Land Board Grants One-Year Holdover<\/b>\u00a0Allowing A&B to Divert East Maui Streams<\/b><\/p>\n
\u201cI think it\u2019s important to keep in mind it\u2019s been \u2018just one more year\u2019 for 30 years,\u201d Office of Hawaiian Affairs public policy advocate Wayne Tanaka told the Board of Land and Natural Resources last month, noting that kupuna seeking stream restoration in East Maui have died waiting for it to happen.<\/p>\n
Indeed, the contested case initiated by the late Beatrice Kekahuna \u2014 one of the original group of native Hawaiian taro farmers who in 2001 challenged Alexander & Baldwin\u2019s (A&B) efforts to continue diverting streams upon which they relied \u2014 has dragged on so long that it is now in the hands of a younger generation that includes Kekahuna\u2019s son Sanford and Lurlyn Scott, daughter of another original petitioner, Marjorie Wallett.<\/p>\n
At the Land Board\u2019s December meeting, Native Hawaiian Legal Corporation (NHLC) attorneys representing Kekahuna, Scott, Healoha Carmichael, Lezley Jacintho, and the community group Na Moku Aupuni O Ko`olau Hui, argued against a proposal by the Department of Land and Natural Resources\u2019 Land Division to grant A&B and its subsidiary, East Maui Irrigation Co., Ltd. (EMI), a one-year holdover of four revocable permits held \u2014 or once held, some say \u2014 by the companies.<\/p>\n
But after hearing several hours of impassioned public testimony, mainly in opposition, the Land Board voted four to two to grant the holdovers in order to allow A&B to better transition its 35,000 acres in Central Maui from sugarcane to diversified agriculture.<\/p>\n
In making his motion to approve the holdovers, Land Board member Chris Yuen responded to the arguments Tanaka, the NHLC, and others made by highlighting the fact that in a separate but related contested case hearing before the Commission on Water Resource Management, the commission in July ordered that all streams identified by the petitioners as important to taro growing to be fully restored. Yuen incorporated that order into his motion and, to better ensure that the needs of organisms in \u201chigh-priority\u201d streams are met, required the companies to fully restore another East Maui stream, Honomanu. Yuen also ordered the removal or repair of those portions of EMI\u2019s irrigation system that either continue the diversion of streams that are supposed to be fully restored or prevent those streams from achieving mauka to makai connectivity.<\/p>\n
The holdovers, granted under Act 126 of the 2016 legislative session, allow A&B and EMI to divert up to 80 million gallons of water a day (mgd), and perhaps even more, from East Maui streams in the state license areas of Nahiku, Huelo, Honomanu, and Ke`anae. The holdover also allows EMI to maintain control over access to the 33,000 acres included in those license areas.<\/p>\n
The companies, some have argued, had been diverting the water without any legal authority since a January 2016 circuit court ruling invalidated their permits to do so. Although A&B has taken the position that it doesn\u2019t really need the permits, the company sought the holdovers just in case the state Intermediate Court of Appeals decides A&B is wrong.<\/p>\n
Contested Case Denial<\/i><\/b><\/p>\n
Before the Land Board even began discussing the holdover item, NHLC attorney Camille Kalama submitted a written request for a contested case hearing on behalf of her clients.<\/p>\n
First, she wrote in her supporting testimony to the board, \u201cas of today, A&B no longer needs the water from East Maui. A&B simply has no need for any of that water today, tomorrow, or next month.\u201d She pointed out that A&B subsidiary Hawaiian Commercial & Sugar, which closed its sugarcane operations last month, hadn\u2019t needed any water for its last crop for months. Given its vastly reduced water demand, she stated, A&B can and should be relying on its own ample supply of well water, even though pumping costs are something it would rather not pay. She also pointed out that the Hawai`i Supreme Court has ruled that a water applicant\u2019s proposed use \u201cmust be denied if the applicant does not show that there is no practicable alternative water source.\u201d<\/p>\n
Kalama also jumped on the Land Board\u2019s complete reversal of recent positions taken in other legal proceedings in which her clients have sought to restrict, if not end outright, A&B\u2019s diversions.<\/p>\n
In January 2016, 1st<\/sup> Circuit Judge Rhonda Nishimura ruled that four revocable permits to A&B and EMI that the Land Board renewed at its December 2014 meeting were invalid because state law never intended temporary permits to be continuously renewed for more than a decade, which is exactly what the board had been doing. An appeal followed and is still ongoing. In December 2015, aware of Nishimura\u2019s inclinations, the board continued the companies\u2019 diversions by voting to simply reaffirm a holdover it had granted years ago as part of the contested case hearing initiated by Kekahuna, Wallett and others.<\/p>\n Kalama noted that the Land Board has consistently taken the position in the appeal of Nishimura\u2019s decision and the Land Board\u2019s 2015 decision that its votes in 2014 and 2015 \u201cwere of no legal significance.\u201d<\/p>\n \u201cYou have argued that you gave A&B authority to use this land and water in 2001 and 2002 and that no other legal authority is necessary. Are you willing to repudiate that position?\u201d she asked.<\/p>\n She also took issue with the Land Division\u2019s characterization in its report to the board that Nishimura\u2019s ruling had been stayed pending the outcome of the appeal by A&B, the Land Board, and Maui County.<\/p>\n \u201cIt is well-settled law that the mere filing of an appeal from an order or judgment, in the absence of a stay of proceedings, will not disturb the operative effect or validity of such an order during the pendency of the appeal. Thus, the DLNR staff submittal statement that, \u2018Although the permits were invalidated by the Circuit Court, the ruling was stayed pending the appeal\u2019 is patently false[with regard to the Land Board, the DLNR and A&B]. Likewise, the DLNR staff\u2019s contention that \u2018[t]he Department considers the revocable permits to be in continued holdover status, until the resolution of the pending contested case before the board on the water license\u2019 is a misguided misbelief that invites the DLNR and this Board to be held in civil contempt for their plain-as-day failure to take all reasonable steps within their power to comply with the court\u2019s January 2016 order,\u201d she wrote.<\/p>\n She argued that granting the holdovers requested by A&B\/EMI would violate the public trust doctrine, Hawai`i\u2019s environmental review law, obligations to protect native Hawaiian traditional and customary practices, due process rights, and even Act 126, which the Legislature crafted last year specifically to allow for the continuation of water diversions while the processes associated with the issuance of a long-term lease \u2014 including legal challenges and the completion of environmental review documents \u2014 run their course.<\/p>\n With regard to the latter, Kalama wrote, \u201cBy its plain terms, Act 126 applies only to lease applications concerning \u2018a previously authorized disposition of water rights.\u2019 The first circuit court has already ruled that the BLNR\u2019s prior disposition was unauthorized.<\/b> Therefore, Act 126 is inapplicable to A&B for their permits.\u201d What\u2019s more, Act 126 requires the holdovers to be consistent with the public trust doctrine. And as she had already argued, \u201cgranting holdover status is inconsistent with the public trust doctrine.\u201d<\/p>\n Anticipating that the board might reject her arguments and approve the holdovers, Kalama asked that it condition them on the following:<\/p>\n In discussing the NHLC\u2019s contested case hearing request with attorney David Schulmeister, who represents A&B, Land Board chair Suzanne Case asked his opinion on what effect Act 126 might have on whether the hearing should be granted. In recent decisions regarding telescope development on Haleakala on Maui and Mauna Kea on Hawai`i island, the Hawai`i Supreme Court has ruled that the Land Board must address contested case hearing requests before<\/i> making a decision on the matter being contested.<\/p>\n After Schulmeister replied that Act 126 does not directly address that issue, the board decided to go into executive session with its deputy attorney general. When it reconvened, Yuen made a motion, which the board agreed with, to deny the NHLC\u2019s request, stating that a contested case hearing was \u201cnot available as a matter of law.\u201d He also noted that since the holdovers were only for a year, granting a contested case on them (that could conceivably last even longer than that) \u201cwould frustrate the legislative intent of Act 126.\u201d<\/p>\n Disputed Claims<\/i><\/b><\/p>\n HC&S manager Rick Volner, Jr., told the Land Board that it is currently diverting between 15 mgd and 20 mgd \u2014 down from a historical average of about 160 mgd \u2014 from East Maui and that the seven taro lo`i-serving streams that it promised last year to permanently restore have been nearly or fully restored. Biofuel crop trials and cattle grazing are already occurring on some of the former sugarcane lands, and there are plans to develop an agricultural park for small farmers, he said. Key to a successful transition to diversified agriculture, especially for the 27,000 acres of its former sugar plantation that have been classified as Important Agricultural Lands, is a secure source of water, he said. State Department of Agriculture director Scott Enright, corporation counsel for Maui County, and representatives from the island\u2019s and state\u2019s farming and ranching organizations also argued for the continued diversion of water by A&B.<\/p>\n Albert Perez, executive director of the Maui Tomorrow Foundation, however, argued that A&B should not be able to divert an unlimited amount of water while it figures out what it\u2019s going to do with it. Citing a letter from the group\u2019s attorney, he said that court rulings require a higher level of scrutiny to be applied to private, commercial uses, and that A&B to show its actual water needs, not it forecasted needs.<\/p>\n \u201cBasically, you can sum it up by saying, \u2018show me the farming.\u2019 If they just get a blank check, they have no incentive to really do agriculture,\u201d he said.<\/p>\n In trying to pin down the actual water uses and needs of A&B and its subsidiaries, Land Board members Sam Gon and Keone Downing first asked Volner where all of the water that used to be diverted is going.<\/p>\n \u201cEast Maui,\u201d Volner replied. \u201cIt stays in the watershed, in the streams.\u201d<\/p>\n Regarding an argument by A&B that it needs to continue diverting stream water, in part, to keep its ditch system operational, Gon then asked how much water that would require.<\/p>\n Volner said that was hard to pinpoint.<\/p>\n EMI president Garrett Hew noted that while his company is not currently diverting any streams in the Nahiku and Ke`anae license areas, it is maintaining the ditch system there in case \u201cany ag ventures require more water.\u201d<\/p>\n To Downing, Hew had just admitted that the ditch doesn\u2019t really need to stay wet to, as Volner explained later, clear debris and remain operational.<\/p>\n \u201cThe diversions\u201d \u2014 in Ke`anae and Nahiku \u2014 \u201chave gone dry?\u201d Downing asked Hew.<\/p>\n \u201cFor the most part, yes,\u201d Hew replied.<\/p>\n \u201cSo the diversions don\u2019t really need water,\u201d Downing said.<\/p>\n Maui Tomorrow Foundation board member Lucienne De Naie also took issue with A&B\u2019s claims that it needs East Maui water from state land. In addition to its well water, she noted that the company\u2019s ditch system takes water from 51 stream intakes located on its own property.<\/p>\n NHLC attorney David Frankel pressed the issue further.<\/p>\n \u201cWhy would you let A&B divert water from East Maui before they take 83 mgd [from its well] first? Additional water comes from A&B\u2019s own land. If they say they\u2019re using 20 mgd and they have access to 112, why let them take it from the public?\u201d he asked.<\/p>\n Both De Naie and Frankel also addressed Volner\u2019s statement that the water HC&S no longer needs is being kept in the East Maui watershed. \u201cIt\u2019s being returned to the watershed. The question is how,\u201d she said, arguing that the company was, as Kalama had testified, shifting water from one stream to another, rather than keeping streams undiverted.<\/p>\n \u201cWhen you\u2019ve been told the taro streams have been dealt with, it\u2019s not true,\u201d she said. She added that she has video showing Hanehoi Stream is still being diverted, despite claims that it\u2019s been restored. Another testifier showed video that Pi`ina`au, another stream that was supposedly restored, is still being diverted due to a hole in the ditch.<\/p>\n \u201cDon\u2019t assume everything is peaches and cream just because you saw a paper from CWRM,\u201d said Frankel, who also pointed out that the Water Commission did not impose in its order any deadlines on A&B\u2019s restoration of streams.<\/p>\n While De Naie conceded that obtaining all of the government approvals required for full restoration may take some time, she asked the board, \u201cDo you think three to four years is too long to wait? That\u2019s the question.\u201d<\/p>\n Frankel accused A&B of dragging its feet in the permitting process, as well as in its efforts to complete the environmental impact statement the Land Board had ordered it to begin.<\/p>\n Deliberation<\/i><\/b><\/p>\n As the Land Board came closer to making a decision on the holdovers, Frankel reminded the board of the fact that Judge Nishimura\u2019s ruling had not prompted the board or DLNR to stop A&B from continuing to divert East Maui streams. That being the case, \u201cWhy would you consider the [holdover] proposal? They\u2019re doing it now. Why do anything?\u201d he asked. (He and Kalama added, however, that they believed that because the Land Board and A&B had not received a stay of Nishimura\u2019s ruling, the diversions \u2014 except for those serving the Maui Department of Water Supply \u2014 were illegal.)<\/p>\n Board member Stanley Roehrig suggested that perhaps the board had changed its mind, or even made a mistake, regarding the legality of diverting water without the permits.<\/p>\n \u201cI\u2019m not in favor of illegal. Under what lawful authority are they [A&B and EMI] going to do it if we don\u2019t do something?\u201d he asked. \u201cThe Legislature gave blood on this bill [House Bill 2501, which became Act 126] \u2026 After her ruling, the ledge passed Act 126. We cannot ignore that and pretend only Judge Nishimura made her ruling,\u201d he said.<\/p>\n Rather than focus on past legal arguments, Yuen offered a motion to approve the holdovers, despite the fact that he had wanted the board to refrain from making any serious decisions on the use of East Maui stream water until the Water Commission concluded its contested case hearing on amendments to the interim instream flow standards of about two dozen streams.<\/p>\n \u201cBut here we are,\u201d he said.<\/p>\n He started by asking that several documents filed in the Water Commission\u2019s contested case hearing be incorporated into his motion. Those documents, which called for the full restoration of all 14 taro streams, among other things, went a long way toward meeting Act 126\u2019s requirement that holdovers meet the public trust doctrine, he seemed to suggest.<\/p>\n The commission\u2019s order to restore those streams was significant, he argued. \u201cPeople are so used to hearing bad news they don\u2019t hear the good,\u201d he said.<\/p>\n With regard to protecting stream life and biota, Yuen pointed to a Division of Aquatic Resources study that had identified eight priority streams, six of which are covered by the July 2016 Water Commission order. The two others are diverted high up by the Maui Department of Water Supply. Even so, he ordered the restoration of one of those streams, Honomanu, which had once been identified by DAR as a priority stream but was removed from the list because there were doubts that losing reaches might prevent it from connecting to the sea.<\/p>\n He added conditions that there be no waste or non-beneficial use of diverted water, that a hole in the Pi`ina`au diversion be closed, and that A&B remove sections of the ditch system that erode and cause portions of the streams to be restored to go dry, thus allowing for full connectivity.<\/p>\n Yuen had recommended capping diversions at 80 mgd, but upon a recommendation from Case, revised the condition so that the matter is merely brought back to the board for review if and when diversions come close to 80 mgd.<\/p>\n The 80 mgd amount didn\u2019t appear to be based on any actual need stated by A&B, but Yuen argued that allocating water for potential uses was reasonable. (A&B\u2019s protected agricultural uses, not including ditch system losses, total about 89 mgd.) He said that A&B\u2019s well, according to the Water Commission\u2019s hearings officer, cannot serve even half of company\u2019s lands and requires electricity to pump, whereas water from the ditch system does not. Also, he said, it\u2019s not practical for the company to have water only for a certain set of uses and be required to return to the Land Board whenever it has need for more.<\/p>\n \u201cThat\u2019s a chicken and egg thing and we\u2019ll end up with neither the chicken nor the egg without a practical allocation [of water],\u201d he said, adding that the motion he had crafted took care of many of the interests of those seeking stream restoration.<\/p>\n Addressing arguments that commercial agriculture is not protected by the public trust doctrine, Yuen said that contrary determination was made before the state passed its laws requiring the designation and protection of Important Agricultural Lands (IAL). IAL are of constitutional importance, and therefore the water needed to make those lands productive should have constitutional protection, he said.<\/p>\n Board member Gon, however, said he was troubled by the lack of information regarding A&B\u2019s request and that if the board were to deny the holdovers, it would not affect the company.<\/p>\n \u201cI have a feeling I need to vote against this until enough information is available to support the public trust \u2026 and justify it if someone came up to me,\u201d he said. Board member Downing agreed.<\/p>\n Downing asked company representatives why the board was being forced to take a stand on something \u201cyou knew you had an abundance of? \u2026 There\u2019s no data from you folks. How much are you gonna use? What for?\u201d<\/p>\n Roehrig warned the companies that \u201cnext time around, I\u2019m going to vote no. \u2026 Take that to headquarters.\u201d<\/p>\n With an amendment (recommended by Roehrig) to the motion that representatives from the opposing sides of the issue trade phone numbers so they can perhaps informally work out certain issues among themselves, the board approved the holdovers. Gon and Downing opposed the motion. Yuen, Roehrig, Case, and Kaua`i board member Tommy Oi voted in favor. Maui Land Board member Jimmy Gomes had recused himself from the matter.<\/p>\n <\/p>\n * * *<\/b><\/p>\n Wind Farm Opponent Secures<\/b><\/p>\n A Contested Case Hearing<\/b><\/p>\n At its December meeting, the state Board of Land and Natural Resources granted a contested case hearing to the community group Keep the North Shore Country, which opposes the approval of a Habitat Conservation Plan (HCP) and incidental take license (ITL) for Na Pua Makani wind farm on O`ahu\u2019s north shore.<\/p>\n Group president Gil Riviere, who is also the state senator for the area, pointed out to the Land Board that Keep the North Shore Country\u2019s purpose is environmental protection in the region and it has received funds from Turtle Bay Resort to enhance protection of the endangered Hawaiian goose, or nene. Nene are one of several threatened or endangered species that are expected to be harmed or killed by the wind farm\u2019s nine turbines. Riviere also expressed concern about the potential harm to the endangered Hawaiian hoary bat, which is the species most often taken by wind farms in the islands.<\/p>\n With regard to Na Pua Makani\u2019s HCP proposals to fund research or control ungulate damage in the forest as mitigation for bat deaths above a certain number, Riviere called the plan fatally flawed and encouraged the board to send it back to the Endangered Species Recovery Committee, which is made up largely of scientists from various government agencies. The committee must approve all HCPs before they come to the Land Board.<\/p>\n Mike Cutbirth, manager of Na Pua Makani Power Partners, argued that the HCP was, in fact, scientifically sound and that Keep the North Shore Country was merely seeking to delay the project. The state has very high standards when it comes to HCPs, he said, adding that the species covered by the plan and license will be \u201cbetter off with the project than without\u201d and that the mitigation requirements for his project are higher than those for the five other wind farms throughout the state.<\/p>\n He pointed out that Keep the North Shore Country had ample opportunity \u2014 seven public meetings \u2014 to comment on the plan and license, but it chose not to.<\/p>\n In October, the Land Board approved a lease for the project and took up the matter of the HCP and ITL at its November meeting. At that meeting, Riviere, on behalf of Keep the North Shore Country, and Kahuku resident Kent Fonoimoana, on behalf of the Kahuku Community Association and another group, requested a contested case hearing. At the Land Board\u2019s December meeting, the board entertained only Riviere\u2019s request.<\/p>\n After the board discussed legal issues in executive session, board member Chris Yuen made a motion to grant Riviere\u2019s group a contested case hearing and determine that it had standing. While his motion passed, it was far from unanimous.<\/p>\n Member Sam Gon, chief scientist for The Nature Conservancy of Hawai`i and a recent former member of the Endangered Species Recovery Committee who was involved in lengthy discussions regarding wind farm interactions with bats, agreed with Cutbirth that Riviere\u2019s group had had ample opportunity to engage in the public process. Gon added that when a habitat conservation plan is developed, it has to pass muster with the state Division of Forestry and Wildlife and the U.S. Fish and Wildlife Service. \u201cThe suggestion that the HCP is \u2018fatally flawed\u2019 \u2026 is problematic in my mind,\u201d he said.<\/p>\n When it came time to vote, Maui member Jimmy Gomes and board chair Suzanne Case joined Gon in his opposition to the motion.<\/p>\n <\/p>\n ***<\/b><\/p>\n Board Transfers 600 Acres<\/b><\/p>\n To Department of Agriculture<\/b><\/p>\n More than a decade after the state Legislature passed a law directing the Department of Land and Natural Resources to transfer some of its agricultural lands to the Department of Agriculture, the mission is still not complete. But at the Land Board\u2019s meetings in November and December, it approved the transfer of more than 600 acres on O`ahu, most of which are under leases or permits to about two dozen farmers and ranchers. Nearly 169 acres are unencumbered.<\/p>\n \u201cThe [DLNR] has been working with the Department of Agriculture (DOA) in order to expedite additional transfers, in keeping with the Governor’s initiative for the development of sustainable local agricultural production. The set aside of the properties to DOA will allow the properties to be managed more consistently with that initiative,\u201d a staff report states.<\/p>\n \u2014 Teresa Dawson<\/i><\/b><\/p>\n","protected":false},"excerpt":{"rendered":" Land Board Grants One-Year Holdover Allowing A&B to Divert East Maui Streams “I think it’s important to keep in mind it’s been ‘just one more year’ for 30 years,” Office of Hawaiian Affairs public policy advocate Wayne Tanaka told the Board … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":8786,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[413],"tags":[3],"class_list":["post-9415","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-january-2017","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/9415","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=9415"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/9415\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/8786"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9415"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9415"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9415"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n