The controversy surrounding Gov. Neil Abercrombie‘s nominees to a commission that wields significant power over Hawaii’s water resources continues, with critics charging that the two candidates don’t fulfill qualifications mandated by law.

Jonathan Starr and Ted Yamamura are likely to run into resistance during their Senate confirmation hearing on Thursday.

Yamamura, a Maui land appraiser, is expected to face the stiffest resistance. Attorneys at both the Native Hawaiian Legal Corp. and Earthjustice are opposing his confirmation saying that he doesn’t have sufficient experience in water resource management. Both law firms are involved in heated legal cases surrounding water rights on Maui.

Yamamura has “demonstrated neither the acuity needed to serve in this (water commission) position, nor the sensitivity to Hawaiian water rights that are so predominant in this area of resource regulation,” Alan Murakami, an attorney with the Native Hawaiian Legal Corp., told Civil Beat by email. “The ignorance of the law such an appointment would perpetuate is the last thing this State needs.”

Yamamura could not be reached for comment. But Jim Boersema, a spokesman for Abercrombie deflected the criticism.

“They criticize every nomination — there’s always someone that doesn’t agree,” he said. “It doesn’t matter what it is, there’s always someone with a different opinion or attitude.”

Abercrombie announced the nominees last month. But the entire selection process has been riddled with delays and missteps.

The governor’s last nominee, Glenn Hong, the president of Young Brothers, the state’s main shipping company, stepped down shortly after his nomination was announced following criticism that he was not qualified for the position.

And one of the two seats has been vacant for about a year — the search process was reopened twice.

Yamamura has been a land appraiser on Maui for three decades. He’s served on the Maui County Board of Water Supply since 2008 and was a member of the Hawaii Board of Land and Natural Resources from 2001 to 2006.

But Murakami said that Yamamura’s experience on the Board of Water Supply was advisory and that he had little experience in the actual management of water resources. He also criticized decisions that Yamamura was involved in while on the Board of Land and Natural Resources, which he says favored Alexander & Baldwin’s diversion of water on Maui for its large-scale agricultural operations. The Native Hawaiian Legal Corp. has been involved in a decade-old legal battle to stop Hawaii Commercial & Sugar Co., a subsidiary of Alexander & Baldwin, from diverting water from east Maui streams for sugar cultivation, something that has disrupted taro farming.

Starr’s nomination is also raising concerns. He was one of five people recommended by the Office of Hawaiian Affairs for the position in a letter to the governor in December. He served for four years on the Maui Board of Water Supply and five years on the Maui Planning Commission.

But Starr must meet a particularly high bar when it comes to qualifications. He was nominated to fulfill the seat on the commission that requires extensive experience in Native Hawaiian customary practices.

Specifically, he must have the following experience, as outlined by state law:

Such traditional and customary rights shall include, but not be limited to, the cultivation or propagation of taro on one’s own kuleana and the gathering of hihiwai, opae, o`opu, limu, thatch, ti leaf, aho cord, and medicinal plants for subsistence, cultural, and religious purposes.

Murakami said that while Starr was likely qualified for a general seat on the commission, he lacked the experience to fulfill that particular seat. And he said that he it was “particularly galling” that Starr was picked over applicants who he says were much more qualified.

But Starr, who moved to Hawaii from New York City 22 years ago, vigorously defends his expertise when it comes to Native Hawaiian customs.

“I have physically worked in kalo lo’i and maintained ‘auwais, and helped to create new opportunities for taro cultivation at various times in my life. I have lived for decades along the wild streams of East Maui, and been taught to gather resources from the streams and land and ocean by my Hawaiian kupuna and neighbors in Kaupo,” he told Civil Beat by email. “I have been responsible for the continuance of traditional harvesting and reforesting by youth of Maui’s Canoe Clubs, of koa canoe logs, which are being raced traditionally throughout Hawaii.”

This is the 11th time that he has applied to the water commission.

While Abercrombie’s picks have raised concerns, so have the actions of the four-member nominating committee. The committee is required to choose at least three applicants and forward their names to the governor who makes the final decisions. Some critics say the committee has ignored more qualified applicants.

But the process has not been transparent. Neither the commission nor the governor’s office will disclose the names of those who have applied. And most commission members won’t return phone calls asking about the process and the concerns.

“Neither the governor or his nominating committee has made the nominations list public,” Murakami said. “So I don’t know if the committee ignored this or put them on the list. Or whether they did and the governor ignored it and bypassed them for this appointment.”

The governor’s office and the Office of Information Practices has said that the applicants to the commission, positions that are unpaid, are not required to be made public — something Murakami called “outrageous.”

An informational briefing is scheduled for Thursday just before the hearing.

Sen. Donovan Dela Cruz, who chairs the committee, said that such informational briefings were common and that he supported both Starr and Yamamura and believed that they met the legal requirements for their positions.

“Members of the committee or Senate concerned about whether names were on or not on the list given to the governor are more than welcome to ask the (nominating committee) at the hearings,” he said.

About the Author