Sierra Club Appeals BLNR Decision Over Four East Maui Stream Permits
For now, the four permits granted in 2020 by the Board of Land and Natural Resources to Alexander & Baldwin and its East Maui irrigation Company so they could continue diverting 45 million gallons of water a day (mgd) from East Maui streams remain in effect, albeit with several new conditions.
After the Land Board rejected a request by the Sierra Club of Hawaiʻi for a contested case hearing on those permits, the organization appealed to the Environmental Court. In May of last year, the court ordered the board to hold a contested case hearing. In the meantime, it also limited the amount that could be diverted to 25 mgd. On May 2 of this year, the court further reduced that amount to 20 mgd, noting that the companies had not been using any more than that for months and that 5 mgd is a lot of water to be wasting.
On June 28, after holding a contested case hearing and receiving recommendations from its hearing officer, board chair Suzanne Case, the Land Board signed a decision and order upholding its earlier cap of 45 mgd.
The Sierra Club had asked for a cap of 25 mgd until the state Commission on Water Resource Management issued its decision on the group’s still-pending September 2021 petition to amend the interim instream flow standards of a dozen streams in Huelo that fed into the EMI ditch system. Those streams were not included in a CWRM order in 2018 that addressed flow standards in two dozen other East Maui streams.
Next month, commission staff members are expected to present their recommendations on the IIFS petition for those 12 streams.
The Land Board’s decision and order in the contested case hearing states, “It would be better to wait until CWRM has acted on the current IIFS petition, or at least until revised staff recommendations are available, before the Board institutes specific limits on stream diversions in the 12 streams. The Board would be shooting from the hip if it did so on the current record.”
The order notes that Maui County and Mahi Pono, which co-owns EMI with A&B, used 25.4 mgd last October, including 5.81 mgd of pumped groundwater. By the end of last year, Mahi Pono anticipated it would need 0.63 mgd more.
“As it is not clear how much water can be sustainably pumped, with a 25 mgd cap, there would be little to no additional water available for any of the plantings Mahi Pono currently planned in 2022. … Freezing Mahi Pono’s diversified agriculture farming operations would also halt any corresponding increase in employment and food security for the state that could be expected from the continued development of Mahi Pono’s operations,” the decision and order states.
It adds that the real limit to water use is that it be put to reasonable and beneficial uses, which is a condition of the permits. The permits also do not allow for any wasting of water.
Recognizing the Sierra Club’s argument that water diverted by the companies into unlined reservoirs in Central Maui is, in fact, being lost through seepage and evaporation, the board amended the permits to require a better accounting of what goes into those reservoirs.
Under the new conditions, A&B and EMI must provide the board with a list of all of its reservoirs that receive water from the permitted stream diversions, and that list must describe the capacity of each reservoir, their surface areas, what fields they irrigate, what any of them are lined with, the estimated amount of daily evaporation, the cost and time to line unlined reservoirs, and information on those that are planned to be taken out of service.
The companies, which have argued that the water in the reservoirs is needed to fight fires, must also provide the board with the number, location, timing, and approximate acreage of fires fought during each quarter using water from the reservoirs. In must also specify which of its reservoirs were tapped to fight these fires.
To get a sense of how much groundwater can be sustainably pumped to meet Mahi Pono’s needs, the companies are also required to list all of their irrigation wells and provide quarterly information on the water and chloride levels in those being used.
Finally, the board added conditions that tasked DLNR’s Division of Forestry and Wildlife staff to work with the Maui Fire Department to determine the feasibility of using ocean water to fight fires. Both DOFAW and the DLNR’s Land Division were also required to bring to the board a proposed watershed management fee and/or requirement that would be imposed on the companies before the next renewal of their permits or before a request for authorization to issue a lease at a public auction came before the board.
All seven of board members signed the decision and order, which was officially filed on June 30.
Appeal
The Sierra Club appealed the board’s decision a week later. Represented by attorney David Kimo Frankel, the group argued in its filing with the Environmental Court that both A&B and the Land Board failed to meet their burden to justify the diversion of up to 45 mgd under the permits.
It added that the Land Board breached its trust duties by increasing the diversion cap before the Water Commission set new instream flow standards and before the submission and implementation of a plan to reduce system losses to less than 20 percent. The board also breached its trust duties by allowing the base flow from the dozen Huelo streams to be taken and largely lost, the group added.
“Mahi Pono asserted and BLNR concluded that Mahi Pono will need 21.69 mgd for agriculture in 2022,” the group noted. “Mahi Pono requested, and BLNR provided, a cushion, or buffer, of an additional 4 mgd.”
Despite the permits requiring the companies to put the water to reasonable and beneficial uses, the group argued that most of the water taken from East Maui streams in 2020 and 2021 was not.
“Although given the opportunity, A&B never provided any evidence that any of the water that flowed into the reservoirs in any single day or month was actually needed and used for irrigation in that month or a subsequent month,” the group stated.
Other than 48,000 to 100,000 gallons a day used for dust control, A&B failed to prove any water in its catch-all use category of “reservoir/fire protection/evaporation/dust control/hydroelectric/ system losses,” was actually used, it argued.
In January 2020, A&B included 25.09 mgd in that category. By March of this year, that number had dropped to 5.5 mgd.
“Taking water from streams and depositing that water into reservoirs which allow most of that water to seep into the ground is not a reasonable, beneficial, or efficient use of water,” the Sierra Club stated.
It added that A&B produced no data or any expert to show how much of the water that seeps from the reservoirs reaches the aquifer below “and is actually contained in it for future use.”
The group further argued that A&B’s own final environmental impact statement on its proposed long-term water license for the four permit areas stated that the sustainable yield of the aquifer tapped by its wells is 32 mgd.
Mahi Pono pumped an average of 4.2 mgd last September and 5.81 mgd last October 2021, and “was unable to say that its pumping for groundwater in September 2021 or October 2021 had any adverse impacts,” the group stated.
“Pumped groundwater would cost Mahi Pono about 52 centers per 1,000 gallons, which is still less than farmers in Central Oʻahu pay for water from the Waiahole ditch,” it stated.
Finally, the Sierra Club argued that the Land Board failed to determine if the proposed water use abridged or denied traditional and customary native Hawaiian rights, and also that the permit conditions were poorly drafted.
The Sierra Club asked the court to reverse the decision to continue or hold over the permits for another year. It also asked the court to come up with a remedy to allow water to continue to flow to central Maui under appropriate conditions, to modify the Land Board’s decision, to remand the case with instructions, award attorneys’ fees and costs, and provide any other proper or just relief.
Seawall Case Heads to Trial Amid Attorney-Client Rift, Claims of Withheld Evidence
On August 22, a jury-waived trial was expected to begin in the state’s case against James and Denise O’Shea, and their complaint against their former neighbor, Rupert Oberlohr.
The state argues that the couple built a seawall on state land in 2017 without any government approvals after the wall in front of their Sunset Beach home failed.
The O’Sheas have argued that the wall that collapsed was built by the state and that the new wall is on their private property. They also argue that work Oberlohr did on his portion of the old wall caused it to fail.
Prior to settlement talks last year, Environmental Court Judge Jeffrey Crabtree issued an order granting in part and denying in part the state’s motion for summary judgment, which Environment Hawaiʻi reported on last November.
Although the state and the O’Sheas seem to be near a settlement, as of late last month, the parties were still arguing over the production of evidence and the O’Sheas’ attorneys had filed a motion to withdraw as counsel.
On July 29, Crabtree held a hearing on motions by the state and Oberlohr to compel the O’Sheas to provide them with a logbook James O’Shea had mentioned in a deposition. The logbook apparently contains details of what transpired around the time when the old seawall failed and other potentially relevant information.
Mr. O’Shea has refused to give the logbook to his lawyers, whose motion to withdraw as counsel was also set to be heard that day.
In the state’s motion to compel production of documents, state deputy attorneys general argued, “As discussed herein, not only should the O’Sheas be ordered to produce the logbook, they have also violated this Court’s order to produce all documents responsive to the State’s Second Request for Production of Documents. In addition to attorneys’ fees, sanctions are appropriate to correct the prejudice that would result if the O’Sheas are allowed to benefit from their refusal to produce the logbook.”
Oberlohr’s attorneys also want the logbook. And as the O’Sheas have put the home up for sale for just under $2 million, Oberlohr’s attorneys have asked for the seller’s disclosure statement. The attorneys argue in a July 26 memo in support of the state’s motion that they had sought those documents more than a month ago.
The O’Sheas’ attorneys opposed the state’s motion, asking the court to deny it until the attorneys themselves receive the documents from the O’Sheas.
“Trial is four weeks away, yet the O’Sheas’ counsel claims that neither document has been received or reviewed by Defendants’ counsel as of … July 21, 2022,’” Oberlohr’s attorneys wrote.
They added that Denise O’Shea testified that the disclosure statement “included information about the pending lawsuit and that they tried to ‘disclose … [e]very single thing we could think of.’ … [I]t is both admissible at trial as party admissions and reasonably calculated to lead to the discovery of other admissible evidence.”
With regard to the motion to withdraw as counsel, one of those attorneys, Greg Kugle of the law firm Damon Key Leong Kupchak Hastert, stated in a declaration that, “The attorney/client relationship has irretrievably broken down. As such, good cause exists for Damon Key’s withdrawal as Defendants’ counsel.”
At the hearing, state deputy attorney general Lauren Chun “placed on the record the settlement terms between the State of Hawaii and the O’Sheas, noting that the settlement is contingent upon approval by the Attorney General and the BLNR,” court minutes state.
Judge Crabtree granted the motion to compel and the requests for attorney’s fees and costs. He denied without prejudice the O’Shea attorneys’ motion to withdraw. He also bifurcated the trials. The O’Shea vs. Oberlohr trial will proceed as scheduled on August 22. The State vs. O’shea trial will be rescheduled if the settlement is rejected.
Work Proceeds on Condo In Koloa Despite Worries Over Blasting
On May 11, E Ola Kakou Hawaiʻi and Friends of Mahaʻulepu filed a motion in the 5th Circuit Court seeking a preliminary injunction to stop work on the construction of the 279-unit Kauanoe o Kōloa luxury condominium project in Poʻipū, Kauaʻi.
The community groups are concerned that the development will endanger cave wolf spiders and amphipods that they believe live in lava tubes beneath the property. They’ve also lamented that archaeological features may also be damaged or destroyed, if they have not been already.
A hearing on the groups’ motion for a preliminary injunction was held on July 20.
In an opposition memo filed July 12, attorneys for MP Elko II, LLC; Kauai Hale, Inc.; MP Financial Group, Ltd., dba Meridian Pacific; 5425 Pau a Laka LLC; and Earthworks Pacific, Inc., argued that the developers had met conditions imposed decades ago by the state Land Use Commission to protect any wolf spider or blind amphipod habitats or archaeological sites worthy of protection.
The attorneys noted that on May 9, the archaeological firm Cultural Surveys Hawaiʻi certified to Kauaʻi County officials that the property did not contain any archaeological sites that were significant or worthy of protection.
They added that biologist Steve Montgomery certified on May 12 that the property did not contain any habitats of the wolf spider or cave amphipods that were worthy of preservation.
According to Meridian Pacific vice president of construction Colin Thompson, project developers began using explosives on May 27 to prepare the ground for infrastructure. He said the blasting, as well as any grading, is expected to be completed in November.
Kauaʻi County, which is also a defendant in the case, added in its June 30 memorandum in opposition to the injunction that staff from the state Historic Preservation Division and the Division of Conservation and Resources Enforcement (DOCARE) inspected the property on June 3 to see whether any worthy archaeological sites or spider/amphipod habitats were in danger of being harmed.
On June 14, the county’s attorneys noted, the Pacific Islands Fish and Wildlife Office of the U.S. Fish and Wildlife Service informed the county that, “Everything that has been presented to us including the information from the on-site monitors, which are highly qualified individuals, and the site visit from the State’s DOCARE officer are pointing to no cave openings and no impacts to endangered or threatened species as a result of the activity at the site.”
The attorney representing the community groups argued in a July 15 memorandum supporting the injunction that Montgomery’s determination that there was no habitat on the property worthy of protection was based on coring samples that suggested there was no water beneath the surface. Water, Montgomery stated, was a necessary component of any underground habitat for the cave spiders and amphipods.
However, the groups argued that they had a witness who would testify that water in fact was found in percolation tests.
When it came time to hear the motion on the preliminary injunction, Judge Kathleen Watanabe chose not to.
According to an email to supporters, Friends of Mahaʻulepu’s Bridget Hammerquist reported, “[O]ur hearing before Judge Watanabe last Wednesday July 20 did not go well. Basically, the judge denied our right to call witnesses at an injunction hearing and is forcing plaintiffs to take deposition testimony instead. She continued all hearing dates giving the developer more time to blast and potentially cause irreparable harm to the environment….”
The hearing on the injunction has been moved to October 18, just weeks before the blasting work is expected to conclude.
Kahala Hotel Permit
On May 22, Environmental Court judge Dean Ochiai affirmed the Land Board’s November 2021 decisions to renew a revocable permit to ResortTrust Hawaiʻi, LLC for land fronting the Kahala Hotel & Resort and to deny Honolulu resident Tyler Ralston’s request for a contested case hearing.
“[Ralston’s] primary complaint with RP 7915 is that it allows [ResortTrust] to preset 70 beach chairs on the RP premises, which he claims deprives him of constitutionally-protected property interests,” Ochiai wrote.
Under a 1963 agreement, the previous owners of the hotel were allowed to create a sandy beach and swimming lagoon on state property makai of the hotel “for use and enjoyment by the public,” Ochiai stated in a footnote. Much of that beach has since been grassed over and is used by the hotel to pre-set lounge chairs for its guests.
Ochiai determined that Ralston has had ample opportunities to testify before the Land Board on the permit, and, therefore, has had ample due process.
Ochiai’s final order was issued June 17. A few days later, attorney David Kimo Frankel, representing Ralston, filed a notice of appeal with the Intermediate Court of Appeals.
—Teresa Dawson
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