GaryHooser's Blog

Some in the Senate seem willing to trade outright the integrity of our law making process and the preservation of our natural environment for a $62,000,000 benefit to a private corporation. 

We are again hearing rumblings there is an effort being discussed to bring HB1326 HD2 back to the floor, and to a full vote this Tuesday, April 30th.  

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In my 20 years of experience in government, politics and policy-making, House Bill 1326 is the most egregious example of special-interest legislation I have ever seen.

Alexander & Baldwin (A&B) stands to gain or lose $62 million, depending on the outcome of HB 1326. In essence, it is attempting to sell public trust water rights derived from stream diversions in east Maui. The intended beneficiary of this transaction is Mahi Pono — a California-based LLC, financed by a Canadian pension fund — which recently purchased the majority of A&B lands on Maui.

One fairly significant problem with this proposal is that A&B neither owns, nor has long-term control over this water.

In Hawaii, whether beneath the ground or flowing through our rivers and streams, water is a public trust resource. Businesses may use the resource, but must secure a permit that ensures sufficient water remains in the stream to preserve its natural ecosystem and that down-stream users also have access.

Yet this one company, the last remnant of the “Big 5” plantation era, and arguably the most politically powerful private landowner in Hawaii, is attempting, with the Legislature’s help, to secure those water rights without securing the proper long-term permits, and then transfer those water rights to Mahi Pono — pocketing a cool $62 million in the process.  READ ENTIRE PIECE AS PUBLISHED IN THE HONOLULU STAR-ADVERTISER ON THE HOOSER BLOG HERE

For some excellent legal analysis on why no one except A&B needs this bill, please see the following statements from some of Hawaii’s pre-eminent water law experts, Native Hawaiian Legal Corporation and Earthjustice.

If you for some reason you remain unconvinced that HB1326 is not needed at all, please also READ HERE clear proof that the Department of Land and Natural Resources (DLNR) did not think HB1326 was necessary and has never supported its passage (until of course the governor decided to interject himself into the discussion on behalf of A&B).

I ask again, one more time and perhaps (but no guarantees) the final ask for the 2019 legislative session.

I cannot emphasize enough the importance and urgency, and ask that you Call AND Email YOUR Senator and let him/her know you are paying attention and do not support the Senate resurrecting HB 1326 HD2. Please ask him/her to stand with the people and not corporate interests.

SHARE THIS EMAIL AND/OR THIS LINK WITH YOUR NETWORKS!  SPREAD THE MESSAGE FAR AND WIDE!

Join us also on Tuesday in the Senate Gallery.  Meet at the Queen Liliuokalani Statue at 9:30am. Senate Floor session starts at 10am.  We will not know whether this attempt by the pro A&B faction will be attempted or not, until the day concludes.  However we are hearing strong rumors and know that $62,000,000 and the public trust are in competition on this day, and every day until the end of the legislative session on May 2.

Image courtesy of Native Hawaiian Legal Corporation

“The late Sammy Akina was a kalo famer from East Maui. He fought and waited for decades for water to be restored to the streams so he could farm kalo to feed his ʻohana. He died without seeing the justice he sacrificed his life for.

Honor him.

Help us carry on his legacy by taking action against A&B’s water theft bill. Stop the harm to East Maui communities and end HB 1326 HD2 now.

If for some reason you remain unconvinced that HB1326 is a bad bill and not at all actually needed, please read the below and see clear proof that the Department of Land and Natural Resources (DLNR) did not think HB1326 was necessary and has never supported its passage (until of course the governor decided to interject himself into the discussion on behalf of A&B).

It is important to note also that on December 31st 2018, the Department of Land and Natural Resources (DLNR) submitted a report to the legislature entitled Water Rights Disposition report that stated: “In light of the ongoing cooperation among the various agencies involved, DLNR does not have any immediate recommendations for further legislative action or funding at this time…”

(no mention of the supposed hundreds of farms that will be without water unless the bill passes)

Then later on February 8th in testimony before the House Water Land Committee, the DLNR did not even support HB1326 but offered comments stating: “…it appears that Act 126, Session Laws of Hawaii 2016, already provided for continued holdover for the revocable permits beyond the initial three year period.” Actual testimony is HERE

(still no mention of the supposed hundreds of farms that will be without water unless the bill passes)

On February 25th, the DLNR stated in testimony essentially, ‘everything is on track, the various agencies (including the attorney generals office) are all working together with the permittees on this.’ (paraphrased) Actual testimony is HERE

(you guessed it…still no mention of the catastrophic circumstances that will ensue unless HB1326 is passed)

Again on April 2nd, in testimony before the Senate Water Land Committee, the DLNR makes no mention of any pressing or urgent need to pass any legislation at all. Actual testimony is HERE

(by now I hope you are starting to get the picture)

In fact none of the testimony provided by any of the proponents ever even comes close to suggesting the catastrophic circumstances now being run up the flag pole that, “hundreds of farmers will lose their water” if a bill does not pass.

Of course the real pudding…as in the “proof is in the pudding”- is the fact that Senator Kahele proposed passing an amended SD1 that took out A&B but left in the so-called small farmers.  But of course this proposal was rejected by the pro A&B Senate faction led by Senator Dela Cruz.  This is more proof that the small farmers and ranchers are only being used to provide cover for A&B, and all the faux outrage “to protect small farmers” is posturing rhetorical bs.

In any case, the $62,000,000 benefit to A&B will fund a lot of this type of disingenuous hype and you can be sure they will push to the end, and beyond on this.

We must remain vigilant and fully engaged on this.  We are hearing strong rumors again that the pro A&B Senate faction will be trying a last ditch effort to again pull HB1326 HD2 to the floor for a vote, this Tuesday April 30th at 10am.  A few of us will be gathering at the Queens statute at 9:30am and then sitting in the gallery to witness whatever, may or may not happen.

Please join us if you can.  Plus…pass the word.  We need everyones help to once again…!

1) Call AND Email your Senator: Let him/her know you are paying attention and do not support the Senate resurrecting HB 1326 HD2. Please ask him/her to stand with the people and not corporate interests.

Thank you!

Note: To be receive my semi regular email missives/newsletter (not really a newsletter but not sure what to call it) – Please subscribe to my mailing list here:

The 2019 legislative session ends, sine die on May 2, and any bills that have not been passed by both the House and the Senate by this date will be dead (for real this time but not really).

Like most of the rules and statements made about the legislative process, this of course is not entirely true.

First of all, 2019 is only the first year of a two-year “biennial” session. This means that ALL bills, unless explicitly voted down (which almost never happens), are technically alive through and until the end of the 2020 session.

All of the 2019 bills remain frozen at whatever place in the process they ended up on May 2, and in theory can be revived during the 2020 session and begin again at that point in the process.

Typically however, legislators prefer to start with a clean slate and will reintroduce bills the following year rather than use old measures that stalled in the first year of the biennium. But this is not required and if they so choose, bills that are in conference or in their final committee, may be revived and passed without enduring the entire House/Senate journey again.

It is also not entirely true that the deadline to pass bills is May 2. The reality is that most or all bills must clear the Conference Committee process by this Friday. This is necessary so that they can then proceed to their final floor votes, with the required 48-hour notice.

For those following HB1326 HD2 (corporate water theft), April 30 appears to be the very last possible day it could be “pulled out of committee” and put to a floor vote in the Senate. If that should happen, the Senate would then have to vote again on the same bill on May 2. I believe it is unlikely that this will occur and numerous senators have stated publicly that there is no interest or intent to revive this bill.

If the Senate backtracks, and decides behind closed doors to pull a last-minute surprise maneuver such as this, you can be sure fireworks will ensue on both dates.

For now, this time is mostly a wait and see game as the Conference Committee process plays out.

For the serious advocate however, this is not a time for complacency but rather a time to pour it on. You can assume “the other side” is doing the same — walking the halls, sending the email and making those all important phone calls.

As to who to call and email, it is always YOUR district senator and YOUR district representative — first!

Then, locate and contact the members of the Conference Committee as well by plugging in the bill number at capitol.hawaii.gov

As I have said repeatedly, your voice matters especially to the senator and representative who is elected to serve you and your district.

Please get involved and take ownership of your government.

And stay tuned. Next week’s column will include a summary report of bills passed and not — as by Tuesday afternoon, April 30, it should all be over (unless of course the Senate goes crazy and decides to try to pass HB1326).

Oh, I almost got to mention one final “wild card”.

The governor could, if he thought the issue important enough — call the Legislature back immediately into a special session and ask them to deal with any issue he might believe rises to a high level of importance.

First published on April 24, 2019 in The Garden Island Newspaper “Policy and Politics” column.

Hope everyone is enjoying their Easter Weekend.

I am hoping we can all pull together for a moment today and tomorrow in support of those in our community and their families who struggle daily, just to make ends meet.

Please if you can, read this excellent piecein Civil Beat, How Would Queen Liliuokalani And Father Damien Legislate? by Dawn Morais Webster

Please also forward it to your friends, family and to legislators as well –today if you can.

My hope is that you share my belief that if a person works hard and puts in their 40 hours per week, they deserve a wage that will provide them with a dry safe place to live, 3 meals a day and basic medical care.

My further hope is that you will join with me in calling your District Representative and Senator this Easter weekend.

Please call and ask them to support increasing Hawaii’s minimum wage to at least $15 per hour, for ALL workers– and put them on the path to a basic living wage of $17.

It’s an easy call to make. You will probably get voice mail and then the Senator and Representative will be greeted on Monday morning by your message,and the message hopefully of hundreds others.

Polite and professional please!

In addition to calling YOUR Senator and Representative, please also call the following who are members of the conference committee for SB789. 

Remember, polite and professional but firm – $15 passed this year for ALL workers.

REPRESENTATIVES Johanson (586-9470); Luke (586-6200), Cullen (586-8490) and Matsumoto (586-9490) and SENATORS Taniguchi (586-6460), Keith-Agaran (586-7344), and Fevella (586-6360)

Polite and professional but firm.

Let’s make this effort together, this weekend to help working people through-out all Hawaii.  These Senators and Representatives have already voted in support of various minimum wage bills several times this session. We are asking them now to move a strong bill to the floor for the critical and all important final vote.

Please treat them as friends and allies. Appeal to their higher angels, and ask them to do the right thing and pass a strong measure THIS YEAR.

If you presently earn less than $15 per hour, please let them know.  If you are a Democrat, please also let them know and remind them that supporting $15 per hour and living wage legislation are top priorities for the Democratic Party of Hawaii.

If you live in their district, also please let them know that as well as this makes your voice and opinion even stronger.

To locate the name and contact information for your district and for all Senatorsand Representatives, just click on the highlighted preceding links.

Mahalo to all for taking this extra step over this very special weekend.

Sincerely,

Gary Hooser http://www.garyhooser.com

Executive Director, Pono Hawaii Initiative (PHI)

MEMORANDUM
Date: April 19, 2019
To: Governor’s Office, Hawai‘i Legislators, and any interested fellow citizens From: Isaac Moriwake, Esq., Earthjustice

Re: Legal response to the Governor’s letter dated April 18, 2019 and the Administrative Director’s memorandum dated April 15, 2019 regarding HB 1326, HD 2, relating to water rights ___________________________________________________________
The following discussion responds to Governor Ige’s letter and Administrative Director Fuchigami’s attached memorandum, dated April 18 and 15, 2019, respectively.

In summary: the Ige administration’s support of HB 1326, HD 2: (1) rests on a false premise concerning the legal effect of the circuit court order in the Carmichael case involving Alexander & Baldwin (“A&B”); (2) lacks any justification based on the terms of the order itself; and (3) runs afoul of the constitutional public trust doctrine and principles of good governance.

The Administration’s Position Rests Entirely on a False Legal Premise.

The Ige administration’s position and the supporting memorandum from Administrative Director are legally mistaken. Indeed, this entire affair is a house of cards built on the false legal premise that somehow the state circuit court’s Carmichael order “likely applies to all pending lease applicants” (Mem. at 4). Not so, for several obvious reasons:

● First, it is well‐established law that such “unpublished decisions of trial courts have no precedential value.” Chun v. Bd. of Trustees of the Employees’ Ret. System, 92 Hawai‘i 432, 446 (2000).

MID‐PACIFIC 850 RICHARDS STREET, SUITE 400 HONOLULU, HI 96813
T: 808.599.2436 F: 808.521.6841 MPOFFICE@EARTHJUSTICE.ORG WWW.EARTHJUSTICE.ORG

Memorandum in Response to Ige Administration Page 2 of 4

● Second and related to the previous, the decision only applies to the specific parties in the case—i.e., A&B. See, e.g., King v. Order of United Travelers of Am., 333 U.S. 153, 160‐61 (1948) (observing that a state lower court decision “is binding solely upon the parties who are before the Court in that particular case and would not constitute a precedent in any other case” in state or federal court).

● Finally, the decision is on appeal, so it is not legally final. See State v. Von Geldern, 64 Haw. 210, 214 (1981) (recognizing that the judgment of the trial court “was not final since [the] appeal was still pending”).

These elementary‐level legal points should be not be novel or esoteric to the Ige administration and those it is relying on for legal advice. Rather, it appears more likely that the administration and its attorneys general simply prefer to ignore this law, or misinterpret it to suit other, non‐legal purposes.

The Carmichael Order Does Not Support the Adminstration’s Alarmist Position.

Moreover, actual review of the terms of Carmichael order (as opposed to false, unsupported claims about what it says and means) makes even clearer that it applies narrowly and does not prohibit the land board from continuing to issue revocable permits to small farmers and ranchers, as the administration has hyperbolically claimed. (See the relevant page of the order attached hereto as Exhibit “A.”) The order observes that A&B’s “holdover” status (which is a made‐up scheme that the land board afforded only to A&B) continued for 13 years and specifically rules that “A&B’s continuous uninterrupted use of these public lands on a holdover basis for the last 13 years is not the ‘temporary’ use that HRS Chapter 171 envisions.” Id. at 4, ¶ 6 (emphasis added).1 The order further explains that “[o]therwise, holdover tenants
1 In this context, those familiar with the long history of injustice and mismanagement by the state in its dispositions of water from state lands in Hawai‘i can only find the administration’s statement that “it is clear that the law cannot be applied in a discriminatory

Memorandum in Response to Ige Administration Page 3 of 4
could arguably allowed to occupy public lands almost in perpetuity for continuous, multiple one‐year periods.” Id. (emphasis added). Nowhere does the order purport to impose any bright‐line restriction or time limit on revocable permits (as opposed to A&B’s makeshift holdover). Rather, the order simply states that endless holdovers practically “in perpetuity” are “inconsistent with the public interest and the legislative intent.” Id.

EarthJustice, Sierra Club, and others have sought to convey to the Ige administration that it should exercise leadership and chart a proactive and practical path forward, especially for smaller water users whom no one opposes—instead of threatening to cut off those users based on an extremist overreaction to and misrepresentation of a limited, non‐precedential trial court order. Thus, the Ige administration, if it were focused on finding solutions, rather than exacerbating problems, could continue to issue permits to such minor users, in recognition of the public interest in such an accommodation, and subject to certain conditions also in the public interest: e.g., that the users are making diligent progress toward longer‐term applications and approvals and will not harm the resource. This path forward would comply with the specific terms of the Carmichael order (again setting aside that the order does not apply to other parties), insofar as it would not allow the current situation to continue “in perpetuity.” It would also be entirely consistent with the statute and the public interest. See Haw. Rev. Stat § 171‐58(c) (allowing the issuance of permits “under those conditions which will best serve the interests of the State”).
fashion” (Ltr. at 2) more than a little ironic.

Indeed, the very problem that precipitated the court’s ruling in Carmichael and the subsequent repeated debacles around legislative “fixes” was the state’s blatant discriminatory application of the law in favor of A&B.

Memorandum in Response to Ige Administration Page 4 of 4
The Administration’s Proposed False “Solution” Does “the Wrong Thing, the Wrong Way, for the Wrong Reasons.”

Ironically, the false “solution” that the Ige administration proposes—i.e., a blanket bailout or free pass under HB 1326 without any conditions or principled direction—is actually the path that is legally suspect, since it would completely abdicate the state’s public trust duties over water resources in favor of private commercial interests, in violation of the constitutional public trust doctrine. See In re Waiāhole Ditch Combined Contested Case Hr’g, 94 Hawai‘i 97, 130‐ 31 (2000) (emphasizing the “doctrine’s basic premise, that the state has certain powers and duties which it cannot legislatively abdicate”). This attempt by the administration to further interfere with the ongoing judicial process in the Carmichael case involving A&B, and to pressure the legislature to fix a problem that the administration and its attorneys created and have the full ability and responsibility to untangle, is also a failure of leadership and good governance. It does nothing to facilitate a genuine, sustainable solution and in fact has the opposite impact because, in the timeless words of Dr. Martin Luther King, Jr., “there can be no peace without justice.”

In short, the Governor’s position based on Director Fuchigami’s memo is the wrong decision, done the wrong way, for the wrong reasons.

EXHIBIT “A” TO EARTHJUSTICE MEMORANDUM

As we enter the last two weeks of the legislative session, it is a good time to explain the basics of the Conference Committee process.  Please, stifle the yawn and force yourself if possible to read on.  I promise that both, those of you who are intrigued and those who may be baffled by the lawmaking process, will find this fascinating.

If you are looking for the positive and optimistic, please jump to the conclusion.   As those who know me, know by now – I am not prone to sugar coat the reality that is the legislative process.

Please hang in there with me, as we navigate some of the twists and turns.

We start with the premise that the most important thing to the vast majority of elected officials, is to remain elected.  As I have said before, this is not a bad thing.  If you believe in the work you are doing, you want to keep doing it.  This is human nature.

Next we acknowledge that every time any vote is cast, someone’s ox is gored and thus there is a political price for every vote.  Every issue has multiple facets and every time a politician chooses a side, he or she loses some degree of popularity and political good will.

A legislator can vote to pass a bill or to not pass a bill.  Both of these votes have political repercussions.

Somewhere along the line, some astute politician figured out if they wanted to cut their political risk in half they should cut the amount of votes they cast in half as well.  This has resulted in a system in which politicians only vote in situations where the bill will pass.  They never vote in opposition to anything and voila, their political exposure is instantly cut in half. To further minimize the political risk, the vast majority of all votes are also “encouraged” by the legislative leadership to be unanimous.

In short, the legislative process is designed to minimize voting, especially voting on issues of controversy that do not enjoy broad unanimity of support.

Are you still with me?  I hope so because now that we have established the foundation of the “why they are doing this”, we will get to the “how they do this”.

How does the legislature process several thousand bills, pass only several hundred and avoid voting no on the rest?

The first and easiest method to kill a bill without voting is to have the Chair of the Committee responsible for the bill’s subject matter, simply not schedule a hearing.  Boom, the bill is dead. The second most common way to kill a bill is when a committee hears a bill but the Chair recommends to “defer indefinitely”.  This motion is an interesting one and there is not a vote nor is there any debate.  But, boom, boom – the bill is dead.

At this point in the process, the bills that have survived go on to the infamous “Conference Committee (CC)” which is a committee made up by members of the House and Senate, whose purpose is to “reconcile the differences” between the House and Senate “positions”.

The CC rules are rather arcane, but essentially state that the Chair of the Senate Ways and Means Committee (WAM) and the Chair of the House Finance Committee, (FIN) have veto power over any and all bills that have “fiscal impacts”, which essentially means…errr…any and all bills!

The rules also state clearly that CC meetings must be public, and further make it clear that the public may not speak at those same public meetings. At these public meetings there is also no process for submitting formal public testimony to the CC, though individual CC members may be sent email or contacted directly (outside of the formal meeting).

At least 24 hours notice is required for the first CC meeting but subsequent meetings on the same day may be rescheduled until midnight on that day without additional public notice, so long as it is announced in public at the prior meeting. The rules state that notice for these subsequent meetings be made “as soon as possible” but there is no minimum requirement.

As you can see (insert heavy sarcasm here), these public meetings are designed to provide easy access for the public, especially that 1/3 of the public residing in areas that require an airplane ride in order to attend (and not be able to speak).

There are myriad ways to kill bills at this point, without anyone casting a vote,

1. The House Speaker and/or Senate President can simply not name Conferrees to the CC.
2. Any Chair of the CC (there will be at least 2, one for Senate and one for House) can refuse to schedule a CC meeting, or fail to sign the meeting notice.
3. The CC can just announce they could not reach an agreement.
4. The member of the CC that represents WAM or FIN on the CC can refuse to agree.

NOTE: WAM and FIN can argue virtually every bill has “fiscal implications” as any “action” of any kind will require some staff time to implement, which has a budget impact of sorts.

Technically a majority of members of the CC are required to pass a bill out of the CC, but the member designated to represent WAM or FIN has the power to kill any bill, regardless of the CC’s majority decision.

So, how can the public be involved and effective in such a byzantine political environment?

First, be aware of what is happening and who is involved.  Email and call all Conferees which are listed on the bill’s “status” sheet that is available at www.capitol.hawaii.gov  If you can afford the time, show up at the CC meetings and use social media to report on the progress or lack of progress.

Second, remember that at the end of the day the “majority” of members are responsible for the actions of House/Senate leadership.  Contact “your” Senator and Representative and let them know your thoughts and feelings about the issue.

The jury is still out on 2019 legislative session.  There remains potential for it to be a great one and to pass initiatives into law that promote a bold and positive economic, environment and social justice agenda.  Or, they could decide to err on the side of mediocrity, and fail miserably.

The actions of legislators, both individually and collectively have tangible consequences. People and the planet suffer when they fail to take positive actions and instead fall back on the default and once politically safe position of accepting the status quo.

While some might wonder how it is possible, I do believe in our system of democracy.  Yes, it often fails to deliver on its promise and potential, but to paraphrase Winston Churchill, I know of no other system that is better.  It is up to us to take ownership of our government, to be involved, and to take responsibility for its successes and its failures.

First published in The Garden Island newspaper: April 17th, 2019