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HomeMy WebLinkAboutCOM 0875.004 2022-2024 p /Council Res,518-24 A. Lono Lyman C,OMM.875 Manager and Konohiki Kapoho Companies P. O. Box 374 Hilo, Hawai'i 96721 June 4, 2024 ` Q Aloha Hawai'i County Members: -1-' Regarding Draft Resolution 518-24 • riT • I am asking that Resolution 518-24 be denied or withdrawn. f am A Lono Lyman,and I.am the sole representative for the landowner of the properties that are the subject of this proposed authorization for condemnation. I am the manager and the Konohiki of Kapoho Land& Development Co. Ltd.and Kapoho Land Partnership,a Hawai'i limited partnership with Kapoho Management Company Inc. as its general partner. (Collectively these are referred here as the Kapoho Companies.)I was the Hawai'i County Planning Director between December 1984 and December 1988, and since 1973 have had a career in Hawai'i land use and environmental planning and permitting. The Roth administration has not had a single negotiation, meeting or conversation with the Kapoho Companies about use of these lands for the Pohoiki Road restoration but is asking this Council to exercise its extraordinary power of condemnation to take these lands. 'l'he last conversation I had with the County about use of these properties for the restoration and realignment of upper Pohoiki Road was with Ben Ishii, before he retired. He told me that the Kapoho Company lands were not needed for the realignments of Pohoiki Road, or for the government Road(Highway 137), and for Highway 1.32 restorations Makai of Old Government Road (Lighthouse Road). This was restated to me many times by Roth • Administration Planning Director Zendo Kern,who has consistently told me that the County does not need any more of the Kapoho Companies' lands for the 2016 LERZ eruption restoration program. in addition to having had zero negotiations, discussions,and meetings with the Roth administration regarding Pohoiki Road restoration, I have not been notified of this proposed resolution by any means other than the coconut wireless. I have been contacted by two landowners who abut Pohoiki Road,and they both tell me that the county administration has made last minute changes requesting the uses of their lands for Pohoiki Road The LERZ eruption restoration work should have been conducted with a Hawai'i State HRS 343 EA/EIS. I have provided the Roth administration with legal analysis supporting this position, and their response has always been that they will do what is legally required. The HRS 343 EA/EIS process would have addressed alignment issues and the potential environmental and cultural impacts that are now surfacing with the rush to do something before the 2024 elections. Portions of this work in the Special Management Area("SMA") outside of the right- of-way also may trigger SMA permit requirements. I will not be able to attend the Wednesday morning County Council meeting because of midday meetings i have on Oahu, but I will make myself available all-day Tuesday and on Wednesday morning by phone. I can be contacted at 808-282-0448. • Mahalo a nui loa, '`r A. Lono Lyman Kapoho Companies Manager and Kono PS: Public Work's statement last week at a Puna Revitalization meeting that 1 was extremely ill is not true! Comm. TS, Ref.To: Ref.Date A. Lono Lyman Manager and Konoiki Kapoho Companies P. O. Box 374 Hilo, Hawai'i 96721 June 4,2024 Aloha Hawai'i County Members: Regarding Draft Resolution 518-24 I am asking that Resolution 518-24 be denied or withdrawn. Accompanying are two photos taken by Hawaii County Police of a crime hub and chop-shop that was established on Kapoho Land properties after the reopening of Highway 132. HPD and the mayor have been supportive of enforcement. However the clean up will cost a low five figures. I will not be able to attend the Wednesday morning County Council meeting because of midday meetings I have on Oahu,but I will make myself available all-day Tuesday and on Wednesday morning by phone. I can be contacted at 808-282-0448. Mahalo a nui loa, a .ems .eyinan, A Lono Lyman Kapoho Companies Manager and Konohiki Highway 132 Crime Hub and Chop-shop On Kapoho Companies lands established after the opening of Highway 132. 41) 12, • kr Act, R a auoa ' 0104d 9. i Y .i1 fill k � f'Ctd.:',,,,,,,,,A,...) `, ! • i F _ x ry p• w j v Y ,e. I ° I . I girt 1 3 ; '-' r- -'' ' ' ill ' '" -----'.- '. V. i t t t • A. Lono Lyman Manager and Konoiki Kapoho Companies P. O. Box 374 Hilo, Hawai'i 96721 June 4,2024 • Aloha Hawai'i County Members: Supplemental Testimony 3 Regarding Draft Resolution 518-24 I am asking that Resolution 518-24 be denied or withdrawn. Accompanying are images of Kumukahi and the impacts from the reopening of Highway 132 dispite the Lighthouse Road remaining closed. I will not be able to attend the Wednesday morning County Council meeting because of midday meetings I have on Oahu,but I will make myself available all-day Tuesday and on Wednesday morning by phone. I can be contacted at 808-282-0448. Mahalo a nui loa, A Lono Lyman Kapoho Companies Manager and Konohiki • 4a "HE KAULANA KA'AINA 0 PUNA NO KA PUKA MAI 0 KA LA MA KUMUKAHI..." (THE LAND OF PUNA IS FAMOUS FOR THE SUN'S FIRST APPEARANCE AT KUMUKAHI). Quote from A RESOURCE GUIDE OF TRADITIONS AND HISTORY or KUMUKAHI,THE AHUPUA'A OF KULA AHUPUA'A AND DISTRICT OF PUNA, Kumu Pono Associates, November 2022. t. • Tor • Post-2018 LERZ eruption tracks off Lighthouse Road as evidence of trespassing on private property and violation of Hawaii State statutes and applicable administrative rules regulating the State Conservation District and protecting pre- contact Hawaiian cultural sites and protecting federal rare and endangered species and their habitats. • 4 • • a h r Pre-2018 LERZ eruption tracks off of Lighthouse Road as evidence of trespassing on private property and violation of Hawaii State statutes and applicable administrative rules regulating the State Conservation District and protecting pre- contact Hawaiian cultural sites,and protecting rare and endangered species and their habitats. „*, x-r. • , • • ar w,r • iiit a wj , •. �i F y � • s gig+� Y ^ 1� v ty `"f •��aw •' s ••Y• , w . s yr` w f < 4. 4111, ., fit- -„ .,�. - ,.'�♦s� t + \\ t �'fi ' ' "q �r ,,r art; `� , 111P• • IPL-4.1141"-.4141.1.- ler . „,-..--t-,-,,,,,,,... _.,,,,-,'. + �+I` - _ ,. . /1- ... .,. , ,, '. ` , a There are no bathroom facilities at Kumukahi. Emergency access is by helicopter. ": ,.. w A -_ • .. • P Post-2018 LERZ eruption vehicles on private property made a road to the Lighthouse Road in violation of Hawaii State statutes and applicable administrative rules regulating the State Conservation District and protecting pre-contact Hawaiian cultural sites and protecting federal rare and endangered species and their habitats. _ sr r _ _F. - -. .2 — _....-„a„-,...----;_it. ram. rt _-._ .«»..a w. . s` «a- T ate ._�.. __e 2J. _.- _--_-... At- -- ,..=-4,—...,... r a Pre-2018 LERZ,about 100 cars and several hundred campers at Kapoho Bay end of the accreted land. All vehicles and users trespass over private to get to this destination. A. Lono Lyman Manager and Konohiki Kapoho Companies P. O. Box 374 Hilo, Hawai'i 96721 June 4, 2024 Aloha Hawai'i County Members: Supplemental Testimony 5 Regarding Draft Resolution 518-24 1 am asking that Resolution 518-24 be denied or withdrawn. Accompanying is a copy of the legal analysis I provided the County administration regarding the Hawaii State environmental reporting requirements for the HRS 343 EA/EIS for the 2018 LERZ eruption revitalization infrastructure projects. The County administration has not provided any reason for the requirements not being applicable. - I will not be able to attend the Wednesday morning County Council meeting because of midday meetings I have on Oahu,but I will make myself available all-day Tuesday and on Wednesday morning by phone. I can be contacted at 808-282-0448. Mahalo a nui loa, '41111011111 A Lono Lyman q_ . . Kapoho Companies Manager and Konohiki 11-200.1-2: "Program"means a series of one of more projects to be carried out concurrently or in phases within a general timeline,that may include multiple sites or geographic areas,and is undertaken for a broad goal or purpose.A program may include:a number of separate projects in a given geographic area which, if considered singly, may have minor impacts, but if considered together, may have significant impacts;separate projects having generic or common impacts; an entire plan having wide application or restricting the range of future alternative policies or actions, including new significant changes to existing land use plans, development plans,zoning regulations,or agency comprehensive resource management plans; implementation of multiple projects over a long time frame; or implementation of a single project over a large geographic area. "Project" means a discrete,planned undertaking that is site and time specific, has a specific goal or purpose, and has potential impact to the environment. §11-200.1-10 Multiple or phased actions.A group of actions shall be treated as a single action when: The component actions are phases or increments of a larger total program; An individual action is a necessary precedent to a larger action; An individual action represents a commitment to a larger action;or The actions in question are essentially identical and a single EA or EIS will adequately address the impacts of each individual action and those of the group of actions as a whole. §11-200.1-13 Significance criteria. (a) In considering the significance of potential environmental effects, agencies shall consider and evaluate the sum of effects of the proposed action on the quality of the environment. (b) In determining whether an action may have a significant effect on the environment,the agency shall consider every phase of a proposed action,the expected impacts, and the proposed mitigation measures. In most instances,an action shall be determined to have a significant effect on the environment if it may: Irrevocably commit a natural,cultural,or historic resource; Curtail the range of beneficial uses of the environment; Conflict with the State's environmental policies or long-term environmental goals established by law; Have a substantial adverse effect on the economic welfare, social welfare,or cultural practices of the community and State; Have a substantial adverse effect on public health; Involve adverse secondary impacts,such as population changes or effects on public facilities; Involve a substantial degradation of environmental quality; Be individually limited but cumulatively have substantial adverse effect upon the environment or involves a commitment for larger actions; Have a substantial adverse effect on a rare,threatened, or endangered species,or its habitat; Have a substantial adverse effect on air or water quality or ambient noise levels; Have a substantial adverse effect on or be likely to suffer damage by being located in an environmentally sensitive area such as a flood plain, tsunami zone,sea level rise exposure area, beach, erosion-prone area,geologically hazardous land, estuary, fresh water,or coastal waters; (12) Have a substantial adverse effect on scenic vistas and viewplanes, during day or night, identified in county or state plans or studies;or ( I ') Require substantial energy consumption or emit substantial greenhouse gases. 11-200.1-15 (d) All exemptions under subchapter 8 are inapplicable when the cumulative impact of planned successive actions in the same place,over time, is significant,or when an action that is normally insignificant in its impact on the environment may be significant in a particularly sensitive environment. 31- When the responsibility of preparing an EIS is delegated to a state or county agency, this chapter shall apply in addition to federal requirements under the NEPA.The office and state or county agencies shall cooperate with federal entities to the fullest extent possible to reduce duplication between federal and state requirements.This cooperation,to the fullest extent possible, shall include joint EISs with concurrent public review and processing at both levels of government. Where federal law has EIS requirements in addition to but not in conflictwith this chapter,the office and agencies shall cooperate in fulfilling the requirements so that one document shall comply with all applicable laws. Where the NEPA process requires earlier or more stringent public review,filing,and distribution than under this chapter,that NEPA process shall satisfy this chapter so that duplicative consultation or review does not occur.The responsible federal entity's supplemental EIS requirements shall apply in these cases in place of this chapter's supplemental EIS requirements. The course and scope of conduct allowed by both recreational and commercial aquarium collection permits issued under HRS§ 188-31 and DLNR's administrative scheme encompass activity that qualifies as a "program"or"project."The activity is a "specific plan"or"a planned undertaking"—and,therefore, a "project"—because it involves the systematic and deliberate extraction of aquatic life using procedures,equipment,facilities, and techniques authorized or required by HRS§ 188-31 and related administrative rules for the specific purpose of holding captive such aquatic life for aquarium purposes in order to earn profit(in the case of commercial permit holders)or for non-commercial use(in the case of recreational permit holders). In the same vein,both recreational and commercial aquarium collection are "programs"within the plain meaning of that word:the"plan or system under which action may be taken" is the purposeful and methodical extraction of aquatic life from State waters through the use of fine meshed nets and traps and the transfer of such aquatic life to facilities that are capable of keeping the collected aquatic life alive.The "desired goal" is to take aquatic life from its habitat and hold it in a state of captivity for aquarium purposes, as defined by HRS§ 188-31(d)(1), in order to earn profits(in the case of commercial permit holders)or for non-commercial use(in the case of recreational permit holders).Additionally,the method by which extraction is accomplished involves instruments and techniques that enhance the efficiency and amount of the collection.22 Accordingly, aquarium collection conducted under permits [403 P.3d 292] issued pursuant to HRS§ 188-31 and DLNR's administrative rules is a "program or project"and therefore constitutes a HEPA"action."... Umberger v. Dep't of Land& Natural Res.,403 P.3d 277(Haw. 2017) It has been frequently stated that"HEPA's purpose is'to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations.'" Nuuanu Valley Ass'n v.City&Ctv.of Honolulu, 119 Hawaii 90, 103, 194 P.3d 531, 544(2008) (quoting HRS§ 343-1 ).The Hawaii Legislature enacted HEPA after finding"that an environmental review process will integrate the review of environmental concerns with existing planning processes of the State and counties and alert decision makers to significant environmental effects which may result from the implementation of certain actions." HRS§ 343-1.The legislature also found "that the process of reviewing environmental effects is desirable because environmental consciousness is enhanced, cooperation and coordination are encouraged, and public participation during the review process benefits all parties involved and society as a whole." Id. Environmental impact statements also"allow decision-makers to make informed decisions"when confronted by certain proposed actions. H.Stand. Comm. Rep. No. 521, in 2005 House Journal,at 1242. The purpose of HEPA and the legislature's intent in enacting HEPA indicate that it was not meant to be applied only to a narrow set of activities.See generally Pearl Ridge Estates Cmty.Assn v. Lear Siegler, Inc.,65 Haw. 133, 140-41,648 P.2d 702, 707(1982)(noting that HEPA's scope is wider"than the federal or the typical state analogue" (quoting Molokai Homesteaders Coop.Ass'n v.Cobb, 63 Haw.453,465, 629 P.2d 1134, 1143 (1981))).This determination is supported by the wide range of activities and courses of conduct to which HEPA has been applied,including construction of buildings,expansion of or modifications to preexisting buildings,development of residential communities,and other real estate developments;23 construction on government lands in order to build or connect to sewage lines, waterlines,or other infrastructure;24 development of public [403 P.3d 2931 transportation;25 construction of power generating facilities and the drilling of exploratory geothermal wells;26 the growing of imported algae on facilities in state lands;27 and the Management Plan of the Observatory Site on the summit of Haleakala in which a new solar telescope was under construction.28 The commonality among the varied activities to which HEPA has been applied is their potential of producing"environmental concerns"that HEPA intended to be "given appropriate consideration in decision making along with economic and technical considerations."See Nuuanu Valley Ass'n, 119 Hawaii at 103, 194 P.3d at 544(quoting HRS§343-1 ).The diversity of the subject matter of previous HEPA cases affirms that the word "action" has not been (and should not be) narrowly construed. In this light,our determination that aquarium collection is a HEPA"action"furthers HEPA's purpose as stated under HRS§188-31 : it"will ensure that environmental concerns are given appropriate consideration in decision making"so as to foster a holistic and thoughtful decisional process. HRS§ 343-1. Given the nature, magnitude, and scale of aquarium collection under HRS§ 188-31 and DLNR's administrative rules,any environmental effects that aquarium collection may have fall squarely within the ambit of what HEPA's environmental review framework intends to integrate into governmental decision making.29 Lastly, our interpretation of"action"and our conclusion that it includes aquarium collection pursuant to permits issued under HRS§ 188-31 and DLNR's administrative rules are also supported by HEPA's framework.As discussed,the fact that a proposed activity qualifies as an "action"does not mean that it would require environmental review,since the activity must also fall within a statutory category listed in HRS 5 343-5(a)and not be exempt from HEPA.See Sierra Club, 115 Hawaii at 306, 161 P.3d at 299.And for applicant actions,as in this case,the agency must exercise discretionary consent as to the proposed activity in order for the activity to be subject to HEPA.See infra Part V.D.Thus,our interpretation of "action," which would include a range of activities that has the potential of producing environmental effects, is supported by the HEPA framework because other steps in the HEPA analysis serve to counterbalance the scope of the meaning of"action."That is,the succeeding steps in the HEPA analysis filter activities that qualify as"actions" in order to determine which "actions"actually require environmental review. Umberger v. Dep't of Land& Natural Res.,403 P.3d 277 (Haw. 2017) HRS§343-4(a)(2)(B)8 requires that an EIS be prepared for all actions proposing the use of conservation land "which will probably have significant environmental effects."See Molokai Homesteaders Co-op. Ass'n v. Cobb,63 Haw.453,629 P.2d 1134(1981). "Significant effect", under HRS§343-1(8)9 means: ...the sum of those effects that affect the quality of the[64 Haw.35] environment, including actions that irrevocably commit a natural resource,curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic or social welfare. However, as this definitional provision illustrates,"significant effect" is a relative concept.The quality and gravity of the effect on the environment which may be caused by a proposed activity varies according to the circumstances involved.Any determination,therefore, is highly subjective. Nevertheless,an agency making such a determination must consider every phase and every expected consequence of the proposed action. EIS Regs. 1:31(a);See Molokai Homesteaders Co-op.Ass'n v. Cobb, supra. To assist agencies in interpreting HRS§343-1(8), HRS§343-5 authorizes the Environmental Quality Commission (hereinafter EQC)to establish guidelines specifying classes of actions which will be exempt from the preparation of an EIS because such actions will probably have minimal or no significant effect on the environment. 10... McGlone v. Inaba, 636 P.2d 158,64 Haw.27(Haw. 1981) Appellants argue that DOT's limitation of its consideration to the direct effects of the harbor improvements, rather than of the Superferry operations at Kahului harbor, is similar to the Corps'failure to recognize the potential for increased tanker activity due to the dock extension in Ocean Advocates. Accordingly,Appellants state: HDOT, in its exemption determination,does not disclose that these improvements are conditions precedent to the implementation of the Hawai'i Superferry project. Most importantly, HDOT,in is exemption determination, never analyzes the environmental impacts that these harbor improvements, in facilitating the Hawai'i Superferry project,will have on already congested state harbors and roadway systems,as well as on threatened and endangered species,an increase in the rate of alien species introductions,and the curtailment or restriction of recreational and cultural uses.All of these are clear errors requiring reversal. . . . Appellees,for their part,argue that Ocean Advocates is inapplicable, because it involved the adequacy of the Corps'analysis in its Final EA,and did not involve a "decision not to prepare an EA" as Appellants state in their brief.Appellees also take issue with Appellants'citation of Ocean Advocates as support for its assertion that"uncertainty about the impacts of a project have been sufficient to require EISs and to reverse exemptions." Appellees'attempts to minimize the applicability of Ocean Advocates miss the point. Regardless of Appellants'apparent misstatements regarding the case, Ocean Advocates is persuasive authority regarding how a factually-similar scenario is treated under NEPA,and provides an example of a court analyzing the secondary effects of harbor alterations, namely, what effect they will have on the activity of ocean vessels. c. application to this case Kahana Sunset Owners Ass'n and McGlone make clear that when an agency considers an exemption it must determine that the action will probably have minimal or no significant effects on the environment,and McGlone teaches that in addition to the direct site of impact the agency must also consider other impacts that are"incident to and a consequence of the primary impact."Considered together with these Hawaii precedents, Ocean Advocates provides a concrete analogy to the legal error committed by DOT. DOT's written exemption determination is restricted to the harbor improvements and does not consider the secondary impacts that may result from the use of Hawaii Superferry in conjunction with Kahului Harbor. Rather, DOT treats the physical improvements in isolation,fitting them into two exemption classes related to "security and safety equipment," (exemption class 3 item 3)and "alteration or addition of improvements with associated utilities,which are incidental to existing harbor and boat ramp operations, in accordance with master plans[that comply with HEPA]" (exemption class 6 item 8). See supra Section 1.8.2. Although DOT, in its exemption determination letter, does reference the Hawaii Superferry ("we have determined that the operation of Hawaii Superterry at Kahului Harbor conforms with the intended use and purpose of the harbor and [167 P.3d 335] meets conditions that permit exemption from environmental review at such location based on the method of operation planned"), it restricts its analysis to the harbor equipment that will be employed in order to facilitate the Superferry's operation ("ferry activity at Kahului Harbor will use equipment appropriate for a harbor,include only minor facilities improvements and will be conducted at an existing pier facility that is consistent with the purpose and reason for which it was originally developed"). See id.The exemption letter does not consider whether Superferry operation independent of the harbor will have any significant effect on the environment. Rather, DOT appears to studiously restrict its consideration of environmental impact to the physical harbor improvements themselves. Although DOT does say that"[t]he installation and result of the minor improvements noted will not produce or create any adverse air quality, noise or water quality impact," which could imply a reference to the Superferry itself, as the"result"of the harbor improvements,this statement is oblique and does not indicate that secondary impacts were considered. Purposely or not, DOT ignores the more direct language suggested by OEQC in its sample exemption memorandum,wherein an agency director would state that he or she "ha[s] considered the potential effects of the above listed project as provided by Chapter 343, HRS and Chapter 11-200, HAR . . . [and] declare[s]that th[e] project will probably have minimal or no significant effect on the environment and is therefore exempt from the preparation of an environmental assessment."Guidebook,supra at 50. As suggested by Appellees, it is not the province of this court"to substitute its judgment for that of an agency within the executive branch of government.. . ."Obayashi Hawaii Corp.,81 Hawai'i at 182 n. 12,914 P.2d at 1375 n. 12.The flip side of this caution,however,is that this court"must ensure that the agency has taken a 'hard look'at environmental factors." Id.at 182 n. 12,914 P.2d at 1375 n. 12 (quoting Stop H-3 Ass'n v. Lewis,538 F.Supp. at 159). The applicable standard of review requires that this court determine,as a matter of law,whether or not DOT has followed the correct procedures and considered the appropriate factors in making its determination that the harbor improvements made to Kahului harbor to facilitate the Superferry project should be exempted from the requirements of HRS chapter 343.See supra Section II.C.3. Stated simply,the record in this case shows that DOT did not consider whether its facilitation of the Hawaii Superferry Project will probably have minimal or no significant impacts, both primary and secondary,on the environment.Therefore, based on this record,we can only conclude that DOT's determination that the improvements to Kahului Harbor are exempt from the requirements of HEPA was erroneous as a matter of law.The exemption being invalid,the EA requirement of HRS§343-5 is applicable.This issue being dispositive,we need not consider Appellants'other arguments.50 IV. CONCLUSION The stated purpose of HEPA is"to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations." HRS§343-1. In enacting HEPA and establishing a system of environmental review,the legislature expressly emphasized the importance of public participation in the process: The legislature further finds that the process of reviewing environmental effects is desirable because environmental consciousness is enhanced,cooperation and coordination are encouraged,and public participation [167 P.3d 336] during the review process benefits all parties involved and society as a whole. Id. (emphasis added). Contrary to the expressly stated purpose and intent of HEPA,the public was prevented from participating in an environmental review process for the Superferry project by DOT's grant of an exemption to the requirements of HRS chapter 343.The exemption was erroneously granted as DOT considered only the physical improvements to Kahului harbor in isolation and did not consider the secondary impacts on the environment that may result from the use of the Hawaii Superferry in conjunction with the harbor improvements."All parties involved and society as a whole"would have benefitted had the public been allowed to participate in the review process of the Superferry project,as was envisioned by the legislature when it enacted the Hawaii Environmental Policy Act. Sierra Club v. Department of Transp., 167 P.3d 292, 115 Hawaii 299(Haw.2007)