Trail Contract: After a jury found in April 2014 that the state — not Haleakala Ranch Company — owns the historic Haleakalā bridle trail, plaintiff David Brown, the executive director of Public Access Trails Hawaiʻi, stated,“We have a moral obligation to protect Hawai‘i’s past, including its rich history of trails. The longer we wait to protect Hawai‘i’s cultural legacy, the greater the risk it will be lost forever for generations to come.”
More than a decade later, the trail is finally being surveyed and marked by a state contractor, as required by a stipulation filed with the 2nd Circuit Court in July.
On September 9, the state Department of Land and Natural Resources entered into a $71,562 contract with R.M. Towill Corporation for the work. The contract start date was September 26. The company is to complete the work by December 15.
Under the contract, R.M. Towill will survey the metes and bounds identified in the final judgment in the lawsuit brought by PATH and Brown in 2011 and recorded in the Bureau of Conveyances on August 11, 2016.
The company will also be required to mark the trail “using durable markers in their professional discretion consistent with standard surveying practices,” the contract description states.
As we reported last month, PATH attorney Mike Biechler stated that his client’s position is that “pedestrians must be allowed access and not be prohibited by a private company [Haleakala Ranch Company] from accessing public lands, that the state cannot allow HRC to prevent public pedestrian access, and that the HRC has de facto retained private ownership of the trail despite the previous court judgment.”
East Maui Permits: On September 5, the Hawaiʻi Supreme Court found in favor of the Sierra Club of Hawaiʻi in its appeal of the state Board of Land and Natural Resources’ November 2020 approval of water diversion permits to Alexander & Baldwin and East Maui Irrigation Company, as well as the board’s rejection of the group’s request for a contested case hearing on those permits.
The Environmental Court had found that the Sierra Club was entitled to a contested case hearing and reduced the amount of water that could be diverted from East Maui streams under the permits pending the remand to the Land Board. The court also awarded the Sierra Club’s attorney’s fees and costs.
Last year, however, the ICA found that the group was not entitled to a contested case hearing or attorney’s fees and costs and that the Environmental Court lacked the authority to modify the permits.
After hearing oral arguments from Sierra Club attorney David Kimo Frankel about how important it was that it be allowed to cross-examine witnesses about new information and representations made to the Land Board, the high court found that the Sierra Club should have been given that opportunity.
The court noted that prior permits to the companies, as well as those for 2021 diversions, contained a condition that there be no water waste and all water diverted “shall be put to beneficial agricultural use or municipal use.” That condition, they stated, contrasted with the Land Board’s new condition for the 2021 permits that “[s]ystem losses and evaporation shall not be considered as a waste of water,” and that this “bears examination.”
“[I]t is unclear from the record how water waste for 2020 was no longer considered water waste for 2021. This change in the definition of water waste alone weighs in favor of additional and meaningful process subsequent to the bench trial relating to the 2019 and 2020 RPs, in contrast to the procedure actually afforded Sierra Club at the November 2020 public meeting. …
“Sierra Club further asserts that the 45 mgd rate of water BLNR approved for A&B to divert with the 2021 RPs was not commensurate with the actual water use data submitted by A&B in its quarterly reports to the agency. The record supports and bears this out.”
The court concluded that the government’s burdens to hold a contested case hearing “in this matter can be reasonably mitigated … and do not outweigh the additional protections a contested case would provide to Sierra Club.”
The high court also ruled that the Sierra Club’s constitutionally protected property interest in a clean and healthful environment was defined by the Coastal Zone Management Act, Chapter 205A of Hawaiʻi Revised Statutes, as well as state laws regarding Land Board permits and environmental review. The ICA had found that only HRS 171-55, relating to land dispositions, and Chapter 343, relating to environmental impact disclosures, applied.
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