HoKua Place Witnesses Grilled On Housing, Water, Wetlands

HoKua Files Motion To Withdraw Petition

_{On May 27, just as Environment Hawai‘i was preparing to go to press, William Yuen, attorney for HGKJV, LLC, filed a motion with the Land Use Commission asking that the company be allowed to withdraw the boundary amendment petition. That petition was to allow the development of 769 housing units, both single- and multi-family, on about 96 acres of land outside of Kapa‘a, Kaua‘i.}

_{The LUC’s hearings on the petition were the subject of a long article in our May issue. And, as readers see here, they are also written up in this issue of the newsletter as well.}

_{We print the article reporting on the May hearings without reference to the withdrawal. The April and May reports together provide, we believe, insight into why HGKJV management decided the best course of action, at this point, was to ask the commission to allow it to pull the petition.}

_{The commission has not set a date to hear arguments on the motion.}

---

“Put it this way: You’re not just passing on a developer, you’re rendering a decision that has an impact on the value of the land, okay? Keep in mind the value of the land as you go through this.… I want you to think that if you add value to this land, going forward, it may not be the same developer, it may be a better developer. And the county can get in there, do things. At the end of the day, you know, maybe it gets sold. Or they get a partner, or something like that.”

With those words, Paul Richard “Ricky” Cassiday, testifying as a housing market consultant, concluded his appearance before the Land Use Commission as it considered the petition of HG Kauaʻi Joint Venture, LLC (HGKJV), to approve a plan to put more than 700 housing units on about 96 acres of land outside of Kapaʻa, Kauaʻi.

Cassiday’s words provoked an immediate reaction from commissioner Dawn Chang. In his unguarded, voluble, pontificating way, Cassiday had blessed the very behavior that has troubled the commission for decades: that their approvals of boundary amendment petitions were at times nothing more than a step in the speculator’s effort to jack up the resale price of raw land.

“You said that’s what’s before us, that this petition added value. And you’re absolutely correct. That’s exactly what this petition does. It adds value to this property, with no guarantees that it will be done the way that it’s presented to us. Eighty-three million dollars in infrastructure costs, affordable housing – there is no guarantee. But he could then sell the land at an extremely valuable increase, because of the new zoning. And then somebody else is going to come in and say –“

Chang stopped herself mid-sentence. “And I’m going to apologize. I’m making much more of a comment than a question.”

Additional testimony from other consultants and representatives failed to allay the commissioners’ concerns about the project’s feasibility.

Housing

Cassiday told the commission that he was approached to work on the project some eight years ago by former classmate Peter Young. At the time, Young, a one-time chair of the Board of Land and Natural Resources, was preparing the environmental impact statement for what was called Kapaʻa Highlands. (The draft EIS overseen by Young was deemed insufficient by the LUC in 2015; following that, the landowner retained Ron Agor, a Kauaʻi architect and one-time BLNR member, to take over the job.)

According to Cassiday, the pent-up demand for housing on Kauaʻi stood at 1,432 households. But, as the Kauai Planning Department’s Chris Donohoe noted, a study commissioned in 2019 by the Hawaiʻi Housing Finance and Development Corporation found that the demand for affordable housing alone on Kauaʻi was 4,281. 

Was Cassiday aware of this?

“I glanced at it,” he said, going on to cast shade on the firm that conducted the study, SMS. “I glanced at the things that I know really well. And I know what I know really well. I’m pretty unique. SMS is what I used to call when I worked in Washington somewhat of a contract researcher. They’ll go all over the place. We called them beltway bandits when I was in D.C. They have grown a pretty good practice on skimming gross numbers, census numbers. … Yeah, I looked at it… The problem they have is they do surveys. You get called or you get something in the mail. The low end of the market doesn’t speak English or doesn’t have time to work on it. So a lot of the survey part isn’t very good.”

“Four thousand two hundred eighty-one differs from your testimony that only 1,432 units are needed,” Donohoe said.

“And I’m happy it does,” Cassiday said. He went on to explain that his work differs from SMS’s in that he works with builders. “These guys,” he said, referring to SMS, “you know, sit in an office downtown.”

The environmental impact statement had pegged the prices for the 231 “affordable” housing units to be included in the HoKua Place development at between $175,000 and $275,000. Cassiday’s study, however, put the projected cost at between $225,000 and $480,000 for units deemed affordable to one- to two-person households earning between 80 and 120 percent of the area median income.

Bianca Isaki, representing the intervenor Liko Martin, noted that Cassiday’s study assumed that 88 percent of the future buyers would be full-time Kauaʻi residents, while 12 percent would be investors or non-fulltime residents.

“That was my assumption, given my expertise,” Cassiday replied.

But, Isaki pointed out, a study led by Eugene Tian, the chief economist of the state Department of Business, Economic Development, and Tourism found that statewide, the percentage of out-of-state home buyers is 20 percent, while on the neighbor islands, it is twice that.

“Eugene is a good economist,” Cassiday acknowledged, “but I find the data set needs to be interpreted by somebody who understands the facets of it. One of the things is the addresses on the data set. Say you own a property and you have an address that’s local. You’ll count that as a local unit. But what if your next-door neighbor asks you to send his tax bill to your address. That skews the data. It wouldn’t be my data.”

Dan Giovanni, the commissioner from Kauaʻi, asked Cassiday about the impact of the pandemic on housing.

“The pandemic hit, and everything ground to a halt,” Cassiday said. “And then after, around the third quarter, but before that, you saw people seeping into the island to buy homes. That seepage turned into a wave and now it’s engulfing the island. It’s gone from the high end to the lower priced segments.”

Giovanni asked how the pandemic has affected the low-income families that are striving for their first home.

Cassiday: “This is just me looking around Kauaʻi. A lot of people are out of work. The Harley-Davidson store ran out of bikes ‘cause people were buying bikes for their kids. The other thing, surfing. The thing of the stimulus money, that was a big deal. The other thing that happened on Kauaʻi that was pretty cool, people sharing resources, the barter economy. The giving economy. To my mind, those families – second, third, fourth generation — they did what they did in every disaster. They all banded together. The stimulus money coming from the outside helped them survive. Guys who didn’t have that either had to belong to an affinity group that would support them…. Ones who didn’t have that grouping, they left the islands.”

“Would you describe overall it as a form of survival during a tough time?” Giovanni asked.

“I might dial it back a little bit,” Cassiday replied. “It wasn’t like there wasn’t any food. The mortgage didn’t need to be paid. The landlord didn’t need to be paid. The status. It wasn’t life or death survival. It was a mental condition that turned out pretty good at the end of the day. So far, so good. Touch wood.”

Water

One of the most anticipated witnesses was Tom Nance, who testified about the availability of fresh water resources to serve the development. A well drilled in 2006 near the southwest corner of the proposed development site punched through a nearly impermeable geologic feature that Nance described as an aquiclude into a deeper aquifer. 

This well was drilled “crooked as a dog’s hind leg,” Nance said, and the state Commission on Water Resource Management ordered it years ago to be sealed and abandoned (something that has not yet been done). Nonetheless, Nance continued, pumping tests showed that there was enough quality water in the aquifer to meet the development’s needs. 

Nance testified that a new well drilled near the old one would have the same characteristics and would be a viable source of potable water to the HoKua Place development.

Donohoe, the county attorney, questioned Nance on the sufficiency of the proposed well. 

“There are three issues to consider,” Donohoe said. “Source, storage, and transmission. So with regard to HoKua, an analysis would be needed to see if the current system has enough of these to serve the water needs of the proposed development.”

Nance demurred. “That’s not exactly the case, but I’m not prepared to testify to that. I’m testifying on the viability of the onsite well.”

But, Donohoe continued, “You said the maximum requirement is 610,000 gallons per day,” a figure that, he added, would translate to 424 gallons per minute.

Again, Nance ducked. That estimate of demand was made by the project engineer, William Bow, he said, and while it might be sufficient for a private water system serving the development, he was unsure whether it would meet the county demands if the development were to be linked to the county water system.

Nance also acknowledged to Donohoe that he had not determined if a new well for the project would affect other water systems and water sources, although he said it could. However, he added, “Because we’re drawing from deep water, the reality is that pumping from this aquifer is not likely to impact surface water, much less other water uses.”

Donohoe pressed Nance on a number of other issues. Had Nance analyzed how the use of the well might affect other public uses? (No.) Had he consulted with the Commission on Water Resource Management? (Yes, but only to determine the status of the well drilled in 2006.) Was Nance familiar with the Kauaʻi Water Use Development Plan? (No.)

Was the proposed use of water reasonable and beneficial? (Nance said he believed it would be.)

Would the use harm any public trust or waters in their natural state? (Nance said he didn’t think so.)

What about the exercise of Native Hawaiian Rights, would they be affected? (“I don’t believe it will,” Nance said, “but I’m not aware of any downstream traditional practices using water. This is a deep aquifer that discharges to the ocean.”)

Was Nance aware that a public trust analysis of the proposed water use would need to be conducted at the county level? (No, he said, he was not.)

Donohoe’s tough questioning reflected the kinds of issues that were raised when the county’s Planning Commission was challenged over its denial of a permit to a water bottler. The case, Kauaʻi Springs v. Planning Commission of Kauaʻi, established the rigorous standards applicants for water permits would need to meet. (For background, see “Hawaiʻi Supreme Court Reaffirms Government Duty to Protect Public Trust,” Environment Hawaiʻi, April 2014.)

In response to questioning from Alison Kato, representing the Office of Planning, Nance said he assumed a new well was needed because there was not sufficient water available in the public water system.

Was the new well sufficient to serve both the residences and facilities on the 96 acres subject to the LUC docket and the 16 or so agricultural lots that make up Phase I of the HoKua Place development? Kato asked.

Nance said he assumed it was for both, but was not sure. He hadn’t been involved in any discussions about the ag lots, he said.

On behalf of the intervenor, Isaki asked Nance if he was aware that wells in the Lihuʻe basin had experienced reduced productivity in recent years. Yes, he was, he replied, although he was not certain that the proposed well site was within the Lihuʻe basin.

Isaki queried Nance about what Nance described as an aquiclude separating the shallow aquifer from the aquifer that was proposed as a source for the development. Referring to the earlier well drilled on the HGKJV property in 2006, she asked Nance if he was aware that when the Water Commission reviewed the drilling log for that well, staff concluded that no aquiclude was present at that depth.

“I’m aware of that and I absolutely disagree and we just went through a similar analysis for Moloaʻa 1,” a nearby well that is being drilled for the county, Nance said. “It’s unfortunate that the Water Commission staff just hasn’t had the experience of drilling through the Koloa volcanics. You’ve got layers of poorly permeable lava layers of mud and the realities are you can get small little freshwater bodies on some of these impermeable layers and the assumption that there’s collective permeability vertically through it is absolutely incorrect.”

Commissioner Gary Okuda established that Nance was not involved in the preparation of the final environmental impact statement and that Nance had, in his own words, only “looked briefly” at some of the sections.

“In your review, however brief it was, of the final environmental impact statement, did you see anything … which you can specifically point out to us, so the record is clear, which included matters that were discussed by the county of Kauaʻi attorney today, the Office of Planning attorney, or the intervenor’s attorney? Can you point to where in the final environmental impact statement those issues were discussed?” Okuda asked.

“I can’t,” Nance replied.

Okuda: “Can you recall, to the best of your knowledge, any such discussion of those water or water resource or water impact issues that the three counsels questioned you about? Can you recall any such discussion in the final environmental impact statement?” 

“I think a number of those things that have been raised were not addressed in the EIS,” Nance replied.

After Nance stated that he had been involved in the preparation of draft and final environmental impact statements, Okuda asked him if he was, in any way, troubled “that these water issues were not discussed in the final environmental impact statement?”

“Troubled is a strange word, because I haven’t been involved in that part of the process,” Nance said. “Had I been author of this section, I would’ve written it in a different and far more detailed way.”

Okuda then asked, “If we were just to look at the final environmental impact statement, do you believe there is sufficient information … for us on the Land Use Commission to make a reasoned decision with respect to the impact and effect and availability of water for this project?”

“I didn’t review the EIS for that purpose,” Nance replied, adding that he wasn’t comfortable answering that question. “I was really just reviewing it to see if they had misrepresented both the existing well drilled and the proposal to drill a new one,” he said.

As to what he had testified to on this day, Nance said, it only “represents my opinion of the viability of the new well.”

“Your opinion is not in the final environmental impact statement,” Okuda said.

“I think that is correct,” Nance responded.

Commission chair Jonathan Likeke Scheuer , who has had extensive experience as a consultant on water issues, was the last to question Nance.

Given that the proposed well site is below the Underground Injection Control line, Scheuer asked Nance if pre-existing nearby injection wells would have to be removed in order for the HoKua well to be useful as a domestic water source.

No, Nance responded. “It would be up to us to prove to the Department of Health that existing sources of potential contamination wouldn’t be a problem,” he said.

Did Nance know how many potential sources of contamination there were?

“Little or none,” Nance said.

Had Nance done any survey to verify that?

No, he replied.

Scheuer questioned Nance about the need to obtain approval from the Water Commission to drill a well as deep as that proposed. 

Nance explained that the Water Commission needed to grant a variance for any wells where the depth is greater than a quarter of the assumed thickness of the basal aquifer. “If it’s basal groundwater with saline water beneath,” he said, “you have the potential for upconing. It’s not only a problem for the well but for the aquifer.”

On Kauaʻi, however, because of the unique geology of the site, Nance said, “we can put wells far closer to the shoreline than anywhere else in the state. A very large percentage of wells drilled into Koloa volcanics have to drill below what is the basal groundwater assumption… If we stuck to the one-quarter lens thickness, we’d have no water at all.”

Return to the Wetlands

Following Cassiday’s testimony, archaeologist Nancy McMahon reported on the survey she made of the area, which for decades had been in sugar cultivation. She insisted that if, as some members of the public had suggested, a heiau was on the site, she would have found it in the days that she walked the area.

Ron Agor, who prepared the final environmental impact statement, was the last witness put on by William Yuen, attorney for landowner HGKJV. 

One of the more contentious issues raised in previous questioning of the landowner’s witnesses was the presence of about three acres of wetland within the area proposed for redistricting. In the final environmental impact statement, the drainage plan – prepared in 2011 – proposed using the area as a detention basin for runoff from the development.

Since then, a new drainage plan had been prepared by William Bow that avoided directing runoff into the wetland area, at the southwestern corner of the area subject to the Land Use Commission petition.

Agor was questioned extensively about this change. In his power-point presentation under direct examination from HGKJV attorney Yuen, Agor acknowledged that an unnamed stream ran along the western edge of the petition area and that the “wetland area could be .03 acres.”

“HoKua Place will not develop the stream bed but wants to include it in the Urban District,” Agor stated in the presentation.

The draft EIS – “produced by my predecessor,” Agor stated – “spoke about point three acre of wetlands that are on the property but not necessarily within boundaries of the petition area.”

The final EIS included in an appendix a soils map prepared in 2018 by the USDA office in Lihuʻe that identified just that small area near the southwest corner of the petition area as “marsh.”

“Keep in mind that the USDA is the entity that delineates wetlands in the community,” Agor said. “That map, dated May 5, 2018 – the 3.8 acres that suddenly appeared – was not on that map.”

The map that the Office of Planning included in its list of exhibits in the LUC proceedings showed 3.3 acres of wetland inside the area proposed for redistricting. It was generated by the Hawaiʻi Statewide GIS program, based on the U.S. Fish and Wildlife Service’s National Wetlands Inventory.

Agor cast shade on the FWS map. After seeing the Office of Planning exhibits, “I went onsite [sic] and searched for the Fish and Wildlife map. And the only map I could find was a map developed in 2019 that shows the 3.3 acres.

“So I believe, I strongly believe, that Fish and Wildlife acted on developing their own map. Once the wetlands are delineated in the community, the U.S. Fish and Wildlife, whose objective is to protect fish and wildlife, have a tendency to develop their own map and expand the wetlands.”

“My feeling is that when we sent out the draft EIS to all of the agencies, including Fish and Wildlife, it was then that Fish and Wildlife decided to address the area and it was then that they developed their own map and labeled a 3.3 acre part of kula lands as wetlands.

“So here’s the fun part. Fish and Wildlife – and I’m okay with them developing their own map; they have a mission to protect fish and wildlife, so that’s okay – they categorized that 3.3 acres as a certain type of wetland.”

Agor agreed with the FWS categorization as less than 20 acres, but he took exception to the characterization of the wetland as having standing water. “There’s no chance of this 3.3 acres having a body of water. The land slopes a minimum of 15 percent in one area but for the most part it’s 30 to 40 percent. So there’s no way water can accumulate in a pond-like situation.”

He also said the FWS identified the wetland as having characteristics of a coastal wetland, a characterization he disputed. The wetland on the HGKJV property, he said, was instead characterized by silted clay.

A photograph taken by Agor shows what seems to be an overgrown, unpaved cane haul road, with a steep slope on the right side of the photo. He described the vegetation as Java plum on the slope and hau bush where the slope leveled off on the opposite side of the road. There was no standing water visible in the picture.

After Agor stated that there never was any intention of building on the site, Yuen asked him if it was appropriate to include the wetland within the petition area.

“I needed it to be included,” Agor replied. “When we start out planning at the county area, if we end up with a density of … 10 units per acre, 3.3 acres converts into 33 units.” And, with the developer’s intention to provide 30 percent of the units to be sold at “affordable” rates, that translates to nine affordable units.

“I cannot lose 30 units,” Agor said.

On behalf of the Office of Planning, deputy attorney general Kato pressed Agor about plans to protect the wetland area. Agor pledged that even though he disagreed with the Fish and Wildlife Service’s map, the developer would respect it and work with the service to come up with a protection plan, including fencing to protect water birds from predators, such as feral cats. At the same time, he said, he would still appeal the service’s designation to the state Division of Forestry and Wildlife.

Toward the conclusion of Agor’s testimony, Lance Collins, representing the intervenor, asked a question that had left previous witnesses stumped: “How did you folks get the name HoKua Place?”

“HoKua Place was discussed with Mr. [Greg] Allen and myself. And, really it refers to looking out and seeing the horizon meeting the sky. And, certainly from HoKua, looking out, you can see the horizon of the ocean and its integration with the sky and sometimes you don’t know the distance between the sky and the ocean. Something like that.”

The Developer Is Recalled

Agor was the last witness to testify for the developer. But before Yuen closed his case, he recalled Jacob Bracken, one of the managing members of HGKJV LLC.

From his office in Utah, Bracken verified certain documents submitted as exhibits, including an overall cost estimate prepared by Agor and William Bow, the engineer retained by the company.

For infrastructure (not including offsite improvements that may be needed to accommodate sewage capacity), project costs were pegged at $83,411,400. Vertical construction was estimated at $211,988,800. “Soft costs” – permitting, financing, fees – were estimated at $44,310,30. The total came to $340 million. Yuen asked Bracken how he anticipated financing this. 

“We have secured some significant lines of credit already,” Bracken replied. “We have approximately $30 million available for the project to get going. We have spent in excess of $10 million to date in acquiring the land and, you know, getting us to this point. In addition to that, we do plan on getting as much traditional financing as we can. As we [sic] are aware, we’re involved in other real estate projects that are currently profitable and are cash-flowing. In fact, you know, we do have the ability from existing operations at sister projects to cover those same cash flows as well. But our goal, our plan, would be to utilize as much traditional financing as possible.”

The cost projections from Agor anticipated that about $85 million would be required at any one time to keep the project moving forward. How, Yuen asked, would HGKJV meet this need?

“We are not a licensed contractor in Hawaiʻi, so we look on relying on or selling lots to either partner with or sell lots to local contractors for the vertical construction,” Bracken said. “That’s typically how we do much of our development.”

Collins asked more specific questions concerning the financing. “You previously represented the petitioner has access to a $5 million revolving loan,” Collins said, which is shared with a “sister” company that is undertaking a development in Utah, Sand Hollow Resort.

That development has access to the same funds, correct? Collins asked.

“We have not been using it. We use the Sand Hollow Resort …”

Collins cut him off. “My question is: But it has access to that same $5 million, correct?”

“I guess. Yes, it could. From an entity level no, but yes, I’ll give you that,” Bracken said, adding that HGKJV and the Utah development were both guarantors of the loan.

Collins then questioned Bracken about the claim that the company had paid $10.6 million for the property.

“The commissioner’s deed indicates the property was paid for at $4 million at the foreclosure sale, but you value the property on the balance sheet at $10.6 million,” Collins stated. “Correct?”

Bracken agreed.

“You had said that $6 million was a second position, a $6 million note, correct?”

Again, Bracken agreed, adding that the $6 million “came from a second position note we acquired at the time.”

The conveyance tax paid on the transaction was $28,000, Collins noted, which would equate to a transaction value of $4 million.

How was this other note extinguished, how was it characterized to the IRS? Collins asked. Was it a net gain or net loss?

“I don’t remember what that was at the time. It was contributed as part of equity into HG Kauaʻi Joint Venture, but I don’t remember the tax treatment,” Bracken said.

“Are you aware of HRS 247-2, which says that the conveyance tax is based on the actual and full consideration” paid for a property, Collins asked, quoting the statute more fully.

“I understand what you’re saying,” Bracken said. “I would say our transfer value was the auction value. We acquired the note at an earlier time.” 

Collins soldiered on: “So, if the conveyance tax was paid on $4 million, that means this other $6 million value was not reported.”

Bracken pleaded forgetfulness. “I don’t know how it was done. Again this was in 2013. But I believe the value for conveyance tax purposes was the auction value it was sold at.”

Even though the statute says the conveyance tax is to be computed on the total value of the transfer? Collins said.

“Again. This is going back in time quite a bit. I would say our transfer value was the auction value. We acquired the second position note at an earlier point in time,” Bracken replied.

Collins posed his last question: “So that was in 2013. You testified previously that the value of this property is being valued on the balance sheet as $10 million because of something that happened in 2013, but you’re not able to explain how this other $6 million was reported to any tax authority as actually existing in 2013.”

Bracken’s memory was no clearer than before. “All I can say is, we reported it, and we structured the transaction according to our legal and tax advice at the time,” he said. “I can’t tell you the details here, eight years later.”

Commissioner Dawn Chang asked Bracken if the cost estimates prepared by Agor included traffic improvements that the state might require. “I assume that it does, but I can’t say for sure,” Bracken replied.

Does it include wetland mitigation, since Agor said he will accept the wetland designations? Chang asked.

“I couldn’t tell you specifics, other than these are the best estimates at this time by professionals that are advising me,” he replied.

“Your testimony is that it’s premature” to require a performance bond, Change noted. “You don’t have development plans at this time and it’s too early to tell. Is that what you’re saying?”

“A bonding agent would want something, … specific plans for what they would be bonding. Right now, we have guesses, you know, back-of-the napkin guesses of what things are going to look like. We don’t have a specific plan to bond against,” Bracken said.

“Well, this is a pretty nice napkin that you gave to us,” Chang said. “You’ve given us vertical construction costs of almost $212 million. What is that based on?”

Agor and Cassiday got together and put out their best guesses on construction costs, Bracken said.

“You’re telling me you don’t have any designs, you just have total number of units.”

Bracken said it was just on the basis of their “best guesses” of unit size, average cost, and the like.

The End Is Nigh – Not!

Once there were no further questions for Bracken, Yuen rested the petitioner’s case. 

In the usual course of events in LUC proceedings, the commission would now hear the case presented by the county, Scheuer said, going on to suggest that this might not be the course followed in this particular docket. 

At this point, Collins interjected, stating that he wanted to make a motion.  Scheuer called instead on Okuda, who made his own motion to deny the petition. Kauai’s commissioner, Dan Giovanni, provided the second.

Okuda then supported his motion with a lengthy recap of many of the issues he had raised in his questioning of the witnesses Yuen had put on. Among other things, Okuda cited to the Unite Here! decision of the Hawaiʻi Supreme Court, in support of his position that the final environmental impact statement for the development was insufficient.

He also pointed to the commission’s own statute, HRS Section 205-4(H), which requires the Land Use Commission to approve boundary amendment petitions only “upon the clear preponderance of the evidence that the proposed amendment is reasonable … and consistent with the policies and criteria” set out in law.

“In this case here,” he stated, “I believe even taking a very easy, look-the-other way, and trying to view things somewhat in the light most favorable to the petitioner, the petitioner has simply not met its burden of proof…. I hesitate to give the entire laundry list, because, frankly, I think we’d be here a long time.”

Most of the other commissioners indicated their support for the motion to deny. Edmund Aczon, representing Oʻahu, was the only LUC member who openly disagreed.

Just as it seemed that the commission would be voting then and there to reject the HoKua Place petition, Bryan Yee, the deputy attorney general advising the Office of Planning, raised procedural concerns. Linda Chow, counsel for the commission itself, suggested that rather than take a vote at once, the parties should be given a chance to argue their positions.

Heeding that advice, the commission set a deadline of May 27 for the parties to submit their briefs on Okuda’s motion. Collins, for the intervenor, indicated to Environment Hawaiʻi that he would be submitting a separate motion instead.

Replies to the briefs are due on June 2. The commission is to hear oral arguments at a meeting tentatively set for June 10.

— Patricia Tummons