Earthjustice sent a formal letter to Governor Green and the Director for the Department of Land and Natural Resources, Dawn Chang, explaining that the process for filling a vacancy on the Water Commission does not allow for a second nominating committee.  (In September, this letter was presented to the Water Commission directly as testimony).

Hawai‘i’s Water Code (Hawai‘i Revised Statutes sec. 174C, for those of you into doing your own research) requires that at least one expert – loea – in Native Hawaiian water management sits on the Water Commission at all times.  And yet, since July that seat has been vacant because Governor Josh Green, M.D. has refused to select one of the highly qualified candidates from the list of four delivered to him in February by the Nominating Committee – Aunty Lori Buchanan of Moloka‘i or Aunty Hannah Springer of Kaupulehu.

The Nominating Committee conducted 14 interviews in January and February.  They transmitted their list of 4 candidates to the Governor’s office in February.  That is what HRS sec. 174C-7(d) requires.  The relevant section in its entirety:

(d) In appointing a member to the commission, the governor shall select from a list submitted by a nominating committee. The nominating committee shall be composed of four individuals chosen as follows: two persons appointed by the governor; one person appointed by the president of the senate; and one person appointed by the speaker of the house. The committee shall solicit applications and send to the governor the names of at least three individuals for each open position.

Unlike every governor before him, Governor Green did not promptly name a nominee when he first received the list. Many months went by and not surprisingly two of the candidates withdrew their names in that time. Governor then claimed that the list of nominees is incomplete and stale, and justifies him doing the entire nomination process over again.

As Earthjustice attorney, Leinā‘ala Ley explains, “this is highly irregular.”  The Water Code enacted a nomination process specifically designed to minimize the risk of political influence tainting water management decisions in Hawai‘i.  Haw. Rev. Stat. section 174C-7 details how new members of the volunteer Water Commission are vetted and nominated.  There is no “governor do over” provision in the Water Code.  The law does not authorize Governor Green to restart the nomination process. This is the hand that Governor Green was dealt, he has to play it. There are still two highly qualified loea on the short list. Governor Green has to nominate one of them.

It remains to be seen what course of action Governor Green will choose.

After the Governor nominates a candidate for the vacant seat on the Water Commission, the Senate Water and Land Committee evaluates the nominee in a public hearing, and a public vote is held on the Senate floor to either confirm or deny the nomination.