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HomeMy WebLinkAbout2003-05-27 TBLASMAN (3) PLANNING COMMISSION CONTESTED CASE MINUTES AND HEARING TRANSCRIPT WAYNE BLASMAN (SMA 02-03) MAY 29, 2003 The contested case proceedings for WAYNE BLASMAN (SMA 02-03) was called to order at 9:15 a.m. in the Royal Kona Resort, Resolution Room, 75-5852 Ali Kona, Hawai`i, with Geraldine Giffin presiding. PRESENT:Geraldine Giffin, Presiding Officer Hannah Springer, Hearing Officer Grant Togashi, Hearing Officer Applicant: Wayne Blasman Randy Vitousek, Esq. Intervenor: Maile David Maile David Intervenor: Klana Huli Honua Mikahala Roy County of HawaiÒi Lester Ishado, Esq. Christopher J. Yuen, Hawai`i County Planning Department Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Staff Phyllis Fujimoto, Staff And approximately 8 people from the public in attendance. APPLICANT: WAYNE BLASMAN (SMA 02-03) Î Application for a Special Management Area Use Permit to allow the development of a 13-unit condominiu improvements. The property is located on the east side (mauka) of Ali'i Drive in the vicinity of Hlualoa Bay and across of the Keolonhihi State Historical Park at Kamoa Point, Hlualoa 4, North Kona, Hawai`i, TMK: 7-7-4:26. GIFFIN:Good morning, IÓd like to call the meeting of the Hawaii County Planning Commission back to order. We are in a continued contested case. The applicant is Wayne Blasman. The Application No. is SMA 02-03. The application is for a Special Management Area Use Permit to allow the development of a 13-unit condominium project and related improve 1 We have several housekeeping issues that we need to resolve. First of all, we need to speak to the intervenors and determine whether or not you were successful in determining witnesses for ththth the proposed continued dates of this hearing, July 28, 29 and 30. ISHADO:Madam Chair? GIFFIN:Mr. Ishado. ISHADO:Excuse me. Would you like us to enter our appearance for the record? GIFFIN:Thank you very much. Let me introduce the members of thi Commission. To my right is Hannah Springer. IÓm Geri Giffin, and to my left is our Deputy Corporation Counsel Ivan Torigoe. To his left is Grant Togashi. Staff this morning, Norman Hayashi, Phyllis Fujimoto and Sharon Nomura. Starting with the applicant? Randy? VITOUSEK:Good morning Madam Chairman, Hearings Officers, Randy Vitousek, representing the applicant Wayne Blasman. Let me just state that Wayne and Jim Fox, the owners, are present as well. GIFFIN:Fine, thank you. Maile? DAVID:Aloha, good morning. GIFFIN:Aloha. DAVID:Maile David, lineal descendent, intervenor. To my left is Karen Eoff. GIFFIN:Mikahala? M. ROY:Aloha, good morning. Mikahala Roy, Intervenor Klana Huli Honua. President David Roy to my right and rear. GIFFIN:Thank you. Lester? ISHADO:Good morning, Lester Ishado, Deputy Corporation Counsel, County of Hawaii. And with me is my client the Planning Director, Christopher Yuen. GIFFIN:And thank you for the reminder. Is there anything else Lester that we should be doing that IÓve forgotten. ISHADO:No, thank you very much. GIFFIN:Okay. Then back to where I was, intervenors, list of witnesses for the proposed continued dates. Maile? 2 DAVID:Depending upon whether the dates are secured now for a place, like I said th before I think on the 28I would be calling David Forman first, Vicky Holt-Takamine secon and Angel Pilago last. If securing a place is a problem, I think, you know, theyÓre able to do any of those three days possibly, if we have problems with that. And before I pass this to Mikahala, I wanted to ask permission if in fact when we do, when I do put on these witness objections if we were to use like a PowerPoint as a demonstrative tool when I bring these witnesses on? IÓm not saying that we are. IÓm just saying that if I can arrange it, would there be any objections to that? GIFFIN:Hannah? SPRINGER:I have no objection. GIFFIN:Grant? TOGASHI:None. GIFFIN:None. DAVID:Mahalo. GIFFIN:Randy? VITOUSEK:I have no problem with the PowerPoint. I guess I do, I may have an issue relative to the proposed testimony from David Forman. I mean, David Forman is an attorney. And heÓs, weÓre being told that heÓs going to testify about law; and thatÓs usually not an appropriate subject for testimony in court. In other words, attorneys donÓt get on stand as witnesses and testify as to what the law is. ThatÓs something for the Hearings Officers to interpret. In other words, the law is the law, development law is the law; and the role of the Hearings Officers is to interpret the law and apply it to the facts. And usually in this type of proceeding, we donÓt have an attorney testifying as a witness as to what the law is and how it applies to the facts. ThatÓs usually the role of the party presenting the facts. In other words, testimony you testify as to facts, and then you argue how the existing body of law applies to those facts. You donÓt have an attorney testify as a witness as to how to apply the law to a set of facts. GIFFIN:Mr. Torigoe? TORIGOE:I think Lester Î. GIFFIN:Lester? 3 ISHADO:I would agree with Mr. Vitousek on this point. But, you sure what the Mr. Forman is going to be testifying to. But, generally, you know, I believe you have your own counsel to advise you as to what the law is, and we can, you know, the parties can argue as far as how to apply the law in memorandums and so forth. But it has been my experience that attorneys do not come forward as experts and testify as to what the law is, unless thereÓs a very specialized area such, for instance, you have expert doctors testify as to surgery and so forth. But, you know, on this point, I guess I would agree with Mr. Vitousek. GIFFIN:Maile? DAVID:Yes, maybe I can try to clarify that. IÓm listing Mr. Forman not as an expert to testify about how to apply these laws, but as a person that, in his individual of capacity, his experiences about, past experiences on how these laws, you know, his knowledge, his philosophies of how these laws have come about with respect to the native Hawaiian issues. I donÓt, I agree with Mr. Vitousek that an attorney, in that sense should not, you know, be a testifier. But I believe we can, we can probably get a more clear picture on what he would be testifying to, and maybe to satisfy Mr. VitousekÓs concerns. GIFFIN:Randy? VITOUSEK:Yes, if I may. If someoneÓs going to come and testify philosophies are, itÓs not relevant. In other words, thereÓs no relevance to this application what Mr. FormanÓs philosophies are about anything, what his personal philosophies are. So I, this is not an issue I think that the Commission necessarily has to decide at this time, because the witness is not present and hasnÓt been asked a question. GIFFIN:Yes. VITOUSEK:And so all IÓm trying to do is put the Commission and the parties on notice that I am going to raise these objections if and when the questions are asked -. DAVID:Okay. VITOUSEK:So that we can use that in planning. DAVID:I understand and I agree. GIFFIN:Hannah? SPRINGER:Would it be helpful if Mr. Forman submitted written testimony and be sure thatÓs circulated well beforehand, and then all of his testimony is couched or based on what he has presented in writing? GIFFIN:Mr. Torigoe has another suggestion. 4 TORIGOE:I think thatÓs a good idea. And maybe if you can produce either an outline or written testimony that you can share with the other parties at some agreed point beforehand, so you can see if there are particular objectionable areas, you might be able to work it out. And, if not, then it might be helpful if the objecting party would file a written request to limit or exclude testimony before the hearing. But if thatÓs going to be done, then maybe we should ask that that be done, what, two weeks before? GIFFIN:Yes. TORIGOE:If thatÓs okay. DAVID:I just want to make another note. Mr. FormanÓs testimony opinion, critical to the presentation of my case, because he has, he holds one part of my entire presentation, not necessarily where -. I will try to demonstrate how the, I mean, how certain situations in the past have happened. So thatÓs why heÓs a critical part of my presentation and my case. GIFFIN:Randy? VITOUSEK:Yeah, I think the procedure that has been proposed by Commissioner Springer and by Mr. Torigoe is very appropriate. I mean, you know, then Ms. David gets to offer through the witnessÓ own proposed testimony what his testimony will be, how itÓs relevant to the case. I have an opportunity to object to it before the hearing and, hopefully, we can save time. That was the only point here. GIFFIN:Maile and Randy, Mr. Torigoe has just suggested then that the proposed testimony from your witness be available to him, to Randy, two weeks before, give Randy a week to respond. DAVID:Okay. GIFFIN:Randy, is that comfortable? VITOUSEK:ThatÓs fine. GIFFIN:Great. Lester? ISHADO:Madam Chair, is that going to be made available to all th GIFFIN:Yeah. ISHADO:Thank you. GIFFIN:Anything else? Mikahala, witnesses and your schedule, proposed schedule for July? 5 M. ROY:Good morning again. Commissioners, IÓve heard, as of this morning, that there has been an illness for Mr. Mossman and he will not be able to be with us this morning. He was, as a spoke, at a doctorÓs appointment. So he is not here today and wonÓt come. So I would like to schedule him for later, as well as I had anticipated Tom Cummings, Dr. Noenoe Silva, Kehau Abaad. Then I know we are prepared to receive testimony today from Pua Kanahele. At last junction, she was set to go to Keauhou Beach so she may be coming from there at this time. So I anticipate seeing her shortly and that I know of, she is expected today. Today, we also will hear from Councilman Curtis Tyler; and I would like to recall my father for, to complete the questioning I had at hand, and then to allow further cross-examination. Madam Chair, IÓd like to ask if, if, this in keeping with the applicant here, is it possible to recall Mr. Blasman, IÓd ask Mr. Vitousek, to the stand for questioning? GIFFIN:Randy, whatÓs your position? VITOUSEK:Well, Mr. Blasman already testified in the cross-examination. I donÓt recall that he was listed as a witness by the intervenor. TORIGOE:He was not subpoenaed. GIFFIN:And Mr. Torigoe did say that he was not subpoenaed. VITOUSEK:No, no, he has not been subpoenaed. Perhaps if during the break, we can discuss what issues you want to talk about, we could agree, and, in fact, ask Mr. Blasman whether heÓs going to testify. So IÓd prefer to try to do it by that before we take any other kind positions or actions relative to it. So, if you donÓt mind, we could go ahead with the testimony. And then maybe at lunch or something, or before, you and I could, you could tell me what it is youÓre interested in. M. ROY:Thank you, because I didnÓt mean to go out of cadence wit way of doing this. But while it was on my thought and because heÓs here, I just was looking to have an opportunity to ask him some questions. And may I share some matters that have not been, that is, there are more questions that have come to light since that opportunity for cross- examination. ThatÓs the matter, Madam Chair. And thatÓs what I want to have answered if possible. GIFFIN:Mikahala, I think that if you and Randy can speak during a recess, after we hear the public testifier, and come to some sort of agreement, then by all means. Lester, how do you feel about that? ISHADO:Basically, I think the parties should try and work it out and see really what the issues are. The only thing I would ask Madam Chair is in looking at the list of witnesses, and I think that what the panel is trying to do make sure whoÓs being called. And I think I have a list; and the understanding from Maile DavidÓs witness list, Ms. David has stated, you know, whoÓs 6 going to be called. I was wondering if Ms. Roy is also prepared to identify who is going to be called so we can basically plan our schedules. GIFFIN:I agree. I think that later on today, I keep saying after the public testifier, and we have a recess, maybe between Maile and Mikahala, we can work on a more comprehensive list with specific dates that these testifiers will be present at, so that our staff can appropriately plan in terms of the physical site. Mikahala? M. ROY:Thank you. So to be repeating my list, then, I would say Tom Cummings, Dr. Noenoe Silva, Dr. Kehau Abaad. GIFFIN:Can you give an estimate as to how long you think their time will be so we can go from there? M. ROY:I have a feeling that all these parties might be completed within a morning. GIFFIN:And then we can go into MaileÓs witnesses, right? M. ROY:As you prefer. If sheÓd like to present whatever, weÓd be prepared to go first, if thatÓs what is desired. GIFFIN:Mr. Vitousek, the status on your witness, what is that? VITOUSEK:Same, same as yesterday. HeÓs not available today. And I will, wonÓt know until later whether heÓd be available on those dates. But weÓre going to do what we can obviously. Mr. Yuen has been very clear as to the importance of the testimony to his assessment of the application. GIFFIN:And so when you know, will you let us know? VITOUSEK:Yes. GIFFIN:Hannah? SPRINGER:I think thatÓs while itÓs commendable that we consider that all of one intervenorÓs witnesses may be completed in one morning, and the other set of witnesses may be completed in the afternoon, I just figure we should be aware that one witness may go through the entire morning; and that the witnesses should be alerted that while thatÓs our desire, by virtue of their testimony and the questions which come forward from it, we might not be strict to that time schedule. GIFFIN:Absolutely. 7 DAVID:Madam Chair, my estimate, time estimate for my witnesses w counting cross or anything like that, would be about a half hour, not more than a half hour each. GIFFIN:And Norman, I donÓt Î DAVID:And thatÓs just an estimate. GIFFIN:Norman, am I looking at two days, does that sound right to you? HAYASHI:I think that would be a good estimate. th GIFFIN:Is the 29 a Tuesday, Norman? th HAYASHI:The 29 is a Tuesday. GIFFIN:Then IÓm going to propose that we begin the continued hearing, the third thth series, on Tuesday the 29, and go through the 30 which is Wednesday. HAYASHI:Okay, weÓll try to secure a facility for that then. The first preference, as indicated by the Chair, would be to look at the Keauhou Ohana? GIFFIN:Correct, for the hearing and sleeping. Maile? DAVID:I have another question. When would closing arguments be worked into this two-day schedule and are we having a time limitation on closing arguments, that sort of thing? And then the CountyÓs case is still, IÓm not sure how long Mr. Ishado is going to take in doing the CountyÓs case after Mikahala and I are done. So, thatÓs my question. GIFFIN:Good question. Randy? VITOUSEK:Madam Chair, in following up on my statements on Monday reminded to me by my client, we would definitely prefer to set aside enough time to finish it in this next set of hearing dates, absolutely. And so, you know, we do not, we do not want to get into a situation where we underestimate the duration of the hearing and, therefore, have to incur another two- or three-month delay in the process. So we would ask that we just go with the 28, th 29, and 30 , and if we finish early, great; if we donÓt, we really want to finish on this next set of hearing days. We really want to finish. GIFFIN:Hannah? SPRINGER:I agree with Mr. Vitousek; and that was the basis of my comments of the timing earlier, that we be sure that weÓre allowing ourselves enough time to complete business to the best of our ability, huki-pau in the next session. th GIFFIN:And Norman, maybe, we should look at the 28. 8 HAYASHI:Fine. The only concern is that from the staffÓs standpoint is we do have a st meeting in Kona again on August 1, which is our Planning Commission meeting -. GIFFIN:I know. ththst HAYASHI:So this is why the preference would have been 29, 30, 31. GIFFIN:Well, thatÓs fine too. And, and three days, is that, you know? Because we st will not have Friday the 1. HAYASHI:WeÓll leave it up to the parties, as staff is concerned. ththth GIFFIN:Okay, so at the request of staff, we are looking at July 28, 29, 30, with st the possibility of Thursday, the 31. Mikahala? M. ROY:Madam Chair, while weÓre on housekeeping, I showed the parties the photograph that Klana would like to enter. And may I further research the inform photograph, make copies available, and mail them to the parties? GIFFIN:Yes. And the only person who I think did not see it is Officer Togashi, so if you would be so kind as to show him the picture as well, maybe during the first recess. HowÓs that? M. ROY:Fine. Also I have due you and all parties the copies of Ms. PunihaoleÓs testimony. I believe Sharon was kind to receive one, but I need to make 15. So IÓll make that available, and thatÓs due you today. GIFFIN:Randy? VITOUSEK:Since we havenÓt seen whatever written testimony that was submitted, we havenÓt, that hasnÓt been received in evidence as far as weÓre concerned; and we havenÓt been able to state any position relative to that. In other words, she gave oral testimony. We have never seen any written testimony from her. So if, so we just want to clarify that itÓs not, it has not been offered or accepted into evidence at this point. GIFFIN:YouÓre on the record. Anything else? Maile? DAVID:Just one more housekeeping, I think yesterday we were discussing the submittal of findings of fact Î. GIFFIN:Yes, we were going to discuss that after the public testifier. DAVID:Thank you. GIFFIN:YouÓre welcome. Mr. Torigoe? 9 TORIGOE:I just want to also remind anybody who uses PowerPoint, it would be good if we had a hard copy of the program to keep in the record. GIFFIN:Maile? DAIVD:How many copies? How many hard copies, the regular 15 and all parties? TORIGOE:Yeah, I think itÓd probably be the best. DAVID:Okay. GIFFIN:Thank you. Is there anyone else besides Ron Cawthorn who is here this morning to give public testimony on this agenda item? No one? Okay, Ron, will you please come forward and correct me in the pr CAWTHON:ItÓs Cawthon. Everybody wants to add Ðr.Ñ GIFFIN:Oh. Ron, will you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? CAWTHON:Yes, I do. GIFFIN:Thank you. Will you please state your full name and your for the record? CAWTHON:My name is Ron Cawthon. My resident address is 78-6988 Mamalahoa Highway, Keauhou Mauka. GIFFIN:Thank you. You may begin your testimony. CAWTHON:Mahalo. I brought my glasses this time. Aloha, good morning to each of you. Mahalo for your work and I look forward to you not allowing the further desecration of HawaiiÓs few remaining links to the true Hawaiian Culture. Imag that has been there for more than 22 generations, and no one has run a bulldozer through it. One of the first things that I was told when I came home to HawaiÒi was man bite aina, aina bite man. One of the many current interest holders in this aina, Wayne Blasman has been told by na kupuna and our community a ole, please do not hurt our aina, extraordinary means. Mr. Blasman was given the opportunity to get out with what it cost him, as with many haole people, people that only seek profit and promise of making money and those trying to help him profit for themselves, the engineers, the archaeologists, the lawyers, just to make a living right? Not for our community, nor for the Hawaiia 10 Keakealaniwahine, personal gain at our community expense. The movie Poltergeist comes to mind, aina bite man, aina bite man. At some point, we can only say we told you so Wayne, uhane nui e kala mai brah owie hewa is on you and those that try to profit for personal gain. I will again remind you people, you have the opportunity to protect this most sacred aina. The interest holder of this property has no constitutional duty to malama this aina. You all have taken a, personally, an oath to support and defend Hawaiian rights. It is your kuleana to adhere to the law, not to the dreams and desires of another profiteer from anywhere but HawaiÒi Nei. You should, I would hope that this Commission will finally take a look at the reaction to its actions. You should review the June 2001 Report by the United States Civil Rights Commission or the Draft Report from the U.S. Department of Justice and Department of Interior, entitled ÐFrom Mauka to MakaiÑ. See the reaction to your actions. Hawaiians continue to have the worst health and social and economic conditions out of anyone in the Hawaiian Islands. It continues to appear that most of the people in government do not understand the scope and duties to protect Hawaiian rights. The County of Hawaii, Planning Commission continue to get, kalamai, their butts kicked in the court even though PASH came out in 1996. There are few cultural impact studies. Every time Hawaiians come to these things, contested cases, and show you and tell you a ole, please do not destroy our aina, somehow the haoles prevail. The graves of Hawaiian families are plowed. The sacred sites have houses, all progress? I have faith in all the energy that has been shown by our community to this Commission. You understand that the people love this aina. It is our kuleana to protect one of our islandÓs most amazing places, Kaluaokalani, the second heaven. While Mr. Blasman does have rights, they are not protected by the State of Hawaii Constitution. Hawaiians are. Quoting from the Constitution, ÐThe State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes.Ñ Mr. Blasman has no kuleana to meet a public trust duty, but you do. Mr. Blasman can go back and be a developer in California. You live, you people live here. Your families live here, and hopefully your childrenÓs children will be here. ItÓs up to you to say a ole. Condos are not a compatible use next to a site like Keakealaniwahine. Just say, sorry, we gotta follow the law Mr. Blasman. So, in closing, hey Mr. Mainland developer, go away. Go back to where you came from. We do not need anymore people here who are looking to profit from our aina. We need people that want to malama this special place. 11 Investment has its risks, its up and downs. Sometimes you win, community have to stop you in courts, so be it. If the uhane, the spirits of this aina, have to visit you, so be it. I wish you well and hopefully you have not lost much money. Hey, itÓs a risk you took. Again, this community has given you the opportunity to break even, but you stay for profit at the expense of our community. Man bite aina, aina bite man. This has been a good process for our community. We need to get together and put our individual issues aside and stand as a community to ensure that we never come close to desecrating a cultural treasure like Keakealaniwahine, because we are waiting for government to do something. ItÓs our kuleana. Mahalo nui a aole pilikia. GIFFIN:Thank you. Hearings Officers? Hannah? Grant? TOGASHI:No. GIFFIN:Applicant? VITOUSEK:No questions. GIFFIN:Intervenors? M. ROY:No questions. DAVID:No questions. GIFFIN:Lester? ISHADO:No questions. GIFFIN:Thank you. As I suggested earlier, it is a good time now for us to talk about the procedures for the proposed findings of facts, etc. Mr. Torigoe? TORIGOE:Thank you, Madam Chair. I just wanted to make sure first, the witness is not here, correct? DAVID:Correct. 12 TORIGOE:Okay. So, then weÓll take a little time right now to talk about procedure. I just wonder if anybody, if you had a chance to think about some of the things that I proposed yesterday, and see if anybody has any comments or suggestions? VITOUSEK:Yeah. GIFFIN:Randy? VITOUSEK:My concern is, I, you know, itÓs not a matter of difficulty in preparing proposed findings and conclusions. I should just disclose that thatÓs the first thing I do when I start preparing for a case, because I need to know where IÓm going. And so itÓs really not a problem for us to prepare proposed findings and conclusions, because like I say, weÓve already done that. But I understand that thereÓs a difference between my ability to do this, and the intervenorÓs ability to do this when theyÓre not presented. And I am really reluctant to have the parties prepare proposed findings and conclusions that they submit to the Commission before the evidence is complete. You know, I have a problem with that. I think that forces parties to take positions in terms of findings and conclusions before the eviden to see that. What I would prefer to see is that we, that we, I mean thatÓs just the problem that have. And so I know the County has previously taken a position that theyÓd like to wait until the evidence is complete before the Planning Director makes his findings and recommendations. And thatÓs a procedure that I think should be followed. And so if, you know, weÓre asking all the parties to submit proposed findings and conclusions, that thatÓs asking the County to, they take a position before the evidence is complete, and thatÓs not something I think is appropriate. So, I donÓt know how else to address that. GIFFIN:Mikahala? M. ROY:I thoroughly agree, and thank Mr. Vitousek for being compassionate to our situation. We are not, we need to, we are learning the process as we go and trying to subscribe to it. GIFFIN:Maile? DAVID:Thank you, Mr. Vitousek. That was one of my questions bec essence, if we were to do, if I was to do my proposed findings, my witnesses have not even been put on the stand. So I, that was a question in my mind. ItÓs a good thought, but Î VITOUSEK:I, you know, just to follow up, I really donÓt mind providing the parties with our draft findings of facts and conclusions of law before the next hearing. I donÓt mind doing that because then thatÓll give everybody something to work from if that will speed up the process. In other words, IÓm not trying to, I really donÓt want to delay the process. But I also want, I also would prefer to see a situation where we discuss and object to proposed findings once the evidence is complete, rather than before. GIFFIN:Mr. Torigoe? 13 TORIGOE:I think those are well-taken points. And, as I said, this was just thrown out for discussion purposes. So if the parties would prefer to wait until Lester -. I donÓt know if we got anything from Lester. ISHADO: If I could just comment. We agree that the Planning DirectorÓs recommendation would not come until the close of the evidence. But I donÓt think that should mean that the parties should not begin the data processing of their forms and their recommendations. Because I think this should be done in a manner that expedites the close of this case. And so what I would suggest is, you know, IÓll be glad to share forms with the intervenors, and I probably, indicated that in terms of trying to familiarize themselves with what the forms would look like. And I think that Mr. VitousekÓs offer is well taken. So I would encourage the parties to begin the process even though the hearing is not closed. It doesnÓt mean you canÓt make a draft. It doesnÓt mean you canÓt change y GIFFIN:And the basic format. ISHADO:The basic format. It basically, Mr. Vitousek has indicated this is where, this is how he makes his map for his case. And I think the parties have an idea of where theyÓre going. What IÓd like to suggest and maybe offer is, weÓd be willing to, to get a laptop from our office. If the parties wish to work on it during the hearing, they just have to bring their own floppies and -. What I wanted to also suggest is that if we come back, and this is just for discussion purposes. You know, I donÓt know if I want to come back, weÓre going to have to come back for a hearing before the Planning Commission on the adoption of the findings of fact, that much is clear. And weÓre going to have to come back for the hearing on the merits of the witnesses. Then what IÓd like to suggest is that the parties stipulate that the panel can go ahead and make itÓs adoption of the findings of facts after arguments, of course, but without coming back for further discussion just so that the -. You know, IÓm willing to hear further comments. Again, weÓre throwing things out at this point. GIFFIN:Randy? VITOUSEK:What about the possibility of that, of the Hearing Officers giving notice of a continued contested case hearing at the same time as the Planning Commission hearing and the st regular Planning Commission meeting on the 1? In other words, you know, if you gave public notice that there may be a continued contested case hearing, then at least theoretically between thst the conclusion of the hearing on the 30 and the Commission meeting on the 1, that the Hearings Officers could meet as a, you know, the Hearings Officers could reconvene the contested case hearing and make a decision just as the Hearings Officers. In other words, all IÓm saying, at this point, it might make sense to just put in the notice that the st matter of the continued contested case hearing may proceed on the 1. And then, and then, you know, clearly we could complete the testimony, do oral argument. The Commission could, I mean the Hearings Officers could, could do whatever they wanted to do, and then, and then -. See, this is not, as I understand it, Mr. Torigoe, this is not a situation where under Chapter 91 14 thereÓs a requirement for proposed findings and conclusions that has to be reviewed in a certain timeframe. In other words, this is the Hearings Officers recommendation. The proposed findings and conclusions that would require a Chapter 91 type of review would be before the Commission itself. So, basically, what we need to do is get a, is get started on a document that would be the Hearings Officers recommendations. And the Hearings Officers could, we could argue that on th the 30 or whatever, and then the document could be produced which could adopted by the st Hearings Officers as, as Hearings Officers in a meeting on the 1 if that was noticed. I donÓt know, IÓm just, I guess weÓre trying to talk some possible Î. GIFFIN:Mikahala? M. ROY:Am I to understand that that is a summary in one day of the accounts so that it can be in written form representing the hearing? VITOUSEK:Yeah. So what IÓm suggesting is that, is that the, before the hearings on ththth the 28, 29, and 30, I will, and I will circulate what will be our proposed findings and conclusions. You can, you can add whatever you want. What IÓm saying is that the final document thatÓs produced, the recommendations of the Hearings Officers, that is something that the Hearings Officers produce. In other words, they donÓt even have to talk to us about what it is. ThatÓs their decision, you know. And so what theyÓre offering us, what the Hearings Officers are offering us is the opportunity to have some back and forth discussion about the form of that document before they make their decision. TheyÓre giving us an opportunity to do something that they donÓt have to do under the law. And so thatÓs, and IÓm not trying to, believe me, IÓm not trying to rush the process. IÓm just trying to say, you know, as long as weÓre throwing out ideas, it might make sense to just notice a st continued contested case hearing for the 1 because that gives us an additional day. You have to give public notice of, if thereÓs going to be a hearing, and there are timeframes on giving public notice. GIFFIN:Maile? DAVID:Okay, maybe IÓm not understanding this correctly. So what Mr. Vitousek is saying is that the last three days of the contested case hearings, that you continue the argument on whatever for the, the day the Planning Commission regularly meets, is that what youÓre saying? VITOUSEK:No, IÓm saying we would complete the presentation of te th argument on the, by, on the 30. DAVID:Okay. VITOUSEK:And then if the Commission wanted to prepare and adopt recommendations, I mean if the Hearings Officers wanted to prepare and adopt 15 recommendations, they could prepare their recommendations and then adopt them in a noticed st meeting on the 1. ThatÓs what IÓm saying. DAVID:And when would our proposed findings be due from the parties? VITOUSEK:Well we would, we would submit, we would circulate proposed findings before the hearing, and you would have the opportunity to submit whatever findings, additional th proposed findings you wanted before the hearing on the 28, during the hearing at anytime up until the close of the hearing. DAVID:But I still have a question. We would need to have -. I think we need to prepare our findings and submit it at the same time that the continued contested case hearing is being held. Is that what youÓre saying? ISHADO:Madam Chair, may I suggest that, Mr. Tyler is here, perhaps at our next break we could discuss this among the parties in terms of what the schedule should be like. And -. GIFFIN:Thank you, Mr. Ishado. I think that thatÓs a very good suggestion. And, in fact, thatÓs what weÓll do, weÓll go ahead and take your witness, Mr. Tyler, now since he is here. And then IÓll call for a recess when you can all get together and discuss whatever it is you people want to do might be best. Did you have another proposal Mikahala? M. ROY:Will we be discussing with you then at recess or is this to be on record when we discuss this matter? GIFFIN:No, I think it would be best that it not be on record. You people can discuss it during recess. TORIGOE:Just to clarify, this would just be an opportunity for the parties to discuss among themselves what might work in terms of a procedure to finalize and assist the panel in finalizing a recommendation to the Planning Commission. And then whatever is decided, obviously, youÓll come back and put it on record. st M. ROY:So youÓre suggesting that the Planning Commission hearing on August 1 is the Commission hearing that youÓd like to make a recommendation on this case? TORIGOE:I think what Mr. Vitousek was suggesting is that since weÓre having these thth evidentiary hearings on the 28 till the 30, that immediately at the end of that, you could have your final argument. And after that, the panel could look over whatever proposed findings the parties have provided, make up their own findings, whatever those are, in recommendations. st And then on August 1 the panel could meet and officially adopt the recommendation, and then that would be transmitted to the Planning Commission. 16 M. ROY:Thank you for clarifying, cause then I have an answer. Kulana will not be able to. TORIGOE:Okay, well again since Mr. Tyler is here, perhaps we can allow him to testify. And then you all can talk about what might be doable, and then we can discuss it on record after that. M. ROY:Thank you. Madam Chair, I had proposed, perhaps a short appreciated because in the event that -. As it appears, Ms. Kanahele is not appearing at this moment. We have calls out to her at the moment. I, my father is here. I do have some remaining questions for that opportunity. Mr. Tyler is also here. So may I in that, in this brief recess have a minute to speak with both of them and talk to them about their time availability. GIFFIN:And how long did you want your recess for? M. ROY:Ten minutes. GIFFIN:Fine. WeÓre in recess. RECESSEDThe Chair recessed the meeting at 10:07 a.m. RECONVENEDThe meeting reconvened at 10:24 a.m. GIFFIN:Good morning. IÓd like to call the meeting of the HawaiÒi County Planning Commission back to order. This is a continued contested case. The applicant is Wayne Blasman, and the SMA, the applicantÓs number is SMA 02-03. This Special Management Area Use Permit to allow the development of a 13-unit condominium project and related improvements. When we recessed, we agreed that we would then go into the witnesses that were proposed for today. And I see Mr. Tyler here, so Mikahala letÓs begin with Mr. Tyler. M. ROY:Thank you, Madam Chair. GIFFIN:YouÓre welcome. Please come forward so I can swear you i Do you swear or affirm to tell the truth on the matter before us with the HawaiÒi County Planning Commission? TYLER:I do. GIFFIN:Thank you. Your name and resident address please? TYLER:Hello. Aloha kakou. My name is Curtis Tyler. IÓm a resid Palisades Estates up in Kalaoa. IÓm a lifetime resident of Kona. My mailing address is 73-4325 Laka Place, Kailua-Kona, 96740. My home telephone number is 325 17 this morning at the request of Mikahala Roy. And I am appearing on my own behalf as a kamaaina. IÓm not here in any way shape or form representing the Hawaii County Council, although as you all know, I am a council member. But IÓm here i morning. Thank you. GIFFIN:YouÓre welcome. Mikahala? M. ROY:Thank you. Good morning, Curtis. TYLER:Aloha kua. M. ROY:Thank you very much for being here. Aloha kua. Will you begin today by going through a, the background of your connection with Kaluaokalani, the area that weÓre talking about with regard to this application by Wayne Blasman? TYLER:IÓll do my best. I would say that maybe 50 years ago, maybe 51 years ago, somewhere around 1951 or Ó52, while I was living in Kailua on the property now occupied by the Kona Bay Hotel, I had occasion, more than one occasion, to go to Hlualoa which in those days was pretty far distance, to visit a friend of mine. His name was Tommy Siegfried. And he and his parents and his grandfather, Colonel Watson, lived in the only home that was in that Hlualoa area at the head of the bay, and that home is still there. ItÓs a two-story home. And I believe I may have spent the weekend with him on at least one occasion. The most, the most memorable part about that weekend was visiting what I now know as Keakealaniwahine complex. My friend said to me, you know, I want to show you this giant heiau up here in this whole area of all these heiaus, or whatever. And my recollection about the Ò50s in Kona was that being Hawaiian wasnÓt at the top of anyoneÓs status list. That while I tried on numerous occasions to learn to speak Hawaiian, every time I ask someone who I heard spoke, speak Hawaiian, you know, say, oh, we canÓt do that. We canÓt speak Hawaiian. And when I asked about my family roots, I was told, you donÓt have any Hawaiian and things like that, or, you know, well, bum by. So at the same time, in the Ò50s, Dr. Kenneth Emory was coming t have been here a long time will remember. And he was doing archeological work here, and I remember him coming to the house in Kailua, something I was just fascinated with, archaeology and all this. So, anyway, I remember going to Keolonhihi to the heiau there; and what happened was unforgettable, because I didnÓt want to go and climb up on the heiau. I didnÓt want to go and, I was kind of nervous because itÓs like we were always taught, you know, donÓt mahaÒoi, donÓt go into caves, and whatever you do, donÓt go and take anything out of these places. And I remember, I think I was about six or seven years old, that IÓve come to know that now, you know, some people call it HoÓokkala, you know, the chicken skin. And, I guess, I didnÓt have too much hair on my arms but I just remembered what happened, was I said, ÐI think we better get out of here.Ñ And I never visited that site again, until maybe a year or two ago, maybe, 18 in connection with a number of us went down there. I canÓt remember. It might have been in connection with this application. I just donÓt remember. But, my upbringing just said, you know, not to go and mahaÒoi, donÓt go in someplace you donÓt bel So anyway, over the years, maybe the last 20 years or so, IÓve, 1973 from living on the mainland, the Hawaiian renaissance, especially its music and other things were in full, full bloom. And I become quite involved in, in, in the musical part of it. And also because of my interest in what we now know as a cultural resources, archaeological things, culture, I started reading as much as I could. And I learned, I Keolonhihi and also Keakeakalani. I also remember in the Ò50s two men who were from Kona. One of them lived at Kahaluu, his name was Naluahini Kaopua. And Naluahini was a quite an old man in those times. I donÓt know how old, but I was seven, so I guess anybody over probably 8, 12 years was probably old. Anyhow, he was very, he had very white hair. And he lived down by himself at Kahaluu. And his friend, John Kekahuna, they traveled around Kona, and they made these maps that some of you may be familiar with. I think, I think we see, I think this is one of them perhaps. So I think it was in the Ò70s, there was a strong interest, strong interest in this area. They called it Kamoa Point Complex, and there was possible development and things like that down there. So people, I know there were Friends of Kamoa Point, and so all and then the State got involved, fortunately. They produced a number of documents which IÓve, all of which IÓve reviewed. And those times were different. A lot different than they are now, but weÓve also learned a lot since that time. And I guess in over the years, IÓve, IÓve heard people talk about the significance of Keolonhihi and Keakealaniwahine Complex and tried to separate the two as if they are not connected. And I donÓt know if that subject has come up here today, but I just wanted to say that if thereÓs any doubt in your mind that these are not connected, the Hearings Officers and all the Planning Commissioners should read this document from beginning to end. And you would find, not only here but other references, that not only poi Hawaii, but poi Haole, scientists, archaeologist, have clearly pointed out the connection between these two, also from Kaumalumalu which is not the subject of this discussion today. Unfortunately, Kaumalumalu, at least makai of AliÓi Drive, has been lost. If you have any doubts about the scenic resources that are available, IÓd call your attention to this document which is photo number three, the larger version of it which is also on the cover of the Keolonhihi State Historical Park final environmental impact statement prepared on October, 1995 by Dr. Ron Terry for the DLNR. So, IÓm sure IÓm not the f who has talked about the significance of this area. Anyhow, that was a long answer to a short question. IÓm not sure I even answered it all, but -. M. ROY:IÓm, you have begun, Curtis. I am aware of your deep con these land areas being raised in this Kailua area, and thatÓs why weÓre grateful that youÓve made time available to speak today. TYLER:YouÓre welcome. 19 M. ROY:Technically speaking, would you care to elaborate on any important aspects of the coastal zone management system that is available to us by law today? TYLER:IÓll try. I guess the reason why IÓm sitting here is that thereÓs some peo or not a special management area permit should be granted for, for this proposed development. As I think IÓve stated to the Planning Commission on more than one occasion, and certainly at least once with respect to this proposal, which, which areas are located in the coastal zone management area, is that the, the Commission in this case, the agency in this case, the HawaiÒi County Planning Commission, is obligated to have certain findings before you can even think of approving this application. And I think that itÓs important to look at the Coastal Zone Management Act, which is a federal, federal statute, in what was intended. Because all too often we find in the Planning Commission hearings when SMAs, special management area applications are filed, that the background reports talk about those things just in the coastline areas. They talk about those things close to the, close to the kai, to the kahakai. But that was not the, that was not the only intention of the Coastal Zone Management Act. And, so every time I read one of those, it just, it just turns m Zone Management Act applies to the coastal zone management area. HawaiÒi Nei, means all lands of the State and the area extending seaward from the shoreline to the limit of the stateÓs police power and management authority, including the United States Territorial sea, which is the archipelagic waters as defined in our Constitution. So itÓs from the top of the, top of the mountain to the bottom of the ocean, every square inch. ItÓs not just whatÓs makai of Kuakini Highway. And so you cannot look at this in only with a special management area. You have to look at this whole document because the document says that everything in here is for the coastal zone management area, not just the special management area. There is, there is a subdivision of this, for the, what is called a special management area. But you have to look at the list in its entirety. And the beautiful part about this whether or not the, the congress intended this, I donÓt know. But this, this re-enforces and enhances the ahupuaÓa land use system, which has been in existence in this land for probably at least a 1,000 years. IÓm not quite that old, so I donÓt, I cannot go back quite that far. But IÓm told that itÓs very ancient. And we are the only state in the union in which every square inch is subject to the Coastal Zone Management Act. Now, the Coastal Zone Management Program as defined in the Hawaii Revised Statutes 205A-2, first talks about objectives. And it says that ÐThe objectives and policies in this section shall apply to all parts of this chapter.Ñ And this includes, of course, the SMA, the special management area, which is the subject of our discussion, IÓm sure, that youÓve had for the last few days and will continue to have. And under No. B, Objectives, (2)(A), it says ÐHistoric resources;ÈProtect, preserve, and, where desirable, restore those natural and manmade historic and prehistoric resources in the coastal 20 zone management area that are significant in Hawaiian and American history and culture. Well, if thereÓs any doubt in anyoneÓs mind, and I donÓt know what happened the last few days, that this isnÓt, if this isnÓt a significant area in the Hawaiian history and culture, then somebody hasnÓt been doing their homework. Because this, as I understand, it is equivalent of a pyramid. Although itÓs not, not strictly a burial ground, there are burials. No. 2 of this section talks about scenic and open resources, and number, IÓm sorry, No. (3)(A talks about scenic and open resource. And it says, another objective is to ÐProtect, preserve, and, where desirable, restore or improve the quality of coastal scenic and open space resources. Again, I call your attention to this picture. I donÓt know if this has been introduced as an exhibit or not, but -. M. ROY:We just did this morning. TYLER:The photo has been introduced, okay. So, I mean, anybody that has at least one eye, and I have at least one eye, not two, but one, can see this and see that the open scenic resource, from mauka to makai and from makai to mauka, was rather significant here. The fact that we got alien species, which have, and other invasives which have invaded this area doesnÓt mean that it doesnÓt exist. ItÓs there, you know. And so people can say, well, you know, gee, you drive along here, you canÓt see the shoreline. Well, you have keawe trees, ekoa, sometime opiuma, but all that is invasive. ItÓs foreign, alien species. So, you gotta go back and look at whatÓs pono. You gotta go back and look and find out what is true. And this is a true picture. And, you know, this says in here that these two things were connected before AliÓi Drive cut through there. And, you know, you can go down there and find the old road. Anyhow, I digressed. There other part of the Coastal Zone Management Act talks about the policies. And under No. (c)(2), titled ÐHistoric resources,Ñ which today weÓd probably more accurately call cultural resources, it says, Ð(A) Identify and analyze significant archeological resources; (B) Maximize information retention through preservation of remains and artifacts or salvage operations; and (C) Support state goals for protection, restoration, interpretation and display of historic resources.Ñ And we all know what the State has said about this. IÓm sure that has been introduced as an exhibit as well. But No. (3) then goes on to talk about, again, under policies, ÐScenic and open space resources; (A) Identify valued scenic resources in the coastal zone management area;ÈEnsure that new developments are compatible with their visual environment by designing and locating such developments to minimize the alteration of natural landforms and existing public views to and along the shoreline; (C) Preserve, maintain, and, where desirable, improve and restore shoreline open space and scenic resources.Ñ Certainly, that seems to be important, especially when viewing this picture. Also, under No. 7, under Policies, which is titled, ÐManaging development; (A)Ñ says, ÐUse, implement, and enforce existing law effectively,Ñ thatÓs a wonderful word, effectively in there, Ðto the maximum extent possible and managing present and future cultural zone development; 21 (B) Facilitate timely processing of applications for development permits and resolve overlapping or conflicting permit requirements; and (C)Ñ is to ÐCommunicate the potential short- and long- term impacts of proposed significant coastal developments early in their life cycle and in terms understandable to the public to facilitate public participation in the planning and review process.Ñ I dare say if the Hawaiian community at large knew some of the p connection, and perhaps not everyone does as some of us do, there would be a lot more people here. But, anyway, itÓs real important. Now, I want to turn to 205A-4 which talks about the implementation of these objectives, policies and guidelines. And it says in Ð(a) In implementing the objectives of the coastal zone management program, the agencies shall give full consideration to ecological, cultural, historic, esthetic, recreational, scenic and open space values, and coastal hazards, as well as the needs for economic development. And then it says in Ð(b) The objectives and policies of this chapter and any guidelines enacted by the legislature shall be binding upon actions within the coastal zone management area,Ñ not just the SMA, Ðby all agencies, within the scope of their authority.Ñ So we note the authority, the scope of the authority of the Planning Commissioners. And it says further in complying with 205A Î. VITIOUSEK:Excuse me, Madam Chairman, may I object to the line of testimony. My concern is in part for time, but you know, but IÓm, for one, weÓre in a situation where the witness is simply giving a narrative response. And itÓs not a question and answer, which is an objection in itself. But the, you know, while we value Mr. TylerÓs input, IÓm just not sure that the time is best spent with a witness reading Chapter 205A into the record. In other words, itÓs been a long hearing. WeÓve already, we already have Chapter 205A as a reference. Certainly Mr. TylerÓs perceptions and opinions made on the application may be relevant and on a range of issues, but just spending time reading the statute into the record is Î. GIFFIN:Thank you. Mikahala? M. ROY:While your comments toward the reading of narrative may b here, what is, exactly what you just said, Mr. Vitousek, is the meat of it. Councilman Tyler comes with his expertise as a councilman and in his professions. And he is sharing with the depth of, with emphasis these areas of that law that, in his opinion, deserve note. So your point is well taken, but I appreciate Mr. TylerÓs going into the areas where he cares to highlight on the basis of his information, background. GIFFIN:Mikahala, I am going to agree with the applicantÓs representative regarding his objection to the, the train of the testimony. So if youÓll continue with just questions that he can just answer that really are germane to what weÓre discussing, and not necessarily to the policies, which we already have. Thank you. VITOUSEK:If I may clarify another point, because I think that Mr. Tyler said that he 22 was here testifying in his individual capacity and not his capacity as a councilperson. And so I would limit my cross-examination to the individual capacity. And I respect, I respect Mr. TylerÓs statement to that. GIFFIN:Right, right. VITOUSEK:ThatÓs a very appropriate, professional thing to do. GIFFIN:And his personal knowledge in regards to the site and the application, thatÓs perfect. VITOUSEK:ItÓs very relevant,yeah. TYLER:Yeah, I apologize for reading that. I think the objection was a reasonable one because after all, all of you can read. There are certain highlights here. GIFFIN:You donÓt need to read for us. TYLER:Yeah. I thank you Mr. Vitousek, because I know your time is valuable. I apologize to the Hearings Officers. GIFFIN:Thank you. Intervenor? M. ROY:Thank you. What I can appreciate is the passion that is placed as a living person to these words on the paper; and thatÓs what I appreciate here. Because we all can read, then why are we in this situation of complex difficulty with laws? But what carries things is passion for, and love of places and cases. So thank you. Mr. Tyler, would you say that this location is of importance to, to your family first, to the race to which you belong as a Hawaiian, just speaking in the Hawaiian, in Hawaiian heritage? Just that question. TYLER:Yes, it is important. IÓm told, but I havenÓt been able to confirm, that my interest in this area is because of, of my, my descendency, my lineal descendency. I havenÓt been able to confirm this, but IÓve had four or five people come and tell me, well, you know, the reason youÓre here speaking today is because of Kupuna O Ka W Kahiko have told you to come. And all I can tell you is my experience. I have, I will also tell you, I have never set foot in Keolonhihi. The only reason I went back to Keakealaniwahine Complex was I was with some people who, who are direct descendants and asked me to go with them. I never set foot on any heiau or anything. And I wonÓt go back there unless IÓm with someone who, who has a connection, because thatÓs the way I was taught. So, yeah, itÓs, IÓve come to know this place from early on as a youngster, and now as a makua to, who has had a chance to read the palapala and do his own research that this is a very, very, very, significant place. It may be the most significant place, and IÓm talking about both of these complexes in all of HawaiÒi Nei. 23 M. ROY:Mr. Tyler, if youÓre not familiar, Dr. Rechtman is the, Bob Rechtman is the archaeologist that has produced a, the study that is being reviewed at present. He has given testimony, almost a dayÓs worth. Are you familiar with the findings of the State Historic Preservation Dr. Hendrick, Dr. Pat McCoy regarding that assessment that Dr. Rechtman did for this property? TYLER:I am. I have seen both his assessment and also the response of the, of the division. M. ROY:While youÓre not an archaeologist by profession, can you opinion of the findings of Dr. Rechtman, if you can recall, in general? TYLER:Well, I think my first reaction was where is the graveyard. I looked in there, and I couldnÓt find the graveyard. And so I called up Mr. Mooers who is the consultant for Mr. Blasman, and I said, ÐYou know Greg, I read this report, thanks for sending it over. There seems to be something missing here. WhereÓs the graveyard?Ñ He said, Ðwhat graveyard?Ñ And I said, ÐWell, I think itÓs right in this area. There used to be steps leading up there. There were loulu there and, you know, a little pavilion. And I actually went to one burial there. And he said, ÐI donÓt know.Ñ I said, ÐWell, you better call upÑ Bob or ÐDr. Rechtman and, you know, find out.Ñ So he did. And Dr. Rechtman called and said that those, that there had been a graveyard there on adjacent property to the south. I think itÓs Ms. CookÓs property now. And that it was, these iwi were disinterred and re-interred someplace else by family members. That parcel that Ms. Cook owns is a very small parcel, and I recall that graveyard being much larger. So I said, ÐWell it must have extended north.Ñ And he said, ÐWell, we donÓt believe so.Ñ But my understanding after talking to Dr. Rechtman is that, and my insistence actually, is that he went back there. He said that he had gone, gone over that whole area. And itÓs covered with night-blooming cereus; and what I remember about the night-blooming cereus it covered the walls around the graveyard. And so it appeared to me, in my laymanÓs commonsense thought, is that the wall that, that the night-blooming cereus came down and went into this area which is directly adjacent to and mauka of Alii Drive. And thereÓs a wall partially around this area. So I actually went down there to see if we could even find those graves. And we couldnÓt even pass, pass through the night-blooming cereus. So I spoke to Mr. Mooers, and I said, I really think you ought, you ought to have Mr. Rechtman, Dr. Rechtman go reported back to me that they went down there, took a crew and they found nothing. And I have not been back there, so I donÓt know whether they cut through the night-blooming cereus or not. I donÓt know. M. ROY:Curtis, do you, there has been testimony in the early part of this hearing system that there, in the plans for the development of this, of this building system, they plan to excavate and go down into this area. Dr. Rechtman reports that he feels there are no subsurface features on this land. You as a resident kamaaina, can you speak just of your general knowledge or your beliefs of this land as you know it? 24 TYLER:Well, first of all, with some limited exception, most burials that I know about are put under the ground. So it would be what I would call subsurface. I donÓt know whether there are any burials there or not. As I say, itÓs almost impossible to go in there, and impossible. I know that this whole area, this whole coastal area was quite inhabited. I remember digging in the back yard across from Kona Inn to make a vegetable garden and finding adz fragments, a fishhook and some other things, just digging in, you know, like a few six inches down. ThereÓs not a lot of lepo here, but there is some. So I would be surprised, given the significance of this area, and itÓs connection, and IÓll be surprised if something wasnÓt found in that area. M. ROY:In testimony yesterday, we spent some time on some history related to the area. Mr. Roy testified that he understood that this would be one of the largest SMA areas in the State of Hawaii today, special management areas. We also discussed the predominance of aliÒi families along this coast. Would you concur with that testimony TYLER:I would. There was an attempt by a previous Planning Director to, I donÓt know if itÓs the largest SMA in the State. I donÓt know that to a fact, but itÓs a large area. I know that the Planning Department some years ago tried to downsize the SMA to make it makai of Alii Drive. And that met with very strong opposition, not only from myself, but literally hundreds of residents around the island. And although the Planning Commission passed it anyway, the lead state agency which at that time, I think it was the Office of State Planning, negated it at the request of many of us who said, you know, this was wrong. And itÓs, from the 205A, that provision is in there. As for the chiefly families, well Hlualoa, this area of Keolonhihi, the whole Hlualoa area, even including the lands to the north where thereÓs another large heiau north of the Siegfried residents, and right directly mauka of Kona Palms Condominium is a Hlualoa chiefly residence. And IÓm sure youÓve heard the history, we know of that history. KahaluÒu and Keauhou were very important areas. IÓm sure you know, that everybody knows the history of that. And Kailua, well Kailua is a bay. But the Lanihau area, ÒAuhaukeaÒ, ÒAuhaukeaÒ was the residence of the queen mother Keopulani. Kamakahonu wh in the ahupuaÓa of Lanihau was also the residence of Queen Kaahumanu, the favorite wife of Kamehameha ÒEkahi. And also, of course, it was his, it was his last residence. I guess, I mean thereÓs others, Kalkaua and others who were here. M. ROY:And you would say then that youÓre confirming that, that that testimony for aliÒi occupancy of these lands is truthful to your knowledge? TYLER:Oh, itÓs, absolutely and, of course, itÓs, you know, the written record is replete with that. They knew a good place when they saw one, yo M. ROY:Thank you. With regard to population of an area, when on remains go in the areas that theyÓve occupied. Would that be a safe assumption? 25 TYLER:Well, today that, that doesnÓt take place, I donÓt think, very often, although my understanding is that some people are trying to get the law changed so that they can do that. But, my, my understanding of the times of old, for the people of old, in fact that was very important for them to be there because of the significance especially, especially after the mhele too, because of the fact that they actually came to possess some of these lands. And I have Òohana that are buried at Phoehoe 3, quite a significant number though, as you know. M. ROY:Thank you. No further questions directly. I open it for, the floor for cross-examination. GIFFIN:Thank you. Hearings Officer Springer? SPRINGER:Thank you. Mr. Tyler, I believe you have a copy of 205 TYLER:I do. SPRINGER:Revised Statutes before you. IÓm looking at 205A-26(2)(A). But before we go into that, in addition to being a councilman, could you give me some background as to your professional endeavors? TYLER:Well, letÓs see. I was trained in my undergraduate studies in soft rock geology. Mr. Vitousek and I attended the same college, and as well as the same high school. I, I had occasion to attend the Columbia University Graduate School for a short period of time. I was also, IÓm also a graduate of the Officer Candidate School at Newport Rhode Island and served as an Naval Officer for a short period of time before I was retired for my, for medical reasons. I have been a real estate, realtor associate, a real estate agent here in Kona. I have worked with the Ironman Triathlon for an extended period of time, I believe it was around eight or almost eight or ten years. I have been a, I was a self-employed insurance agent for approximately 12 years after my first, after my return to Kona in 1973. And I attended numerous financial planning courses, both here as well as in the mainland. I, I have, prior to my council activities, which has consumed all of my waking hours, I might say, I have, I was involved in property management activities here in Kona. SPRINGER:Thank you, Mr. Tyler. I was especially interested to see if you did have any professional experience either in property management, real estate or other businesses. Now, if we can return to 205A-26(2)(A). The second sentence after a discussion of adverse effects reads: ÐSuch adverse effects shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect, and the elimination of planning options.Ñ 26 I wonder if you could discuss your understanding of this application with reference to that section of 205, particularly with regard to the cumulative effects? TYLER:Yes, IÓll try. ThatÓs an excellent question, though. The, much of what we see today in the palapala, in the documentation, is a snapshot view of a proposed project. Indeed you have one before you today that is being considered by the Planning Commission. My experience has been, is that, with limited exception, virtually all of these proposals whether they are small or large are very, very seldom, if ever, taken into consideration, the cumulative impacts of, of pre-existing and/or future, future development in the particular area. And the obvious, the obvious, one of the obvious reasons, it seems to me for this, would involve the viewplane, or the open, the scenic resource. My recollection, though I have not reviewed it recently, is that 243, Chapter 343, the environmental impact statement law may say something about the cumulative impacts. I remember that there was, I donÓt know if itÓs in the Federal law or the State law, but that the cumulative impacts, in addition to what youÓve read here, have to be taken into consideration. And that question has been asked at the Council level on one, few occasions, but not very often. I donÓt recall that question being answered. But my understanding is that the potential cumulative impact of individual developments, if anyone has any doubt about the importance of this provision, one merely needs to go on the highway coming north from Kealakekua to Kailua anytime in the mornings, especially in the early morning, or try to get from the airport to, to, well, back to Hnalo. And I think we read about this in the paper yesterday afternoon, yesterday morning what the Mayor actually had to say about this. So thatÓs the reason, I think, cumulative impacts are so important and must be considered. That, obviously, is why weÓre in here, too. Thank you. Did I answer your questions? SPRINGER:Yes, thank you. Madam Chairman, may I continue? GIFFIN:Yes. SPRINGER:Mr. Tyler, are you familiar with either or both the Topliss decision which was rendered in 1993 or the Hanapi decision which was rendered in 1998? TYLER:Well, I think youÓll have to refresh my memory. I know, I know of both those cases. I donÓt recall the specifics of them. SPRINGER:Well, of particular interest to me as a Hearings Officer here, while, well, or better versed in 205 of the revised statutes as well as 343, and the guidance documents for the HawaiÒi County, this case law draws our attention. And IÓll quote from the document that was circulated to all the parties yesterday. ItÓs on page 11 of 13 on the Hanapi document. And Mr. Tyler IÓll read it for your benefit. 27 TYLER:Okay. Thank you. GIFFIN:Hang on. SPRINGER:IÓm also looking at page 4 of 13 of Topliss. And this is from the documentation that was circulated yesterday. TYLER:IÓm sorry I wasnÓt here to hear, and that you have to read it again. I apologize. SPRINGER:No apology necessary, Mr. Tyler. It was circulated. It has not yet been referred to. GIFFIN:Hanapi what page? SPRINGER:Hanapi 11 of 13 on your upper right hand corner. And just below that, it says page 10, and then on the right hand column -. TOGASHI:Excuse me, Commissioner Springer, I believe what was circulated yesterday is something else, yeah. SPRINGER:IÓm sorry, yeah. TOGASHI:That could be more detailed than what we were provided f SPRINGER:Thank you, Mr. Togashi. IÓm sorry to all parties and members of the public. IÓm sorry, Madam Chair, may I take a moment to find the appropri GIFFIN:Yes. SPRINGER:Pages? If Mr. Togashi has any questions, he can go on ahead. TOGASHI:Would you like me to ask some questions while Hannah fin appropriate page? GIFFIN:Mr. Togashi, yes. TOGASHI:Thank you, Madam Chair. Mr. Tyler, you spoke of as a child visiting the Kaluaokalani area. And it seems like you pointed out one, in one case where you were invited by your friend Mr. Siegfried at the age of 7. Were there many other, other occasions where you had the opportunity to come to this area to either play or to observe? TYLER:You mean to the, to the Kaluaokalani? 28 TOGASHI:Right. TYLER:No, it was just that one occasion. Well, I believe it was once. It might have been as many as two, but it wasnÓt more than that. Because of my first experience I didnÓt, I didnÓt feel comfortable. TOGASHI:I see. TYLER.As I said, I havenÓt gone back except one other time. TOGASHI:I thought it was very interesting that in the, in the study of the, the State study of the Keolonhihi Complex, you pointed out that photo in there, and you mentioned that in the context of, of the scenic resources. And what I thought was very interesting is that you, you made a comment that, well, you should look at the application in the context of what that picture showed of what things were at one time. And there was also, I believe, testimony from the writer of that study, Mr. Terry, that, you know, we should look at the application not in terms of what things were once were, but what is currently there. And what would you say to that? I mean you canÓt -. I guess what Mr. Terry is saying is that, you know, you look at it in terms of whatÓs there, and you canÓt really take back what has ensued in the years in terms of vegetation, in terms of subsequent development. IÓd just like you to comment on that, but I thought it was a very interesting point that you made. TYLER:Well, thank you and good morning, Mr. Togashi. TOGASHI:Good morning. TYLER:I guess my comment, let me first reflect on my comment about this area in this photo. Part of the significance of this Hlualoa chiefly complex is its location. If you look at an aerial view of this area, you will see, you will see how, how the Keolonhihi is protected from the sea on three sides. And while I donÓt claim to have intimate knowledge of, of its, the reasons why it was originally constructed, this complex cannot be looked at, you know, in parts. It has to be looked at in the whole. And I think what, what Commissioner Springer said about the cumulative impact, at the same time we have to look at the c And I, let me say that the reason I pointed this out is because thereÓs no doubt in my mind that this viewplane was a significant part of, of this complex. And that itÓs intrinsic cultural value, i past value, its present value, and its future value is, is partially embodied in this connection, and this juxtaposition. I recall reading, although itÓs not in here, I think was Kamakau perhaps, reading about the training of Kamehameha akahi here from surfing, and lua and other things, and that he, the area on that picture were, about where this property is actually is, itÓs like a high point. ItÓs, some call it puÒu, others call it nuÒu. And that, in fact, he lived over there. And I guess part of the reason that he was there had to do with this, this viewplane. 29 Now, Dr. Terry, while heÓs trained as a, I think heÓs an environmental, I canÓt remember what his degree, his Ph.D. is in. But, and I know him, and I respect him. I donÓt believe that he is of Hawaiian ancestry. I donÓt believe heÓs from here either. I could be wrong. If I am, I apologize to him in his absence. But something thatÓs very difficult to explain, for me to explai western system, you know, as was Mr. Vitousek. And, you know, h and I think they have a great attorney. And I, yet at, for me the difficulty that I have now as someone who has been educated in the western system is that I was raised in a Hawaiian system, not so much at home but in the community at large. And what IÓve come to understand, and it actually took me going away to Massachusetts to really get the full import of this, is that what is visible is not, not always the most important of our culture, although weÓre talking about the scenic resource here, and that was your question. ItÓs the hidden, the huna, the huna or the, the internal aspect of, of this place, and what this embodies, is why IÓm here. I mean, I didnÓt ta these people and find out what weÓre going to talk about today. IÓm here because, IÓll always be here for this place. ItÓs just something that, itÓs in manaÒo. ItÓs just there. And, you know, some people say, well, because youÓre lineal connection. ItÓs internalized to me. And so as I read, as I read 205A, it says that, you know, when we have places of significance and importance, we should strive to where, where possible to restore these important values. And, in fact, in this report, this EIS, at the back of one of the appendixes is a document, Appendix H which is called Conceptual Plan from a Hawaiian Perspective. Indeed, it reflects on, it was written for Keolonhihi, the makai portion of this chiefly residence, and prepared by Pualani Kanakaole Kanahele. But, thatÓs it. ThatÓs the difference. ItÓs a Hawaiian perspective And I donÓt know, I donÓt know how else to explain it except to say that she in here, she recommends that the residences that are between the Old Government Road, this little section right there, let me point to it, this section of road right there and that realigned Alii Drive, those should be purchased, because theyÓll interfere with Keolonhihi. And I remember, let me get up here because this thing is not lon right here. And what happened when this, I think itÓs called Casa del Sol today? Anybody remember what happened in that property, when the bulldozer ended up in that property? Well, that bulldozer sat there broken down for no apparent reason for, I think, at least a year. It went on that property and greatly disturbed that property, and make. And, you know, the talk in town was, well, you know -. I mean you hear this from a guy whoÓs educated in the western system, but we went ÐOh, yeah, well, no wonder. They went into a place and made some hewa; and thatÓs the end of it.Ñ So, you know -. Anyway, I donÓt know. Did I answer your question, partially? TOGASHI:Yeah you did. And, essentially, youÓre saying that you have to look at the, well, the reason why the picture was changed is that there have been cumulative impacts from progress, perhaps not in this area, but just accumulative vegetation throughout the years. But I can appreciate that answer; and let me just move on here. 30 TYLER:And great neglect, by the way, I might add, if I can interrupt you, great neglect by, by those, the trustee entrusted with taking care of this. In fact, some of us tried to go and clean up some of these areas. We were precluded from doing so, even with volunteer labor. Because, well, we donÓt do it because we donÓt have any money. Well, weÓll do it volunteer, cannot. TOGASHI:You also spoke of the puÒu in this area here. And as a, I guess, youÓre noted for your scholarly work or your interest in Hawaiian history. I was wondering if you knew anything about why, why the Alii Drive perhaps bisected the puÒu. Would you have any knowledge on that, perhaps why they went through the puÒu, and maybe not, and in lieu of that perhaps not going through or the finding a different configuration? TYLER:IÓm not laughing at your question, IÓm just laughing at my answer. Well, you know, for poe haole, the shortest distance between two points is a straight line. And for poe HawaiÒi, they never had heavy machinery so they went around with that old road, number one, and number two is IÓm sure that they knew the significance. Today, if you look at the consultants who are hired and, they donÓt have knowledge. And also, and perhaps most importantly or most significantly, this alignment, this realignment happened in the Ò50Ós, I think. I think it happened in the late Ò50Ós. And, like I said, in the late Ò50Ós being Hawaiian wasnÓt a very cool thing except to those who really practiced it in their homes. But, so, I think that thatÓs probably, probably the reason. Now, more recently there has been development in that adjacent, on Alii Drive. Two, two things have happened. One is that Kona Construction, I believe, installed a waterline along Alii Drive in the early Ò70Ós, I think. I think it was right after I came home, maybe around Ó75. And the contractor committed some great desecration of the mauka portions of Keolonhihi on the makai side of Alii Drive. IÓm sure youÓve seen those on the map. It shows where the bulldozed area is. There was a huge outcry at that time regarding that. And our, our appointed stewards, as I recall, did nothing despite the outcry. The second area, second thing that happened was more recent, and that was when the sewer line, the force main was put in. And that was probably in the Ò90s, the mid Ò90s maybe. ItÓs the last century, I should have said that. And what happened there was the County, because the right-of- way was not fully developed, I believe, is, and they, because of the way that the sewer line is constructed, straight lines, it doesnÓt go on curves, they cut into the areas of what you would call puÒu. And they further, further widened the physical part of the right-of-way. ItÓs not that the right-of-way wasnÓt wider, but that they cut away other portions of what was puÒu or nuÒu. And then they built these, and thatÓs when, thatÓs when the stairs w ThatÓs when the stairs were removed to the, to the ilina, to the graveyard that I mentioned earlier. And what they did was then they built these, these rock, concreted walls because the slope was larger than, you know, greater than two to one or something. So there has been, there has been 31 further desecration of that area by people who know better, but maybe didnÓt have all the knowledge at the time. ItÓs been, this place has been grossly neglected and very poorly, very poorly treated over the years given, what I believe, to be a significance. TOGASHI:You mentioned, you know, in your childhood or your remem attending a burial on that subject property. At what age were you when you attended that burial? TYLER:I was probably about eight or nine years old. TOGASHI:And itÓs still vivid in your mind out there -? TYLER:Uh huh. TOGASHI:Which extends beyond the so-called Kimi Cook property? TYLER:Yes, I believe it was north of it. It was an area that was enclosed, as I stated earlier, by the stonewall. TOGASHI:Right, right. TYLER:There were a number of, there were a number of burials del stone. In some cases, as I recall, there were some concrete where they put like a mortar over the top. I remember the flowers. I remember the loulu tree. And I only went there, I think I only went there once. Graveyards were not a place that, we didnÓt frequent as children. TOGASHI:Right, right. TYLER:ItÓs not pono to go there. But I think it was Mr. SiegfriedÓs grandfather who might have had his service there, Mr. Watson. TOGASHI:So, the burial area was, in your remembrances or recollection is, beyond what you, what is defined as the Kimi Cook or the Mueller property? TYLER:Yes. And in fact Dr. Rechtman indicated to me that it did extend north of the Kimi Cook property into what I understand to be the Blasman area, the, somewhat into that Blasman property which is shown on yellow on this Kekahuna map. TOGASHI:Anyway, you mentioned that, I guess, the Hawaiian renaissance movement began in the 1970Ós with music especially; and at that time it was, or even prior to that, it was uncool to be Hawaiian. And I think today, today I think itÓs very cool to be Hawaiian. And IÓd like you to, to offer some comments about -. You know, we have, since the 1970Ós there has been quite a bit that we have learned; and we have yet to learn more. And IÓm wondering if 32 you can give me some comments or provide some comments that, on what we have yet to learn that we should be learning and, I guess, in the context of this application here. TYLER:Well, your complimentary comments at the onset, I think, were perhaps a little exaggerated. I donÓt regard myself as a scholar. I do try to read what I can, but I do thank you for -. TOGASHI:Quite the contrary, I think you are. TYLER:I do thank you for your observation. You have asked what is probably the most difficult question IÓve been asked in a long time, to tell you what is to come. From what has happened since, in my own life and my own experience and knowledge base since 1970, if we could extrapolate this to the future, is we are in our infancy in terms of knowledge of this culture. I have said to, I was raised as a Christian in this community. IÓve said to someone recently who, who is a, is a pastor, that my limited understanding of the Hawaiian culture, and itÓs belief system, leads me to believe with all my heart that its system of, I donÓt believe they called it a religion, but its system about menÓs interdependence on its, his or her surroundings was perhaps one of the most advanced concepts s Max Freedom Long wrote some books in the Ó20Ós that were somewhat discounted. He talked about kahuna; and, you know, kahuna, the hidden meanings of things. And Naluahini Kaopua, my recollection and my knowledge of him, he embodied that. And I think in terms of health care, in terms of land stewardship, in terms of planning for the future, that each of us, in my impression, I certainly speak for myself, have so much to learn about what it means to be a resident of HawaiÒi, and what our responsibility is to the planet and the people who live on this planet. That, it overwhelms me sometimes because we are in the most, the most remote place on earth, and yet we, we enjoy, and today we reap the benefits of a culture that existed here for, as I understand, over a 1,000 years that was completely self- renewing and sustainable. And so much of the world today is seeking that. And to me aloha is not the gift that we have to give to the world. It is the concept of pono. You know, I find that Mrs. BlasmanÓs father married my wife and I on his second service on November 17 of 19 absolutely nothing against the Blasmans, nothing against Mr. Vitousek. As I said, he and I have known each other for some time. And IÓm sure that neither, neit consultants, Mr. Vitousek anyway, has anything that they want to do thatÓs ill. It may be, it may be that, as is the case more and more as malihini come here, that itÓs, they like the place, but they just may not have the depth of understanding. And IÓm not saying I have something that they donÓt have or canÓt have. But we canÓt look at them and say, ÐWell, you know, they just donÓt, theyÓre trying to come here and make hewa.Ñ I donÓt think theyÓre trying to do that. I think, we need to help them, those of us who have some knowledge and have been blessed to have had the experience of growing up here. 33 Of why we come here, it is not to oppose them. It is not to oppose their, their, them as people. It is not specifically to say that what youÓre doing is going to be bad. But it is to say that, youÓve got to look at this in the big picture. You have to see that for Hawaiians today whether weÓre of, of a small amount of koko, like myself or others like Uncle Mauna here who have, who knew it was cool to be Hawaiian since they were born, and they practiced it, and I know so, because they were neighbors of mine for some years in Kailua -. And so I didnÓt mean to imply all Hawaiians were like, like whatÓs all this experience. But it is, it is so important that we not lose this connection. It is so important that we not, we not lose sight of the, of the physical, and what some would call the supernatural connection. There is no doubt in my mind, none whatsoever, no matter how much I have being the western system, the Hawaiians knew, and some today know, so much more than we could ever think about from a mental perspective, that we are on a threshold of something that is just unbelievable. The knowledge of health care, the knowledge of the aina, the knowledge of the environment both in the ocean and on the land, just boggles And I hope that in this generation, Mr. Togashi, that each of us whether we are, have the koko o donÓt have the koko, will, will do our part individually or collectively to, number 1, to, to learn more about this; and, number 2, if we are given the gifts and talents and the opportunity to pursue it further, to share it with others in this world, because this is going to be part of the salvation. And I didnÓt come here to preach to anybody but, I mean, I believe this with all my heart and soul. And when I go to Washington as your official representative or the councilÓs representative, this is what I talk about. I talk about this concept of pono. ItÓs a four-letter word. It could be the most important word in this, in the, that we know of today, because it talks about this idea of balance. It talks about this idea of sustainability. It talks about the perpetuation of the culture, of being human, and our relationship to nature or akua. And if we, we fail in this endeavor, if we fail to recognize this, if we continue to go in the direction of the HawaiÒi Tourism Authority, where, you know, weÓve got to get the coconut bras and the plastic grass shirts, you know, this is external, and this is not what HawaiÒi is about. This is not the Hawaiian that I am. This is not the Hawaiian that, that I know of, of Mr. Roy and his family, or others here. This is not the Hawaiian that I know of, of Commissioner SpringerÓs mother and father, whom I knew very well. You know, this is not the Hawaiian that they and we are part of. And it really isnÓt Hawaiian. ItÓs a commercialization of this culture. And I would say the people of old would find this revolting, because Hawaiians are not like that. Hawaiians are not people that want to be hoÒokano and, you know, wear their thing on their forehead. Hawaiians are, you know, unlike some of us who talk a lot, you know, more quiet. And I just, I just hope that my, my sense of this and my passion for it comes across in what IÓve said. And with that, IÓm going to stop because it really gets m TOGASHI:Thank you very much for the opportunity to question you. those last comments, Mr. Roy did testify yesterday about the old Hawaiian traditions, of their 34 belief of not bartering, of not selling. So you never used to see, or you never hear of, I guess, Hawaiians being perhaps very noteworthy salesmen. So thank you very much for the opportunity. TYLER:Well, thank you for the Î. GIFFIN:Commissioner Springer? SPRINGER:Thank you, and with apologies to all parties and panel members here. If we can now refer to the documents that were passed out yesterday. On the Hanapi packet, IÓm looking at page 16 of 17; and on Topliss, IÓm looking at 15 of 15. GIFFIN:DonÓt you think he should get a copy, too -? TORIGOE:Yes. GIFFIN:So that he can see it officially in front of him? SPRINGER:ItÓs 16 of 17 at Hanapi, and 15 of 15 in Topliss. TOGASHI:Here -. TYLER:Thank you, Mr. Togashi. SPRINGER:In the statutes that weÓve looked at and sited in our discussion with Mr.Tyler, 205A and 343, as well as his answer to Mr. TogashiÓs question, look at the expanding view of the universe. But our task before us is to look at this particular application. And we look not only to County Ordinances, and the HawaiÒi Revised Statutes, but also the directive thatÓs given us, given to us by cases, such as Hanapi and Topliss. At the top of page 16 of 17, it reads, ÐOur attention in PASH was to examine the degree of development of the property, including its current uses, to determine whether the exercise of constitutionally protected native Hawaiian rights on the site would be inconsistent with modern reality. To clarify PASH, we hold that if property is deemed Òfully developed,Ó i.e., lands zoned and used for residential purposes with existing dwellings, improvements, and infrastructure, it is always inconsistent to permit the practice of traditional and customary native Hawaiian rights on such property. In accordance with PASH, however, we reserve the question as to the status of native Hawaiian rights on property that is Òless than fully developed.ÓÑ Citing from Topliss of the top of page 15, ÐAdditionally, and even if the development in this case is shown to have a substantial adverse effect in accordance with the statute, the Commission was required, under HRS 205A-26(2)(A) to determine whether that effect could be practicably minimized and, when minimized, whether the effect is clearly outweighed by public health, safety, or compelling public interests.Ñ 35 With regard to those two citations, Mr. Tyler, do you have any c regard to this application? TYLER:Thank you for the opportunity to review these. I think, on the first one, the Hanapi case, the court, I guess, reserved the question as to the status of native Hawaiian rights on property that is less than fully developed, which this parcel is, I believe, because theyÓre proposing to further develop. But thereÓs the remnants of the Snug Harbor Motel. Well, like I began my comments earlier today, the inner connectiveness and physical and cultural of this, of Keolonhihi and Keakealaniwahine Complex, necessarily in my mind, I sti believe Mr. Togashi asked me that question -. In my mind, clearly, and this, this decision if I read it correctly and understand it correctly, excuse me, is that you must consider this juxtaposition, this relationship, spatial, physical, I mean, and cultural. And with respect to Topliss, I think the key term there is, key phrase is Ðcompelling public interests.Ñ In my mind, knowing what I know about this complex, this chiefly complex, and my understanding of Hawaiian culture, there is a very strong compelling interest to do whatever can be done to reunite the physical, cultural and spiritual aspects of this land. In light of my answer to Mr. TogashiÓs question, it may be that the opportunity to, to begin, to begin this anew. As Paul McCartney said, ÐIÓve gone so far back, IÓm in front of me,Ñ thatÓs where we are. We are right now, to me, going so far back that w asked me, Mr. Togashi, about the future. And the future is what happened over there, you know. My understanding of the word Hawaiian, Hawaiian concept of future is that time has gone by. And so one might say, and perhaps, perhaps when Mr. Vitousek ask me some questions, he may ask me about this. One might say, well, wait a minute, is, is the Hawaiian, who, Hawaiians who are the minority in this, does this make it a compelling public interest? And I have to think about this because Mr. Blasman, Mr. and Mrs. Blasman bought this prope to think now, what am I saying here from my western, western side. But, to me, thereÓs a very, very compelling reason, public interest in making this whole again. Because right now it is, what is happening is not pono. I donÓt mean the Blasman application, IÓm talking about those of us who are charge with stewardship, you know, to mlama Òain. ItÓs not happening. It needs, we need to go there, and including going out with, you know, hoÒohana, and the gloves and all. But if I read it correctly, thatÓs the key statement. To me, the concept of pono, which is what t reunification is about, is so compelling, as IÓm sure you heard me say a minute ago, that, if, if we, if we disregard this in this case, given some of the things that are happening further south, and that we read about in the newspaper and the court reports, I think weÓre going to have a very significant problem on our hands. And our opportunity is going to turn to something that might not be as pleasant as some of us had hoped. And I donÓt say that in a, IÓm trying not to be a negative, make a negative statement. But weÓre on a threshold of after 30+ years of, of either losing it all or being able to regain a, a few, a few areas that would prove, in my estimation and belief, to be so significant that they will stand as symbols of the importance of the times gone by, and the people of old and the beliefs that it will stand, each of them will stand as a beckon to all 36 of us who are blessed to be, call ourselves citizens of HawaiÒi Nei of whatever ethnic background we are. And, to me, thatÓs part of what some might call sovereignty. I donÓt mean from a political aspect IÓm talking about perpetuation of this v ThatÓs a rather long answer. SPRINGER:Thank you, Mr. Tyler. Madam Chair, I have one more que GIFFIN:Yes. SPRINGER:IÓm looking at the HawaiÒi County General Plan and the historic sites section; and in the Kona subsection it lists the Kamoa Point Complex at Hlualoa as being on both the HawaiÒi Register and National Register of Historic Places. Now there may be, or there certainly is a specific tax map associated with this designation, tax map key number. IÓm wondering in your opinion, Mr. Tyler, if you could point out to us the Kamoa Point Complex on the map? TYLER:IÓll be happy to. IÓll try. My understanding of the Keolonhihi Complex, sometimes also known as the Kamoa Point, and I understand thatÓs only refers to, I believe right here. ItÓs this area right in the ahupuaÓa of Hlualoa, actually what is known as Keolonhihi. Now the, the complex that, the chiefly complex in my, my understanding includes all of this area here. It comes over here. Let me see where it is here, yeah, it comes over in here; and it may have gone even further, further to the north. The, I know that some, some archaeologists have stated that Kaumalumalu bears no relationship to, to Keolonhihi. But I think if one looks at this, what I would call lae, you know, itÓs a point. ItÓs almost like a lau. ItÓs more like a hand reaching out that, when I spoke earlier about three sides, protection from three sides, if you go out there, youÓre going to see what you can see from here, and what you can see from here or here. And itÓs very substantial. And it wasnÓt by accident that somebody went over there and said, you know, Hawaiians are not dumb, they said, ÐOh, Brah, we go down there today. Hey, we tired already. LetÓs sit down and we go make one place.Ñ No, no, no. They picked it out. Also, if you go mauka Komohana Subdivision, youÓre going to find one huge heiau up there. I mean, how you going to find it? Well, look for the street name Kaheiau, and youÓre going to find it. And look where it is. Oh my. ItÓs right above this area. And then if you go little bit to the, to the Òkau side, to the north, youÓre going to find Kealakwaa. All these things were, you cannot look at them in separation. So the answer is, if you look at Keolonhihi, this is what it is. If you look at, at what I regard as the Kamoa complex, itÓs all of this and including mauka. SPRINGER:And Mr. Tyler Î. TYLERIt canÓt be separated. SPRINGER:And Mr. Tyler, is this what you were referring to when you discussed the compelling public interest in reuniting the site? 37 TYLER:It was. The site, yes, it was. Specifically, I was speaking of Keolonhihi in that comment, and Keakealaniwahine Complex. And it appears to be an opportunity coming up in the not so distant future to, for the public to again bring back into its, into the public domain this aina right there, this area. ISHADO:Madam Chair? SPRINGER:Thank you, Mr. Tyler. No more questions. GIFFIN:Mr. Ishado? ISHADO:Just a suggestion. I think the parties here can, can see the map, but it wonÓt show up on the record. So if I may suggest that someone clarify where heÓs pointing to, so that someone reading the transcript can follow. TYLER:Would you like me to do that Mr. Ishado or Madam Chairman, me? GIFFIN:No, I think Commissioner Springer can, because weÓve been using it. SPRINGER:In answer to the question, Mr. Tyler indicated the entirety of Kamoa Point including the Kaumalumalu section; and also on the mauka side of Alii Drive, the so-called Keakealaniwahine site and complex; and also the properties included on the Pokobo, under Pokobo ownership; and immediately to the Kailua side of Keakealaniwahine complex, those features immediately adjacent to it. TYLER:Madam Chair, thatÓs very accurate with one exception. And that is to, would also include the, what is now known as the Judd Trail, because thatÓs a very important route that was obviously part of this. GIFFIN:And this is all on map Figure 2. Any more questions, Commissioner Springer? SPRINGER:No. Thank you. GIFFIN:Okay. Mr. Torigoe? TORIGOE:I just want to clarify that Commissioner Springer was referring to some copies of the Topliss and the Hanapi cases that were provided by the applicantÓs attorney. The page numbers that she was quoting from is based on a lexis printout, which is different from the official, the official reporter pages from the Hanapi references, 89 Hawaii, at pages 186 to 187; and for the Topliss case, 9 HawaiÒi at 394. SPRINGER:Thank you. 38 GIFFIN:Mr. Vitousek, for the applicant. VITOUSEK:Mr. Tyler, couple questions. Focusing on your response to Commissioner SpringerÓs questions and the concept under Topliss that the key consideration are the, where any potential impact with the proposed project in the special management area is outweighed by public health, safety or compelling public interests, okay. And you focused on the language of compelling public interests, is that correct? TYLER:I did. VITOUSEK:And was your testimony that the compelling public interests in this, in both, of this application is the protection and preservation and restoration of the historical sites at, of, in this area? And I donÓt mean to separate it or refer to it in anyway, I mean, Keakealaniwahine, and Keolonhihi, and the surrounding areas? TYLER:In part, Mr. Vitousek, it was, it was also addressing the traditional and customary rights. And while they, there may or may not be a, you know, a ala hele connection that theyÓre, the fact that these are, are to be considered, should be considered as one, that if there was something intervening that precluded either by visual or, or cultural perspective, this reunification, that that would have compelling public interest. VITOUSEK:And, can I ask you to look, I donÓt know what exhibit number it is, but the photograph weÓve discussed. I believe itÓs Î TYLER:Is this the one youÓre speaking of? VITOUSEK:Yes, yes. Mr. Tyler, if you were standing at that, at the vantage point where that photograph was taken today, what would you see when you look, when you overlook that TYLER:Well, I would be standing probably near the front lanai of the, the old Lyman property, maybe, maybe closer to where their swimming pool is or was. And what I would see today is quite a different visual of this. I would see fewer niu, fewer coconut trees. I would see, IÓm looking specifically to the south at what has been called Kamoa Point or Keolonhihi; and we would see large keawe, I think, banyan, ficus-type trees. We would see in the, we would, as we move further mauka or east, we would see where that white, that white house, what appears to be a house or structure is. We would see a number of structures. The, moving again further mauka or to the east where we see the, what I believe is the Mamalahoa or also known as Ala Kahakai and, for obvious reasons in this case, we would see a big cut, as I described earlier when Mr. Togashi asked me. And we would also see in that area that the road, thereÓs a, thereÓs a partial wall built along the makai side of Alii Drive. I donÓt remember if there was any sand in this area or not, so I donÓt know. It looks like there might be some sand right to the, to the far edge of, of this photograph, the far left-hand edge I should say. 39 And then to the mauka or eastern area of what appears to be Alii Drive, thereÓs a number, this photograph shows walls and open spaces. Today we donÓt, we donÓt see that. We would see, we would see at least, at least two, two dwellings, I think. We would see the Casa del Sol, the dwelling which is right at the head of Holualoa Bay. ItÓs just off of this picture. VITOUSEK:And, Mr. Tyler, the, youÓre aware are you not, that the Kamoa Point, Keolonhihi area is owned by the State of Hawaii, isnÓt that correct? TYLER:Well, IÓm aware that thereÓs an approximately 12-acre parcel, which is known as Keolonhihi, that is now owned by the State, and that thereÓs an approximately 16-acre parcel mauka of it, which has become to be known to some as Keak now. Well, both of these properties were acquired by the State. One was purchased, Keolonhihi; and I believe that the Keakealaniwahine complex was donated to the State from the landowner. VITOUSEK:And so if you look at it now that the condition of both the Keolonhihi area and the Keakealaniwahine area would be the responsibility of the State of Hawaii, isnÓt that correct? Under what condition the land is in at this point in time, that is the responsibility of the public entity, isnÓt that correct? TYLER:Well, technically, yes, thatÓs correct. VITOUSEK:And, and are you aware of whether the, that public entity has expended any funds to, well, letÓs just back up. Basically, in your experience, Mr. Tyler, what is the effect of keawe trees, and ficus trees, and opiuma, and hale koa on native Hawaiian cultural remains in the form of rock walls or platforms or that type of structure? TYLER:Not good, in fact very, very, very negative, very detrimental. VITOUSEK:And so, and so what you see now, the trees are, and more specifically their roots, are actually having a significant adverse impact on the cultural sites that underlie them, isnÓt that correct? TYLER:Where they are in, in proximity to them, yes, well Î. VITOUSEK:I presume thatÓs the reason why you wanted to Î. TYLER:Yeah, let me say that, I understand they are. I told you IÓve never been in Keolonhihi, but IÓve seen pictures. And people have told me, including Mr. Roy and others, that itÓs deplorable. VITOUSEK:And this is something that is not unique to that site, isnÓt that correct? And thatÓs something you observed at other sites, isnÓt it Mr. Tyler? TYLER:Yes, it is, unfortunately. 40 VITOUSEK:In fact, I know this is something that is near and dear to your heart, I really do -. TYLER:Yes. VITIOUSEK:That these introduced trees cause damage to native Haw sites. Correct? TYLER:Yes, and the fact that the trustee is not carrying what I regard as its fiduciary responsibility to its beneficiaries is the most deplorable part of it. VITOUSEK:And so, and the construction of Alii Drive, the present also done by a public entity, isnÓt that correct? TYLER:Yes, it was. VITOUSEK:And the placement of the sewer lines and water lines as you have discussed, that was also the work of a public entity, isnÓt that Î? TYLER:Yes, it was. VITOUSEK:Okay. And so in terms of assessing the public, the responsible public entityÓs actions in response to this compelling, or potential compelling public interest, do you see any evidence that the responsible agency is taking action to protect this compelling public interest? TYLER:Well, I would say in the case of the Road Maintenance Division, theyÓre just maintaining what is a road that was there, although it has been somewhat, somewhat modified. But in terms of, I would hope that, that the Hearings Officers today and the Planning Commission would be paying attention to its obligation and mandate to do this for, to prevent further degradation. VITOUSEK:And, Mr. Tyler, in your private capacity, youÓre personally experienced as a real estate, in the real estate field and land management field. IsnÓt it correct that to some extent the public interest in land use or in uses of land is reflected in the land use classification, and general plan designation, and zoning for the land? Is it to some extent the public interest in the land reflected in the responsible public agencyÓs designation of the particular permitted uses on the parcel? TYLER:While I would say, yes, to some extent, but certainly not to all extents. And, in fact, with respect to cultural resources, my experience has been that the public documents often do not, not reflect these resources either adequately or at all. And it has also been my experience that in some cases, the public agencies charged with their protection and conservation have either not done so or have done an inadequate job of doing so, and continue till this day. 41 VITOUSEK:So, and then further, with respect to the, you know, what has been identified as a potentially compelling public interest in connecting the parcels, the State and County of HawaiÒi both have the authority to acquire or even to condemn properties which are, which are, in furtherance of a valid public interest, isnÓt that correct? TYLER:Yes, it is. ISHADO:Madam Chair. IÓm sorry, Mr. Tyler. TYLER:No problem. ISHADO:We feel that continuing along with objections to testimony about all negotiations, I mean, weÓd like that to continue. And please understand it works both ways. You know, we donÓt think any of the testimony about Mr. BlasmanÓs efforts in this area are relevant to the case either. And we donÓt think any attempt to, to acquire the property, or to sell the property is relevant to this decision making. GIFFIN:I do agree that the relevance has not been clearly established, Mr. Ishado. Perhaps, Mr. Vitousek, you could achieve the same result that I think youÓre trying to get by rephrasing your question. VITOUSEK:I didnÓt ask any question about a negotiation. GIFFIN:I know you were just trying to validate Î VITOUSEK:IÓm cross-examining Mr. Tyler -. GIFFIN:Right, right. VITOUSEK:In his individual capacity, relative to what he referred to as a compelling state interest in unifying the land. GIFFIN:Right. VITOUSEK:And so, I am asking him what actions could be taken to evidence that, to evidence that compelling State interest. And I have not asked any question about a negotiation or anything of that nature. GIFFIN:And that is very true. VITOUSEK:So, Mr. Tyler, IÓm not sure where we were in the testimony. I forget because objections -. TYLER:We were about eminent domain. 42 VITOUSEK:Right, thatÓs correct. And so, and so, what IÓm, my question is if the, if the State or the County felt that there was a compelling public interest in unifying the two areas, the State has the, and the County have the constitutional and statutory authority to either acquire the property by negotiation or to condemn the property, isnÓt that correct? TYLER:They do. VITOUSEK:Okay. TYLER:Yes, it is. VITOUSEK:And so if the State or the County believed that there was a compelling State interest in unifying the properties, it could accomplish that in accordance with existing statutory authority, isnÓt that correct? TYLER:That would be one mechanism, yes. VITOUSEK:But they would be required to demonstrate that there was a public interest, and they would required to afford the landowner due process and to pay just compensation under the, under law, isnÓt that correct? TYLER:I believe thatÓs correct under the statutes, yeah. VITOUSEK:And do you feel that it is also a compelling public interest that the government should not be allowed to take away private property without due process and without just compensation? TYLER:Without any question whatsoever. VITOUSEK:And so that also is Î. th TYLER:ItÓs the 15 amendment, I believe, to the Constitution of the United States. VITOUSEK:Yes. And so you believe that also is, is a compelling interest which could come into play in this type of situation? TYLER:Indeed. In fact, I believe that that is what happened in the case of Keolonhihi. The State, despite pleas from the community was, claimed that they did not have sufficient funds to purchase Keakealaniwahine complex that you referred to earlier, that 16 acres. But my understanding is that it came by way of donation. And so the State was, thatÓs, of course, another wonderful mechanism, that the State was fortuitous in that, yes. VITOUSEK:So, in terms of looking at the public agencies, that is the State and the County, and I guess the Federal Government, are you, other than accepting the donation of Keakealaniwahine and acquiring the Keolonhihi property and conducting some planning 43 studies, are you aware of any actions that any public agency has taken to preserve, protect, and restore these significant cultural sites? TYLER:Yes. VITOUSEK:And what were all those actions? TYLER:Well, I spoke about some property to the, right directly mauka or east of Kona Palms Condominium. And I know that the, the County is using, needs part of that property adjacent to the heiau for the Lako Street extension, makai exten And I believe there has been some discussion, or on-going discussions, regarding that. I believe that Mayor Kim has also had some discussions regarding the subject property. I was not part of those discussions; however, I did speak to him about the significance of this area. But we have had no further discussions that I recall regarding that. VITOUSEK:Okay. And -. TYLER:IÓm not a party to those. VITOUSEK:And if I can, what IÓm trying to do is, and if, bear with me and let me know if you donÓt understand or, you know, my use of the terms - separate actions from talk. And so what IÓm asking is, are you aware of any actions any of the responsible government agencies have taken to preserve, protect, and restore these sites other than accepting the donation of Keakealaniwahine, acquiring Keolonhihi and, as you say, moving forward with their acquisition of another property. TYLER:IÓm not aware of any specific County budget, budgetary items related to the acquisition of this property, the subject property. And I, I do have some knowledge of the budget, but I donÓt recall seeing that in the CIP, Part 2 of the budget. I do not have firsthand knowledge of the State budget. Quite frankly I would be very pleasantly surprised to know that there was something in the State budget regarding this. But if I believe what I read in the newspapers, the chances of that being there are nil. VITOUSEK:Okay. Well, in terms of actions on the ground, are you aware of any action on the ground which the State or the County has taken to do anything to physically preserve, protect, or restore any of the significant cultural or historical sites in this complex? TYLER:Unfortunately, I am regrettably, I am not. VITOUSEK:Okay. Thank you. Mr. Tyler, I think there was testimony earlier that the Snug Harbor Motel as it was called, wel first let me just stop. Are you familiar with the Snug Harbor M TYLER:Yes, sir, I am. 44 VITOUSEK:IÓll ask a lot more questions. But it is my understanding that the Snug Harbor Motel was, was Ðdeveloped in the early 1950s.Ñ Is that consistent with your understanding as well? TYLER:No, sir. I believe it was, it was more in the late Ò50s. It might have even been in the early Ò60s. I know that, I think it was, I think it was after this, the build -, you know the hotel weÓre in, the Royal Kona Resort, then called the Kona Hilton, was built; and I remember there was a huge outcry. It may have come after that, about building that. And I may have been, I may have been at HPA then. And that was, I started at HPA about 1958. But I could be off by -. VITOUSEK:Again, well, I think Î. TYLER:I donÓt think it was the early Ò50s though. VITOUSEK:Are you aware that before the Snug Harbor Motel was built, that there was a single family home on the makai/south portion of the property, that that home was subsequently moved to the mauka, IÓm sorry, the makai again, mak subsequently moved to the mauka/south corner of the property? TYLER:I remember, I remember a structure there. As I reported earlier, I thought that was connected with, I think I called it a pavilion by the graveyard. It may have been a residence. I recall that people, there were people living down there. I do not recall the relocation of that, that structure. VITOUSEK:Okay. And do you recall the grave, that burial area, being enclosed in a rock wall? TYLER:I do. What I recall about it is it was very close-cropped grass like manini or something. It was very, it was not, it was not green because there wasnÓt water up there. But I recall seeing, I recall seeing the structure, could have been the background maybe off to the, to the northeast a little bit and then the graves in the front. VITOUSEK:And the graves were enclosed in a rock wall, isnÓt that correct? TYLER:ThatÓs my recollection. Yes, sir. VITOUSEK:Okay. You donÓt recall seeing any, any other graves outside the rock wall to the north. Is that correct? TYLER:To the north, no. I went to the graveyard at least once. I remember the school bus used to stop right there and let the children off that lived in that area. ThatÓs where my friend Tommy Siegfried got off. 45 But I donÓt recall anything north of that though, but my recollection is that that enclosed area was, was partially located on this, on the southwest portion of this property. VITOUSEK:Okay. TYLER:And actually Dr. Rechtman, I think I mentioned earlier, Dr. Rechtman said to me that, yes there were some, some graves, but they had been relocated. VITOUSEK:Yeah, I think that his testimony was that, well, his testimony is on the record. TYLER:Oh, okay. VITOUSEK:I, I think that you did testify that you were born in Kona and that you married at Christ Church in, here in Kona, is that correct? TYLER:Yes, sir. VITOUSEK:The Reverend Paisley Î. TYLER:Reverend Î yes, it was. VITOUSEK:And were you aware that Reverend Paisley and his wife, while they were here, adopted a girl of Hawaiian ancestry who is Sue Lani Blasman. Are you aware of that? TYLER:Yes. VITOUSEK:Okay. And sheÓs present in the room today. TYLER:Yes, I knew, I knew, I know of their son as well. VITOUSEK:Another son as well, who was also here at the time? TYLER:Yes, I remember the son more than I did their daughter. But I remember them both, yes. VITOUSEK:Fair enough. Thank you. No further questions. GIFFIN:Maile? DAVID:Could I make a suggestion, and I know, I need to take like a ten minute break before, I do have questions for Mr. Tyler. And IÓm not sure what his schedule is, because weÓre in, you know, in the lunch hour. IÓm not sure how you want to handle it. But most important if we could do a ten-minute break right now, IÓd appreciate it to, and then come back, and I can start my questioning. But I need to have a break -. 46 GIFFIN:What I Î. DAVID:A restroom break. GIFFIN:What I think we should do if that is the case, because I have, do you have 12:20, Norman? HAYASHI:My watch says 12:24. GIFFIN:Okay, 12:24. Are you available after lunch. TYLER:Madam Chair, yes, I am. GIFFIN:I suggest, Maile, we go ahead and recess for lunch. And then, weÓll reconvene at 1:45 if that is Î TYLER:That will be fine. IÓve blocked out the afternoon, so I will be here. GIFFIN:Thank you. TYLER:IÓm just sorry I wasnÓt able to be here for the previous two days, but may be that was an advantage. GIFFIN:Thank you. WeÓre in recess then until 1:45. RECESSEDThe Chair recessed the meeting at 12:25 p.m. RECONVENEDThe meeting reconvened at 1:58 p.m. GIFFIN:IÓd like to call the meeting of the HawaiÒi County Planning Commission back to order. This is a continued contested case. The applicant is Wayne Blasman, and the SMA No. 02-03. When we recessed for lunch, Curtis Tyler was testifying on, from, with Mikahala Roy. Had we finished a question with Mr. Tyler when we recessed? Were we at a natural break? ROY:Yes. DAVID:It was Maile David, not Mikahala Roy. GIFFIN:Oh, yeah. Yeah, Maile David, please. Thank you. DAVID:Mahalo. Aloha, Curtis. TYLER:Aloha. 47 DAVID:In your opinion, does the propose project satisfy the objectives of 205, 205A with respect to preserving and protecting places of significance in Hawaiian history and culture? TYLER:No. DAVID:Does the project satisfy the objectives of protecting and improving the quality of coastal and scenic open space resources in your opinion? TYLER:No. DAVID:Does the subject property adequately identify and analyzes the significant archaeological resources within the area? TYLER:The property or the Î? DAVID:The proposed project, does it adequately identify? TYLER:Adequately identified what? DAVID:Identify and analyze significant archaeological resources? TYLER:You mean in that area? DAVID:Or does the, within Kaluoakalani? TYLER:No, as a matter of fact, I donÓt think itÓs mentioned. Well, I shouldnÓt say that. I donÓt have it in front of me. I donÓt recall there was any discussion in the, in the assessment about those properties, Kaluaokalani. DAVID:And does the application, the application on file sets forth or supports the State goals for protection and restoration? TYLER:Supports what? DAVID:Supports the StateÓs goals for protection, restoration, and interpretation, and display according to 205? TYLER:The goals, you mean to protect the historical? DAVID:ItÓs the policies, Curtis. TYLER:The policies Î? DAVID:Under historic resources, it is the policy stated under 205A. 48 TYLER:Oh, thatÓs a historical resources one? DAVID:Yes. Does this support the StateÓs goals for protection, restoration, interpretation and display? TYLER:I donÓt think so. I donÓt know -. DAVID:Of historic resources, IÓm sorry, I couldnÓt find my second page. TYLER:I donÓt, I donÓt know how it would. I donÓt believe so. DAVID:Okay, is that a no? TYLER:That is, that is a no. DAVID:And does the project identify valued scenic resources in the coastal zone management area? TYLER:Well, it speaks, it speaks about, it speaks about scenic resource, but says that itÓs, itÓs, if I recall correctly, that itÓs compromised and that their, the project will minimize or attempt to minimize, something like that. IÓm sorry, I donÓt have that application in front of me. IÓm just trying to recall from memory. I think thereÓs also some discussion about digging down, if I recall correctly. But would you read the question again or point me to where it is that youÓre asking from? DAVID:In that same section under the policies, historic sites section. TYLER:Within their, scenic and open spaces, is what you were referring to? DAVID:Yes. TYLER:And what was your question again? DAVID:And does the project, or will the project impact on the scenic resources within the coastal zone management area? TYLER:Yes, it will. DAVID:Are you a native Hawaiian practitioner? TYLER:Yes. DAVID:Do you believe that you have a constitutional right to practice your traditions within Kaluaokalani? TYLER:Yes. 49 DAVID:Earlier you testified that you would not or do not go there to practice. Why is that? TYLER:Well, as a, I think as a native practitioner, my knowledge is limited to certain, certain areas. And I would not, when I said I havenÓt gone back there or been there, itÓs because, oh, I went back one time. ItÓs because I, I donÓt believe that I have the knowledge of the proper protocol to, to go there to that place. And I would only go there if I went in the company of someone who had invited me and also who, who I felt, understood the protocol to, to go there, because I donÓt feel qualified to just go there by myself. And, also, I think there would have to be a pretty good purpose to go there. I just, just to go and walk on there, I wouldnÓt go there. DAVID:Okay. TYLER:To me, I guess, maybe thatÓs part of, has traditional and as, you know, we have certain, certain sensitivities that I learned from small kid days. I mentioned some, something to you earlier today. And I, I still feel very strongly about those. DAVID:Thank you. TYLER:YouÓre welcome. DAVID:Do you agree that past land use decisions have already destroyed many of our sacred and historic sites? TYLER:Sure, thereÓs no question about that, unfortunately. DAVID:And is it your opinion that also intrusion and encroachments from past developments around our sacred sites have greatly impacted upon our cultural practices and our history? TYLER:Yes, I do. And one only has to look to the south, a short few yards to see what has happened at Kaumalumalu, and the impact that it has had and will have in perpetuity unless they are moved to Keolonhihi, HoÒomau keiki and that area also, the lua, the lua area. DAVID:And also you speak a lot about the development in West HawaiÒi over the many years. Is it your opinion that these, these cultural sites and practices have been greatly compromised? TYLER:Yeah, certainly in some cases, they have. In other cases, perhaps, there has been more attention, the more knowledge, or more sensitivity, or some combination thereof. DAVID:Do you think that the project as proposed would greatly co particular area? 50 TYLER:Well, I think that, as I spoke this morning about the inner connectedness, both spatially, or physically and culturally, I think if one just goes down there to see what the current status is, and Mr. Vitousek was asking me about that this morning, it might not seem readily apparent. But as I looked and reflect on this picture of 1890 and reflect on what IÓve read about this place, the answer is yes, it would compromise it. Because it, it offers a possible access there, it also might offer an opportunity for, which was foreclosed at Kaumalumalu and envisioned by Aunty Pua, foreclosed an opportunity for maybe a, an educational opportunity to address some of the things that I spoke about this morning when Mr. Togashi asked me the question about the future. DAVID:I see. Thank you. TYLER:YouÓre welcome. DAVID:Is it your belief that in addition to Section 205A, there are other laws that mandate agencies to determine cultural impacts and protect cultu TYLER:Oh, yes, absolutely. Well, the fundamental one is our Constitution. ThereÓs a number of sections in there. DAVID:Do you know what they are? TYLER:Well, IÓd have to look that up if I might. DAVID:ItÓs Section 1-1. TYLER:Well, let me talk about the Constitution first since itÓs the foundational document. ThereÓs a section, thereÓs Article 9, Section 9, which is the State shall have the power to preserve and develop the cultural, creative, and traditional arts of its various ethnic groups. ThatÓs the main thing. ThereÓs Article 11, titled a conservation, control and development of resources. And Section 1 says, in part, for the benefit of present and future generations, the State has political subdivision, shall conserve and protect HawaiiÓs natural beauty and all natural resources in a manner consistent with their conservation and the furtherance of self-sufficiency. All public natural resources are held in trust by the State for the benefit of the people. And I think thereÓs the, well, thereÓs a traditional and customary one. DAVID:Was that Article 12, Section 7? TYLER:Yes, the Hawaiian Affairs section, right. So thatÓs, those are foundational, a foundational document. 51 ThereÓs also, thereÓs also HRS, Section 11, which talks about the land ownership or the basis of, of law in HawaiÒi, no land ownership, but the basis of law being the common law of England. And, my recollection is thereÓs an exception there, except as, you know, Hawaiian usage, something like that. And so my understanding of land ownership in HawaiÒi is that it is based on the common law of England, but it is, it contains an exception to be consistent with, be consistent with the traditional and customary uses of land reservations and uses, practiced prior to the first palapala, the first written law. I think it was either 1839 or 1843, somewheres around there. DAVID:Okay Î. TYLER:Under Kamehameha III. DAVID:All right. I think, the exception that youÓre referring to that states the common law of England as ascertained, oh, IÓm sorry, and this is my Exhibit 8 in my, that heÓs referring to. TYLER:ItÓs the first chapter and the first section, I think Î David:Right. DAVID:It says the common law of England as ascertained by English and American decision is declared to be the common law of the State of HawaiÒi in law cases, except as otherwise expressly provided by the Constitution or laws of t of the State, or fixed by Hawaiian traditional precedent, or established by Hawaiian uses, usage. TYLER:ThatÓs what I was referring to, yes. DAVID:ThatÓs what you were referring to. Thank you. Is there anything else? TYLER:ThereÓs HRS Section, Chapter 343, regarding environmental policies; and also I believe thereÓs a section now under protection or, regarding cultural impacts. And I might just add that in my understanding of the Hawaiian tradition and custom, is that, and the reason I read, I read this section on the conservation of the resources, Article 11, was because the Hawaiian tradition was related to the ecology and the environment and their practice, in their traditional and customary practice; those were deeply intertwined and interconnected. And, I would be, you know, I would be remised if I separated them out, DAVID:Thank you. Do you think, or is it in your opinion that, in the past, there has been a lack of focused discussion on Hawaiian issues in the land use permitting processes? TYLER:No question about that. As a matter of fact, I think thatÓs why some of us work so hard to, to try to get some clarification to this, to the legislature with the cultural impact statements, legislation. DAVID:Thank you. In your opinion, has this lead to further destruction and loss of many historical sites? 52 TYLER:As what lead to it? DAVID:The lack of, the lack of focused discussions in the land use permitting processes? TYLER:Well, I think itÓs perhaps partially due to that. I think itÓs also a lack of understanding. Perhaps in some cases, knowledge of, but maybe more understanding of these. And, in some cases, perhaps a lack of enforcement. DAVID:I see. Would that be also possibly, maybe, a lack of information thatÓs available at the time these things occur? TYLER:Well, yeah, thatÓs what I meant, lack of understanding or knowledge, right, yes. DAVID:As a result of that, would you agree that in the past decade or so, contested case hearings involving native Hawaiian issues have become more of a common occurrence in the land use permitting processes? TYLER:Yes. And IÓm sure some of the Commissioners here would probably agree with that analysis. They seem to be, unfortunately, more frequent, occurring more frequently. ItÓs probably a result of, of, you know, increased knowledge on the part of some, and increased concern; and maybe, in some cases, weÓre getting down to the scarcity of property and, therefore, the increased likelihood of encroachment on, on the significant, significant areas or resources. DAVID:Thank you. I want to ask you a question on one of the com Hearings Officer Togashi. Would you agree that in order for you and I, and many others as Hawaiian to maintain, as he puts it, our coolness, our Hawaiian coolness, Is it imperative for us to have a significant site such as Kaluaokalani, Keakealaniwahine, that entire complex, for us to maintain our cultural connection? TYLER:No question about it. I thought I stated that perhaps not as simply this morning, but, yeah, absolutely. And as I said, I think if we, if we, if we donÓt pay attention to this, that we might have some, you know, speaking of adverse results, it might create further, further estrangement. And I wouldnÓt, certainly wouldnÓt want to do anything to that, to promote that. DAVID:Thank you. IÓm almost done. I have just two more questions. Commissioner Springer raised the Hanapi case that we were looking at before we broke for lunch. And in the Hanapi case, the court reserved the question, in accordance with PASH, as to the status of native Hawaiian rights on property that is less than fully developed. 53 In your opinion, knowing your familiarity with the Kona area and project is and whatÓs on the ground, would you agree that this property could appear to be less than fully developed in its current state? TYLER:Well, I guess, itÓs a matter of perspective. I remember hearing one practitioner say, you know, people look at the lava field and say itÓs barren lava, nothing on it, but itÓs developed just the way we like it. And that was a rather surprising thing to hear many years ago, kind of woke me up. And the other one is, if weÓre going to erect structures or, on this property, is that what youÓre referring to, that, that aspect of it when you say fully developed? DAVID:Right. Fully developed according to the Hanapi description. It says to clarify, in order to clarify PASH, we hold that if property is deemed fully developed, for example, lands zoned and used for residential purposes with existing dwellings, improvements and infrastructure, it is always inconsistent to permit the practice of traditional and customary native Hawaiian rights on such property. ThatÓs a fully developed property? TYLER:Well Î. DAVID:But in accordance with PASH, they reserve the question as to the status of native Hawaiian rights on property that is less than fully developed. So my question to you is Î? TYLER:ItÓs not fully developed. DAVID:In your opinion, itÓs not fully developed? TYLER:Well, not on, not on the basis of what you just said, no. From a western prospective with buildings and pavement, landscaping and pools and whatever else, parking, no. I think thatÓs obvious to the naked eye. DAVID:I think you werenÓt here, the reason I raise that is because in, in one of our prior hearings, I think the applicant described the area as, or their intention was to demolish it because itÓs not fit to live in. I think thatÓs not exactly, but thatÓs what the, the description and that they were going to destroy whatever buildings that were on there. ThatÓs why I asked you that question. Thank you. There was discussion about the State of Hawaii not fulfilling its duty, and its inaction to protect Kaluaokalani, the sacred historic sites in the area. Does that diminish the importance, at this time, of that place, the fact that the State has not upheld its duty? TYLER:Well, I guess, that would all be true if two wrongs made a right, but the answer is no. Thank God. 54 DAVID:I see. And I think Mr. Vitousek raised the issue that there is, the State has not done anything physically, they havenÓt made an effort to clear the place or expended any effort into restoring Keolonhihi or Keakealaniwahine. Would you consider the StateÓs efforts in conducting the studies that they requested in 1982 by the advisory committee in, for the area, and then again in 1993 by Pualani Kanakaole, as an effort the State has done, not physically, but in effort to, to move forward this, however slow it is? TYLER:I would. I mean, these documents are clearly, clearly indicative of these physical documents, one of which I have here, itÓs clearly indicative of, of their good intentions. Yes. DAVID:Okay. And then the fact that they donÓt have funds necessarily to accomplish this, does that diminish how important this place is, and what should eventually done with it? TYLER:No, of course not. It would be like a, like Alii or the Kahului-Keauhou Parkway, thatÓs on the books since 1966 or something. And people knew that, you know, that it was here, Planning knew it, and yet the studies went on, the plans went on, but theyÓre only now coming from fruition. What is this, 40+ years later, or something like that, or 30 years plus? So itÓs clear to me that after reading these documents, and also seeing some of the comments from the State Historic Preservation Division of the Department of Land and Natural Resources that what their intentions are, I donÓt think that the State would have spent the resources not only to acquire the land, but to develop these studies and plans unless they, unless they truly believed this. Although, I will admit that, you know, there have been studies done on things that for which nothing has ever happened so far. But I donÓt think that was, I donÓt think that was the intention. And itÓs certainly isnÓt the intention of the people that IÓve spoke to. IÓve spoken with kupuna and otherwise who, who revere the significance of the site. DAVID:Thank you very much for your, for your coming today, Curti Thank you. TYLER:Mahalo. GIFFIN:Hearings Officers, are there any more questions? Lester? ISHADO:No questions. Thank you very much, Mr. Tyler. TYLER:Thank you, Mr. Ishado. GIFFIN:Mr. Vitousek? VITOUSEK:Yes, just a couple of follow- up questions. Mr. Tyler, I think you testified that youÓre a native practitioner, is that correct? TYLER:I did. 55 th VITOUSEK:Are you a lawful occupant of the ahupuaÓa of Hlualoa 4? TYLER:I am not. VITOUSEK:Do you claim that your residency in any other, unlawful occupancy of any other ahupuaÓa gives you a customary and traditional right to engage in traditional practices on th Hlualoa 4 ahupuaÓa? TYLER:I have not made such a claim. VITOUSEK:Okay. I didnÓt suggest that you had. But I just didnÓt hear any other foundation for the statement that you, or any claim that you were exercising or had the right to th exercise customary and traditional rights in the ahupuaÓa 4, in the upper ahupuaÓa of Hlualoa 4. TYLER:Well, let me, let me say that I did not, and I donÓt believe that I do. Being a, being a traditional practitioner, if I were to, if I were to access some private properties, I would have to, my understanding is I would have to establish something, but I have not. But thatÓs only with respect to that particular issue. VITOUSEK:Okay. And then hereÓs that brief follow-up question on further examined on the issue of fully developed. And is it your understanding that the subject property, that is the Blasman property, is zoned for residential use? TYLER:Yes. VITOUSEK:And is it your understanding that there, that there are actual existing dwellings on the subject property at this time? TYLER:Well, it was not on my understanding; but I have, in fact, seen them -. VITOUSEK:Okay. TYLER:Yes, sir. VITOUSEK:And so, at the present time, the property is zoned for residential use and has existing dwellings and improvements thereon, is that correct? TYLER:If it could be called such. There are existing dwellings, dwellings, yes. VITOUSEK:Okay. I have no further questions. TYLER:Thank you, Mr. Vitousek. GIFFIN:Anyone else have anymore questions or Mr. Tyler? Mikahala? 56 M. ROY:Thank you. Just a few more questions. Thank you. And t that I make sure I heard correctly, the fact that in earlier testimony, if indeed the State is negligent in caring for the protection of Hawaiian properties for the welfare of the Hawaiian people, does that lessen or affect the state of sacredness of this complex? TYLER:Well, if it did, we wouldnÓt be having this discussion. Absolutely not. The, although I havenÓt attended except for my testimony today, I must assume that part of the reason that you are requesting this contested case is because of resources and their protection. The fact that someone that our, our trustees or trustee fiduciary has been negligent doesnÓt excuse this agency, indeed the Planning Commission who is the authority in this particular case, from, from considering these. In fact the law says quite to the contrary. The law says that you shall not approve, shall not grant a permit, unless indeed you have had these findings, that theyÓre consistent with the objectives, the policies and the guidelines. It doesnÓt say some. It, and some of which, some of them were referred to by Mrs. David. But the fact that somebody hasnÓt followed the, followed their plan or someone hasnÓt followed their intention, doesnÓt, doesnÓt absolve any of you, indeed, you fellow Commissioners, from complying with the law. And you must, and you, it mandates that you shall. So the answer, the answer is, it, that, that one agency or one branch of an agency has failed to take action, does, does not enable any other agency, especially the one charged with the final decision-making authority, to, to neglect its, its mandate. M. ROY:Thank you. And with regard to the land, is the land rendered any less sacred by the negligence, excuse me, of the party of the government? TYLER:Is the land rendered any less sacred? M. ROY:By the act of negligence to protect the site, does that, does that change the nature of the land? TYLER:You mean the sacredness of the land? M. ROY:Yes. TYLER:No. M. ROY:No. Thank you. TYLER:Thank God. M. ROY:Madam Chair, may I approach the maps? GIFFIN:Yes. 57 M. ROY:Thank you. Curtis, if I can direct your attention, on the wall here is a map designing the applications, the plans for development for Mr. Blasman. As you look at it, youÓre looking at a parcel that is prepared, to be prepared in this structure and proposing to dig down, excavate into this base of bedrock, of blue rock for one level, to be followed by two levels above that, followed on top by a roof. With all of that development Î ISHADO:Madam Chair, just a suggestion that you identify the exhibit. M. ROY:Thank you. IÓm referring to the map brought forward for today on the application drawings for the proposed 13-unit development by, I imagine, Mr. Vitousek. TYLER:ItÓs a plot plan, right? M. ROY:Yes. GIFFIN:Can you see it? TYLER:I can see, yes. M. ROY:Do you view this development, does it represent a cumulative adverse effect on the sacred and traditional and cultural rights of the sites of the area? TYLER:Well, itÓs certainly one of the series of, well, there are number of impacts that have already occurred in that area, as Mr. Vitousek pointed out somewhat this morning when he asked me the questions of the condition and what was there. It represents, it represents a, probably the largest single, although I realize thereÓs one, two, three, four, five, itÓs like six separate buildings, five or six separate buildings. The largest single impact is to these, to these, to the chiefly residence, Kaluaokalani. M. ROY:So do you agree that this development represents a cumula effect on the sacredness of the surrounding lands and the land that it is upon? TYLER:In and of and by itself, it doesnÓt need a cumulative impact. It already has one, will have one by that. But, also, in conjunction with the others that have taken place, I mean itÓs quite obvious from what we heard this morning, and IÓm sure youÓve heard over the last few days that there have been a number of impacts there; and Mr. Vitousek spoke about the roadway and things like that. He asked me about that. M. ROY:Thank you. I have one last question. TYLER:Okay. M. ROY:You, I do believe you mentioned that in the carriage of the answer to dilemmas presented, you offered that, that condemnation as one vehicle that might be, that might 58 be an answer. Is this hearing on a contested case, an SMA contested case, another vehicle? Is this very process a second vehicle that can be used for resolution? TYLER:Well itÓs certainly, itÓs certainly one of the processes. I would say yes. When I gave my answer this morning to Mr. VitousekÓs question about eminent domain, and I think I said itÓs one of the means, itÓs not the only means. Because as happened in the case of the 16-acre portion of the chiefly residence also known as Keakealaniwahine complex, that was given, given to the State. It was a donation. But the law is clear to me that this, that the, that this body has to make certain findings. IÓm speaking the Planning Commission who has the decision-making authority, that they have to, unless they make certain findings, they cannot, cannot approve this. And some of, some of these have to do with open space, scenic open space, have to do with, with historic, what are called historic resources. I prefer to call them cultural resources, but thatÓs what the law says. And I think, though I was not involved in the, in the writing or enactment of this law, or these laws, itÓs pretty obvious to me that those who were had in mind that the, the decision-making body, the agency charged with that authority was, was empowered and actually mandated to consider these. So that the kinds of problems that were eluded to earlier about the destruction or the desecration or the compromise of important sites would, would be, would not continue to take place. M. ROY:Thank you. TYLER:At least thatÓs my understanding. M. ROY:IÓm sorry, I have two more questions. TYLER:ThatÓs what I get for talking too much. M. ROY:Thank you. Yeah, you gave me more time. You mentioned that the government should come forward to help, to help find a resolution and, in fact, help an applicant here. May I ask you, did the County or the government move forward to help the landowners in Ocean View when the Reviera development ceased, and all of a sudden their property values went on a downward turn? Did the County move forward to help those landowners Î? ISHADO:Excuse me, Madam Chair. IÓm not sure where this line of questioning is going. GIFFIN:Would you like to elaborate? M. ROY:I would because here I just find in HawaiÒi that we are very, we always try to help. We are kind. We are inclined to show aloha. But, in truth, when it comes down to business, this is what IÓm glad Mr. Tyler has a background in, in truth, when many public persons purchase lands in Ocean View, based on many of them counting on a development at the 59 Reveira, and when that development didnÓt take place, their property values went down, on a downward -. Did the government move forward to help those people who have invested there? In a case here, we find that a contested case as evolved around an application of a party on sacred lands. And all I see is many people trying to help an applicant. I say that there is a profit margin that is understood by a business investor. Is there not a loss margin as well, a possibility for loss? And that is what IÓm bringing up. The pertinence here is in Ocean View thatÓs one of the largest subdivision, IÓm told, in the whole nation of the United States, if you include HawaiÒi there, which I really donÓt. But that constitutes for me a comp Why do we give someone who is applying for lands that, but the law is showing that they are sacred. We have tried many times to, to meet with some kind of just saying that I think your testimony earlier alluded to the fact that we should try to help. I agree. But, in this case, do we help everyone this way? I just want to show that when you make an investment, thereÓs a also a region for loss as well. And I want to bring that to light because in this case, I think weÓve testified over and over that there are laws that need to be followed; and weÓre trying to find that here. GIFFIN:Mr. Ishado? ISHADO:Madam Chair, itÓs just to be fair to all the parties. The County has taken the position that, you know, outside discussions about purchases and so forth are not relevant to the decision of this panel. So to be consistent, we basically, we should object to both sides of the question. GIFFIN:Thank you. ISHADO:IÓll just stop there for the record. GIFFIN:Thank you. Mr. Vitousek? VITOUSEK:Yeah, I just join the CountyÓs objection on the grounds that what the County or State did or didnÓt do relative to Ocean View is not relevant to the issues in front of the Commission. GIFFIN:Mikahala, you were going to move on? You were pau with that analogy, werenÓt you? M. ROY:Yes. But it was, in fact, a question. But yes, I will. TYLER:Am I directed not to answer that question? GIFFIN:I would appreciate that. TYLER:Thank you. 60 M. ROY:You did say that you are, in your opinion, you have a constitutional right as a native Hawaiian. And do you have, let me repeat the question. Do you have a constitutional right as a native Hawaiian to go onto the subject property? And IÓm talking about Keolonhihi, the entire complex, Kaluaokalani. TYLER:I believe so. M. ROY:Thank you. And as a resident of another ahupuaÓa, would site such as this, you would not be called to take part in only because you donÓt reside in it? In other words, let me ask, was this a site that was only confined for the use of the occupants of this ahupuaÓa? TYLER:No, well, not, no, not to my understanding. M. ROY:Is it clear that this, in your mind, that this is the only site of its kind in the Hawaiian Islands today? TYLER:Yes. M. ROY:Thank you. No further question. GIFFIN:Thank you. Hearings Officers, any more questions of this witness? Mr. Togashi? TOGASHI:None. GIFFIN:Applicant? VITOUSEK:None. GIFFIN:Mr. Ishado? ISHADO:No questions again. Thank you, Mr. Tyler. TYLER:YouÓre welcome. GIFFIN:Maile? DAVID:No. Thank you. GIFFIN:Mr. Tyler, thank you very much. TYLER:Thank you to all of you for the opportunity to come before you today. Aloha. M. ROY:Aloha. Mahalo nui. 61 GIFFIN:Mikahala, is it your desire to call on your dad then, to finish up yesterdayÓs testimony? M. ROY:Thank you. At this time, I would ask the, ask you, Madam Chair, at this late hour, I will say that for my fatherÓs health, it is, he was on the stand all day yesterday. I noticed he was dosing a little this morning. ThatÓs because there was a lot of energy outgo. I would ask that we, I would close today for my offering witnesses GIFFIN:Okay. So then if we do close, letÓs review one more time whatÓs expected th on Monday the 28 of July, so that weÓre all on the same page and expectations are all the same. VITOUSEK:Madam Chair? GIFFIN:Randy? VITOUSEK:Yeah, I just have, want to, you know, I just have one expectation, and that ththth is that we finish on the 28, 29 and 30. And beyond that in terms of how itÓs done, and what witnesses go first, and all that, is really not very relevant to me. And I donÓt mind talking about it, but I want to, I want to state a very clear expectation that the hearing will be completed on the ththth 28, 29 and 30. I mean, itÓs really unfortunate that, that we have on a couple of instances now been, had time and no witnesses to present. GIFFIN:Yes, yes. And IÓm going to be very clear on that, that if by the date that is set by the intervenor for their witness to be here on the record that we establish today, if they do not appear on that day, they will no longer be able. Because like you, and the rest of the people in this hearing, we cannot prolong this any longer than what we have done already, and will do at the end of July. And this is why I want to make it very clear what our expectations are for those days. Maile, are we going to assume then that weÓre going to continue with MikahalaÓs witnesses first th on Monday, the 28? DAVID:I think what weÓve been able to find out, do we have a place? NOMURA:Yes. GIFFIN:Yes, we do NOMURA:Ohana Keauhou Resort. I think itÓs called the K(Kahaluu)-2. DAVID:On those three days? STAFF:Yes. 62 DAVID:Okay. Then, in that case, I know for a fact that the three of my witnesses th will be available on the 28. So if itÓs okay with everyone, I will volunteer to go first on Monday. GIFFIN:So according to my notes, and correct me if IÓm wrong, we first hear from David N. Forman, secondly weÓre going to hear from Vicky Holt-Takamine, and thirdly weÓre going to hear from Angel Pilagio, correct? DAVID:Pilago. GIFFIN:Pilago. Okay. DAVID:Right. GIFFIN:And so those are the three. DAVID:Right. GIFFIN:Now, if my notes, hang on, serve me correctly, you said that they could be through with their testimony by half a day? DAVID:My direct examination would probably last about a half-hour -. GIFFIN:Of all three? DAVID:No, of each. So about an hour and a half for me. GIFFIN:Okay, hang on. Okay, and then we have to, of course, allow time for cross, right? DAVID:Right, right. GIFFIN:In the past, we have been allowing, I mean we have been g hour or two, Mr. Torigoe? TORIGOE:Yes. GIFFIN:See, I want to be able to give Mikahala a definite time to have her witnesses appear. So if we can say that we would be through with your witnesses, totally cross- examined, by lunch or shall we say after lunch, 2, 3 oÓclock? See, because itÓs not fair to leave th her witnesses waiting. If weÓre not going to get to them on the 28, I donÓt want them to be waiting for hours on end. DAVID:Okay. Can we, can I suggest this then. Since Mr. Roy has not completed, she hasnÓt completed his testimony first, would we be able to finish him before I do mine, first thing? 63 GIFFIN:I would prefer that we go ahead and hear your witnesses first thing in the morning. And then in the afternoon, we can go ahead and hear Mr. Roy to have him continue. DAVID:IÓm sorry. I was just told that Vicky Takamine is flying in and she needs to teach in the morning a class. So sheÓd be flying in, IÓm told around 2:00 sheÓll be here. GIFFIN:Okay, one minute. DAVID:IÓm sorry, I just -. GIFFIN:Hannah? SPRINGER:I think with regard to Ms. RoyÓs comments regarding her fatherÓs health and wellbeing, if he has more energy in the morning, I think that Ms. DavidÓs suggestion makes good sense with regard to Mr. RoyÓs vitality. M. DAVID:Mahalo. GIFFIN:And I am sensitive to that as well. ItÓs just that I wanted to be able to say with clarity who was going to be heard at what time, give or take half an hour. M. ROY:Madam Chair? GIFFIN:Mikahala? M. ROY:If it helps any, I do believe it will not be so long. My planned redirect to my father, I just have a few questions, and if anyone has a few other questions to ask. But, basically, not so long. GIFFIN:Now what is the timetable for your first witness, Mr. For can he be here by? DAVID:I think he can be here whatever time we try to arrange for him. So -. ISHADO:Madam Chair? GIFFIN:Mr. Ishado? ISHADO:I just want to remind you and remind Maile that Mr. Vitousek had raised a question about having Mr. Forman testify. And so there was going to be a -. GIFFIN:Oh, you havenÓt discussed the nature of his Î? ISHADO:I donÓt know. I donÓt know if the parties got together on that. But I thought there was going to be written testimony so we can -. 64 DAVID:Yes. ISHADO:Mr. Vitousek was going to have a chance to review it. DAVID:Right, they were supposed to, IÓm going to have him do a written testimony to submit to Mr. Vitousek two weeks before the hearing. GIFFIN:Two and one. DAVID:Yes. And he has one week to respond. So based on that, I would say Mr. Forman goes after Mr. Roy? GIFFIN:So if we have Mr. Roy at 9:00, could we say then that Mr. Forman at 10:00? DAVID:Yeah, following Mr. Roy, thereabouts, yeah. GIFFIN:So that everyone will have some time. DAVID:Okay. GIFFIN:But we need to know if, that he will be here at 10:00. DAVID:Okay. GIFFIN:Monday, 7/28, 9:00 a.m. is Mr. Roy; 10:00 a.m. is Mr. Forman. How long do you think weÓll need to set aside for Mr. Forman, Maile? DAVID:About the same. Yeah, yeah, before lunch would be fine. GIFFIN:So 10:00 to 11:00? DAVID:Yeah, 10:00 to 11:00. GIFFIN:Okay, and then that would leave Angel. VITOUSEK:What if we had both Mr. Forman and Mr. Pilago available at 10:00? Because that way if, if it turns out that there isnÓt an issue about Forman, if he doesnÓt testify, then we donÓt have to sit around for an hour. GIFFIN:Right. VITOUSEK:I mean, sometimes people have to wait. I mean, thatÓs unfortunate. And if we schedule it so the max that heÓs going to wait is like an hour -. 65 GIFFIN:Yeah. VITOUSEK:ThatÓs really not that bad. GIFFIN:Okay, so then we schedule -. Maile, did you hear, did you hear the suggestion of having Mr. Forman and Mr. Pilago scheduled for 10: VITOUSEK:If we get Forman and Pilago between 10:00 and noon. GIFFIN:And noon, right. VITOUSEK:And we have somebody else at 1:00 and then Ms. Takamine at 2:00 -. GIFFIN:Right. VITOUSEK:And then someone else at 3:00, or whatever, I mean, jus can . GIFFIN:Really maximizing use of the day which is what I want to do. This is all she had. She just had those people. VITOUSEK:Yeah, someone else as I see are, are, would be in MikahalaÓs case. YUEN:Who does she have? VITOUSEK:She has Mossman, Cummings, Silva, Abaad -. GIFFIN:Right, and then we would go into them. So maybe we could hear one of the MikahalaÓs witnesses between 1:00 and 2:00; and then 2:00 would be the Vicky Holt- Takamine woman. DAVID:I have a comment about the scheduling. Since Makahala has some carry over witnesses and I do want to not have Karen go to the airport, you know, twice, cause I believe that theyÓll be trying to make their trip at the same time, because sheÓs picking them up -. GIFFIN:Who is them? DAVID:Forman and Takamine. GIFFIN:Well, you know -. VITOUSEK:IÓm sorry, Madam Chairman. How many, you know, we have like, you know, three Planning Department people, three Commission persons, I mean, and then if their members have to make two trips to the airport -. I mean, seriously, I think weÓre all trying to accommodate to this and -. 66 DAVID:Okay. VITOUSEK:And itÓs really not asking them much to have, to schedule witnesses for particular times when weÓre talking about two months in advance. GIFFIN:I know. VITOUSEK:And just, letÓs just be there, you know. DAVID:ThereÓs no question that they will be here. GIFFIN:Good. DAVID:IÓm just saying that my three witnesses, I would prefer to have them together because thatÓs my entire case. GIFFIN:Would you like them to be in the afternoon then? DAVID:Yes, please. GIFFIN:And perhaps we can start with MikahalaÓs witnesses then -. DAVID:Yes. GIFFIN:In the morning after her father? Is that what youÓre suggesting? DAVID:Yes, thank you. GIFFIN:Okay, so then, why donÓt we do it this way then, why donÓt we have Mr. Roy at 9:00, Mr. Forman at 1:00, Vicky Holt-Takamine at 2:00, and Angel Pilago at 3:00. Does that sound reasonable? DAVID:ThatÓs very fine. Thank you. GIFFIN:Okay. Now we have a puka after Mr. Roy; and Mikahala, I fill that puka up with somebody from your witness list, please. M. ROY:Yes, I will be prepared to call a number of the witnesses Many of them are on Oahu. And again itÓs the difference between public, with public resources meeting this charge that has been brought forward for protection of our rights. And so these are, thatÓs the only argument I make, is these funds are spent, are from the public sources; and as a non-profit, we struggle to have these things available. So I have three people coming from off island. And so I will attempt to call them all and just fill the morning after 10:00, letÓs say. GIFFIN:At 10:00, we have one puka there. 67 M. ROY:Ten through, you want to break for lunch at 12:00? GIFFIN:Yes. M. ROY:Okay, one witness. GIFFIN:So 10:00 to 11:00, then 11:00 to 12:00. You see, you have the two pukas there. So your father and then two witnesses after him. M. ROY:Well, I will place and ask, I will confirm this with all of the parties, say Kala Mossman and Î. GIFFIN:At 10:00? M. ROY:In the morning. IÓm not sure which time. GIFFIN:IÓm going to put Kala Mossman down at 10:00. M. ROY:Okay. GIFFIN:And then who would you like me to put down at 11:00? M. ROY:IÓll say, IÓm going to try to say Dr. Noenoe Silva. GIFFIN:Norman, would it be possible to have the staff copy this schedule for Tuesday? And IÓm going to try to do the same thing for Wednesday, and then we can circulate that. Then if there are any problems that may occur, it will be up to the intervenor whose witness cannot come during that stated time, to inform us immediately so that we can adjust the schedule. th And if, for example, at 10 oÓclock on Monday the 28, your witness Kala Mossman cannot appear, it will be your responsibility to fill that puka with another witness, so that we are not, in fact, sitting here with a puka in our schedule. And then inform Norman of that change. And thatÓs all it would, it would be a change of who is speaking. M. ROY:Very good. GIFFIN:So that the time slots would be filled. M. ROY:And again, I donÓt know how long, you know -. GIFFIN:I know. 68 GIFFIN:That Dr. Silva would be prepared to speak. I have no idea. So if this starts to go over, I canÓt say how thatÓs going to affect the schedule. GIFFIN:I understand that, and IÓll try my best to try to control the schedule. th Then looking at Tuesday, the 29 at 9:00 a.m. M. ROY:IÓd like to call Pua Kanahele. GIFFIN:And at 10:00? M. ROY:No, sheÓs probably all, another all day. GIFFIN:Okay. I can probably Î M. ROY:But, IÓll say, at least through mid-day into after lunch hour, maybe 2 oÓclock, something like that. GIFFIN:I can probably, with comfort and with no problem, give her at least until noon. And then because, you see, I still want to allow time in the afternoon for the rest of your witnesses, so that I have time to call on Mr. Yuen. And we need to do that in a real timely manner as well. And there may be the outside possibility that Mr. VitousekÓs last witness is going to appear. And thatÓs why I need to know where these pukas are going to be, because they need to be accommodated as well. TOGASHI:Chairman -? GIFFIN:Mr. Togashi? TOGASHI:Yes. I hate to mess up this scheduling, but what happens in the event that the public comes out and they do want to testify? GIFFIN:I know, thatÓs the other thing that I was going to raise. And so IÓm trying to leave some time in the afternoon for that. It seems like when weÓve had public testimony, it has been more convenient for them to come in the after, at least that has been what weÓve seen, because they, they work. And so IÓd like to leave the afternoon for them, but I still need to know th from you Mikahala, shall we give Pua Kanahele until noon then, Tuesday, the 29? M. ROY:ThatÓs sufficient; but with the understanding that if it goes a little longer like today with Mr. Tyler, it did, to just Î GIFFIN:And, you know, I think that this group of Hearing Officers, we could be very flexible, and maybe even have a shorter lunch time and maybe our lunch brought in, and, you know -. ThereÓs some things we can do as well to try to accommodate that. But then in the afternoon then at 1:00? 69 M. ROY:I would say Tom Cummings and Kehau Abad. GIFFIN:Did you want them simultaneously, or one to follow the other? M. ROY:One to follow the other. GIFFIN:Okay. So then 2:00 would be? M. ROY:IÓd say Tom Cummings followed by Dr. Abad. GIFFIN:Okay. And, I think that that was it. Dr. Kehau Abad was your last? M. ROY:ThatÓs right. GIFFIN:All right. So theoretically, Mr. Yuen, I would like to ask that you be prepared to begin on Tuesday at 3:00 p.m. Does that seem reason YUEN:Yes. TOGASHI:Chairman Giffin? GIFFIN:IÓm sorry, Lester, did you say something? ISHADO:No. TOGASHI:No, it was the other, me. I was wondering, we seem to h about Mr. Schultz. GIFFIN:No, we havenÓt. VITOUSEK:No, we havenÓt. TOGASHI:We havenÓt. VITOUSEK:She mentioned it. GIFFIN:Just a few minutes ago, excuse me. VITOUSEK:Mr. Togashi, my understanding is that if IÓm going to be able to offer that testimony, it will be at the close of the intervenorÓs case and before the CountyÓs case. I think thatÓs what our, I think thatÓs what our understanding was? GIFFIN:You understood that correctly. Any other comments? So, Mr. Hayashi, you have that schedule? 70 HAYASHI:Yes, I do. GIFFIN:All right. And so Î. HAYASHI:Just to, but I want to make sure. GIFFIN:Review. th HAYASHI:Okay. On July 28, starting at 9:00 a.m. would be Mr. Roy. GIFFIN:Yes. HAYASHI:Followed by, at 10 oÓclock, by Mr. Mossman. GIFFIN:Correct. HAYASHI:At 11 oÓclock would be Ms. Silva. GIFFIN:Correct. HAYASHI:At 2 oÓclock, excuse me, at 1 oÓclock would be Mr. Forman. GIFFIN:Yes. HAYASHI:At 2 oÓclock would be Holt-Takamine. GIFFIN:Correct. HAYASHI:And at 3 oÓclock would be Mr. Pilago. GIFFIN:Correct. And IÓm deliberately leaving an hour there for some give, you know. And this could also be for Mr. Schultz. Okay. th HAYASHI:Okay. On Tuesday, July 29, starting again at 9:00 a.m., and weÓll have Ms. Kanahele. GIFFIN:Correct. HAYASHI:At 1 oÓclock would be Mr. Cummings and at, followed by Mr. Abad. GIFFIN:Ms. Abad, Dr. Abad. HAYASHI:ThereÓs no time schedule for Mr. Abad. GIFFIN:Two, Dr. Abad, Kehau Abad; and then 3:00 p.m. is our Planning Director. 71 HAYASHI:Correct. GIFFIN:Okay. And there again Î. HAYASHI:With, again, possibly Mr. Schultz. GIFFIN:Yes. And IÓm trying to leave some leeway, too, in the event we have people who would like to testify so that we, at least, have some accommodation for the public. M. ROY:And that was, I was just going to say itÓs a Mrs. Abad. No surprises, Norman. It should be a woman. GIFFIN:And we are, Norman, could you please notice that this hearing will be th from Monday, the 28 through Î. th HAYASHI:We will have it advertised at, starting on Monday, July 28 at 9:00 a.m. thth and continuing on to July 28 starting, and 29, possibly. th GIFFIN:No, itÓs on for sure. We have the schedule for the 29. th HAYASHI:Oh, yeah 29, again at 9:00 a.m., and possibly on July, continuing on to th July 30, if needed. GIFFIN:Mr. Torigoe? We need to do final arguments, closing argu TORIGOE:Okay, so right now you have, weÓre talking about Monday, Tuesday, definitely, and possibly Wednesday. HAYASHI:Well, we have all three dates available. TORIGOE:You have all three dates. HAYASHI:Yeah. TORIGOE:Okay. HAYASHI:So, if itÓs the pleasure of the hearings officers, we can schedule it, and not say, Ðas needed,Ñ as we previously did for this particular hearing. GIFFIN:Yeah, because I think we need to allow for closing argume . HAYASHI:The only problem is -. TORIGOE:Yes. 72 th -. HAYASHI:The only problem is if you conclude your portion on the 29 GIFFIN:Yes? th HAYASHI:And if we say itÓs also continued to the 30 -. GIFFIN:Yes? th HAYASHI:Although youÓre already completed, people may show up on. GIFFIN:Yes, I see, and try to give public testimony -. HAYASHI:Correct. GIFFIN:Is that what youÓre saying? HAYASHI;ThatÓs correct. GIFFIN:Mr. Yuen? th YUEN:That is not, if we complete it on the 29 and somebody shows up on the th 30, thatÓs too bad. VITOUSEK:And there can still be public testimony on the matter before the Commission. I mean, theyÓre not foreclosed. And since theyÓre giving public testimony and not testimony in contested case, once the record closes in the contested case thatÓs it. HAYASHI:Except if, I mean, I hate to -. IÓm just being cautious GIFFIN:I appreciate that. HAYASHI:Because you may have complaints later on. GIFFIN:No, no, no. I appreciate that. ththth HAYASHI:And if we advertise it as on the 28, 29, and 30, and we close on the th 29, -. GIFFIN:Yes. th HAYASHI:And nobody is here to conduct the meeting on the 30, then we may get complaints from the general public. GIFFIN:Mr. Torigoe? HAYASHI:And thatÓs something we need to avoid. 73 TORIGOE:No, I think thatÓs a point grown out of your experience, right? And I think ththth itÓs not a bad idea to say itÓs scheduled for the 28, 29, and, if necessary, the 30. st But, I wonder, is that all we want to say? Do we want to say, if necessary, the 31 as well? SPRINGER:Madam Chair? GIFFIN:Hannah? SPRINGER:I agree with Mr. Torigoe. I thought that was why we moved it from Tuesday, Wednesday, Thursday, to Monday, Tuesday, Wednesday, all into Thursday, if necessary. VITOUSEK;Then we should notice because -. GIFFIN:ThatÓs Thursday, if necessary. VITOUSEK:If necessary, right. GIFFIN:Mr. Torigoe? TORIGOE:I think based on the history of this hearing, itÓs probably a good idea to make sure we have time to finish things up as much as possible. The way I understand it, that does mean, I donÓt know, how much does it cost to rent, this is not relevant, forget it. GIFFIN:Really, do you want to get into that? No? TORIGOE:No, no. GIFFIN:I donÓt think so. Okay, so, Mr. Hayashi, will you please th th thst July 28; Tuesday, the 29; Wednesday, the 30 ; and if need be, Thursday, the 31. And then we should direct everyone to be ready for closing arguments on Thursday? VITOUSEK:No. TORIGOE:Wednesday. GIFFIN:I mean, Wednesday. Does that sound right to you? TORIGOE:Yes. So the idea is to try and finish the testimony as much as possible by Tuesday and then to proceed into closing argument thereafter, I think. GIFFIN:So closings on Wednesday. IÓve got to write it down or IÓll forget. 74 VITOUSEK:Do we have a time limit on closing? GIFFIN:Yes, hold on. I need to speak to staff. I asked Mr. Torigoe what he felt was reasonable, and he said to ask the parties. Mr. Vitousek? VITOUSEK:Well, generally, my experience, the Hawaii Supreme Court gives you a half hour to argue your case. My experience, that usually petty cases -. The Supreme Court is pretty complex, so I would suggest a half-hour for each party. GIFFIN:So thatÓs two hours right there. VITOUSEK:ThatÓs two hours. GIFFIN:Maile? DAVID:ItÓs okay with me. GIFFIN:Mikahala? M. ROY:Okay with me. GIFFIN:Lester? ISHADO:ThatÓs okay. Fine. GIFFIN:Thirty minutes it is then. DAVID:I have another question. GIFFIN:Maile? DAVID:YouÓll probably going to give me the answer. The order would be the same? GIFFIN:Oh, itÓs yes. DAVID:Applicant first? GIFFIN:Yes. And then he has a, the opportunity one more time a DAVID:At the end, right? GIFFIN:But then it would be you. DAVID:Okay. 75 GIFFIN:And then Mikahala. DAVID:Right. GIFFIN:And then the County, and then one more -. VITOUSEK:Yes, but I would have to reserve time. In other words, I donÓt get more than a half-hour. If I wanted, generally, if itÓs an appellant argument, if you want to save time to rebut, it comes out of your total time. In other words Î. DAVID:Really? VITOUSEK:Yeah, it does. So if IÓm going to say I want to rebut, then I will reserve five minutes, or whatever for rebuttal -. DAVID:Of your time? VITOUSEK:Of my time, right. DAVID:IÓll give your five more minutes. VITOUSEK:Well, no, I, I think -. ThatÓs what IÓm proposing. I think thatÓs whatÓs fair. DAVID:Okay. Well, thatÓs fair. GIFFIN:Any other comments? Mr. Torigoe? TORIGOE:I wonder if the parties have had a chance to discuss the issue of findings of facts and conclusions of law, and if thereÓs any suggestions as to how that can be dealt with. GIFFIN:Yeah. VITOUSEK:Yeah, weÓve discussed it. I donÓt think weÓve resolved anything. What IÓve, what IÓve volunteered to do is circulate a draft, you know, proposed findings of fact, conclusions of law, and recommendation. I will do that, I guess, two weeks before the, two weeks before the hearing, because I want, I want to add some to what weÓve already got. But whatever, whatever date you feel is fair. And then I donÓt know that we have an agreement beyond that. GIFFIN:Mr. Torigoe? TORIGOE:Does any of the parties have any comment? 76 ISHADO:Madam Chairman, may I suggest something. I think Mikahala and possibly Maile have indicated that because of their unfamiliarity with the process, they might need time to prepare their documentation. And, you know, for attorneys, I guess, we could just pull up an old one and mark it up. But what IÓd like to avoid is the need to come back a ninth time to argue, and to talk about the proposed findings. So if the parties are agreeable, what I would suggest is that, you know, we set a deadline for setting, submitting the findings of fact, make our closing arguments on that, on the th 30, I believe, is the date. Then we have time to submit our proposed findings of fact. And then we just ask the panel to make a ruling, I mean, unless the parties here need to come back a ninth time, but I donÓt see that. Anyway, that was just a suggestion. GIFFIN:Mikahala? M. ROY:Madam Chair, am I to understand that the Planning Commission would be asked to make a decision based on this panelÓs findings as a result of our -. GIFFIN:Our recommendation. M. ROY:Process in, within that, those days? GIFFIN:Oh, no. No, I donÓt know when itÓs going to be agendized on the PC agenda. M. ROY:I see. GIFFIN:But they will be acting upon our recommendation, yes. st VITOUSEK:And it wonÓt be on the agenda for the 1. I mean -. GIFFIN:Apparently not. VITOUSEK:No. No, it wouldnÓt. I mean -. M. ROY:ThatÓs what IÓm trying to clarify. GIFFIN:Oh, I misunderstood your question. VITOUSEK:No, no. GIFFIN:I apologize. No. However, what I said procedurally is correct. They will be acting -. M. ROY:Right. GIFFIN:And making a decision on our recommendation. 77 M. ROY:I suppose because itÓs fresh in my mind from another contested case proceeding that weÓve been involved in where the Hearings Officer gave us one period, one month to make sure the findings of facts, where there were sufficient time. If I had any questions, I could follow and decide based on the material, not just, itÓs not the form I canÓt, that IÓm leery of following. It is the substance of all of the material. So this is where IÓm coming. I am just being acquainted with another proceeding where there was decision. GIFFIN:Right. M. ROY:And it has been two months. GIFFIN:Right. M. ROY:I donÓt realize, I donÓt understand the rush of this. GIFFIN:Mr. Torigoe? TORIGOE:The procedure that weÓre looking at is in Part 2 of Rule 4 of the Planning Commission Rules; and that talks about post hearing procedure for hearings conducted by Hearings Officers. And it starts with Rule 4-29. And basically it says that upon completion of taking of the evidence, which would be after you all finish with the presenting of witnesses and argument, the Hearing Officer shall prepare a report setting forth findings of fact, conclusions of law and the reasons thereof. Okay, so, thatÓs a recommended order, and they submit that to the Commission. th So if we, if we finish the evidentiary hearings and have arguments on the 30, then after that the Hearings Officer panel will have to issue a report and a proposed findings for the Planning Commission to consider. M. ROY:Mr. Torigoe, can you repeat all of that again and a little louder. And can you please make sure you state the numbers that youÓre referring to, the rule. GIFFIN:Oh, the rule. TORIGOE:Okay. Let me refer you, itÓs Rule Î M. ROY:If you could write it on the board, I appreciate it. TORIGOE:I was thinking of doing that, yeah. (Mr. Torigoe writes on board) M. ROY:Thank you. 78 GIFFIN:Mr. Torigoe? TORIGOE:Yes. GIFFIN:Go ahead. TORIGOE:Okay. So what we have here, this is just a real outline form of what is in Rule 4-29, and you should, of course, consult Rule 4-29 and read it very carefully, and follow to the letter what is in Rule 4-29 as much as possible. But just for your information, basically, weÓre now in the evidentiary hearing process. WeÓre hoping to complete that process during those days at the end of July that weÓve talked about. Once all the evidence is in and final argument is done, then the Hearings Officers are to issue a report with findings of facts, conclusions of law and a recommended order, which is intended ultimately to get to the Planning Commission for their considera But before it gets to the Planning Commission, you will have 15 days to file exceptions, which basically is objections or things you think are not right or should be different in the recommendations, findings of fact and proposed order. So you will have a chance to respond to that within 15 days of the service of that order. And bear in mind that you have to kind of, I think you should err on the side of caution with the respect to the timing of this. Because the rules talk about service of the order and, ordinarily, that has been interpreted by some court decisions to say that the time in which itÓs mailed to you. So, if I were you, I would look at the postmark, not the time you get it in the mail or the time you pick it up, you know; and count your 15 days very carefully and conservatively, starting from the date that it has been mailed to yo Okay? So you have that 15-day time period, you can file exceptions, and a memorandum of support, and the reasons why you think there are things that should be changed or are wrong. Okay, so, donÓt just say I donÓt think A is wrong, but say I think A is wrong and this is why -. And after those exceptions and support memorandum have been filed with the should be served on everybody, obviously. Then there will be another seven-day period in which the parties who are in support of the findings of facts and conclusions of law and recommendation that have been produced by the Hearings Officers, the parties who are in support of those recommendations, can file their statements in support. Okay? Did I loose anybody? M. ROY:Can you begin it again? IÓm sorry. TORIGOE:Okay. This body is going to finish the hearing, right? M. ROY:Yeah. TORIGOE:Then there will be 15 days, IÓm sorry. Then at some point the Hearings Officers will issue a proposed findings of fact, conclusions of law and order, and 79 recommendation. Once that is mailed to you, youÓll have 15 days from that in which to file written exceptions or objections, along with reasons for those o M. ROY:So that means, you say, 15 days from the date that itÓs m TORIGOE:To be safe, that is what I would do if I were you. I cannot advise you legally but, I think to be safe, you should think about it in those terms. M. ROY:So do they, letÓs see, you would -? TORIGOE:We can, Norman, is there a standard way in which those t mailed? Do we mail them by return receipt? HAYASHI:Yes. M. ROY:All right. Thank you. TORIGOE:Okay. So, there will be a 15-day period in which you ca and memorandum in support of your exceptions, serve that on everybody. And, again, itÓs always a good idea to use some kind of return receipt mailing. that nobody can say, ÐOh, I never got this. You never mailed th your exceptions in support of any, in support for your exceptions if any. And then the parties, who want to support the original recommended findings and order, have a seven-day period in which to file their support for the original recommendations. M. ROY:And if you oppose? TORIGOE:IÓm sorry? M. ROY:And if you oppose? TORIGOE:If you oppose a recommendation that comes out, then you here within the first 15-day period. M. ROY:The 15-day period? TORIGOE:Right. Within the first 15-day period. And then if you want to support it, then basically you respond to their objections that have been raised and say, ÐNo, we think itÓs a good report; and hereÓs why -.Ñ So if the report comes out and you say, ÐItÓs a terrible report,Ñ then you have 15 days to say, ÐThis a junk report. ItÓs terrible and hereÓs why -. And you should change this and change that.Ñ Okay? And if youÓre a party that looks at this report and says, Ðoh, itÓs great,Ñ then once you see these objections, then you can come back within seven days and say, ÐHey, what are you talking about? ItÓs a great report. You should adopt it just as itÓs presented to you.Ñ And then all of these, the exceptions and the statements in support, along with the recommendation and 80 proposed findings and order and the record, all of the record of the evidentiary hearings, the transcripts, and the documents, and the exhibits, all go up to the Planning Commission, the full Planning Commission. And then, before the full Planning Commission, they will hold hearings, again, not full evidentiary hearings necessarily, but in accordance with the rest of Rule 4; and that would be Rule 4-32 to 4-33. If you want to have oral argument before the Commission, you should file a written request for that under 4-32, because thatÓs just what the rule says. And the Commission also may ask for oral argument on its own. M. ROY:And when will we receive transcripts? TORIGOE:I donÓt know if staff can give you an indication at this point. Chris has something he wants to add. YUEN:Can I ask, suggest, a clarification of how this group of three here arise at a decision? And before, which is one step before this. I think what, what Ivan has laid out here is very clear as far as what happens after the Hearing Officers issue their report. ItÓs my, itÓs my understanding and suggestion that with the, that the Hearing Officers would, after hearing all the evidence and the argument, at some point meet privately under the adjudicative deliberation exception in Chapter 91, and make their actual decision. And, at that point, they might, for example, assign their attorney to, they would deliberate, they would discuss their decision. And they would, they might assign their attorney to help them prepare the final report. Then they would, then that would be the report that would issued and then sent to the parties. Is that what, let me ask if -. There was a situation where ther Commissioners previously. Did you meet in a private session and make a decision, or you met in a public session and make a decision? GIFFIN:We met right there and we voted. This was for the telecommunication tower youÓre speaking of with Souza, myself, and Mosher? YUEN:Right. And then who physically prepared the report? GIFFIN:Prevailing party. YUEN:And you directed the prevailing party to prepare the report? GIFFIN:Yes. TORIGOE:Right. Yeah, that was, you know, and the rules really donÓt spell out exactly how a panel like this prepares the report and the recommendations. And so what Mr. Yuen is talking about is how you get from here to here. And thatÓs what I was trying to get at 81 earlier on, you know, when I was talking about having the parties present their proposals so that these panel members would have, you know, at least two sets of opposing findings of facts, conclusions of law to think about. And then they might be able to issue something fairly quickly, but I understand the reluctance to do so. YUEN:The rules donÓt require the submission in advance. So, and, you know, itÓs difficult for a group of three people to sit down and prepare the findings of fact themselves. GIFFIN:WeÓre not going to. Remember I brought that up in the hearing. YUEN:Okay. So, so weÓre saying then, and itÓs, itÓs fine with me, I think that the, that the State law does permit you to meet and deliberate privately. If you want to meet and deliberate publicly, thatÓs fine. It just means that everyone then will have to come and attend. Obviously, everyone will feel obliged to come and attend the meeting. GIFFIN:Yeah, and then public hearing, right? Public testimony as well, right? YUEN:Yes. I think, I think we should arrive at a consensus that if thatÓs what weÓre going to do, weÓre on record with the parties that thatÓs whatÓs going to happen. And then, at that point, if, would a request then come out of the, either way you anticipate that the, that the panel would request one of the parties to prepare the final report in line with certain modifications, perhaps, that the Commission may make, if it werenÓt willing to adopt the position of anyone of the parties in its entirety. All right, we -. GIFFIN:In addition, at that particular contested case, because two of us felt a certain way and one person did not agree, he directed staff to file separate, you know, exceptions; I think he filed. So when the Commission got the recommendation, the Commission got not just what the majority wanted, but also the exception. TORIGOE:Minority report. GIFFIN:Yeah, minority report. VITOUSEK:So what if we, you know, so weÓre going to complete the hearing by the th 30, right? Would it be possible to set a date, say a week after that for any party who wants to submit proposed findings and conclusions, to do so? In other words, I mean, or before. I donÓt care. All IÓm saying is that in order to facilitate the Hearings Officers review, it may be helpful to have proposed findings of fact and conclusions in front of you. M. ROY:When will the transcripts be available? VITOUSEK:Well, this is not a, this is not a final decision and order that weÓre talking about. What weÓre talking about is submitting just proposed findings, you know. And, but, and 82 so what, I guess what IÓd like to propose, and I think itÓs along the lines of what Mr. Yuen is saying, is that we complete the hearing on a certain day; any party who wants to submit proposed findings and conclusions can do so by a certain date, you know, say a week after the hearing. Then the Commissioners would meet in their adjudicatory session, review the proposed findings, do whatever process they want to do, and either prepare a final recommendation or direct one party or another to prepare the final recommendation. TORIGOE:Yeah, thatÓs basically what I was proposing a while ago, except that weÓre waiting until after the hearing. VITOUSEK:Right, thatÓs correct. And that was just to the sensitivity of getting all the evidence in. But it is the same thing. YUEN:Right. And the County would agree to doing it that way. And the idea behind waiting was to allow the parties time after all the testimony to prepare proposed findings. I think that, for the most part, we could prepare, I think the parties should be able to prepare most of their proposed findings based on what they know now and what they expect to prove. And itÓs not necessary to cite the exact pages in the record. They can cite someoneÓs testimony as being the basis for the proposed finding. But I would like, we should come to an agreement now how we, how ISHADO:Madam Chair? GIFFIN:Lester? ISHADO:Sorry, this occurs. But I guess the parties expressed some concern about, and I think it has to do with, with the level of sophistication in knowing how to do the documentation, and whether this panel should rely on Mr. VitousekÓs documentation to be the base work. But we, basically, I think the, they wanted to express that; and IÓm not sure, you know, who will prepare the documentation. I personally have no problems with Mr. Vitousek. But, you know, I can understand that, you know, they may not feel comfortable with that. And so I just want to bring it up to the panelÓs attention that perhaps Mr. Torigoe, heÓs going to probably brief us in Kona, but I believe itÓs us, you know, until we do the, do the document, once a decision, of course, is made. M. ROY:Yeah, I, excuse me, Madam Chair? GIFFIN:Mikahala? M. ROY:I think, I definitely have a question about if you say about the writing. DoesnÓt your body write up your findings? GIFFIN:Usually not. 83 M. ROY:Who writes them? GIFFIN:The prevailing party. M. ROY:How do you know, how can that be written up in that manne GIFFIN:This is why Mr. Torigoe had suggested that there be some preliminary findings of facts, you see. And so then once we make our decision as to what weÓre going to recommend, and for example in this instance, if it is in your favor, then we would simply say please finish up the findings of facts, conclusions of law that we would use to submit to the Planning Commission. ThatÓs it. M. ROY:Can I have permission to, from one on my team to voice a question for me? GIFFIN:Sure. Could you please identify yourself? TRASK-GIBSON:I was going to do that. GIFFIN:Thank you. TRASK-GIBSON:I testified the first day. My name is Kahala Ann Trask-Gibson. GIFFIN:Thank you. TRASK-GIBSON:Okay. This is what the issue is, simply stated, the question for Mr. Yuen recommending an attorney, and you saying, no, the prevailing party. That would fine if our team here had the same level of sophistication that Mr. Vitousek had. And, in fact, courts do do that. But your decision is already understanding that Mr. Vitousek is going to prevail. ThatÓs the problem. GIFFIN:Oh, no. TRASK-GIBSON:And if this case, no, no. Listen. Let me speak. These two people, these intervenors, do not have the sophistication to hear your recommendations and write the decision. They donÓt. ItÓs obvious. You need to have an attorney thatÓs in your realm of jurisdiction write the decision because when they go up on appeal, theyÓre going to have to have your decision. Because when Mr. Vitousek interprets what he thinks your recommendation is, they donÓt have the sophistication to understand the nuances of how heÓs stating it as opposed to what you stated. You have to understand that when you give it to the prevailing party, thatÓs sort of like what courts do when they give it to lawyers. But these intervenors have to go over the 84 recommendation because theyÓre the prevailing party. Now that would be really difficult for them to do. GIFFIN:Okay, are you pau? TRASK-GIBSON:So, so what youÓre saying is youÓre already assuming that Mr. Vitousek is totally capable of doing that, which I think he is, if heÓs the prevailing party. But itÓs if theyÓre the prevailing party, theyÓre not. GIFFIN:And thatÓs fine, and thatÓs well taken. TRASK-GIBSON:No, itÓs not fine. GIFFIN:No, no. TRASK-GIBSON:ThatÓs why you have to have a lawyer to do your own work. GIFFIN:Okay. Well, let me finish. We do have a lawyer to do our work. That is not the issue. The issue is that it was just a suggestion. Okay? And this is like Mr. Torigoe said, it is not written in the law, the rule; but it is what we have done, and itÓs past practice. However, if the two intervenors are going to object, thatÓs fine TRASK-GIBSON:Then they object. GIFFIN:ThatÓs fine. YUEN:May I make a suggestion? GIFFIN:Mr. Yuen? YUEN:May I make a suggestion that if the Commission basically co a decision in favor of the intervenors, that the, that they would direct their, the Corporation Counsel for the Planning Commission to prepare, to actually do the legwork of preparing the final decision. Does that create a problem for you, Mr. Torigoe TORIGOE:In fact, I thought, I thought thatÓs what I had in mind. Basically, is that I would get, rough drafts is what I said -. GIFFIN:Right. TORIGOE:From both sides, and then whatever the panel wants to do, weÓll do it. And IÓll help them do it, whatever is necessary. WeÓll be able to do that. GIFFIN:But using your thoughts as a basis? 85 TORIGOE:Right. And certainly if, if I end up having to craft a recommendation in favor of the intervenors, I want to know what the intervenors want to say in that. And thatÓs why I want to get something rough from them so that the panel can consider it. And if it, if you turn out to be prevailing, then weÓll have your thoughts, and not just my thoughts or their thoughts. TRASK-GIBSON:Could I respond to that? GIFFIN:Sure. TRASK-GIBSON:Because the significance, Mr. Yuen, is not if heÓs prevailing, then he writes it, but if we are prevailing then Mr. Torigoe writes it. ThatÓs not, thatÓs not proper. They must, regardless of whether its Mr. Vitousek or us, they have to write it in this case, because this is an adversary proceedings. And Mr. Vitousek is still going to be on behalf of his client. So you must write yours. It must be objective because we then will take it on appeal, or whatever the next step is. It has to be fair, same for him as it is for us. And we canÓt be like him because weÓre not the lawyers; and so it puts a greater burden on you, but itÓs more objective from your position. Because mainly the things that you may say as a board would be t donÓt have to worry if thereÓs any nuance in what youÓre saying. But if Mr. Vitousek says it, given an adversary position, we might not pick up the nuance. But in your case, itÓll be assumed in good faith, cause you are not in the adversary position. SPRINGER:Madam Chair? GIFFIN: Hannah? TRASK-GIBSON:Thank you. SPRINGER:I follow what Ms. Trask, Trask-Gibson is saying, and take her words to heart. But IÓm interested also in hearing from Maile David before we make a final decision. GIFFIN:Maile? DAVID:Yes, I was just about to raise my hand. Thank you. I understand what the process is. My only concern is that I do not object to the, to the arrangement thatÓs being proposed. My only concern is that how much time are weÓre going to have between the end of the hearing to submit our own proposed findings? And other than that, I understand the process if, in order to make your decision, you need to see where, what our arguments are, our individual arguments. And if youÓd like my argument, youÓre going to take it and use mine, and call me up and say hey, do the final findings according to what youÓve drafted. Is that what, what kind of it basically means? I donÓt have a problem. Is that how the, it, youÓre explaining the proposed findings that we are each to, to draft? 86 TORIGOE:That could happen if the Commission, or if the panel totally agreed with your findings, although Î. DAVID:Right, right. But there is still room under the exception site, level to go? TORIGOE:ThatÓs right. All weÓre talking about right now is what Mr. Yuen, you know, pointed out - how to get from the hearing to the Hearings Officers serving a recommendation. ThatÓs where weÓre at now, is right here. And you will have an opportunity later to make further objections and support before it gets to the Commission. But in terms of actually issuing the recommendation, I donÓt know that the Commission would adopt anybodyÓs proposed findings or conclusions wholesale. I would think that even if Î. DAVID:No, that was just an example. I wasnÓt suggesting -. TORIGOE:And so even if the Commission is, were to grant the perm and Mr. Vitousek writes a very complete and voluminous findings of fact, conclusions of law, the Commission is probably not just going to rubberstamp that. TheyÓre probably going to ask him, okay, can we have a copy of this on disk so we can mess wit the things that we think are correct. So, in any case, itÓs not going to be just rubberstamping what anybody does. It is going to be their decision. GIFFIN:Hannah? SPRINGER:I believe that thereÓs a question regarding time and 4-24 reads that the Commission shall render its decision order or ruling within a period of not more than 90 days after the close of the hearing, unless a longer period of time is agreed to by all parties. GIFFIN:Mr. Torigoe? TORIGOE:Yeah, and thatÓs regarding the final decision after the close of the hearing. And, actually, weÓre talking about there, I think, is the close of the, let me just check this. VITOUSEK: Commissioner Springer, I think thatÓs in reference to where the contested case hearing is conducted by the Commission. I think when you get to the section that deals with the post-hearing procedures where the contested case hearing is conducted by a hearings officer, itÓs somewhat different. But I think, but I mean, it doesnÓt really matter. I think where we are, where at least I hope we are, is the following: I think that weÓre going to close, the hearing is going to be pau by, by July thth 30, right? And so what I would ask is the Commission set a date after July 30 and say any party that wants to submit proposed findings of fact and conclusions of law can do so by that date, and letÓs say thatÓs like a week or ten days or something. Because if we set a long time, i 87 going to take a long time. If we set a short time, it will, and this is something that can be, we can all do this, you know. And so then, and then the Commission, then the Hearings Officers meet, make a decision, they direct Mr. Torigoe how to prepare the recommendation, and he prepares the recommendation based on whatever he wants and the Commission decides, and proposed findings. Right? I mean, why canÓt we do it that way? TORIGOE:I think that that sounds like the general procedure that we had in mind. GIFFIN:It is. TORIGOE:The outstanding question is how much time does every one need to issue a proposed findings of fact, conclusions of law and decision. And I guess the question was asked when the transcript would be available. Is that a factor in your ability to issue a findings of fact? Because, you know, I think as weÓve been saying, since we all know, basically, what all the testimony has been so far, and you know what your own witnesses issue a proposed findings and conclusions without necessarily having the entire transcript. VITOUSEK:Yeah, it would seem that the Î. M. ROY:I do need the transcripts. VITOUSEK:Well it seems that the intervenors are in a situation w proposed findings of fact and conclusions of law based on what they anticipate their witnesses are going to say. I mean, in other words, it seems to be their advantage because I wonÓt know what their witnesses are going to say when I prepare mine. So, and, you know, and generally, I mean, especially if youÓre the last person to present, you generally would want to have the Hearings Officers decide sooner rather than later. But, you know -. M. ROY:My question is how can it be considered evidence if you donÓt have it to read and go by if you donÓt have it happen? And I need the transcripts to make sure that, for example, honestly, this is the second occasion IÓve had to understand and be a part of a proceeding. Guaranteed after this, IÓll be very familiar. But in the process IÓm sorry, I have to ask for the transcripts because at this time, as I go along, IÓm doing catch up. So please understand, IÓm not deliberately being hard-nosed here. I am trying to understand the process. Even Ms. David is well ahead of me. NOMURA:ItÓs going to take three weeks to a month. TORIGOE:Staff is telling us that itÓs going to take three weeks to a month to issue the full transcripts, unless we hire a court reporter. And the staff is very heavily burdened. WeÓre very shorthanded. And I, almost every time we have an appeal to Circuit Court, I have to ask the court for extra time, because theyÓre so bogged down. Because they have to, whenever we go to court, they have to prepare the record and send the whole record up to the court. And I always 88 have to ask the court for extra time. So, you know, thatÓs going to be three weeks to a month before they can issue the transcript. VITOUSEK:Can I say something. I mean, what weÓre talking about, what weÓre arguing about here is, is an extra procedure that isnÓt even in the rules. I mean, in other words, whatÓs bogging us down is, is how much time weÓre allowing and whether we need transcripts to take a step that is not even part of the procedure. And so, you know, on behalf of the applicant, could I, could I just ask that the Hearings Officers to make a decision on this and just say, hereÓs what the procedure is going to be between the close of the hearing and -. And, you know, and so we can just, I mean, we can just move on one way or the other. GIFFIN:Hannah? SPRINGER:Madam Chair, in light of Mr. VitousekÓs suggestion and our consideration of the rules before us, may I request an executive, move into executive session to confer with our corporation counsel on interpretation of the rules? GIFFIN:Yes, staff will you clear the room please. EXECUTIVEThe panel went into executive session at 3:52 p.m. SESSIONand came out of executive session at 4:10 p.m. RECESSEDThe Chair called a short recess at 4:10 p.m. RECONVENEDThe meeting reconvened at 4:12 p.m. GIFFIN:This is the continued contested case proceedings for Wayne Blasman SMA 02-03. What we have decided is that if you, if the parties would like to present proposed findings of th, fact, you may do so until August 11and then we will be making our recommendation subsequent to that. Okay? VITOUSEK: Can we, I think Mr. Yuen suggested that we put an agre record that we, that the parties understand that the Hearings Officers will be meeting in an non- public adjudicatory session to review the proposed findings and, and come up with a recommendation. GIFFIN:Correct, correct. Mikahala? M. ROY:Will the transcripts be available in that time? GIFFIN:Of the record you mean? M. ROY:Yeah. 89 GIFFIN:No. M. ROY:Nothing available? DAVID:ThereÓs some available. GIFFIN:I cannot speak for staff. M. ROY:Some are available from the earlier ones I know, but you know, for that Î. GIFFIN:Oh, yes. DAVID:We can get that. I have some -. M. ROY:So that, yeah, but itÓs not that, that IÓm at issue -. ItÓs this, today, and these days. WeÓve had potent cultural and spiritual feedback and input. I canÓt trust that to one time hearing. You have to have it in evidence. And IÓm spinning this point because this is the very thing that I call most important in a public process like a contested case hearing. And where does this, all this information for history come from? It comes from the oral traditions which is a part of an oral culture, which we are. So thatÓs why IÓm such a stickler for that record. GIFFIN:Mr. Torigoe? TORIGOE:LetÓs clarify what, what would be available. Sharon will the transcripts from the past three days, will that Î? NOMURA:It would be available three weeks to a month. TORIGOE:Three weeks to a month from now? NOMURA:Yeah. TORIGOE:Okay, by the end of June, the transcripts from this series should be available? NOMURA:Yes. M. ROY:Thank you. TORIGOE:And thatÓs, I think thatÓs why Î. M. ROY:ThatÓs the clarification IÓm looking for. TORIGOE:Yeah, because, yeah, so youÓll have all of that, and youÓll also have all the testimony from the applicantÓs case. And so thatÓs why it doesnÓt seem to be that much of a 90 concern because -. And you know what your witnesses are likely to say. So, again, this is not the final decision. ItÓs just proposed findings of facts for the panel to consider. And even th panelÓs recommendation is still going to be subject to all of your objections and support before it gets to the Commission. M. ROY:Mr. Torigoe, for the record what I shared with Mr. Yuen is that, in fact, many of the, some of the witnesses that IÓm calling I have not seen physically for five years; however, their expertise on the subject matter at hand is vital. And if they are living, I call them forward to bring their expertise, which is in their person as well as in their documented material. That needs to be entered into evidence. And they wonÓt have done that by, IÓm saying that that th. transcript wonÓt be available to us by August 11 So just for the record, thatÓs, IÓm saying that the people that are oppressed come forward before you, I am a ci reason, I cannot easily meet with the parties that I have been asking. They are coming, we are taking this from our precious, as everyoneÓs precious pockets to bring forward these people; however, the luxury of meeting with them to the satisfaction of peace of mind is not at hand for me. I have to, in other words, I need, IÓm going to, as they speak, have their testimony kind of thing. I wonÓt have the luxury of knowing exactly point by point what will be said. TORIGOE:I might suggest a couple of things. One is just to try as much as possible to speak with them by telephone or however else, email, however else you might communicate with them to, you know, get clear what the salient points will be in their testimony. And then in your proposed findings you can state them as such without necess particular portion of the transcript. Secondly, if you want to tape record the session for reference, that might be another thing you could do. M. ROY:True. I thank you for the, some people do not like being taped, but I will ask that, but, or video taped. Because in our tradition, this i appreciate your assistance that youÓre trying to give. GIFFIN:Any other comments? WeÓre all clear then. Mr. Vitousek? VITOUSEK:No, thank you. GIFFIN:We are in -. M. ROY:Just one further comment. GIFFIN:Mikahala. M. ROY:And again, Mr. Torigoe, on the matter of getting material or evidence shared by emails, etc., IÓll just say, too, that remember what you have before you is a non-profit agency which reflects the concerns of a population as a 501(c)(3); and weÓre not paid like lawyers for the work that is being done. And so, again, the luxury of taking time to relate to each person is, does not come as easily as people who, who are paid for work in this arena. This is for 91 public work. And often there are too many matters and not enough bodies to, to take on these responsibilities. Thank you. GIFFIN:Thank you. Any other comments? Hearing none. We are in th until Monday, July 28. The discussion ended at 4:19 p.m. Respectfully submitted, Sharon M. Nomura, Secretary A T T E S T: Geraldine M. Giffin, Presiding Officer 92