Mr. Walden writes that the “[Hokuli’a settlement] agreement was sealed by Judge Ronald Ibarra and has not been published” and that a “copy had been leaked to HFP”. These statements are bald-face lies.

On March 23, 2006, Mr. Walden published an article in HFP (http://www.hawaiireporter.com/story.aspx?479bfe1c-3c00-4580-83ee-f6fa950922a7) in which he described the details of the agreement.

In addition, Hokuli’a advertised the entire agreement on its website, hokuliaupdate.com, for months after the agreement was signed touting the millions of dollars in community benefits. Alas, Hokuli’a has since ignored the settlement agreement and tens of millions in community benefits have been lost.

Mr. Walden writes that “the text of the Hokuli`a agreement (p 22-23) mandates the County accept and the State impose a DLNR veto over any grubbing or grading activities approved by the County of Hawai`i.” This is a mischaracterization of existing law. The DLNR does not “veto” grubbing and grading activities. If historic and cultural sites are present, a property owner must pay for an Archaeological Inventory Survey.

The DLNR then usually approves the destruction of all sites save religious and burial sites. And the fact that the Kona Field System, an ingenious watershed and flooding control that still functions in many places today, is a National and State Register Historic Site is being ignored by the state, county, and private business interests. It has become common knowledge that wealthy property owners with legal resources or politically-influential locals can simply ignore state and county law and bulldoze everything in sight, including neighbors’ land, since the county and the state will do very little, if anything, about it. For many, many years, these powerful interests have successfully prevented any revision to Hawai'i County Code Chapter 10 ("grubbing/grading") or Chapter 27 ("flood control") which might put some teeth into government regulation.

Yes, “the agreement also directs the County Administration to “work with plaintiffs to draft, introduce and support before the County Council legislation that would amend Chapter 10 of the Hawai`i County Code….”. Unfortunately, as detailed in the notice of breach that I mailed to Mayor Kim this week, the County Administration has not done so.

How terrible that the Hokuli’a plaintiffs are trying to get government to do its job, to (gasp!) regulate. Mr. Walden apparently believes that deregulation is good because it places constitutionally-protected public trust resources in harms way (see also "world-wide destruction of lifetime savings and retirement"). Even Alan Greenspan, the champion of government deregulation, no longer supports this historically incorrect position.

Mr. Walden writes that “several attempts have been made by members of the County Council to amend Chapter 10 since the agreement was signed.” Another false statement. The county council’s 2006-2008 legislative agenda (http://co.hawaii.hi.us/council/agendas_and_actions.htm)show zero attempts to amend Chapter 10. A county council ad hoc committee did bring Chapter 10 into consideration after it was presented with a petition from over 700 citizens asking for a revision of Chapter 10.

Mr. Walden writes, “a Big Island civil engineer who spoke to Hawai`i Free Press for this story indicates that these agreements in the Hokuli`a Settlement were behind the bizarre and unsuccessful year-long effort by South Kona Councilmember Brenda Ford to amend the County’s rules on flooding – contained in Chapter 27, not Chapter 10.“ Another false statement. Do a search on the West Hawai’i Today using the key word “flooding” from January 1, 2001 and you will get a two-inch thick stack of stories. Councilmember Ford was among the flood victims in 2004 and saw first-hand how impotent the county DPW is. Anyone who cared enough to watch to the public hearings broadcast on public access TV knows that is the reason why she is so passionate about flood control. Unfortunately, Mr. Walden prefers rumors and gossip to actual journalism.

Mr. Walden writes, “Chapter 27 is not referenced in the Hokuli`a Settlement Agreement. The “mission creep” exposed by Ford’s flood control efforts—which she attempted to re-start at a council committee meeting in early October—were seen by some as an act of bad faith from the plaintiffs’ side. This indicates a possibility that the secret terms of the Hokuli`a settlement may underlie the factionalism on the Council.” Malarkey.

First, the settlement agreement not only refers to Chapter 27, it requires the county administration to work with the plaintiffs to revise Chapter 27 in the public interest (which, again, it did not do, BTW). That Councilmember Ford efforts coincided with the settlement agreement were simply divine, weren't they? Of course, those efforts were defeated by fierce opposition from "the professional design community", aka "private special interests".

Second, last November, the county administration had publicly promised the county council and the general public that it would start a “Joint Action Plan” to comprehensively revise Chapter 10, Chapter 27, in addition to the rezoning and subdivision ordinances in keeping with the spirit and intent of the agreement. Instead, the administration introduced a proposal that creates loopholes galore.

Finally and one more time, the Hokuli’a settlement agreement is anything but secret, thanks in part to Mr. Walden’s articles since March 14, 2006, the Effective Date of the settlement agreement.

"The Addendum to the Settlement Agreement directs the County Administration to “support legislation before the County Council that would (1) allow for the designation of the scenic corridors in the County, and (2) specifically designate the bypass Highway as a scenic corridor, except that portion of the bypass right-of-way passing through Hokuli`a”,

Mr. Walden complains. The county General Plan has required this scenic corridor since 1989, four years before Hokuli’a was first proposed. This term was added to the settlement agreement as a not-so-gentle reminder to the county government...and to individuals such as Mr. Walden. I admit that the agreement provision which exempts Hokuli'a from the General Plan "Keauhou to the cliffs above Kealakekua" scenic corridor is of questionable legality. Otherwise, the settlement terms related to the scenic corridor simply reiterate existing law.

Mr. Walden asks “did the plaintiffs get money?” and then refers to “the “three “Directed Accounts” of $400,000 each funded by Oceanside 1250. Contained under the umbrella of the Hokuli`a Foundation, expenditures from the three accounts are respectively under the sole direction of Hokuli`a Plaintiffs Chuck Flaherty, Patrick Cunningham and Michelle C Wilkins with the requirement that they be directed to “qualified non-profit organizations”. “

What Mr. Walden fails to mention is that the Hokuli’a Foundation has been designated by the IRS as a private foundation which means that “acts of self-dealing” are prohibited. Each of these three plaintiffs have submitted sworn statements to the IRS that acts of self-dealing have not occurred and will not occur. Frankly, I am shocked that Mr. Walden has a problem with funds that have been directed to the Hawaii Island HIV/AIDS Foundation, Kona United Methodist Church, the kids program for Keoua Honaunau Canoe Club, Kona Community Hospital Foundation, South Pacific Christian Camps, special need kids, community non-profit capacity-building, etc.

Yes, “funds for the broader Hokuli`a Foundation come from 1.75% of gross lot sales and 0.25% of gross lot re-sales. This guarantees ‘donations’ (aka revenue) to the Foundation in perpetuity. (p12)” Unfortunately, lot sales in Hokuli’a continue to be in limbo as a result of 1250 Oceanside Partners financial problems. And, yes, ““Fair Share” reimbursements related to construction of the Hokuli`a Bypass are also designated to be transferred to the Hokuli`a Foundation.” Unfortunately, Judge Ibarra ruled that this provision of the development agreement with the county is illegal and, therefore, the related settlement agreement as well. As such, $34,000,000 has been lost that the settlement agreement required the Hokuli'a Foundation to use to build affordable housing...regardless of what interest would have been in control.

Mr. Walden speculates that “all five of the plaintiffs are guaranteed lifetime seats on the Hokuli`a Foundation board, ensuring they will be able to influence the direction of Hokuli`a money to the “non-profits” of their choice. Many “non-profits” are very profitable indeed to their officers and to businesses which provide contract services.” The agreement provides for five directors to be nominated by the Hokuli'a Homeowners Association, three to be nominated by 1250 Oceanside Partners, and three directors to be nominated by the mayor of Hawai'i County. I would like Mr. Walden to tell me how five individuals, even if they were co-operating, could control a non-profit board with this composition, especially when none of the five are officers. I also encourage Mr. Walden to become more familiar with IRS regulations regarding non-profits before he makes further libelous inferences about the Hokuli'a plaintiffs.

Yes, “the Plaintiffs agreed not to take any action “adverse to Oceanside or the Hokuli`a Project” whether in the form of publicity, litigation, administrative hearings, or lobbying for legislative changes which “would undermine or materially impair…the Hokuli`a Project….” However, the agreement allows the plaintiffs to take actions to compel compliance with the settlement agreement.

With the election of another Hilo pro-unplanned development county council majority (orchestrated by Billy Kenoi and Dilan Nonaka, Governor Lingle's East Hawai'i liaison and son of Brenda Ford's recent opponent, Casey Delo Santos), set to undo the accomplishments of the first and only balanced county council, Mr. Walden has decided to embark on a strategy of revisionist history/negationism.

Yet I find I must say "mahalo ia 'oe, thank you, Mr. Walden". You continue to greatly enhanced the Hawai'i Free Press's newsstand value as a free public resource for bird-cage bottoms and landscaping mulch.

Charles Flaherty can be reached at mailto:one@aloha.net

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