{"id":16705,"date":"2025-09-04T09:58:43","date_gmt":"2025-09-04T19:58:43","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=16705"},"modified":"2025-09-04T10:02:39","modified_gmt":"2025-09-04T20:02:39","slug":"supreme-court-to-decide-if-ica-erred-in-east-maui-permit-decision","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=16705","title":{"rendered":"Supreme Court to Decide If ICA Erred in East Maui Permit Decision"},"content":{"rendered":"\n

Above photo: A stream diversion in East Maui.\u00a0CREDIT:\u00a0SIERRA CLUB OF HAWAI\u2018I.<\/sub><\/p>\n\n\n\n

\n\n\n\n

Last month, the Hawai\u02bbi Supreme Court granted applications for a writ of certiorari from both sides of a case involving the state Board of Land and Natural Resources\u2019 renewal of permits to Alexander & Baldwin and East Maui Irrigation Company that allowed the continued daily diversion of tens of millions of gallons of stream water from East Maui to Central and Upcountry Maui.<\/p>\n\n\n\n

Oral arguments will not be held.<\/p>\n\n\n\n

In this case and older, related cases, the Sierra Club of Hawai\u02bbi has argued that the Land Board violated its trust duties by allowing the companies to divert more water than they need, while lower reaches of some of the East Maui streams that supply the water are left dry most of the time.<\/p>\n\n\n\n

Late last year, the court heard oral arguments over an April 2024 Intermediate Court of Appeals ruling that the Sierra Club of Hawai\u02bbi was not entitled to a contested case hearing on permits granted to A&B and EMI by the Land Board for stream diversions through 2021, and that the Environmental Court erred in modifying the amount of water that could be diverted under those permits.<\/p>\n\n\n\n

The high court had still not issued a decision when, on April 30, the ICA issued a similar ruling in a case involving the Sierra Club\u2019s appeal of the Land Board\u2019s November 2022 approval of permits to the companies for stream diversions through 2023, as well as the board\u2019s denial of the group\u2019s contested case hearing request.<\/p>\n\n\n\n

The recent ICA decision vacated rulings by the Environmental Court, which had found that the Sierra Club was entitled to a contested case hearing and which had lowered the amount of water that the companies could divert in the meantime. <\/p>\n\n\n\n

The ICA also reversed the lower court\u2019s ruling that the Sierra Club was entitled to attorney\u2019s fees from A&B and EMI.<\/p>\n\n\n\n

The ICA found that the Sierra Club had standing to request a contested case hearing, but was not entitled to one. <\/p>\n\n\n\n

\u201cHere, in addition to the 2020 trial [on earlier permits] and BLNR’s 2020 public meeting discussed in Sierra Club I, Sierra Club has participated in a contested case hearing on the 2021 and 2022 permits, and presented evidence and testimony at BLNR’s 2022 public meeting and 2022 hearing on the petition,\u201d the ICA wrote. \u201cBLNR’s June 30, 2022 contested case order on the 2021 and 2022 permits was issued just four months before its public meeting on the 2023 permits and its hearing on Sierra Club’s [contested case] petition. BLNR considered the same issues about water usage and loss, alternative resources such as groundwater, mitigation measures such as placing liners in reservoirs, and a pending [Commission on Water Resource Management interim instream flow standards] decision, Sierra Club raises here. \u2026<\/p>\n\n\n\n

\u201cWe again conclude that the minimal additional protection a contested case would have provided to Sierra Club under the circumstances of this case are outweighed by the fiscal and administrative burdens a contested case would impose on BLNR, the County of Maui, and potentially on those living or working in Upcountry Maui. We hold that Sierra Club was not denied constitutional due process by BLNR’s denial of its petition for a contested case hearing on the 2023 permits,\u201d the ICA wrote.<\/p>\n\n\n\n

In its June 26 application for a writ of certiorari, the Sierra Club argued, \u201cThe ICA\u2019s conclusion is primarily based on two false premises. First, the ICA erred in finding that the Sierra Club was obligated, and failed, to provide new evidence. Second, the ICA overlooked the importance of cross examination.\u201d<\/p>\n\n\n\n

David Kimo Frankel, the Sierra Club\u2019s attorney, stated that the organization was barred from cross examining the Water Commission about new groundwater data on sustainable yields of the aquifers available to the companies and A&B about its groundwater use. <\/p>\n\n\n\n

The group was also \u201cunable to rely on cross examination to undermine the credibility of A&B\u2019s witnesses who had previously testified falsely under oath about how much water was needed for historic\/industrial uses. The Sierra Club was unable to ask questions about CWRM\u2019s determination as to how much water was actually needed for diversified agriculture, the conflict between how much water A&B claimed was needed for diversified agriculture in 2022 and how much was actually used, how long it would take to implement the measures CWRM determined are needed to protect streams, and from which streams A&B was planning to increase its diversions. BLNR denied the Sierra Club the ability to cross examine witnesses about this new evidence, cross examine witnesses about the credibility of prior statements in light of the new evidence, or obtain information that only A&B possessed.<\/p>\n\n\n\n

\u201cConsider just this one example: BLNR\u2019s June 2022 decision concluded that groundwater was not available to irrigate crops, but new evidence demonstrated that groundwater is being, and can be, used. At BLNR\u2019s decision-making meeting, A&B claimed that it could not rely on groundwater. The Sierra Club was not given an opportunity to cross examine EMI\u2019s Mark Vaught as to his false claim that groundwater information was \u2018old data.\u2019 A&B\u2019s final EIS, published just a year earlier, contained current data and states that the sustainable yield is 32 mgd. Even more importantly, CWRM came to the same conclusion after the 2021-22 contested case hearing. A&B\u2019s Meredith Ching complained to BLNR that \u2018Mahi Pono is not the only user of that aquifer.\u2019 But the Sierra Club was not given the opportunity to cross examine her or show that all the other users of water use less than 1 mgd combined.\u201d<\/p>\n\n\n\n

In its application for a writ of certiorari, the state, represented by deputy attorney general Miranda Steed, argued that the ICA erred when it found that the Sierra Club had standing to seek a contested case. Also, Steed argued that the Land Board lacked the authority to grant the relief the Sierra Club sought. Increasing stream flows, she argued, fell under the exclusive jurisdiction of the Water Commission, which establishes the minimum amount to water that must remain in streams.<\/p>\n\n\n\n

\u201cThe \u2018cause\u2019 of Sierra Club\u2019s alleged environmental injury is insufficient stream flow protection\u2014not the existence of water users with Board permits. Only CWRM may increase IIFS or implement other stream protections,\u201d she wrote.<\/p>\n\n\n\n

\u201cSierra Club essentially seeks to have the cap [for the] amount of water for the 2023 [revocable permits] lowered. Lowering the cap would not guarantee that the permittees would divert less water from any given stream. In fact, the permittees could increase water diverted from some streams even with a lower cap. This is because the cap applies to the total amount of water diverted, not how much water may be diverted from a specific stream (as opposed to the IIFS). Thus, Sierra Club\u2019s alleged injuries in too much water being diverted from any given stream could occur even with the cap the Environmental Court imposed,\u201d she continued.<\/p>\n\n\n\n

She stated that while the Land Board acknowledges its public trust obligations, its authority to grant dispositions for water and impose conditions \u201cdoes not extend to independently regulating stream flows, system losses, and alternative sources in a manner that would effectively duplicate or potentially conflict with CWRM\u2019s regulatory authority.\u201d<\/p>\n\n\n\n

She asked the high court to determine whether the ICA erred in concluding that the Sierra Club had standing and that it had protected property interests under the state Constitution\u2019s article XI, section 9 as defined by Hawai\u02bbi Revised Statutes 171-55, the state law governing the Land Board\u2019s issuance of water permits, and Chapter 343, the state\u2019s environmental review law.<\/p>\n\n\n\n

In the Sierra Club\u2019s response, Frankel called the state\u2019s application \u201caudacious,\u201d adding, \u201cIt demonstrates a remarkable betrayal of its trust duties.\u201d <\/p>\n\n\n\n

The Land Board was arguing that it \u201clacks the authority to protect our streams and require the conservation of water. Its argument is inconsistent with the law and its own practice, and demonstrates how far it has strayed from fulfilling its trust duties. The premise of BLNR\u2019s claim that it is powerless to provide relief is flawed for nearly a dozen reasons,\u201d he stated.<\/p>\n\n\n\n

He went on to list ten reasons, first pointing out that under the Hawai\u02bbi Supreme Court\u2019s 2014 decision in the Kaua\u02bbi Springs<\/em> case, in which a private water bottler sued the Kaua\u02bbi Planning Commission, trust obligations to protect water resources \u201care imposed on all agencies, not just CWRM.\u201d<\/p>\n\n\n\n

\u201cJust as the Kaua\u2018i Planning Commission needed to ensure that the applicant implemented mitigation measures, so too did BLNR. Just as the Kaua\u2018i Planning Commission was obligated to require that a commercial applicant demonstrate the absence of alternative water sources, so too was BLNR. Just as the Kaua\u2018i Planning Commission was required to \u2018preserve the rights of present and future generations in waters of the state,\u2019 so too was BLNR,\u201d he wrote.<\/p>\n\n\n\n

He also pointed to a 2003 decision by 1st<\/sup> Circuit Judge Eden Hifo, in which she held that the Land Board could not just rubber-stamp Water Commission decisions and was \u201cobligated to make a truly independent investigation as to whether it\u2019s in the state\u2019s best interest to authorize the diversion of water from East Maui streams.\u201d<\/p>\n\n\n\n

And for 2016, Frankel continued, the Land Board included a condition in its approval of water permits that year for A&B and EMI that no diversion of water would be permitted from Honomanu Stream. He added that in 2007, the Land Board ordered A&B to allow 6 million gallons a day to flow in Waiokamilo Stream. <\/p>\n\n\n\n

\u201cThese isolated efforts demonstrate that BLNR has the authority to protect our streams. BLNR cannot blow hot and cold. It is judicially estopped from arguing that it lacks the power to protect streams,\u201d he wrote.<\/p>\n\n\n\n

In the Land Board\u2019s response to the Sierra Club\u2019s opposition, Steed noted that the Sierra Club \u201cclaims injury because its \u2018members live along and draw water from the streams in the license area for their own residential and farming purposes.\u2019<\/p>\n\n\n\n

\u201cHowever, Sierra Club\u2019s arguments focus entirely on how water is managed after it is diverted from streams, not on how much water remains in the streams. Sierra Club disputes how efficiently the permittees use water and whether end-users (not the permittees) should be required to line ditches. None of these measures address Sierra Club\u2019s core alleged injury\u2014 insufficient water remaining in streams. The BLNR mandates that diverted water be put to reasonable beneficial use, but this is a separate issue from how much water remains in the streams.<\/p>\n\n\n\n

\u201cSierra Club\u2019s alleged injury can only be remedied by increasing the amount of water that must remain in streams\u2014i.e., by adjusting instream flow standards. Only CWRM has authority to establish and modify instream flow standards under HRS \u00a7 174C-71. The BLNR cannot order more water to remain in streams; it can only regulate the terms under which already-authorized diversions occur.\u201d<\/p>\n\n\n\n

<\/strong>Although the permits involved in this case have expired, any decision by the Hawai\u02bbi Supreme Court may affect current and future permits. The Sierra Club appealed the Land Board\u2019s decision late last year to grant a new stream diversion permit to A&B and EMI for 2025 and to deny the group\u2019s contested case hearing request. <\/p>\n\n\n\n

That appeal, which is ongoing, also raises the issues of new information and the need to cross examine witnesses.<\/p>\n\n\n\n

\u2014 Teresa Dawson<\/strong><\/p>\n\n\n\n

For Further Reading<\/p>\n\n\n\n

\u2022 \u201cWater Roundup: Waihe\u2018e \u2018Auwai Restoration, East Maui Flow Standards, and More<\/a>,\u201d October 2022;<\/p>\n\n\n\n

\u2022 \u201cWater Commission Defers Scaling Back Restoration of Three East Maui Streams<\/a>,\u201d December 2022;<\/p>\n\n\n\n

\u2022 \u201cCourt Orders Reduction in Diversions Of Water from East Maui Streams<\/a>,\u201d July 2023;<\/p>\n\n\n\n

\u2022 \u201cCourt, Land Board Are Set on Same Day To Deliberate on East Maui Diversions<\/a>,\u201d December 2023; and<\/p>\n\n\n\n

\u2022 \u201cState Supreme Court Hears Arguments On Whether ICA Erred in East Maui Case<\/a>,\u201d December 2024.<\/p>\n","protected":false},"excerpt":{"rendered":"

Above photo: A stream diversion in East Maui. CREDIT: SIERRA CLUB OF HAWAI‘I. Last month, the Hawaiʻi Supreme Court granted applications for a writ of certiorari from both sides of a case involving the state Board of Land and Natural Resources’ renewal … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16717,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,541,28],"tags":[3],"class_list":["post-16705","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-september-2025","category-water","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16705","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=16705"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16705\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16717"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16705"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16705"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16705"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}