Council OKs sand-mining moratorium
Measure advances to Arakawa for action
WAILUKU — After eight months, the Maui County Council approved a bill on second and final reading Friday that would establish a six-month moratorium on the mining of Central Maui inland sand, which could affect up to nearly 60 large landowners.
The measure advances to the desk of Mayor Alan Arakawa. He can sign it, veto it or let it become law without his signature.
The moratorium would allow time for an update of a sand inventory study and to establish regulations to prevent the disturbance of Native Hawaiian burials and protect limited natural resources.
Developers and large landowners objected to the bill, saying it would delay projects, including affordable housing. They argued that the bill’s goal of protecting burials and sand were unaddressed in the measure.
Some landowners received exemptions from the bill. And some projects, including Maui Lani’s Phase 9 development, which is the subject of a court case over earth-moving work, are exempt because they hold current county grading and grubbing permits. Those are exempt under the moratorium bill.
The bill, authored by Council Member Elle Cochran, was discussed in eight Infrastructure and Environmental Management Committee meetings and during four council meetings. The measure drew passionate testimony from proponents asking that something be done to protect the iwi, or bones, of their ancestors from excavation. Such human remains can be found in the Central Maui inland sand.
Friday’s vote was 7-2, with Council Members Riki Hokama and Yuki Lei Sugimura casting the dissenting votes.
Sugimura did not discuss her vote on the floor Friday, but she has voiced concern about the moratorium affecting the building of affordable housing.
Before the vote, Hokama said that he would not support the measure.
“I don’t have a problem with the moratorium, (but the law) either applies to everybody or nobody,” he said, noting that some developers received exemptions and others did not.
“For me, it applies to everybody. Six months is six months. I can live with that,” Hokama said.
Council Member Stacy Crivello strongly supported the bill, but she said she didn’t like its exemptions. She also disagreed with what she said was the bill’s lack of focus on protecting ancient burials. Nevertheless, she voted in favor of the measure.
Cochran said that she agreed with her fellow council members that her bill “should get more teeth.”
“After all these months, this is what it is. It has been a struggle and a challenge . . . to get to where we are at,” she said. “I’m just happy we have something here at the table. I just appreciate everyone’s input, especially the public.”
She said that one portion of the bill aims to update a 2006 study to see how much sand Maui County has and the other side of it is to “pause” and “take a breath.”
Council Vice Chairman Bob Carroll said that not all of the landowners who have sought exemptions are “dirty rats,” and that the majority have tried to meet the requirements set forth by the state and the council.
“They have done their part,” Carroll said. “The applicants have not failed. We have failed. This council has failed.”
He said that there are some developers who have taken advantage of the system, but most are good people.
Carroll said it is important during the moratorium to take care of the people because some affordable housing projects could be delayed.
“Nobody should be really proud of that,” he said.
Council Member Don Guzman said that the moratorium bill would allow time for the Maui County Council and other county agencies and commissions to review bills that get to the root of the matter in protecting the burials.
The bills, which Guzman has authored, look at issues such as resource extraction and clarifying the grading and grubbing permit process.
On Friday, the council granted an exemption to the bill to Valley Isle Fellowship. More than five other landowners who asked for exemptions were turned down because council members found issues with the sand found on the properties or issues with the archaeological studies done on the sites.
In a Nov. 17 council meeting, the council exempted Kehalani Ag Investors LLC/Dowling Co. because no sand was found on the property. And, on Friday, the council found out that Waiko Industrial Investment LLC was already exempt. Department of Public Works Director David Goode said during the meeting that the entity received a grading and grubbing permit from the department Tuesday.
Council Member Alika Atay said it is no secret that the council has been working on the bill for months and questioned the county’s issuance of a permit several days before the bill could be finalized.
“Where is the understanding of what we are trying to accomplish here?” he asked. “There will be a request for an audit.”
“Bad directing,” Atay said, referring to Goode.
After the meeting, Goode said that “it is regrettable” Atay “doesn’t understand basic administration of law.”
“We can’t enforce a bill that has not been made law. If and when the bill is signed by the mayor, we will enforce it,” he said.
Prior to Friday’s council meeting, at least 15 people held signs in front of the Kalana O Maui building in support of the moratorium. They also asked the county to rescind a grubbing and grading permit extended to Maui Lani Phase 9 in November.
Maui Lani Phase 9 was the impetus to the moratorium after a Honolulu TV news report in April showed Honolulu Construction & Draying moving excavated sand from the Maui Lani project to Oahu for construction projects. The company has since stopped the work.
A Maui Lani spokesperson could not be reached for comment Friday.
Protesters questioned the timing of the grading permit extension and why the county would take the action while excavation at the site remained in dispute.
In July, group Malama Kakanilua and individuals Clare Apana and Kaniloa Kamaunu filed a lawsuit to stop earth-moving activities on Maui Lani’s Phase 9 site until the company complies with its archaeological monitoring plan.
In September, 2nd Circuit Judge Joseph Cardoza ruled that Maui Lani is blocked from doing earth-moving work unless certain conditions are met. Those include notification of the plaintiffs or their attorney at least 48 hours before the work is conducted, complying with the archaeological monitoring plan and having a plaintiffs’ observer at the site when the work is done.
Further hearings in the case are pending, plaintiffs said Friday.
As for the county’s role in the grading permits, Maui County spokesman Rod Antone said that “Mayor Arakawa is 100 percent against taking sand resources from Maui and shipping them off-island.”
He added that the county is not a party to the lawsuit against Maui Lani and has not received anything from the court that would order the county to suspend or revoke the existing permit.
“The extension of this permit is not unusual, as we are not aware of any violations as far as their grading work is concerned,” Antone said.
He said that officials with the state Department of Land and Natural Resources’ State Historic Preservation Division have not informed the county of any violations. He said the county grading permit does not take into consideration any archaeological finds, nor does the county Department of Public Works have the jurisdiction to do so because those matters are under the state’s jurisdiction.
Antone said that Public Works is aware of groups and individuals who have asked that Maui Lani’s permits be rescinded and is in the process of reviewing them with the assistance of county attorneys.
SHPD officials have said that the agency is short-staffed on Maui. Officials say there are other issues, including lack of access to project sites.
* Melissa Tanji can be reached at firstname.lastname@example.org.