Thursday, May 28, 2020
Hawai'i Free Press

Current Articles | Archives

Sunday, March 18, 2012
Trickle-Down Regulation: Environmental Maze Becomes "Stumbling Block" For The Little Guys
By Robert Thomas @ 11:07 PM :: 4117 Views :: Energy, Environment

Trickle-Down Regulation: Environmental Maze Becomes "Stumbling Block" For The Little Guys

by Robert Thomas, InverseCondemnation

There's a feature story in the March 11 Honolulu Star-Advertiser, "Red tape ties up groups' fishpond restorations," about a local caretaker group's frustration with "government rules" they claim are thwarting their efforts to fix up a traditional littoral fishpond.

For those of you not familiar with these centuries-old aquacultural structures designed to catch and raise fish that once dotted the shores of most every Hawaiian island, check out Kaiser Aetna v. United States, 444 U.S. 164 (1979), the U.S. Supreme Court's decision upholding the private nature of these structures. For a slightly more recent case protecting the private status of a fishpond on Molokai see Boone v. United States, 944 F.2d 1489 (9th Cir. 1991). Disclosure: we represented the property owners in both cases.

The S-A story is mostly behind a paywall, so for those without subscriptions or access to the hard copy, here's the short version: the restoration groups assert that layers of government regulations which result in the need to obtain a slew of permits and permissions are "such a deterrent" to their ability to repair and restore the remaining fishponds. For one Maui fishpond, these regulations include Corps of Engineers approvals, a State Department of Health water quality permit, a State Department of Land and Natural Resources Conservation District Use permit, a State DLNR shoreline certification, a Special Management Area use permit from the County of Maui, a State survey, and a marine archaeological study. It's expensive, time consuming, and discouraging, the groups claim.

Welcome to my world.

We're not sure why they think they should be exempt from these regulations, although their complaints make sense: "We need to grow food now. … Government needs to figure out how to make it a one-stop shop," the executive director of the group is quoted as saying.

She said government officials need to reorder priorities to enable the restoration of environmentally friendly fishponds.

"I think it's obvious rules and regulations need to change," she said. "I think our government needs to put the environment first."

Yes, but there's the rub, isn't it? Who is to say that what you claim is "green" really isn't somehow affecting the environment, and needs layers of government review to insure it is not detrimental? The precautionary principle at work: because, you know, you never know. Especially when you are dealing with shorelines, public lands, and public trust resources.

And, under the Hawaii shoreline statutes, there really is no such thing as an absolutely exempt activity, because even those activities that are technically categorically exempt because they will likely have little or no significant effect (building a single family home or an inexpensive project, for example) are really not exempt, since a claim that their "cumulative impact" might cause environmental harm will trigger the need for government reviews. See here and scroll down to (17) if you doubt us.

Thus, even purportedly green activity could be "development" after all, even if it involves a native Hawaiian fishpond.

Sidebar: in the old days, some of these fishponds were built by the local alii "taxing" the entire populace of a district, the "tax" consisting of the command that every man, woman, and child show up at the site on a particular day with the rocks used for construction. The builders of these structures didn't need permits, surveys, or certifications. In those days, it really was good to be the king, but maybe not so good to be everyone else.



TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

808 State Update AM940


ACA Signups Hawaii



Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii



Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube


Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii


National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii


Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

School Choice in Hawaii

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii