdivision, off Koolau Road.

Waipake Beach is currently reached only via long walk from the Larsen's (Lepeuli) access — unless you know somebody who will let you drive across private property to reach the beach, as some fishermen do.

Because it is relatively inaccessible and unused by humans, it's a place where you're likely to find sea turtles and monk seals, often with pups, basking on the beach. Albatross nest on the hillsides above.

Both the developer and beach-goers are using the presence of these protected species to advance their positions. The developer has offered a vertical access through the 360-acre property that also requires a long walk and ends at a pile of rocks, arguing that wildlife will be harmed if it's too easy for folks to get there. Except, of course, for the people who are wealthy enough to buy the lots.

Beach-goers like Peter Waldau, Richard Spacer and Hope Kallai, however, claim the public needs a better vertical access as well as a lateral access through private property in order to stay mauka of the monk seals that pup on that beach. They're pushing to delay the project until the long-contested ala loa — coastal trail — issue is resolved, which most likely will require litigation.

However, Clinton Bettencourt objected to Kallai testifying that it was "her sacred trail. The trail belongs to the kanaka. It always did and it always will. I don't care who owns the land."

Councilman Gary Hooser said state law requires lateral coastal access in areas where steep cliffs or rocks prevent access during high surf times. But Councilwoman JoAnn Yukimura and Deputy County Attorney Ian Jung clarified that public access extends to the highest seasonal wash of the waves, and the county would need to go through the condemnation process to create a lateral access mauka of the shoreline.

Bettencourt, who has been fishing that stretch of coastline for 50 years, testified to the Council that Shawn Smith has been doing a good job of managing the land for Falko Properties, and the beach is “pristine because there's very little people that go there to throw their opala and then go home. We'd like to keep it the way it is.” However, he noted that it is becoming increasingly used by nude sunbathers, who are moving northward from their usual hangout at Lepeuli Beach. “This area should not be desecrated in such a manner.”

Councilmen Mel Rapozo and Ross Kagawa both expressed their alarm about the presence of nude beaches on Kauai, with Mel saying it's against the law and Ross expressing concern “when our keiki has to see that we cannot enforce the laws on our beaches.”

JoAnn shared her experience with the “complexities of public access,” noting she had tried to get Mahaulepu protected via the Trust for Public Land, but “the community was ambivalent, afraid it would get overrun by tourists if it was turned into a park, discovered and on the map.” So TPL acquired 130 acres by the Kilauea lighthouse instead.

Some of the concerns about access need to addressed by the general plan,” JoAnn said. “It's about the carrying capacity of this island, the resident and visitor population.” She spoke of the halcyon days when Kauai had just 30,000 residents and unrestricted beach access.

Now we have a clash of cultures, people with different values, and some of them don't fully appreciate the local culture or the Native Hawaiian culture,” she said. "Public access when not well managed is a double-edged sword."

Councilman Tim Bynum noted Kahuaina Plantation was supposed to be the county's last agricultural subvision. “The General Plan in 2000 told us to end this practice. But we're still creating these mansions in isolated communities with people pretending they're farming.”

Ben Ferris testified that he has a five-year lease on 10 acres there, where he grows ginger. He said a new water line is being installed, which he thinks seems to the permanence of farming.

Falko attorney Dennis Lombardi said that as each lot is sold, the owner will be subject to the caveat and requirement to engage in active farming for revenue to satisfy the farm dwelling agreement. “We have no mansions, but we have a farm,” he said.

Mmmm, yeah, but no lots have been sold, so nobody has had a chance to build a mansion yet.

Earlier this month, Shawn posted this ad in The Garden Island:
Councilman Mason Chock said that "eliminating people is just kind of stopping what is inevitable because people are going to find a way to get there. It's about education. There is a way. It's the mind set we're working against. It's not whether we should block people off or not."

The Council plans an April 30 site visit to the property to check out the proposed access.

Thursday, April 17, 2014

Musings: Read, Weep, Laugh

Do politicians know where their campaign signs are posted? I wondered when I saw the Hanabusa sign in front of the ice dealer's house, the array of Abercrombie signs plastered on the Kapahi ag land being turned into upscale gentleman's estates.

Or is the idea just to get 'em out there, never mind where?

So Al Gore flew all the way over here to stump for Abercrombie and Sen. Brian Schatz, I mean, lecture us about getting on it to reverse climate change. As Civil Beat reported, with no apparent touch of irony:

By turns a university professor, a wry observer, a recovering politician, a joke teller and a Southern preacher, Al Gore fired up an audience of thousands at the Stan Sheriff Center to believe that global warming can be stopped. But it's possible only if each of us does our part.

And his part, it seems, is jetting around the world denouncing the evils of carbon emissions, while living alone in “a 10,000-square-foot colonial in Nashville, where magnolia trees shade the house and geothermal wells, buried beneath the driveway, cool and heat its 20 rooms,” while also maintaining “a luxury apartment at the St. Regis tower” in San Francisco. 

Do you suppose he hangs out the laundry?

Civil Beat continued with Gore's rousing call to action:

"The way we have to respond to this is going to require a set of changes that are beyond our routine," he said, his voice growing to a shout. "I know that we are capable of that. Our way of life is at stake, our grandchildren are at stake, the future of civilization is at stake."

But don't touch capitalism. Or god forbid, the two drivers of Hawaii's economy: fossil fuel-guzzling tourism or the military. We're not talking about changes that far outside our routine. Because who can possibly imagine civilization without an imperialistic war machine, the kind of cheap leisure travel that dumps 500,000 people per year on the trail to Hanakapiai? And what, a million-plus on poor little Ke'e? With a 20 percent increase expected no less.

In politics, there's rhetoric, and there's reason, and ne'er the twain shall meet.

Got a call yesterday from SMS Research, apparently conducting a poll for the Abercrombie campaign. One tip off was this question: Would you rather have a governor without executive experience who is agreeable, or one with executive experience who doesn't always get along with others?

Is there a door number three?

It seems that Neil is worried about his image, as I was asked to agree or disagree with statements like: Abercrombie's personality may prevent me from voting for him; he may do the job well, but he's rude; his stubbornness has made him ineffective. A few softballs were tossed in: he cares for children and their future; he has a passion for public service; he cares about senior issues; he gets the job done. 

What, nothing about cuddling puppies? And curiously silent on two touchy spots: Hawaiian issues and the environment.

What do you think of Abercrombie?” the pollster asked, giving me a chance to go off-script.

I think he's arrogant, dishonest and I really haven't agreed with his stance on a lot of important issues.”

What do you think of Abercrombie?” the pollster asked again, helpfully supplying a few adjectives. "Stubborn? Argumentative?"

I just said he's arrogant, dishonest and I don't agree with him on the issues. Isn't that enough?”

I was then asked to say whether the following statements made me think better or worse of the governor:

He restored funding to Hawaii's neediest; his staff has put Hawaii in a better position today; he fights for issues he believes are important for the people of Hawaii...”

At that point I broke in: “Wait, are these supposed to be statements of fact?”

Oh, yes,” I was told. “They're based on research.”

But then, the chill fog of reality settled in as I was asked to give my impression of various political figures, some of 'em going waaay back: Schatz, Hanabusa, Tsutsui, Ige, Abercrombie, Aiona, Mufi, Cayetano, Waihee, Ariyoshi.

Yeah, folks, that's the Hawaii heavy-hitter political line up. Read 'em and weep.

Then I read this announcement from the Honolulu Prosecutor's office, about Shaylene Iseri's former first deputy, and I laughed aloud:

Please welcome Jake Delaplane, who joins the Career Criminal Unit.

I'm still giggling.

Wednesday, April 16, 2014

Musings: Dreck from the Depos, Part I

Look, Sheila, get one rice cooker,” county planning inspector Patrick Henriques said as he peered through a gap in the drapes that covered a sliding glass door at Councilman Tim Bynum's house.

His boss, planning supervisor Sheila Miyake, looked, too, and she saw a refrigerator. “That, to me, is an installed appliance,” she said. Patrick pressed his camera up to the glass and took pictures of the room. Then, spotting a broken window, “I tried to peek through that thing.”

The two county workers were describing their unannounced “exterior inspection” after receiving an “anonymous” complaint that Tim had converted his Wailua Homesteads house into a multi-family dwelling. Their words were caught on tape by former First Deputy Prosecutor Jake Delaplane, who was secretly recording their Nov. 30, 2010 conversation.

— From my Sept. 27, 2012 blog post: Terrible Words

As a result of that visit, the planning department sent Bynum a cease and desist zoning compliance notice and then-Prosecutor Shaylene Iseri filed misdemeanor charges against him. 

Bynum went on to file a civil rights lawsuit against Iseri, Miyake and Kauai County, resulting in a $750,000 county legal bill, a $290,000 settlement and extensive depositions being taken from county workers. 

Here is an excerpt from the Henriques depo, which seems to outline an institutionalized abuse of process.  Bynum's attorney, Dan Hempey, is asking the questions, with Patrick Henriques answering:

Q. Right. So you guys sent him a letter demanding that he submit building plans based on a rice cooker in the room, because if there was no rice cooker, it wouldn't have been a kitchen, right?

A. Yes.

Q. And nonetheless, even though you didn't know they existed in April 15th, 2010, a zoning compliance notice went out telling him to cease and desist those [gas and electric] connections that you didn't even know existed in the first place, right?

A. Yes.

Q. Is it common practice for people to get compliance letters telling them to cease and desist things that nobody knows if they are doing in the first place?

A. Yes.

Q. That's common?

A. Uh-huh.

Q. Okay. It's a common practice on Kauai for the planning department to send out zoning compliance letters telling people to stop doing things that the planning department has no evidence that they are really doing in the first place?

A. For that zoning compliance letter.

Q. It's a common --

A. The heading, for the heading zoning compliance.

Q. People get letters like this all the time on Kauai?

MR. NAKAMURA: Answer the question.

THE WITNESS: Yes.

BY MR. HEMPEY:
Q. And Sheila Miyake is the person who has trained you to send letters like this telling people to stop doing things even though you guys don't have evidence that they are doing them, right?

MR. NAKAMURA: If you can answer the question, go ahead and answer the question.

THE WITNESS: I cannot answer him.

MR. HEMPEY: Could you read back the question, I'd like to repeat.

THE WITNESS: I cannot answer that.

BY MR. HEMPEY:
Q. Well, I think it's a yes, no, does Sheila – why can't you answer that question?

A. Why don't you strike the name and then I'll answer that question.

Q. Why can't you answer it as I said it? Yes or no, ... -- was Sheila the one who trained you to send out letters even though they tell people to cease and desist things that the planning department doesn't even know that they are doing, did you learn that from Sheila, or did you learn it somewhere else, or did you invent it?

A. I'm just going to answer yes already.

Q. If you didn't have any evidence of illegal gas or electric service supplies, why was he sent a letter telling him to cease and desist such things?

A. Because I never see a complete floor plan of the house.

Q. So since you didn't know, you told him to stop doing it?

A. Yes.

Q. So is it fair to say then that Mr. Bynum was given Exhibit B, telling him to cease, among other things telling him to cease and desist and remove all illegal and/or gas/electric supplies along with cooking facilities, even though at the time this letter was sent you had no idea if there was illegal gas or electric service in his house, right?

MR. NAKAMURA: Objection, asked and answered.

Q. Okay. So I just want to make sure I get this right. After you inspected the Bynum property in April 11 2010, Ms. Miyake told you to send the zoning compliance, she gave you basic instructions as to what should be in it, you gave her a draft, and then she made edits to the draft?

A. Yes.

Q. And so this letter dated April 15th that's Exhibit B, went out, that went out was ultimately the final edits were done by your supervisor, Sheila Miyake, correct?

A. Yes. Yes.

Q. And then she handed it to you for signature?

A. Yes.

Q. And did she tell you to sign it?

A. Yes.

Q. Knowing now that she told you to sign a document that told Mr. Bynum to cease and desist things that there was no evidence of, does that make you feel like Ms. Miyake has put you into a spot?

MR. NAKAMURA: Go ahead.

THE WITNESS: Yes.

Q. If you didn't have any evidence of illegal gas or electric service supplies, why was he sent a letter telling him to cease and desist such things?

A. Because I never see a complete floor plan of the house.

Q. So since you didn't know, you told him to stop doing it?

A. Yes.

Q. And then you wanted a second inspection so you could go in and verify that he stopped doing what you didn't know that he was doing in the first place?

MR. NAKAMURA: Well, I'm going to object as argumentative.

If you understand the question, you can answer the question.

THE WITNESS: Try repeat that question.

MR. HEMPEY: Can you read that back?

(Requested portion of the record read by reporter as follows: And then you wanted a second inspection so you could go in and verify that he stopped doing what you didn't know that he was doing in the first place?)

THE WITNESS: Yes.

BY MR. HEMPEY:
Q. Thank you. And at the time you knew that this zoning compliance notice, Exhibit B, was sent to the prosecuting attorney, did you not?

A. Yes.

Q. Do you think it's fair to tell someone to stop doing something even though you don't have any evidence they were doing it in the first place, and then send that document to the prosecutor, just in your basic sense of human fairness, do you think that's fair?

MR. NAKAMURA: Objection, argumentative, assumes facts, it does not state all the facts in evidence.

THE WITNESS: I would say no.

MR. NAKAMURA: It's about an hour, Counsel. Is this a good time for a break?

Tuesday, April 15, 2014

Musings: Code Green

While perusing the Malama Kauai newsletter, I saw the curious claim: “We won a landmark Supreme Court case for water rights.” So I clicked on the link, and what do I see? Earthjustice and MK are claiming credit for winning the Kauai Springs water bottling case.

Mmmm, as I recall it, Kauai County put up all the dough and did all the heavy lifting over eight long years of litigation. Earthjustice slipped in at the appeal, filed a measly amicus (friend of court) brief and deftly positioned itself and MK's Keone Kealoha as heroes.

Excuse me, but WTF do Keone and MK know about water, and what has he or that group ever done on its behalf? Their one claim to fame is school gardens. Oh, and giving Superferry opponents a spokesman with a Hawaiian name to counter claims it was a haole movement.

But that's how Earthjustice operates. They cherry pick high-profile cases and nonprofits, then spin it for publicity and fundraising. Just as they're doing with their intervention in the chem companies' lawsuit against the pesticide/GMO regulatory law, Ordinance 960.

Councilman Gary Hooser is quoted as saying the intervention is a “big win for the people of Kauai.” It'll only be a big win for the people of Kauai if Earthjustice and Center for Food Safety pick up a substantial portion of the legal fees we're incurring defending the crappy bill they wrote. 

But don't hold your breath. Because this isn't really about the little people on Kauai. Though EJ and CFS claim they're representing “the community” and “those who have been most harmed by these toxins,” they picked as their clients not real folks with health problems on the westside, but Pesticide Action Network, another publicity- and cash-hungry national group; Ka Makani Hoopono, a group formed solely for the purposes of joining the lawsuit, and Surfrider Foundation, another national group, which is trying to pretend it's neutral enough to test water for pesticides. Uh huh.

Speaking of Surfrider, the Star-Advertiser yesterday picked up on its chummy — and ironic — new alliance with high-end tourism and real estate development.

The piece focused on how upscale Poipu vacation rental properties and the Grand Hyatt have aligned with “environmental” groups like Malama Mahaulepu, Surfrider and Sierra Club to kill the proposed Mahaulepu dairy.

I laughed out loud when I read one of their gripes:

They argue that the dairy's plan to use partial grains to feed the cows and to ship milk from Kauai to be bottled on Oahu isn't part of environmentally sustainable practices.

But the totally unsustainable Grand Hyatt, which depends on a steady stream of imported tourists, food and booze to keep afloat, guzzles massive amounts of electricity and water, generates tons of trash and produces thousands of gallons of sewage gets a free pass?

That wasn't the only amusing bit:

"This is kind of a clash of cultures," said Jerry Westenhaver, general manager of the Grand Hyatt Kauai Resort & Spa, which is about 2.5 miles from Ulupono's proposed dairy farm. "Grove Farm, which owns the land under the proposed dairy farm, doesn't understand the fragile, competitive nature of the tourism industry and how one round of bad press could affect a lot of people's lives.”

I guess Jerry doesn't know that Grove Farm sold developers the land that became the Hyatt – a resort project bitterly opposed by his new BFFs in the Kauai environmental community, btw.

Jerry went on to say:

"Once the community opens the gate, it's going to be hard to close again," he said.

Yeah, that's why a lot of us were worried about turning ag land into resorts and gentleman's estates, and going gang-busters into tourism promotion.  And sho nuff, here we are facing the monster that Grove Farm helped to create.

Only now, our sadly co-opted environmental community has joined forces with the so-not-green tourism and luxury real estate industries in opposition to agriculture, claiming it's not green enough.

But don't worry, the environmentalists are still dedicated to “green” principles — as in the color of money. So keep those tax-free donations flowing, folks. Just don't ask for any accounting of the funds or a list of donors.

Because disclosure and transparency are for the other guys, the “bad guys.” Whereas they're the good guys, the aina warriors. Right?

Yeah, right. 

Monday, April 14, 2014

Musings: Eclipsing

Out on the mountain trail, seeking birdsong, green ridges, ohia lehua.

Less than a mile in, hopes and wishes rewarded.
Clouds drift over the sun, pile up on the peaks.

Clear skies aren't likely for tonight's eclipse.

Mahina will reveal what she wishes.

All we can do is look up, look within, and strive for balance.

Sunday, April 13, 2014

Musings: Deliberate Distortions

OK, so now it's clear the “biologists” and Koloa Nimbys were exaggerating and even flat-out lying in their hysterical, hyperbolic “urgent” plea to the county to intervene and halt the Hawaii Dairy Farms project.

They lied, and said HDF had never consulted with the Natural Resources Conservation Service (NRCS). But County Engineer Larry Dill, in his detailed response to the fear-mongers, wrote:

I have contacted Mr. Ben Vinhateiro of the NRCS who informed me that HDF consulted with NRCS early on in the process to develop their Conservation Plan, and that HDF continues to consult with NRCS as new concerns are made known and new information becomes available.

They lied, and said the West Kauai Soil and Water Conservation District (WK SWCD) had “rubber-stamped” the dairy's conservation plan, which was not given a “thorough review.” But Dill notes:

I have also contacted Mr. Peter Tausend of theWK SWCD . The WK SWCD, with technical support from the County, reviewed and approved the Conservation Plan prepared by HDF with assistance from the NRCS. The WK SWCD continues to monitor the project.

They lied, and claimed “HDF has begun major construction (moving large amounts of soil), despite their failure to secure the required State permits for their proposed dairy.” Again, Dill noted that HDF had qualified for an ag exemption to the county's grading, grubbing and stockpiling ordinance:

Additionally, on April 3, 2014, without having received a complaint but because of concerns that had been raised by the community, the DPW [county Department of Public Works] inspected the site. DPW found that any grubbing or grading work that had been done by that time did not surpass the thresholds established by the Grading Ordinance. Also, significant clearing had been done, but clearing is not an activity that is regulated by the Grading Ordinance.

They lied, and claimed the New Zealand rotational pasture model that HDF is following “has had a devastating nationwide environmental impact” in that nation. Except a) that's a blatant overstatement; and b) it's more than a little skewed to compare one dairy on Kauai to the nationwide impacts in a country where dairy is the primary export industry.

They lied, and stated flat out: “Based on the nutrient load (waste) that the cows will deposit on the grazing acreage and which will remain there, pollution cannot be prevented.” But they don't actually know that for a fact. Even they had to admit the dairy's revised comprehensive nutrient management plan (CNMP) is still being reviewed by the state Department of Health. As Dill wrote, after communicating with Sina Pruder, Chief of DOH Wastewater Branch:

I have contacted her and she confirms that the Wastewater Branch is reviewing all aspects of the proposal dealing with management of waste to ensure the protection of water quality. Hawaii Dairy Farms has been responsive to comments from the Wastewater Branch, and Ms. Pruder noted that Wastewater Branch's approval of their building permit applications is contingent upon approval of their livestock waste management plan in accordance with Chapter 11 -62, Hawaii Administrative Rules, "Wastewater Systems" and the Guidelines for Livestock Waste Management.

They lied in the letter and to the newspaper, which quoted Surfrider's Carl Berg as saying:

[T]those who signed the letter support having a dairy farm, but not in Mahaulepu.

It’s just the location, really,” he said. “If we didn’t have to worry about everything running into the ocean, Surfrider wouldn’t care.”

Except that's not true. Surfriders Gordon LaBedz and Robert Zelkovsky have been quite vocal about the evils of milk-drinking, the unacceptable levels of greenhouses gases released by cows and the horrors of “industrial agriculture." The letter-writers also whine the dairy isn't completely "sustainable." Mmmm, like Zelkovsky's tourist-dependent wedding video business is?

And both Carl and Don Heacock have been complaining for years about Grove Farm's control of Waita reservoir.  If the dairy, a big water-user, is destroyed, or at least driven out of Mahaulepu, it may help to loosen Grove Farm's lock on Waita — a lock that was tightened when GF was allowed to designate that acreage as Important Ag Land largely because it has abundant water.

Ironically, the letter-writers claim that HDF should be booted because it supposedly misrepresented the facts. By that same reasoning, we should also reject the letter-writers, because they're doing the exact same thing, while claiming everyone is lying but them.

There are legitimate questions and concerns about the dairy. For example, New Zealand dairy consultant Derek Fairweather is quoted in a 2011 Star-Advertiser article as saying a 1,000-cow pasture farm needs about 1,000 acres. HDF, however, is proposing to start with 880 cows on 582 acres, with plans to expand to 1,800 cows on the same acreage. Sounds like a disconnect.

So yes, we should be scrutinizing the dairy plan. But it serves no one well when concerns are inflated and distorted and fears are intentionally fanned. 

The Garden Island, in a follow up with the facts that was given a smaller splash than the fibs, quotes lead letter-writer Bridget Hammerquist as saying Dill's response is “scary” and “sad.”

Actually, what's sad is seeing some of the names that were affixed to that letter of deliberate distortion. Because next time their expertise is needed in a legitimate environmental issue, they won't have any credibility.

Saturday, April 12, 2014

Musings: Oi Boy

Gov. Abercrombie has come up with a novel approach to perpetuating the state mindset while currying political favor: appoint retired state workers with solid union creds — and a job at the Lege — to key state panels. 

Or more specifically, nominate Tommy Oi to represent Kauai on the Board of Land and Natural Resources.

Oi retired as Kauai state land division manager to work in westside Kauai Rep. Dee Morikawa's office.

He's also snug with the Democratic Party and the government workers' union, HGEA. Oi served as Kauai island co-coordinator during Mazie Hirono's Senatorial campaign. As the Mazie for Hawaii website noted:

He was part of the HGEA PAC that interviewed and endorsed Mazie for her lieutenant governor race in 1994 and has supported her since then. Tommy is vice president of the Lihue Honwanji Mission on Kauai and is a member of Kiwanis and the HGEA Retirees Unit.

Gee. It's all so very cozy and cliquish — precisely what you'd expect in an election year.

But, um, what about the community?

Oi is up for a two-year term, with a nomination hearing on Monday before the Senate Committee on Water and Land, which is headed, inauspiciously, by Malama Solomon and Brickwood Galuteria.

Friday, April 11, 2014

Musings: Bynum Settlement Approved

After burning through $750,000 in legal fees, and facing at least another $500,000 to take the case to court, the Kauai County Council has finally agreed to settle Councilman Tim Bynum's civil rights lawsuit for $290,000.

In his September 2012 lawsuit, Bynum contended that defeated Prosecutor Shaylene Iseri and planning inspector Sheila Miyake violated his civil rights by pursuing him on a zoning violation to squelch his free speech on the Council and harm his re-election bid. The case was headed for a hearing on summary judgment when the county's insurance company negotiated a settlement. 

A federal judge supported the settlement, finding that Bynum's claims were not frivolous, unreasonable or groundless.

Councilmen Ross Kagawa and Mel Rapozo cast the only votes against the settlement. Ross said he plans to file an ethics complaint against Councilman Mason Chock, contending Mason shouldn't vote on the settlement because Bynum had supported his recent appointment to the Council.

But Ross apparently has no problem with he and Mel voting against the settlement, even though they are both staunch Shay supporters.

Mel pushed to take the case to court, saying he thought it was improper for Councilmembers to be determining a settlement for one of their colleagues, and a court hearing would launder all the dirt. “The public deserves to know the truth,” he said.

But in his withering order, U.S. District Judge J. Michael Seabright wrote: 

[P]roceeding in this action, where Plaintiff [Bynum] has been compensated and seeks dismissal with prejudice, would serve no purpose other than to feed the fire of Plaintiff’s and Carvalho’s public feud. Needless to say, such purpose does not justify the expenditure of the parties’ or the court’s resources. 

The court will not be drawn into this continuing political feud.

As both Councilwoman JoAnn Yukimura and Chair Jay Furfaro noted, the Council wasn't approving a settlement, but ratifying a settlement negotiated by its insurance company. And if it went against the insurer, it could be facing a breach of contract action. It would also have to pay all future costs associated with the case, including Bynum's attorney fees and damages if he were to win.

Ross argued the Council needed to reject the settlement as a way of discouraging people from filing lawsuits against the county.

But Councilman Gary Hooser nailed it when he said, “What encourages more lawsuits is the conduct of county employees in the planning department, prosecutor's office and elsewhere.”

Right on. Look at how much Shaylene has cost the county due to her dreadful “management” practices. And Sheila was recorded on tape acknowleding that county attorneys told her it was illegal for her and another inspector to trespass onto Tim's property and take pictures through a crack in his drapes. 

Until the county cleans up its act, improves its human resources department and cleans out its dead wood — Shay's been defeated, and only insane people would return her to office — it's gonna continue to be sued, and rightly so.

Yes, Tim did have an improper rental, so he's not an entirely sympathetic victim. But problem is, a lot of other folks have illegal rentals, but only he was targeted for enforcement by his political enemies. And that's wrong.

Ross went on to say he'd had “hundreds — Really, Ross? Hundreds? — of people come up to me. Not one has told me settling this case as represented in the newspaper is a good idea."

And therein lies a big part of the problem. The Garden Island's coverage of this issue has been so horribly botched that anyone who hasn't also read this blog hasn't a clue about what's really going on. 

Sadly, the Bynum case offers yet another example of how TGI, and renegade politicos, repeatedly fail this community.

Update: Just read Darin Moriki's report in TGI and I had to say, Bravo! He's the first reporter to get it clearly, and right.

Thursday, April 10, 2014

Musings: Keeping the Lights On

Making electricity is not a pretty business, but gosh, don't we love it when the lights come on and the refrigerator hums and the router connects us to the cyber superhighway? And don't be getting all smug thinking, oh, I'm clean and green, off the grid, because garans, there's ugliness in the manufacture and shipping of your batteries and PV panels.

Anyway, the folks on our little island suck down 73 megawatts of electricity at peak consumption, much of it generated by burning naptha at the Kapaia power plant and low-sulfur diesel at Port Allen. Though “we run the cleanest plants in the state,” according to KIUC spokesman Jim Kelly, there's no escaping the fiscal and political vulnerabilities — not to mention the carbon emissions — associated with using fossil fuels shipped in from Indonesia or some other far away place.

So KIUC is moving into renewable energy sources, like solar, biomass and hydro, which is how I found myself in a painted eucalyptus grove near Halfway Bridge where a major industrial project is in the works.

It's the Green Energy biomass plant, where eucalyptus and albezia trees — some of them wild, some grown in plantations — will be cut down, chipped, stored in a 10-story-tall building and then fed, via conveyor belt, into a boiler that creates steam, turns the turbine and makes electricity.
Men in hard hats, safety vests and heavy boots buzzed around the site like worker bees in a hive, as big and little trucks drove in and out. Cranes towered overhead, and heavy equipment rumbled and roared, moving piles of dirt as a stiff breeze kicked up billowing clouds of dust.

The blustery 64-acre site — five acres is being used for the plant, with the rest in eucalyptus and albezia — seems well-suited to wind generation. But we aren't going there on Kauai, because the native seabirds have already been so devastated that they can't take any more hits. And I got no problem with that.

Still, it was a little amazing to think that in the 21st Century, we're generating power by burning wood — though this very old technology has been made super modern by the use of a German-made, state-of-the-art facility that uses “electrostatic precipitators” to filter out much of the crud. In other words, there is no belching smokestack.
Under its EPA air permit, its emissions will be significantly less than the quantities of nitrous oxide and sulfur oxide — one-fifth and one-third, respectively — produced by burning diesel at the power plants. Its particulate emissions will also be lower, and it's billed as carbon neutral, which fossil fuels decidedly are not. Green Energy conducted an Environmental Assessment and an EPA Environmental Review, with no findings of significant impact.

KIUC likes it because it uses fuel grown right here, giving us “a hedge against craziness in the world,” which often translates into wild oil price fluctuations and curtailed shipments, Kelly says. Another advantage: it's “a firm energy source,” which means it can produce 7 megawatts of power round-the-clock.

So what about price? After all, the plant is costing $90 million, with Standardkessel Baumgarte Contracting GmbH of Germany and Green Energy (Eric Knutzen and Jeff Lindner) picking up the tab, aided by a $72.9 million  federal loan guarantee. Green Energy will own and operate the plant, selling electricity to KIUC.

Though the state Public Utilities Commission allows utilities not to disclose the exact costs of their power purchase agreements — something about proprietary information and competitive bidding — Kelly says it will cost consumers less than oil, which is about 25 cents per kwh now. The Green Energy plant will replace some 3.7 million gallons of imported oil burned in Kauai power plants each year.

Mario Scharf, a super smart guy from East Germany, has traveled the world building these plants for Standardkessel Baumgarte Contracting GmbH, which developed the technology and builds the equipment. He's in charge of the getting the Green Energy facility up and running, which hasn't been an easy task.

Though it's the smallest plant they've built, it's been the most challenging, with double the costs, he says. Why? Because the Hawaiian Islands are the most remote inhabited land mass on Earth, which means everything must be shipped in, and much of it from Europe, since the U.S. doesn't make steel stuff any more.

Yes, there's a reason why electricity is so expensive here, and it has nothing to do with CEO David Bissell's salary. It's due to shipping and no economy of scale. Though hey, we could be burning coal for 5 cents per kwh if we wanted to really get regressive.

In a hellish logistical and scheduling exercise, they've brought in 300, 40-foot containers worth of stuff, much of it making a three-month slog from Hamburg to Nawiliwili. About 200 guys are employed in the construction, most of them Kauai residents.

The plant and tree farms will employ some 39 fulltime workers when it comes on line late this year. Green Energy's own guys will be cutting the wood, which will be harvested, left in the field to lose about half its moisture content, which takes a week or two, then chipped on-site. It will be contracting with two or three local haulers to bring the chipped wood into the plant, between eight and 14 truckloads per day, depending on where it's being grown. The chips will be stored in a 100-tall-building, prior to being fed into the boilers.
They have four years worth of wood secured, including Bill Cowern's Hawaiian Mahagony plantation. The company has clearing rights on 6,500 acres and long-term leases on about 2,000 acres, much of it at Kalepa, where it plans to grow eucalyptus.

It takes about four to five years for a seedling to reach cutting size — eucalyptus grows 20 feet a year. The stumps will be left to regrow, and then recut, a process that can be repeated four or five times before the tree is all pau. Ash, the one residue from the plant, will be used on the tree farms because its high nitrogen content makes it a valuable fertilizer, Scharf says.

Green Energy plans to harvest wild trees — don't freak out, we're talking trash albezia that are threatening the water sheds, and non-native eucalyptus — for the first four years while its plantations grow. It also hopes to make use of the charred, mostly-eucalyptus trees left from the Kokee fires, with a California logging company bidding to remove the downed trees from the steep slopes so they can be reforested with native trees.

The plant can use only virgin wood – no pallets or construction debris — and the sources can't be mixed, because soft trees like albezia burn faster than eucalyptus. The company is currently allowed to burn only those two types of trees, though it plans to seek an amendment to its air quality permit to use the Kokee trees and other wood sources that may become available.

We will only burn it if it meets the emission requirements,” Scharf says. The company also has a stake in keeping its fuel clean and dry, to protect its expensive smoke stack from chloride corrosion.

Kelly and I left the hubbub of Green Energy and headed down the road, toward Koloa, where 55 acres of ag land leased from Grove Farm is being slowly covered with solar panels. It will generate about 12 mw of electricity, and is expected to start coming on line at the end of June.
The two sites were about as different as night and day, like the energy they produce. Some 54,000 American-made solar panels, each costing $500, have been shipped to Kauai for this array, which is the first utility-scale project for its contractor, Solar City.

By 2015, when all of the pending solar projects come on line, they'll be generating more electricity than KIUC can use, in the daytime, anyway, and when the sun is shining, which is why the utility is also focusing on storage.
"Storage technology is now the deal,” Kelly says, and 89 companies have responded to KIUC's recent request for proposal to build storage capacity.

By 2023, KIUC expects to generate more than 50 percent of its electricity from renewable sources. It ain't be gonna be free power, or even super cheap, but it will be cheaper, cleaner and less economically and politically volatile than burning oil, Kelly says.

As we pulled out onto the road, we stopped to look at the old Koloa mill, which used to burn sugar cane bagasse to generate the electricity that powered its operations and plantation worker camps. Though derelict, it's still a cool-looking building, an enduring legacy of the sugar era and a mute monument to our ever-growing gluttonous greed for bright lights, cool air, hot water, frozen foods and electronics. 
And as I snapped this photo, I couldn't help but wonder what an observer will make of Green Energy and the solar farms, a hundred years hence.

Tuesday, April 8, 2014

Musings: More Nuts

It's hard to know which is more nuts — that firefighters had to rescue 121 people from Hanakapiai, or that there were 121 people in Hanakapiai on a marginal weather day in the off-season.

So does this mean we typically have 1,000 people tromping through that supposed “wilderness valley” on a sunny day in summer, carving their initials in the bamboo along the way?

We already know that some 20,000 permitted hikers go past Hanakapiai to camp in Kalalau every year, with thousands more in there illegally and an untold number taking day hikes. Is it any wonder that most locals now avoid the trail like the plague?

I was thinking of how the state spent all that money to blast rocks off the pali that might fall on visitors in Kalalau Valley. But then it allows the hordes to descend on Kee and Hanakapiai, even in crummy weather, so they have to be airlifted out — with the county picking up the tab for Air 1 rescue.

Now that's really nuts.

The Star-Advertiser linked to a video clip of Rich Greenberg, the guy who tried to cross a river he knew had risen dangerously high with his two adolescent kids and a 3-year-old on his back, only to watch the 12-year-old get swept downstream:

It is only through an act of God and their heroic actions that our family was saved,” he said.

Yeah, and think of the risk to the rescue team, making all those trips in and out of the valley in that tiny little helicopter, just so some folks can claim “an epic adventure.” And with 20 percent more tourists expected in coming years, we can expect even people putting themselves in harm's way in our over-used and under-maintained parks.

Speaking of more nuts, Kauai Rising has launched a petition drive, trying to get a charter amendment on the ballot that will establish an administrator of public health to protect us from "the hazards of GMO agriculture, testing and toxins".

The proposal is rife with fantastical, undocumented statements that will never stand up in court, even if by a miracle it gets on the ballot and then passed by the voters. Why do folks waste time and energy on foolishness instead of engaging in actions that could actually result in positive, meaningful resolution to the myriad problems on this island?


And finally, equally nutty is the latest letter to the editor from Glenn Mickens, who refuses to believe anything bad about Auditor Ernie Pasion, despite clear evidence to the contrary. I'm not sure why TGI keeps printing his silliness. 

But if they persist, they could at least balance it out by covering the mess that is the auditor's office. Heck, I've already done all the research and reporting for them. It's really not fair to let the paper's readers labor under the impression that Glenn might be telling the truth.

Monday, April 7, 2014

Musings: Coastal Connivings

The Kauai County Council is preparing to give coastal landowners a big gift — an exemption from shoreline rules and regulations.

Bill2461, which was inexplicably passed out of Committee and goes to the full Council on Wednesday, grants a waiver to some 671 coastal properties. The so-called “bright line” exemptions encompass most of the lands still undeveloped along the coast.

Just take a gander at these maps, which show you exactly how extensive these exemptions are. They pave the way for projects like Pierre Omidyar's Hanalei Ridge and other blufftop and cliffside developments. (The link will give you higher quality graphics.)



Under the proposed new law, coastal landowners can get an exemption from shoreline rules, including possibly even shoreline certifications, so long as they are 20 feet above sea level, out of the FEMA flood zone and adjacent to a rocky shoreline.

They will be allowed to build their houses just 40 feet from the shoreline, though if no certified shoreline is required, how will we know where that setback line truly begins? Will a shoreline be required, or even a setback, for that matter, because doesn't exempt mean just that — exempt? 

 And aren't some of those rocky shorelines adjacent to areas with the highest erosion rates, and subject to hazards of their own? Hazards like wind, mud slides, big surf pounding the coast. We've all chunks of cliff fall away, and the only reason we haven't seen houses also sliding down the pali is we've had very little bluffside development. But of course, folks want to get just as close to the edge as they can, and now the Council is prepared to let them.

Not surprisingly, a number of large landowners and high end Realtors are licking their lips at the prospect of building into cliffsides and atop bluffs.

The proposed law, as amended and manipulated by Councilwoman JoAnn Yukimura to please the developer crowd, does nothing to protect view planes and prevent houses from hanging on the edge of the bluff, as has occurred all along Kauapea, much to the detriment of that previously wild beach.

State law requires the county to develop regulations for governing structures, use and activities along the shoreline. But with this proposed ordinance, the county is abrogating its mandate and essentially washing its hands and saying “anything goes” along much of the remaining coastline. Is that even legal?

The new law also has deleted the regulation of “activities,” which means they're creating this big gray zone over how weddings, surf schools, vendors, etc. will be handled in the setback. The Council is saying the special management areas would still apply, but anything under $500,000 is exempt, as well as single family residences. So how meaningful is that?

The bill states as its rationale the need to give the planning director greater flexibility, though he has always had the ability to waive shoreline certifications, as we've seen happen repeatedly in the Wainiha-Haena vacation rental zone, to the benefit of landowners. But this approach is more akin to a wholesale opting out than mere flexibility.

Kauai has always prided itself as having one of the strongest shoreline bills in the state, but if it accepts these amendments, the Council will be severely weakening our bill. For years coastal preservationists have been pushing the county to move beyond the minimum 40-foot setback, but with these amendments, that will become the default setback for any parcel 20 feet above a rocky coastline.

Though this bill has been in the works for nearly three years, the Council's planning committee rushed it through, making substantial amendments in session, but never taking the time to actually read the fully amended bill that they were approving. JoAnn is determined to give developers what they want, and Ross Kagawa and Mason Chock seem befuddled by the bill's complexities, which serve to mask its inadequacies.

It's time for a time out. The Council needs to send this bill back to committee — and even the planning commission, since it has changed so much since that panel approved it — to consider more carefully the ramifications of the last-minute amendments that were made.

It seems the Council is putting its trust into Sea Grant, but those guys aren't allowed to give advice, so it's not up to them to point out the bill's flaws. Still, the maps Sea Grant prepared speak volumes.

So truly, take a look and decide. Are you OK with exempting from shoreline rules all the coastal areas marked with a bright red-pink line? If not, you'd best get your comments into the County Council ASAP, because this bill is going before them on Wednesday and Council Chair Jay Furfaro has said he doesn't want a lot of changes made at full Council.