The state Commission on Water Resource Management would seem to have a hard time getting things right. Twice the Supreme Court has remanded back to the commission its decisions on the Waiahole ditch contested case, and a third appeal in that case is pending before the court. In 2004, the court rebuffed the commission in a decision it made over a well-drilling permit on Moloka`i. Then late last year, the Supreme Court tossed back to the commission its decision on a contested case that gave water use permits to Kukui Moloka`i, Inc., for resort development.<\/p>\n
\tThe history of reversals is clearly on view in the court\u2019s most recent ruling, which liberally quotes from its past decisions overturning Water Commission actions. As Isaac Moriwake, an attorney with Earthjustice, said, \u201cwriting the decisions now is kind of like making sausage for the court. Anymore, they just have to cut and paste from their previous decisions.\u201d<\/p>\n
\tThe most recent case decided by the Supreme Court goes back all the way to December 15, 1993, when KMI submitted an application to use 2 million gallons of water a day (mgd) at Kualapu`u and Kaluako`i resort. The water was to be taken from a well (Well 17) on land that KMI had acquired in October of that year.<\/p>\n
\tIn 1992, the commission had designated the entire island of Moloka`i as a water management area, which meant that applications for water use had to be filed within a 12-month period \u2013 or by July 15, 1993. After extensive discussions of the matter, in
\n1995, the commission authorized an \u201cinterim use\u201d of 871,420 gallons per day. KMI\u2019s appeal of the matter was dismissed.<\/p>\n
\tA year later, KMI sought to increase the authorized amount to 1.169 mgd, but the commission disagreed. Hearings officer Peter Adler then presided over a contested case, which included not only KMI as a party, but also the Department of Hawaiian Home Lands, the Office of Hawaiian Affairs, two Hawaiians, Georgina Kuahuia and Judy Caparida, and others.<\/p>\n
\tOn December 19, 2001, the commission awarded KMI an existing use permit for 936,000 gallons a day, plus a permit for proposed uses of 82,000 gallons a day, subject to conditions intended to protect the Kualapu`u aquifer from saltwater intrusion.
\n\tWithin a month, DHHL, OHA, and Caparida and Kuahuia had filed appeals to the Supreme Court, which hears appeals of Water Commission decisions.<\/p>\n
DHHL\u2019s Reservations<\/b><\/i>
\nOne of the issues on appeal was how much deference the commission should have given to the Department of Hawaiian Home Lands\u2019 reservation of 2.905 million gallons a day of water from the Kualapu`u aquifer. Under the state constitution, the DHHL has the right to reserve sufficient water to serve its lands, and the parties opposed to KMI had argued that this should be regarded by the commission as an existing legal use. The court basically agreed with the commission on this point, saying that it is \u201cby no means categorically precluded from approving uses which may compromise DHHL\u2019s reservation,\u201d if the decision is made with openness, diligence, and foresight \u201ccommensurate with the high priority these rights command.\u201d<\/p>\n
\tYet the court agreed with the DHHL that the commission did not give \u201ceven minimal scrutiny\u201d to KMI\u2019s request to divert water for private commercial use. The court\u2019s opinion, authored by Justice Paula Nakayama, notes that the commission\u2019s own staff recommended against awarding KMI the 82,000 increment for new uses on the basis that it would concentrate pumpage in one area of the aquifer and risk increasing levels of salinity. DHHL had had its own request to increase pumpage denied for this reason.<\/p>\n
\t\u201cInasmuch as KMI\u2019s well is \u2026 contributing to the concentrated pumpage, we are compelled to wonder why the commission did not similarly toll KMI\u2019s request for new use,\u201d the court wrote. \u201cWe do not suggest that the commission did not have a valid reason for its conclusion or that the commission was absolutely barred from reaching its result. Rather, the commission has simply failed to explain the rationale behind the disparate treatment.\u201d Thus, the court remanded this issue \u201cfor additional findings of fact and conclusions of law.\u201d<\/p>\n
No Alternatives<\/b><\/i>
\nAnother point raised by DHHL was the failure of the commission to consider the feasibility of alternative sources of water for KMI\u2019s requested uses. \u201cThe record confirms DHHL\u2019s allegation, and that omission requires us to vacate KMI\u2019s permits,\u201d the court found.<\/p>\n
\t\u201cHere, the commission entered no FOFs [findings of fact] or COLs [conclusions of law] as to the existence or feasibility of any alternative sources of water whatsoever,\u201d the court said. \u201cIndeed, the commission appears to have reserved consideration of feasible alternative sources of water until after the permit has been granted.\u201d One of the conditions of approval was that within two years of the permits being issued, KMI was to prepare a study of the feasibility of using non-potable water for golf-course irrigation.<\/p>\n
\tThe post-hoc review of alternative sources, the court said, \u201cis fundamentally at odds with the commission\u2019s public trust duties. The feasibility of a new source of non-potable water \u2026 should have been considered prior to the granting of KMI\u2019s permit, not after the fact. The commission cannot fairly balance competing interests in a scarce public trust resource if it renders its decision prior to evaluating the availability of alternative sources of water. Thus, KMI\u2019s failure to demonstrate the absence of practicable alternatives should have terminated the inquiry.\u201d<\/p>\n
Untimely Application<\/b><\/i>
\nAs mentioned earlier, the KMI application was submitted five months after the deadline for water use applications had passed. Although the commission had determined that there was just cause for the late filing, DHHL argued that it was unlawful for it to do so. According to the DHHL, the determination was barred for two reasons. First, the December 15, 1993 filing, couldn\u2019t be for an existing use, since the application did not amend an earlier, timely application. Second, the DHHL argued, as of May 27, 1993, seven months before the KMI filing, the commission lost its ability to accept late applications for \u201cjust cause.\u201d (By statute, the court explained in a footnote, the commission cannot accept late applications \u201cmore than five years after the effective date of rules\u201d implementing the law. Since the rules took effect May 27, 1988, late applications became inadmissible after May 27, 1993.)<\/p>\n
\tThe court agreed with the DHHL, stating that \u201cthe commission should have strictly applied the statutory deadline for existing use permit applications,\u201d just as it did in the earlier Waiahole case. \u201cTherefore, we vacate the commission\u2019s decision and order to the extent that it grants KMI a permit for existing uses,\u201d the court said. \u201cIf, on remand, KMI wishes to \u2018revive\u2019 this expired uses, it must apply for a [new] permit\u2026 as the uses are now presumed abandoned.\u201d<\/p>\n
Unconsidered Closure<\/b><\/i>
\nAbout 440,000 gallons of the existing-use permit and 24,000 gallons of the permit for proposed uses were to be used, KMI said, on the Kaluako`i golf course and hotel, both closed for some years now.<\/p>\n
\tOHA, Caparida and Kuahuia argued that the commission should have taken this closure into account, asserting \u201cthat a hotel and golf course that has been closed for many months with no announced reopening date does not present a reasonable-beneficial use,\u201d as is required under the state Water Code. The commission argued, on the other hand, that its role was limited to determining what its past water use was, as of July 15, 1992, rather than at the time the contested case hearing occurred. In addition, the commission and KMI said that because the permits give KMI four years to put the water to the stated use, there was no error.<\/p>\n
\tIn addressing this point, Nakayama quoted from the court\u2019s decision in the first Waiahole case: \u201cthe commission must not relegate itself to the role of a mere umpire passively calling balls and strikes for the adversaries appearing before it, but instead must take the initiative in considering, protecting, and advancing public rights in the resource at every stage of the planning and decision-making process.\u201d The commission failed to do so in this case, prompting the court to vacate the commission\u2019s decision and remand the permit for proposed uses.<\/p>\n
Burden of Proof<\/b><\/i>
\nCaparida and Kuahuia raised the argument that the commission improperly put the burden of showing harm to native rights and practitioners onto the Hawaiians, relieving KMI from any burden of proof. In the contested case hearing, the two had raised concerns that pumping Well 17 could harm the nearshore marine environment and thus affect their gathering rights. The commission concluded, however, that there was no evidence to suggest that the KMI allocation would \u201cin any way diminish access for traditional and customary native Hawaiian practices in the project area, shoreline, or nearshore areas.\u201d<\/p>\n
\tThat conclusion, however, \u201cerroneously shifted the burden of proof to Caparida and Kuahuia,\u201d the court found. \u201cAccordingly, we hold that the commission failed to adhere to the proper burden of proof standard to maintain the protection of native Hawaiians traditional and customary gathering rights in discharging its public trust obligation.\u201d<\/p>\n
Rejected Claims<\/b><\/i>
\nAlthough the overall effect of the court\u2019s ruling was what the challengers had hoped for, along the way, the court tossed out some of their arguments.<\/p>\n
\tFirst to be dismissed was DHHL\u2019s claim that the sustainable yield used by the commission in its deliberations was in error. The commission used a figure of 5.0 million gallons a day of sustainable yield for the Kualapu`u aquifer. The DHHL argued that the figure could be as low as 3.2 mgd. The court, however, agreed with KMI and the commission: \u201c[T]he sustainable yield was set by rulemaking procedure, and \u2026any challenge to the accuracy of the sustainable yield must be made by a petition to amend or modify the sustainable yield\u2026 [I]t would be inappropriate for the commission to reevaluate the sustainable yield in a permit application proceeding.\u201d<\/p>\n
\tThe court also rejected DHHL\u2019s claim that the commission should have taken into account evidence that KMI had violated the state\u2019s safe drinking water law. \u201cDespite evidence in the record that KMI failed to comply with the SDWA [Safe Drinking Water Act], we hold that neither the [Water] Code nor the public trust preclude the commission from allocating water to KMI.\u201d<\/p>\n
Many of the same parties and issues were involved in the case that came before the Supreme Court appealing the commission\u2019s decision, in December 1998, on an application of Moloka`i Ranch, Ltd., and a subsidiary, Wai`ola o Moloka`i, Inc., a water utility, to drill a well and take some 1.25 million gallons of water a day from the Kamiloloa aquifer. One million gallons of that was to accommodate future development, including a small industrial park and what was described as low-impact tourism. Bringing the appeal were the DHHL, OHA, a group of seven Hawaiians (including Caparida), called the Kahae intervenors, which claimed an interest in the land within the Kamiloloa aquifer system, and a group of three Hawaiians, collectively the Ritte intervenors, who claimed an interest in traditional gathering rights.<\/p>\n
\tThe DHHL argued that the allotment of water to Wai`ola impacted its water reservations in the Kualapu`u aquifer, but the commission held that the reservations did not warrant the same level of protection as an existing use and, moreover, were \u201caquifer specific\u201d \u2013 that is, only applications for water from the Kualapu`u aquifer could impact the DHHL water reservations.<\/p>\n
\t\u201cAlthough we agree that [the commission\u2019s Hawai`i Administrative Rules] denominate aquifer-specific reservations of water to DHHL,\u201d the court found, \u201cwe hold that such a limitation for purposes of water resource management does not divest DHHL of its right to protect its reservation interests from interfering water uses in adjacent aquifers. \u2026 To hold otherwise would cripple DHHL\u2019s ability to contest proposed uses in adjacent aquifers that could significantly diminish its ability to utilize its reservations in the future simply because the proposed use was outside the Kualapu`u aquifer; such an interpretation defies not only legal but scientific logic.\u201d<\/p>\n
\tThe court did not agree that a reservation was equivalent to existing legal use. Yet, foreshadowing its decision in the Kukui Moloka`i case, it did underscore the need for the commission to give serious consideration to the impact of its decisions on DHHL reservations. Quoting its own decision in the first Waiahole appeal, the court found that the \u201creservation of water is an essential mechanism by which to effectuate the state\u2019s public trust duty \u2018to ensure the continued availability and existence of its water resources for present and future generations.\u2019\u201d<\/p>\n
\tSince the commission did not address the DHHL\u2019s concerns in its findings of fact and conclusions of law, \u201cit violated its public trust duty to protect DHHL\u2019s reservation rights.\u201d<\/p>\n
Shifting Burdens<\/b><\/i>
\nAs in the Kukui Moloka`i case, one of the issues involved where the burden should lie in producing evidence of an impact, or lack of impact, to the public trust or other rights that would result from the permit. DHHL and the Ritte appellants claimed that the burden lies with the applicant, and that the commission failed to require it to fulfill that burden.<\/p>\n
\tThe court agreed. The commission\u2019s findings \u201csupporting its conclusion that the proposed use would not interfere with DHHL\u2019s rights\u2026 failed to address whether MR-Wai`ola had adduced sufficient evidence with respect to the impact of the proposed use on DHHL\u2019s reservation in Kualapu`u,\u201d the court found, adding that, in fact, the commission seemed to have foisted the burden onto DHHL, \u201cwhich is contrary to this court\u2019s well-settled interpretation of an applicant\u2019s burden.\u201d<\/p>\n
Unprotected Rights<\/b><\/i>
\nOHA and the Hawaiian intervenors argued that the commission failed to give due consideration to potential harm that the Wai`ola withdrawals would have on their customary rights by reducing the amount of freshwater flowing into the nearshore area. Among other things, they argued, they were not given the opportunity to impeach one of the key witnesses for Wai`ola, Steve Dollar, by confronting him with contradictory testimony he had presented in another contested case.<\/p>\n
\tIn its decision, the commission had determined that \u201cno evidence was presented that the drilling of the well would affect the exercise of traditional and customary native Hawaiian rights.\u201d<\/p>\n
\tBut the court disagreed, finding that that conclusion \u201cwas unsupported by any clearly articulated [finding of fact].\u201d The court went on to find that the commission\u2019s designated hearings officer erred by not allowing Dollar to be confronted with statements he had made that could have impeached his credibility.<\/p>\n
\t\u201cAccordingly, the commission having failed adequately to discharge its public trust obligation to protect native Hawaiians\u2019 traditional and customary gathering rights, we have no choice but to vacate the commission\u2019s decision and to remand for further proceedings.\u201d<\/p>\n
\tThe Water Commission has not acted on the court\u2019s remand order yet. According to an attorney involved in the case, the DHHL has been attempting to work out a settlement with Wai`ola and other parties.<\/p>\n
— Patricia Tummons<\/p>\n
Volume 18, Number 8 February 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
The state Commission on Water Resource Management would seem to have a hard time getting things right. Twice the Supreme Court has remanded back to the commission its decisions on the Waiahole ditch contested case, and a third appeal in … 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-1248","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\/1248","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=1248"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1248\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1248"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1248"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1248"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}