Ka‘ū News Briefs, Saturday, January 11, 2020

Kaʻalaiki Road, above the waterfalls, is often used by Kaʻū residents and visitors when flooding closes Hwy 11 during heavy rains, like today's. See below a weather update. Photo by Julia Neal

OHA PROPOSES TO RESTORE HAWAIIAN EXPERTISE IN STATE LAND USE AND RESOURCE MANAGEMENT. In its package of bills for the 2020 Hawaiʻi Legislature, the Office of Hawaiian Affairs states that "Since 2016, a number of state boards and commissions with land use and resource management responsibilities have been required to attend a Native Hawaiian law and public trust training course; in addition, several of these boards are required to have at least one member possess experience or expertise in relevant Native Hawaiian traditional and customary practices or resource management approaches. Combined, these requirements seek to ensure that decisions impacting our lands and resources are more informed as to the rights, values, and practices of Native Hawaiians, and have the potential to enhance our islands' sustainability and resilience for present and future generations."

Kaʻū has some of the largest swaths of pristine land  managed by the state. Map from Dept. of Land and Natural Resources

     OHA charges, however, that "despite the regular provision of notice to board and commission administrators, the vast majority of boards and commissions subject to the training course requirement have failed to fully comply with their training responsibilities. As a result, land use and resource management decision-making may continue to be less than fully informed on Native Hawaiian concepts, practices, and rights associated with the ‘āina. Moreover, requiring only a single member of critical decision-making bodies, such as the Land Use Commission and Board of Land & Natural Resources to have experience or expertise in Hawaiian practices or resource management approaches, has not resulted in decisions that consistently recognize or incorporate Native Hawaiian knowledge, values, and rights. These issues in turn have led and continue to lead to substantial conflict, distrust in government decisions and processes, and even legal action against the state, and may further foreclose critical opportunities to ensure our islands' resiliency and self-sufficiency through culturally-informed land use and resource management."

     The OHA proposal would:

     Require an annual report by OHA and DLNR of all individuals who have failed to meet the one-year training deadline under the law; prohibit individuals who have failed to meet their requirement from serving on a permitted interaction group or voting on any matter before their respective boards or commissions, until they have attended a training course; remove untrained individuals from their respective boards or commissions at the end of the regular legislative session following their deadline to complete the training course, unless they complete the training course or are reconfirmed by the Senate before the session ends; and allow the individual votes of untrained council, board and commission members to be challenged and subject to being nullified and voided following a contested case proceeding.

     The measure would also require that four of the nine-member LUC and four members of the seven-member BLNR be appointed from a list of nominees submitted by OHA, similar to the way in which OHA nominees are appointed to the various island burial councils. The requirement would take effect after the end of the current terms of all sitting BLNR and LUC members.

     "Such meaningful representation of Native Hawaiian perspectives will particularly ensure that land use and resource management decisions incorporate and benefit from Native Hawaiian practices, values, and knowledge relating to the ‘āina," says the OHA statement to the Hawaiʻi Legislature.

     See more on OHA efforts below.

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Ancient Hawaiian hula site, ʻImakakāloa Heiau, is one Kaʻū cultural location. Photo from Edith Kanakaʻole Foundation

PROTECTING HISTORIC SITES is another OHA initiative. According to Office of Hawaiian Affairs, "State historic preservation laws provide a process by which county grading- and construction-related permit applications can be vetted for potential impacts to iwi kūpuna and archaeological/historical sites; this process includes the opportunity to attach permit conditions as well as develop and apply other protective measures to mitigate any potential impacts.  Historic preservation laws further impose criminal and civil penalties for the knowing desecration of iwi kupuna, burials, and archaeological/historical sites, and for failing to stop work upon the discovery of a burial."

     Despite these laws, states OHA, concerns have been raised regarding landowners and contractors who ignore county permitting requirements before beginning construction work, thereby avoiding the procedural protections established under historic preservation laws, and likely impacting countless iwi kūpuna and archaeological and historical sites. "These concerns have been compounded by written statements from the State Historic Preservation Division that impacts to iwi kūpuna from unpermitted grading or construction activities cannot be investigated or enforced after-the-fact, due to the likelihood that any evidence of such impacts have already been destroyed. For unscrupulous landowners and contractors, this admitted lack of after-the-fact enforcement may even represent a significant financial incentive to engage in unpermitted work especially where iwi kūpuna may be found, as the otherwise minimal penalties for unpermitted work may be far less than the costs of complying with permitting processes and conditions protecting iwi kūpuna and historic sites.”

     This OHA proposal would seek to better protect Native Hawaiians' ancestors by:

South Point holds many areas where iwi kūpuna were laid to rest, but soil erosion from human activity may have covered up some of the history. DLNR photo

     Increasing maximum fines for violations to the chapter, including unpermitted grading or construction activities that would have otherwise involved historic preservation review; prohibiting further work or permit issuance for the subject property where unpermitted activities occurred, until submission and approval of a work schedule that includes recommended actions from SHPD staff or a department-approved archaeologist who has inspected the worksite for evidence of potential impacts to iwi kūpuna or historic sites; holding landowners and contractors jointly liable for all assessment and mitigation costs associated with unpermitted activities; requiring the establishment of a citizen complaint intake process and the development of informational resources for citizens to document/report potential HRS 6E violations and impacts to iwi kūpuna or historic sites; requiring the posting of notice at worksites regarding iwi kūpuna and historic preservation laws, and informing workers and the public of the citizen complaint intake process; and amending the historic preservation special fund, which collects historic preservation fines and fees, to explicitly allow fund monies to be dedicated towards enforcement related activities.

     See more on OHA efforts in future Kaʻū News Briefs.

A FLASH FLOOD WARNING is on effect for Kaʻū and much of the windward side of Hawaiʻi Island through tomorrow at 1:30 a.m., states the National Weather Service. Local areas expected to have the most change of flooding include Nāʻālehu and Kāwā Flats. The public is warned to not cross running water, and to avoid streams, rivers, drainage ditches, and culverts, even if they are currently dry. Rock and mud slides are also a possibility.