Judge sides with cat group

LIHUE — An emailed decision from Fifth Circuit Court Judge Kathleen Watanabe says secret meetings held in 2014 and 2015 by the Kauai County-sponsored Feral Cat Task Force should have been open to the public.

It was a Sunshine Law case between the Kauai County Council and the Kauai Community Cat Project, with KCCP filing a complaint alleging the Feral Cat Task Force meetings violated the state’s open meetings Sunshine Law. They got their answer Nov. 14 via email with promise of a final summary judgment on the way.

“This was just an email to the lawyers saying that ‘based on a liberal interpretation of HRS 92,’ she would find for us. The formal decision will be published shortly,” said Basil Scott of Kauai Community Cat Project. “I think it’s a big deal. There is no case law on what happened here.”

With a summary judgment for Kauai Community Cat Project, the Feral Cat Task Force recommendations can’t be enacted.

“Throughout the almost four years of meetings, and then two years of legal proceedings, we were puzzled as to why secrecy was so important. Open meetings would have been easy with videotape recordings and posting of agendas,” Scott said. “It would have built trust in the final result.”

The Sunshine Law is Hawaii’s open meetings law, which requires discussions, deliberations, decision and actions of governmental agencies to be advertised and open to the public.

The County Attorney’s Office, which represented defendants Kauai County Council and Councilmember JoAnn Yukimura, said they’re still waiting for a final, formal decision.

“The order granting summary judgment is not the final verdict and cannot be appealed at this time,” the County Attorney’s Office said in a statement to The Garden Island regarding the case.

But, once the summary judgment itself is formally announced, the County Attorney’s Office has the right to appeal.

“The county may appeal this verdict,” Scott said. “If they do, it could go to the Hawaii Supreme Court since it establishes case law precedent on how to treat sub-committees or working groups appointed by a board subject to the Sunshine Law.”

Yukimura was brought into the lawsuit after the Feral Cat Task Force was convened in 2013 and supplied a report and feral cat management recommendations to Kauai Council in 2014. That’s when she brought together a group of community members and experts from various backgrounds to help form a bill to present to the council.

It was called the Feral Cat Ordinance Committee. Yukimura said Friday her position remains that the group didn’t fall under jurisdiction of the Sunshine Law because the committee wasn’t a board — just a group of people she gathered together to help her write a well-vetted bill to introduce to the council.

“I was the only councilmember on the board and there has to be more than two councilmembers to have a board,” Yukimura said. “It is my position that the Sunshine Law starts when you introduce a bill.”

She said she did ask the committee members to keep their discussions private if possible, to create a brainstorming session that allowed for freedom of idea exchange without judgment that could potentially hinder the process.

Yukimura also said she anticipated all of the chances for public input would have been available as the council combed through the bill, if it would have gotten off the drafting table.

The task force, made up of a collection of biologists, cultural and endangered species experts, and representatives from the Kauai Humane Society, was charged with making recommendations on managing Kauai’s feral cats.

And that’s exactly what they did, releasing 11 recommendations in a 2014 final report to the County of Kauai. It was all funded by a $30,000 grant from County of Kauai, but not all the deliberation was open to the public. The press was excluded from some discussions as well.

Members of the Feral Cat Task Force were Penny Cistaro, then-executive director of Kauai Humane Society; Norma Creps, wildlife biologist with the state Department of Land and Natural Resources Division of Forestry and Wildlife; Judy Dalton, community member and member of Kauai Community Cat Project; Keren Gunderson, then-project manager of Kauai Invasive Species Committee; Moksha McClure, president of Whiskers Resort; and Makaala Ka‘aumoana of Hui Hoomalu I Ka Aina and Hanalei Watershed Hui.

The first of the 11 recommendations from the task force was to set a goal of having zero feral, abandoned or stray cats on Kauai by the year of 2025.

Other recommendations were to strengthen the cat licensing ordinance; identify sensitive wildlife habitats and cultural areas; prohibit feeding, sheltering or maintaining cats on county owned or managed property; requiring sterilization for all cats allowed outdoors; and implementing a public education program.

The task force also recommended a robust trap, neuter, return and manage program with eventually all cat colonies restricted to fenced, registered spaces on private property. Cats in areas not recognized as TNRM colonies would “be removed by trapping” under the trap, adopt or euthanize section of the recommendations.

After the task force convened, Yukimura brought many of the same people together for her committee. They started to look at the recommendations and tried to draft a bill to present to the County Council.

Scott was one of many community members pulled into some meetings as a resource, but he wasn’t allowed in all the meetings and saw a problem with county-sponsored secret meetings.

He wasn’t the only one.

“Kauai Cats and its lawyers saw this case as bigger than the cat issues,” Scott said. “Transparency is fundamental in a representative government. Citizens need to know how effectively government works, how fair it is, and if government is implementing the true will of the people.”

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Jessica Else can be reached at 245-0452 or jelse@ thegardenisland.com.