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HomeMy WebLinkAbout2016-05-05 Hearing Transcript - PD Initiated Puna Pono Alliance et al Presentation by Claims AdjusterWINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MAY 5, 2016 A regularly advertised hearing on the Planning Director Initiated update regarding Puna Pono Alliance, et al.'s claim against the Geothermal Asset Fund (presentation by claim adjuster) was called to order at 9:47 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Charles Heaukulani presiding. COMMISSIONERS PRESENT: Charles Heaukulani, Gregory Henkel, Donald Ikeda, Myles Miyasato, and Raylene Moses. ABSENT & EXCUSED: Donn Dela Cruz. ALSO PRESENT: Duane Kanuha (Planning Director), Danny Patel (Deputy Corporation Counsel for the Windward Planning Commission), Daryn Arai (Planning Program Manager), Jeff Darrow (Staff Planner), Christian Kay (Staff Planner), and Sarah Hata-Finley (Commission Secretary). And 15 members from the public in attendance. PLANNING DIRECTOR INITIATED Presentation by claim adjuster regarding Claimants Puna Pono Alliance, et al.'s, claim against the Geothermal Asset Fund for funding to conduct a Native Hawaiian Psycho -Social Impact and Community Well -Being Study. HEAUKULANL All right, I'm going to move to Item No. 4 on our agenda and ask if staff would give us a short introduction to orient us on this matter. Good morning, sir. ARAI: Hi. Good morning, Mr. Chairman, Members of the Commission and members of the public. Thank you for attending this morning. Regarding this matter, the Commissioners may recall that a status update on this particular matter was brought forth at your March 3rd 2016 meeting. At that particular meeting, the Commission requested that the Planning Department make arrangements with the claim adjuster to attend today's proceedings, and we have done just that. We do have Mr. James Owens from John Mullen & Co. who is in the audience this morning, and he will be ready to come before you when you make the call. Thein advance of today's meeting, we did, Mr. Owens was able to provide to you a written narrative dated April 30, 2016, copies of which have been distributed to you. In addition, by letter dated May 4, 2016, we have communications from the Law Office of Thomas E. Luebben, again copies of which have been provided to you, and we also have two additional communications which we just received. One is a letter dated May 4 from Mr. Thomas Lee EXHIBIT D Travis, and finally, a document that was just submitted this morning from Mr. Ron Fujiyoshi. Again, all of these materials have been provided to you for your consideration. Are there any questions? HEAUKULANL Commissioners, any questions? Hearing none, thank you. MIYASATO: Chair, sorry, I do have a question. HEAUKULANL Oh sure, Commissioner Miyasato. MIYASATO: The way that this was agendized, is, do we take action on this application today or is this just a presentation. ARAI: Just presentation, discussion. There is nothing formal before you for any action this morning. MIYASATO: Okay, thank you. HEAUKULANL Commissioners, any other questions? Hearing none, I would like to call forward the claims adjuster, Mr. James Owens, please. Good morning, sir. Sir, could I get you to raise your right hand for me, and do you swear or affirm that what you present to the Commission this morning will be the truth? OWENS: Yes, I do. HEAUKULANL Could you—you're doing a good job of speaking directly into the microphone. If you could just give us your name, tell us where you reside, and then you can put your presentation before this Commission. OWENS: My name is James Owens. I reside in Honolulu. I am originally from Ka`u and identify the Big Island as my where you're from. HEAUKULANL Good morning. We've received your supplemental report, April 30th 2016. Is there anything else you would like to add or say before I open it up for questions from the Commissioners? OWENS: No. HEAUKULANL Commissioners, I just want to reiterate briefly that the claims adjuster is here today at our request so that this Commission can ask questions that you might have regarding the recommendation provided concerning Puna Pono's claim. I'm hopeful that what we're doing today is educating everyone and that we'll better understand how this claim is analyzed. Do you have any questions for Mr. Owens? 2 EXHIBIT D HENKEL: Mr. Chair? HEAUKULANL I'm sorry, go ahead, Commissioner Henkel, please. HENKEL: I have a question. I was wondering if the John Mullen Company was paid for this recommendation and if so, how much? OWENS: I have no idea what the pricing is, but we are hired as the adjuster. HENKEL: Is this something that the Planning Department could help me out with? ARAI: I do have that information. I just don't have it readily at hand. It's in a separate file, but I can go get that information for you right away. HENKEL: Thank you. HEAUKULANL Any other questions? Commissioner Ikeda. IKEDA: So, you know, the Commission had kind of approved the, the study, and according to your letter, I guess the claimant could not qualify for, under Rule 12. Can you explain a little more? OWENS: Yeah, as this is down there—there are the various requirements under Rule 12 from which the claim adjuster has to find if there is a recommendation for acceptance of a claim. Previous claims that have been handled have been fairly liberal on what's coming through. So, it's not a very strict adherence as long as it's, I guess we would call it, close enough. If it looks like a chicken and it can quack even though a chicken won't quack, if it looks like a chicken, good enough. When it comes down based on the rules, we don't have enough of them that fit into the requirements to do a recommendation, and there was so many that didn't fit that it had to come up as a denial that would go through. One of the main things is this is for Puna, and the Edelstein report was commenting on the Big Island. And while it's readily acknowledged that it may well affect the entire Big Island, the rule is for Puna residents only, and it's for the majority of the Puna residents, so whatever the particular subgroup is, which is having the claim, they must be in Puna. IKEDA: Is there anyway where the Alliance can somehow get together with you so they can get closer. You know, I think their, I thinkI think their intent is good but somehow— OWENS: —Yeah, their IKEDA: —the language is not correct. OWENS: Correct. 3 EXHIBIT D IKEDA: And I was wondering if there was any way they can get together with you guys and make it more compatible OWENS: —and if the latest letter goes through, if they identify what the claim is—there has to be an existing claim, and the reading of the Edelstein report and of the submittal that came in from Puna Pono Alliance was not stating what a claim was and it actually it was reading that they're gonna look for a claim. And, as the definition shows, too, a claim has to exist already. We can't pay you to go out and look if somebody's hurt and what the injury is. So, if I'm gonna get hit by a car, I have to be hit by a car and have a broken leg. I can't see your car and just say I might get hit by that car and, therefore, give me money. So, they've gotta come in with that, and there has to be a claimant, somebody who receives the money. As the submittal exists now, there is no money to whom the Commission can write a check. There's nobody who is gonna be responsible for that. It's not—and it can't be Puna Pono itself. It has to be a person designated with Puna Pono who is going to be the claimant and is going to have the check written, is going to endorse it, whatever that's done through the Commission to go in, but it has to be a person who is accepting responsibility as the claimant to go through and for the designated claims. There is a request in the Culina submission that the Commission appoint basically a claimant, and there's nothing in the rules which allows the Commission to make up a claimant in order to whom to give the money to go through. So, it's—those are gonna have to be rectified, and then also just the basic submittal of the request. It has to follow the rules for filing. [Rule] 12-7, it's got to in the least be notarized, and it has to be the claimant who is signing for it. So, right now, as I said, there is no claimant. There is nobody who is accepting the responsibility to follow this through. So, those would have to be fixed and then it can always be reviewed, re -reviewed. IKEDA: You know, my thing was I wasn't sure if you gave a copy to the Puna Pono Alliance so they can review this thing also so, you know, they can look at it, maybe resubmit, but OWENS: My understanding is that they've received a copy. IKEDA: Oh, they did receive a copy? OWENS: Yeah, when this was sent in, it was being disseminated to the Commission and to the Puna Pono Alliance. IKEDA: No more questions. HEAUKULANL Thank you, Commissioner Ikeda. Any other questions? Commissioner Henkel? HENKEL: Yes, I'm confused. It, it seems to me like your company is saying that they would disallow a study of the adverse effects of geothermal because there hasn't been a study of the adverse effects of geothermal. 4 EXHIBIT D OWENS: Yeah, it has to be for the alleviation or attenuation, I think that was the terms, for a claim for geothermal. Yeah, there, the submittals that were handled earlier, the request for claims, had specific problems that came in, and this is what we're gonna work on. This is how we're going to mitigate it or fix it or monitor it, and that's not provided in the Edelstein report on Puna Pono— HENKEL: —and these problems are bureaucratic in nature? The T's aren't crossed or the I's aren't dotted? OWENS: It doesn't say what they are. It says there may be or there is a probable, but it doesn't say what. It doesn't say what the injury is. So, they're going out to interview people and ask them do you have any problems. So there has to be something. There are people that are saying, yeah, I have a problem but it's not being stated what it is in the report. MOSES: So, Mr. Owens, as long as it's stated in the report exactly what the claims are of people who are being affected, impacted, right? That would suffice? Is that what you're saying? OWENS: Yeah, if somebody is saying that the geothermal, like we've had people that were having trouble with the breathing, MOSES: Breathing OWENS: smelling it. MOSES: As long as they, as long as they state that. OWENS: Yeah, if there's something in there where they say oh, I have this psychological problem, and I need to see a psychologist or a psychiatrist or whatever it is and then where they have the Pele practitioners, if they state, what is the problem physical problem for a Pele practitioner that results from this. It comes down to where because it's being called claims and claimant where we have to have an existing injury or property damage. So, it can't be you hurt my feelings. If you call me an idiot, okay, but that's not a claim. I can't claim anything against you because you called me an idiot or you called me ugly. That's not a claimable issue. If you punch me in the face because you say you're too ugly, then I have a claim `cause you damaged my face, broke the bones or split my lip or something. So, it can be thatso, that's what we would need to be able to see for a claim. MOSES: I feel at this point we want—somebody wants to punch us in the face because this hasn't been done yet. OWENS: Yeah, it may, but if they just go where the no basis for recommendation of a claim under Rule 12, and just match what the rules require—if you want to drive a car, you have to have a driver's license. To get a driver's license, you have to take a driver's test. To be able to take the driver's test, you have to take an eye test and a written test, and you have to show you know how for drive one car. 5 EXHIBIT D MOSES: Understood. OWENS: So, that's what they need to do. MOSES: So, that's where we're at right now OWENS: Correct. MOSES: is trying to get the two to come together, yeah? OWENS: Correct. MOSES: So, that it can get approved. It can get done. What do we need to do to get that approved? I think that's— OWENS: Correct. MOSES: where we're at, at this point. OWENS: Correct. MOSES: And, it's taken so long to come to this point to get this done, and we want to see it get done. So, what is it that we need to do, how do we do it, and do we set up henceforth times meeting with you, John Mullens or you, I'm not too sure whose going to be heading it from John Mullens as the adjuster, and then Puna Pono Alliance coming together so that we can get this done. OWENS: If that's what the Commission sets up that we do that, it's outside of the claims adjusting MOSES: Uh huh OWENS: to an extent, but it is not necessarily impossible. The only thing that would come about is that until there's actually something submitted, there can be no decision made. So, we say, here's what you need to match, and then we just have to see what's down there, so there's no pre-, pre -approval that can come about. That's not permitted. That's actuallyI won't go so far to say it's not legal. It's just not appropriate. It's bad claim unfair claims practice or bad faith. So, it comes down MOSES: So, I guess— OWENS: —We'll help you all we can — 6 EXHIBIT D MOSES: I guess we need some guidance as to what we need to do to make that happen, right? To set this up, because when we did make the decision to approve for this to be funded, yeah, thinking that everything's just gonna happen the way we thought it would be, so I guess we need guidance in how we're gonna set that up. Give the approval that is necessary so that it can start. OWENS: Correct. And the, one of the first things they need is who is responsible. It has to be the claimant. On every other claim that has come in on the geothermal has had an individual who has put their name down and said, "I, Raylene Moses, am the claimant, and I will receive the money. I will distribute the money. I will pay the people. I will make the reports, and it's on my head under." I'll stop at that. PATEL: Mr. Chair, if I can. So, justso everyone's on the same page, the Commission nor the claims adjuster can't set anything up, right? Because ultimately what we can do and what I think is being done here today is identifying what the issues are. Hopefully, the claimants can take that back, you know, figure out what they need to do to make a good claim that's gonna go through the claims adjuster and ultimately comply with procurement. But, for the Commission to tell any claimant what needs to be said in a claim and how that claim needs to be finally be presented puts the Commission in a conflict position, right? You wouldn't go into court and ask the judge to tell me how to file my—what I need to write in my complaint. So, I think the best we can do, and I think what's been happening at the past meetings, is we identify the issues. We're here today to understand how the analysis goes. Ultimately, it's up to the claimants whether it be these claimants, any other claimants in the future, to come up and submit a claim that's gonna be in compliance with the rules and in compliance with procurement. So, keep in mind there are, with this particular claim, there's two separate issues, right? There's Rule 12. The Commission did approve initially as against the claim adjuster's report. That was reconsidered, but even if a new claim is submitted that complies with Rule 12 and the claims adjuster recommends or produces a favorable recommendation, that claim, separate and apart from the claim's adjuster's recommendation, is still gonna be, still gonna need to be in compliance with procurement. So, in a nutshell, I think the best we can do is identify the issues, understand the analysis and the process. Hopefully, everyone can take that moving forward and submit something that can go through, that can make what they want to make happen actually happen. HEAUKULANL And toward that end, I think it's helpful that we, we stay away from rhetorical metaphors and that we say exactly what we mean. Mr. Owens, you used a metaphor of someone calling you a name versus somebody punching you in the face, and I think, and correct me if I'm wrong, but I think you said that in the former case, that would not be a claim, but in the latter case, it would be a claim. Is that your position? OWENS: Yes. 7 EXHIBIT D HEAUKULANL So, is it your position or the position of John Mullen & Co. that only physical injuries would result in a claim? OWENS: A claim in and of itself is an injury or a damage, property damage HEAUKULANL Okay, that's not really answering my question, though. I know what a claim is, and I know what an injury or damage is. What I'm asking you is whether you and/or John Mullen & Co. are going to take the position that the only injury or damage is physical in nature? OWENS: If we have a HEAUKULANL —And I'll just let you know I make my living in that building on the other side, and I do not believe that, that to be true, that the only injuries are physical in nature. OWENS: If there is an injury which causes psychological damage and it needs to be addressed that way, then that would be an injury, but it can't HEAUKULANL Or emotional injuries? OWENS: Emotional injury HEAUKULANL Spiritual injuries? OWENS: Spiritual? I would have to see the claim HEAUKULANL —Okay. OWENS: —and do it `cause every claim is taken on its own merit. HEAUKULANL And I want to make sure I understand. You talked about having one individual who could take responsibility for processing the claim, I guess. Is that—could a group take responsibility on behalf of a collective, a larger group of people? OWENS: I would say no, but in the end, it'll be up to the Commission because there needs to be a person. A claimant is a person. It's not a group. I think maybe counsel can say a corporation stands on the place of a person, but there has to be a person in a corporation who is identified, who's going to run—you can't smear it all together. There has to be pretty much a person. Somebody has to sign off on it, not a group. HEAUKULANL And a representative or an agent of the corporation or the non-profit entity? That would be a person. OWENS: Representative or an agent. That would be a person. EXHIBIT D HEAUKULANL Okay, fair enough. Fair enough. Commissioners, do you have any other questions for Mr. Owens at this time? MIYASATO: I have one. HEAUKULANL Commissioner Miyasato, please. MIYASATO: I guess just to clarify. I might have misunderstood, but is Puna being site specific within the application. Did you mention that as a problem? OWENS: Yes, the rule requires Puna and not Big Island. So, there were sections where in the Edelstein report, it was talking about Puna, but in the, I think it's called the preamble, it's talking about the Big Island, and their survey is going to be for the Big Island as a whole. If they're gonna do that, they probably don't want to write it since the rule requires for Puna. MIYASATO: The rule for the fund? Is that what you're talking about? OWENS: Yes. For the majority of the "a class of people." It says a majority of the people of Puna. I would read that as a class of people in Puna. MIYASATO: I guess with the nature of this study being cultural as well as religious, if you practice Pele as part of your religion and not live in Puna, that would still impact you even if you lived in another section of the island. OWENS: It probably can if they're coming into Puna or whatever is going through on that. I personally have not run into any Pele practitioners. I was raised by a Hawaiian grandmother and spoke the language. I don't know what a Pele practitioner is, how they doI only know from the point of a halau that would go through, but there would have to be a connection for Puna, and again, where it's going to be for the Big Island, if they're gonna be branching out as far as for where the rule goes and for the writing, it should just say Puna. What they do afterwards, don't ask, don't tell. That happens with a lot of claims that goes through. Just meet this requirement, and that's all we need. MIYASATO: Okay, and when you say claimant, I guess in your opinion, is, does that need to be like through a doctor, an actual—having actually seen a therapist, doctor, or someone, or someone who just comes before us, testifies with a motion, and acknowledges that they have suffered stress due to the geothermal operation? OWENS: There would have to be something written up. The cases I'm familiar with and have handled in the past for mental or spiritual issues have to be identified by someone of a higher levela doctor or I suppose there could be a pastor or something along those lines—to come up, but there has to be something in there that identifies it. 9 EXHIBIT D MIYASATO: Okay, I guess I misinterpreted that the first time when we passed this through `cause we had, I've witnessed testimony which I interpreted as having effect of stress and emotion and not knowing that it needed to be documented. OWENS: Yeah, emotional distress in claims, there has to be some kind of a documentation to go through. Where it's from? That's going to be up to the particular people, but it MIYASATO: —Okay, and I guess I'm just a little confused as to when you say the claimant needs to be identified `cause I believe it was sometime in the middle of last year, we approved several studies, and I don't recall a specific claimant by name. I recall organizations being named rather than specific people. I can't remember what theU.S., maybe the University was one of `em OWENS: Yeah, we had an individual from the University who signed, whose signature was notarized. That's the claimant. It's a little bit unusual in the rules where it's using claim and claimant. It's being used in several different context. If I had been writing the rules or involved with it, I probably might not have used that terminology all the way through. Probably would be more of as was used earlier, respondent and applicant potentially, or some other terminology. So, the claimant here is the person who is signing their name, notarized as representing or being the agent for the entity that's going to be doing whatever work or is, is monitoring, is having other people do work, and they're gonna be paying those people. Somebody who has that kuleana. MIYASATO: Okay, `cause I get a little bit confused with the procurement process. If that's the case, you know, this application had an amount right up front, yeah? OWENS: Yes. MIYASATO: In the application. OWENS: Yes. MIYASATO: That would be a problem, that amount then? If that's the case? Wouldn't you need to send out an RFP first, get the bid amounts, and then come back for approval of that? OWENS: That's up to the Commission. When they put in the money, request for the others, where it's reviewed in the past when I've gone through it, and/or the course of a number of decades, I kind of know what prices are. Or I've done some research. One was for monitoring systems in Puna so I made calls to find out what is the cost of these things, figured out it's good enough, it's reasonable and appropriate. And we go through, so when we look at it, is this reasonable? Is it appropriate? And then how the money is given out. Who's doing it? That's up to the Commission. I don't write the checks and don't monitor other than you ask me to give a yay or nay. I give it based upon what the rules compliances. MIYASATO: Okay, thank you. 10 EXHIBIT D HEAUKULANL Commissioners, any other questions of Mr. Owens at this time? Thank you, sir. If you could stick around. We will likely have some follow up questions for you OWENS: —Yes. HEAUKULANI at the conclusion of the public testimony. Thank you. MIYASATO: Chair, can we take a five-minute HEAUKULANL —Sure. We're gonna take a short recess, maybe five or ten minutes, and be right back. Chairman Heaukulani called a recess at 10:17 a.m., and the meeting was reconvened at 10:26 a.m. HEAUKULANL I'm going to call the meeting of the Windward Planning Commission back to session and back to order. We have just heard from Mr. Owens. He's going to be standing by if the Commissioners have follow-up questions. At this time, I'm going to open up the public testimony. I have six people signed up to testify on this matter this morning. If you would like to be heard on this agenda item this morning but have not yet signed up, we encourage you to do so. I guess I'll take a couple, three at a time. I would ask Kahu Ronald Fujiyoshi, Rocky Jensen, and Jim Albertini please to step forward to the table. HENKEL: Mr. Chair? HEAUKULANL Oh, I'm sorry. HENKEL: From before, Daryn was going to research how much money was being paid to the claims adjuster. I was wondering if he had that information. HEAUKULANL I believe that he does have that information, and in the meantime, Kahu Fujiyoshi, Mr. Jensen, Mr. Albertini, if you could start making your way up to the table, please. ARAI: Commissioner Henkel, Mr. Chairman, the claim review specific to the Puna Pono Alliance submittal was for the amount of $1,680.58. I should note that the monies that carries this contract with John Mullen & Co. is from the Department. It is not geothermal asset funds. HENKEL: Thank you. HEAUKULANL Thank you, Daryn. ARAI: You're welcome. HEAUKULANL We okay? 11 EXHIBIT D HATA-FINLEY: Yeah, we're trying to help him. HEAUKULANL Oh, okay. Okay, Kahu, you don't have to raise your hand yet. I just called you forward. And Jim Albertini, Rocky Jensen. Please come forward, gentlemen. FUJIYOSHI (from audience): Can we yield—can we request that Palikapu speak first? HEAUKULANL Absolutely. The four of you can come up then if you would. Gentlemen? Thank you, Palikapu. If you raise your right hand, I'd appreciate it if you will swear or affirm to tell the truth on this matter now before the Planning Commission? TESTIFIERS: Yes. HEAUKULANL Thank you, gentlemen. I think you've all been before us before, so you know that my boss sitting over there in the green shirt wants you to speak closely into the microphone, and if you would start your presentation by giving us your full legal name, your place of residence, and then you have three minutes. Palikapu? DEDMAN: Palikapu Dedman with the Pele Defense Fund, 1480 Komohana Street, Hilo. I was listening to the comments by your appraiser, and I was wondering if this, this person does work for EIS's. When you do an EIS, you have a cultural assessment. In that cultural assessment is a section that deals with Hawaiians and their issues. This cultural assessment, the EIS doesn't talk about Portagees, Japanese, Filipinos. It's about Hawaiians. And that is how you do an EIS with a thorough study of impacts on Native Hawaiians, so I'm just wondering if this company does those kind of impact studies on Native Hawaiians to make these claims. Secondly, that I don't understand on a religious claim that I have to be from Puna. I think Jesus Christ is pretty far from home, and He's here, so it's not a matter of insulting a religion that's someplace else. It's right here on this island, and understanding that, when they say just Puna, you've already know that there's been word and there's been language and there's been paperwork about studies going on Hualalai and other parts of the State on the spiritual understanding of geothermal. So, it's not really something that's only supposed to be for Puna. We Hawaiians living here never drew a line that said where Puna was, Kona was, or where Kohala was. That's more in modern times and Western man's understanding about divide and conquering people. That's why we Hawaiians cannot speak for the Hawaiians in Puna. I'm a Hawaiian. The State Constitution doesn't say that we are a separated type of Hawaiians. We are Hawaiians. So, my claims about spirituality in the State of Hawaii should be respected because I think the world respects everybody's religion. We practice that here. So, that's the point I'll try to make, and I'm saying that I don't think they have any understanding about this whole impact and what it really does. On top of that, wasn't that a recommendation from the Puna Pono Alliance with the study, with the Adler study, that that was 12 EXHIBIT D the lacking that was sponsored by Billy Kenoi and the administration to do this study? And the recommendation at the end of the study was exactly what we talking about? How can we forget about that? That was funded by the County or was it funded by County money or geothermal money? How that $50,000 get to Adler and then the decisions at the end was the same thing we're making a claim now? You cannot tell me you guys just hearing about that claim now. The reason why we're here is because of that. And, Puna Pono Alliance is an organization in Puna. Pele Defense Fund is a legitimate organization, too. Why aren't we looked at and talked about or correspond to as a legitimate organization. We've been around way before Puna Pono Alliance? Been making these claims for years! So, I'm just saying that I think it's way off, and you guys gotta make your adjustments. You guys know it's been a year, and you're not gonna tell me that this is the first time this has ever happened about dealing with money and studies. You brought it up. You've done it before. So, I think you should correct things and make it right and pono. And, I appreciate the opportunity to talk. Thank you. HEAUKULANL Thank you, sir. Mr. Jensen? Good morning. JENSEN: `Ano`ai, malihini kipa, kama`aina. Ko`u no [`O ko`u inoa `o] Rocky Ka`iouliokahihikolu`Ehu Jensen. I live in Puna on `Ohi`a Drive, Ainaloa. My practice is an artist. I've been doing this as a carver for 50 years. I had no resources until I came here, and once I came here, I became involved with the concerns of the community. And, my concern was to educate the children—they're the next one in line. But, I appeal to you gentlemen because somehow, we are in that same, not translation or interpretation, but understanding, maopopo ia`u. So, I'm hoping at this point in this hearing that these things have impacted me tremendously. If I was an artist that was just dealing monetarily, I would have said I don't give a rip. But, it affects me culturally. It has affected me psychologically. It's affecting me spiritually because our churches, our temples are gone. I'm not a Christian. I was Morman. I was Catholic. But, it didn't do me any good because my practice was creating idols. So, as an oxymoron, how can I live my life if my passion was to create spiritual and religious relics from the past so I could teach my children how to accept them easier? I find that because of these kinds of distractions, it reminds me of Houdini saying how do you get the elephant off the stage? Misdirection he said. And, sometimes I look at my culture. I look at me as a person. You know, we talked about the metaphors. Artists are really good at that. We tell lies to reveal the truth while people involved with government tell lies to hide it. I'm disappointed because I'm 72 years old. I thought in coming home that I would pursue the life, liberty, and happiness as a Maoli person, as a Native Hawaiian. But, these kinds of distractions defer and move me from my place of practice. It isit is psychologically damaging. It's spiritually damaging. I don't know how to explain it. I just continue on because my whole motivation is, hopefully, to keep these things out there, so I can anchor the youth of Hawaii to be aware of it. 13 EXHIBIT D Mahalo. HEAUKULANL Thank you, sir. Who's next? Kahu? FUJIYOSHL Thank you. My name is Ronald Fujiyoshi. I live on 1196 West Kawailani Street. I'm the treasurer of Ohana Ho`opakele and grateful for the opportunity to share my views. I wonder ifI heard the claims adjuster, James Owens, say that he was raised in Ka`u, and I wonder whether he's seen the film, Pele's Appeal. [Secretary's Note: Mr. Owens shook his head indicating "no" to Mr. Fujiyoshi.] Now, I'm kind of surprised that he hasn't seen Pele's Appeal orI think we gave you a list of different Federal laws, State Constitution, and case law that uphold the rights of Native Hawaiians. Now, Pele's Appeal was made in 1989. That's 27 years ago. And, on that Pele's Appeal it's very clear Palikapu Dedman saying exactly what we're saying today. That this study gotta be done to show the damage to Native Hawaiians according to their religion, their culture, their spiritual background. That's 27 years ago! So, to me, now what we're talking about, I don't know if you know the expression, "You cannot see the forest because of the trees." It means that you're so focused on certain trees that you cannot see the whole forest. And, to me, when we're talking about the whole geothermal area, we're talking about an area that was a famous lowland rainforest, right? And, since then, you have now invasive species, not only plants and insects. Some brought purposely to Hawaii to supposedly improve the situation, and cause problems like mongoose and other things, right? And, here we have all of us non -Hawaiians over there, are being deciding, according to very non -indigenous standards, what is the problem to be solved, yeah? And, to me, the decision was under Adler's study, their conclusion was there was not one Hawaiian on that study, and, therefore, it was lacking; and their recommendation is exactly to have this done. And, I think that the decision that was made in January a year ago is already, was adequate. That instead of the claims adjuster saying, instead of recommending denial, he should—you can go forward with the study if these things were done and direct the staff of the Planning Department to work together with the claimants and Pele Defense is one of them who has a history of working for Native rights in Puna, right? And, one of the immediate case studies that they won on was that you don't have to be a person in that ahupua`a to go out and be one who gathers and does things there. In fact, a lot of Hawaiians may not express all of their things to do. Let me give you an example. When there was the lava flow on Puna, only when the suggestion came up to use explosives to divert the lava did some Hawaiians come up and say this is affront to my religion, yeah? In other words, up to then, they weren't not exclaiming in the streets that they are Pele believers, but when it came to something that was vital to them, that's when they spoke up. So, to me, you need to go back to your original decision which was ignore the claims adjuster one, and then work with the claimants, which is Pele Defense, should be upfront, and then figure out how to do that. Duane has been working with Palikapu all these years. He should know what is needed to get it done, and so I don't understand what's holding this thing up. 14 EXHIBIT D Thank you. HEAUKULANL Thank you. Mr. Albertini? Good morning. ALBERTINL Good morning. Good morning, Commissioners. Aloha. I didn't submit written testimony today because I submitted written testimony to this Commission twice before—in January 2015 and in the more recent hearing. I want to affirm what Pali and Ron said, and our organization Malu `Rina. We've been working in solidarity with Pele Defense Fund for 30 years on this issue. We helped to organize some of the big protest in Wao Kele o Puna Rainforest. But, to me, the real issue here is the tail's wagging the dog. The claims adjuster here is kind of dictating what's going on, and there's something wrong with that picture. And I don't know what it is, whether it's just bureaucratic bumbling that we're dragging our `okoles down the road here or if there's something more serious. You know, this is the kind of study that should be done on everything. There should have been a study like this done on Mauna Kea. There should be a study done when we're taking control of the beaches and privatizing mauka-makai trails and all these things, how it impacts people. But it's not done! And maybe those in real power don't want this study done because if the impacts are put on paper and made clear, then what? What's it gonna have the effects on all these future kind of developments. So, I think we need to move it forward. I'm tired of coming to the Commission here. It's a bureaucratic problem, I think, unless it's more principle like I'm talking about power. So find a way to move it forward. That's not our job. That's your job, and it's the Planning Department's job, and the Finance Department procurement. All those kind of things that our taxes are paying for. Let's move it forward, and work with Pele Defense Fund. Work with any other of the groups if we can be of support. Thank you. HEAUKULANL Thank you, Mr. Albertini. You know, I'm comfortable enough with you to engage in a conversation here, so I'm not sure that I agree—well, two things I don't agree with. First, I don't agree that, that tail is wagging this dog. ALBERTINL Good! HEAUKULANL You know, as—as a procedural history of this case has made clear, there was an initial recommendation to deny the claim, and this Commission overruled that. So, we're not really talking about dogs or tails. What we're talking about is funding this study or a study that fits into the bureaucratic bumblings, and that's not really our job, but, you know, I sincerely want today to be a roadmap so that interested parties can put together one that can, can find its way through that. 15 EXHIBIT D And, I—well, no question about that. No question that it's long overdue. ALBERTINL It's thirty years late. HEAUKULANL It's long overdue. No question about that. But, this is a very special situation. This is—and I mean that in a lot of different ways. It's, you know, an opportunity, and it's a crisis. There is a fund of money that is available to do some things that we may, we probably don't have the resources to do up on the Mauna or on the beaches or anyplace else. But, we've got the resources in a fund sitting there, waiting for the right group of motivated individuals to put together a proposal that can get through this bureaucratic nonsense. So, that's—that's our sincere hope, at least from where I'm sitting. Commissioners, does anyone have any questions for this group of individuals? Hearing none, thank you, gentlemen. I very, very much appreciate your mana`o, your `ike this morning. Thank you for coming. I'm going to call the next—we've had an add-on. Cory Harden, please. Tom Travis and Bob I'll apologize again, Bob Petricci. Close enough? All right. I'm working on it. PETRICCI (from audience): (Inaudible.) HEAUKULANL Cory Harden, Tom Travis, Robert Petricci. Good morning, folks. You've all testified before us in the past. If you could please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Planning Commission? TESTIFIERS: Yes/I do. HEAUKULANL Thank you very much. Thank you for being here. And, I guess you know the drill, too. Please speak as closely into the microphone as you can so we get a good transcript out of this. At the beginning of your presentation if you would state your full legal name, tell us where you reside, and we've got three minutes each. Who wants to start? Good morning. HARDEN: Good morning. Cory Harden. Legal name, Martha. Live in Hilo. Here for Sierra Club Moku Loa Group. Just want to thank you for your efforts to move this thing forward. It strikes meI'd like to see perhaps some way that the claims adjuster could just talk story with the people writing the proposal. Now, it's kind of like people write up this huge, detailed thing then the claims adjuster says this isn't right, this isn't right, this isn't right. Kicks it back. But, if the people writing it could have more guidance as to what is right not just what's wrong, I think that would help, and I think that this, today is a good first step to perhaps getting that going. I have one question that perhaps could be answered later, but does it have to be a majority of people in Puna who are affected, and if you're just looking at Native Hawaiians, they're not a majority `cause people have come in and they've been wiped out over, you know, that past 100- 150 years, so, does it have to mean majority of people in Puna. 16 EXHIBIT D And, when Mr. Owens, you asked him about spiritual impacts and he was not sure about that, if St. Joseph's Church was vandalized, everybody would get it. But, when it's damage to a landscape that people are deeply connected to and that's how they have their spiritual connection, people don't get that. I just see a real cultural clash with all the requirements, legal requirements, and then it's trying to put these on Hawaiian culture, and I'm just seeing a real clash and that, hopefully, as people talk to the claims adjuster, a way can be found to work with that. So, thank you again for your work. HEAUKULANL Thank you. Good morning, sir. TRAVIS: Good morning. My name is Tom Travis. I am not going to read my testimony. l gave you written testimony, and I'll let that serve. I'm only going to restate the summary of main points which is that the claims adjuster recommends and the Windward Planning Commission decides. The claims adjuster recommendation for disapproval. Much of that letter was bureaucratic and legalistic. The maze created makes it difficult for those of us in community organizations to use the Geothermal Asset Fund. It's difficult to know how to work through that maze, but the Mayor's office has successfully worked through that, and with the help of the Planning Department, I was able to get a hold of the major—Mayor department, Mayor's office's proposals, how they worded it for the claims adjuster. And, with the insight provided at how they constructed the language, I think that it could be rewritten to meet most of those requirements. Finally, there are some issues, some substantive issues raised by the claims adjuster, but I think they also can be rapidly resolved if we can work with the County. The two issues that I felt substantive issues—my opinion, the substantive issues, is one is that there is no claimant. There's nobody to write a check to, and that's a big problem `cause nobody, you got to give money to somebody that's accountable. I think that the group of organizations, and by the way, it's more than Puna Pono Alliance. There are six or seven organizations represented in the signatories. But, I think those of us, those organizations, that I think we can get, get together and set up a claimant so that somebody would be responsible to get the money and then administer. I don't think that's a problem. The second problem, substantive problem that I got reading the recent letter, was that almost all of the Mayor's office projects use the Adler study as the proof of damage even though I don't know how buying a monitor resolves real damage, but for the game we're playing, the bureaucratic game, they use the Adler study. And, the Adler study had no, in the recommendations and findings, the Alder study didn't have anything that addressed the Native Hawaiian issue because as has been stated before in previous testimony, we got to it late, and there were no Hawaiians on the Adler Study Group. 17 EXHIBIT D So, the Commission is in a position, I think, that if they feel that it's self-evident that such a study needs to be done, that that would be my position, then the fact that it is not part of the recommendations of the Adler study could be disregarded. Finally, there's one last thing, and this is procedural. When Councilman Ikeda asked for a reconsideration of the motion, I read the procedure to do that, and what it says is that you can do that once but you can't do it twice. And, I would like to be assured before we move forward that if we move for resubmission of some sort that that won't violate the rule in which Commissioner Ikeda asked for recommission or reconsideration. It's a legalistic questions, but I think it needs to be addressed. Thank you. HEAUKULANL Thank you, sir. Mr. Petricci. Good morning, sir. PETRICCL Hello, good morning. Thank you, Commission. Robert Petricci. I live at Pohoiki in Puna. And, so I think, you know, we're seeing problems with the rules here and that goes all the way back to when the community objected to these rules being passed and now it's manifesting here. We've been coming back. In fact, so, at some point, down the road, we probably should look at fixing the rules so we don't end up doing this again in the future. And, let's see, so we've had pretty much a consensus, I think, that everybody says, you know, we gotta get this done, we gotta get this done, but we just don't seem to able to get it done. We keep coming back here, so I'm not sure how to fix that. I don't see how, you know, funding a toilet or funding a bus stop or paving a road has a physical injury to somebody. The claims adjuster said well, we can't do this because we don't have a physical injury. He funded a toilet, and he funded a bus stop, and he funded paving the road. I didn't see a physical injury there. So, how can we accomplish those kind of things, but this fund was intended to mitigate impacts from geothermal development, and this is one of those things that this fund was specifically set up to do. I was there. Duane was there. That's what we talked about. And here we are, and we can't get it done. So, like Rocky was saying, or one of the testifiers was saying, you know, it starts to look like, you know, there's political pressure or there's political reasons why this isn't getting done. And, I mean, I'm not sure, but why isn't it getting done if it's not the reason? We've been here. We've been over this stuff, and, you know, another thing that Mr. Owen's said was that, well, it has to be for Puna only. It can't be, and so you should rewrite the thing and you should say that even if you intend to do something else. That's how developers do things. That's how politicians do things. That's not how we do things. We came here, and we said what we want to do. And, we're told well, why don't you just lie or why don't you just make up something else, and I think that's not the proper way to do things. Maybe we need a new claims adjuster. Thank you. HEAUKULANL Thank you, sir. Commissioners, does anyone have any questions for this group of testifiers? Hearing none, thank you very much for being here. Do we have anyone else 18 EXHIBIT D that did not sign up but who would like to be heard on this agenda item? Commissionersoh, I'm sorry. SHAW (from audience): It'll just be quick. HEAUKULANL Step up, sir. Welcome. Good morning. If you could raise your right hand, please? Do you swear or affirm that you'll tell the truth on this matter now before the Planning Commission? SHAW: Yes, I do. HEAUKULANL Very well. That microphone in front of you, if you could speak directly into it, and start off by telling us your full legal name, where you reside, and what's on your mind this morning, and we've got three minutes. SHAW: Geoffrey Shaw, Orchidland Estates in Puna. And, this is just more just about stuff like this in general. You know, that it's just a mistake it seems like to me to avoid the logic of, of figuring out how to move forward in Hawaii without understanding the Hawaiian issues. And, that's basically what you're gonna be able to glean from this study, and, you know, let's just get it done. You know, I mean, it, to think that we can continue moving forward and keep trying to, to ram stuff down people's throats and, and putting bad—bad and trying to make people accept bad ideas for, for how Hawaii should be in the future is not a, is not a good procedure. Or just even giving developers the idea that, that, you know, that they can just keep coming with different things and throwing stuff at the wall, throwing spaghetti at the wall and seeing what sticks. You know, we need to start doing stuff in a more educated and, and, you know, thoughtful manner. And, you know, this is—this is a way that the process can, can happen. And, I think all you guys seem to agree with that but obviously somebody doesn't, you know, and maybe Danny can forward that, you know, and—and get people thinking that, you know, hey, but let's work it out. Let's do it, you know. And, anyhow, that's my, my testimony. HEAUKULANL Thank you, sir. Commissioners, anyone have questions? Thank you. Commissioners, do—let me just ask this. Going once. Going twice. Anyone else want to testify on this matter? CULINA (from audience): (Inaudible.) HEAUKULANL Maybe I shouldn't have asked, but good morning and welcome. You've testified before us in the past. Could you please raise your right hand? And, do you swear or affirm to tell the truth on this matter now before the Planning Commission? CULINA: I do. 19 EXHIBIT D HEAUKULANL Thank you. You're doing a very good job speaking directly into the microphone. It's much appreciated. Please give us your full legal name, where you reside, and tell us what's on your mind. CULINA: Aloha, everybody. My name is Katarina Culina. I live in Pahoa. I just want to say thank you to Raylene and Gregory and Chairman Charles forI think the three of you really have put a lot of effort into making this happen. And everybody for showing more of the goodwill to move this along because I feel this is, you know, the least that we owe to Hawaiians. They have suffered immense damage. Immense damage since the beginning, you know, of the white people coming to these islands. They took over the islands illegally. You know, this is and then further stepping on them and just crushing them more and more and more, it's just, you know, heartbreaking. I mean, and if you need the proof how much they were damaged Mr. Claims Adjuster, I mean you can just look go and look at what happened with Mauna Kea recently. I mean, there were so many. There was such an outpouring of Hawaiians that were willing to be arrested. They were willing, you know, they were willing to suffer legal damages that were really not appropriate in that case, but they were willing to do it because this is, this is their religion. The land is their religion. It's sacred. The land is sacred. And, I think that should be also for white people. Land is sacred. We really can't chew on the money. We cannot chew the dollars. We need the land. We need healthy land. We need healthy people. We need a healthy society. And, you guys are in position to move us in that direction, towards the health. So, thanks so much for stepping in that direction. I appreciate it. HEAUKULANL Thank you. Almost afraid to ask. We may have exhausted the room, but anyone else have mana`o they want to share this morning on this issue that hasn't already testified. All right, seeing none, Commissioners, could I get a motion to close public testimony? MOSES: I make a motion to close public testimony. HEAUKULANL Thank you, Commissioner Moses. HENKEL: Second. HEAUKULANL Second by Commissioner Henkel. Any, any discussion? Hearing none. All those in favor signify by saying aye. COMMISSIONERS: Aye. HEAUKULANL Any opposition? Hearing none, the motion to close public testimony carries. This is kind of unusual the way this agenda item came before us, but Commissioners, does anyone have any more questions for Mr. Owens before we close and based on what you might have heard from the members of the public who testified? None. 20 EXHIBIT D Okay, currently, there's no claim for us to act upon. I shared my thoughts on, that I was hoping this would better understand the process for everyone involved—at least some aspects of a road map for the future and something we can take into account if another claim gets submitted in the future. Very much appreciate all of you coming to testify on this matter and the work you're doing in that regard. Thank you. I guess we'll move on to household matters. We'll close that one now. MOSES: Mr. Chair, I have one question. HEAUKULANL Certainly. MOSES: Mr. Travis brought up about the motion? The second time that Mr. Ikeda brought up. Could you repeat that? [Secretary's Note: Directed to Tom Travis in audience.] TRAVIS (from audience): Well, it'sit's ARAI: Excuse me TRAVIS (from audience): Go ahead. MOSES: Sorry. KAY: Microphone. HATA-FINLEY: Microphone. MOSES: Does it affect us in any way, Daryn, moving forward? What Mr. Travis brought up? PATEL: I thinkI can answer that. MOSES: Oh, thank you, Danny. PATEL: So, presumably, it will be a new claim, right? You're not going to submit the exact same thing. Your question TRAVIS (from audience): Well, the study would be the same I'm sure. PATEL: But, it'd be a new claim, right? TRAVIS (from audience): The cover letter, right. 21 EXHIBIT D PATEL: Right, so they—it'd, there'd be nothing to reconsider, so that rule wouldn't apply, but, you know, I say that with the caveat that, of course, we'd need to see the claim first. MOSES: Thank you, Danny. HEAUKULANL Thank you. HENKEL: Mr. Chair, you know, for clarification, a year ago, we did approve this study, and then Mr. Ikeda, in his defense, his motion for reconsideration was to make sure that we were doing it right so that the funds would be dispersed, and I personally can't help but feel that since then, there, you know, there's been obstruction, and I want to see it get done, what we've already decided to do. So, I hope it's resubmitted and agendized as soon as, as soon as possible so that we can move on. HEAUKULANL Thank you, Commissioner Henkel. Anything else? IKEDA: Maybe I'll justify my HEAUKULANL No, I don't think it's necessary for you to justify it, but I'd like to hear what's on your mind. I completely understand where you went with it. I think I might have seconded your motion because I understood the procurement issue, and I was unwilling to send this into the financial abyss, but I would like to hear your thoughts. IKEDA: Exactly. If I didn't reconsider it, it'd be in the financial abyss where it'll never get funded, and you guys will be there in "hopeful land" and nothing's going to material. This way you have a chance to come back and reapply, hopefully, working with Mr. Olson [sic] to get it done correctly or to meet his satisfaction. And, somehow, you guys have to get together with Mr. Olson [sic] to try to figure out what he really wants to have it pass. But, as you know, the whole Commission do support this study. HEAUKULANL And on those lines, I think Ms. Harden suggested an opportunity to talk story or at least bounce ideas off one another maybe in a little bit more efficient way then submitting it, getting bounced, submitting it and getting bounced. So, I would encourage everyone involved—everyone involved to take, think seriously about that. I think that that would be an efficient way to move this forward. Anything else, Commission? Okay, we're going to move on. Thank you, again, everyone. The discussion ended at 11:05 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 22 EXHIBIT D