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the action of the Commission may impair or impede that person’s ability to protect that interest or
<br />create a risk of multiple or otherwise inconsistent actions.”
<br />YEH: My position on this is that complete relief can be accorded to those who are already parties.
<br />In terms of impairing or impeding that person’s ability to protect that interest, again, I think the
<br />various witnesses that the intervenors, present intervenors, have already identified and planned on
<br />calling, including Mr. Kanuha, if he so desires, will be able to identify the issues that are in play in
<br />this particular permit application. And there’s certainly not a risk of creating multiple or otherwise
<br />inconsistent actions by reason of this Commission’s decision. And I also say that, you know, I
<br />think you need, it is important, and I think those two provisions, the timeliness provision in 4-6
<br />really should be read together with 4(e) because 4(e) is really very much like a standing issue. As
<br />we said before, I mean there could have been other people that requested standing at the very first
<br />hearing as you are supposed to do this. So that’s really not the issue whether or not you have this
<br />theoretical standing in a context of any burden of proof; the issue is whether or not there is a
<br />timeliness to this application.
<br />P. OLSON: Respectfully, Mr. Chair, I disagree with that characterization of the law; it’s a separate
<br />section, separate and equal section, subsection (a) versus subsection (e). It provides an avenue for
<br />our clients to have standing in this matter. And I would like to first, again, have a hearing on this,
<br />and then we can argue the law and go back and forth. And I can go into how their rights are
<br />infringed upon right now, but I would like to do that after I lay my record. And we can have legal
<br />argument on this.
<br />HOUSEL: (After a quick consultation with Mr. Gonzalez,) Mr. Olson, I believe before we can go
<br />forward with the hearing, we have to make a determination if there was a timely filing on this.
<br />P. OLSON: Mr. Chair, under (a), that would be the analysis, and I would incorporate my letter in
<br />th
<br />regards to standing in this matter –I believe that was December 10 – the practical reading of Rule
<br />4-6(a), that they are in compliance; the first substantive hearing on this hasn’t really occurred.
<br />Except for the limited testimony of Junior Kanuha, we haven’t begun the hearing. And there is no
<br />prejudice to Dr. Foulk in having the Kanuha ‘Ohana become a party in this matter. There is no
<br />surprise and there is no prejudice; we’ve already given our intent to use the same witnesses and the
<br />same exhibits in the same way and same manner. Mr. Yeh says we can still advocate them.
<br />Essentially, it’s not going to hurt Mr. Yeh or his client in the Kanuhas having standing on this.
<br />Now, even if we are not granted standing under Rule 4-6(a), under 6(e) we can. And it’s a separate
<br />section. It provides a separate form of relief. Now, the Kanuhas have direct genealogical ties to
<br />this area and this property. Now, that is an interest in this case. And this interest is heightened, the
<br />harm is heightened, when there was a lack of a sound archeological inventory survey, okay? Now,
<br />when we first started this process –let’s assume that we, you know, we call June the first date –
<br />okay, now SHPD has already reversed its determination that whether or not an AIS should have
<br />been done; SHPD has said it was in error and the AIS should have been done. So the first
<br />application that was submitted in back by the Planning Department, they’ve already discovered that
<br />is in error, okay? The AIS has not been completed. The AIS had not even been, was not even
<br />th
<br />completed by the last hearing on August 27, okay? We continued this by stipulation, okay, for an
<br />AIS to be done. At this time the Kanuhas were only to assume that the law was going to be
<br />followed. Now, about beginning of October, we got a word that the archeological inventory survey
<br />as recommended by SHPD, required by SHPD,that the recommended subsurface testing was being
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<br />EXHIBIT D
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