\u201cWhat more due process do you want?\u201d Hawai\u02bbi Supreme Court Justice Todd Eddins asked David Kimo Frankel last month. <\/p>\n\n\n\n
Frankel is the attorney representing the Sierra Club of Hawai\u02bbi in a lawsuit over the state Board of Land and Natural Resources\u2019 approval in 2020 of revocable permits for the continued diversion of East Maui streams through 2021, as well as the board\u2019s denial of the group\u2019s request for a contested case hearing on those permits.<\/p>\n\n\n\n
The group has argued that the amount of water that the Land Board has allowed to be diverted is excessive and deprives a dozen East Maui streams of water for most of the year.<\/p>\n\n\n\n
When the Land Board approved those permits at its meeting in November of that year, Frankel testified to the Land Board for 18 minutes about the Sierra Club\u2019s concerns with them. The Land Board added conditions to its approval to address some of those concerns. And just two months earlier, a trial before the Environmental Court over similar objections the Sierra Club had to the same permits issued for 2019 and 2020 had concluded.<\/p>\n\n\n\n
\u201cOn this record, we hold that BLNR’s rules and procedures for its November 13, 2020 meeting, Sierra Club\u2019s participation in the 2020 trial of the 2019 Sierra Club lawsuit, and the short duration of the permit continuations provided reasonable protection from the risk of an erroneous deprivation of Sierra Club’s members’ protected interest in a clean and healthful environment,\u201d the Intermediate Court of Appeals stated in its April decision vacating rulings by the Environmental Court in 2021 and 2022 that modified the diversion permits granted to Alexander & Baldwin, Inc., and East Maui Irrigation Co., LLC. Those modifications included significantly reducing the amount of water the Land Board had allowed to be diverted under the permits.<\/p>\n\n\n\n
The ICA found that then-Environmental Court Judge Jeffrey Crabtree had improperly determined that the Sierra Club was entitled to a contested case hearing and exceeded his authority in modifying the permits. As result, the Sierra Club was not entitled to attorney\u2019s fees, it found.<\/p>\n\n\n\n
The ICA\u2019s ruling, however, was not unanimous. Judge Karen Nakasone dissented. In her dissent, she stated that she did not agree that the Sierra Club\u2019s participation in the trial was \u201can adequate alternative procedural safeguard, where the Environmental Court judge, who was the same judge that presided over the 2020 trial, specifically found otherwise. The Environmental Court found that this case involved \u2018some significantly different facts\u2019 from the 2020 trial; that \u2018the permits at issue covered the year after the trial\u2019 and \u2018[t]hings change with time\u2019; that Sierra Club had \u2018new evidence on the permit renewals \u2014 information and issues which apparently arose after the trial\u2019; and that \u2018[t]he new information and issues are relevant and are not insignificant.\u2019\u201d<\/p>\n\n\n\n
\u201cHere, the specter of floodgates of contested case hearings creating annual fiscal and administrative burdens for every future water permit continuation is speculative and premature, since we cannot presume that a contested case hearing will be requested in every similar case, or that BLNR would be required by due process to grant such in every case,\u201d she wrote.<\/p>\n\n\n\n
On November 21, the state Supreme Court heard oral arguments over whether the ICA got it wrong.<\/p>\n\n\n\n
Opposing Positions<\/strong><\/p>\n\n\n\n In the application to be heard before the Supreme Court, Frankel listed a number of factors that differentiated the circumstances surrounding the permits granted for 2021 from those of previous years.<\/p>\n\n\n\n He noted that after the trial in 2020, the Department of Land and Natural Resources\u2019 Division of Aquatic Resources \u201cdetermined for the first time that four streams from which A&B has been authorized to divert one hundred percent of the baseflow should be a high priority for stream restoration.” <\/p>\n\n\n\n Also, he continued, a new quarterly report on water use by the companies showed that \u201cmuch less water was needed than previously estimated.\u201d What\u2019s more, a settlement agreement EMI co-owner Mahi Pono had entered into with regard to a contested case hearing before the Water Commission over diverted stream water from Na Wai \u02bbEh\u0101 was not included in the 2020 trial, but \u201cdemonstrated that it is reasonable to require the lining of reservoirs,\u201d Frankel argued. (Na Wai `Eh\u0101 refers to the four streams that drain into central Maui.)<\/p>\n\n\n\n \u201cMoreover, the permits are for a different year,\u201d he continued. “A&B proposed to take 38 percent more water from east Maui streams in 2021 than it had been taking in 2020. Finally, DLNR\u2019s staff recommended a new definition of \u2018waste\u2019 that would exclude system losses and evaporation. The recommendation was inconsistent with [the Commission on Water Resource Management\u2019s] approach. The Sierra Club highlighted the Orwellian definition. Even the results of trials can be set aside when \u2018newly discovered evidence which by due diligence could not have been discovered in time’ becomes available.<\/p>\n\n\n\n \u201cSimilarly, a contested case hearing was required despite the August 2020 trial because of the newly available evidence and<\/strong> because it was a new decision for a new year.\u201d<\/p>\n\n\n\n In contrast, attorneys for the Land Board argued in support of the ICA\u2019s decision, stating the Sierra Club received ample due process on its opposition to the permits \u201cduring a weeks-long bench trial \u2026 between identical parties, in which Sierra Club raised nearly identical issues and sought to vindicate nearly identical interests.<\/p>\n\n\n\n \u201cAnd despite the opportunity, Sierra Club failed to advance meaningfully different arguments than it had at trial in both its petition for a contested case hearing and its public testimony at the Board\u2019s November 13, 2020, public meeting on the RPs\u2019 2020 continuation.\u201d<\/p>\n\n\n\n The Sierra Club had argued that under Hawai\u02bbi Revised Statutes Chapter 205A, also known as the Coastal Zone Management Act, the Land Board should have considered the effects the stream diversions would have on ecological values. Because of the board\u2019s duties under the act (in addition to state laws regarding land dispositions and environmental reviews), the group argued that it was entitled to a contested case hearing. The state, and the ICA, disagreed.<\/p>\n\n\n\n The act \u201cdid not define Sierra Club\u2019s alleged right to a clean and healthful environment here. And any risk of erroneous deprivation of Sierra Club\u2019s alleged interest in the absence of additional<\/em> trial-like proceedings on the 2021 RPs was outweighed by the governmental interest in avoiding duplicative and burdensome proceedings. The environmental court thus erred by granting Sierra Club\u2019s \u2026 appeal from the Board\u2019s denial of its Petition. The court also exceeded its appellate jurisdiction by prejudging the outcome of the contested case and modifying the RP conditions based on Sierra Club\u2019s preferences rather than remanding to the Board for further proceedings. \u2026<\/p>\n\n\n\n \u201cSierra Club\u2019s self-described right to \u2018cross-examine\u2019 DLNR staff and scientific evidence the staff collects, interprets, and reports finds no support in the law and would have been inappropriate under these facts. First, none of the cases cited in the Application support Sierra Club\u2019s self-proclaimed right in this case. And second, \u2018[m]any courts and commentators have concluded that cross-examination of scientific witnesses\u2019 such as staff of the CWRM or DAR, \u2018is often, if not always, an exercise in futility.\u2019 \u2026 Thus, even if a property interest was established, the lack of possible value to be gained from cross-examination weighed against <\/em>granting the Petition and supports the ICA\u2019s decision affirming the Board,\u201d the board\u2019s attorneys wrote.<\/p>\n\n\n\n Court Questions<\/strong><\/p>\n\n\n\n During Justice Eddins\u2019 questioning last month about due process, he told Frankel, \u201cThey\u2019re making the point you just had a trial two months before \u2026 You actually argue for about 18 minutes, they say, and I imagine it was probably pretty effective.\u201d<\/p>\n\n\n\n Frankel countered that a contested case hearing would have enabled the Land Board to ascertain \u201cthe truth of the matter,\u201d including \u201cnew evidence\u201d that arose after the trial, such as the findings by DAR about the natural resource value of some of the diverted streams. <\/p>\n\n\n\n Eddins then noted that the Land Board had considered that new evidence when it approved the permits for 2021. <\/p>\n\n\n\n Frankel argued that the Sierra Club should have had the opportunity to ask DAR whether there was any value in restoring flows to certain streams. \u201cThat\u2019s the kind of thing, with evidence taken under oath, all parties cross-examining, the truth can come out.\u201d <\/p>\n\n\n\n \u201cEvidence showed A&B, they needed less water than they claimed,\u201d he added.<\/p>\n\n\n\n In response to similar questions from Justice Vladimir Devens, Frankel explained how the Sierra Club did not have time to line up scientific experts to address the new information before the Land Board voted on the 2021 permits. The group also did not have the opportunity to question A&B, he said.<\/p>\n\n\n\n Chief Justice Mark Recktenwald asked about the appellate court\u2019s position that the Coastal Zone Management Act did not affect the Land Board\u2019s ability to renew the water permits. \u201cI guess they\u2019re trying to argue issues addressed in the context of mountain streams were tangential and did not give rise to a contested case hearing,\u201d he said. <\/strong><\/p>\n\n\n\n <\/strong>Frankel replied that the CZMA applies to all land in the state. <\/p>\n\n\n\n \u201cIt applies to the board. The ICA said, essentially, only Part 3 [of the act] is applicable, when things are very near the shoreline, in the [special management area] or shoreline setback area,\u201d he said, adding that Ch. 205A-2A, which lists the objectives and policies of the act, \u201cshall apply to all parts, not just Part 3.\u201d (One of the objectives of the CZMA is to \u201c[p]rotect valuable coastal ecosystems, including reefs, from disruption and minimize adverse impacts on all coastal ecosystems.\u201d)<\/p>\n\n\n\n Frankel also noted in his filings that Part 4 of the CZMA provides: \u201c(a) In implementing the objectives of the coastal zone management program, the agencies shall<\/strong> give full consideration to ecological, cultural, historic, esthetic, recreational, scenic, and open space values, and coastal hazards, as well as to needs for economic development,\u201d and \u201c(b) The objectives and policies of this chapter and any guidelines enacted by the legislature shall be binding upon actions<\/strong> within the coastal zone management area by all agencies, within the scope of their authority.\u201d<\/p>\n\n\n\n \u201cThat\u2019s sort of a mauka-makai concept incorporated in 205A. \u2026 The streams connect mauka to makai,\u201d Devens said.<\/p>\n\n\n\n \u201cExactly. Yes, your honor,\u201d Frankel replied.<\/p>\n\n\n\n When Eddins pointed out that \u201cdue process is not a fixed concept\u201d that necessitates a contested case hearing, Frankel replied, \u201cWhen property interests are implicated, you have a right to a hearing.\u201d<\/p>\n\n\n\n Judge Clarissa Malinao, sitting in for recused Justice Lisa Ginoza, asked whether the Land Board\u2019s decision on the 2021 permits redefining water waste was a constitutional violation.<\/p>\n\n\n\n \u201cIt is inconsistent with their public trust obligations. There is a public trust duty to ensure water goes to public trust purposes. When it\u2019s wasted, it\u2019s not fulfilling that mandate,\u201d Frankel replied. If all system losses are not considered waste, \u201cthen there\u2019s nothing else left in the definition of waste and that is extremely problematic and this is one of the issues we wish to explore in the context of a contest case hearing,\u201d he added.<\/p>\n\n\n\n He argued that in modifying the permits to maintain diversions at the status quo, Judge Crabtree \u201ccrafted a remedy in light of BLNR\u2019s denial of the Sierra Club\u2019s constitutional rights.\u201d<\/p>\n\n\n\n Frankel added that A&B and the Land Board cannot complain about the modifications, since they themselves asked Crabtree to modify the permit expiration dates. <\/p>\n\n\n\n \u201cIt was in A&B\u2019s interest for the court to modify BLNR\u2019s decision because <\/p>\n\n\n\n if it had not, if the court had invalidated the permits, A&B would not have been entitled to any water whatsoever. It\u2019s really hypocritical of them to condemn the court for modifying,\u201d Frankel said.<\/p>\n\n\n\n \u201cWhat about their argument [about] the court substituting its judgment for that of the BLNR? They should have just remanded, sent it back?\u201d Devens asked.<\/p>\n\n\n\n “In that case, the constitutional violation would have gone unabated. A&B would have been allowed to take even more water and we would have been in the same situation of Na Moku back in 2001: asking for a contested case hearing, not having it, and them taking more and more water,\u201d Frankel replied, referring to the group Na Moku Aupuni O Ko\u02bbolau Hui, which decades ago asked for a contested case hearing on the diversions from East Maui, but never got one. <\/p>\n\n\n\n \u201cThat\u2019s the problem. What the court did, which was genius, it preserved the status quo. It didn\u2019t use those words, but basically, it looked at what Mahi Pono, A&B, EMI had been taking and said, \u2018OK, you can use a little bit more, but no more.\u2019 \u2026 It preserved the status quo until a contested case hearing was completed,\u201d he said.<\/p>\n\n\n\n Counterpoint<\/strong><\/p>\n\n\n\n Deputy attorney general Melissa Goldman\u2019s oral argument focused on two key points:<\/p>\n\n\n\n 1) that the Sierra Club was not constitutionally entitled to a contested case hearing, and 2) that even if it were, the Environmental Court exceeded its jurisdiction by \u201cmodifying permit terms that were not before it based on an undeveloped record to advanced one party\u2019s interest over inclusive policies reflecting public input and agency expertise.\u201d<\/p>\n\n\n\n \u201cDue process, as Justice Eddins just recounted, is not a fixed concept,\u201d she said. The Sierra Club had ample opportunity to be heard and there was \u201cno showing that additional procedures would be meaningful,\u201d she said.<\/p>\n\n\n\n Justice Devens said, \u201cIt\u2019s one thing to express views. It\u2019s another to be cross-examined,\u201d adding that the Sierra Club wanted its opportunity to be heard to be meaningful.<\/p>\n\n\n\n He raised the issues of the new treatment of system losses and the four diverted streams that DAR had identified as high priority streams.<\/p>\n\n\n\n Goldman conceded that the DAR information was new but said that the Sierra Club mischaracterized what it was. <\/p>\n\n\n\n \u201cDoesn’t that really support their argument? You\u2019re fighting over what this meant or that meant,\u201d Devens said. He added that the Sierra Club learned of DAR\u2019s opinions through a report to the Land Board issued less than a week earlier. \u201cThey have five to six days to get an expert. That\u2019s not practical,\u201d he said.<\/p>\n\n\n\n Goldman noted that the Hawai\u02bbi Supreme Court has held that the public meeting process can be sufficient even though the public is given limited speaking time and there are no cross-examinations.<\/p>\n\n\n\n \u201cWhat matters is if there was erroneous deprivation,\u201d she said.<\/p>\n\n\n\n Justices Recktenwald and Eddins pressed Goldman about the DLNR\u2019s and Land Board\u2019s decision to not characterize system losses as waste for the 2021 permits.<\/p>\n\n\n\n Goldman replied that the DLNR\u2019s position had always been that system losses were reasonable. During the trial, \u201cwe argued reasonable system losses do not constitute waste and then [DLNR] staff defined the term waste in its subsequent staff submittal.\u201d<\/p>\n\n\n\n \u201cDidn\u2019t CWRM have concerns? Didn\u2019t CWRM say that systems losses exceeded 20 percent and that didn\u2019t comport with best practices?\u201d Eddins asked.<\/p>\n\n\n\n \u201cI think we\u2019re getting a little bit lost in the weeds. The bigger picture is it\u2019s under CWRM\u2019s jurisdiction to address those kinds of issues, not the board,\u201d Goldman replied.<\/p>\n\n\n\n Eddins replied that he understood the distinction she was making but suggested that a new definition of water waste seems like the kind of information that the board might need to \u201cturn it over, shake it up, to see what it really means. I know you made 27 new conditions, some addressed Sierra Club\u2019s concerns. When you look at that water waste issue \u2026 it seems that is sort of significant new evidence to take a look at.\u201d \u201cReally?\u201d Recktenwald interjected. \u201cI just \u2013 cross-examining experts about scientific facts is, I\u2019m sorry, an exercise in futility?\u201d<\/p>\n\n\n\n Goldman explained that she was merely quoting a case she had cited in her briefs.<\/p>\n\n\n\n “I suppose it depends on the skills of the cross examiner,\u201d Eddins said.<\/p>\n\n\n\n “I\u2019m trying to understand what I did for all those years in private practice, I guess,\u201d Recktenwald added.<\/p>\n\n\n\n He continued, \u201cIt can be frustrating. It can be slow. There can be ambiguity. There can be different points of view. But in the end, that\u2019s exactly why you have a test of cross-examination. So the finder of fact can come to a determination. If anything, that cuts in favor of a contested case hearing.\u201d<\/p>\n\n\n\n Goldman, however, argued that the burden of duplicative proceedings outweighed any possible benefit of a contested case hearing. She later added that cross-examination is not required by due process. <\/p>\n\n\n\n Eddins recounted how the permits for the East Maui stream diversions had not ever been fully examined in a contested case hearing before the Land Board.<\/p>\n\n\n\n \u201cWhen you\u2019re looking at what procedures are necessary to satisfy the Sierra Club\u2019s due process rights, is it appropriate to look at [them] in the context of 20 years of annual RPs?\u201d he asked. <\/p>\n\n\n\n Goldman replied, \u201cI think the larger context about this entire dispute we could talk about for hours. \u2026 Sierra Club had already had full process through a trial to explore many of those issues and had \u2026 a Sunshine meeting.\u201d<\/p>\n\n\n\n She concluded that the Environmental Court exceeded its jurisdiction by modifying the permits \u201cwithout finding board error or abuse of discretion. \u2026 It made findings on an undeveloped record and it substituted its judgment for that of the agency.\u201d<\/p>\n\n\n\n Trisha Akagi, the attorney representing A&B and EMI, made similar arguments that a contested case hearing was not necessary to deal with the new evidence.<\/p>\n\n\n\n The exclusion of system losses from the definition of waste, for example, \u201cwas thoroughly discussed at the August 2020 trial,\u201d she said, noting that the Land Board\u2019s decision to incorporate that new definition into is permit approval was merely an attempt to clarify that not all system losses are waste.<\/p>\n\n\n\n Even so, Justice Sabrina McKenna argued that the new issue of defining waste to exclude system losses and evaporation was worth taking another look at.<\/p>\n\n\n\n \u201cI respectfully disagree that cross-examination of expert witnesses is a waste of time,\u201d she said.<\/p>\n\n\n\n She added that even though it is the Water Commission\u2019s exclusive jurisdiction to set the amount of water that needs to stay in streams, the Land Board “also has an obligation to try to save our water as much as possible.\u201d<\/p>\n\n\n\n Akagi argued that the Environmental Court \u201cwould have needed to at least to have made a predicate finding of clear error to modify a factual determination by BLNR. Specifically, in order to modify the cap, the Environmental Court would have had to make a determination that the BLNR\u2019s cap was clearly erroneous.”<\/p>\n\n\n\n On this point, McKenna later argued that \u201cperhaps it didn\u2019t use the words \u2018clearly erroneous,\u2019 but it did find that there was an error not to have a contested case hearing because constitutional rights were being violated. Sounds like clear error.\u201d<\/p>\n\n\n\n \u201cExactly,\u201d Frankel replied.<\/p>\n\n\n\n Recktenwald then asked Frankel for his take on the concern over \u201can endless parade of contested case hearings, year after year after year, that really are not accomplishing much especially as that body of work grows?\u201d<\/p>\n\n\n\n Frankel cited other issues where similar worries were raised (geothermal, Red Hill) and no endless parade of contested cases followed. He then added, \u201cIf the BLNR properly fulfills its public trust duties, there\u2019s not going to be request for contested case hearings. That\u2019s what this is all about. The board has abdicated its duties for decades. The Sierra Club is asking the board to do what it needs to do. \u2026 It needs to make sure that important questions are answered, that water is not wasted whether using terms like \u2018system loss.\u2019\u201d<\/p>\n\n\n\n The court did not rule on the case by press time. The Land Board is expected to vote on permits for 2025 this month. It denied a recommendation from its chair last month to enter into a contested case on a proposed long-term disposition for the water.<\/p>\n\n\n\n \u2014 Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" “What more due process do you want?” Hawaiʻi Supreme Court Justice Todd Eddins asked David Kimo Frankel last month. 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To this, Goldman said, \u201cCourts have generally recognized that cross-examination of scientific facts is often an exercise in futility.\u201d<\/p>\n\n\n\n