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HomeMy WebLinkAboutCOM 1051.007 1996-1998 n Y.A PA'AYM O KA `AINA a coalition of native Hawaiian entities November 2, 1998 TRANSMITTAL MEMORANDUM To: R. Ben Tsukazaki 100 Pauahi Street, Suite 204 Hilo, Hawaii 96720 Virginia Goldstein, Planning Director County of Hawaii 20 Aupuni Street Hilo, Hawaii 96720 Planning Commission County of Hawaii 20 Aupuni Street Hilo, Hawaii 96720 Fred Giannini and Patricia O'Toole Deputy Corporation Counsel County of Hawaii Hilo Lagoon Centre, Suite 325 101 Aupuni Street Hilo, Hawaii 96720 Re: SMA Permit Application No. 98-6 Kaupulehu Developments Enclosed are copies of the Coalition's written statements. As discussed at the Friday, October 30, 1998 meeting, the Coalition is identifying the specific Land Use Commission exhibits and transcripts. Given the time constraints, copies of the exhibits (including a revised exhibit list) will be submitted under separate cover immediately. Thank you very much. oom. No. 105167 Pile Ne. i Ref. To'. p C Rat. vas 5 19~ WRITTEN TESTIMONY of Michael J. Matsukawa SMA Application 98-6 Kaupulehu Development Q What is your name? A Michael Matsukawa. I was born and raised in Waimea,.Kauai and now reside in Kaawaloa, South Kona, Hawaii. Q What is your occupation? A I am an attorney. Q Are you familiar with the subject matter which is the focus of the Intervenor's position in this proceeding? A Yes. I am also familiar with the individuals and entities which comprise the Intervenor, which is often called or referred to as "the Coalition" for convenience. Q Please explain how your relationship with the Coalition started. A In 1993, I had working relationships with two of the entities which comprise the Coalition the Kona Hawaiian Civic Club and Ka Lahui Hawai'i. These entities and their members were interested in learning more about the substantive law governing "native tenants' rights," "native 1 Hawaiian rights," "historic and cultural property," the "public trust doctrine," the "public lands ceded trust" and related subjects, as those subjects were reflected in decisions of various courts or in statutes. These entities and their members were also interested in procedures and methods by which these subjects are to be enforced by public agencies, courts and private landowners. Q Was their interest connected to an existing proceeding of some kind? A Not directly, but there were two major land use cases peliflfing in North Kona at the time. One was the Kohanaiki SMA petition which was being appealed through the court system. Another was the Mauna Lani Cove SMA petition which had gone through an evidentiary hearing before the planning commission's hearing officer. Q Was their interest connected to the so-called sovereignty movement? A Not really. sovereignty deals with the form of government that various native Hawaiians believed they were rightfully subjected or should be subjected. The entities were concerned with protecting any rights belonging to native Hawaiians or to the cultural resources and historic properties which are directly associated with native Hawaiians. Unfortunately, at the time, many in the general public did not see the difference. Q What, if anything, emerged out of your association with these two entities? A First, the Kona Hawaiian Civic Club retained an attorney (not me) to petition the Supreme Court and to file an amicus curiae brief in the Nansay Hawaii, Inc. appeal to the Hawaii Supreme 2 Court in the Kohanahihi/PASH case. Second, the Kona Hawaiian Civic Club also initiated discussion groups and public information programs. Third, Ka Lahui Hawai'i also filed an amicus curiae brief in the Kohanaiki/PASH case and, likewise, initiated discussion groups and public information programs. I am not sure of the specific time, but Protect Kohanaiki Ohana, the third entity with comprises the Coalition, also joined in these efforts, working through its own organization and network. Eventually, these combined efforts led toward an expandea'discussion of finding ways to accommodate the interests of government regulators, private landowners, native Hawaiians and the public at large in the land use process. Among the suggestions were better legislation and better increased clarification amongst all players on the subject of native rights or cultural resources and on the procedures to identify, assess and evaluate the same. Q Do you recall the events leading to the contested case in the Land Use Commission docket for the boundary amendment of Kaupulehu from the Conservation District to the Urban District? A Yes. Q Can you explain what led the Coalition to intervene in that proceeding? A Certainly. The entities, or some of them, and their members know more of the details than I do. Each of the entities filed requests to intervene in the proceeding, which seemed to be a natural consequence of their earlier efforts to help provide a better definition of native Hawaiian rights or cultural resources and a better methodology by which those rights and resources can be 3 identified, assessed, evaluated and protected within the bounds of the law. Q Without citing the entire Land Use Commission record, can you summarize for the hearing officers this morning the Coalition's position before the Land Use Commission? A I believe the statement of issues filed in this instance (signed by Maile David for the Coalition on October 23, 1998), Point 2 and Point 3, is pretty accurate and comprehensive. Q Is there anything significant that you recall which occurred at the Land Use Commission hearing in regard to the Coalition's concerns and position? A It would not be proper for me to explain what happened, etc., since that would be a matter of argument and for the record to explain. The record definitely shows that there are differing views of what "culture" is, how you define "culture," how you determine which "culture" attributes and symbols are "significant," and the manner in which the proper balance must be struck to preserve the "cultural resources" of any community. Q But can you recall any events which would be helpful to the hearing officers (so they don't have to read the entire Land Use Commission record)? A Okay, and I will try to be as objective as possible, without coloring any event with any particular bias or point of view. 4 First, midway through the Land Use Commission proceeding, the Hawaii Supreme Court handed down its decision in the Nansay Hawaii, Inc. Kohanaiki/PASH case, the case in which the Coalition entities had filed amicus curiae briefs. I think we all know what the Supreme Court said in regard to native rights, constitutional protection of gathering and access rights, the obligations of the county planning commission in an SMA proceeding, etc. Second, the Coalition (though each having its own interests) joined in an effort to produce a consolidated presentation on the subject of native rights and cultural resources in an land use regulatory proceeding. Third, all persons associated with the proceeding, directly or indirectly, gained a heightened sensitivity to the subject. If I am right, this was the first time when a psychiatrist, Dr. Naleen Andrade of Keei, South Kona, offered testimony on the importance of preserving cultural resources before a land use regulatory body. Fourth, the Coalition, being mindful of criticism which appear in the literature about ,'voodoo science" and the need for a responsible approach to the subject (given the competing interests of all affected persons), offered an alternative to the past and current approach taken by regulatory bodies, land use consultants, developers and landowners on the subject. Fifth, the Coalition was not "looking for a fight." In this regard, I often stated that Kaupulehu Developments' application just happened to be filed when the Coalition entities were in the midst of their own public education efforts on the subject of native rights and cultural resources. Sixth, while some may disagree with me, the record shows that before the Coalition intervened, the applicant described the area as being mostly filled with barren lava flows and having archaeological remains. After the Coalition intervened, the applicant described the area as being of great cultural importance and proposed a conceptual resource management plan to be 5 fleshed out at the county SMA proceeding. Something obviously happened. Q What is the status of the Land Use Commission proceeding? A The commission entered an order, portions of which describes what the commission believed were the cultural resources of the area, their location and the means by which the applicant must protect the same. The Coalition appealed the decision, which is now before the Hawaii Supreme Court. Q If the Land Use Commission addressed the subject of cultural resources, why is the Coalition intervening in the SMA proceeding? A I think you need to direct that question to the Coalition itself. However, I did inform the applicant's attorney that under certain legal principles, if the Coalition did not intervene, it could be "bound" to the Land Use Commission's findings of fact which suggest that the only cultural resources of any significance lie in the IRMP 235-acre resource zone (and nowhere else in the petition area) and which offered no determination of the access and gather rights of native Hawaiians. If you read the Land Use Commission's order, paragraph 18, the commission merely restates the constitutional provision of Article XII, Section 7, nothing more.' Q Is there anything further which the hearing officers may find relevant? ' A recent memorandum decision of the Hawaii Supreme Court discusses this procedural question in another case. However, because the decision is a memorandum decision, it cannot be cited; nor can it be given precedential value at this time. 6