Island Watch

Court Says LUC Can’t Delegate Rights of Hawaiians to Developer

The Hawai`i Supreme Court has sent back to the state Land Use Commission its approval of a 1,000-acre high-end residential resort development at Ka`upulehu, in the Big Island district of North Kona.

As Environment Hawai`i reported in its July 1996 edition, the LUC’s decision was noteworthy in that it entrusted the developer, Ka`upulehu Developments, with the authority to ensure that Native Hawaiian rights enshrined in the famous PASH decision (Public Access Shoreline Hawai`i) were protected. Ka`upulehu Developments is now known as Hualalai Development Company, based in Delaware. The owner of the land to be developed is Kamehameha Schools/Bishop Estate. Going on nothing more than the word of Bishop Estate’s representatives that it would make sure that Ka`upulehu Developments complied with the letter and spirit of PASH, the Land Use Commission gave the green light to the planned $350 million development, which includes golf courses totaling 36 holes, a commercial center, and more than 1,000 residences on land that was largely covered by lava in flows as recent as 1801.

In a decision issued on September 11, the Supreme Court soundly rejected the argument of then-LUC Chair Allen Hoe, who time and again in the Ka`upulehu contested case hearing expressed his view that the “ali`i” trusts should be given deference in determining how Native Hawaiian rights would be exercised on their lands.

Hoe did not see this as violative of PASH in any way. Indeed, the PASH decision was issued while the LUC considered the Ka`upulehu petition and in remarking on PASH, Hoe stated with some pride that the high court ruling “validates how we conduct our proceedings and how we perform our functions.”

The Supreme Court bought none of this. “A review of the record and the LUC’s decision,” the court says in an opinion written by Justice Mario Ramil, “leads us to the inescapable conclusion that the LUC’s findings and conclusions are insufficient to determine whether it discharged its duty to protect customary and traditional practices of native Hawaiians to the extent feasible. The LUC, therefore, must be deemed, as a matter of law, to have failed to satisfy its statutory and constitutional obligations.”

The court rejected strongly the notion that the LUC could delegate this duty. Ka`upulehu Developments argues, the court states, “that Hawaiian rights are adequately protected because the LUC É requires KD to ‘preserve and protect any gathering and access rights of native Hawaiians who have customarily and traditionally exercised subsistence, cultural, and religious practices on the subject property.’ KD further maintains that its conceptual RMP [Resource Management Plan, required as a condition of LUC approval] will adequately protect any such rights. This wholesale delegation of responsibility for the preservation and protection of native Hawaiian rights to KD, a private entity, however, was improper and misses the point. These issues must be addressed before the land is reclassified.”

The parties appealing to the Supreme Court were Ka Pa`akai o ka `Aina (salt of the earth), several of its member groups, and Plan to Protect. Ka Pa`akai is an association of several groups, including Ka Lahui Hawai`i, Kona Hawaiian Civic Club, and Protect Kohanaiki `Ohana. Plan to Protect is a Kona non-profit organization advocating sound growth and planning. All participated in the LUC’s two-and-a-half-year-long contested case hearing on the development. Representing Ka Pa`akai was Kona attorney Mike Matsukawa, while Robert Kim and John Powell represented Plan to Protect. The two were up against some of the highest-priced attorneys in the state, including notably Ben Tsukazaki, of Menezes Tsukazaki Yeh & Moore, and Michael W. Gibsen and James Mee of Ashford & Wriston.

The decision is available on the internet at [url=http://www.state.hi.us/jud]www.state.hi.us/jud[/url] To see the July 1996 articles on the Ka`upulehu decision in Environment Hawai`i, go to [url=http://www.environment-hawaii.org]www.environment-hawaii.org[/url]

Two decades ago, the prospect of mining manganese nodules from the seafloor south of the Hawaiian archipelago was topic “A” among Hawai`i business boosters, who regarded mining as a potential boom (one that drove, in part, state plans to develop the since-abandoned plans for large-scale geothermal development). So enthusiastic was the state, in fact, that a multi-volume and controversial environmental impact statement was prepared to allow deep-sea mining and processing of the ores to occur in Hawai`i.

More recently, in 1997, the state Department of Business, Economic Development, and Tourism executed an agreement with the government of China intended to foster development of seafloor mining.

But for all the hullabaloo accompanying the anticipated development, nothing has happened on the mining front. And, according to an article in the July 28 issue of Science magazine, nothing is ever likely to, since “a more sober assessment of deep-sea resources” has prevailed. The seabed ores are simply not valuable enough to justify the enormous cost of mining them, writes G.P. Glasby of the Department of Economic Geology and Geochemistry at the University of Athens. “World metal prices have remained depressed, so that there can be no hope of deep-sea mining becoming profitable,” Glasby writes.

“This brief history,” Glasby concludes, “shows how false economic forecasts and poorly designed laws based on overoptimistic assessments ultimately led to much wasted effort and money in an attempt to mine deep-sea minerals.”

Craig MacDonald of DBEDT’s marine resources branch acknowledges that there has been no progress in moving toward seabed mining since the agreement with China was signed. “We’ve been frustrated by the reorganizations going on in China, as the government consolidates and streamlines agencies,” MacDonald said.

Seabed mining “is still apparently of interest to them, but it’s not a priority interest,” he added.

MacDonald is hopeful that the Chinese will still move forward on their mining interest. The Chinese “see the acquisition of metals as a strategic initiative, not so much from the viewpoint of defense, but of industrial strength over the long term, ten to twenty years down the line,” he said. “So, their interest is set apart from strictly economic considerations. There’s not an economic driver,” in the case of China and other less developed nations. “Japan, Korea – they’re already industrialized and behave more like Germany and the United States,” when considering seabed mining, MacDonald says. “They’re looking in terms of short-term economic returns, where the Chinese seem to have a longer view that’s based more on political strategy.”

“Having said all that,” MacDonald continues, “we don’t see marine mining happening in the near term. But there’s still latent interest.”

What invasive species poses the greatest threat to Hawai`i? Is it the brown tree snake? Miconia? Caribbean tree frogs? Axis deer?
Any or all of them might be regarded as a serious contender for this dubious honor, but when it comes to putting its money where its mouth is, Hawai`i gives top billing to the banana bunchy top virus. According to a recent report published by the U.S. General Accounting Office (Invasive Species: Federal and Selected State Funding to Address Harmful, Nonnative Species, RCED-00-219, August 2000), Hawai`i spent $350,000 in fiscal year 1999 on efforts to control BBTV, a highly contagious disease that destroys banana plants. The disease has infested parts of Kona, on the Big Island, and Kaua`i. Tied for second and third place on the list were the fire tree and ivy gourd. The brown tree snake came in fourth, with expenditures of $78,700 to prevent introduction of this pest, while $50,000 was spent on miconia, a plant that, if left unchecked, can devastate whole mountainsides, as it has in Tahiti.

Altogether, the GAO looked at expenditures of seven states on efforts to control or prevent the spread of invasive species: California, Florida, Idaho, Maryland, Michigan, and New York, in addition to Hawai`i. Total expenditures in Hawai`i ranked third ($7.6 million in fiscal 2000), well behind Florida ($127.6 million) and California ($87.2 million). As the Hawai`i expenditures suggest, priority on spending in most of these states went to the control of species that pose a threat to commercial crops or ranches. For example, California’s top priority for control in 1999 was the medfly; $9.434 million was spent on this pest. Florida gave the lion’s share of its invasive species funds ($29,081,992) to control of citrus canker.

Federal spending on invasive species came to nearly $514 million in fiscal year 1999, while for FY 2000, obligations were even higher: $631.5 million. The GAO report offers no breakdown on the nature of the threat of the invasive species on which federal dollars were spent – that is, whether the species targeted threaten natural resources, commercial activities, or recreational resources (such as freshwater fish). Nine out of 10 of the federal dollars were spent by the U.S. Department of Agriculture, whose Animal and Plant Health Inspection Service is charged with addressing quarantine issues regardless of whether the target species has an impact on agriculture.

Of the federal funds spent in 1999, $154.5 million went to control terrestrial arthropods (including fruit flies, which alone received $36.2 million in USDA funds, and the Asian long-horned beetle). Plants (almost all of them weeds on the mainland) received expenditures of $70.7 million. Animal and plant diseases were targeted with $33.1 million, while fish and aquatic invertebrates received expenditures of $20.4 million. Reptiles and amphibians accounted for $4.8 million. The Department of the Interior and the Smithsonian Institution focused the bulk of their invasive-species budget on the brown tree snake ($1.9 million and $0.2 million, respectively).

The report underscores an important aspect of invasive species funding that is often overlooked when conservationists discuss the subject – and that is the fact that no matter how much of a threat invasive species may pose to native ecosystems or habitat for endangered species, they command the most attention, and money, when they threaten commercial species.

Not that banana bunchy-top virus isn’t important to control. It surely is. But is it not just as urgent to keep our watersheds from being lost to miconia, to halt the spread of noisy Caribbean frogs that are already driving tourists out in droves from some areas, or to keep motorists on Maui from being killed in collisions with the proliferating numbers of Axis deer?

— Patricia Tummons

Volume 11, Number 4 October 2000