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HomeMy WebLinkAbout06-16-2010 special council meeting minutes SPECIAL COUNCIL MEETING June16, 2010 The Special Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, 3371-A Wilcox Road, Mhu`e, Kauai, on Wednesday, June 16, 2010 at 8:35 a.m., after which the following members answered the call of the roll. Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W Kaneshiro Honorable Lani T Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair Chair Asing: Thank you. With that, can we have the first item please? PETER A. NAKAMURA, County Clerk: The first item is approval of the agenda. APPROVAL OF AGENDA. Mr Furfaro moved for approval of the agenda as circulated, seconded by Mr Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr Nakamura. First matter is a Legal Document, communication C 2010-159 LEGAL DOCUMENT: C 2010-159 Communication (6/10/2010) from the County Engineer requesting authority from the Council to (1) execute a Cooperative Agreement with the United States Department of Agriculture, Natural Resources Conservation Service ("NRCS") and State of Hawaii Department of Land and Natural Resources for the Kilauea River/Wailapa Stream Debris and Sediment Removal, Emergency Watershed Protection (EWP) Project, and (2) to indemnify the State of Hawaii. • Cooperative Agreement, Locally Led Contracting, by and between the Department of Public Works, County of Kauai; the Department of Land and Natural Resources, State of Hawaii, and the Natural Resources Conservation Service, United States Department of Agriculture. Chair Asing: We re going to move this item to the end of the agenda. Is there anyone who wants to speak on this item? There being no objection, the rules were suspended. Chair Asing: If not, the meeting is called back to order and. let's take the next item, please. SPECIAL COUNCIL MEETING -2- June 16, 2010 There being no one wishing to speak on this matter, the meeting was called back to order, and proceeded as follows: Mr Nakamura. Next matter for Chair Asing: Hang on. Joe, you want to speak on the first item? JOSEPH MANINI (in the audience)- Yeah. There being no objection, the rules were suspended. Mr Manini. Good morning. Chair Asing and Mr Furfaro Good morning. Mr Manini: Is this on (referring to the microphone)? Chair Asing: Yes, it's on, Joe. (Inaudible.) Mr Furfaro: Hold on, Joe, hold on, Joe, let her check. Chair Asing: It's not on? Mr Manini. Good morning, Mr Chair Chair Asing: Good morning. Mr Manini: Members of the Council. Mr Furfaro: Good morning. Mr Manini. I. I know a lot of people know me as Joe Manini, but I'm not representing Joe Manini now I'm representing the Kanaka Hui with Manini and Ko Ke Aupuni as joint tenancy Maybe hard to swallow that, but I tried to get an appointment with the county auditor, but he was kind of busy so I talked to him yes.. you know, I think it was yesterday, maybe some time end of the week or next week maybe I might get one appointment with him to discuss about the. the land issues because I talked to John Hunt one time. I mean Herring, but we didn't get into one regular meeting. So maybe. maybe that going include the Council too, I'm not sure, concerning the lands because it's important. Because when I listen the TV and what comes over the air, it's something to do with Moloa'a and now you're talking about Mlauea right here. When I look at my documents, Kilauea is Papa'a. The real Kilauea is by Princeville Ranch. So this (inaudible) changes and switching of names since everybody was born over here Some of you wasn't born probably Like Mr Asing, I know he's old because I used to play basketball against him. So I'll be making 80 this year and I'm pretty sure he's older than me. But I know a lot of you probably are younger, so you don't know too much about the name changes and identification of the land. I don't agree with. I don't disagree with this people cleaning the place, but I disagree with them giving the County Council the jurisdiction of the place to allow them to do what they're doing because I don't think the County Council has the jurisdiction of that area. And I have a map over here that shows that even the place where Pflueger got jammed up with the reservoir, you know the one cause all this rubbish, that it is in Papa'a SPECIAL COUNCIL MEETING - 3 - June 16, 2010 according to my map It's a geological survey map It was taken about 1910 by the geological survey, so. I haven't come forth before this on a lot of issues because when I became the. the head of the estate, it took me long time to look at all the papers because had a lot of paperwork. It goes right down to New Zealand, it's not only here. It's not only on Kauai, it's the whole state and goes all the way down. And I have the deeds and what you call grants and all that. But maybe it's a case where maybe we should defer the thing and meet at least and talk about `em on the table. If you folks want to meet with an attorney or by myself, it's all right, but. Mr Nakamura. Three minutes, Mr Chair Mr Manini. the attorneys would be representing the. the. the attorneys will be representing the State of Hawaii or County of Kauai because this is a separate entity The Hawaiian Kingdom that the United States overthrew and the Kanaka Nation still holds the lands over there, it's the Kanaka Hui lands, which has been misidentified and is called the people's lands and the Hawaiian lands, but it's not Hawaiian. It's specifically Kanaka. And in the grant, it shows who the Kanaka is. It identifies `em. And the United States Interior Department identifies them. So, maybe it's between the United States Interior Department, the County and the State, and the Native Kanaka. I'm not sure. But my time is up, so maybe something can be arranged. I know I know there's not enough time when you come here because it's only about three minutes. So thank you anyway for for allowing me to speak. Chair Asing: Thank you. Is there anyone else who wants to speak on this item? If not, I'll call the meeting back to order There being no one else wishing to speak on this item, the meeting was called back to order, and proceeded as follows: Chair Asing: And we're going to move this item to the end of the agenda. So, Peter Mr Nakamura. Next matter for approval is communication C 2010- 160 C 2010-160 Communication (06/10/2010) from the Mayor, requesting Council approval of the State of Hawaii Legacy Land Conservation Program Grant in the amount of $800,000 00 for Black Pot Beach Park Expansion, to acquire real property identified as TMK (4) 5-5-001:011 which is 0 74 acres of land situate in Hanalei District, Island of Kauai. • State of Hawaii Legacy Land Conservation Program Grant Agreement by and between the Board of Land and Natural Resources, State of Hawaii, and the County of Kauai (Awardee) to acquire 0 74 acres, more or less, in Hanalei District, Island of Kauai. Chair Asing: Can I have a motion to approve? Mr Kaneshiro moved to approve C 2010-160, seconded by Mr Furfaro Chair Asing: Okay, any discussion? Before we go into discussion, is there anyone who wants to speak on this item? There being no objection, the rules were suspended. SPECIAL COUNCIL MEETING -4- June 16, 2010 JENNIFER LUCK, Kauai Public Land Trust: Good morning, Councilmembers. For the record Jennifer Luck with Kauai Public Land Trust. Councilmembers: Good morning. Ms. Luck: I just wanted to take an opportunity to come up here and thank each and every one of you for your support of this project and in particular the staff of the council, for their hard work in getting this item on the agenda today and also for working with us so hard to secure the funds necessary for this project. So, thank you so much for your support and for partnering with us on this. The community is thrilled that the Governor decided to release the funds and is very excited about the closing of the property and the additional space to the park. So, thank you so very much for all of your hard work. We greatly appreciate it. Chair Asing: Thank you. Any questions for Jennifer? If not, 1. I'd like to just thank you for all the hard work that you've done. Many times the hard work of individuals who are working behind the scenes don't get recognized and I know that you've done a lot of work yourself as an individual together with the Land Trust. So, thank you for all the work that you've done also and your group Ms. Luck: Oh, thank you, yes, and in partnership, certainly, with JoAnn Yukimura and Bill Chase and Gary Blaich and the rest of the Board who are phenomenal and donated a lot of time, so. Without their vision, I don't think we'd all be here today Chair Asing: Thank you. Ms. Luck: Thank you. Chair Asing: Yes, Councilmember Furfaro. Mr Furfaro: Thank you, Mr Chair Jennifer, I too would say thank you very much for this benefit for our community I just want to hear from you as this thing moves forward and the acquisition is made along with County funds, at what point in time do you see the Land Trust conveying this parcel to the County Is at a. is it at a scheduled board meeting? Is it something that's yet to come up? What is the mechanics to that? Ms. Luck: Right, we have discussed it and I think it should be a discussion actually with yourselves, with the County Council and council staff in addition. Because most of the funds are County funds and because the County was a co-applicant on the Legacy Land Application, in theory all of the money could go directly to the County and the land could go directly to the County There really is no need, as I see it, for the land to come to the Kauai Public Land Trust. I think probably it makes the most sense for the property to go directly into County hands if possible. Mr. Furfaro: Okay, so you do understand the rationale behind my question because we will be the majority of the money, but I wanted to make sure since you have so diligently negotiated the agreement and in the presence of our legal representatives that are here, the intent of the actual transaction and the SPECIAL COUNCIL MEETING -5- June 16, 2010 escrow action, so it is clear to me how this would be done It is the Land Board's position. the Land Trust position that the acquisition, in your eyes, will come directly in the transaction to the County Ms. Luck: Correct. Mr Furfaro That's how we understand it right now There's not another step with an agreement with the Land Trust Board. Ms. Luck: No, correct, that's. that's exactly how we see it proceeding and we've also spoken with the landowner John Hodges and let him know that that path makes the most sense and he's certainly very agreeable to that. Mr Furfaro: I just want to make sure that your group was agreeable in how that transaction will take place and I'll get confirmation from our attorneys before our money is released to escrow that we all have the same understanding. And I also want to say to you thank you very much for all of your work and coordination and patience. I think this is a great collaborative effort for the public. Thank you. Ms. Luck: I agree. Mr Furfaro: Thank you, Mr Chair Chair Asing: Thank you. Councilmember Bynum. Mr Bynum. Jennifer, thank you very much for being here today and I know we're all thrilled that this finally came down, and I appreciate you mentioning the Land Trust and Bill Chase and JoAnn Yukimura and I. 1 want to just take a minute to really recognize Gary Blaich, who is an amazing guy He's just tenaciously looking out after the best interest of the island and the future. You know I know I've gotten used to getting periodic calls from him to just kind of touch base, you know, where. what's he working on, what, you know, on behalf of the Land Trust and others, and I think he's probably one of the founders of the Land Trust and I just wanted to appreciate Gary and his tenacity and his vision and I know we'll be back with the next project soon, so Ms. Luck: Yes, we're all constantly trying to keep up with Gary Blaich. He's an incredible individual. I certainly agree. Mr Bynum. So, thank you Gary Chair Asing: Any other comments, Councilmembers? If not, thank you very much. I'll call the meeting back to order There being no one else to speak on this item, the meeting was called back to order, and proceeded as follows: Chair Asing: Do we have a motion and second? Mr Nakamura. Yes, we do. Chair Asing: Thank you. With that, any further discussion? If not. SPECIAL COUNCIL MEETING -6- June 16, 2010 Mr. Kaneshiro: I. Chair Asing: Yes, go ahead. Mr Kaneshiro: I just wanted to add, Mr Chair, I know there was a recent article that came out in the newspaper and it was quoted that the $1.85 million came from Unappropriated Surplus, and I wanted to make a correction on that that the money really did come from the Public Open Space. Mr Furfaro: Commission. Mr Kaneshiro. area and it did not come from Unappropriated Surpluses. I believe there was a quote in the paper that specifically stated that because the County was frugal and was, you know, really watching how we spent our money that this money was taken from that to purchase the property So I just wanted to clear that for the record that the $1.85 million did come from the Public Access Fund Program. The $350,000 that we had to also match to get the $800,000, of course that came from the money bill through Unappropriated Surpluses. I just wanted to straighten that out for the record. Thank you, Mr Chair Chair Asing: Any further discussion? Yes, go ahead. Mr Furfaro: I just want to thank Councilman Kaneshiro for correcting the misinformation that was there and correctly summarizing the funds. Thank you, Mr Kaneshiro. Chair Asing: Thank you. I guess then just one last comment. The Legacy funds were exactly intended for these kinds of purposes. Those funds and that program was set up for this kind of program, so it is very appropriate that the money be expended for these kinds of programs. With that, all those in favor, say aye. The motion to approve C 2010-160 was then put, and unanimously carried. Chair Asing: With that, County Attorney, please There being no objection, the rules were suspended. MICHAEL DAHILIG Deputy County Attorney Aloha kakahiaka, Chair Asing, Honorable Members of the Council, Mike Dahilig, Deputy County Attorney ES-447 Pursuant to Hawai'i Revised Statutes Sections 92-4 and 92-5(a)(4), and Kaua'i County Charter Section 3 07(E), the Office of the County Attorney requests an executive session with the Council to discuss legal issues pertaining to County-sponsored stream clearing activities in and around Wailapa Stream and Kilauea River 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 Asing: Thank you, I'd like to call the meeting back to order and have a motion to move into executive session. The meeting was called back to order, and proceeded as follows: SPECIAL COUNCIL MEETING - 7 - June 16, 2010 Mr Furfaro: I would like to so move that we move into executive session as requested by the county attorney Mr Kaneshiro. Second. Mr Furfaro made the motion to move into executive session, seconded by Mr Kaneshiro. Chair Asing: Thank you. Any discussion? Ms. Kawahara. Um. Chair Asing: Councilmember Ms. Kawahara. Will we be coming back after Chair Asing: Yes. Ms. Kawahara. Executive Session because I think somebody wanted to. did you want to make comment on this when we come back? Are we going to have a chance for the public? Chair Asing: No, we'll be coming back and taking this item. Ms. Kawahara Back up again. Chair Asing: Yeah. Ms. Kawahara. and then we. Chair Asing: It'll be on the agenda. As soon as we get through with the executive session, we'll come back here, call the meeting to order, and have discussion on this item. Ms. Kawahara. Okay, thanks. Chair Asing: Thank you. Any further discussion? If not, we'll move into executive session. Thank you. The meeting was recessed at 8:52 a.m. to move into Executive Session. The meeting was called back to order at 9-10 a.m. and proceeded as follows: Chair Asing: This meeting is now called back to order With that, Mr Clerk. Mr Nakamura. Council Chair we're back on communication C 2010-159 and the agreement that's attached to it for approval. C 2010-159 Communication (6/10/2010) from the County Engineer requesting authority from the Council to (1) execute a Cooperative Agreement with the United States Department of Agriculture, Natural Resources Conservation Service ("NRCS") and State of Hawaii Department of Land and Natural Resources SPECIAL COUNCIL MEETING -8- June 16, 2010 for the 1,Ulauea River/Wailapa Stream Debris and Sediment Removal, Emergency Watershed Protection (EWP) Project, and (2) to indemnify the State of Hawaii. • Cooperative Agreement, Locally Led Contracting, by and between the Department of Public Works, County of Kauai, the Department of Land and Natural Resources, State of Hawaii, and the Natural Resources Conservation Service, United States Department of Agriculture. Chair Asing: Thank you. With that, is there anyone else who wants to speak on this item? Don? There being no objection, the rules were suspended. DON HEACOCK. Good morning. Chair Asing: Good morning. Mr Heacock: Mr Chairman, Members of the Council, Don Heacock. I'm here as a. as an aquatic biologist today just to provide information for you. I realize when the emergency debris clean-up and sediment removal project was first drawn up, which was years ago, one of the things that wasn't being considered during those early proposals was that the USDA, another branch of the USDA, the US Forrest Service has very clear policy on leaving storm woody debris on. along the stream banks, the riparian zone Their their guidelines are to always leave that on the banks of the stream because it stabilizes the stream banks, helps the stream recover, helps vegetation re. reestablish itself, etc. There's one exception and that's at any place where you've got a bridge or a road crossing or culverts that. where the woody debris is. is blocking it. I spoke with Mr Lex Riggle this morning from NRCS One of the reasons that the State and NRCS have kind of moved away from this project is because most of the work has already been done. There's one thing, though, that I believe hasn't been done and that. when that. the Ka Loko Dam breach occurred, it washed an untold number of cars, refrigerators, propane tanks, debris out into the ocean. I've had a number of divers report things to me I haven't seen them firsthand (inaudible) I've seen some photographs of them. But to my knowledge, no one has gone out to get that man-made debris, some of which has hazardous waste in it. That part needs to be done in my my professional opinion. We need to clean that material up And so, that's. I just wanted to provide that little bit of information for you. Thank you. Chair Asing: Thank you. With that, Councilmember Kaneshiro. Mr Kaneshiro: So Don, you're officially making a statement representing the State of Hawaii. Mr Heacock: Oh no, I'm not representing the State, I'm representing myself as a professional fisheries biologist. Mr Kaneshiro: Okay, I wanted to be clear on that because it sounded like you said officially, you know, at one point. Mr Heacock: I don't think I ever used the word official. I. I said I'm representing myself as a. SPECIAL COUNCIL MEETING -9- June 16, 2010 Mr Kaneshiro: Well, at the same point, I want to be clear that you're representing yourself and not as an employee of the State of Hawaii. Mr Heacock: I'm representing myself as a professional aquatic biologist (inaudible) Mr Kaneshiro And not as an employee of the State of Hawaii at this point. Mr Heacock: Which. whichever you prefer I was a professional. Mr Kaneshiro: No, I'm asking you. Mr Heacock: Well, I've been a professional fisheries and aquatic biologist before I worked for the State. Mr Kaneshiro. I understand that. I understand that. Mr Heacock: And I'll probably be that until I die. Mr Kaneshiro: And you're also an employee of the State of Hawaii under those conditions. Mr Heacock: That's right and I'm. I. Mr Kaneshiro. So I'm asking, are you here in that capacity or here on your own personal capacity speaking? Mr Heacock: I'm here in my personal capacity to help you make a good decision. Mr Kaneshiro: Thank you, thank you. Mr Heacock: And it's my professional opinion, what I just stated. Mr Kaneshiro: Thank you. Mr Heacock: Thank you, Daryl. Chair Asing: Thank you. Is there any other questions? If not thank you, Don. Mr Heacock: Thank you. Chair Asing: Is there anyone else who wants to speak on this item? If not, I'd like to call the meeting back to order and have a motion to approve. There being no one else wishing to speak on this item, the meeting was called back to order, and proceeded as follows: Mr Kaneshiro: So moved. Ms. Kawahara. Can I have the county attorney up really quick. SPECIAL COUNCIL MEETING - 10 - June 16, 2010 Chair Asing: We're now in discussion. We have a motion to approve. Can I have a second? Mr Chang: Second it. Mr Kaneshiro moved to approve C 2010-159, seconded by Mr Chang. Mr Kaneshiro: Now okay for discussion. Chair Asing: Discussion, Councilmember Kawahara. Ms. Kawahara. Yeah, yes, if I could have Mike Dahilig up Chair Asing: Sure. There being no objection, the rules were suspended. Ms. Kawahara. Okay, good morning. Mr Dahilig: Good morning. Ms. Kawahara. I just want to be sure. We were.. it's my understanding that the reason given for the State not continuing in this was not because the work was already done. Is that correct? It was because of the indemnity issues. Mr Dahilig: From what. what the State's position has been is that the Attorney General could not reach an agreement with the landowners with respect to their template right-of-entry agreements. As a. and so that's. that is what essentially was the reason why the State decided to pull out of the project. Ms. Kawahara. Okay So there's still work that needs to be done because they never obviously did it. They did a design and consultant work. Mr Dahilig: As far as what was emplaced by the flooding created by the breach of the reservoir, our understanding is that not all the material has been excavated from areas that were.. that originally did not have sedimentation. And so from what we understand, a lot of the settlement that is in the lower parts of Wailapa and Kilauea Stream were emplaced by the disaster and not through natural causes. Ms. Kawahara. So the sedimentation, does that include removal of foreign objects and not debris along the banks? Mr Dahilig: In reviewing the State plans, the County Engineer is aware from their plans that this is not just a sediment removal. It's also a debris removal and that debris could include manmade objects, other types of foreign debris that came down as a result of the flood. And so yes, to answer your question, it would also include things that you have mentioned. Ms. Kawahara. Okay, thank you. Thank you. Chair Asing: Thank you. With that, I'd like to call the meeting to order and is there any further discussion? SPECIAL COUNCIL MEETING - 11 - June 16, 2010 The meeting was called back to order, and proceeded as follows: Chair Asing: If not, all those in favor, say aye. The motion to approve C 2010-159 was then put, and unanimously carried. Chair Asing: Next. I believe that's the end of the agenda. The meeting is adjourned. Thank you. ADJOURNMENT- There being no further business, the meeting was adjourned at 9.18 a.m. Respectfully submitted, ~-.__ PETER A. NAKAMURA County Clerk /wa