The Hokulia case is becoming a bald-faced attempt on the part of Protect Keopuka Ohana (PKO) and the other plaintiffs to legally expropriate property from private owners without compensation. In his Aug. 1 Hawaii Island Journal Viewpoint, “Hokulia: The Claim” Jack Kelly, PKO’s Vice President and Hokulia lawsuit plaintiff plainly states, “we all have claims against the county that are stronger than the claims of the Hokulia lot owners.” He continues, “More citizens will have to exercise their right to act as private attorney generals (sic) in defense of the public trust resources that belong to all of us. That’s what we did.”
PKO’s legal theory goes beyond the usual “greenmail” which has developers forking out millions to erstwhile environmentalists and cultural practitioners in exchange for not protesting their developments and not tying them up in endless hearings, procedures, studies and other red tape. “Greenmail”-the legal extraction/extortion of moneys in exchange for promises not to protest or block a development-is a multi-million dollar “business” in Hawaii.
Advanced by their Native Hawaiian Legal Corporation (NHLC) lawyers, PKO’s arguments are based on the belief that their claim on privately owned lots is greater than the claim held by those who own them. In other words, PKO believes it can go to court; prove a claim based on shoreline law, Hawaiian remains, or gathering rights and end up in control of another’s property to the extent that the owner is blocked from all productive uses of their land. When Kelly speaks of “Public trust resources that belong to all of us,” he is speaking of the private real property which homeowners have worked all their lives to pay for. As Representative Bob Herkes, (D-Kau) told 200 angry Kona citizens June 26, “If you are on a non-conforming ag lot your permit is at risk and your home is at risk.”
Compare this with the June 23, Kelo vs. New London decision. In this landmark case, the U.S. Supreme Court ruled that the city of New London, Connecticut, may use its power of eminent domain to expropriate private property — with market-price compensation to the owner — in order to transfer that property to another private owner. As a result of this case, numerous states are now enacting laws to prevent the use of eminent domain for such private purposes. The lead plaintiff, New London resident Janette Kelo, won support from a wide range of national groups including the NAACP, the Southern Christian Leadership Conference, the AARP and the libertarian Institute for Justice. But, in spite of losing the case, Kelo will receive market-based compensation for her property. She was also afforded the opportunity to have her day in court.
Neither compensation not legal representation was afforded the 192 Hokulia lot owners who purchased lots prior to Judge Ibarra’s September 9, 2003 decision. New London is nothing compared to the Hokulia decision. The only saving grace for Hokulia lot owners is that the decision comes not from on high but from Judge Ronald Ibarra’s Third Circuit Court — the lowest level of the legal system.
None the less, PKO believes its claims on private property to be greater than those of the owners and Courts have interpreted the law in PKO’s favor. This leads to the arrogance shown by Kelly when he writes, “I see the county is touting the first segment of the Alii Highway to be budgeted next year. The county continue(s) to ignore our claims.what makes (the Director of Public Works) — think he’s going to get the Alii Highway up and moving?”
It also leads to the arrogance shown in what many might believe to be an unrelated case-Mera Pharmaceuticals genetically modified algae project at Kona’s Natural Energy Lab. In the Aug. 15, Hawaii Island Journal, Kelly interviews another self-appointed “private attorney general,” Isaac Harp, of the Ilioukalani Coalition who Kelly writes, “told the applicant to to save his energy and pack it up now.” This comes after the appropriate state bodies had legally approved Mera’s permits.
Most other Genetic Engineering projects are federally authorized in Hawaii. The Feds don’t suffer fools well, so self appointed Pollyannas don’t get very far with them. Mera has made the mistake of allowing itself to proceed with only state approvals. While perfectly legal, it places Mera at the mercy of same courts which brought us the Hokulia decision.
So how did Hawaii property owners end up playing second fiddle to self-appointed “private attorneys general” on their own property? The key is the Hawaii Supreme Court’s 1995 decision in a case related to the Kohanaiki development: Angel Pilago and Public Access Shoreline Hawaii (PASH) decision vs. developer Nansay Hawaii and the Hawaii County Planning Commission. As the Kohanaiki Ohana Web site says, “unique conditions are placed on the rights of landowners in Hawaii. In other words, property ownership in Hawaii is not the same as it is in the continental United States. The Hawaii Supreme Court ruled that land ownership in Hawaii is not only based on the common law of England and America, but includes the traditional ideals of Hawaiian land tenure.” The cover of the 2003-2004 Hawaii County Annual Report features a photo of Kohanaiki and says, “The Kohanaiki agreement may be a template when development is proposed for shoreline areas in the rest of Hawaii.”
The Hokulia lawsuit emerged from the collapse of “greenmail” arrangements which had many so-called “environmentalists” and “cultural practitioners”-in particular, PKO’s now-President Jim Medeiros-working on Hokulia’s payroll. Mederiros alleges he departed in disgust after Hokulia damaged a section of an old Hawaiian trail running through its property.
Just as Kohanaiki is finally beginning its site preparation grading, the illustrious Janice Palma-Glennie has written a letter to the editor published in the Aug. 16 Hawaii Island Journal which complains of, “social and environmental losses” decries the unspeakable horror of being allowed to go camping at Kohaniki’s “Pine Trees” shoreline only on weekends, and speaks of “lots of money to be made.” Will County Councilman Angel Pilago and Rutter Development be able to hold this mother of all greenmail deals together? Once the door to greenmail is opened, even an itsy-bitsy little letter to the editor becomes a frightful weapon. The bulldozers are only just getting warmed up.
The dressing up of the PASH decision as “Hawaiian rights” shields it in politically correct armor from the scrutiny it deserves. Ironically, in the case of PKO and Hokulia the decision is wielded by the “haole nomad,” mid-1980s immigrant Jack Kelly, as a bludgeon against local native Hawaiian South Kona landowners and other native Hawaiians associated with Hokulia developer Oceanside 1250. Kelly’s nomad status doesn’t stop PKO from rejecting Oceanside’s latest (incredibly generous) offer with the familiar phrase of Hawaiian sovereignty activists, “The Protect Keopuka Ohana has been here in this community since before your Hokulia project materialized, and will be here long after your company leaves.” (Three individual plaintiffs are still thinking about the offer.)
The reluctance of the highly politicized Hawaii Supreme Court to intervene in what all sides recognize as a very important case is probably due to the fact that they would be force to limit or even overturn all or part of the PASH decision upon hearing this case. The Supreme Court could not allow the Hokulia decision to stand. The losses to all of Hawaii property owners would be in the hundreds of billions of dollars. Those losses would affect the average citizen, but more importantly from the standpoint of the Court, such a decision would affect even the highly corrupt individuals swirling around all levels of government in these fair isles. It would even affect the leading lights of the Office of Hawaiian Affairs who are bankrolling PKO’s work through OHA’s support to the NHLC.
This leads to an interesting question. Why is OHA driving this if it could hurt the properties of individuals associated with OHA’s bureaucracy in the end? Why — because this case is not supposed to reach an end. For the “greenmail” system to work, this case must be decided in mediation. Greenmail schemes received a huge boost from the PASH decision because it dramatically expanded their legal avenues of exploitation. Other green mailers’ hope is that Oceanside will finally come to some agreement with the PKO green mailers so that business as usual may continue without the Supreme Court forced to issue a ruling which would short-circuit their profitable fun and games. Profitable games which have a lot to do with Hawaii’s higher prices for everything-especially housing, fuel and food-and are thus paid for out of the public’s pockets every time a purchase is made.
In any corrupt system, it is incumbent on the players to be self-regulating. When some get too greedy, as PKO has, and start to act as if they were “masters of the universe,” the entire system is placed at risk. Well regulated, ongoing and moderate extortion is one thing. Many developers see it as “the cost of doing business.” Such a system could even keep chugging along for fifty-one years, without completely falling apart.
PKO’s assertion of its total rights over other folks’ private property is threatening to kill the golden goose. This may be inherent in the expanded greenmail opportunities created by PASH. It is just getting too easy and suddenly small-time operators are bellying up to what used to be reserved for big boys who knew their limits. If the older and wiser players don’t talk sense into them soon, much of the corrupt greenmail system could come crashing down–destroyed by the weight of PKO’s excesses — and the anger of Big Island taxpayers who are about to be asked to pay for PKO’s $265.8 million in property destruction in the form of a Hokulia lot owners lawsuit.
This could all work out quite well.
”’Andrew Walden is the publisher and editor of Hawaii Free Press, a Big Island-based newspaper. He can be reached via email at”’ mailto:firstname.lastname@example.org
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