2022-04-07 Windward Exh B (Item 1 Holcomb PL-SMA-2021-007)

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and just as Commissioner Lin said not all fishing is created equal. So that was the goal is to maintain that those folks that use it on a consistent basis or how folks that they bring in and want to use underneath their direction will have access to that. So maybe it's something the Commission wants to consider of changing that language a little bit. I still feel like that would keep the intention and also maintain the liability separation. Attorneys feel free to throw something at me at any time if I misrepresent that. Thank you very much. AU: Commissioner Galimba? GALIMBA: Thank you. I think the other side of it but maybe I just wanted to bring up that I think you guys are threading the needle here as mentioned in the recommendation is the whole patch thing of continuing traditional customary right. So, there's the safety part but there's also the part that it has been used for a very long time, so needing to be sure that we comply with that, and I also would be very happy to hear the lawyers have any thoughts on wording that would thread that needle. CAMPBELL: I guess that's aimed at me, thanks guys. Given the circumstances that the applicant is in that I heard from Jason that they don't actually have the ability to get people to their property. I think that forcing them to open it up with a"shall" kind of language puts them either in the situation where we're going to impose a condition that they cannot meet. In which case they can't move ahead and so it's essentially, I'm going to reuse a term I heard yesterday it's an insidious form of denial. So, if we throw a condition at this project that says "thou shalt allow public access to your property" and we know that because of the nature of their easement and I, admittedly, I have not looked at this easement documents. So, I'm going on Jason's representation, but I wouldn't be surprised if he's correct that they don't actually have the right to open the easement access up to somebody else. They can have their own personal guests there and they're interpreting that as sufficiently broad to allow them to include a reasonable number of fishermen. If we say thou shalt do this and we know they can't do it, then we're effectively denying their application. On the other hand, Michelle is correct, that we do need to take traditional customary practices into consideration that's an absolute standard that the Commission always should consider, especially when you're looking at essentially undeveloped land like this. And so, I think the language as far as we've gotten it is a good threading of that needle. If you do want to massage it a little bit like Director Kern said to make it a little bit more solid about living up to your representations, working to cooperate and maybe something about that and this may or may not be appropriate I'm going to leave it to the Commission to think about. If the easement is able to be changed in the future, then maybe they would have to put something a little bit more solid in place, but we can't require them to give us something that they don't own. So, I think that is the really tricky part of this one, without even taking into consideration things like safety factors about is it a good idea to let people in here to go on something super dangerous without even considering that, are we, we want to make sure that we don't impose a condition on this applicant that works as effectively a denial if they cannot live up to what we require of them. Unless it's your intent to deny it. 11 EXHIBIT B