Loading...
HomeMy WebLinkAbout2017-03-13 Public Access, Open Space and Natural Resources Preservation Commission Minutes (2) HAWAI‘I COUNTY PUBLIC ACCESS, OPEN SPACE AND NATURAL RESOURCES PRESERVATION COMMISSION MINUTES-REGULAR SESSION March 13, 2017 Hawai‘i County Building Council Chambers 25 Aupuni Street, Suite 1401 Hilo, Hawai‘i 96720 Present:Vice Chair Kekaulike Tomich Commissioner Kai‘ena Bishaw II Commissioner Marilyn Nicholson Commissioner RenéSiracusa Commissioner Susan Fischer Commissioner Timothy DeLozier Absent:Chair Cynthia Nazara Commissioner William Meyers Others Present:Amy Self,Deputy Corporation Counsel Hamana Ventura, Property Manager, Finance Iwaloa Chilson, Senior Account Clerk, Finance CALL TO ORDER The meeting was called to order by Vice Chair Tomichat10:01a.m. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS DWIGHT VICENTE Vice Chair Tomich -Dwight Vicente representing the Hawaiian Kingdom. Talking about acquisitions of PONC lands and I believe land in general. Vicente –Good Morning,my name is Dwight Vicente. Legal issues with the lands here, because if you look at. there. In um,Hawai‘i, which was Americans illegally taking over this Kingdom going back to the Reciprocity Treaty by design and the amendment that was to followin 1887. You can see how they creeped in,took over, occupied. In fact the Reciprocity Treaty was a treaty to occupy. They pretended like these lands was part of the Ohio River Valley, which is Article 5 of the Northwest Ordinance. And 1894 the Republic of Hawai‘i, claimed crown and government lands to be public lands. That is only in the Ohio River Valley, U.S. Constitution article 4, section 3 clause 2. And from that point on you only have thesedifferent jurisdiction being created; Federal lands, Forestry, um Territory lands, Hawaiian Home lands, um State lands. But these are 1 all false jurisdiction. And if you do title searches it should go way back to the Kingdom, not till 59. Because that is when all the confusion.And in 1898 they claimed that crown and government lands was magically annexed to the Ohio River Valley, which is Article 5 of the Northwest Ordinance and that is how you get the word Public. And everything is Public from that point on. So whenever you are reading the case law, theirdealing with article 4, section 3 clause 2 of the U.S. Constitution. That is limited to the Ohio River Valley, only. There is only one territory and that’s that one. There is no Amendment to the Constitution or to the Northwest Ordinance. So it’s something that you should be aware of. Lot of lands here are either crown lands, which cannot be sold. The plantation claimed to own them after their lease ended. Then they sold it to other people. Believing that they own the land, which is not true. As far as the government land, these are all term. So usually it’s just. . . . um. . . years for foreigners, . . um . . . as far as for the Kuleana lands it’s the life of the individual. As far as for the most leases went 15 to 30 years. And when those leases ended that was it. There was no lease already. And the tax map key gives you a false belief that you own the land. You don’t own it. It just a towns scheme that put in place so that the state government and the county government can exist. So as far as the case laws the Federal government put out is all basedon article 4, section 3, clause 2. Keanu Sai was the last one dealing with that, I think back in 2011. And he was stomped with a politicalquestion, but he failed to tell them that, that the politicalquestion is limited it doesn’t extend to here, just to Ohio River Valley, which is Article 5. For the court to have said that, that politicalquestion is kind of . . . make you wonder. So with that I’ll end and will reserve the rights of myself and the Hawaiian Kingdom. Thank you. Vice Chair Tomich –Thank you. SHELLEY MAKA‘ALA NAKOA MAHI ViceChair –Next we have Shelley representing Native Tenant Protection Council.Speaking on Agenda itemnumber Communication No.17-001,our PONC form,our Ad Hoc Committee and the CDPs. Ms. Mahi –Hi Aloha, my name is Shelley Mahi . . Um . . I’m with the Native Tenant Protection Council. And um I’m formally . . . um . . . actually was employed under County Councilman Bob Jacobson. And so my job was to look at native Hawaiian issues within public access open space natural resource commission areas. So . . . um . . . the first thing that you may see in your packet is that there is a letter from Department of Finance . . . um . . . stating that they don’t have a policy on native tenants in open spaces. So the problem with that issay . . . um . . . our worst case scenario say .Um there is actually in civil case 90073 page 4, native tenants rights are rese Hilea, and other parcels. And so . . . um . . . at this time . . . um what I would like to ask is that the PONC . . . um I went over it with Eoff she sent me the Charter for the original PONC is to 2 look at amendments to PONC, to the Charter. Um,basically for allowing for native tenant right policy in public access open space areas and native tenant gardens. Because these are something that are actuallyafforded by law and in theUnited States Constitution under Customs and Usage. Um also, um . . . there is a problem with HRS 172-11, which states that the rights of the heirs enur, which is forever, even if the land was alienated, which includes old sugar cane leases, . . . um . .. all kind of different situations. So um I just want to announce to you that I had a meeting with the Federal government. Um it was a sort of chain of events. I went to the Police department to ask them about issues of old sugar cane lease lands that have these . . . um . . . y leased lands . . .um government Ahupua‘a and whatnot. And so the police said they had never heard of it. Then I asked them to look it up, they said it was hands off and out of their scope. Um I was directed to call the sheriff. The Sheriff had never heard of it and sheriff was very upset, because um you mean to say that we’ve been ejecting native Hawaiians off land where there’s court order native tenant rights and they have the rights under HRS 172-11 for these Kuleana lands. And as you notice there’s the Kuleana’s property land tax exemption, um . . . which is um basically for Kuleana land which could be within a PONC area.Um $100.00 a year. Um which would . . . um . . basically when I’m pleading here is that there is a lot of homeless Hawaiians . . . um I will call them poi lessHawaiians with diabetes and whatnot. They need to be able to return home and . . . um . . . that within the PONC areasum I did attach,I believe you have a map, maybe on the second page where it shows an example of .Um thereis a study by Marianne Kelly. Um series 80-2, which is the nine Ahupua‘a s um which I have with me in the binder . . . um . . . and that basically um showing um all these land commission awards and whatnot um actually mapped out and um in reference to a regular TMK map that thee by law of these um numbers are still remaining on the map so that you can see them on the maps. Um so basically it led up to a meeting with thee . . . um the Federal government inKapolei. Um discussing the issue of thisenforcement of HRS 172-11. So apparently there’s been enforcement and an actualoffice of HRS 171, which is your land a HRS 174, which is your water. So under HRS174c-101 is Native Hawaiian water rights, appurtenant water rights. They don’t even need a permit . . . to go and access to water. Which um I just had a discussion with Parks and Recreation that um say even Honu‘apoparcel was given over to PONC. Um the map was changed they took Paiea off the map, which was very upsetting to the Kamehameha Family. Um in that area they have refused to stop spraying, even though the . . . um even the CDP maps shows that there are these land commission award within that area and actual within PONC, 8559B Lunalilo. So the problem is um there’s like a widespread a non- compliance to a letter from SHPD asking the State Highway Department and the Parks to stop spraying herbicide. Um in areas where there’s land commission awards. And so we’re are also look at. . .or any other place that is under PONC. There should be no spraying whatsoever of herbicides and I um do havea report from Mississippi River basin where it does show the problems a with . . . um certain herbicides and whatnot. 3 Um so the main thing I guess I wanted to say . . a . . so far as to revise the PONC Suggestion form is to look at a memorandum of agreement (MOA) or a memorandum of understanding (MOU)where there is a non-purchase agreement. And that where . . . um . .that you know . . . a lotof these parcels are huge. And um I know from experience when I was researching we had a meeting with Ann Stewart from Washington and Bob Jacobson . . . um which leads to another issue is that reen, had nativetenant gardens, um there are youmight say family feuds going on under undivided interest but astill . And so a um I went in and I researched anall the bull rushes have been removed a which gave the area the ecosystem, water filtration and whatnot, but um the bull rushes were basically accused of being an evasive species. According to the map I have actually shows bulrushes form a 1852. And that in the Hawaiian dictionary it shows bull rushes have about 5 different Hawaiian names including Naku. And that these were used to make a not the favorite type of poi, but um also a fish weaving . . . um fish traps, a thatching for roofs, and um placement for the maps to sleep on, and so also as I know from my ancestors the Haie people, the navigator people. They did use them to bind them to make canoes, and so there is a story about the search to Kahiki, um to find totally devastated and removed. And so um I know that there is a meeting coming up on Wednesday I believe um in N But um I just wanted to put in a good word for the reeds and that I don’t know they might have to be re-establish from Ninole pond if they are going to grow back. But it’s just a . . . it’sjust terrible. Um let’ssee and I basically just want to point out a . . . . . . . Ok so just basically that with what’s going on um with HRS 172-11 the native tenant rights is to maybe make an Ad Hoc Committee or something . . . um maybe have public hearings of as far as input on this issue. And that because it was a federal undertaking, because there was federal money involved. Um that the County of Hawai‘i,this is also a project I worked under Emily Naeole is to get the Cultural Resource Commission going. So to make a certified local government, consultation is number one. So one thing that was discusses at the last CRC meeting was a 2 pages or something of a grant workshops available um under consultation, traditional cultural properties, places and whatnot. Um and so to be compliance and all that including federal undertaking, I believe it’s going to be necessary especially in the light of native tenants and living heirs under HRS 172-11. And I wanted to support Dwight here. Um and that Ineeded to justlet you know that to set up the entire County of Hawai‘i, which was the entire State, well I mean territoryback then. Congressional bonds ofmillions of dollars were given over to the territory to set up public utilitiescommission, roads,everything, parks, hospitals and that the collateral, the collateral that was used was the Hawaiian Kingdoms crown and government lands according to the revised laws of 1925, Volume II. And that also you need to be aware that I’ve taken international lawas well along with cultural resource management so that basically, currently, we’re looking at, um, 4 that Queen Lili‘uokalani did pass the homestead act eight days before the overthrow so that whatever’s on the book at the time of the overthrow is what theHawaiians are entitled to. So that all the crown government lands were supposed to be opened up when the sugarcane leases were pau then so, umthat never happened because the overthrow happened and then um, they amended her homestead act in 1895 and no longer could any Hawaiian, it says it in the revised book, no longer can any Hawaiian, um, homestead on these properties, only certain corporations. So um, basically that, um, any parcels, um, this is probably the last thing um, I don’t know how much time I have left to talk but um, that anytime that PONC is dealing with Poupouwela, different um, Kalaaiki, any areas that are government ahupua’a, that there is a stipulation by the legislation that there has to be a 2/3 legislative vote and that happened because um, partially because of Honu‘apo and the native naukana and that the royal families of Kamehameha, they all intervened into the Supreme Court on crown and government lands and so um, there is verifiable beneficiaries and heirs of the issue. So um, the situation is that PONC in the purchase of these properties hasnot complied with this statute, I have a copy here and then also the last thing that I wanted to say is that um, I also under Emily Naeole, had meetings, had to arrange meetings with the native Hawaiians, different, like the chiefs, government of Hawai‘i, Kalahui, different people didn’t come, weren’t able to come but basically to look at you might say the tolerance and a working relationship with Hawaiian nationals within the State of Hawai‘i. So, um, that was actually, um, you might say decreed by Abercrombie and so, um, what I’m looking for is a better working relationship with native tenants and native Hawaiians in PONC areas and um, if you need my assistance, um, I have different documents and whatnot that you can see but, you know so far as being compliant but also preserving our open spaces is very important and thank you very much everybody, aloha.And did you have any questions or anything? Vice-Chair Tomich –Questions? Marilyn. Commissioner Nicholson –You mentionedlike mid-way through your presentation which was very interesting, non-purchase agreement. What is a non-purchase agreement? Ms. Mahi –Okay, um, basically, um say like you, um have an area that has a Land Commission Aw move away because there was droughts, earthquakes, a lot of, you know, buildings got shaken to the ground. But basically a non-purchase agreement would be to go inwith the family, um have meetings with as many of the heirs, not just one family but you got undivided interests and say look we’d like to, um, preserve this property, um, in perpetuity if we can with a working relationship and so, um, you would make a MOA or a MOU because it is a federal undertaking, if you have federal money coming in, which when you’re dealing with U.S. Fish and Wildlife, things like that. And, um, so there’s the compliance there but it’s, um, in the course of, say if the County had purchased Kawa which I can show in deposition, counterfeit warranty deeds, all kind of problems with the title, um, basically under brokerinsurance, errors and omissions, they made an error in the transfer of the title, omitting that there were living heirsand omitting HRS 172-11 and court ordered native tenant rights.So basically I believe that the County could get back their 5 two million dollars that they paid Edmund Olson through the broker insurance so the money goes back to under brokerinsurance transfer of stolen property, that the money goes back to the innocent purchaser, and that the property goes back to the rightful owner. So in this case, yes you would be recognizing the law but also you would enter into a Memorandum of Understanding agreementbecause U.S. Fish and Wildlife, um, in the PONC agreement for let’s say Kawa, they have the option to return it to a third-party if there’s a problem which there is. So the third-party, I believe is the native tenants and the heirs but also that um, there’s already a semi-working relationship that we could look at and have a MOU or agreement with the families and also provide for them, you know, shovels, weed-eaters, composting toilets, things like that without bringing in SWAT and removing the court-ordered native tenant rights, avoiding that whole legal problem by actually correcting it and looking at alternatives. APPROVAL OF MINUTES Motion:Commissioner Nicholson moved to approve the minutes of January 9, 2017, regular session. Seconded by Commissioner Fischer.Commissioner Siracusa abstained from the vote since she wasn’t present at the meeting.All other members voted aye, motion carried. WRITTEN COMMUNICATION Communication No. 17-001:Letter dated January 12, 2017 to Council Chair Valerie T. Poindexter and Members of the Hawai‘i County Council, re: Transmittal of 2016 PONC Annual Report to the Mayor Motion: Commissioner Siracusamoved to accept and file Communication No. 17-001. Seconded by Commissioner Bishaw; all other members voted aye, motion carried. DEPARTMENT OF FINANCE REPORT Mr. Hamana Venturaasked if there any questions to answer. Ms. Siracusa asked for the status of the Vacationland Land Trust acquisition. Mr. Ventura replied that we are going through the process, still waiting for the shoreline certification to be completed to determine what the net square footage of the parcel is and then we can move forward with the appraisal. Ms. Siracusa asked for an update of replacements for PONC. Mr. Ventura replied that there’s been some applications that have come in and once the Mayor’s office goes through theirreview, he will update them. OFFICE OF THE CORPORATION COUNSEL’S REPORT Deputy Corporation Counsel Amy Selfhas nothing to report at this time. 6 CHAIRPERSON’S REPORT Chair Cynthia Nazara is not presentandVice Chair Kekaulike Tomich has nothing to report. UNFINISHED BUSINESS Commission to discuss, review and revise PONC Suggestion Form Mr. Tomich asked if there’s any discussion. Ms. Iwaloa Chilsonnoted that from the last meeting they were going to change Ms. Alexandra Kelepolo’s name to Mr. Ventura’s name on the form but it was never approved. Motion: Commissioner Fischer moved to change the form to Mr. Ventura’s name. Seconded by Commissioner Bishaw; all other members voted aye, motion carried. Commission to discuss and select committee members for the PONC Investigative Ad Hoc Committee for 2017 Ms. Nicholson commented that this agenda item just needed approval from the last meeting. Mr. Tomich clarified thatthe members selected were Ms. Nazara, Ms. Fischer and himself. Motion: Commissioner Nicholson moved to approve Vice ChairTomich, ChairNazara and CommissionerFischer for the PONC Investigative Ad Hoc Committee for 2017. Seconded by Commissioner Bishaw; all other members voted aye, motion carried. NEW BUSINESS Commissioners to report to Commission of any community meetings and/or Community Development Plan (CDP) Committee meetings attended for public outreach Ms. Siracusa reported that she attended thePuna CDP meeting and suggested some possibilities to them. One of the propertiesthat weresubmittedto PONC for a Mt. View parcelby Frank Commendadorwas very vague and did not give much information. She did offer to go over it and help him but he hasn’t gotten back to her yet, it’s been several months now. In the meantime, there was a parcel, Wai‘ele, that was onthe 2006 and 2007 PONC list and at that time the property owner did not want to sell so it was dropped. The property is now available forsale and will be re-submitted for PONCtoreview. Ms. Fischer commented that she will be attending the South Kohala CDP next Monday and North Kohala CDP two months from now. th Mr. Tomich will be attending the Kona CDP on April 17. 7 Commission to discuss, review and approve draft press release to publicize through various radio stations and newspapers soliciting suggestion forms from the public (the commissioners went into discussion) Motion: Commissioner DeLoziermoved to approve.Seconded by Commissioner Bishaw; all other members voted aye, motion carried. Commission to discuss and select committee members for a PONC Ad Hoc Committee to work with the Department of Parks and Recreation to review and revise the PONC Stewardship Grant Request Application and create a new PONC Stewardship Grant Request Application Evaluation Form Mr. DeLoziernoted that what they are trying to do here is to select committee members from PONC to work together with P&R to accomplish these goals. Mr. Bishaw commented that if P&R needed their advice, they would seek their help. They should wait until P&R actually reaches out and asks for help.Ms. Nicholson suggested that they be pro-active and tell P&R that this is something that matters to PONC;they may never reach out and we are not happy with the form that is currently in use. Ms. Siracusa commented that it seems that a lot of the suggestions that they madehad nothing to do with a requirement to make changes tothe charter language. The changes were to make it easier for applicants. They need to educate P&R so they understand why these changes were made and that things would go more smoothly if the guidelines were re-worded to make it more user friendly; not necessarily change the language in the charter. Mr. DeLozier agrees with Ms. Nicholson’s comment about being pro-active due to P&R’s lack of initiative. There is currently 1.8 million dollars in the PONC Maintenance Fund just sitting. How much more time is going to go on and money that accumulates, when properties needs to be maintained and they just drag their feet. Mr. Tomich asked if anyone wants to be on this committee.Ms. Siracusa and Mr. DeLozier indicated that they are interested. Motion: Commissioner DeLozier moved to form the committee with Commissioner Siracusa and himself however have this item on the agenda for the May meetingopening it up to new commissioners that are added between now and then or a commissioner that was absent from this meeting up to the maximum which would be no more than four commissioners.Seconded by Commissioner Nicholson;all other members voted aye, motion carried. Ms. Nicholson added that this still leaves the ad hoc committee that is going to be investigating the maintenance fund applicants. They can decide if they want the other ad hoc committee that they appointed to also include that in their duties otherwise if they’re going to create a different ad hoc committee it will have to be included on the next agenda. If it is, they can amend the motion to add to their responsibilities. 8 Ms. Nicholson commented that on page 7 and8 of the minutesit was discussed that the ad hoc committee would go on site visits for nominated properties in addition to site visits for stewardship properties. They should clarify that since the motion was already made. Ms. Amy Self commented that for this particular ad hoc committee that you just created, it is just to work with P&R. When you’re creating these committees, under Sunshine Law, you are allowed to have ex-parte meetings to do certain things, to investigate and gather information. Ms. Nicholson said that they have two ad hoc committees they’re talking about. One is to work with P&R on the stewardship grant applications. The other is to do site visits for the applications and what they need to clarify is if that committee is empowered to visit stewardship application sites. Ms. Self replied that they’re creating the scope and that is what it’s going to be. Ms. Nicholson suggested that they invite someone from P&R on the site visit if it involves properties for the stewardship grants. ANNOUNCEMENTS The next meeting is scheduled for Monday, May 8, 2017 at 10:00 a.m. in the West Hawai‘i Civic Center, Building G Conference Room, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawai‘i 96740 Set agenda for Monday, May 8, 2017 Ms. Siracusa noted that the standard agendaitems and whatever comesin between now and then. Ms. Chilson added that they will report on any CDP meetings attended and alsotalk about the ad hoc committee forms if they’re able to meet withP&R. ADJOURNMENT Meeting adjourned at 11:01a.m. Respectfully submitted, Iwaloa Chilson TA Property Management Technician 9