Kauaʻi Water Decision: On September 30, the Hawaiʻi Supreme Court ruled that the state Board of Land and Natural Resources should not have denied contested case hearing requests by Kia‘i Wai O Wai‘ale‘ale and Friends of Māhāʻulepū over revocable permits allowing the Kauaʻi Island Utility Corporation to continue diverting water from Waiʻaleʻale and Waikoko streams in 2021 and 2022.
The high court also found that the Environmental Court, which had ruled in the groups’ favor, had the authority to review the Land Board’s approval of the permits.
After KIUC’s 2022 permit expired, the utility did not seek another one to continue diversions. Even so, Environmental Court Judge John Tonaki found in May 2023 that the groups’ complaint was not moot and that they should have been granted a contested case hearing. He also vacated the permit approvals for 2021 and 2022.
The Intermediate Court of Appeals reversed Tonaki’s decision in July 2024, finding that the appeal was moot and no exceptions to the mootness doctrine applied.
The Hawaiʻi Supreme Court reversed the ICA, upholding Tonaki’s ruling.
The Land Board’s attorneys had argued that even if the court determined that the groups had actual or threatened injuries, they still lacked standing because their alleged injuries could only be redressed by the Commission on Water Resource Management, which determines the minimum amount of water that must be left in streams.
“The board asserts that it is not ‘regulating water use when it’ continues a revocable water permit under [Hawaiʻi Revised Statutes] § 171-55, but is simply carrying out ‘a mechanism by which the state may charge rent for use of public trust resources,” the high court noted. “Under this argument, the board seeks to be absolved of its responsibility and authority over permits and conditions which it issued … and also its constitutional obligations as trustee of the state’s public trust resources.
“We agree with petitioners that such an argument cannot stand,” the court wrote.
The high court remanded the case back to the Land Board for a contested case hearing.
“The contested case hearing should address petitioners’ claims that permit conditions were violated prior to issuance of the 2021 RP and 2022 RP — including the alleged resulting disrepair or degradation of improvements under the permit and the alleged diversions of water or waste — and the asserted impacts on petitioners’ property interests. The board should require actions by KIUC that the board would have required before issuing the 2021 RP and 2022 RP after a contested case hearing, to address prior violations of permit conditions and the resulting harms to petitioners,” the opinion states.
DBCP Case Update: Ten years ago, the state Supreme Court ruled that a 1997 lawsuit brought against Dole Food Company, Inc., Del Monte, Shell Oil, Dow Chemical, and several other companies by workers in Central America exposed to the pesticide DBCP could proceed in state court. The workers alleged that they were harmed by exposure to DBCP, which continued to be used for years in Central America plantations even after its use was banned in the United States.
It took another seven years for 1st Circuit Judge Gary W.B. Chang to dispose of the workers’ claims, granting the defendants’ motions for summary judgment individually for each of the defendants and, finally, for the group as a whole.
The case then moved to the Intermediate Court of Appeals, which issued its 31-page memorandum opinion on September 22.
After reviewing the case history and the findings of Chang with respect to the individual plaintiffs, the ICA went on to consider the plaintiffs’ points of error. While rejecting several of them, it found that the lower court did err by not allowing testimony of an expert in toxicology and excluded testimony and statements from some of the plaintiffs. The case was then remanded back to the lower court.
Environment Hawaiʻi reported extensively on this and related litigation in September 2014.
A Correction: Our September Board Talk reported testimony that little fire ants had been introduced into Upper Limahuli Valley by a contractor for the National Tropical Botanical Garden. Little fire ants “have not been detected in any part of Limahuli Valley, or in the contractor’s fence construction materials. However, numerous biting ants were found in the material storage area and a NTBG staff inspecting the site was severely bitten while taking samples of the ants, which prompted the biosecurity concern,” according to Uma Nagendra, Conservation Operations Manager for Limahuli Garden and Preserve, National Tropical Botanical Garden.
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