Who/What/Is - Ka Makani O Kohala Ohana, Inc. (Kako'o)

Ka Makani O Kohala Ohana, Inc. (Kako'o), a federally registered 501(c)3
nonprofit organization, traces its origins to October 1995 when the local
electric utility (HELCO) announced plans to build a diesel-fueled power
plant upwind of the communities of Halaula, Kapaau and Hawi, which would
have adversely impacted approximately 80% of the residents of North Kohala.
Realizing the potential threat to the public's health, community advocates
called upon local residents to organize opposition to the ill-conceived
power plant proposal. Committees were formed, a health survey was
conducted, and petitions were circulated. Kako'o members enlisted the aid
of experts including Hunter Lovins, director of the Rocky Mountain
Institute, to testify before the Public Utilities Commission (PUC), which
had come to Kohala, at the request of Kako'o, for the hearing on HELCO's
permit application. Kako'o also solicited and received testimony from other
experts as far away as Oxford University and Harvard and John Hopkins
Medical Schools. Because of this fair hearing of local concerns, the PUC
denied HELCO's permit request. Ka Makani O Kohala Ohana had emerged as a
voice for sustainability in Kohala.

Following on this successful community activism, Kako'o members wrote the
"North Kohala Power Resolution," calling for Hawai'i County's endorsement
of policies supporting energy conservation and efficiency and alternative
renewable energy development, the so-called 'soft energy path.' The Hawai'i
County Council unanimously adopted this resolution on June 19, 1996. A
spin-off project, the Na Makani Energy Initiative, was funded by the County
Department of Research and Development, and included a series of energy
forums presented to the community in 1997. Currently Na Makani is
sponsoring an energy efficiency and renewable energy program for the
residents of North Kohala.

In 1998 Kako'o joined forces with Hui Lihikai, a nonprofit membership
organization formed in 1989 to protect the North Kohala coastline from
non-sustainable development. Hui Lihikai has had a successful track record
over the years in stopping questionable projects or at least holding
developers accountable and responsive to community concerns.

As part of a broad collaboration strategy, Kako'o continues to network with
other Kohala community groups to protect and conserve the natural and
historical resources of the district and to ensure that Kohala residents'
concerns are reflected in County and State decisions affecting those
resources. Through this newsletter, our web-site, community meetings and
local public access TV, Kako'o continues to be an information broker
enabling an empowered citizenry. For a complete history of our organization
and its activities please visit our web-site at www.kamakani.org.

Water

On Oahu water has been a controversial issue for years. The pre-eminent
questions have always been, "Is there enough water to support continued
growth?" and "Who has rights to the available water?" These questions are
currently being addressed on Oahu by the Honolulu Board of Water Supply
(BWS), and the State Commission on Water Resource Management (CWRM - see
www.state.hi.us/dlnr/cwrm). Progress has been impeded in part by divergent,
often conflicting, interests...large landowners and developers on the one
hand and small farmers and environmentalists on the other. The process has
been painfully slow.

State law requiring each County to have an Integrated Resource Plan (IRP)
in place to insure public input in the planning process is a longstanding
sticking point. According to CWRM, the rationale for IRP in updating and
integrating the various components of the Hawaii Water Plan is as follows,
"Implementation of an IRP process will facilitate current planning and
decision-making processes administered by the State and Counties, and will
enable agencies to set priorities and develop appropriate strategies to
meet the State's growing water demands."

The August 2000 Hawai'i State Supreme Court decision in the Waiahole Ditch
Case on Oahu is of paramount importance in determining water rights
statewide. In that case, the primacy of the Public Trust Doctrine and the
"precautionary principle" were cited by the high court as guiding
principles in resolving controversial water issues
(http://mano.icsd.hawaii.gov/jud/21309.htm).

The Public Trust Doctrine, in essence, obligates State agencies to do due
diligence in protecting natural resources for future generations. According
to the State Supreme Court ruling, "The duty to protect public water
resources is a categorical imperative and the precondition to all
subsequent considerations, for without such underlying protection the
natural environment could, at some point, be irrevocably harmed and the
duty to maintain the purity and flow of our waters for future generations
and to assure that the waters of our land are put to reasonable and
beneficial uses could be endangered."

Regarding the "precautionary principle," the State Supreme Court affirmed
that "the principle mandates prudence in the face of scientific uncertainty
about the consequences of a proposed action when there is reason to believe
those consequences may be significant or severe. In matters involving the
environment, the impact of an action on the natural resources is usually
difficult to predict with specificity and certainty. Given this reality,
the precautionary principle demands that protective measures be taken to
prevent possible environmental degradation, even when the threatened harm
cannot be proven with scientific certainty." In other words, regulatory
agencies "should act in anticipation of environmental harm, without regard
to the certainty of scientific information pertaining to the risk of harm.
When the environmental effects of a proposed activity are unknown or
uncertain, the precautionary principle instructs regulators to err on the
side of preventing environmental harm." How long it will take to sort
through all these contentious issues on Oahu remains to be seen...probably
many more years of arduous negotiation lie ahead.

Meanwhile here on the Big Island of Hawai'i, we are facing similar
problems. The local Department of Water Supply (DWS) has numerous difficult
decisions to make. Implementing the IRP process will be difficult and time
consuming, as one aspect of the process involves public input at the
earliest stages of the planning process, a concept that in the past has
been foreign to the DWS. Concerning availability of fresh ground water, it
would seem there is enough on this island to supply all foreseeable needs,
potable and agricultural, for previously approved and projected
developments. But that is not a given. The remarkable growth occurring in
North Kona and extending northward beg for further study and public input.

The demand centers for water in West Hawai'i are all located along the
coast. The old bankrupt Nansay Project (located roughly between Waikoloa
Village and Mamalahoa Highway) was given new life recently when it was
purchased intact by a Nevada group. The project is called Bridge Aina Le'a,
LLC. The obvious question arose, "Is there enough water for that and other
South Kohala coastal projects?" The DWS has commissioned Steve Bowles, a
Waimea hydrologist, to do an inventory on the Waimea High Water Aquifer and
Oahu hydrologist, Tom Nance, to do a similar inventory on the Anaehoomalu
Aquifer to determine possible sources. When these two studies will be
completed is not clear. In the meantime, the Bridge Aina Le'a project faces
legal challenges (see Protect Puako article in this newsletter).

The question, "Is there enough water?" leads to another important question,
"How much water can be safely removed before the meniscus is ruptured and
salt water intrusion occurs?" And what authority are we to believe? This
very question came into focus in North Kohala this past year when the
methodology employed in the USGS study of the water budget for the proposed
North Kohala Water Transmission System was found to be in error (prompted
by questions brought up by a Kako'o board member - see www.kamakani.org).
USGS has acknowledged its mistake, but a recalculation of the water budget
for the Hawi Aquifer has not been completed. If such a trusted agency as
the USGS, with its built in system of peer review, can make such a mistake,
serious concerns are raised.

How will the Public Trust Doctrine and the "precautionary principle" play
out on this island? This remains an area of speculation. With Mayor Kim's
appointment of Chris Yuen as Planning Director, there is a chance that
proposals for new projects may have to pay more attention to future
generations. As for the idea of the "precautionary principle," the same may
hold true. Agencies issuing permits and developers seeking them may have to
face more accountability. More likely, and regrettably, the courts may end
up ruling on both these issues on a case by case basis. We are left to
ponder the nagging question, "Should the Planning Commission routinely
approve projects when the amount of safely available water is not
definitively known?" The obvious answer...not if we are to adhere to the
Public Trust Doctrine and the "precautionary principle."

Update on Pipeline Project

On August 14, 2000 Judge Helen Gilmore of the United States District Court
ruled in favor of defendants in a lawsuit brought by Kako'o against Hawai'i
County Department of Water Supply, U.S. Geological Survey, and U.S.
Department of Housing and Urban Development to force an environmental
impact statement for DWS's proposed Kohala Water Transmission System
("pipeline project"). In this Order, the Court concluded that the proposed
Kohala Water Transmission System Project is not a "major federal action"
within the meaning of the National Environmental Policy Act ("NEPA"). Thus,
according to the Order, no environmental impact statement ("EIS") need be
completed for the Project. An appeal to this ruling has been filed by
Kako'o. Donations to defray legal expenses are gratefully accepted.

Sustainable Community Project

As a nonprofit information broker, Kako'o plans to sponsor a series of
workshops for the benefit of the North Kohala community, and has received a
grant from the Hawaii Community Foundation to coordinate a schedule of
interactive educational events to be presented over the next one to two
years. The overall focus of these workshops is the sustainable development
of a small-scale, full service, self-sufficient, integrated community.

Various sustainable development experts and community advocates will
present topical information in a mediated panel format with the goal of
facilitating a bio-regional inventory and developing integration strategies
for the 21st century.

Potential workshop topics include self-sufficiency, sustainability and
integrated resource planning; land use, zoning and environmental
preservation; rural sustainable economic development; stream restoration
and watershed management; 'soft energy' development; diversified
agro-forestry and food distribution systems; native cultural
appreciation/restoration, social justice and harmony; and solid waste
disposal and recycling.

These events, projected to begin in the Spring of 2001, will be free to the
community and televised live on public access cable. Videotape recordings
will be archived at the Kohala Public Library for future planning
reference. Anyone interested in participating in any capacity is encouraged
to contact Kako'o at 889-5553, or via email at mark@kamakani.org.

Meditation Center

Vipassana Hawaii (petitioners Steven & Michele McDonald Smith) recently
received approval of a special use permit application (SMP) for the establishment
of a meditation retreat center on 83 acres of former sugar cane land along
the coastline in Halawa, North Kohala. Approximately 30 people attended the
Hawaii County Planning Commission meeting last November, during which the
Commission voted 8 to 1 to approve the permit. The only dissenting vote
came from Commissioner James Souza, who adamantly felt there was not enough
information available to perceive the full intent of the proposal.
He took the position that the project did not have the local community in mind,
indicating he believed the silent majority had not spoken, and that they
would not favor granting the special use permit. The Smiths did conduct
community informational meetings in Kohala prior to the Planning Commission
hearing.

According to documents available to the public at Planning Department
offices in Hilo, the Hawaii Insight Meditation Center will have at final
build out 104 housing units for visitors, in addition to a large meditation
hall and meeting rooms. These housing units will consist of 40 small
cottages, 60 single rooms and 4 family units. Although categorized as a
retreat center, to some observers the proposal more closely resembles a
resort, catering primarily to affluent off-island visitors.

As in past instances, the County Planning Commission has allowed a special
use permit for an urban project on land zoned for agriculture. The failure
to reject the special use permit and have the applicants, Vipassana Hawaii,
seek a boundary amendment to reclassify the project site to the Urban
District reaffirms a precedent for allowing more urban development on land
zoned for agriculture. A change of zoning from agriculture to urban would have
trigged an Environmental Assessment. (EA). With a SMP, an EA is not required.
On the other hand, if the acreage had been rezoned urban, that designation would
have been permanent and would have allowed 'any" usage identified urban in the
zoning code; where as a SMP restricts usage to just the meditation center and expires
with the project should it fail to build or go out of business.

While this retreat center may be a welcome entity for some in the Kohala area, the County's
approval process was hardly "pono" in keeping with preserving Kohala's cultural, historical &
agricultural character.

Protect Puako

Protect Puako is an association of landowners, residents, recreational
users, and other persons having special concerns about the community of
Puako, including historic sites, endangered species, lava fields and
near-shore marine waters and reefs.

In July 2000, Protect Puako filed a lawsuit against the County of Hawai'i
and land developer Bridge Puako, LLC (now known as Bridge Aina Le'a, LLC).
Protect Puako challenged government permits for a massive commercial /
residential / timeshare / golf course complex planned for Puako, South
Kohala. No environmental assessment has yet been prepared for the planned
project as required by State law.

The County of Hawai'i unsuccessfully sought to have the case dismissed, but
Judge Riki May Amano ruled Protect Puako had standing and rejected the
county's arguments. On November 29, 2000, Judge Amano denied Protect
Puako's Motion for Temporary Restraining Order and Preliminary Injunction.
Judge Amano expressed she was not fully informed on all the legal issues in
the case and had little familiarity in the area. She was not convinced
Protect Puako would prevail on the merits.

She stated that she saw a qualitative difference between modifying and expanding a
State highway and the highway underpasses which served as an environmental review trigger in
Citizens for Protection of the North Kohala Coastline v. County of Hawai'i (the "Mahukona case").

At a future hearing, Protect Puako is confident it can present evidence
that highway modification, including lane addition, widening and the like
routinely require environmental assessments. Notice of such required
environmental assessments are routinely published in the Bulletin of the
State Office of Environmental Quality Control. Dozens of such projects have
required environmental assessments in recent years.

At a November 1, 2000 Planning Commission hearing, a representative of
Bridge Puako raised concerns about the availability and increasing salinity
of ground water as development proceeds on the Kohala coast. Protect Puako
shares those concerns and continues to negotiate with major landowners and
developers about ground water issues, including availability and quality of
ground water. Protect Puako is participating in marine and ground water
studies which should bolster its case for irreparable harm should the
Bridge Puako project be allowed to proceed.

Protect Puako remains open to negotiating a resolution to the lawsuit that
upholds State environmental review law and protects the environment. If
such negotiations are unsuccessful, Protect Puako plans to continue to
pursue its legal remedies in Court.

Keawe'ula & Keawenui Bay

Here we go again...Western land rights butting heads with Hawaiian tradition.
After a year of unsuccessful negotiation with landowner Chandi Duke Heffner
to restore public access to Keawe'ula Bay, plaintiffs from the North Kohala
community are gearing up for a lawsuit to be filed in the near future.

For generations, native Hawaiians traveled to Keawe'ula Bay and Keawenui
Bay on a trail from the Kohala mountains. At Keawe'ula, these native
Hawaiians honored their ali'i and gods, and practiced cultural traditions.
Younger children learned to swim in the bays because of the small surge,
and their parents brought forth bounty from the sea. In the first half of
last century, an access trail was laid out from the mountains to Keawe'ula.
For decades, Kohala residents have traversed this access trail, first by
horseback, later in four-wheel drive jeeps, trucks and SUV's. Vehicles have
hauled fishing and camping gear and brought elderly, infirm and the very
young who otherwise might not be able to access Keawe'ula Bay. On foot, the
trail can be searing hot with difficult terrain.

In 1999, Ms. Heffner purchased Keawe'ula, which is located adjacent to and
makai of Akoni-Pule Highway. The portion of the property adjacent to the
shoreline is within the State's Conservation District. In the summer of
1999, fencing was put up to enclose Keawe'ula with no trespassing signs and
a locked gate. The existing public right of way was also graded and
graveled along its length. Incidentally, the deed by which Ms Heffner
acquired Keawe'ula specifically reserves existing trails and claims arising
out of customary and traditional rights and practices.

On August 27, 1999, the State Board of Land and Natural Resources (BLNR)
found Ms. Heffner in violation of Title 13-5, Hawai'i Administrative Rules
and in violation of Chapter 183C, for failing to obtain approvals for road
improvements within the Conservation District at Keawe'ula. BLNR ordered
Heffner to cease and desist work within the Conservation District, levied a
fine of $1,300 and required her to file an after-the-fact Conservation
District Use Application within 90 days. To this date, Ms. Heffner has not
complied with BLNR's orders. Through her attorney, she initially filed a
Conservation District Use Application, but later withdrew it and has not
re-filed. She has also ignored the BLNR's cease and desist order and has
continued unapproved construction within the Conservation District.

Through their attorney, Steven Strauss, a number of members of the North
Kohala community continue to reach out to other potential plaintiffs for
the planned lawsuit. A draft complaint has been prepared and more
information about long time use of the area is being gathered. The lawsuit
will ask the Court to recognize the ancient Hawaiian trail on the property
and restore public access to the jeep trail now blocked by Ms. Heffner's
improvements to the property. The lawsuit will also seek enforcement of
BLNR orders and prevention of further unlawful construction in the
Conservation District at the shoreline.

For further information regarding the lawsuit, please contact Steven
Strauss at 969-6684 or e-mail bula@interpac.net, or call Theresa Perez at
885-7788.

Kako'o Online

Those with internet access are invited to check out our new web-site
currently under construction at www.kamakani.org. In addition to past
newsletters and other featured articles and links, the web-site has a free
email group service (eGroups) with a message archive and a discussion /
forum / chat room page to make the site interactive. Though the web-site
will not be a replacement for our newsletters, it will be the most
economical and expeditious way of getting information out to those
interested in following events in the North Kohala community. Anyone
wishing to give feedback, or share suggestions, ideas or information can
email Mark Grandoni at mark@kamakani.org or Stephanie Naihe Cabanis at
naihe@msn.com