City Council should
hear landfill dispute


A state agency has ruled that a city advisory committee violated the open-meetings law in recommending sites for a landfill.

ANGER about whose backyard on Oahu should be used as a landfill has degenerated into a dispute about tactics that amounted to violations of the state's Sunshine Law. A city advisory committee stacked with residents of the Leeward Coast recommended last month that the City Council put the landfill elsewhere. The Council should not confine itself to that recommendation but should consider the Leeward residents' arguments.

Members of the Mayor's Advisory Committee on Landfill Selection were presented a list of 45 sites drawn up decades ago and whittled them down to five, including continued use of Waimanalo Gulch, east of Nanakuli. Leeward members of the committee argued that it should be excluded because city officials promised before its use as landfill began in 1989 that it would be closed by 2008.

When it became clear that most of the committee's 15 members favored excluding Waimanalo Gulch from the list to be submitted to the City Council, state Rep. Cynthia Thielen of Kailua and four other members resigned in protest. Thielen is concerned that putting the landfill in her district, which is among the four sites approved for submission to the Council, would do severe harm to Kailua's economy.

Thielen complained to the state Office of Information Practices that the committee had broken open-meetings laws when nine members signed a statement favoring removal of Waimanalo Gulch from the recommendation before casting their votes. The Sunshine watchdog agency found the committee in violation for that and for allowing members to cast their votes by e-mail, and said it should try again.

We opposed the deletion of the Leeward site from the committee's recommendation, mainly because it would be much less expensive -- less than half the cost of any of the others, according to figures released by the committee. Using a point-system method in which a consultant graded the proposed sites without being told their names, Waimanalo Gulch scored as the most preferable.

State Sen. Colleen Hanabusa maintains that the method of that evaluation was rigged. The consultant who graded the sites had to have been able to identify Waimanalo Gulch, she says, because he had prepared at least three environmental impact statements supporting its selection. She adds that the relatively low cost of its continued use as a landfill did not include excavation expenses.

City Council members should hear those arguments, along with reasons why others believe Waimanalo Gulch is preferable to their backyards.


Suits make passage
of Akaka bill urgent


Federal judges have dismissed discrimination lawsuits against Office of Hawaiian Affairs programs and Kamehameha Schools.

WHEN the U.S. Supreme Court ruled four years ago that Office of Hawaiian Affairs elections could not be confined to Hawaiian voters, it avoided confronting other issues related to Hawaiian recognition, saying those "would raise questions of considerable moment and difficulty." The moment of decision is growing nearer with the dismissal of two lawsuits challenging recognition of Hawaiians as a political entity. The appeals process has begun in both cases, making more urgent the need for enactment of a Hawaiian recognition bill in Congress.

The lawsuits maintain that state Office of Hawaiian Affairs programs and the Hawaiians-only admission policy of Kamehameha Schools discriminate on the basis of race. U.S. District Judge Alan Kay dismissed the lawsuit against the school in November, and District Judge Susan Oki Mollway dismissed the OHA suit on Wednesday. Both decisions will be appealed to the 9th U.S. Circuit Court of Appeals and eventually the Supreme Court.

The suit on behalf of a non-Hawaiian applicant to Kamehameha Schools contends that the policy violates a civil rights law enacted after the Civil War. The Supreme Court has ruled that a provision of the law forbidding racial discrimination in contracts pertains to private school admissions and protects members of all races, not just minorities.

The suit against OHA maintains that expenditures of public money benefitting only Hawaiians violates 14th Amendment guarantees of equal protection regardless of race. OHA attorney Sherry Broder maintained in court that Hawaiians are a political entity recognized by past legislation such as the Native Hawaiian Education Act and the Native Hawaiian Health Care Act.

In striking down OHA's Hawaiians-only voting system four years ago, the Supreme Court declined to address directly the issue of Hawaiian recognition as a political entity, referring to the issue as "a matter of some dispute," adding, "We can stay far off that difficult terrain."

Not for long. In her ruling, Judge Mollway made note not only of past legislation but of a pending bill sponsored by Senator Akaka that would designate Hawaiians as a political entity similar to American Indian tribes. The Akaka bill is not likely to be a factor in appellate rulings in the two cases unless it becomes law.



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