At its January 24 meeting, the Land Board voted to deny — for a second time — a contested case hearing request on an item heard at its October 11 meeting.
At that October meeting, during her testimony in opposition to revocable permits that would allow Alexander & Baldwin and East Maui Irrigation Co. to continue diverting water from East Maui streams to agricultural lands in Central Maui and the county Department of Water Supply, Sierra Club of Hawai‘i executive director Marti Townsend asked for a contested case hearing.
The board voted during the meeting to deny her request and approve the permits. Even so, the Sierra Club of Hawai‘i, represented by attorney David Kimo Frankel, later submitted a written petition for a contested case hearing.
On January 24, the DLNR’s Land Division submitted a lengthy written explanation to the board about why the petition should be denied.
The division first pointed out that a trial date of May 1 had been set for a lawsuit the organization filed in 1st Circuit Court after the board denied its 2018 request for a contested case hearing on the A&B/ EMI permits.
The division then argued that the organization’s recreational, aesthetic, and environmental interests in several of the diverted East Maui streams were not “constitutionally cognizable property interests.” Neither was simply being a beneficiary of the public trust and/or ceded-land trust, it stated.
The Sierra Club did mention that some of its members draw water for farming and residential purposes from streams in the permit license areas. “While that may indicate a constitutionally cognizable property interest exists, no additional information or justification is provided beyond that general statement,” the division stated.
The division stated that the petition didn’t specify how the permits harmed the Sierra Club members’ right to a clean and healthful environment. The right to a clean and healthful environment is a constitutionally protected property interest, according to a 2017 Hawai‘i Supreme Court decision regarding a Public Utilities Commission proceeding regarding a power purchase agreement with Maui Electric Company.
The court held in that case that the Sierra Club, which sought to participate in the proceeding but was denied by the PUC, “had a substantive right to a clean and healthful environment because, in that particular instance, the right was defined by a law relating to environmental quality,” the division wrote.
Citing the Maui Electric case in its petition, the Sierra Club stated that its members have rights to a clean and healthful environment under the state constitution, “which mandates a contested case hearing whenever the state makes binding decisions under ‘laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.’”
The Land Division held a different view.
“If Maui Electric were to be read as broadly as Sierra Club suggests, it is not inconceivable that virtually everything that the Department of Land and Natural Resources does would be the subject of a contested case hearing. We do not believe that the Hawai’i Supreme Court could have intended such a Draconian result that would severely hamstring the ability of the Department of Land and Natural Resources to accomplish any action without a contested case hearing — from the mundane to the controversial — if any single member of the public would seek to object to a given action,” the division wrote.
Even if the Sierra Club had a valid property interest in this case, the division argued that ample due process had been provided via the Land Board’s public meeting in October.
“The cost for retaining hearing officers and court reporters can be thousands of dollars for even one-day contested case hearings and may go into the many tens-of-thousands of dollars. … Sierra Club has failed to justify why the Department of Land and Natural Resources should bear such costs and spend many hours of staff time on a contested case hearing of relatively limited import,” the division added.
Rebuttal
At the Land Board’s January 24 meeting, Frankel argued that the Sierra Club does have property interests that would warrant a contested case hearing.
Hawai‘i Revised Statutes 7-1, “one of the oldest laws on the books,” Frankel said, states that people shall have a right to drinking water, running water, and the right of way. “That is a right, a property interest as the Supreme Court described,” he said.
He added that the board’s decision to grant the permits last year allowed A&B/ EMI to divert 13 streams to the point where all of the water is drained from them 60 percent of the time. “That is fundamentally wrong,” he said.
Frankel argued that neither the Land Board nor the state Commission on Water Resource Management had fully examined the impacts the diversion structures have on native stream life.
Land Board member Chris Yuen asked Frankel, “If we granted the contested case hearing, what do you contemplate happening with the water in the time period between granting the petition and some decision being made? Are the diversions illegal? Can the diversions continue during that time frame, particularly with respect to the public water system and people growing crops?”
Frankel replied that the Sierra Club would never attempt to prevent the county from receiving water for current domestic purposes. However, if the contested case hearing were granted, A&B would have no legal right to take public water from public land, he said. He then reminded the board that the companies have alternative sources of water. “There is a significant amount of water that flows west of Honopou, which is the end of the [permit] area. … That water continues to be available, as well as a number of groundwater sources,” he said.
“Your position would be there could be no diversions of the license area pending the outcome of the contested case hearing without the consent from Sierra Club. That is your position,” Yuen tried to confirm.
“I think so,” Frankel replied.
Land Board and Water Commission chair Suzanne Case then argued that the commission’s June 2018 decision on the interim instream flow standards of about two dozen of the streams A&B and EMI divert did, indeed, analyze, steam-by-stream, whether the structures are impairing mauka-makai movement of organisms.
Frankel countered, “It doesn’t talk about individual structures and how they should be removed and altered.”
Even so, Case said the Water Commission is reviewing plans for removing or modifying some structures in the streams, with an eye to making sure there are migratory pathways where wildlife was considered important.
That did not allay Frankel’s concerns about animals being entrained in the diversion structures that will likely remain under the Water Commission’s approach.
He acknowledged that the Water Commission’s decisions with regard to the East Maui streams have been a huge step forward from where things were. “That doesn’t mean it’s close to where we need to be. … These streams should be free and flowing,” he said.
Case attributed her impasse with Frankel to a “philosophical difference,” and the board ultimately approved a motion by Yuen to deny the petition.
Earlier in the meeting, the board denied, also for the second time, Frankel’s request for a contested case hearing on a permit issued last year to ResortTrust Hawai‘i for use of a beachfront parcel abutting the Kahala Hotel & Resort. The Land Division offered arguments similar to those it raised against the Sierra Club’s petition.
—Teresa Dawson
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