Judge throws out sand-mining suit

Environmental Court case with the same plantiffs is still pending

WAILUKU -- A 2nd Circuit Court judge dismissed a lawsuit against Maui County, its Department of Public Works director and Maui Lani Partners on Friday over the extension of a grading permit for a development site in Kahului.

But Judge Joseph Cardoza did not dismiss the suit with prejudice, as requested by the county, meaning that the matter could resurface in court, perhaps in a related case.

That case remains pending in Environmental Court. It involves the same plaintiffs -- Native Hawaiian group Malama Kakanilua with its members, Clare Apana and Kaniloa Kamaunu, against Maui Lani Partners. The plaintiffs maintain that the developers violated state historic preservation laws, county grading permits and county zoning laws while excavating and moving sand from Maui Lani's phase 9 site. They worry that mining of Central Maui inland sand and excavation could threaten Native Hawaiian burials in the sand dunes. The county is not a party to this older lawsuit.

That case preceded one filed in March. In that one, Malama Kakanilua, Apana and Kamaunu complained that the county and its public works director should not have renewed Maui Lani's grading permit in November for its phase 9 site. The lawsuit contended that the one-year permit renewal was granted for unspecified "good cause" without review or concurrence from the state Historic Preservation Division. The plaintiffs maintain that state law requires the division's concurrence. Plaintiffs had wanted the permit rescinded and for it to be reviewed by the state.

In his ruling, Cardoza said that having the public works director get consent or comment from the Historic Preservation Division for granting a permit extension is "not present under the law."

He added that he believed the director also has the discretion to decide whether to grant a permit extension.

Cardoza also denied a plaintiffs' motion for summary judgment.

After the hearing, Public Works Director David Goode said in a phone interview: "We are obviously appreciative that the judge saw that we administered our grading permit extension properly. We understand the plaintiffs have concerns related to historical and cultural aspects of the property and those concerns need to be addressed with the state. We rely on the state historic preservation and the burial council to handle these concerns. That's where the conversation needs to happen, not with the county issuing standard permit extensions."

A spokeswoman for Maui Lani could not be reached for comment Friday.

Outside of court, attorney Lance Collins said the plaintiffs were disappointed by the judge's dismissal, but he said Cardoza's ruling shows there are limitations in the current burial preservation laws.

The plaintiffs were hopeful after Cardoza said issues in this case could be addressed in their broader litigation. Collins said plaintiffs would undertake discovery in the matter.

Asked how the court and plaintiffs' opinions could differ so dramatically over whether the county needed to consult with the state over a grading permit extension, Collins said it was a matter of legal interpretation.

There are no legal precedents for grading permit extensions, he said.

Plaintiffs had asked Goode to rescind the permit, but the request was denied. A letter from the county said there was good cause to extend the permit and a lack of response from the state Historic Preservation Division.

Collins had said the suit was filed because the county extended the grading permit less than a week after Cardoza filed a written preliminary injunction in the older case regarding earth-moving activities on the Maui Lani phase 9 property. The judge had restricted Maui Lani's grading activities.

The judge ordered that Maui Lani notify the plaintiffs at least 48 hours before there's a ground disturbance or soil removal from the phase 9 site, according to the written ruling.

Outside of court, Collins said there has been no grading at the site since the dispute has been in litigation.

Community protests over the land-altering activities in Maui Lani were spawned by a Honolulu TV news telecast last year reporting that a contractor was removing and shipping truckloads of sand to Oahu from the phase 9 site. That practice soon stopped at the site.

* Melissa Tanji can be reached at mtanji@mauinews.com.