Parties seeking to restore the flow of Waiahole Ditch water to windward O`ahu have filed a petition with the state Board of Land and Natural Resources, asking the board to remove the Department of Land and Natural Resources from the contested case hearing now under way before the state Commission on Water Resource Management.
The petition, filed November 27, 1995, asserts that when then-Deputy DLNR Director Jack Keppeler co-applied for the Waiahole Ditch water with the Waiahole Irrigation Company, a subsidiary of Amfac/JMB Hawai`i, Inc., he exceeded any legal authority he had. Furthermore, even if the board had approved Keppeler’s action, the SCLDF petition states, the DLNR lacks the “constitutional, statutory, or case law authority” to intervene as a party in the contested case. Finally, to have the DLNR be an intervenor in a case before the Water Commission, whose chairman is by law also the chairman of the Board of Land and Natural Resources, “poses a severe and irreconcilable conflict of interest.”
The Land Board did not consider the petition at its December meeting. Under BLNR rules for petitions for declaratory rulings, there is no deadline for board action on such a petition.
Abdication
The petition was filed by the Sierra Club Legal Defense Fund and the Native Hawaiian Legal Corporation, on behalf of their clients: the Waiahole-Waikane Community Association, the Hakipu`u Ohana, the Kahalu`u Neighborhood Board, and Ka Lahui Hawai`i. Among other things, the petition contends that, far from the state DLNR intervening on behalf of the leeward parties, if it intervened at all, it should have done so on behalf of the windward parties.
In his letters to the Water Commission committing the DLNR as a co-applicant for the Waiahole water with WIC, Keppeler referred repeatedly to the state’s desire to promote diversified agriculture. But, the windward parties’ petition to the board notes, “DLNR’s constitutional mandate is to ‘conserve and protect Hawai`i’s natural beauty and all natural resources.'” The appropriate agency to promote diversified agriculture is the state Department of Agriculture, their petition states. “DOA has filed a petition for reservation of water for Central/Leeward O`ahu, which is included in the Waiahole water hearing,” the petition continues. “Although [the Waiahole-Waikane Community Association] does not concede that DOA’s reservation petition is meritorious or fair to windward interests, the state’s interest in promoting diversified agriculture is already protected by DOA’s reservation request. Therefore, there is no need for DLNR to take the action that Mr. Keppeler instigated on its behalf, because DOA is already representing the state’s interest in that area. If anything, DLNR should, per its constitutional and statutory mandate, intervene in the hearing on behalf of preserving in-stream uses and protecting the valuable natural resources endangered by the continued diversion of the water.”
Conflict
Several sources of conflict arise from the Keppeler’s having caused the DLNR to be a co-applicant for the Waiahole water with WIC. “The factual basis for the conflict is clear,” the petition states. “On the one hand, DLNR, via Mr. Keppeler’s actions, is seeking legal authority to distribute in ‘close’ consultation with WIC all of the waters of the Waiahole Ditch system; on the other hand, the director of DLNR is not only a member of the Commission, the adjudicatory body, but is by law its chair.”
The petition describes the conflict as “patently obvious,” and no more so than when the DLNR responds on WIC’s behalf to inquiries made by staff of the Water Commission.
Concluding with a review of conflict-of-interest laws and standards, the petition cites case after case where the state Supreme Court has upheld the principle of “a fair trial in a fair tribunal,” regardless of whether the tribunal is a court of law or an administrative agency. The DLNR’s involvement “as a co-applicant for all the ditch water directly and substantially enhances the position of WIC and the other Leeward interests against the needs and rights” asserted by the windward parties.
Richards Discloses Stock Holdings
The recital by the windward parties’ petition to the Land Board of case law and statutes concerning conflicts of interest also has bearing on the matter of Water Commissioner Herbert “Monty” Richards’ continued presence on the panel.
Following our December report of close business ties between Richards and several leeward parties in the contested case, Richards finally filed with the Ethics Commission the required financial disclosure statement. As it turns out, Richards had been participating in decisions on the conduct of the contested case for nearly three months, all the while holding $300,000 worth of stock in Castle & Cooke (also known now as Dole Foods), one of the parties in the case.
Richards told Governor Benjamin Cayetano that he would divest himself of the stock by donating it to charity (and thus apparently avoiding hefty capital gains taxes that would be incurred were he to sell the stock).
Whether this is sufficient to satisfy the letter of the law is a matter that the Ethics Commission may be taking up. On December 13, 1995, representatives of eight different citizens’ groups formally requested the Ethics Commission to determine that Richards “has acted with impropriety and see to it that he is discharged immediately from the Water Commission.”
The eight groups are the Hawai`i Green Party; Life of the Land; the Sierra Club, O`ahu Group; the University of Hawai`i Environmental Action Group; Common Cause Hawai`i; U.S. Public Interest Research Group — Hawai`i; Kaua`i Friends of the Environment; and Protect Kohanaiki `Ohana.
Since the controversy over his financial holdings erupted in early December, Richards has not participated in the Waiahole hearings. Whether he will withdraw from the case, or resign altogether from the commission, was undecided by the time Environment Hawai`i went to press.
Volume 6, Number 7 January 1996
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