 to politics and land in Hawaii with Dennis Isaki on Think Tech Hawaii. Today we'll be speaking with Mauna Kea Trask, Native Hawaiian attorney on development and utilization of Hawaii's natural beauty and resources. He is a fourth generation Native Hawaiian with legal background as well as Native Hawaiian cultural concerns. He is a practicing attorney on Kauai in the areas of environmental law and mitigation, land use, zoning, and entitlements. The last time we spoke about Hawaiian issues and now we would like to tie in Hawaiian issues, concerns, and land development. Mauna Kea, please tell us about your interest in Native Hawaiian perspective concerning the legal and ethical obligations of the state, the counties, and the activist community in regards to beneficial development. Yeah, thank you, Dennis. Aloha, nice to see you again. Basically my concern and what I like to talk about today addresses what I call beneficial development, which is in line with Hawaii's constitutional public trust doctrine and Article 12, Section 7 of the Constitution regarding the protection and preservation of Native Hawaiian rights and traditional customary practices. Okay, so now we're going to blend it to all that with development, beneficial development, all that cultural preservation. So how do we tie that in? Yeah, so good question. When I'm talking about development here, it's really land use and it's a really broad definition. So if you look at state law and county law regarding what constitutes development, I mean it could be something as you know, redistricting of land, just something you do on paper, changing a map to and until building a structure, building infrastructure, you know, whatever that is. And really the point being is looking at and having a more nuanced view of what is beneficial development and more importantly what the real traditional and customary, you know, tenants of Hawaiian culture says about development and specifically, you know, moderately, I think that people think that Native Hawaiians and Native Hawaiian culture sees development as categorically bad. There cannot be any good development. And it's just not true. It's not supported in, you know, history, culture, whether written or oral. And I think without appreciating and addressing these nuances, we, Native Hawaiians, you know, and Native Hawaiians and local people won't be able to continue to live in these islands. They won't continue to raise their families. They won't be here anymore. They'll be priced out and, you know, we'll just lose. We'll lose out. You know, the state and county has all these mandates for all the development. Now the government has to cross the T's and dot the I's or else they will get shot down. Like I think it was about 10 years ago now in Kulau, there was a 50 lot subdivision. They built out the roadways, created the lots. I think they got all the approvals. And then when it was found out that they didn't meet all the requirements, then it got subdivided as it sits there now. So is that something like the things that we got to buy everything together and get it done? Yeah, I think, you know, so that part of me, that Kulau development is really controversial right now. And I don't necessarily want to talk about that one today. But I think more broadly speaking that, you know, first off, looking at the public trust doctrine, right? Article 11, section one of the Hoy state constitution. And pardon me, I got my notes in front of me. So what it specifically says is for the benefit of present and future generations, the state and its political subdivisions shall conserve and protect Hoy's natural beauty and natural resources, including land, water, air, et cetera, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the state. So what I'm saying today is not, and I don't mean to convey that all development is good. What I'm trying to say is that not all development is bad. And with regard to, for lack of a better word, the activist community, I think that there needs to be, and this, I'm not speaking broadly, this is going to come across broadly. I'm not speaking about all activists. But what's the perception is that there needs to be more, I think, responsibility and more nuance and honesty, you know, to be to be clear or just to be blunt about the place of development in, you know, how Native Hawaiians characterize that. So for example, you look at, like really generally speaking, okay, water. Water is an extremely controversial issue. And it seems that there can be absolutely no beneficial and reasonable use of water if it involves diversion, right? It's extremely hard. And so difficult that, you know, on Kauai, the East Kauai water cooperative up there in Wailua, when after Niki, when the irrigation ditches blew out, they never got repaired. And so the entire irrigation system on Kauai, which is what our ag lands, you know, feed our ag lands and water our ag lands, it's going to, we're going to lose it. And I don't think that's a good thing. And nor do I think that there's precedent for that in the Native Hawaiian culture when you actually look at the facts. Because Hawaiians were, I mean, probably the best engineers in Polynesia. You know, no one diverted water like us. You go in a Kalalao, and there's diversions everywhere. There's all over the hillsides. And without that, we wouldn't, you know, Native Hawaiians would be able to live here. And so now it was done in the right way. And that's why I'm qualifying everything here as beneficial development. But for example, if KIUC wants to put hydro in a river in order to decrease our dependency on diesel, to meet our 100% renewable energy portfolio, it's not categorically bad to do so. In fact, when you look at history, Kalakaua diverted, I mean, I had hydro in Uumano River in order to, you know, power Elani Palace. And my concern is that these commonly held misconceptions of the Native Hawaiian people and what they did is detrimental to our self-determination and ability to live and subsist in our own lands. And oftentimes it seems like the Hawaiian culture is used to support an anti-development, you know, anti-development program that doesn't benefit Native Hawaiians. And you know, another example, again, Kalaua, it's easier for somebody for recreational users to degrade that resource than it is for Native Hawaiians to maintain and preserve it. And I think that's wrong. Yeah. Yeah. As you mentioned, diversion, it's an interesting topic. There is a tunnel taking water from Honolulu River going to the Wailua side under the mountain. I walked through there. At one time, they were going to do a hydro by Wailua Falls using that water that got shot down, probably rightfully so. Now KAC is looking at hydro on West Kauai at Mana, but they're using it, recycling the water, pumping the same water back up and reusing it. So I think we're on the right track there. And they got some of the permits. Yeah, diversion is an interesting thing. So how does it affect some of the other projects? Are you familiar with something that the Water Department ruling came down from a Supreme Court? Similar situation. Yeah. Recently, that was the, I think it was the Malka Lihui, right? The 18-inch water expansion or something like that. So I'm not intimately familiar with the facts of that case. I am aware of the case though, and generally the proceeding. And that very well could be an example of that. So what I understand is the main person behind that push to shut that down. Well, first off, my understanding of that project is to support the expansion of Lihui to accommodate for more housing, more public infrastructure, help Wilcox Hospital, those kind of things. And it's a nuanced discussion. Yeah, all water in on Kauai comes from rivers and streams or wells and springs. But, okay. No, no, so they're a little bit concerned that, you know, it might be a concern about fixing pipeline, that taking water crossing district, our water lines and stuff. Right now it's all tight end, right? Yeah, exactly. And not only that, but I think a lot of the people who, my understanding is the prime mover behind that case doesn't even live in Lihui. You know, they're not, they don't reside in the Puna district, which traditionally and customarily that's not their Kuliana. And so it really matters what the people in those areas think and what they need. And you know, it's a nuanced discussion, no doubt. But, you know, a lot of the stuff that was my understanding and those issues in that case was, like you said, it's a real technical challenge. So it was a challenge to EIS, the age of it and whether or not appropriate disclosures were made and it was updated correctly. And a lot of these things are forefront of environmental and land use law. So a lot of these questions are, have never been asked before. There's no answers. But when you're looking at the dire situation that Kauai faces, you know, I think we need 9,000 housing units today in order to meet the need, much less what we need in the future. And so when we're facing something like that, I think it's disingenuous for somebody who is of retirement age and has their own home in another molku to challenge development and things that are necessary to house present and future generations, which is what the Constitution says for the benefit of present and future generations. And I think, you know, to stop a project when it's not so clear that it's a bad project, I think that there's a duty and responsibility for an honest critique and criticism and that if someone has a problem or an organization has a problem with the development, that's beneficial or can be seen as beneficial to work with and mitigate their concerns and not just simply stop it. So you win in court and get attorney's Okay, I don't know if we went into this the last time on the Kabakai analysis, which, you know, the rules say you get to go all the way back, which to the original grant, some guys say like, it's kind of on the property that has been developed, you know, a few times before now and you still got to go back. How do you see that working? Yeah, no, good question. So, you know, Kabakai is so basically Kabakai in 2001, that case created a framework that public, you know, the state and its political subdivisions could use to analyze whether or not there was, whether or not there were and to the extent that traditional customary practices occur on a piece of property. And that's, you know, in Konohiki land, all title to all Konohiki land was subject to the rights of native tenants, that's clear. And so, but when you look at that, it's a balancing test, right? It's not automatic, you get whatever you want. So, it has to be a true traditional customary practice, and that is something that was established up until November 25th, 1892, that's the cutoff point. It's not 1778, so it protects more, I think, traditional customary practices and simply pre-contact ones. And it provides, you know, you identify whether or not there are traditional customary practices, the extent to which those practices are practiced, and what can be done to preserve, protect, or mitigate any adverse effect to them. But when a property is fully developed, you no longer can exercise those practices. And, you know, the best case scenario, the best example is like anyone's house lot, right? Your house, your residential lot, my residential lot, any native wine's residential lot, no one else can come over there if it's developed infrastructure, a home, it's fenced, et cetera, and trespass and exercise their rights. And so, and that's clear, you couldn't do that in ancient Hawaii either, you know, whether pre-contact or post-contact. And I think the confusion is, in this case, it's, yeah, when you are, if a property is developed and you want to, you know, repair your home or build another structure, ohana unit or something like that, to have to go through another kapokite analysis, this doesn't make sense. It's already fully developed. And, but further, you know, there's a lot of misunderstanding about what that is. And I have personally seen instances where government agencies have required native Hawaiians on Kuliana lands, Kuliana house lots specifically, to conduct kapokite analysis over the effect their home would have on the traditional customary practices of others, which in certain circumstances didn't make any sense whatsoever, because frequently these people who are still lucky enough to have their Kuliana house lots are surrounded by non-Hawaiians. You know, most of the land around them is owned by trusts or foreign corporations or, you know, Malihini. There's no practices being taken place. And further, in the Mahele, Konohiki land was subject to the rights of native tents. House lots, Kuliana house lots worked. I mean, in order to even obtain a Kuliana house lot, you had to show exclusive possession. So to require a native Hawaiian, right, to hire a non-Hawaiian archaeologist or cultural consultant, to ask other native Hawaiian, non-native Hawaiian neighbors, the effect that their Kuliana house will have on there, I mean, makes no sense. And it just takes housing more expensive and it doesn't protect the rights that it is supposed to, you know. Yeah, you know, I think when the plantations came in, the large landowners, you know, they had to live with all these rights, Hawaiian rights and all that. So some of them, a lot of them had cleared up to the land court application process, which cleared up all title, gave them, you know, so three title. How do you see that affecting things like this? Or there's no effect? No, I think, obviously there is. I mean, if something is registered land court, that's it. There's no, whatever rights are established, whatever the ownership is established, that's established. And you know, when I tell people, you know, my friends and other people native Hawaiian community, I mean, like land court was created specifically to clear all that stuff up, right? Because native Hawaiian law and land use law and property rights is extremely complex. But, you know, time back to what was said earlier, I think that's a lot has to do with a lack of outreach and honest presentation of what the appropriate channels are and what duties and powers we have as native Hawaiians to participate and protect our resources. Like for example, you know, I'm not, I don't consider myself pro development. I mean, I, you know, my family background is it's Hawaiian sovereignty. That's what it is. And I still to this day, there's no greater historical injustice than what happens in native Hawaiians. And there's no supreme justice than the self determination of us, right? And so when I grew up and I heard like the fake state argument, right, I fully bought it. It's absolutely not true. There's no precedent for it. And a specific case ought to say that's not true. Hawaii state exists. The state of Hawaii is under the jurisdiction of the United States and the state of Hawaii. And Hawaiians are subject to their laws for better or worse. That's what it is. But before I learned that when I went to law school, I got the upside down flag tattooed on my chest. I'm not going to show it now. Did you go to Kamehameha school? 100%. But when I went to go to island school, too, I did. I did. Yeah. And but, you know, that's in line with, I think, you know, but when I went Kamehameha wasn't, I mean, people kind of chided me for being related to Hawaiian. You know, nowadays it's much further the other way. I mean, all my kids are against TMT, you know, kukia imana. And that's, that's a change. But I think that, you know, in order to go forward as a people, we need to understand what this really is. We can't fight windmills. You know, we've got to fight the real fights. We've got to margin our resources and hit those points that matter. Otherwise, we lose credibility and we create really bad case precedent, you know, against us. Yeah. Well, just a little bit more on land card, because it's another step in the bureaucracy. Some people are re-registering it now, you know, so they can do the development faster. But then you still got those cleared up rights, you know, up to that point. So they got it adjudicated before and then now they take it out, but then it's still clear. But then I think you got the, still got the gathering rights and stuff still apply, right? Oh, yeah. You know, and you know, Konohiki land for large undeveloped tracks, land that's not fully developed, that's always in play. And that's not a bad thing. It's not at all. But you know, an interesting thing about that, and I'm not going to name specifics, but you know, a lot of this old land court property, that's all old, you know, Kama'a, Ayanashirkeen family property, right? And a lot of them still hold it in a family trust or nonprofits. And they're land rich cash poor, you know, you know, these people. And if they can't use their land and develop their land beneficially, if everything they try to do gets stopped and it's too expensive for them to hold on to, they can't pay their taxes, then the only person that's going to come in and do it and buy it is going to be a billionaire, a trillionaire, you know, whomever. And that's a huge concern, you know, if, if like, you know, on Kauai, there's a one-time ag subdivision, right? You only can subdivide ag land once after 1972. Well, there's a little bit of a side to that, if you didn't maximize it. True. But, but I mean, generally speaking, right? And even if you can, large tracts of ag land got to be, I mean, maintained. Right. So, so what that means is that no local person can afford to buy a 300-acre lag parcel. Absolutely not. There's no water for that ag parcel, so it can't be farmed. And then therefore, the only person that can pick it up when these families pass away or when they have to unload the property are people that, you know, a lot of people in the state don't like. And if we're not going to put Hawaiian land and local and Hawaiian hands, well, then it's going to get picked up by other people. And these are kind of the discussions that we need to have, that, you know, we need to take pragmatic steps in order to make it to the next generation. Because otherwise, I tell you, we all get priced out, you know, and that's, that's happening right now. Yeah. So, you know, so is this still about Kamayana versus the Malihini? And are you tainted if you eat in a bit the newcomers or, you know, the foreign guys coming here? Well, you know, the history of Hawaii is coming and going, right? I mean, people talk about time immemorial and ancient Hawaiians, when really, I mean, at the oldest archaeological evidence, we're looking at, you know, 200 CE, right? 20 years, those are third century. But in the more recent anthropological studies, we're looking at 700 to 1200 CE. So, I mean, that's, we're a recent, we're a modern, you know, young population culture. And people have been coming going forever. So, I think it's more, I mean, I'm native Hawaiian. I'm not saying that native Hawaiians have land that's owed to them. We have certain political rights that are separate from anybody else. And we were entitled to an indigenous government-to-government relationship with state and feds. But I mean, we all got, you know, non-native Hawaiian relatives, parents, friends, nothing wrong with a non-Hawaiian. I mean, I like you, Dennis, you're not Hawaiian. But again, what I'm trying to encourage here is a more nuanced discussion about these things, because I know a lot of non-Hawaiians that love this culture, they love this place and they're allies. I mean, if it wasn't for Isaac Davis and John Young, yeah, John Young command me I wouldn't have won. You know, I mean, that's a fact. Yeah, but then, okay, we got a lot of accidents or whatever to say, we're losing population here. I think they only print a net, but I think there's more guys going out and then some coming in. So I think there's more going out than, you know, what the net result printed in a paper. That's, okay, about, this is a talk about DHL now. So what do you think about any thoughts on developing with DHL and spending all that money you got? 100%. So there's DHL has land and more importantly, they got one third of all water. That's $600 million now. It's $600 million, exactly. There's absolutely no reason. I know Hawaiians that are living on the beach. You mean to tell me you can't put them on a hole? Yeah. You know what I mean? I mean, they're there. You got Hawaiians in Waianae living in the bushes. They can't find any land for them. You got land. So it's doable. There's no way. I mean, there are two steps ahead of the game at the Gideon. And more importantly, we can forget that Prince Coheal put aside those lands for native Hawaiians with at least one 32nd. That's 3% native Hawaiians. The fact that 50% is there now, that's horse trading in Congress. It's amazing that he did it because in 1920s he had no vote. He was a territorial rat. So that was it. But you got to put Hawaiians on that land, man. This is our land. We deserve to live there. And also, if you did that, you'd do a huge benefit to addressing the homeless's population because oftentimes we're the ones homeless. I hear a lot of reasons why we can't, but we need solutions why we can't. You know, that's what we need. We need leadership. Okay. Thanks, Mauna Kea. Running out of time, any last words? No. I think I appreciate the time and I think that there needs to be a space for these conversations and for native Hawaiians to be people and have opinions that are more nuanced than just anti-development or, you know, one-dimensional. We're multi-dimensional people. It's a multi-dimensional culture. And these are serious questions we need to address now because there's not a future for us if we don't. Yeah. And on the other side, the developers get to, you know, have some aloha for their land. Oh, yeah. Yeah. Total. Yeah. Okay. Thanks. Mahalo to our guests, Mauna Kea Tras and the native Hawaiian perspective on the balance between land use development and native Hawaiian concerns. Mahalo to our viewers on Tink Tak, Hawaii. If you like the Tink Tak free media shows, please help support this nonprofit platform. Thank you so much for watching Tink Tak, Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram and LinkedIn and donate to us at TinkTekHawaii.com. Mahalo.