Wednesday, February 28, 2024
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 :: 5563 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

Aloha Pregnancy Care Center


Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii


Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Moms for Liberty

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

July 4 in Hawaii

Kakaako Cares

Keep Hawaii's Heroes

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

National Christian Foundation Hawaii

National Parents Org Hawaii

NFIB Hawaii News

No GMO Means No Aloha

Not Dead Yet, Hawaii

NRA-ILA Hawaii

Oahu Alternative Transport


OHA Lies

Opt Out Today

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii


Rental by Owner Awareness Assn

ReRoute the Rail

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

School Choice in Hawaii

Sink the Jones Act

Statehood for Guam

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

UCC Truths

US Tax Foundation Hawaii Info

VAREP Honolulu

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii