Judge orders new hearing on Maui water permits

Star Advertiser
By Timothy Hurley –

A Circuit Court judge says he’s prepared to revoke Alexander &Baldwin’s annual permit allowing it to divert up to 45 million gallons per day from dozens of streams in East Maui.

Judge Jeffrey Crabtree, in a ruling issued Friday, ordered the Board of Land and Natural Resources to hold a contested case hearing about the revocable permit and said he would cancel it June 30 unless he sees a formal request to stay his order.

The Sierra Club asked the Land Board in November to hold a contested case hearing on Alexander & Baldwin Inc. and East Maui Irrigation’s request to continue using about 33,000 acres of public land and divert 45 million gallons per day from East Maui streams for the year 2021.

The board denied the request and approved the continuation of the permits, prompting an appeal by the Sierra Club.

On Friday the court concluded in an interim decision that the board violated the nonprofit’s due process rights and ordered a contested case hearing as soon as practicable.

“The court’s order means that for the first time, the Board of Land and Natural Resources will be required to make A&B fulfill its burden of proof before receiving any permits to use public resources,” Sierra Club’s attorney David Kimo Frankel said in a statement.

Frankel said the Sierra Club finally will be given an opportunity to show how much harm the diversions are causing the streams.

“A&B cannot justify draining streams dry when most of the water it takes is wasted,” he said.

Asked for comment, BLNR spokesman Dan Dennison said the agency doesn’t comment on legal issues prior to settlement. A spokesperson for Alexander &Baldwin could not be reached Monday.

In his ruling, Crabtree said he didn’t buy arguments from the board that allowing contested case hearings on annual revocable permits could mean requiring such hearings on virtually everything BLNR decides.

Crabtree said new information, issues and developments pertinent to the stream diversions have come up recently and are worthy of a closer look in a contested case hearing.

“Our environmental law system has a goal that the decision-makers will hear from stake-holders before decisions are made, to help decision-makers reach sound policy decisions examined from multiple perspectives,” the judge said in his ruling.

“The new information and issues,” he wrote, “are relevant, and are not insignificant.”

Crabtree is the same judge who in April sided with BLNR and Alexander & Baldwin in a similar case challenging the 2018 and 2019 permits.

Following a three-week trial, Crabtree ruled that the board acted properly when it allowed the diversion of stream water in those permits, saying Hawaii’s public-trust doctrine imposes a dual mandate on the state to both protect water resources and make maximum reasonable beneficial use of those resources.

The parties remain in mediation over the final order.

Sierra Club Director Marti Townsend said the upcoming contested case should provide a full hearing on the issues, including the amount of wasted water in the aging system and the fact that the diversions are making the streams run dry too much of the time, causing immense ecological damage.

“We’re trying to use all remedies available to us to make sure we protect those resources,” she said.

Townsend said the court’s decision will not affect Upcountry Maui users of the stream water. “The Sierra Club has repeatedly committed to ensuring that water continues to flow to domestic users of the water like those in Upcountry,” she said.

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