On October 29, Environmental Court Judge Lisa W. Cataldo issued an opinion in the Sierra Club of Hawai\u02bbi\u2019s appeal of a June 30, 2022, contested case decision by the Board of Land and Natural Resources to approve revocable permits allowing East Maui Irrigation Company and its parent, Alexander & Baldwin, to divert 45 million gallons of water a day from East Maui streams.<\/p>\n\n\n\n
The four permits have expired. Even so, Cataldo noted, \u201cFinding two applicable exceptions to the mootness doctrine\u2014capable of repetition yet evading review and public interest\u2014the Intermediate Court of Appeals remanded this appeal to the Environmental Court for further proceedings consistent with the Summary Disposition Order.\u201d<\/p>\n\n\n\n
Oral arguments were held on April 30. <\/p>\n\n\n\n
In a supplemental brief, the Sierra Club asked the court to reverse the board\u2019s decision to grant the 2022 permits. It also asked that the Land Board, in considering revocable permits, a) \u201creduce the amount of East Maui stream water allocated for irrigation by the amount of groundwater that can be sustainably pumped;\u201d b) \u201creduce the amount of water allocated for irrigation by the amount of water that the county does not use daily on average;\u201d c) \u201crequire practical mitigation measures to reduce system losses;\u201d d) \u201censure [the Commission on Water Resource Management\u2019s] interim instream flow standards are in place and fully implemented before allowing more water to be taken from East Maui streams;\u201d and e) \u201crender necessary findings regarding traditional and customary practices.\u201d<\/p>\n\n\n\n
Attorneys for the Land Board, A&B, and EMI argued that, if granted, the Sierra Club\u2019s recommendations would amount to a mandatory injunction on current or future permits.<\/p>\n\n\n\n
The Sierra Club countered that its proposed instructions simply reiterate general legal principles the Land Board is required to follow.<\/p>\n\n\n\n
Judge Cataldo ultimately ruled that the Land Board had breached its public trust duties because it failed to address and protect traditional and customary practices.<\/p>\n\n\n\n
She also determined that the Land Board had failed to ensure that water taken from streams \u201cwas and will be used in a reasonable and beneficial manner given system losses; that it failed to hold A&B\/EMI to their burden regarding their actual water needs and the lack of alternative water sources; it improperly authorized an increase in the amount of water diverted from East Maui before resolution of the Sierra Club\u2019s petition to set instream flow standards; and it failed to protect the flow of the 12 Huelo streams and impermissibly used \u2018uncertainty\u2019 as a reason.\u201d<\/p>\n\n\n\n
With regard to the Sierra Club\u2019s recommended instructions to the Land Board, she wrote, \u201cthe court takes no issue with items C, D and E, above, finding they are not too inflexible or too vague, are well supported by case authority and do not amount to \u2018broad, sweeping pronouncements on fact- and case-specific issues.\u2019\u201d<\/p>\n\n\n\n
She did not, however, instruct the Land Board to follow requests a) and b), \u201cwhich seek instructions to reduce the amount of water allocated for irrigation.\u201d<\/p>\n\n\n\n
With regard to the court\u2019s instruction regarding item c), ensuring that the commission\u2019s IIFS are in place before allowing more water to be taken, Sierra Club attorney David Kimo Frankel explained, \u201cThe word ‘more\u2019 is ambiguous. The Sierra Club has used the word ‘more’ to mean \u2018more than had previously been diverted\u2019; not \u2018not a single drop more.\u2019 \u2026 The Sierra Club is not attempting to put Mahi Pono out of business, depriving it completely of all water (like umm, some of our streams are. . .). There will be some disagreement about how much has previously been diverted. Bottom line: Mahi Pono should not be planting more acreage until the diversion structures are fixed.\u201d<\/p>\n\n\n\n
Cataldo\u2019s order is the latest in a long list of court decisions against the Land Board regarding its decisions permitting the continued diversion of East Maui streams.<\/p>\n\n\n\n
\u201cWe are still waiting for decisions from the Intermediate Court of Appeals regarding the BLNR\u2019s 2019 and 2020 decisions. We are still waiting a decision from the Hawai\u2018i Supreme Court on the BLNR\u2019s denial of a contested case hearing for the permits for 2023. We are still waiting a decision from the Environmental Court on the permit for 2025,\u201d Frankel stated.<\/p>\n\n\n\n
N\u0101 Moku Aupuni o Ko\u02bbolau Hui, represented by the Native Hawaiian Legal Corporation, also has a case pending before Judge Cataldo seeking to overturn the Land Board\u2019s decisions to deny the group a contested case hearing and to approve the permit for 2025.<\/p>\n\n\n\n
\u2014 Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" On October 29, Environmental Court Judge Lisa W. Cataldo issued an opinion in the Sierra Club of Hawaiʻi’s appeal of a June 30, 2022, contested case decision by the Board of Land and Natural Resources to approve revocable permits allowing … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":8831,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[543,28],"tags":[3],"class_list":["post-16789","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-november-2025","category-water","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16789","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=16789"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16789\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/8831"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16789"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16789"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16789"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}