{"id":8535,"date":"2015-12-01T20:12:50","date_gmt":"2015-12-01T20:12:50","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=8535"},"modified":"2018-06-15T01:02:32","modified_gmt":"2018-06-15T01:02:32","slug":"nhlc-it-would-be-illogical-unfair-to-bar-substitution-in-kaloi-gulch-case","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=8535","title":{"rendered":"NHLC: It Would Be `Illogical, Unfair\u2019 To Bar Substitution in Kalo`i Gulch Case"},"content":{"rendered":"

\"kaloigulch\"<\/a>It seems the state Board of Land and Natural Resources may be the one to decide whether the contested case hearing over the Conservation District Use Permit (CDUP) for the Kalo`i Gulch Drainage Improvements at One`ula Beach Park will continue with Kua`aina Ulu `Auamo (KUA) as the petitioner in place of native Hawaiian limu expert Henry Chang Wo, Jr., who passed away in September.<\/p>\n

KUA\u2019s and Chang Wo\u2019s attorneys with the Native Hawaiian Legal Corporation filed a motion with the Land Board on September 17 asking for the substitution, as well as for an expedited decision on whether or not the project needed a supplemental environmental impact statement (SEIS).<\/p>\n

On October 23, attorneys for the permit applicants \u2014 Haseko (`Ewa), Inc., the University of Hawai`i, the state Department of Hawaiian Home Lands, and the City and County of Honolulu\u2019s Department of Planning and Permitting \u2014 argued that the 1st<\/sup> Circuit Court, not the Land Board, had the authority to decide whether KUA can take Chang Wo\u2019s place in the case, which was appealed to the court in 2014. They also argued that KUA, a non-profit group of native Hawaiian cultural practitioners, lacked any special interest or right that would be directly or immediately affected by the CDUP. If issued, the permit would allow the lowering of a sand berm at One`ula Beach Park to allow stormwater runoff to enter the ocean where Chang Wo collected limu and taught community members how to maintain the beds. Such an interest, the applicants\u2019 attorneys argued to the Land Board, is required to achieve standing in a contested case.<\/p>\n

To allow KUA to take Chang Wo\u2019s place as petitioner \u201cwould be to open the back door to KUA\u2019s participation where it would not have been allowed entry through the front door,\u201d their memo in opposition states.<\/p>\n

In their October 27 response, NHLC attorneys David Kimo Frankel and Liula Nakama pointed out that their motion was filed under the Land Board\u2019s administrative rules, not a Circuit Court rule. And under the board rules, it has the right to allow substitutions following the death of a party in a contested case. \u201cAnd in fact, [1st<\/sup> Circuit] Judge [Rhonda] Nishimura expects nothing less, as she made clear in chambers,\u201d they wrote, referring to comments she made during an October 2 status conference.<\/p>\n

The standard for such a substitution under the Land Board\u2019s rules is simply that good cause must be shown, Frankel and Nakama wrote.<\/p>\n

\u201cIt would be illogical and unfair to interpret [the Land Board\u2019s substitution rule] to allow perpetual corporations and agencies to freely substitute and sell interests, but deny that ability to Native Hawaiians who live, breathe and die,\u201d they wrote, adding that the suggestion from the applicants\u2019 attorneys that the substitution motion was intended to circumvent the Land Board\u2019s contested case rules was insulting.<\/p>\n

\u201cThere was no reason for KUA to intervene in the contested case hearing earlier because Uncle Henry was already doing so, and the BLNR\u2019s rules discourage redundant intervention. \u2026 The applicants are arguing that Native Hawaiian cultural practices enjoyed by generations of Hawaiians can be extinguished by the death of a single Hawaiian. The fact that Native Hawaiians use this area to gather limu and fish has never been in question,\u201d Frankel and Nakama wrote.<\/p>\n

Not only should the Land Board authorize the substitution, they argued it should also immediately decide whether the applicants need to prepare an SEIS, which is an issue the 1st<\/sup> Circuit Court remanded to the board.<\/p>\n

\u201cThe parties submitted arguments and proposed findings as to that issue seven months ago. [The board] can and should render its decision right away,\u201d they wrote.<\/p>\n

 <\/p>\n

A Surreply<\/em><\/strong><\/p>\n

In a November 4 filing, the applicants\u2019 attorneys agreed that Judge Nishimura \u201cdid indicate an inclination to have the board, rather than herself, render a decision on the motion to substitute.\u201d However, they took serious issue with the NHLC\u2019s statement that she had expressed an \u201cinclination \u2026 to allow the substitution to take place.\u201d She did not say that, according to a declaration by Haseko attorney Yvonne Izu.<\/p>\n

\u201cIt would impugn Judge Nishimura\u2019s integrity to suggest that she would express her inclination on a matter without having even reviewed the pleadings,\u201d the attorneys wrote.<\/p>\n

They also disputed the NHLC\u2019s claim that they had insisted on scheduling a status conference so soon after Chang Wo\u2019s death. University of Hawai`i attorney Lisa Bail countered that it was Judge Nishimura who had requested the conference, not the applicants.<\/p>\n

Their filing was not provided for under the Land Board\u2019s order on the NHLC\u2019s substitution motion, but the applicants\u2019 attorneys wrote that they had to comment on the NHLC\u2019s \u201cmisrepresentations,\u201d especially since the Land Board may make a decision on the motion without holding oral arguments.<\/p>\n

They asked that the board either consider their arguments in their decision making or schedule oral arguments.<\/p>\n

The Land Board had not issued any ruling by press time.<\/p>\n

— T.D.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

It seems the state Board of Land and Natural Resources may be the one to decide whether the contested case hearing over the Conservation District Use Permit (CDUP) for the Kalo`i Gulch Drainage Improvements at One`ula Beach Park will continue … Continued<\/a><\/p>\n","protected":false},"author":220,"featured_media":8536,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[394],"tags":[],"class_list":["post-8535","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-december-2015-2015"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/8535","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\/220"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=8535"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/8535\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/8536"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8535"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8535"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8535"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}