STAND.
COM. REP. NO. 3828
Honolulu, Hawaii
RE: GOV. MSG. NO. 583
Honorable Ronald D. Kouchi
President of the Senate
Thirtieth State Legislature
Regular Session of 2020
State of Hawaii
Sir:
Your Committee on Water and Land, to which was referred Governor's Message No. 583, submitting for study and consideration the nomination of:
Board of Land and
Natural Resources
|
G.M. No. 583 |
CHRISTOPHER YUEN, for a term to expire 06-30-2022, |
begs leave to report as follows:
Your Committee reviewed the personal history, resume, and statement submitted by Christopher Yuen for service on the Board of Land and Natural Resources.
INTRODUCTION
The advice and consent
process is a constitutionally mandated responsibility. Your Committee
undertook its responsibility seriously, especially as this process involves the
confirming of an individual who will be appointed as the steward of the State's
natural resources and responsible for ensuring that these resources will be
preserved and sustained in perpetuity for the benefit of future generations.
Your Committee was
aware that this nomination was attracting public attention and passionate testimony
for both sides.
Your Committee notes that
there were two committee hearings held for the nominee. The first hearing on May 13, 2020, included
thirty-five nominees being considered for the many various boards and
commissions subject to the jurisdiction of the Water and Land Committee. Due to the high number of nominees under
consideration at that hearing, the Committee did not have the appropriate
amount of time to ask the nominee questions nor did the nominee have the
appropriate amount of time to answer the Committee's questions. Your Committee then held a second hearing on July
1, 2020, to give the nominee a full two hours to answer questions from the Committee. The Committee Chair does appreciate the nominee's
willingness to do that.
TESTIMONY
Your Committee
received testimony in support of the nominee from the Department of Land and Natural
Resources, Aha Moku Advisory Committee, two members of the Hawai‘i County
Council, University of Hawai‘i at Hilo, Hawai‘i Farm
Bureau, Hawaii Island Community Development Corporation, Ponoholo Ranch Limited,
Armstrong Produce, Conservation Council for Hawai‘i, The Nature Conservancy, Hawaii
Island Chamber of Commerce, and thirty-three individuals.
Your Committee
received testimony in opposition to the nominee from Sierra Club of Hawai‘i, KAHEA:
The Hawaiian- Environment Alliance, Ka Lāhui Hawai‘i, and one
thousand seventy-four individuals.
Your Committee
received comments from the Office of Hawaiian Affairs.
THE RESPONSIBILITY OF THE BOARD OF LAND AND NATURAL RESOURCES
The responsibilities
of the Department of Land and Natural Resources (DLNR) and its board, the Board
of Land and Natural Resources (BLNR), play an essential role in the self-sufficiency,
long-term resiliency, and environmental and cultural integrity of the State of
Hawaii. This includes the stewardship
and management of natural and cultural resources of unparalleled significance
to the people of Hawaii. It also
includes the disposition, including leasing, licensing, and permitting of
public lands. The BLNR, more than any other
board or commission, has public trust responsibilities, drawn down directly
from the State Constitution, to conserve and protect Hawaii's natural and
cultural resources for the benefit of the people, including the traditional and
customary practices of Native Hawaiians.
The BLNR's responsibilities are vast.
It has jurisdiction over approximately 1.3 million acres of public,
"ceded", and public land trust lands; seven hundred and fifty miles
of coastline; thousands of historic sites, including burial sites, and
approximately two million acres of private and public lands that lie within the
state land use conservation district.
As a trustee of the
"ceded" lands and the public land trust, the BLNR also has a
fiduciary obligation with respect to the use and disposition of such lands. This is no small task. BLNR's decisions touch almost every aspect of
Hawaii's economy, and while there is no doubt that corporate needs and economic
benefits should be considered in board decisions, the board's obligations under
the State Constitution and the mission of the DLNR to "enhance, protect,
conserve and manage Hawaii's unique and limited natural, cultural and historic
resources" must also be a top priority.
This is why it is imperative that board members, who are sworn to uphold
the public trust, not only possess the requisite knowledge and experience, but
an exemplary level of integrity and commitment to the public trust obligations
in fulfilling their board duties.
BACKGROUND
Christopher J. Yuen
received a Juris Doctor degree from the William S. Richardson School of Law; a
Master of Science degree in Environmental Science from the State University of
New York, College of Environmental Science & Forestry; and a Bachelor of
Arts degree in Human Biology from Stanford University. He is the owner and manager of The Family
Farm, Inc., a twenty-acre certified organic farm, supplying local markets with
bananas, lychees, and rambutans. He was
the Planning Director of Hawai‘i County and a Deputy Corporation
Counsel for the County of Hawai‘i.
Mr. Yuen also served on the BLNR from 1990 to 1998 and 2014 to the
present. He is also presently on the
Advisory Councils for Laupahoehoe Experimental Tropical Forest and Pu‘uwa‘awa‘a
Experimental Tropical Forest.
The nominee's resume indicates
that during his time on the BLNR in the 1990s, he spearheaded the negotiations
in the Awake‘e-Manini‘owali land
exchange; revision of conservation district rules; review of more than four hundred
Conservation District Use Permits; and approval of a master plan for Kekaha Kai
State Park. In addition, in 1988, the
nominee organized the Friends of Makalawena to preserve the coastline in Kona,
which culminated in the Kekaha Kai State Park, a 4.5 mile long, one-thousand three
hundred acre coastal park. In 1971, the nominee organized a campaign to
protect the Keaukaha shoreline, which led to the County of Hawaii's purchase of
Richardson's and Carlsmith's properties for open space public beach parks.
In his personal
statement, the nominee stated, "In this latest period after being reappointed
to the BLNR, starting in July 2014, I've tried to support the community
initiatives that come before us: the
community-based fisheries management areas at Kaupulehu and Haena, and land
purchases, like Mapulehu on Moloka‘i, Waikapuna on the Big Island, and
the Kuilima and Helemano areas on Oahu."
In his questionnaire, when
asked "How do you perceive the role and responsibilities of a member of
the BLNR?", Mr. Yuen responded, in part, that "There is, however, a
line between the Board member's proper role and the operational management of
the Department-including personnel decisions-that has properly been delegated
to the Chairperson and the other DLNR staff.
The line in not exact, but it is there, and I respect it. The Board members were appointed to make
decisions as a group, not wield power as individuals." In addition, in his questionnaire, when asked
"What do you hope to accomplish during your terms of service?", Mr.
Yuen responded, in part, that:
After my years of service, I would like to
look back and be able to say that the Board...made fair, balanced decisions consistent
with law [and]...expanded protected areas of all types-forest, ocean, historic
sites...
Also in his questionnaire when asked,
"When exercising control over the state's land and natural resources, what
consideration, if any, is given to the state's duty to also protect traditional
and customary Native Hawaiian rights and practices?", Mr. Yuen responded, in
part, that "[p]rotecting traditional and customary Native Hawaiian rights
and practices is a constitutional mandate and a crucial part of decision-making
at the Board."
YOUR COMMITTEE'S CONCERNS
While Mr. Yuen may
have been an excellent and promising candidate when first appointed to the BLNR
in 1990 and then again in 1995, and 2014, your Committee finds that extending
his fourteen year-long tenure on the BLNR would inhibit efforts to promote the
kind of open-mindedness, accountability, and innovative thinking ideal in the
public servant who assumes the profound responsibility that comes with the
position. Specifically, your Committee
is concerned about a number of issues that came to light during the nominee's
written and oral testimony, including the answers he provided in response to
the Committee's hearing questions. There
was overwhelming testimonial evidence that the nominee has failed to employ his
full authority as a BLNR member to protect the public's interest in our State's
public trust resources. The nominee's
candid responses during the two Water and Land Committee hearings made plain
that the vital authority of the BLNR to gather information, impose mitigation
measures, monitor compliance, and enforce against violations has been roundly
underutilized to the detriment of the State's natural resources. Additionally, after reviewing a small sampling
of the BLNR's published meeting minutes, questions began to surface as to their
accuracy and integrity, and the extent to which Mr. Yuen's personal bias
interfered with the objective recording of the BLNR's decisions. This issue is of particular concern for the Committee
because those actions undermine the public's trust and confidence in the BLNR's
actions.
As is the case with all
BLNR members, the nominee is a trustee of all public trust natural and cultural
resources in Hawaii. He is obligated to
make decisions that protect those public trust resources for the benefit of
Native Hawaiians and all the people of Hawaii.
The BLNR has authority to protect the public and public trust resources
through its decisions and has the following tools to mitigate adverse impacts:
(1) Denying
a permit, lease, or application;
(2) Delaying
approval of a permit, lease, or application until additional information is
provided;
(3) Adding
conditions that require actions by the applicant to reduce and/or remedy harm
to natural and cultural resources and the public trust beneficiaries that rely
upon them;
(4) Requiring
additional information, assessment, and studies; and
(5) Requiring
meaningful, fair-market value compensation for use of public trust resources.
A. Evaluation of Recent
Decisions
A review of the
nominee's decisions over his latest term on the BLNR demonstrates he has failed
to employ his full authority as a BLNR member to protect Hawaii's public trust
resources.
I. Kahala Hotel
In recent years, Kahala
Hotel (formerly Kahala Hilton Hotel) used the public beach for commercial
activities. On the public beach, the hotel
has rented out cabanas for more than $100 per day, charged high rates for
expensive weddings, operated a portion of its restaurant, and rented out
clamshell loungers. The hotel's
commercial use of public land, to the exclusion of the public, was not limited
to the sandy beach. The grassy area
mauka of the sand is also a part of the public beach and public land trust
lands. This grassy area was also used by
the hotel through its revocable permit.
Even though the
nominee was aware that the Kahala Hotel profited off of impermissible weddings,
operation of a restaurant, and cabana and clamshell rentals on the public beach
in 2016, 2017, and 2018, he did not ensure that the hotel pay for those illegal
past uses before voting to approve the hotel's future revocable permits. In 2018, instead of enforcing a dedication of
an area for public use, the nominee supported the hotel's continued use of that
area for the operation of a restaurant, the rental of cabanas, and the rental
of clamshell chairs. In 2019, instead of
requiring the hotel to meaningfully compensate the State for its past inappropriate
use, the nominee moved to charge the hotel a meager $702 for use of clamshell
chairs on public property over a nine-day period.
II. Kalo‘i Gulch
For over a decade,
developer Haseko, Inc. has proposed drainage improvements for Kalo‘i Gulch to
allow stormwater from large rain events to flow directly into the ocean. Their proposed improvements involved lowering
a natural berm along the ‘Ewa Beach shoreline to increase the
stormwater discharge capacity of a drainage channel through One‘ula Beach
Park, a place storied across Hawaii as the "House of Limu." In December 2018, the BLNR voted 6-1 to deny
an easement and construction right-of-entry permit for the drainage project. This was the first opportunity for the nominee
to publicly and substantively weigh in on this controversial project.
During the
confirmation hearing, the nominee commented, consistent with his vote at the
December 2018 BLNR meeting, that if there were no flood, Haseko's lowering of
the berm would not change anything. The
nominee's statement, however, ignores the fact that once the berm is lowered,
all stormwater discharge, including motor oil, heavy metals, and other toxic
compounds, would be free to flow directly into the ocean to pollute marine
resources, including limu harvested for consumption.
During the Committee's
questioning, when the nominee was asked to explain the precautionary principle[1], a
well-settled legal principle that discourages the postponement of effective
resource protection measures in the absence of full scientific certainty, the
nominee affirmed his understanding of this in answering, "When there is a
substantial unknown factor that you err on the side of both protecting the
environment and on the side of protecting human health." Despite demonstrating a clear understanding of
his legal duties, the nominee's decision on this matter did not comport with
that duty.
The nominee failed to
uphold his legal obligation as a trustee in his subjective decision to expose (rather
than protect) resources and those reliant on them to harm. When given the opportunity to require a
supplemental environmental impact statement to consider, for the first time,
the adverse health impacts on Hawaiian limu gathering and consumption, the
nominee voted against requiring the applicant to produce affirmative evidence (as
the law requires) that no harm would befall those who harvest limu to subsist
and perpetuate traditional cultural practices. In doing so, the nominee abandoned the
protective benefits of the precautionary principle in favor of approving and
expediting the applicant's easement and construction right-of-entry permit.
III. Revocable Permit Task Force
The Revocable Permit
Task Force (Task Force) was formed in 2016 after a series of news articles and
significant public concern over the lack of transparency and accountability in
the issuance of revocable permits (RPs) for tens of thousands of acres of land
under the jurisdiction of the DLNR. The
Task Force presented its recommendations to the BLNR to provide consistency and
accountability in the RPs program, acknowledging that RPs are generally not the
ideal method of land disposition, and outlining a checklist of specific
criteria for their issuance and renewal.
The nominee was
appointed by the DLNR Chair to the Task Force and BLNR approved the checklist
it recommended. Despite this effort, the
nominee and the rest of the board repeatedly failed to ensure that the
requirements on the checklists were met before approving RPs. Even when applicants refused to meet with DLNR
staff to discuss the appropriateness of their RPs or when applicants did not
ensure compliance with conservation district rules, the nominee moved and voted
to approve those RPs over multiple years.
IV. Stream Diversion/East Maui Watershed
In the context of
stream diversions, BLNR's responsibility to the public trust is met when
private requests to divert stream water for consumptive use are considered only
after public trust purposes, such as the needs of the native stream ecosystem,
protected cultural practices such as taro farming, reservations of the
Department of Hawaiian Home Lands, and domestic uses, are determined and
satisfied[2]. A presumption must be made in favor of these
public trust purposes, and private stream diversions can only be approved if
the diverter can demonstrate an actual and quantified need for water that is
both reasonable, beneficial, and justified in light of these public trust
purposes and any other competing reasonable beneficial uses.
Yet, for the east Maui
watershed, in its annual approvals of RPs allowing the diversion of tens of
millions of gallons of water per day from streams that feed aquifers,
estuaries, and springs depended upon by native species and other natural and
cultural resources protected under the public trust doctrine, the BLNR made no
such presumption in favor of public trust purposes, made no explicit
consideration of these purposes, and failed to require the applicant to
demonstrate the actual amount of water it would need for each annual RP period.
Despite his stated
recognition of the BLNR's historical failure to safeguard the public trust, the
nominee's actions in leading decision-making on the east Maui stream diversion
RPs each year since 2016 suggest otherwise. These actions suggest a concerning, deference
to the interests and unverified statements of the applicant to divert water,
and a concerning dismissal of the concerns of members of the public, including
Native Hawaiian cultural practitioners, farmers, and organizations. When questioned by a member of the Committee
about his most recent motion to increase the amount of water allowed to be
diverted from the staff-recommended thirty-five million gallons a day to forty-five
million gallons a day, measured over the year, the nominee could point to
nothing beyond the applicant's request to justify his motion. Additional testimony from the public to the
Committee revealed that when concerns about diversion structures spreading
invasive species were raised, the nominee attempted to counter these concerns
by showing how the applicant contributes toward public-private partnerships for
invasive species removal, which turned out to not be the case. Testimony to the Committee also revealed that
when members of the public presented evidence of rusty pipes, broken cement
blocks, and other debris in the stream to the BLNR, the nominee took the
applicant at its word that all trash and debris had been removed when it
apparently had not been. Renewing the
RPs for east Maui stream water inflated the sales value of the applicant's land
that receives this stream water by $62,000,000, yet the nominee made no effort
to recover any of that profit that could have been used to advance the DLNR's
mission.
The nominee could have
employed a wide variety of regulatory mechanisms to ensure the applicant's
compliance with strict RP conditions. Unfortunately,
he did not do that. Over the past four
years, the nominee failed to uphold his duty as a trustee by failing to ensure
that a minimum amount of water flowed in streams that the Water Commission's
2018 decision did not address, failing to require those seeking the diversion
of stream water to demonstrate their actual, quantified need for such water
during each RP period, failing to determine whether and to what extent this
need would impact, and be justified in light of, the public trust purposes in
the streams to be diverted, failing to require monitoring and reporting of the
amount of water left in streams and the amount of water diverted from streams,
and eventually delivered to and used in central Maui, failing to require that
those profiting from RP diversions contribute to the control of invasive
species in the east Maui watershed, failing to address the harm caused by
diversion structures and discarded pipes on public land, and failing to
scrutinize requests from those private entities seeking stream diversions,
including the request for even more water far in excess of how much water was
recommended by DLNR staff, particularly in light of how much water has actually
been used for farming in previous RP periods, how much might reasonably be
needed in the prospective RP period, and how much has been wasted.
V. Na Pua Makani/North Shore Wind Farm
The nominee was active
in BLNR deliberations regarding various approvals for the Na Pua Makani wind
project. At issue was the proposed
Habitat Conservation Plan (HCP) for the highly endangered ‘ōpe‘ape‘a
(Hawaiian hoary bat).
The contested case
hearing officer, after months of investigation, evidence, briefings, and
arguments found Na Pua Makani's plan to protect bats from harm caused by the
wind turbines to be inadequate and recommended the plan be returned to the
Endangered Species Recovery Committee (ESRC) for reconsideration. The nominee, however, made a motion to reject
the hearing officer's recommendation and approve the HCP for the ‘ōpe‘ape‘a, despite
the insufficiencies identified by the hearings officer. At the Committee's hearing, the nominee explained
that his rationale for rejecting the hearing officer's recommendation was based
on prioritizing the clean energy needs over the protection of endangered
species.
Issues identified during
the contested case hearing process are now included in the latest draft
guidance for protection of the ‘ōpe‘ape‘a. The BLNR decision to accept the HCP and issue
an Incidental Take License is now on appeal at the Hawaii Supreme Court.
Originally proposed as
fourteen 428-foot turbines, Na Pua Makani revised its plans to fewer, yet
taller turbines. Toward the end of the
community engagement process and HCP discussions at the ESRC, the turbine
height was increased to 512-feet. The
maximum height was increased again to 656-feet (sixty-five stories tall) by the
time the EIS was presented for approval to the BLNR. By the end of the contested case, Na Pua
Makani modified its request to build eight turbines of 568-feet in height.
Except for a handful
of residents who expressed interest in managing the community benefits package
of $10,000 per turbine per year, there has been widespread community opposition
for this second wind project in Kahuku.
The newly constructed
568-foot turbines that surround Kahuku have led to significant strife and pain
and emotional stress in that community. More
than two hundred people were arrested for protesting the delivery of turbine
parts for this wind project. When asked
during the committee hearing what he would say to the people of Kahuku, the
nominee said, "I understand the reasons for wanting your view plane to
remain the same, I understand that, I urge people to put it in their minds to
look at the wind turbines with a point of pride."
This reflects a
concerning disconnect between the nominee and the constituents served by the BLNR.
Granted, while public sentiment should not
necessarily dictate BLNR decisions, it is nonetheless necessary to mindfully
consider how board decisions can affect communities.
B. Additional Concerns
In the course of its
review of the nominee's performance, the Committee also identified additional
areas of concern that warrant further consideration.
I. BLNR Meetings and Minutes
BLNR meeting minutes
are a government record as defined by chapter 92F, Hawaii Revised Statutes, and
section 13-1-2, Hawaii Administrative Rules. These are the official record of all actions
taken by the BLNR. It is crucial to the
functioning of the government that the minutes accurately reflect the
discussion and actions taken by the Board.
Public testimony
received by the Committee raised serious concerns about the accuracy of BLNR
minutes. Upon further inquiry and
questioning, the Committee confirmed that: the nominee prepared minutes of BLNR
meetings where he participated in the decision-making, there are substantive
inconsistencies between the audio recordings of a BLNR meeting and the nominee's
minutes of that meeting on (agenda item D-14 on December 14, 2018), and the
discrepancies resulted in significant confusion between all parties that
frustrated efforts to resolve a long-standing dispute over stream water access
on Kauai. According to correspondence
from the DLNR Chair dated July 5, 2020, the nominee prepared drafts of minutes
on January 13, 2017; January 27, 2017; February 10, 2017; February 24,
2017; May 26, 2017; June 9, 2017; and December 14, 2018. Based on audio from the December 8, 2017, BLNR
meeting, the Committee also affirmatively believes the nominee worked on the
minutes from the November 9, 2017, meeting.
Your Committee finds
that there was sincere confusion over the motion on which the BLNR voted at its
meeting on December 14, 2018. On April
26, 2019, the applicant confirmed that there was confusion about the details of
the BLNR's December decision. During the committee hearing, the nominee
conceded to the Committee that he was confused about the motion at that BLNR
hearing. The Committee finds that where
there is confusion regarding an agency's action, the appropriate remedy is to
clarify the agency action at a properly noticed public meeting. Unfortunately, that did not occur.
In this situation, the
nominee made a detailed motion at the BLNR hearing on December 14, 2018. The nominee began by saying that he would "like
to put substantive things on the record" and then detailed a motion to
renew the RP and restore water to the stream. He said, "I'm making a motion to approve
the renewal of the permit with conditions set by the staff recommendation which
involve putting back 4 million gallons a day into the stream, into Waialeale
Stream, and a million plus I think is the number, I don't remember exactly into
Waikoko Stream." The audio
recording from the discussion of this agenda item shows that the Commission on
Water Resource Management (CWRM) staff when asked by a BLNR member what other
streams would water be returned besides the Waialeale stream stating, "Per
the land division submittal, 1.6 MGD for Waikoko Stream."
The nominee then
prepared the minutes of that meeting, as confirmed by the Chair, and they were
posted in draft form to the BLNR website in January 2019. Those minutes, however, did not include any of
the important details of the nominee's motion. The minutes of the motion state,
D-13. The holdover of Revocable Permit No.
S-7340 to Kauai Island Utility Cooperative ("KIUC'9, as amended. The Board
included a condition that KIUC is to invite Earthjustice, Kia, Wai 0 Wai ale ‘ale,
Sierra Club, Grove Farm, and the Department of Hawaiian Home Lands (together,
the "Working Group"), to participate in a facilitated discussion
regarding their respective positions on KIUC's request to use State water for
its hydroelectricity plants in the permit area, as well as any other relevant
matters they choose to discuss. The Working Group may invite other individuals
or organizations to participate in the discussion. KIUC shall report back to the
Board on the progress of the discussions in three months.
MOTION: Approved as amended (Yuen, Roehrig)
unanimous. Member Oi recused.
Your Committee, after
listening to the audio and reviewing the minutes affirmatively, have concluded
that the December 14, 2018, minutes, prepared by the nominee, are not accurate.
Then on April 26,
2019, when the parties returned to the BLNR for an informational briefing about
the status of their mandated mediation, the BLNR learned that the mediation was
not successful because there was a discrepancy between what was heard at the
BLNR meeting and the minutes of that meeting.
Instead of remedying this discrepancy by holding a publicly noticed
meeting to clarify the motion and board action, the nominee attempted during
this informational briefing to explain the discrepancy by recharacterizing the
BLNR's December motion in a way that favored the applicant taking more water
from the stream. As a result of the
confusion about the BLNR motion, the mediation process between the applicant
and the public broke down.
Your Committee finds
that the nominee's treatment of the minutes for the BLNR meeting on December
14, 2018, to be inappropriate. Accurate
minutes of agency meetings are crucial to ensuring public faith in BLNR
decisions. The Committee also finds
there to be a concerning correlation between the minutes prepared for the December
14, 2018, meeting by the nominee, which omitted key parts of the CWRM staff
testimony and the "on the record" motion made to the board by the
nominee, and input by the nominee four months later on April 26, 2019, which
ultimately influenced the record in a manner that could be interpreted to be
inconsistent with the previous board action.
Moreover, your Committee
finds that it is incumbent on all members of the BLNR to ensure that they
understand the motion being considered, review all minutes to verify they
accurately reflect the actions taken at each meeting, and immediately address
any confusion using established procedures.
Unfortunately, none of those procedures were employed on this specific
matter.
II. Section 171-4, Hawaii Revised Statutes
During the committee hearing
a committee member suggested that the nominee should be disqualified due to a
violation of section 171-4, Hawaii Revised Statutes. Section 171-4(a), Hawaii
Revised Statutes, provides that "The board of land and natural resources
shall be compromised of seven members, one from each land district and three at
large, to be nominated and, by and with the advice and consent of the senate,
appointed by the governor as provided in section 26-34. The term and removal of a member of the board
and the filling of a vacancy on the board shall also be as provided in section
26-34. There shall be not more than
three members on the board from the same political party." (Emphasis added).
The committee member
then identified three other members of the BLNR that were verified to be
members of the same political party, which if including the nominee would be
four members of the same political party, thereby violating section 171-4, Hawaii
Revised Statutes. During the hearing, the
nominee then stated that, "I think future service on the board at this
point is more important to me than the Democratic party and I will resign." Although not formally provided to the Committee
by the nominee, the Committee did receive correspondence from the DLNR Chairperson
on July 5, 2020, that effective July 1 2020, after the hearing for the nominee,
the Chairperson of the DLNR and the nominee have resigned from the Democratic
Party.
CHAIR'S COMMENTS
Your Committee Chair
notes that while the Governor is under no obligation to do so, it is concerning
that the nominees to the BLNR have been overwhelmingly male. Out of his ten nominees to the BLNR, only two
have been female. Additionally, there is
only one woman on the Commission of Water Resource Management, the DLNR
Chairperson, who serves on both the BLNR and CWRM. Of the eight seated members on the Land Use
Commission (LUC), only two are female. The
result is that women compose less than twenty percent of three of the most
important and influential boards in the State.
Your Committee Chair
also notes that in filling vacancies on the BLNR, for this and previous posts,
the Governor's administration failed to open the positions to members of the
public, instead filling positions with a preferred candidate. This was the same process employed when the
administration filled the critical cultural practitioner position for the BLNR,
which has proven highly problematic on the issues of Native Hawaiian rights and
traditional practices. The failure to
openly solicit qualified, willing applicants in good faith is concerning.
CONCLUSION
Your Committee
believes that Mr. Yuen is thoughtful and highly educated, and his prior service
to our State is sincerely appreciated. However,
due to the concerns raised by your Committee, as highlighted in this report, your
Committee believes it is time for a change and to give other highly qualified individuals
on Hawai‘i Island
an opportunity to apply and serve on the BLNR. Your Committee again thanks the nominee for
his participation in this process and wishes the nominee well in his future
endeavors.
As affirmed by the record of votes of the members of your Committee on Water and Land that is attached to this report, your Committee, after full consideration of the background, experience, and qualifications of the nominee, recommends that the Senate not advise and consent to the nomination.
Respectfully submitted on behalf of the members of the Committee on Water and Land,
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____________________________ KAIALI'I KAHELE, Chair |
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[1] "[W]here there are present or potential threats of serious damage, lack of full scientific certainty should not be a basis for postponing effective measures to prevent environmental degradation... In addition, where uncertainty exists, a trustee's duty to protect the resource mitigates in favor of choosing presumptions that also protect the resource." In re Water Use Permit Applications, 94 Hawaii 97, 154-55, 9 P.3d 409, 466-67 (2000).
[2] See, Haw. Const. Art. XI, §7, Haw. Rev. Stat. §174C; See also In re Water Use Permit Applications, 94 Hawaii 97, 130, (2000).