“The count as it stands is zero for four,” said Isaac Moriwake, an attorney with the environmental law firm of Earthjustice. Moriwake made the comment in reference to the track record racked up by the state Commission on Water Resource Management in appeals of its decisions to the Hawai`i Supreme Court.
“The consistent theme is, the commission is not doing enough to safeguard the public trust,” Moriwake added. “These four cases make clear the framework the commission is supposed to follow. It’s a demanding task, but it’s not impossible. It does require vision and commitment. The commission just has to get out there and do its constitutionally, statutorily mandated mission.”
Moriwake’s views are shared by several others who follow the commission’s work closely. In interviews with Environment Hawai`i, nearly all expressed frustration with the agency’s inaction and delays on numerous pending petitions and its failure to protect what one described as the state’s “most precious resource.”
Ken Kawahara, appointed recently to be executive director of the commission (and deputy director of the Department of Land and Natural Resources), said that he was trying to arrange to have the attorney general’s office brief commissioners on the meaning and impact of the latest Supreme Court decision.
No Priorities, No Action
“They just don’t get it,” said Alan Murakami of the Native Hawaiian Legal Corporation, a firm that has represented Hawaiian claimants before the commission on many occasions.
“We have had a petition to amend instream flow standards for 27 streams along the East Maui coast pending since June 2001,” he said. “And the commission has done absolutely nothing about it. In fact, for several years, the staff apparently lost the petition. It didn’t even show up on its website until after we asked about it.”
“It could be a lack of staff,” Murakami said, “but when you don’t have any set priorities, you don’t get action.”
The commission has amended interim instream flow standards for just two streams, he noted: Waiahole on O`ahu, as a result of the long (and still ongoing) contested case hearing, and Waiakamilo in East Maui – “after the Board of Land and Natural Resources grudgingly gave relief to our clients,” Murakami added.
As the court noted in practically every decision, he said, “the commission’s role is supposed to be much more affirmative than what they’ve interpreted it to be over all these years – not only with regulatory functions, but also with planning functions.”
“The state water plan is supposed to be at the base of every regulatory function,” he said. “Without a plan, you can’t start with anything, you have no goals to direct where you are going, and you end up making ad hoc decisions without any plan in mind.” Revisions to the state Water Plan, which was adopted by the commission in 1990, have been a work in progress by commission staff for more than a decade.
“So nothing happens. They plan, they strategize, they meet, they publicize, and then nothing happens,” Murakami said.
Lessons Unlearned
Another source, who asked that he not be identified, made a similar observation.
“What are the commission members doing?” he asked. “Are they listening to contested cases, or just coming to meetings every few weeks?” He noted that in recent months, the commission agendas have been “incredibly thin,” adding: “Drilling permits should be handled by the director. The commission should be addressing policy.”
With respect to the Supreme Court decisions, the commissioners “didn’t learn the lessons of Waiahole,” he said. “They haven’t taken seriously the fact that the language in the Water Code says what it says. They think they can finesse it.”
In the case of the two Moloka`i cases, the commissioners simply adopted the recommended findings of the hearings officers. “There’s an understandable tendency to accept the hearing officers’ reports somewhat uncritically. That’s just a reality,” he said. “So there’s a reluctance to re-examine the entire record and rewrite portions of the findings.”
The Water Commission staff “has been pretty good,” he added, “but at the commission level, because the issues are so complex, commissioners just haven’t delved into the technical working of the code. It requires a lot of very careful reading, and they just haven’t done it.”
The consequences are costly – to the parties who first go through the years-long contested case process, and then through even more years of appeals to the Supreme Court, which has its own inscrutable timetable. As one attorney noted, both the Moloka`i cases decided by the court were brought before it at roughly the same time, yet one was decided more than three years before the other.
“If we have to go through a decade of litigation in every important case, that’s not going to work,” said Moriwake. “It’s clear that when the Legislature created this agency, they said, ‘we don’t want a crisis management agency, we want a forward-looking agency that plans well ahead of time, before these crises arise.’ The Supreme Court in the original Waiahole case recognized the commission as the ‘primary guardian’ of public rights under the public trust, which demands ‘openness, diligence and foresight commensurate with the high priority these rights command.’”
“In 2004,” said one commission observer, “Waiahole II was remanded. And now Waiahole is on its third appeal to the court. To think that this thing has been going on since 1993 – 15 years now, and it’s still not resolved completely! It does not send a good message as far as whether the commission can fulfill its mission of efficiently and effectively managing our most precious resource.”
But Kawahara, the commission’s executive director, is hopeful. “A lot of these things took place before I came on board,” Kawahara said “I’m doing research right now, to understand what went on. Just from an initial review, it seems a lot of the actions taken by the commission were consistent, and at the time the decisions were made, the commission didn’t have the benefit of knowing what the Supreme Court’s opinion would be.
“If the commission knew then what they know now, possibly they could have come to different decisions,” he said. “The important thing is to try to learn where there was a difference in opinion” between the court and the commission, “and in future actions, make sure those lessons are learned.”
On the Web: The Water Commission must file an annual report to the Legislature on the status of its efforts to identify and protect important streams. The most recent report, prepared in November 2007, is available online: [url=http://www.hawaii.gov/dlnr/cwrm/reports/CW2008_IDofRivers.pdf]http://www.hawaii.gov/dlnr/cwrm/reports/CW2008_IDofRivers.pdf[/url]
The report includes a status report on some of the issues mentioned in this article.
— Patricia Tummons
Volume 18, Number 8 February 2008
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