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

We can carry signs, and we should,  We can organize and we can march, and yes we should do this as well.  And absolutely we must offer testimony and write letters to the editor.  And we must vote, and support candidates that represent our values.  

But if we want real change that will make a tangible difference in our lifetime, we must run for and serve in public office – at all levels.

2020 will be a watershed year.

If you believe in the values of economic, environmental and social justice, and if you aspire to help lead in the effort to promote these values, and if you are willing to do the hark work necessary to achieve these ends – Please apply TODAY to the Kuleana Academy.

“We need aloha aina, community based, forward thinking people to take advantage of this program and run for office, because we need more of you…” Keani Rawlins-Fernandez, Maui Councilmember and Kuleana Academy Graduate

“I have to credit my success 100% to Hapa’s Kuleana Academy…” Representative Tina Wildberger

Watch this short 3 minute video, then go to https://www.hapahi.org/kuleana-academy and apply TODAY, April 15 – If you are rooted in your community and have the desire, the values and the work ethic needed to make real change happen – Please Apply!

The Kuleana Academy is a statewide leadership development and non-partisan candidate training program hosted by the Hawaiʻi Alliance for Progressive Action (HAPA) in partnership with other leading public interest organizations in Hawai’i.

Participants from all island attend six (6) weekend trainings on O‘ahu (over 4 month period) in leadership and personal development, public speaking, and media training. They will also learn critical community organizing skills, the basics of the legislative process and Boards and Commissions, as well as campaigning skills.  Transportation and accommodation costs will be provided by the Academy, and applicants from all islands are encouraged to apply.

The core of HAPA’s mission is to catalyze community empowerment and systemic change – change that goes to the root of our social, economic and environmental injustices. In order to fulfill that mission, HAPA believes that Hawai‘i needs more progressive government leaders who value ʻāina (environment or “that which feeds”) and people ahead of corporate profit.

The Kuleana Academy is designed to educate and train grassroots leaders who have a desire to serve in public office, as community organizers, or on Hawai`i’s Boards and Commissions. The program provides participants a well-rounded introduction to critical social, economic and environmental issues in Hawai‘i, as well as in-depth leadership development training and the ins-and-outs of campaigning.

Yesterday, April 9th 2019, marked another chapter in the ongoing water wars, aka HB1326 HD2.

There were strong rumors that there would be an attempt to “pull the bill to the floor”, and force a vote on the HD2, which extends the ability of Alexander & Baldwin (A&B) and others to divert mountain streams and use millions of gallons of water daily, without acquiring long term permits (and associated environmental protections).

Last week following the Hawai’i State Senates first and only public hearing, after 6 hours of overwhelming testimony in opposition, decision making finally occurred (kind of but not really).

The joint committee of Water Land and Ways and Means (WAM) convened, and the Water Land Chair, Senator Kai Kahele announced a proposed amendment to take Alexander & Baldwin (A&B), out of the bill while leaving the approximately 9 revocable permits (RP’s) in place that impact farmers, ranchers and KIUC.

The rationale was that A&B is under a court order, involved in active litigation with regards to its water use, has a long history of stream diversions, and thus passing legislation on their behalf was inappropriate.

The Water Land Committee voted 3 to 2 in favor to pass the amendment, but WAM Chair Donovan Dela Cruz balked, refusing to allow his committee to vote and instead announced his decision was to “defer indefinitely”.

This type of decision normally kills the bill, preventing it from moving forward in the process.

While his reasoning was not publicly stated, clearly Senator Dela Cruz was not pleased with nor supportive of, removing A&B from the bill.

As has been noted earlier, A&B will save $62,000,000 should HB1326 HD2 pass into law. And now, as a result of the amendments proposed by Senator Kahele, that financial benefit was at risk of evaporating.

According to a recent article in Civil Beat, A&B and it’s executives donated over $300,000 to state and county political campaigns during last two election cycles. Their government and community affairs person earns a salary of about $750,000 per year.

A&B is arguably the last remaining “plantation company” in Hawaii and certainly the states most powerful and politically influential landowner.

As you can see the stage has been set now for a major collision of political forces.

On one side you have those opposing what has been not so affectionately deemed “the corporate water theft bill”, versus on the other side those who support A&B and the continued un-permitted diversions of streams and publicly owned waters, for commercial purposes.

In the middle, being held as hostages of sorts, are the small farmers and ranchers. To a lesser degree, the same is true for hydro electric producers such as KIUC, who also are facing public scrutiny for failing to secure the proper long term permits.

Those opposing HB1326 HD2, believe that the threat to farmers and ranchers losing their water, had been grossly exaggerated and little if any threat actually exists.

Those supporting A&B hold those small farmers and ranchers out as if they are human shields. They demand passage of HB1326 HD2 to “protect the small farmers” yet refuse to support the measure when A&B was removed, while the farmers remain protected.

During yesterday’s Senate floor session the gallery was packed with people there to witness what was expected to be a dramatic show down. The overflowing crowd spilled outside where they became loud and rambunctious at times, the chants and songs echoing throughout the rotunda.

Sitting in the gallery with friends and associates from all islands, we observed the Senate at work, waiting patiently for some senator to make the move.

I watched along with the others, and began noticing the tell tell signs, that something was about to happen. Papers were delivered to the clerk on the floor, then a few minutes later copies were distributed to the members. This no doubt was a copy of some amendment that was about to be introduced.

Out of no-where, a Senator called for a recess. The floor cleared and the Senators headed into a private caucus. 15 minutes or so later they emerged, and soon those in the gallery with “text access” to various Senators on the floor, knew that whatever maneuver had been planned, had been called off.

There were no reasons given, nor any specific information provided as to what action had been planned and then canceled.

So for now, HB1326 HD2 remains dead, tenuous as that death might be.

The reality of the process is that 13 senators can revive it at anytime.

$62,000,000 is a whole lot of money and huge motivation for some to seek ways to bring the bill back to life.

Yesterday the community showed up. Over the past few weeks, thousands of emails and telephone calls have poured into the office of the 25 senators.

Without this active community engagement, without the community being unrelenting in shining a light on this bill and the related legislative actions, it is without question that our water would by now have been sold down the river.

But fortunately, the community has shown up, and consequently those whose intent is to fight back against big money and special interest have prevailed.

The legislative session continues through April and until sine die, the end of session, anything can happen.

Mahalo to all for taking ownership of your government.

Sent from my iPhone

(I literally wrote this entire piece on my iPhone which is why I include this last snippet – to give it the credit it deserves) 😉

All hands on deck. 

As expected the power and political muscle of A&B will not easily be letting go of their $62,000,000 and our water. 

Civil Beat is reporting:

“Some senators want to help A&B.  Now, sources say leadership in the House of Representatives is pressuring their counterparts in the Senate to force a floor vote on the bill Tuesday.” 

Yes, this is an outrageous attempt to subvert the process and put the interests of the moneyed and the powerful ahead of the public.

Pulling a matter out of committee to force a floor vote is an extraordinary tactic that I have seen attempted only once in the 8 years I served in the Hawaii State Senate.  

Extreme pressure is now being put on each and every Senator to “toe the line” with the House and Senate leadership who desire to pass HB1326 HD2, and support A&B.  

You can be sure there threats of retribution against those who oppose this and who intend to vote NO, and the fear of that retribution is strong among some in the Senate.  They fear losing bills, losing CIP (money for projects in their district), and possibly even losing their committee chairmanships.

I believe the Senate is better than this.  When I first got elected in 2002, I will never forget the wisdom of Senator Les Ihara who mentored me at the time.  Senator Ihara told me that there were two types of decision making – integrity based decision making and fear based decision making.  

Interestingly enough, I have found that integrity based decision making is the easiest, you simply listen to your na’au, your inner core. Then you are sure to always wake up the next morning being proud of who you are.

On Tuesday all of Hawaii will bare witness to what truly drives the Hawaii State Senate.  Is it integrity or is it the fear generated by the demands of special interest and big money?

Please call YOUR SENATOR today, (yes again it is today when we need your help) and tell them politely and professionally, but directly – that we are tired of the games and power plays being made on behalf of big money special interest. 

We have 13 friends in the Senate, of this I am sure.  Please ask your Senator if he or she is one of those 13 friends, willing to vote NO on HB1326 HD 2. If so, please Mālama them! If not call them back tomorrow with the same question.

The battle for water is really about integrity.  It’s that simple.

Please, call your Senator today.  On the weekend, you will likely get voice mail and that is ok.  Remember – polite, professional and firm.  Please also send an email.  All contact information is here.

Your Senator, the Senator who represents you and the district you live in, is the most important person to contact. Yes, reach out to others also if you can, but the most important person for you to connect with is the Senator who represents YOU.

With deep aloha to all,

Gary Hooser  http://www.garyhooser.com

Join us on Tuesday, April 9 at 9:30am in the capitol rotunda as we rally to #freethestreams ahead of Tuesday’s floor session.  Details HERE.

More background and email links can be found here:

Wai For All – Free The Streams- 

The Hooser Blog-

We won.  HB1326 HD2 (corporate water theft bill) is dead. At least for now.  13 members of the Senate or 26 members of the House could revive it if they choose (to their political peril I believe), but for now it is dead.

Yesterday afternoon at 4pm at the Hawaii state capitol, myself and many others witnessed an extraordinary event.

A joint committee hearing for “decision making” was held at this time on HB1326 HD2 led by Senator Kai Kahele, Chair of the Committee on Water and Land, joined by Senator Donovan Dela Cruz, Chair of the Committee on Ways and Means.

I have attended and participated in countless committee hearings over the past 20 years, rare indeed are the times when the Chair of the Committee is willing to publicly speak truth to power.

Senator Kahele not only spoke the truth and acknowledged that HB1326 HD2 was special interest legislation, but he did so directly to that special interest (Alexander & Baldwin) in a public forum.  He then introduced an amendment deleting them from the bill, and asked his Senate colleagues on the committee to take a public vote and declare their position as well.

It was a wow moment, and Senator Kahele handled it with grace, professionalism and a fierce intensity.  After 30 minutes or so of discussion the vote was called.

The vote was 3 to 2 in support of the amendment.  

Senator Kahele was joined by Senator Clarence Nishihara, who after a very long and very pregnant pause, voted yes. Senator Gil Riviere who has been a champion on this issue, also spoke powerfully against the special interest nature of HB1326 HD2 and then voted “WR”, which expresses some reservations but is counted as a yes vote.

Senator Gil Keith-Agaran and Senator Kurt Fevella voted in opposition.

All eyes then turned to Senator Donovan Dela Cruz who immediately called a recess and behind the scenes counted his votes, and evaluated his options.  Minutes later he called his committee to order and promptly announced that his decision was to “defer indefinitely”.  

This effectively kills HB1326 HD2, as in order to stay alive both of these committees must vote in the affirmative on the same motion.  Water Land voted to amend the bill deleting its application to A&B (and other amendments), and Ways and Means chose to defer indefinitely. 

Consequently there is no agreement between the two committees, the bill cannot move forward and thus is dead.

You can be sure that those with money and power will be working overtime to reverse what happened last night.  We must remain vigilant and keep the light shining bright to expose the shenanigans that will be in play over the coming days as these forces seek to bend the rules and process, to their benefit.  $62,000,000 is a whole lot of money.  It is understandable that A&B is not happy with this outcome and that those who carry their water in the legislature, will be working over-time to save them this money.

Mahalo to all who have taken the time to call and email legislators, and especially to those who have been able to show up in person to testify.  Without question, it is because of all of your efforts, that we have been able to pull back the curtain to expose the reality of HB1326 HD2, and stop it in its tracks.

Please take the next step and express your appreciation to:

Senator Kahele  senkkahele@capitol.hawaii.gov

Senator Nishihara  sennishihara@capitol.hawaii.gov

Senator Riviere  senriviere@capitol.hawaii.gov

In solidarity and with great appreciation to all who helped get us this far,

Gary Hooser  http://www.garyhooser.com

Excellent article in Civil Beat offering further background and info can be read HERE:

More background in my blog (scroll down to read about this ongoing saga): https://www.garyhooser.blog

Also check out “Wai For All – Free the Streams”

Credit: Center for Food Safety

We have less than 24 hours to impact the final decision.  If you already know the story, skip to the bottom and please start calling and emailing Senators.

Yesterday, April 2nd the Hawaii State Senate held its first and only public hearing for HB1326 HD2 “the corporate water theft bill”.

Those who are following this issue closely know that passage of HB1326 HD2 will result in a $62,000,000 financial benefit to Alexander & Baldwin (A&B). 

A&B has sold much of its land on Maui to an entity by the name of Mahi Pono.  That sales contract includes a provision that requires A&B to guarantee a specific amount of water to Mahi Pono, within a specific time frame. If they fail to do so, A&B will be required to pay $62,000,000 to Mahi Pono.

One problem with this, is that A&B does not own the water, which by state constitution is a public trust resource.  They have been using the water and utilizing “revocable permits”(RP’s) for a long, long time, but they do not own the water.

A&B has a problem of their own making. They promised to deliver water that they have neither ownership of, nor control over.  It is not the legislatures role to fix their problem.

This dilemma for A&B has resulted in the creation of HB1326 HD2, which if passed by the legislature amends state law and grants A&B rights to continue diverting the streams.  They then transfer those rights to Mahi Pono, and voila, A&B secures a $62,000,000 benefit.

The measure also grants similar rights to extend water use rights and stream diversions to Kauai Island Utility Coop (KIUC) and others including various ranchers and farmers.

The public hearing was before the Senate Water and Land Committee, Chaired by Senator Kai Kahele, and heard jointly with the Ways & Means Committee, Chaired by Senator Donovan Dela Cruz. 

Ratcheting up further distrust of the process, Senator Dela Cruz proposed and scheduled a duplicate doppelgänger bill with a different number (HB1171) intending to accomplish the same ends as HB1326 HD2 (gut and replace).  72 hours after being scheduled, HB1171 was withdrawn. 

Predictably the hearing was delayed, the room was too small, warm, and overflowing with people.  The hallway outside was packed with testifiers awaiting their turn to enter, the door guarded by the Senate Sergeant at Arms.

As the hearing gaveled in (90 minutes after the original start time), the tension and apprehension in the room was palpable.

On one side of the issue were Native Hawaiians, small farmers, environmentalists, and progressives – representing all islands.  On the other side were the high powered lobbyists representing A&B and Mahi Pono, backed up by a handful of individuals who are the “go to” faces of small agriculture who always show up on behalf of large corporate agriculture.

In the middle caught in a political vise between the two sides, was an array of state senators, who would at the end of the day, be casting the deciding votes.

Chair Kahele gaveled in the meeting and immediately launched into the direct questioning of the Attorney General, the Chair of the Board of Land and Natural Resources (BLNR), and the Director of the Office of Environmental Quality Control (OEQC).  The Chair’s questioning of these Department heads was exemplary, hard hitting and to the point. 

It became ultimately very clear from the first few questions and answers, that there was no legal basis for small farmers and ranchers to be swept up in this issue. Translated: If HB1326 HD2 was killed, small farmers and ranchers would not lose their water.

After the Department testimony the public followed.  Residents who had traveled from all corners of our state came forward one at a time and shared their thoughts and feelings on the issue.

The hearing went on in this manner for the next several hours with the overwhelming sentiment of those who testified in person was to “kill the bill”.  Approximately 604 residents also submitted written testimony in opposition.  There were only 40 written testimonies in support and 103 offering only comments.

Every senator at this point knows that the passing of HB1326 HD2 would benefit Alexander and Baldwin (A&B) to the tune of $62,000,000.  Each of them also knew that the threat of water loss to small farmers, ranchers, and hydro producers, was grossly exaggerated.

At about 5:45pm, after nearly 6 hours of testimony the Chair recommended, and the joint committee agreed, to postpone decision making on the measure until Thursday April 4, at 4pm.

This means we have 24 more hours to get our message out to the Senators. 

This, I believe is a good thing.  I believe that Senator Kahele and in fact a majority of Senators on these committee’s heard our message loud and clear, and want to do the right thing.  Further, I believe it was painfully obvious that HB1326 HD2 is targeted special interest legislation, and if killed no harm will come to small farmers and ranchers.

It is also painfully obvious that behind the scenes, powerful interests continue to push for passage of this bill. The representatives from A&B did not even bother to present testimony during the hearing, though they were present in the room.  After-all, why should they bother to speak in public and possibly incur questioning in public from Senators, when they have unfettered 24/7 private access to the key decision makers? 

You can be sure, that when A&B calls, many if not most in the Senate would put their first born child on hold, to take that call.  Ok…in the pursuit of a little humor…I may be exaggerating slightly.

But in all seriousness: We have less than 24 hours to have an impact on the decision due tomorrow, Thursday at 4pm.

Please contact TODAY via phone AND email, first your own district Senator (let them know you live in their district), a complete list of which you can find HERE:

Please also contact TODAY members of the two committees that will be voting on this issue tomorrow Thursday April 4th at 4pm.  The Water Land Committee is HERE and the Ways and Means Committee is HERE.

Ask them to vote NO on HB1326 HD2. No amendments are acceptable. This measure is not needed and is simply a gift to large corporate water users. 

As always, polite and professional messages only please.

Time is of the essence, by 4pm tomorrow the decision will have already been decided, reaching out to Senators TODAY is critically important.

Just when you think things can’t get worse, they do.  Welcome to “Gut and Replace”. Corporate water theft and HB1326 – and now HB1171.

Senator Donovan Dela Cruz Chairman of the Ways and Means Committee as if by magic, has created a second corporate water theft bill (SB1171 proposed SD2).  Apparently Senator Dela Cruz is concerned that HB1326 might be killed or weakened by Senator Kai Kahele, Chair of the Water Land Committee. 

As insurance, the “Gut and Replace” technique is now in play.  This occurs when a Committee Chair (Senator Dela Cruz) takes a bill that previously had nothing to do with water diversion, then schedules a hearing (with only his committee), and “inserts the contents” of a new bill.  In this case, the inserted contents are essentially a new corporate water theft bill, much like the existing corporate water theft bill.  

A doppelgänger of sorts, only for the purposes of diverting streams and enriching corporations.

Space and time does not allow more detail at this point, but suffice it to say that “the price of poker just went up”.  As has been stated many times and never disputed, the passage of HB1326 and now HB1171 will result in a $62,000,000 financial benefit to Alexander and Baldwin (A&B). Leadership in both the House and the Senate have clearly made this their top priority, and are pulling out all the stops. 

We must do the same. 

Please email and call YOUR district Senator today and ask them to vote NO on both HB1326 and HB1171.  The hearing for both of these bills is scheduled for Tuesday, April 2 at 10:45am.  A copy of each hearing notice and links to each bills and a testimony link is available by clicking on the bill number.  Unfortunately, separate testimony must be submitted on each.

No amendments. The intent and the process, lack integrity.

Short and simple, this is special interest legislation driven by money.  Big money.

YOUR Senator must know how you feel on this issue, AND your testimony  is important and needed.  Please take these two actions today.

While I understand it is increasingly difficult to do so, please keep all testimony professional and courteous.  We do have friends in the Senate who want to do the right thing, but who need our support in doing so.

Both of these actions (contact YOUR Senator and submit testimony) need to be taken asap, and preferably no later than 10:45am tomorrow, Monday (though late testimony up until the hearing is accepted).

Testimony delivered via the testimony link on the capitol website is preferred.  However, there is a “one click” testimony option available here, along with helpful background information.

And, if possible we need your physical presence at the hearing, State Capitol room #211, Tuesday at 10:45. I understand it is an inconvenience for many and a huge expense for neighbor islanders, but for those who are able to attend please come.

It is a sad reflection on the state of our democracy when legislators are forced into corners by the moneyed and the powerful, and then when they attempt to do the right thing, the process is manipulated to block and derail their efforts.  To his credit, Senator Kahele has proposed amendments intended to satisfy concerns, even though these proposals continue to fall short.  Now, with the creation of HB1171, the process is further corrupted, shifting the power to WAM alone.  

Consequently, we are asking Senators to vote NO, and just kill the bill.  To be clear, no amendments can make this better.

For far too long, there has been too much water flowing under this bridge and into the pockets of big business – and it’s time to stop.  #killthebill 

Read more here: Pulling Back The Curtain On A&B’s Corporate Water Theft

Read Civil Beat: Lawmakers Should Reject Water Rights Bill 

Find YOUR Senator’s contact information HERE.

Time to go to the mattresses.

Gary Hooser

http://www.garyhooser.com