2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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67. Oceanside's circumvention of the rules and regulations applying to its application for approval of its lodge is evidence of a bad faith response to an obvious problem Oceanside faced, not an innocent, good faith belief that its project was in compliance with the existing rules and regulations. 68. The County's assent to limit the reclassification for the Members' Lodge to 0.146 acres less than the maximum allowable acreage under HRS § 205- 3.1, indicates a lack of good faith in processing land use approvals in the instant case. 69. The County cannot subvert HRS §205-3.1(c)by refusing to consider all parts of a development to deny the LUC jurisdiction over the larger development. 70. Because the ordinances on which it relies are invalid as a matter of law, Oceanside cannot rely on vested rights or equitable estoppel as defenses to an injunction against construction of its planned Members' Lodge." Count IV Order,pp. 28-29, COL Nos. 63-70, R at 66: 21413A264-265. This error was brought to the attention of the Circuit Court in the Memorandum in Support of the County's Motion to Amend 2d Amended Judgment,p. 17,R at 86:27821. Point of Error No. 19 : The Circuit Court erred in holding that the County Defendant- Appellants have, and violated a public trust duty to protect coastal waters from grubbing and grading runoff, including affirmative assessment of natural resources, impact on such resources, and feasible measures for reasonable protection of such resources: 13. State Defendants, including the State of Hawaii,Director or(sic) Health, and DLNR, and County Defendants have an affirmative duty to take the public trust into account before, during and after the approval and authorization of ground alteration activities, storage of soil, silt, and the use of herbicides on the Hokuli'a property even prior to being decided by the Hawaii Supreme Court. 14. None of the permits, approvals or authorization documents issued by the State Defendants and County Defendants required a prior assessment on the effect of Defendant Oceanside's permitted activities on pristine waters off Hokuli'a. The pollution of the adjacent coastal waters were cased by Hokuli'a's ground latering activities allowed and approved by the State and County Defendants. The State and County Defendants did not act prudently by not affirmatively requiring an assessment prior to permit approvals or an assessment after the runoffs. 15. In 2000, the Hawaii Supreme Court stated in KaPdakai in order to protect customary and traditional native Hawaiian rights, the State, at a minimum was required to make specific findings and conclusion as to the following: (1)the identity and scope of valued cultural,historical, or natural resources in the area, including the extent to which traditional and customary native Hawaiian rights are exercised in the area: (2)the extent to which those resources—including traditional and customary native Hawaiian rights will be affected or impaired by the proposed 23