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HomeMy WebLinkAbout2003-07-28 TBLASMAN PLANNING COMMISSION CONTESTED CASE MINUTES AND HEARING TRANSCRIPT WAYNE BLASMAN (SMA 02-03) JULY 28, 2003 The contested case proceedings for WAYNE BLASMAN (SMA 02-03) was called to order at 9:10 a.m. in the Ohana Keauhou Beach Resort, Kahalu`u Ballroom,78-6740 Ali`i Drive, Kailua- Kona, North 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 Karen Eoff Intervenor: Klana Huli Honua Mikahala Roy David Roy Kahala Ann Trask-Gibson County of HawaiÒi Patricia OÓToole, 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:I'd like to call the meeting of the Hawai`i County Planning Commission back to order. This is a contested case hearing, and the Applicant is Wayne Blasman. The SMA number is 02-03. The application is for a Special Management Area Use Permit to allow the Note: Hawaiian words and names are done by written submittals o 1 development of a 13-unit condominium project and related improve 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. Norman, would you like to go ahead and acquaint everybody with the site? HAYASHI:Thank you, Madam Chair, or Hearings Officer. Just as a matter of orientation, I guess we are all familiar with the location of the property. It is situated along the mauka side of Ali`i Drive, indicated in red. This map is the site plan for the proposed development consisting of 13 condominium units. And finally, I Intervenor Roy's -, my mind's kind of blank, I just -. GIFFIN:I know, mine, too. M.ROY:It's a map of -. HAYASHI:Yes, it's identified as Exhibit 3B. All of these maps are oriented in a -, from south to north direction so, unfortunately, this map is placed upside down. th Since the last hearing, which was held back in May, on May 29, we received several correspondences and motions and so forth. First of all, I just wanted to present the letter that was sent by the Hearings Officers, dated June 5, to the parties indicating the schedule for this week's hearing, and it basically set the schedule and who would be presenting what and what -, at the various times. th We also received since then, first of all, on July 17, the Planning Department received a correspondence from Ms. Roy, indicating that she intends to recall Applicant Wayne Blasman and his partners and others for cross-examination. All of you have received the correspondence. We also received the Applicant's Response to Intervenor Roy's Objection to Written Testimony Submitted on Behalf of Applicant, a Motion to Strike, and that was received in our office on July 25. th Also dated July 28, which is today, we received Intervenor Roy's Response to Petitioner's Motion to Strike. th July 25, we received the copies of the July 28 Response to Objections Raised in Randy th Vitousek's Letter Dated July 17 and Intervenor Maile David's Supplemental List of Exhibits, and again, this is from Maile David. The Applicant also submitted its First Amended List of Exhibits and -, List of Exhibits, and the First Amended Witness List. Finally, we received from the Planning Director, dated July 23, received in the office July 23, by its Counsel Patricia O'Toole, the Planning Department's, Director's Amended Exhibit List. Are there any questions? 2 GIFFIN:Mr. Togashi. TOGASHI:Thank you, Madam Chair. I was wondering, Norman, did Mr the Applicant give you a revised drawing of the site plan because I believe it has changed somewhat? HAYASHI:I have not personally received any -, I mean I haven't received anything. TOGASHI:I see. HAYASHI:Except for the Exhibit 16. TOGASHI:I see. HAYASHI:That -. TOGASHI:The Commission. GIFFIN:Right. HAYASHI:Is in this -. TOGASHI:I see. All right. Thank you. GIFFIN:Any other questions of Norman? Hearing none, thank you very much, Norman. I'd like to introduce the members of the panel who are the Hearing Commissioners. To my right is Commissioner Hannah Springer, I'm Gerri Giffin, to my left is our Deputy Corporation Counsel Ivan Torigoe, and to his left is Hearings Officer Grant Togashi. Starting with the Applicant, will you please introduce yourselves. VITOUSEK:Good morning, Members of the -. GIFFIN:Good morning. VITOUSEK:Good morning, Randy Vitousek representing the Applicant. The Applicant Wayne Blasman is present, as well. GIFFIN:Maile. DAVID:Good morning, Maile David, Intervenor, and to my left is Karen Eoff. GIFFIN:Good morning. Mikahala. 3 M.ROY:Good morning, Mikahala Roy, Executive Director of non-profit Klana Huli Honua. To my right, Kahala Ann Gibson, and my -, to her ri Kahelemauna Roy. Mahalo. GIFFIN:Thank you. Pat. O'TOOLE:Good morning, Patricia O'Toole representing the Planning Director, and Chris Yuen, the Planning Director, also present. GIFFIN:Thank you very much. O'TOOLE:Madam Chairman, I wonder if -, Norman went over an exhib amended exhibit list, and I would like to amend it again. Would this be an appropriate time? GIFFIN:Yes, because what I'm going to do is call for a recess. Because of the additional information that we received this morning from one of the Intervenors, I really need some time to review it. And so if you're going to submit anything that will be amending whatever it is was submitted, now is a good time. O'TOOLE:Thank you. GIFFIN:So it will give us a chance to review everything. O'TOOLE:Okay. GIFFIN:All right. O'TOOLE:This will be Exhibit H, which is information on nominati National Registers of Historic Places of Hlualoa 4 Archaeological District. And this was sent to the parties to see if they would object, and we have not received a response. And then Exhibit I -. YUEN:Is simply, it's a map in the State Surveyor's office, a por Award 7228 showing Hlualoa Bay and some houses in the general vicinity of this prope The only information as to date that they could give in the State Surveyor's office was that it was prepared by a surveyor between 1871 and 1876. GIFFIN:So if you have that material to circulate, now would be a good time. Thank you. We are in recess for -, Commissioners, are you comfortable with about ten minutes? Thank you. VITOUSEK:Excuse me, Madam Chair? 4 GIFFIN:Randy. VITOUSEK:I didn't hear Mr. Hayashi say that the Commission had received the proposed written testimony from both -, the Supplemental Written and the Proposed Written Testimony from Richard Moore. GIFFIN:I think he alluded to it, but -. VITOUSEK:I think -. GIFFIN:You might want to be more specific, Norman, for the recor HAYASHI:Yes, we did receive it. VITOUSEK:Okay. And then if I could just point out to Mr. Togashi, in response to his question, Exhibit 16 is both the revised site plan and the revised landscape plan, as pointed out in the written testimony. In other words, the landscape plan is shown on the revised site plan. GIFFIN:Maile. DAVID:Yes. Thank you, Madam Chair. Before we take a break, I would just like to, for the record, express my condolences for Lester Ishado and how much I appreciate his contribution to these hearings, and Karen and I would like to express that this morning. GIFFIN:Thank you. DAVID:Before we start. GIFFIN:Very much. Thank you. DAVID:Mahalo. GIFFIN:Mikahala. M.ROY:I, likewise, I request that -, well, just to say that we will greatly miss his presence. I would like to say that he was always kind and helpful to my father and to me. I felt that he genuinely cared deeply about issues relating to Native Hawaiians. And I felt embraced, that he embraced our culture and that he was in harmony with our professional positions. He was always available, he was keenly aware, and he took the initiative to offer suggestions and presented opportunities and avenues available for information to us from the general public. We'll truly miss his kind and gentle spirit, and perhaps he lingers close by. GIFFIN:Thank you. M.ROY:Thank you. 5 GIFFIN:We, too, members of the Commission, the hearing body, express our deep, deep, deep sadness over Lester's passing. Members of the Commission, parties? Then we are in recess. Thank you. RECESSEDThe meeting recessed at 9:22 a.m. RECONVENEDThe meeting reconvened at 9:44 a.m. GIFFIN:I'd like to call the meeting of this contested case hearing back to order. And we appreciate your indulgence. We'd received so much information and material this morning that we just needed this extra time to get organized and review everything. And I will allow some extra time for you later on. Okay. M.ROY:Thank you. GIFFIN:Commissioner Springer. SPRINGER:Madam Chair, I have a question regarding the numbering of the Applicant's exhibits. May I ask that now? GIFFIN:Yes. SPRINGER:At our previous meeting, I have the supplemental testimony of Dr. Rechtman listed as Exhibit 16. VITOUSEK:That may be my mistake. It may be that my secretary, Barbara, was not aware that that was introduced into evidence at the hearing. And so if I could ask that we renumber the one I just submitted to No. 17. SPRINGER:Thank you. VITOUSEK:My apologies. The revised -. A copy of the -, what is now Exhibit 17 has been placed on the wall there, as well. GIFFIN:Once again, Mr. Vitousek, what is the number? VITOUSEK:Seventeen. GIFFIN:Thank you. Okay. Earlier, as Norman mentioned, we are in receipt of a th memorandum from one of the Intervenors, Mikahala Roy, dated July,the Intervenor Mikahala Roy's Objection to Written Testimonies and Motion to Strike. And then we were in receipt of the Applicant's Objection to the Request by the Intervenor. Logically, this morning, we received again a Response of the Intervenor's Objection of the Applicant's Objection. And so what I'm going to do before I rule, just let me get myself organized, is that I'm going to have the parties go ahead and argue for five minutes each, and that's why I wanted to make sure that our 6 Staff had something to time you with. And, Mikahala, why don't we begin with you and your stated objections. Now this is not to go over in great detail what you've already presented in written form, this is simply to strengthen what you have written and if you can, not to repeat what had been presented to us. And then following that, I am going to ask the Applicant to go ahead and argue for five minutes, and the same thing would apply to you, Mr. Vitousek. You can indicate when you are ready. And, yes, and as Mr. Torigoe has reminded me, the other parties will also have a chance to give some input. Mikahala, one minute. Phyllis, you ready? Thank you. M.ROY:Thank you, Madam Chair. Public hearing at a contested pub provide that the public hear the Applicant's testimony and pre-hearing conference between and among the parties cannot controvert the public's right to hear testimony. At the pre-hearing conference held in Waimea, had I understood from a legal standpoint that the agreement that I kindly agreed to in kindness, not in consciousness of legal proceedings, I heard the request for -, to move the proceedings along, would written testimony be admitted. I had no idea that this meant that this material would not be read and given orally for the public's consumption at the public hearing. In subsequent examination of this process, I am aware that the public hearing process, contested or otherwise, is an opportunity for the public to hear all presented testimony, and it is, in fact, for the public. We move forward to offer our input as Intervenors, but that isn't like what I'd like to say at this time. I am not an attorney, and I did not understand that Attorney Vitousek's offer to produce written testimony meant that there would be no oral testimony, and that I would not be able to cross- examine fully, and that once the written testimony was accepted, all challenge to its content, truth, veracity, and exposure to the parties and public, were waived. Oral tradition requires that the process be oral, and this is similar to the common law concept that -, which was proper. Public knowledge and conduct was handed down orally. I move that the Applicant's testimony and that of his witness be oral and public. In the alternative, I move that this witness, that his witnesses be produced for extensive cross- examination at this time. GIFFIN:Officers, any questions of the Intervenor? None? Mr. Vitousek. VITOUSEK:Yeah, thank you. I think as Ms. Roy points out, there was a pre-hearing conference that was held, and the procedure in terms of submission of written testimony was discussed at the pre-hearing conference, and it was agreed among all the parties that all parties would have the opportunity to submit written testimony by a specified date and that, you know, that was just, that was the procedure that was agreed upon, which is provided for under the Planning Commission rules. Planning Commission Rule 4 relative to contested case hearings has several references to use of written testimony and a specific provision that says that written testimony may be submitted and may -, doesn't need to be read into evidence if the parties so agree. And so, you know, the -, I mean the real point of all -. I mean, you know, from the perspective of a lawyer, right, it's unusual that you offer written testimony in advance, because what that 7 does is it takes away any element of surprise, and it means that it gives your -, whoever is going to be cross-examining your witness, weeks rather than minutes to decide what to ask in cross- examination. It also means that our direct testimony is limited to what they say in the written testimony. And so it's like a cross-examiner's dream, you know, where you know the full content of what the witness is going to testify on direct, and you have weeks to prepare your cross- examination. So it's hardly something you do to sneak up on so doing it is to allow a full opportunity, is to streamline the process by submitting the written testimony in advance. I think there may also be some confusion because, you know, when testimony and it's accepted by, into evidence, that doesn't mean that it has to be treated as true. I mean, that's the difference, you know. It's still subject to cross-examination, and it's still subject to the Hearing Officers' weighing the testimony. They can decide that it's not true or that it's outweighed by other evidence. In other words, just because it's something is on the record, doesn't mean it has to be accepted as true and accurate and dispositive. So -. Thank you. GIFFIN:Hearings Officers, any questions of Mr. Vitousek? Mr. Togashi. TOGASHI:Thank you, Madam Chair. What would you say to a argumen having, allowing parties to submit written testimony in advance that it precludes the public from, I guess, fully participating in the proceedings? VITOUSEK:Well, the -, I mean the Planning Commission records and files are open to the public, for one, and so any, you know, so anything that is in the record is open to the public. The public has no, the public has a right to come and give testimony relative to an application, but doesn't have a right to cross-examine witnesses, and so that's why the Rule 4 contested case rule, contested case hearing procedures, that's why the submissi in that rule, I think, as opposed to the Rule 9 SMA application. So I think that -. And I'd also point out in response to your question, Mr. Togashi, that we were all here when these witnesses were cross-examined for hours. In other words, we were here -, on the stand for six hours, and that was after his written testimony. So the idea that, you know, there was an inadequate opportunity to cross-examine him or an inadequate opportunity for his opinions to be exposed to the public is not well taken. GIFFIN:Any other questions? TOGASHI:Thank you. GIFFIN:You're welcome. The County, any questions, statements? O'TOOLE:Yes, we believe that the witnesses have been called, the testimony submitted, and they were subject to cross-examination. I understand that perhaps there's some confusion here, but when you cross-examine someone, I don't think anyone ever feels that, gee, I did a perfect job, and I hear some of that in what Ms., you know, Roy is saying. But the 8 procedure was agreed upon, and the witnesses were cross-examined fully, it appears from the transcript. And, also, the argument that the testimony is thus accepted and Officers must feel that way, I don't believe is the case in that the evidence, including cross- examination, will be considered and the testimony weighed accord GIFFIN:Thank you. Before I call on you, I'm going to give Maile ahead and respond. DAVID:Thank you. At the pre-hearing conference, I understood for myself what it meant, expediting the testi -, by submitting written testimony. I also agreed to that because knew what it entailed. I can -, I really understand where Mikahala is coming from in the sense that the full meaning of that in a proceeding such as this was not -, you know, she was not aware of. And it is a disadvantage. So how we resolve that? I think people that come to hearings such as this are expected to do a lot, whereas if you had the luxury of an attorney to advise you in these proceedings, your job would be a little bit easier. But as far as my understanding of what it meant to submit written testimony, I understand it, and I also understand Mikahala's position. So in that sense, I am not going to object to her position and leave it at that. GIFFIN:Mikahala, I am going to call on you and give you a last chance to rebut, and then after that, if the Hearings Officers do not have any other questions, I am going to call on Mr. Torigoe. Mikahala. M.ROY:Thank you, Madam Chair. And exactly, in rebuttal to Attorney Vitousek's point on agreement in pre-hearing, the public has a right to testify, and although they do not have the right to cross-examine, they may informally request and discuss issues with the Applicant, the County and the Intervenors. If the public cannot hear the testimony because it has been secreted away from the public forum, how then should they know w testify to? Indeed, the County, in this case, has decided that the public testimony does not have the same weight as the Applicant's case because it may not be relevant and is not subject to cross-examination. This is a further question I have for the powers today, whether my understanding is correct when I understand, being that I've had no guidelines in this process other than a publicly transferred document on, in general, contested case hearings and how they go. And I do not know the weight given the Applicant's testimony versus the public's versus ours. I'd like to clarify that point. But I'd also like to respond to the County's representative today. I am not saying that I have not, I am not questioning my interrogation or my cross-examination of however, Ms. O'Toole, new information has come to light in my mi and to understand the rights of the public. There were some 70 people at the original public hearing that we all met here. Now the process is many people come. If they cannot cross- 9 examine the Applicant's witnesses or any of our witnesses, they surely can come up to us, as representatives from the public, but they have an input. Is that not what this process is for? And I greatly resist and am saddened at the thought that we are not able to in public process take the time. Now I see that that time that would be taken to read -. In court, you may not read your testimony, correct? You must give it orally. And this is a quasi-court proceedings, am I right? And now I understand why that is important, because everyone who comes can hear it. Even if they don't come. There's a law that protects this, I'm seeing. I'm quite sure about this now. Thank you for hearing me. GIFFIN:You're welcome. Hearings Officers, any questions? Mr. Togashi? Mr. Torigoe. TORIGOE:Yes, Madam Chairman, is there anything particular that you would like for me to address or -? GIFFIN:Yes, I would. In particular, I'd like you to please address Rule 4 and its applicability here in terms of procedures and what we did in following the rule to the letter, I think. TORIGOE:Yes, as has been noted on the record, the Planning Commission Rule 4-8 provides that there can be conferences with the presiding officer before the contested case hearing to arrange for exchange of proposed written testimony. GIFFIN:Could you speak louder? TORIGOE:Sure, I'm sorry. GIFFIN:Thank you. TORIGOE:I'll repeat that. GIFFIN:Thank you. TORIGOE:Rule 4-8 provides that there can be a conference with the presiding officer before a contested case hearing to arrange for exchange of proposed written testimony. Rule 4-1 also provides that any procedure in a contested case may be modified or waived by stipulation of the parties. These rules do not originate out of thin air, they are based on Chapter 91 Hawai`i Revised Statutes, which is the basis for conducting contested case hearings. Under HRS Section 91-9(d), again, it states that any procedure in a contested case may be modified or waived by stipulation of the parties. Also 91-10(1) says that any oral or documentary evidence may be received. So the statute that enables and provides for contested cases allows for documentary evidence as well as oral testimony. 10 And although this is a quasi-judicial proceeding, that is exactly what it is, it's quasi-judicial, it is not, you know, an actual formal judicial proceeding. These are not judges. You do not have to have a lawyer, you know, to be represented here. So there is a bit more flexibility allowed under contested case procedure under Chapter 91 than is normally found in court. And I think the rules clearly envision that the parties can agree to modify procedures, formal procedures, and also that the rules of evidence formally do not apply and, again, any oral or documentary evidence may be received. I think the record also reflects, as we have been discussing and as I think the written submissions show, that there was no objection by Ms. Roy at the time that this written testimony was first offered into the record, and we've had several days of hearings on that basis with ample substantial time for cross-examination by the parties, and all the parties and the members of the panel have relied on the admission of this evidence, this written evidence, and have conducted hearings on that basis. And if members of the public were here and were really interested in, I think, in observing these proceedings, they would have seen that the direct testimony of the Applicant was being submitted in writing and anyone who was interested in reviewing that and providing input to any of the parties was free to review that testimony and to speak to the parties about it if they felt that there was something that needed to be brought forth. So -, and I would emphasize again that the fact that evidence has been received into the record does not, does not mean that the panel is bound to take it as gospel truth. It is something that is simply there for the panel and the Planning Commission to consider, to weigh along with all of the other evidence that may be provided, and ultimately come up with a decision. So, basically, you know, at that -, I don't see that, Madam Chairman, that you are compelled to strike this testimony at this point. I think it remains a matter that is within your discretion to consider. GIFFIN:Thank you. One minute. There's another issue that you raised, Intervenor Roy, that I would like to address, and that is you spoke of weight and how we would, as members of the Hearing Officers, weight public testimony less than information and testimony that would be given either by you people or by the Applicant, and I can tell you personally that not only do we sit here and take copious notes, but personally, myself, before even coming to the next hearing, the next series of hearings, I read the record thoroughly. And like in this past instance of the last three days that we met in May, I spent two days just reviewing the record prior to our first hearing. Not only did I review all of the written testimony, but again, during the hearing, took copious notes. At the close of the second hearing, know I also spent days reviewing the record and reviewing my notes against the record so that what I understood to be presented, either by a public testifier or by you as an Intervenor, or Maile, or Randy, as the Applicant, whatever, that my records and my recollection were correct. So that isn't -, I heartily disagree with that in terms of weight, and maybe I can ask Hearings Officer Springer to also elaborate on that issue of weightedness. Please? SPRINGER:I concur with the review process, and as recently as this morning, did go back to the first installment of hearings here just to refresh myself with part of the record that was further distant from us today. And where there are gaps in the record or inconsistencies, try to make them whole and complete and understandable as, for examp No. 16 or 17. So it's -, we're all working to the best of our abilities and appreciate the 11 opportunities that others provide for us to check ourselves and hone our skills, but I concur with you, Madam Chair. GIFFIN:Thank you. Mr. Togashi. TOGASHI:Let me just say that I do concur with the two preceding statements or comments. But -, in the same light, too. In my experience as a Commissioner, I think there is somewhat of a tendency to -, if the transcripts are not available, of the public testimony, to not perhaps give them less light but to -, I think there is maybe some tendency to perhaps not -, if you do not have the transcript, you do not have the opportunity to review the public testimony. So in that sense, if the transcripts are unavailable, I can see that happening. But if the transcripts are available for all parties, including the hearings panel, then there shouldn't be any reason why the public testimony is slighted in any manner. GIFFIN:Mr. Togashi, in preparation for all of our hearings, were you afforded the luxury of -? TOGASHI:Yes. GIFFIN:The record? TOGASHI:Yes. GIFFIN:Thank you. Mikahala. M.ROY:I appreciate all comments that have come to me, and I do b statements. My question is if those transcripts are barely made available to us, people participating in the proceeding, when does the public have a chance to run down to the Planning office and request? It's not there. Right at this time, they're not there. And it also gives the public one more hurdle to go through. You can appreciate that, like I say, in the beginning, the momentum is strong. And in 1980, these rooms were filled with p present testimony by witnesses that argue for reasons why they may not be filled today, but no less strong is the desire for the defense of this public process. And me, being one of the public, I have to ask the question today because I am not an attorney and I'm prevailing on you to tell me the truth. And Mr. Torigoe, does your mandate, is that in defense of the people? Would you say in your opinion that that defends the public's, protects the public from their right to hear and know, advise, be advised of what's going on? Because another thing is we weren't made aware of this process. No attorney spoke of this. You were there in the room in Waimea. No one spoke of this process to me. So, again, I made a decision, based on kind information. GIFFIN:Mikahala, I think that in deference to Mr. Torigoe, I would like to say that judging from what I remember of that meeting and your comments at that meeting and your body language at that meeting, I really do not recall that there was any indication that you were not 12 familiar with our Rule 4. That you responded in kindness, I appreciate, because I think that that's what we're all leading with; we're leading with our hearts and our minds. But had there been any indication from you that there was need for interpretation of our Rule 4, I know that all of us, and I remember even the Applicant being very solicitous, to help you with the understanding of Rule 4. M.ROY:But if I may, if you would have asked how I felt. GIFFIN:Yeah. M.ROY:As a person. GIFFIN:Yeah. M.ROY:Representing a non-profit to you that day, I would tell you I do not know that Rule 4, and I never had it talked -, spoken of and didn't have a choice. GIFFIN:Did you have a copy of Rule 4 in your hands or -? M.ROY:No. GIFFIN:I do remember you came into the meeting kind of harried a father. M.ROY:As often in public arena, yeah, this is not our work. It is our work, but it's our job, so to speak, but it's not the compensatory work that people do, so that may be the case, but I'm, like I say, genuinely from the public. GIFFIN:Thank you. Mr. Vitousek. VITOUSEK:Yeah, if I can -. GIFFIN:One last word and then I want to -. VITOUSEK:Thank you. I just, you know, one point I wanted to address which is that, you know, by submitting your testimony in advance creates absolutely no disadvantage to any other party. GIFFIN:To the Intervenors. VITOUSEK:Yeah. I mean it is completely an advantage for them to know in advance what our witnesses are going to say. And so any, you know, any suggestion that it's any attempt to hide anything is really not well -, or that anything's shielded from the public or shielded fr the process is -, it's really not the case. That's really laying your cards on the table very early. 13 GIFFIN:Okay. Then without any further ado, I am going to rule on the motion, and I will rule to deny. And with that, I think that what we need to do is go on with our schedule, and we are already late. VITOUSEK:Madam Chair, if I may? GIFFIN:Mr. Vitousek. VITOUSEK:Thank you. I had offered -, you know, we had had this discussion about the Applicant's additional witnesses, and I have asked to have Mr. Bleck testify a little supplemental testimony because there was a modification to the proposed site plan, and I've also asked for Mr. Moore to be able to testify in place of Fielding Schultz as the landscape architect. Now I know that's not the schedule, you know, but they are both present and so what I would ask is either -, and, you know, is that we either let them testify so that, you know, then the Intervenors, and then the Applicant's finished with their case and -. GIFFIN:Oh, I see what you mean. VITOUSEK:Or we give them a time when they can come back. GIFFIN:Yeah. Yeah. Yeah. Hearings Officers, your input, please. Ms. Springer. SPRINGER:I'm wondering if Mr. Roy is here, is Kal Mossman here then? M.ROY:There is a lot to discuss for housekeeping on the schedule. We have some changes, as Mr. Vitousek, and so there is a lot to discuss there for today's time. First of all, I would, just before we move on, can I ask you if we are going to continue the process of accepting written testimony in lieu of oral, for the future? VITOUSEK:If I may address that, Madam Chair. GIFFIN:Mr. Vitousek. VITOUSEK:We're -, I am going to ask Mr. Bleck and Mr. Moore to read their testimony into the record. It will be the same testimony that was the written testimony. GIFFIN:Okay. VITOUSEK:But they will read it into the record. GIFFIN:Okay. VITOUSEK:Because I don't, I don't want this issue to continue. GIFFIN:Thank you. 14 M.ROY:Thank you. GIFFIN:Commissioner Springer. SPRINGER:So, Madam Chair, if I understand you, you are indicating that we are going to now get back to the portion of the hearing where we hea correct? th GIFFIN:Yes. As stated in our June 5 memo. SPRINGER:And Mr. Roy maintains a presence here and has throughout the hearings. I would have no objections to hearing the Applicant's witnesses out of -. GIFFIN:Okay. SPRINGER:Order. GIFFIN:One of the Intervenors expressed some concern in terms of housekeeping schedule, but before you do, Mr. Togashi, any input regarding the schedule and proposed change of schedule, first by the Applicant? TOGASHI:Personally, as one of the hearings panel, I didn't have any objection to having the written testimony and oral testimony of Mr. Bleck and GIFFIN:Okay. TOGASHI:As part of our evidentiary record. But, you know, we were talking about, I th guess, rules and adherence to rules, and I know that Ms. Giffin did -, has a letter dated June 5 to all the parties involved about, in fact, under Note 2, there's a statement that no changes to the th witness list shall be made after July 7. And, you know, we're all talking about adherence to rules. Personally, I don't have any problems to the admittance of these two additional testimonies, but since we're all talking about rules, I just wanted some input from Ms. David as well as the County Department, and I'm sorry, Ms. Roy, as well. GIFFIN:Maile. DAVID:Yes, with regard to witnesses, I would like to let you folks know that the three witnesses are prepared, my three witnesses are prepared to go on at one, two, and three this afternoon. They are being picked up as we speak. But Mr. Vitousek's request on whether he can squeeze in his witnesses, I would prefer that because the schedule is so tight this morning, that we go ahead and possibly reschedule his witnesses for a later date in keeping with the schedule that you've already sent. GIFFIN:Mikahala. 15 M.ROY:Thank you. Madam Chair, Mr. Togashi, thank you for your attention to that comment on rules. We have -, Klana Huli Honua has no problem with Mr. Vitousek's additional witnesses if there should be an agreement that he or the proceedings would allow changes, bare as they are, to my presentation of witnesses. We'd like to present this morning, and knowing that there is a lot of housekeeping, I would like to move my father's presentation to a later time in the presentation. I would also like to say that we have prepared testimony by Dr. Noenoe Silva by telephone today. And that should -, being -, so you can see that there is opportunity to make changes here. Also, for the record, I would like to say that there have been inabilities for two of our witnesses to be present in the afternoon of Tuesday. That would be Kehau Abad and Mr. Tom Cummings. But we anticipate Mr. Kal Mossman and Pua Kanahele tomorrow, if we may, and I apologize for not putting it in writing. We just knew of this as we come to the hearing this morning. GIFFIN:So just to clarify, the 10:00 slot for Kal Mossman, you are requesting that it be inserted in tomorrow's schedule. M.ROY:Correct. GIFFIN:And 1:00 p.m. and the 2:00 p.m. slots could be, would be empty, and perhaps what you are requesting, if I understand you correctly, is to replace one of those slots with Kal Mossman. M.ROY:Yes. Pua Kanahele in the morning. GIFFIN:Which we have scheduled. M.ROY:Right. And if she, for example, goes less, Ms. Giffin, if or -. GIFFIN:Sure. M.ROY:Yes, he is prepared to be after her. GIFFIN:Oh, oh. M.ROY:Tomorrow. GIFFIN:Okay, before lunch probably. M.ROY:Possibly. And then we reserve my father's testimony, so t as you can see, there is opportunity if -, and in light of rule -, keeping to the rules, I see no objection to Mr. Vitousek's request. GIFFIN:Commissioner Springer. 16 SPRINGER:I would ask of Intervenor Roy then if Mr. Cummings and Ms. Abad are being stricken or if they're going to be rescheduled. M.ROY:At this point, we would say they would be stricken from the record, from the proceeding. GIFFIN:Did I see your hand up? VITOUSEK:Just briefly, yeah. GIFFIN:Mr. Vitousek. VITOUSEK:All I was going to say is that, you know, the Applicant appreciates the position taken by Ms. Roy and Ms. David and we don't object to modifying the schedule as they've presented. What, you know, the Applicant would like to get all the evidence on the record, but we'd like to do it in these sessions that we scheduled over the next couple days and not after that. But within that, we agree, we have no problem with what's been proposed. GIFFIN:Great. And just for clarification one more time, Ms. David, we are, you are prepared to present Dr. Silva at 11:00 a.m. today by phone. Okay. So we have this, if I'm correct, we have this 35-minute block of time that is available, correct. M.ROY:Chairman, Chairwoman Giffin, in addition, I have a short s video presentation of Dr. Silva that the public would see her, partly for that but partly to -, she is also stating some of the things that I have provided her written testimony on. And wonder that in addition, it's five pages, I would need to offer that in in the way of reading testimony. That's another thing, see. GIFFIN:I'm going to rule that that's acceptable, and the video t prepared to present to us. Why don't we begin that video at 11:00 and spend this 35-minute period hearing the two witnesses that the Applicant has requested, but only until 11:00 so that we can get back on schedule with Dr. Silva. Mr. Vitousek. VITOUSEK:Yes, if it's okay, then I would ask Paul Bleck to read his written testimony into the record. So we'd be recalling Mr. Bleck. We understand GIFFIN:Right, I'm not going to swear him in again. VITOUSEK:Because he testified in this matter. Madam Chair? GIFFIN:Yes, you may. VITOUSEK:Mr. Bleck, you had previously testified as a witness in this contested case hearing, isn't that correct BLECK:Yes. 17 VITOUSEK:And after your testimony, you were, you had further conversation with the Applicant relative to the potential to modify the site plan for the proposed project, isn't that correct? BLECK:That's correct. VITOUSEK:Okay. May I ask that you read your written testimony, which has been submitted to the Hearings Officers and to the parties, if you could please read your testimony into the record. BLECK:I am the architect who prepared the plans and drawings for Blasman's proposed 13-unit condominium project to be located on 1.255 acres at -. D.ROY:Excuse me. Will you read a little slower please and a little louder? BLECK:Is this working? GIFFIN:Yes, it is. BLECK:Shall I begin again? M.ROY:Yes, please. BLECK:I am the architect who prepared the plans and drawings for th Blasman's proposed 13-unit condominium project to be located on 1.255 acres at Hlualoa 4, North Kona, Island of Hawai`i. I have previously testified in this matter on behalf of Applicant Wayne Blasman. After the public hearings in March and May, 2003, I was asked by my client, Wayne Blasman, to assess whether we could move the two structures located in closest proximity to the Pahika(sic) in the Keakealaniwahine Complex further from the property line without posing a significant adverse impact on the proposed project. Mr. Blasman advise that he was trying to increase the distance by which the proposed structures were set back from the property line to create additional area along the mauka boundary of the site for implementation of a landscape plan. I advised Mr. Blasman that I would revisit the proposed architectural plan with those concerns in mind. Based on these instructions, I redesigned the mauka portion of the proposed project to move one of the proposed structures an additional 9½ feet from the mauka boundary of the site. I was able to move this building an additional 9½ feet away from the property line, resulting in a building setback of 38½ feet. The adjacent unit would remain at 38½ foot One of my concerns in re-siting these building was that the further away from the property line the buildings were moved, the closer together they became. In redesigning this portion of the property, I was able to maintain the separation between the buildings while increasing the distance between the structures and the property line in the area where the structures would be 18 most proximate to the cultural and historical sites in the Keakealaniwahine complex. A copy of the revised site plan landscape plan will be submitted as Exhibit 16, now 17. The proposed revisions did create more open area that can be landscaped. The additional landscaping will serve as a visual buffer between the proposed structures and the Keakealaniwahine complex. In June 2003, I was asked to assist Mr. Blasman in retaining a landscape architect as opposed to a landscape contractor to develop a proposed landscape plan for the subject property. I retained landscape architect Richard Moore of Kohala and asked him to prepare a landscape plan. I advised Mr. Moore of the concerns expressed in the hearings relative to the potential adverse visual impact that the proposed structures may have on the adjoining historical site. Mr. Moore prepared a landscape plan which uses primarily native plant materials to create a plan which, again, I hope will be more culturally and environmentally appropriate. Mr. Moore will be presenting his landscape plan in written testimony and/or orally. VITOUSEK:And Mr. Bleck, can you indicate on Exhibit 17 the area where the -, which structure was moved and how it was moved on the plan. You need BLECK:This building right was moved further makai so that the setback distance, the shortest distance between this corner of the building and the property line was increased that 9½ feet. VITOUSEK:Okay. And you said something about -. GIFFIN:Excuse me, we need to identify that building for the record. VITOUSEK:Sure. This is the building that is -. GIFFIN:The center. VITOUSEK:I guess it's on the mauka portion of the property. There are three buildings located somewhat in a row on the mauka side of the project, and it is the center building, as indicated on Exhibit 17. GIFFIN:Excuse me. VITOUSEK:Okay. But Mr. Bleck, I think you testified that you were trying to maintain separation between the buildings. Could you explain that? BLECK:Yes. We wanted to keep separation between the buildings to break down the potential massing of combining structures and to let air, light, and allow landscape to grow between the buildings. And we were able to maintain that 10-foot separation. VITOUSEK:Okay. And so, correct me if I'm wrong, but one of the moving the buildings away from the property line is that if they got too close together they would either have to be created as a single building or would appear to be a single building, is that correct? 19 BLECK:That's correct. VITOUSEK:And the concern is that if it is a single building, it would appear to be of greater mass than three separate structures, is that correct? BLECK:Yes. VITOUSEK:Okay. That's all the questions I have. GIFFIN:Thank you. Officers? Ms. Springer? SPRINGER:Not yet. GIFFIN:Thank you. Mr. Togashi? TOGASHI:So if you were to look at the three upper-most buildings from let's say at various points along Ali`i Drive, would you, would the casual observer see space between the buildings? Could he sense that there was definitely some space between the three buildings, between -? You see what I'm saying? That there is at least some space between the three, between the buildings? BLECK:Yes. Yes. I have no doubts that the buildings would look detached. GIFFIN:Any other questions, Mr. Togashi? TOGASHI:No. Thank you. GIFFIN:All right. Ms. Springer. SPRINGER:Thank you. On Exhibit 17, there's some shadowing indic large trees. I'm wondering about the shadows that would be cast by those three mauka buildings when the sun is in the west, in late afternoon, how much of a shadow would those buildings, those two three-story buildings would cast. BLECK:Well, I don't think it would be significant. I don't know depends on what time of day. It would be quite late in the day, near sunset, for the shadow line to reach the property line. SPRINGER:And that's exactly what my question is. BLECK:Yeah. SPRINGER:So how far would the shadows extend to the property line? BLECK:Just prior to sunset. 20 SPRINGER:And it would not go beyond the property line? BLECK:Well, they might, yes. SPRINGER:Because we're speaking of cultural sensitivity, these questions are more germane than you may consider them. But thank you for that. GIFFIN:Any other questions? I have a question. Looking at the diagram, Exhibit 17, and correct me if I'm wrong, when you initially spoke of the structure and the design of the buildings, you indicated to me that there would be a lanai on the back portion of these buildings. BLECK:Yes. GIFFIN:And it was your feeling that these lanais would add a positive impact to the buildings so that they wouldn't be just blank walls and so it would add a feature to the backs of those buildings. In your revised plan, is that still the cas BLECK:Yes, we did not alter the design of the buildings. GIFFIN:If then after hearing and reading all of the other testimony, I was concerned about that issue and that feature of your design because of the viewing. And I know you're not the landscape architect, and I am going to ask him this question as well, but I thought perhaps you could give us some light initially. With the new landscaping plan, will the observation of people who are in these three buildings, even though I understand they're closer, they're further from the historical site adjoining this property, will they still be able to see in? BLECK:No. GIFFIN:Okay. Thank you very much. Maile. DAVID:Thank you. I have one question for you. Your redesign of setback, your additional nine feet that you're adding, does this satisfy the recommendations of the State Historic Preservation Department for the setbacks that BLECK:Well, it's about, based on our observation, 89½ feet from that nearest artifact, the big wall. DAVID:You're saying there's 89 feet now from the lava closure to where the buildings begin? BLECK:To the closest corner of our closest building. DAVID:So did you satisfy the requirements, in your opinion, did you satisfy the requirements of the State Historic Preservation Division? 21 VITOUSEK:Excuse me, I object to the form of question because I think it assumes a state of facts not in evidence that Historic Preservation didn't make any requirement. I mean I think that mis-states their -. GIFFIN:You know what? DAVID:Excuse me, recommendation. GIFFIN:Maybe you could just state that you don't know or that there are no requirements that you know of or something like that. BLECK:I don't know the specific number of foot requirement, if a DAVID:Thank you. GIFFIN:You're welcome. Mikahala. M.ROY:Speaking to that very requirement, I think we are all in the process, the communities are, with the State Historic Preservation on matters record. I have a large, a long question for you. So would you begin to discuss again the plans to build each building, how high they will be, and from the ground up what you plan to do by your plan. VITOUSEK:Okay. I object to the question. It's beyond the scope of the direct testimony. In other words, she questions -. You know, we offered the witness' testimony. She thoroughly cross-examined the witness. The witness is recalled for the supplemental testimony. The scope of cross-examination is limited to the scope of the supplemental testimony, and starting from the beginning and describing the whole project is really not appropriate. M.ROY:Ms. Giffin? GIFFIN:Mikahala, may I make a suggestion? Would you rephrase your question so that it's within the format of what was just expressed. Thank you. M.ROY:Thank you. So would you speak to the height, again, of th will be built on the property. GIFFIN:Mikahala, since that wasn't presented in oral testimony o testimony this morning, that kind of exceeds the bounds of quest his opinion. M.ROY:May I ask your opinion on your plans to-date for the height or the plans for this development? 22 VITOUSEK:I'm sorry, that -. For one, that question is very vague and ambiguous. I mean just ask your opinion on the plans for the building is not -. I mean, I think that's ambiguous. It's beyond the scope of the direct examination. GIFFIN:Thank you very much. Mikahala, maybe we can go back to y question regarding the height and you can relate it to its relevance, to what he may have said this morning. And if you want to, you can refer to his testimony. M.ROY:Thank you. In the testimony that you gave regarding the m that particular building that you've spoken on today, would you describe the -, then the particulars on that particular building for height. BLECK:Well, the height of the building remains unchanged. M.ROY:And what is that, please? BLECK:Thirty-five feet to the ridge. M.ROY:Is that from the -? Ridge is what? BLECK:The top of the highest roof. M.ROY:And what is the lowest point from which you're working in that measurement? BLECK:The level of the driveway. M.ROY:Will there be sub-movement down below that for this partic Will there be excavation into the ground? BLECK:No. M.ROY:Will there be a basement? BLECK:Well, technically speaking, the parking garage is, per the Uniform Building Code, is described as a basement. M.ROY:Thank you. Another question. I have a question on why is this property owner imposing on the adjacent land by trees that obviously pervade into neighboring area is my question from the picture. Could you speak on that? BLECK:Well, that's more of a landscape architect's question. M.ROY:Okay. BLECK:I believe. 23 M.ROY:How will the basement be created in that unit that I spoke, that you spoke of earlier? BLECK:Fill material from the site will be placed around the peri building at about four feet in height. M.ROY:Fill from -. BLECK:So that the buildings will be -, in appearance, they'll be set into grade. M.ROY:And -. BLECK:Further minimizing the volume, the mass of the building. M.ROY:And you did say that's existing landfill that you will find there, is that right? BLECK:It's our hope to get most of that, if not all of it, from the site. M.ROY:With regard to the statement made of the question on the lanai, again, I bring to the floor the question of ordinances, prospective or otherwise, for sacred properties, a height to which you may not oversee. Working in sacred areas, as some of even the committee members, Commission members understand by their experience, we indeed, as a public, are looking to those kinds of requirements even now. If I'm not mistaken, at Keolonhihi, that was a point in the creation of the `Alohi Kai area to Keolonhihi, it's entirely a visual intrusion. And further, a lanai looking out over a sacred site is total intrusion in our mind. So I have many questions with regard to the height factor and to the overall plan you have for excavation especially, but I'll reserve, limit my comments to -, as I've been directed. BLECK:In answer to that thought, the lanai is only on the second floor, which is only nine feet off of grade, and I understand that wall is in the neighborhood of 19 feet. There's no way that they could see over it. M.ROY:Have you been, have you looked into ordinances or I think given in your last testimony, guidance from the State on building with regard to sacredness? BLECK:I didn't read the Revised Statute 205A, I believe, that I M.ROY:So since the last hearing and now, you have, when you last testified, you have not reviewed that? BLECK:Not in its entirety. GIFFIN:I'm going to have to ask you to move along so that we can time to hear the other public witness. 24 M.ROY:Thank you. No more questions. GIFFIN:You're welcome. Any other comments? Mr. Vitousek. VITOUSEK:Thank you. GIFFIN:I'm sorry. Mr. Yuen. YUEN:If -, I'd like to ask a few questions with the -. GIFFIN:You may. YUEN:Permission of the Chair. In trying to understand what some constraints are about the site and moving buildings, is there a minimum width of the access road? BLECK:The Fire Department has 16-foot paved area minimum width. YUEN:Is this the farthest the buildings can be moved from the back property line, mauka property line without reducing the number of buildings or their basic design? BLECK:Yes. YUEN:What about the space -, there seems to be -, if you -, I'm the buildings are three o'clock and five o'clock, imagining the diagram we're seeing is a clock. There's -, if you move those buildings closer together, could you move the mauka -, the three mauka buildings closer to Ali`i Drive? BLECK:Well, we tried, but it's just not possible. YUEN:What is the difficulty in doing that? BLECK:It's hard to describe, you know. We had -, if you had a c had these cut out on a piece of paper, as we did, we tried to fit the units and move them and position them so that they would still swing an arc to take advantage of the view potential that we have and afford access, vehicle access, and maintain distances between the buildings. YUEN:You can't say what specifically was the problem with reducing the space between the buildings at three o'clock and five o'clock? BLECK:Not specifically, no. YUEN:There isn't any legal requirement for a setback between these units, right, this is a design issue for you, the 10-foot spacing that you're trying to maintain? Is that correct? The 10-foot spacing, there's not a legal requirement of the buildings being set back from each other, like a -. 25 BLECK:They can be joined. YUEN:Pardon me? BLECK:The Building Code allows them to be joined if we wanted, y YUEN:Those are all the questions that I have. Thank you. GIFFIN:Thank you very much. Mr. Vitousek. VITOUSEK:Nothing further. GIFFIN:Thank you. Thank you very much. VITOUSEK:I'd like to call Richard Moore. GIFFIN:Mr. Moore, will you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? MOORE:I do. GIFFIN:Will you please state your name and resident address. MOORE:My name is Richard Moore. My resident address is 55-3385 Pu`u Mamo Drive, Hw. GIFFIN:Please pick up the mike. VITOUSEK:Mr. Moore, I'm going to ask you to read your prepared t should point out to the Hearings Officers and to the parties that there are some revisions from the initial written testimony that was submitted. I will now hand o although because Mr. Moore is going to be reading his testimony into the record, this is not a matter of submitting written testimony, as such. So I'll hand out the revised written testimony, but since, but like I say, Mr. Moore will be reading his testimony into the record. So, Mr. Moore, could you please -. Let me just by way of foundation, you were contacted by Mr. Bleck, the architect, isn't that correct? MOORE:That's correct. VITOUSEK:And you were -, what were you asked to do? MOORE:I was asked to review the plans currently there and the proposed adjustment to the buildings to increase planting space and also to prepare a landscape plan primarily for the mauka area. 26 VITOUSEK:Okay. Thank you. So can I ask you to read your written testimony into the record, please. MOORE:Yes. My name is Richard A. Moore; my business address is 55-3385 Pu`u Mamo Drive, Hw, Hawai`i 96719. I am a landscape architect and planner by prof graduate of the University of Missouri, a bachelor of science in horticulture, and the University of Oregon, master landscape architecture. I have worked continuously as a landscape architect and planner since 1957. My curriculum vitae is attached hereto. I am a licensed landscape architect and a Fellow of the American Society of Landscape Architects. I have worked in the field of landscape architecture nationally, internationally, and in Hawai`i since 1967. My representative clients in Hawai`i include Castle and Cook, Alexander and Baldwin, and Kaua`i County. I assisted Castle and Cooke in developing the Mililani Town residential and commercial development in Central O`ahu, worked with Alexander and Baldwin in planning Wailea New Town, and assisted the developer in Maliu Ridge, who was also Castle Cooke, in North Kohala, Hawai`i. I have lived in Maliu Ridge since 1988. In June, 2003, I was contacted by architect Paul Bleck and Applicant Wayne Blasman and was asked to consult on landscape planning relative to Wayne Blasman's proposed 13-unit condominium project, which was called the proposed project, to be located on 1.255 acres at th Hlualoa 4, North Kona, Island of Hawai`i, called the site. I was advised that the proposed project is located in close proximity to very significant cultural historical sites. The closest sites are located approximately 50 feet mauka of the mauka boundary of the site. I was advised that Applicant had asked Mr. Bleck to redesign the site plan to increase the distance between the proposed structures and the mauka property line and provide more space for landscaping. I was advised that applicant wants to use planting to create a screen or buffer between the neighboring historical/cultural sites and the proposed structures. I was asked to prepare a proposed landscape plan for the mauka portion of the proposed project which would m of the proposed project on nearby historical and cultural areas. I was retained as a consultant to architect Paul Bleck on behalf of Applicant Wayne Blasman and have prepared a landscape plan. A copy of the proposed site/landscape plan is submitted as Exhibit now 17. I prepared a landscape plan for the entire proposed project. The plan proposes to use native and culturally appropriate plants to buffer and moderate the visual impact of the proposed structures. Conceptually, the proposed landscape design respects culturally significant adjacent uses while creating an environment suitable for contemporary residential functions. By selecting and grouping indigenous and utilitarian plant material in a transitional zone at the mauka boundary of the project, buildings and hard surfaces will be visually softened and, over time, incorporated into a maturing landscape consistent with regional ecological conditions and current cultural uses. Plants historically used for food, tapa making, shade and other practical uses, combined with plants that might have existed naturally, will be organized to achieve these visual and environmental objectives. By avoiding arbitrary, fashionable or ecologically inappropriate 27 planting, compatibility with adjacent uses can be enhanced and the past blended with the present to achieve a unifying future. A successful elaboration and articulation of environmental space, which we all have to live in, requires a sensitive combination of all structural and organic features within existing regional social parameters and clearly defined functional requirements. Landscape design in particular must recognize that the environment is a continuum. The landscape is always in the process of becoming, and never complete. The history of an environment must, therefore, be a contributing factor in designing its modification. The landscape plan presented is a preliminary plan consistent with the current stage of design of the proposed project. The final plan and specific plant selections for specific areas will be determined based on final grading, soil conditions, plant availability, and other factors. I am confident that a landscape plan can be developed and implemented that will be attractive and environmentally appropriate for the proposed project. Thank you. VITOUSEK:Mr. Moore, can you show us by reference to Exhibit 17, on the wall there, specifically, or just give us a brief description please of the landscape plan for the mauka portion of the property, and just basically explain to us what your plan is attempting to accomplish in that area. MOORE:Yes. Essentially, the area where I am concentrated on is the area that's surrounding the mauka boundary, all the way down to the row of buildings closest to that mauka boundary. That is the area of the site which is closest to the cultural sites mauka. It occurred to me, and it still -, I still believe it to be a proper solution, that if you consider the landscape modification from the cultural site, visually what you see extends beyond the boundary but has to incorporate the edge all the way to the buildings. And so by utilizing spaces in here that are closer to the building, in addition to these space, you get enough room, enough area to develop a transition. I don't want -, I'm not proposing at least, a solid screen nor a wall of plants here. I would like to see this land and I would like to see eventually in any landscape development of the site above would work with this, that would incorporate the same kind of attitudes and integrate it so that this boundary really, in effect, begins to disappear. Concurrently, excuse me, by choosing and organizing and composing the plants in size, we'll also be able to take out a lot of the appearance of the buildings here from up here. You have to remember you're looking at a plane low, so if you can intercept that visual plane, excuse me, the vog got my voice on the way down here, the visual plane is interrupted by those plants, you get a compounding softening without actually separating it, so you won't be able to see through. And incidentally, the shadow of the building will be intercepted and complimented, if you will, or disguised with the shadow of the trees, so that it will, in fact, disappear. I haven't been specific on the plants. I am not an expert in Hawaiian plant material nor native plant materials, nor the cultural uses of them. And when we develop the specific plan for this, begin to choose the plants, it is my intention to consult with those people who have more expertise than I do in final selection of those plants. I am interested in, excuse me, large canopy trees. I am interested in more vertical trees. I am interested in coming underneath them with 28 shrubs and ground covers which will allow the landscape to be effective immediately, but then will change as the trees mature and the light quality and the composition changes. And at that point, as with all these landscapes, the maintenance and the continuity of how this develops over time will become important. VITOUSEK:Okay, that -. Thank you, Mr. Moore. That's all the questions that I have for you at this time. GIFFIN:Hearings Officers? SPRINGER:Not yet. GIFFIN:Not yet? Mr. Togashi? TOGASHI:I was wondering, Mr. Moore, are these trees deep rooted trees in which they could, maybe the roots could extend into the Pkiha area? MOORE:The -, depending on the plant selection and the maintenance of them, the answer is yes. I mean, for example, if you look out this window, you'll see kukui nut trees. But left in the open and normally, and especially where I live, they would be drooping to the ground and you couldn't see under them, but these have been pruned up and would allow a building to penetrate to them. And there are other trees will allow that to happen, as well. Wiliwili, perhaps a kamani could be pruned up. These are shown approximately mid-maturity size, and there's no way to predict that. You know, plants are like people, they all start with the same genetic code but what they become is dependent on their environment and how they eventually grow up. VITOUSEK:Mr. Moore, I think Mr. Togashi's question related to the root systems of the plants and whether the root systems would extend, intrude into the cultural site to where they could cause concern. MOORE:Depends on the plant. If that was really a concern, if the plant was so objectionable that you didn't want the roots in your site, there are ways to control it. They could control it initially with plant barriers which contains herbicides and stuff like that, but I don't like to use them, I'd rather have the roots go where they want. Yes, D.ROY:What -? GIFFIN:Just a minute. MOORE:Oh, excuse me. GIFFIN:Mr. Roy. Mr. Togashi, are you through? TOGASHI:Yes. Thank you, Madam Chair. GIFFIN:Okay. Maile. 29 DAVID:Yes, Mr. Moore, what impacts other than visual did you address in your landscaping plans? MOORE:Beg your pardon? DAVID:What other impacts, aside from visual impacts, did you address in your landscaping plans? MOORE: Primarily, that is the main one I concentrated on. But I wanted to do it in a culturally sensitive way, and that's why I've left the actual selection of the plants separate. I want to be able to use plants that you might expect to be next to residential facilities, there and here, in a historic and cultural context, paper mulberry, hala, stuff that was utilitarian as well as decorative, rather than decorative, in fact. DAVID:Is it then your testimony that you believe the type of plants would address cultural concerns? MOORE:Absolutely, that's why I am not specifying individual plants at this stage because we need more input on that from people that are more familiar with those requirements than I. DAVID:So is it your opinion then that if you address the types of plants that you use, you have adequately addressed the cultural concerns for a situation such as this? MOORE:In my opinion, I have, yes. In terms of the composition a way it addresses the spatial characteristics of the region, yes. DAVID:So this is -, your opinion is specifically from a landscapers' perspective, considering cultural visual impacts only? MOORE:Historic, as well, should be considered, as well as the ecological conditions of the region and the site. I don't think that any landscape should be modified without consideration of what the regional ecological conditions are. DAVID:So in this case, how did you assess the historical impacts that you're speaking of? MOORE:I relied primarily on input from the client as to what the concern was, and it was relayed to me it was primarily visual. DAVID:All right. Did you consult with any other Native Hawaiian consultants as far as obtaining some cultural perspective on what your plans wo MOORE:No, I did not at this stage because the selection of the p will correspond to the spatial configurations that I am proposing. 30 DAVID:Is it your opinion, or do you have an opinion of whether there are other impacts, aside from visual, that ought to be considered here because of the cultural significance of this area? MOORE:Not specifically. I haven't been made aware of those specific concerns. DAVID:So since you haven't been made aware, that's -, you don't know of any because no one -? MOORE:I don't know of any. DAVID:Thank you very much. GIFFIN:Mikahala. M.ROY:Thank you. Thank you, Mr. Moore. Can you speak, looking at your vitae, would you describe the level of training you have received with regard to sacred properties, either in the world or in Hawai`i? MOORE:Sacred properties? Yes, I was involved in community development in the Island of Kish in the Persian Gulf for the Iranian government, and that site had significant archaeological artifacts on it which we had to take into consideration and dodge and pay attention to in that case. And other, actually they weren't Islamic, they were Zoroastrian, I thi but I'm not sure. M.ROY:Thank you. MOORE:It's been a long time. M.ROY:I've been paying -, I appreciate. I have been paying close attention to your details on your knowledge of and your appreciation of historic properties and the like, and I appreciate your comments. You made a comment earlier that said that you would care to, in effect, take care of the neighboring area. I would just like to add that the area that you are on is a part of the entire sacredness, and this is why my question on whether you are familiar with the nature or have had cultural training, Hawaiian cultural training with regard to sacred sites. MOORE:No, I have not, but before this specific plan is accomplished, I certainly will seek such counsel. M.ROY:Have you been on this land? MOORE:I have been as far as I dared go. 31 M.ROY:Can you describe to us how -, where that is on this map, you know, have -? MOORE:Where I've been? M.ROY:Yeah. MOORE:I've only been up to about here. M.ROY:Have you been to the boundaries at all to see -? MOORE:No, I haven't been up there. M.ROY:Pkiha? Was that by your choice, or did you just not feel it necessary to walk the property? MOORE:Given the charge I was given and my directions to prepare the plan, and knowing that to accomplish this building plan, most of the site will be significantly modified, I didn't feel it necessary. M.ROY:How long was your visit on that land? MOORE:Oh, less than 10 minutes. M.ROY:Thank you. May I ask, your discussion of the trees, my main question is why do the plants cross over a boundary and trespass on other property? My -, I will ask that question, but may I make an observation that this landowner has subjectively taken this whole amount of property and has gone to the extreme boundaries with his design. Were it possible that these trees and the like could have been created at much greater setback, I wouldn't have the concerns I have with them blatantly on this presentation showing that they do, they're right at the boundary where they do go over. And I can appreciate your discussion on root systems and the like. So let me go back to that earlier question then, why is it that these trees are right at the boundary that way and they do cross over? MOORE:It's my inherent respect for plants, and they should not be chopped arbitrarily, but if the people next door don't want the branches on their side, they could certainly cut them off. And the plants will be very small when they're planted, so they'll have more than opportunity to train them as they go up. M.ROY:Again, with regard to sacred properties, can you understand my question with an appreciation for the nature of that site there next to you? This is where I'm asking this question of you that had those trees been planned to be a distance away from that boundary, we wouldn't have this intrusion truly, blatantly in a plan as it stands. It wouldn't intrude. But this, visually and in other ways, stands to intrude on neighboring, given an accepted sacred identified property. 32 VITOUSEK:Excuse me, Madam Chair, can I object? I mean I think t argument, I don't think that was a question, and I think that, you know, the point of conducting an examination is to ask questions, not to state your own arguments and points, and it just makes it take a long time. GIFFIN:Mikahala, I just wanted to alert you to the fact that according to our watch, it's about ten after eleven, and I wondered if anyone would object to you finishing and then hearing from Mr. Yuen before we go on to your first witness. M.ROY:I would follow Mr. Yuen, if he'd like to make his comments GIFFIN:Yeah. Yeah. Just to give him some, you know, an opportunity before we call on your next witness. Mr. Yuen. YUEN:Let me give a little description before I start asking the questions. There is a structure, a series of stone walls, about 50 feet mauka of the mauka property line of the Blasman property, referred to as the Pkiha. And there's about, it's roughly parallel, the main wall, one wall is roughly parallel to that mauka property line; it's about 50 feet back from the property line. If you had the assignment of making a landscaping that would completely block the view of the buildings on the Blasman property from someone standing at that Pkiha wall, is that doable within the space that you have on this site? MOORE:Well, I would have to first get an intersection through the property showing the buildings and showing the elevation of the property, and then begin to draw sight lines down to it to see whether or not I could block it entirely. I think anything's possible. But, yes, it could. If that's what you want to do, if you want to make a wall there, sure. YUEN:You've decided, or you've indicated that that's not what you want to do, I mean you're not trying to make a planting that would completely block the view of the buildings from -. MOORE:That's correct. YUEN:The mauka property. Why is that? MOORE:Because I think that an integration of the new with the old requires some spatial continuity between them. I think that it only emphasizes the fact that there is something different happening at that boundary rather than softening and incorporating it with the total landscape, which includes the historic site, as well. In other words, if the trees had grown there naturally and were there already, would we have the same objections? YUEN:I'm sorry, I don't understand that last comment. MOORE:My question is it's an answer but it's also in the form of a question. If the plants that I have shown were already there and had been there for 20 or 30 years and were full- 33 grown and were proposed to be left there, would there be the same objection concerning the cultural site? YUEN:Well, the reason I'm asking this question about a visual screen is that it's been the comment of State Historic Preservation Division, for example, that the experience that someone might have in going to the Pkiha and viewing it as a historic site may be diminished by also standing there looking around and seeing a condominium building 80-90 feet away. And one way of at least, of preventing that experience is to use plantings as a shield, and that's the reason why I'm asking this question. MOORE:If that were the intent, I'm sure it could be done. Not immediately, you know, we'd have to wait for it to grow, but yes. YUEN:Have you ever executed an assignment like that, to try to use plantings as a complete shield? MOORE:Oh, of course. Sure. And you can, it's just what plants long you're willing to wait and how you maintain them and so for YUEN:Can you point to any examples in the Kona area where you've something like this? MOORE:Not in Kona, no. YUEN:Can you point to examples in Kona where somebody else has d something like this? MOORE:No, I can't. YUEN:Would it be, would it also be possible to create a complete visual shield using plantings if you've confined yourself to -, if you only used plants that were here in 1778? MOORE:I really can't answer that, but I think it would be very, very difficult in this environment, yeah. YUEN:Why do you say that? MOORE:Well, because the way native plants tend to grow, or speaking about this plant, makes it very difficult to manipulate them. Also, I can't block the fire lane, I can't let things hang over, you know, there's going to be a height clearance, and a lot of other consideration. It would be more difficult. I'm not saying it's impossible, it's possible. YUEN:What is the height that you have to maintain over the fire lane? MOORE:I'm not clear but I think it's 13 feet. 34 YUEN:Do you know what kind of -? Do you know anything about wha need to grow small trees that the Hawaiian -, small shade trees that the Hawaiians had, like k or milo, in a location like this? MOORE:I have it on my suggested list, as a matter of fact, because those are the kinds of plants I want to use. Those are plants that you would expect to find near a residential facility, yes. YUEN:Do you know -? MOORE:It's possible to grow those here. YUEN:Do you know what kind of root zone a 25-foot high k or milo tree would need? MOORE:It depends on the soil condition and, more importantly, th a very rocky soil, it's going to be very wide. In a very deep soil condition or if you make deep pits, it's going to be much narrower, so I can't predict that until I see the final condition of the site. YUEN:Well, the present condition is it's virtually bare phoehoe lava. If you, and I would take it that there could be a budget for preparing a root zone, like bringing in soil or cinders, the water lines, and the like. If you had that kind, if you had the ability to do that, bring in soil, what kind of root zone or what kind of planting width would be necessary to grow a healthy k or a milo tree, say 25 to 30 feet high? MOORE:Well, I would say that a plant pocket six to eight to ten feet, depending on the species, would be adequate and deep, and it would -, if it's in phoehoe lava, it would continue to -, it would tend to contain the roots within that zone. YUEN:And that would be enough to grow a single tree of that size? MOORE:I can't predict trees, how big trees are going to grow. All I can tell you from my experience at my home, they never stopped growing. YUEN:Well, you're in a different environment. You're in a diffe environment. MOORE:I certainly am. But if the tree is alive, it's going to continue to grow. YUEN:What about for a lower level planting that blocks the eye level view, do you have any -, what kind of space would be necessary to create a hedge that blocks views from eye level to say 10 feet in height? MOORE:Well, that would be much narrower. I would think that in some instances even three feet you could accomplish that, depending on your pla 35 YUEN:And that includes room for the roots to grow, if there is a preparation of bringing in soil and the like? MOORE:Yes. YUEN:The design that you have where you have about six large trees on the mauka boundary, is this your, is this really, really conceptual or is this what you want to do, have six large, fairly large shade trees on the mauka boundary? MOORE:Actually, they look large but they're not that large. The largest one on there is only a 45-foot spread, which is not really a large tree. YUEN:But your plan would be to have roughly six trees as the landscaping on the mauka part of the property? MOORE:The three large canopy trees, which I would like to prune up, there are trees under those, smaller trees. There are three smaller trees on the left and on the right, as well, and underneath would be shrubs, groundcover, and so forth to block out that lower under story. YUEN:Do you have any idea how long it would take to grow a tree to a fairly thick canopy and roughly 25 to 30 feet high if you were using trees that were here at the time of the Hawaiians? MOORE:Depending on the species, 10 years. YUEN:What would the faster growing species be? What would the faster growing species -? MOORE:Fastest growing would be the kukui nut. YUEN:What other trees in the -, for -, what other trees that were here at the time of the -, when there were solely Hawaiians here would be possibilities for those trees on the mauka boundary? MOORE:Wiliwili, maybe kamani, although I have -, the breadfruit, like this one but -, I don't know, maybe the mnele, I don't know, it might make it here. Mmaki is a little smaller. But again, I'm not an expert in Hawaiian plants, but there's enough range and variation out there that given the right consultation, we can make the right selections to accomplish what we have here. YUEN:To grow these, would you have to import soil extensively or can you grow them on the site without a lot of soil imported? 36 MOORE:I think that, and again it'll depend on the species, I think for any large tree, you're going to have to excavate and backfill and then hope you enough to get it off to a good start so, you know, somebody doesn't run over it with a mower. YUEN:Those are all the questions I have. Thank you. GIFFIN:Thank you. Mikahala, I'm going to refer to you because i about 11:25. Would you like to proceed with your telephone presentation right now and we will excuse this witness? Does anyone else have more questions of him? M.ROY:I do. GIFFIN:Okay. So what I would like to do is have you available so that in the event we have some time today that we can recall you, but I think it's best for us to try to go on with Dr. Silva. Thank you. MOORE:Thank you, everyone. DAVID:Thank you. GIFFIN:Mikahala, I'm going to turn it over to you. M.ROY:Thank you, Madam Chair. I'd like to propose that we take view this brief portion of this video. It is the intent of this Intervenor, Klana Huli Honua, to present by this witness' testimony, aspects to the resistance of kanaka maoli to the annexation and to the subsequent effect of that which is called colonization of a people. This having relevance to these proceedings because of the testimonies that have been given as to the non- traditionally or the non-being at the site in questions daily or weekly on a regular basis. This rationale, and by this witness' testimony, this gives the background of the times of the turn of the century and the conditions that have strong relevance to section -, that Statute 205. So may I begin by a portion of Dr. Noenoe Silva's presentation by tape, followed by her testimony which will be provided to all today, followed by her availability by phone. She's standing by. Thank you. GIFFIN:Yes. I've just been reminded by Counsel that I should ask if there is any objection to what the Intervenor, Mikahala Roy, is about to present. Mr. Vitousek. VITOUSEK:Yeah, I mean, you know, I don't see any indication on the exhibit list offered by Intervenor Roy that -, or that there is going to be a video tape, and it's not something that we've ever seen. And so I, you know, I think this is really being offered as an exhibit that's undisclosed until, you know, until right now. And so, yes, we do object to that. I also wonder as to the relevance of it, based on the statement. But, you know, the -, it's -, you know, again, this is just a new exhibit, and we don't have any idea of what it is, and so, yeah, that we're objecting on that basis. M.ROY:Madam Chair? Mr. Torigoe? 37 GIFFIN:Mikahala. M.ROY:May I respond? I can understand the objection. May I say that this is really brought forward to just have you see visually who we're going to be hearing. And if I may, I did speak truthfully on the nature of her testimony. This portion, and I can appreciate, and I do prevail, I do wait on the -. GIFFIN:Thank you. M.ROY:Guidance. GIFFIN:I am going to call on Mr. Torigoe. TORIGOE:Thank you, Madam Chair. How long is the section that you were planning to show? M.ROY:About five minutes. TORIGOE:Five minutes? I wonder if maybe we should allow the parties to look at it, screen it, and then see if there are any, you know, substantial objections to it. GIFFIN:Ms. O'Toole. O'TOOLE:Yeah, if that is all, it's only five minutes, we wouldn't object to just seeing it. GIFFIN:Mr. Vitousek. VITOUSEK:I'll tell you what, why don't we, can I propose that we see it and then if we have an objection to it after we see it, then we'll object to whether it can be accepted into evidence or not. GIFFIN:Hearings Officers? Ms. Springer. I'm sorry, Mikahala, Maile. DAVID:I have no objections. Thank you. GIFFIN:Hannah. SPRINGER:I have no objections, but I wonder if Dr. Silva is available by phone, should she be sworn in prior to our viewing this? GIFFIN:Good point. Mr. Torigoe assures me that that's not necessary at this point. Mr. Togashi. TORIGOE:Yeah, assuming that -. 38 TOGASHI:No objection. TORIGOE:Assuming that none of the parties have any great desire to see the witness sworn before the video, I think it's just an exhibit, you know, so -. VITOUSEK:Yeah, I don't think this is testimony, I don't think this is video testimony. I think that -, I don't think that's what it's offered for. M.ROY:May I begin? GIFFIN:Yes. M.ROY:Thank you. AUDIO OF VIDEO TAPE NARRATION OF DR. NOENOE SILVA: Tape begins: "ÈKathleen Silva, and I was born in this land right here. My parents lived in Ka`ohau and Waimanlo at the time that I was born. I was born in St. Francis Hospital. And that's over here. My family lived, my family lived all along the Windward side. Some of you may know some of my mkua and some of my kpuna. My grandmother is Kathleen Day Decker, and she's lived on the Windward side since about 1920, and she used to go to the Alu Like Kpuna Center here in Waimanlo for many years up until last week. And my auntie is Geri Ringler, who also goes to that program. My cousin, Mapuana Ringler, is the activities director at the kpuna program in Waimanlo here for Alu Like. Myself, my mother's generation, and my grandmother's generation, all grew up not speaking Hawaiian. My grandmother was born in Kalapana. Her mother, of course, was a native speaker of Hawaiian, her father was Chinese. And my grandmother was bor days for the Hawaiian people and for the Hawaiian language. She -, her parents made a decision not to teach their children Hawaiian, so although she understands Hawaiian, she never was allowed to learn to speak it, and that's part of the, that's part of the whole story. And now through the hard work of many, many people before me, I have been privileged and encouraged and nurtured and taught to learn our Hawaiian language, and a lot of that also has to do with the people on the Windward side. My first classes were at Kalheo High School from Allison Ledward, and then I had Brother (inaudible) for two years at Windward College, and then I went to the university. And I had many influential kumu up there, Ekela Kaniaupi`o Crozier, Noeau Warner, Pua Prince. These are all people who have contributed to my knowledge, and without them, I would not have been able to do anything that I am doing. And, also, I'd like to recognize Tutu Mama Hale, who has graced our offices in the Hawaiian Language Department at the university for several years now and adds a great deal to my understanding, which as a researcher type person, I tend to stick to the books, and she helps me crawl out of the books now and then and realize my (inaudible) as a living being. 39 So the story that I want to tell you folks is one that I discovered in my journey in learning Hawaiian language, that's where I started all of this learning the language, and as I learned the language, I began, I couldn't help but learn the history of what happened to our language. Because we look around, and we think here we are in Hawai`i nei. We look at all our friends, Hawaiians around here. Why don't we speak our own language? Th coming up, and that drove my quest to get answers. So one of the ways that I have approached the study of trying to figure out what happened is to think about Hawai`i as a colonial situation, and that's something that we're not really taught to do as we grow up and in our education. I have been -. The definition of colonialism that I am working from is this. Colonialism is foreign domination, subjugation and exploitation of another people or country. It undermines the people's natural identity, tradition, and culture. Colonized peoples are forced into powerlessness and they're on homeland and are taught that they're an inferior and dependent race of people. And I am proceeding on that definition that that is what happened here. There is an African writer who also gave me some insight into how to proceed with understanding what's happened in Hawai`i. His name is Ngugi wa Thiongo'o. He said, "Colonialism means a destruction or deliberate undervaluing of a people's culture, their art, dance, religion, history, geography, education, or traditions and literature, and the conscious elevation of the language of the colonizer." And that's also I believe an accurate description of what has happened to us. English has been elevated to a level of extreme prominence. Here I am, speaking to you in English right now. He goes on to say another, one more quote I want to quote from h biggest nothing unleashed on colonialism is a cultural bomb. The effect of a cultural bomb is to annihilate a people's belief in their (inaudible), in their languages, in their environment, in their heritage of struggle, in their unity, in their capacities, and ultimately in themselves. It makes them see their past as one wasteland of non-achievement, and it makes them want to distance themselves from that wasteland." And I think very sadly that that is at least in part what happened to my grandmother's and my mother's generation. By taking away our language, what was taken from us was our living bridge to our history, to ourselves, to our kpuna who are no longer with us, who wrote for us. And Auntie Edith McKenzie knows far better than I do that thousands and thousands of pages that our kpuna wrote for us, they wrote everything down for us to read, mele, oli, the winds, the rains, the mo`olelo, their political arguments with each other, their political struggle against the United States and others. They wrote it all down for us to read, consciously. They would state in the papers, we're writing this down so that our mo`opuna know what happened. And then they took the language from us, and they ripped our bridge away. But now because of the hard work of people like her, Mama Hale and others, we can begin to build the bridge back, and that's what I'm trying to do. M.ROY:Thank you. Madam Chair, this is that introduction to the parties. Ms. -, Dr. Silva stands by, as well. 40 GIFFIN:Are you waiting for questions? M.ROY:Were there objections? GIFFIN:Oh, oh, oh. Mr. Vitousek. VITOUSEK:I don't see any relevance to the testimony. So -, and so I guess we object to -, I mean, we object to the evidence. It's just not, it's not relevant to this SMA application. GIFFIN:Hearings Officers, any other questions? Mr. Yuen, any objection? Maile? DAVID:I don't have objections, Madam Chair, except to note that I believe it is relevant to this proceedings because these are one of the many impacts I think we're trying to address here. It might not appear that way, but I believe it is relevant. Thank you. GIFFIN:Mikahala, did you want to address the objection of Mr. Vitousek? M.ROY:Thank you, Madam Chair. May I ask, Randy, would you pleas your objection? VITOUSEK:Yeah, sure. What my objection is is that what is being offered is an exhibit, a video tape. It does not disclose. It deals with a talk that Dr. Silva was apparently giving somewhere on O`ahu at some point in the past, the subject matter of which is different from the SMA proceeding, the contested case that we're now sitting in. So what I'm saying is the exhibit was not disclosed among the exhibit list and it's not relevant to the subject matter. If Ms. Silva, or excuse me, Dr. Silva wants to testify about what, you know, whatever it is that she feels is relevant to the issues, presumably that's why she's being called as a witness. But what I'm saying is this exhibit is not disclosed and is not relevant. GIFFIN:Mikahala. M.ROY:Thank you. Mr. Vitousek, this witness, we are very apprec relevance of the discussion of the condition of the Hawaiian people in their homeland and, in fact, this video tape is no different than an oral vitae. She has just specifically talked about her training. It follows what a written vitae would consist of, only she did it verbally, orally. In addition, this is what we thought we would admit here to introduce her as the voice that you'll be hearing because she could not participate in person. Furthermore, the last point is that the comments that I have selected in this part of the video are highly appropriate because you will see in the written testimony of Dr. Silva, she in fact speaks exactly to this material that she presented in this tape. While I apologize for not making, disclosing this portion of the tape earlier, I do ask of you for your consideration of the circumstances and the relevance that this material brings for our case. GIFFIN:Hearings Officers, any objection? Hannah Springer. 41 SPRINGER:I have no objections, but I hope that the Intervenor is able to tie for us Dr. Silva's comments, as Mr. Vitousek has indicated, clearly to this case. M.ROY:Most certainly, I will, I assure you. GIFFIN:Thank you. And on that note then, I will admit it, and so you may proceed. M.ROY:Thank you. Madam Chair, I have Dr. Silva's written testim pages in length. While we have her on the line at this time, I would ask you what would you prefer me to do? Would you prefer me to read her testimony firs GIFFIN:Yes. And do you have copies for all of us? M.ROY: I will furnish them by, after this lunch break. GIFFIN:Oh, okay. Yes, why don't you go ahead. M.ROY:Testimony of Noenoe Silva, Ph -. VITOUSEK:Excuse me, I'm sorry, Madam Chair. What the rule says is that with the approval of the presiding officer, a witness may read into the record his testimony on direct examination. Before any prepared testimony is read, unless excused by the presiding officer, the witness shall deliver copies thereof to the presiding officer and all counsel for parties. And so, you know, I mean, yes, written testimony can save time, but you know, the rules are pretty specific, you know, in terms of if you're going to use written testimony, it's got to be provided before the witness testifies. And, you know, there was a lot of time provided this morning, if the plan was to provide written testimony from this witness. I mean testimony, and then, you know, now we're being told that there's five pages of written testimony. Now we're told someone other than the witness is going to be reading it into the record before we have a chance to see it, and that's really not proper, you know, and the rule is specific and it says otherwise. GIFFIN:Pat O'Toole, any comments to that? O'TOOLE:Well, you know, following back on whether all the parties agree to modify it, but I guess we won't all agree. But it can be copied here at the hotel if, you know, we can take a few minutes to get it copied. M.ROY:May I suggest -. We -, I apologize for the inconvenience, and I can get that done very quickly. But for your timing, perhaps -, I agree with Mr. Vitousek. If you would prefer that -. The reality is our witness is not present. Her testimony is here. I am prepared read her testimony. If there are suggestions for other -. GIFFIN:Hannah. 42 SPRINGER:If we have speaker phone capability, could not the witness read her own testimony? GIFFIN:Is there, right there? M.ROY:No, Hannah, even the last time, we had to put the micropho phone. GIFFIN:My intent the entire day was to try to move this along as quickly and thoroughly as possible, and although your comments are well taken, Mr. Vitousek, and Pat O'Toole, yours, as well, maybe it is best then that we go ahead witness' testimony and then enter it in and circulate it, becaus M.ROY:Under these circumstances. GIFFIN:Yeah. Hang on one minute. Mr. Torigoe. TORIGOE:So your intent at this point is to have the written testimony circulated and then to do what? GIFFIN:Will Dr. Silva be available later on today? M.ROY:I've asked for her to be available between 10:00 and 12:00 to match our proceeding, kind of, this morning. GIFFIN:Mr. Torigoe. TORIGOE:No, I was just wondering how were we intending to do the cross- examination or even any direct examination? Were you going to hold the microphone up to the receiver or the handset or to the -, is there a speaker phone that works on that telephone? M.ROY:You know, how did we do it with the mayor? GIFFIN:There was a speaker phone. M.ROY:There was a speaker phone. Perhaps I -, I'm sorry, this w available at this time. Perhaps one can be brought in. I can ask Dr. Silva if she would be available within half an hour's time while I get this all worked on. It's up to you. GIFFIN:Mr. Torigoe. TORIGOE:Well -. Okay, so at this point, we do not have a speaker phone, is that correct? M.ROY:It appears not. 43 TORIGOE:Okay. Do you think you can get one in short order? M.ROY:We can ask the hotel. This is the hotel's. GIFFIN:I'll tell you what the other dilemma is. To facilitate t that the members of the hearings panel eat a take-out lunch. The take-out lunch will be delivered at 12:15 so that we are all ready for the 1:00 p.m. speaker. And so that's my dilemma. I had planned to have your witness go on until 12:15 and then we would stay in-house and eat our lunch and be ready at 1:00. M.ROY:If it's permissible with Dr. Silva, might she be available after you read the testimony for questions and cross-examination at 12:30? GIFFIN:Well, how soon can you get the testimony duplicated, because what I was going to do was to have the -, at least for the Hearings Officers, read while they were eating lunch at 12:15. M.ROY:We'd have that done right away. GIFFIN:And you need to get a telephone. M.ROY:Correct. First of all, I should check with Dr. Silva. VITOUSEK:Madam Chair, how -, under the existing circumstances, how would we do cross-examination? I'm not trying to object, I'm really not. GIFFIN:I know. I know. VITOUSEK:I'm just trying to speed this along. GIFFIN:Mr. Torigoe and I are discussing that right now. VITOUSEK:Okay. Because, you know, I -, you know, I'm not trying GIFFIN:I know. VITOUSEK:Impose any barriers on this, I just, you know -. GIFFIN:No, it's a fair question. VITOUSEK:It may be, it may be okay to, you know, just go ahead, I'm most concerned about is you would be able to -. GIFFIN:Right. 44 VITOUSEK:Ask questions and you would be able to have the testimo questions. GIFFIN:Are you Hearings Officers ready to commit to maybe 20 minutes to have lunch, and during that time read the written testimony? And then in that time, if the Intervenor can provide not only copies before 12:15 but a mechanism by which we can then go ahead and cross-examine. VITOUSEK:Madam Chair, a suggestion from the Planning Director. I think that I would be willing to have, you know, if we could have the same stipulation with respect to the, that we had with respect to the video tape. In other words, if they could read the written testimony in, and if there's objection after the fact, if we could make it -. I mean, just to try to move it along. GIFFIN:I know. VITOUSEK:So it's -, in other words, I'm saying it's okay with me if she reads the testimony in as long as I get to raise an objection afterwards if I have an objection to her, if I don't get to cross-examine somehow. GIFFIN:Okay. So are you saying that it's okay for her to go ahead and -? VITOUSEK:Right now, yes. GIFFIN:Read the five pages right now? VITOUSEK:Yes. Yes, I am. GIFFIN:Okay. VITOUSEK:Just to move it along. GIFFIN:Okay. VITOUSEK:And then maybe I can -, maybe that will, I don't know, but all I'm saying is, you know, then -. GIFFIN:And then the ability to cross-examine. VITOUSEK:Object. GIFFIN:And we will go ahead -. VITOUSEK:Work out. GIFFIN:And cross that bridge later. 45 VITOUSEK:And that would -. GIFFIN:Thank you very much. Please proceed by reading -. Oh, i objection? I didn't think the County had one because that was C Hearings Officers? They didn't object earlier. Thank you. M.ROY:Thank you. One more point of information, Ms. Giffin, Dr. available at 12:30 and -, before I start. "Kanaka Maoli Resistance to Annexation. 'Colonialism,' as the Kanaka Maoli Tribunal Komike has written, 'is foreign domination, subjugation, and exploitation of another people or country. It undermines people's national identity, traditions and culture.' (Kanaka Maoli Tribunal Komike 1998.) Hawai`i has undoubtedly been dominated by the United States for a century and a half, our people and resources subjugated and exploited. An important part of that subjugation was the taking away of our `lelo maoli-our 'real language.' "Kenyan author Ngugi wa Thiongo'o explains that economic and political control can never be complete without mental control. This mental control achieved through 'the destruction or the deliberate undervaluing of a people's culture, their art, dances, religions, history, geography, education, orature and literature, and the conscious elevation of the language of the colonizer.' When the U.S.-identified oligarchy ended Hawaiian language public schools in 1896, they ripped out the bridge to our kpuna, the bridge to our understanding of ourselves as a people with a proud past. A generation then grew up ignorant for the first time of the language and mo`olelo of their grandparents and unable to understand the grief and undercurrents of rage that must have pervaded the lives of their parents and grandparents who lived through the devastating effects of epidemics, denigration of their customs, and loss of their nation. Ngugi has called this experience 'a cultural bomb.' The effect of a cultural bomb is to annihilate a people's belief in their names, in their languages, in their environment, in their heritage, in their unity, in their capacities, and ultimately in themselves. It makes them see their past as one wasteland of non- achievement and it makes them want to distance themselves from that wasteland. "Our kpuna of the nineteenth century, however, had the skill and determination to write. They wrote mainly in newspapers, but also in letters, books, court do documents, such as petitions. They wrote down what has always been in the oral tradition -- mo`olelo of various sorts. Mo`olelo include legends, histories, biographies, literature of all kinds. They wrote about their struggles with the colonizer, the haole ho`omakali`i `ina, the land coveting foreigner. They wrote about the ancient religion, usually with a note saying they didn't believe in it anymore, but writing in great detail nevertheless. The prisoners at Kalaupapa constantly wrote letters to both newspapers and the Board of Health protesting their confinement and the dismal treatment they received. They wrote mele and oli in honor of ali`i and loved ones. They wrote their own geography, recorded the ancient names of places, rocks, rains, groves of useful trees such as hala (pandanus) and `ohe (bamboo). They wrote their history in genealogies. They wrote their protests of the Masters and Servants Act, of foreigners taking positions in the government, of the Mhele, of racist treatment, of inaction by haole doctors during epidemics, of missionaries' attempt to burn their newspap 46 "They wrote all this in their own `olelo kumu, their traditional language. Mostly, we do not know about this history of struggle. Children's stories and other works thought to be harmless to the dominant position of the colonizer have been translated. We have children's books about Mui and Pele, for example. But most of us do not know who proteshele, who called contract labor a form of slavery, who was brave enough to point to esteemed haole in contempt, who stood up to the oligarchy in 1894 and were subsequently arrested and held without bail, who stood by Queen Lili`uokalani, who protest actions in Washington killed the annexation treaty. "The taking away of the language has allowed for the education of several generations using U.S.-produced textbooks, in which none of this history appears. We know there was a kingdom. We are reminded by the statue of Kamehameha, the `Iolani Palace, and that the kingdom is no longer. Hawai`i is called a state of the United States, but we are taught nothing of how that came to be, and so we are led to think that there was no struggle. The educational process tells us that the transformation from an independent kingdom to a part of America had mysteriously occurred with no resistance. "Now because of the hard work of some Kanaka Maoli (Native Hawaiian people) over the past twenty years, and because of the persistence of others in keeping the language alive over the last hundred years (sometimes in secret), some of us are able to readpuna wrote in their own language. We are rebuilding the bridge, rock by rock, plank by plank. "The writing of Hawai`i's history based on English-language sources creates narratives that rationalize colonization and justify the continued occupation of the islands by the United States. Most of the English-language primary sources are newspapers or manuscripts written by the colonizers, including missionaries. Contrary to the impression created by mainstream colonial histories, Kanaka Maoli were not silent or passive in any of these events. In fact, they loudly and in organized ways protested these encroachments upon their rights, their lands and their ways of life. When the land-tenure system was changed between 1848 and from the Kanaka Maoli poured into the court (Kame`eleihiwa 1992) "This tale of resistance that I tell is based mainly on accounts from the largely ignored language resistance press of the time. The po`e aloha `aina (Kanaka Maoli patriots) of the nineteenth century wrote in Hawaiian out of love for their mother tongue, but also as a gesture of political resistance, and out of a desire to keep the language and culture alive. Helen Geracimos Chapin, historian of Hawai`i's newspapers, writes, 'Bush and Nawahi (resistance leaders) in 1892, had almost ceased to carry English columns in their papers statement that linked the English language to imperialism.' (Chapin 1996.) Most of the stories of the po`e aloha `ina, therefore, were never written in English. An outstanding example is the story of the gathering of the massive anti-annexation petitions. "When President Grover Cleveland took office, he rejected the request of the provisional government to annex Hawai`i. Instead, he sent Commissioner James Blount to investigate. Both the men's and women's branches of Hui Aloha `ina prepared testimony to present to Commissioner Blount. The men's branch submitted a copy of their constitution. It read in part: 47 'The name of this association shall be the Hawaiian Patriotic League. The object of this association is to preserve and maintain, by all legal and peaceful means and measures, the independent autonomy of the islands of Hawai`i Nei; and, if the preservation of our independence be rendered impossible, our object shall then be to exert all peaceful and legal efforts to secure for the Hawaiian people and citizens the continuance of their civil rights. (emphasis in the original.)' "Hui Aloha `ina presented two other documents to the Commissioner. The firs statement describing itself as an association representing 'over 7,500 native-born Hawaiian qualified voters throughout the Islands (out of a total of 13,000 electors) and to which is annexed a women's branch of 11,000 members.' They asked for the assistance of the U.S. President in the restoration of the government, since 'the fate of our little kingdom and its inhabitants is in your hands.' They said that the people had not yet protested with vi waiting, in their simple faith in the generosity and honor of the most liberal and honorable Government of the world, and they expect justice, id est, restoration of their legitimate sovereign.' "The second document is much longer and explains the events leading up to the overthrow. It also protests the untrue representations of Kanaka Maoli made by those who overthrew the government (the Provisional Government, or PGs as they are commonly called). The PGs claimed Kanaka Maoli were incapable of self-government. However, the po`e aloha `ina said: 'The natives when left alone have had a most satisfactory, peaceful, and progressive government, while all the dissentions, riots, and troubles recorded in the annals of these Islands have ever been, by or through foreigners seeking to wrench the power and wealth from the poor natives, these being ever and peaceful and patient sufferers thereby, not 'misled', but terrorized and oppressed.' "Much more was expressed in this statement, which takes up to fifteen pages of the Blount report. "In spite of the continual protests by the people, the constitutional convention proceeded and the already drafted constitution was approved. The PGs then selected the 4th of July to announce their new permanent government. The po`e aloha `ina were outraged. They found out about these plans just a few days before the scheduled announcement, and immediately called a nd hlwai maka`inana nui (a mass protest rally) for July 2. Between 5,000 and 7,000 people showed up at Palace Square to express their disagreement with the republic's formation, and to approve the resolution drafted by the officers of Hui Aloha `ina for submission to the U.S. Minister. Here is a part of that resolution: 'Ke kue kupa`a loa nei ka Hui Hawai`i Aloha `ina a me na Hui Aloha `ina o a`e, a me na kupa aloha `ina o ke Aupuni Hawai`iÈke kuahaua ia ana o kekahi Kumukanawai Hou I hana ia me ka ae`ole ia me ka Iawelawe pu `ole ho`i o ka Lehulehu (Ka Leo o ka Lahua 3 July 1894) 48 'Hui Aloha `ina and other patriotic leagues, together with the loyal subjects of the Hawaiian Kingdom do hereby most solemnly protest the promulgation of a new constitution formed without the consent and participation of the people.' Joseph Nawahi gave a speech that evening in which he said: 'No kakou ka Hale e like me ka na Kamehameha I kukula ai. Ua kipaku ia ae kakou e ka po`e I aea hele mai, a komo I loko o ko kakou hale; a ke `olelo mai nei loko o ka hale kaulei a lakou I mana`o ai e kukula iho a onou aku ia kakou a pau e komo aku. O ka`u ho`I e `olelo aku nei ia `oukou e o`u mau hoa mak`ainana, mai noho kakou a e iki. (Ka Leo o ka Lahua 3 July 1894) 'The house of government belongs to us, as the Kamehamehas built trespassers who entered our house and who are telling us to go and live in a lei stand that they think to build and force us all into. I am telling you, my fellow citizens, we should not agree in the least.' "Although President Cleveland had declared the acts of the PG illegal, U.S. Minister Albert Willis recognized the Republic of Hawai`i as a legitimate government. The Huis continued to protest through peaceful and diplomatic means, but assistance from other nations never arrived. "In May 1895, Joseph Nawahi and his wife Emma started a new weekly newspaper called Ke Aloha `ina. Nawahi wrote a series of articles expressing what aloha `ina means for the Kanaka Maoli. In one essay, he begins by quoting the fifth commandment: Thou shalt honor thy father and thy mother. Then he said, 'Who is your mother? It is the land. Who is your grandmother? It is indeed the land. Eve, the mother of all, was made from the earth, as Adam was made of the earth. Therefore, the mother of Eve is the earth, the 'ina, whom we must honor.' He goes on to say that although people in his time cons belong to an age of ignorance, the kpuna (ancestors) might have had an inkling of the truth when they told the story of Papa. The genealogies of Kanaka Maoli trace back to Papa, Earth Mother, and her mate Wkea, Sky Father. With Wkea, Papa gave birth to the islands of Hawai`i and Mui and later to Kaua`i. O`ahu was born of Papa 's union with Lua, another mate, and Moloka`i of the union between Wkea and Hina. Nawahi says that although it is not logical to believe that a woman gave birth to the land, perhaps it is no less miraculous than the way a fully formed chicken emerges from an egg. He concludes that Kan that God gave especially to them, which is Hawai`i. Aloha `ina, love for the land, therefore, is an inescapable, familiar responsibility for Kanaka Maoli. "Aloha `ina, however, means more than an abstract or emotional love for the one hnau (land where you were born). For Nawahi and other po`e aloha `ina, it meant that people must strive continuously to restore a Kanaka Maoli-controlled government. A foreign-controlled government was perceived as most harmful to Kanaka Maoli, as it indeed has turned out to be." GIFFIN:Thank you. Hearings Officers, questions? Commissioner Springer. 49 SPRINGER:Yes, first I would ask you for guidance, Madam Chair, with regard to linking the read testimony to these proceedings. Will Ms. Roy be accepting questions or will be waiting for Dr. Silva to be linked to us by speaker phone? GIFFIN:It appears to me that they may, that they have another telephone that may have speakerphone capabilities. Not? TRASK-GIBSON:Well, I went up there and asked, and they said they would come. Then I realized I didn't get the time. I went back up and they said it's already installed. So now, of course, because I was out of the room, like the Three Stooges, I don't know which phone is the speaker phone. This one says speaker but -. Okay, well, we hav GIFFIN:But you know what? I think that the original plan was to find out from Mr. Vitousek whether or not, yeah, he objected to the testimony. VITOUSEK:Well, I'm just -, what I'd like is some clarity as to whether this is Dr. Silva's testimony. In other words, if -. GIFFIN:I may be mistaken, but I'm going to have Mikahala answer that question. M.ROY:Please restate, Randy. VITOUSEK:Yeah, Mikahala, is this her testimony? Do you plan to have her testify more, or is this it? M.ROY:This is it. And my -, the plan is for the cross-examination of her by speaker phone, based on this being her testimony. VITOUSEK:Yeah. Okay. Well, what I will do then is I will state my objection to the testimony for the record, just in grounds of relevance, and I decline to cross-examine. I mean, there's -, I don't have any questions of her based on that testi concerned, I don't need a speaker phone. GIFFIN:Fine. Fine. Thank you. The other parties, Maile. DAVID:Yes, thank you. I don't believe I will have any questions either. Thank you. GIFFIN:Pat. O'TOOLE:We have no questions either. GIFFIN:Thank you. Hearings Officers, any questions of the testifier? Yeah. So hang on, Mikahala. Is there a desire to get Dr. Silva on speakerphone to cross-examine or for you to question? 50 SPRINGER:While the subject matter was profound, I'm not clear as to how it relates to this application, so based on what I've heard, and with no furth questions at this time. GIFFIN:Thank you. Mr. Togashi. Mr. Vitousek, now we come back hard question, admission. VITOUSEK:Well, you know, Madam Chair, I've stated my objection. stated my objection to the video tape, as well. The Chair has ruled. I would just -. You know, the Chair is aware of the nature of my objection, and I'd just invite the Chair to rule and we can proceed. GIFFIN:I am going to allow it, and perhaps that we can look at it in a broader sense than perhaps just what the true application to this is. And for me, in terms of a broader instructional informative type doctrine that she read, just to give us more background information. And on that, then I am going to allow it. And if I understood everyone correctly, we are not going to have any more questions. And so then if I understood everyone correctly, there is no need for a speaker phone. Mikahala. M.ROY:Thank you. I can appreciate all the statements. Specifically, the relevance of this testimony, I do feel, we do feel has direct bearing. There has been testimony -. GIFFIN:Yeah. You know, I -. M.ROY:For -. GIFFIN:Already ruled, and it's fine. M.ROY:Okay. All right. GIFFIN:I can recognize -. M.ROY:If you wanted to -. GIFFIN:Its relevance. M.ROY:Okay. GIFFIN:So any other questions, comments? Maile, are you on time with your speaker so that we are looking at 1:00? DAVID:Yes. I heard -, if we break, would we have about how much time for lunch? GIFFIN:Well, I wanted to get back on schedule. 51 DAVID:You want to get back at one? GIFFIN:And come back at one. DAVID:Okay. All right. We'll do that. VITOUSEK:Is there any way I can give Mr. Moore some guidance just in terms of when we think -, if they need to cross-examine him further, can GIFFIN:Will Mr. Forman and Vicky Holt Takamine and Mr. Pilago take -, all of them take one hour each? DAVID:Well, I would say, yes. I mean maybe less. GIFFIN:Okay. Then you know what? DAVID:I'm not sure if -. GIFFIN:We are prepared to stay longer than 4:00, and so if that is what you're saying, that they will take until 4:00, then that's fine, and we -, to give your witness some guidance, please have him here by 4:00. VITOUSEK:Okay. Thank you. GIFFIN:You're welcome. DAVID:Excuse me, Madam Chair? GIFFIN:Yes, Maile. DAVID:I don't want to be late getting back, and considering that we need to order lunch. GIFFIN:I know. DAVID:And we haven't done it beforehand, would it be possible to reconvene at 1:15? GIFFIN:Sure. DAVID:Thank you. GIFFIN:Sure. You're welcome. We are in recess until 1:15. 52 RECESSEDThe meeting recessed at 12:15 a.m. RECONVENEDThe meeting reconvened at 1:20 p.m. GIFFIN:I'd like to call this contested case hearing back to order. The Applicant is Wayne Blasman. This is an SMA 02-03, application for a Special to allow the development of a 13-unit condominium project and related improvements. When we left just before lunch, Maile, you were going to call your first witness, David Forman. Please do. DAVID:Yes, I'd like to call Mr. David Forman to testify this afternoon. GIFFIN:Could you please raise your right hand. Thank you. Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? FORMAN:I do. GIFFIN:Please state your name and resident address into the mike. FORMAN:David Forman, 1609B Iwi Way, Honolulu, Hawai`i 96816. GIFFIN:Thank you. Maile. DAVID:Aloha. And mahalo for being here with us this afternoon. My first question to you is how did you first become aware of Native Hawaiian concerns regarding land use? VITOUSEK:Excuse me. Madam Chair, I object to the question as irrelevant. I think this sort of brings up the point that, you know, the Chair, in our previous hearing, had said that if, had asked Ms. David to submit a list of the areas that she expected Mr. Forman to testify on, and asked that we submit a written objection to that, which we did. And the question about asking Mr. Forman about when he became aware of laws relative to Hawaiian land use, you know, that is, again, eliciting testimony in an area that's completely irrelevant to the subject application. GIFFIN:I apologize. You know, you're absolutely right. I forgot that this was one of the issues that had been raised. And so after thinking about it over the last week, what I decided to do was to go ahead and let Mr. Forman speak, factually only, and not express any legal opinions. And that I think Staff is ready, and I forgot to give them a heads-up, but that it would be for a half hour only, as we had agreed. DAVID:Thank you. GIFFIN:Thank you. 53 DAVID:Let me ask you this question again. In your -, personally first become aware of Native Hawaiian concerns? FORMAN:That would probably be the period 1974-1976. I lived on the Island of Moloka`i and learned, was exposed to conflicts between Native Hawaiians and other individuals attempting to develop properties on that Island, and also that was the period the Protect Kaho`olawe `Ohana was asserting rights on Kaho`olawe in an area that was probably, you know, the most obviously intended to be excluded from other persons' a DAVID:Did you have any further education in Native Hawaiian culture or history? FORMAN:I attended the University Laboratory School, where I studied under Auntie Olga Kalama, Hawaiian language and Hawaiiana. I also studied with Kumu Gil Wallace when I was living in Moloka`i. The Laboratory School is affiliated wit the Curriculum Research and Development Group, and so I was one of the first students who had Hawaiian history as part of their social studies curriculum. DAVID:Do you speak the native language? FORMAN:I have been told that I was the first person in the history of Harvard College to pass a second language requirement in Hawaiian, although I haven't kept up with my conversational skills. DAVID:Thank you. Have you had any further instruction in the Native Hawaiian culture and history? FORMAN:I studied native Hawaiian rights at the William S. Richardson School of Law, and I was a research assistant for Professor Eric Yamamoto and studied procedural barriers to the attempts of Native Hawaiians to present their claims in c DAVID:Any other relevant experiences that you've had in this area? FORMAN:I learned quite a bit about Native Hawaiian rights as a law clerk to the Hawai`i Supreme Court under Justice Robert Klein. I spent a year as a staff attorney with the Native Hawaii Legal Corporation, where I had the opportunity to interact with Native Hawaiian practitioners in a variety of areas. I have studied Native Hawaiian property rights in the course of preparing written publications as a Executive Director of the Hawai`i Appleseed Public Interest Law Center. I participated in the writing of an amicus brief for the U.S. Supreme Court in the Rice vs. Cayetano case and portions of that brief were -, addressed the efforts by the U.S. government to rectify the failed distribution of a native tenant rights. This is pretty complicated in the history of Hawaiian history, but that was one of the things that we did, radio, television programs on Native Hawaiian rights issues. DAVID:Thank you. Could you briefly describe the governance structure in Hawai`i before and after unification of the Islands as it relates to the management of land. 54 FORMAN:Well, historically, I would say that `ohana system was really the only land management practice in Hawai`i. There was a system of reciprocal obligations, communities living up in the mauka areas would exchange with communities living in the makai areas. That eventually developed into the konohiki, you know, the chiefly system, where there was more coordinated land management. And then after the unification of the Hawaiian Islands, this, you know, continued to be the practice. Well, let me back up a seco distribution that the ruling chiefs would distribute lands to konohiki, and those konohiki would manage the lands. And then when a new ruler came to power, the lands were returned to the ruling chief and redistributed thereafter. After the unification, this continued to be the practice th until the mid-19 century. DAVID:During this same period, how were the resources protected and the needs of the people met? VITOUSEK:Okay, at this time, Madam Chair, I'm going to object to this line of questioning. I don't think that this witness has been offered or established as an expert witness in history or in anthropology or in political organization. I certainly would object to his being allowed to testify on that ground because I don't think they've established any background or training or expertise in those areas. So I -. And then I also object to it on the grounds that it's just completely irrelevant to the application pending before the Planning Commission. We don't really need a review of the political and cultural history of Hawai`i in order to apply Chapter 205A in the context of a particular property. GIFFIN:Maile, could you -, since you're limited, you know, in ti relevancy. DAVID:Okay, I'm -. GIFFIN:Thank you. DAVID:Begging your pardon, but that is relevant. Your outline, I'll go right to your outline mentioning the initial codification of laws regarding land held in common, could you explain whether or not these changes had any impact upon the traditional and cultural beliefs and practices of Native Hawaiians. VITOUSEK:Excuse me, Madam Chair, excuse me. But, you know, if t testifying based on something he's reading, then we're all entitled to see that, and they just asked a question saying , you know, based on your outline that I have in front of me, and he's looking at his outline and so, you know, the rules of evidence are if the witness is reading from something when they're testifying, then we're all entitled to see that. And so, you know, that's what I'm asking is that either the document be produced that they're reading from or that they not testify from a document. GIFFIN:Thank you. Maile. 55 DAVID:The outline was presented or was submitted to the parties, and I believe my question is the reason why we're here today is basically the fact that the traditional and cultural practices and beliefs are greatly impacted by decisions such as this in this hearing process. And Mr. Forman is being asked to elaborate on what those impacts have been throughout the years. I mean it's history, but whether people are required to go and read them for themselves, I'm trying to present this to this body as a background. VITOUSEK:And, Madam Chair, just so you understand it, our position is if what they're talking about are laws, you know, then the laws are the laws and they speak for themselves. And, basically, we don't need a lawyer to testify as a "expert witness" to have the Planning Commission interpret the law. GIFFIN:Thank you. Mr. Torigoe. TORIGOE:Thank you, Madam Chair. Ms. David, I just want to clarify that the outline you're using is what you labeled Exhibit A and that was attached to your Intervenor Maile P. David's Submission Regarding Testimony of David A. Form th Planning Department on July 15. DAVID:Yes. TORIGOE:Is that correct? Okay. So this is, this was just recently submitted to the Planning Department, and it looks like there was a certificate of service that was, it says it was th served by hand delivery or mailed in Kailua-Kona on July 14. Was it sent to Mr. Vitousek's office? It says it was by hand delivery to Mr. Vitousek's office. DAVID:Mr. Vitousek got his copy via hand delivery, and I believe Ms. Eoff dropped it off. TORIGOE:Okay. I just want to make sure everybody's on, literall with this. Do all the parties have that outline? O'TOOLE:We have it. M.ROY:Klana Huli Honua has a hard copy. GIFFIN:Mr. Togashi. TOGASHI:Thank you, Madam Chair. I, for one, would like to see this line of questioning continue because several of these topics which are listed on the outline of testimony are really exhibits as part of Ms. David's, are really topics that are exhibits in Ms. David's cas so I, for one, would like to see where the line of questioning goes and -. GIFFIN:Okay. And I am going to keep her to that time limit, too. Commissioner Springer, any input? 56 SPRINGER:I concur with Commissioner Togashi. Looking at her exhibit list, and Mr. Forman's outline, there's concurrence and relevancy. GIFFIN:Thank you. Then, Maile, please continue. DAVID:Thank you. Could you answer that question? Or do you wan repeat that question? FORMAN:I think I still have the question in mind. DAVID:Thank you. FORMAN:I mentioned the system, the klai`ina system of land distribution that the chiefs continued to practice that, and some of the distributions were made to non-Hawaiians. And these non-Hawaiians treated that property as if it was held in perpetuity, when the intention was always that that property would be returned to the chiefs. And so there were conflicts that developed, and there was subsequently a system of property laws that was established to address that. Then the rapid pace of development of those laws didn't allow the Hawaiian Kingdom to implement all of the distribution. There was a one-third distribution that was supposed to go between the government, the chiefs and the native tenants, and there was never really a distribution to the native tenants. And so there was a system of laws that were set up and there were laws that were passed to -, requiring native customs and usages to be respected. The Land Commission was required to respect those laws. And then there was laws creating a system of government, and there was a law that was passed to -, requiring the preparation of a civil code, that was also to respect native usages and customs, but that law was -, the civil code, excuse me, was never adopted until 1859. And then that law was -, those laws in 1859 were eventually repealed in 1892, but recodified in the statute that was passed that very same year, and land principles in Hawai`i continued through the republic, through the territory, and on to the State of Hawai`i. DAVID:Thank you. Could you, in some of the missed opportunities could you describe some of the injustices relating to those missed opportunities in your outline. VITOUSEK:Again, I object to the question. I think it's, you know, vague and ambiguous. It's not relevant to the application, it's beyond the scope of any established expertise, and it's not appropriate subject of expert testimony. And it actually, if I could just have a continued line, a continued objection to -. GIFFIN:I know. VITOUSEK:This line of questioning, then I won't have to object for each question, but I do want to preserve this for the record. GIFFIN:Maile, what I suggest is that perhaps if you take a look at our Rule 9, the SMA rules, and take a look at 9-C, Grounds for Approval of Special Management Area Use Permit, then there are three reasons or grounds for approval, an 57 Mr. Forman to address would be how this application does not meet one, two, or three, which would then bring us back into relevancy. DAVID:I'm sorry, nine what? GIFFIN:C.1, 2, and 3; 9-11, sorry. DAVID:Oh. GIFFIN:C.1, 2, and 3. DAVID:Okay, as I under -, I'm reading this right now. In chapter, excuse me, C.2, the development is consistent with the objectives and policies as provided in Chapter 205A. My questioning is trying to establish that according to 205A, significant historical sites must be preserved and protected. And what I'm trying to establish with Mr. Forman here is that it has not happened in the past. And we are trying to resolve this by bringing more information to proceedings such as this and not keep it focused on 1, 2, and 3, about cultural impacts, it does not limit itself to, you know, one, it expands in a cultural context, because the impacts are going to affect a lot of things that is not necessarily within this rule. But in keeping with 205A, protection and preservation, I believe that's relevant. GIFFIN:And I think that that point has already been established, and so what I want you to do is to go on and then bring some relevancy back to the criteria, because in the end, that's what we're going to be focusing on. DAVID:Okay, Mr. Forman, is it your belief that the lack of understanding about Native Hawaiian traditional and cultural beliefs and practices have resulted in the loss of vital cultural resources? FORMAN:Yes. The -, well, I mentioned the rapid rate of progress of the development of the laws, and you had asked about some of those missed opportunities. There was, you know, there are cultural reasons for people not coming forward and talking about their practices. There may be strong reasons of no conservation stewardship, and there was a term I learned in Hawaiian, maha`oi, you know, it's to be rude. You do and tell people about, you know, what you're doing. You don't, you don't reveal that source of water, otherwise, you know, people are going to come and utilize that water, and it's not going to, it's not consistent with the conservation mandate of the Native Hawaiian people. And for a lot of these reasons, there was not adequate information provided to allow, whether it was permitting agencies or those that are deciding whether a permit should be granted, to consider the cultural practices that remained, the rights that remained of Native Hawaiians. And so we have lost access that, you know, counties subsequently have to go back and pay for to re-establish because they gave, issued a permit without having considered, you know, traditional access rights or significant cultural sites that were bulldozed and developed because there wasn't adequate protection provided by those government agencies that were charged with protecting those rights and resources. 58 DAVID:Thank you. Has your understanding of Native Hawaiian cultural beliefs and practices evolved over time? VITOUSEK:I'm sorry. Mr. Forman's belief and understanding of Na culture and its evolution over time is just completely irrelevant. DAVID:I have one more question. GIFFIN:Well, I think what I need to ask you, before you ask your last question, Maile, is whether or not it is, you know, we need to see this connection of relevancy. And once again, I recommend that we look here at the criteria. And if, I mean, we have already established him as obviously very capable in terms of, you know, the history and on and on and on, but what I think that we need to do is establish that link. And go ahead and ask your last question. DAVID:The project being considered here, David, is -, impacts to Keakealaniwahine that this proposed project is going to potentially have and in your experience, is this the sort of process that we need to expand on in order to identify all the impacts necessary before a decision can be made? FORMAN: I think I understand the question you are asking me. I can speak generally about the, this body's obligations to -, well, this Planning Commission is fully aware of its obligations. The issue is whether the impacts on cultural resources of a, whatever project it is, this project, any project, are, you know, whether they are consistently being balanced, whether the interests of the project proponent and the interests of traditional and customary practitioners are being addressed. And there are, over history, these considerations hadn't been done, and they need to be done now. Laws were passed intending to fulfill those obligations but do not necessarily enable those bodies to make those decisions, so when you're commenting that there are criteria set forth in a Planning Commission rule that those particular criteria may not fully implement that decision-making body's obligations under the law, under the constitution of the State of Hawai`i. And so there needs to be a consideration of the traditional and cultural practices that are associated with any particular site. And some of these -, this is the kind, the evolution in the process. We're still learning about Native Hawaiian practices. We're still learning about how to protect those practices. We can, you can draw from examples at a national level; the national government is doing the same thing. They're trying to figure out how best to protect Native American sites, and they've developed a process under -, it's called National Register Bulletin 38. It applies to traditional and cultural properties. I am not suggesting that that bulletin applies here, but it provides guidelines that a body such as this could consider in making its determinations. And that National Register Bulletin 38 talks about whether a particular site is a traditional and cultural property, and it says that anything, if the integrity of a site remains in the eyes of traditional practitioners, then that's probably sufficient for the consideration of the impacts of the, of a particular proposed development to be considered. And, also, that a lengthy process of, well, a lengthy period of non-use of a property wouldn't necessarily preclude, you know, a site's eligibility as a traditional cultural property. 59 There are other kinds of guidelines. The Office of Environmenta that describe the scope of inquiry being beyond a particular site itself is consistent with the National Register Bulletin 38, as well, and there is a -, you know, they have a Directory of Cultural Impact Assessment Providers that's attached to their guidance that any project proponent could consult and -, in order to develop an application that reflects the consistency between development desires and practices of Native Hawaiians. DAVID:Thank you very much. VITOUSEK:Excuse me, Madam Chair, can I object to and move to strike his testimony? This is exactly the type of testimony that we objected to. He was testifying as to what the law is and what it means. In other words, and that's not an appropriate subject of expert testimony or even witness testimony in this type of proceeding. And that is what we objected to and what we were assured was not going to happen. GIFFIN:Hearings Officers, input from you in terms of your feelings? Hannah. SPRINGER:I admit to having the same concerns that Mr. Vitousek raised, and I'm thth looking at the document with the, that's dated July 15, or received July 15, Intervenor Maile P. David's Submission Regarding Testimony of David M. Forman, and it does indicate that Mr. Forman's testimony will describe the historical development of laws designed to protect and perpetuate culture, the reaffirmation of these laws, and the implementation of institutional processes to achieve these goals, rather than a direct address of the case at hand. GIFFIN:Mr. Togashi, your feelings? TOGASHI:I just wanted to ask maybe some questions of, you know, Mr. Forman, rather than maybe a comment on that. GIFFIN:One minute. Mr. Torigoe. TORIGOE:I can wait. GIFFIN:Oh, okay. Mikahala, Mr. Torigoe has referred to you. M.ROY:My question as another Intervenor is I fail to see how this is not relevant to this case in the same way that background information for, just presented in terms of our case by Noenoe Silva presents a professional. Would it be the case t Mr. Forman would make this more acceptable? He is a professional in this field. I, for one, appreciate the opportunity to question him directly, because it does have extreme relevance to the management, the condition of people in regards to the State and our government agencies as it pertains to especially sacred properties coming back from the GIFFIN:Mr. Torigoe. Ms. O'Toole. 60 O'TOOLE:Well, I would agree with Ms. Roy that it's probably of same relevance as the doctor's was. And I think I heard the witness say that he was not testifying as to this particular piece of property, but just in general, so I would question its relevance, as well. GIFFIN:Mr. Torigoe. TORIGOE:Well, you know, it's within your discretion, I think, what you want to do with this testimony. It seems that we have allowed a certain amount of background information on both sides and opinions by both sides without necessarily qualifying as experts, and so, you know, I'm kind of reluctant to be too stingy about allowing what the parties think is relevant background information into the record. But I do think you need to be careful not to let it degenerate into an extended excursion into, you know, development of the history of the current government and development of the laws. Basically, I think if you want to allow a certain amount of general background information for your information an positions of the parties, that would be okay. GIFFIN:And I think in that regard, that is to all of our benefit, and I -, but I think enough now. So I think that if we can go ahead, I will go ahead and accept his testimony. I'm sorry about the objection, but we're going to go ahead. VITOUSEK:Yeah. Thank you. Fine. I just need to -. GIFFIN:And I'm sorry? VITOUSEK:Yeah, I understand that. I just needed to clarify for the record the basis of my objection was that what we have is a lawyer testifying as an expert as to the content of the law, and that that is different in character from Dr. Silva testifying about cultural and language related issues, even though they may be only tangentially related. That is an expert in a field other than law, and it is usually inappropriate in a legal proceeding, or a quasi-legal proceeding, to have a lawyer testify as an expert as to the meaning and requirements of the law because that's up to the Commission to decide. It's up to the Commission to decide how to apply the law to a particular context. GIFFIN:Thank you very much. Your half hour is up. Hearings Of questions? Mr. Togashi. TOGASHI:Thank you, Madam Chair. I do have a specific question relating to this property, and my question is can this proposed development and the practice of traditional and customary rights, can these two exist in your opinion? You talk about balance, but can they exist together, co-exist? FORMAN:That's actually a decision that the, that you folks as Planning Commission Members have to -. TOGASHI:I just wanted an opinion, your opinion on that. 61 FORMAN:Well, I haven't visited the site, I haven't spoken with cultural practitioners in the area, I haven't had, you know, those kinds of conversations and been a participant in the proceedings prior to this and to follow, and I would need to have that information in order to render opinion. TOGASHI:Would you say that, in general, can both co-exist? I mean does one preclude the other from -? GIFFIN:Mr. Forman, I'm going to interrupt right here. I think that those are questions that are decisions we have to make, Mr. Togashi, and I think by putting Mr. Forman in that position, it's unfair. And so if you have other questions, I would really appreciate you asking them. TOGASHI:Well, one was basically, rather than maybe, since he had really no knowledge of that property, I did ask a, I guess a question of a general nature, meaning can these two things, can they co-exist? GIFFIN:I've been directed -. TOGASHI:In respect -. GIFFIN:By our Corporation Counsel that that line of questioning stop. TOGASHI:Okay. GIFFIN:Mr. Togashi. If you have any other questions, it's great. Ms. Springer. SPRINGER:I'm trying to stick to the outline that was shared with us. Under II of the last element is a precursor of HRS 11, which discusses the common law of the State and exceptions to it, and there's a section there that addresses fixed by Hawaiian judicial precedent or established by Hawaiian usage. Do the cases of Public Access Shoreline Hawai`i and Ka Pa`akai O Ka Aina fall into that category of either fixed by Hawaiian judicial precedent or established by Hawaiian usage? VITOUSEK:Madam Chair, inasmuch as I hate to object to a Commissi I think that's really asking for an interpretation of a, interpretation of a Hawai`i Supreme Court case in light of a statute, and I think that goes right to the heart of the problem of having an attorney testify as a witness and an expert based on the meaning and application of laws. GIFFIN:Hannah, would you like to rephrase that question? VITOUSEK:And again, if I could have a continued objection to that line of questioning, then I won't have to continue to object -. GIFFIN:Sure. 62 VITOUSEK:For each question. But I just need to get that on the record, and I apologize. SPRINGER:I understand Mr. Vitousek's objection, and I guess I would ask the Deputy Corporation Counsel sitting to your left if I should proceed or hold. GIFFIN:Mr. Torigoe. TORIGOE:What exactly are you trying to determine? SPRINGER:I'm inquiring if Public Access Shoreline Hawai`i and the Ka Pa`akai O Ka `ina decision fall under fixed by Hawaiian judicial precedent or established by Hawaiian usage as indicated in Section II, the HRS, which is mentioned on his outline, as one of the topics that would be discussed by Mr. Forman. YUEN:Can I make a suggestion that -. GIFFIN:Mr. Yuen. YUEN:Questions of a strictly legal nature like this be addressed to the Counsel for the Planning Commission, who is well able to answer them. The reason that I say this is that the parties may argue the law to the Commission. The Commissioners are not attorneys. Lawyers will argue different points of the law. Usually, one witness does not testify about what the law is because that's up -, in a court case, that's up for t law is. The judge decides what the law is. The lawyers may get to argue what the law is from time to time, but it's ultimately up to the judge. Here the way this works is that the Planning Commission has an attorney, and if the Planning Commission has questions about what the law is with respect to this, the Planning -, I, as the Director, may give the Department's recommendation based on our view of what the law is. Mr. Vitousek may argue, for example, as he has, that the PASH ca State vs. Honapi. Other parties can argue what the law is. But if you want to get advice about the law, the neutral person to consult would be the attorney for the Commission, if you really want, if you want your own legal advice. GIFFIN:Hannah. SPRINGER:I understand, and I will save my questions for the County Planning Director and Mr. Torigoe. GIFFIN:Thank you. SPRINGER:Thank you. GIFFIN:Mr. Vitousek. 63 VITOUSEK:No questions. GIFFIN:Okay. Mikahala. M.ROY:Mr. Forman, is this something that you might be, have seen instances where there's an argument for relevancy for the subjects at hand that we're facing? Have you seen this in other contested cases or opportunities in the public such as contested cases? FORMAN:I'm not sure if you are asking me whether -. Can you rep question? I wasn't quite sure what you're asking me. M.ROY:Is it my understanding to date that this is not relevant to this proceeding? Is your understanding that as you sit there that the questions we're asking you are not relevant to this proceeding? FORMAN:I think as I indicated before that, you know, the consideration is what this, what considerations does this Planning Commission need to take when it's considering any application for development. And I think, you know, in the past, the problem has been Native Hawaiians haven't even been allowed in the door to sit at the table and talk about their concerns. Now the question is if just being allowed to come to the table, is that sufficient, or is there an opportunity for Native Hawaiians to give voice to the claims that they've, that they have to particular areas of property? And so certainly it's relevant in that capacity, that, you know, these, the claims of Native Hawaiians need to be heard, whether the, whether you're talking about an area that's already developed or, you know, not developed. M.ROY:The material that you have prepared to present today, how important is that to Planning Commissions such as these for full understanding in light of the subject matter that we are asking these questions today? Is -, do you call that relevant? FORMAN:Certainly. The Planning Commission is obligated under the law, the constitution, the laws that have continued from the earliest development of private property rights in Hawai`i until today, whether they are reflected in the Planning Commission rules or statutes. M.ROY:Thank you. One last question, Madam Chair. In your exper prepared are generally Planning Commissions throughout our state, and have you had experience where they are up-to-date with the issues of history like what we were going to be looking at today? FORMAN:There may be some exceptions, but for the most part, you know, a lot of folks haven't paid a lot of attention to this history. They hav haven't had an opportunity to learn it. I've had some of that opportunity, as I discussed earlier in my testimony. And to the extent that folks are exposed to that information, then they are, you know, well qualified once informed to apply it. 64 M.ROY:Thank you very much. GIFFIN:Okay. Mr. Yuen? Ms. O'Toole? O'TOOLE:No questions. GIFFIN:No questions? Thank you very much. The -, I notice that filled up with a lot of people from the public and so, Maile, if you don't mind, what I'm going to do is ask if there is anyone here who has come to give public testimony. DAVID:Thank you. Before you do that, could I just clarify the r Mr. Vitousek has referred to Mr. Forman as an expert, and I did not call Mr. Forman as an expert. GIFFIN:Fine. Thank you. DAVID:Thank you. GIFFIN:And thank you for coming. Is there anyone here who has c give public testimony on this agenda item during this contested case? Thank you very much. Maile. DAVID:Excuse me, Madam Chair? Can I ask for like a five-minute break to check with my witness? She just arrived. GIFFIN:Fine. Five minutes. DAVID:Thank you. RECESSEDThe meeting recessed at 2:07 p.m. RECONVENEDThe meeting reconvened at 2:12 p.m. GIFFIN:I'd like to call this contested case hearing back to order. The Applicant is Wayne Blasman. This is an application for a Special Management development of a 13-unit condominium project and related improve is 02-03. Maile, your next -. DAVID:Yes, I'd like to call Vicky Takamine to testify. GIFFIN:Will you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? TAKAMINE:I do. I do. I do. I do. GIFFIN:Good. 65 TAKAMINE:Mahalo. GIFFIN:Will you please state your name and your resident address TAKAMINE:Aloha, my name is Vicky Holt Takamine, 98-614 Kaim Loop, `Aiea, Hawai`i. GIFFIN:Thank you. Maile. DAVID:Aloha, Vicky, and mahalo for being here with us today. TAKAMINE:Aloha. DAVID:I understand you are a Native Hawaiian and a graduate of Kamehameha Schools. When did you graduate, and would you be kind enough to give us some background as to what you do professionally? TAKAMINE:I graduated in 1965 from Kamehameha Schools. I attende of Hawai`i and received my bachelor's and master's degree in Dan University of Hawai`i. I currently am a lecturer at the University of Hawai`i at Mnoa in the Music Department; I teach hula. And I teach at Leeward Community College; I teach hula and Hawaiian culture. I am also a kumu hula, I have my own halau. niki from Maiki Aiu Lake in 1975, established my halau in 1977, have been teaching for 26 ye DAVID:Mahalo. Is the, is hula the act of just learning steps and motions, or does it have a deeper purpose and meaning in our culture? TAKAMINE:Hula is the art of expressing everything that we hear, we see, we taste, we smell, we touch, and we feel. Hula is also the record, the oral history account of our history, our culture, our language, the rituals, ceremonial principles and values of Hawaiian people. It is because Hawaiians didn't have a written language, they relied on the oral traditions of story telling, of chant, and of dance to perpetuate and carry on their histories from one generation to the next. DAVID:And does the cultural practice of hula interact and connect with our environment, in general? TAKAMINE:Hula is also a means for us to connect with the land. In all of our mele and our `oli, we learn about and we study and we are connected to the place names that are mentioned in chant and dance. And through those place names, we connection, an ancestral connection to the land. We are able to share with our students principles and values of malama `ina, aloha `ina. We are able to share with our students those things that are important for the carrying on of our culture, the carrying on of our people. 66 DAVID:Thank you. How significant and important to perpetuating our cultural traditions is spiritual connections with sacred sites such as Keakealaniwahine? TAKAMINE:Sacred sites are chosen, were chosen by our kpuna for the mana, the power that is -, and were very carefully selected by our kpuna because of its location, because of what they felt there, because of what they saw here. And so sacred sites have a special knowledge and a special educational purpose for our Native Hawai I look at many of the sacred sites that have been bulldozed over and developed without care for the knowledge that we can extract from those sites and for the knowledge that can be perpetuated from those sites, and I think about, I look at my kpuna sometimes and I say, you know, where were you when all of this happened? How could you have allowed that? And I understand now because of the knowledge that I have now that in some cases it, they didn't have any input into those choices, that people who moved here brought their own ideas of land use and didn't care about the rights of Native Hawaiians or their cultural practices or the value of that knowledge. DAVID:Is this connection that you speak of necessary and critical to maintaining the meaningful cultural practice of, in your situation, in your case, of hula? TAKAMINE:I look at the sacred sites and I think about all of the knowledge that is lost when we lose a sacred site. In particular, Keakealaniwahine was important for ali`i wahine for the knowledge of and practice of grooming and preparing women of ali`i lineage to take, assume the kuleana, the responsibility. And for me, it's even more important. I am a genealogical descendent of Hanaka`ulani O Kamamalu from O`ahu, of Namahana from Mui, Keaweopala from Hmkua, Awaikumuhonua from Waimea, Koloko 'o Kamaile from Ka`, and Keali`iokaloa from Kona, so I have genealogical descendents not just from O`ahu but from Hawai`i Island, from Mui. And that puts me in a very different situation from most women, that I never understood until I took hula. But what Keakealaniwahine can be is a training center for young women that will assume their kuleana and their responsibility for caring for sacred sites, for caring for cultural practice, for educating our young Hawaiians, for doing, assuming the kuleana of an ali`i, as a kahu of their cultural practices and their people, to help to protect the native rights, their ancestral lands, their ancestral lineage, their heritage, cultural practices, principles, values, all of those things. We have no cultural center in the entire State of Hawai`i that can do that. Not one. We have no living cultural center in any moku on any Island that can service our people for healing, for waha, for communing, for fishing; we have no place. DAVID:Is Keakealaniwahine a place such a what you speak of? TAKAMINE:Keakealaniwahine is the only place for Native Hawaiian women. It is her sacred site. It is where all of these practices were taught. It is where women were trained to assume their position in society and to assume their kuleana, their responsibility for helping and to be the kahu of their people, the guardians. 67 DAVID: From a cultural practitioner's perspective, what happens when an incompatible activity is allowed to occur in the close proximity to a sacred site? TAKAMINE:I can probably use Kea`wa Heiau as an example. Kea`wa Heiau, our foundation has just assumed curatorship for Kea`wa Heiau in `Aiea, and I have lived at the foot of `Aiea, of this heiau, for 30 years. And I take my students from Leeward Community College, my halau, my students from University of Hawai`i up to the heiau to talk about heiau construction, activities, cultural practice. And every time I go, I must have, you know, I -, about 10 years ago I went and the walls of the heiau had been taken, rocks from the foundation had been taken, and circles were formed and alters were constructed on this heiau. And I called the Historic Preservation Department, and I called the DLNR, and I said what is going on? When did this happen? Oh, well, we had a group of campers up here and, you know, one night they decided to do their own rituals on this heiau, and so the caretaker who lives right next door to this heiau didn't think it was his kuleana, his responsibility, to notify anybody or stop them from the activity, which resulted in circles on a heiau. And I said well, I'm going to take it apart. And he said, oh, you can't because you know, that's a destruction of a heiau, a archaeological site. What else is happening there? Well, they put a sign up on the heiau, State Parks, cemented, a sign that says Kea`wa Heiau, in the middle of the heiau. What else goes on? Well, they have these platforms there for picnic tables, and so there are birthday parties and there are soccer games going along, camping over around the corner. What happens -? I went up there with my students and some person came up and did their little -, left their jabong there and did their little pule and left their paper on top. These are the things that are happening in the State park. This is a national historic, this is -, this area -, this particular heiau is on the National Historic Register. Camping is allowed, the road goes right by, parking, picnics, birthday parties. And I take my students and I want to pule with them at the entrance to the heiau, and these are new students to the culture of Hawaiian practices. And you know what? They're shame. They feel stupid. Because people over there are watching them as they exercise their traditional customary practice of pule and oli and chant and offerings and ho`okupu, and they're shame because people are watching them. And there's loud music going on next door. People are playing their ghetto blasters, cars are going by tooting and yelling out the side of the window, and they're ashamed t exercise their traditional customary practice. And this is what is allowed when you do not have a buffer, enough space between the sacred site in order for us to continue to share and educate young Hawaiians on their traditional customary practices. They're not shaming my class, they're not shaming the privacy of our own places, but when we make this -, and all of our sacred sites are open to the public. But just because it's open doesn't mean it's -. And then what happens? Tourists come, and they start taking a picture. Then they ask you questions. Then they interrupt your practice. That's what happens. DAVID:So in your opinion, a modern development such as a condomi in the vicinity of Keakealaniwahine, does that pose substantial impact? TAKAMINE:Absolutely. Absolutely. Just by its presence, the people watching. That's an invasion of our privacy for some rituals and ceremonies that need to be private. How do we mitigate those things? How do we control sound? How do you tea 68 they're doing is the right thing to do, and how do you teach them to be able to go ahead and chant without being shamed or without feeling stupid and like embarrassed about what they're doing because people are watching? You don't get to watch. If you wan come and learn and you got to kkua and you got to contribute, but you're not there to observe. That's being very maha`oi. So, yeah, a condominium with people looking out their windows and observing what you're doing, things that should be private, for only those that are versed in ritual ceremonial. You go to a church, and there are things that happen in the church that are not allowed outside of it. So I, you know, I asked this person who was doing his ritual, I said, "You know, what are you doing?" "Well, I'm paying my respects." I said, "To who?" This man Hawaiian. And then he asked me, "Well, how I know you? How you know it's not Hawaiian?" "Because I'm Hawaiian." "Well, how I know you're Hawaiian? You got green eyes." And I said, "You know, to question me on what my, why do I -?" I said, "Is what you are doing Hawaiian?" "Well, how do I know you're Hawaiian?" "I mean, are you doing something that's Hawaiian? This is a sacred Hawaiian site. Your activities are not Hawaiian and do not belong here. You would no more go into a Catholic church and do this in a Catholic church, but because ours is out and open to the public, you feel that you have the right to walk on this place because it's a historic site and a State park, that you can do these kinds of activities. I don't think so." DAVID:Thank you. You were the co-founder and president of the H Environmental Alliance. Could you explain the purpose of that group? TAKAMINE:I maybe want to back up a little bit. I founded `Ilio`ulaokalani Coalition in 1997. And at that point, the State Legislature was introducing a bill that would require Native Hawaiians to register with the Land Use Commission, prove that we are Native Hawaiians, list all the things that we gather, every limu, every fish, every shell, every fern, every flower, and list all of those things. And then prove that our ancestors were here prior to 1898 and had a clear preponderance of evidence that our kpuna gathered those items prior to that. And I looked at that bill, and the House version of the bill was that you could only gather in the ahupua`a in which you lived, you are resident. And I went to testify, and the Senate committee that I testified at passed it right out of their committee. And I said, you know what, how -, where's the preponderance of evidence that my great-great-grandmother gathered the maile in the valleys of Makaha? It's disintegrated. Where's the fish that my great-grandfather, where's the ulua that they caught? They ate it. Where's the clear preponderance of evidence? Do I have a digital photograph of them doing this prior to 1898? And I thought this is ridiculous. So I testified and they just didn't listen to me. They passed it out of their committee. And I'm thinking to myself, this is why we have these problems. The people that are in power, that are the decision makers, don't listen to Native Hawaiians and what their concerns are. They just pass these bills right out. The interests of developers were what was important to them. They wanted clear title to their land. You don't get clear title to this land. You have title subject to the rights of Native Hawaiians. It has been in -. We never relinquished our rights, ever. And acknowledging the rights and the custom and practices has never been shared with developers and people who buy land, so they come here with their own ideas of what land ownership is and try to impose that on the native people, and they've gotten 69 away with it because we have laws that are here to protect our rights but are not enforced. We have laws that are here that are not -, and people who live here are not educated in those laws. We have people that we elect to look after the rights of all people that live here, Native Hawaiians including, but we're always the ones that are giving up and are at the losing end of all this. We lose our sacred sites, we lose our practices. And so `Ilio`ulaokalani was formed, primarily of cultural practitioners, Hawaiian fishermen, hula people, weavers, gatherers, and we were successful in killing both bills. We went back again the following year and killed -, the same bills were introduced the following year. But it also marked our presence at the State Legislature, so when we come in understand that there's a body of Native Hawaiians that are more educated than we were 10, 15, 20 years ago, that there's an organization that is -, serves as a watchdog organization. A couple of -. And at those hearings, I met a lot of people that I didn't know they were all testifying on the same bills and other committees, as well, and I was looking -, and they were testifying, you know, on the same side that we were on, and I had no clue who they were, Sierra Club, Outdoor Circle, Life Justice, Life of the Land. And so `Ilio`ulaokalani and Outdoor Circle and Hawai`i's Thousand Friends held a one-day conference because I wanted to meet all these people and I thought these are cool people, I want to meet them. So we met and we formed a one-day meeting just to introduce each other, find out what you're doing, who you are, and why are we all testifying on the same side. But I realized that they all come from a different angle. They were coming from an environmental position, we're coming fr was a good marriage, and that was the formation of KAHEA. The H Alliance was formed with the idea that we could bring together H environmental organizations to work on common issues, that we have common goals. `Ilio`ulaokalani advocates for the rights of Native Hawaiians and is totally focused on things that are very Hawaiian, but KAHEA is the marriage of the two. DAVID:Thank you. Could you explain what your traditional practices are with regard to the sacred site Keakealaniwahine? TAKAMINE:Number one is genealogy. I think there are many, many Hawaiians who have lost their genealogical ties, their ancestral lineages, and one of the most important things that we can do is use Keakealaniwahine as a genealogical educational research tool to link up those families that have been lost, that have not had their -, that don't know that they are related, number one. Number two, we can invite all of the women from those families to share in and conduct educational programs. I'm who I am because I have this -, I've had to educate myself on Hawaiian language and culture. I'm fortunate that I had my kumu hula to -, Maiki Aiu Lake, to help me with that. My grandmother died. She was the only one that spoke fluent Hawaiian. She had 10 children, not one spoke Hawaiian. My grandmother knew of things and genealogy. She's no longer here to share that with me, and I was too young at that time to understand the wealth of knowledge that she could share with me. And so I've had to borrpuna, Maiki Aiu Lake for one, my mother -, Tutu Kawena Pukui. My mother worked because of that, I was exposed to Kawena Pukui, Ellie Williamson 70 anthropologist. I was a Bishop Museum -, one of the Bishop Museum brats that ran around in the hallway, so my exposure to Hawaiian culture, I was raised there. We went there after school every day, and Tutu Kawena was Tutu Kawena, not did I realize who she was till I grew up and started using her books and started researching, and I'm thinking to myself, oh, my God, I interrupted her in her office how many times and was just a brat. But I was fortunate that my mother worked there. I was exposed at a very young age to the things that my grandmother couldn't teach me. And I also have the genealogical ties, that ancestral knowledge that you cannot explain how you know things, you just know. How you do things, you just do. An why things come in dreams to you and whether they're prophecies or -, and they have been. So I've come to understand that some of us have special talents that need to be nurtured and you have to find them. And I didn't come to who I was until the last, I would guess, say, the last 10 years. And Aunty Maiki knew, and she told me. She called me in the middle of the night and she said this is who you are, this is what you're going to be, and this is where you're going. And several other people have, who have already passed on, have already -. I think back and I went, yeah, right, sure, you know. But we had ancestral knowledge of things that cannot be explained. And I don't know how else to explain that. DAVID:Thank you. And this -. TAKAMINE:But -. DAVID:Go ahead. TAKAMINE:Connecting to Keakealaniwahine, we need to teach people how to do this. DAVID:And this knowing and this sense that you have, that's your practice with respect to, part of your practice with respect to Keakealaniwahine? TAKAMINE:Absolutely. I think it's also a spiritual connection that we have with these places that we know when we walk on it, that you know when you approach it, that there is an, there's a sense of spirituality and ancestor, ancestral ties that is hard to explain to people who are not connected and who don't have that spiritual and ancestral tie to those places. DAVID:Thank you. Are many cultural concerns of Native Hawaiians related to the land use permitting process? TAKAMINE:We have been separated from many of these sacred sites, knowledge of those sites and the people who practice there, when you separate people from their land. You know, I look at our people, 80 percent of the people in prison are Hawaiian. Ninety percent or more do not know their Hawaiian language, do not know their mother tongue. I have no idea how many percent, what the percentage of our Hawaiian people understand or have a cultural practice; not enough. And what happens when our fishing grounds are taken away? Can you teach your children how to throw net and the different techniques of fishing? Halau, we have -, we use cafeterias that don't belong to us because we can't afford it, yeah, or garages that 71 are not dedicated solely to hula. So what happens? The sacred practice of hula then goes because people do not practice it, because there are things that cannot be practiced in places that are used by -, for other activities. You cannot have a halau in a cafeteria, because that halau is a dedicated space that needs to be made sacred and built especially just for hula, and certain kinds of activities cannot be taught anyplace else. Knowledge of this cannot be continued if we do not have -. My vision is for a cultural center in every moku, on every island, a Hawaiian cultural center, that will teach what is unique about that moku, what is unique to that place. It is not something that is, that every ahupua`a or every moku has. There's something unique about every moku, and something that can be shared from each moku. Something unique about that place and the activity or cultural practice that is unique to that `ina that needs to carry on. If we don't have that, then those practices get lost. So why is it the majority of our people sometimes, you know, don't understand what it's like to pule and to do oli and to hula and be able to go fishing? How can we raise a generation, you know? I think when I graduated in 1965 and I looked at my parents and I went like they don't know. And my grandmother, you know, she -, I was at the university and taking Hawaiian. She says that's book language. But you never taught your children, and I'm willing to teach me. Until it was too late. By the time she was ready to teach me, she had a stroke shortly after and could not speak. And so too often our kpuna wait too long and realize, you know, what they should have and could have done, and it's our generation that are scrambling for that knowledge. I just taught a workshop in Vancouver, Washington to Native Hawaiians who had moved away. My nephews, my sister-in-law, her students, Native Hawaiians that have made Vancouver and Portland and places in Washington their home. They are so hungry for this knowledge. They can't afford to live here. They cannot afford to live in their ancestral homeland. DAVID:Thank you. In what ways do you feel decision makers can a adversarial situations whereby the concerns of Native Hawaiians resources and an owner's right to develop his property can be accomplished with the least amount of destruction to valuable cultural resources? TAKAMINE:Be upfront with everybody that chooses to buy land in Hawai`i. Let them know, educate them on the rights of Native Hawaiians. Don't try and hide the fact that you live near a sacred site, just because you can get a good dollar sign for that. Educate. If people understood, they'd know what they were buying before they got he negligent in sharing that knowledge. People hide that from them. And then when they get to this point, it's too late. They've spent a whole lot of money. So where are the educational -? Where's the educational message for people who choose to live here or buy land to develop? How can we help you make a good choice? It shouldn't get to this point. By the time it gets to this point, it's too late. If somebody was upfront with them and said, you know, this is a sacred site. You know, if you want to buy here, that's maika`i, but you cannot develop anywhere there's a buffer. Set some guidelines for how far away. How far away c infringes on our native rights? How far away before people feel like they are being shame or 72 stupid or look bad and pictures are taken before you know it? I found my picture in calendars of things that we were doing that were considered sacred, and some photographer took it and put it on a calendar without my knowledge, without my permission. That's not right. It's not right. GIFFIN:Maile, your 30 minutes are up, but would you like to ask summary question? DAVID:Yes, I do have one last question. GIFFIN:Good. DAVID:Vicky, from a kumu hula's perspective, could you demonstrate the way perpetuation of cultural traditions to sacred sites such as Keakealani are so vitally important to our spiritual wellbeing as a people of this land? TAKAMINE:Demonstrate. DAVID:Mahalo. TAKAMINE:(Takamine chants in Hawaiian) It's a pule to ask for inspiration, to ask for growth, to ask for life for our kumu, our haumana, the paipai, the foundation, so that the things that we have, so that you and I can grow old and be bleary eyed like a rat. DAVID:Mahalo. GIFFIN:Thank you. Randy. VITOUSEK:Good afternoon, I'm Randy Vitousek. TAKAMINE:Aloha. VITOUSEK:I represent the Applicant. Ms. Takamine, are you aware of any references to Keakealaniwahine in chants or olis or did you -? TAKAMINE:We have genealogical chants that talk about Keakealaniwahine and her descendents. VITOUSEK:They talk about her, they talk about the person Keakealaniwahine, is that -? TAKAMINE:Yes. VITOUSEK:Okay. Are you aware of, you know, the particular site proposed. TAKAMINE:Yes. 73 VITOUSEK:And have you been on that site? TAKAMINE:I've been through that site. VITOUSEK:Uh huh. And did you note when you're on that site that there were about four houses already on that site? TAKAMINE:That's correct. VITOUSEK:And do you know when those were built? TAKAMINE:No, I don't know when those were built. VITOUSEK:Okay. Do you know that those were operated as the Snug Harbor Motel for many years? TAKAMINE:That was probably during my kpuna's time. VITOUSEK:Okay. TAKAMINE:And I wonder why they were there. VITOUSEK:Yeah. Okay. But -. TAKAMINE:And who allowed that, you know. Those are the question VITOUSEK:Right. Right. But you did note that on that, that there were about four houses on that site that were occupied, is that -? And did you see how close those houses were to the Keakealaniwahine site? Did you go to the mauka side of the property? TAKAMINE:We've -, I didn't actually -. We drove through and we went -. I didn't walk all of that area. VITOUSEK:Okay. And do you have any personal knowledge of anyone who conducts traditional or cultural practices on the site where the Snug Harbor Motel was located? TAKAMINE:I believe that -. I don't know personally of anybody that does it, but when I go, I always do my -, wherever I go to a sacred site, we do cultural practices. We do oli, we do ho`okupu, we present. VITOUSEK:Okay. TAKAMINE:So when you're asking do I know of anybody, when I go, VITOUSEK:Okay. Fair enough. 74 TAKAMINE:So I'm assuming that other people that access, that are cultural practitioners will go and will do, and that's part of the education process, I think, and the genealogical process that we need to look in and find those people that are knowledgeable about that site. VITOUSEK:Yeah. I guess the question I had was whether you were aware of, and IÓm asking again with respect to this specific area that's being proposed for the project, whether you are aware of any particular cultural or historical or natural resources in the property which are, on this property which are the subject of exercising Native Hawaiian customary or traditional rights. TAKAMINE:The site has been so destroyed. I mean a lot of the original and what was there before has been destroyed. I would hope that we would have an opportunity to restore and actually put back and bring back those cultural practices. I think in 1993, you know, a development plan was prepared for -, and this process has gone on for several years, for acquiring the sites around Keakealaniwahine, to include in that land a development plan that would be conducive to restoring Hawaiian cultural practices in this area. And so part of that would be the process, I would hope. VITOUSEK:Yeah. And when you were referring to the cultural practices, I believe you were asked a question by Ms. David about cultural practices on the Keakealaniwahine area. You referred to, I think, genealogical training and also to the training of whine for assuming their kuleanas, or assuming their places within society. Those are activities which you see as being conducted in the future, isn't that correct? TAKAMINE:It's also activity that's conducted presently but not there. VITOUSEK:At that site? TAKAMINE:Yes. VITOUSEK:Okay. So with respect to the Keakealaniwahine Complex, those are things which you hope it will become, is that -, it will become a place where that can be done, is that correct? TAKAMINE:I hope that it's a place that we can do this as part of that, that can attract. VITOUSEK:Sure. TAKAMINE:It's happening. We're doing some of that training here, just not all of it that can be done wherever we are. There are some thing that have, cannot be, there are some practices that cannot be done in a cafeteria. 75 VITOUSEK:Okay. And then, you know, what's your understanding no managing or responsible entity is for both the Keakealaniwahine area and the Keolonhihi complex? Who owns those properties now? TAKAMINE:I believe that part of it is State and part of it is private. VITOUSEK:Okay. And with respect to the parts that are owned by the State, when you've gone there, have you seen any evidence of any actions which the State has taken on the land to further the objectives that you're talking about? TAKAMINE:No. VITOUSEK:Okay. And so with respect to the period of time that the State has been, the State of Hawai`i has been the responsible party, have you seen the State use any resources in order to respect or preserve any of the cultural traditions of -? TAKAMINE:No. VITOUSEK:In those areas? TAKAMINE:No. VITOUSEK:Okay. That's all the questions I have. Thank you very GIFFIN:Thank you. Mikahala. M.ROY:Thank you. Thank you, Aunty Vicky, for your presence and and your answers. Teacher that you are, has information about this general area, Kaluaokalani, been available to students in Hawai`i? TAKAMINE:Not in the extent that we want that information to get out. So we have archival records of Keakealaniwahine and Kaumalumalu in those area, and I think that a comprehensive curriculum can be developed in order to educate our students on the importance of the site. M.ROY:Thank you. Do you have to be at the site in order to practice a relationship in spirit with this place? TAKAMINE:I might want to ask you, you know, okay, for example, n no. You do not have to be here to know that Mauna Kea is sacred any more -, and the reason, and I have come to this conclusion. I went to Washington, D.C. a couple of years ago, and the Lincoln Memorial, we went to visit, and everybody went up to visit the Lincoln Memorial. And I came home and I said, you know what? That's a historically significant sacred site to many Americans, much like Mauna Kea is to me. And so when I was asked, I did a -, I was asked to interview for a cultural impact statement, and the attorney, the researcher says, "Well, how many times do you go there? How many times a year do you go there? 76 go there?" And I said, "Well, I really go, I went to Mauna Kea twice and I did my oli and my chanting and my pule." He said, "So you only went twice?" And I thought to myself, how many Americans visit the Lincoln Memorial, is it culturally, historically significantly important to Americans? Does it stand for a principle and a value? Is it sacred? And what do you do when you go there? You go on the steps and you take pictures. And is that a traditional customary practice? Yes. But if I was to bulldoze down the Lincoln Memorial and put up a shopping mall or a rock restaurant or a bar, would I have the anger of all Americans screaming at me because it's historically important, historically significant? It's a sacred site. And how many times do you visit, and when was the did you do? And are these questions relevant to my cultural practice, or is that place sacred because it is sacred? And for those that believe in Christianity, when was the last time you went to Jerusalem? When was the last time you went to the wall? Or if you are Buddhist, when was the last time you went back to some important site? And how man annually? And what do you do when you go there? So it's important to me that that place is sacred. It may not be important to other Americans or other residents that live here in Hawai`i. But you have sacred sites that are important to you, and what do you do when you go there? Does that answer your questio M.ROY:Very much so. Thank you. TAKAMINE:I guess the answer is do you have to live there and visit there for it to be sacred? M.ROY:Well, I asked the question with reference to the ahupua`a gathering rights in the ahupua`a that only those of the ahupua`a may access. TAKAMINE:Tap into. M.ROY:But this question was aimed for someone who lives on another island. To you, it clearly, what you've just answered is that you have, you practice your relationship with this site. TAKAMINE:With a concept of you can only gather in your own, in the ahupua`a that you live in or that you're a resident in is irrelevant. Everybody knows that on O`ahu you cannot catch he`e. I live in `Aiea, okay. Makai of me is Pearl Harbor. Am I going to fish in Harbor? Is there `opihi on the Island of O`ahu? Where do I go catch -, for squidding? I have to go on the other side, Kahuku side, you know, the windward side of the Island to go catching, to go -, there are squid holes over there, but there's none on this side. There are maile in every valley, in the back of every mountain; there is none. So the resources grow where the resources grow. Can you ku`i `opihi off, you know, off ever pier? No, do M.ROY:I'd like to stand and bring reference to a question on the map. One moment. Aunty Vicky, with your vast background as one who is a practitioner, indeed, how 77 important is it to a Hawaiian child for his identify, for that child's wellbeing as he grows, how important is identity as a Hawaiian? TAKAMINE:I guess I was fortunate that I knew who I was, I knew wpuna were, I knew my genealogy, I knew who I descended from. Other Hawaiians do not have that genealogy, they don't have their kpuna to raise them. It is common knowledge that it takes more than parents to raise a child, it takes an entire community. Today we leave the education of the child to the teacher, send them to school for eight hours and then bring them back and expect them to be supported by their family, it's not. Oftentimes when they are separated from their ancestral home, they have no idea who they are. They don't know what their cultural values are, what their principle values are, and if that's not shared with them, then they're lost children. Then they have no principles and values. So how important is it? I don't know that I'm answering your question. To me, it's like it's crucial. M.ROY:Thank you. One last question. This is a map that I -, the TMK that we have all been given. I just blew it up and brought this here. I'd like to admit it later with everyone's permission. This shows the development area here and Aunty Vicky, in prior testimony, Kona elders, we've been so fortunate that they have consistently given evidence based on our tutus here, Tutu Nluahine Ka`opua. Thanks to these wealth, people with this background, in this proceeding, we are actually bringing new information, based on such accounts that the evidence of the area of Kaluaokalani is vast and that Keakealaniwahine Complex, Keolonhihi are but part of what was once entirely a large area that has yet to be ascertained in Hawaiian mind and in Hawaiian evidence for the State and for the world. Kaluaokalani is translated as the second heaven. And so the Applicant's property, it is being asked whether it is indeed sacred. If I share with you just this much, based on evidence that's been presented at these hearings, would you say that this is part of a sacred complex? TAKAMINE:Absolutely. I mean that's part of the entire-, this entire area here would be included in what was Keakealaniwahine's, in the ahupua`a concept of from mountains to the ocean, so everything is included. I mean, our kuleana lies not just what's makai but what's mauka, not Î, from the rising sun to the setting sun. And so when we look at this entire area, you know, from here, looking at this bay area, everything is included in this area. Just the shoreline can tell you that. And then going up, when you're looking up mauka, going up to the ridgelines, it's all inclusive. M.ROY:Thank you very much. No further questions. GIFFIN:Thank you. Hearings Officers, questions? Hannah? SPRINGER:Aloha kua. TAKAMINE:Aloha. 78 SPRINGER:I was interested in your use of the Lincoln Memorial as an example of a sacred site to some. When you approach that site, where does the sacredness begin, at the walls of the monument or someplace away from the walls of the monument TAKAMINE:I think when you look at the monument, you can already sense it before you get there, its height, its stature, it's imposing, the steps leading up to the Lincoln Memorial. And so that kind of reached out to me as being a place where people would consider that a sacred site. SPRINGER:So when you consider sacred sites of Hawai`i, if we're considering the Pkiha, for example, which is a structure which is close to the boundary of the proposed development, does that site begin at the walls of the Pkiha or at some distance from the walls? TAKAMINE:I think it extends out from there. SPRINGER:Thank you. Earlier on, I had a query of the landscape architect, I'm sorry, of the architect for the proposed project regarding the fall of a shadow from the proposed development onto the adjacent property. Is that relevant to the sacredness of the site? TAKAMINE:Yes. SPRINGER:Similarly, should we be attentive to the fall of the shadow of the Pkiha or other structures on the property? TAKAMINE:Yes. SPRINGER:Thank you. GIFFIN:Mr. Yuen. Ms. O'Toole. O'TOOLE:Yes. Thank you. I wanted to focus on some things you s impact and you mentioned a buffer and so forth. Have you given thought to if this development is approved in some form what could be done to mitigate some of TAKAMINE:No. O'TOOLE:You see happening? You have not? TAKAMINE:But in my mind -. O'TOOLE:When you say -. TAKAMINE:That it shouldn't be developed. O'TOOLE:So when you talk about a buffer. 79 TAKAMINE:I'm talking about -. O'TOOLE:You don't see it applicable in this case? TAKAMINE:No, because I think the buffer needs to be where enough of a space between the sacred site and any development, not build a condominium and then put a tree up to shade it from -, that's not a buffer. Our chanting, our drumming extends beyond that. I can just imagine. You know, you can't do these activities at midnight be condo people who live here. Or you can't come in before sunrise when we know that there are rituals that were performed at all hours of the night and it depends on the function. So can these drums be heard? Will it affect the condominiums? Perhaps. Will we be then subject to restricting our practices to only daytime hours between 10:00 and 2:00 like Kne`kaiwe Heiau in Makaha Valley? Access is limited. It's a gated community; you can only go in there between 10:00 and 2:00. I have a big problem with that; that's on my list. O'TOOLE:Well, what about education of the purchasers, which you mentioned, I think? TAKAMINE:Education of the purchasers are crucial to understanding what they're going to be dealing with. And, you know, people come and they say, yeah, they understand and yeah, they agree. They know that this land is lease. They know that the apartment is a leasehold condominium. And what happens? What happens? What's happening to our leasehold? People who buy condos, they have signed a contract and said it was lease, they know it's lease land, and they're suing to drive it to fee simple, taking that land right out from under us. They signed an agreement. They were educated. So the way to mitigate that is O'TOOLE:Okay. Thank you. GIFFIN:Mr. Togashi, did you have any questions? TOGASHI:I do have maybe one or two. In the course of your testi mentioned the word sacred quite often, yeah, and I believe you pointed out the Keakealaniwahine-Keolonhihi Complex as one sacred. You also pointed out Mauna Kea as being another sacred site. I know it's in your testimony, you have ancestral ties to Honoka`a, to Waimea. I was wondering if you perhaps mention if there are any other sacred sites on this -, on the Big Island aside from these two that you mentioned. I realize, you know, you have beyond just, you know, like a heiau, which I realize is a very sacred, but can you point out other examples of what you would define as a site which is probably more sacred than others, such as Mauna Kea and Keakealaniwahine? TAKAMINE:Are you asking for the whole list of -? TOGASHI:Perhaps maybe -. TAKAMINE:Ka` is sacred. Yeah, there is, I mean we -, that's a big question. And we look at the sacredness -, we look at Ka`, down at South Point, as a sacred site, sacred not only to 80 us but to other Polynesians. It was the voyaging -, the canoes that went to and from. And when they -, when Polynesians visit the site, they wail and they cry because that's their ancestral lineage to this land. So I mean there are lots and lots of sites that are sacred for many different reasons, so I could if you want to be here for the next 24 hours. TOGASHI:Yeah, I was just curious. Perhaps you could point a number on this Island which are beyond, you know, just a normal -. TAKAMINE:There are ko`a shrines that are sacred to individual families because it is their sacred fishing grounds. TOGASHI:I realize that, yeah. TAKAMINE:Yeah, so you, I mean, Keali`iokoloa, who's my kpuna -. TOGASHI:For example, like my family's burial plot. That, to me, TAKAMINE:There's -. TOGASHI:But I was just wondering if there are -. TAKAMINE:Stuff on this property right here that's sacred, Keauhou. Kamehameha, where Kamehameha Hotel is. TOGASHI:And I think you probably answered it, but I know I've asked of I think it was Mr. Roy or perhaps another testifier about the definition of mana, and in your testimony you mentioned that kpuna selected certain locations such as Keakealaniwahine because of the mana. TAKAMINE:Let me qualify that. Not just kpuna, they're khuna. And we call that whole generation kpuna. So, yeah, they are special people that selected those sites, not just -, you just -, not just anybody. There were rituals to go into selecting sites for construction of heiau and ali`i residences, especially, because of the mana of that place, but they were specially trained khuna who looked at the way the sun rose or the sun set or the stars rose and the moon rising and the sun setting, where the water flowed, where the -, what kind of rain came through that area, what kind of wind came through that area. All of the signs had to be conducive to development for a sacred site, so it just wasn't just any site was sacred, not the extent that Keakealaniwahine and Kaumalumalu and all of the sites that are associated with this complex are. TOGASHI:I think I know your answer to my question, but should this development be approved by the Planning Commission, would a landscaping buffer such as being proposed on the map right there, the right at the top is the proposed landscaping buffer next to the mauka boundary. If you look at all those -, there are six big green circles, that's the landscaping being proposed. Right there. 81 TAKAMINE:Yeah, I see it. TOGASHI:You see it? Anyway, would the mana still be intact even with the landscaping buffer in place? TAKAMINE:You are asking me if a buffer would reduce the mana of TOGASHI:Would it -? TAKAMINE:It would not reduce -. TOGASHI:Keep intact the mana? TAKAMINE:It would not reduce the mana, the emphasization is power, the sacredness of that place. It would mitigate our activities. TOGASHI:Practice. TAKAMINE:And our practices. TOGASHI:Because I know you mentioned that some of your younger - TAKAMINE:That place is still sacred. TOGASHI:Students. TAKAMINE:It is how much reduced is that sacredness is going to -. You know, that's a hard question for me to answer. I cannot see it having the same "mana" but it has the same mana. How do you explain that to some -? TOGASHI:I don't know. You are the -. TAKAMINE:It's the land and that location and everything about that land and that location that has the mana. TOGASHI:But if this project were to be -. TAKAMINE:But this project, you know, if it was moved five miles down the road would be great, you know. TOGASHI:But if this project as proposed is let's say approved, the buffer is put in place as the -, it would definitely -, as being proposed, the landscaping buffer, would it mitigate some of your concerns over the practicing? Because you mentioned, you know, some of your girls are, you know, very shame about practicing hula where there are observers, you know, witnessing their practices, and you pointed out that perhaps even a buffer would -. 82 TAKAMINE:I'm looking at distance as a buffer, not a tree. TOGASHI:A landscaping. TAKAMINE:Yeah, not landscaping. That's the kind of buffer that I'm looking at. TOGASHI:I see. TAKAMINE:I'm looking at distance. TOGASHI:Okay. Thank you very much for your answers. TAKAMINE:Mahalo. GIFFIN:Thank you. Any other questions? Mr. Vitousek. VITOUSEK:Yeah, thank you. Have you been on the Keakealaniwahine property? TAKAMINE:Uh huh. VITOUSEK:And can you describe what type of trees are on that property now? Aren't there very -, quite a few very large kiawe trees growing on that -? TAKAMINE:Which would -. VITOUSEK:That Keakealani? TAKAMINE:Which would have to be removed. VITOUSEK:Yeah. And aren't those trees actually growing up, in m growing up through the stone walls on the sites? TAKAMINE:Yes, they are. VITOUSEK:And down on the Keolonhihi property, isn't it correct that there are some very large banyan trees growing down there? TAKAMINE:Which would need to be removed. VITOUSEK:And those are also growing up through the rock walls and other remnants of cultural sites there, isn't that correct? TAKAMINE:That's correct. VITOUSEK:And there are also, on Keolonhihi, there are also piuma and other large kiawe's growing through that, isn't that correct? 83 TAKAMINE:Which needs to be removed. VITOUSEK:And aren't those trees also casting their shadows on all of the sites there? TAKAMINE:Yes, they are. VITOUSEK:And -. TAKAMINE:And they all have to be removed. VITOUSEK:Okay. As -, in your knowledge as -. TAKAMINE:These are not trees that are conducive to the practice of the traditional customary practices. VITOUSEK:No, I understand that. TAKAMINE:Yeah. VITOUSEK:I really do understand that point. But I guess my question is in terms of the people and entities that care about these properties, that are to preserve these properties, wouldn't removing those trees and otherwise taking actions to stop the actual destruction of the sites show a -, be a more significant way of caring for the mana of the sites rather than preventing a development of a already bulldozed property nearby? TAKAMINE:Yes, but they also require money for all of that. VITOUSEK:And so the reason that doing of -. So -. TAKAMINE:And the responsibility for that, for the care of those places, are those not on State property? VITOUSEK:I'm sorry? TAKAMINE:Are those areas not on State property? Does the State have that kuleana to mlama those places? VITOUSEK:Well, I think the places where we're talking about with those are State property, yeah? TAKAMINE:So it is the State's responsibility then as a curator, or because no curator has been appointed and no advisory council is in place, to take over that responsibility to mlama those areas. 84 VITOUSEK:Have you, in furtherance of your effort to protect these areas, what have you done to encourage the State to live up to its responsibilities in terms of preventing the actual destruction of these sites? TAKAMINE:Right. Well, I believe that there is a management plan that was sent to the State Historic Preservation Division with recommendations for an advisory council to be set up, and it's with names and people that have been suggested. Now where that is in the State process, I don't know. VITOUSEK:Yeah. Well, I have that -. TAKAMINE:But I know that in my efforts to get the curatorship for Kea`wa Heiau, it's taking us two years to just get the curatorship. And now we have to submit the management plans, and it's not easy working with the State. VITOUSEK:Yeah. Okay. But in terms of have you gone and, yourse testified or taken other actions to encourage the State to live up to its responsibilities with respect to these properties which it owns? TAKAMINE:I haven't myself gone to testify. I believe there's an organization and a group of people that have, and they have not -, I mean if Aunty Pua submitted that report and she hasn't gotten anywhere with the State, I don't know who can. I my end, but those -. VITOUSEK:Well, I guess -. TAKAMINE:Yeah. VITOUSEK:I guess just -, I just want -. TAKAMINE:I could kkua. VITOUSEK:To make clear that in terms of the understanding that we, that you understood that what is actually, that we -, understood the actual condition of these sacred sites is. TAKAMINE:Right. And that's -. VITOUSEK:And that the actual condition is -. TAKAMINE:The act -. VITOUSEK:That they are not well taken care of. TAKAMINE:Is if deterioration. 85 VITOUSEK:Yes. TAKAMINE:Right. And that's because it's been in the State hands for so long and no one has been able to wrest that from the State and take that curatorship. We've just been able to do it, and actually I've been working on taking the curatorship wi for 10 years. VITOUSEK:Right. Okay. I just wanted to -. TAKAMINE:Ten years, yeah. VITOUSEK:Be clear that what we're saying is when we say that maybe Mr. Blasman shouldn't be able to develop his property because its shadow might fall on Keakealaniwahine, right now that shadow would fall on a number of kiawe trees that are ripping apart the actual site, isn't that correct? TAKAMINE:That's correct. And all of those things have to be taken into context, as well. VITOUSEK:Okay. Thank you. No further questions. GIFFIN:Okay. Hearings Officers? Pat? O'TOOLE:Yeah, I'd like to ask the witness if there are areas that are not sacred. TAKAMINE:In the complex? O'TOOLE:No, any -, the whole Island. TAKAMINE:The whole Island? O'TOOLE:Right. TAKAMINE:I would suggest that all of our land is sacred. Some are more sacred than others. O'TOOLE:Okay. TAKAMINE:Because we have ancestral -. Someone, everyone has ancestral ties to the land, everyone of us. The islands are born out of water. We are taught that they are born from Papa and Wkea , the gods gave birth to the Islands. The land came before second to the land and the creatures and the foliage that grows on this land. So all of the land is sacred. O'TOOLE:Okay. TAKAMINE:Other areas are even more sacred than others. 86 O'TOOLE:So you couldn't, you couldn't say that any spot was not sacred? TAKAMINE:I would not say that any spot was not sacred. O'TOOLE:Okay. Thank you. TAKAMINE:And that's because I was born -, that's who I am, I'm born of this land. Others will say that they are not sacred because they're not born from here. They don't have those ancestral ties and they don't have the history. They don't have the genealogy. They come from somewhere else. And people who are not born from here, most of them, don't have any culture. They don't have any cultural or historical ties to anything. O'TOOLE: Okay. Thank you. GIFFIN:Mikahala. M.ROY:One last question, just to tie up why I asked the question on a child's identity, Aunty Vicky. In your mind, as a kumu hula and deep resource that you are, how important is a Hawaiian child's understanding one day of his origin of spirituality to his identity? And -. Two questions. And do places like Keakealaniwahine residences whole complex area lend to the future construction of our Hawaiian child's identity TAKAMINE:I had a summer session, teachers cohort, this summer, for teachers who are teaching primarily Hawaiian children or Hawaiian language immersion schools or charter schools, teachers that will be going into districts that have high concentration of Native Hawaiian. And it's a two-year program, and we brought them here brought the summer session here, we camped, they spent a few days in Waipi`o Valley. We went to Kawaihae. We sailed the Makali`i. We watched the stars. We went to Punalu`u, we went to the volcano, we went to Hilo to visit with other Hawaiian language immersion school here, primarily to teach these teachers of our Hawaiian children how to connect our children to the land and to the place that they live in, to teach them the principles in the valleys of mlama `ina and aloha `ina, to give them the tools that they can use to make that connection to children who have been disenfranchised and separated from their culture and their land and their `ina. When I look at the responsibility that we have for raising our children in a western society that is constantly changing and all of the many different thoughts and ideas that come into our children through the Internet and through the television and through the radio, that they've lost their connection to the smell of the rain and the feel of the wind and the taste of the ocean and what those things can teach you. The Hawaiians were nature worshipers, and they understand the shift and the change of the wind. They could read the signs in the sky. Now we have a weatherman who does that for us. What is lost then with the pencil and the introduced writing and reading. We have computers. What was lost? The art of memorization. Hawaiians were gifted at the art of memorization. They could memorize 2,000 lines of a genealogical chant and recite it to you because they were gifted and trained and learned how to do that. It took us eight chanters and six hours to be able to do this, in 2000, the year 2000, 87 because we've lost that, because we learned how to write and how to read. Our language, a whole generation, 10 children, no language. Their mother fluent, but the 10 children, not one. So I think I digressed from your question a little bit. M.ROY:I think that answered even more comprehensively. But thank you, Aunty. TAKAMINE:Mahalo. M.ROY:Thank you. GIFFIN:Thank you. Any other questions? Thank you very much f Maile. M.ROY:Excuse me, Madam Chair? GIFFIN:Yes. M.ROY:Can we take a restroom break? Just really quick? GIFFIN:I have 3:30. M.ROY:Yeah. GIFFIN:How about five minutes, 3:35, so that we can try to get back schedule. RECESSEDThe meeting recessed at 3:30 p.m. RECONVENEDThe meeting reconvened at 3:35 p.m. GIFFIN:I'd like to call this continued contested case hearing back to order. The Applicant is Wayne Blasman. The application is for a Special Management Area Use Permit to allow the development of a 13-unit condominium project and related improvements. The number is SMA 02-03. Maile. DAVID:Thank you. At this time, I'd like to call Mr. Angel Pilago to testify. GIFFIN:Will you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? PILAGO:I so affirm. GIFFIN:Thank you. Will you please state your name and your resi the microphone. PILAGO:My name is K. Angel Pilago. My residence is 73-1224 Ka`i I live in Kailua-Kona. 88 GIFFIN:Thank you. DAVID:Aloha and mahalo, Angel, for being here with us today. PILAGO:Aloha. DAVID:We've heard prior testimony describing some historical legal events that trace the affirmation of Native Hawaiian rights over many years. Could you explain from a Native Hawaiian perspective your understanding of the principles as set forth by Kamehameha III in the 1847 to 1850 Land Commission? PILAGO:It's my understanding, and this was only from layman's point of view, that Kauikeaouli or Kamehameha III was under a lot of political intrigue. It was a time in Hawaiian history where the influences from America and other foreign countries were very prevalent in Hawai`i. He saw the changes in our people coming, and yet he wanted to preserve those that valued the traditional ways and he wanted to assure that we were accorded rights to continue with those things we believed in and with our lifestyles and those things that we saw that continued our family lineages. DAVID:Thank you. Did this -, did the Land Commission also attempt to resolve some conflicts or injustices, in your opinion? PILAGO:I think that was the intent. Many times, laws have good intentions but it didn't fully answer the situational circumstances that our people were caught in. Again, I believe that Kauikeaouli had very sincerely wanted to protect his people and to preserve their rights to traditional and customary practices. I saw him bringing about these things by connecting to the natural resources and our rights to fish and to gather and our rights to water and those usages. DAVID:Thank you. The next event in history is the 1898 Joint Resolution of Annexation which was spoken about earlier. How did this resolution attempt to resolve the existing conflicts or injustices at that period of time? PILAGO:That's a hard question for me because I don't agree with historical events where, you know, the -. If you asked me the effects of the resolution to annex Hawai`i and what were, you know, my descriptions of it, I get very uncomfortable. What I need to do is bring it back down to this level, I think, and make it more manageable for me in that even in something as negative as a resolution to annex the Hawaiian nation or the Hawaiian kingdom, even something of that magnitude, they still had attached to it certain provisions and clauses that carried through the laws from Kauikeaouli down into that joint resolution. It stated clearly that the rights of the native peoples, the indigenous Hawaiians, must be protected, and those resources that are allied for the perpetuation of those resources must be protected. Now I'm going to have to ask a question, by whom? And that's where I see even in a time long ago that that has direct correlation and relationship to your responsibilities here today. So I'm thinking what you're doing is telling me is there a historical connection for these guys to do their job? 89 DAVID:That's right. PILAGO:Yes, there is. If we're only starting from Kauikeaouli to the annexation resolution to the present time, yes. DAVID:Thank you. Then in 1900, the Organic Act of 1900, that fu the events that have occurred following the joint resolution. What were any of the conflicts or injustices during that period? PILAGO:Well, everybody knows the Organic Act of that time transferred Hawai`i from being an ex-kingdom into a territory so that the grip by the Americans became stronger. So we need to be careful. So as there is a growth of principles and laws from that time, the 1840s to present, the -, we see that -, we see again that the repeating of provisions to protect the native people. So even though it may have been a dark time for our people, there was a lot of thought that there needs to be provisions and there needs to be systems to manage the resources for our people. We needed protection because as all of us know, going through a very dark time with serious crisis in degradation to our families and our culture. consciousness that said we need to protect the host culture and the native culture of these lands, and they tried to carry forth with those kinds of fairly altruistic beliefs. DAVID:And in a sense then, how did the Hawaiian Homes, was the H Homes Commission Act also another effort in that regard? VITOUSEK:Excuse me, Madam Chair? If I can again ask for a line of objection to the questioning? I mean basically the line of questioning is asking a lay witness to interpret the law and explain to the Commission why certain laws are applicable to the Commission's duty, and just as that's usually not an appropriate subject for expert testimony from a lawyer, which is the objection that I was making with Mr. Forman, it is likewise not a relevant area of testimony by a lay person. And so I, you know, I'm trying not to, you know, disrupt the presentation of appropriate evidence, but I do need to make this objection for the record and I'd like to have a continued objection to any questions asking the witness to explain or interpret the meaning of laws or how those laws impact on the Commission's duties and responsibilities relative to this application. GIFFIN:Maile, the basis of your questions, I think have been well established. Would you like to please go on trying to connect relevancy? DAVID:Thank you. GIFFIN:Thank you. DAVID:Angel, continuing, efforts to confer, to reaffirm Native Hawaiian rights that have gone on in for years, have they been able to meaningfully protect our cultural practices? In arenas such as this, have that been successful? 90 PILAGO:No. I have been here for a couple hours, and I've already seen the very powerful effort to squelch our participation in the process and to limit our discussion. As lay person as I am, I operate out of those sets of experiences and those resources that I have. So in my limited form and limited fashion, I feel I've been successful front of this very same Planning Commission, and we were discussing the very same issues, and my participation and my testimony was also squelched. I followed that case together with Mr. Vitousek all the way to the Hawai`i State Supreme Court and we prevailed. What happened then? We came all the way back to you again, and one of the decisions, or four important components of that Kohanaiki PASH decision was that agencies, permitting agencies, administrative agencies have a fiduciary responsibility to protect cultural practices and cultural resources. I'm just so surprised that in all this time, we're rehashing the same questions all over again. I'm not trying to interpret to you what I see as the law, but what I am telling you is my personal experiences out of working with people who are entrusted and empowered to interpret the law for the common good and for all the people, and I have a dual task because I come here and I have to be conscious of my genealogical ties and affiliation als people giving those kinds of opinions, again, we're squelched and it's made like it's not important. But I assure you, their genealogical connection and mine also are critically important to any deliberation and any discussion. DAVID:Thank you. And, thereafter, the Kohanaiki and PASH decision, you also intervened, you were also a party in the Ka Pa`akai case, and what was the effect of that following PASH? PILAGO:The history of court cases that we explored have brought us up to a certain point of time, so the Kohanaiki PASH decision occurred in 1995. Once we had a certain set of results that come out of it, we found we didn't have a way to apply it, so we had difficulty. So we're caught in a quandary in that we're reached a certain judicial point in history, in Hawaiian history, but we could not apply it properly. So the issue of Ka Pa`akai O Ka `ina over at Four Seasons presented us that opportunity. In that instance, the Land Use Commission failed in its responsibility to identify Hawaiian rights and measure and determine its impact and take positional stances to protect those resources. So the resources are integrally tied to the practice. If you don't have resources, you cannot practice on those basis there. So the Land Use Commission just about gave up their rights for decision making and let the developer do it for them. That was an injustice and that was wrong for them to do. And the question had to be brought up by different people to remind them again that these laws have historical precedent and no matter what time and place, you are empowered, you have a responsibility and an obligation to protect native resources. Part of the Kohanaiki decision, one part is that it elevated cultural practitioners, indigenous Hawaiian cultural practitioners in the same footing as western fee simple rights, so the there was no give or take one or the other. What that did, is it brought commissions such as this commission here to begin to determine and weigh the plus/minuses of both activities at the same time. You cannot subvert one for the other. 91 You cannot give one for the other. They must be made compatible, if you will. So that was one of the things that came out of the Kohanaiki decision. But Ka Pa`akai was the issue that brought this because, again, the opportunity before the Land Use Commission presented us that situation. DAVID:Thank you. And despite this, these past efforts and achievements, why is it that we still find ourselves yet in another adversarial role here to advocate protection? PILAGO:Well, sometimes we like to believe that this is a very clean and positive democratic process that we're into, but I fail to see that in my couple hours here this afternoon because I continually see the last two witnesses, when they begin to talk of cultural practices or begin to talk of their knowledges of cultural practices, and they, you know, go ahead and make it meaningless or even trivial. And for us, these things are -, connections are critically important because I heard the question earlier why is this child important? Every child is important because we must establish connections that give us a sense of time and place. If we lose that, we lose the reason for being. So that's critically important. And we cannot set these kinds of statements or this kinds of relational and attitudinal things if we aren't going to discuss laws. I came here prepared to talk about some laws and cases, but I'm just a lay person, not an expert. Even experts get blown out of the water, so it makes your case really difficult. DAVID:Yes, I understand what you're saying. In your opinion, what further injustices would be imposed upon the thousands of Native Hawaiians who do have genealogical and spiritual and cultural ties to Keakealaniwahine, Keolonhihi, and Kaumalumalu should a proposal like this be permitted without the proper assessments that is necessary? PILAGO:Unfortunately, for our people, we keep on experience dark times, and part of our dark times is what Randy and Vicky discussed in that, gee, there are kiawe trees there, the place is getting all messed up and, you know, it's losing its mana, I guess, some people were saying. It's really funny, because when we applied for the perm place, they denied the permit. So how can we clean up the place, even if we didn't make the -? The point is why fault us because the caretakership was placed in somebody else's hands and when we offered to help, they said no thank you. And then we get faulted for it in the discussion here. That's not correct. DAVID:And why, in your opinion, do the rights of Native Hawaiians that are adversely affected or impacted by such a proposal that we are here today considering, extend far beyond just protecting Keakealaniwahine? PILAGO:From where I am, again. DAVID:Yes, from your perspective. PILAGO:It affects me because any loss of our resources, very extremely precious and dear and irreparable, so we can never get them back again. But from my experience, what is very important is that any loss that our people suffer when we come before boards and bodies to 92 state our case and state our perception, makes it harder for future generations to recapture and reconnect with those kinds of activities again. I'm going to go back. There was an earlier, there was a question or a qualification by Vicky Takamine, and then she brought down that, or she mentioned that of certain actions that were anti-Hawaiian within our own Legislature, and so we had to make a very forceful and timely move to eliminate that threat to our people and our beliefs. Well, continual assaults like that continual losses of our native rights and our native entitlements diminished our resources, natural in this case, but oftentimes it diminishes our will to continue. All it means is we just have to be stronger. I'm not saying that's an easy thing to do. But we always have to be diligent all the time. Why are we continually assaulted? Why are our rights continually attacked? And why are entitlements continually diminished? And no culture should be subjected to those sort of injustices. When you have a history of these kinds of degradation these kinds of destruction to our culture, then you begin to suffer the social ills, and that's very apparent now. Unless we begin to preserve these places that are important and this is important that practitioners and the practices that are associated with those places, our people will be suffering continual difficulties in our lives in just maintaining our lifestyles on one hand and our families on the other. That's why it's important that we conti DAVID:Thank you. In addition to our rights as Native Hawaiians, in your opinion, what other rights do we possess and what other rights are we guaranteed? PILAGO:There are certain innate rights that everyone have, regardless of culture, regardless of culture. I think the Americans said it well when they began to phrase things out of their formation, during their formative times to establish their government. They came out with very enlightening terms and words, yeah. They come out with words like civil rights. They come out with terms like the pursuit of life, the pursuit of liberty, and the pursuit of happiness. But these are universal truths. It's just that Americans had the way of phrasing those kinds of things so very timely and so very powerfully. Those are the same inalienable rights that are quoted to us, too, Hawaiian or not. We have to struggle to remind people that we deserve the courtesy, we are here, and we wish to work together with different people, we wish to participate in this process, and have our contributions considered positively. DAVID:And with respect to rights, what about Mr. Blasman's rights when he purchased this property? PILAGO:Who? DAVID:Mr. Blasman, the owner of the property. What about his rights? What's your opinion on that? PILAGO:Again, he has the same rights as us, yeah. If I buy a parcel of land and then -. I'm set with the same encumbrances, right? DAVID:Right. 93 PILAGO:Okay. He had a parcel of land. If it has certain important things on it, I'm encumbered by that, right, so I have to operate by that, so does my family. We all have to honor this document. Well, this owner is also encumbered, too. I mea comes attached with certain encumbrances that are allied to it, so that's one. Number two, is, you know, I hear questions like have you been there? What are your practice? What is this guy's practice? Why doesn't he come out with his genealogy? Why is it my people have to come out with genealogy? All this time, a new guy come recite his genealogy, his associatedness to these places. I'm being asked what are your cultural practices associated with this site? Well, I contend that it's up to that developer to answer those questions. Don't come here and challenge me with my nickels. I can give you genealogy. I can give my connection to that place. But if he asks me the same qu human level, I can ask him his genealogy, also. That is culturally appropriate to my people. He has the same rights as I do. If he's encumbered, so be it. If he chooses to go ahead and begin forcing his way through this Commission, lots of other developers have been through the same processes in the past. All they did was drag us through the mud, go through years of litigation, and they went broke. We suffered the same difficulties and the same problems because we went through a lot of heartache, a lot of hurt, and we went broke, too. So the power of this Commission is it is very complimentary and no disrespect, elementary level, we should deal with this here because the decision is yours, it' was here a little while ago, it rests with you. The laws are there, the provisions are there, and throughout history, they've been, all of these provisions and reminders and reaffirmations that you must meet your fiduciary responsibilities. Should you fail, the responsibility would be on you as having a disservice to your duty, to your position, and to your community. I don't like to think that it would be forcing a repeat of other situations where people who intervene have to go through litigation all the time. I think our people have better character than that, and I think their voices should be heard and considered positively and should be included in all determinations because this is not a choose one over the other, but you must weigh the balance between both, so both come out ahead. Aren't you going to object, Randy, to -? I'm sorry for lecturing the Planning Commission. DAVID:Thank you. The last question. Is there anything else you would like to add to your testimony? PILAGO:No. Except that with all respect, and there are continuing reminders that reaffirm your position and your legal fiduciary responsibility to support the communities you represent, and that means to find a fair and equitable balance for the information that's set before you. Thank you. DAVID:Mahalo. GIFFIN:Randy. 94 VITOUSEK:Mr. Pilago, when you -, my recollection was when you testified before the Planning Commission in 1990 on the Nansay application for a Spec you testified about the types of uses that you engaged in on the Kohanaiki property. I believe you testified that you surfed and fished and that you visited the cultural sites and what not, isn't that correct? PILAGO:Correct. VITOUSEK:And wasn't that your basis for saying that you had standing as a Native Hawaiian to participate in the process and to be heard on the future of that land, isn't that correct? PILAGO:Yeah. VITOUSEK:Okay. And then in Ka Pa`akai, my recollection was there was testimony from other, from yourself, I guess, but also from other Native Hawaiians who testified about their cultural tradition in gathering salt on the papa lands down in Kalaeman, isn't that correct that that was one of the -? PILAGO:Correct. Yeah. VITOUSEK:Practices that was engaged in? And it was the exercise of that cultural practice on the land that gave rise to the right to participate in the Land Use proceeding -. PILAGO:Correct. VITOUSEK:Which -? Is that correct? PILAGO:Uh huh. VITOUSEK:Okay. And so what I'm trying to get a handle on, what I'm trying to get an understanding of is what the -, what are the cultural practices that take place on Mr. Blasman's property that -, and who engages in those practices? Who would be the people comparable to the people in PASH and Ka Pa`akai who can stand up and say I use this property for a certain traditional and cultural practice and, therefore, I have standing to participate in the process? And so what my interest is -, or just your own personal knowledge of that. PILAGO:My personal connection to Keakealani is distant, because Keakealani was a place for women, so it was held as very sacred for women, and they needed to undergo to prepare them to carry on the genealogy for our people. My connection is from the southwest corner, Kaumalumalu, which was a training for martial arts practitioners, or lua practitioners, so I represent a line of martial arts practitioners, lua practitioners, whose ancestors have practiced there. My genealogy, which I didn't see fit to recite here, is related to Kekhaopi`o. Kekhaopi`o was the foremost trainer of Kamehameha Paiea Nui the First, Kamehame martial arts instructor, and it was under his generalship that Kamehameha was able to unify the 95 archipelago. So I have a genealogical connection by koko, by blood, and a practicing connection through lua practices, especially through Kaumalumalu. Again, I'm not -. Out of respect and protocol, it was not my place to enter Keakealaniwahine because VITOUSEK:Okay. And then on that Kaumalumalu, is that where that -, is it the `Alohi Kai Subdivision now, is that -? PILAGO:Yeah, it was razed and built over. VITOUSEK:Yeah. And then -, well, just a understanding because you are connected to Kaumalumalu, was -, would it be culturally appropriate to build Kaumalumalu, to build -? PILAGO:No. VITOUSEK:A private residence? PILAGO:No. VITOUSEK:That would not be culturally appropriate? PILAGO:No, but the current setup for the place is -. I wish we had did more and would have been successful at not having the development happen there. I don't much see things, okay, after a development happens, then can we build a house, can we build a, you know, Kentucky Fried Chicken, and all of this. VITOUSEK:Yeah. PILAGO:I'm not trying to be facetious. But what I am trying to say is even though the site has changed even radically, the right to practice remains. So the right to practice remains, even though there may be obstructions there that prevent the practices to continue. That is in the law. VITOUSEK:Yeah. Well, I guess what I was trying to get at was not just the site itself, because I guess what we're talking about, it's like building a structure that adjoins that site. Would it be appropriate to have a residential structure that adjoins Kaumalumalu, for example? PILAGO:No. Well, no, in that I would not like that to happen as I would object to that because in the -, as we look at genealogy and continuity, we must look at contiguousness. So if we're looking at checkerboarding little bits and pieces like a puzzle, I think it would be a disservice to ourselves, but we have to look at the complexity and the wholeness of the situation. So even though Kaumalumalu is in the state it is, that doesn't make it correct, and we can never continue the wrongs that's been done there. I see our friend's proposal here as encroaching in a very important area. 96 VITOUSEK:Okay. And so even though it's a property that had been previously developed and previously used for residential purposes, to redevelop it you'd see as inappropriate, is that correct? PILAGO:I don't understand the question. VITOUSEK:Oh, the subject -. PILAGO:If it was -. VITOUSEK:The subject property has -, is, you know, been bulldozed and has there been four residences on the property since the 1940s, this Blasman property, the property we're talking about. PILAGO:Oh, okay. VITOUSEK:And so I guess what I was trying to ask was the -, you know, we're not talking about a development that is disturbing ground that's already -, that it's undisturbed before. In other words, we're talking about re -, essentially redevelopment of a property. PILAGO:Yeah. VITOUSEK:Does that make any difference? I mean if it's a property that's already been completely bulldozed and developed? PILAGO:Well, it does to me, Randy, because if we say those -, wh there in time were inappropriate and were wrong, because they were wrong, can we continue the wrongdoing, I don't think we should set planning precedent that way for our Island. I think we should be more responsible than that. If there are things that are done negatively that have inappropriate impacts on the community, it should cease and we shouldn't continue with its destructive nature and allow it to go on. So if we're talking about four houses, I'm sure what this guy is proposing is going to be much more insidious and destructive than four old houses from the '40s. VITOUSEK:Okay. Okay, so the -, in your experience, if a property has been developed and is being used for residential purposes, does that have an influence on the extent to which cultural practitioners would generally exercise their cultural practices on that property? PILAGO:To me, again, every encroachment is a diminishment of rights and practices. VITOUSEK:Okay. And then, again, what I'd like to ask is your -, what specific rights and practices we're talking about in the context of this proposed application. 97 PILAGO:I think that one of the rights that he has is to understand that when he buys a piece of property, it is encumbered. Therefore, it is limited to certain things that can happen there, and those kinds of rights. VITOUSEK:Okay. Well, what -? PILAGO:I take issue with questioning my rights and my practices. VITOUSEK:Well, I'm just -. Okay. So, Mr. Pilago, what you testified is you think there are encumbrances on the property, and IÓm just trying to ask you what you think those encumbrances are. I mean you're saying that he is limited by th PILAGO:Yeah. VITOUSEK:But I don't think I've heard you say what those encumbr particular property. PILAGO:Well, I don't think he should build anything up there if it would diminish the trust obligations of the Statehood Act, if you will, the Five F Act. I don't want anything to happen to diminish the inventory of the native trust resources. And for me, that's a first priority, the protection of the native resources. I care nothing for this friend of ours. But what I think, in an issue of right, he should be conscious of my rights, and issues like this should be taken on by you and other people who represent him because obviously he does and because he doesn't know, he should explore the different acts and he should look at the cultural impact statement and go look at the recent court cases. Why should I tell him things he's not going to believe anyway? He should be doing that. VITOUSEK: Yeah, but Mr. Pilago, if you came into my office and represent you in protecting your rights in this situation, the first thing I'd ask you is what rights am I protecting? What rights do you have that I am protecting? And that's the question that I'm trying to ask you now. PILAGO:Oh, thank you. The rights to space, that if in time our people do, in fact, restore that place because of its value of our belief in that place, that in time we will, in fact, do that. The right to one day restore this place to its proper setting so, in fact, we can continue with our practices. The practices are allied to the things, to the sites and activities associated with those sites. Those are the rights I would ask you to protect on our behalf. VITOUSEK:Okay. And would that include the right to ask owners of properties nearby these sites to either sell or give up or tear down their houses, is that -? PILAGO:Yes. VITOUSEK:Okay. Thank you. I don't have any more questions. GIFFIN:Mikahala. 98 M.ROY:Aloha, Angel. PILAGO:Aloha. M.ROY:Thank you. In your testimony, you have said that Mr. Blas encumbered. Wouldn't you, in your opinion, believe that this would show on a deed, title, report, title insurance, real estate disclosure from previous owner, in your knowledge of the way things progress when one buys property here? PILAGO:That -, maybe some of the things I question should we go but I would also think that if there are more important things to discuss than title itself, and that is what is correct and appropriate use that is constitutionally correct. M.ROY:If I were to tell you that in my research at the Planning Department I cannot find one permit that has ever been officially taken for this property, I would say and bring into the discussion that, in fact, has there been bulldozing, there has never been a permit issued on that land. But to date, we have not been given these documents so that we -, all I know is what I have found out at the Planning Department. Now -, so I wish to clarify the earlier points by telling you, what if I told you that I could not find any permits to date on this land, which also raises the point of in fact is this pre-developed or developed land? And so should the SMA process require the developer or owner to give these documents to the SMA file, in your opinion, with your -? PILAGO:In my opinion, yes. M.ROY:Because at this point, there are no documents available. I appreciated very much your perspectives and your testimony today. I have no further questions. PILAGO:Thank you. GIFFIN:Thank you. Chris or Pat. O'TOOLE:No questions. GIFFIN:No questions? Hearings Officers? Hannah. SPRINGER:Aloha kua. PILAGO:Aloha. SPRINGER:As you sketched for us that chronology from the time of Kauikeaouli to PASH, basically, discussing the various means by which native rights and practices were protected and codified in laws and constitution, I'm wondering if you have studied the case law which has followed the PASH Kohanaiki decision. In particular, I'm wondering if you are familiar with the Topliss or the Honapi decisions. 99 PILAGO:No. SPRINGER:Okay. Thank you. PILAGO:No. GIFFIN:Mr. Togashi. TOGASHI:No questions. GIFFIN:Any more questions? Okay. Thank you very much for coming. PILAGO:Thank you. DAVID:Mahalo. M.ROY:Mahalo. GIFFIN:Ladies and gentlemen, we do have a person who signed up to give public testimony. His name is Hank Fergerstrom, and if he is still here, will you please come forward. Please raise your right hand and speak into the mike. Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? FERGERSTROM:Yes. Excuse me. Yes. GIFFIN:All right. Your name and resident address, please. FERGERSTROM:First, aloha everybody. DAVID:Aloha. FERGERSTROM:Aloha mkou. DAVID:Aloha kkou. FERGERSTROM:Pardon me, I've lost my voice. I haven't been able to find it for several weeks now. My name is Harry Fergerstrom. I currently live in the District of Puna. GIFFIN:Thank you. You may sit, and you may begin your public te FERGERSTROM:First of all, I apologize for being so late, but I've driven all the way from Puna to come to this hearing. And we are not, I have not been i been involved with the development of Mauna Kea, I was one of the contested case parties for the Keck development. 100 However, my name is Harry Fergerstrom. I am also with Na Koa O Heiau, with the temple, with the Warriors from the Temple on the Mound of the Wh Lohe O Ke Akua. I'm also the spokesperson for Na Kpuna Moku O Keawe, which comprises the six districts of this Island living as one unit. I'm also -, I've also been personally taught by Khuna Nui Palitu Sam Lono, personally trained by Auntie Pilahi Pake as well as Uncle Charles Kenn. Anyway, what I'm going to try to share here and bring to light is the expressed significance of this entire coastline. Okay, this entire coastline, I'm talking about from Pu`ukohol, actually from `Upolu up in the north all the way down, across past Hnaunau going down. These are all very, very religious areas. And, you know, some of the testimony, some of the questions I heard earlier had challenged why these heiaus are in bad shape, why they're not in use. Well, first of all, we were -, it was against the law to practice our religion until '78 under the Native American Religious Freedom Act. That is a very good reason why these things have not been used. And I'm sorry I'm not as fast as everybody else, but I can only get some many places at a time. And when you're coming from the top of the mountain all the down, it's very difficult to get every little piece on the way. But believe me, I have standing in every single one of them. My ancestor was conceived in this pond right out the door here, okay, in this sacred pond right here. I have a lot of connection to this area that I'm certainly not going to discuss it with you because you don't have the understanding of what would have relevance. I can only tell you from a very broad standpoint that we have not only genealogical ties but religious ties as far as Na Koa goes and because I'm a native religious practitioner, being trained by Sam Lono, which at lot of these heiaus are directly connected with him. I have the training of lua, which Angel Pilago had talked about. I have been trained not only by his `alohi, but his `alohi's `alohi. So, yes, there is very, very good significance to me. There was a question asked about mana and how that works. Well, how it works it's like little waves. You drop the mana out, and it's like this wave that keeps repeating itself. And, yes, your buildings would have been an obstruction to that course, and that's what holds things down for the Hawaiian from being able to stand correctly, because you keep putting up these barricades under some guise of some use, planning use commission. So I am really also putting you folks on notice that we do have an interest in this matter, and I beg your pardon that we were not able to come to the contested case at the time it first started. But if I need to make a court action to do that, I will do so. It is something that must be addressed quic In case you're not familiar, I just dropped a $320 million lawsuit on OHA last week for not doing what it's supposed to be doing, along with our congressional delegation. I was a little late today because I was on the phone with a phone conference with Judge Molway from the federal courts. I also want to remind you that the PASH decision was not some rule that was just dreamed up, it was a reaffirmation of an existing law that existed from the kingdom and moved on into the territory and the State of Hawai`i. I'd also like to remind you that the Hawaiian State Constitution stated that the common law of England shall be the supreme law of the land with an 101 exception of Hawaiian usage and Hawaiian judicial precedent, and this is the case right here. This is Hawaiian uses and judicial precedent. If you have any question as to my standing as far as talking about religious things or burial council, I'm also registered with the State Burial Council as a representative of the royal families. The way I've heard the questioning going, especially from Mr. Vitousek, gives me this impression that we are trying to entertain the idea that once you rape a woman, anybody after her is just simply screwing her, and that's something that you really have to understand. For us, the rape continues every day that we're not allowed to use these places, and not allowed to draw the energy from it. Rape does not mean sexual, it means forced entr I would also like to challenge the owner as to whether or not he has the warranty deed as opposed to a certificate of title, which indicates a quit claim. And as you know through Black's Law Dictionary, quitclaim says a title is written but it does not confer ownership. It just says when they were asked, the owner didn't stand up and tell you . So, yes, all these quitclaim properties are be addressed very shortly. I would also like to say we have been not only raped by the invasion of foreigners here but even your car you drive must indicate you, that there must have been something wrong around here and on certificates, but that you also have butchered my highway, right between my -, you cut my heiau in half to suit your transportation needs. I would also like to remind you that in 1903 there was a case, it was called Mankichi vs. Territory of Hawaii, where the justice's opinion that when the 1900 Organic Act came to Hawaii, it was supposed to bring the United States Constitution as having supreme jurisdiction here. You were violating our rights, the very rights that you said that you were supposed to be coming to protect and bring to us as an addition. Another thing I would like to make very clear that just because we have a heiau enclosure does not mean that is the boundary of it. A heiau should indicate you, to you in that relevance that it is the alter in a church and the surrounding areas are that church. You were asking what kind of damage could be done. What can't b damaging us since you've been here, and now you take us out piece by piece, thinking that because somebody else raped the girl, you didn't go screw her an rape, she was already entered. Thank you. Would anybody like to ask any questions? GIFFIN:I'll ask them. FERGERSTROM:Thank you. GIFFIN:Thank you. Hearings Officers, questions? Mr. Togashi? The Applicant's representative? VITOUSEK:No questions. 102 GIFFIN:Thank you. Maile? DAVID:No questions. GIFFIN:Mikahala? M.ROY:Aloha, Hank. FERGERSTROM:Aloha. M.ROY:I want to thank you for taking your time today to come all the way to testify here. Thank you for your presence. FERGERSTROM:It's my honor to be here for my families. M.ROY:And your testimony. Mahalo. FERGERSTROM:Our `ohana, yes. GIFFIN:Thank you. Pat? O'TOOLE:No questions. GIFFIN:Thank you. Thank you very much for coming. FERGERSTROM:Thank you. GIFFIN:Now, getting back to some unfinished business, Mr. Vitousek. VITOUSEK:Yeah, I think we were, that Mr. Moore was being cross-e GIFFIN:Right. VITOUSEK:That's -, and so he's here. GIFFIN:I know he's here. There he is. Please come up. You've already been sworn in, so you can sit down. MOORE:Thank you. GIFFIN:Commissioner Springer had a question. MOORE:Before I start, could I clarify some of my testimony this GIFFIN:Sure. 103 MOORE:Two things that I think are relative. One, I was asked about projects that I had been involved in that had cultural, historic, or spiritual involvement, and it was typical of me, I overlooked the obvious. From 1969 to 1987, I was the principle planner on the Island of na`i, preparing the master plan two or three times at least. I was also the planner on Mnele and K`ele development plans in 1985 to 1989. And I was involved in the original Mnele Golf Course studies 1989 to 1990. All of those studies spent considerable time assessing and involving the native community with the spiritual qualities of the sites that we were proposing to develop, and we spent a lot of communication making proposals, getting their feedback, correcting the proposal, and so forth. And when Jack Nicholas finally did the final plan, I'm sure you will find that the fish shrines and the other things that were not allowed for golf balls to even fly over are still protected, as well as other sites on the Island. I was also the primary consultant for the development of the original Kaua`i County General Plan in 1970. I was the main consultant on the county development plans in '72 to '76, all except Hanapp. And along with Ira Michael Heyman, I authored the Kaua`i County CZO in 1974. All of those have specific reference and provisions to protect and honor historic cultural and spiritual facilities, and they are incorporated into the law, to the point where the ordinance that we had adopted recognizes that even though a resource had not been identified, the very fact that when it was identified, it fell under the same constraints as the ones that were identified. Okay, that's the first thing. The other thing, relative to Mr. Yuen's questions, I would like to just clarify my answer by one statement. I think a complete plant screening of the proposed project from the adjacent mauka cultural site over time, if desired or required, using plants extant on the Island in 1775, is technically feasible and within the conceptual plan as I presented it. Just by the selection of plants alone, it could be accomplished. That's all I have. Thank you. GIFFIN:Hannah. SPRINGER:Thank you, sir. I'm looking at your prepared testimony. MOORE:Yes, ma'am. SPRINGER:And I'm looking at the second paragraph where you discuss the -, that you advised that the proposed project is located in close proximity to very significant cultural historical sites. The closest sites are located approximately 50 feet mauka of the mauka boundary of the project site. I'm wondering if you can answer the same question that I asked Vicky Takamine, and that is where does a historic site begin? Does it begin where the built walls meet the earth or at some space distant from the walls? MOORE:I don't have a precise answer to that question, but I think it's something that should be precisely determined. My plan assumes that it starts at the boundary line. 104 SPRINGER:Of the sacred, of -? MOORE:Well -. SPRINGER:The historical site begins at the boundary line? MOORE:Yes, that's what my plan assumes, yes. SPRINGER:Thank you, sir. GIFFIN:Grant Togashi, did you have any questions? TOGASHI:No, no questions. GIFFIN:Okay. Mr. Moore, I have a question. In your proposed plot plan of the landscaping, earlier all I heard, and I may have misunderstood, but I heard discussion of only those big trees that form the canopy. And I know that in any kind of natural environment, there must be I think three tiers of plants. And opposite, I mean just below that canopy would be another level and then probably ground cover on the bottom. Would that kind of three-tiered landscaping plan, first of all, be what you had in mind? And secondly, would that provide the kind of buffer, if you will, that would be sufficient in terms of site? And then after I heard testimony today, I can't remember who it was without checking al concern about buffer for noise. So we're talking about two different kinds of issues that need to be buffered. Would that be sufficient in your opinion, that kind of landscaping plan with three different tiers of planting? MOORE:Yes. You can't see it from there, but if you were -. GIFFIN:No. MOORE:Up closer, that there are plant symbols indicated all, under all of the trees. GIFFIN:I see. Three -. MOORE:So that there would be more trees. The other thing, as you well know, specifically, that we're dealing with an evolution ecologically which you may not be able to plant the same thing that would grow under a shade trees initially. GIFFIN:Yeah. Yeah. MOORE:Because it wouldn't grow. GIFFIN:Right. 105 MOORE:So my approach is usually to plant those things that can fit the immediate environment, and then the things that are going to eventually shade them and change the environment. As they come up, we have to come in and change it, point that the landscape is an evolving thing. GIFFIN:Sure. Sure. MOORE:So that we eventually, we want to set up, set in motion a this micro-ecology to accomplish whatever the purpose is, whether it is a total screening or whether it is this integrated special screening that I proposed. Either one would work within this plan. GIFFIN:So your answer to my question regarding -. MOORE:Is yes. GIFFIN:Okay, is yes. Not just sight, but noise, because I think one of the earlier testifiers said that cultural practices can and should be held whenever it's appropriate, and sometimes that may be at night. MOORE:That's right. GIFFIN:And for both, you know, the Applicant's condominium owner as the practitioners, themselves, it would be very awkward and something that I would not want to see occur. MOORE:That's right. GIFFIN:So you feel then, once again, that the landscaping will serve as an adequate buffer to prevent noise intrusions as well as visual intrusions upon both sides? MOORE:Noise, having done AICUZ studies for air bases and talked to people who try to predict noise in concert theaters, acoustics are a very iffy science, at best. To simplify it, noise is a line of sight function. Generally if you can see it, you can hear it. Anything in between what you see and yourself is going to modify the noise. Is it going to block it entirely? Probably not. If you can't see it psychologically, of course, you automatically hear less. I live at something like 1,700 feet. Akoni Pule Highway is down there something like four miles away, but if I can see it, I can hear it. So that's not an answer, I know. I'm sorry that I can't be more specific. Will it have an effect on the noise? Yes. How much? GIFFIN:Thank you. Any other questions of this witness? Pat. O YUEN:If I may? You stated that a complete planting screen is technically feasible using the present site plan. MOORE:That's correct. 106 YUEN:But you haven't given us any specifics about how you would MOORE:Well, it says I will do it with planting. YUEN:Yes. Right. MOORE:By choosing the right plants. YUEN:Well, it seems to me that you -. MOORE:Once I determine how much I have to screen. YUEN:You need to screen the upper view of the buildings using medium sized trees of 25 to 30 feet. MOORE:If you want it solid, then there would be a plant screen running right up in the top of the canopy of the trees. YUEN:And then you would, you would also have to -. MOORE:It could be that way. YUEN:You would also have to screen the eye level, the low -. If you -. MOORE:The highest trees would take out the highest level. YUEN:Yes. MOORE:And then everything below that would be taken out by lower plants. YUEN:Well, we've discussed the -. MOORE:Either that on the boundary side or on the other side, as long as it's buffered. Visually, it doesn't matter which side it's on, does YUEN:Can you do the visual buffering of the upper view of -, of stories of the buildings with a single wall of trees or do you, would you need a -? MOORE:No, I didn't say that. I said within this plan. And there's more than a single row of trees there. YUEN:You would need two rows of trees. MOORE:I personally think I can do it with the planting that's shown there. 107 YUEN:Within -, by planting trees along the boundary and then som the -. MOORE:That's right. YUEN:Near the buildings. MOORE:That's right. And by varying the heights of the interspersed plants, as well. YUEN:And you can do that and -. MOORE:Conceptually, it won't change, is what I'm saying. YUEN:Your -, then you need another layer, because as we discussed earlier, you have to keep the large trees pruned so that there is 13 feet underneath them for the road, for the fire access? So where would you put that other -? And that other layer has to be so high. MOORE:Underneath it. YUEN:Well, are there -, can you give us examples of plants that will grow well and form a solid layer underneath a canopy of trees like that, that will say give us a visual blockage to say 10 feet high? MOORE:With a southern exposure, yes, because you're going to get light under those high canopies from the south. YUEN:Where is the southern exposure? MOORE:The sun is coming this way. YUEN:Okay. You mean to the right-hand side of the picture there? MOORE:No, the south is to the bottom, and that's the main -, the sun travels that way. YUEN:I don't know why, I think of the Ali`i Drive as being to the west here and -. MOORE:No, that's not -, these are all oriented with Ali`i Drive YUEN:Yes, I understand, but you were saying the southern exposur MOORE:Yeah. YUEN:The plants will get sun from a southern exposure, and where southern exposure? I think of Ali`i Drive as being to the west of this site. 108 MOORE:Ali`i -, the southern, the south comes right here. YUEN:Okay. You're looking to the right-hand of the site. MOORE:Yeah. YUEN:Yeah, that would be enough for there to be a thick hedge-type planting underneath the canopy trees. MOORE:Yeah, and there are plants that will grow very tall in the shade, as well, not full shade, of course. YUEN:Like what? MOORE:I think noni will grow under there. I think that probably some of the native gardenias will grow under there. YUEN:And you will be able to keep those from impeding into the f road lane, road access lane? MOORE:Yeah, it would be trimmed. They'd be hedged eventually, that's part of the reason I didn't want to do it that way. That's why I'd rather use both sides of the road and filter the view rather than try to totally block it. YUEN:So -. MOORE:So that the buildings that you do see are insignificant and behind and fractured. YUEN:With use, with these both sides of the road to create a blockage at the upper level, where are you going to create the blockage at the lower level? MOORE:Well, if you look at the plans, there are plants indicated under all of the trees. It's a combination of things. And as the trees come up with canopies, the plants will have, as I just said, the plants will have to be changed to something that will take the shade. YUEN:I'm sorry, say that again? MOORE:Something that will take the shade. YUEN:Will noni grow well in the shade? MOORE:It loosens up a little and is not as tight as it normally would be, but it'll grow, sure. And that -, the trees you're talking about, you're not going to get a solid canopy anyway in any of those trees, not year-round. 109 YUEN:Well, how are you going to get a -? MOORE:When you draw trees, for example, you always draw them so fly through them; they're not solid, okay. YUEN:Well, I understand that. Are you saying we're not going to get a solid visual block from the trees then? You'll be able to look through them and see the building regardless? MOORE:If you're really looking for the buildings, yeah, you could probably see them. That's why I don't think it's an appropriate solution, but if that's what you want to do, we can do it. YUEN:Thank you. GIFFIN:You're welcome. I just had a thought. Where then in the scheme of things would it be appropriate to put, for example, native ferns? MOORE:Obviously, once it gets shady. GIFFIN:Yeah. I mean because that -. MOORE:Those sort of things -. GIFFIN:Would be a solution, wouldn't it? MOORE:Could be brought in. There are a lot of things that could come in. GIFFIN:Any other questions? Mr. Togashi. TOGASHI:Would it be possible if I asked a question of Mr. Pilago, since he's here? I really meant to ask and hesitated, but I'd really like to ask this question. GIFFIN:Well, let's go ahead and finish this witness first. Any other questions of -? DAVID:I'd like to ask a question. GIFFIN:This testifier? Maile. DAVID:Aloha, again. I have one more question for you. If at this time you have no firm ideas as to what type of landscaping material you're going to be using, how did you determine that your proposed buffer would be adequate to prevent noise impacts that you just -? MOORE:If you remember what I just said, I didn't say it would be, would prevent all the noise, I'd say I don't know how much noise it would redu 110 DAVID:So with your opinion about the noise, what was your -, what's your method of determining something like that? MOORE:Noise? DAVID:Yeah. MOORE:Well, the only way you can do it is go out and measure it. DAVID:Okay. And -. MOORE:Measure it before and measure it after but -. DAVID:Did you do that? Did you go out and measure -, do that investigation? MOORE:I have done no noise studies there. I don't know of anyon DAVID:What about -, you've been on the property you said till th Did you do the visual impacts from that point? MOORE:No, I did not. DAVID:Okay. Did you -? MOORE:I've done it pretty much from the configurations of site and where I've been told the artifacts are. DAVID:So you made your visual impact study from what point on that property? MOORE:Not from on that property, off the property, because that's the impact -, source of the visual is off the property, 50 feet up, according to what they told me. DAVID:So could you show me where you did your visual again, please? MOORE:Theoretically, somewhere up here. It starts about there, correct? That's what I was informed, 50 feet (indiscernible without microphone). DAVID:So you did go onto the Keakealani -? MOORE:I did not. DAVID:Okay. So -, oh, you did it from a map? MOORE:That's right. 111 DAVID:Okay. MOORE:Yeah. DAVID:Thank you. That's all I needed to clarify. GIFFIN:Okay. Mikahala, did you have a question? Go ahead. M.ROY:Thanks. Hi, Mr. Moore. Thank you for clarifying and adding to your quote. The background you have in knowing about properties in Hawai`i, you certainly have a long period of time that you've been engaged in our lands here. na`i, then did you become familiar with the Kaopuiki family? MOORE:Yes, Sol. Sol helped a lot and Dede and Swede Desha originally before he died. M.ROY:Mahalo. MOORE:Because Dede knows where all the endangered plants are, so she wouldn't tell us exactly where they were, but she told us where to stay away from. M.ROY:Not necessarily with just that project, but with any projects, do you return with regard to culture, have you had the occasion to return to check on the status of and the wellbeing of the project in terms of your work? MOORE:I haven't been back to Lna`i since the dedication of the community recreation center, which I designed. When it was opened, that was the last time I was there, and I think that was like 1987. I'm not sure. M.ROY:Through your work, Mr. Moore, do you keep abreast of devel with relationship to sacred places and such, would you say that you try to keep abreast or are interested in this, in progression that comes in time? MOORE:I have -, I don't make a specific effort to do that, but as projects come along and they achieve notoriety, of course they become obvious, and just professionally interested in what's happening, of course. M.ROY:Do your plans for plants allow for pure visual, a pure visual plane, say from the sacred site Pkiha? Would you speak about how that helps one who is practicing enjoy a pure visual plane, not that there is a completely open plane today, but in your mind, how does that enhance one's -? Have you given thought to that? MOORE:The -, what you're talking about is the aesthetics of the experience. While that's usually an individual response based on their own background and what they're looking for, generally we do try to do things that are aesthetically pleasing. In other words, the whole 112 idea of modifying the landscape for human use and enjoyment is to try to make it better than it normally would be. M.ROY:But I mean -? MOORE:And certainly better than it now, of course. M.ROY:With regard to the practitioner behind now, has thought been given to creation of visual enhancement for their clarity, in other words to be looking toward the sea over this development? Have you given thought in the production of the -, in your plan for that practitioner, for the sacred people? MOORE:Let me answer it this way. If you can specify what the practitioner is looking for, then I can respond to it. M.ROY:Meaning just -. MOORE:In other words, if I'm doing a Japanese garden, for example, there is a very set perception that you're trying to give the person as he moves through it. They only work one way, you know, they don't -, you can't turn around and get the s sequence of experiences. And that is because of the practitioner, as you're calling it, has certain things that they're looking for. They're looking for a restful view. They're looking for turns and quirks that don't let bad spirits follow them, things of this sort. They're looking for symbolic compositions of rocks and plants that remind them of legends and M.ROY:I think I -. MOORE:If you can give me that sort of input for your practitioners, then, of course, I can respond to it. M.ROY:I see. I think what I really was sticking to was purely visual. MOORE:Yeah. M.ROY:For someone who is at, who is on the site of Pkiha. And, formerly, before any development happened there, the natural view plane back in time was the natural view plane, and as people of our land, we seek to maintain that integrity, also. I could -. My next question is from the sea looking up to the land, would you offer any buffers to enhance the surfers' look or the people in the water, the people on the land at Kalae o Kamoa looking upland, what would be there to help buffer this development now that is clearly so different from the rest of the land? MOORE:Well, that's why I've shown the planting on the front side Drive side. There's a -, as you know, there's a wall there. It starts at the driveway and goes all the way and I think it goes up to about eight feet, so it's a pretty good angle from the road to that 113 to start with. So it doesn't take much to buffer to the top of the roofs, I don't think. Again, I want to do a section and study it properly, I'm not going to -. M.ROY:You know -. MOORE:Dump a bunch of final conclusions on you and say that's it. M.ROY:I -. MOORE:This is a work in progress. M.ROY:I do believe I understood you to say that you did not clai background for native plants, etcetera. Did you have anyone in mind that -, or any thoughts in mind of consultants that you would ask to help? MOORE:No, but if would like to recommend some, I'd certainly like to consider them. M.ROY:You also made a comment earlier that your plantings that are depicted here would ultimately, you hope, I think become incorporated in any future landscape of the cultural site. MOORE:That would be my hope that whoever is responsible for that site, if there is any overall ideas for its eventual development, which include plantings or trees or stuff, things of that sort, sure, that would really be very helpful to be able to incorporate that in. You know, we hear a lot about connections and continuity, and that's -, I'm a great believer in that. M.ROY:I'm aware -. My final question. Thanks, Mr. Moore. I'm properties in this area or in just general where at the boundary they plant trees that shed their leaves and such over on the next adjacent owner. Again, I go back to the design. They look as if they are right up to the boundary, and the concern is just for encumbrance over to the next property, and these things I bring to just discussion and for your comment. Would they -? They look like they will be -. MOORE:They -. M.ROY:Prevailing over the next property. MOORE:Yes, they will, and it's common practice. M.ROY:In this case -. MOORE:The people on the other side can always, as I mentioned before, prune them as they grow up. M.ROY:In addition, you commented that -. 114 MOORE:I wouldn't recommend it, but they can. All trees drop lea M.ROY:But in the case of a sacred property that we've been discussing here, it seems it would be wise for this developer to, it is clearly an intrusion and that you should scale back. Can I please take the floor? Not only the visual intrusi NOMURA:Excuse me, microphone. M.ROY:But just a simple statement of the shedding of leaves, etcetera, it's right up on the boundary. Look at these trees here. I wanted to ask you, what are these trees, but I do believe you are not sure at this time, is that right? MOORE:In my mind, I had kou there and I had -. GIFFIN:Mr. Moore, you need to use the microphone. MOORE:Oh, excuse me. I always had eight planted in mind but, yo want to be too specific because I keep putting kou on planting plans through my career in Hawai`i, and I've yet to find anyone that had one I could plant. M.ROY:Just the observation is just being made by me that again, if a developer understood issues of sacredness and the issues of the importance to the people of a sacred site, I think it's shown in the plans to bring critical attention to the landscaping and to show true respect for this whole process that's been brought to all of these months. Thank you. MOORE:Is there some problem with the sacredness of the leaves falling on the property? M.ROY:There are so many issues, Mr. Moore. MOORE:Because it would really help to know what they are, you know. M.ROY:That's why I asked if you had anyone in mind. MOORE:Yeah. M.ROY:And who they would be because -. MOORE:I would certainly take your recommendation and listen to any input you could give us. M.ROY:Mahalo. 115 GIFFIN:Are there any other questions of Mr. Moore? Hearing none, Mr. Moore, thank you very much for coming back and being willing to be recalled like this. I appreciate that. MOORE:Thank you for the learning experience. GIFFIN:Good. With that, and correct me if I'm wrong, Hearings Officers -. Oh. I've just been informed by Staff that there is another person who would like to give public testimony, Keoni Choy. Will you please raise your right hand. the truth on this matter now before the Hawai`i County Planning CHOY:Ai, hiki no. GIFFIN:Thank you. Will you please speak into the microphone and record, give us your full name and your resident address. CHOY:Okay. My name is Keoni Choy. I live in Puna, in Kea`au. GIFFIN:Thank you very much. And you may begin your public testi CHOY:Okay. I was just informed about this hearing. I didn't know that it was going on. But I wanted to find out if there are any direct descendants of Keakealaniwahine? GIFFIN:I think they've been identified, the Intervenors are. CHOY:There are direct descendants? GIFFIN:Well, they're lineal descendants. CHOY:Lineal descendants. GIFFIN:Yes. CHOY:Okay, because that's my grandmother we're talking about her direct descendant of her, and this is her heiau. So I wanted to make sure that the family is represented, and if not, I would like to enjoin. Aloha. GIFFIN:Thank you. Thank you. There was a request from Mr. Toga recall, Maile, one of your testifiers, your witnesses, Angel Pilago, and is it your, would that be fine with you? And fortunately he's still here. Great. I don't need to swear you in again. But Mr. Togashi is here. TOGASHI:I'm sorry for having to call you back. PILAGO:That's okay. 116 TOGASHI:And the reason I hesitated to ask you this is I had asked the same question of Councilman Tyler, and he was kind of stumped somewhat by the question, and so I thought well, maybe I'd better now. But since you're here and I appreciated your testimony today, and I'd have to say that your presentation was very, it was philosophical in nature, forward thinking in nature, and because of that, I would like to ask you a question. But before I do ask this question, I would like to point out that as one of the Hearings Officers, I realize that our decision is to be based on the criteria for granting of a Special Management Area permit. And at the same time, too, I realize that laws are not static, they're always evolving. You, yourself have been participant in the evolving nature of these laws with PASH and Ka Pa`akai. And my question which -, to you would be can you tell me what can we learn that we haven't learned thus far in the context of this application as far as perhaps laws involving with regard to Special Management Area permits? PILAGO:That is a difficult question. TOGASHI:I know it was a profound question, but I realize that, you know, you seem to be very philosophical, and I'd just like to get your opinion as to what can we learn that we don't, that we haven't thus far with regard to Native Hawaiian issues? PILAGO:Thank you. Our people have come here and all we have in our psyche is this, the imagine of canoes, of voyaging canoes, so we're trained to survive in small spaces with limited resources and to conduct ourselves with expectations and key rules and protocol. I think those things that we're experiencing here now also follow the same course, in that there is nothing really new to learn, but the need to reapply what is already learned and has already been, in Hawaiian terms, what has already been shown to us through portents and omens. In this case, if we're looking at it in juris prudence and fiduciary responsibility, what we are looking at is it's time we stop the consistency of wrong projects. What we need to do is begin to determine a smoother course on the other side of the issue. I believe a stronger application and a fuller application of resources as they relate to cultural pract rights and activities, all those things are in place and are before you. You just need to be brave and assertive in making a correct decision in respect to that. So there is nothing new to learn necessarily, but there needs to be a new application. A lot of these issues found their `ano, they found their seed on this island, and continue to be discussed on this island, so the continuing evolution and progression of laws is the same thing as the progression and genealogy of people. As societies change, situations change. I believe we're now in a current situation where a new realization of things past, things recent be applied, and that criteria being used is not necessarily measurements of what your task is but motivations and initiative of what could be and should be. I think that would give our people and our community and our society a greater character and a greater self-respect for its members amongst the society here. I didn't really answer your question, I apologize. TOGASHI:No, I realize what you're saying is basically a reaffirmation of the laws, aren't you saying that, is what we have to be reminded of? 117 PILAGO:Yeah. Yes. Is that okay? TOGASHI:Thank you very much for coming back up here. You weren' all. PILAGO:Thank you. TOGASHI:Thank you. GIFFIN:Thank you. Ladies and gentlemen, I refer back to where w th morning, to my memo of June 5, the second page, which is the schedule for tomorrow, th July 29. And as it has been modified, 9:00 a.m. we will begin with Pua Kanahele, at 1:00 p.m., and correct me if I'm wrong, Mikahala, we're going to have Kal Mossman, at 2:00 p.m., your dad, David Roy, and at 3:00 p.m., the Planning Director, Chris Yuen. Correct? Okay. th And then on the 30, we will begin final arguments, and we're going to begin with R following with Maile, and then Mikahala Roy, and then the Hawai`i County Planning Department, 30 minutes each. Kal Mossman and your father, David Roy, we're going to limit to 30 minutes so that we have enough time for cross-examination. M.ROY:May I say -? GIFFIN:Mikahala. M.ROY:I'm not entirely sure that that can be possible. There is quite more, a lot more evidence that my father has yet to present. But in addition to that, I'm not clear if he is to present in the afternoon, my question is, I was looking at a morning opportunity, if that's at all possible. GIFFIN:Unless you want to switch with Pua Kanahele. M.ROY:Wednesday? GIFFIN:No, Wednesday we're going to begin final arguments, closing, I'm sorry. M.ROY:But what if he doesn't finish? GIFFIN:We're prepared to stay late because we all have rooms here, so we are prepared. M.ROY:His vitality and the vitality of anyone from the public is my concern, so I just speak for that. 118 GIFFIN:Well, maybe what we can do, if you could contact Pua Kanahele and ask her to either come a little later so that your dad can be the first presenter tomorrow morning, that would be good, and then that will afford him the opportunity to M.ROY:And thank you, Ms. Giffin. I'm just saying that there mig might be a situation where it goes long for both. I'm not sure that Ms. Kanahele will be finished even, you know. I'm not sure how it will go. GIFFIN:We are prepared to stay late tomorrow. And so whatever it takes, we will be here. M.ROY:Thank you. GIFFIN:You're welcome. Any other questions? Comments? All right. Then we are in adjournment until -, recess until tomorrow morning at 9:00 a.m. Thank you very much. DAVID:Thank you. M.ROY:Thank you. The discussion ended at 5:17 p.m. Respectfully submitted, Janet L. Kama, Transcriber A T T E S T: Geraldine M. Giffin, Presiding Officer 119