HomeMy WebLinkAbout 02/27/2013 Council Meeting COUNCIL MEETING
FEBRUARY 27, 2013
The Council Meeting of the Council of the County of Kaua`i was called to
order by the Council Chair Jay Furfaro at the Council Chambers, 4396 Rice Street,
Room 201, Lihu`e, Kaua`i, on Wednesday, February 27, 2013 at 9:25 a.m., after
which the following members answered the call of the roll:
Honorable Gary L. Hooser
Honorable Ross Kagawa
Honorable Nadine K. Nakamura
Honorable Mel Rapozo
Honorable JoAnn A. Yukimura
Honorable Jay Furfaro
Excused: Honorable Tim Bynum
APPROVAL OF AGENDA.
Mr. Rapozo moved for approval of the agenda as circulated, seconded by
Ms. Yukimura, and unanimously carried.
MINUTES of the following meetings of the Council:
January 12, 2011 Public Hearing re: Bill No. 2393
May 25, 2011 Public Hearing re: C 2011-159
September 5, 2012 Public Hearing re: Bill No. 2443
January 30, 2013 Council Meeting
February 5, 2013 Special Council Meeting
February 13, 2013 Public Hearing re: Bill No. 2462 and Bill No. 2463
Ms. Yukimura: Mr. Chair?
Chair Furfaro: Yes.
Ms. Yukimura: May I ask that the minutes of the
January 30, 2013 Council Meeting be taken separately?
Chair Furfaro: Surely.
Ms. Yukimura: I would like to ask for a deferral on that.
Chair Furfaro: I am going to ask for a vote on the
January 12th, May 25th, September 5th, February 5th, and February 13th. We will
come back to January 30th on a separate discussion item.
Ms. Yukimura: Thank you.
COUNCIL MEETING 2 FEBRUARY 27, 2013
Ms. Nakamura moved to approve the Minutes of the January 12, 2011
Public Hearing re: Bill No. 2393, May 25, 2011 Public Hearing
re: C 2011-159, September 5, 2012 Public Hearing re: Bill No. 2443,
February 5, 2013 Special Council Meeting, February 13, 2013 Public Hearing
re: Bill No. 2462 and Bill No. 2463 as circulated, seconded by
Ms. Yukimura.
Chair Furfaro: Thank you very much.
Mr. Rapozo: Mr. Chair, I just want to make sure, you are
only asking to defer February 5th?
Chair Furfaro: January 30th.
Mr. Rapozo: Did the motion include May 25th?
Chair Furfaro: I read May 25th, yes.
Mr. Rapozo: You did? Okay.
The motion to approve the Minutes of the January 12, 2011 Public Hearing
re: Bill No. 2393, May 25, 2011 Public Hearing re: C 2011-159, September 5,
2012 Public Hearing re: Bill No. 2443, February 5, 2013 Special Council
Meeting, February 13, 2013 Public Hearing re: Bill No. 2462 and Bill
No. 2463 as circulated, was then put, and carried by a 6:0:1 vote (Bynum
excused).
Chair Furfaro: Thank you. At this time Councilmember
Yukimura for the January 30th meeting you can give us in some rationale on your
request for a deferral.
Ms. Yukimura: Yes, I just would like to be able to read it.
There was a discussion on the Multi-Modal...in fact, that was the meeting, I believe,
when we adopted the Multi-Modal Transportation Plan.
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Chair Furfaro: We will defer this until the next meeting.
Ms. Yukimura: Thank you.
Ms. Yukimura moved to defer the Minutes of the January 30, 2013 Council
Meeting, seconded by Ms. Nakamura, and carried by a 6:0:1 vote (Bynum
excused).
Chair Furfaro: Next I am going to go to the Consent
Calendar. For those of you in the audience, we have five (5) items on the Consent
Calendar. Is there anyone that would like to offer testimony on the Consent
Calendar at this time up to three (3) minutes with no Q&A responses from the
Council? Is there anyone that wishes to speak on those items?
CONSENT CALENDAR:
C 2013-79 Communication (01/23/2013) from Councilmember Kagawa,
transmitting for Council consideration, a Resolution supporting Kaua`i's fishermen,
ocean gatherers, and recreational ocean users as it relates to their concerns with the
COUNCIL MEETING 3 FEBRUARY 27, 2013
Hawaiian Islands Humpback Whale Marine Sanctuary, which is currently in the
process of updating its management plan, to include, but not be limited to, the
addition of other species to be protected, and additional rules and regulations for
activities within the Sanctuary boundaries: Mr. Kagawa moved to receive C 2013-79
for the record, seconded by Mr. Rapozo, and was carried by a6:0:1 vote (Mr. Bynum
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excused .
)
C 2013-80 Communication (02/04/2013) from the Mayor, transmitting for
Council consideration and confirmation, Mayoral appointee Pauline D. Ventura to
the Liquor Control Commission of the County of Kaua`i — Term ending 12/31/2015:
Mr. Kagawa moved to receive C 2013-80 for the record, seconded by Mr. Rapozo,
and carried by a 6:0:1 vote (Mr. Bynum excused).
C 2013-81 Communication (02/06/2013) from Council Vice Chair
Nakamura and Councilmember Rapozo, transmitting for Council consideration, a
Proposed Draft Bill Relating to the Identification of Licensed Electricians and
Plumbers on Construction Job Sites in accordance with Hawai`i Revised Statutes
(HRS) Section 444-9.5, to provide the Department of Public Works, Building
Division with enforcement authority and to implement penalties for violations:
Mr. Kagawa moved to receive C 2013-81 for the record, seconded by Mr. Rapozo,
and carried by a 6:0:1 vote (Mr. Bynum excused).
C 2013-82 Communication (02/07/2013) from Councilmember Yukimura,
transmitting for Council consideration, a Proposed Draft Bill to allow homeowners
who previously, but did not file for the additional Low Income Exemption to obtain
a credit for the difference between the amount of Real Property Tax assessed on the
homeowner's property for the 2013 Tax Year and the amount of the Real Property
Tax that would have been assessed had the homeowner applied for the exemption:
Mr. Kagawa moved to receive C 2013-82 for the record, seconded by Mr. Rapozo,
and carried by a 6:0:1 vote (Mr. Bynum excused).
C 2013-83 Communication (02/14/2013) from the Public Access, Open
Space and Natural Resources Preservation Fund Commission's Vice Chair,
transmitting for Council information, the Commission's 2012 Status Report, in
conformance with the requirement of Ordinance 925, the County of Kaua`i, Public
Access, Open Space, and Natural Resources Preservation Fund Commission.
(Copies of the Public Access, Open Space, and Natural Resources Preservation Fund
Commission 2012 Status Report on file in the County Clerk's Office): Mr. Kagawa
moved to receive C 2013-83 for the record, seconded by Mr. Rapozo, and carried by a
6:0:1 vote (Mr. Bynum excused).
Chair Furfaro: Thank you, on the same item, is there
anyone wishing to testify to anything on the agenda? You will be allowed three (3)
minutes at this time? No? Okay. We moved to receive the Consent Calendar.
COMMUNICATIONS:
Chair Furfaro: Now for the purpose of crowd management,
we are going to the particular piece done on our behalf from the Kaua`i Planning
Alliance dealing with cultural and fine arts visioning for the Council. On that note,
I would like to turn it over to you, Vice Chair.
Chair Furfaro, the presiding officer, relinquished Chairmanship to
Ms. Nakamura.
COUNCIL MEETING 4 FEBRUARY 27, 2013
There being no objections, C 2013-84 was taken out of order.
Ms. Nakamura: Thank you very much, Chair. I would like to
call Diane Zachary who is the President Of the Kaua`i Planning & Action Alliance
and George Costa, Office of Economic Development.
C 2013-84 Communication (01/03/2013) from Council Vice Chair
Nakamura, requesting the presence of the President and CEO of Kaua`i Planning &
Action Alliance to provide a progress report and update on the Arts & Culture,
Comprehensive Economic Development Strategy (CEDS) Project.
Ms. Nakamura: George, would you like to provide an
overview and context for this update.
There being no objections, the rules were suspended.
GEORGE K. COSTA, Director of Economic Development: Sure. Aloha
Chair Furfaro and Vice Chair Nakamura and Honorable Councilmembers. Over
the last few weeks, I have been here before you presenting updates on our CEDS
Projects. As I mentioned previously, the Comprehensive Economic Development
Strategy or commonly known as CEDS, really looks at our economy and goals to
help diversify our economy. So, along those lines we have...through a focus group
and task force, we have created emerging industry clusters. There are six (6) that
are part of the Economic Development Strategy. Today, we are here to provide an
update on one (1) of those clusters, the Arts & Culture cluster. We have been
working alongside Diane Zachary of the Kaua`i Planning & Action Alliance. Diane
has done very good work for us not only in the Arts & Culture, but other of those
emerging industry clusters, Sports and Recreation, to make a few. I would like to
ask Diane to provide an update on what she has worked on in last year and the next
steps.
DIANE ZACHARY: Thank you very much, George. Good
morning, Chair Furfaro, Vice Chair, and Councilmembers. This is actually the final
report of the project that was funded for the Fiscal Year 2012. I wanted to give you
a report on what the outcomes that visioning sessions have been. As George
mentioned that Culture and Arts is one (1) of six (6) clusters that is included in the
CEDS report, that Kaua`i Economic Development Board put together. OED, the
Office of Economic Development, provided funding to KPAA to do a visioning
session that was designed to have three (3) particular tasks.
The first one (1) was to really work with Garden Island Arts Council and
other partners within the Arts & Culture sector to plan for an Arts & Culture
facility. That was one (1) of the priorities that had been included in the CEDS
report and then to plan, facilitate one (1) or more visioning sessions regarding a
facility, and to create some strategies for collaboration and capacity building that
might be needed before undertaking development of that facility. In order to get
started, we wanted to get a sense of what were the facility needs that the various
groups within the Arts & Culture sector had? In September of 2012 we did a survey
that was sent to seventy-nine (79) groups. I have to tell you, the sector is a little
hard to identify. There was no centralized listing that we could find so we pulled
together all the various lists that we could to locate and asked people who were we
missing? So, that is how those seventy-nine (79) groups were determined. Of the
surveys, twenty-eight (28) responded. We sent it out by E-mail, where E-mails were
available. We also provided it in hard copy for those who did not have E-mail. Of
COUNCIL MEETING 5 FEBRUARY 27, 2013
those that responded everyone was interested in planning for a shared facility and
that was great news to us. In further delving into sort of a status of those
organizations, we found that only three (3) of the groups have paid staff,
twenty-four (24) had no paid staff. They really relied on volunteers primarily. We
also asked them what kind of events are they planning where space would be
needed within the next five (5) years? Their primary needs were for space for
classes, for meetings, and for demonstrations. When we asked if they could pay for
the space that they would be using, twelve (12) said, yes, depending on the cost,
three (3) said, no, they really could not afford to pay any rent, and twelve (12) said
that they were not sure.
In trying to really examine the responses we got and try to think of what does
this really mean if we are planning a facility and it is unclear if people really would
even be able to cover costs of using a facility? We came to some early conclusions
that then we were going to test out in some visioning sessions. One (1) was that
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most groups rely on volunteers, that their financial capacity would limit their
ability to cover the cost to use an Arts & Culture facility, and that the idea of having
a facility that would be self-supporting, might prove not to be possible. We found
that the primary space needs that they had for classes, for demonstrations, for
meetings, were not really specific to Arts & Culture; that it could really apply to any
group. So, we ended up holding three (3) visioning sessions with everyone, all
seventy-nine (79) groups invited. We held three (3) session in November and
December of 2012 and then the final one (1) last month in January. In those
discussions, we found that most of the space is needed really only on an occasionally
basis. A lot of them offer, for example, two (2) theater performances a year. They
do not need an office all the time. They might need an office during the time that
they are working on that performance and so office event space is needed only
occasionally. Many have already found some kind of a performance space with
willing supportive landlords and I have to tell you that they were very appreciative
of the support that they have received from commercial property owners who have
provided them with space. But we did find there was some very pressing needs.
One (1) thing that is really not available in the community is a multi-purpose space
that would accommodate between two hundred (200) and three hundred (300)
people and could be used for performances. But not just that, it could also be used
for other events at affordable rates. They were interested in some kind of space
where the seats could be movable, could be removed if possible so that it really
could be configured to meet the need of the particular event. There was also a need
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for classroom space and workshop space at affordable rates. While the hotels
certainly have space available that could be rented, most groups in fact, just about
every group really said they could not afford that. There was also a desire to have
available some kind of shared office space with equipment that they could use on an
as-needed basis. They would not need it twelve (12) months of the year, they might
need it one (1) month of the year. So, if there was some kind of space available that
they could rent just during the time they needed it, but where it would already have
a copy machine and maybe a computer or the kind of basics that an office would
have that would meet their needs. One (1) of the things that certainly was included
in the CEDS report and was reiterated many times during the visioning sessions
was the need for an online calendar of events so that they could not only market
their programs but where they could have a calendar where they could book their
programs far in advance. One (1) of the things that is happening is organizations
are booking on the same weekend, the same date, and so there were conflicts where
the audience has to choose. Do I go to this or do I go to that? Ideally, they would be
able to avoid such conflicts if there was a place they could look and see if that date
was already taken.
COUNCIL MEETING 6 FEBRUARY 27, 2013
There was a question that arose during these visioning sessions, that came to
light in the second session actually. We were using the term "the Arts & Culture
community" and finally someone in the group said, "You know, there is no
community." There is no Arts & Culture community. There is no "we." We operate
very independently. We work hard to do our own thing. We have this dedicated
volunteer group and we have our dedicated Boards, but we almost never work
together and that sort of took me aback. I thought, okay, that is very telling, in if
we are thinking about the development of a facility, you really cannot work together
collaboratively if you do not have a sense of "we." So, one (1) of the things that
began to emerge is the need for more dialogue and collaboration among the various
groups so they could build their relationships, their cooperation, and their trust in
one another. Also when they were talking about the use of facility when they
recognized that right now is probably not a great time to build a new facility for
them, they really were very focused on the concept of sustainability and said, "Let
us really think about repurposing and using existing space to meet our needs. Let
us not think about building something new. How can was take something that
already exists and use it to meet our purposes?" Though it is not stated here in the
presentation, I did want to acknowledge that we recognize that there are a number
of things that are already in development in the community that are providing
space. There is the Filipino Cultural Center, there is the facility in Kilauea that is
being developed, and Kaua`i Community College (KCC) is develop something
additional space in their Performing Arts Center. So, the question really arose
whether or not we need anything new or can we just really draw on what already
exists in the community for the present time? Related to the online calendar, there
was a lot of discussion about that and in talking with Nalani Brun in the Office of
Economic Development, she really stated very clearly that there is an online
calendar that can be used exactly for this purpose. It is kauaifestival.com and while
it has "festival" in the name, its intent is to be for events as well. So, we provided
information to the group about that and there may be a need for a little tweaking of
that site to better meet the needs of the different groups and accommodate the kind
of events that they are doing. But that is something that is already ongoing, is
already managed by someone in the Office of Economic Development and would
require no additional funds.
The next step in this process is to not focus on the development of a new
facility and a feasibility study as was initially envisioned. But instead, to really
expand the CEDS Art & Culture pod, which is what they call it rather than working
group, so that we can build more dialogue and more collaboration and start
developing this sense of community. There was a desire to have training and
technical assistance available to the organizations and groups. It was very clear to
them that workshops were not always the answer because it was not convenient to
their schedule. So, there might be ways of offering webinars, for example, that they
would not even have to leave home or the training would have to be offered at times
that were very convenient to their schedules, which often they have in late
afternoons, for example, they offer classes and workshops. The idea of a center
would be something that would be revisited in the future. But in the next few years
does not seem to be on the top of their list for something. I think leadership has to
be developed within that community. Once it is developed in order to really support
the development of such a center. That is the report and I am very happy to answer
any questions that you may have.
Ms. Nakamura: Thank you very much, Diane. I will open it
up for questions? Members, did you have a...I think the final report was submitted.
I just wanted to say that the list of the groups that you contacted, I think was just
COUNCIL MEETING 7 FEBRUARY 27, 2013
good to see that you really went out and tried to reach a diverse group of Arts &
Cultural organizations on this island and it is good to have this information in one
place. I wanted to ask you, did you get a sense from the group that they wanted to
coalesce and try to work more together?
Ms. Zachary: Certainly of those who participated they do.
Ms. Nakamura: They do?
Ms. Zachary: They could see that there could be value in
doing joint projects, for example...joint marketing. But right now they just do not
have that really that sense of being able to do that.
Ms. Nakamura: Did you get any sense of them seeing any
synergies between this vision and the Filipino Cultural Center that is proposed in
the heart of Puhi?
Ms. Zachary: We have the participation of Sonya Topenio
and Lester Calipjo at a couple of the meetings. We asked them to present their
plans are and then John from the Small Business Development Center, who is
working on a feasibility plan for them, also participated in two (2) of the sessions. It
is possible there is a synergy, but because they have not really decided exactly on
their direction and what they are planning to do, it is hard to know. They made it
clear that they are looking at one (1) large banquet space that could be subdivided
into different rooms. One (1) of the things that the groups said is very important to
them is that if they booked a space, for example, many of them book a year in
advance for a space so that they have a space. If they booked it, that the space
would be available for them on that date and they not be bumped. That was
something that had not been considered by the Filipino Cultural Center. So, I think
there are a number of issues that need to be looked at. But that still offers
potential.
Ms. Nakamura: And then when some of us went to look at
the Maui Cultural & Arts Center and talked to management there, one (1) of the
things that they said is that the most popular facility there is really the classroom
space. It seems to coincide with what the people of Kaua`i are saying. They just
need someplace to hold classes that our community centers are really bursting at
their seams. They are so well used that new organizations cannot find the time to
offer a class. So, I think it also goes to just the community need to expand and look
at alternative recreational centers. It seems to tie into that.
Ms. Zachary: If I might make a comment related to that.
It certainly not unique to the Arts & Culture community. If you asked about any
non-profit organization, they scramble for meeting space and particularly a space
that holds between fifty (50) and one hundred (100) people. It just does not exist,
except for the Convention Center which has problems with acoustics.
Ms. Nakamura: Right.
Chair Furfaro: Sorry, she said a problem with what?
Ms. Y•h r : Acoustics.
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Ms. Nakamura: Councilmember Yukimura.
COUNCIL MEETING 8 FEBRUARY 27, 2013
Ms. Yukimura: Thank you for your report, Diane. As a basis
for the CEDS report, was there a needs assessment done of the Art & Culture
community before the need was articulated as a direction in the CEDS report?
Mr. Costa: Let me complain that. Interestingly enough,
in 2009 is when we started the update of the CEDS process and we formed focus
groups of the six (6) emerging clusters. We gathered members of the Arts & Culture
community at the time and now looking at Diane's list it is obvious that five (5)
years have flown by and we are getting ready to update the CEDS again. So, at the
time we updated the current CEDS, 2010-2015, in the focus groups the need for a
common facility was one (1) of the driving factors of putting this study together.
Interestingly enough as Diane went through this study, the driving factor was
looking for a common facility, not only for Arts & Culture, but also for sports and
recreation. What is interesting to see is that out of this discussion came well,
maybe we do not need the facility right now, maybe the focus needs to be
collaboration and more meeting space. That is kind of where we are right now. But
it is in the CEDS in this current year's current plan, to look at a facility to bring
Arts & Culture groups together.
Ms. Yukimura: I mean because given the decentralized
nature of our island and our desire not to cause more transportation than
necessary, there is a certain logic to localized facilities, you know? So, having one
(1) facility in one (1) place of the island where everybody comes to from all the areas
may not be the best design to meet the needs. Your research has shown that there
are some regional facilities that are self-evolving, so to speak, out of those needs like
the Kilauea pavilion and even the Kaua`i Filipino Cultural Center which would be
more a Lihu`e facility even though it would also be an island-wide facility, too. Then
let me also say that this digital media center that was separately considered, it
would seem to me there is going to be some meeting space in that facility as well.
So, this all kind of directs us to a non-centralized thing which seems like it might
meet a lot of these needs anyway.
Mr. Costa: Interestingly enough as we work on these
different emerging industry clusters like the Sports and Recreation, we were just
here a few weeks ago about the inventory of events that take place on the island
and as we looked at Food and Agriculture, we are seeing...one (1) of the CEDS
project is commercial kitchens. So, as we take inventory of all these facilities
throughout the island, a common denominator is like with commercial kitchens is
great we have commercial kitchens on the island, but is there a meeting room
facility where people can be trained similar to Arts & Culture? If is there a venue
that we can put on an event likewise does that facility have additional meeting
space to accommodate these Arts & Cultural groups? What we also need to take
into consideration as we are into the tenth year of the CEDS originally developed in
2004, our population has grown. So, some of these meeting spaces and some of
these facilities that maybe ten (10) years ago were adequate, we are now finding as
the population is growing they might be not able to accommodate what we need.
Ms. Yukimura: Well, in that light, I think especially we need
a large Cultural and Sports Performing Center. I look at the Convention Center
with one thousand one hundred fifty (1,150) seating in the auditorium, that was
built...is it almost fifty (50) years ago now? Back then, fifty (50) years ago when our
population was thirty thousand (30,000) or less and it was basically an
agrarian/plantation society, it was amazing that we built that Convention Hall. It
was a visionary facility. I think we are at the next level now where we need an
COUNCIL MEETING 9 FEBRUARY 27, 2013
enclosed Sporting and Cultural Facility and I think that will meet on economic need
as well as culture and arts and sporting needs. So, it seems to me that one (1) area
we might want to focus our energies as a County is on that planning, on planning
for such a facility because I think that will meet a lot of our goals in the CEDS plan.
So, what is the stadium capacity right now? Our present Lihu`e Stadium? Four
thousand (4,000)? Yes. I think with our population now is sixty-seven thousand
(67,000) with a de facto population, so that is visitors of about twenty thousand
(20,000), twenty-five (25), twenty (20).
Chair Furfaro: Nineteen thousand eight hundred (19,800).
Ms. Yukimura: Rounded off to twenty thousand (20,000),
sixty-five (65), eighty-five thousand (85,000), right? I think we need to start
planning on that. You say that capacity building was identified as a major priority
for culture and art sector, which is on page 5 of our report. Suggested training
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topics were marketing, project management, intellectual rights, financial
management, and board development. This is not just culture and arts need. This
is small business needs. This is farming needs. So, I would not want to do a
training needs assessment that is only focused on culture and arts. I mean, it is a
need we saw that is combined with the commercial kitchen. You know, we saw that
facility, the gateway facility in Kalihi, which has all of this real diversity of
commercial kitchen facility, some baking, some cooking, and cold storage and dry
storage, which really addresses the need for commercial kitchens. But then they
have all of these classes for labeling, food safety, you know, that make a lot of sense
and really does equip the entrepreneur, the beginning entrepreneur. So, it seems to
me we should think a little bit bigger than just culture and arts training needs
because I think there is a large overlap. What are your thoughts on that?
Ms. Zachary: Well, KPAA has offered training for
non-profits for several years as we get grants that will allow us to do that and while
I absolutely agree with you that some of those topics are relevant to many other
organizations, there is some value in offering at least a portion of them to uniquely
the arts and culture community if the intention is to really build a sense of
collaboration among those groups. If they are going to be work together more,
perhaps do joint projects, they need to have opportunity of being together and then
the examples that are given, for example, in the workshops themselves are very
specific to the kind of issues faced by those groups. So, I could see both things
happening, but I guess I would hope that there be some opportunity for workshops
that are very unique to that community in order to make it stronger.
Ms. Yukimura: Agree, but I do not know if a needs
assessment is the way to go because you could take somebody who is somebody
familiar with marketing and you could take the people from the culture and arts
group and do a marketing workshop and sometimes it might be mixed clientele.
But I do not know that you would have to assess needs.
Ms. Zachary: Does it say in here that we are going to do a
needs assessment?
Ms. Yukimura: Yes.
Ms. Zachary: It would be relatively informal. We have
already assessed to a great degree the kinds of things that they want, but it would
COUNCIL MEETING 10 FEBRUARY 27, 2013
be more reaffirming the kinds of needs that have been identified already. It would
not be a comprehensive, elaborate survey.
Ms. Yukimura: We have such limited resources, I think we
have to really think about how we use them. Then I also want to say that I heard
on public radio that on the Big Island they are doing some kind of artists
networking that allows artist to both market and it is also an artist map on the
island, so where different types of arts can be found and I thought it might be
worthwhile for us to follow-up and find out what they are doing. It seems like it
might be a useful format to look at. It seemed to be meeting a need of artists
because if they do not...well, I guess a small group saw the need to come together. I
am not sure exactly what kind of collaboration is needed and except it does seem
like a calendar collaboration and then tying into existing calendars makes a lot of
sense. I know that the Garden Island Art Council has a calendar too and I do not
know if how they intertwine or not. Anyway, I guess I am looking for places where
there is a natural need where they would come together and support for that.
Mr. Costa: Well, presently Nalani Brun works closely
with Carol Yatsuda. Carol actually E-mails us her calendar and we try to dovetail
with the kauaifestivals.com websites. As Diane mentioned we are not booking
events on the same weekend where people have to choose. Sometimes it is
impossible to do because you might have an event on West side and something on
the North shore, that obviously would cater to those regions. But, as much as
possible, try to dovetail all of the events into one (1) calendar.
Ms. Yukimura: Well, as one (1) who has tried to schedule
event, I think it is impossible almost to find a free weekend or something like that
and again sometimes they become localized, sometimes there are huge events that
really do conflict. But the other value of the calendar is that visitors and others
who want to go to these events know that it is happening, right, and they can go to
a place where they get all of the basic information. I mean, it would be, I guess, in
our visitor surveys we could ask whether that is an issue for our visitors. For me, I
would go to the Garden Island Arts calendar.
Mr. Costa: Right.
Ms. Yukimura: So, there must be some ways to really pull
these together pretty easily.
Mr. Costa: In my experience, and I am sure Chair
Furfaro would agree, the resorts and even condos that have a small activities desk,
their concierges are very in tune with the various calendars, Garden Island
calendar, and kauaifestivals.com so, they direct a lot of our visitors to those site. I
think our visitors have a lot of information and maybe sometimes more than we
would like them to have, you know in certain areas. But the Visitor Industry does a
pretty good job in communicating that to the visitor. Sometime it is our local
residents that might not be as informed. Maybe that is where we could find
opportunities.
Ms. Yukimura: Thank you.
Ms. Nakamura: Are there any other questions for Diane and
George? Just to respond, Councilmember Yukimura, to your concerns. Part of the
approach to the CEDS planning is that we identify these industry clusters and it is
COUNCIL MEETING 11 FEBRUARY 27, 2013
based on the thinking that what makes for successful industry clusters. If you look
at the North Carolina Furniture Industry or Hawai`i Visitor Industry is not just the
vertical integration of the industry around this, but the horizontal integration and
so it is combining those and looking at what the common needs are, the networking
opportunities, the ability to do worldwide marketing all of these things that
strengthen the industry and build good jobs on this island. That was the whole
intent was to make this one (1) of those emerging job clusters where you could have
because it is so consistent with the values and what we are trying to promote on
this island. What makes us so different from anywhere else is our Arts and our
Culture. I think the whole thing of trying to strengthen this industry is really the
basis of the plan and in these six (6) areas, especially. So, anyway just wanted to
provide that background.
Ms. Yukimura: Right and I agree. I think the identification
of clusters is an excellent thing and asking the question how do we strengthen these
clusters as viable businesses is a really good thing. For me it is not yet answered
clearly about what will strengthen these clusters, you know? What I liked and I
only heard it driving my car and listening on the radio about the artists network
that they are building is it was a way of identifying where they are and then both in
terms of type of art and whether it is sculpture, or wood p roducts, or visual arts, or
performing arts and where the studios were if people wanted to visit them and their
Internet connections if people wanted to buy products or get on their websites. So
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it was a marketing thing that could be done, I guess, basically with software and
using the new technology to connect artists and boost their sales. You know, to me
that was clearly a way to strengthen them and we should ask them if that is
actually happening, you know? But I think that kind of really careful needs
assessment maybe...and then the overlaps, because I think there are so many
overlaps with digital media...
Mr. Costa: A lot. The Food and Agriculture, the
Sports...
Ms. Yukimura: Right and that is why to only...otherwise
they become silo. So, how you keep going back and forth to the clusters and then
looking out again at the different clusters and how they can interact or what their
common needs might be because then have you some economies of scale.
Ms. Nakamura: Thank you. If there are no further questions,
I want to thank Diane. Thank you, George, for overseeing this project and I know
there will be more happening in the coming year.
Mr. Costa: Thank you very much.
Ms. Zachary: Thank you so much.
Ms. Nakamura: So, if there is not further discussion...oh,
there is? Councilmember Kagawa.
Mr. Kagawa: I have no questions. But I wanted to thank
you, Diane, for the report and George, mahalo, for doing a good job on this report,
for reaching out to a lot of the people doing the culture and arts. I am sure there is
probably, you could double the page because I do not see names of hula teachers
that I know that are not listed. But it is just that many groups that we have going
on in Kauai. We have a lot of them. Some of them are large and some of them are
COUNCIL MEETING 12 FEBRUARY 27, 2013
real small. But we need to, I think, as a community, as government, we need to
look for alternative way for the future of Kaua`i to generate revenue and these are
the types of things that we need to look into and not only talk about it. But we
actually need, like Councilmember Yukimura said, we need to invest and have that
facility so question hold something like a Merry Monarch on Kaua`i that would
generate the kind of revenue that would make it worthwhile for everyone. Then we
can have the businesses buy in. But it is thinking about the future, planning
ahead, that we need to do you know We have got troubles with the Federal
Government, with the sequester coming upon us. We cannot rely on the base
forever. We need to diversify our economy and I think the sports, culture/arts that
is a good way to go to boost our tourism. So, I thank you very much and I definitely
will be supporting these kind of ventures in the future. Mahalo.
Ms. Yukimura: In your PowerPoint on slide eight (8), where
you talk about shared office space with equipment use. I remember seeing recently
in the Hawai`i Business Magazine, there are these high-tech places where people
can come. It is like in Honolulu, if I need some office space, I could go there and
rent an hour worth of time whether it is computer use or phone or whatever and
that again is a generic need. I mean it is not a need special to culture and arts
people and so we might look at that and it could really fit in with
the digital media
center, possibly. If that is in Lihu`e, well wherever it is, I guess. But anyway
something like that kind of office space could really be a new business, I think. In
fact, it was some young entrepreneurs that created that business space and they are
renting it out. So, anyway it seems like we might look at that, recognizing that
there is that need.
Mr. Costa: It is one (1) of the ideas that came up in the
discussions with our commercial kitchen business incubator. The business
incubator was more geared towards training for value added products in
conjunction with the commercial kitchen. But also, if we had that business
incubator, it would provide like a facility, a couple of offices where an entrepreneur,
maybe has the marketing expertise, but does not have the actual physical facility to
work out of. So, those are one (1) of the things that we have on the bucket list that
we want to explore in the next CEDS. I just wanted to add, I just came back from a
two (2) week vacation. My daughter lives in Arizona and we went to New Mexico,
Santa Fe. I went to college as an art major and Santa Fe I feel it is one (1) of the art
meccas, I guess. They have a really nice, both online and a map, that shows all of
the galleries. I mean it has the listings and different types of arts, impressionist
art, and so I have noted down your suggestion about some directory something like
that, that gears towards the arts and culture. I think that is a good suggestion.
Ms. Nakamura: Thank you. I would like to open it up to
public testimony. Would...anyone like to testify on this matter?
There being no one to give testimony, the meeting was called back to ordered,
and proceeded as follows:
Ms. Yukimura moved to receive C 2013-84 for the record, seconded by
Mr. Kagawa, and was carried by a 6:0:1 vote (Mr. Bynum excused).
C 2013-70 Communication (01/29/2013) from the Deputy Director of
Finance, transmitting for Council information, Period 1-5 Financial Reports —
Detailed Budget Report, Statement of Revenues (Estimated and Actual), Statement
of Expenditures and Encumbrances, and Revenue Report as of November 30, 2012,
COUNCIL MEETING 13 FEBRUARY 27, 2013
pursuant to Section 21 of the Fiscal Year 2012-2013 Operating Budget Ordinance
No. B-2012-736 of the County of Kaua`i: Mr. Rapozo moved to receive C 2013-70 for
the record, seconded by Ms. Yukimura, and was carried by the 6:0:1 vote
(Mr. Bynum excused).
Ms. Nakamura: Next, the Chair has requested that we take
up item number seven (7) on page 3.
There being no objections, C 2013-89 was taken out of order.
C 2013-89 Communication (02/06/2013) from Council Chair Furfaro,
requesting the presence of the Director of Planning to provide the Council with an
update on the Transient Vacation Rental (TVR) Enforcement Initiatives of the
Planning Department.
Ms. Nakamura: Was the Planning Department notified that
this item would be taken up early? Then we are going to need to notify them and
we will carry on with the next item.
C 2013-85 Communication (01/31/2013) from the Executive on Aging,
requesting Council approval to receive and expend State of Hawai`i, Department of
Health funds in the amount of $1,650.00 for lay leader training, monitoring/fidelity
training, and an update training of newly revised Stanford University's Chronic
Disease Self-Management Program (CDSMP) manuals for leaders: Ms. Yukimura
moved to approve C 2013-85, seconded by Mr. Rapozo.
Ms. Nakamura: Any discussion?
Ms. Yukimura: Just to say it is always nice to receive these
applications from the Office of Aging or the Agency on Aging in our County because
they do such good work and you can always rely on them to have planned it well
and thought through it, thought the through their programming well. Thank you.
Ms. Nakamura: And rely on best practices. Would anyone
from the public wishing to testify on this matter?
There being no one to give testimony, the meeting was called back to order,
and proceeded as follows:
The motion to approve C 2013-85 was then put, and was carried by a 6:0:1
vote (Mr. Bynum excused).
C 2013-86 Communication (02/05/2013) from the Prosecuting Attorney,
requesting Council approval to change the use of funds from the State of Hawai`i,
Department of Human Services, Office of Youth Services, Juvenile Accountability
Block Grant (JABG) Program in the amount of $18,694.00, from the Keiki
P.O.H.A.K.U. Program, to Kauai Teen Court: Ms. Yukimura moved to approve
C 2013-86, seconded by Mr. Rapozo.
Ms. Nakamura: Discussion?
Mr. Kagawa: I just hope that maybe I could have asked
some questions. I want to make sure that it is not a political reason why he wants
to move the funds. I want to make sure that the reason why we are moving it is
COUNCIL MEETING 14 FEBRUARY 27, 2013
going to be better for our kids. If that is the reason is. But I have no problem if we
have the votes. I have no problem going along with the majority. But I will send
out a letter on my behalf to make sure that is in fact the case. Thank you.
Ms. Nakamura: Thank you. Any further discussion? If not I
would like to call for public testimony?
There being no objections, the rules were suspended to take public testimony.
GLENN MICKENS: I just have a short comment on this. I have
no problem with this request. But I would remind this Council how we spent maybe
thirty (30) hours on funding for a P.O.H.A.K.U. grant in past meetings. So, I would
suggest that we at least be consistent in our handling of the grants prior to the
scrutiny of the one (1) P.O.H.A.K.U. grant I saw nothing but rubber stamping of
past grants. So, again I would recommend that we use consistency how we handle
all of these. Again, I have no problem with this particular grant. But you guys all
remember how long...how many hours we spent day after day on the P.O.H.A.K.U.
thing. So, I think we have to have consistent. Thank you very much.
Ms. Nakamura: Thank you, Glenn. Anyone else who would
like to testify?
There being no one else to give testimony, the meeting was called back to
order, and proceeded as follows:
Ms. Nakamura: We have a motion to approve, any further
discussion? Councilmember Yukimura?
Ms. Yukimura: Yes. In response to Mr. Mickens concerns
which I believe are legitimate concerns, I want to say that the Teen Court Program,
unlike the P.O.H.A.K.U. Program is a very well established program both
nationally and in the State and it is a best practice program as well. So, it is a little
bit different than the P.O.H.A.K.U. Project, which was a brand-new one (1). I
actually supported the purpose of the P.O.H.A.K.U. Project, which was early
diversion and I hope that we can still look at some of those kinds of new innovative
programs as well. But I think that the Teen Court is an ongoing program that
needs this kind of support. So, I am happy to vote for it. I do hope that, I think
Council Vice Chair Nakamura during the previous discussions on Teen Court asked
for statistic reports and I presume that it is part of the grant requirements and that
we should get those too in terms of holding anybody who gets public moneys
accountable for a report back on the results. As I recall, Teen Court has a very
high rate of success so this is a need. Actually one (1) of my questions is why we are
not supporting young people that are eighteen (18) and over with Teen Court
because I think there is a need for those kind of youth as well. In fact, there is quite
an issue with youth who are out of high school, but still without jobs. So, I am
hoping that we can look at an expansion of the Teen Court to those older groups for
example eighteen (18), nineteen (19), twenty (20), and twenty-one (21). Thank you
very much.
Ms. Nakamura: Thank you. Councilmember Rapozo?
Mr. Rapozo: Thank you. I will be speaking with
Mr. Kagawa as far as the letter going out because I would expect, as Mr. Mickens
said, the same kind of scrutiny. The Keiki P.O.H.A.K.U. Program was a new
COUNCIL MEETING 15 FEBRUARY 27, 2013
program. But was an innovated program that in fact was approved back in October
of 2012 for funding and then I believe that is when Mr. Kagawa you talked about
the political parts, that is when it became political. Then today we are moving the
funds and the Committee has supported it, so I will be supporting the action
because the Committee did, in fact, support it. The problem, and I am talking about
the Kaua`i Juvenile Crime Enforcement Coalition, the problem is we never gave
Keiki P.O.H.A.K.U. a chance and Teen Court is a very successful program. But one
(1) things that Teen Court that I am concerned about with the numbers is
recidivism. They only count recurring crimes if it is the same crime. So, if a kid
that gets arrested for theft goes through Teen Court and he does not commit
another theft then he is considered not recidivism. But if he oes out and beats u
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someone, they do not count that as recidivism and so it is concerning, the numbers
with Teen Court. It is a great program do not get me wrong, but Keiki P.O.H.A.K.U.
was a restorative justice program. It was a program that incorporated a lot of
cultural aspects to our kids which is what we have lost. Many of our kids today
have completely lost touch with the Hawaiian heritage and the values and that is
what Keiki P.O.H.A.K.U. was trying to install back. We never gave it a shot and if
we use the argument as Ms. Yukimura talked about, because Teen Court was here
and Keiki P.O.H.A.K.0 was new, we would never get new programs. So, I think
sometimes we have to step outside of the box and that was an opportunity and I
believe one (1) that was lost. Again, Teen Court, great program. But as we know,
as we have seen the crime statistics for juveniles today, we need to start looking at
new programs, new innovative ways to get kid back in touch with the kupuna and
the land. That is what is going to keep our kids off of drugs and crime. I will be
supporting it, again. The Coalition has agreed to move the money and I will be
supporting it. But very disappointed that we never gave Keiki P.O.H.A.K.U. a shot.
Thank you.
Ms. Nakamura: Thank you very much. Councilmember
Rapozo, I would also support a letter to Hale `Opio asking them to look at their
recidivism data and to include all crimes. Not just the crime that that the teen has
been charged and to use that in future reporting to the County. I think that is a
very worthy request and I would also ask that Hale `Opio or any other non-profit
look at the goals behind Teen P.O.H.A.K.U., which was a culturally based program
and looked at some teens who may not have fit nicely into the Teen Court Program
and to look at ways that maybe to develop a new program around those same
program goals because from what we heard in the discussion is everyone saying yes,
there is a need for another model and based on the success of Maui, I think there
are some good models to look at.
Mr. Rapozo: May I respond?
Ms. Nakamura: Yes.
Mr. Rapozo: The Keiki P.O.H.A.K.U. is being looked at
Statewide because of its innovative structure and I believe other Counties will move
to that type of program where it is getting the kids back into the community. The
other thing, too, Teen Court does not cover everyone as you touched on. They will
not take second time offenders and that is the gap we have got to fill. That is what
that program was slated to do. So, now we have second time offenders who
basically fall through the cracks and not that first time offenders do not need these
programs, but we also have to catch the second and third and fourth time offenders
as well because again, I cannot emphasize enough putting the violator back in the
community that was violated and getting to understanding the culture and the
COUNCIL MEETING 16 FEBRUARY 27, 2013
community and getting them connected with the hupuna, which I think are the best
teachers. To sit down and talk to an old grandma; grandpa, aunty; uncle, to me,
the kids listen better than through some Teen Court Judge or Councilmember
talking to them in a nice aloha shirt. They need to hear it and feel it from the
people. Thank you.
Ms. Nakamura: Councilmember Yukimura.
Ms. Yukimura: Yes, I want to make it clear that I support
innovative programs and so I did not see this as one (1) or the other. But I think
there was a lack of actual planning for the Keiki P.O.H.A.K.U. and in the questions
that we asked in terms of Police Department's involvement, the structure of our
Police Department is different from Maui's, and there were a lot of questions of how
to implement that. So, if...and that is why there were questions. So, if the other
thing...well, so if either the Prosecuting Attorney's Office or a non-profit would
propose a program for diversion, I think that is something we should look at. I
think the issues are very much as, Councilmember Rapozo as said, in terms of
culturally based programming that is well planned and well implemented can really
make a big difference among your young people.
Ms. Nakamura: Thank you very much. Councilmember
Kagawa.
Mr. Kagawa: Yes, not to beat a dead horse. But the reason why I
brought up my concern is that it just...the timing about that whole discussion the
P.O.H.A.K.U. versus Teen Court happened during the election. Right as it
approached the final moment and it just seemed that it would work out well for the
anti-Shay folks to put down her program. Now that the election is over, I just want
to make sure that the program or programs we choose is best for the kids. We have
some kids and students in the audience right here that they want to see something
that will help their friends and whatnot who get in trouble to get back on the right
track. If it is Teen Court, obviously, the consequence has to be such that they do not
want to get through that again. What I have heard from some of the kids was that
the consequences from the Teen Court was quite easy and if it is easy, they look at
it as a joke and will reoffend normally, right? If the consequences is not severe
enough then they are notice worried about going back to Teen Court again. I do not
know if we need to step up our Teen Court Program or maybe it is good the way it
is. But I just want to have the Prosecutor here at some point and we can ask him
some direct questions regarding Teen Court or as I see a good alternative in
P.O.H.A.K.U. which that tries to help in other ways more culturally based. Mahalo.
The motion to approve C 2013-86 was the put, and was carried by the 6:0:1
vote (Mr. Bynum excused).
Ms. Nakamura, the presiding officer, returned Chairmanship to Chair
Furfaro.
Chair Furfaro: Thank you very much Vice Chair for covering
me. I want to welcome students from Waimea High. We are delighted to have you
and I understand you are going to be back at 1:30 today as well to hear what
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concerns come up in Mr. Kagawa's Resolution as it relates to the NOAA funding.
But I also had a brief tour of the building with them and they got a glimpse of one
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hundred (100) years of history associated with the building. But on behalf of the
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Council, welcome. On the other note, members, I would like to ask you if I could a
COUNCIL MEETING 17 FEBRUARY 27, 2013
personal moment of privilege because as you passed the Finance Report I was
absent and I wanted to share some questions that I had to go over. May I be
granted a moment of privilege here to go back?
Ms. Nakamura: Sure.
There being no objections, the rules were suspended for a moment of personal
privilege.
Chair Furfaro: First of all, we have five (5) months of
statistics from our financials right behind us and I will be sending over the final
comments before we go into budget on March 15th. I want to point out the following.
It seems like we are on track for our collection of current property taxes. Our
license fees are dragging for half of the year by about seven thousand dollar
($7,000.00). That will be a question that I would like to query if we are having some
problems with some of our licensees. I would indicate that our non-business fees
are trailing by about one hundred thousand dollars ($100,000.00) for this first
period and I do have some concerns as it relates to interest earned on our Bond
Fund money that is in there. We actually have a negative number in there and that
should not be. So, I will be sending over that question as well. As we look to the
internal government revenues, we have not gotten half a years TAT tax from the
State. That has not hit. I am sure it will very soon. But a seven point four million
dollar ($7,400,000.00) payment is due relatively soon from the State and may have
some effect on our cash flow if it turns out to be longer than say another thirty 0
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days. I also want to point out that there is not any revenue coming in on our
internal and other government revenues including federal moneys. I am very
concerned that it might be tied to the sequester action that happens tomorrow. So,
that is something else we should be keeping a close eye on. Other chargers, we have
a large amount of fees now going into the Parks Department and I think it is a good
time to evaluate and I think Councilmember Yukimura is looking at structuring a
Bill that puts that money back into a oversight from the Council as that is a
substantial amount. As well as we are short about one hundred nineteen thousand
dollars ($119,000.00) from budget. So, I have bored you with the numbers, the
students are leaving. We will see you later this afternoon. Thank you. To the
members, those are some of the questions that I will be sending over before we start
our budget.
Ms. Yukimura: Chair, it is your intention then that we do
not re-open this today. But...
Chair Furfaro: I will send over those questions.
Ms. Yukimura: Thank you for the head's up.
Chair Furfaro: If you want to look, we have the financials
located next door on the desk. Okay, next item.
There being no objections, the meeting was called back to order, and
proceeded as follows:
C 2013-89 Communication (02/06/2013) from Council Chair Furfaro,
requesting the presence of the Director of Planning to provide the Council with an
update on the Transient Vacation Rental (TVR) Enforcement Initiatives of the
Planning Department.
COUNCIL MEETING 18 FEBRUARY 27, 2013
Chair Furfaro: Okay, the Planning Director is here.
Mr. Jung is here. Looks like he just got off a plane with all of your luggage. Did
you just get off, or is that the file?
There being no objections, the rules were suspended.
IAN K. JUNG, Deputy County Attorney: Those are files for you
guys to review in case you have questions.
Chair Furfaro: I hope we get to review them by a way of a
briefing.
Mr. Jung: We can certainly do that.
Chair Furfaro: I do not think you intend for me to read four
(4) box of records. To the Planning Director, thank you for being here. I suggested
your presence again to give us kind of an update where you can based on
enforcement initiatives.
MICHAEL A. DAHILIG, Director of Planning: As the Council is
aware we are ordered by Ordinances 864, 876, and 904 which I guess have been
codified as part of Ordinance 935. But we still refer to these historically as 864,
876, and 904 to essentially implement a Transient Vacation Rental enforcement
and permitting program for the County. There are two (2) bucket of permits that
the Department is aware of. One (1) is those that are within the visitor destination
area and those that are without. The area that gets a high degree of scrutiny with
our Department is with those in the outside of the VDA bucket. With those
particular permits, outside of the VDA, again there are two (2) classes. One (1) is
those that are on agricultural land and those that are not. The Council, in passing
the late law created a process by which those that sit on agricultural lands are
essentially required to obtain a 205 special permit to continue operation and to try
to prove their grandfathered use. So, in the enforcement of those TVRs our primary
focus has been specifically with respect to those outside of the VDA because the law
requires that those are within the VDA to file perfunctory information with respect
to TAT tax, GET tax and those types of things. That is all that is required.
At this point with respect to enforcement, and I know enforcement has been a
constant discussion that we have had with the Council as well as the
Administration on how best to approach enforcement. We are aware of the general
sentiment amongst the body as well as the Administration, that the impact of
transient vacation rentals outside of the Visitor Destination Areas should be
minimized at all costs and that heavy scrutiny should be given to those outside.
The rub for our Department with respect to engaging in a more broader discussion
about the nuances of our particular enforcement strategy is that at the end of the
day this will end up in some degree of contested e co tested case hearing or litigation to the
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County. So, there are certain strategies that certainly we would like to keep outside
of public knowledge. But there are certain things that can I discuss from a
budgetary standpoint in terms of what is and what is not working for us. I know
that...and we have very well aware of the three hundred thousand dollars
($30,000.00) to the Department by this body to augment Transient Vacation Rental
enforcement efforts. This past July we took a look at how to best utilize those funds
from an enforcement standpoint and the difficulty that we encountered with
respected to being able to contract out the enforcement of the Ordinances came as a
consequence of the actual complexity that the Ordinances do provide. It is very
COUNCIL MEETING 19 FEBRUARY 27, 2013
evidentiary, it is very complex set of requirements that we need to from an
enforcement standpoint be able to build a record on. As many of you well know, to
nt to full fruition, we need to have certain degrees of evidence and
bring enforcement g
reporting available and the ramp up to have external staff be proficient and being
able to implement those Ordinances would have essentially eroded at the amount
that was appropriated by the Council. So, we felt at that time from a budgetary
standpoint it was not appropriate for us to be whittling down those funds and
essentially not getting the bang-for-the-buck type of situation. So, we looked at
instead at using those moneys to augment internal staff/internal efforts and try to
create partnerships between the Police Department as well as the Prosecutor's
Office on helping assist our staff and train our staff to be able to be up to a level
that could provide the evidentiary support necessary to bring these enforcement
cases to full contested case hearing in the event it should arise.
Chair Furfaro: Hold on just a second, for the Director, let me
summarize what I think I am hearing. But may I follow what I think is going on
over in the Planning Department and use Coco Palms as an example? Permits were
issued to Coco Palms. Those had a timeline with them and had criteria that they
had to meet, right?
Mr. Dahilig: Yes.
Chair Furfaro: But it is not just as easy as revoking the
permit. You have to start another process which takes the rationale down on the
rationale to justify the revoking of the permit.
Mr. Dahilig: That is correct.
Chair Furfaro: So, now I do not think I am revealing any top
secret information. But we have about ninety-one (91) of these TVRs that have
failed to comply with process for renewals and continue operations. They have been
cited, that a concern there? Yes or no?
Mr. Dahilig: We are in the process right now, some
citations have gone out.
Chair Furfaro: Okay.
Mr. Dahilig: The bulk of them are still being processed
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But about a third have gone out with respect to issues with compliance of the Code.
So, they are being rolled out as we speak.
Chair Furfaro: But that would be a requirement to give
them notice that there is some action being taken on avoiding their current permit
because of lack of compliance.
Mr. Dahilig: I would not go so far as to say "void." But to
bring them up to speed that there is a problem with their current, I guess,
authorization to operate and that until they resolve that issue, they cannot continue
that use.
Chair Furfaro: But whatever that compliance issue is, you
have to give them notice that they have to resolve it and the consequence is?
COUNCIL MEETING 20 FEBRUARY 27, 2013
Mr. Dahilig: The consequence is that I can make a
determination to seek an order to show cause before the Planning Commission to
trigger a contested case hearing, to then revoke the potential permit, which is then
potentially appealable to the 5th Circuit Court for issues of due process.
Chair Furfaro: Which is similar to the model I just went
through for the Planning Department's actions with Coco Palms right now?
Mr. Dahilig: That is correct, Chair.
Chair Furfaro: So, it is the same model almost?
Mr. Dahilig: Yes.
Chair Furfaro: But it is ninety-one (91) individual times or
one hundred ten (110), whatever that number is, right?
Mr. Dahilig: That is correct.
Chair Furfaro: So, you have to build a case to prove their
non-compliance and because of that, you know, you have given a third of them
notice already, those are the portions where you think should only be handled in
Executive Session, that strategy?
Mr. Dahilig: In terms of...
Mr. Jung: I think Mike, hold on. I think we are
starting to lead into areas because of the notices that went out. We have had
indications from at least seven (7) of them that they do intend to appeal the
Planning Director's decision either on an interpretation of a provision of the
Ordinance or under a constitutional challenge of the law itself. So, I think I want to
hesitate on having any open discussion on what the law says and what the
Director's interpretation of the law is until we hold those contested hearings.
Chair Furfaro: Well, first of all it is how you interpret the
law that you do not want revealed because we may go to Court.
Mr. Jung: Correct.
Chair Furfaro: Understood.
Mr. Jung: If I could compound real quick on the
process. There is the OSC process, but there is also a process to appeal the decision
of the Planning Director and it is incumbent upon
each owner to follow that process.
I do not think we should have Director Dahilig giving legal advice to those who may
be watching on that process because there are certain timelines attached to such a
filing and if we provide that information as well as the rules to them. But we do not
want the Planning Director interpreting what those rules say and how to do their
case should they wish to appeal.
Chair Furfaro: I will stay away from asking him to interpret
anything. But I will not stop asking questions of how are we going to get to what
the Bill clearly states is our ability to have some natural attrition in the number of
units because they failed to comply to the law.
COUNCIL MEETING 21 FEBRUARY 27, 2013
Mr. Jung: Understood.
Chair Furfaro: That is my prerogative. I am saying when
you feel we have breached any of those questions then you, in representing the
County, which is the Planning Director and myself, and this Council body, you are
more than welcome to raise your hands. I will continue to ask the questions to say
how are we giving these people notice? The fact of the matter is we gave you money
to have people go out and take a look at them and share issues with them. You
have chosen to use the monies on something else. So, we might have to have a
session on staffing during the budget hearings. Are you satisfied with my questions
and why the direction?
Mr. Jung: Yes, sir.
Chair Furfaro: Okay. So, we will use Coco Palms as kind of
the model, but on a much smaller scale. Okay. Mr. Rapozo, you have the floor.
Mr. Rapozo: Thank you. The big difference between Coco
Palms and TVR is Coco Palms permits expired. They applied for the permit and
they are expired. We are talking about TVR permits that were either fraudulently
approved, right? We gave permits to residences that did not have use, had illegal
construction, and are in flood zones. I mean, it is a completely different animal and
how many orders to show cause have we issued?
Mr. Dahilig: We have not been able to issue anything.
Mr. Rapozo: We have not issued any orders to show
cause? When did that Bill pass?
Mr. Dahilig: The latest one 1 904? I am not sure.
g O,
Mr. Rapozo: The one (1)...and I feel for Mr. Furfaro and
the Councilmembers that supported that Bill because obviously I was opposed to it.
But they put up a very good argument that this was going to begin the attrition and
we are years later and it has not done that. So, it makes the Council look bad
because I believe that Bill, in fact, came over from the Plannin g Department.artm n
e t. If I
am not mistaken. I do not think it was introduced by the Council. It came from the
Planning Department.
Chair Furfaro: You are right.
Mr. Rapozo: It came from the Planning Department and
said, "This is what we want" and the Council battled and battled. I was not on the
Council at time, but I testified on numerous occasions it would not work. But the
Planning Department said, "We need this tool, we need this and now we can start
going after them. We can start to watch the reduction," and it has not happened. It
is extremely frustrating for me. You talked about training, Mike. Your people were
already trained in process, in the legal requirements on report writing and I know
that for a fact that. They were already trained by the prior Administration. I know
that for a fact because I was working there when the training went on. So, to sit
here to say we will use that money and we are going to change up and train them,
they have already been trained. It has come down to and this is going to be a
question. Does the Planning Department have the political will to go after these
violators? It is in the blogs now. The blogs are written as public record and they
COUNCIL MEETING 22 FEBRUARY 27, 2013
have done the investigations. I have sent over numerous investigation requests,
Mike, and you have responded that we sent the cease and desist. Then what? In
the meantime these people are allowed to operate and not allowed because we sent
them a paper that said you have to stop. They have ignored it. They are ignoring
our requests. They are saying do not worry because they are not going to do
nothing and we have not, not one (1) order to show cause. Why? Why have we not
taken that next step in making them understand that we are serious about this?
Why?
Mr. Dahilig: Well, as far as my recollection is, the
legislation that actually did pass the Council, the first step in our Department being
able to implement that legislation was actually not enforcement. The first step of
that was actually to call those that were agriculture TVRs and those not agriculture
TVRs and in terms of my Office resources I had to deploy and redirect my
Department's staff to focus on approximately sixty (60) agricultural TVR special
permit investigations.
Mr. Rapozo: I will stop you right there only because I do
not want to hear the term "resources" because we gave you the resources, we gave
you the money for the resources. So, please do not use "resources." We gave you
thirty thousand dollars ($30,000.00) to hire, to go out and enforce TVRs. You chose
not to use the thirty thousand dollars ($30,000.00). So, please do not say
"resources" because that is not accurate.
Mr. Dahilig: Respectfully, Councilmember, I guess in
terms of being able to discuss how that thirty thousand dollars ($30,000.00) as a
resource is in the broader context of the broader question that you have been asking
me to answer with respect to overall enforcement of Ordinance 904. Especially
since the adoption of that Ordinance the provision of thirty thousand dollars
($30,000.00) was only provided eight (8) months ago and with respect to being able
to deploy that money in a means that best provided the most enforcement for the
least amount of cost was something that I had to weigh and make a was only
provided eight (8) decision on.
Mr. Rapozo: Mike...
Mr. Dahilig: I want to be clear on this, that we have not
necessarily chosen not to use the thirty thousand dollars ($30,000.00). We are using
the thirty thousand dollars ($30,000.00) in an enforcement manner and we have a
plan for that. But given the sensitivity of that how money is going to be used it is
something that I would not like to reveal in public session because I think it may
provide us some weakness in being able to bring these cases to fruition. I will be
very clear that we have and intent to use the thirty thousand dollars ($30,000.00)
for enforcement. But in the broader context of the questioning as with respect to
what we have been doing? The thirty thousand dollars ($30,000.00) was not there
at the outset of the adoption of Ordinance 904. 904 required a time period that my
Department had to process almost sixty 205 special permits which are
commissioned permits. So, our resources were directed there to meet the
compliance requirements of 904 first. So, that is why in terms of being able to ramp
up quickly the instructions that were required as part of the special permit
processes and ramp that down and ramp up the actual enforcement beyond the
special permit requirements, as set forth in Ordinance 904, that is what you were
seeing is a trade off and is deployment of the staff. When the thirty thousand
dollars ($30,000.00) came into the calculus there was a juncture for us to have a
COUNCIL MEETING 23 FEBRUARY 27, 2013
decision whether to contract out for the services or augment our own enforcement
efforts in house services. I made the call that it is pretty clear the Council wants
probably the more bang-for-their-buck on this. I will go that route with respect
being able to augment the services rather than contract it out because based on
some of the quotes have I gotten with respect to contracting out the work, my
estimate is that you could probably only chase one (1) to two (2) TVRs at most with
that money. That is why I said, okay, I think that would not be in their best
interest.
Mr. Jung: I think at this point, Mike, I would hesitate
to reveal any type of enforcement strategy. The only reason is there is a layered
process to this. When you look at OSCs it is a different...there is an Order Show
Cause.
Mr. Rapozo: No, that is fine Ian. We do not have to go
into OSCs. But I want to discuss the funds because were you not here at the
budget?
Mr. Dahilig: Yes.
Mr. Rapozo: Were you not here when we all agreed what
we wanted the funds for?
Mr. Dahilig: Yes.
Mr. Rapozo: So, why would say that you felt that the
Council would want more bang-for-their-buck? We told you what you wanted. We
did not tell you to hire a contracting private investigative firm. We said two (2)
retired Police Officers on eighty-nine (89) day contracts. That can be done relatively
quickly. That is what the Council said we wanted and that is what you agreed to.
Then to come back now and say, I thought I kind of know what the council wanted a
bigger bang-for-the-buck. We never mentioned one a private investigative firm. We
never did that. We mentioned two (2) retired former cops that had investigative
skills, report ready skills that could be picked up on eighty-nine (89) day contract
which could be done in days. In September we get a response from Gary Heu,
September 20th of 2012, that is about six (6) months ago and it says that the
Department has not hired temporary assistance from the inspection funds
appropriated. Given the size of the funds our Office has done a procurement to you
professional services to rapidly spend down the amount. We are currently in
discussions with the Kaua`i Police Department concerning potential arrangement to
utilize off-duty Police Officers or retired Police Officers to assist with the intended
inspection rates, six (6) months ago.
Mr. Dahilig: That is correct.
Mr. Rapozo: And we were not able to do it. But now you
are saying that you choose to use the money internally which is totally not what the
Council asked for, without coming to the Council to the say, "We believe you guys
can get a bigger bang-for-the-bucks if you use the funds." That is what bothers me.
It was a Council initiative.
Mr. Dahilig: Right and I understand that. For me to say
that contracted off-duty, retired Police Officers on eighty-nine (89) day contracts is
not part of our enforcement strategy. I can answer that. But if I were to answer
COUNCIL MEETING 24 FEBRUARY 27, 2013
that in public session I think it would provide some weakness in our ability to
enforce.
Mr. Rapozo: I do not know what is so secretive about
what we are doing. It is really simple what we said. Send some guys out, visit the
properties, come back with reports, and then the Planning Department would move
forward. What strategy? Really, what strategy? We are talking about
enforcement. We are talking about...it just sounds like we have decided not to go
after these guys and that is what is bothering me because we are a laughingstock.
Again, the blogs, if you read the blogs and I do not, but it was brought to my
attention and I just read the last week or so. I think we need to do something
because it really does not make this County look good and it is not fabricated stuff.
This stuff is coming out of records, public records, inspection records, and tax
records that is are available to the public and to me we have just decided to not
enforce. We need to change that picture and quick. But my question is, are we
moving forward, Mike, to actively and aggressively go after these violators?
Mr. Dahilig: Yes, we are.
Chair Furfaro: On that note, Councilmember, would you
yield the floor? Just before I recognize anybody else, I want to say something and I
want to say it for the purpose of everyone to understand and I will touch on it a
little later. When we put available money out there for CIP, we put it the out there
and the Administration can use that money in a sense of its intent unless they feel
otherwise. Usually once a year at budget time they come back to modify the CIP
money that we put there because they have intended to go somewhere else. The
other way that they do it, while it is obvious one (1) of those things that we are
going to be looking at today, is the changes in the money we put in for the Pi`ikoi
Building going to the Hardy Street Project. That is a change. That requires them,
like today, to come to us with a Money Bill. So, there are only two (2) times you can
change the intent. During the budget and/or with a Money Bill. Those are the rules
and we control the purse strings. I guess what I am hearing from Mr. Rapozo is
that it would have really made a lot more sense to us to have some of this discussion
on changing money that is in the budget, changing money that is in the budget. I
doubt very seriously that the Charter allows you to do it that easily and that is our
point. It should have initiated some discussion based on the intent of the money we
put there. Okay I will close on that. I will go to Mr. Hooser and then to Yukimura.
Mr. Hooser: Director, I was not here earlier when the
prior Council actions and so I need a little clarity, if I could, on the scope of the
issue. We are looking at Transient Vacation Rentals in non-visitor destination
areas.
Mr. Dahilig: That is correct.
Mr. Hooser: Some of those have gotten permits and are
violating their permits and some have not gotten permits, is that correct?
Mr. Dahilig: It could be characterized that way,Y, es.Y
Mr. Jung: I think just so interject real quick. There is
an issue of whether or not they have permits or certificates, that is being litigated
right now in an appeal to the Circuit Court. I would prefer that you refer to as
COUNCIL MEETING 25 FEBRUARY 27, 2013
certificates because both myself and Director Dahilig have been quoted on open
session testimony in the briefs from what I have been told.
Mr. Hooser: So, the once with certificates in effect
have...or believe they are complying with the law that the Council did is in effect
now. So, those are technically your legal TVRs that may not be complying with the
terms of their certificate?
Mr. Dahilig: That is correct.
Mr. Hooser: Or may have filed or something like other
certificate and the other group is a group that does not have certificates?
Mr. Dahilig: Right.
Mr. Hooser: So, the enforcement action we are talking
about apply to both groups, is that correct?
Mr. Jung: Maybe you can answer that question.
Mr. Dahilig: Enforcement implies to both groups.
Mr. Hooser: Okay.
Mr. Jung: Let us me just caution the Council one (1)
more time. There have been complaints lodged to this County about selective
enforcement of zoning laws. It is a broad approach to looking at a specific complaint
that comes in. It is a valid defense that can be raised about selective enforcement.
If we choose which ones we are looking at, we do not want to enter that realm. But
if you are asking a broad question of whether or not it is TVRs within the VDA and
TVRs outside the VDA then that would be a fair question.
Mr. Hooser: So, we are going after people who are
violating the law either operating a Transient Vacation Rental without a certificate
or operating with a certificate but for whatever reason fraud or whatever? So, you
are looking at both groups of people?
Mr. Dahilig: Those two (2) categories that we could
enforce on.
Mr. Hooser: And the ninety (90) or so or one hundred ten
(110), whatever that number is, those are people with certificates or those are
people without certificates or a mixture of both?
Mr. Dahilig: Those are individuals that do not...that
are...
Mr. Jung: I will answer. They are individuals who
failed to comply with Ordinance 904 with renewal requirements.
Mr. Hooser: With the renewal requirements?
Mr. Jung: Let me just give you a broad background real
quick without getting into details of the law. When you look at non-conforming uses
COUNCIL MEETING 26 FEBRUARY 27, 2013
that had been established for Transient Vacation Rentals there is a registration
process that happens.
Mr. Hooser: Right.
Mr. Jung: There are requirements for the registration
process. In that registration process there are certain criteria that you have to
follow to renew your permit. If they failed to do that than they were issued notices
of non-compliance of a certain provision, and they vary on whether or not the
provisions. But if you look at Ordinance 904, it details what you need to do and
when.
Mr. Hooser: So, the group that we are talking about
sending out citations or whatever, are a group of people who have certificates and
h are
they a e i n the renewal process and you are dealing with those people?
Mr. Jung: Those would be the ninety-one (91) for
renewal issues.
Mr. Hooser: Right. So, when those renewals are annual
renewals, is that correct?
Mr. Jung: Correct.
Mr. Hooser: The Planning Department does not have to
renew them if they are notice complying is that correct?
Mr. Jung: That would be...
Mr. Hooser: I mean it is a choice. They come in to get
their certificate renewed and the Planning Department either says yes or no.
Mr. Jung: It is a standard criteria that is set forth
within the Ordinance. If they fail to comply then there is a possibility that they
forfeited the use. But there are arguments they would have to raise against
whether or not the registration requirements are valid or not. That is what we are
going through a litigation right now.
Mr. Hooser: So, they can contest, they can say, "No, I do
comply."
Mr. Jung: Right.
Mr. Hooser: You mentioned, Director, about a third of
those folks have received, I believe the word as citations," is that a correct? Is that
the correct word?
Mr. Dahilig: I guess...maybe I should correct myself. They
are notices.
Mr. Hooser: Notices?
Mr. Dahilig: They are notices, yes.
COUNCIL MEETING 27 FEBRUARY 27, 2013
Mr. Hooser: So, they are not citations, they are notices.
Mr. Dahilig: Within the notices is also another section
that requires them to cease and desist their use.
Mr. Hooser: It sounds like, even though I know we have
to treat everybody equally, it sounds like the focus is on the certificate renewal
process. Is that in terms of scope of the problem in our community? Are there a lot
of TVRs who are totally under the radar and not involved with certificate but still
operating as a TVR?
Mr. Dahilig: Our ability to be able to quantify what is out
there, outside of the realm of what is within our view, is only really in some sense
dictated to us by the complaint basis that we have in house. So, when we get
complaints about an illegal non-certified operating TVR outside the Visitor
Destination Area, those are acted upon as a complaint. But with respect to an
actual census of how many there are in that big question mark, we do not have a
number.
Mr. Hooser: The discussion about investigation and
whether it is a Private Investigator or an off duty Police Officer, those are mostly
investigating the certificate folks who may not be complying? I guess the point is
that you have talked about you do not want to reveal the strategy or what not and it
seem like it is a sobriety test checkpoint or something that part of the goal is
compliance and part is of catching the bad guys, the really bad guys, the repeating
drinking and driving offenders in that metaphor. I do not understand why we do
g g p Y
I!, not want to tell the world that we are sending out undercover people and we are
going to be cracking down and we are going to be doing all of these stuff and
actually do it. It seems like that would increase compliance rather than try to hide
what we are doing. Would you respond to that?
Mr. Jung: Yes. I will take a stab at it, Mike. It
certainly makes sense that if you reveal an enforcement strategy, it is coming then
if you reveal that there is enforcement by the Department to come in and really
crackdown on TVRs. But if you revealed the strategy in how to do so, then that
operator might then morph itself to changing its operations. In the City and County
of Honolulu they have had issues. They even have gone so far as trying to regulate
advertising. But the ACLU came in a proposed Bill and said, "No, you guys cannot
touch advertising and try to make it a violation just to advertise." For us the
advertising is prima facie evidence that we can use in our evidentiary submittals to
a Hearings Officer or eventually to the Court. But when you start looking at how to
address specific polices and movements and operational tactics that are going to go
down when you do an investigation, I do not think that is something that you want
to reveal in the public nor do you want to have discussion on the Director and their
Attorney coming before a body such as you guys because that strategy may be called
into question and then what we testify to may be called into question in later
proceedings. So, I know we are looking at more administrative duties on how Mike
is dealing without implementation of the law you guys created. But I think by
holding it in open session it could potentially jeopardize our litigative strategy in
moving forward on these cases. I know we have to be broad in this context. But I
have literally an agency appeal that I have to file responding brief to shortly that is
trying to unwind 904 and unwind some of the interpretations of the Director's
decisions under 904. So, I am hesitant to have the Director make representations to
you guys on enforcement strategy.
COUNCIL MEETING 28 FEBRUARY 27, 2013
Mr. Hooser: I got it. Just one (1) or two (2) more
questions, if I could, Mr. Chair.
Chair Furfaro: You still have the floor.
Mr. Hooser: Just again, so I understand this correctly
because it is mind boggling to think that the County cannot find someone who is
breaking the law. Instead everyone of these people have to go through a contested
case hearing. It does not seem to make sense. Why does every single one (1) of
these cases have to go through a contested case? Why can we not fine people?
Mr. Jung: Not everyone has to. There is a process
which is in place, procedural due process, as well as substantive due process.
Procedural due process we have...there is a recent case that just came out, it is the
Hokukele LLC case, that talks about how due process has to be laid out under
Director determinations and that is my point.
Mr. Hooser: Can we fine people that may or may not go to
contested case?
Mr. Jung: We have the authority to fine people. But...
Mr. Hooser: Have we fined anyone?
Mr. Jung: On the other side, that person has the
authority to appeal.
Mr. Hooser: Have we fined anyone?
Chair Furfaro: Excuse me, Mr. Hooser. Why did we not
discuss that in the last posting on Executive Session?
Mr. Jung: I apologize, but I was on vacation.
Chair Furfaro: Is that the reason? Nobody else could...
Ms. Yukimura: We have one (1) scheduled, right, for today?
Why do we not just go into Executive Session?
Chair Furfaro: I just want to know, it that the reason?
Mr. Jung: Sure and I will tell you the reason why. I
tried to work with the Deputy County Clerk to advise I would be out on vacation
and that I would prefer to be into the Executive Session. But from what I
understood, the Council wanted to hold it on February 5th when both myself and
Mr. Dahilig were out of town.
Chair Furfaro: You answered my question. Now
Mr. Hooser, you have the floor.
Mr. Hooser: So, have we fined anyone? Has the Planning
Department of the County fine anybody?
COUNCIL MEETING 29 FEBRUARY 27, 2013
Mr. Dahilig: As I stated at a similar inquiry that we have
had on this, we have made attempts to fine three (3) non-TVR violators. The actual
act of levying the fine by my hand compelled a compliance with the use. We have
not actually completed collected a fine. But I have levied a fine. But at the end of
the day because of the issues regarding...as I mentioned to the Council, the plural
nature of "requests," that that last notice where the fine was given, there was a
period to still provide for compliance upon which time when the fine was going to be
levied they chose to comply.
Mr. Hooser: We can you levy a fine, but if they comply we
do not get to fine?
Mr. Dahilig: Yes. As I described in a previous session
with the Council, there is a two (2) step process that we initiate. One (1) which is a
notice and cease and desist order and then second is a second order of violation,
cease and desist order as well as a fine levy. But because of the "requests" language
there was a period of time for them to come into compliance. The enabling
legislation under Hawaii Revised Statute (H.R.S.) 46402, 4641.524 it places for
emphasis on compliance and education versus than immediate punitive action.
Mr. Hooser: Thank you. Thank you, Chair. That is all.
Ms. Yukimura: I have always thought it was illogical that
we could not make it illegal to give Transient Vacation Rental (TVR) certificates if
they are illegal in any way and that seems to be one (1) of the major problems. But
I feel like most of this discussion needs to be in Executive Session and we really
are...because all of our goal is to have good enforcement of the TVR law. So, I
would prefer Chair, if we could and we have an Executive Session posted, do we
not?
Chair Furfaro: I agree with you. I probably, in my last
comments to you, I got as close as I could to breech possibly things that should not
have been touched on. I agree with...this posting in open session came from me.
We have a posting in Executive Session. I want to say I concur with
Councilmember Yukimura, you still have the floor. But let us make sure we
understand we have an Executive Session posted.
Ms. Yukimura: Can we go in now?
Mr. Rapozo: No.
Ms. Yukimura: Then we would then have the session first
and then have the open discussion, is my thought because we would then have a lot
more understanding.
Chair Furfaro: If you would like to make a motion to go into
Executive Session first, I will take that under consideration and call for a vote now.
Ms. Yukimura: I mean, I do not want to do it unilaterally.
But it seems to me if we had the background discussion than we can more clearly
ask the open questions in open session without jeopardizing our enforcement efforts.
If everybody is alright? Well, I guess we can have a discussion based on the motion.
COUNCIL MEETING 30 FEBRUARY 27, 2013
Ms. Yukimura moved to convene in Executive Session on ES-604 as
recommended by the County Attorney, seconded by Ms. Nakamura.
Chair Furfaro: We have a motion to go into Executive
Session as well as a posting and on that note, before I recognize anybody...I think
we probably have to read what is stated...what is stated for Executive Session
before we look at a vote. Is in Mr. Jung going to read that or are you going to read
that Al?
ALFRED B. CASTILLO, JR., County Attorney: The matter for your
consideration is ES-604.
ES-604 Pursuant to Hawai`i Revised Statutes (HRS) Section 92-4,
92-5(a)(4), and Kaua'i County Charter Section 3.07(E), on behalf of the Council, the
Office of the County Attorney requests an executive session with the Council to
provide the Council with a briefing on implementation of Bill No. 2439 relating to
the Planning Department's civil fine authority and methods of investigations and
related matters to address questions related to levying and collecting civil fines
pursuant to Hawai`i Revised Statutes Section 46-1.5. This briefing and consultation
involves the consideration of the powers, duties, privileges, immunities and/or
liabilities of the Council and the County as they relate to this agenda item.
Chair Furfaro: That is what we had posted today. As a
practice for myself since Chair, I will open for discussion. But I will do a roll call
vote when it comes to the actual motion. Mr. Rapozo, you have the floor.
Mr. Rapozo: Thank you, Mr. Chair. I am not going to be
supporting going into Executive Session. I do not see any...this is an update on the
enforcement initiatives. The enforcement, like Mr. Hooser said, it is not a secret
how we are going to enforce. The litigation strategy, I can understand that, yes of
course we are not going expose our strategy if we should be contested. But the
enforcement which is what is on the agenda, the fines are not on the agenda. You
are asking now to go to another separate item that is on the agenda that is
scheduled for later today. But the discussion today, for this item, is simply what is
the strategy? What are we going to do? What are the initiatives as far as
enforcement? Send the message out. I agree with Mr. Hooser. Let them know we
are coming. I think Chair Furfaro made a joke of it here, "bam bam." I am here. I
am "bam barn." I am from the Planning Department and I need to check your
permit. What is so secret about that? Right now I can tell you what the perception
of the public is after this little morning dialogue. There they go...there they go.
The Planning Director cannot answer the questions. They are going to go into
Executive Session, keep the public...why? Why are we doing that? I am not asking
for litigation strategies. My question is why has the Planning Department not
done what the Council and the Administration agreed to do as far as enforcement?
I still have not gotten an answer. That is, I think, what the discussion that should
be in open and not in private. Thank you.
Chair Furfaro: JoAnn.
Mr. Castillo: Council...
Ms. Yukimura: I agree...
COUNCIL MEETING 31 FEBRUARY 27, 2013
Chair Furfaro: Excuse me, JoAnn. Did you want to say
something.
Mr. Castillo: Yes. Excuse me, is Council Chair. May I say
something please? Nothing that we are doing here today is being done in secrecy
and have anything to hide. Everything that we are suggesting is due process. Due
process that is required by our Constitution as Americans. I take issue because of
the fact that the very questions that all of you are asking will easily be answered in
Executive Session. We cannot air out all of these answers to the questions here in
the open. I ask that we go into Executive Session because the answers are in there.
We have nothing to hide.
Chair Furfaro: Okay and I just want to make sure that you
understand, that is the reason I brought the Coco Palms example up. That is about
due process. Although there might be different variances here, but I understand
what you are saying. Thank you for that. I am going to recognize...you may want
to stay there, Al, while members have questions because we are going to vote to go
into Executive Session here. Councilmember Yukimura.
Ms. Yukimura: I am concerned that ES-604 does not
describe fully enough the scope that we would need in order to discuss the
enforcement of TVR. I do not agree with Councilmember Rapozo that enforcement
is different from litigation strategy. I think litigation strategy involves all of it and
so I do worry that we will jeopardize our litigation efforts in talking about certain
things in the open. But I am worried that this posting is too narrow and that what
we really require for a robust discussion about this problem that we really feel and
are concerned about needs to be more broadly worded.
Mr. Jung: And just so the Council is aware, Council
Chair, if I could address that?
Chair Furfaro: Have you the floor.
Mr. Jung: I am the one (1) who drafted this based on a
request from Council. The reference to Bill 2439 had just been passed at the last
meeting so we did not have an Ordinance number assigned to it yet. Although it
came in after the submitted of the request, the idea was to give you an idea of how
the process in terms of how appeals of Chapter 9 work based on the collecting and
levying fine as well as how actual cause proceedings work based on I few were going
to go after a particular individual. So, it was broaden the context of not just TVRs,
but everything that was raised in the last meeting to discuss any type of violation
that might be of the CZO. So, it was a general discussion.
Ms. Yukimura: Which you feel would be broad enough to
have a thorough discussion of TVR enforcement?
Mr. Jung: Just as any other violation of the CZO, a
TVR is a violation of the CZO depending on the context of the operation exists. It is
the same enforcement strategy and same enforcement mechanism.
Ms. Yukimura: Alright. Well, if that is your legal opinion
then we should try it and go into Executive Session.
Mr. Kagawa: I kind of agree with Councilmember Rapozo
in that I do not like the fact that sometimes we go into Executive Session when
COUNCIL MEETING 32 FEBRUARY 27, 2013
questions are not Executive Session in nature and have I a couple that I do not
think are Executive Session in nature. As long as we go in there and my questions
are meant for the general public, you let me know that we can ask those in front of
the general public because I do not like to live behind the wall. Thank you. I will
be supporting the motion.
Chair Furfaro: If not any more discussion? Mr. Hooser?
Mr. Hooser: Mr. Chair, I am not comfortable going into
Executive Session. The County Attorney is here and as he has been doing
interrupting if he believes that the conversation strays. I think it is a perfectly
legitimate discussion to have in the public. What are you doing to ensure that the
law is enforced and not about particular cases. I certainly do not believe anyone
wants to violate anybody's due process. But to hear the Planning Department say
that there is (x) number of TVRs and we believe (x) number are in violation, here
are some of the reasons that they are violating, we are determined to go after them,
we are sending out citations with plan on fining and taking them through the
process, this is what we are doing and how we are doing that. I do not believe that
needs to be done in Executive Session. So, I believe...I will not supporting be s ortin
pp g the
motion.
Chair Furfaro: Okay. Any more discussion before I call for
roll call? Vice Chair?
Ms. Nakamura: I will support the move to go into Executive
Session and as I recall the last time this motion was made everyone agreed to do
that. The frustrating part about that vote was when we went into Executive
Session we did not have the resources there to answer the questions. So, that is
why it is a little frustrating because now I believe we have that opportunity to have
those discussions and to get a better understanding of the strategy. Thank you.
Chair Furfaro: Mr. Rapozo?
Mr. Rapozo: Thank you, Mr. Chair. I think Mr., Jung
stated it accurately was the last Executive Session was pertaining to the Bill of the
fines, not TVRs. I agree that the language in that Bill...I mean in that Executive
Session would encompass all investigations so you could...whatever Code violations
you could discuss. But that was not the intent of that Executive Session. That
Executive Session's intent, the reason I supported it, was because it was to talk
about the Bill that was before us, about the fining authority and so forth. So, that
is why I supported it. We went in. Obviously, the players were not here. So, we
could not have a discussion because no one knew what was going on. So, we came
out of Executive Session. This case is...I mean this posting today what we are in. I
fully intend to go into Executive Session when that matter gets called for the reason
it was placed on the agenda. The discussion at hand involving the TVRs and
enforcement, I do not believe that warrants it and I will not be supporting it. But I
definitely will if it is pertaining to the fining authority and when we come up to it
thin I will definitely support it. I agree with Mr. Hooser. The County...if we are
straying, the can tell us to stop. We should know that. We should not be talking
about pending cases and I will tell you that...and I guess it is extremely frustrating
for me, Mr. Chair, because I have submitted and for the new Councilmembers you
may not be aware. But over the last few years I have submitted specific complaints
on violations, specific with investigations discussed and to no resolve. Now, those
issues we can discuss at a later posting which I fully intend to do. I am going to
COUNCIL MEETING 33 FEBRUARY 27, 2013
take those cases that we just read on the blog, Mr. Chair, I am going to be asking
that we have an Executive Session pertaining to individual specific cases. That is
where it belongs. But the discussion on TVR enforcement definitely should be put
here. Thank you.
Chair Furfaro: I am going to get ready to call for the vote.
But before I do, with one (1) absent member today, I want to make sure that you are
all clear on the rules. We do not necessarily need five (5) votes. We need two-thirds,
am I correct? So, to go into Executive Session, we need four (4) votes today. On
that note and that understanding, I would like to call a roll call.
The motion to convene in Executive Session for ES-604 was then put, and carried by
the following vote:
FOR EXECUTIVE SESSION: Kagawa, Nakamura,
Yukimura, Furfaro TOTAL — 4,
AGAINST EXECUTIVE SESSION: Hooser, Rapozo TOTAL — 2,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL — 0.
Chair Furfaro: We have a 4:2 vote. We have two-thirds of
the of the Councilmembers in attendance. For those of you in the audience, in five
(5) minutes we are going to be in Executive Session. You may have to vacate this
room on that note.
Mr. Rapozo: Mr. Chair.
Chair Furfaro: Yes, Mr. Rapozo?
Mr. Rapozo: Is it possible to take public testimony before
because this is probably going to take to lunch and I know we have a Resolution
scheduled for after lunch. Unless they are willing to stay, that is fine. Are you guys
going to stay?
Chair Furfaro: Are you going to stay awake? Is that what I
heard. For the cameraman, do I have your attention? When we break, I want to
take our ten (10) minute break. So, that gets behind us. We are going to go into
Executive Session and you take a caption break at the same time.
Mr. Mickens: How long, Jay, for Executive Session?
Chair Furfaro: You just told me you could stay up all night.
Mr. Mickens: You are saying it is going to be 4:00 before
you come back?
Chair Furfaro: No.
Mr. Rapozo: I said that.
Mr. Mickens: Oh, okay.
Chair Furfaro: You did not hear that from me.
COUNCIL MEETING 34 FEBRUARY 27, 2013
Mr. Mickens: Any guesstimate how long?
Chair Furfaro: Wait a minute, let me see if I have any
crystal ball. I do not know, Glenn. I am trying to be fair. Remember at 1:30, we
have a Resolution scheduled. So, I do not know if it will take us all the way to
lunch. But I suspect it will.
There being no objections, the Council recessed at 11:23 a.m.
There being no objections, the meeting was called back to order at 1:34 p.m.,
and proceeded as follows:
Chair Furfaro: Aloha, good afternoon everyone. I would like
to take a moment to actually close out item C 2013-89. I am actually looking for a
motion to receive.
Mr. Kagawa moved to receive C 2013-89 for the record, seconded by
Ms. Nakamura.
Chair Furfaro: Thank you. This item, as you know will
probably be coming up towards the end of March as we are going to reserve some of
the people that wanted to testify until then. They have left for the day and knowing
that it is going to come back on the agenda, they are going to wait until then. Any
further discussion?
Mr. Rapozo: I have a question. Was it all members
present? I just want to make sure because the people that left were under the
impression they were going to be able to testify.
Chair Furfaro: I talked to two (2) of them who said they
were not coming back.
Mr. Rapozo: Karen and...
Chair Furfaro: Barbara.
Mr. Rapozo: I know I saw Ken outside and you thought it
coming back.
Chair Furfaro: Well, it is 1:30 there or about. If he thought
it was supposed to be bid, he should be here.
Mr. Rapozo: No, we told him at 1:30 that we had the
Resolution for the sanctuary.
Chair Furfaro: Let us make sure in the future we send these
guys to see the Chairman. I want to finish this item. Is it your intent, Glenn, to
give us testimony on the item that was just pau? I was told two (2) of you said no.
Mr. Mickens: Right.
Chair Furfaro: Is Ken entitled?
Mr. Mickens: No.
COUNCIL MEETING 35 FEBRUARY 27, 2013
Chair Furfaro: No, okay. So, Barbara is not either. I hope
that can satisfy it for now.
Mr. Rapozo: Okay. That is fine.
Chair Furfaro: This will be coming back towards the end of
March it will be remain reposted.
Mr. Mickens: Thank you, Jay.
The motion to receive C 2013-89 was then put, and was carried by the 6:0:1
vote (Mr. Bynum excused).
Chair Furfaro: Thank you very much. Now I am going to
ask for the Clerk, if you can take us to page 5, as I want to fulfill the requests made
by Mr. Kagawa for 1:30. Mr. Kagawa, I am going to let you run this item.
Resolution item 2013-38 to the Clerk. I would like if possible to read the
Resolution. Is Scott prepared to do that? Yes? Okay, very good. Then I will turn it
over to you, Mr. Kagawa. Clerk, you have the floor.
There being no objections, Resolution No. 2013-38 was taken out of order.
Resolution No. 2013-38 — RESOLUTION SUPPORTING KAUAI'S
FISHERMEN, OCEAN GATHERERS, AND RECREATIONAL OCEAN USERS:
WHEREAS, the National Oceanic and Atmospheric Administration (NOAA)
is a federal agency within the Department of Commerce with science, service, and
stewardship missions; and
WHEREAS, the Office of National Marine Sanctuaries of NOAA within the
National Ocean Service is tasked with management of all designated national
marine sanctuaries within the United States and its Territories; and
WHEREAS, the Office of National Marine Sanctuaries of NOAA works with
other NOAA programs and others to help manage marine life, habitats, and
cultural artifacts within sanctuaries; and
WHEREAS, the Hawaiian Islands Humpback Whale National Marine
Sanctuary ("Sanctuary") was created by Congress in 1992 for the following
purposes: (1) protect humpback whales and their habitat; (2) educate and interpret
for the public, the relationship of humpback whales to the Hawaiian Islands marine
environment; (3) manage human uses of the Sanctuary consistent with the Act and
the National Marine Sanctuaries Act; and (4) provide for identification of areas of
national significance, as described in the National Marine Sanctuary Act for
possible inclusion in the Sanctuary; and
WHEREAS, the Act of Congress that created the Sanctuary requires that the
Sanctuary Management Plan shall: (1) facilitate all public and private uses of the
Sanctuary (including uses of Hawaiian natives customarily and traditionally
exercised for subsistence, cultural, and religious purposes) consistent with the
objective of protection of humpback whales and their habitat, (2) set for the
allocation of Federal and State enforcement responsibilities, as jointly agreed by the
Secretary of Commerce and the State, (3) identify research needs and establish a
long-term ecological monitoring program with respect to humpback whales and
COUNCIL MEETING 36 FEBRUARY 27, 2013
their habitat, (4) identify alternative sources of funding needed to fully implement
the plan's provisions, (5) ensure coordination and cooperation between Sanctuary
managers and other Federal, State, and local authorities jurisdiction within or
adjacent to the Sanctuary, and (6) promote education among users of the Sanctuary
and the general public about conservation of humpback whales and their
habitat; and
WHEREAS, the Sanctuary is co-managed by the State of Hawai`i though the
Department of Land and Natural Resources (DLNR) and NOAA of the
U.S. Department of Commerce through a Compact Agreement signed in 1998; and
WHEREAS, the designated Sanctuary waters lie mostly within distinct areas
of relatively shallow water (less than 600 feet) selected to protect the humpback
whale in the Main Hawaiian Islands (MHI), and constitutes one part of the world's
important humpback whale habitats; and
WHEREAS, the status of the humpback whale has recently changed from
"endangered" to "least concern: species evaluated with a low risk of extinction" with
populations increasing as documented by the International Union for Conservation
of Nature (IUCN), the official international agency that tracks the status of
endangered and threatened species worldwide; and
WHEREAS, the Hawaiian monk seal is not included as a species in the
Hawaiian Islands Humpback Whale National Marine Sanctuary, but is protected
separately under the Endangered Species Act, the Marine Mammal Protection Act,
and the wildlife laws of the State of Hawai`i; and
WHEREAS, the main habitat for the Hawaiian monk seal lies within the
Papahanaumokuakea (Northwest Hawaiian Islands) National Marine Monument
area, and not the Main Hawaiian Islands; and
WHEREAS, in 1988, critical habitat for the Hawaiian Monk Seal was already
designated on all beach areas and ocean waters to a depth of 120 feet around
the Northwestern Hawaiian Islands, and does not include the Main Hawaiian
Islands; and
WHEREAS, in its Draft Endangered Species Act ("ESA") Section 4(b)(2)
Report dated September 2010, the National Marine Fisheries Service (NMFS) has
recommended establishing a marine and terrestrial critical habitat for Monk Seals
in the Main Hawaiian Islands (MHI) to include all beach areas up to 15 meters
onshore, and offshore to the 500-meter water depth to include: sand spits and islets,
beach vegetation to its deepest extent inland, lagoon waters, inner reef waters, and
ocean waters around the entire MHI includin g terrestrial and marine habitat of
Kaula, Ni`ihau, Kaua`i, O`ahu, Maui Nui (including Maui, Moloka`i, Lanai, and
Kaho`olawe), and Hawai`i; and
WHEREAS, the Hawaiian Islands Humpback Whale National Marine
Sanctuary Management Plan, completed in 1997 and revised in 2002, is used to
guide management actions of the Sanctuary; and
WHEREAS, the Hawaiian Islands Humpback Whale National Marine
Sanctuary Management Plan, established in 1992 and currently in the review
process begun in 2010, seeks to change the single species mission and mandate of
the Sanctuary, including management, oversight, methodologies, regulations, and
COUNCIL MEETING 37 FEBRUARY 27, 2013
priorities which could result in a completely new management plan for the
Sanctuary, including proposed expansion of the sanctuary scope to include
ecosystem management of resources located mainly within the jurisdiction of the
State of Hawai`i; and
WHEREAS, the new management plan for the Sanctuary is being compiled
to include an Environmental Impact Statement for changes to the Sanctuary's
mission and management role without first having disclosed the purpose and
nature of the changes being considered; and
WHEREAS, public meetings have been held by the Department of Land and
Natural Resources (DLNR) to gather input from area fishermen and ocean
gatherers and users to identify important areas and concerns, and assist DLNR and
the Sanctuary co-managers in evaluating the potential impact of various measures
being considered by the Hawaiian Islands Humpback Whale National Marine
Sanctuary, including the inclusion of additional species; and
WHEREAS, the Hawaiian Islands Humpback Whale National Marine
Sanctuary must develop this revised Management Plan according to national laws
and regulations including economic and cultural assessments of impacts to the
people living in or near the Sanctuary, as well as documenting the scientific basis
for the Humpback Whale and its habitats considered under the Endangered Species
Act; and
WHEREAS, Kaua`i's fishermen, ocean gatherers, and ocean recreational
users have expressed concern that the new Sanctuary Management Plan will
change the Sanctuary's role and responsibilities, and may include new or amended
regulations used to manage human activities to protect sanctuary resources, which
may, in turn, conflict with access to and use of ocean resources by restricting or
II
prohibiting cultural, recreational, and economic activities; and
WHEREAS, the target for completion of a draft revised management plan is
the latter half of 2013, and a final revised plan is targeted for completion
in 2014; and
WHEREAS, Kaua`i's fishermen, ocean gatherers and traditional users, and
ocean recreational activities have expressed concern about the consultation and
decision-making process whereby new regulations are being added for fishing and
gathering areas based on the addition of new species to the Sanctuary, such as the
Hawaiian Monk Seal, several species of coral, and the False Killer Whale; and
WHEREAS, Kaua`i Ocean Users (an informal committee of concerned
fishermen, ocean gatherers and traditional users, and recreational ocean users),
have obtained the signatures of over 6,000 residents of Kauai opposing the
expansion of the Sanctuary into new areas or new species; and
WHEREAS, Kaua`i Ocean Users has also expressed concern that any new
regulations and agreements for the addition of species into the Sanctuary may have
extensive consequences not adequately addressed in the management plan revision
process, including:
1) prohibiting access to State waters around Ni`ihau for public use while
ensuring private access;
COUNCIL MEETING 38 FEBRUARY 27, 2013
2) undermining or prohibiting the ability to conduct traditional cultural
practices and artisanal fishing and gathering within the Sanctuary;
3) hampering both commercial and small business fishing industries, which
may need to anchor vessels;
4) placing the needs of new species in the Sanctuary (such as seals) over
those of the people without adequate studies on the economic and cultural
impacts of these species, especially for species such as the monk seal that
compete with humans for seafood;
5) underplaying the threat of increased bacterial disease and parasites on
Hawai`i fisheries, fish livestock, and humans due to an increased
population of both Humpback Whales and Monk Seals; and
6) failing to conduct a comprehensive study of the cumulative impacts of
adding species and habitats to the Sanctuary waters, including economic
and cultural impacts; and
WHEREAS, the purpose of the Hawaiian Islands Humpback Whale National
Marine Sanctuary has been achieved as evidenced by the successful recovery of
humpback whales (being proposed for delisting as an endangered species), the
recovery and proposed delisting of the Green Sea Turtle in Hawai`i (recovered
without Sanctuary protection), and an increasing population of monk seals in the
Main Hawaiian Islands (also without a need for Sanctuary protection); and
WHEREAS, Kauai Ocean Users, in seeking to provide an understanding of
their fear of regulations promulgated solely on information supporting expansion of
the Hawaiian Islands Humpback Whale National Marine Sanctuary Management
Plan into a multi-species ecosystem management of fisheries within the jurisdiction
of the State of Hawai`i, and any listed threatened and/or endangered marine species
in Hawai`i, including their critical habitat areas, have focused their attention,
among other things, on the following:
1) Any Management Plan or agreement that changes the responsibilities of
the single-species Hawaiian Islands Humpback Whale National Marine
Sanctuary must be considered as a new initiative, subject to
Congressional approval, and not be considered an add-on or revision to
any existing Federal and State agreements.
2) The Main Hawaiian Islands should be a separately designated
management region, with its own laws and regulations, and not be
incorporated into any agreements concerning the Northwestern Hawaiian
Islands.
3) The State of Hawai`i must take the lead in managing its ocean waters and
honor its responsibility to manage all State waters for the people of
Hawaii nei, as spelled out in the Hawai`i State Constitution. This
includes hiring a qualified fisheries expert who is skilled in strategic,
financial, operational, and project oriented management to lead the
Department of Land and Natural Resources (DLNR) Hawai`i Division of
Aquatic Resources (DAR).
4) No new species shall be considered for inclusion in the Hawaiian Islands
Humpback Whale National Marine Sanctuary without prior
COUNCIL MEETING 39 FEBRUARY 27, 2013
documentation and determination of the potential effects on the
ecosystem, economics, cultural uses, and traditions, and an evaluation of
the effects on the public access to State beaches and waters for each
additional species proposed for inclusion, and said document is fully
disclosed and made publicly available at least 60 days in advance of any
such consideration.
5) Hawai`i's economic, cultural, and subsistence wealth is based on its
natural and cultural resources, which considers all natural and cultural
traditions as resources to have value. In Hawai`i, the viability of these
resources depends on the ocean and vice versa. Conservation and use of
these resources and their regulation are the responsibility of the State of
Hawai`i first, and not the Federal Government or environmental groups
who use Federal regulations to undermine State authority.
6) The imposition of critical habitat mandates is a systematic approach to
implementation of the Akaka Bill, which was modeled in many ways after
the 1971 Alaska Native Claims Settlement Act whereby federal
recognition of the Alaska Natives as indigenous tribes resulted in their
giving up their rights and claims to traditional lands and hunting
grounds, including forfeiting their gathering, hunting, and fishing rights;
now, therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF KAUAI,
STATE OF HAWAII, that it supports the efforts of Kaua`i's ocean users (the local
fishermen, ocean gatherers and traditional users, and other ocean users) to limit
further regulations in Hawai`i's ocean waters through expansion of federal
authority over Hawaiian waters.
BE IT FURTHER RESOLVED. that it reauests the State of Hawai`i to take
an active role in management of marine resources, as required in the
State Constitution.
BE IT FURTHER RESOLVED, that it requests of both the Department of
Land and Natural Resources (DLNR) and the National Oceanic and Atmospheric
Administration (NOAA) that any documentation of existing conditions or
development of new plans for the Sanctuary must include equally balanced studies
that describe measures to ensure the economic and cultural survival of the people,
including protecting subsistence fishing and Native Hawaiian cultural practices and
gathering rights and preserving the aina, and recognize the needs of fishermen,
traditional ocean users and ocean gatherers.
BE IT FURTHER RESOLVED, that it requests NOAA, through all its
branches and divisions, to exclude the Main Hawaiian Islands in its
recommendation to designate a critical habitat for the Hawaiian Monk Seal, and to
refrain from including any other species into the Sanctuary until complete analyses
and public disclosure take place and until all legislative requirements are met.
BE IT FURTHER RESOLVED, that copies of this Resolution be sent to
William J. Aila, Jr., Chairperson, Department of Land and Natural Resources;
Elia Y. K. Herman, State Co-Manager, Hawaiian Islands Humpback Whale
National Marine Sanctuary, Department of Land and Natural Resources; Malia
Chow, Sanctuary Superintendent, Hawaiian Islands Humpback Whale National
Marine Sanctuary, National Oceanic & Atmospheric Administration; Michael
COUNCIL MEETING 40 FEBRUARY 27, 2013
Tosatto, Pacific Islands Regional Administrator, National Marine Fisheries Service,
National Oceanic & Atmospheric Administration; Governor Neil Abercrombie; State
Senator Ronald Kouchi; State Representative Derek S.K. Kawakami; State
Representative Dee Morikawa; State Representative James Kunane Tokioka;
Mayor Bernard Carvalho Jr.; Jean Souza, Kaua`i Island Coordinator, Hawaiian
Islands Humpback Whale National Marine Sanctuary; and Kaua`i Ocean Users (an
informal committee of concerned fisherman, ocean gatherers and users, and
recreational ocean users).
Chair Furfaro: Thank you very much. To the Clerk's Office
I will go through a couple of housekeeping items here and then I will plan to turn
over the microphone over to the introducer of Bill. Do you have written testimony
and if so, how many copies?
SCOTT SATO, Council Services Review Officer: We have seventeen
(17) pieces of written testimony.
Chair Furfaro: Thank you very much. Do we have existing
signup sheets?
Mr. Sato: We have four (4) registers speakers.
Chair Furfaro: We have four (4) registered speaker?
Mr. Sato: Correct.
Chair Furfaro: For anyone in the audience that wishes to
speak we have a sign up sheet here on my left, your right. If you wish to give
testimony on this. The rules will permit six (6) minutes of testimony at the
discretion of the Chair. I am passing on that authority to the introducer of the
Resolution and on that note, Mr. Kagawa, I will give you the floor.
Chair Furfaro, the presiding officer relinquished Chairmanship to
Mr. Kagawa.
Mr. Kagawa: Thank you, Mr. Chair. First of all I want to
thank you for allowing me to have this item at this specific time and it allowed for
the nice crowd that we have in front of us. Had we just taken it up in a normal
course of action I believe at least half of this crowd would not have been here. So, it
is a nice crowd of speakers and listeners that we have here. We have people from
both sides which is always nice to have when we are discussing such an important
issue. My intention in introducing this Resolution was basically to protect our
children and our future's children's right to swim at our beaches, to fish where we
have been able to fish all of these years, and that is something that I value deeply
and I think the people of Kauai value deeply, to use our oceans, our beaches, that is
P p
why we live here. We do not have pro sports here. We do not have UH Football to
enjoy. We basically work hard and we enjoy the outdoors. We enjoy the beaches
and enjoy going fishing and those kind of things are very important to us. So, that
is why I have put this Resolution. I think it is important for the Council to hear
this big issue that has been before us. There have been a lot of hearings, public
hearing. A lot of people in the public have not heard testimony on both sides for
and against. Here at the Council we have Ho`ike and thanks to them a lot of the
people will be heard. That is an important part of making a decision, is getting to
hear what both sides have to say. With that, we will go to the speakers. Again, like
COUNCIL MEETING 41 FEBRUARY 27, 2013
the Chair said, I will keep the same rules. You have three (3) minutes, you have a
warning bell, and then you will be given an additional three (3) minutes. So, six (6)
minutes total and you will be asked to summarize at that point. With that Clerk,
could we have the first registered speaker, please.
There being no objections, the rules were suspended to take public testimony.
MEL WELLS III: Hello and as a haole, let me say aloha and
thank you for letting me speak to you today. I am member of the Kaua`i community
who had a chance to listen...
Mr. Rapozo: Excuse me, if you could just state your name
for the Captioner.
Mr. Wells: Mel Wells III.
Mr. Rapozo: Thank you.
Chair Furfaro: Excuse me, are we okay over there? Okay.
Thank you, Mel.
Mr. Wells: As a member of the Kaua`i community who
has had a chance to listen to community over two (2) years in regards to the
Humpback Whale Marine Sanctuary current Management Plan review, they are in
their fourth stage of their Management Plan review yet they continue to not to
listen to the wishes of the people of Kaua`i. Specifically, I have been to every
Sanctuary Council meeting on O`ahu and Maui over the past three (3) years. I can
answer some questions that you may have as I also have all of the documents from
those meetings and have actually read them. Some keynotes for to you to consider
in the Resolutions in front of you. A reference of over six thousand (6,000)
signatures Kaua`i in clear objection to expansion adding any additional species. At
• the time public comment closed, we submitted on October 14, 2010 fifty-two (52)
ballots, five thousand five hundred thirty-four (5,534) signed petitioners and six (6)
comments opposing expansion and opposing adding additional species. At that
point the Sanctuary Council said it was too early for them to say what they were
intending to do. They were just starting the Management Plan process. So, no need
for us to get alarmed. As we were just asking the public what they think the
Council should do. Well, years later and here we are with proposed/talked about
closures areas around Ni`ihau, adding all species including corals, now targeting
monk seals with a need to transrelocate to inhabited islands. Since the ban on
fishing in the Northwestern Hawaiian islands changed the feeding habits of shark
and other predators to focus on seal pups. So, NOAA is considering transrelocation.
All are bad ideas for fishermen. Families on Kaua`i who count on locally caught
fish, fish caught by friends and given to them to feed their families. That is what is
important to the people of Kaua`i. It is not important to the management of the
sanctuary. You know how many families are struggling these days? I heard about
that a lot earlier today. With the Food Bank's testimony and all of your concerns.
So, why does the Sanctuary not listen to the people? I am going to document some
statements.
Mr. Kagawa: That is your first three (3) minutes. You
have three (3) additional minutes
COUNCIL MEETING 42 FEBRUARY 27, 2013
Mr. Wells: Dated 10/29/10, Duke Aiona stated, "Neither
the Governor nor the Department of Land and Natural Resources has requested
NOAA to add new species to the Sanctuary or expand it." That was written by
Travis Taylor. A document from Governor Neil Abercrombie regarding fisheries
and fishing, he stated: one (1), he wanted science based presentation and
management of our aquatic resources to ensure that the people of Hawai`i can fish
for generations to come, two (2), he wanted to preserve and promote local
recreational and subsistence fishing, three (3) he wanted to preserve and protection
had Native Hawaiian fishing access and practices, four (4) he wanted community
indulgence in that management of aquatic sources, five (5) he wanted support for
fishing as an economic activity. So, with that I now tell you that this is an
E-mail...I have an E-mail from February 22. Malia does not know that I have, from
Dan (inaudible) and her, the Head of the Sanctuary. They were asked about the
issue of having two (2) categories of fishing listed in the Sanctuary. One (1) being
recreational and two (2) being commercial. The question was asked what about
subsistence fishing or customary exchange fishing for the people Hawai`i, for the
families on Kaua`i who count on locally caught fish, fish caught by friends and given
to them feed their families? You know how many families are struggling these
days? So, because the National Marine Fisheries service is considering adding this
for Hawai`i their response was, "Whatever Fisheries does or not relevant to the
interpretation of the Hawaiian Island Whale National Marine Sanctuary's Act."
They are leaning towards the sanctuary management...they are learning towards
catch and release practices in Hawaii. So, after the meeting, Malia states that the
Hawaiian people need to be taught catch and release. So, the Department of the
Navy's letter I have. They say they do not believe that the Sanctuary is proceeding
in concert with the law and characterizing the significant modification as
management plan update. They go on to state any change would require additional
legislation. So, last week at a meeting I was attending with Senator Ron Kouchi,
Representative Jimmy Tokioka, Dr. Carl Berg from KCC on Kaua`i and
representing Surf Riders, and there is a representative of Surf Rider here, and his
representation is different. Carl Berg said the Sanctuary should be abolished. The
whales have recovered. Current status under NOAA Humpback Whales and the
Green Sea Turtles are being considered for the listing. That was in the Resolution.
So, thank you for your time. Please pass the Resolution in front of you.
Mr. Kagawa: Thank you, Mel. Any questions for Mel?
Ms. Yukimura: Thank Y ou so much, Mr. Wells. You sat here
from the beginning in the morning until now and also your diligence in going to
every meeting and reading every document is impressive. One (1) of the main
concerns of those opposed to, I guess, expansion and adding other species is the lack
or the concern about availability of fish, is that correct for fishing?
Mr. Wells: I am not truly a fisherman. I am part of a
group of fishermen. It is a huge concern of theirs. So, that question would be better
asked to Dennis Taguchi or Greg Holzman, But fishing and the ability to fish is a
huge concern that I hear day in and day out and it is...if you look at their Act and
under their guidelines, they are not to supposed to make any rules or regulations
that affect fishing. Yet, I really feel strongly that they are headed that direction.
So, my concerns sometimes are not with what their personal agendas are today, but
after these laws are passed and the people that come into Office after them and
their agenda, what will that bring to us? That is what I do not trust.
Ms. Yukimura: Thank you very much.
COUNCIL MEETING 43 FEBRUARY 27, 2013
Mr. Hooser: Actually, I thought you were a fisherman, so
I was going to ask you fisherman questions. Do you work with the oceans? What is
your affinity with the subject matter?
Mr. Wells: I am a professional ocean user. I have sailed
Hawai`i from the mainland six (6) times and in the Trans-Pacific yacht race,
Operations Manager of Holo Charter, surf, paddle, I do fish, swim, beach-goer,
ocean user.
Mr. Hooser: So, in terms of how something would affect
you personally or professionally, how do you envision that? What is your concern?
Mr. Wells: My concern is for the people of Hawai`i to not
have the ability through the State of Hawai`i to manage their resources and we
have Federal Agencies managing our resources that do not live here, that do not
fish here, that d not go to the beach here, that do not work here. I work on the
ocean. I love the whales. My business, we see whales day in and day out. We go to
Ni`ihau and we swim with monk seals. I see turtles. I am surrounded by our
natural resources. We do not need the Federal Government to telling us how to
manage them.
Mr. Hooser: Do you believe the State is managing the
resources adequately now?
Mr. Wells: No. You ask Don Hicock, our Natural
Biologist, here on Kaua`i about the management of the Green Sea turtle the last
thirty (30) years and he can write a book on the disasters of that management. So,
not everybody does a good job. But it is...these resources have been with us for a
hundred thousand years, a million years, they are doing just fine. The whale
population has increased dramatically. We will be walking on them to Ni`ihau, in
five (5) years. There will be so many whales.
Mr. Hooser: Thank you, thank you very much.
Mr. Kagawa: Just to clarify, the subsistence fishermen
that is the fishermen that basically catches or can you explain that in detail? What
is your definition of"subsistence fishing?"
Mr. Wells: Subsistence fishing for the people of Kaua`i,
the local families. They go out, they fish, they take home what they can eat, they
give away to their neighbors what they have extra, if any, and they protect and
cherish our resources. NOAA has no definition of "subsistence fishing." It is not
going to be included in their Management Plan. So, there will be no provision for
local people if and when they change the rules, the laws, to allow the local people to
fish and feed themselves.
Mr. Kagawa: Well, because if I take your definition, that is
what most of the fishermen, I know, are in that category. So, I mean, I know you
have been kind of organizing with a lot of fishermen in attending a lot of these
meetings. You have practical have been to all of them. What is the percentage, do
you think, of boats or fishermen that are subsistence fishermen?
Mr. Wells: Subsistence fishermen on Kaua`i?
COUNCIL MEETING 44 FEBRUARY 27, 2013
Mr. Kagawa: Yes.
Mr. Wells: I would say ninety-five percent (95%). I saw
Libra pulling in and out of port years and year ago and they were catching akule,
selling them on O`ahu. I do not see anybody going to O`ahu. All the fish are caught
here and hopefully they stay here.
Mr. Hooser: Frankly, I am not as familiar as you are, I
am sure, and many people in the audience, how the sanctuaries work and what
their proposals are. I have been trying to come up to speed. But has the current
Humpback Whale Marine Sanctuary prohibited subsistence fishing?
Mr. Wells: No, they have not.
Mr. Hooser: You mentioned it is not going to be in the
draft plan, but I thought the draft plan would not be out for another year or so?
Mr. Wells: Correct. They are in stage four (4) of a five
(5) year plan and they can correct me if I misspeak. What we keep hearing is
vagueness from them. So, they cannot and they have not from the beginning told us
exactly what they are planning to do. So, the local people and they cannot stay in
tune with this and in touch with it. I go to three (3) or four (4) either meetings or
E-mail webinars for a week and it is been ongoing for three (3) or four (4) years and
we keep being bombarded, you know? Now it is the monk seals and now it is the
coral species. NOAA just keeps attacking the State of Hawai`i.
Mr. Hooser: Believe me, I understand there are a lot of
people in the ocean community that are very concerned and I understand that. The
plan is not out yet, so it is difficult to say what is going to be the plan and what is
not going to be the plan definitively.
Mr. Wells: Correct.
Mr. Hooser: I know you have your opinions and clearly
very strong and have been involved in the issue for a long time. But the plan is not
out yet.
Mr. Wells: Right. I would just like the NOAA Officials
to know that we oppose expansion and we oppose additional species. Take us into
consideration, please and people of Kaua`i.
Mr. Hooser: Thank you.
Ms. Yukimura: You oppose expansion because you believe
that will adversely affect local fishing in the area? Is that basically the concern?
Mr. Wells: Local fishing...I mean now the coral species
are on the agenda. If they deem a species of coral that is endangered, you walk on
the reef, now you are subject to a federal fine.
Ms. Yukimura: So you are talking about reef walking in
relationship to fishing?
COUNCIL MEETING 45 FEBRUARY 27, 2013
Mr. Wells: It has everything to do at every beach on
Kaua`i. I feel that with local government, local management, State of Hawai`i
management we would be better off than having Federal legislation guiding us from
Washington, D.C...
Ms. Yukimura: You know, I understand your concerns about
Federal management of resources because I personally have been involved or at
least aware of fish and wildlife's work, if you will, protecting endangered species as
it affects taro farmers. I am really concerned with that, too. But I just want to
make sure that we are not just making assumptions which may not be true because
I do not think, for example, swimming at beaches will be affected. Will it?
Mr. Wells: I would certainly hope not. But their
vagueness...
Ms. Yukimura: Yes. So I think that is kind of a bogeyman.
So, let us get concrete because there are some genuine concerns, I think. I think we
want to understand what those are.
Mr. Wells: Alright. So, I would state that the Whale
Sanctuary by name would be to protect Humpback Whales. Humpback Whales
have recovered. If they need to be called a different Agency or be combined with
different agencies and if NOAA needs to re-look at their laws and agency
classification and give them the credentials to govern in the correct areas, I whole
heartedly agree. But NOAA Offices are huge and they have Divisions in separated
buildings that are trying to do the same things. It would be great if NOAA's
g Y g g g
Fisheries would take over protecting everything under the Endangered Species Act.
Chair Furfaro: On that note. I have to interrupt. You are
given six (6) minutes to testify. Members, you can ask for questions. But the
response is only to your question and not additional time is given. Those are our
rules. So, I just wanted to make sure we are square.
Mr. Wells: I appreciate you letting me speak for my six
(6) minutes.
Chair Furfaro: Mr. Kagawa, you have the floor.
Mr. Kagawa: Any more questions. If not, next registers
speaker.
Mr. Wells: Thank you very much.
Mr. Sato: The next registered speaker is Charles
Perriera, followed by Dennis Eguichi.
Mr. Kagawa: Good to see you Mr. Charles. How are you?
Please state your name and you may begin.
CHARLES PEREIRA: For the record I am Charles Blake Pereira.
That seal they have been talking about for years, I had a brother-in-law who could
tell you stories until 1977 or '73. I think it was the first time I saw that seal down
in Anahola. So, I said well this is a true thing and I have been fishing from when I
was a young boy, seven (7) years old and I am eighty-three (83). Before that time I
COUNCIL MEETING 46 FEBRUARY 27, 2013
did not see seals around and my dad did a lot of fishing too but he did not come
home and said that he had seen a seal. But that seal is a pest because I am a throw
net man. I mess around with the gill-net. But my friends said that the net and the
seal have been there to take that fish off that net and you would be surprised even
in lobster season, boy he ate that thing like he eating cracked seed, you know? He
just chewed that lobster up. It was unbelievable, you know? I heard about this
fishing. Well, you know, I know some families, fifteen (15) in a family and that is
their thing to bring home fish for the family to support the families, fifteen (15) of
the. But I remember I worked at Coco Palms and anything that they brought to
Hawai`i, they brought the tilapia. Do you see any water lilies in Coco Palms? They
ate them up. But I do not know if they have a study before they brought them here.
But things like that are happening. As far as the whale, I remember way back in
World War II, back in the `40s, there was a ship that came to Kaua`i, Nawiliwili and
they were slaughtering the whales. I even had a tooth from one (1) of the whales
and I do not know what happened to it after all of those years. But anyway I just
wanted to...when it said something about fishing, that is why I am here. I want to
hear what is going on. But we have been talking about the same thing over and
over. Some of the fishing meetings some of the people that want to come to it
because nothing has come out of it. Aloha.
Mr. Kagawa: Any questions for Mr. Pereira?
Chair Furfaro: Good to see you Uncle Charlie.
Mr. Pereira: Thank you.
Mr. Kagawa: Next speaker, please.
Mr. Sato: Next speaker is Dennis Eguichi followed by
Jean Huggins.
Mr. Kagawa: Aloha, Dennis, you win the award for coming
the farthest today, all the way from Kekaha.
DENNIS EGUICHI: Mahalo. Thank you. My name
Dennis, last name is Eguichi. I live on the West Side where practicing of getting
resources and sharing with our neighborhood is prevalent than, I guess the East
Side, except for maybe the North Shore. My primary concern is because I do not
want to see a duplication of what we already have with the State and then Federal
Government trying to duplicate what the State is already there for. I would like to
see maybe that the FEDs help support them with funding instead. I would like to
be able to pass on to my kids, which are already done, but my grandkids even, the
practice of being able to be self-sufficient and that is partly by going to the ocean
and get something of the resources. I would like to see this continue only because,
like I said, it is part of our lifestyle here and I am is not sure if NOAA understands
that it is. I would like also to see maybe NOAA concentrate more on helping the
State with propagation or propagating species rather than trying to conserve
everything which eventually means that we get restricted from. Thank you.
Mr. Kagawa: Thank you, Dennis. Any questions?
Councilmember Yukimura.
Ms. Yukimura: Hi, Dennis, thank you for being here. I think
we all share with you the idea of wanting to pass on to our kids what gives us joy,
COUNCIL MEETING 47 FEBRUARY 27, 2013
doing things on the island. I just wanted to be clear how you think this Sanctuary
would interfere with that, interfere with your passing on to your kids the ability to
be self-sufficient?
Mr. Eguichi: Well, the fact that the Sanctuary exists now
in a certain area does not hamper our getting to the resources right now. So, if that
is the case and the Sanctuary's main purpose was the whales and now of course
they are trying to include the other species, but if that was the case, then why do we
need to expand the Sanctuary if the Sanctuary has actually been there? Nobody
kills whales in Hawai`i. Maybe they should put a Sanctuary someplace else they do
get killed. I do not know. First of all, I do not know why they have a sanctuary
here because nobody kills whales. As far as maybe later on, like I think Mel
mentioned that the Administration here now, if they open the doors, we do not
know what will come next through the door. I think that is what our greatest fear
is.
Ms. Yukimura: Two (2) out of three (3) speakers so far have
said that you want the management to be in the State hands. But we have a letter
from William Aila of DLNR saying it is in the State's hand because it is jointly done
by the State and NOAA. Mr. Aila's letter states that no management actions can
occur in State waters without the approval of the Governor and no fishing
regulations shall take effect in State waters unless established by our Board of
Land and Natural Resources. So, it seems like there is a safeguard already and
actually I was glad to hear that because in some other cases with some other
endangered species, you do not have that kind of State participation and power, you
know? Like with the Shearwaters, it is just an issue between us and the Federal
Government. But in this case, looks like there is actually a check, if you will,
through the State.
Mr. Eguichi: Well„ we have had meetings with Mr. Aila,
and also with Governor Abercrombie and basically what I think they are looking at
is trying to figure out what...well, I am not sure if NOAA has actually told the
Governor exactly what the entire plan is.
Ms. Yukimura: I do not think nobody yet has the draft plan.
YY p
Mr. Eguichi: So, until we actually get to that stage, we
cannot say anything about what the State's role is. At this point, I honestly think,
because I do not see any State Representatives here. Just NOAA and the general
public again. The State is not here to reassure us that these things will be carried
out through, that our resources we will be able to get access to the resources. This
has been kind of true in most of the meetings that we go to. If we go to some
meetings we only have the State, but it would be nice to be collectively there and
reassure everybody this is how it is going to be.
Ms. Yukimura: Perhaps we as a Council body can request
that the State come and be in conversation with us. Maybe that would be helpful.
Oh, there is somebody from the State too. Finally, I think everybody actually
shares the goal that we increase our fisheries or we increase the amount of fish in
the ocean. I just saw a videotape last night that said ninety percent (90%) of the
large fish are gone worldwide which is really big statistic, kind of a scary one. If we
go back to the old ancient Hawaiian system of ensuring there was fish and in those
times they could not go to a refrigerator and they did not get anything from
off-island. You either have to survive self-sufficiently on the island or you died.
COUNCIL MEETING 48 FEBRUARY 27, 2013
You perished. They had that konohiki or kapu system where certain plays were
out-of-bounds, so that the keiki fish could thrive until they p rocreate to create more
fish. Is that something that the fishermen would support to support the fisheries?
Mr. Eguichi: There are programs right now under West
Pack. I think they have a pilot program down in Hanalei right now.
Ms. Yukimura: I do not know if it is under West Pack, but
there is some talk and maybe people can come educate us who are still in the...
Mr. Eguichi: Rhoda Libre on the West side has been
trying to see if she could get the Watershed Council going. That would take care of
the mountain to the ocean. But there are so many different program going on, not
collectively bringing it together and that seems to be the problem right now.
Ms. Yukimura: That is true. It is sort of overwhelming to
the average citizen.
Mr. Eguichi: I would like honestly, to see more money
spent on propagation rather than conservation.
Ms. Yukimura: Well, sometimes they are related. But I see
your point that it needs to be really focused on more fish basically, producing more
fish. Thank you very much.
Mr. Hooser: So, you have been fishing your whole life, I
assume.
Mr. Eguichi: Pretty much.
Mr. Hooser: I think all of us are concerned about
preserving and perpetuating more ocean resources. How would you say the amount
of fish in the ocean today that you fish for, how does it relate to say twenty (20)
years ago?
Mr. Eguichi: I am fortunately dabbled in a lot of different
fisheries es fr om pelagic, tunas, to deep sea fish and now to shallow water fish. The
pelagic stuff definitely the size have been going down and I think that is because
some of the fish is being elsewhere, the bulk of them because of persainers and
things like that. But the normal reef fish the kind of things that I do in the shallow
waters, if it was not for the ta'ape that was brought in that turned out to be an
invasive species, I think we would honestly have a whole lot more fish because I
used to do a lot of diving and I started in the deep and to the shallow and you could
see the progression. Places where, example menpachi used to flourish. Eventually
just more and more ta'ape and then now no menpachi. So, there is a lot of fish out
there. It is just that the species that are out there are not the choice that people
want to eat, that seem to be the number one (1) problem. Also fishing has a cycle
and it is like a five (5) to seven (7) year cycle when there is abundance of certain
species and because I guess for the propagation of that particular species everything
seems to fall in place. So, you just have a whole lot more. An example akule some
years back, maybe four (4) years back, people were saying we really have to look the
akule fishery because we do not have too much akule. Well then that phase past
and now we just have a whole bunch of akule again. So, it kind of goes through a
cycle and it is hard to say at the particular time what the fishery really look like
Y Y p Y Y
COUNCIL MEETING 49 FEBRUARY 27, 2013
other than there is tons of to ape out there, I mean tons of them. It is just that
nobody wants to ape.
Mr. Hooser: Also you concerned about the State not being
as involved. If the State...if we were assured or you were assured that this
Management Plan would not...nothing in this plan would not happen without
State's support, would that make you feel more comfortable about it?
Mr. Eguichi: It would definitely help. But unfortunately
you all know and I know that it all depends on how much money comes along with
the program for the State.
Mr. Hooser: Right. Thank you.
Mr. Eguichi: Just to be honest.
Ms. Nakamura: Thank you, Dennis, for coming all of this way
and testifying. Because fishing is part of your lifestyle, you grew up fishing and you
are teaching the next generation. How have monk seals impacted your fishing?
Mr. Eguichi: There seem to be a couple of monk seals in
the area that I fish. I have heard complaints of fishermen actually going there and
it happened to me also about two (2) week ago. I am out fishing and I drop my line
down and I hook some fish, as I bring it up here comes the monk seal stealing all
my fish. Since the monk seal is there all I end up doing is moving to somewhere
else and trying to fish. Basically, what it does is just kills a little bit more time for
me. Unfortunately, fishing is everything about time. When the fish is biting, there
is only a short period of time when it bites and if you lose that, then you do not
Y p Y
Y
catch too much fish. So, unfortunately that particular day I did not catch as much.
I co-exist with the seal with no problems. I just learned to move away from them.
Unfortunately, the monk seal learned that there is free food around when there is a
fishing vessel there and they can steal their fish. So, they are getting educated.
There is a program that I know about that we can call in and tell them hey, we are
having trouble with a monk seal here. I am not sure at this time if there is enough
staff where they can send someone out to relocate the seal.y ea . So, most of us have been
just moving instead and just telling each other, hey, be careful because there is a
seal in the area?
Ms. Nakamura: Has it always been a problem when you were
growing up and fishing with your father or grandfather?
Mr. Eguichi: No. When I actually started as a youngster
fishing I used to follow guys that used to through nets instead. Basically we would
go to the Na Pali coast and I remember seeing a seal there once or twice when I was
really young. I would see some of them off of Ni`ihau. It is just that I see more
seals now. I think we can co-exist with the seals. It is just that up to what point
when we have too many seals?
Ms. Nakamura: Are you saying that sort of the current level
of seal presence and activity works okay with people who are doing subsistence
fishing?
Mr. Eguichi: Well, unfortunately, the seals do not just
stay at one particular place. They move, you know? So, maybe we might have more
COUNCIL MEETING 50 FEBRUARY 27, 2013
seals next year than we had this year or maybe we might be lucky and have less
and they all go to the Big Island instead or O`ahu.
Ms. Nakamura: Thank you very much.
Mr. Rapozo: Councilmember Rapozo
Mr. Kagawa: I apologize I had to step out, but if you
covered this than I apologize. What is the typical drill as a fishermen or beach user
when a seal shows up on the beach, typically what happens?
Mr. Eguichi: To be honest with you on the beach I am not
sure. I guess the people from NOAA can tell you that because I spend most of my
time on the ocean instead, on the water. So, on the beach I am not sure. But I have
seen where seals come up and they go and tape off the area which I like to see
because it keeps people away. But then in a sense it kind of trains the seal to let
them know they pull up here and it is their beach now. Sometimes I kind of wonder
maybe if they were deterred, like example, maybe if they started to pull up at Po`ipu
maybe not just one (1) or two (2) but ten (10) pull up. That means basically you will
not have the tourist industry there using the beach. So, sometimes I wonder by
just, like I said, taping off the area is a wise decision because it kind of trains the
seal to let them know, every place I pull up, I own this place.
Mr. Rapozo: Well, I have received complaints and I agree
that obviously wherever that seal goes we need to protect the area. But I have
heard complaints that area is growing. That they roped off area can extend for the
whole length of the beach and that, I think, is a concern of many beach-goers. Not
so much fisherman but beaches like Baby Beach in Kapa'a where they call it Baby
Beach because parents can bring the little ones because it is shallow, it is protected,
and it is safe. But when a seal comes up they are basically kicked off the beach.
That is a concern to me. That is the question really is what is the acceptable
protection zone of the seal and I do not want to see it get any bigger.
Mr. Eguichi: Like I said, I honestly do not know and it
really does not really affect me that much because I spend more time on the ocean
than on the shore.
Mr. Rapozo: Thank you.
Mr. Kagawa: Just one (1) final question. Now I know that
when I brought up the Resolution I got a lot of E-mails coming and telling me the
same thing as I am hearing here from the State Agencies as far as oh, we have
nothing proposed for another year or something, we are not doing anything. But in
fact I have heard that there they are actually negotiating with the Robinsons about
possibly doing a Sanctuary. Is that the same kind of stuff that you have been
p Y g Y Y
hearin g That they have these talks? So, there are plan for them to expand the
Sanctuary?
Mr. Eguichi: Well, I honestly cannot sa y, because the
meetings that we have gone to we meet with NOAA fisheries, NOAA. The
Robinsons, I guess, have their own meeting later. So, I do not know what
transpires.
COUNCIL MEETING 51 FEBRUARY 27, 2013
Mr. Kagawa: Does it make sense that the whale
population has gone up doing very well? I used to fish before too, a lot and I
remember hardly seeing whales. Now when you go out there, there is nothing but
whales out there, Humpback Whales. So, my question to you, does it make sense to
create a Sanctuary when they are doing well populations wise?
Mr. Eguichi: We already have a Sanctuary. I cannot see
an expansion to the Sanctuary if the population has increased that much.
Mr. Kagawa: Thank you.
Chair Furfaro: just wanted to get us all clear on the
Resolution and we do have testimony from Mr. Aila here. At this point, I want to
make clear that the Resolution introduced by Councilmember Kagawa, in all
fairness is the Council taking a policy statement. Now the policy statement is one
(1) where the vehicle is provided for us to give testimony to the FEDs and the State
between the two (2) of them, they have a compact agreement on management and it
looks like it is going to go on until spring of next year. So, this is a vehicle for us to
give some testimony and I really appreciate what I am hearing from you because I,
too, come from a fishing family. You know, it is all family and I remember being out
on the ocean all night with grandpa and the fact of the matter we rarely saw seals
then. We rarely see seals and of course, o'io fishing we are dropping hauna down
there so that we can cultivate our place. We all know those terms. But the fact of
the matter is that I want to make sure that we are really clear. This does not pass a
law or an Ordinance. This just says our position is a policy statement that we feel it
is worth working on and the kind of comments that you have shared with us is
excellent feedback that we can send in with the Resolution regardless of where it
goes. But I wanted to make sure that the audience understands that. Thank Y ou
for the time, Mr. Kagawa.
Mr. Kagawa: Thank you, Dennis.
Mr. Eguichi: Can I make one (1) more statement?
Mr. Kagawa: Go ahead.
Mr. Eguichi: I would like to thank you all and you have to
remember that you guys represent Kaua`i basically. So, by just doing this I am
quite sure that residents of Kaua`i will appreciate this. Thank you.
Mr. Kagawa: Thank you, Dennis. That is exactly why I
put it on the agenda, to hear the tough decisions out there that we have. Next
registered speaker.
Mr. Sato: We have Jean Higgins representing NOAA,
National Marines Fishery Service Protected Resources Division, followed by Greg
Holzman.
JEAN HIGGINS: My name is Jean Higgins and work with the
National Marine Fisheries Service Protected Resources Division at the Pacific
Islands Regional Office. I work with Kaua`i's communities to answer questions
about the Endangered Species Act and Marine Mammal Protection Act. I am
actually not here to provide testimony today. I actually just wanted to come today
to provide responses to questions that you might have.
r z„ Ord wi.,fm
COUNCIL MEETING 52 FEBRUARY 27, 2013
Mr. Kagawa: Thank you with that. Chair Furfaro, go
ahead.
Chair Furfaro: I just want to take advantage of you being
here to share with you this discussion which is extremely important for us to have a
foundation and an understanding so it turns into a win-win situation. It is really
important for me, that it turns into a win-win. For example, I know through my
membership in the hotel association the boundaries for monk seals are actually
shrinking in the direction. They are not expanding. They are shrinking on what
they can call on for their reservation or their preferred space. They get a smaller
room.
Ms. Higgins: That is correct.
Chair Furfaro: The other part and this is a dilemma for me
in particular and as you know now, I told you that I come from a fishing family as
well. You know we are going through the endangered species, dealing with the
Newell Shearwater. We have been working on it for six (6) years here. The State
and the Federal people in my opinion, they are not clear what the rules are. So, we
have a tougher way to comply because the rules are constantly in motion and the
message I want to ask you to take back is the fact that this is what I think I am
hearing from Kaua`i people right now. This expansion, they are not sure of what
the final rules will be. How do they comply with their concerns and are you folks on
target to come up with your recommendations by spring of next year? Is it real? Is
that a real date to grasp?
Ms. Higgins: I do want to clarify something. I actually do
not work with the Sanctuary's program. I work with the Protected Resources
Division of National Marine Fisheries Service.
Chair Furfaro: But you are connected in this discussion, are
you not?
Ms. Higgins: We actually are not working on those
regulations now.
Chair Furfaro: Oh, how interesting.
Ms. Higgins: There are separate branches of NOAA and
we actually do have people here in the rooms to answer those types of questions.
So, I will let them answer those questions.
Chair Furfaro: Well, so that I know who they are could, they
raise their hand. There is a troop of them. Very good.
Ms. Higgins: Yes, Malia Chow will actually be testifying
later and so will Jean Souza.
Chair Furfaro: So, at this pointed Mr. Kagawa, I will give
you back to you and people are now hearing that I want to come out with a win-win
situation.
Mr. Kagawa: Any more questions for Jean?
Councilmember Yukimura.
COUNCIL MEETING 53 FEBRUARY 27, 2013
Ms. Yukimura: What is your last name, I am sorry?
Ms. Higgins: Higgins.
Ms. Yukimura: Higgins?
Ms. Higgins: Yes. I will provide business cards to the
Clerk.
Ms. Yukimura: Thank you very much for being here.
Ms. Higgins: Sure.
Ms. Yukimura: So, you are with the National Marine
Fisheries Protective Species Division?
Ms. Higgins: That is correct.
Ms Yukimura: And so you deal with endangered species
that are marine species?
Ms. Higgins: That is correct.
Ms. Yukimura: So, not Shearwater?
Ms. Higgins: No, not Shearwaters, no. That is under Fish
and Wildlife Services jurisdiction.
Ms. Yukimura: It is true like Mr. Eguichi said, sometimes
there are so many agencies and individuals that it is hard for members of the public
to understand who is who.
Ms. Higgins: Absolutely. There are a lot of different
branches to look at and really understand how the Divisions work and where the
authority lies.
Ms. Yukimura: What is the main habitat for the Hawaiian
monk seal?
Ms. Higgins: The range of the Hawaiian monk seal is the
entire Hawaiian archipelago and Johnston Atoll.
Chair Furfaro: Could you yield the floor to me for a
housekeeping item real quick?
Ms. Yukimura: Sure.
Chair Furfaro: Mr. Kagawa, we have students coming from
Waimea High School to participate in this hearing. I think there is maybe twenty
(20) of them. So, when they do come in can we in fact, maybe hold the questions
while they get settled in the room? Thank you very much.
Ms. Yukimura: Yes, that makes sense. But we will continue
until they come in.
COUNCIL MEETING 54 FEBRUARY 27, 2013
Chair Furfaro: Of course.
Ms. Yukimura: Thank you.
Mr. Kagawa: Proceed.
Ms. Yukimura: So, you were saying that it is the entire
Hawaiian archipelago.
Ms. Higgins: And Johnston Atoll is included in the range
or the Hawaiian Monk Seal.
Ms. Yukimura: And the Johnston Atoll. And you have
determined that based on their range of travel and feeding and so forth?
Ms. Higgins: That is correct. Yes, it is based on our citing
data, our historic data from Hawaiian Monk Seal citing. So, the range is
considered that.
Ms. Yukimura: Your historic data shows that the monk seal
existed in ancient times or is that relatively new?
Ms. Higgins: We do have sightings in the main Hawaiian
Islands actually going back to...in the written record, occasionally in the main
Hawaiian Islands. There is some fossil evidence of bone being found on the islands
of Hawai`i as well for monk seals. But they are rare in the mainland Hawaiian
Islands.
Ms. Yukimura: So, they were probably further north? Is
that what...
Ms. Higgins: It is considered that the majority of the
population was probably in the Northwestern Hawaiian Islands during early
settlement periods of times?
Mr. Kagawa: We will take a short break. I want to
welcome the Waimea High School students. We are taking a short break while you
get in. I just want to tell you that I am a proud Waimea graduate. If you cut my
skin, I will bleed blue.
Ms. Yukimura: So, is there a draft Endangered Species Act?
Ms. Higgins: The Endangered Species Act, no. There is
not a draft out right now. It is actually one (1) of our laws under the Federal
Government. Are you referring to a different document perhaps?
Ms. Yukimura: I think...maybe the Resolution refers to it.
Oh, yes, on page 2 of the Resolution it talks about a draft...it is a draft Endangered
Species Act report dated September 2010.
Ms. Higgins: That is the 4(b) 2report that you are
referring to that is in Resolution?
Ms. Yukimura: Yes, Section 4(b)2.
COUNCIL MEETING 55 FEBRUARY 27, 2013
Ms. Higgins: That is correct. That is part of our...one (1)
of the supplemental document for our proposed rule for critical habitat for Hawaiian
Monk Seals.
Ms. Yukimura: So, that report recommends establishing a
marine and terrestrial critical habitat for monk seals in the main Hawaiian islands.
Ms. Higgins: That report does. The boundaries that are
actually reported in the Resolution are incorrect?
Ms. Yukimura: They are not correct?
Ms. Higgins: No, they are not correct.
Ms. Yukimura: What are the correct boundaries per the
report, I guess? It is in the report?
Ms. Higgins: Yes, they are actually in the report. The
correct boundaries are actually five (5) meters inland from the shoreline in the main
Hawaiian islands out to a depth of five hundred (500) meters.
Ms. Yukimura: So, to include all beach areas up to five (5)
meters onshore?
Ms. Higgins: Yes.
Ms. Yukimura: And offshore, to five hundred (500) meter
water depth.
Ms. Higgins: That is correct. Some of the language that is
reported in the Resolution kind of confuses our boundary designation between the
Northwestern Hawaiian Islands and main Hawaiian islands by all the additional
language about the sand spits and fall areas being covered. So, it is just a nuance
there which I am more than happy to provide the correct boundary information, if
you would like.
Ms. Yukimura: That would be helpful. Thank you. Then
this report documents why the recommendation is being made?
Ms. Higgins: The 4(b)2 report is actually just one (1) part
of a proposed rule. It actually only looks at the impacts of the designation of critical
habitat. There are three (3) supplemental reports to the proposed rule. There is
one (1) that has the biological report. It is a draft report that actually looks at
biological needs the species, that gives you information on how boundaries were
determined for critical habitat. There is an economic report associated with it
where we look at the economic impacts of the designation and the 4(b)2 report
actually looks at weighing those impacts of the designation against the benefits of
the designation for the Hawaiian Monk Seal. So, that 4(b)2 report is that weighing
process one (1). The proposed rule actually puts the three (3) documents together.
Ms. Yukimura: And did you do a study on the impacts to the
people and lifestyle of the area that is being proposed for designation?
COUNCIL MEETING 56 FEBRUARY 27, 2013
Ms. Higgins: One (1) of the important things about critical
habitat is that it implements a consultation process that is specific to Federal
Government actions. So, it actually only work under Section 7 of the Endangered
Species Act. It has do with acts carried out by Federal Government, that are funded
by the Federal Government or permanent by the Federal Government. The
everyday activities that you are referring to do not have the federal nexus, so to
speak. It does not have Federal permitting associated or Federal funding associate
with it. So, it is not subject to any type of critical habitat consultation process. We
do not actually consider those to be impacted by the designation.
Ms. Yukimura: But there is a real concern that people will
be impacted from cultural practices to fishing to so forth. So, there is no process of
consultation?
Ms. Higgins: We actually have gone through the proposed
rule stage. We have had two (2) public comment periods associated with the
proposed rule stage. We are actually in the process of reviewing those public
comments that we received. We had public hearings on all of the main Hawaiian
islands, six (6) different public hearings throughout the main Hawaiian islands to
listen to public testimony on this particular issue. So, we do get those in particular
we get all of those concerns and information. What I am trying to really back to
you, I guess, is that those particular actions that you were referring to do not
actually have that Federal nexus. So, the critical habitat designation does not
prevent people from going and using the beaches or from doing subsistence fishing
because they do not have those Federal permitting associate with the activities.
While these boundaries are drawn on the map it is to identify to Federal Agencies
where they need to be taking into consideration what actions that they are doing so
they come to us and consult and make sure whatever they are doing is not going to
hurt the habitat to the point that monk seals cannot use it in the future.
Ms. Yukimura: So, you are giving us a whole different take
or framing of the habitat boundaries...saying that the main purpose is to pull all
the Federal Agencies that do work in that area and make sure that their actions are
not harming the endangered species.
Ms. Higgins: The habitat, specifically, actually because
they are already held to a standard of making sure that the Federal actions are not
harming the species. So, critical habitat is specific to habitat. It is the second layer
to that same consultation process that they are already having to do throughout the
main Hawaiian islands. This second layer is combined into the consultation process
so anybody going through Section 7 now, likely if this rule would become final then
h have do that second step to the consultation. I f they av e no Section 7
consultation goes on now we are not going to see any impacts to those activities in
the future either.
Ms. Yukimura: Okay.
Y
Ms. Higgins: For that designation.
Ms. Yukimura: So, let me try and translates because it
sounds technical language.
Ms. Higgins: It is technical.
COUNCIL MEETING 57 FEBRUARY 27, 2013
Ms. Yukimura: What I am beginning to understand and you
may have to help me here, if I am not understanding correctly, is by drawing
the...what is called, the critical habitat boundaries that does not give you the power
to regulate human activity within that area?
Ms. Higgins: That is correct. We do not actually have any
addition authority over those areas. Instead, what we do is we ensure within those
boundaries that Federal Agencies that are moving forward with projects consult
with us. So, it is really about responsible Federal planning as they move forward
with actions and making sure that they take the extra step to look at the habitat as
well not just whether or not monk seals are there every single day.
Ms. Yukimura: Okay. So, it is actually a control on Federal
Agencies.
Ms. Higgins: That is correct.
Ms. Yukimura: And it forces them when they are doing
anything within the area, say Sea Grant, which is federally funded, does an
experiment or something in the ocean. Then they have to consult with you if that
area that they are doing the experiment in is part of the critical habitat designation,
is that correct?
Ms. Higgins: That is a general description of it. There are
some additional technicalities in the sense that basically when they are moving
forward with an action they need to determine whether or not that action could
affect monk seal and whether or not it could affect critical habitat? Whatever action
they are doing actually is not going to cause any impacts then they do not have to go
through the consultation process. It is just that extra layer just to make sure that
you stopped and considered this through your process.
Ms. Yukimura: It is like an EA and EIS.
Ms. Higgins: Exactly.
Ms. Yukimura: You do a threshold check and then if it does
show you have impacts then you have to do a more intense consultation.
Ms. Higgins: Exactly, yes.
Ms. Yukimura: Where does the rules, like about roping off a
sleeping monk seal on the beach come from?
Ms. Higgins: The seal protection zones, that were referred
to and things like that. We actually have a lot of volunteers who actually will go on
the beaches and put those up. They are actually kind of an education tool and
outreach tool to really let people know that this is an endangered species, that it
needs its rest, that people need to not be so close to it, that they could be disturbing
the seal, but also to keep and make sure that people understand that it is a wild
animal. You do not want to approach it that closely, too. It is really about an
education tool for the public. There are not specific boundaries associated with
those.
COUNCIL MEETING 58 FEBRUARY 27, 2013
Ms. Yukimura: You are saying basically that designating
this area as a critical habitat does not give the Federal Government or any other
layer of government the power to promulgate regulations about fishing or boating,
or anything like that?
Ms. Higgins: It does not give them any authority that they
already do not have, no. So, I mean our Fishery Management Division already has
that authority to make regulations for fisheries. They already have that authority,
critical habitat does not change that authority. It does ask them to consider when
they make regulations for fishing if it impacts monk seals and their habitat. But it
does not change their authority.
Ms. Yukimura: Does the critical habitat designation trigger
the possibility of regulations?
Ms. Higgins: From our analysis so far with the impacts
what we are talking about with Federal nexus, we are talking about fisheries and
talking about commercial fisheries that fall under the Federally managed programs.
With monk seals we see an overlap a little bit with the bottom fish fisheries. So,
they will be consulting with us. But they have been consulting with us already for
years now regarding their impacts to monk seals. One (1) of the tricky things about
critical habitat you have to go and identify within the critical habitat what the
essential features. Essential features for monk seals is having fish available for
foraging. One (1) of the things that we already do under the Endangered Species
Act to protect monk seals for jeopardy is to make sure that they have fish to feed on
too. So, strangely enough the overlap already exists so the consultation has already
taken into consideration. Those impacts that the fishery had on monk seals and we
have not gotten to the point that we actually see the overlap is that great that there
would have to be additional regulation. So, through our analyses what we have
seen so far, is it is a minimal impact that the fisheries are having on monk seals.
So, we really do not think there will be any regulation changes to the fisheries.
Ms. Yukimura: You only have the power to regulate
commercial fisheries, so it is not subsistence fishing?
Ms. Higgins: No.
Ms. Yukimura: How do you define "commercial fisheries?"
Ms. Higgins: The commercial fisheries is actually federal
managed commercial fisheries that fall under that.
Ms. Yukimura: And there is a definition that tells you
whether you are in or out?
Ms. Higgins: Yes. For our Federally managed fisheries,
yes. The three (3) mile zone is where we actually stop.
Ms. Yukimura: But it is not fishermen like Mr. Eguichi.
Ms. Higgins: Subsistence fishing is not federally regulated
under our Federal regulations right now.
COUNCIL MEETING 59 FEBRUARY 27, 2013
Ms. Yukimura: So, you do not have the power to determine
that?
Ms. Higgins: The critical habitat is not going to change
the subsistence fishing. There were concerns raised by fishermen about grant
funding for some of these programs that have to do with fisheries and things like
that. One (1) of the thing that I try to explain to people to get across the
information is a lot of grant programs that are in place to funding fisheries have to
do with giving information and when we are looking at consultations through the
Section 7 consultation process, we are looking at that particular action itself. If the
action is getting information that information is not going impact monk seals. It is
not going to impact monk seal critical habitat. So, that is not likely to cause a
change in the consultation process.
Ms. Yukimura: And would there be an overlap? Would there
be an overlap or a common purpose to increase fish...the amount of fish in an area
between the monk seal critical habitat, people or agencies, and our subsistence
fishermen?
Ms. Higgins: The common goal to have that? Absolutely.
I mean we all want to see our resources in a good and sustainable place so that
everyone can co-exist and use them.
Ms. Yukimura: Thank you.
Mr. Kagawa: Thank you. I have an announcement. We
have three (3) more registered speaker and this is last call for anymore. I am
hoping that we can kind of get by these questions and do not take too long on it.
But we will see. Councilmember Rapozo, go ahead.
Mr. Rapozo: Thank you for being here. So, you work out
of the Honolulu?
Ms. Higgins: Yes, I do.
Mr. Rapozo: And the 4(b)2 report that you talked about,
the five (5) meters versus the fifteen 15 , was that dated September 2010?
O ( ) p
Ms. Higgins: Yes, I believe so. Yes.
Mr. Rapozo: So, we have got a different report or is it the
same one (1)? Unless there was another one (1). Unless..maybe it was a later draft.
I am not sure.
Ms. Higgins: Are you referring to the five (5) meters?
Mr. Rapozo: Yes.
Ms. Higgins: I am sorry. Five (5) meters is what was in
our proposed...
Mr. Rapozo: In September of 2010?
COUNCIL MEETING 60 FEBRUARY 27, 2013
Ms. Higgins: That is what should be in the report. I am
not sure why you would have fifteen (15) meters in that report.
Mr. Rapozo: That is fine. The other question and it is a
follow-up. This project zone you are saying there is no defined protective zone?
Ms. Higgins: The seal protection zone is actually an
education tool for the public. So, generally speaking we are encouraging our
volunteers to reduce that amount of seal protection zone around the seal. But to
make sure that that message gets across to people that for everyone's safety that
there needs to be that space and distance.
Mr. Rapozo: So, there is no defined distance? It is up to
the volunteer if they want to block off the whole beach because it is happening and
that is why I am bring it up.
Ms. Higgins: I think the case that you are talking about
actually has already been addressed locally. We do actually have some times that
people get a little zealous in trying to protect seals. But just as well that they
get...when these types of things happen we try to address them as quick as possible.
So, we do actually talk to our volunteers when those types of things happen. It is
good to hear back from the public when those types of things are going on. But at
the same time we are trying to work with them as a whole to keep these areas
Y g p
pretty small.
Mr. Rapozo: So, what is reasonable? Why would they not
put a reasonable amount? Why would they not use a standard amount because I
think that is causing a lot of problem and some animosity between beach users and
seals because they show up? They are not blaming...
Ms. Higgins: There are different circumstances that you
would actually increase the boundaries for and that we would probably encourage
them to increase the boundaries for. That has to do with how many seals are
present, whether is it a mom and pop pair present at the site. It really is a cite
specific thing. How much beach is available to use so that we can make sure that
the seal has room and the people have room. It is better actually for us to not set a
specific boundary that we can actually work within the environment that is
available to the people and the seal.
Mr. Rapozo: But then it becomes very subjective based on
the volunteer.
Ms. Higgins: Absolutely. So, one (1) of the things that you
have to remember is these seal protection zones are an education tool. There is
no...they are not going to be fined if they cross across the seal protection zone.
Mr. Rapozo: Let me just say this then. What your
volunteers...they are not your volunteers but these volunteers are telling the people
is that they are going to be arrested and I think that is the problem.
Ms. Higgins: Perhaps next time, you can just give us that
type of information. Maybe these are singular incidents that we are talking about.
COUNCIL MEETING 61 FEBRUARY 27, 2013
Mr. Rapozo: A lot of people will see this. I am hoping I
can get a phone number that they can call.
Ms. Higgins: Well, I have told you. I actually got cards
here. I am happy to...
Mr. Rapozo: Well, they need to know. Not me. They need
to...the public watching when they come across overzealous volunteers who do they
call?
Ms. Higgins: We actually have a seal sighting line that
they are welcome to call and we can talk to them about these particular issues.
That would not be a problem.
Mr. Rapozo: But I guess my concern is who do they call if
their treated improperly at the beach? If they are told that they have to leave the
beach or they are going to get arrested, who do they call?
Ms. Higgins: If they call the seal sighting line they will be
put in the touch with the person who is the island representative and we can deal
with those types of situations.
Mr. Rapozo: Who is the island representative here.
Ms. Higgins: We have our island representative here,
Jamie.
Mr. Rapozo: Good, are you going to be coming up later?
Okay. The other question, where does the State and the County fall into your
consultation process. I know you talked about federally regulated activities. So,
basically if a commercial fisherman that is not regulated federally, which I do not
think the Federal Government regulates our commercial fishermen here, correct?
Ms. Higgins: It depends on the fishery. I do not believe
that is a correct statement.
Mr. Rapozo: I do not know. I am asking. I really do not
know. So, our commercial fishermen here, the people that go out and fish on the
weekends or the week days and they sell their fish in the market. They are
regulated federally?
Ms. Higgins: It depends on the fishery. So, it actually has
to do with whether or not that fishery crosses over the State and Federal
boundaries and whether or not it is managed under the Federal Management Plan.
The bottom fish fishery, the example I provided of earlier, that is a fishery that
actually has federal regulations associated with it with federal standards and it
works with the State where they sometimes adopt management measures that are
similar to Federal programs.
Mr. Rapozo: Okay. So, earlier I guess the impression I
got and I think Councilmember Yukimura said she saw a whole different view. The
critical habitat area is only for the federally regulated issues.
Ms. Higgins: Actions, yes.
COUNCIL MEETING 62 FEBRUARY 27, 2013
Mr. Rapozo: So, you kind of made everybody feel that is
cool I am just a fisherman and not regulated federally. So, I do not have to worry.
If they set up the habitat three (3) miles out, I still can fish. But that is not true.
What I am hearing is certain fisheries, and I do not know if Kaua`i qualifies, are
going to be bound by the no-fishing.
Ms. Higgins: So, it is not a no-fishing designation.
Mr. Rapozo: Okay, what is it?
Ms. Higgins: I am afraid you might have misconstrued
that. There is actually a consultation process that is associated with this
designation. So, any fishery that is federally managed...
Mr. Rapozo: When you say "fishery" what do you mean
fishery?
Ms. Higgins: What do I mean by "fishery?" It actually
usually has to...when I refer to a fishery, I guess I am referring to how they break it
down management wise. Bottom fish fishery was the example I provided before
because they actually break it down into that management level. So, that is what I
am referring to.
Mr. Rapozo: Who makes the determination? The State?
Ms. Higgins: It depends on who is managing the fishery.
There are multiple managers of the fisheries. The State usually works with NOAA
to identify our fisheries here.
Mr. Rapozo: I apologize for sounding like an idiot
because...and I think the general public is so confused as well because there are so
many different branches. So, a fishery...and let us just go to Fisheries 101. The
fishery, let us just use Kaua`i as an example. We have bottom fishers, we have
trollers, we have long liners. What would designate had a fishery? If I had a boat
and I fished outside here at Nawiliwili and I was just with a thirty (30) foot boat
and I fished and sold my fish in the marketplace. What would that make me?
What fishery am I part of?
Ms. Higgins: It depends on the species you are catching
and the type of gear you are using. That is how they actually break it down.
Mr. Rapozo: I have a fishing pole and a lure and I am
trying to catch some tuna.
Ms. Higgins: So, you are doing it commercially then?
Mr. Rapozo: Yes, I am selling it. Whatever I catch I can
sell.
Ms. Higgins: You are probably talking about a State
fishery. For the most of the part our tuna that is caught on the long lines, that is
one (1) of our federally managed fisheries.
Mr. Rapozo: No long lines, just the regular boat. So, I
will not be part of that..I would still be able to fish?
COUNCIL MEETING 63 FEBRUARY 27, 2013
Ms. Higgins: Yes, this designation is about a consultation
process. It does not put in place regulations.
Mr. Rapozo: So, what would I have to do? Do I consult?
Would I have...I would not be required at all?
Ms. Higgins: No. The Federal Agency is responsible for
consulting with us. So, it is actually whoever is managing that fishery is
responsible for the consultation.
Mr. Rapozo: As far as you are know the only fishery right
now being managed by the Federal Government is the long liners?
Ms. Higgins: No. What I was saying before is the long
lines is an example of one (1) of our federally managed fisheries.
Mr. Rapozo: What is another exemplary?
Ms. Higgins: So, the other one (1) that we were talking
about before that was the bottom fish fishery. Our swordfish, our short line. That
is actually part of the managed fisheries that we work with.
Mr. Rapozo: Okay. So, they would be affected?
Ms. Higgins: So, they are actually subject to consultation
through this process.
Mr. Rapozo: And that would mean what?
Ms. Higgins: It means they actually have to take into
consideration whether or not their actions would impact monk seal critical habitat.
When we are talking about long line fishery that is a "no" because they are actually
not...
Ms. Rapozo: I am talking about the bottom fisheries now
because I think that we have a lot of bottom fishery fishers, fishermen here,
fisherwomen, fisher people, here on the island, actually a lot of them. They are
within the three (3) mile potential critical habitat. I know you said that one (1) of
the items that the Federal Government looks at is the availability of fish for
foraging by these seals.
Ms. Higgins: That is that correct.
Mr. Rapozo: Basically what would...our bottom fishers
would be, I guess, threatened. That if in fact this is a critical habitat we...they
would not be able to catch fish because the seals need to have fish.
Ms. Higgins: The designation puts in place that
consultation process which I was explaining before. In the bottom fish fisheries,
actually the example that I walked through before, we actually already do
consultation on the bottom fish fishery and because there is an overlap between
what actually...right now when we are looking at the consultation process without
any critical habitat in place, we consider whether or not the action might harm
monk seals. Well, one (1) of the things that you cannot do to an endangered species
COUNCIL MEETING 64 FEBRUARY 27, 2013
is take away its forage, right? You cannot take away the things that is needs to eat
and survive on without having potential impact. So, that is why I am say that
bottom fish fishery is already consulted on. W have already looked at those
potential impacts. Now critical habitat designation as a whole becomes much more
than the forage. We are looking at pupping habitat and we are looking at
significant haul out areas. But because forage gets called into place there is that
overlap between the consultation exists and the one (1) that we are putting in place.
What I am saying to you is the consultation is not likely to change and we are not
expecting that the fisheries regulations are going to change as a result of this
critical habitat designation.
Mr. Rapozo: Well, it could.
III
Ms. Higgins: Down the road, it could if other
circumstances environmentally were to impact the bottom fish fishery. But it is
more likely that under our sustainable management practices that we are using
right now for bottom fish fishery, that we are talking about annual catch rates. We
are not talkin g closing losin g fisher i es.
Mr. Rapozo: Thank you. That is all I have.
Mr. Kagawa: Councilmember Nakamura.
Ms. Nakamura: Jean thank you for answering all of these
questions which is I think is very helpful. I wanted to ask you what is your timeline
for your final document or plan?
designation?
For the critical habitats desi
Ms. Higgins: g
Ms. Nakamura: Yes, for the critical habitats.
Ms. Higgins: We are actually past due with our critical
habitat final roles. We are still trying to go through all of our public comments and
make sure t h at we really e reall considered all of the ones that we have received in the
process. So, we are just working towards that deadline as soon as possible.
Ms. Nakamura: So, do you expect to have a final plan this
year?
Ms. Higgins: This year?Thi ear. Yes.
Ms. Nakamura: So, sometime this year?
Ms. Higgins: Yes.
Ms. Nakamura: And what has been nature of the public
comments at least from Kaua`i?
Ms. Higgins: From Kauai? If we broke it out, I would
have to think about that one (1) like breaking it all out because we have heard a lot
of comment throughout. There is a lot of ocean users concern, But we had a lot of
i of mixed bag so to speak. We do get
on Kaua i also...you know, we get kind o a
g
people Y g g p
the people really concerned about the ocean resources and concerned about
potential restrictions on those resource and then there are other people who are
COUNCIL MEETING 65 FEBRUARY 27, 2013
actually quite happy with the idea that we will be protecting those resources for
future use. So, we get comments from both ends of the spectrum really.
Ms. Nakamura: So, the relocation of the monk seals from the
Northwestern Hawaiian Islands, to the main Hawaiian islands. Is this part of that
critical habitat review or is that a separate process?
Ms. Higgins: It is actually a separate process. It is
actually a management...it is actually under our recovery planning coordination
process. So, we actually work with our Science Center and our Recovery Team to
try to come up with management and research activities that might be helping the
Hawaiian Monk Seal. So, in doing that we actually have to get a permit to do
research and management activities. That is where that NEPA process was
triggered and we actually had to go through permitting process and that was one (1)
activities that we are considering through that process.
Ms. Nakamura: Where are you in the process?
Ms. Higgins: In the process? We are actually in the
process right now of trying answer public comments for that particular one (1), too
because that...actually through the NEPA process went out for public commenting.
So, actually we are really considering the different comments that we received
about all of the different actions we are trying to move forward with because it was
not specific to translocations. It actually has to with all sorts of research and
management things. It had to do with behavioral modification research and things
along those lines. We are really trying to answer the public comments that we
received as a whole and then will be moving forward with the process.
Ms. Nakamura: Then again, were the comments pretty
polarized? I am more concerned about the relocation aspects.
Ms. Higgins: The relocation aspect of it. That is one (1)
particular aspect we are actually taking serious reconsideration on. Right now
there is a couple of things with regards to the two (2) staged translocation. We
think it is actually a great opportunity for us to really be able to help monk seals
because we have a population that is declining significantly on the Northwestern
Hawaiian Islands. But we may not have all the pieces of puzzle in place right now
to move forward with that stage of planning. So, we are seriously reconsidering
that portion of it.
Ms. Nakamura: For the monk seals in that are in the main
Hawaiian islands, what is happening with the population?
Ms. Higgins: In the main Hawaiian Islands right now?
We actually are seeing growth here in the main Hawaiian Islands. We are seeing
pups born every single year. We are estimating the population is around...between
one hundred fifty (150) and two hundred (200) seals through the main Hawaiian
Islands. This is actually a really positive thing for Hawaiian Monk Seals to actually
see growth in a particular area since we are seeing such a significant declines in the
Northwestern Hawaiian Islands.
Ms. Nakamura: Is consideration being given to what that
impact would be of adding more seals to that already growing population?
COUNCIL MEETING 66 FEBRUARY 27, 2013
Ms. Higgins: Absolutely. I mean, that is what the NEPA
process is all about actually, is looking at those potential impacts. That particular
action that you were talking about was actually a two (2) staged translocation. It
was a temporary move from the Northwest to the main Hawaiian Islands and then
back again to the Northwestern Hawaiian Islands. So, the idea behind that is to
use this main Hawaiian Island area for the first three (3) years of life for Hawaiian
Monk Seals to get them past the hump that they do not seem to be surviving
through during the first part of the early years in the Northwestern Hawaiian
Islands. Then before they become reproductive active to put them back in the
Northwestern Hawaiian Islands population where in the Northwest and the main
you survive just about the same.
Hawaiian Islands if you are an adult monk seal o s v ve st o
Y Y J
But if J
are a ou juvenile monk seal, you actually have a much lower chance of
Y
survival during those first (3) years in the Northwestern Hawaiian Islands.
Ms. Nakamura: My last question has to do with one (1) of the
testifiers earlier asked whether NOAA or anyone is focusing on propagation and
was wondering...
Ms. Higgins: Propagation as in? I am sorry.
Ms. Nakamura: Fisheries and I guess this would be related
to...
Ms. Higgins: And thing like that? I guess there are so
many branches of NOAA, like you said it can be a little bit confusing keeping track
of everyone. We have different Divisions that work on really helping communities
trying to answer that question of where can we be growing our fish, where can we
be helping our ecosystem and that is our Habitat Division. They are actually a
really good branch that is able to work with our communities and look at fish
habitats. So, those are some key phrases that you might be familiar with and have
heard where they are actually taking about trying to propagate out fisheries and
talking about how we can do that. But we also use our Sustainable Fisheries
Division who puts forward e lations we were talking about before with
the federally managed fisheries th et at kind of that work hand in hand in trying to keep
sustainable numbers of fisheries so that we can have that type of propagation
happening.
Ms. Nakamura: Thank you very much for educating me
about this.
Mr. Kagawa: Councilmember Hooser?
Mr. Hooser: Yes, thank you and I suspect that this
extensive discussion is stuff that we will not have to have with everybody else. Just
that you are here and
to kind of restate because I think it is very, important
Y� Y Y
the issues that you habit t ou raised. The establishment of our critical hab t w
ill not restrict
recreational and subsistence fishing by and itself?
Ms. Higgins: Right. So, we are not seeing restrictions to
recreation fisheries. Some of the comments that you might hear from people is that
there are recreational fishers that are subject to federal reporting that they do give
us information and things like that that they were worried there is a federal nexus
there. But providing that information does not have to do with actual regulations
on the fishery.
COUNCIL MEETING 67 FEBRUARY 27, 2013
Mr. Hooser: So, the primary impact would be on federally
managed funded...
Ms. Higgins: Managed fisheries.
Mr. Hooser: Managed fisheries and other programs?
Okay. Thank you very much. Thank you, Chair.
Mr. Kagawa: Chair Furfaro.
Chair Furfaro: Yes. First of all, for everybody that is out
there, this Council at four o'clock (4:00) begins a series of Executive Sessions with
our Attorneys in Honolulu. I just wanted to share that with you. So, Mr. Kagawa,
we need to close things in the next forty-five (45) minutes. We have eight (8)
speakers and they all have six (6) minutes. That takes us right to four o'clock
(4:00). I just wanted to make that announcement. I would like to ask you, are you
folks producing a fact sheet because this is exactly my reference earlier to the fact
that people are confused. I am thirty-eight (38) years in the hotel business just on
Kaua`i and I was twice President of the Hotel Association. So, I am entitled of news
bulletins. Hotel Association thinks that the area for the seal is shrinking. What
you just told me is they are no getting a standard room, they can actually get
upgraded to the Presidential Suite which might mean the whole beach. What do we
do to inform the people because we have hoteliers that now have people that want
to be able to still share the beach? But what are the facts for something like that?
Ms. Higgins: So, the facts...
Chair Furfaro: No, I am just asking the question because we
need to...number two (2), what authority do you folks have on the fining? How do
you fine people? What law do I refer to where the fines are disclosed and so forth?
We need to do that and those are things that we should have fact sheets on because
many, many people are could be confused. I would certain like to offer the person
who is the liaison on making sure that both the monk seal is safe and the
recreational people have opportunities. I would like to ask or make a request for
him to come by and meet with me. I would like to talk with him in those terms.
Also you said something else to me and I am using these terms so that...because
they very expressive. You find areas where the seals can have an abundance of
food. So, I do not know how you term that, but I am trying to say is, does that mean
some of the better area where known fish are populating is an area that they can
identify as probably the prime area or what are we saying there?
Ms. Higgins: I am sorry, could you clarify the question?
Chair Furfaro: Yes, sure here it comes. Everybody can eat
well in the Coffee Shop. These guys seem to be able to get the gourmet restaurant
because you are saying you have got to make sure there is a significant population
of fish in those areas that we preserve. Did I hear that?
Ms. Higgins: So, I think I am understanding what you are
saying. But that is not exactly what I was trying to get across.
Chair Furfaro: What I would like is clarification to make it
right.
COUNCIL MEETING 68 FEBRUARY 27, 2013
Ms. Higgins: Sure.
Chair Furfaro: So, the abundance of fish that are shared
with humans for the seals' designated area, in fact, has impact on where you say
these prime spots should be? That is a consideration, an abundance of fish is a
consideration for keeping the monk seals' area designated.
Ms. Higgins: So, for critical habitat designation, what you
are referring to is the essential features that I mentioned earlier and the essential
features are things that we describe...the U.S. Fish and Wildlife Service does as it
as well when they do designations for critical habitat. Basically what we are doing
is we are trying to describe the things that a species need within its habitat to
survive and recover. So, what we do is we actually ask what is important for that
seal to keep going? That means those areas such as the pupping and nursing sites
and most species it also means forage. Having fish and things like that available.
Chair Furfaro: Prime forage?
Ms. Higgins: Well, we do not...
Chair Furfaro: That is my question.
Ms. Higgins: We actually did not define it as prime forage
and one (1) reasons why is morning seals are generalist foraging species. So, they
forage across a wide variety of habitat and they have individual foraging
preferences that vary from individual to individual. So, that actually makes them
unique in a couple of ways that they are using slightly different habitats. They are
eating a lot of different species of fish. But it depends on the individual, on their
tactics for forages, and things like that on the areas that they are actually foraging
in. That is why you see such wide boundaries for these foraging habitats.
Chair Furfaro: You answered my question. The last
particular piece,iece, is your concern for the pups in the Northern Hawaiian Islands
related to the fact that the predators that consume them, like Great White Sharks
and so forth, are abundant in the Northern Hawaiian Islands as well?
Ms. Higgins: We only actually have one (1) atoll out in the
Northwestern Hawaiian Islands where we have an abnormally lark shark activity.
All of the other five (5) areas that we look at, we actually just have regular
predation rates. They are not abnormal at all. It is not like Great Whites. We are
actually dealing with a particular issue with Galapagos Sharks at the French
Frigate Shoals. So, it is particular to one (1) atoll and we have looked at mitigation.
Chair Furfaro: And is that atoll French Frigate Shoals?
Ms. Higgins: Yes, it is.
Chair Furfaro: Thank you, Mr. Kagawa.
Mr. Kagawa: Thank you. Any more questions? If not,
next registered speaker and I would like to remind members that we kind of want to
get through all of our speakers before four o'clock (4:00).
Chair Furfaro: Thank you for coming.
COUNCIL MEETING 69 FEBRUARY 27, 2013
Mr. Sato: Next registered speaker is Greg Holzman,
followed by Elia Herman from the DLNR Sanctuary. State you name please.
GREG HOLZMAN: Good afternoon, Greg Holtzman. I am a
federally managed bottom fisherman on the island of Kaua`i. My main areas are
Ni`ihau, Ka`ula Rock, and the Na Pali coast, all of which are being looked at as
potential expansion areas for the National Marine Sanctuary. They talk a lot about
these things are not going to affect us and they like talk that well it is only a couple
individual fisheries. Yet, they cannot tell what is going to tell in the future and
they will be the first ones to admit it. They are now looking at federally designating
as species of management concern, all of the species within the near shore waters.
These will all be starting to be regulated for fishery management, federally in the
near future. So, all of these have the potential to become under the consulting of
these monk seal management people. None of that means that we are not going to
be able to fish. But these are used as tools by environmental groups which have
massive agendas to stop the taking of food, what we call food, they call "extractors."
They like to call us extractors. They like to try and find ways...they have a lot of
money and they use a lot of lawyers to find ways to use the Endangered Species Act,
use the National Marine Sanctuary Act, use the Marine National Marine Mammal
Protection Act and all of these things are already in place. The Sanctuary is just
looking to add another layer and to add more species within its jurisdiction. That is
adding a lot of new federal regulations, creating a lot more bureaucracy causing
more confusion with the fishermen. We are not saying that anybody here does not
have a really good intentions, but they will admit that there are people out there
that can utilize these laws in ways that they never sought to be used as. Take for
example the idea that they want us to report if we have interactions with the monk
seals because they can then better get these monk seals to find ways to get them to
stop.
Mr. Kagawa: Greg, that is your first three (3) minutes.
You have another three (3) minutes.
Mr. Holzman: So, anyway it is a takes. So, what it is there
is a zero (0) takes on monk seals and every time there is an interaction with the
monk seal, it is considered a take. If they start...if we documenting all these takes
the groups will use those to shut down...they already have a lawsuit in place from
Ulua fisheries with the State of Hawai`i to stop this fishing. These are the kind of
things that we are concerned about. We are concerned about all of these things. All
we are asking with this Resolution is that the County Council has heard the people
of Kaua`i, have said at this time we cannot...we cannot support the expansion of
this Sanctuary, we are all for education. They do a great job with their education
program. Jean Souza does a wonderful job over here. We help whenever we can.
But we are against the expansion. There are plenty of laws in place already that
just need to be enforced to take care of these species and that we are under an
incredible amount of not only confusion, but we are under an incredible amount of
threats from all of these federal regulations and putting it under a Sanctuary is not
going to help. Ni`ihau is a prime example. Mr. Robinson has stated many times
publicly that he is looking to the Sanctuary to put a one (1) mile exclusion...one (1)
to two (2) mile exclusion zone around his island and that would completely take
away all of my fishing grounds. You say that swimmers will not be able to swim on
the beaches. That is not true. Well if you go to Miloli`i, if the sanctuary comes into
Miloli`i and there are some pups on the beach at Miloli`i, if it is a Federally managed
Sanctuary, the chances of you not being able to go in there and go shell hunting or
picking or whatnot are greatly enhanced. Those are the kind of things we are not
COUNCIL MEETING 70 FEBRUARY 27, 2013
sure about and they cannot tell us because they are too vague. They have not made
their mind up and we all feel that once this draft plan comes into effect, the chances
of really revamping it and changing it completely is going to be extremely hard. We
might be able to get a few sentences changed and what not. But what we have seen
from them working with us, it is so limited that we are not getting the kind of
working one-on-one relationship that we had hoped for in the beginning.
Mr. Kagawa: Thank you, Greg. Any questions? If I could
ask, members to keep it brief, please. Councilmember Yukimura.
Ms. Yukimura: Thank you. Thank you Greg. You
mentioned early in your testimony that near shore waters will be managed
federally?
Mr. Holzman: No, the species are being looked at. West
Pack...I am on the Bottom Fish Advisory Board with West Pack and they have been
looking at all of these near shore species to be Federally management that right
now it is all in Federal waters. A lot of these areas are not in...these species are not
found in Federal waters at this time. But if these things occur, these species are
already in a designated federal management for the species and you talk about a lot
of this eco-system management where all of these things become entwined and they
really cannot tell in the future what is going to happen. I mean we never...
twenty-five (25) years ago we did not thi nk that Federal Managers rs were going
to
that over our fisheries, you know, and there is a lot of things t at c h n e a g d very
quickly. Then all of a sudden these tools get used and so these are things we have
been worried about from the beginning.
Ms. Yukimura: So, you do not think commercial fisheries
should be regulated?
Mr. Holzman: Well, you know, we did fine. We have done
fine for a long time and I am not saying it should not be regulated. I definitely do
not support Federal management. I do not believe in federal management of our
local fisheries. I believe in State management. Now the State of course is limited to
its funding in g and what t not.
But that is p ersonal belief. I have seen more
problems from the Federal management side of this thing then I have found
solutions. They backpedaled on several different issues as far as the quotas go, as
far as the deep seven (7) bottom fish, as far as how their overfished status was.
They shoot first and ask questions later in many of these situations and that is
what we are worried about.
Ms. Yukimura: But the decline in large fish is really
u wanting our children to live in a
extreme. So, I mean this whole thought about wa
g g
the
decline oft e
sustainable world
it seems like something has to be done to stop the g P
fisheries because at some...because my understanding of ecosystems is that it does
not happen gradually. There is a collapse of the fisheries and then it is so hard
though bring them back.
Mr. Holzman: I guess it is the difference between people
who believe that taking away the guns of the people will stop the criminals from
getting guns.
Ms. Yukimura: We do not want to g o there.
COUNCIL MEETING 71 FEBRUARY 27, 2013
Mr. Holzman: What I am really trying to get at is the point
that taking away fishing from fishermen is not the answer. Education, which the
Sanctuary, I will be the first one to say is great. That is the way to go. Get the
Sanctuary to educate the fishermen. They do a great job and we need to really just
do that.
Ms. Yukimura: So, human behavior has never shown to
actually change only with just education. But zero (0) takes on monk seal, is every
interaction with a monk seal, like you were talking about, being required to report,
is that a take?
Mr. Holzman: You are not required to report it. But every
interaction with a monk seal is considered a take.
Ms. Yukimura: Is considered a take?
Mr. Holzman: Yes. I mean we went to a Monk Seal
Workshop and that was one of the things that the managers were worried about
was that every time we went in and documented an interaction with monk seals
that these would be considered a take and that these would accumulate and then
that can be used against us to shut down certain fisheries.
Ms. Yukimura: Yes, that seems a little counterproductive
because if you define it as a take, who would want to even report it?
Mr. Holzman: Yes. JoAnn, I am not saying that
management is not important in fisheries either.
Ms. Yukimura: But I do not know if that is correct.
Mr. Holzman: I mean, I just want to state that the
Management Officials...
Chair Furfaro: I need to state something. Our rules states
that, she asks you the questions now.
Mr. Holzman: I am sorry.
Chair Furfaro: You respond only to the questions because
you were given the full testimony time.
Ms. Yukimura: So, last question. You mentioned if there
was a monk seal on the beach at Miloli`i that you would not be able to...
Mr. Holzman: There is a chance if there were monk seals
on the beach at Miloli`i with it being designated a Federal Sanctuary, that National
Marine Fisheries Service Enforcement Officials could stop you from going on the
beach. They have already said they might have spatial and temporal restrictions
within the Sanctuary. They just cannot tell you what they are going to be at this
particular time.
Ms. Yukimura: Okay, because I see a lot of heads shaking
behind you. We are just trying to get at accurate statements. That is all I am
trying to understand. I know this, I am not going to ask any more questions of
COUNCIL MEETING 72 FEBRUARY 27, 2013
Greg. But I want to get it clear because you have included it in your testimony and
I want to get clear what will happen if that is Law or if it is not? So, the other thing
is if this is a monk seal right now on the beach at Miloli`i they have the right to rope
it off, I would guess, right?
Mr. Holzman: Yes.
Ms. Yukimura: But they do not have the right...you are
saying that designation would give them an extra right to stop people from going
into Miloli`i?
Mr. Holzman: They could. Under the Sanctuary there are
lots of things that they can do that they cannot necessarily do now.
Ms. Yukimura: Thank you, Greg.
Mr. Kagawa: We are going to take a quick caption break.
Oh, we can go until four o'clock (4:00)? Let us continue. I am going to ask members
to refrain from questions so we can have the courtesy of letting everyone speak. We
have an appointment at four o'clock (4:00) and we will probably be continuing this
item after the Executive Session. I do not know if any you of plan on staying two (2)
hours or so this...after four o'clock (4:00) to resume. So, we will continue.
Mr. Sato: Next speaker is Elia Herman, followed by
Malia Chow.
ELIA HERMAN: Aloha. Thank you so much. My name is Elia
Herman. I work for the Department of Land and Natural Resource and I am the
State Co-Manager of the Hawaiian Islands Humpback Whale National Marine
Sanctuary. I think this conversation has been really important because as
Chairman Aila wrote...this was actually in a letter to the Editor in the Honolulu
Weekly. It is not official testimony for this. It was a published letter to the Editor.
These conversations have to be based on facts and I think we have made a lot of
progress today in trying to establish what that is. So, I have been...I think
everyone here has put a lot of time and energy into all of this and people care very
much. These are really, really important discussions and important things to
understand. Though I am very grateful to the Council and to everyone who had
participated. I just wanted to address a few things. One is that the State of
Hawaii, the DLNR is committed to active management of our marine resources.
But as people have pointed out, we do not have...we get less than one percent (1%)
of the State's budget and we cannot do that alone. We need to do it in partnership.
We need to work with community and that is what we are doing more and more all
the time. We need to work with other Agencies. That is the onl ...these kind of
g only
...these
are the only way we will be able to effectively manage our resources.
So, the Sanctuary is a way that the State of Hawaii is actively managing our
resources and as it has been pointed out you have before you the Compact
Agreement that was signed in 1998 by Governor Cayetano. This affirms a couple of
things. It says we have not handed over our authority or our ownership or
management of our resources in any way. But we are going to work together to do
better. That is what that says. Also, it says in terms of fishing, subsistence
Y � Y g�
fishing is crucial. Fishing is crucial to Hawaii. it is crucial to our livelihoods. It is
the way that we live here. Nothing, no regulations could ever go forward in State
waters until they were first approved by the Board of Natural and Land Resources.
So, again nothing...nothing is being handed over. It is how do we all work together
COUNCIL MEETING 73 FEBRUARY 27, 2013
to do better because like everyone has said, we need the resources to be here now
and into the future. So, there have been so many interesting comment it is hard to
pick out the different pieces. I guess I also just want to point out we have two (2)
letters from the other Governors, from Governor Lingle and Governor Abercrombie,
again supporting this process. What the Sanctuary is going through right now the
review of our Management Plan to look at again, what make the most sense for
Hawai`i? How do we, again, work together better and share in the kuleana of
taking care of these resources? Nothing is going to happen in the State without the
State support. This is not NOAA putting something together and then showing it to
the State. We are working together. This is my full time job. I have other staff
from DLNR who work on this with me. So, it is not them doing it and bringing it to
us. So, all of the plan that is written, that is being written, we are doing that
together and we are doing it with extensive input from communities dating back to
2010 and over twelve thousand (12,000) comments were submitted.
Mr. Kagawa: That is your first three (3) minutes.
Ms. Herman: Yes. And ongoing consultations with
everybody in this room as well, as well as others. Also, this is just one other thing I
wanted to point out is that this process is going through both the National
Environmental Protection Act, the NEPA process, as well as the State Process for
Environmental Review. So, we are meeting both requirements and again that is
another illustration that this is not just the FEDs coming in and doing something.
But this is us together evaluating what makes sense. As part of that we have to
look at socioeconomic impacts and the cultural impacts. We are not going to do
anything that harms our ability to continue to live here in the way that we want to
in Hawai`i. So, how do we make a Sanctuary here that...there is a lot of fears and
concerns and I understand that. But how do we look at what the opportunities are
for us all to do better together and to manage the resources in a Hawaiian way that
looks at mauka to mauai, that looks at challenges like water quality issues? How
do we take that all into account and do better? Partner with communities, do
restoration, help bring this back so that we can all continue to use these resources
because al number of Councilmembers have said now and into the future. Thank
you very much.
Mr. Kagawa: Mahalo Elia. If we stick to the rules of no
questions until we get done with everybody. Next registered speaker, please.
Mr. Sato: We have Malia Chow, followed by Nina
Monasevitch.
Mr. Kagawa: I want to thank Malia and Elia for coming
from O`ahu. Mahalo. I know it is very important to you. Thank you.
MALIA CHOW: Thank you very much and good afternoon to
the County Councilmembers. I just wanted to thank the leadership of the Chair for
bringing this important issue to the agenda and it gives us an opportunity to really
explain a few things about the Sanctuary. Also, I wanted to thank Ross Kagawa for
bringing this important issue here because it does allow to us have an important
dialogue.
Chair Furfaro: Hold on just a second. Are we seeing a
PowerPoint? No.
COUNCIL MEETING 74 FEBRUARY 27, 2013
Ms. Chow: No, it is not a PowerPoint. But there are a
couple of documents that we wanted to share with you. So, just for the record my
name is Malia Chow and I am the Sanctuary Superintendent for the Humpback
Whale Sanctuary. We have been leading this process for the last two (2) years. We
have been listening to communities across the State and the reason we launch into
this Management Plan Review is because we are required by law at some point to
look at additional species. It is not something that we made up. It is something
that we thought was the right thing do and that is what we are moving forward
with. So, what we have handed out and is available to you is a current timeline
that we are on for our Management Plan Review. We expect to have a draft out for
the public by this Fall. So, by the end of this calendar year. So, let me
reemphasize, there is no draft that has been reviewed by anyone. I think people
have made that clear. There have been a lot of stakeholder meetings. We have met
with the fishermen. We have met with communities across the State. We are in
the process of putting together a plan based on science, based on local knowledge
that will be shared in had a more comprehensive document. That draft before it
goes final will have a series of another round of public meetings. There is the
opportunity to revise it based on input that we get from others. So, it has been very
important to us that we have open transparency in everything that we do and that
is why it is important to us to take the time and come and be able to answer
questions because I do hear a lot of misinformation and I do have some concerns
that misinformation continues to be perpetrated about the Sanctuary. It is our
hope to correct that and have an open dialogue with anyone that is interested.
I am not going to take the full six (6) minutes because I do want to concede
my time. There are so many who wanted to speak before the Council. But I wanted
to follow-up on a comment that Councilmember JoAnn Yukimura brought up about
how are we invoking traditional Hawaiian values in our process? It is something
that as an overarching consideration, we think the traditional management has
been fundamental to everything that we do and we brought together working group
of our Sanctuary Advisory Council to really look at the values that management
should be based on? So, what we are sharing...it is on our website. We have made
copies for each of the Councilmembers here, is a document that really speaks to the
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importance of looking at management from a cultural lens. It is important that it is
not just science based, but also based on local knowledge much of which the
fishermen have. What I want to end with is we share that value of protecting the
ocean and ensuring that the ocean is available for the next generation. I thought it
was timely to have the Waimea students here because we are taking the long view,
that is the generation that we are planning for. With that we just want to make
sure that you understand that we want to be responsive and work closely with the
County Council as we go forward. Thank you very much.
Mr. Kagawa: Well, you know, I kind of regret that you
went now because I am sure there would be a lot of q uestions. But I have to be fair
to everyone. But they can always contact you too and I can get that contact to them.
Ms. Chow: Thank you very much.
Mr. Kagawa: Mahalo. Next registered speaker.
Mr. Sato: Nina Monasevitch, followed by Gordon
LaBedz.
COUNCIL MEETING 75 FEBRUARY 27, 2013
NINA MONASEVITCH: Aloha. Good afternoon. I would like to start
by saying that I found this Resolution to be not even Council worthy based on,
pardon?
Chair Furfaro: You have to state it one more time, maybe.
Ms. Monasevitch: I am sorry. Nina Monasevitch. Kohola Leo
is my organization. I apologize for that. I find the Resolution to be based on
assumptions, falsehoods, and I find it to be very unprofessional written. That is
based on my understanding of scientific research of what is going on in the oceans
and my understanding of the Sanctuary. Its inclusive statement of "ocean users"
does not include myself nor many others who are ocean users that I personally
know. The six thousand (6,000) signatures on their petition were collected based on
misstatements and misrepresentation. I have been scuba diving, long distance
swimming, boating, kayaking in Kaua`i waters since 1978. The degradation and
health and diversity of ocean life I have witnesses is alarming. Here are some of the
facts taken from published research about the reality of the ocean and marine life.
From an article that just came out of the number two (2) underreported news of
2012 entitled Oceans in Peril. "We thought the sea was infinite and inexhaustible.
It is not. The overall rise in ocean temperature has led to the largest movement of
marine species in two million (2,000,000) to three million (3,000,000) years
according to scientists from the climate change and European Marine Ecosystems
Research Project." A February 2012 study of fourteen (14) and eighteen
(18)...fourteen (14) protected and eighteen (18) unprotected ecosystems in the sea
demonstrated that this previously healthy sea is now quickly being depleted of
resources. An international team of scientists conducted the study over a period of
three (3) years and found that in well enforced marine reserve areas the fish
populations were five (5) to ten (10) times greater than the fish populations in
unprotected areas. The work of these scientists encourages the establishment and
maintenance of marine reserves. Net entanglement and by-catch is the number one
(1) cause of death for Humpback Whale and all marine mammal. Over three
hundred thousand (300,000) deaths are documented annually. There are no laws to
protection whales from net entanglement. There are actually no laws right now
that protect whales other that the one hundred (100) yard limit and some of the
Federal Laws that have nothing to do with the Sanctuary. These actually numbers,
these three hundred thousand (300,000) a year is estimated to be much higher.
Vessel strikes is the number two (2) cause of death for Humpback Whales. There is
extensive scientific documentation that speed is the main factor. Other Sanctuaries
have...
Mr. Kagawa: Excuse me, that is your first three (3)
minute. You have three more (3) minutes..
Ms. Monasevitch: Thank you. Other Sanctuaries have speed
limits which have effectively helped prevent boat collision in the United States and
the North Atlantic. Some of the other facts. Fisheries are collapsing. There is a
lack of no take zones in Hawai`i. There are no marine life conservation districts on
Kaua`i yet they are on every single other island. Less than point eight percent
(0.8%) of the world's ocean are fully protected from extractive or destructive
activities. Large no take marine reserves have been shown to blunt the effects of
extensive commercial fishing by offering a refuge for sea life to breathe and spawn
providing for healthier fisheries as the fish swim into surrounding areas and thus
ensuring coastal economies. Because the ecosystems are healthy, they are also
more resistant to damage caused by pollution, climate change, and a wide range of
COUNCIL MEETING 76 FEBRUARY 27, 2013
other development activities. I am going to skip some of this about the coral reefs
and pollution because that information is out there. But water pollution has caused
five hundred thirty (530) ocean dead zones and counting worldwide. Ocean
acidification threatens the entire marine ecosystem and food web. For all of these
reasons Maui and Hawaii Counties have supported the Sanctuary and have
adopted Resolutions in support of protection in 2010. The protection of marine
mammals and all marine life in Hawaiian waters is not just an ecological, biological,
or cultural concern, but also a matter of economic necessity for the Counties...all
Counties of Hawaii because the clean and healthy ocean environment is the engine
that drives Hawaii's visitor oriented economy. Hawaii ocean based tourism
generates eight hundred million dollars ($800,000,000.00) a year and provides
thousands of jobs. Kohola Leo is submitting petitions to the Council from members
of the public who have been informed about the published scientific research
documenting the reality of the ocean and marine life degradation. I have one (1)
copy of the petition with me that I would like to leave.
Chair Furfaro: Would you leave that copy with us? We will
make copies.
Ms. Monasevitch: Yes, thank you.
Mr. Kagawa: Thank you. Next registered speaker.
Chair Furfaro: Nina, thank you.
Mr. Sato: Gordon LaBedz, followed by Colleen Ogino.
GORDON LABEDZ: Hi, I am Gordon LaBedz. I live in Kekaha
and I am retired Family Physician. I am here representing the Surf Rider
Foundation. I always like to thank elected Officials for doing this. It is a thankless
job. Somebody is mad at you all the time. I had the honor in 1986 of being one of
the Founders and Organizers of the Surf Rider Foundation. We were in our thirties
and we really watched the ocean die in front of our eyes and here I am thirty (30)
years later and it has gotten quite a bit worse. The Surf Rider Foundation is now
has eighty (80) Chapters and we are international and we are still watching the
ocean go down. I am asking you to here today to vote "no" on this Resolution. This
Resolution essentially says if you read the title, you will vote "yes, I am for it." But
the text, it basically says we are opposed to protecting the ocean. That is what it
says. Let us face it. The fact of the matter is the ocean is not owned by fishermen.
It is not owned by Kauai residents. It is owned by the people of the United States.
The eo le of the United states, the visitors who come here and visitors who never
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come here own that ocean and it is the Government's responsibility to take care of
that property. That is public property. If you use it every day you are connected to
it. But it is not your property. It is not your orchard to pick. It belongs to all of us
and it is going downhill and it needs protection. We are asking you to vote "no" on
this Resolution because this Resolution says we do not need protection, we do not
want protection. I am asking you here today to support the Maui County Council
and the Hawaii Island County Council, who said "yes," go forward with that
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Management Plan, protect our oceans and more because quite frankly the Surf
Rider Foundation has been very outspoken in criticizing the Hawaiian Humpback
Whale Sanctuary and even though I work with them, they have not done much in
fifteen (15) years to protect Humpback Whales. They have done nothing to protect
the ocean and it is time that they step up to the plate and do something. I know
that does not make my neighbors and fishermen neighbors in Kekaha happy, but in
COUNCIL MEETING 77 FEBRUARY 27, 2013
the long run we will all be better off if there are some rules and regulations and
some protections to the ocean. So, I am going say one more time, please vote this
down and rewrite a Resolution that says "yes" the Kaua`i County Council supports
protection.
Mr. Kagawa: That was your first three (3) minutes.
Mr. LaBedz: Thank you.
Mr. Kagawa: Thank you Gordon. Next registered speaker.
Mr. Sato: Colleen Ogino is not present. Our next
registered speaker is Maka'ala Ka'aumoana, followed by Jean Souza.
Mr. Kagawa: Aloha. Please state your name and you may
begin.
MAKA`ALA KA'AUMOANA: I am new to him, huh? Aloha
Councilmembers and mahalo for this opportunity to provide testimony on this
agenda item. I am Maka'ala Ka'aumoana and I testify as a member of the
Hawaiian Islands Humpback Whale National Marine Sanctuary Advisory Council.
I currently hold the Conservation seat. I have participated over the past two (2)
years in the process of reviewing the management options for our sanctuary. As
Conservation seat, I was included in every working group and committee's work as
well as that of the Advisory Council as a while. I am personally aware of the
inclusion of all perspectives and mana o included in the thinking, planning, and
drafting of the current draft plan. This has been a sound process of review broadly
based and culturally guided. Fishing issues were prominently represented. Most of
you know me and have heard me testify numerous time over the years. You
probably can recall a common theme, transparency and collaboration. The focus of
my work over the past twenty-five (25) years on Kaua`i has been to apply the life
lessons I have learned and the mantra my grandmother taught me, take it to the
source. For the Sanctuary and my role on the sac, that mantra reads community
based. That is what the draft Management Plan is all about, local control. The
Hanalei Watershed Hui and Hui Maka`ainana 0 Makana have both participated
fully in the process of developing the draft Plan and stand as community partners
who each have unique issues and concerns about the marine environments in their
communities, both in the Sanctuary today. Specifically in Ha`ena a community
based subsistence fishing area has been designated for the ahupua'a and that hui
has been actively engaged and sees the Sanctuary as a positive and supportive
partner of that effort. They have no concerns about fishing issues and, in fact
requested the Sanctuary adjust its boundary to align with the ahupua'a to provide
support of the program and potential partnership of their community based work.
This Resolution is premature as the draft Management Plan will be out for
public review later this year. This Resolution attempts to address a problem that
does not exist. This is not the time to interfere in the review process. I request this
Resolution be withdrawn and not move forward at this time. It speaks to fear and
fantasies with little basis in fact. The draft Management Plan should be given a
fair and open opportunity for review and comment before our Government tries to
fix something that is not broken or influence the outcome of a public process yet to
come. I would be pleased to respond to your questions another time about the
Sanctuary as a partner to Kaua`i communities. You have my personal commitment
to an open and locally based process of review. Before I leave the podium, I do want
COUNCIL MEETING 78 FEBRUARY 27, 2013
to show you this. This is the 2013 Hanalei Moon and Tide Calendar and you will
note the NOAA Sanctuary logo at the bottom. It could not have been produced
without their partnership and that partnership and that partnership also of the
Papahanaumokuakea National Monument and Jean has been kind enough to
schlep a whole bunch up here for you. So, we give those to you today as
remembrance of the partnership that exists currently with the Sanctuary and
communities on Kaua`i. Mahalo.
Mr. Kagawa: Mahalo, Maka'ala.
Chair Furfaro: Mr. Kagawa, I need a housekeeping moment
of time before we go to next speaker.
Mr. Kagawa: Go ahead.
Chair Furfaro: The message that I am sharing right now is
directed to the Administration across the street. It is my intention to continue with
our calendar today and I still would like to make sure that we have time to talk
about the roads at Lawa`i Beach. So, I need someone from the Roads Department,
the Fire chief or representative doing review of their grant agreement for the CERT
Team, as well as EMS requirements, County Engineer, and the Housing
Department. So, when we do break for Executive Session I would like to make sure
that we make contact with the Administration before they feel it is pau hana time
for them. It is Wednesday. It is not pau hana until we are done. You have the
floor.
Mr. Kagwa: Mahalo, we will take one (1) more registered
speaker and we have to take a break for a tape change.
Mr. Sato: Our last registered speaker is Jean Souza.
JEAN SOUZA: Hi. Good to be here. For the record Jean
Souza, I am a resident of Kaua`i. so, unlike some previous speakers, I live and work
here and this is my life. Unlike some previous speakers I want to say personally in
my immediate family, I am part of a family with four (4) generations that have been
doing subsistence fishing. I currently do not do it myself now. But my son is active
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in it with his classmates and having a great time. So, for allegations that are made
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that we are not in the ocean, we do not know what we are taking, we are not here
are, is so false. I am extremely disturbed by it. We are a program that is very
inclusive. We have a program that involves many people on Kaua`i and we have
invited many folks to become involved with us. We have acknowledged there are
problems out there and rather than just grumble about it, we need to work together
to try to solve it. There i s a tremendous remendous movement on Kauai and elsewhere in
Hawai`i to take care and to take care more than ever before. In some respects
harking back to the olden days. So, the challenge is to bring folks together to do
that and rather than just grumble and say no, no, no. Hey, how can we work
together to try to solve some of those problems? I think there is a common value
that we share. I think there are common g oals we could work towards. So, this is
an open invitation to try to get there. I have some observations about the
Resolution. I think as it stands currently there are still continuing
mischaracterizations and misinformation. I think that there are some significant
changes that still could be made and I appreciate the few changes that you
incorporated of what we suggested. But I have, if you interested, seven (7) more
pages that were not incorporated. That is kind of it for now. I am willing to come
COUNCIL MEETING 79 FEBRUARY 27, 2013
back at a later time if there are a few minutes. I am wondering if perhaps you
would like to ask questions of Malia and Elia since they have a plane to catch and
will not be able to come back after the Executive Session. But I will be able to.
Mr. Kagawa: Thank you. I just want to kind of respond
since you looked at me and asked me to incorporate the other seven (7). But the
Resolution I proposed is to support the fishermen and our keiki to use the beaches
and enjoy the beaches and enjoy the beaches as I did when I was young. My
Resolution is not to support the efforts of NOAA and the DLNR in making or
creating more habitats and what have you. That is why I did not incorporate those.
Clearly, we have a disagreement on what Resolution would have been better. But I
did not incorporate yours on purpose. Thank you.
Ms. Souza: Would you like a response?
Mr. Kagawa: No, I was just explaining myself.
Chair Furfaro: At this time I am going to take the
Committee back. I gave it to Mr. Kagawa as a courtesy as it is his Resolution and
so forth.
Mr. Kagawa, the presiding officer, returned Chairmanship back to Chair
Furfaro.
There being no one else to provide testimony,.the meeting was called back to
order, and proceeded as follows:
There being no objections, the rules were suspended.
Chair Furfaro: I would like to have the two (2) individuals
up. This is a Council Meeting at my discretion. So, I am is going ask them to come
up. Jean, you can sit with them, if you like, please. Ladies, thank you first of all
from coming over and Mr. Kagawa, thank you very much for running the testimony.
First thing that I want to say is the fact that we here at the table, we represent all
of Kaua`i, okay? We are stewards for Kaua`i, okay? We have obligations to all
people who had chose us to represent them. The reason that I was supportive and, I
controlled the agenda, to put Mr. Kagawa's Resolution on this agenda is to let you
know it is important to our people that we get the facts straight. For the lady that
almost overwhelmed me with testimony...I mean, for me to find out she is not even
connected to the conduit of creating this piece is worrisome. It is worrisome. I will
tell you why because there is so much confusion about conservation plans in
general, whether it is from the sea or the birds. There is a lot of need for facts. I
personally look at this Resolution and I say two (2) things. We need to get
testimony in before this schedule of April or May of this year. This is your piece.
You gave it to us?
Ms. Herman: Yes.
Chair Furfaro: And this is where the product is supposed to
come out from. One (1) way to do that is support the Resolution because as I stated
earlier, it is only a policy statement from the Council worthy of consideration. But I
do not agree with everything that is in it myself. So, the other option is for me to
take the pieces that I have and write testimony into the fishermen that have
subsistence for their family deserve a voice. I want to make sure I can send
COUNCIL MEETING 80 FEBRUARY 27, 2013
testimony into that fact. The confusion that exists, I have to tell that you is
overwhelming and if you give me something that I can clarify some facts in that, I
will get those out. I do not care if I have to fund in the next budget a fact sheet, it
better be factual and we will get it out so that we can all kokua and we can all be
good stewards. Just the fact that nobody can really tell where the fines are for the
marking of the seals, how much space they are entitled to, and so that is enough
confusion in itself. At that time I used to be a pretty good hotel guy and I can see
the fact of the matter there are many, many people employed based on the
destination and the beach has to be shared. We have to get that through. So, the
gentleman in the back has been willing to meet with me and so we can talk about
some of those things. But we need to represent the voice of Kaua`i people whether
we send an individual testimony, like we are currently doing at the State, whether
we send it directly to Mr. Aila, whether we support the Resolution. It is a way for
this Council...you have to understand it is a way for this Council to communicate
So, I am going to give you a
few
the concerns of the people le that we represent.
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minutes here to answer questions from the Council and I am going to start with
Councilmember Yukimura, if she can lead in brevity. Okay, you ou have the floor.
Ms. Yukimura: Thank you, Chair. It is hard to be brief
about a very complex subject. But I really appreciate Councilmember Kagawa's
introduction of this Resolution because it has stimulated really im p ortant
conversation. My question is about your draft timeline and I think I had shared
concerns with the Chair in terms of when it would be appropriate for the Council as
1
a body or the Council as
individuals to
submit input as representatives of the people
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of Kaua`i. Your draft timeline shows that right now you are in a State public
comment period or you are drafting EIS segments and you will finalize the draft
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Management Pla n
around April.
Ms. Herman: Yes. Let me address that. That is correct. It
will be internally finalized. We would be happy to come back to the County Council
and due a briefing with you. But it officially goes out to the public probably late
Fall of 2013 when there is actually a draft document you can read.
Ms. Yukimura: Okay. When that draft document is
available, then everyone will really see what the recommendations are rather than
speculate what they might be. Then there is a ninety (90) day comment time so
that we could take a look at all of the science and the traditional...all of the things
that you will incorporate into the plan, see what you are actually recommending
and then react to it at a time that would also allow for review of our input and
changes, if you see that changes are warranted.
Ms. Herman: Correct.
Ms. Yukimura: So, we have time in the Fall of this year to
could influence the plan and its outcome.
submit testimony that co p
Ms. Herman: Definitely we would encourage that and
would a pp reciate that
input ut at that time. Also, I think I can speak for both of us
that we are committed to...like you said, this is a very complicated issue and really
appreciated what everyone had to say. To come back and I think I speak for both of
us, to continue to have these conversations, continue with the education, to make
sure that all these conversations are happening based in fact. Then of course, all of
the issues are considered, subsistence fishing and others. So, we can continue those
conversations and do that education. But during the ninety (90) day public
COUNCIL MEETING 81 FEBRUARY 27, 2013
comment period is a fantastic time to provide concrete comment on an actual draft
plan.
Ms. Yukimura: Because I share the Chair's concern that we
have a responsibility as representatives of the island to reflect their concerns. So, I
want to make sure that we will have to opportunity. But it may be as somebody
said, it is premature right now because not everything is in yet and we do not even
know what your recommendations...your draft recommendations are.
Ms. Herman: Correct.
Ms. Yukimura: Thank you very much.
Chair Furfaro: Again, before I recognize Mr. Kagawa, as I
mentioned at the beginning of my statement, deferring this until things are clearer
is an option for us as well, besides voting it down or not supporting it. But I want to
let you know, the only time we will have in April is the 24th. The only time this
Council will have for this is the 24th of April.
Ms. Herman: And I do not know...I think April is not the
necessary time. We could certainly work to find a good time with your schedules.
Did you want to add anything?
Ms. Chow: If it has not been apparent in some of our
remarks, this plan will not successful unless we get the support from the
community, the County Councils, and the State. So, it is in all of our best interest
to take the time we need to make sure that you understand what we are doing and
to make sure it is representative and meets your goals of what is needed for the
island of Kaua`i. We have heard a lot from a very vocal group of people. But I can
assure you in our public comment processes to date there has opinion an equal
number if not more number of people who feels that the ocean needs protection.
Our job is to balance that and facilitate a process that allows moves forward.
Chair Furfaro: Just so you know, before I give it to
Mr. Kagawa. The testimony was split down the middle.
Ms. Chow: Yes, you are right.
Chair Furfaro: Down the middle. It was not supporting
either one side and that is why I wanted to say we represented all the people and
this thing is cut down middle. Mr. Kagawa, you have the floor.
Mr. Kagawa: Well, to reiterate your point, it is cut down
the middle, but I would say the majority of the local people living on Kaua`i was
more than the ones opposed. So, there is a lot of testimony from the mainland and
O`ahu, that came in. Just to let you know. But anyway, so is one of the plans...I
mean one of the major plans for the monk seals, just to let the public know, to
recover them is to bring them from the Northwest Hawaiian Islands to Kaua`i?
Ms. Chow: Just to be clear, that is why I was so pleased
that our colleague from NOAA, Jean Higgins, stated that it is not a Sanctuary
proposal.
Mr. Kagawa: That is not a proposal?
COUNCIL MEETING 82 FEBRUARY 27, 2013
Ms. Chow: It is not a Sanctuary proposal.
Ms. Herman: Fisheries. I think that this illustrates there
is still a lot of confusion and education that we need to continue.
Mr. Kagawa: No, but that is the plan from Fisheries to do
that because I had a meeting, while with Senator Kouchi and Senator Tokioka at
the Civil Defense Office and that was one of the proposals they talked about. The
people above you, I believe.
Ms. Chow: No, let me address that. You will not see
that in our draft Sanctuary Plan.
Mr. Kagawa: Okay. But it is maybe in their plan, another
Division of NOAA. So, that is where the confusion is because I met twice with you
folks, with the people at Civil Defense and you folk and I have this right here. It is
so confusing as to who controls what and what is being proposed and what each
proposal affects? So, I mean, I have been in Office for two and a half (2 %2) months.
It has forced me to try and get comfortable with the issues. But I am still not even
close to being comfortable.
Ms. Herman: Let us keep talking.
Mr. Kagawa: So, if you are expecting that I know
everything, I do not. But I do know this, where my stance is, is to support our
children, born and raised here, lived here all my life and I love my life. I mean what
we have, the ocean and everything. I just want the young ones that come up to
have the same opportunities as I had. That is why this is not personal or anything
against you folks, against any environmental groups out there, I am just...that is
the kind of person I am. I fight for you keiki. I said if I got elected I would do that
and that is exactly what I am doing. Now, I do not know how the vote is going. I
hope I have the votes to approve it. But like Chair Furfaro said, all we are doing is
recommending other people who really control the decisions that will be made to
listen to our position. I want to thank you all for all the time that you have spent
with me and we will continue to spend more time.
Ms. Herman: Absolutely.
Mr. Kagawa: Thank you.
Ms. Chow: Thank you.
Mr. Kagawa: Do you have anything you want to comment?
Ms. Herman: I just wanted to say that I think we share
the exact same value and that is what we are trying to figure out and we are
committed to continuing to work with you to have these conversations and to sort
out questions and to make sure that we all get to the place that we want to be.
Mr. Kagawa: Thank you.
Chair Furfaro: Okay. So members, I only bought us fifteen
(15) minutes with the Attorneys. I want to say here are our options. Our options
are to actually vote on the Resolution, which I have already stated my position. I
COUNCIL MEETING 83 FEBRUARY 27, 2013
have issues with a couple of the items and I will not be supporting it. The second
piece is to basically defer it date specific April 24th. By that time, some of the clarity
might come through on this particular piece and right now I have to tell you, it
really breaks my heart to see people like Uncle Charlie, Dennis, that have come and
spent as much time as they have here today and leave. They really represent not
only the historical fishing processes here, but the cultural pieces. Uncle Charlie is
one (1) of the best upena fishermen/net-throwers on the island and I am going to be
supporting a deferral for April 24th. But I cannot make any motion. It is up to you
folks. JoAnn.
Ms. Yukimura: Chair, I would like to suggest, especially
because especially in April we will in the throes of our budget hearing, if we could
do it towards July because that seems to be when the draft plan will...is it?
Chair Furfaro: That is not what this says.
Ms. Yukimura: This says May. Do I have a different sheet
than you? It says the recording...
Ms. Nakamura: The comment period is going to be in
September.
Chair Furfaro: Oh, mine does not go that far.
Ms. Yukimura: Well it should be...it should be just before or
at the beginning of the ninety (90) day comment period, I am thinking.
Ms. Chow: That is a good...if...so on your timeline, if
that is the case, we are looking at Fall of 2013 is when our public comment period
will be.
Ms. Yukimura: So, when will the draft plan be out?
Ms. Chow: For public review and comment?
Ms. Yukimura: Yes.
Ms. Chow: Fall of 2013, if we stay on schedule. Let me
just remind you we have a goal of getting this right. We are not going to release a
plan unless we made sure that we have talked to all the folk. So, our plan to date is
to have it out for public comment Fall of 2013.
Chair Furfaro: It is true it was supposed to be done last
year? Somebody gave testimony to that effect today.
Ms. Chow: Yes, with any planning process. So, on your
schedule we had a public comment period that just ended. I will let Elia speak to
that. But we had to allow for the State to meet its requirements.
Chair Furfaro: I need a date. I cannot defer it indefinitely.
I have to have a date that fits with our space to defer it date specific.
Ms. Yukimura: Can we say our first meeting in September
then?
COUNCIL MEETING 84 FEBRUARY 27, 2013
Chair Furfaro: I would like to start in August, if it is our
first meeting.
Ms. Yukimura: Is that all right? Will you have enough data
to know where you will be going so we can...or will we have something though look
at in terms of the gathering of awful all your information?
Ms. Chow: The State and Federal Government are
involved, we send it out for internal review for our leadership to review it. So, we
can certainly give you an update of where we are. I cannot guarantee that we will
have a document cleared in time for you to be looking at it in your hands.
Chair Furfaro: Okay I am looking for something. Before I
give the floor to Mr. Kagawa, I am looking at the 14th of August.
Ms. Yukimura: Chair.
Chair Furfaro: I am going to give Mr. Kagawa the floor and
come back to you.
Mr. Kagawa: I am just waiting to bring the meeting back
to order. I want to make a motion to approve.
Chair Furfaro: We are at a point here that the
Councilmember has asked the meeting to come back to order and the reality is that
you can make that request. I would have appreciated the courtesy for the
Chairman to continue what I was doing, since I gave you the courtesy of running
the meeting.
Mr. Kagawa: I will withdraw.
Chair Furfaro: Thank you very much, sir. The date again, I
want to confirm is August 14th.
RICKY WATANABE, County Clerk: First Council Meeting in
August.
Chair Furfaro: Okay? I am not going to take anymore from
you folks. I need to do business here. Nadine and then Councilmember Hooser.
Ms. Nakamura: Chair, I would have concerns doin g it in
August. If they are saying that the target date is to try to get a public draft out by
September, then that is when it is going to be a public document and everyone can
respond at that time. So, we need to do our meeting after it becomes public and we
II' have had a chance to digest the document and then come up with clarifying our
g p �' g
concerns that could be in the form of a very specific Resolution in response to what
is written.
Chair Furfaro: I understand your pointed and my point is I
would like to be the first ones to comment and hear some of the things that have
bee n promised to us today in advance of you getting the report out. But I could
recommendation. Mr. Hooser, you have the floor
yield to the Vice Chair's eco
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COUNCIL MEETING 85 FEBRUARY 27, 2013
Mr. Hooser: I just wanted to briefly say that I share the
concerns of the Chair. I appreciate the conversation and discussion. I would like to
thank Councilmember Kagawa for introducing it and facilitating discussions. But I
am unable to support the Resolution as it stand now. I believe that we should at
the minimum wait until the report is out so we can make informed comments.
Chair Furfaro: Thank you, Mr. Hooser, Mr. Rapozo. Do you
wanted to restate your position? I will give you the floor again and I want to
remind everybody, I have to call the meeting back to order. So, go ahead.
Mr. Hooser: Really quickly, my mic was off and I wanted
to be clear to the public that I am unable to support the Resolution as it is now
written and support deferring until a time when the draft is ready for the public
and we can comment on that and make an informed decision at that point. Thank
you.
Chair Furfaro: Thank you. Mr. Rapozo?
Mr. Rapozo: Thank you. You know, I think it is
important and I can understand the apprehension and the request to wait for more
information. But I think we represent our constituents and I have seen the petition
here with three hundred fifty-one (351) signatures, fifty-nine (59) of them are from
out of the State or even out of Country. But it is basically saying they support the
protection of the Hawaiian Humpback Whales. Everybody supports that. I want to
make sure the public understands what the Resolution says. At the end of the day,
every Resolution says it "Be It Resolved," that is the action item, if you could even
call it that because this carries no weight. But let me just read it because I know
Scott read it, but it was like page 5 and 6. But the first "Be It Resolved" that the
Council of the County of Kaua`i supports the efforts of Kaua`i's ocean users, the local
fishermen, the ocean gatherers, traditional users, and other ocean users to limit
further regulations in Hawai`i's oceans waters to an expansion of Federal authority
over Hawaiian waters. That is the first "Be It Resolved." That is what the
constituents have come up and asked me as far as support. The second one
is that it request that the State of Hawai`i to take an act role in management of
marine resource as required in the State Constitution, plain and simple. I support
that one hundred percent (100%). I agree with that. Let it further be resolved that
the it requested of both Department of Land and Natural Resources, which is the
DLNR, the State, and the National Oceanic and Atmospheric Administration
(NOAA), that any documentation of existing conditions or development of new plans
or the Sanctuary must include equally balanced studies that describe measure to
ensure the economic and cultural survival of the people, including protecting
subsistence fishing and native Hawaiian cultural practices and gathering rights
and preserving the aina and recognize the needs of fishermen, traditional ocean
users and ocean gatherers. That is what I heard from you today. That is what we
are trying to achieve. That in fact we want to reach the area where...well, I did not
hear from all of you because some I think, the Sanctuary or protected area only
really looks at the endangered animal and not the users. Then the final Be It
Further Resolved that is requests NOAA through all of its branches and Divisions,
because there are so many of them, in fact I do not know how many there are, but it
sounds like there is a lot, to exclude the main Hawaiian Islands in its
recommendation to designate a critical habitat for the Hawaiian Monk Seal and to
refrain from including any other species into the Sanctuary until a complete
analysis and public disclosure takes place and until all legislative requirements are
met. I do not think that is unreasonable. I really do not. I think we are all saying
COUNCIL MEETING 86 FEBRUARY 27, 2013
the same thing, everybody got paranoid or scared that oh my gosh the Council is
doing a Resolution. But this is the Council's input if it passes. I do not think it will.
But I guess my point...I will be supporting the approval because I think this
is important to Kaua`i's people. Yes, we have got testimony from people that are
planning to move to Kaua`i and people in New York. Those people, although I value
their testimony, they do not live here. They have not lost the ability to take
advantage of our...what I would call our cultural assets here, the beaches. I think it
is a right. You know I think what bothered me the most, I want to a meeting in
Hanapepe and the consultant that NOAA hired asked me if I felt that the use of the
beaches was a right or privilege? I said it is a right and she disagreed. The
Constitution gives us the right to use the beaches, the people. So, it is a right for
our people. What I am saying is I am going support this because I think NOAA
needs to know and everybody who is involved with this process needs to understand
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that there is one (1) component that has to address and that is that equal balance.
Yes, we need to protect our endangered species, but we have to protect our people's
right to use our resources, really. I think that is important and that is why we are
here. The monk seals, the whales, the endangered species, shearwaters, they all
have a voice. They all have a voice through all the Environmental Agencies and
Federal Government and so forth. Our voice is for the people of Kaua`i. They do not
have the lawyers. They do not have the Environmental Lawyers that can go fight
for what they believe. That is our voice. At the end of the day the process is going
to take its course. But I believe our job, my job, and we all have different
constituent and that is what makes this p rocess wonderful, that is why there are
seven (7) of us, six (6) today. But we all bring the different ideas to the table and we
vote and at the end of the day, major majority wins. But I am saying that I support
this Resolution because the Be It Resolved, I believe, takes us to where we want o
go and it just really expresses the people's feeling on what we should do and that
they want to be heard and they do not want to be threatened. I have to tell you, if
there is so much misinformation out there, which is, we are not doing a good job
with educating the people. We hold community meetings...mine was Sunday at ten
o'clock (10:00) in the morning at Hanapepe. Sunday at ten o'clock (10:00) in the
morning. There was a few people there, myself and Senator Kouchi were the only
politicians there. Sunday at ten o'clock (10:00) in the morning. Most people go to
Church on Sundays at ten o'clock (10:00) in the morning. So, my point is this, if we
want the public to be informed when we as the...everyone including the Council,
needs to educate them and I do not think that that is happening. That is why the
rumors fly around and there is misinformation. But at the end of the day, what I
believe the Be It Resolved that is on the Resolution is exactly the message I think
Y ou all should have when you start
lanning your plan. Thank you.
Chair Furfaro: You are welcome. Members, I want to say a
couple of thing to you. First there was Jean Higgins in testimony today and I would
like here on our next visit to Kaua`i to visit with me because I have a ton of
questions for her about things that are mixed into the confusion here. Number two
(2) I appreciate the fact that this gentleman in the back, James, right? You are
going to make an appointment to see me as well to talk about the
miscommunication of beach management. As a courtesy to Mr. Kagawa, I would
like to first vote on his Resolution. I will not be supporting it because there are
flit
certain things
in there that I do conflict w ith. Then we will entertain a motion to
g
of dates is now October 9th. So, that is just for
defer date specific. My third choice
p Y � J
your information. JoAnn, because I am really anxious to get to a point with a
motion.
COUNCIL MEETING 87 FEBRUARY 27, 2013
Ms. Yukimura: Thank you, Mr. Chair. I would request that
we act on a deferral first which is actually the parliamentary protocol partly
because I do not want to vote against this Resolution. I feel like there are many
good parts of it. But I also feel there is a lack of clear understanding, a lack of
information, a draft plan is not even out this presumes what will be in the draft
plan and that I do not think we should do that. I think if we pass a Resolution we
want it to be accurate and we want it to reflect accuracy and also a fair balanced
position that represents the people of Kaua`i. I think we still have a chance to do
that. So, I would prefer that we act on a motion to defer.
Chair Furfaro: Somebody make a motion here because I
cannot.
There being no objections, the meeting was called back to order, and
proceeded as follows:
Mr. Rapozo moved to approve Resolution No. 2013-38, seconded by
Mr. Kagawa.
Ms. Yukimura moved to defer Resolution No. 2013-38 to October 9, 2013
seconded by Mr. Hooser.
Chair Furfaro: A motion of deferral supersedes a motion for
approval. But before I say anything more, Mr. Kagawa, your work is well
appreciated, very much. I might write separate testimony on the subject matter.
Mr. Clerk, I guess we have the motion to defer, date specific, October 9th. Can I
have a roll call vote, please.
The motion to defer Resolution No. 2013-38 to October 9, 2013, was then put, and
carried the following vote:
FOR DEFERRAL: Hooser, Nakamura, Yukimura
Furfaro TOTAL— 4,
AGAINST DEFERRAL: Kagawa, Rapozo TOTAL — 2,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL — 0.
Chair Furfaro: Thank you very much. This agenda item is
now complete for the day. Thank you.
There being no objections, the Council recessed at 4:28 p.m.
There being no objections, the meeting was called back to order at 4:30 p.m.,
and proceeded as follows:
EXECUTIVE SESSIONS:
Chair Furfaro: May I have the County Attorney up, please?
There being no objections, the rules were suspended.
COUNCIL MEETING 88 FEBRUARY 27, 2013
Mr. Castillo: Council Chair, if I may, I would like to read
ES-605 through ES-609 just once. Thank you. So, this pertains ES-605 thru
ES-609.
ES-605 Pursuant to Hawaii Revised Statutes (HRS) Section 92-4 and
92-5(a)(4) and (8); and Kauai County Charter Section 3.07(E), the purpose of this
executive session is to consult with the Council's legal counsel to receive legal
updates, overviews, and recommendations for purposes of obtaining Council
approval of proposed settlement of a workers' compensation claim. This
deliberation and/or decision making involves matters that require the consideration
of information that must be kept confidential as, inter alia, it concerns significant
privacy interests. The significant privacy interests relate to a medical history,
diagnosis, condition, treatment, or evaluation, and which, pursuant to state or
federal law, including Health Insurance Portability and Accountability Act, are
protected from disclosure.
ES-606 Pursuant to Hawaii Revised Statutes (HRS) Section 92-4 and
92-5(a)(4) and (8); and Kauai County Charter Section 3.07(E), the purpose of this
executive session is to consult with the Council's legal counsel to receive legal
updates, overviews, and recommendations for purposes of obtaining Council
approval of proposed settlement of a workers' compensation claim. This
deliberation and/or decision making involves matters that require the consideration
of information that must be kept confidential as, inter alia, it concerns significant
privacy interests. The significant privacy interests relate to a medical history,
diagnosis, condition, treatment, or evaluation, and which, pursuant to state or
federal law, including Health Insurance Portability and Accountability Act, are
protected from disclosure.
ES-607 Pursuant to Hawaii Revised Statutes (HRS) Section 92-4 and
92-5(a)(4) and (8); and Kauai County Charter Section 3.07(E), the purpose of this
executive session is to consult with the Council's legal counsel to receive legal
updates, overviews, and recommendations for purposes of obtaining Council
approval of proposed settlement of a workers' compensation claim. This
deliberation and/or decision making involves matters that require the consideration
of information that must be kept confidential as, inter alia, it concerns significant
privacy interests. The significant privacy interests relate to a medical history,
diagnosis, condition, treatment, pursuant tment or evaluation, and which, ursuant to state or
federal law, including Health Insurance Portability and Accountability Act, are
protected from disclosure.
ES-608
Pursuant to Hawaii Revised Statutes (HRS) Section 92-4 and
County Charter Section 3.07E the purpose of this
(8); and Kauai Co t C
92-5(a)(4) and 8 a
( ), Y ( ), p p
executive session is to consult with the Council's legal counsel to receive legal
updates, overviews, and recommendations for purposes of obtaining Council
approval of proposed settlement of a workers' compensation claim. This
deliberation and/or decision making involves matters that require the consideration
of information that must be kept confidential as, inter alia, it concerns significant
privacy interests. The significant privacy interests relate to a medical history,
diagnosis, condition, treatment, or evaluation, and which, pursuant to state or
federal law, including Health Insurance Portability and Accountability Act, are
protected from disclosure.
•
COUNCIL MEETING 89 FEBRUARY 27, 2013
ES-609 Pursuant to Hawaii Revised Statutes (HRS) Section 92-4 and
92-5(a)(4) and (8); and Kauai County Charter Section 3.07(E), the purpose of this
executive session is to consult with the Council's legal counsel to receive legal
updates, overviews, and recommendations for purposes of obtaining Council
approval of proposed settlement of a workers' compensation claim. This
deliberation and/or decision making involves matters that require the consideration
of information that must be kept confidential as, inter alia, it concerns significant
privacy interests. The significant privacy interests relate to a medical history,
diagnosis, condition, treatment, or evaluation, and which, pursuant to state or
federal law, including Health Insurance Portability and Accountability Act, are
protected from disclosure.
There being no objections, the meeting was called back to order, and proceed
as follows:
Mr. Kagawa moved to convene in Executive Session as recommended by the
County Attorney, seconded by Mr. Rapozo.
Chair Furfaro: There are enough of us here today because
we are a quorum of four (4) on a majority of six (6) so that I will do a roll call vote
and I need to have that done now please, for Executive Session.
The motion to convene in Executive Session for ES-605 was then put, and carried by
the following vote:
FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura,
Rapozo, Yukimura, Furfaro TOTAL— 6,
AGAINST EXECUTIVE SESSION: None TOTAL — 0,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL— 0.
The motion to convene in Executive Session for ES-606 was then put, and carried by
the following vote:
FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura,
Rapozo, Yukimura, Furfaro TOTAL— 6,
AGAINST EXECUTIVE SESSION: None TOTAL— 0,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL — 0.
The motion to convene in Executive Session for ES-607 was then put, and carried by
the following vote:
FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura,
Rapozo, Yukimura, Furfaro TOTAL — 6,
AGAINST EXECUTIVE SESSION: None TOTAL— 0,
EXCUSED & NOT VOTING: Bynum TOTAL — 1,
RECUSED & NOT VOTING: None TOTAL— 0.
COUNCIL MEETING 90 FEBRUARY 27, 2013
The motion to convene in Executive Session for ES-608 was then put, and carried by
the following vote:
FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura,
Rapozo, Yukimura, Furfaro TOTAL— 6,
AGAINST EXECUTIVE SESSION: None TOTAL — 0,
EXCUSED & NOT VOTING: Bynum TOTAL — 1,
RECUSED & NOT VOTING: None TOTAL— 0.
The motion to convene in Executive Session for ES-609 was then put, and carried by
the following vote:
FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura,
Rapozo, Yukimura, Furfaro TOTAL— 6,
AGAINST EXECUTIVE SESSION: None TOTAL— 0,
EXCUSED & NOT VOTING: Bynum TOTAL — 1,
RECUSED & NOT VOTING: None TOTAL — 0.
Chair Furfaro: On that note, for those of you that are here
for Executive Sessions, we are going to lock you in, if you are here for an Executive
Session. If you are not here for an Executive Session, please wait outside because I
am not going to defer anymore items because people are not here for the day. This
agenda is getting too full. Okay? So on that note, Mr. Clerk, I would like to go
directly into Executive Session. Then Eddie, lock the door.
There being no objection, the Council recessed at 4:32 p.m.
There being no objections, the meeting was called back to order at 6:28 p.m.,
and proceeded as follows:
Chair Furfaro: We are back in session. Could you read the
item, Mr. Clerk?
C 2013-87 Communication (02/05/2013) from the Housing Director,
requesting Council approval, to sell a residential property situated at 3874 Hunakai
Street, Lihu`e, Kauai, Hawaii, TMK: (4)3-3-008:019, at an affordable leasehold
sales price of $305,000.00 or the appraised value, whichever is lower and to
authorize the County Clerk to sign all legal documents relating to t h e sale of said
property. The property
was acquired utilizing the Neighborhood Stabilization
Program Funds (NSP) which restricts sales to one hundred twenty percent (120%)
and below of the Kaua`i Median Household Income: Ms. Yukimura moved to
approve C 2013-87, seconded by Mr. Kagawa.
Ms. Yukimura: Three hundred and five thousand dollars
($305,000.00) is higher than what we usually been approving for leasehold, so I just
wanted you to explain how we got there.
There being no objections, the rules were suspended.
KAMUELA COBB-ADAMS, Housing Director: Normally we buy a lot of
houses with CDBG Funds or HOME Funds which is restricted to eighty percent
(80%) and below the median income. The funding we used in this case was NSP or
Neighborhood Stabilization Program Funds which the minimum we can sell the
homes up to a hundred twenty percent (120%) of the area median income — or
I',
COUNCIL MEETING 91 FEBRUARY 27, 2013
Kaua`i median income. The three hundred and five thousand dollars ($305,000.00)
was based on the appraisal done in December for leasehold sale. That is the
appraisal price and that is also the agreed sale price and we are actually in escrow
for that price with a family that is at a hundred percent (100%) of Kaua`i median
income. That is a unique opportunity to reach that gap group. A hundred percent
(100%) is the median income household and that is why it is at that level. It is also
based on the appraisal sold levels not an arbitrary number.
Ms. Yukimura: Yes, good. Thank you. I am concerned about
the leasehold restrictions and the security that enables us to keep it within the
mission of our work which is affordable in perpetuity.
Mr. Cobb-Adams: In the leasehold sale — any sale or say if
someone passes and they wanted to leave it to their child, it would restrict that
passing or sale to someone within that... at or below hundred twenty percent
(120%) of the Kaua`i median income. It would stay... the house will stay...
Ms. Yukimura: Affordable?
Mr. Cobb-Adams: ...for her family in that income range.
Ms.Yukimura: It would be sold to other qualified families,
in other words.
Mr. Cobb-Adams: Yes, it has to be.
Ms. Yukimura: Thank you very much.
Mr. Kagawa: Occasionally I have Realtors that call me and
ask, "what do you approve and where." But the 3874 Hunakai Street, where is that
and what subdivision?
Mr. Cobb-Adams: I am not familiar.
Ms. Yukimura: Ulu Ko, I think.
Mr. Cobb-Adams: Right down as you pass the mall, you
passing K-Mart and going down to Nawiliwili, it is the first subdivision on the right.
Ms. Yukimura: It is down Nawiliwili Road.
Mr. Cobb-Adams: It is a nice subdivision, nice area.
Mr. Kagawa: Okay.
Chair Furfaro: How long have you been with us?
Mr. Cobb-Adams: Six (6), seven (7) months.
Chair Furfaro: Okay, we will give you another seven (7)
months...
Mr. Cobb-Adams: To learn all the subdivisions, okay, thank
you.
COUNCIL MEETING 92 FEBRUARY 27, 2013
Chair Furfaro: Anymore questions for the Housing Director?
There being no objections, the meeting was called back to order, and
proceeded as follows:
Mr. Kagawa: I am not real familiar with the leasehold
category and I am sure I will catch up with time but if it is Ulu Ko subdivision that
we are talking about, three hundred five thousand dollars ($305,000.00) is probably
what the land is worth right now. It is a very low price and being that it goes to
affordable, I can support this.
The motion to approve C 2013-87 was then put, and carried a 6:0:1 vote
(Mr. Bynum excused.)
C 2013-88 Communication (02/12/2013) from the Housing Director,
requesting Council approval of a leasehold sale of a residential property situated at
5178 Kome Street, Ka a a, Kauai, Hawaii to Kauai Economic Opportunity, Inc.
p
(KEO), "as is" in the amount of $180,000.00 for a lease term of twenty (20) years
and to authorize the County Clerk to sign all legal documents relating to the sale of
said property: Ms. Yukimura moved to approve C 2013-88, seconded by Mr. Rapozo.
Ms. Nakamura: Kamuela, within a year about how many
families would go through the use of this HOME, under this program?
There being no objections, the rules were suspended.
Mr. Cobb-Adams: I would have to get back to you. I will have
to consult with KEO on that one —one of the non-profits.
Ms. Nakamura: Okay.
Mr. Kagawa: Same type of question — 5178 Kome Street,
Kapa`a, where is that? Is that by the school, Houselots, Homesteads?
Ms. Yukimura: Here is a map.
Mr. Kagawa: Okay.
Mr. Cobb-Adams: I do not know the subdivision.
Ms. Yukimura: It is close to Saint Catherine's, it is off of
Kawaihau Road.
Chair Furfaro: You still have seven (7) more months.
Mr. Kagawa: Very close to Kapa'a High School. What is
the plan for KEO to do with that for the next twenty (20) years?
Mr. Cobb-Adams: What KEO will be doing is using that as a
transitional home for homeless. They try to get someone down under, down and
outs, they can live there for a fee — rent and they will use that as a transition to get
into a market rate rentals or some other kind of living situation.
COUNCIL MEETING 93 FEBRUARY 27, 2013
Mr. Kagawa: My next question is, what was the prior use
of that home?
Mr. Cobb-Adams: That house was purchased by a family in a
rent-to-own that the County had and that family chose to purchase a house in
Anahola, DHHL land and pulled out of it. It has been vacant since then and has not
sold, so this is another situation for us to take that house and put it towards a
positive use.
Mr. Kagawa: Have we checked with the neighbors and
checked how they feel about the KEO using it to have homeless people try and start
with...
Mr. Cobb-Adams: I would have to talk with my Staff about that
and get back to you. I can get back to you tomorrow.
Mr. Kagawa: Well, if the votes are there to approve... I
have not much say on it. I do believe we should always check because when that
kind of situation happens next to you, your family, or friends, you hear their side
about it and they would like to be notified at least and treated with respect.
Mahalo.
Chair Furfaro: I would like you folks to know that we are
going to 7:00 for our dinner break and I would like to see if we can go through the
Fire Chief and the County Engineer before that time.
Ms. Yukimura: Kamuela, this is for a family right? It is for
a single family, is it not?
Mr. Cobb-Adams: I have to talk with KEO. Generally KEO
what they will do is they will fix up and improve the house and in this plan, they
are going to be fixing up the house and bring it up to a standards that has been
vacant for a couple of years. It is not up to living conditions, so they will be
improving the house to a much livable standard, and there are screening. Not
anybody can live in transitional housing. It is transitional for a reason. But you
Y Y g Y
have a good point and I am not aware of how that procedure goes, if KEO does it or
if our Staff does the consulting but I will get back to you regardless of what vote
happens. I will get back to you tomorrow.
Ms. Yukimura: Thank you.
Ms. Nakamura: Councilmember Kagawa brings up a good
point by just being a good neighbor, notifying the neighbors, and then if things come
up, that they have a contact number with someone from KEO, but just to be a good
neighbor, that would be a good policy to follow.
Mr. Cobb-Adams: I agree. Thank you.
Mr. Kagawa: Are we under a time constraint? Would we
be able to refer to Housing and have it approve in two (2) weeks?
Chair Furfaro: Kamuela, you heard the question, are we
under any time constraints?
COUNCIL MEETING MEETING 94 FEBRUARY 27, 2013
Mr. Cobb-Adams: Two (2) weeks, I think we can deal with.
Chair Furfaro: We can defer this to the Housing Committee
next week, if you would like, and then the following week, get it out of the full
Council.
Mr. Cobb-Adams: I am fine with that.
Chair Furfaro: Does that satisfy you?
Ms. Yukimura: Can you get whatever information in a week
or would two (2)...
Mr. Cobb-Adams: I can get it tomorrow.
Ms. Yukimura: Then we probably do not even need...
Mr. Cobb-Adams: I would prefer that we do this as quickly as
possible although it does not have today, I do not want to pressure you because you
bring up good points. I do not mind resolving, I think we can resolve it and I will
resolve it. It is a good point and I can get the answers tomorrow. The quickest
possible, if you do not want to do it today, I can... I just ask to do it as quick as
possible, I would like to move.
Chair Furfaro: Mr. Clerk, there is a possibility that we can
set up a Special Council Meeting in addition to next week's Committee Meeting,
right, just to handle this item? So, that is one (1) option and I will share the detail
with you.
Mr. Rapozo: Let me try for another option to get this done
tonight because when I read the item/communication, I obviously did not read every
page of the lease but I read as much as I could. I was under the impression that it
was "a unit" "a house" for "a family" as Ms. Yukimura talked about, and that it was
not going to be an emergency shelter.
Mr. Cobb-Adams: It is not an emergency shelter, it is a
transitional house and every transitional house that I know of or unit has been for a
family. I want to make sure that I get everything right.
Mr. Rapozo: If you can get that confirmed tonight, if you
have somebody's phone number that you can call tonight...
Mr. Cobb-Adams: I can get it tonight. I can get it in five (5)
minutes.
Mr. Rapozo: I would be ready to vote for it if you can tell
us...
Mr. Cobb-Adams: I will...
Mr. Rapozo: Typically KEO, they operate a transitional
shelter or a transitional rental typically up to two (2) years. So, people apply fort h the
program and I am only telling you this because when you call KEO or whoever you
g ram Y gY Y Y
call... all I need to know is if it consistent with their existing transitional rentals. I
COUNCIL MEETING 95 FEBRUARY 27, 2013
believe we have some Pa'anau and Lihu`e Court, so the families apply and they are
very strict restrictions, requirements, and when they qualify, they go into the home
and live there for up to two (2) years — up to twenty-four (24) months. That is how I
understand the KEO transitional housing and if that is the case with that project,
then I can vote on it tonight.
Chair Furfaro: Let me first excuse you from the stand and
will move on to other business. When you do call, find out the length of time too? Is
it two (2) years? And we will come back to this item.
There being no objections, the meeting was called back to order, and
proceeded as follows:
C 2013-90 Communication (02/14/2013) from the Prosecuting Attorney,
requesting Council approval to apply, receive and expend Federal Highway Safety
grant funds from the State of Hawaii Department of Transportation in the
amount of $10,700.00 to be used towards travel and training: Ms. Yukimura
moved to approve C 2013-90, seconded by Mr. Kagawa, and carried by the 6:0:1 vote
(Mr. Bynum excused).
Chair Furfaro: Mr. Dill, are you here for the next one?
There being no objections, the rules were suspended.
LARRY DILL, P.E., County Engineer: Yes, sir.
Chair Furfaro: I am going to make the next one (1) short but
if you can come up, we will try to go through your things and then we will go to the
Fire Chief.
C 2013-91 Communication (02/20/2013) from Council Chair Furfaro,
requesting the presence of the County Engineer, to discuss the location of the
"Speed Limit" signs along Lawa`i Road and related matters.
Chair Furfaro: Thank you for being here this late but,
Larry, on this one, I think there is a miscommunication and I am going to ask you
for some help on. The area is of most concern and were laid out in that Resolution
was the fifteen (15) miles an hour speed limit in front of the Lawa`i Beach Resort,
when surfers and swimmers get out of the water, they come up on the road and
seem to pop out between the cars with people going by. There needs to be a series of
those fifteen (15) miles an hour speed markers placed in that area because people
going to the beach and people coming out of the water, they are not being seen by
the cars that are parked on both sides. There is a group of ocean recreational
people that would like to be able to discuss the placement of those signs. The signs
went in but they went in on the far end and they went in on the piece going down by
Kukui`ula but people do not know the speed limit with the people coming out of the
ocean. I will give you their name tomorrow and if you can tell me that you will meet
with them to review and satisfy the intent of what this Resolution was, I will be
very appreciative.
Mr. Dill: I will be happy to do that.
Chair Furfaro: We are doing a lot of attention to this
walking and safe routes and so forth and this is a very dangerous piece in front of
COUNCIL MEETING 96 FEBRUARY 27, 2013
h speed limit but you just need to get
Lawa i. You already have the Resolution on the s y just g
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the signs placed appropriately for those ocean/recreational people.
Mr. Dill: Okay.
Chair Furfaro: If that is okay with you folks, I would like to
get a motion to receive this item and then we will put it back on when Engineering
meets with those individuals.
Mr. Kagawa moved to receive C 2013-91 for the record, seconded by
Mr. Rapozo.
Mr. Dill: I will be happy to meet with the individuals
and get their information and I can work it out with them and provide a report back
to you in writing instead of having Council...
Chair Furfaro: That will work. This is an item to receive but
I will get you the names of the ocean/recreational people that need help.
Mr. Dill: Okay.
There being no objections, the meeting was called back to order, and
proceeded as follows:
The motion to receive C 2013-91 for the record was then put, and carried by a
6:0:1 vote (Mr. Bynum excused).
LEGAL DOCUMENTS:
C 2013-92 Communication (01/29/2013) from the Fire Chief, requesting
Council approval to indemnify the Arch/Diocese, Saint Catherine's, Catholic Mutual
and their employees and agents per acceptance of the indemnification language
contained in the "Unaffiliated Organization Agreement" and the "Facility Use
Indemnity Agreement," for the usage of Saint Catherine's facility for the
Community Emergency Response Team (CERT)T) Training Pro ram: Mr. Kagawa awa
moved to approve C 2013-92, seconded by Mr. Rapozo.
There being no objections, the rules were suspended.
ROBERT WESTERMAN, Fire Chief: I have no comments.
Ms. Yukimura: I do not have a question, I just happened to
talk to some people from Princeville and they are just so pleased that the CERT
Program is happening and being reactivated. Thank you. I know this one (1) is in
Kapa'a but you are doing that also in other places on the island, right?
Mr. Westerman: Yes. That is the reason why we are asking
for this facility to get the classes going again. Neighborhood Center's have
schedules of a lot of people and this is a multi-day class so we are trying to find
COUNCIL MEETING 97 FEBRUARY 27, 2013
facilities that; one (1) will support a large enough group and you are right, we are
getting ready to start a new group in Hanalei, March 5th. We have just started
another one and where we are actually using my training facility upstairs in the
evening for that group here in Lihu`e and the Catholic Church in Kapa'a has agreed
to host several classes if we needed to hold them in Kapa`a.
Ms. Yukimura: Thank you very much for that work, Chief.
If people are interested in volunteering, are you still open to volunteers?
Mr. Westerman: Yes, absolutely. It is on the County's website
and if they want to E-mail kfdcert @kauai.gov, that is our CERT coordinators E-mail
and also that information and the class schedules are online on the County's
website.
Ms. Yukimura: So maybe you can just explain the acronym
CERT.
Mr. Westerman: CERT is a Community, Emergency,
Response, Team. It is one (1) of the many pillars out of FEMA and how to help
communities in disasters and this particular one (1) makes the community taking
charge of themselves and better preparing themselves for disasters.
Chair Furfaro: Chief, as a North Shore resident, I want to
thank you for really taking hold on this program and you got a lot of people on the
North Shore that are very appreciative simply because there are a number of times,
they do get cut off from the island.
Mr. Westerman: They are probably the most active group
which is really good. They are a really good group in Kilauea.
There being no objections, the meeting was called back to order, and
proceeded as follows:
The motion to approve C 2013-92 was then put, and carried by a 6:0:1 vote
(Mr. Bynum excused).
C 2013-93 Communication (02/01/2013) from the Director of Finance and the
IT Manager, requesting Council approval of the State Emergency Management
System (EMS) Radio Site License Agreement to formalize the County's relationship
with the State EMS public safety partners and their continued use of County radio
sites.
• License Agreement No. 8829
Ms. Nakamura moved to approve C 2013-93, seconded by Mr. Rapozo.
There being no objections, the rules were suspended.
STEVEN A. HUNT, Director of Finance: This is a new co-locater
agreement that we are working out with the State to do emergency broadcasting.
There are other co-locaters that are involved in this but this helps defrays some of
the cost of maintaining that tower and facilities. It would be new income to the
County.
COUNCIL MEETING 98 FEBRUARY 27, 2013
Ms. Yukimura: I just want to say mahalo to you and
Brandon Raines for the initiative in tying this agreement down and more so for
getting the State to agree to pay their fair share. Because they have not been doing
it in the pass and it really makes sense that it would be a cost sharing for a site
sharing. So, thank you especially given the fact that we... our resources are limited
and the State gives us so many unfunded mandates. Thank you.
There being no objections, the meeting was called back to order, and
proceeded as follows:
The motion to approve C 2013-93 was then put, and carried by a 6:0:1 vote
(Mr. Bynum excused).
Chair Furfaro: Let us go back to Kamuela.
Mr. Watanabe: We are back on C 2013-88.
There being no objections, the rules were suspended.
Mr. Cobb-Adams: Aloha, and first of all thank you very much
for giving me that time to respond and get it done today.
Chair Furfaro: A great recommendation by Mr. Rapozo.
Mr. Cobb-Adams: Awesome, I love that— getting it done.
Chair Furfaro: Let me tell you that you do not know how
much we appreciate all of you people staying here. It helps to things out when you
1 are here.
Mr. Cobb-Adams: The house is exactly like our other homes. It
is not a group home, it is for single families that are at hard times. It is basically
treated like a normal rental — any housing rental for a family that is having
difficulty renting regular housing because of the price and give it to them at a
decreased cost. For that reason, like in our Lihu`e Court, you cannot tell the
difference. It is just a family that is having trouble making ends meet, so, they can
stay up to two (2) years and if they are making progress but still struggling after
two (2) years, there is an option for extension. The family can live there, generally
it is a two (2) year thing with the encouragement to get them back on their feet, so
that they can get a standard type rental or transition to an affordable rental like
Kalepa or something like that.
Mr. Kagawa: Kamuela, I trust that KEO will at least
oversee these tenants to make sure that they basically behave and are good
neighbors, and should it get out of hand, that they can take action.
Mr. Cobb-Adams: Because of they are getting a decrease, they
also get other services from KEO and they have to participate in these programs.
For example, job building skills... so, it is an interactive program. They get a
decrease rent but they also as part of their kuleana is to participate and show
progress and so it is a good program. You have to show willingness to work the
program otherwise you do not get to rent there. Yes, they are not be able to live
there if they are not participating positively and being good renters.
COUNCIL MEETING 99 FEBRUARY 27, 2013
Mr. Kagawa: Thank you.
There being no objections, the meeting was called back to order, and
proceeded as follows:
The motion to approve 2013-88 was then put, and carried by a 6:0:1 vote
(Mr. Bynum excused).
COMMITTEE REPORTS:
PUBLIC WORKS / PARKS & RECREATION COMMITTEE:
A report (No. CR-PWPR 2013-04) submitted by the Public Works / Parks &
Recreation Committee, recommending that the following be received for the record:
"PWPR 2013-03 Communication (01/24/2013) from Committee
Chair Kagawa, requesting the presence of the County Engineer, to provide an
update on the plans for the location previously occupied by Big Save, Inc.,
situated at 4444 Rice Street, Suite 301, Lihu`e,"
Mr. Kagawa moved for approval of the report, seconded by Ms. Nakamura.
A report (No. CR-PWPR 2013-05) submitted by the Public Works / Parks &
Recreation Committee, recommending that the following be Approved as Amended
on second and final reading:
"Bill No. 2460 - A BILL FOR AN ORDINANCE AMENDING
CHAPTER 12, OF THE KAUAI COUNTY CODE 1987, AS AMENDED,
ENTITLED "BUILDING CODE,"
Mr. Kagawa moved for approval of the report, seconded by Ms. Nakamura.
(See later for Bill No. 2460, Draft 1.)
A report (No. CR-PWPR 2013-06) submitted by the Public Works / Parks &
Recreation Committee, recommending that the following be Approved on second
and final reading:
"Bill No. 2463 - A BILL FOR AN ORDINANCE AMENDING
SECTION 19-1.4, KAUAI COUNTY CODE 1987, AS AMENDED,
RELATING TO PARKS AND RECREATION,"
Mr. Kagawa moved for approval of the report, seconded by Ms. Nakamura.
(See later for Bill No. 2463)
A report (No. CR-PWPR 2013-07) submitted by the Public Works / Parks &
Recreation Committee, recommending that the following be Received for the Record:
"PWPR 2013-04 Communication (02/13/2013) from Committee Chair
Kagawa, requesting the presence of the County Attorney and the Director of
Parks & Recreation, to provide an overview and status of the terms and
conditions involved in the UNITED STATES OF AMERICA VS. COUNTY
OF KAUAI, CR. NO. 10-00614 (Newell's Shearwater Issue),"
COUNCIL MEETING 100 FEBRUARY 27, 2013
Mr. Kagawa moved for approval of the report, seconded by Ms. Nakamura.
Chair Furfaro: Gentlemen, all of these came out of
Committee and I just want to say and you heard the motion to approve but I want
to tell you what is concerning for me and I have not had the in-depth opportunity in
the Committee levels. I want to make sure that we understand that we have at this
point taken money from Pono Kai Revetment Wall, we have taken Aliomanu Road
money, Mauna Kai Road and (inaudible) money, we have taken County wide
storage facility and we have shifted those moneys for other projects. These are
moneys that are in the Bond. We have also shifted two (2) Lihu`e elderly housing
and Kekaha lateral landfill, phase two (2) that is where the money went to. What
are we doing about replacing that money and do... what is our Bond... So, you had
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a preview of my question...
There being no objections, the rules were suspended.
Mr. Dill: I can give you the preview answer.
There being no objections, the meeting was called back to order, and
proceeded as follows:
Chair Furfaro: We are going to have to move to the approval
and I am sorry the reason why I went there is because those three (3) items all have
impact on the CIP but we will wait. So, motion to approve was made on the items
read in Committee, all those in favor? Oh, you have comment?
Mr. Kagawa: I would like to request Staff to send the
minutes of CR-PWPR 2013-07 regarding United States of America vs. County of
Kauai, the shearwater issue. I just want to get the minutes sent to our
Congressional Delegation because I have previously discussed those items with a
couple of our delegation and they are very concerned as well and I think they can
really help us as we try to negotiate something that is fair and reasonable to our
residents.
Chair Furfaro: Just on that note, last week I requested the
State Legislature, our Representatives get copies of those minutes too. Any further
discussion?
The motion to approve the Public Works / Parks & Recreation Committee
Reports was then put, and carried by a 6:0:1 vote (Mr. Bynum excused).
FINANCE & ECONOMIC DEVELOPMENT (TOURISM / VISITOR
INDUSTRY / SMALL BUSINESS DEVELOPMENT / SPORTS &
RECREATION DEVELOPMENT / OTHER ECONOMIC DEVELOPMENT
AREAS) COMMITTEE:
A report (No. CR-FED 2013-03) submitted by the Finance & Economic
Development (Tourism / Visitor Industry / Small Business Development / Sports &
Recreation Development / Other Economic Development Areas) Committee,
recommending that the following be Approved on second and final reading:
COUNCIL MEETING 101 FEBRUARY 27, 2013
"Bill No. 2462 - AN ORDINANCE AMENDING ORDINANCE NO.
B-2012-737 AS AMENDED, RELATING TO THE CAPITAL BUDGET OF
THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR
JULY 1, 2012 THROUGH JUNE 30, 2013, BY REVISING THE AMOUNTS
ESTIMATED IN THE BOND FUND (Hardy Street Improvements
$740,000.00),"
Mr. Rapozo moved for approval of the report, seconded by Ms. Yukimura. (See
later for Bill No. 2462)
Chair Furfaro: I just have to make reference to the CIP
schedule that I have but if members want it, I will appreciate it in next couple of
days that you distribute it to them. So, here is the item again. We have all of those
Bond Counsel approved items that are now... that money is moving to Lihu`e
elderly housing and to Kekaha Landfill Lateral Expansion. It is basically about ten
million dollars ($10,000,000.00) removing from those projects over to these other
projects. This happens two (2) ways and this is what I want to make sure we
understand, you move that money at the time we review the Capital Plan at budget
time, that is one (1) way to do it. I only want to say to you right now that we have
moved a lot of money. Is our Bond Counsel aware of what we had already moved?
Do we know?
There being no objections, the rules were suspended.
Mr. Hunt: I am not sure the timing of the moves. We
have been in contact with Bond Counsel regarding CIP budgets for this coming
Fiscal and we are looking to make sure that it fits within the certain parameters
whether it be BAGS or other types of programs. So, we are in contact with them, or
at least I have been with specifics Fiscal Year 2014 plans. I do not know from Fiscal
Year 2013, I am assuming that they would have been in contact as well when those
were moved.
Chair Furfaro: And we are talking about Mr. Hirai, right?
Mr. Watanabe: Yes.
Chair Furfaro: I am looking for some kind of written
communication that tells us that he is aware of what we are moving. That brings
me to this opportunity with using Pi`ikoi money. We and this is for the benefit of
the Councilmembers, we can only agree to this move each year at budget time or by
a special money bill which is what you have now for us for Hardy Street. I do want
to also point out that we have moved miscellaneous almost another two point one
(2.1) million of projects. I want a lot of attention at this budget session as it relates
to these projects that pretty much now have been deferred and more importantly
the money we are shifting away from the Pi`ikoi Buildin g, how is that going to
eventually get us to a point that the shopping complex, the Big Save space and so
forth can be functional? Are (
two ou (2) gentlemen aware of the Bill that Mr.
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Kouchi and Mr. Tokioka, and Mr. Kawakami introduced for us at the State which
gives us about three hundred thousand dollars ($300,000.00) of design moneys for
that building. Are you currently aware of that?
Mr. Hunt: I am not.
COUNCIL MEETING 102 FEBRUARY 27, 2013
Chair Furfaro: Okay. I would suggest that you have some
reaction with our lobbyist to follow that Bill because the State gives us money to
help with the design and then we do not have the CIP money to actually do the
work is concerning. The State is not flushed with cash if you understand me.
Ashley, did you just give them the two (2) Bills? Those are the Bills that I am
referring to and I want to make sure we are very well coordinated with our
Legislative group when it comes to getting us money. That is for design money. If I
look at this whole thing, we have moved almost twelve million dollars
($12,000,000.00) so far to other projects which have some priorities but when it is
time to back up to the Bond Counsel to borrow some money... I am usually on that
group that represents the Council and I want to make sure that we are certainly in
concert.
Mr. Rapozo: Larry, we met regarding the... and I was
going to bring this up during the Bill but since you are here, regarding that specific
question about the Bond Funds. I am not sure if you were able to get their
responses... Steve, you were not there but Larry was there. My concern is the use of
the Bond Funds and the very frequent transfer that we have done. I am beginning
to get concerned as well because I know... and we had that discussion a couple
weeks ago. Were you able to... are you going to be here for the Bill?
Mr. Dill: If you want me here.
Mr. Rapozo: If you can answer the question now, I know
you were going to check or someone was going to check.
Mr. Dill: You are asking the question if what
specifically?
Mr. Rapozo: I had some concerns about the transfer of
funds from the Bond and I cannot remember who you may have delegated it to, the
day we met on this table, because that was my concern.
Mr. Dill: I have not gotten that information yet.
Chair Furfaro: Okay, so, you will not have that information
when that item comes up a little later so I think we can excuse you since you
already gave us your answer.
Mr. Dill: Okay.
Chair Furfaro: I just want to make sure that you gentlemen
understand what I am saying, the Council allocates to you a pile of money for a
group of projects, right? During budget time, you can modify that and so forth with
the right kind of explanations which evidentially from last year we carried four (4).
But after that one (1) period, any change that you make requires a money bill and
just so we are all clear, I sent a message over to the County Attorney's Office to get
that part of the Charter outlined for us. A lot of money has been moved from its
original intent and many of those projects are about shoreline management. The
other side we have projects where we had hoped they would be revenue centers for
us and you are moving that money too by a way of Bill. I really want to start
hearing from everybody at budget time. What are we doing about replacing those
moneys? That is my concern because until they can do a design funding for us at
the Legislature but until we actually start making the changes and upgrades to
COUNCIL MEETING 103 FEBRUARY 27, 2013
that building and we have a plan that is going to sit empty a long time. Mr. Dill,
did you make for us the request I had for the Space Planner and the disc, I think I
got a broke-up message back.
Mr. Dill: Oh.
Chair Furfaro: Where are we at of getting seven (7) discs to
the Councilmembers?
Mr. Dill: They were delivered today.
Chair Furfaro: Okay.
Mr. Dill: It is a two (2) volume report. The discs you
got is volume one (1) which is the report itself. There is no disc... the second
volume is a backup appendix of all the interviews, surveys, questionnaires, and
backup data that supports the first volume. It is that thick, so I supplied one (1)
hard copy of that.
Chair Furfaro: But that came over to us today?
Mr. Dill: Yes.
Chair Furfaro: Thank you very much for that. I will let the
members know that it is available. The last piece, the Space Planner that we had,
he is on our payroll?
Mr. Dill: That was done by a consultant.
Chair Furfaro: Who is our Space Planner that is on your
Staff?
Mr. Dill: That is being done in Public Works and Ken
Teshima is coordinating that.
Chair Furfaro: Ken Teshima. When we have that
discussion, I want to make sure that Ken Teshima is available to us as well.
Mr. Dill: Okay.
Ms. Yukimura: Since we are on the Committee Report
regarding the Hardy Street improvements, right, that is where we are at right now?
Chair Furfaro: Yes.
Ms. Yukimura: I did have an inquiry so that you do not have
to stay for the final vote of the Bill. I want to know if the sidewalk improvements
are scheduled through the Hardy Street Project to go all the way to Rice Street,
right?
Mr. Dill: Correct.
Ms. Yukimura: Is it to be on both sides of the road that there
is a sidewalk or just one (1) side?
COUNCIL MEETING 104 FEBRUARY 27, 2013
Mr. Dill: Both sides.
Ms. Yukimura: It is to be on both sides?
Mr. Dill: I think.
Ms. Yukimura: Because there are some concerns about
access and on street parking.
Mr. Dill: Yes, I understood that there were some
concerns that came forth. I spoke to the Project Manager, Doug Haigh about that
and we will be providing some onsite parking. Whereas now they are parking in the
grass way...
Ms. Yukimura: Dirt.
Mr. Dill: ...or dirt. There will be paved parking
provided on street now.
Chair Furfaro: Just so everybody understands now,
Mr. Kagawa through me has asked you folks to be on the agenda again in his
Committee next week.
Mr. Dill: Okay.
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Chair Furfaro: Thank you members, I wanted to limit the
conversation on that because we were referring to excepting the minutes from the
meeting. Larry, so you will have no additional information for us later tonight, so I
will excuse you.
Mr. Hooser: We do have some Bills and I was holding my
questions until the Bill came up for Mr. Dill.
Chair Furfaro: Would you like to ask him now?
Mr. Hooser: But there is an item that we already p asked
on the Committee Reports.
Chair Furfaro: Yes, those three (3) that we passed in the
Committee Reports.
Mr. Hooser: Yes, it was regarding the Building Code Bill.
Chair Furfaro: Okay, make some creative statement for me
over here so we can honor his questions. I will offer him personal privilege.
i a
Mr. Hooser: Mr. Dill on the agricultural building permit
issue, it is my understanding that Council had until January something to do
something and we missed our deadline and this is State law. We are compelled to
pass the words that are there. What is the practice now with regards to building
permits? Are we requiring people to do building permits or not? If we did not pass
this law, what would be the net effect of it in the near term?
COUNCIL MEETING 105 FEBRUARY 27, 2013
Mr. Dill: Well the State law is already in effect, so
according to State law, we are required to provide or grant these Ag exemptions.
The net effect of our Legislation with this Bill would be to inform applicants for
exemptions that while they can get an exemption from requirement to get a
building permit, they still are required to comply with HRS 464 in the event that
they exceed the certain thresholds.
Mr. Hooser: But if the Council decided to defer action on
this measure, would it have any impacts whatsoever?
Mr. Dill: The only impact that I understand would
have... because the State law is already in effect so they can qualify for the
exemptions. We would not be able to regulate compliance with HRS 464 but that
might be a legal question that I would refer to the County Attorney on but that
would be what I can see be the only effect and obviously that would be the concern
that we have.
Mr. Hooser: Because right now for the last two (2)
months, if you would, there has been no ordinance but yet the State law has been in
effect.
Mr. Dill: Correct. I am aware of at least one (1)
situation that is already come in without us passing our legislation at this level
where we have complied with the State law and granted...
Mr. Hooser: So, you have told people that you do not need
a permit?
Mr. Dill: Yes. They were aware of that and that is
why they notified us.
Mr. Hooser: Okay.
Mr. Castillo: Has Larry Dill answered your question?
Mr. Hooser: If I could restate... if the Council deferred
this measure does status quo continued and it is not the end of the world?
Mr. Castillo: That is right if the Council does defer this
measure, the two (2) relevant statutes are in effect.
Mr. Hooser: The State statutes.
Mr. Castillo: Yes, the State statutes.
Mr. Hooser: And if we do approve the measure, the State
statutes are still in effect?
Mr. Castillo: That is correct.
Mr. Hooser: Okay, that is it.
Chair Furfaro: I hope everybody understands what just
happened here, Larry, I gave him the personal privilege so that you can go home.
COUNCIL MEETING 106 FEBRUARY 27, 2013
Does everybody understand that? Anymore questions for Mr. Dill? If I can ask the
Staff, maybe we can push for another fifteen (15) minutes and then take a 7:30
dinner break and limit it to thirty (30) minutes? I want to hear from the Staff...
yes... Okay, we are going to push on.
The motion to approve Committee Report CR-FED 2013-03 was then put, and
carried by a 6:0:1 vote (Mr. Bynum excused).
Resolution No. 2013-39 — RESOLUTION CONFIRMING MAYORAL
APPOINTMENT TO THE LIQUOR CONTROL COMMISSION
(Pauline D. Ventura): Mr. Kagawa moved to adopt Resolution No. 2013-39, seconded
by Ms. Yukimura, and carried by the following vote:
FOR ADOPTION: Hooser, Kagawa, Nakamura, Rapozo,
Yukimura, Furfaro TOTAL— 6,
AGAINST ADOPTION: None TOTAL — 0,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL— 0.
BILLS FOR FIRST READING:
Proposed Draft Bill (No. 2466) — A BILL FOR AN ORDINANCE
ESTABLISHING A NEW ARTICLE 7, CHAPTER 12, KAUAI COUNTY CODE
1987, AS AMENDED, RELATING TO LICENSED ELECTRICAL AND
PLUMBING WORKERS
Mr. Rapozo moved to receive Proposed Draft Bill No. 2466 for the record,
seconded by Ms. Nakamura.
Mr. Rapozo: The attempted here was to do kind of what
the Ag exemption Bill was trying to do. Basically have a County ordinance that
would mirror the State law. There are some legal questions in the Bill as we
submitted and we are going to... at this time, request that we receive this Bill so we
can pursue some other language that can hopefully satisfy the legal department.
We will also be asking for posting and I am not sure if Councilmember Nakamura
already requested that we would like to see that opinion released to the public.
Chair Furfaro: We have a motion to receive from both the
author and the co-author of this Bill for right now and submit for a future posting?
Mr. Rapozo: Correct.
The motion to receive Proposed Draft Bill No. 2466 for the record was then
put, and carried by a 6:0:1 vote (Mr. Bynum excused).
Proposed Draft Bill (No. 2467) —A BILL FOR AN ORDINANCE AMENDING
CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED RELATING TO
REAL PROPERTY TAX: Ms. Yukimura moved for passage of Proposed Draft Bill
No. 2467 on first reading, that it be ordered to print, that a public hearing thereon
be scheduled for March 27, 2013, and that it thereafter be referred to the Finance &
Economic Development (Tourism / Visitor Industry / Small Business Development /
Sports & Recreation Development / Other Economic Development Areas)
Committee, seconded by Mr. Hooser, and carried by the following vote:
COUNCIL MEETING 107 FEBRUARY 27, 2013
FOR PASSAGE: Hooser, Kagawa, Nakamura, Rapozo,
Yukimura, Furfaro TOTAL— 6,
AGAINST PASSAGE: None TOTAL— 0,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL — 0.
BILLS FOR SECOND READING:
Bill No. 2460, Draft 1 —A BILL FOR AN ORDINANCE AMENDING
CHAPTER 12, OF THE KAUAI COUNTY CODE 1987, AS AMENDED, ENTITLED
"BUILDING CODE": Ms. Yukimura moved for adoption of Bill No. 2460, Draft 1, on
second and final reading, and that it be transmitted to the Mayor for his approval,
seconded by Mr. Kagawa.
Mr. Hooser: As stated in the Committee Meeting, I got
some real reservations about this measuring and would ask the Council to consider
deferring this Bill. My reasons and my concerns that I stated last week but I will
restate some of them are that we are basically being told that we do not have a choice.
This is State law and we have to pass it no matter what. To me, it is bad public policy
and the more I think about it the more, as was stated in an E-mail that we all got
from an architect with hurricanes and waving building permits in general is bad
public policy. Whether it is a small building or big building, it is just bad public policy.
I want to support farming and want to see farmers get through but it begs the
question, "what about everybody else?" If a little shed does not need a permit for a
farmer, what about a little shed for somebody else? It does not discriminate against or
I would not want to allow poisonous or dangerous chemicals to be housed on a
structure that did not have to get a permit. I have mentioned this before, there is
industrial farming— this you have to get a permit and there are lots of reasons. I do
not know how we do our property tax and public records are usually based on permits
and what I will try to do if the Council was willing to defer this, my thought was to
talk to the Legislature both the House and the Senate... there are two (2) Bills on the
table now dealing with this subject matter. I will ask them to change the date. The
date in there, I want to say January something that we were supposed to pass the law
and I do not think any Counties were able to do that, so it is reasonable to ask them to
put a new Bill and allow us some County home rule powers to look at the law and
shape it to better suit our County. I would certainly be willing to try that but I do not
like to be put in a position to vote on something just because I have to. Whether I like
it or not and that is the position I feel like I am in so the body can obviously do what
they like but I will be voting no if I am forced to vote on it today, but I would prefer a
deferral.
There being no objections, the rules were suspended.
Mr. Castillo: Council Chair, I am wondering if I can be able
to clarify one (1) matter that was stated regarding being forced to vote on this Bill. I
just wanted to comment on it, if I may?
Chair Furfaro: I would like to say that you can comment on it
but I want you to know that I want to get my people out for a dinner break at 7:30 and
we have three (3) more items, so we can complete it and maybe some of us can go
home.
Mr. Castillo: Yes. The purpose of the Bill, there is no one
that is saying that you have to pass this Bill. The endeavor of the Department is
COUNCIL MEETING 108 FEBRUARY 27, 2013
merrily to have two (2) existing laws coincide in one (1) ordinance. That is all that it
is. There was no rush. When the Bill was submitted to Councilmember Kagawa, the
Department was not under the January deadline because they had already decided to
proceed under Section (B). All that is happening is that you have two (2) present laws
that in endeavor of the Department is to bring together the laws just for clarification.
You still have the prerogative of having input to our State Legislature because Senate
Bill 586 and House Bill 489 is presently going through the State Legislature. It is my
understanding that this Bill which is 4688 will end up... what the Legislature is
trying to do now is even loosening up more restrictions so building permits will not be
needed. That is basically... I do not want anybody to think that you are being forced
to do something, you are not. The laws that are into play right now are in effect.
Mr. Rapozo: What is the difference between this Bill and
the State law? Does this Bill make it tougher?
Mr. Castillo: No it does not make it tougher.
Mr. Rapozo: Is it identical?
Mr. Castillo: Identical means same-same. They just move
wording but they just... the placement of 464 is now within 4688 and so it did not
make the law any harsher, no change, it does not change anything, and it is pretty
much identical. They just moved some wording. 464 is the way that it is and it is only
an incorporation of 464 into 4688. If I had a ramseyer version or something like that,
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I could show it to you but I cannot. But these are laws that already...
Chair Furfaro: (Inaudible).
There being no objections, the meeting was called back to order, and proceeded
as follows:
Mr. Kagawa: We held this item in my Committee and we
asked a lot of questions on this item. We spent a lot of time on this item and I have
come to the conclusion that based on what I am hearing from the County Attorney,
Public Works, Doug Haigh in particular is that the State law is what we follow before
the County law. They passed the Bill last session and we need to tie in our books, our
laws with the State law and that is all we are doing. If we want to change the law, we
need to have the Legislatures change that Bill or do a new Bill back and then we can
follow. I think we were satisfied with our laws the way it was but the State took
action and we need to tie in ours so there is no confusion. I will be supporting this
measure today.
Ms. Yukimura: I wanted to ask Councilmember Hooser how
long a deferral you would be asking for?
Mr. Hooser: The State passed a law and the law is now...
the same section of the law is on the table in two (2) Committees. My thought was to
encourage an amendment to that law and then deal with it after whether that
happens or not. Otherwise if we pass this ordinance today, we will have to introduce a
new ordinance in May or June. I guess a deferral till May if the end result is that
there is really no impacts, then I do not see any harm in that. It could be shorter...
the way the Legislative process works, obviously, it goes Committee by Committee so
if it does not make the amendments that I am hoping that would make it in the first
round of Committees than perhaps we could address it then. When I mentioned being
COUNCIL MEETING 109 FEBRUARY 27, 2013
forced to vote on something, what I meant was when attempting to amend the Bill, we
were told by the County Attorney's Office that it was a State law and we could not
amend the Bill because the State said we have to do it this way. That is where the
rub was for me. I think it is a reasonable thing to ask the Legislature, they gave us a
date of January 1, 2013, they gave every County a date and no County has complied
because we all got it too late. I think it is a reasonable thing to ask of them to move
that date out until June 2013 to allow us to deal with the issue properly. That would
be the one (1) specific change that I would suggest and then I would go further than
that asking them to allow us to deal with this in a County's specific manner so we
could make those amendments if we needed to.
Chair Furfaro: Did that answer your question, JoAnn?
Ms. Yukimura: My understanding was that our power to
amend this Bill through an ordinance was fairly limited. We really basically could
only add exemptions from what I understood. I do not know if that is the framing
that remains after the Legislature amends the Bill then we are not going to have
enough flexibility to address some of your issues. I have a lot of questions about
whether we can amend based on use when these are building code mainly structural
issues, so I am concerned about that. I am somewhat concerned about the Farm
Bureau and those who have been working on this although as I did explain on the
floor of the meeting last week, I am also not sure that this whole approach is the best
way to achieve their purposes.
Mr. looser: (Inaudible) I know it is a late night and there
may be limited or no success at the Legislature, I am just not prepared to vote and
support of it today.
Ms. Nakamura: I am prepared to vote for it today but I am
also open to... and would encourage you to pursue it and then if we can amend it
following the Legislation Session, let us introduce something that would give us more
flexibility and take it into account our concerns.
Chair Furfaro: I feel the same way. If we can defer and get
some of our concerns heard a different way, I think that is appropriate. I know what
you meant with the bad rub.
Mr. Hooser moved to defer Bill No. 2460, Draft 1, seconded by Mr. Rapozo, and
carried by the following vote:
FOR DEFERRAL: Hooser, Rapozo, Yukimura, Furfaro TOTAL — 4,
AGAINST DEFERRAL: Kagawa, Nakamura, TOTAL — 2,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL— 0.
Mr. Hooser: Chair, I mentioned in my discussion to defer
after the Legislative Session.
Chair Furfaro: So noted.
Ms. Yukimura: Can we defer until after the Legislation
Session?
Mr. Rapozo: No. It is for two (2) weeks.
COUNCIL MEETING 110 FEBRUARY 27, 2013
Chair Furfaro: The members were only voting for two (2)
weeks.
Mr. Hooser: Okay, I was not clear about the deferral.
Mr. Rapozo: You cannot amend the motion to defer.
Chair Furfaro: Clerk, did you note it?
Mr. Watanabe: Yes, the motion to defer means two (2)
weeks. Comes back to the next meeting.
Chair Furfaro: Okay.
Bill No. 2462–AN ORDINANCE AMENDING ORDINANCE NO. B-2012-737
AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF
KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2012 THROUGH
JUNE 30, 2013, BY REVISING THE AMOUNTS ESTIMATED IN THE BOND
FUND (Hardy Street Improvements $740,000.00): Ms. Yukimura moved for adoption
of Bill No. 2462, on second and final reading, and that it be transmitted to the
Mayor for his approval, seconded by Ms. Nakamura.
Mr. Rapozo: I think you heard my question of Mr. Dill.
When we met with Buildings and Public Works, I guess it was probably two (2)
weeks ago, I made a specific request with your same concerns, Mr. Chair. I am very
move into the budget that we have moved quite a bit of funds. M
concerned as we ve
g q My
question was a simple one (1) and I just wanted clarification from the Finance
q
p ( ) just
this was pre-Steve Hunt's time so Steve, you are off the hook, that we
were doing everything above board. That in fact our Bond companies and the Bond
Counsel, everybody was aware and that in fact, these transfers were legal because
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h money's that we borrowed and they bonds that we have floated, these mone e
Y Y are
substantial come with significant penalties if we should not spend down the money
as the bond requires. I asked a simple question and Mr. Dill, I cannot remember
who he delegated that task to but I was assured that I would get that information
before the vote time and I have not. As much as I hate to defer items, I also believe
that if the Council is asking some relevant information, and I was actually very
pleased to hear that you had the same concerns. We have not spoken about that
and I was very concerned...I mean I am very happy that you have the same
concerns because it is a substantial amount of money. Again, I hate to defer items,
but I do not feel that I got the responses that—I think was a pretty reasonable
request, just a letter from the Finance Director, Finance Department Deputy
Director saying that everything was in order. I have not received that. That gives
me even more concern. I would be asking that we defer this until we get some
verification from bond counsel, that in fact, everything is okay. Thank you.
Chair Furfaro: Anyone else? JoAnn.
Ms. Yukimura: I believe this is within the ambit of a bond. I
do not have any doubts about it, in fact. Also, I think that we have at least as I
understand it, we have completed the mission of these moneys as designated in our
Budget, and because there is left over, we are allocatin g it to these Hardy Street
improvements, which I believe are a priority. I would like to see us vote on it.
Chair Furfaro: Okay. Mr. Kagawa.
COUNCIL MEETING 111 FEBRUARY 27, 2013
Mr. Kagawa: Yes, I also will be supporting it, eighty
(80)/twenty (20) matching. We are going to have some nice improvements that to
me, will be a good test to see if our people on Kaua`i are happy with Complete
Streets, and bikeways. We will see how that works. There are a lot of people in
Lihu`e that take advantage and jog, and what not. I think the improvements will
do. It will be much appreciated by them. I look forward to these improvements,
and especially look forward to the Federal matching funds that will help to
stimulate our construction industry.
Chair Furfaro: Mr. Hooser.
Mr. Hooser: I just have a question. What is the downside
of a deferral? Is there someone here who can answer that? Does it affect bond
ratings, or is our project in jeopardy or anything like that?
Ms. Yukimura: No. We should have asked that question to
Larry.
Mr. Hooser: Okay.
Chair Furfaro: Let me just summarize the field of questions
that I put out there. I am going to support this today, but I am sending a message
over to Finance, and to the Administration. My concern is that I want to see that
we have something from Mr. Hirai that they are aware of the moneys we moved.
The second part of that question is that I am getting a littl e worried that we have
got our revenue center sitting across the street, asking for help from the State
g g g p
Legislature on design funds, and I just do not want to find ourselves putting a
design plan together, and it sits on the shelf. I am saving my...you know those little
Red Hots you get as candy? I am saving that for the Budget. Be ready for it, but I
will vote for this today. Go ahead.
Mr. Rapozo: Thank you, Mr. Chair. I just wanted to
speak about what Mr. Hooser talked about as far as bond ratings being jeopardized.
My concern is, and I am hoping we can get it posted, Mr. Chair, for a future session
with Mr. Hirai, even if it is by telephone. What I would like to see is Mr. Hirai, and
I am hoping that he has been part of these projects where the moneys have been
moved. I am a little worried today more so because I made a specific request for the
information that I did not get. I know Councilmember Yukimura, you believe that
it is part of the parameters. I do not even know what the parameters are for this
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bond. Maybe you do, but I do not. I do not know what the parameters are. That is
what they told me that it was, "As long as it is project that is like that other project,
it is okay." I want to hear it from the Bond Counsel. If it was that simple, why
could I not get a letter to that effect in two (2) weeks, if in fact, my vote...maybe you
counted the votes, and said, "Do not worry, we have the five (5) or we have the four
(4) so we do not need to answer Mel's questions." But I think my questions are
relevant ones. I do not think the deferral is going to hurt the project at all, for two
(2) weeks. I really do not. That is fine, it will go by the votes. Obviously, after the
discussion, I am going to try and make a motion to defer, but I do not think it is
unreasonable to ask a financial question. Amy, it is okay the way we are moving
these moneys? We spent a lot of(inaudible), Mr. Furfaro, I believe was on that trip,
justifying these budgets when we went to go for the (inaudible), if I am not
mistaken.
COUNCIL MEETING 112 FEBRUARY 27, 2013
Chair Furfaro: No, I go with the Administration
representing the Council, when we went to (inaudible) the moneys. You are
correct.
Mr. Rapozo: Right. There are a lot of requirements and
restrictions that relates to these types of bonds. One (1) of the restrictions, or one
(1) of the requirements is that we spend down the bond in a specific time, but we
keep changing the projects, which is a concern. I just wanted that clarification, and
it I cannot get that clarification then I will not support it today. Thank you.
Chair Furfaro: You have the floor, JoAnn.
Ms. Yukimura: I think it is a perfectly legitimate question to
ask, and I am not opposing that, but I am...unless we are really sure that, that
delay is okay. I am against assuming that delay is okay, and I also feel...I am
pretty clear that the requirements for bond categories are pretty general, otherwise
they would make bond expenditures very difficult, and I am joined by my past
memory and experience. I do not think it is a sufficient reason to delay this
particular project.
Chair Furfaro: Okay. Everybody has voiced their concerns.
You heard the two (2) questions we are sending over, Steve. I would certainly hope
that we could get the answer in a week. I think Mr. Kagawa's point was very well
taken, in the fact that we are trying to leverage for some Federal money that is
available now, and yet we have no idea where the feds are going on Friday, right?
Ms. Yukimura: The sooner, better.
Chair Furfaro: Yes, the sooner we know, the better. I just
want to make sure, I am supporting this, but I have questions that I want to see
responded in writing. I am prepared to answer Mr. Rapozo if we have Mr. Hirai
here in the near future to post an agenda item, or even do a conference call. Please
understand, it is also the empty space that sits right now, and I have an additional
worry. With the empty space, it is the Council's Budget that is paying rent outside
for our Auditor. It is a lot of moving parts right now. On that note, this is a roll call
vote, and we have a motion and a second. I did not hear a second on the deferral.
Mr. Rapozo moved to defer Bill No. 2462, seconded by Mr. Hooser, and
carried by the following vote:
FOR DEFERRAL: Hooser, Nakamura, Rapozo, TOTAL— 3,
AGAINST DEFERRAL: Kagawa, Yukimura, Furfaro TOTAL— 3,
EXCUSED & NOT VOTING: Bynum TOTAL— 1.
Chair Furfaro: The motion fails, but I want to refer to our
rules. We have a three (3) to three (3) tie. This automatically comes back in two (2)
weeks? Let us get an interpretation. Let us hear it for the public, not just a
shaking of the head. A deferral has precedent over all other motions. Peter, we
have got an interpretational question. I just want to get it real clear so we can refer
to the public on what is going on. They have the book down here Peter. After a day
of surfing the Pipeline at twenty (20) feet, we can all be pretty tired. Members, can
I have your attention for a three (3) to three (3) vote here.
COUNCIL MEETING 113 FEBRUARY 27, 2013
PETER MORIMOTO, Legal Analyst: Good evening, Councilmembers. Peter
Morimoto, Analyst. I am referring to Rule 5(e) of the Council Rules: Council
Absence, Tie Vote. "At a Council meeting, if members are evenly divided on any
main motion or if there are insufficient votes to carry any main motion because of
the absence of a member, the item shall be made the special order of the day for the
next regular meeting." However, this is not a main motion, and given that it is not
a main motion...
Chair Furfaro: Okay, thank you, Peter. My interpretation is
correct. This will go to the next meeting.
Mr. Morimoto: No, that is if it is the main motion.
Chair Furfaro: That is the main motion.
Mr. Morimoto: I believe the main motion was a motion to
approve.
Chair Furfaro: Okay, we are going to go on a recess here
because a deferral motion as a motion, supersedes other motions.
Mr. Morimoto: That is correct.
Chair Furfaro: We are on a caption break so you and the
Clerk can have some time together, if you do not mind.
There being no objections, the Council recessed at 7:45 p.m.
There being no objections, the Council reconvened at 7:53 p.m., and
proceeded as follows:
Chair Furfaro: Peter, we had to refer to Robert's Rules
because of certain interpretations in our Rules that are "silent."
Mr. Morimoto: Yes.
Chair Furfaro: But I think it is going to get us to the same
place. Please cover this.
Mr. Morimoto: This is from Robert's Rule of Order, "the
basic form of motion, the only one (1) who's introduction brings business before the
assembly is a main motion." In this case, the motion to approve was the main
motion. Robert's further states that, "there are also many other separate
parliamentary motions that have evolve for specific purposes." In this case, the
motion to defer is a parliamentary motion. Because the motion to defer ended up
in a 3:3 vote, it did not pass.
Chair Furfaro: So the motion to defer did not pass because
of the 3:3 tie?
Mr. Morimoto: Correct.
Chair Furfaro: Therefore we move on to vote on the
approval. We can then go to the main motion as approval.
COUNCIL MEETING 114 FEBRUARY 27, 2013
Mr. Morimoto: The pending motion, yes.
Chair Furfaro: And then if that ends up in a 3:3 tie, the
interpretation... it will be the first item on our next meeting?
Mr. Morimoto: That is correct.
Chair Furfaro: Okay. Your motion to defer failed and we
are back to the motion to approve. Thank you.
There being no objections, the meeting was called back to order, and
proceeded as follows:
Ms. Yukimura: Discussion?
Chair Furfaro: Discussion.
Ms. Yukimura: I just called Mr. Dill and they are opening
bids on Hardy Street on March 5th so time is of the essence.
Chair Furfaro: Time is of the essence but the fact is... they
opened the bid does not mean they go ahead and sign the contract.
Ms. Yukimura: Yes.
Chair Furfaro: I want to make sure we all understand. Just
because they are opening the bid does not mean we need to enter the same day into
the contract. They are going to evaluate, compare the bids, make sure they cover all
the scope, and so forth.
Ms. Yukimura: It is still very immanent.
Chair Furfaro: Well then they are going to do it illegally if
they do not have our approval. How is that?
Ms. Yukimura: I am not suggesting that... I am just trying
to say that the project is underway. If we think it is a good project, we need to
approve it and move it...
Chair Furfaro: I do not think anybody is questioning the
value of the project especially when Federal moneys are available. I just want to
make sure that the day you open the bid is not necessarily the day... I mean what if
Y p Y Y
there are serious discrepancies in the price and they have to go back and negotiate
it? I want to get to this vote on the approval and if it comes out the same, it will
automatically come back in two (2) weeks. I understand your concern that they are
opening the bids on the 5th but that does not mean they enter into contracts on the
5th.
Mr. Rapozo: There also could be some serious
ramifications with the Bond issue that could affect not only this project but many
others. I would ask the same courtesy. I asked them a question two (2) weeks ago
and they chose not to respond. It was a valid question. Two (2) weeks is not going
to cost us the Federal match.
COUNCIL MEETING 115 FEBRUARY 27, 2013
Chair Furfaro: On that note, I am going to call for the vote
on the main motion.
The motion to approve Bill No. 2462 was then put and by the following vote:
FOR APPROVAL: Hooser, Kagawa, Yukimura, Furfaro TOTAL— 4,
AGAINST APPROVAL: Nakamura, Rapozo TOTAL— 2,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL — 0.
Mr. Watanabe: Four (4) ayes and two (2) nos. Motion
carries.
Chair Furfaro: The motion carried 4:2. We did not end up in
another tie which would have brought it back in two (2) weeks.
Mr. Rapozo: Mr. Chair, I just wanted to make sure that
the discussion we had about the briefing with the Bond Counsel will still happened.
Chair Furfaro: Most definitely. My approval was with some
conditions.
Bill No. 2463 — A BILL FOR AN ORDINANCE AMENDING
SECTION 19-1.4, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO
PARKS AND RECREATION: Ms. Nakamura moved to adopt Bill No. 2463 on
second and final reading, and that it be transmitted to the Mayor for his approval,
seconded by Mr. Kagawa.
Chair Furfaro: Is there any discussion on this Bill?
Mr. Kagawa: As the Chair of the Parks Committee, we
discussed this as well but we did not discuss it as long as other items, and I have
received some E-mails about... and I want to reiterate that this Bill is meant for the
Police to have some grounds to remove or stop unruly campers from drinking or
disturbing others. The responsible campers; I was told, are not going to be
bothered. I want to reiterate that if you do not want to get into trouble, do not
drink pass 11:00 p.m. and it will be okay. Sometimes we have to take drastic moves
that will affect innocent people; however, we are always looking at the community
as a whole and I believe that this is a good Bill. It is not a perfect Bill but it is a
good Bill.
Mr. Rapozo: Mr. Kagawa, again I was not here last week
but I did raise a concern about the exemptions — will the camping removed? It was.
So now it is everybody? Okay. Thank you.
Chair Furfaro: Okay. Any further discussion? If not, a roll
call vote on this, please.
The motion to adopt Bill No. 2463 on second and final reading was then put,
and carried by the following vote:
FOR APPROVAL: Hooser, Kagawa, Nakamura, Rapozo,
Yukimura, Furfaro TOTAL — 6,
AGAINST APPROVAL: None TOTAL— 0,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL — 0.
COUNCIL MEETING 116 FEBRUARY 27, 2013
Mr. Watanabe: Six (6) ayes, motion carries.
Chair Furfaro: I want to share with you folks that we need
to finish Executive Sessions ES-60 and 603. I need the County Attorney up for that
and for item 602 which we will hold last because I have a recusal letter on myself
for that. I do want to let go the majority of the Staff for the evening except those
associated with the Executive Session. Camera production, Ho ike, after we close
this out, you are finished for the day.
There being no objections, the rules were suspended.
ALFRED B. CASTILLO, JR., County Attorney: Good evening Council Chair,
Councilmembers, County Attorney, Al Castillo. For your consideration ES-601,
ES-602, and ES-603.
EXECUTIVE SESSIONS:
ES-601 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4,
92-5(a)(4), and Kaua`i County Charter Section 3.07(E), on behalf of the Council, the
Office of the County Attorney requests an executive session with the Council to
provide the Council with a briefing related to the procurement violation stated in
the Management Advisory Report Finding 12-01 "Review Purchasing and
Procurement Process of Independent Contractors" and related matters. This
briefing and consultation involves the consideration of the powers, duties,
privileges, immunities and/or liabilities of the Council and the County as they relate
to this agenda item.
ES-602 Pursuant to Hawai`i Revised Statutes (HRS) Section 92-4,
92-5(a)(4), and Section 3.07(E) of the Kaua`i County Charter, the Office of the
County Attorney, on behalf of the Council, requests an executive session with the
Council to provide the Council with a briefing regarding the claim against the
County by Joseph Furfaro, filed on or about October 30, 2012, and previously on the
Council's agenda as C 2012-441, and related matters. This briefing and
consultation involves the consideration of the powers, duties, privileges, immunities
and/or liabilities of the Council and the County as they relate to this agenda item.
ES-603 Pursuant to Hawai`i Revised Statutes (HRS) Section 92-4,
92-5(a)(4), and Section 3.07(E) of the Kaua`i County Charter, the Office of the
County Attorney, on behalf of the Council, requests an executive session with the
Council to provide the Council with a briefing and update regarding the Puhi
Metals Recycling Center issues and related matters. This briefing and consultation
involved the consideration of the powers, duties, privileges, immunities and/or
liabilities of the Council and the County as they relate to this agenda item.
There being no objections, the meeting was called back to order, and
proceeded as follows:
Mr. Kagawa moved to convene in Executive Session for ES-601 and ES-603,
seconded by Ms. Yukimura, and carried by the following vote:
FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura, Rapozo,
Yukimura, Furfaro TOTAL— 6,
AGAINST EXECUTIVE SESSION: Bynum TOTAL— 1,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL — 0.
COUNCIL MEETING 117 FEBRUARY 27, 2013
Mr. Watanabe: Six (6) ayes.
Chair Furfaro: Okay, the next item, I am going to step out.
(Chair Furfaro was recused from ES-602.)
The motion to convene in Executive Session for ES-602 was then put, and
carried by the following vote:
FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura, Rapozo,
Yukimura TOTAL— 5,
AGAINST EXECUTIVE SESSION: Bynum TOTAL— 1,
EXCUSED & NOT VOTING: None TOTAL— 0,
RE CUS ED & N T VOTING: Furf a r o TOTAL -
1.
Clerk: Five (5) ayes.
Ms. Nakamura: We are going to take a forty-five (45) minute
dinner break and we will convene in the Executive Session room at 8:45 p.m.
ADJOURNMENT:
There being no further business, the meeting was adjourned at 8:04 p.m.
Respectfully submitted,
RICKY WATANABE
County Clerk
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