Letter to Hawaii's AG Asks for Immediate Investigation into Possible Illegal Collusion
An open letter to Hawaii's Attorney General, Clare Connors
Aloha Attorney General Connors,
We would like to begin by fulfilling a promise that we made to you regarding an error in one of our previous posts about your alleged involvement in the initial review of the Chapter 13-234 rules package proposal. We now understand that the legal review in question occurred during Russell Suzuki's tenure. As promised, we have since taken down that post and have deleted any reference to it anywhere on our Hawaii Ocean News website and on our social media sites. We also promised to tender a formal apology in an "upcoming" post. This will now serve as that post. We are, indeed, truly sorry for our mistake.
In our defense, the error, an honest one, was dictated by circumstance. To anyone in the State of Hawaii who has anxiously applied for a permit and has had to rely on State procedural timelines, it might appear shocking that this rules package has achieved uncharacteristically swift timeline/approval processing.
By way of a brief history: On two previous occasions, §13-234 had been deferred/rejected by the BLNR and, on a third attempt, the very same document, with the very same wording, barely found approval on Dec 7th, 2018. That was on a Friday, mid-day, during the Thanksgiving/Christmas/New Year’s holiday season, when employees are more worried about gifting obligations than the drill at work. After approval, this document then finds its way from the BLNR dais on December 7th, to the AG's office, that very same day, in something that could only be described as warp speed, by Hawaii standards. Your deputy attorney general then reads this voluminous document, word-for-word, carefully vetting for legal problems, and by that following Monday morning, December 10th, the document is sitting on the Governor's desk waiting for his perusal. One must then assume that the Governor, having nothing better to do that day, immediately took up the task of reviewing, word-for-word, the rules package. Miraculously, the DLNR had this very same document back in their hands well before Christmas break and well before January 3rd, the day of your appointment to the AG post, ready for public hearing scheduling. Interesting.
It was hard for us, or anyone we've talked to, to imagine that this document, during its preliminary review process timeline, wouldn't have crossed the threshold into your tenure. However, the reporting mistake was ours, and our apologies are tendered.
Legally Troubling Transparency Issues That Stoke Questions About the Need for an Investigation into Illegal Collusion Between Private Interests and Certain Senators and DLNR/DoBOR Operatives
First of all, the entire 13-234 rules packet proposal is contrived, arbitrary and capricious, and is a dishonest attempt to distract public attention away from the central focus at DLNR/DoBOR, one that seeks to privatize ocean recreation public assets. To wit:
While DoBOR's website states that fee increases are necessary because "due to funding constraints and funding priorities, DoBOR is unable to keep up with its backlog of deferred maintenance projects" (https://dlnr.hawaii.gov/dobor/proposed-fee-increase/), DoBOR actually has no intention of performing any deferred maintenance projects using increased slip fees.
Rather, DoBOR's "Strategic Plan 2019" (hereinafter, the "Plan") states that DoBOR will be selecting "private entities with which to partner and issue them long-term leases to attract funds for improvement projects. The selected companies will perform harbor management, maintenance, and improvement project tasks under the division's supervision." (see Plan at 20, available at https://drive.google.com/file/d/19Q4033OhixrFBXaFcOWifzpp3if16dMs/view). Under the Plan, the companies that are "selected" by DoBOR will generate revenue by development of fast lands within the Harbors, which DoBOR states "have immense commercial development potential to attract greater foot traffic in harbor areas and yield higher income to the State." Plan at 11. DoBOR states that a public private partnership of this sort will bring in "capital for much-needed infrastructure development, optimized revenue to honor the public interest, and freed up resources to allocate towards other needs, advantages that Hawai'i direly needs." Plan at 13.
It is therefore clear that DoBOR's purpose in raising fees for harbor users is not to increase funds "to keep up with its backlog of deferred maintenance projects" as it claims, but instead to drive tenants out to make room for commercial development. Given that mooring permits and especially live-aboard permits are constitutionally protected property for Due Process purposes (Brown v. Thompson, 91 Hawai`i 1, 11, 979 P.2d 586, 596 (1999) ("a mooring or live-aboard permit constitutes a constitutionally protected property interest"), the Courts will certainly take a hard look at rules that, when taken in context of DoBOR's concurrent actions, appear solely intended to drive out tenants under the guise of funding "deferred maintenance."
Demand for Investigation
Right now, there are ten million visitors per year that come to Hawaii to spend money in our tourism industry. There is a huge amount of money at stake for private interests who are successful in obtaining the State’s blessing to control public lands and assets. Once a precedent has been established, private interests could then expect ongoing, highly profitable, visitor enterprise to continue indefinitely into the future.
The stakes are too high for these latter private interests to fail in their bid for privatization. Because of this, and because of the suspicious nature of the effort by State operatives in the form of: their unnatural level of persistence in their pursuit of the privatization option; their utilization of deception and deceit to deflect public participation and awareness away from their main focus, which clearly seems to be privatization; and, what appears to be, a pattern of deliberately ignoring the volumes of public testimony with nagging questions about the DLNR’s deliberate neglect of harbor properties (in anticipation of a private takeover). The evidence continues to mount, and, at this juncture, we have no other choice but to demand that your office launch, at the earliest possible time, a full investigation into possible illegal collusion between State of Hawaii operatives and representatives of private interests who may be petitioning for leasehold of public lands and assets.
Regarding: Some of the legally questionable sections that should have been flagged in §13-234 by the AG’s office on the preliminary go-around
Your deputy attorneys general in your Land/Transportation Division may now have on their desk, or will soon have, a copy of a possibly updated and final version of the Chapter 13-234 rules package, submitted to them by the Department of Land and Natural Resources. If the document has been updated, it does not yet appear to be available. If you have a copy of the updated version, we would like a copy. Thank you.
We have submitted to your office, on at least two occasions, a copy of our observations detailing the legally objectionable and ethically contentious verbiage contained within this rules package, with a request that these latter sections of 13-234 be reworded so as to transparently and truthfully communicate the fee-for-services/facilities usage content.
As noted previously, the document, in its current form, openly and unabashedly lies to the public in an attempt to rationalize additional fees. Here, specifically, are some of the sections containing misleading verbiage; this cross-section of examples, by no means, represents all of the deceit embodied in this document:
- 13-234-10: Would have the public believe that they will be charged for "use" of the electricity at their non-HECO monitored/metered outlet at their pier, creating the illusion that tenants will pay for electricity on a consumption basis. In actual fact, there is no way to know how much or how little electricity is being "used" simply because there is no mechanism in place to monitor for that "usage." Historically, electrical charges at non-HECO monitored slips have always, without exception, been flat-rate, regardless of "usage." This version of 13-234 will demand that harbor tenants pay a 1000% increase in fees for the consumption or "use" of electricity at their pier, when, in fact, the fee will be levied as flat-rate for simply having access to a plug.
a) §13-234-10: DoBOR has informed us, in writing, that the revenue collected from non-HECO monitored tenants would be used to pay for personal electrical usage and also facility infrastructure electrical usage. Vessels on HECO-monitored electrical outlets in the same harbor: 1) pay only for the electricity that they actually consume personally, and 2) do not have the cost of harbor infrastructure usage buried in their rate fee. Based on this fact alone, the 13-234-10 section should be stricken as it represents clear discriminatory practice.
b) §13-234-10 electrical fee increase blatantly discriminates against the average-income and lower-income public, owners of smaller vessels in the harbor system, outright asking them to subsidize the vessels owned by high-income tenants. Larger vessels require larger amounts of electricity while smaller vessels use relatively little, which forces smaller vessels to subsidize the electrical usage of larger vessels on the grid. A dominant narrative in the country today revolves around discrimination, in all of its ugly manifestations. Why not step up to the plate and flag this item, as is required of attorneys general in the rest of the country.
- 13-234-11: The word "Usage," in §13-234-11, is deliberately misleading verbiage purposely designed to make tenants believe that they are being assessed for "usage" of a facility that, in actual fact, most don't regularly use. Bathroom facilities in Hawaii's public harbor system are regularly deplorable. The rule should be modified to read: "A new $15 per month charge will be levied on all tenants who have in their possession a card-key that grants access to the card-key bathrooms, whether they actually use those bathrooms or not." In actual fact, this new levy is nothing more than a flat-rate monthly charge for having a bathroom card in one's possession. "Use" has nothing to do with it. In order for this section to be truthful and transparent it needs to be reworded so that the public clearly understands that they are being charged a flat-rate fee for having a card in their possession and nothing more -- that they are not being charged for "using" a facility.
- 13-234-3 Slip fee increases: The DLNR openly lies to the public in this section by not properly disclosing their fiscal management numbers. The independent assessments that have been done around DLNR harbor management clearly suggest that significant revenue already exists to more than adequately manage the harbor system. A very recent audit of DLNR fiscal affairs, carried out by Les Kondo, suggests DLNR gross mismanagement of public funds to the point of being legally questionable. There have been multiple studies and audits* of DLNR fiscal activity which clearly points to deliberate neglect as the exact reason for not having the revenue necessary to administer the harbor system. Fee increases for the harbors that operate in the black are clearly a deception that will place an unnecessary hardship on the users of this public facility. Is it okay with your office that agency operatives are allowed to openly deceive the public for the purpose of rationalizing unneeded fee increases?
a) §13-234-3 The "slip-size" clause in this same section patently discriminates against tenants with smaller boats, that they must pay for their slip size vs their vessel size. As a result these smaller vessels, owned by lower-income tenants -- will be called upon to pay more than their fair share, while, by and large, owners of larger vessels -- higher-income tenants -- will continue to pay for their vessel size -- a clear-cut example of discrimination in a State-administered public asset.
- 13-234-4, Offshore Mooring Rate increase of up to 500%: Here we have another blatant example of the DLNR's lying to the public by attempting to convince the uninitiated that the State of Hawaii actually has facilities for vessels moored offshore, on their own tackle, in remote locations and therefore needs to charge for the "use" of these. Just for the record, there are no facilities for vessels who are moored on their own tackle in Hawaiian waters, especially in remote locations. What the DLNR is asking for here is a fee for vessel use, above and beyond registration and other fees already being charged. Lying to the public about phantom facilities and the need to charge for these same should have been flagged long ago by the AG's office. But, for some reason, they weren't.
AG Land/Transportation Division supervisor, Bill Wynhoff, informs us that his deputy attorneys general who reviewed this document did not possess the background knowledge necessary to understand the implications of the verbiage in 13-234. It is usual and customary for attorneys to seek consultants during litigation or when they are charged with reviewing documents for legal opinion, when the attorneys themselves do not possess the requisite background knowledge to completely understand the subject matter. We were informed that there were no knowledgeable consultants on hand during the review.
Unanswered Questions About Sunshine Law Violations and a Remaining Question about Perjurious Testimony
In a previous message to you and Bill Wynhoff, I noted that the DLNR/DoBOR staff lied, in writing, in response to a UIPA request by the public. I needn't remind you that lying during a UIPA request exchange is a violation of the State's Sunshine Laws. The AG's response to our message flagging this issue has been to not respond. We are left to wonder about the AG's position concerning Sunshine Law violations by State agencies and leadership.
Recently, it has been reported that DoBOR Administrator, Ed Underwood, and DLNR Chair, Suzanne Case, have both perjured themselves, on record, to Hawaii legislators. Details of these two incidents can be found here: Suzanne Case / Ed Underwood. One always hopes that the AG's office might take an interest in such things. We would appreciate the AG’s opinion regarding these incidents.
Respectfully submitted,
Katherine Lindell
* DLNR-OBOR Fiscal Management Assessments: See Rick Gaffney's testimony,Les Kondo's Independent Audit, Bruce B.'s DLNR fiscal analysis