State to Hear Public Testimony on La`au Development Plan

 Public comment sought on the acceptability of MPL's EIS.

By Jennifer Smith

It’s your turn to let the Hawaii State Government know your thoughts about Molokai Property Limited’s (MPL) plan to develop La`au Point. On November 15 and 16, Representatives from the State Land Use Commission (LUC) will be taking public testimony at the Lanikeha Community Center, as well as listening to a presentation by MPL, in order to decide whether or not MPL has in fact done its homework in preparing the final version of an Environmental Impact Statement (EIS).

The hearing was triggered by MPL’s November 2 final EIS filing with the LUC. This updated version of the draft EIS, includes 3,100 pages of text and project photographs of MPL’s proposed development. More importantly, the document now includes statements, and corresponding answers, submitted by individuals, organizations, and additional consultants. The statements were submitted during the public comment period, which followed the filing of the draft EIS earlier this year.

Typically, an EIS outlines potential social, cultural and environmental impacts of large scale developments. In this case, MPL is requesting that the State reclassify some 1,600 acres from agricultural to rural so that a 200 lot millionaire’s subdivision can be developed. The specified area is located in the southwest corner of Molokai surrounding La`au Point.

John Sabas of Molokai Properties Limited said, “letters and responses totaled in excess of 1,900 pages.” In fact over 125 letters were received from agencies and community members. “One letter alone contained more than 500 questions and—with answers and attachments—contributed 250 pages to the final document,” Sabas said.
As of Monday, agencies and community members began receiving, via the mail, responses to comments that they submitted during the EIS draft process. After reviewing these responses from MPL, community members will have the opportunity at the upcoming Nov. 15 and 16 hearing to address any discrepancies, concerns, or opinions they consequently form.

The current agenda for Nov. 15 and 16, allots Thursday for community testimony, and Friday for a presentation from MPL of their proposed final EIS, at which time the commissioners will ask any questions they deem necessary to make an informed decision. Time allowing, it is the intention of the commission, while still on Molokai, to officially decide whether or not the EIS is acceptable.

The commission is anticipating a large turnout for the hearing on Thursday and Friday. As such, they are also expecting to hear a wide variety of community responses.

According to the Sunshine Law, no one will be denied the opportunity to give testimony, even if it conflicts with other business set forth. Therefore, if necessary, testimony will overflow into Friday.

However, it is important for community members to realize that their allotted speaking time is a one shot deal. Repeat testimony will not be allowed. Consequently, people must come prepared to make all of their comments in one go, or to submit them in writing before the LUC decides on the acceptability of the EIS.

If any community members are not comfortable giving testimony in public, they are encouraged to send in, or bring written testimony with them. Prior to the hearing, testimonies can be emailed to: luc@dbedt.hawaii.gov, or mailed to P.O. BOX 2359, Honolulu, HI 9604-2359.

If for any reason the commission does have to come back for an additional meeting, it will be classified as a new meeting, and repeat testimony will then be allowed. But, such a meeting cannot be forecasted or depended upon.

While the importance of public testimony is not noted in the Environmental Rules, as one of the legal standards in the 11-200-23 chapter 8, Acceptability, it is nonetheless an important factor.

Acting in a quasi-judicial fashion, the LUC is tasked with making a judgment as to the acceptability of the proposed EIS, and as such must take all facts and sources of facts into the record. The community testimony will be entered into the record as contributing to these facts and sources of facts and will therefore be given weight based on the credibility that is assigned to the speaker.

Anthony Ching, State Land Use Commission Executive Officer, clarifies that the weight or credibility of statements will be largely based on, “…how it speaks to the facts of the matter that the commission is considering”. All pertinent points will be given weight and taken into consideration.

Furthermore, even if public testimony is not inherently given legal weight, the responses that MPL provided to comments from community members during the draft EIS process, are. MPL was required to provide a response to all of afore mentioned comments, in addition to marking any changes that have been made.

While, this requirement can technically be fulfilled, the adequacy of the response can be of subsequent interest. Therefore, if community members did receive responses, and changes were noted, but they still feel that their question was not fully addressed or that they disagree with the answer they were given, they are encouraged to bring this up in their public testimony at the hearing.

Ching has been with the commission 6 years, and has overseen approximately 25 processes similar to the current approval hearing.

He does not feel as though Molokai’s process is any different, in that, the requirements are no less stringent in any one place, “the commission has the same obligation to consider all aspects of the cumulative impacts of FEIS”.

Ching does admit that: “people are passionate here. [but that] People should be passionate everywhere.”

At the Nov. 15 and 16 hearing, the commission, “…is not considering now whether it is a go or no go for the project…it should never be implied just because we were to accept  an FEIS that we are accepting that the project is a done deal,” Ching said.

Rather the hearing is to decide whether or not they accept the adequacy of the discussion of the impacts of the project.

Ching was adamant about the commission’s strict code to enter proceedings with an open mind to community testimonies. It is the obligation of all commissioners to weigh all relevant facts equally in the deliberation process. Despite Governor Lingle’s open support of the La`au Point development, Ching attests that, “You will not have heard any of my commissioners express an opinion”.

He also added, that despite being nominated by the Governor, and confirmed by the Senate, that all of the commissioners are bound by a code to come into the process with no preconceived notions and to examine all of the facts brought before them. Ultimately, they are meant to judge whether or not a given decision is good for the community.

Public accountability, transparency, and rules of conduct are meant to serve as safeguards against any preconceived notions.

If for any reason the LUC is prevented from completing their task in the given 30 days, for instance if they are not able to receive all of the public testimony, or MPL does not receive the opportunity to present, a few things may happen.

The LUC could attempt to return to Molokai to finish hearing testimony before the December 3 deadline. Or, if the LUC concluded that travel was not an option, the commission could come to a decision on Oahu. It is important to note that the law does not require the commission to be on the island to consider the acceptability of an FEIS.

But if MPL deemed the process was in need of more time, a 15 day extension would be added to the deadline enabling an additional December 6 and 7 hearing at the Lanikeha Center.

However, if none of these were viable options, MPL’s EIS would receive an automatic approval from the LUC on December 3.

According to Ching, “no one wants an automatic approval.” For the commission, “it means that you couldn’t get your job done and render a decision.” For the petitioner, it puts into question their credibility, as well as opening them up to all kinds of litigation.

Conversely, a no is given in the case that the commission deems that MPL has not sufficiently addressed all of the issues between the draft EIS process and filing their proposed final EIS. This could possibly mean that they did not adequately address all of the concerns raised by community members, or in the case that enough questions are raised to cast doubt in the commissioners mind of the benefits to the community that the project will provide. 

“It is our hope that we will come here, have a civil hearing, and that we have mutual respect, do what we need to do and move on,” Ching said.

However, Ching is not a commissioner, and he stresses that his views do not reflect the feelings or opinions of commissioners.

The hearing will begin on Thursday, Nov. 15. Initial signup from 8:00-8:30 a.m., testimony from 8:30 a.m. to noon, break for lunch, testimony from 1 p.m. – 3 p.m., break for dinner, testimony from 5 p.m. – 8 p.m.

Friday, Nov. 16 the hearing will run from 9 a.m.-4 p.m. If there is testimony overflow, Friday’s agenda will be altered to begin with testimony. The day will begin with MPL’s presentation, and follow with any questions the commissioners may have of the petitioner (MPL), in order to hopefully clarify any discrepancies.