Office of U.S. Trustee vs. Harmon - Witness Malia Zimmerman

David C. Farmer, Successor-Trustee vs. Harmon

(Formerly Woo vs. Harmon & Nicholson vs. Harmon)

CV05-00030 DAE KSC

U.S. District Court For the District of Hawaii

Judges: David A. Ezra; Kevin S. Chang

—

DEFENDANT’S WITNESS

MALIA ZIMMERMAN

Investigative news reporter; Editor, Hawaii Reporter: “Freedom to Report Real News”.

Website: www.hawaiireporter.com

E-Mail: Mailia@hawaiireporter.com

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NEW DISCOVERY (09-13-08):

March 28, 2008

Following the Trail of Money,
Influence and Arrogance at the
Office of Hawaiian Affairs

By Malia Zimmerman, Hawaii Reporter

In 2005, when Hawaii Reporter questioned the spending habits of the Office of Hawaii Affairs’ elected trustees, we were immediately brushed off. Not deterred, we filed Freedom of Information Act (FOIA) requests but, in violation of Hawaii’s open government law, we never received a response. Finally with the intervention of the Office of Information Practices, the office that advocates for open government, were told we could get the information for a bargain -- a mere $11,000.

What did we want to know?

We simply wanted to follow the money.

Specifically we asked how much money OHA trustees were spending on travel and what class they traveled in (I knew they traveled in First Class because I was on a flight with several of the trustees to Washington, D.C. and while I went to coach, they went to First Class);

We asked where the trustees stayed while on their trips, for how long and at what cost; and what family members traveled with them and on whose nickel;

We asked how much they spent on advertising for the Kau Inoa campaign to get Hawaiians to sign their blood quantum registry (they sponsor numerous newscasts, most likely to the tune of millions of dollars over the last few years);

We asked how much they spent on parties under the guise of getting signatures for Kau Inoa (we’d heard they spent $60,000 on an elaborate party in Las Vegas and obtained very few signatures in the process);

We also asked how much they spent on lobbying with their D.C. firm and local lawyers, advertising and advocating for the Akaka bill and where the money was going.

In June 2006, Hawaii Reporter was the only news organization to fly to Washington, D.C. to cover the Akaka Bill cloture debate at the U.S. Capitol. Afterward, we were the only Hawaii news organization to attend OHA’s press conference, which followed the press conference by Akaka Bill opponents in the U.S. Senate.

At that press conference, I asked OHA chair Haunani Apoliona why she hadn’t responded to my FOIA requests. In front of other national media and the attorney general, she promised that OHA was working on compiling the information and would get it to me soon. I persisted but she refused to estimate how much OHA was spending on advertising, Kau Inoa and the Akaka bill, and would not answer questions about her personal expenses including her first class travel to D.C. and accommodations.

Funny, Hawaii Reporter never received that information from OHA and the more we pushed, the more OHA began to attack us in their monthly newsletter Ka Wai Ola and in press releases. OHA even sent a photographer to follow me and harass me at an Akaka Bill debate that I covered (but it was no bother -- I felt like a celebrity followed by the paparazzi). Amazing that the money that was supposed to go to Hawaiians was instead being used to pay a photographer to chase me around -- and no one seemed to care. During 2007, we renewed our call for information, but received nothing.

Then in 2008, we published a ZeroShibai.com cartoon -- “Cow Inoa” - poking fun at Apoliona, the Akaka Bill, and the Office of Hawaiian Affairs. Outraged, Apoliona lashed out, issuing a press release that called us “racist” and said Hawaii Reporter is not a real news organization. She, a state elected official -- demanded we pull the cartoon. KGMB TV covered the story, interviewing former Honolulu Star-Bulletin reporter Crystal Kua, who now works for OHA as its media spokesperson, and she echoed the same sentiments.

KGMB Reporter Lisa Kubota also interviewed me and aired four reports -- all very fair and balanced -- and in each I said the cartoon was a response to OHA’s secretive and arrogant attitude and refusal to reveal any financial information since 2005. I called OHA Hawaii’s most powerful and most secretive state agency and said no media investigate the trustees because they sponsor virtually every newscast on every local news station (KGMB’s Kubota disclosed her station takes money from OHA). I also noted that anyone who challenges OHA is deemed a "racist" (if they are non-Hawaiian) or "radical fringe" (if they are Hawaiian).

We received weeks of hate mail from people calling us all kinds of names for publishing the cartoon -- and several of them wrote to our advertisers trying to get them to cancel their ads. Some of our advertisers were threatened. We traced some of those letters back to recipients of OHA money. The national media covered the story and noted how amazing it was that a state agency was ordering us to pull the cartoon and interfering with the First Amendment.

On March 17, 2008, St. Patrick’s Day, something remarkable happened. During a joint Senate hearing at the state Capitol on the proposed $200 million ceded lands settlement, several dozen Hawaiians for more than 5 hours testified to their outrage over OHA’s representation of them. Their anger was so intense, that the very lawmakers who’d just voted to approve the settlement changed their vote and held the bill. Several Hawaiians said they distrusted OHA and did not believe the agency was representing them. Some called for an audit.

State Senators were surprised by the opposition to OHA and agreed to author a resolution calling for a fiscal and management audit of OHA.

Thursday, the Senate Agriculture and Hawaiian Affairs committee heard the measure. OHA trustees came out in strong opposition. State attorney general Mark Bennett, who commonly appears on OHA-sponsored television programs, and testifies for OHA before Congress, came out strongly against the resolution. He accused Senators of calling for the "punitive" audit in retaliation for the piece he authored with OHA trustees in one of the daily papers this Sunday critical of the Senators’ decision to hold this session the ceded lands bill that he negotiated.

But Hawaiians who endorsed the idea of an audit of OHA overwhelmed the moral indignation of OHA trustees and Bennett. Some Hawaiians even asked:

How much has been spent on OHA commercials and television shows promoting the Akaka Bill and Kau Inoa;

What about the Kau Inoa tee shirts -- how much do they cost;

And the parties OHA is throwing under the guise of promoting Kau Inoa, how much do those cost;

How much has been spent on lobbying for the Akaka Bill;

How much are the trustees spending on themselves.

One Hawaiian told Senators that he'd been told it would cost $11,000 to get the information he requested.

Senators on the committee voted unanimously to pass the audit resolution and in fact plan to strengthen the language detailing the concerns of their Hawaiian constituents.

The resolution will go to the Ways and Means committee, and there will be tremendous pressure on the members to kill it there and delay the audit. But the fact is, the tide is turning against OHA and they are now suspect.

In a Honolulu Star-Bulletin blog entry, a writer compared the current climate at OHA to the corruption at Bishop Estate a decade ago -- something I have done publicly as well. That corruption at the Bishop Estate -- which boiled down to trustees taking millions of dollars for themselves and their political cronies -- is well documented in a book called Broken Trust by University of Hawaii Professor Randall Roth and Judge Samuel King.

If history really repeats itself, OHA trustees may find themselves investigated and then ousted as Bishop Estate’s high paid trustees were a decade ago.

The lesson: Hawaii's media doesn't want to challenge the establishment, because, as with the Bishop Estate, it is more lucrative to get along.

Reform and accountability have to come from within the Hawaiian community -- the call for these is getting louder. It seems the depth of discontent is extremely severe.

Reach Malia Zimmerman, editor of Hawaii Reporter, at mailto:Malia@hawaiireporter.com

Hawaii Reporter

For more, GO TO > > > The Office of Hawaiian Affairs

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NEW DISCOVERY: December 17, 2007:

Life Cut Short by Dam Tragedy

'Watery Wall of Death' Wipes Out Dreams, Future of Kauai Families; Kauai Residents Deal with Death, Destruction Brought on by Ka Loko Dam Breach; New Ka Loko Dam Breach Action Alliance Calls for Independent Investigation

By Malia Zimmerman, Hawaii Reporter

Editor’s note: This story came after a day of interviews with several people on Kauai affected by the Ka Loko Dam break, including Bruce Fehring at his home in Kilauea, Kauai. James Pflueger, owner of the dam, and his attorney Bill McCorriston, have not returned calls to Hawaii Reporter.

Kauai, Hawaii: The most difficult part of the March 14 Ka Loko Dam Breach tragedy for Bruce Fehring to talk about is the death of his nearly 2-year-old grandson, Rowan Fehring-Dingwall, who was swept away at 5:30 on that terrible morning in what Bruce describes as a "watery wall of death."

When the sun rose just an hour later that day revealing the magnitude of the destruction that more than 300 million gallons of water from Ka Loko Dam let loose upon his family and property, Bruce learned his eldest daughter, Aurora Fehring, her husband Alan Dingwall, and their son Rowan, were missing.

Also vanished when the 118-year-old dam burst above them sending a 35-foot high, 300-foot wide, violent, muddy wave down the mountainside, was his friend, Wayne "Banyan" Rotstein, who was the caretaker for the property and a partner in a new business to locally sell produce and flowers.

Missing also were three guests staying on the Fehring property. That included Tim Noonan, a carpenter who was between jobs and living on the beach, and had been invited by the Fehring family just weeks before to stay with them. And there was Christina "Sunny" MacNees, who was thrilled to be 8 months pregnant, and excited about marrying her fiancée, Daniel Arroyo, the following weekend. Those who knew MacNees say she lived up to her nickname "Sunny" with a sparking personality and radiant features, and was ecstatic about starting a new family.

Standing on what he feels like is his personal "Ground Zero" where his home once stood, and now there is only rubble and a hint of a cement foundation, Bruce recounts the tragedy and loss. Nearby, there is a twisted white lawn chair he has never seen before, one of his rowing shelves 25-feet up in the branches of a tree, and there are piles of more than 100-year-old trees uprooted when the "tsunami from the mountain" came down upon Kilauea town and decimated everything in its path. Just below is a sea of large copper-colored boulders exposed when the raging river viciously scarred his property. Where there was a clear-flowing stream, is now an angry river of mud racing down the mountain.

And most tragic, eight people including Sunny’s soon-to-be-born baby, who in one moment vanished from his home. The home he built 19 years ago to keep his five children and grandchild safely together -- a home he opened to friends -- on land he used to farm and grow produce they sold to support the family.

Bruce’s anger and grief over what happened has led him, and several other property owners living along Wailapa Stream who were impacted by the Ka Loko Dam breach, to form the Ka Loko Dam Breach Action Alliance. The 35-plus members want to ensure that the public and law enforcement investigating the breach remember it affected real people, destroyed precious property, homes, and crops, and tore apart families forever.

The members are a wide collection of people including farmers, a retired judge, a real estate broker as well as a representative for mega movie star Bette Midler, whose property sits just across from where Bruce’s family and friends were swept to sea, he says. Bruce says, "We reached out to more people along the stream, and about 80 percent of them joined our alliance."

Most importantly, the Alliance members want to make sure that whoever is responsible for the dam breach -- quite possibly James Pflueger, who owns most of the land on which the dam sits -- is held responsible and legally liable for the havoc reaped on so many lives.

Many of the members believe it was Pflueger’s alteration of the dam and spillway that caused the reservoir to fill up with more water than the dam was ever intended to hold, water that Pflueger wished to used for recreational purposes.

These are accusations Pflueger adamantly denies in statements issued through his public relations firm and attorneys, but that is under investigation by the state attorney general and Army Corps of Engineers, whose investigators say they cannot find even a hint of a spillway.

Many of the people in the new Alliance are supporting one another, and that has helped tremendously, Bruce says. They have shared their concerns with one another, such as how the value of their property has plummeted, including property that was on the market to sell, yet their county property tax assessments that just arrived in the mail are record high and do not reflect that drop in value. Their privacy is gone, because many tall broad trees that grew along the Wailapa Stream are now vanished. There is a massive loss of soil and there are piles of rotting wood and debris everywhere. And they’ve lost their homes, but not their mortgage, and the crops they grew and sold to pay their mortgage and other living expenses are decimated.

An active real estate broker, Bruce says that there is a massive impact on the value of properties directly affected by increased noise, loss of soil and plantings and in his case, the stigma of a death scene.

In addition, there is tremendous impact to the environment all along the mountainside and down to the ocean, Alliance members say. "This is an unprecedented disaster for reef, estuary and environment," Bruce says, noting much of the property and ocean in the wall of water’s path, are under inches of silt and debris.

And there are many historical Hawaiian monuments, rare Hawaiian plants and even burial sites that also were taken out in the destruction, he says: "There is significant damage -- there is a total loss of evidence and archaeology of Hawaiian habitation in this valley."

The Alliance also plans to get active politically so the members can help ensure a tragedy like this never happens again. Part of the problem, members say, is the way dams are ranked as "high risk" or "low risk". The rating is not assigned by the condition of the dam after it is inspected, rather the national rating is set by how many people would die, or how many businesses would be swept away, if the dam breached. In Ka Loko’s case, it was rated "low risk" because there were few people living below, Bruce says, and the Department of Land and Natural Resources Director Peter Young, agrees with Bruce’s assessment.

The Alliance members also want to make sure the investigation into the dam tragedy is investigated thoroughly and properly. Members are concerned that the state attorney general’s office should not be involved in the investigation because the state Department of Land and Natural Resources is a state agency, and Peter Young, its director, admitted Ka Loko dam was never inspected even though state law requires inspections every 5 years.

Alliance members say they are concerned the state will not fairly and completely investigate its own failures, and Monday, the Alliance will hold a press conference at their "Ground Zero" and call for an independent investigation. Congressman Neil Abercrombie has requested a federal investigator take over, but U.S. Attorney Ed Kubo told Hawaii Reporter on Friday that this is unlikely to happen because the federal government has no jurisdiction. State Attorney General Mark Bennett says he will cooperate if the federal investigators take over, but says his office is able to objectively handle the case and "let the chips fall where they may."

Through the last three weeks, Bruce learned how fleeting life can be -- and how in a moment, the most precious gifts in life -- much-loved family -- can be ripped away.

Besides dealing with tremendous overpowering grief, and helping his family, including four other children, ages 12 to 22, deal with the death and destruction of family they so loved, Bruce also is facing serious financial troubles. The insurance company says it will not cover the damage to the Fehring property and homes, because it is classifying the dam breach as a "flood" rather than a dam breach. The Fehrings don’t have flood insurance because they do not live in a designated flood zone.

Unsettling is the fact that Bruce, who regularly attends grief counseling with his wife, Cindy, has never found the body of his grandson. His son-in-law was the first victim discovered, and his daughter Aurora, the last.

For now, Bruce and his family will have to cherish the memories they have.

Hawaii Reporter Story

~ ~ ~May 22, 2007

Pflueger case to test
protection of blogs

An isle Internet writer claims a
journalist's standard for secrecy

By Mark Niesse, Associated Press

A LAWYER trying to get an Internet writer to testify and turn over notes for a court case says Web bloggers should not have the same rights as mainstream reporters.

Attorney William McCorriston, in a lawsuit brought by landowner James Pflueger over the failure of the Ka Loko Dam, claims that Malia Zimmerman of Hawaiireporter.com is a blogger who is not entitled to withhold her sources of information.

But Zimmerman, an editor and reporter for the Web site, says she is a legitimate journalist, not just some hack who offers half-baked commentary on the news of the day.

"Any journalist who gives their word that they'll protect somebody's information or keep them in confidence, you have to abide by that," Zimmerman said. "It's not the medium you publish in, it's what you do with that information."

Circuit Judge Gary Chang has ordered Zimmerman to submit to questioning under oath by McCorriston, likely in June. She can refuse to answer questions, but she must explain her reasons for doing so, and the judge would later rule on whether she is justified.

Hawaii does not have a journalist shield law, like those enacted in 31 states to protect reporters' rights to keep their sources confidential.

That means there will be two issues for Chang to decide: whether Zimmerman is a real journalist, and whether reporters have a qualified privilege to refuse providing confidential information to lawyers in a civil case.

"It seems to me that if a blogger is a journalist, everyone can produce a blog and never be subject to a subpoena," McCorriston said. "Are all bloggers journalists? It's a question that's never been answered anywhere."

Hawaiireporter.com covers politics and business news, frequently from a conservative or libertarian perspective. It began publication in 2002, and Zimmerman said she does not consider it to be a blog, which generally is a Web site that posts a mix of fact and opinion.

Zimmerman is being asked to testify about her investigative reporting into the March 14, 2006, failure of Ka Loko Dam on Kauai, which unleashed a 20-foot-high wave of water that killed seven people.

Most of the land surrounding the dam is owned by Pflueger, who is suing the state and private companies over oversight of the dam. Pflueger also faces a criminal investigation and lawsuits over his responsibility for the accident.

As a consultant for ABC's news magazine "20/20," Zimmerman interviewed island residents who said Pflueger had filled in the emergency spillway with dirt. Pflueger has denied filling in the spillway, which some believe might have caused the dam to fail when heavy rain filled up the reservoir.

Her sharing of information from her sources as a consultant with ABC nullified any protection she would have as a journalist, McCorriston said.

"She's far more than a blogger. She's got an institutional publication. It just happens to come out on a computer," said Zimmerman's attorney, Jeff Portnoy, who will base his case on First Amendment rights guaranteeing freedom of the press. "She's not just sitting at home and every couple of days writing a note to people."

Zimmerman said her work for ABC was part of her legitimate journalistic role.

If she is compelled to reveal her sources, e-mails, phone records, notes and photographs, Zimmerman would be turned into a witness in the case rather than an objective observer, Portnoy said. Neither side has said what specific information Pflueger hopes to get from Zimmerman.

The courts will have to weigh how many press freedoms extend to the realm of the Internet, said University of Hawaii constitutional law professor Jon Van Dyke.

"How does she differentiate herself from the zillions of other people who use the Internet, posting things on MySpace or whatever?" he asked. "If we're going to give special protection to the press, we should have some idea of who's in it and who's not."

This case could drag on for years if Chang's decisions are appealed to the Hawaii Supreme Court, Portnoy said. Two lawsuits for wrongful death and property damage are scheduled to be heard in 2009.

http://starbulletin.com/2007/05/22/news/story09.html

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From: "Ted Hong" <frank003hi@hotmail.com>

To: “Malia Zimmerman” <malia@hawaiireporter.com

Subject: RE: fwd: Re: Freedom to Speak & Print the Truth

Date: Fri, 22 Jul 2005

Let me know when and if you want me to write a letter to this kook to tell him to back off. The fact that so many prominent people are named as "witnesses" tells me that he is a bit "loopy." Is this a Honolulu bankruptcy case? I couldn't tell. Does Jay have any information on it in the public filings section of your magazine?

>From: "Malia Zimmerman" <malia@hawaiireporter.com>

>Reply-To: Bobby Harmon <bobby_n_harmon@yahoo.com>

>To: frank003hi@hotmail.com

>Subject: fwd: Re: Freedom to Speak & Print the Truth

>Date: Fri, 22 Jul 2005 19:59:00 -0900

>-----Original Message-----

> From: Bobby Harmon <bobby_n_harmon@yahoo.com>

> Subj: Re: Freedom to Speak & Print the Truth

> Date: Fri Jul 22, 2005 7:26 pm

> To: Malia@hawaiireporter.com

> Hi, Malia,

> I am the Defendant in a lawsuit by Bankruptcy Trustee Mary Lou Woo. She is asking for over a half million dollars because I reported criminal activities to the authorities and published these allegations on the web. t's a long story, but the best place to start is probably at:

> www.the-catbird-seat.net/Claims-By-Harmon.htm.

> Then go to:

> www.the-catbird-seat.net/Woo-vs-Harmon.htm

> Your role as a witness is due to the fact that I have published excerpts from some of your articles on the website and now Woo is asking for $500 per day for each day certain sites are left on the web. As a publisher, I would like you to testify regarding First Amendment rights. After you have a chance to read some of the material on the website, please feel free to contact me if you have any further questions.

> Regards,

> Bobby N. Harmon

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January 11, 2006

A Belated Thank You to a Family Who Made a Difference

By Malia Zimmerman, Hawaii Reporter

My best friend growing up was Denise Lee. In the same class at Kailua’s Le Jardin Academy, we were always getting into trouble because we made each other laugh until our belly ached. Anything could set us off on one of our giggle fests.

A Laurel and Hardy movie at the Kaneohe Theater literally had us rolling in the aisles. Denise’s bright smile with that twinkle in her eye would get me laughing....

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http://starbulletin.com/2007/02/18/news/story05.html

www.bizjournals.com/pacific/stories/2004/02/09/focus7.html

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Malia Zimmerman is expected to testify regarding Freedom of Speech issues; specifically, would she have the right to publish any letters from Defendant expressing his personal religious, political, or social views regarding Kamehameha Schools/Bishop Estate or any of its trustees, officers, directors, employees, attorneys, independent contractors, or other parties associated with this organization? Just as important, Ms. Zimmerman is expected to testify if Defendant can provide factual information regarding alleged criminal activity to Ms. Zimmerman and her publication, The Hawaii Reporter, on a confidential basis without fear of her being forced to reveal her source.

Malia Zimmerman is also expected to testify regarding her business, professional, personal relationships with Ted Hong, Mark Bennett, Ed Kubo, James Pflueger, Peter Young, Linda Lingle, Bob Awana, and others to be named upon discovery.