re: Proposed Adoption of Hawaii Administrative Rules

This meeting is not listed on the PLDC “2012 Board Meeting” Web page (20 nor is it listed on the Hawaii eGov Calendar site.2 The PLDC has posted its proposed rules on the DLNR website.(3)

Life of the Land was born in 1970, before the first Earth Day celebration. Our mission is to preserve and protect the life of the land by promoting sustainable land use and energy policies and encouraging open government through research, education, advocacy, and litigation.

Life of the Land opposes the PLDC proposal to stifle public comment.

Life of the Land advocates the repeal of HRS §171C re the PLDC.

The PLDC seeks to limit public input:

HAR §13-301-6 “Limiting testimony at public hearings and
meetings. [] The presiding officer shall confine oral testimony
to agenda items in board proceedings. [] the presiding officer
may limit the amount of time for testimony per individual or
per issue.” [Eff and comp 2/27/09] (Auth: HRS §171C-4)
(Imp: HRS §§91-2, 92-16)
The HRS citations listed present a weak argument for stifling the public.
HRS §171C-4(a) “the corporation may [] (4) Adopt rules
under chapter 91 necessary to effectuate this chapter in
connection with its projects, operations, and properties”
HRS §91-2(a) “each agency shall: (1) Adopt as a rule a
description of the methods whereby the public may [] make
submittals or requests.”
HRS §92-16(a)(2) “Any board [may] administer oaths to
witnesses and require the testimony of such witnesses on
matters germane to the subject under inquiry at the hearing.”
The only reference to require testimony germane to what an agency thinks
is germane has to do with witnesses under oath.
PLDC Projects require a sham public hearing.
HAR §13-302-32(a)”An eligible project applicant or project
partner shall conduct or participate in at least one public
meeting in the county community or development plan area in
which the proposed project is located to solicit community
input on the proposed project.”
There is a significant difference between public comments (thank you for
sharing, now sit down) and the right to protect significant interests
(contested case proceeding, court action)
PLDC Projects require disclosure through environmental impact analysis, but
not mitigation of those impacts.
HAR §13-302-22(8): “The corporation may undertake or enter
into an agreement with an eligible project partner for the
development of a project if the project [] Assesses
environmental impacts as required under chapter 343, HRS”
There is a significant difference between an EIS (a disclosure document) and
holding a contested case proceeding which may result in establishing
enforceable permits conditions.
Background
The Public Lands Development Corporation (PLDC) was created by the 2011
Hawaiʻi State Legislature (Act 55) and codified as Hawaii Revised Statutes
(HRS) § 171C. The PLDC was created to in order to generate revenue for
the State.
The 2012 Hawaiʻi State Legislature removed PLDC lands from the definition
of “public lands.” (Act 282).
The PLDC is broadly exempted from Hawai‘i’s planning and land use laws
that are in place to protect Hawai‘i’s unique cultural and environmental
resources. The exemptions provided to PLDC are broader than that given to
any other agency in state government except for the Hawaiian Homes
Commission.
PLDC’s broad exemptions are not replaced by any others standards, which
could result in decisions that adversely impact Native Hawaiian traditional
and customary practices and degrade natural and cultural resources, and the
environment.
PLDC is exempt from HRS chapter 205, the State Land Use Law, a law that
according to the Hawai`i Supreme Court o is a “law relating to
environmental quality,” County of Hawai’i v. Ala Loop Homeowners, 123
Hawai`i 391, 410, 235 P.3d 1102, 1122 (2010).
PLDC is exempt from HRS chapter 205A, the State’s coastal zone
management act, which is, according to the Hawai`i Supreme Court, is “a
comprehensive State regulatory scheme to protect the environment and
resources of our shoreline areas, ” Morgan v. Planning Dep’t, 104 Hawai`i
173, 181, 86 P.3d 982, 990 (2004).
PLDC is exempt from HRS chapter 183C, which protects cultural and natural
resources in the conservation district along our beaches and watershed.
PLDC is also exempt from all zoning and subdivision requirements that
protect natural and cultural resources.
The PLDC is exempt from have protected Nā`ālehu, Pōhue, Kealakekua,
O`oma, Pauoa, Pāo`o, Honoli`i, Kealia, Lā`au Pt., the Ka Iwi shoreline,
Maunawili, He`eia, Waiāhole, Wai`anae, Wa`ahila Ridge, ‘Ewa beach,
Keālia ma kai, Hanalei, and many other special places from inappropriate
development.
HRS 171C does not require the preparation of business and public land
development plans for its projects and in the event that the PLDC chooses to
do so its contents are not required to include elements to ensure protection
of culturally sensitive areas or traditional and customary rights; and
The PLDC is allowed to: “sell, assign, exchange, transfer, convey, lease, or
otherwise dispose of or encumber any real, personal, or mixed property
acquired” (other than property owned by DLNR as of July 1, 2011) (HRS §
171C-4(a)(8)) and “own, sell, transfer, exchange, lease or otherwise dispose
of any project” (HRS § 171C-4(a)(9); and
In August 2012 the PLDC held hearings in Hilo, Kona, Maui, Molokai, Oahu
and Kauai to hear testimony on proposed administrative rules. Hundreds of
people turned out at each hearing expressing opposition to the PLDC and its
proposed rules.
County Opposition
The Hawaii State Association of Counties is likely to propose legislation this
session to repeal the Public Land Development Corporation after receiving
800 emails from residents opposed to the agency. [] The Kauai County
Council and Hawaii County Council have unanimously passed resolutions
urging repeal of the PLDC by the state legislature.4
Summary
Please stop limiting public input
Mahalo,
Henry Curtis
Executive Director

http://hawaii.land.blogs.civilbeat.com/post/33746419051/county-lobbying-group-could-propose-bill-to-repeal-pldc

http://hawaii.gov/dlnr/pldc/meetings
https://calendar.ehawaii.gov/calendar/html/event/2012/11/11/?viewperiod=3&currentViewtype=2&viewtype=2

HAWAII ADMINISTRATIVE RULES
TITLE 13: DEPARTMENT OF LAND AND NATURAL RESOURCES
SUBTITLE 14: PUBLIC LAND DEVELOPMENT CORPORATION
CHAPTER 301: RULES OF PRACTICE AND PROCEDURE
http://hawaii.gov/dlnr/pldc/rules/pldc-chapter-13-301-proposed-121002.pdf
CHAPTER 302: PUBLIC LAND DEVELOPMENT PROGRAM
http://hawaii.gov/dlnr/pldc/rules/pldc-chapter-13-302-proposed-121002.pdf