exemption | DMZ Hawai'i/Aloha 'Aina

Northwestern Hawaiian Islands Management Plan Finalized – Military Exempted

Post Date December 30, 2008

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Author Laurel Mei-Singh

Category Environmental Impacts, Projects and Campaigns

The management plan for the Papahanaumokuakea (Northwestern Hawaiian Islands) National Marine Monument has just been released. Although establishing the Monument designation was a major win for the movement, the processes and management structures for the Monument are turning out to be a problem that allows huge loopholes and creates obstructions for meaningful public involvement. One serious problem in the proclamation by George W. Bush that created the Monument is the exemption of the military from all of its protections. Here’s an excerpt from the website FAQ page:

Military Use

25. How are the Co-Trustees working with the Navy to ensure that Navy activities within the Monument cause no harm?

A. Presidential Proclamation 8031 specifically exempts lawful activities and exercises of the Armed Forces, including the U.S. Coast Guard, from its prohibitions. The Co-Trustees have no authority to regulate such activities. The requirement that the Armed Forces avoid to the extent practicable adverse impacts on Monument resources and qualities is to be addressed by the military agency conducting the operation, not the Monument Co-Trustees. The Navy is the primary DOD agency that periodically conducts activities in the Monument and they have expressed their commitment to support the spirit and intent of the Proclamation.

So the Monument turns out to be another beautiful, secluded, playground for the Navy and Missile Defense Agencies to blast their sonar, crash missiles, and fly air-breathing hypersonic aircraft.

Click here to go to the Papahanaumokuakea National Marine Monument, where you can download the full management plan.

Also, visit the KAHEA website for their background information and critique of the plan.

Auditor slams state on Superferry

Post Date December 19, 2008

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Author Laurel Mei-Singh

Category Environmental Impacts, Hawaii Superferry Resistance, The Military in Hawai'i (All Islands)

The state auditor just issued its report on the state’s handling of the Hawaii Superferry debacle. It basically confirms the arguments made by opponents of the Superferry that the special legislation “Act 2” that exempted the Superferry from state environmental laws so it could sail before completing a court ordered environmental impact statement constituted legislation to benefit a single company. This comes as the Hawai’i State Supreme Court hears arguments about the illegality of Act 2. Here’s the article from the Honolulu Star Bulletin:
Auditor slams state on Superferry

A report depicts an aversion to making the company conform to legal requirements

By Tom Finnegan

POSTED: 01:30 a.m. HST, Dec 18, 2008
NAWILIWILI, Kauai » The state might have wasted at least $10 million — and perhaps more than $40 million — in taxpayer funds to accommodate the Superferry’s arrival in the islands last year, says an audit report released yesterday.

STATE AUDITOR’S REPORT FINDINGS

» In their haste to support Hawaii Superferry Inc., state officials ignored the recommendations of their technical staff, setting off a chain of events that resulted in the selection of inadequate harbor improvements.

» The combination of harbor improvements, barges and ramps built statewide at a cost of $38 million has proved problematic and costly at Kahului Harbor and would have likely created similar problems at Kawaihae Harbor if implemented there.

» A law known as Act 2, passed in a special session last year on behalf of Hawaii Superferry Inc., compromised the state’s environmental laws and set a precedent that puts the interests of a single business before the state’s environmental, fiduciary and public safety responsibilities.

The report, by legislative Auditor Marion Higa, says the state caved in to pressure from the Superferry, changing its long-standing policy to accommodate the company and, later, to avoid an environmental review.

The Lingle administration could have avoided all problems had the state forced the Hawaii Superferry to build its own ramps, rather than building them at taxpayer expense, the auditor continues.

The two-lane barges and ramps allow the Superferry to off- and on-load in about 15 minutes. The barges, ramps and other harbor improvements were built at a cost of $38 million, without a full environmental impact statement, to accommodate deadlines for the Superferry.

Mike Formby, director of the state Harbors Division, said the state had “no choice” but to build the ramps at Nawiliwili, Kahului, Kawaihae and Honolulu harbors, and barges at all but Nawiliwili Harbor.

Hawaii Superferry made it clear: Build the ramps or the ferries are not coming to Hawaii, Formby added. In 2004, state officials were told — prior to the construction of the Alakai — that a ferry with a built-in ramp would not work with the design of the boat.

However, the second vessel, which has yet to be named, will contain a ramp when it is delivered in March, company spokeswoman Lori Abe said yesterday.

The new ship, with its ramp, and the Alakai, if it is retrofitted with a ramp, would basically render the harbor improvements obsolete, the report states.

The state had a policy of not providing ramps or similar equipment to any other harbor users, the report continues.

But the Superferry and Lingle administration officials forced state harbors personnel to accept the system when Hawaii Superferry told the state it would not be coming to Hawaii if forced to build on-board ramps, the report says.

Furthermore, when permanent harbor improvements, including building a new pier at Kahului Harbor, were suggested, they were shot down to meet deadlines imposed by Hawaii Superferry.

According to the report, the administration felt it could not “secure all the necessary environmental assessments for the permanent harbor improvements in time to meet Hawaii Superferry Inc.’s deadline.”

So the state built the barge and ramp structures instead.

The report also agrees with the basic assumption of the Supreme Court case scheduled to be heard today: that a law that allows the Superferry to sail as it completes an environmental impact statement “compromised the state’s environmental laws and set a worrisome precedent for future government accommodation” and is clearly designed to benefit only one company.

Lingle administration officials have argued that the law did not provide special benefits to anyone because the law applies to all large-capacity ferry vessels.

However, the report states, “Because Hawaii Superferry Inc. is the only ferry vessel company able to take advantage of the small window of time created by Act 2, it appears that the legislation was designed to benefit a single operator.”

Besides the $38 million in taxpayer funds for harbor improvements, $3 million more is being spent to fix the barge at Kahului Harbor. The state and the Superferry are arguing over who pays for the dry-docking fees to fix the Kahului barge.

Since the barges were built in China, federal law bars their use to transport goods or people between U.S. ports. And the ramps built at all four harbors were specifically designed for the Superferry.

However, Formby and Abe contend the Superferry will still use the barges and ramps when the new ship arrives.

The state’s ramps are “significantly bigger and better” than the ramp on the second vessel, Formby said.

The single-lane ramp fitted onto the second ship has a much greater angle and would cause off- and on-loading times of at least an hour, Formby added.

Still, he admitted, it looks like at least $10.4 million spent on the barge at Kawaihae on the Big Island will not be recouped.

The pier to which the barge was attached was damaged in the 2006 earthquake, Formby said, and the state is “exploring options” on the barge’s use.

The audit’s report was conducted as part of Act 2, which required a performance audit as part of the bill’s passage. This is the second phase of the audit.

The first, which was issued in April, found that the state was forced to exempt the Superferry from environmental review to meet deadlines imposed by the company.
Find this article at:
http://www.starbulletin.com/news/20081218_auditor_slams_state_on_superferry.html

Court could stop Superferry

Post Date December 09, 2008

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Author Laurel Mei-Singh

Category Environmental Impacts, The Military in Hawai'i (All Islands)

HonoluluAdvertiser.com

December 9, 2008

Hawaii Superferry’s interisland service depends on court ruling

Service may be halted if high court rules against law that let ship operate

By Derrick DePledge
Advertiser Government Writer

The state Supreme Court, whose ruling last year led to a three-month shutdown of Hawaii Superferry, will decide whether the interisland service can continue in a new case to be heard next week.

The court will decide whether Gov. Linda Lingle and the Legislature violated the state Constitution last year with a new law that allowed Superferry to resume operation while an environmental review of the project is completed.

A ruling could have an immediate impact on whether Superferry can operate between O’ahu and Maui. It could also influence the separation of powers among the governor, the Legislature and the courts.

The Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition, the nonprofit groups that brought the legal challenge that temporarily stopped Superferry last year, have asked the court to declare the new law unconstitutional.

Arguments before the court are scheduled for Dec. 18.

The Supreme Court ruled in August 2007 that the state should not have exempted the Superferry project from an environmental assessment. A Maui court subsequently halted ferry service to Kahului Harbor, while public protests kept the ferry from returning to Kaua’i.

Lingle called a special session of the Legislature, where lawmakers passed a bill that allowed the ferry to resume operation under conditions designed to protect the environment while an environmental impact statement is prepared. Lingle signed the bill into law, and the Maui court allowed the ferry to return to Kahului Harbor.

Many political observers thought the legal challenges were largely over, but the court’s willingness to hear the appeal so soon raises the possibility that Superferry may again be stopped.

“This case is now a case of even greater public importance,” Isaac Hall, the Wailuku attorney representing the environmental groups, said in court filings.

violations alleged

Hall’s main arguments are that the new law violates two parts of the Constitution: Article I, Section 21, which bars the state from making any irrevocable grants of special privileges; and Article XI, Section 5, which says the Legislature can only exercise power over state lands through general laws.

The constitutional restriction on special privileges, according to the Legislative Reference Bureau, is meant to ensure the state acts on behalf of all people and not for the sake of the elite. The provision limiting the Legislature’s power to general laws over state lands is designed to prevent sweetheart land deals for private interests.

Lawmakers, mindful of the constitutional restrictions, were careful not to mention Superferry by name in the new law, and instead described a “large capacity ferry vessel.”

But Hall argues that the new law was “conceived, cut and tailored” solely for Superferry, a special law that gave Superferry access through an operating agreement to state land at Kahului and other harbors.

Hall also argues that the new law deprives the environmental groups of a vested right, given by the Supreme Court’s ruling last year, for an environmental assessment under the state’s environmental review law. The new law removed the large-capacity ferry vessel from under the state’s environmental review law and created a similar – although not identical – process to conduct an environmental impact statement by next summer.

Hall argues that the new law “amounts to a legislative and executive revision of judicial decisions.”

Lawmakers were guided when drafting the new law by the 1992 U.S. Supreme Court ruling in Robertson v. Seattle Audubon Society. The ruling found that it was not unconstitutional for Congress to change timber harvesting rules in federally managed forests in response to legal challenges by environmentalists, who had argued that the old rules threatened endangered northern spotted owls.

The ruling found that Congress did not direct results in the legal challenges under the old law, but instead replaced the legal standards with new provisions.

Lawmakers in Hawai’i essentially did the same thing with Superferry.

State lawyer counters

Dorothy Sellers, the state solicitor general, argues in the state’s legal briefs that the governor and lawmakers acted within their authority to create new public policy.

Sellers said the new law is not an irrevocable grant of special privileges for a ferry company because it expires when the environmental impact statement is accepted by the state or, at the latest, by next summer.

The new law is not a special law involving legislative power over state lands, Sellers argues, because the operating agreement is between an executive-branch agency – the state Department of Transportation – and a ferry company. The ferry company also does not have an exclusive right under the agreement and must share state harbors with other users.

Sellers said Hawai’i courts have not addressed the meaning of general law as it applies to Article XI of the Constitution, but the Supreme Court has upheld a legislative act designed to respond to a singular circumstance. In Bulgo v. County of Maui in 1967, the court found that it was constitutional for the Legislature to pass a law tailored for Maui calling for a special election to replace the chairman of the board of supervisors, who had died shortly after re-election and had not begun his new term.

Sellers also argued that the environmental groups have no vested right to an environmental assessment for Superferry under the state’s environmental review law because the August 2007 Supreme Court decision was not the final judgment in the case.

The appeal, Sellers said, is “an assault on the inherent, essential power of the Legislature to speak for the people and to revise the public policies of the state as the Legislature determines necessary.”

Last year, lawmakers were not enthusiastic about returning in special session to help Superferry but agreed because of the potential benefits of interisland ferry service. Lawmakers found that the ferry was an alternative mode of transportation that could help move people and cargo between the islands and could be an asset in disaster relief.

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said she believes the Legislature acted properly. She wishes, however, that the state House, Lingle and Superferry had agreed with the Senate and supported an environmental review of the project before the court ruled that such a review was required.

Hanabusa predicted that justices would decide the appeal based on an Article XI test of whether the new law is general or special.

‘a major problem’

If the court were to issue a broad ruling limiting the Legislature’s power, Hanabusa said, lawmakers may have to consider asking voters to amend the Constitution.

In 2006, for example, voters approved a constitutional amendment that allowed the Legislature to define what constitutes the continuous sexual abuse of a minor under 14. The court had ruled that a law defining continuous sexual abuse was a violation of the right to due process because jurors were not instructed that they had to be unanimous about which specific acts amounted to continuous abuse.

“If the Supreme Court comes back and says that we don’t have the right to make exceptions to the law, for whatever reason, then we’re going to have a major problem,” Hanabusa said.

Irene Bowie, the executive director of Maui Tomorrow, said the environmental groups deserve a real environmental assessment of Superferry, not what their attorney has described as a “pseudo-process that falls far short” of the state’s environmental law.

“I think that this has been an illegitimate process. I don’t think there’s any real results that we’ll come away with on this,” Bowie said of the new law. “We would absolutely like to see this done over again in the proper way.”

Bill to Terminate Hawaiian Claims exempts U.S. Military

Post Date September 17, 2005

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Author Laurel Mei-Singh

Category DMZ-Hawai'i / Aloha 'Aina In the News, Hawaiian Sovereignty, Land, Culture & Human Rights

Saturday, September 17, 2005

Akaka bill revised to placate D.C. foes

By Gordon Y.K. Pang
Advertiser Staff Writer

AKAKA AMENDMENT

The changes proposed by the amendment would:

Leave negotiations on claims made by Native Hawaiians against the United States and the state in the hands of a federally recognized Hawaiian governing entity. Individuals and organizations, including the governing entity, would not have the legal basis to file such claims in court.

Clarify that gambling would not be allowed on lands under the jurisdiction of the Native Hawaiian government entity unless approved by the state and federal governments.

Exempt the Department of Defense from participating in discussions and negotiations dealing with the creation of the Native Hawaiian governing entity, effectively ensuring military installations and operations are not affected in any way.

Make clear that the state and federal governments would retain existing civil and criminal jurisdiction over all lands and people in Hawai’i.
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Native Hawaiians could not bring a land claim against the U.S. government in the courts under an amendment to the Akaka bill that is being proposed to appease the White House and opponents of the bill.

Instead, such claims would have to be taken to a federally recognized Hawaiian governing entity that would then negotiate with the federal and state governments, according to the language in the amendment that was released by Sen. Daniel Akaka’s office yesterday.

The Akaka bill starts a process that would lead to federal recognition of a Native Hawaiian entity. Supporters say it is necessary not just to address wrongs committed by the U.S. government, but will help stave off legal challenges to programs – including the Office of Hawaiian Affairs and Kamehameha Schools – that give preference to Hawaiians.

Andre Perez, a member of Hui Pu, an umbrella group of Native Hawaiian groups opposed to federal recognition, said the newest language makes a bad bill even worse.

He noted that the previous draft allowed Native Hawaiians to make claims on their own against the government for up to 20 years, a time limit that already was unpalatable.

“We’ll be barred from seeking any recovery of any losses or damages against us over the last 112 years,” Perez said. “That’s a pretty good deal for them.”

Akaka, in a news release, acknowledged that the land claims issue has been a sticky one for the U.S. government. “I have always said that longstanding issues, including land claims, were to be addressed in the process of reconciliation – an ongoing dialogue between Native Hawaiians and the United States.”

A fact sheet distributed by Akaka said that “the (Bush) administration sought to extinguish all existing claims by Native Hawaiians related to breach of trust, land claims and resource-management or resource-protection claims.”

The Hawai’i delegation and Gov. Linda Lingle “prevailed in preventing the extinguishment of claims,” the fact sheet said.

Said Akaka spokeswoman Donalyn Dela Cruz: “The senator realizes there may be some people who may be unhappy with the compromises we have had to make. But the senator’s focus is on ensuring that we can enact this bill so that we can organize a Native Hawaiian government entity for the purposes of a government-to-government relationship with the United States.”

Jon Osorio, director of the Center for Hawaiian Studies at the University of Hawai’i-Manoa, echoed the comments of Perez and said he believes that the bill waters down a measure that already does not go far enough in addressing any harms that may have been committed against Hawaiians by the U.S. government.

“What it looks like to me is because the U.S. government is claiming sovereign immunity that cannot be challenged in court, and the state also has this protection, it means that virtually everything that will become part of this nation, land and resources, are things that are going to be negotiated at the outset,” Osorio said.

“What they’re saying is everything is not subject to the courts. And because the U.S. is acknowledging a single government entity, in my mind, this is intended to invalidate any future claims by anyone.”

‘ONLY REALISTIC WAY’

Hawai’i Attorney General Mark Bennett said resolving the claims through the negotiations process is “the only realistic way of approaching the claims.” In the 47 years since statehood, he said, there has not been a successful claim against the government.

The points in the amendment outlined yesterday also did little to appease Akaka bill opponents who believe that carving out special privileges for Native Hawaiians is unfair to non-Hawaiians.

The amendment is not designed to make local opponents of the bill happy, however. The measure has stalled in the Senate this summer because of concerns raised by the White House and some Republican lawmakers. The amendments address “serious policy concerns” laid out specifically in a memorandum by the Justice Department in July.

Justice Department officials could not be reached after business hours to confirm the agreement.

But Dela Cruz said the state’s congressional delegation, together with the state attorney general and the staff of Senate Indian Affairs Chairman John McCain, was able to craft the compromise language with a team from the Justice Department’s legislative affairs office headed by Deputy Assistant Attorney General Rebecca S. Seidel.

H. William Burgess of the anti-Akaka bill organization Aloha for All, said the amendment “certainly changes the bill for the better.”

The stipulation barring Native Hawaiians from making direct claims against the state and federal governments “very effectively closes most of the chances of opening up litigation in the future although it doesn’t eliminate it,” Burgess said.

The previous version of the bill, he said, “was an open invitation for the next 20 years to come in and ask for whatever you want.”

Burgess also said the new language effectively bars gambling as well.

Nonetheless, Burgess said, his group still opposes the Akaka bill on more fundamental grounds.

“The destructive core of the bill remains intact,” he said. “And that’s the real toxic part of this bill that would create a new, privileged class in America. It’s going to subdivide not just Hawai’i but the United States.”

WAIVER FOR MILITARY

Ikaika Hussey, a member of Hui Pu, objected to the language in the amendment waiving the U.S. military from participating in any of the talks involving the creation of the new government.

“It’s now very clear that this bill will not protect our home, or our ‘ohana, from the Stryker brigade land-grab, and will not assist in the cleanup and return of land to families whose land was seized for military use,” Hussey said.

Trustees for the Office of Hawaiian Affairs, which has supported the Akaka bill, issued a news release stating that they were reviewing the language with their attorneys and would comment at a later time.

Previously, OHA board chairwoman Haunani Apoliona had also acknowledged that the claims issue was a difficult one to resolve.

NO SENATE TIMETABLE

Meanwhile, there is still no timetable for when the Senate might discuss whether to have a floor debate and vote on the bill.

OHA administrator Clyde Namu’o said he’s been told it likely won’t come up before the third week of October. “Most people that I’ve spoken to indicate that they believe that it probably will come up sometime in the middle or third week in October,” he said

Republican leaders had promised Hawai’i’s delegation that a parliamentary move called a cloture vote would take place last week but it was postponed indefinitely to allow senators to deal with the Hurricane Katrina disaster.

A cloture vote on the Akaka bill would essentially force the Senate to set other issues aside to allow for a debate and vote.

Dela Cruz, Akaka’s spokeswoman, said her office has not received word from the Senate majority staff on the matter. The Senate is still focused on addressing Katrina’s impacts, she said.

Nonetheless, she said, Akaka is confident the bill will come for a vote before the session ends.

“This is not over,” Dela Cruz said. “The senator is still pressing for his bill to get on the calendar.”

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.

Source: http://the.honoluluadvertiser.com/article/2005/Sep/17/ln/FP509170332.html