|
to, Paragraph 6 and Sub-Paragraphs a, b and c, which talk about the identity and scope of
<br />these valued resources, the extent to which they’re affected or impaired, and the feasible
<br />action, if any, to be taken. And as I mentioned in an earlier case this morning, these are
<br />requirements which were put into your SMA rules in January, I believe it was
<br />st
<br />January 21 of 2006; and these came and they were passed by this Commission. And
<br />they were inserted in there as a result of two very important, three very important legal
<br />actions that were taken. And one of them was the PASH decision regarding traditional
<br />and customary gathering rights, I believe you know about this.
<br />No. 3 was Act 50 passed by the Legislature relating to the cultural impact assessments.
<br />And, No. 4, from which Act 50 partially emanated was the Ka Pa‘akai case. Both Ka
<br />Pa‘akai and the PASH cases were adjudicated by the Hawai`i State Supreme Court. And
<br />in those particular cases, there were certain requirements that the court mandated be part
<br />of certain applications. And, indeed, the preamble to your current rules, Rule 9, Section
<br />1, Purpose, takes that into consideration; and, so, I won’t refer to the numbers, you can
<br />look at them yourself.
<br />While Mr. Fuke and I, who know each other quite well and are friends, I think I regard
<br />Mr. Fuke as a friend, may disagree on this, I want to caution you that the current
<br />application for an SMA Management Area Permit does not fulfill the law, not even by a
<br />long shot. And if you pass this, whether today, next month, two months, and you do not
<br />have a Cultural Resource Management Plan, No. 1, which is required by law, by the
<br />County law, and if you do not have a cultural impact assessment which is required by
<br />your Rule 9, which emanates from the State law and also Supreme Court decisions, you’ll
<br />be in deep trouble for this.
<br />And let me tell you what the scope of the work for this assessment must contain, and I’m
<br />going to put it on the record, and I’m reading this verbatim, are the OEQC guidelines that
<br />were referred to earlier. I’m sorry, Mr. Chairman, I’m taking more than three minutes,
<br />but it’s very important for you to know this, ‘cause there are new Commissioners here
<br />who might not be aware of it.
<br />In order to constitute appropriate, I’m not quoting yet, to constitute an appropriate
<br />assessment, the scope of work for the assessment has to include, and now I quote,
<br />“(1) identify and consult with individuals and organizations with expertise concerning the
<br />types of cultural resources, practices and beliefs found within the broad geographical
<br />area,” this has not been done, “e.g., district or ahupua`a.” “(2) identify and consult with
<br />individuals and organizations with knowledge of the area potentially affected by the
<br />proposed action”, this has not been done. “(3) receive information from or conduct
<br />ethnographic interviews and oral histories with persons having knowledge of the
<br />potentially affected area,” that has not been done. “(4) conduct ethnographic, historical,
<br />anthropological, sociological, and other culturally related documentary research”, some
<br />of that has been done for this area related to other projects but it has not been
<br />incorporated nor has been considered, in my estimation, in the report before you. And
<br />“(5) identify and describe cultural resources, practices and beliefs located within the
<br />potentially affected area”, not been done. Some, there has been some identification of the
<br />EXHIBIT C
<br />14
<br />
<br />
|