The Hawai`i Supreme Court has issued its long-awaited decision in the `Aina Le`a case. For those needing a reminder, that case involves the development of about 1,000 acres of land near Waikoloa, in the Big Island district of South Kohala.
The developer, DW Aina Le`a Development, LLC, and the owner of most of the land, Bridge Aina Le`a, LLC, had sued the state Land Use Commission (LUC) and the Office of Planning, alleging that the LUC’s decision reverting the land back to the Agricultural District did not follow proper procedures and, in addition, amounted to an unconstitutional taking of property.
Judge Elizabeth Strance of the 3rd Circuit Court found in favor of the plaintiffs’ claims: first, by ruling that the LUC did violate its governing statutes by failing to resolve in timely fashion its December 9, 2008, order to show cause why the land, placed in the Urban District in 1989, should not revert to the Agricultural District; second, by also allowing DWAL and Bridge to introduce nearly 10,000 pages of documents from other LUC dockets into the record before the court; and third, by finding that the LUC did violate DWAL and Bridge’s due process rights and rights to equal protection under the state and U.S. Constitutions.
The Supreme Court upheld Strance’s ruling, finding that state law does require the LUC to act on an order to show cause within 365 days of its issuance. In this case, the OSC, first issued in December 2008, was not voted on until 2011.
On all other matters, however, the lower court was overturned. The Supreme Court ordered the case remanded to the circuit court “for further proceedings consistent with this opinion.”
Environment Hawai`i has reported extensively on the `Aina Le`a development. All articles are available through our online Archives (click on the link in the upper right corner of this page).
Here is a link to the 78-page decision:
`Aina Le`a Decision
With the holiday season just around the corner, Environment Hawai`i has produced some beautiful organic cotton t-shirts featuring a drawing of the endangered Alala (Hawaiian crow) that noted cartoonist John Pritchett did for one of our early issues. The shirts are available in S, M, L, and XL for $20 apiece. Shipping and handling costs are $7. The shirts can also be picked up at our Hilo office: 190 Keawe Street, Suite 29. To order, call our toll-free number: 1-877-934-0130.
'MONEY GAMES' THWART OVERHAUL OF BIGEYE TUNA PROTECTION MEASURE
The population of Pacific bigeye tuna continues to decline, and the agency that is the official steward of that stock seems constitutionally incapable of acting. In our cover story, reporter Teresa Dawson, back from attending the meeting of the Western and Central Pacific Fisheries Commission in Samoa, lays out the grim lines that divide the commission's members.
Meanwhile, the United States, whose delegation would have observers believe it leads the way in self-imposed conservation measures, seems to resort to smoke and mirrors in setting new rules to allow WCPFC quotas on longlining to be circumvented. The court case challenging such rules is the subject of a second feature article in this month's issue.
Also worth noting:
`Aina Le`a Decision Sent Back to Lower Court: The state Supreme Court rapped the Land Use Commission on the knuckles for the way it handled the reversion case involving the Big Island development -- but the developers came in for their share of knocks as well.
Big Isle Biofuel Project Gets Green Light from Land Board: The state Board of Land and Natural Resources approved a lease of a pipeline from the port of Hilo to a nearby tank farm in favor of a company whose principal says he wants to import biofuels for utility use. But his close links with a palm oil importer raise questions about the source of fuel to go into those tanks.
Maybe the new approach to energy generation that the Kaua`i Island Utility Cooperative is proposing will be a game-changer, bringing cheap, reliable power to the island’s residents without using fossil fuels or other non-renewable resources.
But before that can happen, the utility needs to surmount any number of pretty high hurdles, as Teresa Dawson explains in this month’s cover story.
On the same subject of renewable power, we report on the latest legal challenges faced by Hu Honua in its efforts to develop a biomass-fueled power plant on the Big Island.
Also in this issue:
We report on the refusal of the Western Pacific Fishery Management Council to bow to scientific advice with respect to setting catch limits for prized bottomfish and disclose the costs to the public of the council’s lobbying efforts against the expansion of the Pacific Remote Islands Marine National Monument;
We describe an ongoing dispute in Kona over whether a permit was needed for the clearing of a four-acre parcel, said to have damaged historic sites; was it grubbing or merely “mowing,” as the owner claims?
And our regular Board Talk column features a difficult enforcement case that recently came before the state Land Board.
The Heat is On
For decades, climate change was something whose effects most of us, to the extent we gave it any thought at all, thought would be visited on their grandkids or, maybe, our kids. Few of us imagined we’d have to deal with it in our own lifetimes.
And in that, we were oh so wrong.
As we note in this month’s cover story, the coral bleaching events seen earlier this year in waters around Hawai`i are going to be increasingly frequent and ever more devastating. Globally, corals will have few refuges. Even areas that are now pristine or close to it will suffer as ocean water turns to acid and surface temperatures soar.
It thus becomes all the more important to defend the health of the reef wherever and whenever we can. In this regard, and for other reasons as well, the state’s new rules to protect herbivorous fish in waters around Maui, discussed in the lead item in this month’s “Board Talk” column, are a great step forward.
ALSO IN THIS ISSUE
New & Noteworthy: HFACT Facts, Cesspool Rules, And False Killer Whale Takes
Task Force, CWRM Question Navy’s Management of Red Hill
Board Talk: New Rules For Maui Fishing; Homeless Help; And a Fine for the Volcano Circus
Puna Circus, Hawai`i County Planners Tussle for Years Over Ag Lot Uses
The number of ways to help the Hawaiian Electric utilities reliably and cost-effectively incorporate more renewable energy into their grids seems to be growing by the minute, as do the options for those wanting to leave the grid altogether.
But the exact path taken depends largely on what the state Public Utilities Commission decides regarding the utilities’ own proposals. Already those have been criticized as delaying the integration of renewable sources into their grids and penalizing customers who already have photovoltaic systems.
Will the PUC let Hawaiian Electric continue to dominate Hawai`i’s energy landscape or open the door to other alternatives?
At this point, it’s anyone’s guess.
Also in this issue:
- Appeal for Setback Change Denied for 'Pepe`ekeo Palace'
- Board Talk: Sand Island Homeless Camp, Kaua`i Beach Encroachments
- State High Court Grants Request for Hearing on Haleakala Master Plan
- Fight Over `Ewa Project Continues as Limu Gatherer Sues Land Board
- Parker Ranch CEO Details Reasons to Leave HELCO Grid
- Advisor Outlines Impacts of Pumped Storage in West Kaua`i
When it comes to the arcana of American jurisprudence, the cases alleging Central American worker injury as a result of DBCP exposure provide a good introduction. There you will find such unusual tactics as impleadings, claims of forum non conveniens and even the rarely seen writ of coram nobis.
What you won’t see is much, if any, argument on the merits of the workers’ claims.
One case still being litigated in Hawai`i courts offers residents here a front-row seat into the legal tactics that have been employed to prevent the workers from having their day in court. Whether it meets the same fate as dozens of others will depend on the outcome of the state Supreme Court hearing this month.
ALSO IN THIS ISSUE
New & Noteworthy: Kealakehe, Little Fire Ant
Wespac to Discipline Itself Over Turtle Delisting Petition
Storm Puts To Rest Debate Over Threat of Albizia
Hawai`i Plaintiffs Await Action On Claim of Injury From DBCP
30 Years of Litigation, But Only One Jury Trial
Board Talk: Sex Trafficking Victims May Use Old School; TMT Appeal Denied; North Shore Seawalls; and More
Old Agreements Confound Ban On Hotel Use of Waikiki Beach
Best available science – science uncorrupted by overweening economic objectives or political interests. That’s the kind of science that is supposed to guide the nation’s fishery management councils as they advise the federal agencies that ultimately decide such important issues as catch limits or allowable takes of rare and endangered species.
Yet, as our reports on the latest meeting of the Western Pacific Fishery Management Council document, that’s not happening. Science has taken a back seat and economics is the driver.
Also in this issue:
A review of Hawai`i mariculture operations, past and future: In this article, we look at projects proposed by Blue Ocean Mariculture, Randy Cates, and Kampachi Farms.
Vitousek Conference highlights: Editor Patricia Tummons reports on the latest research on montane soils, dryland agriculture, and the wekiu bug presented at the annual gathering of environmental researchers in Hawai`i.
Board Talk: Our regular wrap-up of actions of the Board of Land and Natural Resources includes a look at recent transfers of land to the state Agribusiness Development Corporation, the new Thirty-Meter-Telescope sublease for Mauna Kea, and the new crop of Land Board members.
In this issue – the first in our 25th year of publishing! – we review cases of recent environmental litigation. Our cover story discusses the critically important decision of a federal judge in a case involving the discharge of wastewater into injection wells near the Lahaina coast, while a sidebar looks at the potential consequences this could have for Hawai`i County.
Other litigation reviewed in this article concerns:
The ATST on Haleakala: Kilakila o Haleakala, the group opposed to the construction of the Advanced Technology Solar Telescope (now known as the Daniel K. Inouye Solar Telescope) had appealed to the Intermediate Court of Appeals a lower court ruling that rejected its challenge of the acceptance by the Board of Land and Natural Resources of an environmental assessment for the Haleakala Management Plan prepared by the University of Hawai`i. The ICA upheld the lower court ruling.
The TMT on Mauna Kea: Six petitioners involved in a contested-case hearing over a Conservation District permit for the Thirty-Meter Telescope planned for Mauna Kea have appealed a lower-court ruling to the ICA. In a decision issued in May, Judge Greg K. Nakamura of the 3rd Circuit Court upheld the Land Board’s award of the permit for the construction of the TMT.
Waimanalo Gulch EIS: As a state senator, Colleen Hanabusa brought a lawsuit against the City and County of Honolulu, challenging the environmental impact statement prepared for the expanded operation of Waimanalo Gulch landfill, O`ahu’s only permitted sanitary landfill. A lower court judge rejected her appeal, as did the ICA in a ruling issued May 30.
Federal Panel Mulls `Aina Le`a Dispute: A panel of the 9th U.S. Court of Appeals heard arguments from the state and from the developers concerning the state’s appeal of federal Judge Susan Oki Mollway’s denial of the state’s request to give members of the Land Use Commission immunity from damage claims by the developers in a litigation still pending in lower courts.
Pflueger, Again! Jimmy Pflueger refused to sign documents that would give kuleana landowners in Pila`a, Kaua`i, access rights assured in prior court rulings. Despite a series of decisions against him going all the way to the state Supreme Court, Pflueger’s attorneys argued before the ICA that some aspects of the case were still ripe for argument. The ICA was having none of it and rejected Pflueger’s appeal.
Waikiki Setback Appeal Heads to Supreme Court: Groups opposed to the decision by the Honolulu planning director to allow a new wing of the Moana Surfrider hotel to encroach on shoreline setbacks and height limits are going straight to the state Supreme Court in their appeal of a lower court ruling.
Also in this issue, we report on the latest efforts of Big Island developer Scott Watson to win approvals for his “Pepe`ekeo Palace” and wrap up the issue with our regular “Board Talk” column.
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