A plan to place state-owned land around three North Hilo streams into the Conservation District has become a lightning rod for anti-government, anti-regulation sentiment in the Laupahoehoe community. Riding hard on the community’s coattails is Big Island Mayor Stephen Yamashiro, who has used the proposal as a soapbox on which to preach a hardline anti-state, pro-home-rule approach to government.
Informed Consent?
In July 1994, the Office of State Planning filed a formal petition with the state Land Use Commission, asking the LUC to place into the Conservation District approximately 169 acres of steeply sloped land forming corridors around three North Hilo streams: Manowai`opae, Kuwaikahi, and Kihalani. The petition grew out of the statutory requirement that the OSP review every five years the boundaries of lands within the four state districts (Urban, Rural, Agriculture, and Conservation), and make recommendations for boundary amendments for those lands where redistricting appears appropriate. Two years earlier, the OSP had recommended that banks around a total of five streams in North Hilo be reclassified into Conservation (the additional streams were Kilau and Kaiwilahilahi). However, by 1994, the list had been narrowed to just the three streams named in the petition.
From 1991 on, the OSP sponsored several informational meetings to explain to the Big Island community its proposed boundary amendments. Formal approval of the landowners (the state, through its Department of Land and Natural Resources, and the county, through its Department of Public Works and Department of Planning) was sought. Both the county and the state granted their approvals without objection.
In October and November 1994, the North Hilo Community Association sponsored two additional informational meetings, attended by OSP staff, to explain the proposed boundary amendment. According to the OSP, between 15 and 20 people attended each of those meetings.
The Land Use Commission scheduled a formal public hearing on the petition to be held in Hilo on February 8, 1995. Apart from notice of the hearing being published in the legal notice section of the two Big Island daily papers in December 1994, the people who attended the November meeting in Laupahoehoe were mailed individual notices of the hearing, as were the two individuals who had filed with the state Commission on Water Resource Management declarations of use of water taken from the streams.
High Value
Reclassification of the streams is justified, the OSP claims, because of their high aquatic values, as enumerated in the state’s Hawai`i Stream Assessment (published by the state and the National Park Service in 1990). The candidate endangered species of goby (`o`opu alamo`o, sometimes known also as hi`ukole, or Lentipes concolor) is found in all three streams, as are `opae, the native freshwater shrimp.
In testimony at the February public hearing, Robert Nishimoto, a Ph.D. who heads the Big Island office of the state DLNR’s Division of Aquatic Resources, reported on a survey he had made of the streams in January 1995. Kihalani Stream, he said, “is an excellent `opae stream,” having “one of the highest densities I’ve ever seen in the state. It’s superb.” Maniwai`opae, on the other hand, “is more like an `o`opu stream. Lentipes and Sicyopterus [S. stimsoni, or `o`opu nopili] are the major species there. … Kuwaikahi is a relatively small stream … but at the same time, we found a very good abundance of Lentipes concolor there, which is indicative of a pristine stream.”
Crying Foul
Tom Young is a farmer who owns lands that abuts the state-owned stream banks. An unpermitted diversion that is by Young’s own acknowledgement “quite massive” — capable of diverting up to 144,000 gallons per day — conveys water from Manowai`opae Stream over state land to his farm. Ed Henry, representing the Office of Conservation and Environmental Affairs within the Department of Land and Natural Resources, explained to Young at the February 8 hearing that because the structure was existing prior to the inclusion of the stream banks within the Conservation District, the diversion would probably be grandfathered, and so Young would not need to go through the lengthy process of obtaining a Conservation District Use Permit.
Despite Henry’s assurances, Young has repeatedly informed the community that placement of the state land in the Conservation District will mean an added regulatory burden on farmers.
Young is not alone in his unpermitted diversion. At the February hearing, he disclosed that “there’s four or five people using these waters illegally right now in the area.” If obtaining permits were a simple matter, Young said, everyone would have a permit. “But to come to Hilo and get a permit, I’ll tell you what: For a Laupahoehoe farmer, it’s not a very friendly process.”
Young was granted standing as an intervener in the LUC process as a result of his interest in the stream.
Reconsideration
Soon after the February hearing, Young appears to have gone to work to muster allies in his crusade against the redistricting. The County of Hawai`i’s Planning and Public Works departments had earlier concurred with the OSP’s boundary amendment petition. On March 31, 1995, however, the county’s chief engineer, Donna Fay Kiyosaki, informed the LUC that the county was now opposed to the reclassification. “The county supports and is encouraging the development of agricultural enterprises along the Hamakua Coast to mitigate economic impacts resulting from the closure of the sugar plantations. We object to the proposed reclassification as it will impede the establishment and implementation of these agricultural activities,” Kiyosaki wrote.
Kiyosaki told Environment Hawai`i that the change of heart occurred after someone from the federal Soil Conservation Service (now know as the Natural Resources Conservation Service) had expressed concerns to her office. “If streams are in the Conservation District, it will slow efforts to grow crops,” Kiyosaki said.
In May, county Planning Director Virginia Goldstein informed the Land Use Commission that Hawai`i County wanted to withdraw its earlier stipulation of January 9, 1995, acceding to the points raised by OSP in support of the boundary amendment. Since that time, Goldstein said in an affidavit, “she has had the opportunity to confer with members of the North Hilo community and the Director of the Department of Public Works, County of Hawai`i, who maintains a small baseyard in the affected area.” Goldstein continued:
“[A]s a result of these consultations, she has become convinced that the proposed action will have a seriously adverse effect on the development of diversified agriculture in the North Hilo area, and consequently on the revival of the presently depressed economy of the area.
“[T]he proposed action poses the threat of establishing a precedent for the reclassification of other streams on the windward Hawai`i coast, posing a further threat to the rehabilitation of agriculture in the entire area, and thus the well-being of the citizens of the Districts of Hamakua and North Hilo.”
Goldstein’s motion to amend the county’s position was, in the end, denied by the LUC hearing officer, Benjamin Matsubara. Despite the denial, the county has, in its questioning of witnesses in further LUC proceedings, manifested its open hostility to the petition.
Incendiary Speech
Young took his case not only to the office of the mayor, but also to the County Council, the North Hilo Community Association, the Hamakua Soil and Water Conservation District (affiliated with the Natural Resources Conservation Service), the Hilo County Farm Bureau (Robert Shioji, secretary), the Hamakua/North Hilo Agricultural Cooperative (Robert Shioji, acting president), and other groups.
In short order, the County Council adopted a resolution opposing the redistricting, based largely on the testimony of Young’s allies. Many of the organizations approached by Young informed the LUC of their opposition to the proposal — opposition that, in the main, repeated many of Young’s erroneous claims,
One of those claims holds that the community was kept in the dark about the OSP’s plans. Although the facts don’t support this contention, it remains an especially popular theme sounded by Young and his allies. Thomas B. Crabb, chairman of the Hamakua Soil and Water Conservation District, stated in testimony supporting the County Council resolution on the subject that, “we will not support a natural resource program that fails to provide public information and education to all watershed residents” — repeating practically verbatim testimony to the Land Use Commission from Francis Pacheco, president of the Hawai`i Association of Conservation Districts.
Retractions
Although the Natural Resources Conservation Service had earlier indicated its neutrality with respect to the boundary amendment, in late March, Wayne Subica, district conservationist for the Hilo field office of the NRCS, issued a contrary statement. The redistricting “will have a negative impact on the agricultural industry in the area,” Subica said. “Changing the gulches from Agriculture to Conservation will place a burden on all the farmers and ranchers in the area by placing another layer of permits and government regulations which are not necessary…”
(In later testimony to the LUC, it was brought out, on cross-examination of Mike Tulang, with the NRCS, that less than one percent of the drainages that farmers have placed on their land extend into the Conservation District. The claim that farmers would need to obtain Conservation District permits for their drainage systems was one of the most frequently repeated objections to the Office of State Planning’s petition.)
Subica’s statement was one of several exhibits submitted by Young as part of his case to the LUC. When Subica’s boss, state conservationist Kenneth Kaneshiro, learned of that, he swore out an affidavit to set straight the formal position of the NRCS. “Mr. Young apparently infers from that document [Subica’s statement] that the NRCS does not support the actions for reclassification of the Office of State Planning.” However, Kaneshiro said, “because the NRCS policy on statewide issues may only be set forth by the incumbent of this office [that of the state conservationist], Mr. Subica’s March 30, 1995 memo does not reflect the official policy of or constitute an official program commitment by the NRCS.”
Crabb also recanted his earlier opposition to the redistricting, as expressed in his testimony to the County Council. In a hearing July 21, 1995, at Laupahoehoe, Crabb said, “we are not opposed” to the OSP petition — an announcement that brought a collective gasp from Young and others in the audience. (At the August 16 meeting of the Hamakua Soil and Water Conservation District, however, Crabb apologized for his revisionist testimony, saying he had no choice in the matter.)
‘So-Called Streams’
Hearing officer Matsubara granted Young’s request to have additional public testimony be taken on the subject, and so the July 21 hearing was scheduled.
Leading off the testimony was Mayor Yamashiro.
Repeating a point raised by Young six months earlier, Yamashiro claimed that “what the state has done here is carefully crafted an application to exclude 27 to 28 other streams with similar characteristics which affect broader land bases. What we feel they have been attempting to do in this situation is choose the path of least resistance totally on state land … to limit the scope of opposition to this application.”
The upshot of his argument was that, once the LUC approved this petition, the stage would be set for reclassifying all the rest of those 28 streams, and thus greatly expanding “the regulatory reach of this body [the Land Use Commission] or the state … Department of Land and Natural Resources,” with an impact that “would be overly burdensome to the people of our county in trying to address the economic concerns that are presently confronting us.”
Yamashiro continued, “There are numerous other statutory and regulatory provisions that may be exercised by the state if they feel there is a degradation or a threat to the so-called streams that are being proposed for change… [W]e feel that the state should not look at trying to use what we feel is subterfuge by taking three of the most innocuous streams and advancing them for reclassification and possibly setting a precedent with regards to the other applications.”
‘Dumb’ Proposals
On August 6, the Hawai`i Tribune-Herald published a letter from one Anthony Dela Cruz, taking Yamashiro to task for his statements at the Laupahoehoe hearing. Dela Cruz congratulated the Office of State Planning for finally getting its “act together,” but said he was shocked at Yamashiro’s speech opposed to the “conservation of our streams.”
Yamashiro’s response, published in the same paper on August 15, was unrepentant. “As the mayor of the county of Hawai`i, it is my duty to oppose dumb proposals which will further complicate the lives of the people of our county without enhancing our quality of life.”
At the end of the July 21 hearing, Matsubara asked that the three intervenors (the state, the county, and Young) send to him by August 25 a proposed findings of fact, conclusions of law, and decision and order with respect to the boundary amendment. Following that, he would issue his own report.
On August 29, OSP representatives were scheduled to meet with the Hamakua Soil and Water Conservation District to discuss the matter further.
— Patricia Tummons
Volume 6, Number 3 September 1995
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