Power Plant Gets Court Approval To Build on Ke’ahole Conservation Land<\/b><\/p>\n
The Hawai’i Electric Light Co. (HELCO), the electric power utility for the Big Island, has won a judge’s approval to move forward with construction of an addition to its power plant at Ke\u2019ahole, South Kona. Third Circuit Judge Ronald Ibarra issued an order on January 3, 1997, that overturned an earlier vote of the Board of Land and Natural Resources that, according to Chairman Michael Wil\u2013son, effectively denied HELCO’s request for a Conservation District Use Permit for the expansion.<\/p>\n
As Environment Hawai`i<\/i> reported in its June 1996 article, “[url=\/members_archives\/archives_more.php?id=995_0_28_0_C]Land Board, HELCO Are at Odds Over Vote on Ke`ahole Expansion[\/url],” the Land Board voted three-to-two against HELCO at the end of a contested case hearing that itself resulted from an earlier decision by Judge Ibarra. HELCO went to court, arguing that in order for the board’s vote to be binding, it would need to be made by a four-vote majority, rather than the three-vote majority the board managed to pull together. In his January 3 decision and order, Ibarra essentially sided with HELCO.<\/p>\n
The only remaining major permit required for the plant expansion now is from the state Department of Health. A hearing on that permit was scheduled for January 29.<\/p>\n
The planned expansion will add 58 mega\u2013watts of capacity to the Ke\u2019ahole facility, at a cost of more than $100 million.<\/p>\n
A No-Show<\/i><\/b><\/p>\n
One of the more puzzling aspects to the case is the fact that the Land Board’s lawyer, deputy Attorney General Randall Young, did not appear in court to argue the state’s case. Young told Environment Hawai\u2019i<\/i> that he felt the state had made its case adequately in written arguments.<\/p>\n
Opponents of the Ke’ahole expansion believe this hurt their case, noting that Judge Ibarra had specifically requested Young appear. In his ruling, Ibarra takes formal notice of Young’s absence.<\/p>\n
Here is a brief summary of Ibarra’s reasoning:<\/p>\n
The state law gives the Land Board 180 days to decide on a Conservation District Use Application, but with provisions for time extensions. In this case, the last time exten\u2013sion expired on April 26, 1996 at an execu\u2013tive session held sometime in April the Land Board took a vote on the application. With board member Colbert Matsumoto having recused himself, five members were left to decide the matter.<\/p>\n
On a motion of board member Christo\u2013pher Yuen to deny the application, the vote was three in favor and two opposed. (Casting the dissenting votes were Michael Nekoba, O\u2019ahu board member, and Herbert Apaka, of Kaua\u2019i.)<\/p>\n
The board reported its vote in Minute Order No. 11, stating that the application had been denied and further stating that the BLNR \u201cdoes not intend to deliberate further, or vote again, on this matter. The BLNR does not intend to extend the present April 26, 1996 deadline to take further action in this matter.\u201d<\/p>\n
HELCO challenged this, stating that at least four members were needed to make the board’s vote binding. The BLNR issued a clarifying statement on May 10 in the form of an amended Minute Order No. 11, this time stating that rather than denying HELCO’s request for a permit, in the absence of a four-vote majority, it could not issue a permit.<\/p>\n
Ibarra determined that, \u201cThe BLNR, once the April 26, 1996, deadline passed, had no jurisdiction to act upon HELCO’s CDUA.” The original Minute Order 11 thus would stand as a conclusion of law freely reviewable by this court.”<\/p>\n
In his review of that action, Ibarra found, \u201cThe BLNR erred in stating in … the original Minute Order No. 11 that HELCO’s CDUA was denied. Four votes of the BLNR are required to approve or disapprove the CDUA as required by Section 171-5, [Hawai’i Revised Statutes]. Accordingly, the BLNR failed to take any action, be it denial or approval and, therefore, erroneously stated that it had denied HELCO’s CDUA.”<\/p>\n
(For additional background on this dispute, readers may wish to review the article “[url=\/members_archives\/archives_more.php?id=1280_0_30_0_C]By Default, Land Board Permits Expansion of Keahole Power Plant[\/url]” in the June 1994 issue of Environment Hawai`i and the article \u201c[url=\/members_archives\/archives_more.php?id=995_0_28_0_C]Land Board, HELCO Are at Odds over Vote on Ke\u2019ahole Expansion[\/url],” Environment Hawai`i<\/i>, June 1996.)<\/p>\n
<\/p>\n <\/b><\/p>\n The state Agribusiness Development Corpo\u2013ration inexplicably stopped mailing out no\u2013tices of its meetings to interested parties in July 1996. From July until January, it met six times. At no time were the parties whose names were dropped from the mailing list notified of this.<\/p>\n Environment Hawai\u2019i<\/i> was one such party. In the past, we had attempted to cover all meet\u2013ings of the ADC. In June 1996, the ADC’s executive director resigned. When we did not receive notice of meetings for several months, we assumed that the agency was in some disarray and was not meeting.<\/p>\n In fact, the agency conducted business as usual. An interim executive director was ap\u2013pointed Paula Helfrich, who also serves as executive director of the Hawai\u2019i Island Eco\u2013nomic Development Board and as the chief staff person for the Rural Economic Transi\u2013tion Assistance- Hawai\u2019i, the Department-of-Defense funded grant program for Hawai\u2019i agribusiness.<\/p>\n At the January meeting, which Environment Hawai`i did attend, ADC Chairman Lindy Sutherland was informed of the failure to comply with the meeting notification re\u2013quirements of Chapter 92, Hawai’i Revised Statutes. He seemed to be unaware of the problem, but promised it would be corrected.<\/p>\n <\/p>\n <\/b><\/p>\n Annette Niles was convicted two years ago on more than 20 charges of animal cruelty, stem\u2013ming from the treatment of cattle on state-owned land that she ranched at Ma\u2019alaea, Maui. In January, Niles’ trial on additional charges of animal cruelty began (the trial has been continued until March).<\/p>\n As Environment Hawai`i<\/i> reported in De\u2013cember, despite the convictions and pending charges, Niles was deemed by a screening panel assembled by the Department of Land and Natural Resources to be qualified to ranch other state-owned land on Maui. At an auc\u2013tion of leases held in early December, she submitted the winning bid for a 16-acre parcel in Kula – the same parcel that she had operated earlier, on a month-to-month revo\u2013cable permit, as part of a feedlot operation of the family business, Perreira Ranch.<\/p>\n On December 5, Dean Uchida, adminis\u2013trator of the DLNR’s Division of Land Man\u2013agement, sent a memorandum to members of the Land Board describing the scoring used by the screening committee in its evaluation of Niles and other prospective bidders. Accord\u2013ing to Uchida, the committee looked at expe\u2013rience, financial capability, and plan of utiliza\u2013tion and development of the land to be occupied. \u201cFor the first category,” Uchida wrote, “Annette Niles received 6 or 7 points from each of the screening members for ha\u2013ving over 5 years of experience (4 points maximum), knowledge in particular field of busi\u2013ness (1 pt. max) and knowledge in manage\u2013ment, financial and marketing matters (2 pts. max). Her ranching business dates from 1974 according to the application.”<\/p>\n In the category of financial capability, Uchida wrote, “she scored 6 to 9 points from the screening members for credit worthiness (2 pts. max.), financial strength (3 pts. max), economic viability of plan (3 pts. max.), short and long term financing (1 pts. max.) and marketing strategy (1 pts. max.).<\/p>\n “In the third category, her plan scored from 5 to 9 points from the members. The scoring of the 3 subcategories is (1) Plan to utilize the land for a particular purpose (2 pts. max.), (2) Plan for development of the land within a time frame of first, second, third, fourth, and fifth year of operation (7 pts. max.) and (3) Physi\u2013cal, environmental and esthetic quality of the plan (1 pts. max.).”<\/p>\n Niles, Uchida concluded, “received a total score from each member of 20, 21, 22, 23, and 23. The differences occurred primarily in the scores on the Economic viability (second cat\u2013egory) of the plan, ranging from 0 to 3 points and the Plan for development of the land within a time frame (third category) ranging from 2 to 7 points.”<\/p>\n The parcel Niles bid on was earlier occu\u2013pied by Niles’ family operation, the Perreira Ranch. On June 23, 1995, after Niles’ convic\u2013tion and the cancellation of the Ma’alaea Ranch lease, held in the name of her father, the late Stephen Perreira, the Land Board also revoked the month-to-month permit for the Kula land.<\/p>\n According to the staff report to the board in 1995, “A recent inspection of the subject area revealed that the property has been overgrazed by the permittee’s cattle.” As Environment Hawai`i reported at the time, board members appeared dismayed when shown photographs illustrating the poor condition of the land, denuded by grazing cattle that had been removed from Ma’alaea following revocation of the Ma’alaea lease.<\/p>\n State law prohibits the lease of state-owned land to anyone who has had a lease revoked by the Land Board for five years following the revocation. In the case of Niles, although she managed the Ma’alaea ranch, the lease was held in the name of her father.<\/p>\n The application form for prospective lessees of state land runs to 18 pages, including instruc\u2013tions. Bidders are asked to provide a 10-year cash flow projection, a preliminary conserva\u2013tion plan, a detailed description of their experience in ranching, and a tax clearance form. There is no effort to determine whether the applicant has been convicted of animal cruelty, fraud, or any other charge that might speak to the applicant’s suitability to hold a state lease.<\/p>\n <\/p>\n <\/b><\/p>\n Nearly three years ago, the Moloka’i Chamber of Commerce, the Ho’olehua Homesteaders Association, and Hui Ho’opakele ‘Aina filed suit in federal court against developers of the Moloka’i pipeline project. The groups, represented by the Sierra Club Legal Defense Fund, claimed that the developers and their contrac\u2013tors Kukui (Moloka’i), Inc., Kajima Engineering and Construction, Inc., and Kiewit Pacific Co. had failed to obtain a storm water permit for their work, as required by the federal Clean Water Act.<\/p>\n The lawsuit was settled and a consent decree approved on March by U.S. District Judge David A. Ezra. Under terms of that settlement, the defendants are to pay $262,250 into a new fund, to be known as the Moloka’i Environ\u2013mental Protection Fund.<\/p>\n In December 1996, the Sierra Club Legal Defense Fund announced that the fund, ad\u2013ministered by the Tides Foundation, was up and running. Qualified non-profit organiza\u2013tions may apply for grants to fund environmental restoration, pollution prevention and reduction, citizens’ advocacy, and legal ac\u2013tions.<\/p>\n For information on how to apply, write to the Tides Foundation, P.O. Box 29903, San Francisco, California 94129-0903.<\/p>\n A second lawsuit filed by the same plaintiffs in state court is pending. Defendants in that case are Kukui (Moloka’i), Inc., and the state Department of Land and Natural Resources.<\/p>\n No work has been done on the $18 million nine-mile-long pipeline for the last three years.<\/p>\n Volume 7, Number 8 February 1997<\/p>\n","protected":false},"excerpt":{"rendered":" Power Plant Gets Court Approval To Build on Ke’ahole Conservation Land The Hawai’i Electric Light Co. (HELCO), the electric power utility for the Big Island, has won a judge’s approval to move forward with construction of an addition to its … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[271],"tags":[],"class_list":["post-3450","post","type-post","status-publish","format-standard","hentry","category-february-1997"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/3450","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=3450"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/3450\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3450"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3450"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3450"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}