Final BLNR Hearing Regarding 13-234 Gives Boaters Last Chance to Have Their Voices Heard

Below are some of the legal concerns regarding the Chapter 13-234 rules proposal. The DLNR's Board will conduct its final deliberation on this rules package this coming Friday, June 14, 2019,  9:30 A.M.  Below find our BLNR testimony, which was also submitted, in writing:

1) The appraisal upon which Chapter 13-234 fee increase packet is based, is not an "independent appraisal", as prescribed by Hawaii statute, and is therefore illegal for use in this context.  Further, this appraisal has disqualified itself, in its entirety, because of the disturbing frequency of fundamental errors within the document on top of a structure of invalid assumptions.

• See attached footnotes for detailed examples. (Item # 1)

2) Chapter 13-234-10, electrical fee increase proposal for non-metered electrical receptacles is patently illegal and invites the expense of litigation:

• See attached footnotes for detailed examples (Item # 2).

3) Chapter 13-234 charges fees for non-existent services and phantom facilities. Chapter 13-234 makes fraudulent claims that establish a basis for legal challenges.

• See attached footnotes for detailed examples (Item # 3).

4) A disturbing succession of internally generated DoBOR judgment errors, some of which with legally questionable processes, cost the Special Boating Fund $100s of thousands of dollars over the past couple of years. Why are recreational boat owners being asked to pay for these internal Agency errors?

• See attached footnotes for detailed examples (Item # 4).

5) Chapter 13-234-3 (a):  asking recreational boat owners to begin paying for their entire pier length, instead of the usual and customary boat-length metric, results in illegal discrimination against lower-income boaters, in a public harbor system.   Someone who can only afford to own a 20-foot vessel, for example, will now be required to pay the exact same mooring rate as his/her neighbor with the 28-foot vessel.  Patently unfair and discriminatory.  And, once again, the invalid appraisal that inspired this section is incapable of differentiating between slip spaces in public marinas and private land-based rental properties.

6) The preamble of the Constitution of the State of Hawaii states:  We reaffirm our belief in a government of the people, by the people and for the people . . .  .  Historically, there is no discernible evidence to suggest that the DLNR is listening to the people it's supposed to be serving.

1) Beginning on March 2nd, 2019 The DLNR/DoBOR recorded more than 20 hours of in-person testimony regarding 13-234 and hundreds of written testimonies, many published online;  100% of the testimony was in opposition to the passage of Chapter 13-234.  100%.

2) If Hawaii’s State government is truly a government “of, by and for the people of Hawaii,”  then why are the people’s voices being ignored?

7) The number of legal issues found in Chapter 13-234 is unsettling and may cost the State of Hawaii in legal challenges; the State may find that enforcing some of the rules will be very difficult; and the legal quagmire and then the logistics of removing and disposal of increased numbers of abandoned vessels from the State Harbor system, as a result of the fee increases, may cost the State more than what it gained.

1) The Attorney General’s Office admits, in writing, to not having been fully qualified to vet Chapter 13-234 for all inherent legal irregularities.  See attached footnotes for details (Item # 7).

2) Chapter 13-234, much of it legally troubling, does nothing to improve the State’s public harbor system or the boating environment in Hawaii, while simultaneously creating an unnecessary hardship for the grass-roots ocean recreation community –- a community that has found itself excluded from this rule-making process -- and an intensified adversarial relationship between the DLNR and Hawaii's public.

3) What is needed, instead,  is responsible, thoughtful stewardship of these precious heirlooms, our public harbors, through diligent effort and collaborative planning with the very public that is being served by this public harbor system.

8) The recent indefinite deferment, by legislators, of SB1257, sends a clear message to the DLNR regarding legislative opinion about rate increases in Hawaii’s public harbor system.

Ladies and gentlemen of the Board of Land and Natural Resources, Chapter 13-234, in its present form, is rife with legally troubling implication, will end up costing the State of Hawaii much more money than it will take in, is based on poorly thought-through funding schemes that will not solve any of the urgent issues now facing our public harbor system, is based on an invalid and illegal appraisal, and displays an especially disturbing mean-spiritedness in the way in which it ignores the will of the people it pretends to serve, while creating unnecessary and undue hardship in our ocean recreation community.  

We respectfully ask that you put the current revised version of Chapter 13-234 aside, in its entirety, and make a genuine effort to work together with the people that you are charged with serving -- the very same people who fund your paychecks -- in order to develop a mutually workable plan for Hawaii’s public harbor system.

Thank you for taking a moment to consider our testimony.

Katherine Lindell
Hawaii Ocean News