2024-03-05 PL-SMA-2023-000046 Hanna Taum Opposition Testimony

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Hanna Taum P.O. Box 5218, Kaneohe, Hawaii 96744 hanna.taum@gmail.com March 5, 2024 Re: Windward Planning Commission Meeting (Thursday,March 7, 2024), Agenda Item 3 (PL-SMA-2023-000046) Dear Chair Lin, Vice Chair Louis Daniele III, and Commission Members, I am a third-year student at the William S. Richardson School of Law. I am currently enrolled in Administrative Law and am submitting testimony as part of a required course project. I am writing to respectfully provide comments regarding the Black Sand Beach, LLC Special Management Area Permit application ("Application"), with an emphasis on the agency's required Ka Pa`akai analysis and the importance of the purpose of the Special Management Area ("SMA")permitting system. Ka Pa`akai Analysis The Ka Pa`akai analytical framework, articulated by the Hawaii Supreme Court in Ka Pa`akai o ka `Aina v. Land Use Commission, "effectuate[s] the State's [constitutional] obligation to protect native Hawaiian customary and traditional practices while reasonably accommodating competing private interests."' When considering proposed actions, agencies are required to assess: (1)the identity and scope of"valued cultural, historical, or natural resources" in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; (2) the extent to which those resources—including traditional and customary native Hawaiian rights—will be affected or impaired by the proposed action; and (3) the feasible action, if any, to be taken by the agency to reasonably protect native Hawaiian rights if they are found to exi St.2 The agency is then responsible for articulating findings and conclusions that demonstrate fulfillment of this constitutional obligation.3 The Application does not specifically identify the Ka Pa`akai analysis in its submitted documentation nor does it describe with any specificity how its findings or proposed mitigation efforts might potentially fit within this required analysis. Given the agency's constitutional obligation to protect the continued exercise of Native Hawaiian traditional and customary 'Ka Pa`akai O Ka`Aina v.Land Use Comm'n(Ka Pa`akai),7 P.3d 1068, 1083-84(Haw.2000). 2Id. at 1084. 3 Id. 1