Some thoughts on eminent domain for wind power

By Robert H. Thomas

Honolulu attorney Jay Fidell (who also produces Think Tech Hawaii) writes a regular column in the Honolulu Star-Advertiser. Last week, he focused on eminent domain in “Governor must insure wind farm moves forward,” where he wrote about the proposed wind farm on Molokai, and urges the state to use eminent domain aggressively to take the needed land:

When Abercrombie threatened eminent domain against Molokai Ranch, he unleashed the genie, and the possibility of condemnation is now in play. He gave us a glimpse of a powerful solution to our energy security predicament, and we can’t let it pass.

In our state of islands, land is scarce, and NIMBY is in every back yard. Large landowners want to hold on to their land in hopes of appreciation and because it’s so difficult to find other parcels. So they refuse to sell.

Hawaii has traditionally been reluctant to exercise eminent domain, and big projects have suffered for it. This is a problem for both energy and other things, and we need to get over it. Big projects need big land, and until we can get that land, we’ll be hampered in those projects.

The governor needs to get the Big Wind parties in a room and jawbone them into a deal. Failing that, he should do exactly what he threatened — yes, condemnation.

Take heart, governor. Be impatient about clean energy — you have the power. Make eminent domain imminent. Many people will support you in this, and a condemnation will assure progress on wind and other projects. Do it once and things will be easier going forward.

While I often agree with Jay, I can’t buy in wholly this time.

First, I can’t say that we’ve “suffered” for being reluctant to condemn property (except, it appears, for residential and condo leaseholds – on that front, we’ve been very un-reluctant to condemn private property). Eminent domain is one of the most powerful attributes of sovereignty, and property owners have little in the way of defenses. It can financially and emotionally destroy homeowners and business owners to have their life’s work taken away. They may get compensated, but we invest our property with quite a bit more than what can be calculated by an appraiser. So I am glad that we exercise it reluctantly here in most cases.

Second, I also can’t agree with the use of eminent domain to favor one vendor over another. The Kelo majority’s willingness to uphold the condemnation in New London was based in large part on the fact that the city had not yet chosen Pfizer as the new owner at the time the city decided to condemn. The Court might have had a different view if, say, the city condemned the property specifically in order to turn it over to Pfizer (rather than to turn it over to a developer, who later turned out to be Pfizer). When the government chooses a preferred beneficiary before it condemns, the taking looks a lot more like the prohibited “A-to-B” taking that the Court professes to frown upon, even after Midkiff and Kelo. The governor picking winners and losers also amounts to unwarranted interference in a process in which the government has little competence. [Disclosure: I have represented the landowner in oher cases.]

The author is a land use and appellate lawyer in Honolulu. Follow his blog on these issues at


Second annual Molokai Holokai downwind race tomorrow

A trio of racers from last year's inaugural Molokai Holokai. Photo courtesy of Molokai Holokai

Press Release by Molokai Holokai

Get ready for Molokai’s magic carpet ride, the Kamalo Run at the second annual Molokai Holokai. The race features not a single sharp turn — just a straight downwind run paddled inside, or outside, the reef for 8.5 miles.

The race from Kamalo Wharf to Hotel Molokai begins tomorrow with registration from noon to 1 p.m. and a starting time of 1:20 p.m.

The combination of Memorial Day weekend and downwind paddling provide the perfect excuse to visit Molokai.

This year’s race is a World Paddling Association sanctioned event. Hawaii SUP racers can earn points for national rankings by category and qualify for WPA championships at Hennessey in September.

Congratulations to Jeremy Riggs in the Mens 14-foot division who recorded last year’s fastest time of 1 hour, 6 minutes, 57 seconds.

Check out the race map and course video at Online registration, accommodations and travel information can also be found there.

The race is presented by the Molokai Ohana Surf Club, Youth in Motion and the Stand Up Paddle Association of Molokai (SUPAM).

For more information, contact race director Todd Yamashita, 808-646-0542, or co-director Clare Mawae, 808-336-0946

Open house meetings to discuss Kalaupapa Management Plan

How the resources in Kalaupapa will be managed in the future is the topic for two meetings on Molokai June 6 and 7.

The National Park Service will hold two meetings on Molokai the week after next to help chart the course for the future of Kalaupapa National Historical Park.

Four different visions for Kalaupapa have been developed in an effort to create a General Management Plan. These alternative visions came out of public meetings held in December of 2009, which considered questions about how to best honor the people, site and history of Kalaupapa. Much of the information discussed at these meetings had been gathered during statewide public scoping sessions held in April, 2009.

Regardless of which alternative, or combination of alternatives, is agreed upon, one thing is certain: the rights and desires of the current patient residents will be held in the highest regard.

“One thing to which all of us agree,” wrote NPS Superintendent for Kalaupapa, Stephen Prokop, “don’t change what is most significant or special about Kalaupapa!”

A common agreement within the plans is to maintain the status quo in the near term. This means the Hawaii Department of Health will still manage public visitation to the isolated peninsula and maintain the 100 person-per-day visitor limit. The NPS will continue to manage most buildings and infrastructure and remain in charge of historical preservation for over 200 buildings in Kalaupapa.

Long-term considerations, when there are no longer any patients living in Kalaupapa, will make up much of the discussion at the five statewide meetings being held in June.

Major issues to be considered have been grouped into these categories: resource management; boundaries; visitor experience and facilities, access and transportation.

The first scheduled meeting will be in Kalaupapa at McVeigh Social Hall on Monday, June 6, 9-11 a.m. and 5-7 p.m. The next day, June 7, the meeting will come topside to the Mitchell Pau’ole Center in Kaunakakai from 10 a.m.-noon and 6-8 p.m.

Other meetings will be: June 8, Kahului, Maui, Maui Arts & Cultural Center, 4-6 p.m.; June 9, Honolulu, Bishop Museum, 6-8 p.m.; June 10, Honolulu, Bishop Museum, 9-11 a.m.

For those unable to attend these public open houses, written comments can be sent by email to or go to (this is the NPS preferred method for receiving written comments. A letter can be mailed to the Kalaupapa National Historical Park, P.O. Box 2222 Kalaupapa, HI 96742. Superintendent Prokop can be reached at 808-567-6802 ext. 1100.

Vanderbilt withdraws nomination to Planning Commission

DeGray Vanderbilt, left, and Steve Chaikin, both former chairmen of the Molokai Planning Commission, listen in on a Public Utilities Commission hearing last year.

When the Molokai Planning Commission met today for its regular meeting, newly recommended appointee DeGray Vanderbilt was not filling one of the nine commissioner seats at the Mitchell Pau’ole Center.

Instead, the MoPC considered a permit request to extract cinder from a site in Kaluakoi and changes to the county zoning code without the benefit of Vanderbilt’s years on the commission and deep involvement with many Molokai issues.

Two weeks ago, The Maui County Council Policy Committee voted 5-2 to recommend Vanderbilt’s appointment. The committee had postponed a vote in April on Vanderbilt when he came under fire from critics claiming that he is anti-business and confrontational.

Vanderbilt, who served as chairman of the MoPC in 2007, told the Maui County council yesterday that his withdrawal has nothing to do with the recent criticism he has received. The Molokai Chamber of Commerce and a few other Molokai residents wrote letters opposing his appointment.

“I don’t want this issue to compromise the planning commission going forward,” he told council members. “I’ve tried my best to serve Molokai.”

According to The Maui News, Vanderbilt made this decision after after meeting with Council Chairman Danny Mateo, who holds the Molokai residency seat.

Vanderbilt told the council members that he’s not “anti-everything,” despite what was said about him in a letter from the Maui Chamber of Commerce.

He added that he believes he’s on the “same page” as about 85 percent of Molokai residents, although maybe he’s not the one to bring everyone together.

Vanderbilt’s nomination had been challenged on the basis of residency. Although he has not spent as much time on Molokai over the past couple of years as he has in the past, the Maui County clerk did verify he has been a Molokai registered voter since 1984.

Fatal crash provides tragic reminder to buckle up

Click It Or Ticket campaign begins this week

By David Lichtenstein

Over a year ago I was stopped by two patrol cars in Kaunakakai for driving without wearing my seat belt.

I was only traveling about 20 mph on my way to Rawlins Gas Station, yet I was still ticketed $92 for the violation. I found the ticket petty and unnecessary at the time and swore various epithets (under my breath) to describe what a waste of time this was for law enforcement.

Then came March 29, 2010. It was a little after 11 p.m. when I was woken by the sound of screeching tires and a loud impact. Scott Furtado, 24, was driving westbound on Kamehameha V Highway when he lost control of his pickup truck, hit a signpost, a fire hydrant, a fence post and the back wall of the maintenance shed at Molokai Shores before being ejected from his vehicle. He was dead at the scene.

Furtado was not wearing a seat belt at the time.

The outpouring of emotion from the family of Scotty Boy was hard to witness. I heard anger, frustration, confusion and, most of all, real sadness over this tragic loss. For those of you still feeling the pain of this loss, my deepest condolences.

Furtado was one of two fatal accidents in Maui County last year that involved people who were not buckled up. In another crash on Honoapiilani Highway near Kuikahi Drive in Waikapu, a 39-year-old passenger was killed when he was ejected from the back seat of a car that overturned, police said.

Another Maui County death occurred May 14 when a 22-year-old Haiku woman wasn’t wearing a seat belt and was ejected from a 2005 Dodge pickup truck that went off Kahekili Highway in Kahakuloa.

Starting Monday, May 23, and continuing through June 5, officers are setting up seat belt checkpoints and doing roving patrols throughout the county looking for motorists who aren’t buckled up as part of the nationwide Click It Or Ticket campaign.

The enforcement of the seat belt law will not end when the campaign is over. “We’re going to keep going until everybody wears their seat belt,” said Sgt. Barry Aoki of the police Traffic Section.

Under state law, drivers and front-seat passengers are required to use seat belts. Those under age 18 are required to use seat belts no matter where they’re sitting in a vehicle. The fine is $92 for a seat belt violation.

When I received this seat belt fine, I know it raised my awareness regarding seat belts. I now make sure to buckle up every time I enter a vehicle.

I can only hope that Scotty Boy’s death will have the same effect on those who knew and loved him. If an increased awareness of the importance of seat belt use saves one innocent life, Scotty Boy’s death will not have been in vain.

Team Kamanu repeats win in Pa’a ‘Eono Hoe race

One team surfs a swell in the Pailolo Channel on Saturday on the ride between Maui and Molokai. Photo courtesy of Clint Sherwood-Labrador

Six paddlers, three islands, two days — that’s what the annual Pa’a ‘Eono Hoe race is all about.

The second annual race took place over the weekend, beginning Saturday with the Pailolo Channel from Maui to Molokai. Swells in the 10-15 foot range were reported by participants after landing in Kaunakakai Harbor.

The next day, racers conquered the Kaiwi Channel, following the same course as the Molokai Hoe race from Papohaku Beach to Maunalua Bay, 32 miles away on Oahu.

Winning both stages of the race and repeating as champions was Team Kamanu. The team from Kailua finished in 2 hours, 34 minutes, 23 seconds in the first stage and 3:44.55 for the second stage. They topped the second-place Livestrong team by over 23 minutes in combined time.

In the inaugural race last year, Team Kamanu finished the Kaiwi Channel in 3:56.40, slower than this year’s winning time of 3:44.55. Livestrong placed second last year as well.

The biggest difference between this race and the Molokai Hoe — widely considered the world championship for six-man outrigger canoe races — is that paddlers cannot be substituted in the Pa’a ‘Eono Hoe. In the Open division, the same six paddlers that start must also finish. One of the interesting features of the Molokai Hoe is watching replacement paddlers roll off the escort boat and into the canoe.

Another major difference is that last year the race did not include the Maui to Molokai leg on Saturday.

One goal of the Pa’a ‘Eono Hoe is to establish guidelines that allow builders to create faster racing canoes while keeping most of the basic design concepts of what constitutes a six-man outrigger canoe. The intent is not to lift all design restrictions, which may lead to radical manipulations and questions about what defines a canoe.

In the future, the Pa’a race series will explore the possibility of six-man outrigger canoe paddling becoming an Olympic sport. Developing canoes with some of these specifications will allow the sport to be considered for the Olympics one day.

Ka Hula Piko celebrates birth of hula in its 20th year

Two dancers tell the story of Molokai through hula. In the background is a photo portrait of late Kumu Hula John Ka‘imikaua who founded the celebration in 1991.


Nothing turbulent about this year’s Ka Hula Piko celebration, despite the theme, “Aia nā kai Po‘olo‘olo‘u o Moloka‘i” — there are the turbulent waters of Moloka‘i.

The perfect weather and festival atmosphere last Saturday made Molokai’s biggest annual event a success. For the second straight year the Mitchell Pau’ole Center provided the venue since it was moved from the Papohaku State Park on the West End.

The celebration of the birth of the hula on Molokai is now in its 20th year. Its founder the late Kumu Hula, John Ka‘imikaua began the festival and as a means of enlightening and educating all people about the early traditions and culture of pre-Western Moloka‘i through the ancient Oli and Hula passed on to him by his Kumu.

Chairman of the Maui County Council, Danny Mateo, visited with the people of Molokai last Saturday at the Ka Hula Piko festival.

In addition to the The Ho‘olaulea on Saturday, there was an evening lecture last Thursday presented by Halau Hula O Kukunaokala and original music showcasing the compositions of John Ka’imikaua, who founded the Moloka’i Ka Hula Piko celebration in 1991.

On Friday, John Ka’imikaua was honored in a documentary film sponsored by Coffees of Hawaii. The film “A Mau A Mau to Continue Forever” was shown at Coffees of Hawaii in Kualapu’u.

The Ho‘olaulea on Saturday featured onolicious food, crafts and entertainment from the people of Molokai including dances from Hālau Hula o Kukunaokalā.

Here are two videos of Molokai hula dances as performed by Hālau Hula o Kukunaokalā.