HomeMy WebLinkAbout2024-03-04 PL-SMA-2023-000046 Elsa Dedman Opposition Testimony From: Elsa Dedman
To: WPCtestimony
Cc: Maxx Phillips
Subject: Windward Planning Commissioners Hearing_E. Dedman Testimony
Date: Monday,March 4, 2024 11:01:12 PM
Attachments: Elsa Kalanikauleleiaiwi Dedman Testimony Windward Plannina Commission 07March2024.odf
Please see attached Submission Regarding: PL-SMA-2023-00046, Black Sand Beach, LLC.
Aloha Pumehana,
Elsa Dedman
P.O Box 230
Naalehu, Hawaii 96772
Phone: 832-230-7673
Elsa Kalanikauleleiaiwi Dedman
P.O. Box 230
Naalehu, Hawaii 96772
Phone: 832-230-7673
ekdedman@gmail.com
04 March 2024
Windward Planning Commission
County of Hawaii Planning Department
101 Pauahi Street, Suite 3
Hilo, Hawaii 96720
RE: Written Testimony of Elsa Kalanikauleleiaiwi Dedman—Special Management Area (SMA)
Use Permit Application
Applicant/Docket Number: PL-SMA-2023-00046, Black Sand Beach, LLC
Windward Planning Commissioners Hearing on 07March 2024
Submission to WPCtestimonv@hawaiicounty.gov
Introduction
I am a Kuleana land owner at Punalu'u Black Sand Beach my ohana are direct lineal decedent to
Mahoe which hold the Palapala Sila Nui, Helu 7585 property. I was raised on our property since
1954 by my grandparents, Elizabeth Kalanikauleleiaiwi Kuaimoku - Bangay and Ferman Bangay.
My ancestors are long life residents of Punalu'u long before 1892. The following ohana heirs are
Kuleana property owners: Ms. Helen Ho'olapani Galban (1928-2013) Ms. Elizabeth
Kalanikauleleiaiwi Bell (1938-2017), Vincent Lani Bangay (1921-1954) and Joseph Koa Bangay
(1924-2008). My beloved mother, Winifred Pele Hanoa (1923-2016) and I along other
community members Mr. Glen M. Winterbottom, author of Prosperity Through Preservation in
the Great and Majestic District of Ka'u (copyright, Naalehu 1988) and Nelson Siu Wah Ho, Sierra
Club (1950-2024) started Punalu'u Preservation in the early 1980's and latter my sister,
Jimmyleen Keolalani Hanoa (1960-2006)joined us and the grass roots organization became Ka'u
Preservation with 501(c) in 1999.
Environmental Impact Statement
Throughout the entire SMA there are numerous statements that are not compliant with the HRS
A-26 (2) (A), the proposed development will have substantial and ecological effects that will
impact the environment and ecosystem as it currently exist in the 'Aina (land), Wai (water) and
Kai (ocean).
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1. The SMA are utilizing the Final Environmental Impact Statement (EIS) from 1988 and
Draft EIS from 2006 which are respectively 35 and 17 years old. The existing application
needs to be withdrawn in its entirety and a new Supplemental EIS (SEIS) that includes
current conditions as they exist should be completed. The Draft EIS dated 2006 was
never incorporated; therefore, does not legally exist. These are the critical issues that
require further evaluation prior to a new SEIS.
• Exhibit#1: Unite Here v. City and County of Honolulu dated 2010: Unite Here!,
120 Hawaii at 472, 209 P.3d at 1286 (Nakamura, J ., dissenting) (emphasis
added). Indeed, ignoring the implicit time condition dictated by the anticipated
life of the project upon which an original EIS has been based would allow
unlimited delays and, in turn, permit possible resulting negative impacts on the
environment to go unchecked. In other words, allowing an outdated EIS to
"remain valid in perpetuity" directly undermines HEPA's purpose. HRS § 343-1
(setting forth the findings and purpose for HEPA) states that [t]he legislature finds
that the quality of humanity's environment is critical to humanity's well being,
that humanity's activities have broad and profound effects upon the
interrelations of all components of the environment, and 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. It is the purpose of this chapter to establish a system of
environmental review which will ensure that environmental concerns are given
appropriate consideration in decision making[.] (Emphases added). Indeed, this
court has repeatedly recognized the public purpose served by HEPA to "ensure
that environmental concerns are given appropriate consideration in decision
making" such that "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." See, e.g., Kahana Sunset
Owners Ass'n v. County of Maui, 86 Hawai'i 66, 70, 947 P.2d 378, 382 (1997)
(citing HRS § 343-1)23 ; Citizens for the Protection of the N. Kohala Coastline v.
County of Hawai'i, 91 Hawai'i 94, 104 n. 11, 979 P.2d 1120, 1130 n. 11 (1999)
(also citing HRS § 343-1); Sierra Club v. Dep't of Transp., 115 Hawaii 299, 327 &
342, 167 P.3d 292, 320 & 335 (2007) (referring to HRS § 343-1).
• SMAA, Pg.4: While the overall project site abuts the shoreline, the Applicant is
requesting that the need for a certified shoreline survey to support this
application be waived since no new improvements or uses are contemplated
anywhere near the shoreline or within those areas identified as Conservation by
the State Land Use Commission. Per Department Land Natural Resources (DLNR)
the last Shoreline survey of Punalu'u Beach Park was done in 1976 by Surveyor
Nobuchika Santo (1935-2016). Therefore, another
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certified shoreline certification is required to address Climate Change,
accuracy and responsibility. It is imperative that the metes and bounds survey of
the complete property be completed prior to any development. §13-222-11
Validity of certified shoreline. (a) Certification of the shoreline shall be valid for a
period no longer than twelve months from the date of certification.
• SMAA, Site 7: Punalu'u Site 7— Punalu'u Coastline Management Area —
approximately 29.52 acres to be dedicated towards conservation.
The developer has to make clear what property they are going to transfer into
the public trust; which will require certified survey with certified drawing
showing metes and bounds with pined and flagged.
• SMAA, Pg. 4/Site 1:This historic anchialine fish ponds are to be returned to its
original state and this entire area must be preserved. The Hawaiian word for
water is wai; the word for law is kanawai, showing us that the regulation of
water has been a fundamental concept of Hawaiian law since ancient times. We
should now recognize the wisdom of the ancient Hawaiian and readopt the
principle that the water must be regulated for the benefit of the people. This
area is protected by the Kanawai law and should never have been developed by
C. Brewer Properties, Sea Mountain. Therefore returning it back to its natural
state is mandatory for a balance ecological system. On November 7th, 1978,
Article XI, Section 1 of the Hawaii State Constitution now states: For the benefit
of present and future generations, the State and its political subdivisions shall
conserve and protect Hawai'i's natural beauty and all-natural resources,
including land, water, air, minerals and energy sources, and shall promote the
development and utilization of these resources in a manner consistent with their
conservation and in furtherance of the self-sufficiency of the State Article XI,
Section 7 states that "the state has an obligation to protect, control and regulate
the use of Hawai'i's water resources for the benefit of its people." The adoption
of Article XI was a remarkable victory for Hawaiian rights activists, Kanaka Maoli
and the island's residents alike.
• This area is a Tsunami Zone and that's the reason the buildings were destroyed
in 1975. The developer stated they would secure the existing old buildings
damage by the tsunami in 1975 (site 1); however, this has not occurred and it
has been over a year since that statement was made. There has not been fences
erected for the safety of the people visiting at Punalu'u due to Black Sand Beach,
LLC lack of responsibility. They refused to spend the money for obtaining permit
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to fence this hazardous area. Imagine the children that walk thru that area every
day that could step on a rusted nail and/or fall and hit their head on a rock or
drown. What do we say to the parents that we are sorry that their children are
severely injured or dead when the developer did not honor their commitment in
anyway. Further not protecting the wellbeing and safety of anyone.
Refer to photograph by Michael Alexander on 13 February 2024 (Exhibit 2) of a
young girl and two brothers, tourist from Colorado walking across an old damage
bridge that had rusted nails protruding out of the old structural member.
Exhibit#2.
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• SMAA, Coastal Hazards, pg 53: The Site Plan of Punalu'u Village dated 14
December 2023 indicated Site 1 to include: Welcome Center, Ka'u Center of
History and Culture and Wedding Ceremony Area, Beach Club Cafe and a
Performance Center that is directly in the coastal flooding zone. Obviously,
there is misrepresentation of the SMA as this location is a historic preservation
conservation area and should return to its nature state prior to C. Brewers
development. This area is governed by the kanawai law.
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• The SMAA should include the old abandoned derelict structures to control the
environmental impact of these old abandon buildings that are leaking toxic
chemicals hour by hour. These buildings were constructed in the 60's and 70's
and a good chance they were constructed with toxic chemicals such as asbestos
and lead base paint. Hundreds of people walk thru these structures each day
and yet nothing has been done to resolve the seeping of toxic waste into the
'Aina, Sacred Historical Pond, Kai, and Air.
• When Black Sand Beach, LLC acquired the property it appears there were no as
built drawings and operational records transferred as discussed with Mr. Arai.
The developer needs to submit their records for water testing of monthly purity
and the current review of what is operational within their systems and what is
not. In conclusion, the Waste Water Management System from sewage should
also be tested and brought up to current standards. Currently, many water
facilities in North America require that the waste water discharge is compatible
for human consumption as type 1. I have been informed the current employees
have stated that there are numerous problems within their systems and
requested resources to repair the defects and funding is not available. Currently,
the decrepit system can process only 20,000 gals of water per day and unable to
increase its capacity to met any change in volume. A new Waste Water
Treatment Plant must be completely reengineered and replaced as a complete
system.
• SEIS is required because existing wastewater treatment plant and technology are
dilapidated to the point that it must be re-engineered and built as new. In
addition, the U.S Supreme Court decision in County of Maui v. Hawai'i Wildlife
Fund now applies to the wastewater treatment plant. The infiltration basins
meet the definition of"functional equivalent" of a point source of pollution
discharging into the U.S. navigable waters, therefore violating the Clean Water
Act (CWA).
• A CWA National Pollutant Discharge Elimination System (NPDES) permit is
required in addition to a NPDES permit regarding stormwater discharges from
the project site. It was not clear within the SMA how the stormwater system is
managed and filtered on the site.
• The current Waste Water Treatment filtering system must be upgraded so water
injected into the subsurface systems are certified for palatable water for human
consumption. As the water is injected into the underground aquafers and are
fed directly into the water system in the bay; therefore, this is the only way the
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algae systems are not changed from their native state and the marine life are
protected.
• SMAA, Zoning D., pg 28: The FEIS is dated 1988: therefore, this statement
referencing the 1998 FEIS is not accurate which leads to misrepresentation of
the SMA. Additionally, the 1988 FEIS is no longervalid and therefore, this
section should be redacted. Further the C. Brewer 1988 zoning amendment via
Ordinance No. 99-121 should be redesignated to Agriculture and Conservation
district since C. Brewer defaulted on their development and never proceeded
with the zoning that was approved.
• Under Hawai'i law, the State and its agencies must afford Kanaka Maoli
traditional burials "dignity and freedom from unnecessary disturbance." It is
clearly written in the SMA the proposed Village and Wellness Center will destroy
burial sites. Black Sands Beach LLC planned on developing and intentionally
disrespect and desecrate the 'iwi Kupuna Sacred Burial Sites. Additionally, they
are not any archeological site that utilizes a D-9 bulldozer for excavation of a
sacred burial area; instead excavation are done by hand throughout the world.
Per Mr. Arai the D-9 bulldozer is tool utilized to exam the ground for human
remains. The Hawaiians believe the bones of their kupuna are imbued with
mana (life force) and their proper care is a critical component of their well-being.
Burial of'iwi infused the land with the necessary mana to nourish the natural
world and the living and future generations of Kanaka Maoli, and to sustain the
people's connection with the 'aina. Thus, the living have a kuleana
(responsibility) to protect their ancestors 'iwi. Bulldozing the 'iwi of our
ancestors is hewa (condemn).
• Caring for Previously Identified and Inadvertently Discovered Burials: The Burial
Council HRS chapter 6E gives the Island Burial Council (IBC) two options for the
disposition of remains: "preservation in place or relocation of previously
identified native Hawaiian burial sites"The Burial Councils must consult with
recognized lineal and cultural descendants who either have direct genealogical
ties to specific 'iwi kupuna or whose 'ohana reside in geographical areas where
'iwi kupuna are located. Black Sand Beach, LLC have not contacted the IBC to
have a formal meeting to discuss the identified burial site prior to proposing
building the proposed Village and Wellness Center.
• SMAA, Economic Uses pg 53:The proposed development illusion of enhancing
the overall attractiveness and vibrancy of Punalu'u will be the death of the
natural habitat, ecosystem, biodiversity and true essence of its rural rich culture,
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heritage and spirituality. All for the "cheap shot" of a few foreign entities money
making scheme. This tradeoff for Punalu'u is unconscionable.
Regarding the claim of making Punalu'u a safe destination has no merit since
increased of influx of outsiders coming to Punalu'u will escalate the potential of
crime and hazardous conditions. While the claim that the development will
make the area safe; the reality is the increase of population will change the
peace and quietness of the rural environment and community.
The Ka'u Preservation conducted a survey in 2007 at Punalu'u beach for one
month with volunteers monitoring the traffic of visitors at the beach every day.
The results from the study indicated approximately 1000 to 1,500 visitors per
day with a total of 30,000 in the month. The vehicle traffic results were
approximately a hundred cars per day with a total 20 charter buses and 20 vans.
Currently, the Malama Pono Punalu'u Group are volunteers that monitor the
turtles after hours once the life guards end their day of work. The group
reported on 01 March 2024 from the hours of 430pm till sundown there were
300 visitors on the beach. The proposed planned development at Punalu'u will
dramatically increase the traffic on the beach; which, will have a detrimental
impact such as erosion, pollution and change the pattern of the endangered
honu and honu'ea. Therefore, a SEIS assessment is required prior to any
development. Refer to Exhibit#3.
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Exhibit#3— Photograph by Elsa Dedman on 03 June 2022, 11am at the beach
front of my ohana Kuleana property.
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• SMAA, Pg. 25 General plan: The Project Site is designated as a Minor Resort
Area by the General Plan, that designates this area as accommodating no more
than 500 visitor units and providing both active and passive recreational
opportunities commensurate with the scale of development. This is
misinformation as the general cost of minor resort is less than 500,000 dollars.
This development is estimated to have a cost of 200-350 million dollars; which,
clearly exceeds a minor development; therefore, this is a major resort.
The number of units far exceed the 500 units will include: existing colony 1, 76
units, colony 2, 63 units, Aspen 30 units, Village, 260 units and the 550 units on
the Ninole-Punalu'u Supplemental Zone Map Section 25-8-28. The total unit
between the completed plan is approximately, 979 units. This total amount of
units makes this minor resort a major resort.
• During the time of the first development over a 100 of cultural, historic and
archeological site were destroyed since the project area first began to receive
application approvals and the extent of harm to the cultural landscape and
traditional and customary practices need to be explicitly discussed and
monitored. The mitigation measures from 1988 were not applied due to neglect.
As an example, DLNR,TMK: (3) 9-6-00: 002 were injured and altered during the
course of land alteration activities on 26 June 2017 destruction occurred with
removal of stacked wall which paralleled the shoreline at the wharf. Two
separate piles of concrete rubble remain within the 40-foot set back area where
the operator identified as Simon Vilaj of Hang Loose Tours had demolished two
historical concrete structures. Should there be a storm type wave action piles of
concrete rubble and soil may enter into the ocean. This destruction was
conducted by the previous owner Roberts Hawaii who illegally grub the wharf
area with intent to increase the boat ramp size for tours. This was conducted in
the area of the Punalu'unui Heaiu and moehai pohaku the sacrificial stone. This
was desecration of the historic sugar plantation warehouse structure. The SEIS
will require inventory survey and monitoring the site activity to ensure no
damage.
• Social economic values have changed since rezoning and redistricting of this area
since its first occurrence. For instance, Article XI did not exist, nor did Supreme
Court rulings to protect public trust resources, traditional and customary rights.
The C. Brewer Development contaminated our water wells from plantation and
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golf course pesticide and chemical fertilizer pollutant's runoff that leached into
the aquafers from mauka (upland) to nearshore waters. Till today we have not
been able use our well. This is violation of Article XI, Section 9 of the Hawai'i
Constitution (1978), states: "Each person has the right to a clean and healthful
environment, as defined by laws relating to environmental quality, including
control of pollution and conservation, protection and enhancement of natural
resources. Any person may enforce this right against any party, public or private,
through appropriate legal proceedings . . ." The Supreme Court has interpreted
this constitutional provision in In re Application of Maui Elec. Co., 141 Hawaii
249, 408 P.3d 1 (2017): "This substantive right is a legitimate entitlement
stemming from and shaped by independent sources of state law, and is thus a
property interest protected by due process. Although a person's right to a clean
and healthful environment is vested pursuant to article XI, section 9, the right is
defined by existing law relating to environmental quality."
Conclusion
In November 20, 1969 C. Brewer petitioned the State Land Use Commission to redesignated
lands from Agriculture and Conservation Districts to the Urban District to allow resort
development on this sacred property. At the time this occurred SMA law as we know had not
been established. These lands should be redesignated to its original classifications as
Agriculture and Conservation. In rolling back the designation of this 'Aina would allow the
community to share in the 'Aina equally and provide easy access to the beach of their ancestors.
The Keolani Hanoa Resolution 169-07 was introduced by Hawaii County Councilman Bob
Jacobson on 01 May 2007 stating that the County of Hawai'i would be purchasing 150 acres of
shoreline to prevent development in this area in accordance with Ka'u Preservation. The
county's money would be matched with federal funds to purchase the shoreline. At the time
U.S. Congresswoman, Mazie Hirono had requested 3 million dollars to assist in the purchase.
Punalu'u would be managed by the people of Ka'u who rely on the area for fishing, recreation
and cultural practices once the property is purchased. Unfortunately, this Resolution was not
executed in 2007. Mayor Harry Kim also announce that his dream was to not have a resort at
Punalu'u but instead compared Punalu'u to the Crater Lake, in Southern Oregan with the
analogy of the lake's natural pristine existence. Punalu'u is world renowned for its unique
significant cultural and historic presence. With that the reality is that Punalu'u and its future lies
in our hands today. The ocean is a living classroom and is one of the last beach in Ka'u to be
preserved. The natural wildlife and the community depend on this coastline for everyday living.
Development should not occur in this area. Ka'u is unique let it stay that way with our 80-mile
coastline untouched.
Respectfully submitted,
Elsa Kalankauleleiaiwi Dedman
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