Land permits bill bypasses public

Legislators are advancing a bill that effectively would shut out the public from the decision-making process in the awarding of temporary land permits by the state Department of Transportation.

Under House Bill 2408, the agency would be given the authority to unilaterally issue month-to-month revocable permits — land disposition agreements that already have come under heavy criticism at two other state agencies because of poor-management problems.

The DOT’s revocable permits currently must be approved by the state Board of Land and Natural Resources, which places such items on its agenda for regularly scheduled meetings and provides the public an opportunity to weigh in before a vote is taken.

The bill would remove BLNR from the process and authorize the transportation agency to approve the permits for temporary occupation of state land at or near local airports and harbors. The Transportation Department has issued about 200 revocable permits, mostly for uses related to airport or harbor operations.

Unlike at the departments of Land and Natural Resources and Hawaiian Home Lands, which are considering ways to reform their revocable permit systems, the DOT is not overseen by a governing board subject to the state Sunshine Law.

That means the DOT director, under the Ige administration-proposed bill, would be able to award the month-to-month permits without giving the public a say.

Opponents of HB 2408 say the proposed change would undermine transparency and public accountability, further eroding trust in government.

“This measure is asking to remove the public process, and I don’t feel that’s something we should be doing,” said Rep. Jo Jordan (D, Waianae-Makaha-Makua), one of three House members who voted against the bill when it was approved overwhelmingly by that chamber Tuesday.

Reps. Cynthia Thielen (R, Kailua-Kaneohe) and Andria Tupola (R, Kalaeloa-Ko Olina-Maili) also opposed the measure, which now goes before the Senate.

The Office of Hawaiian Affairs likewise voiced what it called serious concerns about the bill.

“It may deprive the public of any opportunity to review and comment on the use of some of our most lucrative public lands, including … lands held in trust for the benefit of Native Hawaiians and the general public,” the state agency said in written testimony to the Legislature.

But DOT spokesman Tim Sakahara said his agency believes allowing the department director to issue revocable permits is good public policy, citing several reasons.

In written responses to the Honolulu Star-Advertiser, Sakahara said state law requires the permits to be issued under conditions that best serve the state’s interest and that his agency is in the best position to determine what those are regarding transportation matters.

He also said the Legislature previously gave the DOT specific authority to manage the state’s airports and harbors, including setting terms for permits.

The proposed law would simply clarify the department’s powers regarding permits, according to Sakahara.

Concerns about transparency are lessened because airport and harbor lands are under strict oversight of federal and state laws, and the operations of such facilities do not lend themselves to the kind of public input that may be appropriate in other situations, he added.

Several airport and harbor users and organizations told legislators they supported the bill, saying the transportation agency is best suited to manage land under its jurisdiction.

Sakahara said DOT officials were unaware of any other airport or harbor in the country that solicits public feedback on “details of operation such as the revocable permit process.”

Asked why the state’s interests would be harmed if BLNR continued to oversee permit approvals, Sakahara said the delay of much-needed harbor improvements is at stake, and that any delays would directly affect the efficient movement of passengers and cargo in the islands and ultimately Hawaii’s economic foundation.

For years, the DOT has issued its own revocable permits after BLNR in 1993 delegated that authority to the agency. But a recent attorney general opinion concluded that the delegation was improper, prompting the Ige administration to seek a change in the law.

HB 2408 is advancing at the Legislature even as DLNR and DHHL are deciding how to improve their permit systems.

The push to reform the DLNR and DHHL systems came after the Honolulu Star-Advertiser exposed major flaws in how those agencies administered permits.

Even though the agreements are designed for temporary occupation of state land and the rents are discounted to reflect that, the Star-Advertiser found numerous permits that had been in place for years or even decades. In some cases, rents had not been changed since the 1990s.

The newspaper also found that neither agency had administrative rules to govern the administering of the permits, resulting in inconsistencies and allegations of sweetheart deals.

Following the coverage, the state vowed to improve the systems.

Sakahara said in his written responses that DLNR and DHHL deal with different issues, but that his agency is looking forward to what they come up with “as a way of improving our land disposition process.”

He noted, however, that his agency is eager to address reforms now and already has taken several steps toward that end, including conducting statewide appraisals of permit parcels to determine fair market values and conducting on-site inspections to ensure compliance with conditions of the agreements.

Given the complexities involved in adapting to changing market and consumer needs, particularly as land dispositions have become more flexible and innovative, the department is now pursing market-rate appraisals at its nine commercial harbors as a first step to correcting and improving the process, according to Sakahara. “This is a key component of doing the right things, the right way, for the right reasons,” he said.

But some are skeptical about removing the public from the revocable permit process.

“I strongly oppose the leasing, disposing (of) or any transfer of any state land without public hearing and review,” Hawaii island resident Toni Withington wrote in testimony submitted to the Legislature for HB 2408. “I am ashamed at the governor for introducing this. DOT can follow the rules of public disclosure and hearings like all other agencies. Bad bill. Throw it out.”