Monday, October 26, 2020


West Maui Hawaiian Community Seeks Intervention in West Maui Land Co.'s Water Utility Rate Proceeding

From the news release:

Lahaina, Maui -- Lahaina Hawaiian organization Na Aikane o Maui and Kauaula landowner Ke'eaumoku Kapu filed today to intervene in West Maui Land Co subsidiary's water rate increase proceeding before the Public Utility Commission.

Launiupoko Irrigation Co. is a subsidiary of West Maui Land Co. that operates a water utility from Wainee to Launiupoko in West Maui. LIC filed for a substantial rate increase in June. The rate increase application seeks approval for a massive expansion of the company's operations from its original 2003 approval of selling diverted water from Kauaula and Launiupoko Streams to pumping water from wells.

Although the Commission has not given approval to this major expansion, West Maui Land Co.'s other subsidiaries, Wainee Homes and Hope Builders have been trenching and laying the pipes for the expansion without any permits from the county and without any archaeological review.

The construction work has gone and proposes to go through multiple private parcels with disputed claims of ownership as well as old government roads owned by the County of Maui. The expansion plans to go through three historic Lahaina cemeteries.  Five grandmothers and mothers were arrested two weeks ago for blocking construction equipment on one of those parcels. Last week, construction in another area was halted when human remains were disturbed.

The intervenors seek the Commission to consider how the expansion of the system risks disturbance of human burials, decreases stream flow, and increases greenhouse gas emissions and use of imported fossil fuels, with consequent climate change impacts on wildfires, reefs, and cultural resources.

"The Commission should hear the truth, the whole truth and nothing but the truth before approving this massive rate increase," said Kauaula landowner Ke'eaumoku Kapu.

The intervenors are represented by attorneys Lance D. Collins, Bianca Isaki and Ryan Hurley. The Commission will rule on the motion at a future date.

The Motion to Intervene can be downloaded here.

Friday, September 25, 2020


Hawaii Board of Education Agrees to Re-Hear Kahuku Windmill Petition, Settles Lawsuit

Every board and commission is required to deliberate and make decisions
in an open manner after allowing the public an opportunity to testify.
 --Attorney Lance D. Collins

From today’s news release:

Kahuku, Oahu -- The Board of Education has agreed to settle Kahuku
parent Sunny Unga's lawsuit by re-hearing her petition for rule making.

In January, Ms. Unga filed a petition with the Board of Education asking
them to add a rule that requires schools and libraries to hold community
meetings before providing official comments on proposed developments.

Ms. Unga's concern stemmed from the Department of Education's official
comment of no concern regarding the Kahuku windmills that now tower
directly over Kahuku Elementary School.

The proposed rule would require the Department to hold a community
meeting and solicit family and community feedback before providing
official comment on proposed developments.

In early February, the Board held a secret, closed meeting where they
denied Ms. Unga's petition.

The Board of Education has now agreed to rescind the secret, closed vote
and to hold a new open meeting and allow public testimony before
considering the petition.

"We look forward to having the Board seriously consider requiring
earnest  and meaningful community engagement when developments are
proposed close to schools." said Plaintiff and Kahuku mother Sunny Unga.

The Board has not yet set the date to consider the petition.

Wednesday, September 16, 2020


Oral arguments Friday September 18 on DLNR issuance of commercial fishing licenses to foreign fishermen

by Larry Geller

The Supreme Court will finally hear oral arguments on SCAP-19-0000501 on Friday, September 18, 2020, 8:45 a.m., fully four years after the initial AP reports of Sept 8, 2016.

In these times of COVID, these foreign workers are displacing scarce jobs that would otherwise go to Native Hawaiians and other local fishermen. They also generally have language issues that would suggest they do not understand rules for conserving Hawaii's fish resources. Because they are not allowed to land in Hawaii, when the fishing boats are idle, they are nevertheless confined to the ship or the immediate area of the pier.

From the Supreme Court calendar scheduling the oral arguments:

Brief Description:

This case involves the interaction between the Department of Land and Natural Resources’ (DLNR) issuance of commercial marine licenses and HRS §§ 189-2 and 189-5, statutes which limit the taking of marine life.

HRS § 189-2(a) states, “No person shall take marine life for commercial purposes whether the marine life is caught or taken within or outside of the State, without first obtaining a commercial marine license[.]” HRS § 189-5 states, “It is unlawful for any person who has not been lawfully admitted to the United States to engage in taking marine life for commercial purposes in the waters of the State.”

Malama Chun (Chun) challenged the issuance of commercial marine licenses to foreign non-immigrant crewmembers on longline fishing boats that dock in Honolulu to sell their catch. Chun sought a declaratory order that the DLNR lacks the authority to issue commercial marine licenses to persons not lawfully admitted to the United States. The Board of Land and Natural Resources (BLNR) denied the petition; Chun appealed the decision to the Circuit Court of the First Circuit, which affirmed the BLNR. The Supreme Court accepted Chun’s application for transfer of this case. Chun contends that the circuit court erred on three grounds when it upheld the BLNR’s decision denying Chun’s Petition for Declaratory Order:

(1) Affirming BLNR’s conclusion that alien longline fishing crewmembers were “lawfully admitted” to the United States;

(2) Affirming BLNR’s conclusion that commercial fishing licenses may be issued to persons not lawfully admitted to the United States; and

(3) Concluding that Chun must present a factual record of violations of HRS § 189-2(a) by foreign non-immigrant crewmembers in order to obtain relief.

Google will turn up many articles on this issue, but here are some. Note that Bruce Anderson was head of DLNR and described the issue as a labor issue, outside of his jurisdiction:

Hawaii Agency Rejects Rule to Protect Foreign Fishermen

Hawaiian seafood caught by foreign crews confined on boats

Hawaii bill would ban licenses for some foreign fishermen

State agency opposes rule change for foreign fishermen

Oral arguments are streamed by the Supreme Court from their YouTube channel:

Monday, September 14, 2020


Approvals for Stanford Carr Development in Lahaina invalidated by court

The court has reaffirmed that the community has a right to participate in shoreline development approval processes. Hopefully, the Maui Planning Commission will begin again to allow interested community members their right to participate in these proceedings. – Attorney Lance D. Collins

From the news release of September 14, 2020

Lahaina, Maui -- The Intermediate Court of Appeals invalidated the SMA approvals for Kahoma Villages, a mixed housing development in Lahaina.

In 2014, the area residents led by Michele Lincoln sought to intervene in the Maui Planning Commission Special Management Area (SMA) permit approval process. The commission denied the intervention.

Area residents raised several concerns: the elimination of beach access parking on Kenui Street, access to a six acre community park as required by the community plan, elimination of trees for listed endangered species, adverse impacts to drainage and runoff, destruction of Hawaiian cultural resources, failure to properly investigate the presence of Hawaiian burials in the project area, adverse traffic impacts and potential problems related to evacuation with development occurring in the Tsunami Inundation Zone.

The ICA ruled on three points.

First, the Commission erred when it ruled that the issues raised by the neighboring residents were the kinds of concerns the Commission was required to consider anyways in its decision-making so that intervention wasn't warranted. The Court noted that it was precisely that the residents concerns were within the Commission's decision-making that intervention should have been granted.

Second, the Commission's failure to hold a contested case on the residents concerns violated their right to due process under the Hawai'i State Constitution.

Third, while the Maui County Council granted the project a waiver from obtaining a community plan amendment under the Maui County Code, the state SMA law required the Commission independently find that the project is consistent with community plan before it may approve any project in the SMA.

"We are grateful to the Appeals Court and look forward to making our case before the Planning Commission," said the residents' group leader Michele Lincoln.

Craig G. Nakamura and Arsima A. Muller represented Stanford Carr Development, deputies corporation counsel Thomas Kolbe and Caleb Rowe represented the Maui Planning Commission, and Bianca Isaki represented the Waipio Bay Benevolent Association and Malama Kakanilua as amicus curiae.

Friday, September 11, 2020


Quick make-it-yourself face shields


I do have a larger, more solidly-made face shield, but this one is easy to make and carry and is cheap enough to discard when it gets damaged or smudgy. I keep a few in the car, and a few at home to grab before I go out.

The design first appeared on the Spoon and Tamago website (here) in April, but I couldn’t find suitable transparent material immediately.

At first I used a transparent cover from a page protector, which worked well but I had only one. The material has to be really transparent or it obscures your vision.

But then, an aha! moment: overhead transparency slides! They are thinner than Yoshioka recommends, but on the other hand they are cheap and I had a box of them. If you can find thicker material at the stationery store that would be better, but this works well enough for me.

The only other required ingredient is eyeglasses. Or rather, an eyeglass frame. You can knock the lenses out of an old, beat-up pair of sunglasses or reading glasses if you are not an eyeglass wearer yourself.

Yoshioka’s template is here.  I have erased his text to make my own template, which is here.

To use: copy onto as many OHP slides as you wish to make, then cut them out. Make the two slits for inserting the eyeglass frame.

It may seem tricky to put together the first time. Turn the eyeglass frame upside down. Push the earpieces through the slits all the way. Then to wear, turn the eyeglass frame right side up. The earpieces will be on the outside, the lenses on the inside. After the first time it is easy.

Yes, the material is thinner, but the price is right, and you can make them yourself easily. Make some for the family. Keep one or more in the car.

Wednesday, September 02, 2020


Today is the birthday of Queen Liliuokalani, September 2, 1838

Read more on Wikipedia, the free encyclopedia. Download a copy of her book,

Hawaii's story by Hawaii's queen, Liliuokalani, here.

Queen Liliʻuokalani

Liliuokalani, c. 1891.jpg

Liliʻuokalani (Hawaiian pronunciation: [liˌliʔuokəˈlɐni]; Lydia Liliʻu Loloku Walania Kamakaʻeha; September 2, 1838 – November 11, 1917) was the only queen regnant and the last sovereign monarch of the Hawaiian Kingdom, ruling from January 29, 1891, until the overthrow of the Hawaiian Kingdom on January 17, 1893. The composer of "Aloha ʻOe" and numerous other works, she wrote her autobiography Hawaiʻi's Story by Hawaiʻi's Queen during her imprisonment following the overthrow.

Friday, August 28, 2020


Hawaii state government departments spurn auditor by refusing to cooperate on COVID-19 investigations

by Larry Geller

It’s déjà vu all over again in Hawaii state government.

In 1993 attorneys filed a lawsuit against Hawaii’s Department of Education and Department of Health for an almost complete failure to provide special education services to special needs students in Hawaii.

The resulting consent decree dragged on for a dozen years and didn’t end before Judge David Ezra found both departments to be in contempt of court.

Once again, both the DOE and DOH are refusing to cooperate in the public interest. This time, both state agencies have refused to provide information requested by the state auditor.

The auditor’s reports are clear, straightforward and easy to understand. Today’s report on the DOE includes this, taken from the summary:

“As we note throughout our report, we received no cooperation from DOE. The department did not provide any of the documents we requested, limiting our review to policies and procedures that are publicly available on DOE’s website and elsewhere online. We had hoped to interview DOE to clarify how these plans have been implemented and followed, among other things. However, notwithstanding repeated requests, DOE declined to schedule meetings with us before the issuance of this report. As many of our questions echo those being asked by the public and public officials, it is unreasonable for DOE to refuse our requests about their safety and health guidelines. This is especially critical since teachers and some students have already returned to campus.”

The report on DOH was posted two days ago and includes this:

“Now, more than ever, DOH must be transparent and accountable. The lack of cooperation we received is, frankly, inexcusable. Public confidence in the department, specifically in its ability to perform timely contact tracing of the growing number of positive cases, has been eroded. The community now has many questions about the process that DOH has, for months, represented as under control. For DOH to effectively protect public health and reduce the spread of the novel coronavirus so we can begin re-starting our economy, it is critical the department rebuild public trust. This health emergency demands DOH ensure that its response is transparent by providing the public with complete, timely, and accurate information.”

Both reports are comprehensive and straightforward, worded in plain language.

Concerned Hawaii citizens and legislators should review these and consider why our state agencies are not cooperating in the public interest in this time of pandemic crisis.

Thursday, August 13, 2020


Victory in affordable housing dispute on Maui

From today’s press release:


LAHAINA, Hawaii — Tenants of the Lahaina Front Street Apartments low-income housing project
welcomed a federal court decision this week that ensures that the project will stay affordable until
2051. The 40-page decision by Hawai‘i federal District Court Judge Jill Otake rejected an attempt by
the project developer, Front Street Affordable Housing Partners, to unilaterally end the restrictions
that prevent the developer from sharply raising rents or selling the project unencumbered by the rent

The Front Street project was built in 2001 to provide affordable rental housing to low income residents of
Maui. Front Street is one of the few affordable housing complexes left on Maui. Currently, the maximum
income for four is about $55,000 to rent an apartment at Front Street. In return for $15 million in state
funded tax credits, the developer promised by covenant to keep the apartments affordable for 51 years.

However, after just 15 years, the developer asked the state's financing agency, the Hawai‘i Housing
Finance & Development Corporation (HHFDC), for permission to end the restrictions. HHFDC rubberstamped the developer’s request without complying with applicable law, according to attorneys
representing the tenants. Without the court challenge, the ending of rent restrictions could have led to
the doubling or tripling of rents and the eviction of low-income tenants who were unable to pay.

The court ruled that the developer was obligated to honor its commitment to keep rents affordable for
the next 31 years, and that an attempted “release” of the low-income restrictions between the developer
and HHFDC was unenforceable. The court explained, “under Hawai‘i law, the Release is invalid because
it was not done pursuant to a term in the Declaration and instead executed by agreement between” the
developer and HHFDC “without any consent of beneficiaries like Plaintiffs.”

Tenant Mike Tuttle, the lead plaintiff in the case, expressed relief at the decision. Tuttle (57), has lived
at Front Street with his teenage daughters since 2015. Until March, when he was furloughed as a result
of the COVID-19 pandemic, Tuttle worked as a Retail Sales Manager. “It's almost impossible to find
affordable housing on Maui,” said Tuttle. “It’s great to know that I will able to keep a roof over my head
and for my kids.”

The tenants were represented pro bono by Andrew Lillie, Joseph Lambert, and Cory Wroblewski of
the international law firm of Hogan Lovells US LLP, Victor Geminiani and Tom Helper of the Honolulu
nonprofit Lawyers for Equal Justice, and Maui attorney Lance Collins.

“We are very pleased with the decision,” said attorney Joseph Lambert of Hogan Lovells US LLP, lead
counsel in the case. “The court’s ruling ensures that the Front Street Apartments will remain rentrestricted
and affordable through 2051, which is what the developer originally promised it would do.”

Lawyers for Equal Justice attorney Tom Helper noted that the decision criticized the Hawai‘i Housing
Finance and Development Corporation—which is supposed to protect low-income housing—for
approving the developer’s attempt to end affordability restrictions. “HHFDC should have been on the side
of the tenants in this dispute, not the developer,” Helper said.

Lance Collins explained that “when a developer gets substantial tax credits and zoning concessions on
the promise that they will build a project for affordable housing, we must be keep them to the word.”

“Like many others at Front Street, I am retired and living on a fixed income,” said plaintiff Chi Guyer. “If
the court hadn't protected us from rent increases, I would not be able to afford to live on Maui.”

Front Street Lawyers for Equal Justice


Mayor Kirk Caldwell’s cruel sweeps of homeless tents need to stop–now, a call from advocates and organizations in Hawaii

Mayor Kirk Caldwell is term-limited. Since he has persisted in his cruel, middle-of-the-night sweeps of the houseless community, I for one will be glad to see him go. But these sweeps need to stop. right. now.

The ACLU of Hawaii released the following statement today.


Honolulu, Hawaii: Over 70 officials, organizations, and individuals — representing a broad range of interests and constituencies — released a statement today calling for a halt to “sweeps” of the houseless community during this ongoing pandemic. Many members of this community are families, but the City and County of Honolulu and the Honolulu Police Department have promised to continue citations and arrests for anyone in parks and beaches, even if they have nowhere else to go.

The statement and list of signatories is as follows:

We call on the leadership of the City and County of Honolulu — and the Honolulu Police Department (HPD) in particular — to stop sweeping our houseless neighbors in the middle of this unprecedented global pandemic. It is cruel, legally questionable (at best), and a threat to public health and safety. Public health experts locally and nationally say this is bad health policy, and the Centers for Disease Control (CDC) itself has weighed in with the following guidance: “Considerations for encampments — If individual housing options are not available, allow people who are living unsheltered or in encampments to remain where they are. Clearing encampments can cause people to disperse throughout the community and break connections with service providers. This increases the potential for infectious disease spread.”

That is crystal clear. And yet — flying in the face of CDC guidance — last week HPD Chief Susan Ballard said people who are unsheltered will be cited and arrested if they are in the parks or on the beaches. Making this more confusing is the fact that since the pandemic began, more than 10,000 citations have been issued statewide — thousands to people who are unsheltered — and prosecutors on Oahu and Maui have begun dismissing those citations en masse because they never should have been issued in the first place. This is because people who are houseless are exempt under the emergency orders because they have no place else to go. Issuing new citations after dismissing old citations is nothing more than harassment.

We all want people who are unsheltered to get into housing, but our shelters now have less space than ever because of social distancing guidelines. Just this week there has been an outbreak of COVID-19 at the Iwilei homeless shelter. Forcing more people inside will make this worse. And if an unsheltered person is arrested for being in a park or on a beach on O‘ahu, they’ll be sent to the O‘ahu Community Correctional Center, which is now seeing its own growing outbreak of the virus. We never agree with these sweeps. They’re cruel, ineffective, and the 9th Circuit Court of appeals has said sweeps like these are unconstitutional, a decision the U.S. Supreme Court let stand. But aside from those legal, philosophical, and humanitarian differences with the City’s policy, continuing with sweeps now is endangering public safety, not protecting it. Please join us in a call to end this practice, at least until this pandemic is behind us.


African-American Lawyers Association
ALEA Bridge
American Civil Liberties Union of Hawai‘i
Church and Society, Harris United Methodist Church
Drug Policy Forum of Hawai‘i
Family Promise of Hawai‘i
Hawai‘i Alliance for Community-Based Economic Development
Hawai‘i Appleseed Center for Law and Economic Justice
Hawai‘i Children’s Action Network
Hawai‘i Friends of Civil Rights
Hawai‘i Health & Harm Reduction Center
Hawai‘i Innocence Project
Hawai‘i J-20+
Hawai‘i Public Health Institute
Hawai‘i Strategy Lab
Hui Aloha
Japanese American Citizens League - Honolulu Chapter
Medical-Legal Partnership for Children in Hawai‘i
Mental Health America of Hawai‘i
Muslim Association of Hawai‘i
Honolulu Hawai‘i NAACP
National Association of Social Workers-Hawai‘i
ʻŌiwi TV
Pacific Gateway Center
Planned Parenthood Votes Northwest and Hawai‘i
The Pōpolo Project
Project Hiehie
Project Vision Hawai‘i
Temple Emanu-El
Dr. Amy Agbayani
Christopher Akana
Alani Apio, Hui Aloha volunteer
Shanty Sigrah Asher
Sonja Bigalke-Bannan, MSW, LSW
Twinkle Borge, Pu‘uhonua O Wai‘anae
Cathy Kawano-Ching, Hui Aloha volunteer
Samantha Church
Rev. Thomas J. FitzGerald, First Unitarian Church of Honolulu
Cecilia H. Fordham
Lieutenant Governor Josh Green
Clare Hanusz, Attorney-at-Law
Jen Jenkins, Community Co-Chair to the Department of Heath's Sex and Gender Minority Work Group
Darrah Kauhane, Executive Director of Project Vision Hawai‘i and Project Hiehie
John Kawamoto
Rynette Keen
Justin F. Kollar, Prosecuting Attorney - County of Kaua‘i
James Koshiba, Hui Aloha
Professor Linda Hamilton Krieger, University of Hawai‘i at Mānoa William S. Richardson School of Law
Charles R. Lawrence III, Prof. Emeritus, University of Hawai‘i at Mānoa William S. Richardson School of Law 
Professor Ken Lawson
Professor Mark A. Levin
Professor Justin Levinson
Professor Mari Matsuda
Diane Matsuura, Harris United Methodist Church
Patricia McManaman, Retired Attorney
Leʻa Minton, Certified Nurse-Midwife, MI-Home Program
Dee Nakamura
Deja Ostrowski, Medical-Legal Partnership for Children in Hawai‘i 
Professor Robert Perkinson
Kaimana Pine, Hui Aloha volunteer
Rosanna Prieto, MSW
Cheryl Prince, LCSW
Nathalie Rita, PhD Candidate
Dodie Rivera, MSN, RN
Darlene Rodrigues
Darcie Scharfenstein, Hui Aloha volunteer
Professor Nandita Sharma
Dina Shek, Medical-Legal Partnership for Children in Hawai‘i
Professor Avi Soifer
Chloe Stewart
Nicky S. Winter, Executive Director of ALEA Bridge
Summer Lee Yadao
Professor Eric Yamamoto, Fred T. Korematsu Professor of Law and Social Justice

Tuesday, August 04, 2020


Civil Rights Groups Call on Election Officials to Provide Appropriate Language Access to Hawaii Voters

The Hawaiian language, along with English, are the two official languages of the State of Hawaii. From most official communications, you’d never know it. The situation described in the press release below is typical of state and county government administration across the board, and needs to be remedied. Of course, there are other languages spoken in the state that need to be accommodated as well.

From the press release dated August 4, 2020:

The ACLU Foundation of Hawai'i, Common Cause Hawai'i and the Hawai'i Institute for Philippine Studies have called on Attorney General Clare Connors and election officials to provide appropriate language access to limited English proficient and Hawaiian language speaking voters with translated ballots and voting material as required by state law.

State law requires that state agencies and covered entities provide written translations of vital documents for each limited English proficient group that constitutes five per cent or one thousand, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered. The state also has an obligation to provide translations of voting material in the Hawaiian language as part of its obligation to ensure the revival of the Hawaiian language.

On O'ahu, there are roughly 44,700 Tagalog speakers (92.9% are 18 years and older), 38,700 Japanese speakers (88.7% are 18 years and older), 37,500 Ilokano speakers (93.4% are 18 years and older), 28,700 Chinese speakers (88.7% are 18 years and older), 17,700 Spanish speakers (85.1% are 18 years and older), there are also 17,800 Korean speakers and 9,400 Vietnamese speakers mostly situated in O'ahu.

Honolulu is presently providing translated materials upon request to Ilokano and Chinese speaking voters only.

In Maui and Kauai Counties, there are roughly 15,900 Ilokano speakers (91.4% are 18 years and older), 8,500 Tagalog speakers (92.9% are 18 years and older), 4,600 Spanish speakers (85.1% are 18 years and older), and 2,800 Japanese speakers (88.7%% are 18 years and older).

Maui and Kauai are not presently providing translated materials to anyone.

Statewide, of the 58,00 Ilokano speakers, 67.8% are citizens. Of the 58,000 Tagalog speakers, 78.9% are citizens. Of the 45,500 Japanese speakers, 73% are citizens. Of 29,600 Chinese speakers, 84.8% are citizens. Of the 26,200 Spanish speakers, 84.8% are citizens.

Finally, the counties have a moral and legal obligation to provide Hawaiian language translations of all voting materials. Last year, the Hawai'i Supreme Court recognized the state has an affirmative duty to revitalize the Hawaiian language.

"The cost of providing translated ballot materials incurs the most minimal costs to the elections budget. But without providing such materals, it extracts a great toll on society: the disenfranchisement of whole communities of voters," said attorney Lance D. Collins.

The groups are asking the attorney general to answer by August 18.

Wednesday, July 29, 2020


Tune in to the Grand Wailea Contested Case Hearings before the Maui Planning Commission

Intervenors stand up to protect the iwi kupuna of Maui

In 2018, the owners of the Grand Wailea Resort filed for permission from the Maui Planning Commission to remodel and expand the resort within a Special Management Area in Paeahu, Maui.

Three Native Hawaiian community groups - Mālama Kakanilua, Hoʻoponopono o Mākena and Pele Defense Fund - were granted a petition to intervene in the proceedings. The intervenors are taking on mega corporate hotel giant BRE-Iconic, which is part of the Blackstone group and controls many worldwide hotel properties including the Grand Wailea Resort. Between 1986 and 2009, the Department of Land and Natural Resources reported finding 344 burials on the Grand Wailea grounds in South Maui. These iwi kupuna (ancestral remains) were disturbed, crushed and "relocated" from the 40 acre parcel to make way for the mega luxury resort, and important cultural sites were also destroyed. The intervenors are fighting to stop further desecration that would happen if the Grand Wailea is allowed to remodel and expand.

The Maui Planning Commission appointed Maui attorney Linden Joesting as the Hearings Officer for the contested case. On May 7, Joesting issued an order denying that the proceedings were required to be open to the public, reaffirming an earlier decision that the proceedings move forward regardless of the COVID-19 emergency or the stay at home orders on the basis of needing to "get[] the administrative law work of the County done."

On May 19, media groups wrote to the hearings officer and the Chair of the Maui Planning Commission asking that the contested case be reopened to the public. But thereafter, another secret hearing occurred where the hearings officer made further rulings. Media organizations and journalists were left with no choice and lodged a Petition for Writ of Mandamus with the Hawai'i Supreme Court, seeking an order requiring the contested case proceedings be reopened to the public.

In July, the Hawai'i Supreme Court, in the case Disappeared News v. Maui Planning Commission, ordered the Maui Planning Commission to answer and explain why they closed the contested case proceedings to the press and public. Subsequently, the Maui Planning Commission reopened the hearings to the public, beginning this week.

The first session was held Tuesday, July 28th. In this hearing, Hearings Officer Joesting issued several summary judgments, prohibiting evidence on: shoreline certification issues or the location of the shoreline, environmental assessment issues in regard to the shoreline or perhaps entirely, future plans on traffic, water issues that do not pertain to meeting water system standards, and affordable housing.

The hearings now move on to the next phase, in which each side will be allotted 9.5 hours to present their cases. BRE will begin, starting on July 29th at 9 am. It is expected that the intervenors will present their witnesses on July 31st and August 3rd.

All media and the public is invited to watch these hearings on Zoom.

Upcoming Hearing Dates (all HST): *

07/29/2020 at 9:00 am
07/30/2020 at 8:30 am
07/31/2020 at 8:30 am
08/03/2020 at 10:00 am

Use this link to join the Zoom:
Zoom Webinar ID: 874 6578 6755

* Is the Zoom link not working? Contact Clare Apana at 808-214-4411

These start times are correct as of 07/28.


Ililani Media: Grand Wailea -- Zoom-Based Hawai`i Contested Case Proceeding is Underway

Please see the article by Henry Curtis here:

Grand Wailea -- Zoom-Based Hawai`i Contested Case Proceeding is Underway

Friday, July 24, 2020


Civil Rights Attorneys Call on Maui County to Address Voter Disenfranchisement Concerns

Via attorney Lance Collins:

Maui attorney Lance D. Collins, on behalf of unsheltered houseless registered voters, and the ACLU of Hawai'i are calling on the Maui election officials to address problems related to voter disenfranchisement concerns with the new voting system.

The County is implementing the new 'mail-in' voting system. For individuals who do not have a permanent address and are unable to obtain a post office box, the only service available to them is "general delivery." However, because of the limited resources of the postal service, an individual may only obtain "general delivery" for 30 days in any 12 month period. This forces such registered voters to choose between having a ballot delivered for the primary or for the general election, but not both.

The alternative is to go to the one voting service center in Maui, the Velma McWayne Santos Wailuku Community Center. For individuals of limited means, this puts a monetary cost to getting transported to the site that more affluent voters do not face. Additionally, for individuals in more remote areas such as East Maui, Kahikinui and Honokohau, where there is limited or no home mail delivery service, getting to Wailuku is also a significant burden.

The civil rights attorneys are calling on the County of Maui to open additional voting service centers in Hana and Lahaina as well as to waive the return trip fare on the Maui Bus for those registered voters in Central Maui, Upcountry, South Maui and Haiku/Paia who travel to voting service centers.

"The mail-in voting system has greatly simplified the logistics of our election system. Yet, the benefit of those efficiencies are nullified where rural and economically disadvantaged voters are deprived of their right to vote." said attorney Lance D. Collins.

Saturday, July 11, 2020


Just askin’: Is Hawaii’s longline fishing fleet taking steps to avoid the coronavirus?

by Larry Geller

Longline fishing boats are exactly the kind of confined space that promotes transmission of the coronavirus.

The fishing industry is depressed right now, so perhaps some ships are idled with no crew present. Those still out plying the waves seem potentially vulnerable.

Hawaii also has a special problem: the majority of its longline fleet is crewed by foreign fishermen illegally licensed contrary to state law HRS §189-5. State law restricts the issuance of commercial fishing licenses to persons “lawfully admitted to the United States”. Foreign fishermen working in the longline fishing industry are refused permission to land in the United States by Immigration and Customs Enforcement.

At the pier one can see a few boats docked and clusters of alien fishermen remaining on the boat decks.

Isn’t it time to send them home (with pay!) and let Hawaiians crew these ships as the economy recovers?

Wednesday, July 08, 2020


Without a fix to its technology, the Maui Planning Commission may once again lock the public out from its proceedings on the Grand Wailua contested case

by Larry Geller

The Maui News reported today that the:

Grand Wailea hearings open to the public

but the parties in Disappeared News vs. Maui Planning Commission are not satisfied that any member of the public wishing to participate will be able to do so. At the June 9 meeting their chosen videoconferencing system chocked and was unable to accommodate everyone seeking to log into the meeting. Unless the technological problems are overcome, many or most members of the public wishing to remotely attend future meetings may again be denied.

The way the BlueJeans system was administered at that meeting, members of the public could “bomb” the livestream with unwanted interference. Those who use other conference or webinar software such as the popular Zoom system are aware that a meeting can accommodate large numbers of attendees remotely with routine success. At this point in the CO-19 crisis, successfully running livestreamed meetings is not rocket science.

The Maui News reported:

The media groups “are of the position that the [Hawaii Supreme Court] order without more does not satisfy the Constitutional obligations of the commission,” [attorney Lance] Collins said in a July 2 letter to Lawrence Carnicelli, chairman of the Maui Planning Commission, and Michele McLean, director of the Planning Department.

Hearings could be streamed on YouTube with public interaction over WebEx. Akaku Maui Community Media, which broadcasts county board and commission meetings, also could be a resource.

(see earlier articles including:

Media group lawsuit succeeds in opening public access to contested case hearing over the Grand Wailea Resort's proposed expansion permit application )

The Maui Planning Commission agenda for July 14, 2020 lists Collins’ letter to the Commission under the heading “Communications” and indicates that “The Commission may take action with respect to the letter” but does not specify what that action might be or if any such action is planned for the July 14 meeting (in which case it should properly appear on the agenda).

See: this lWink for Maui Planning Commission agendas. According to the Sunshine Law, agendas must be posted six days before the meeting.

Saturday, July 04, 2020


Repost 2020: History that should not—and will not—disappear: July 4, 1894, illegal overthrow of Hawaii completed

President Cleveland further concluded that a "substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair" and called for the restoration of the Hawaiian monarchy.

by Larry Geller
Cannon on the steps of Iolani palace[3][6]

Cannon on the steps of the occupied Iolani Palace

On July 4, 1894, the Republic of Hawaii was declared, with Sanford B. Dole as president. The illegal overthrow of the independent nation of Hawaii was complete.
Yes, although your daily paper may want you to forget this, it is history that should not be ignored. There’s even a federal law confirming the truth of the history they refuse to print.
From the Apology Resolution, United States Public Law 103-150:
Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reported fully and accurately on the illegal acts of the conspirators, described such acts as an "act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress", and acknowledged that by such acts the government of a peaceful and friendly people was overthrown... President Cleveland further concluded that a "substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair" and called for the restoration of the Hawaiian monarchy.
Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.
A treaty of annexation was never passed by Congress, and President Grover Cleveland withdrew the treaty. Then on this day in history…
On July 4, 1894, the archipelago's new leaders responded to this rebuff by proclaiming a Republic of Hawaii, with Sanford Dole as president. Under its constitution, most legislators would be appointed rather than elected, and only men with savings and property would be eligible for public office. This all but excluded native Hawaiians from the government of their land… [From Overthrow, a book by Stephen Kinzer]
What was the motivation? Need you ask? Why is the US in Iraq?From the Washington Post review of Overthrow:
As Stephen Kinzer tells the story in Overthrow, America's century of regime changing began not in Iraq but Hawaii. Hawaii? Indeed. Kinzer explains that Hawaii's white haole minority -- in cahoots with the U.S. Navy, the White House and Washington's local representative -- conspired to remove Queen Liliuokalani from her throne in 1893 as a step toward annexing the islands. The haole plantation owners believed that by removing the queen (who planned to expand the rights of Hawaii's native majority) and making Hawaii part of the United States, they could get in on a lucrative but protected mainland sugar market. Ever wonder why free trade has such a bad name?
The road leading up to the declaration of the Republic of Hawaii was rocky, and can’t be summed up in a short blog article. Did you know, for example, that a US Senate investigation revealed that a bribe had been offered to Queen Liliuokalani to turn against her people and support the Republic? This snip is from a New York Times article on the Senate investigation, dated 1/29/1894:
The declaration of the Republic was not a single, static event. There was considerable debate in Congress on resolutions condemning the overthrow and proposed annexation. For example, this snip from the 1/25/1894 New York Times will give you an idea of the complexity that we lose in simplifying Hawaii’s history:
Each article is much longer than the snips above. It would be worthwhile to skim the New York Times for a complete account of the Congressional debate. No doubt this has already been done. If not, the articles are available on-line for the harvesting..
If you’re not familiar with Hawaiian history, beware of websites that work hard to re-write it. The true picture of the overthrow is not pretty, nor can the acts of the US government be justified or whitewashed. Google cautiously.
Let your children know that there is more to July 4 than barbeques and fireworks. It is a holiday that tears people apart here in Hawaii. See how you can work this history into your celebrations and festivities, so that it will never disappear.

Thursday, June 25, 2020


Media group lawsuit succeeds in opening public access to contested case hearing over the Grand Wailea Resort's proposed expansion permit application

by Larry Geller

The case of Disappeared News v. The Maui Planning Commission has resulted in an apparent victory for those insisting that open government rules be followed.

In an order sending the matter back to the Maui Planning Commission to obtain relief, the Hawai'i Supreme Court noted that: "the Planning Department, BRE, and Intervenors agree that public access should be provided to the contested hearing by the Planning Commission. It appears that the parties generally favor arranging for livestream or alternative means for the public to observe the proceedings."

"Without the intervention of the Hawaii Supreme Court, this case would have continued in the darkness of closed proceedings. We look forward to a formal announcement on how the public may observe the conduct of these proceedings." said attorney Lance D. Collins. He has requested that if the hearings officer does not reopen the proceedings officially that the matter be placed on the Maui Planning Commission's next meeting agenda, which is scheduled to occur before the rescheduled hearing date for the contested case.

If the Commission does not open its hearing, the parties are allowed to return to the Supreme Court for further relief.

In contention are also demands for recusal of the hearings officer. See:

Maui Planning Commission sneaks Hawaiian burial group’s motion onto agenda, hears arguments without allowing public testimony

For those wishing to take a deeper dive into the issues in the hearing, a trove of 36 documents is available for download here:

and a Civil Beat Law Center for the Public Interest post is here:

Sunday, June 21, 2020


Can 3D printed homes combat homelessness in Hawaii?

by Larry Geller

Hawaii’s economy was in bad shape for most of its residents even before the coronavirus crisis hit. Homelessness is the most visible symptom, but even those able to keep a roof over their heads were struggling. Young people fled to the Mainland where there were better paying jobs and a lower cost of housing and living. Housing is needed at all income levels, not just for those experiencing homelessness.

Homelessness was recognized as a crisis in the newspapers in 2003 or earlier. Yet here we are, 17 years later, and the crisis has only deepened. Gentrification has provided housing for the ultra-rich and for foreigners who live in Hawaii part time.

State and city government and the news media persist in defining the “affordable housing” needed variously up to 140% of Area Median Income while those who are homeless or on the verge of homelessness require housing at about 33% of AMI.

Despite the “calls for action” since 2003 there is still no plan to resolve the crisis of homelessness in Hawaii. Given soaring unemployment due to the coronavirus crisis we may experience a homelessness increase greater than that during the Great Depression.

Even without the virus, rents continue to spiral upwards as wages stagnate and costs of living here increase inexorably.

We are continually deceived by “solutions”. Housing First is proven to work but our leaders ignore this. Every so often a news article announces that some building or facility is to be purchased to house the homeless, but at the same time the failure of this approach to create the 20,000, 24,000 or whatever number of housing units are currently cited as needed is never noted.

Nor will the outrageously expensive Honolulu Rail project produce needed low-cost housing. Typically nearness to rail stations increases rather than decreases the cost of housing, and developers are not going to give up their profits for any just cause. Rather than “Transit Oriented Development (TOD)” we are more likely to get “Developer Oriented Transit (DOT)”.

Yet there are innovative solutions. I just want to thow this idea out as a possibility, not as a panacea. We are unable to innovate our way out of this housing crisis, but others are making small inroads. In the news recently is a way to build small homes rapidly for about $10,000 each. We would need plenty of these to make a dent on the need here. but still, perhaps it would help. Again, this will not be the solution because it is not a systemic remedy, does nothing about low wages or high cost of living, and would require more dedication to solving our problems than our state and county government have been willing to give. I just mention it so it won’t go unnoticed.

The title of this article is clickbait. If I write about homelessness no one will click. But here we go, you clicked, I reveal:

3D printed homes for families in need of shelter

Quality housing was built for a community of 50 families in Tabasco, Mexico, who are living on less than $3 a day. Perhaps we could make use of this technology in Hawaii as well.

Tuesday, June 16, 2020


Unclear on the concept? Maui developer files 36 exhibits exposing case to public scrutiny—the one they want to restrict from public view

by Larry Geller

The latest twist in the case of Disappeared News et al v. The Maui Planning Commission is a puzzler.

The plaintiffs, three media organizations, continue to argue that the Maui Planning Commission open its hearings to the public on the matter of the Grand Wailea Resorts proposed expansion.

The Developer continues to resist public access to the proceedings, yet yesterday, through its attorney, filed 36 documents with the Supreme Court that basically expose the underlying case (up to this point) to the public as well as to the Court. The docs may be almost the entire contested case record.

It’s not uncommon for those taking interest in a case to attend a public hearing, but most likely few will go beyond that to examine the written arguments.

The developer has provided a valuable public service. This is not the end of it, of course, but it is a surpising treat.

You can skim these documents yourself here:

As to why the developer would submit this many exhibits to the Court, one can only guess. It will be interesting to see how rapidly the Court issues a decision despite the barrage of reading material thrown before it.

For background, see recent articles below this one. For a video on the underlying issue before the commission, see this article.

For completeness, here are two documents that may not be generally available:

1. The Planning Director's original report to the Commission on the Application (which is not available online):

2. The original petition to intervene:

Also, this from the Civil Beat Law Center for the Public Interest:

Thursday, June 11, 2020


Maui Planning Commission sneaks Hawaiian burial group’s motion onto agenda, hears arguments without allowing public testimony

by Larry Geller

Maui Planning Commission, Chapter 201, Rules of Practice and Procedure

12-201-14 Meetings. (a) All meetings of the commission  shall be conducted in accord with the [rovisions of chapter 92, HRS, as amended.

(d) Except as provided in section 92-6, HRS, as amended,  the commission shall allow all interested persons an opportunity to  submit data, views, arguments or present testimony on any agenda

Sunshine law on agendas

With some exceptions, Section 92 HRS requires that:

No less than six calendar days prior to the meeting, the board shall post the notice on an electronic calendar on a website maintained by the State or the appropriate county and post a notice in the board’s office for public inspection

If the written public notice is electronically posted on an electronic calendar less than six calendar days before the meeting, the meeting shall be canceled as a matter of law and shall not be held.

Background articles on this issue:

Pandemic no excuse for government hostility to sunshine laws

Disappeared News part of media group seeking to open Maui Planning Commission deliberations to public scrutiny

The issue behind the Grand Wailea Resort contested case proceedings: desecration of sacred gravesites

Grand Wailea Resort redevelopment contested case proceedings

Hawaii Supreme Court orders Maui Planning Commission to answer petition on media access

The Maui Planning Commission appears to have violated both the Sunshine Law and its own rules by failing to give the public required notice of a hearing item.

By amending the agenda only two days before its hearing Tuesday on two motions filed by the intervening Hawaiian burial groups seeking to overrule rulings of the hearings officer and to recuse her, the Commission blindsided the public. Six days notice is required and expected. [See box at right]

Those who follow public meetings are used to checking six days before the meeting to learn what is on the agenda. If there’s nothing of interest, they may skip. Or they may be on the lookout, as in this instance, for notice that an item of interest to them will come up.

Two motions filed by Hawaiian burial groups seeking to overrule rulings of the hearings officer and to recuse her were entertained at this meeting. Since the motions for the Grand Wailea Resort expansion were not heard until around 4 p.m. in a meeting that started at 9 a.m., those who did not have the revised agenda in hand would not be expected to have endured the grueling proceedings that wore out even Commission members, who were down to only five men by the time the matter came up

The hearing on the motion

No public testimony was accepted for this agenda item.

The first motion involved the Hawaiian burial groups seeking to have the hearings officer recused for a long list of erroneous decisions and other decisions exceeding the authority of the hearings officer.

The argument by the groups was that this long list of errors demonstrated a pattern of prejudice against the groups or bias for the developer.

The Commissioners expressed concern and appeared troubled over specific individual decisions and sought assurances that everyone could, in fact, work together. There was extensive legal argument and at one point, the developer's attorney, Bill Meheula, and the Hawaiian group's attorney, Bianca Isaki, entered into a civil but direct legal debate which was eventually cut off by the Commission's attorney, deputy corporation counsel Michael Hopper, noting that the attorneys should be directing their statements to the chair and not each other.

It appeared that the Commissioners were putting the Hawaiian groups on one side and the hearing officer and developer together on the other. After going through a number of the individual decisions of the hearing officer and finding room for “compromise,” they denied the motion for lack of satisfying the burden of proof for recusal.

The denial appeared to leave an open question whether the Commission was suggesting that the hearing officer was being biased or prejudiced but not to the level of recusal. The motion was to recuse the hearing officer, but it may be that the five remaining commissioners were treating the hearing officer and developer as being part of the same side and available to “compromise.”

The commissioners then denied the second motion after hearing each side, having established that the hearing officer can still compromise with the Hawaiian burial groups. Commission Kawika Freitas did express continuing concern that the Hawaiian burial groups have not been treated fairly in the proceedings from the beginning although based on the assurances of the hearing officer that she would do better, voted with the others to deny the motion.

What next

Disappeared News and the other media groups’ petition for mandamus to reopen the proceedings was only briefly mentioned by the parties during the motions and the matter returns to the hearing officer with her still-standing order to keep the proceedings closed.

The Grand Wailea Resort's attorney was adamant that the proceedings’ decision to close them to the public was correct.

Documents associated with the two motions, which are available from links on the agenda, give a glimpse into what is going on behind closed doors.

Friday, June 05, 2020


Hawaii Supreme Court orders Maui Planning Commission to answer petition on media access

From the press release:

The Hawai'i Supreme Court has ordered the Maui Planning Commission to answer and explain why they have closed the Grand Wailea Resort redevelopment contested case proceedings to the press and public.

[See also: Disappeared News part of media group seeking to open Maui Planning Commission deliberations to public scrutiny and The issue behind the Grand Wailea Resort contested case proceedings: desecration of sacred gravesites ]

Media organizations and journalists, through their Maui attorney Lance D. Collins, have lodged a Petition for Writ of Mandamus with the Hawai'i Supreme Court seeking an order requiring the Maui Planning Commission's contested case proceedings related to the Grand Wailea Resorts proposed expansion be reopened the public.

The Grand Wailea Resort is seeking permission to remodel and expand its operations within the Special Management Area before the Maui Planning Commission.

Three Native Hawaiian community groups, Malama Kakanilua, Hooponopono o Makena and Pele Defense Fund were granted intervention in the proceedings and the Commission appointed Maui attorney Linden Joesting as the hearings officer.

On May 7, the hearings officer issued an order denying that the proceedings were required to be open to the public, reaffirming an earlier decision that the proceedings move forward regardless of the COVID-19 emergency or the stay at home orders on the basis of needing to "get[] the administrative law work of the County done."

On May 19, the media groups wrote to the hearings officer and the Chair of the Maui Planning Commission asking that the contested case be reopened to the public. Thereafter, another secret hearing occurred where the hearings officer made further rulings.

Relying upon First Amendment caselaw protecting the press' right to access adjudicative proceedings, the media groups have noted Hawaii's long tradition and experience of open access to contested case proceedings especially related to land use.

"We are hopefuly the Maui Planning Commission will reopen its proceedings in the public view and open to the press. This case is of particular interest to the general community and we look forward to the opportunity to cover the story," said journalist Victor Gregor Limon.

"The press and public have a constitutional right to observe and report on the conduct of their government," said the media groups attorney Lance D. Collins.

The case is Disappeared News et al v. Maui Planning Commission et al,

Wednesday, June 03, 2020


Press release: Maui Hawaiian and Environmental Groups Call on Mayor Victorino to Rescind Fast Tracking of Shoreline Development Approvals

Numerous Hawaiian and environmental groups are calling
on Mayor Victorino to rescind his "directive" to fast track shoreline
development approvals as being outside of his powers and otherwise illegal.

On May 30, Mayor Victorino issued a directive indicating certain
shoreline (Special Management Area or SMA) development approval requests
will be reviewed within fifteen days or be automatically approved.

The groups assert:

(1) that the Charter assigns no authority over the Special Management
Area to the mayor,
(2) that the governor's Eighth Supplemental Proclamation does not
authorize the mayor to take this action,
(3) that the governor's Eighth Supplemental Proclamation does not waive
provisions of the State Constitution related to the protection of the
environment, the public trust, or Hawaiian traditional rights - all of
which may be impacted by shoreline area uses, and
(4) that the governor's Eighth Supplemental Proclamation itself is

In sum, the directive lacks legal authority to do what it claims to

Ths Special Management Area was created by state law to implement the
federal Coastal Zone Management Act which is to protect the shoreline
and its adjacent waters. Under the Maui County Charter, the Maui
Planning Commission is the designated authority over all matters related
to the Coastal Zone Management Act. The Maui Planning Commission has
delegated some of its authority to the Planning Director by
administrative rule.

"These groups support County efforts to assist small, local businesses
deal with the impacts of COVID-19. On the the hand, the County do so in
a lawful way ensuring our resources and practices are given adequate
protection." said Lance D. Collins, the groups' attorney.

The Maui community groups are Ho‘oponopono o Mākena, Ka Malu o Kahālāwai
Mālama Kakanilua,  Nā Mamo Aloha ‘Āina o Honokōhau,  Nā Papa‘i Wawae
‘Ula‘ula, Save Olowalu, Sierra Club, Maui Group, and West Maui
Preservation Association.


* Why am I posting a press release? If a newspaper covers the story these days, it will largely be based on the press release. Perhaps they’ll check with Mayor Victorino, in this instance. If a mere blog checked with his office, likely there would be no response anyway. So for the moment, the press release is your best information.

Friday, May 22, 2020


The issue behind the Grand Wailea Resort contested case proceedings: desecration of sacred gravesites

by Larry Geller

Here is a short video explaining the issue behind the contested case hearing that the Maui Planning Commission wants to keep locked behind closed doors.

Also see: Media Groups Demand End to Closed Grand Wailea Resort Contested Case


Disappeared News part of media group seeking to open Maui Planning Commission deliberations to public scrutiny

by Larry Geller

A media group (including Disappeared News) has petitioned the Hawaii Supreme Court for a writ of mandamus to order the Maui Planning Commission to open its deliberations to the public in a contested case hearing. A writ of mandamus is an order from a court to a government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.

The Commission has ignored a written demand by the group that contested case proceedings related to the Grand Wailea Resorts proposed expansion be reopened to the public.

Petitioners seek a writ of mandamus directing the MAUI PLANNING COMMISSION and its HEARING OFFICER to open its proceedings in In the Matter of the Application for: BRE ICONIC GWR OWNER, LLC, Docket No. SM1 2018/0011 and to otherwise comply with the constitutional standards set forth in Oahu Publications Inc. v. Ahn before closing any contested case proceedings to the public...

A downside of the current coronavirus crisis is that it gives government boards and commissions the opportunity to feel they can flout constitutional or statutory requirements to conduct their business in the open.

The Maui Planning Commission is moving forward with a contested case hearing closed to the public.


Pandemic no excuse for government hostility to sunshine laws

The issue before the Maui Planning Commission is the request by the Grand Wailea Resort to remodel and expand its operations within the Special Management Area.

The public has a right to observe the discussion, the decision-making process, and any vote. To cloak actions of a board or commission in secrecy means that they do not want to be accountable to the public for their actions.

Download 20200521 Petition for Writ of Mandamus Re Maui Planning Commission from Disappeared News

Tuesday, May 19, 2020


Pandemic no excuse for government hostility to sunshine laws

by Larry Geller

“Information allows people to scrutinise the actions of a government and is the basis for proper, informed debate of those actions.” (The Public’s Right to Know: Principles on Freedom of Information Legislation,London, 1999, p. 1.)

The founding fathers recognized the connection between democratic government and an informed populace. George Washington, who suffered more than his share of criticism from the prq^, believed in the importance of the free exchange of ideas in a democracy. He once wrote that the process was necessary so Citizens at large may be well informed, and decide, with respect to public measures, upon a thorough knowledge of the facts. Concealment is a species of misinformation." (James E. Pollard, The Presidents and the Press, 1947, pp. 29-30)


Given the chance, many government boards, commissions and even the Hawaii State Legislature will take the opportunity to operate out of the public view. The current COVID-19 crisis coupled with Governor David Ige’s emergency proclamations have made it easier for government bodies to overstep their discretion in locking the public out of the public’s business.

This morning attorney Lance Collins submitted a written demand that the Maui Planning Commission's contested case proceedings related to the Grand Wailea Resorts proposed expansion be reopened to the public. Disappeared News  and The Hawai'i Independent are media organizations making this demand.

The issue before the Maui Planning Commission is the request by the Grand Wailea Resort to remodel and expand its operations within the Special Management Area.

Three Native Hawaiian community groups, Malama Kakanilua, Hooponopono o Makena and Pele Defense Fund were granted intervention in the proceedings and the Commission appointed Maui attorney Linden Joesting as the hearings officer.

On May 7, the hearings officer issued an order denying that the proceedings were required to be open to the public, reaffirming an earlier decision that the proceedings move forward regardless of the COVID-19 emergency or the stay at home orders on the basis of needing to "get the administrative law work of the County done."

Relying upon First Amendment caselaw protecting the press' right to access adjudicative proceedings, the media groups have also noted Hawaii's long tradition and experience of open access to contested case proceedings especially related to land use.

The letter includes these points:

“In summary, the Media demand that the proceedings for the above-mentioned contested case be re-opened to the public without qualification or delay. Article I, Section 4 of the Hawaii State Constitution and the First Amendment to the United States Constitution, as well as the requirements of the Charter of the County of Maui, impose upon the Maui Planning Commission and its hearings officers, an obligation to conduct contested case proceedings including prehearing conferences in a manner accessible the public and the press.”

Disappeared News feels that it is important to clarify that actions of government be completely transparent—and that the coronavirus crisis not be used as an “excuse” to deny the public its rights. There’s no question that government does have the ability and in the context of public health or national security and public order, or the rights of others like privacy, to impose some rules and limitations. But to place limits on the public’s right to see or participate in the actions of its government, the restrictions need to meet tests of necessity. The denial by the hearings officer does not meet standards of necessity.

Additionally, there is a long tradition and experience of open access to contested case proceedings especially related to land use.

"There has been a total disregard for the rights of the public and the press to access and observe this important case. We sincerely hope the Commission reconsiders this decision immediately," said journalist Victor Gregor Limon.

"This time of emergency does not justify government secrecy. The Resort is certainly not entitled to have their permits fast-tracked behind closed doors while public gatherings are banned and also excluding the press,"

Download 200519 Media Letter to Maui Planning Commission from Disappeared News

Monday, April 27, 2020


Life of the Land appeals denial of Kahuku Windmill motion

From today's press release:

Life of the Land filed a direct appeal to the Hawai'i Supreme Court on April 27 regarding the Public Utilities Commission's decision to deny its motion to void approvals related to the Kahuku windmills project.

Last September, Life of the Land filed a motion for relief with the Public Utilities Commission seeking to invalidate the approval of the Purchase Power Agreement between Hawaiian Electric and AES Corporation for the Na Pua Makani windmill project in Kahuku. Life of the Land argued that the project had failed to obtain site control within the approved timeline, that the Commission did not properly consider greenhouse gas emissions and that the cost for energy approved in 2016 was no longer reasonable or in the public interest.

On April 14, the Commission denied Life of the Land's motion arguing that it does not have jurisdiction to review previous approvals. Alternatively, the Commission ruled that the PUC approval empowered Hawaiian Electric and AES Corp to change to the terms of their approval without further PUC review or approval.

Life of the Land is seeking the high court's review for a number of procedural and substantive reasons. Most importantly, the Commission's decision is based upon the claim that the Commission can delegate the power to modify its approvals to private parties.

"The legislature has conferred broad power on the Commission to ensure that monopolies abide by the terms of their approvals. The Commission's self-limiting decision is erroneous and sets a dangerous precedent," said LOTL attorney Bianca Isaki.

"Delegating regulatory power to private developers to monitor themselves was rejected by the Hawai'i Supreme Court nearly forty years ago," said LOTL attorney Lance Collins.

Wednesday, April 15, 2020


Kahuku Mother Sues Board of Education over Secret, Closed-Door Meeting and Vote

This is a news release from attorney Lance Collins regarding action to remedy what appears to be a blatant refusal on the part of Hawaii's statewide Board of Education to follow the Sunshine Law.

Pending outcome of the court challenge, my comment would be that they very well understand the law. It's not as though this is an inexperienced board.

Kahuku, Oahu -- Sunny Unga, Kahuku resident and mother of public school
children, has filed suit against the Board of Education for holding a
secret, closed door meeting last February, that resulted in denying her
petition for rulemaking, violating the state Sunshine Law.

In January, Ms. Unga petitioned the Board of Education to adopt a new
rule that requires schools and libraries to hold a community meeting
before providing official comments regarding development projects
proposed within five miles of a school or library.

The petition came after it was discovered the Department of Education
raised no concerns about the close proximity of proposed windmills to
Kahuku Elementary -- other than "student will hear the windmills" -- in
its official comment for the Na Pua Makani windwill EIS.

Within weeks of receiving the official petition, the Board of Education
held a secret meeting behind closed doors where they deliberated and
voted to deny the petition. The Board did not provide notice of the
meeting to the public nor did it allow the public the opportunity to
testify before they made their decision.

After the Board held its secret meeting, they informed Ms. Unga that
they had denied her petition.

The Board admits they did not provide notice of the meeting and failed
to provide the public with notice of their decision. The Board instead
argues that it was allowed to pass an administrative rule which exempted
itself from the requirements of the Sunshine Law.

Ms. Unga is asking the First Circuit Court to void the Board's action
denying her petition, to require the Board to consider her petition at a
public meeting, and to invalidate the Board's rule attempting to exempt
itself from the Sunshine Law.

"The community asked the Board to consider transparency in Department of
Education decision-making regarding proposed developments around schools
and libraries. Sadly, the Board chose to reject it in a secret,
closed-door meeting," said Ms. Unga's attorney Bianca Isaki.

"The Sunshine Law is to ensure that the formation of public policy is
done in the open. No agency has the power to adopt a rule that exempts
itself from this mandate," said Ms. Unga's attorney Lance D. Collins.

Monday, April 06, 2020


Governor Ige's suspension of Hawaii's "Sunshine Law" during COVID-19 crisis does not allow gov't to hold secret meetings

Boards, commissions and city councils may believe the Governor's suspension of 92F allows them to hold meetings or keep records out of the public view. Not so.

Hawaii public interest attorney Lance Collins writes that although Hawaii's Gov. Ige suspended state law Chapter 92F, Haw. Rev. Statutes, "that provides a uniform procedure by which a member of the public may inspect and copy a government record as well as protect personal information," he points out that "It does not establish the right of members of the public to inspect and copy such records and it does not independently establish a duty of an agency to provide access. Those rights and duties are established by several constitutional provisions, the Charter as well as the common law."

Although Collins' letter references the Maui County Charter, he found the same basic provisions in the charters of each Hawaii county:

County of Hawai'i Charter
Section 10-3(d) Proposed Budget and Message Public Record
Section 10-4 Public Hearing on Operating and Capital Budget
Section 10-7 Budget Public Record
Section 13-20(a) County Records are Open to Public Inspection
Section 13-20(b) Council, Board and Commissions Meetings Open to Public

City and County of Honolulu Charter
Section 3-107(8) Council Meetings Open to the Public
Section 3-404(3) Ordinances Require Three Readings Including a Public
Section 7-110 Public Hearings on Fixing/Adjusting Rates/Proposed Budget
of Board of Water Supply
Section 9-104(1) Council required to hold public hearing on proposed
city budget(s)
Section 13-105 Records Open to the Public
Section 13-106 Public Hearings; Notice Requirements
Section 17-107 Public Hearing on Proposed Budget of Public Transit Authority

County of Kauai Charter
Section 3.07(E) Council and Committee Meetings Open to the Public
Section 19.07(A) Proposed Budget Subject to Council Public hearing(s)
Section 23.08(A) County Records Open to Public Inspection
Section 23.08(B) Board and Commission Meetings Open to Public
Section 30.03(F) Electric Cooperative Board Meetings Open to Public

Download Open Government Requirements During Emergency from Disappeared News


Friday, February 28, 2020


Mauna Kea donors seek Supreme Court protection from Attorney General subpoenas

Here's a press release. Yes, we're willing to post press releases. It's what you'll get in the media anyway, but warped a bit.

Mauna Kea Donors Seek Supreme Court Protection from Attorney General

February 28, 2020

HONOLULU - Donors to non-profit organizations supporting Mauna Kea
protectors have filed an original proceeding in the Hawai'i Supreme
Court seeking to protect their identities from being obtained by the
Attorney General.

    Last year, the Attorney General issued several subpoenas to the
Office of Hawaiian Affairs, Hawaiian Airlines and First Hawaiian Bank
for records related to activities supporting public demonstrations
opposed to further development of Mauna Kea.

     The Attorney General's subpoena to First Hawaiian Bank sought to
obtain banking records of KAHEA, one of the non-profit organizations
that has supported those demonstrating for Mauna Kea. KAHEA sought a
circuit court order to stop the subpoena which was partially granted but
partially denied. Circuit Court Judge James Ashford ordered First
Hawaiian Bank to produce some of KAHEA's banking records. The records
that are to be produced will reveal the identity of the donors.

     The donors argue enforcing the subpoena will violate their
constitutional right to privacy and freedom of association by disclosing
their identities and financial contributions to KAHEA.

     The donors' attorney Bianca Isaki said, “The attorney general has
overstepped her powers by targeting those who support the Mauna Kea
demonstrators. The donors’ assertion of their rights seeks to halt this
unprecedented overreach by government into community organizing.”

     The donors' other attorney Lance D. Collins said, "The Attorney
General is bound by the constitution to obtain a warrant when seeking
evidence in a criminal investigation. She can't get around the lack of
probable cause by issuing administrative subpoenas under bureaucratic

     The Supreme Court will first decide whether Judge Ashford or Clare
Connors should answer the petition. A hearing date would be set after
the answers are filed.

- 30 -

Lance D. Collins

Monday, January 27, 2020


Johan Galtung’s view from Europe: A Multipolar Future of Regional Civilizations, U.S. May Divide in Two

Johan Galtung: A Multipolar Future of Regional Civilizations, U.S. May Divide in Two


21 Jan 2020 – Dr. Johan Galtung discusses his view of the future of the world and U.S. empire. He believes we’re moving into a peaceful multipolar world composed of regional civilizations, but not quite attaining “one world”. He sees Islam returning with a vengeance and the U.S. possibly splitting or dividing into two parts.

(Download MP3 here)

Johan Galtung, a professor of peace studies, dr hc mult, is founder of TRANSCEND International and rector of TRANSCEND Peace University. He was awarded among others the 1987 Right Livelihood Award, known as the Alternative Nobel Peace Prize. Galtung has mediated in over 150 conflicts in more than 150 countries, and written more than 170 books on peace and related issues, 96 as the sole author. More than 40 have been translated to other languages, including 50 Years-100 Peace and Conflict Perspectives published by TRANSCEND University Press. His book, Transcend and Transform, was translated to 25 languages. He has published more than 1700 articles and book chapters and over 500 Editorials for TRANSCEND Media Service. More information about Prof. Galtung and all of his publications can be found at

Wednesday, October 02, 2019


Did you know you can weigh in on Caldwell’s $772 million splurge on replacing the Blaisdell Arena, a war memorial? Be quick, though

The information below is provided by @BlaisdellMemorl .

The City is planning to replace Blaisdell Arena, a building eligible for the State and National Historic Register of Historic Places, and the public can submit comment now to the State Historic Preservation Department (SHPD), but you wouldn't know that from following the news. These consultation periods are not generally considered newsworthy subjects, but it is an important way for the public to weigh in on proposed changes to any historic site in Hawaii.

The final Environmental Assessment for the $772 million Blaisdell Center redevelopment project plans to retain the arena's exterior while replacing and modernizing the interior, stating no significant impact on this historic site. Now the City plans to demolish and replace the arena's interior AND exterior. If addition of a two-story dressing room in 2013 can be determined as affecting the historic arena, surely gutting it to the rafters does.

Historic Hawaii Foundation's comments on the draft EA disagreed with the proposed finding of "no significant impact". Historic preservation practices state that historic features should be repaired instead of replaced. Destroying the historic character of Blaisdell Arena would certainly affect this historic property, which is inconsistent with the EA's findings of no significant impact. The City isn't even following their own rules.

This is where the SHPD consultation comes in. Anyone can comment on projects involving historic sites for 30 days after the project is published on SHPD's website. They published 2 projects on Blaisdell Center but didn't say what either project is about. It's rather hard to comment on a project when you don't know what it is, and as of this writing the state still has not offered a description. One likely addresses the historic architecture. The comment period for the earliest project ends on Saturday Oct 5, the latter on Oct 19.

Blaisdell Arena is a well known and recognizable building. You see it flying in and out of Honolulu. Post an image on any history of Hawaii Facebook page and you'll get hundreds of comments. Do the same 1 month later and you'll get hundreds more. Historic buildings are architectural kupuna, they have stories to tell, if you treat them right.

To often in Hawaii people don't rally to support an historic site until the demolition crew shows up. See Sherwoods. Of course, it's difficult for people to follow projects threatening their favorite historic site when most in this state are struggling just to keep a roof over their head.

Navigating the City's convoluted logic of "no significant impact" on an historic building that they plan to demolish while dealing with the state's obtuseness on what projects are actually up for consultation can be soul crushing. No wonder so many throw up their hands and walk away. It's almost easier to protest. See Sherwoods again.

But here is a chance to make a difference when it counts.

If you want to preserve Blaisdell Arena, email SHPD at the addresses below and tell them this historic site is too significant to lose. Retaining the historic character of this building's exterior is possible while still updating the interior. Do this by Oct 5. Or by Oct 19. Who knows

State Historic Preservation Division
Alan Downer, Administrator
601 Kamokila Boulevard, Rm 555
Kapolei, Hawaii 96707-2037

Tanya Gumapac-McGuire, Acting Architecture Branch Chief

Friday, June 21, 2019


Community group opposes use by Hawaii gov't of LRAD device they secretly purchased

These devices don't belong in Hawaii. They can cause permant hearing loss and injury.
From the press release:

HONOLULU, HAWAI‘I - On June 21, 2019, KAHEA: The Hawaiian-Environmental Alliance, through its attorney Lance D. Collins, wrote to Suzanne Case, Chair of the Department of Land and Natural Resources (DLNR) requesting her to publicly renounce the use of its recently procured Long Range Acoustic Device (LRAD), commonly referred to as a “sound cannon.”
    LRADs were developed by military contractors after the bombing of the USS Cole. LRADs are pain inflicting weapons used by the U.S. military to suppress close-range attacks on Navy warships. When mounted aboard a Navy ship, the “area denial” feature emits a “sound at a dangerously high level . . . to cause pain/hearing damage” as well as “repel” an attack on a warship by combatants.
    Individuals immediately lose balance, experience nausea, dizziness and lack of control over bodily movement. The use of LRAD as a deterrent or dispersant of nonviolent, noncombatant civilians has caused serious and many times permanent bodily injury in a number of cases across the United States since certain law enforcement agencies began using them on noncombatants.
    KAHEA’s attorney pointed to state, federal, and international law provisions under which use of the LRAD against nonviolent demonstrators is unlawful.  “Under federal constitution law,” KAHEA wrote, “the use of this military weapon (the 100X model specifically procured by you) in a manner capable of causing serious and permanent bodily injury to move non-violent demonstrators ‘violates the Fourteenth Amendment under clearly established law.’”
    According to DLNR documents, its LRAD contract is from June 15, 2019 to December 19, 2019 and the justification for the approximately $15,000 purchase of the device is for natural disaster warnings.  KAHEA’s letter, however, notes that an LRAD device was first observed in DLNR officers’ possession during demonstrations on Haleakalā last year and was confirmed only after multiple open records requests by KAHEA were denied.
    KAHEA’s letter requests Case to “immediately and publicly renounce the use of these military weapons against civilian noncombatants seeking to protect natural resources and historic properties anywhere within your department's jurisdiction” and promises to seek the protection of the courts if no such action is taken.



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