{"id":14950,"date":"2023-02-03T11:56:46","date_gmt":"2023-02-03T21:56:46","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=14950"},"modified":"2023-02-03T12:09:13","modified_gmt":"2023-02-03T22:09:13","slug":"courts-roundup-aquarium-fishing-koloa-development-kahala-permit","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=14950","title":{"rendered":"Courts Roundup: Aquarium Fishing, Koloa Development, Kahala Permit"},"content":{"rendered":"\n

Aquarium Permits:<\/strong> On January 30, Environmental Court Judge Jeffrey Crabtree granted a motion filed last year by the Pet Industry Joint Advisory Council (PIJAC) to amend a statewide ban on the issuance of aquarium collecting permits that had been in place since October 2017.<\/p>\n\n\n\n

He ruled that the state Department of Land and Natural Resources could start considering up to seven permits for commercial aquarium collection in the West Hawai\u02bbi Regional Fishery Management Area. Those permits would have to be approved by the Board of Land and Natural Resources at a public meeting. In the past, the DLNR issued collection permits administratively.<\/p>\n\n\n\n

In August 2022, the 1st Circuit Court upheld PIJAC\u2019s revised final environmental impact statement on the potential effects that aquarium collection by seven permittees would have in the area. The Land Board rejected an earlier EIS in 2020 that considered the environmental impact of 10 collectors. In June 2021, however, the board deadlocked 3-3 on accepting the revised EIS. As a result, on July 8, 2021, the revised EIS was deemed to be accepted by operation of law because the board had not accepted or rejected it within 30 days of its publication.<\/p>\n\n\n\n

\u201cThat decision is now before the Hawai\u2018i appellate courts to resolve the legal issues with the trade\u2019s revised EIS,\u201d according to a press release by Earthjustice, which represents the plaintiffs in the case that led to the initial ban.<\/p>\n\n\n\n

The DLNR supported lifting the ban with regard to West Hawai\u02bbi. \u201cThe RFEIS has been accepted and the acceptance upheld by this Court. The required [Hawai\u02bbi Environmental Policy Act] review is thus complete. There is no actual controversy remaining \u2026 There is no basis for keeping the injunction in place,\u201d deputy attorneys general Julie China and Melissa Goldman wrote.<\/p>\n\n\n\n

The Earthjustice attorneys had argued that the injunction should be kept in place until the appeal over the EIS\u2019s acceptance is resolved, because the plaintiffs are likely to prevail, there is a threat of irreparable harm to the fish and reefs, and there is a public interest in a valid environmental review.<\/p>\n\n\n\n

\u201cWe\u2019re disappointed that the court would agree to open West Hawai\u2018i to aquarium collection again, especially given the serious legal deficiencies with the industry\u2019s EIS that will be addressed on appeal, and the serious threat of environmental harm posed by opening West Hawai\u2018i to collection again,\u201d said Earthjustice attorney Mahesh Cleveland in the press release. \u201cFortunately, we still have recourse in the appellate courts to correct these flaws, and we plan to do everything we can in that process to avoid West Hawai\u2018i\u2019s reefs from getting hammered by the trade once again.\u201d<\/p>\n\n\n\n

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Yellow tang<\/figcaption><\/figure>\n\n\n\n

An EIS PIJAC prepared for potential aquarium collectors on O\u02bbahu was rejected by the Land Board in October 2021. The council has not published a revised version.<\/p>\n\n\n\n

Koloa Hearing: <\/strong>On February 3, 5th Circuit Court Judge Kathleen Watanabe will hold a hearing on a motion for a preliminary injunction filed by opponents of a luxury condominium development in Koloa, Kaua\u02bbi, on lands they believe sustain, or sustained, endangered cave-dwelling spiders and arthropods.<\/p>\n\n\n\n

The hearing had been repeatedly delayed. Meanwhile, blasting work on the property continued and was expected to be completed last year.<\/p>\n\n\n\n

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An aerial view of the Kauanoe o Koloa luxury condominium develop- ment in December 2022. Blasting had been completed, pipes were being laid, and building pads prepared.\u00a0CREDIT:\u00a0KAUANOE O KOLOA<\/figcaption><\/figure>\n\n\n\n
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The hearing this month will include live witness testimony from county planning officials involved in allowing the development to proceed, as well as the scientists who concluded that the site isn\u2019t likely to support any habitat that the endangered spiders and arthropods would occupy.<\/p>\n\n\n\n

The live testimony comes despite attempts by the County of Kaua\u02bbi to avoid it, which was one of the reasons for the hearing delay. However, Judge Watanabe ruled last month to allow it.<\/p>\n\n\n\n

In arguing for the live testimony of county officials, attorney Peter Morimoto, representing plaintiffs E Ola Kakou Hawai\u02bbi (also known as Save Koloa) and Friends of Maha\u02bbulepu, stated that all four county employees had been deposed. Even so, \u201cThe credibility of a live witness continuously feigning a lack of memory should be considered, as opposed to merely reading ‘I don\u2019t remember\u2019 in a deposition transcript. This court, as the finder of fact, should view defendant County of Kauai\u2019s Planning Department employees\u2019 demeanor, tone of voice, attitude and manner when determining their credibility,\u201d he wrote.<\/p>\n\n\n\n

In arguing against the live testimony, Kaua\u02bbi County pointed out that the plaintiffs had taken more than 25 hours of deposition testimony \u201camounting to over 700 pages of transcripts from various county employees, including over six hours from the planning director, over five hours from the deputy planning director, nearly eight hours from various Planning Department employees, over six hours from various Department of Public Works employees, and involving 45 documents totaling hundreds of pages.<\/p>\n\n\n\n

\u201c[B]y now, plaintiffs have surely obtained whatever testimony and evidence they believe necessary for their motion for a preliminary injunction,\u201d counsel for the county wrote.<\/p>\n\n\n\n

Kahala Permit: <\/strong>Tyler Ralston\u2019s fight against the Kahala Hotel & Resort\u2019s pre-set lounge chairs and tables blocking people from state land that\u2019s supposed to be open to the public is inching forward.<\/p>\n\n\n\n

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Tyler Ralston\u2019s appeal points out that a few years after dredging and filling of the state parcel, \u201cthe sandy beach stretched from the ocean to the edge of the hotel property, as depicted in this photograph.\u201d<\/figcaption><\/figure>\n\n\n\n
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Ralston, who has enjoyed the beach fronting the hotel since the late 1960s, has for years opposed the board\u2019s annual renewal or continuation of revocable permits to the hotel\u2019s owner, Resorttrust Hawai\u02bbi, LLC, for the use of a parcel of filled land abutting the makai edge of the hotel lot.<\/p>\n\n\n\n

In the early 1960s, the state allowed the hotel\u2019s predecessor to create a swimming lagoon and improve the parcel, which was to be used as a public beach. (According to the 1963 agreement governing the project, \u201call of the filled and reclaimed lands of the improvements seaward and makai boundaries [of the hotel parcels] \u2026 shall be used as a public beach,\u201d)\u00a0<\/p>\n\n\n\n

While the entire parcel was a sandy beach for years, the mauka side was eventually grassed over. Now, only a small fraction of the parcel remains sandy. The grassy area came to be used by the hotel for weddings, part of a restaurant, and rentals of cabanas and lounge chairs, all of which gave the impression that the grass was off-limits to the public.<\/p>\n\n\n\n

In response to complaints from members of the public, including Ralston, that those uses were illegal, the Land Board eventually narrowed the scope of the permit to allow only the pre-setting of about 70 lounge chairs with small tables for hotel guests, with a requirement that the hotel install signage demarcating the state parcel and informing members of the public that they are welcome.<\/p>\n\n\n\n

Despite this reduction in use, Ralston opposed the board\u2019s November 2021 approval because he said that the hotel had been storing equipment on the parcel in violation of the permit, and that the pre-setting still inhibited his use of the property.<\/p>\n\n\n\n

The Land Board rejected his request for a contested case hearing. Ralston filed an appeal in 1st Circuit Court, which he lost in June of last year. He then appealed that court\u2019s decision, as well as the Land Board\u2019s 2022 renewal\/continuance of the hotel\u2019s permit to the Intermediate Court of Appeals.<\/p>\n\n\n\n

Attorneys for Resorttrust argue that Ralston and his attorney, David Frankel, \u201chave been on a years-long crusade against the hotel and BLNR. Rather than acknowledging the significant public benefits the state and public receive in exchange for the RPs, they have taken the patently unreasonable position that any<\/em><\/strong> degree of private use of the state parcel by the hotel and its guests is per se<\/em>, a categorical breach of various statutes and BLNR\u2019s constitutional obligations. Their current fixation: BLNR\u2019s authorization allowing the hotel to place a limited number of temporary, lightweight beach chairs for its guests on the state parcel. This appeal is just the latest attack from two individuals trying to force their personal preferences of how the state parcel should (and should not) be used upon BLNR and unilaterally dictate BLNR\u2019s management of the state\u2019s resources.\u201d<\/p>\n\n\n\n

Attorneys for the state add in their answering brief, \u201cRalston\u2019s inability to sit or lie on grass that is occupied by a hotel chair cannot conceivably give rise to a property interest grounded in the constitutional right to a clean and healthful environment.\u201d<\/p>\n\n\n\n

\"\"<\/a>
Tyler Ralston\u2019s appeal points out that a few years after dredging and filling of the state parcel, \u201cthe sandy beach stretched from the ocean to the edge of the hotel property, as depicted in this photograph.\u201d<\/figcaption><\/figure>\n\n\n\n
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While the state\u2019s attorneys in the case have argued that the hotel\u2019s pre-set chairs exclude the public from only three percent of the entire state parcel (Resorttrust\u2019s attorneys say it\u2019s only two percent), Frankel disputes that.<\/p>\n\n\n\n

He noted in his reply filed last December that neither the Land Board nor the 1st Circuit Court made any findings that the chairs only covered three percent of the parcel. And, he added, that claim can\u2019t be considered a binding fact when Ralston has never been given the opportunity to challenge it.<\/p>\n\n\n\n

What\u2019s more, areas open to the public \u201cshould not include those areas that no one in their right mind would occupy: the area between the chairs,\u201d Frankel wrote. He noted that a recent photograph of the lot at sunrise \u201creveals that RTH uses effectively prevent the public from using more than 97% of the area (particularly if just considering only the areas where people sit). Moreover, BLNR ignores the blight that these empty chairs impose upon an otherwise beautiful spot.\u201d<\/p>\n\n\n\n

Frankel argued that the permit adversely affects Ralston\u2019s constitutional rights to a clean and healthful environment and the rights to the enjoyment of life, liberty and the pursuit of happiness. As a result, due process required the Land Board to grant a contested case hearing, he argued.<\/p>\n\n\n\n

\u201c[I]n this case, the right to a clean and healthful environment includes the right that explicit consideration be given to a variety of environmental factors, including \u2018recreational, scenic, and open space values,\u2019” Frankel wrote, citing a portion of the state\u2019s Coastal Zone Management law, which he said governs state actions, not just those of the counties.<\/p>\n\n\n\n

Frankel also argued that the state\u2019s land use law, as well as the need to protect public beaches, also require the Land Board to consider those environmental factors.<\/p>\n\n\n\n

No hearing on the appeal has yet been scheduled.<\/p>\n\n\n\n

\u2014 Teresa Dawson<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Aquarium Permits: On January 30, Environmental Court Judge Jeffrey Crabtree granted a motion filed last year by the Pet Industry Joint Advisory Council (PIJAC) to amend a statewide ban on the issuance of aquarium collecting permits that had been in … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":11963,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[26,507,8,338,17],"tags":[3],"class_list":["post-14950","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-endangered-species","category-february-2023","category-fisheries","category-land-use","category-marine","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14950","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14950"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14950\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/11963"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14950"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14950"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14950"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}