Maui Hawaiian and Environmental Groups Call on Mayor Victorino to Rescind Fast Tracking of Shoreline Development Approvals

News Release from Law Office of Lance Collins, June 3, 2020

Wailuku, Maui -- Numerous Hawaiian and environmental groups are calling on Mayor Victorino to rescind his "directive" to fast track shoreline development approvals as being outside of his powers and otherwise illegal.

On May 30, Mayor Victorino issued a directive indicating certain shoreline (Special Management Area or SMA) development approval requests will be reviewed within fifteen days or be automatically approved.

The groups assert:

(1) that the Charter assigns no authority over the Special Management Area to the mayor,

(2) that the governor's Eighth Supplemental Proclamation does not authorize the mayor to take this action,

(3) that the governor's Eighth Supplemental Proclamation does not waive provisions of the State Constitution related to the protection of the environment, the public trust, or Hawaiian traditional rights - all of which may be impacted by shoreline area uses, and

(4) that the governor's Eighth Supplemental Proclamation itself is defective.

In sum, the directive lacks legal authority to do what it claims to authorize.

This Special Management Area was created by state law to implement the federal Coastal Zone Management Act which is to protect the shoreline and its adjacent waters. Under the Maui County Charter, the Maui Planning Commission is the designated authority over all matters related to the Coastal Zone Management Act. The Maui Planning Commission has delegated some of its authority to the Planning Director by administrative rule.

"These groups support County efforts to assist small, local businesses deal with the impacts of COVID-19. On the the hand, the County do so in a lawful way ensuring our resources and practices are given adequate protection." said Lance D. Collins, the groups' attorney.

The Maui community groups are Ho‘oponopono o Mākena, Ka Malu o Kahālāwai Mālama Kakanilua,  Nā Mamo Aloha ‘Āina o Honokōhau,  Nā Papa‘i Wawae ‘Ula‘ula, Save Olowalu, Sierra Club, Maui Group, and West Maui Preservation Association.

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PDF: Letter to Victorino  

Excerpt from the letter …

4. The Eighth Proclamation is unlawful to the extent that it suspends HRS chapter 205A in the ways interpreted by the Directive.

The Directive apparently interprets the Eighth Proclamation as suspending HRS chapter 205A requirements such that SMA minor permits may be approved by default if not addressed within fifteen days. To the extent the Eighth Proclamation suspends HRS chapter 205A to allow the Office of the Mayor to issue the Directive, the Eighth Proclamation itself is unlawful.

First, the continuation of the Governor’s exercise of emergency law-making powers for over three months after the legislature continues in session, and has reconvened from an extended recess, is not warranted under our law. The Hawai‘i constitution vests the legislative power in the legislature and does not permit a statute to be passed which gives the governor unlimited, indefinite powers to rule by decree -- especially when the legislature is in session, quorum was present, and has taken legislative action. That is, the legislature could not have passed a law, including HRS chapter 127A, delegating law-making authority to the governor for an indefinite period of time when it is in session and capable of meeting (or actually meeting, as is now the case).

The need for the governor to take immediate action in light of the declared emergency is a warrant for taking such action. But it is also its limit. To allow the governor to indefinitely rule by decree where the legislature is not only in session but actually convening and taking floor votes on legislation is a patent and unjustifiable violation of the separation of powers and constitutes “a gross usurpation of power.” Duncan v. Kahanamoku, 327 U.S. 304, 326 (1946) (“As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power.”) quoting Court in Ex parte Milligan, 4 Wall. 2, 127, 18 L. Ed. 281 (1866).

Furthermore, the Eighth Proclamation has two further infirmities which call its legality into question. First, the power of statewide coordination under HRS §127A-13(a)(5) does not confer on the governor the power to suspend the provisions of Chapter 127A, HRS, itself, to confer powers not granted in the statute, or to reassign the powers of the governor to the mayor or other persons. HRS §127A-11. Second, requiring the mayor to obtain the approval of the adjutant general of the Hawai‘i Department of Defense is in direct conflict with the requirement of Article I, Section 16 of Hawai‘i Constitution: “The military shall be held in strict subordination to the civil power.”

We call on the Mayor to rescind May 30, 2020 Directive as soon as possible and for no SMA actions to be taken pursuant to its unlawful procedures….

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Maui Co News Release: "Initial Special Management Area application review will be completed in 15 calendar days or the application will be considered approved or an exemption or minor permit will be issued."