A view from the navigational heiau at Māhukona shows a pavilion in the distance that was built in anticipation of a subdivision, as well as heavy equipment for construction. - Photo: Courtesy of Kanoa Withington, The Kohala News

By David Kimo Frankel / Staff Attorney, Native Hawaiian Legal Corp.

The Native Hawaiian Legal Corporation represents Maika'i Kamakani 'O Kohala in its efforts to protect the cultural and natural resources of Māhukona on Hawai'i Island. Māhukona has been a development battleground since the early 1990s. Back then, Chalon International of Hawai'i Inc. proposed building a hotel, golf course and residential subdivision at Māhukona. Citizens sued and successfully stopped the project.

Now, the ironically named Kohala Preserve Conservation Trust, LLC, a Delaware corporation, proposes to build a 53-lot luxury subdivision including a 14.3 acre resort. The developer is arguing that its subdivision was automatically approved by the County. Maika'i Kamakani 'O Kohala and its ally Kamakani 'O Kohala 'Ohana are arguing to the Third Circuit Court that the subdivision is not legal.

Historic resources: Māhukona is filled with numerous archaeological features including heiau, burial sites, and ko'a. A provision of the county's zoning code applicable to Māhukona states that "no land alteration can occur in the project area until at least the data recovery fieldwork and interim protection measures or approved phases thereof are verified to be successfully executed." The State Historic Preservation Division wrote – just as construction of hotel rooms began last year – "We would like to strongly request that no action be taken on this proposal at this time. As shown on the revised preliminary plat map, numerous archaeological sites are known on these parcels; however, we have not received a preservation plan for them."

Traditional and customary practices: Traditional and customary practices are clearly associated with these archaeological features. The Hawai'i Supreme Court has made it crystal clear that the government must assess and protect traditional and customary practices. The County's new general plan requires a study of the significant cultural, social and physical impacts of large developments prior to approval. Yet, neither the developer nor the County completed such a study. County officials completely failed to consider the impact of this development on Native Hawaiian traditional and customary practices.

Coastal water quality: Similarly, County officials failed to consider the impact on, or take any steps to protect, coastal water quality. According to the Supreme Court, the County has a public trust duty to protect the water quality adjacent to land proposed for development. Over a decade ago, the County Council required a water quality monitoring plan "prior to commencement of any portion of the proposed development" at Māhukona. Nevertheless, construction began before the developer had submitted an updated and monitoring plan. Furthermore, county officials never assessed the project's impact on marine life.

Natural beauty: The County general plan requires the protection of "views of areas endowed with natural beauty by carefully considering the effects of proposed construction during all land use reviews." The general plan identified Māhukona area (and the specific parcel being subdivided) as an example of natural beauty to be protected. Yet, no county officials ever considered the impact of this resort on the scenic coastal quality of the area.

Information prior to decision making: Without necessary information, government officials cannot make informed decisions. So, how was this development approved when government officials have no idea how the developer will deal with its sewage and storm water runoff? The subdivision control code requires developers to provide this information. State law requires a development like this to prepare an environmental assessment or environmental impact statement – just like the Superferry. But officials ignored these requirements.

Hawai'i county officials have failed to fulfill their responsibilities to Native Hawaiians and the general public at Māhukona.

David Kimo Frankel is a staff attorney with the Native Hawaiian Legal Corporation. Find out more about the NHLC at nhlchi.org