A four-member committee charged with selecting candidates to the politically-charged water commission met once, for 45 minutes, before deciding which candidates’ names would be sent to the governor for a final decision. The members didn’t interview any of the applicants.
These details emerged during a Senate confirmation hearing Thursday for Gov. Neil Abercrombie’s final picks to the commission — Maui residents Jonathan Starr and Ted Yamamura. They still have to be confirmed by a full Senate vote.
Beyond this, the public remains largely in the dark when it comes to basic details about what transpired during the selection committee’s closed door proceeding. The water commission has been involved in controversial rulings involving the allocation of water resources between large agricultural interests and Native Hawaiians and taro farmers.
The lack of transparency about the process is fueling discontent among critics of the the selection of Yamamura, in particular. Earthjustice and the Native Hawaiian Legal Corp., among others, have argued that Yamamura, a land appraiser, does not fulfill the legal requirement that he have significant experience in water resource management.
They also argue that applicants vastly more qualified for the positions were passed over, raising questions about whether political connections were the basis for the decision making.
“This process is all the more questionable given that unambiguously qualified candidates did in fact apply, yet were passed over in favor of these nominees without any apparent rational justification consistent with the legal requirements,” wrote Isaac Moriwake, an attorney with Earthjustice, in testimony to the Senate. “Mr. Yamamura’s nomination raises further improper appearances that he was selected based not on any particular water management qualifications, but rather his political connections on the island of Maui.”
Both candidates defended their qualifications during Senate hearings, noting their experience on the Maui Board of Water Supply. Yamamura pointed out that he came from three generations of farmers, and Starr served for five years on the Maui Planning Commission.
While the list of applicants has not been disclosed, some of those not selected have confirmed that they applied for the job. And the Office of Hawaiian Affairs recommended certain candidates to the governor in December. Starr was on OHA’s list but not Yamamura. However OHA did recommend Kaeo Duarte, the water resources manager for Kamehameha Schools, the state’s largest private landowner. He received his Ph.D. in environmental engineering from the Massachusetts Institute of Technology and a bachelors degree in civil and environmental engineering from Princeton University.
Earthjustice and the Native Hawaii Legal Corp. both view Duarte as a highly qualified candidate.
Other applicants included Carl Christensen, who graduated cum laude from Harvard Law School. For four years, he worked for the U.S. Senate Committee on Indian Affairs and was a staff attorney with the Native Hawaiian Legal Corp. for 10 years.
Jonathan Likelike Scheuer also applied for the position. He holds a Ph.D. in environmental studies from UC Santa Cruz and masters in environmental studies from Yale University. He has worked on water issues in Hawaii for about two decades and served as a policy analyst and director of land management for OHA.
Just prior to the Thursday confirmation vote, Sen. Donovan Dela Cruz, chair of the Senate Water, Land and Housing Committee, called an information briefing to clarify the selection process. But afterward many questions remained unanswered.
William Aila, chair of the Hawaii Department of Land and Natural Resources and water commission, and Bill Tam, deputy director of the water commission, were called to answer a list of questions about the selection process submitted by Alan Murakami, an attorney for the Native Hawaiian Legal Corp. (See document below.)
Questions were asked about how the nominating committee evaluated the qualifications of nominees, why no interviews were conducted and how the nominating committee defined the statutory requirement that nominees have “substantial experience in water resource management.”
In response to many of the questions, the top government officials responded that they had no information or that these were questions that must be addressed to the nominating committe. While DLNR oversees the water commission and Tam explained the statute to committee members, it plays no part in the selection process and has limited interaction with members to ensure that there is no undue influence on its final decisions.
Two members of the nominating committee were at the briefing — Allen Hoe and Warren Watanabe — but they were never called on to answer questions. (The two other members were Rebecca Soon and Miles Furutani.)
Civil Beat reached Watanabe and Soon by phone on Friday, but neither would talk, citing concerns about whether they were allowed to disclose information about the meeting where the nominees were selected, which was held in executive session and was not open to the public.
“I’m not going to comment, I’m not going to answer your questions today,” said Soon.
Moriwake told Civil Beat that not asking the members questions at the hearing before Thursday’s vote was a missed opportunity.
“At the various points where DLNR said they didn’t know what the nominating committee did, there was no reason why the nominating committee members couldn’t have been called to respond,” Moriwake told Civil Beat by email. Given that the briefing notice specifically included the nominating committee members, this was another unclear and unsatisfying part of the whole ‘shibai.’”
Civil Beat asked Dela Cruz why the members of the nominating committee weren’t called upon. He said that this question was answered during the hearing and he wasn’t going to repeat it.
“What are you talking about, you were there,” he said. “Are you serious?”
During the hearing, it was made clear that the names of applicants were not required to be made public based on a two-decade old ruling by the Office of Information Practices. But it was not clear why members of the nominating committee could not discuss other details, such as how they evaluated qualification or why they didn’t interview any of the applicants. In the past, nominating committees have interviewed candidates, according to the Department of Land and Natural Resources.
Civil Beat also asked Aila for information on how many people applied to the water commission, how many people were on the list that was sent to the governor and whether the list distinguished between which candidates were meant for each seat.
The law requires that at least three candidates be selected and sent to the governor for each seat. Whether two separate lists were created has become a point of contention as one of the seats required that the nominee have substantial experience in Native Hawaiian customary practices.
By the end of the hearing, lawmakers had learned that it was Starr who had been put forward for the seat that requires specialized knowledge of Native Hawaiian practices.
After Thursday’s hearing, Aila told Civil Beat that the department must consult with government attorneys before deciding whether the information it requested would be released.
“I have the answers to your questions, but you aren’t going to like them,” he said.
“We’re going to review all of the information and talk about what is going to be released and what can’t be released.”
He couldn’t say how long this might take.
Jonathan Starr responds to a question from Sen. Carol Fukunaga about whether he had been interviewed for the post of water commissioner. Starr, who says he has applied for the position about 11 times over the years, said he hadn’t.
DLNR provided the following responses to questions from the Native Hawaiian Legal Corp. about the selection process: