{"id":16805,"date":"2025-11-01T14:50:26","date_gmt":"2025-11-02T00:50:26","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=16805"},"modified":"2026-06-23T12:10:55","modified_gmt":"2026-06-23T22:10:55","slug":"new-noteworthy-kaua%ca%bbi-water-decision-dbcp-lawsuit-and-a-correction","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=16805","title":{"rendered":"New & Noteworthy: Kaua\u02bbi Water Decision, DBCP Lawsuit, and a Correction"},"content":{"rendered":"\n

Kaua\u02bbi Water Decision:<\/strong> On September 30, the Hawai\u02bbi Supreme Court ruled that the state Board of Land and Natural Resources should not have denied contested case hearing requests by Kia\u2018i Wai O Wai\u2018ale\u2018ale and Friends of M\u0101h\u0101\u02bbulep\u016b over revocable permits allowing the Kaua\u02bbi Island Utility Corporation to continue diverting water from Wai\u02bbale\u02bbale and Waikoko streams in 2021 and 2022.<\/p>\n\n\n\n

The high court also found that the Environmental Court, which had ruled in the groups\u2019 favor, had the authority to review the Land Board\u2019s approval of the permits.<\/p>\n\n\n\n

After KIUC\u2019s 2022 permit expired, the utility did not seek another one to continue diversions. Even so, Environmental Court Judge John Tonaki found in May 2023 that the groups\u2019 complaint was not moot and that they should have been granted a contested case hearing. He also vacated the permit approvals for 2021 and 2022. <\/p>\n\n\n\n

The Intermediate Court of Appeals reversed Tonaki\u2019s decision in July 2024, finding that the appeal was moot and no exceptions to the mootness doctrine applied.<\/p>\n\n\n\n

The Hawai\u02bbi Supreme Court reversed the ICA, upholding Tonaki\u2019s ruling.<\/p>\n\n\n\n

The Land Board\u2019s attorneys had argued that even if the court determined that the groups had actual or threatened injuries, they still lacked standing because their alleged injuries could only be redressed by the Commission on Water Resource Management, which determines the minimum amount of water that must be left in streams. <\/p>\n\n\n\n

\u201cThe board asserts that it is not \u2018regulating water use when it\u2019 continues a revocable water permit under [Hawai\u02bbi Revised Statutes] \u00a7 171-55, but is simply carrying out \u2018a mechanism by which the state may charge rent for use of public trust resources,\u201d the high court noted. \u201cUnder this argument, the board seeks to be absolved of its responsibility and authority over permits and conditions which it issued \u2026  and also its constitutional obligations as trustee of the state\u2019s public trust resources.<\/p>\n\n\n\n

\u201cWe agree with petitioners that such an argument cannot stand,\u201d the court wrote.<\/p>\n\n\n\n

The high court remanded the case back to the Land Board for a contested case hearing. <\/p>\n\n\n\n

\u201cThe contested case hearing should address petitioners\u2019 claims that permit conditions were violated prior to issuance of the 2021 RP and 2022 RP \u2014 including the alleged resulting disrepair or degradation of improvements under the permit and the alleged diversions of water or waste \u2014 and the asserted impacts on petitioners\u2019 property interests. The board should require actions by KIUC that the board would have required before issuing the 2021 RP and 2022 RP after a contested case hearing, to address prior violations of permit conditions and the resulting harms to petitioners,\u201d the opinion states.<\/p>\n\n\n\n

DBCP Case Update:<\/strong> Ten years ago, the state Supreme Court ruled that a 1997 lawsuit brought against Dole Food Company, Inc., Del Monte, Shell Oil, Dow Chemical, and several other companies by workers in Central America exposed to the pesticide DBCP could proceed in state court. The workers alleged that they were harmed by exposure to DBCP, which continued to be used for years in Central America plantations even after its use was banned in the United States.<\/p>\n\n\n\n

It took another seven years for 1st<\/sup> Circuit Judge Gary W.B. Chang to dispose of the workers\u2019 claims, granting the defendants\u2019 motions for summary judgment individually for each of the defendants and, finally, for the group as a whole.<\/p>\n\n\n\n

The case then moved to the Intermediate Court of Appeals, which issued its 31-page memorandum opinion on September 22.<\/p>\n\n\n\n

After reviewing the case history and the findings of Chang with respect to the individual plaintiffs, the ICA went on to consider the plaintiffs\u2019 points of error. While rejecting several of them, it found that the lower court did err by not allowing testimony of an expert in toxicology and excluded testimony and statements from some of the plaintiffs. The case was then remanded back to the lower court.<\/p>\n\n\n\n

Environment Hawai<\/em>\u02bb<\/em>i <\/em>reported extensively on this and related litigation in September 2014. <\/p>\n\n\n\n

A Correction: <\/strong>Our September Board Talk reported testimony that little fire ants had been introduced into Upper Limahuli Valley by a contractor for the National Tropical Botanical Garden. Little fire ants \u201chave not been detected in any part of Limahuli Valley, or in the contractor\u2019s fence construction materials. However, numerous biting ants were found in the material storage area and a NTBG staff inspecting the site was severely bitten while taking samples of the ants, which prompted the biosecurity concern,\u201d according to Uma Nagendra, Conservation Operations Manager for Limahuli Garden and Preserve, National Tropical Botanical Garden.<\/p>\n","protected":false},"excerpt":{"rendered":"

Kauaʻi Water Decision: On September 30, the Hawaiʻi Supreme Court ruled that the state Board of Land and Natural Resources should not have denied contested case hearing requests by Kia‘i Wai O Wai‘ale‘ale and Friends of Māhāʻulepū over revocable permits … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16817,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,18,543,456,28],"tags":[7,3],"class_list":["post-16805","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-new-noteworthy","category-november-2025","category-pesticides","category-water","tag-patricia-tummons","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16805","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=16805"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16805\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16817"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16805"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16805"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16805"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}