HomeMy WebLinkAboutCOM 0620.085 2022-2024 P /Counci I
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COMM.620
:, SIERRACLUB
HAWAI`I ISLAND GROUP
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December 19. 2023 w c.^
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Hawai'i County Council --
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25 Aupuni St.
Hilo HI 96720
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Re: Corn 620.01: Resolution 372-23 —Request for Reconsideration; Resolution 372-23
Welina mai Madame Chair and Councilmembers:
The Sierra Club of Hawaii, Hawaii Island Group (HIG) urges the members of county council
(`'council")to vote in favor of reconsideration of Resolution 372-23 ("Reso") in order to bring it
back to the floor for further discussion and to amend for the following reasons.
A whereas clause is a statement in a resolution that provides the background information and
context for the main purpose of the resolution. As currently written, the whereas clauses in the
Reso do not provide the general public with sufficient background information and context to
provide the council with informed input. In addition,the council's discussion, debate, and
questions of the Reso during its December 5th meeting gave the impression that the council itself
had not been sufficiently informed by the whereas clauses or by information received in the
Executive Session.
As currently written, the Reso does not provide important information. such as the fact the
United State District Court for the District of Hawai'i("Court"). Hui Malama Honokohau, and
the county agreed on November 20th that the lawsuit would be split into two phases, a liability
phase and a remedies phase. The parties also agreed to a schedule. During the liability phase,
two settlement conferences have been scheduled for February and July 2024. If there is no
settlement, the non jury trial portion of the liability phases is scheduled for November 5, 2024.
At the conclusion of the liabilities phase, a Declaratory Judgment will be issued by the Court as
to whether or not the county is in violation of the Clean Water Act. H1G believes the Reso
should be amended to include this information to better inform the public about these facts.
Unless or until Corporation Counsel hires staff with sufficient expertise and experience to
provide for proper legal representation and defense in the lawsuit, special counsel will be needed
until the conclusion of the liability phase and/or settlement. HIG believes the Reso should be
amended to provide for, yet limit, special counsel representation until the conclusion of the
liability phase (Declaratory Judgment)and/or completion of settlement negotiations.
P 0 Box 1137 H110 HI 96721-1137 hawaiiistandsierraclubca,gnail.corn Comm. No. I •
Ref. To: ' (III 1'J
Ref. Date 1
At this time.the outcome of the liability phase cannot be predicted. Nor can the necessity for a
remedies phase requiring legal representation for the county be known. That eventuality will be
dependent upon the Court's ruling at the conclusion of the liability phase. Until that time, in
order to provide reasonable assurance that the county is being fiscally responsible in ifs
litigation,the council should amend the Reso to add language that ensures that Corporation
Counsel will come back to the council via a resolution to address the events that have occurred at
the conclusion of the liability phase. This will provide additional timely background information
and context for the council and the general public to allow for informed public testimony. It
would also enable relevant, informed, and substantive debate and decision-making by the council
to address additional anticipated obligations of the county.
HIG does not purport to know the eventual outcome of the lawsuit, but hopes the council will
reconsider the Reso and amend in accordance with the reasons provided above.
Community feedback and testimony has consistently expressed concerns about the potential
legal cost that will be incurred by county taxpayers, not only because outside special counsel is
required to provide an appropriate legal defense, but also because it is likely county taxpayers
will also be liable for Hui Malama Honokohau's attorneys' fees and costs as well. Hawai'i
Supreme Court rulings in other cases brought by private citizens have upheld the"private
attorney general doctrine". This doctrine is an equitable rule that allows courts in their discretion
to award attorneys' fees to plaintiffs who have "vindicated important public rights." Clearly, the
right to clean water for recreational and traditional and customary practices is an important
public right. This right has also been upheld by a state Supreme Court ruling that the county has
an affirmative duty to protect nearshore marine waters under the public trust doctrine.
HIG hopes the council and the county administration will work quickly to resolve the wastewater
issues that exist, not only at the Kealakehe Wastewater Treatment Plant, but those that have
existed for decades throughout our island. County taxpayers do not want to have to sue
themselves to compel their government to follow laws, rules, and regulations. To say that they
would rather be funding infrastructure projects than paying for both the plaintiffs and defense's
attorneys is an understatement.
Mahalo nui loa,
Chuck Flahcrt