HomeMy WebLinkAbout09/17/2014 Special Council minutes SPECIAL COUNCIL MEETING
SEPTEMBER 17, 2014
The Special Council Meeting of the Council of the County of Kaua`i was called
to order by Council Chair Jay Furfaro, at the Council Chambers, 4396 Rice Street,
Suite 201, Lihu`e, Kaua`i, on Wednesday, September 17, 2014 at 8:33 a.m., after
which the following members answered the call of the roll:
Honorable Tim Bynum
Honorable Mason K. Chock, Sr.
Honorable Gary L. Hooser
Honorable Ross Kagawa
Honorable JoAnn A. Yukimura
Honorable Jay Furfaro
Excused: Honorable Mel Rapozo
APPROVAL OF AGENDA.
Mr. Bynum moved for approval of the agenda as circulated, seconded by
Ms. Yukimura, and carried by a vote of 6:0:1 (Mr. Rapozo was excused).
PUBLIC COMMENT.
Pursuant to Council Rule 13(e), members of the public shall be allowed a total of
eighteen (18) minutes on a first come, first served basis to speak on any agenda item.
Each speaker shall be limited to three (3) minutes at the discretion of the Chair to
discuss the agenda item and shall not be allowed additional time to speak during the
meeting. This rule is designed to accommodate those who cannot be present
throughout the meeting to speak when the agenda items are heard. After the
conclusion of the eighteen (18) minutes, other members of the public shall be allowed
to speak pursuant to Council Rule 12(e).
There being no one to provide public comment, the meeting proceeded as
follows:
COMMUNICATION:
C 2014-248 Communication (09/11/2014) from the County Attorney,
requesting authorization to expend additional funds up to $12,750 to cover "costs" for
Special Counsel's continued services, including appellate services, provided in
Syngenta Seeds, Inc., a Delaware corporation, et al. vs. County of Kaua`i, Civil
No. CV14-00014 BMK (U.S. District Court, District of Hawai`i), and related matters;
provided that Special Counsel has agreed that throughout the appeal process Special
Counsel will only bill the County for costs and not charge for legal fees beyond the
$210,000 previously authorized by the Council.
RICKY WATANABE, County Clerk: Chair, for the record we have one (1)
written testimony from Stephanie Iona.
SPECIAL COUNCIL MEETING 2 SEPTEMBER 17, 2014
Chair Furfaro: I would like to see if I can call the County
Attorney up so we can read all the Executive Sessions posted on this agenda for today.
Good morning.
There being no objections, the rules were suspended.
MONA W. CLARK, Deputy County Attorney:Good morning. Mona Clark,
Deputy County Attorney.
EXECUTIVE SESSION: Pursuant to Hawai`i Revised Statutes (HRS) §92-7(a), the
Council may, when deemed necessary, hold an Executive Session on any agenda item
without written public notice if the executive session was not anticipated in advance.
Any such Executive Session shall be held pursuant to HRS §92-4 and shall be limited
to those items described in HRS §92-5(a). (Confidential reports on file in the County
Attorney's Office and/or the County Clerk's Office. Discussions held in Executive
Session are closed to the public.)
ES-755 Pursuant to Hawai`i Revised Statutes Sections 92-4 and 92-5(a)(4) and
(8), and Kaua`i County Charter Section 3.07(E), the Office of the County Attorney, on
behalf of the Council, requests an Executive Session to allow Special Counsel to
provide the Council with a briefing in Svngenta Seeds, Inc., et al., vs. County of
Kaua`i, Civ. No. 14-00014 BMK (U.S. District Court, District of Hawai`i) and decision
on further action including but not limited to filing an appeal, and related matters.
This briefing and consultation involves consideration of the powers, duties, privileges,
immunities and/or liabilities of the Council and the County as they relate to this
agenda item, and decision making.
ES-756 Pursuant to Hawai`i Revised Statutes Sections 92-4 and 92-5(a)(4)
and (8), and Kaua`i County Charter Section 3.07(E), the Office of the County
Attorney, on behalf of the Council, requests an Executive Session to allow Special
Counsel to provide the Council with a briefing in Svngenta Seeds, Inc., et al., vs.
County of Kaua`i, Civil No. 14-00014 BMK (U.S. District Court, District of Hawai`i)
for the Council to decide whether to appeal, and related matters. This briefing and
consultation involves consideration of the powers, duties, privileges, immunities
and/or liabilities of the Council and the County as they relate to this agenda item,
and decision making.
ES-757 Pursuant to Hawaii Revised Statutes Sections 92-4, 92-5(a)(4), and
Section 3.07(e) of the Kauai County Charter, the Office of the County Attorney
requests an Executive Session with the Council to provide the Council with a briefing
in Syngenta Seeds, Inc., et al. vs. County of Kaua`i, Civil No. CV14-00014 BMK (U.S.
District Court, District of Hawai`i), and related matters. The briefing and
consultation involves consideration of the powers, duties, privileges, immunities,
and/or liabilities of the Council and the County as they relate to this agenda item.
ES-758 Pursuant to Hawai`i Revised Statutes Sections 92-4, 92-5(a)(4), and
Kaua`i County Charter Section 3.07(E), the Office of the County Attorney, on behalf
of the Council, requests an Executive Session for discussion and decision making
relevant to Section 20.02(B) of the Kaua`i County Charter, to wit, investigating
breach of confidentiality relating to executive session meetings, and related matters.
This briefing and consultation involves consideration of the powers, duties, privileges,
immunities and/or liabilities of the Council and the County as they relate to this
agenda item.
SPECIAL COUNCIL MEETING 3 SEPTEMBER 17, 2014
There being no objections, the meeting was called back to order, and proceeded
as follows:
Chair Furfaro: We have these four (4) items, it has been my
practice since I have been Chair to actually take a roll call vote on going into
Executive Session. May I have a motion as such? I do want to let the Council know
my intent for ES-758 which is a visit for the Council as it relates to our own rules and
breach and responsibilities in Executive Session, I would like to defer that item. I
would like to have all seven (7) members here when we hear from the County
Attorney. If I can clarify that I am only looking for an approval to convene in
Executive Session for ES-755, ES-756, and ES-757.
Ms. Yukimura moved to convene in Executive Session for ES-755, ES-756, and
ES-757, seconded by Mr. Chock.
Chair Furfaro: Yes?
Mr. Kagawa: Can we repeat the motion?
Chair Furfaro: The last item under Executive Session today,
Mr. Kagawa, is a briefing about our duties and responsibilities in Executive Session.
Mr. Kagawa: Okay.
Chair Furfaro: Since we will not have all seven (7) members
present, I have asked if we can defer that so we can have a separate presentation
when all members are present.
Mr. Kagawa: Okay.
Chair Furfaro: Roll call vote.
The motion to convene in Executive Session for ES-755, ES-756, and ES-757
was then put, and carried by the following vote:
FOR EXECUTIVE SESSION: Bynum, Chock, Hooser, Kagawa,
Yukimura, Rapozo TOTAL— 6,
AGAINST EXECUTIVE SESSION: None TOTAL — 0,
EXCUSED & NOT VOTING: Rapozo TOTAL — 1,
RECUSED & NOT VOTING: None TOTAL — 0.
Chair Furfaro: I need a motion to defer ES-758.
Upon motion duly made by Ms. Yukimura, seconded by Mr. Bynum, and
carried by a vote of 6:0:1 (Mr. Rapozo was excused) ES-758 was deferred.
There being no objections, the Council recessed at 8:43 a.m., to convene in
Executive Session.
The Special Council Meeting was called back to order at 10:36 a.m., and
proceeded as follows:
Chair Furfaro: We are back from Executive Session. We had
read before we went into Executive Session, communication C 2014-248, for the
SPECIAL COUNCIL MEETING 4 SEPTEMBER 17, 2014
posted Special Council Meeting. We had taken the public testimony prior to going
into the Executive Session. I am looking for a motion and a second to take action on
that item.
Mr. Bynum moved to approve C 2014-248, seconded by Ms. Yukimura.
Chair Furfaro: Members, any discussion? Mr. Hooser did you
want to initiate the Special Counsel discussion?
Mr. Hooser: Thank you, Chair for reminding me. There is
a lot on my mind this morning as we all do, it has been a beautiful week here, but I
would like to ask our outside Counsel, Mr. Minkin, to come forward.
Chair Furfaro: May I ask the County Attorney to join him.
Mr. Hooser: Yes.
There being no objections, the rules were suspended.
Mr. Hooser: The item that we are on, Chair, just to
refresh...
Chair Furfaro: Is the communication read earlier by the
County Clerk, Mr. Watanabe, C 2014-248 which is a communication that authorizes
money for Special Counsel.
Mr. Hooser: This is a twelve thousand seven hundred and
fifty dollars ($12,750) for Special Council. May I?
Chair Furfaro: Yes, go right ahead.
Mr. Hooser: Good morning to both of you. Before we
further discuss this as a body, I wanted to ask Mr. Minkin's specifically why your firm
is offering to do this appeal for twelve thousand seven hundred and fifty dollars
($12,750) in addition to what has already been appropriated. I have two (2) questions,
one is why you are doing this? If you believe and I assume the answer is yes, but if
you can tell us why and if you feel this is a winnable appeal?
DAVID J. MINKIN, Special Counsel: Basically, there are a couple of reasons
that come to the forefront. The primary reason being that we believe that the issue
of whether State law preempted this matter should have been sent to the State
Supreme Court via certified question, that is a special legal mechanism that exists.
Judge Kurren did not do that. He held that there was no Federal preemption, but
found that there was State preemption. We believe that the State preemption issue
should have gone as we asked the Court to do, to send it to the State Supreme Court
and we feel good about that particular aspect of the appeal, as well as the issues that
are out here, that we do not believe in our motions that there was State preemption
or Federal preemption. The Judge held that there was no Federal preemption also
held contrary to the Plaintiffs assertions at the Right to Farm Act did not preclude
the Ordinance also held that under the police powers, the County has the ability to
regulate nuisances but then held that State preemption on agriculture laws
invalidated the Ordinance.
SPECIAL COUNCIL MEETING 5 SEPTEMBER 17, 2014
Mr. Hooser: So at the end of the day is it safe to say that
you believe or your firm believes that Ordinance No. 960 is an ordinance that is legal
and potentially could be implemented?
Mr. Minkin: I believe that Ordinance No. 960, there are
other legal issues that are there that we feel very strongly about in supporting and
basically defending the Ordinance. At the end of the day we do not believe that the
Ordinance is preempted by the current statutes on the books with the State of Hawai`i
and the Court held otherwise. We believe very strongly that the Court got it wrong.
Mr. Hooser: Thank you very much. Thank you, Chair.
Chair Furfaro: Any other questions? Mr. Chock.
Mr. Chock: Thank you, Mr. Minkin, for being here as our
Special Counsel. The communication talks about legal fees beyond the two hundred
ten thousand dollars ($210,000) previously authorized by the Council and so I wanted
to be sure there was an understanding and if you could verify that.
Mr. Minkin: Basically what myself and my firm have
agreed to is to continue representing the County in this matter whether it is dealing
with other motions that get filed by the District Court such as an attorney fees,
motion or an appeal, we will cap our fees at two hundred ten thousand dollars
($210,000) which has already been authorized by this Council and amendments to
the original contract and based upon ethical rulings, we are capping our potential
exposure on cost at twelve thousand seven hundred and fifty dollars ($12,750). That
is for costs solely above and beyond the two hundred ten thousand dollars ($210,000).
Mr. Chock: Thank you very much.
Mr. Minkin: With no additional charge to the County for
fees related to either filing any motion or any appeal.
Mr. Chock: Thank you.
Chair Furfaro: Any further questions? If not, again, thank
you very much on behalf of the County of Kaua`i for your offer to pursue all of these
things related to this potential appeal. Thank you very much.
Mr. Minkin: Thank you.
There being no objections, the meeting was called back to order, and proceeded
as follows:
Chair Furfaro: Any further discussion before I call for a vote?
Mr. Bynum: I appreciate Mr. Minkin and his appearances
that the public could see in the last two (2) Council meetings because a lot of these
issues are briefed and counter-briefed in thousands of pages of legal arguments. The
context in the community is pretty intense but as the Judge points out in his ruling,
his ruling does not diminish the health and safety concerns of the people of Hawai`i.
Over the last week or two, I have been reading again the American Academy of
Pediatrics released in early 2013 or late-2012 about pesticide exposure from the
numbers of sources and its impact on children. One of the provisions that got struck
SPECIAL COUNCIL MEETING 6 SEPTEMBER 17, 2014
down in Ordinance No. 960 was a mechanism for our Pediatricians and OB/GYN
(Obstetrics and Gynecology) to get specific information that they need for their
clients. I would ask the community to look at that American Academy of Pediatrics
bulletin again and contrast it with what the attempted actions are by the County of
Kaua`i. I never accepted that this legal concern would be resolved at the first Court
hearing. We agreed to extend the deadline of implementation to give the Courts time
to do that and we know for certain that had every argument gone our way that the
chemical companies would be appealing and the County would still be involved in
defending at some level. I think it is an obvious choice to move forward especially and
even without this largest...that is coming from the McCorriston firm who has worked
for the County of Kaua`i on many matters over the years. This is an issue of Statewide
and National importance but most importantly for us it is about the health and safety
of our citizens. Nothing about this Court decision diminishes the legitimate concerns
of our community and our responsibilities to respond to them. Thank you.
Chair Furfaro: Anyone else wish to speak? JoAnn.
Ms. Yukimura: State preemption of Counties is a matter of
State law so it really makes sense that the decision about what State law says is from
the State Supreme Court. I do believe that the Federal Court era did not certifying
the question to the State Court and that is why I believe that is worthy of an appeal.
Mr. Kagawa: To approve today's money is to approve
supporting Mr. Minkin in going forward with the appeal process. Everybody knows
in here and in the community that from the beginning or Bill No. 2491, I did not
support the Bill because of the major legal questions. I said that in the first meeting.
I went back to the minutes and before even hearing any attorneys speak or the
County Attorney coming out with an opinion, I came out with my statement that I
felt that the Bill had significant legal problems and I got the "boos" and the "oh, what
are you doing." We had Earthjustice and other attorneys saying, "Do not worry, Mr.
Kagawa, if they sue, they do not have a case. We will beat them in Court. We will
donate our time and fees to the County which is unprecedented, but we will do that
and this Bill will be solid and upheld." I did not buy that kind of advice. I prefer to
get an objective attorney opinion to support what I had thought, that was real and
thus far my hunches have been true. The Bill had been determined invalid by Judge
Kurren and there is nothing that I have seen that will change my opinion of what will
happen in the appeal process. Where I chose to put my effort was to improve the
impact to the residents and I spent many meetings up in Oahu and even disagreed
and pounded the desk of the State Department of Agriculture when they told me that
they got six (6) out of nine (9) positions that they have asked for added and none of
those six (6) were going to come to Kauai. By fighting hard for the residents of Kaua`i
saying that we are the island that approved this bill because they are frustrated with
the State, we got that position added. I just got a call on September 4th at 8:18 in the
morning from Thomas Matsuda who told me basically that because I have been
putting in the effort and with the help of the Legislators, they added a new Inspector
position to Kaua`i. That is where you are going to get immediate impacts. We are
going to have...we are going to double our workload of the State Department of
Agriculture Office from one (1) Inspector to two (2). That are real changes for the
people of Kaua`i. Those of you who believe the State is hopeless, do not do
anything...well, that is your opinion. I believe they have the expertise, the
jurisdiction. That is where I put my effort and I do not see with an appeal process
how the lives of the west-siders are going to improve with a delay of a year, two (2),
or three (3) years of just delays of appeals. How is that going to help? It is going to
help nothing. To me, if we really want to help via County ordinance, via County bill,
SPECIAL COUNCIL MEETING 7 SEPTEMBER 17, 2014
let us write a good bill that will hold up in Court that will take action quickly and not
delay. Thank you.
Chair Furfaro: Mr. Hooser.
Mr. Hooser: I want to thank Mr. Minkin and his law firm
for their good work that they have done and their commitment to following this
through. I think you heard what he said he believes that the bill will hold up and it
is not preempted. I appreciate the work that Councilmember Kagawa has done at
the State level pounding on doors and Chair, I appreciate the work that you have also
done on that. I know you have written many letters and talked to many of our State
Legislators and Directors as many of us on this panel have done the same. That effort
is paying off and I think that is refreshing in small increments it is paying off. I have
to say that the attention to this issue would not have happened without the action of
the people on the westside who have been directly impacted with this. This discussion
would have never been on the table without the people that are being directly
impacted by the dusk and pesticides coming to the County and their government
asking for help and support. Bill No. 2491/Ordinance No. 960 was a direct response
to that request to the community. The actions requesting help from our Legislators
was additional response but it all came from that initial conversation that the
community came to us obviously frustrated. They have been in the lawsuit with
Pioneer for many years and gotten no relief, they came to us and asked us for relief,
and we put together a bill designed to present some measure of relief within our
constitutional framework and it was reviewed by many attorneys. It was supported
and opposed by various attorneys. One thing that this recent decision has told us is
that we do have the right to regulate agriculture. We do have the right to regulate
nuisances. Nothing precludes us from doing that. If Councilmember Kagawa wants
to write a good bill, I will welcome him to do so. I certainly plan on writing additional
bills on this matter myself. We can write bills to regulate dust, agriculture, and other
measures to further those protections. If Councilmember Kagawa wants to join me
on that, I would be happy to partner with him to further regulate this industry and
provide protections to the people on the westside who are being impacted directly by
this. I welcome that participation from any Councilmember to do so. I think it is
important that the effort we put into this, while disappointing in some respects
having the Court ruled the way they did, it certainly not over. There have been many
gains that we made as a community through this effort and I think it is important to
acknowledge those. The modest efforts that the Department of Agriculture now
stepping up, I think is a direct result of that. The so-called "voluntary program" was
something that was not in place so at least we are getting some kind of disclosure
even though that disclosure is selective and does not disclose all pesticides that are
being used, only those pesticides the companies want us to know about. But it is
better than we had before. If you drive around the community and look across the
street across from Kukui Grove you will see hedges being put in and buffer zones
being put in all as a result...none of this would have happened in my opinion, none of
this was happening before the discussion in our community started in Bill No. 2491
began. As a result of those discussions, working with Councilmember Bynum, I
discovered that three (3) of the companies had not paid the property taxes that were
owed on the property due to the large part to the County's responsibility for not billing
them for it. But there were three hundred forty-two thousand dollars ($342,000)
worth of property taxes that were due but not paid. That is something we would have
not known without the due diligence in the work to develop Bill No. 2491. Once I
discovered that amount I talked to the Tax Department and they sent these
companies bills. It went back to 2006 and the total was three hundred forty-two
thousand two hundred sixty-seven dollars ($342,267) approximately of taxes that
SPECIAL COUNCIL MEETING 8 SEPTEMBER 17, 2014
were not paid. The County was able to recover to-date a hundred and ninety-nine
thousand eight hundred and sixty-three dollars ($199,863), almost two hundred
thousand dollars ($200,000). That is two hundred thousand dollars ($200,000) that
this County would not have gotten if not for the work of Bill No. 2491. I appreciate
the Tax Office, I appreciate the companies paying that amount. I wished they would
have paid the full three hundred and forty-two thousand dollars ($342,000) but by
law we are not entitled to go back to 2006 and collect those. Every year it is like an
endowment. Every year we will get...I want to say fifty thousand dollars ($50,000)
going forward as a result of that effort. There are many things that have happened.
We got additional legal clarity that we did not have before and it is not over. I
certainly going to support this twelve thousand ($12,000) some dollars. Why would
we not support the offer, the very generous offer by this law firm — the twelve
thousand seven hundred fifty dollars ($12,750) to pursue appeal all the way to the
Supreme Court if they took it? So how do we not accept an offer like that from a
company who believes they can win and is offering us this generous offer and it will
not preclude us from taking any other action? It will not preclude us from getting the
State to push more, it will be preclude us from passing other laws to have other
protections. I can find no good reason not to support this modest amount of money
and encourage my colleagues to join in on the support.
Chair Furfaro: Any member want to speak that has not
spoken?
Mr. Chock: I just want to take the opportunity to thank
our Special Counsel, David Minkin, Mr. Andrade for continuing to be here and give
us guidance and most of all for helping to guide the process as it continues. The legal
process is on its way and you are allowing it to run its course and to answer all the
questions that are necessary for us to gain clarity. I also want to acknowledge that
taking that aside and for us not to lose focus on the core issue which is the fact that
some people have complained and about the health and that we should also look for
opportunities to come back to that need. I am hoping to see that the Administration
along with our Council looks for opportunities to bring these parties together. The
State now with its more of a definition of its role as well as the community, people
who have said that they are being exposed and then the companies. I think this
opportunity will allow us to keep the legal process in one (1) arena and still continue
to look for the solutions we need because in the meantime after a year or two or
however long this takes, the most important is the communities health. I have heard
a lot of things in this process of the appeal. The likelihood of this being appealed from
every party is pretty high. Whether or not we had an Ordinance, the likelihood is
that anything will be challenged just because of the nature of this subject. Again, to
keep sort of that jaded bigger picture out of our hands and keep really what is focused
and needed for our community like Councilmember Kagawa had mentioned I think
is where I would like to spend our energy. Thank you again for everything you are
doing for us.
Ms. Yukimura: While Bill No. 2491 did trigger a very deep
and unfortunate polarization, it did also raise a very important issue about our
community's health. It is an issue that needed and needs to be addressed. I think
even Councilmembers Rapozo and Kagawa who voted against the bill did not deny
the problem but they said that...their thinking was that it needed to be addressed by
the Department of Ag. I think the issue has been before us and all of us have been
trying to see that it is addressed in a variety of ways. I have not been very verbal
about what I have done vis-à-vis the Department of Agriculture but I did also go to
Honolulu and meet with Mr. Matsuda and Councilmember Nakamura and I had a
SPECIAL COUNCIL MEETING 9 SEPTEMBER 17, 2014
conference call with the Department of Agriculture seeking their cooperation while
we were working on Bill No. 2491 to actually agree to enforce whatever provisions of
the bill would past because they were the ones who have the established expertise.
We did this in order to try to engage the Department of Agriculture to get involved in
the issue and also to...in the hopes of making the bill more legally defensible by
involving the Department of Agriculture which we thought could may be preclude the
preemption issue, but of course none of that happened at that time. I also want to
recall as Councilmember Kagawa has recalled his earlier statements, I want to recall
that I said several times that I had thought there was a sixty/forty (60/40) chance
that we would be preempted but that I felt nobody could tell us all the arguments and
testimony before us could really tell us what the law was except for the Court itself.
I was actually applaud by my legal colleagues who gave a carte blanche approval to
2491 saying it was legally sound. I really felt that we needed to go to Court and we
have gone to Court. The Court has given us very interesting decision. I mean it is
made clear that County regulation through a bill like 2491 or Ordinance No. 960 is
not preempted by Federal law which is a really important decision however it did
opine that or decide that our actions are preempted by State law however it was a
Federal Court doing this. I think the proper action of a Federal Court should have
been to certify it to State Court and that is the issue that will be appealed and so I
think it is an appropriate thing to do at the cost that have been generously provided
by the...a limitations on the cost that have been provided by our Special Counsel and
I think it is also instructed that Councilmember Hooser has explained how the bill
has led to some additional tax money being available. In the context of all of that I
think that an appeal is appropriate.
Chair Furfaro: Mr. Kagawa.
Mr. Kagawa: My name was mentioned. I just want to
mention that we need to go back and remember what really happened when we finally
approved Bill No. 2491. The Mayor sat here before us and told us, "Give me one
month delay. Let me work with the State. Let me work with the various agencies. Let
us get something that will work for the community." He asked for one money delay
and we decided instead to take that sixty/forty (60/40) chance, not even give him a
month. Let us take our chance on that forty percent (40%). I mean if it was your
money, the taxpayers money, would you roll the dice on forty percent (40%)? Let us
get real and remember what really happened. Let us not get caught up in the hype.
Let us remember what happened. Let us remember what kind of message we send to
the Department of Agriculture and then now to say that it is our work that led to the
Department of Agriculture's cooperation? You do not work like that. You do not just
pass a bill and say that they do not do their job and so we are going to pass this
because they do not do their job. Now to sit here and say it is our work that led to
the Department of Agriculture. You work by working together — sitting down at the
table man-to-man saying, "our community is asking for a little more help with this
dust and these problems out here." Mr. Matsuda, unbelievable the sincerity he
shows, it does not show me to be a guy that does not care. Let me just say that that
is not how we get results for our people. We do not just ignore what the facts are and
just say things that make us feel good. Thank you.
Chair Furfaro: Right and this would be your second time
speaking.
Mr. Hooser: Yes, we are entitled to speak twice. I
appreciate that.
SPECIAL COUNCIL MEETING 10 SEPTEMBER 17, 2014
Chair Furfaro: Yes and I am giving it to you.
Mr. Hooser: I do not think it serves us well to rehash a
year's worth of work on Bill No. 2491 and Ordinance No. 960. At the same time I
think it is important to recognize the history that each of us knows. I have been
working on this issue for fifteen (15) years. I have been listening to the industry say,
"next year." When the kids from Waimea Canyon School first got sick, I worked on
this in the State Senate and they said, "no, no, no" and then finally they put in the
so-called voluntary buffer zone over there. Waiting around for the State to do
something for me personally after waiting fifteen (15) years is not something I wanted
to do. I think the people of the Westside have been waiting for ten (10) years hoping
for relief and so I think we fulfilled our responsibility as Council. We listened to the
community, we took a long time during deliberation, and we had full community
meetings. I think it is important to remember this is only about disclosure, buffer
zones, and a study. That is all this is. We had a majority of the Pediatricians in our
community say this is the right thing to do. We had the Hawai`i State Teachers
Association say this is the right thing to do. We had the Hawai`i Nurses Association
say this is the right thing to do. We had more people show up on this issue saying it
is the right thing to do then we had on any issue ever. We took our responsibilities
seriously. We did our deliberation, we passed the bill, and it became law. It was
challenged in Court and now we are here appealing it. I want to thank our Attorney
who believes that we can win this appeal and believes that we are not preempted and
is putting their money where their mouth is and only charging us twelve thousand
seven hundred and fifty dollars ($12,750) more than we have already appropriated to
defend it all the way to the United States Supreme Court if it takes it. Why would
we not want to support that offer is beyond me. Thank you.
Chair Furfaro: Okay. I would like to first of all say to
everyone here as we move forward on this appeal that I want us to all value each
Councilmembers' opinion and actions. This is what living Kaua`i is all about. This is
about being good stewards as well. Some of us may disagree on the approach but the
reality is we are a land of laws and this is what has come to us. I think the
introduction of the bill itself really increased the attention that was needed to manage
and be a good steward of our land. Ordinance No. 960 has done that across the islands
and the State. People came to make their queries their way. Mr. Rapozo and Mr.
Kagawa made several visits to the State and pleading our case. I think JoAnn said
it from the very beginning she thought there was a very good possibility sixty/forty
(60/40) that we would be preempted but the main thing I want to understand here is
we are getting clarity about the various political subdivisions and their kuleana.
What are they responsible for? That is the bottom line here. The ruling bothered
some because of the impact on agriculture and so forth, we also have to make sure
that the ruling has really other implications about our authority as a political
subdivision. This is extremely important. The County's authority, the State's
authority and the Federal government's authority. To do that and get the clarity we
are going through this appeal. There are other Intervenors and they will pursue other
possibilities. There is a public trust document that we know that puts burdens on all
political subdivisions. These things are coming out in open discussion now —
extremely important for us to understand being good stewards of our land. The State
has been very clear with the Judges interpretation that they occupy the field that
deals with the application and management of Agriculture lands. We will query
always our responsibility to be able to handle public safety, public interest for really
the right reasons. We do reserve the right to do studies and the documentation on
getting information that can be provided to others so that we can constantly make
improvements. That is what this is about for me and it is also not the easiest job to
SPECIAL COUNCIL MEETING 11 SEPTEMBER 17, 2014
facilitate leadership from this end of the table. I have asked all of my colleagues at
the table about mutual respect as we go through this process. I ask the community,
you know, let us make sure we build our island on a foundation of aloha and mutual
respect. Remember we are truly doing this for the right reasons to get clarity. To
really have clarity in our community on what responsibilities we have and working
with corporations that are in our community. There is a lot to be thankful for with
the law firm that is doing this for a very fixed amount and we certainly appreciate
that and it is done in the spirit of doing the right thing for the right reason and getting
clarity. I work with a very fine group of people here and everybody does have Kaua`i's
best interest at heart even though they may not seem that way to you sometimes. At
the end of the day we all want to be very good stewards of Kaua`i. On that note,
please call for the vote.
The motion to approve C 2014-248 was then put, and carried by the following
vote:
FOR APPROVAL: Bynum, Chock, Hooser, Yukimura
Furfaro TOTAL — 5,
AGAINST APPROVAL: Kagawa TOTAL — 1,
EXCUSED & NOT VOTING: Rapozo TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL— 0.
ADJOURNMENT.
Mr. Chock moved to adjourn the Special Council Meeting of
September 17, 2014, seconded by Mr. Kagawa, and carried by a 6:0:1
(Mr. Rapozo was excused).
There being no further business, the Special Council Meeting adjourned at
11:12 a.m.
, •ctf lly .ubmitted,
JADE K. FOUNTAIN-TANIGAWA
Deputy County Clerk
:dmc