\u201cThe count as it stands is zero for four,\u201d 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.<\/p>\n
\t\u201cThe consistent theme is, the commission is not doing enough to safeguard the public trust,\u201d Moriwake added. \u201cThese four cases make clear the framework the commission is supposed to follow. It\u2019s a demanding task, but it\u2019s not impossible. It does require vision and commitment. The commission just has to get out there and do its constitutionally, statutorily mandated mission.\u201d<\/p>\n
\tMoriwake\u2019s views are shared by several others who follow the commission\u2019s work closely. In interviews with Environment Hawai`i<\/i>, nearly all expressed frustration with the agency\u2019s inaction and delays on numerous pending petitions and its failure to protect what one described as the state\u2019s \u201cmost precious resource.\u201d<\/p>\n
\tKen 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\u2019s office brief commissioners on the meaning and impact of the latest Supreme Court decision.<\/p>\n
No Priorities, No Action<\/b><\/i>
\n\u201cThey just don\u2019t get it,\u201d said Alan Murakami of the Native Hawaiian Legal Corporation, a firm that has represented Hawaiian claimants before the commission on many occasions.<\/p>\n
\t\u201cWe have had a petition to amend instream flow standards for 27 streams along the East Maui coast pending since June 2001,\u201d he said. \u201cAnd the commission has done absolutely nothing about it. In fact, for several years, the staff apparently lost the petition. It didn\u2019t even show up on its website until after we asked about it.\u201d<\/p>\n
\t\u201cIt could be a lack of staff,\u201d Murakami said, \u201cbut when you don\u2019t have any set priorities, you don\u2019t get action.\u201d<\/p>\n
\tThe 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 \u2013 \u201cafter the Board of Land and Natural Resources grudgingly gave relief to our clients,\u201d Murakami added.<\/p>\n
\tAs the court noted in practically every decision, he said, \u201cthe commission\u2019s role is supposed to be much more affirmative than what they\u2019ve interpreted it to be over all these years \u2013 not only with regulatory functions, but also with planning functions.\u201d<\/p>\n
\t\u201cThe state water plan is supposed to be at the base of every regulatory function,\u201d he said. \u201cWithout a plan, you can\u2019t 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.\u201d 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.<\/p>\n
\t\u201cSo nothing happens. They plan, they strategize, they meet, they publicize, and then nothing happens,\u201d Murakami said.<\/p>\n
Lessons Unlearned<\/b><\/i>
\nAnother source, who asked that he not be identified, made a similar observation.<\/p>\n
\u201cWhat are the commission members doing?\u201d he asked. \u201cAre they listening to contested cases, or just coming to meetings every few weeks?\u201d He noted that in recent months, the commission agendas have been \u201cincredibly thin,\u201d adding: \u201cDrilling permits should be handled by the director. The commission should be addressing policy.\u201d<\/p>\n
\tWith respect to the Supreme Court decisions, the commissioners \u201cdidn\u2019t learn the lessons of Waiahole,\u201d he said. \u201cThey haven\u2019t taken seriously the fact that the language in the Water Code says what it says. They think they can finesse it.\u201d<\/p>\n
\tIn the case of the two Moloka`i cases, the commissioners simply adopted the recommended findings of the hearings officers. \u201cThere\u2019s an understandable tendency to accept the hearing officers\u2019 reports somewhat uncritically. That\u2019s just a reality,\u201d he said. \u201cSo there\u2019s a reluctance to re-examine the entire record and rewrite portions of the findings.\u201d<\/p>\n
\tThe Water Commission staff \u201chas been pretty good,\u201d he added, \u201cbut at the commission level, because the issues are so complex, commissioners just haven\u2019t delved into the technical working of the code. It requires a lot of very careful reading, and they just haven\u2019t done it.\u201d<\/p>\n
\tThe consequences are costly \u2013 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.<\/p>\n
\t\u201cIf we have to go through a decade of litigation in every important case, that\u2019s not going to work,\u201d said Moriwake. \u201cIt\u2019s clear that when the Legislature created this agency, they said, \u2018we don\u2019t want a crisis management agency, we want a forward-looking agency that plans well ahead of time, before these crises arise.\u2019 The Supreme Court in the original Waiahole case recognized the commission as the \u2018primary guardian\u2019 of public rights under the public trust, which demands \u2018openness, diligence and foresight commensurate with the high priority these rights command.\u2019\u201d<\/p>\n
\t\u201cIn 2004,\u201d said one commission observer, \u201cWaiahole 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 \u2013 15 years now, and it\u2019s 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.\u201d<\/p>\n
\tBut Kawahara, the commission\u2019s executive director, is hopeful. \u201cA lot of these things took place before I came on board,\u201d Kawahara said \u201cI\u2019m 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\u2019t have the benefit of knowing what the Supreme Court\u2019s opinion would be.<\/p>\n
\t\u201cIf the commission knew then what they know now, possibly they could have come to different decisions,\u201d he said. \u201cThe important thing is to try to learn where there was a difference in opinion\u201d between the court and the commission, \u201cand in future actions, make sure those lessons are learned.\u201d<\/p>\n
On the Web: <\/b><\/i>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]<\/p>\n
\tThe report includes a status report on some of the issues mentioned in this article.<\/p>\n
— Patricia Tummons<\/p>\n
Volume 18, Number 8 February 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
“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 … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[166,28],"tags":[],"class_list":["post-1247","post","type-post","status-publish","format-standard","hentry","category-february-2008","category-water"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1247","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1247"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1247\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1247"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1247"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1247"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}