The core of Hawaii's culture is dangerously at risk . . . we are not the mainland
The politics -- union and otherwise -- behind the likes of a sustained Underwood tenure in State of Hawaii offices are every reason why we had the devastating Lahaina disaster response
We at HON are still reeling from the news about Maui. We extend our deepest sympathies and condolences to the victims of this horrible disaster. Katherine Lindell, editor
HON now has more than 18,000 subscribers (subscribe)
-opinion-
The DLNR's Ed Underwood is no stranger to perversion. The recent revelation that Mr. Underwood had been dallying with female co-workers in a State of Hawaii DLNR office is now common knowledge. But the sexual harassment/sexual abuse allegations lodged against him are really just the tip of the iceberg. Mr. Underwood has a long history of abuse and retaliation complaints coupled with disastrously terrible management skills that have all but brought down the state's public harbor system. The politics -- union and otherwise -- behind the likes of a sustained Underwood tenure in State of Hawaii offices are every reason why we had the devastating Lahaina disaster response with so much loss of life and property.
Underwood's latest antics now include an attempt to end-run the state's legislature and use his access to the DLNR board to pass rules that will cancel the the community that has made the iconic parking area at Bowls a decades-long meeting place.
This has nothing to do with generating revenue. Underwood has had a multitude of opportunities to demonstrate to Hawaii's taxpayers that he could generate positive cash flow from the 14 state marinas that are under his control. Sadly, losses resulting from dozens upon dozens of chronically unleased slips and poorly thought through third-party contractor deals continue to pile up at taxpayer and boater expense.
Now, in a last ditch effort to make himself appear fiscally responsible, he is proposing to take away the free parking stalls at Bowls, as if, magically, this will recoup the millions of lost dollars per year resulting from Underwood's beleaguered history of bungling and mismanagement.
An upcoming DLNR board hearing at 9:15 AM on this Thursday, November 9, 2023 (UPDATE: THIS HEARING HAS BEEN CANCELLED DUE TO SUNSHINE LAW VIOLATIONS), will ask for an approval to transform the above mentioned parking area into a pay-only-under-threat-of-tow parking lot. The effect will be immediate and disastrous as this is not just a parking lot, it has been a local community meeting place for nearly 3/4 of a century. To yank this out from under the surfers and boaters who come here daily is but another in a long list of DLNR in-your-face negative aggressions against the ocean recreation community.
As we will see in the testimony reprinted below, the Public Trust Doctrine established by supreme court and lower court rulings over a period of decades specifically forbids transforming public access properties into what amounts to privatized money factories .
Native Hawaiian, sailor, and Bowls surfer regular, Sam Monet, says it best in his testimony (to be submitted this Thursday):
To: The Board of Land and Natural Resources
Re: J-7 Public Testimony at Oahu Land Board hearing November 9, 2023
Oppose DLNR plan to terminate “Free” parking at Ala Wai Small Boat Harbor and public beach
I am a native Hawaiian, surfer and sailor who has been surfing at Ala Moana, in the ahupua’a Waikiki for over 60 years. I would like to testify at that meeting.
In March 2023 the Hawaii Legislature tabled a bill to convert the FREE Parking at Ala Wai Harbor to paid parking. DLNR is now attempting an end run at the Land Board.
[The] AWSBH [Ala Wai Small Boat Harbor] has served as a hub for tourists, recreational boating and fishing, surfing, sailing and beach goers, a legal home for some to ease Hawaii’s homeless problem, and a popular spot for paddling, surfing competitions and Friday night fireworks.
It is the last place in Waikiki where local people, our children and families can come to a beach in Waikiki where we can park FREE, Manuahi.
In addition, under this plan, local surfers will be forced to park at Ala Moana park where parking is FREE, they would then need to paddle across the Ala Wai canal and boat harbor entrance where a steady stream of commercial boats, canoes, private fishing and sail boats transit; water pollution and many recent shark sightings make that paddle extremely dangerous for parents and their kids.
In meeting at AWSBH in March 2023, State of Hawaii DLNR administrator, sexual predator Ed Underwood declared that “the public will no longer get 300 free parking at Ala Wai Small Boat Harbor (AWSBH); but instead will have to pay for approximately 150 stalls in his new “paid parking” plan, and “overflow must instead park outside the harbor at the city’s Ala Moana park”; because as he said “nothing is free”.
In addition, when questioned about the danger to surfers paddling across from the Park, Underwood callously stated, “that is not my problem”.
Native Hawaiian Dawn Chang should be ashamed for allowing her agency to manipulate this Board to do the wrong thing against the people of Hawaii.
[Public access to] 300 plus FREE parking stalls at AWSBH is a matter of law. The State of Hawaii is prohibited from terminating free public parking at the AWSBH under the public trust doctrine and various legal precedents.
In addition native Hawaiians who before the overthrow of the Hawaiian Monarchy in 1890s, traditionally, historically and currently parked “free” manuahi at AWSBH with access through what is now called Kahanamoku Lane to the beach and ocean to dive, fish, pick limu and opihi, surf, paddle canoe, sail and otherwise utilize the beach and ocean for customary rights for subsistence, to practice their native Hawaiian religion and culture, secured by federal and state Constitution and law.
Because AWSBH is a navigable waterway, was developed by the Army Corps of Engineers, is maintained in part with millions of dollars of federal funds and the issues are federal questions, Federal court has jurisdiction.
First, the public trust doctrine requires that certain natural resources and assets, including navigable waters, the water and submerged lands, be held in trust by the government for the benefit of the public. As a public trust asset, the AWSBH is subject to this doctrine and must be managed in a manner that preserves and enhances public access and use.
Termination of free public parking would directly limit native Hawaiian and the public's historic and as stated in its development plans, funding and construction, ability to access and use this asset, and therefore violates the public trust doctrine.
Second, the Ninth Circuit Court of Appeals has held that the public trust doctrine applies to navigable waters and adjacent lands, including public beaches and parking areas. In Hawaii's Thousand Friends v. Anderson, 374 F.3d 668 (9th Cir. 2004), the court affirmed that the public trust doctrine requires the State of Hawaii to manage its public trust resources in a manner that prioritizes public access and use, and prohibits the state from privatizing or otherwise transferring control over these resources to private parties.
Third, the Hawaii Supreme Court has also recognized the importance of public access and use in managing public trust resources. In Diamond v. Dobbin, 319 P.3d 1017 (Haw. 2014), the court held that the State of Hawaii had violated the public trust doctrine by granting a private developer exclusive use of a public beach, thereby limiting public access and use. The court reaffirmed the public's right to access and use public trust resources and held that the state has a duty to manage these resources for the benefit of the public.
Fourth, the State of Hawaii has a legal obligation to provide adequate public access and use of public trust assets under state and federal law. For example, under the Americans with Disabilities Act, the state is required to provide accessible parking spaces and other accommodations to ensure that individuals with disabilities have equal access to public facilities.
Finally, Hawaiian rights are broadly defined in Article 12, Section 7 of the Hawaii Constitution, Hawaii Revised Statutes Section 1-1, and Hawaii Revised Statutes Section 7-1. These provisions commonly refer to the right of Hawaiians to exercise their traditional and customary rights for subsistence, cultural, and religious purposes, subject to the right of the State to regulate such rights.
State’s rights to regulate have been narrowly defined by federal and state supreme court and lower court decisions. In State Supreme Court’s 1995 decision in PASH v. Hawaii County Planning Commission, 79 Hawaii 425, 903 P.2nd 1246 (1995) cert. denied, 517 U.S. 1163 (1996); the Court stated: “[T]he State is obligated to protect the reasonable exercise of customarily and traditionally exercised rights of Hawaiians to the extent feasible.”
In the Waiahole Ditch Contested Case, the Courts confirmed that traditional and cultural native Hawaiian rights shall not be diminished or extinguished by a failure to apply for or to receive a permit.
PASH, Kapa’akai, and Waiahole, require governmental entities to not only define the traditional and customary rights affected by any proposed action but also to render findings on the impacts and mitigation necessary to lessen the impact on the exercise of these rights by Hawaiians.
The State of Hawaii cannot terminate ANY free public parking at the Ala Wai Small Boat Harbor without violating the public trust doctrine and various legal precedents that prioritize public access and use of public trust resources. Any attempt to restrict public access to and enjoyment of AWSBH would be contrary to the state's legal obligations and could end up in a federal court, confirmation and an award for (class action) Plaintiffs.
Sam Monet
Hawaii's public is strongly encouraged to attend this hearing and/or submit testimony:
(UPDATE: THIS HEARING HAS BEEN CANCELLED DUE TO SUNSHINE LAW VIOLATIONS)
The following has just been received from the Board of Land and Natural Resources:
Aloha,
Due to the Office of Information and Practices (OIP) interpretation of the agenda the meeting has been canceled.
I am very sorry for any inconvenience that has caused and will send out a notice when these items on the agenda will be rescheduled.
Mahalo for your patience and understanding as we work with OIP.
Darlene Ferreira
Secretary
Board of Land and Natural Resources
Department of Land and Natural Resources
Office: 808.587.0404
Cell: 808.291.1197
Email: Darlene.S.Ferreira@Hawaii.gov
https://www.mauinuistrong.info/
DATE: Thursday, November 9, 2023 (CANCELLED!)
TIME: 9:15 AM
LOCATION: In person at the DLNR Boardroom, Kalanimoku
Building, 1151 Punchbowl St., Room 132,
(& online via ZOOM, livestream via YouTube) see below links
From the DLNR agenda web page:
DAWN N.S. CHANG
DLNR CHAIRPERSON
These are the board members, by name, who will be voting on this measure:
- Dawn N. S. Chang, Chairperson, term: 1/1/2023 – 12/31/2026.
- Riley Smith, Hawai'i Island Member, term: 7/1/2022 – 6/30/2026.
- Doreen Nāpua Canto, Maui Nui Member, term: 7/1/2021 – 6/30/2025.
- Karen Ono, Kaua'i Member, term: 7/1/2020 – 6/30/2024 (began service 5/1/2022)
This public meeting will be held using interactive conference technology in accordance with section 92-
3.7, Haw. Rev. Stat. (HRS).
Board members, staff, applicants, testifiers, and the public can choose to
participate in person, online via Zoom, or by telephone.
Meeting materials are available for public review in advance of the meeting at:
http://www.dlnr.hawaii.gov/meetings
The meeting will be livestreamed at:
http://youtube.com/c/boardoflandandnaturalresourcesdlnr
To Provide Written Testimony:
Interested persons can submit written testimony in advance of each meeting that will be distributed to Board Members prior to the meeting. Submit written testimony to blnr.testimony@hawaii.gov or via postal mail to the Board of Land and Natural Resources at P.O. Box 621, Honolulu, Hawaii 96809. We request written testimony be submitted no later than 24 hours prior to the meeting to ensure time for Board Member review.
Late written testimony will be retained as part of the record and distributed to Board Members as soon as practicable, but we cannot ensure that Board Members will receive it with sufficient time for review prior to decision-making.
To provide in-person testimony (Masks are encouraged):
Attend live at 1151 Punchbowl St. Room 132 (Kalanimoku Building), Honolulu, Hawaii.
(Note: Testimony may be limited)
To provide oral testimony by telephone: : +1 669 444-9171; Meeting ID: 893 0710 9294
Note: To unmute, press *6. Note: All phone in and day of requests depends on whether they can be accommodated in sufficient time before the item has been addressed by the Board; kindly note that due to meeting constraints only timely testimony can be addressed.
The Board may go into Executive Session pursuant to section 92-5(a)(4), HRS, in order to consult with its attorney on questions and issues pertaining to the Board's powers, duties, privileges, immunities, and liabilities.
If you need an auxiliary aid/service or other accommodation due to a disability, please contact Darlene, BLNR Secretary, at 808.587.0404 or blnr.testimony@hawaii.gov as soon as possible. Requests made as early as possible have a greater likelihood of being fulfilled. Upon request, this agenda and other materials are available in alternate/accessible formats.
In some of the matters before the Board, a person may wish to request a contested case hearing. If such a request is made before the Board's decision, then the Board will consider the request first - before considering the merits of the item before it.
A person who wants a contested case may also wait until the Board decides the issue, then request the contested case after the decision. It is up to you. Any request must be made in writing within ten days. If no request for contested case is made, the Board will make a decision. The Department will treat the decision as final and proceed accordingly.