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Home My WebLink AboutCOM 1051.021 1996-1998 MICHAEL J. MATSUKAWA 75-5156 Kuakini Highway, No. 201 Kailua-Kona, Hawaii 96740 Telephone No. 329-1385 November 14, 1998 - Chairperson Leithead-Todd Committee on Planning County of Hawaii Council 20 Aupuni Street Hilo, Hawaii 96720 Re: Cultural Resources Dear Chairperson Leithead-Todd: I enclose my file copies of selected papers from the LUC hearing; the appeal to the circuit court and the current appeal now before the Supreme Court. Please return the same to me when you are completed your review of the same. I direct your attention to the following points which may help your understanding of the issues raised in these proceedings and now presented before the County Council. The Source of Rights The PASH decision helped confirm to the doubters that existing statutes and constitutional provisions actually address historic and cultural resources and, further, impose obligations on the state and its political subdivisions to preserve and to protect such resources which are deemed to be significant. Remaining Uncertainties For many years, policy makers believed that executive agencies can best implement the policies reflected in provisions like Sections 105-1..2 Oomm. No. rve Na. ZNG KN MO. Tw eOutJUI- 11~t. 1-1 and 7-1, HRS, Chapter 6E, HRS, Chapter 226, HRS and Articles XI, Section 1 and XII, Section 7 of the state constitution. However, executive agencies have generally refrained from using their quasi-legislative powers to clarify and to implement these broad policies. This results in uncertainties which adversely affect the public, landowners, financiers and others. For example, the state historic preservation program includes protection of historical and cultural resources but the DLNR still operates under unpublished rules (leading many to simply rely upon federal regulations on the assumption that such regulations must be deemed appropriate). Timing Public Knowledge The subject matter of cultural resources has finally come "of age." Up to now, many have looked upon this subject as merely a discussion of "stones and bones," giving little or no attention to broader ethnographic considerations which include "attachment" and "values" that are not readily found manifested in an object. For example, why do we value an empty field called Gettysburg when it is just a field. Is it the values or historical events surrounding the Civil War (and its deeper seated issues) which cause us to "attach" great significance to the site? Do we or should xNe attach the same values to Kuamoo, North Kona, where those who opposed the Kaahumanu-inspired abolition of the kapu system battled with Liholiho's forces? How did it come to pass that the world knows more of the conflict between Cap't James Cook at Kaawaloa than the "battle at Kuamoo" which ensued among native Hawaiian leaders a few years later? Executive Quasi-Judicial Efforts The PASH case involved an SMA permit application. In recent years, most of the discussion on cultural resources have emerged during the quasi-judicial proceedings of executive agencies to vest landowners with land use entitlements. However, during the past three sessions of the legislature and the Environmental Council's sessions, the subject has also become the subject of legislative debate. 2 Judicial /Legislative Approaches Like the PASH case, the LUC proceeding was an executive quasi-judicial proceeding. Accordingly, the demands of Chapter 91, HRS and other judicial requirements emerged. In the midst of all this, the state legislature has been unable to enact meaningful legislation which will give all parties the certainty they all desire. Coup Legislation At the county level, I am not aware of any activity on this subject aside from the General Plan and ad-hoc zoning and agency permitting efforts. In 1984, Belt Collins prepared a draft cultural resources management plan. The plan was studied but was left aside for future review. In 1992, Councilman Domingo looked into the matter, but found it still premature to bring forth to the council or to the public. It is important to note that the council, as a legislative body, has fewer restrictions to address the subject of cultural resources and executive agencies of the county. For example, in the exercise of its legislative power, the council is not bound by the strict, judicial requirements of quasi-judicial fact-finding, published decision criteria and judicial review. The council is only bound by the broad demands of Article XI, Section 1 and Article Xi 1, Section 7, the General Plan and statute statutes to identify, assess and protect the rights and privileges bound up in the "bundle of rights" described. Since the council's legislative function is subject to judicial review only for the demonstration of an articulated interest to justify its action, the council's fact-finding is general free of judicial scrutiny or the demands of agency protocols found in Chapter 91, HRS and related statutes. 3 Nonetheless, the council seems reluctant to seize the opportunity to address the subject and provide needed certainty in those instances where a developer needs the council's zoning approval. AaenQdCouncil Differences In those instances where a landowner requires council approval (rezoning, General Plan amendment, under 15 acres boundary amendment, etc.), an important separation of powers issue is present. For example, in this instance, the proposed ordinance conditions E and U simply adopt the agency version of the IRMP (as it may be amended and enforced by the "affected [executive] agencies." As the public record indicates, the action of these "agencies" will probably go down the same path as the LUC proceeding quasi-judicial proceedings, with mandatory fact-finding and lengthy judicial review. In essence, the agency will be directing the effort to address the subject, nDt the council, even though the council has greater freedom to address the subject and, particularly, even though the council's decision is not subject to the same level of judicial scrutiny as an agency would be under current law. For example, the current LUC and SMA proceedings are highlighted by the absence of clear agency decision criteria which effectuate the broader statutory and constitutional provisions and the danger which ad hoc decision making brings to the process. 1 At the council level, a zoning ordinance can actually be the driving force on the subject of cultural resources, z but the current bill i In Aluli v. Lewin (1992) the Supreme Court warned agencies that the public would hold all of government in contempt if agencies ignored the demands of the quasi-judicial process and used ad hoc standards without predictable certainty. z The requisite SMA permit must implement and be consistent with the General Plan and zoning ordinances, all of which are the product of the council's legislative powers. 4 allows the executive agency to be the driving force instead. Although the council may need to spend more time and effort to develop its own approach, whether it is by an IRMP or other device or mechanism, the council should decide as a matter of policy whether in cases like this one the council should relinquish its power to the executive agency. To put it another way, if the council takes the lead and defines the extent of cultural resources in the area and the requisite protective/mitigative measures by legislation, would that satisfy the statutory and constitutional demands? Would the executive agencies then work within those limits, refining certain points and assuring proper protective/mitigative measures are implemented?3 Closing I appreciate your concern in this matter and remain open to further inquiry. Until then, I remain with warmest personal regards, Ve tru ours, Michael J. Matsukawa ENC: Briefs c: Aaron Chung 3 This point is highlighted by Mr. Tsukazaki's plaintive comments to the effect that the agencies and intervenors have not stepped forward to create solutions. However, as individuals, the intervenors have no power to establish the de jure rules demanded or legislate corrective procedures. Could the council provide the necessary certainty in this case by advancing a legislative solution which, instead of being dependent on continued agency administration (and the attendant uncertainties and prolonged conflicts), would be the guiding force. 5