Abercrombie’s Latest Water Commission Nominees Don’t Quiet Uproar02/22/2012
The furor over Gov. Neil Abercrombie’s appointments to the state water commission isn’t likely to die down any time soon.
Last week, the president of Young Brothers, Glenn Hong, abruptly withdrew his nomination a day before he was supposed to attend his first meeting, saying he wasn't qualified.
Ted Yamamura, a Maui real estate appraiser, was quickly announced as his replacement. But he’s sparked another round of outrage among environmentalists and native Hawaiian groups who had raised concerns about Hong’s appointment.
On Wednesday, the governor’s office made public his pick for the last opening on the board, Jonathan Starr, a former chair of the Maui County Democratic Party who gave $6,000 to Abercrombie’s 2010 governor’s campaign.
Starr has applied to serve on the commission 11 times. He told Civil Beat in December that he believes his four-year term as a member of the Maui Board of Water Supply and five years on the Maui Planning Commission make him qualified for the position.
Maui has become the center of fights over water issues — specifically, how much water can be diverted from streams for use by private companies that have been involved in large-scale agricultural operations. Groups, including Earthjustice, the Office of Hawaiian Affairs and the Native Hawaiian Legal Corp., have contested two rulings by the water commission, which are both tied up in court. One of them — The Na Wai Eha case — is before the Supreme Court.
Asked about criticism of the appointees, the governor's spokeswoman Donalyn Dela Cruz said by email: "The Water Commission is tasked with interviewing applicants and making their recommendations to the Governor. The Governor made his selection from that list."
Yamamura's Qualifications Questioned
Yamamura told Civil Beat that his experience goes beyond land appraisal. He said he has served in other unpaid government positions related to water, including on the Maui County Board of Water Supply since 2008.
But that hasn’t stopped the questioning of his resume.
“It’s unclear what substantial qualifications the new water commissioner has,” said Isaac Moriwake, an attorney with the Honolulu office of Earthjustice. “And it’s also troubling that there seems to be further stacking of the deck with Maui residents focused on a single island and even specifically, particular cases.”
Attorneys for organizations involved in legal cases on Maui argue that the state constitution and water code are clear that water must be held as a public trust and priority must be given to protecting the environmental resource and for native Hawaiian customary practices, such as taro farming.
Alan Murakami, an attorney with the Native Hawaiian Legal Corp., said that the latest appointment of someone who lacks experience in these issues shows a disregard of this constitutional mandate.
“Yamamura is a symptom of this particular atrocious behavior,” he said.
Four major decisions before the water commission that pitted large-scale agricultural and developer interests against those of environmentalists and Native Hawaiians ended up in the Supreme Court. All four of the decisions by the seven-member commission that were seen as favorable to developers and ag interests were overturned. These included the Koolau Agriculture case, Waiahole, Wai Ola and the Kukui Molokai case.
“The commission is batting zero on Supreme Court cases,” said Murakami, which is why critics have stressed the need for appointing candidates with extensive experience in the complicated legal history of water rights in Hawaii and the state water code.
Whether Yamamura, 62, fills those requirements is debatable. The statute just says that appointees must have “significant” experience in water management.
Yamamura has spent more than three decades as a land appraiser, mostly for ACM Consultants. He said that water was often a critical factor in determining land values.
He also served on the Hawaii Board of Land and Natural Resources from 2001 to 2006, where he worked on an appraisal of the East Maui Irrigation system.
Yamamura said that some of the county board of water supply's tasks include reviewing plans and budgets. It also hears appeals from people not granted a water meter.
But some doubt whether this rises to the level of “significant experience in water resource management.”
“The Maui water board is purely advisory,” said Lucienne deNaie, who has been heavily involved in Maui water issues and often testifies in front of the county board as a community activist. “There is no charter of any kind that commissioners have a background in water.”
She said that Yamamura seemed like a political appointment.
“That’s not really where we need to go to find the best and brightest to make our policy decisions,” she said.
Yamamura disputed the political connection, though he did donate $1,000 to the Abercrombie gubernatorial campaign in 2010, according to records from the National Institute on Money in State Politics.
Yamamura said he hasn't taken a position on the two contested Maui water diversion cases.
“I need to really read more into the cases because I don’t really have an opinion one way or the other now,” he said. “I haven’t delved deeply into the two issues yet.”
Starr Has Long Sought Position on Commission
Starr is likely to raise less scrutiny when it comes to his experience in water resources management. He was recommended as one of five candidates by the Office of Hawaiian Affairs.
In a letter to the governor, OHA's chief executive wrote of Starr:
He is often sought after to participate in speaking engagements, conferences, and boards dealing with water and agricultural issues. Through his extensive work on water management and sustainability projects, Mr. Starr would bring a different perspective to Hawaii’s water issues.
But some in the Native Hawaiian community are expected to raise concerns about whether Starr has the necessary experience.
The law requires that at least one member of the commission have experience in Native Hawaiian customary practices, which is a sore spot for the Native Hawaiian Legal Corp.
“That’s been a criteria that has never been observed in the past two governments,” said Murakami. “No one appointed has ever met the criteria that we can see.”
Starr replaces Lawrence Miike, who was viewed as holding the seat that required experience with Native Hawaiian traditions.
Carl Christensen, who applied unsuccessfully for a position on the water commission and said that Starr could be a good choice, also said that neither Starr nor Yamamura fulfilled that Native Hawaiian requirement.
Critics aren't just questioning whether the appointees fulfill statutory requirements. They are also asking whether they were the most qualified applicants.
Christensen was senior Counsel to the U.S. Senate Committee on Indian Affairs for four years where he worked on Indian water rights cases, and he was a staff attorney for the Native Hawaiian Legal Corp. for a decade. He graduated cum laude from Harvard Law School.
T. Kaeo Duarte was also seen as a top candidate. He had support from OHA because of his extensive experience in water resource management. Duarte has a Ph.D. in environmental engineering from the Massachusetts Institute of Technology and a bachelors degree in civil and environmental engineering from Princeton University. He has worked extensively on local water projects.
DISCUSSION: What do you think about the quality of the governor's appointments in general?