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State Supreme Court agrees to hear East Maui water case

Contested case over A&B permits dates back 20 years

The Hawaii Supreme Court has agreed to take up a long-contested case over state water diversion permits in East Maui.

The high court Monday announced it will hear Carmichael vs. BLNR and Alexander & Baldwin. Oral arguments likely will be scheduled for next year, according to the Native Hawaiian Legal Corp, which represents the plaintiffs.

For more than a decade, Na Moku Aupuni O Ko’olau Hui, a group of taro farmers and Native Hawaiian practitioners, has been battling A&B, the state and the county over revocable water permits, renewed annually, that allow A&B to take water from East Maui streams on state land for agricultural uses Upcountry and in Central Maui.

The plaintiffs won a major victory in 2016 when Oahu Circuit Court Judge Rhonda Nishimura ruled that the annual rollover of permits for 13 years by the state Board of Land and Natural Resources was not temporary and thus violated state law for holdover permits.

However in June, the state Intermediate Court of Appeals overturned the ruling and sent the case back to the lower court. The plaintiffs then asked the state Supreme Court to review the case in a Sept. 30 filing.

“With the stroke of a pen the ICA (Intermediate Court of Appeals) eviscerated critical legal protections for Hawaii’s public trust resources, undermined decades of case law, and deprived petitioners justice long overdue,” according to the Native Hawaiian Legal Corp.’s writ of certiorari.

NHLC attorneys said the main question for the appeal centers on authority.

“What lawful authority, if any, BLNR acted under when it placed the challenged revocable permits in hold-over status, and thereafter continued to maintain them in holdover status for over a decade,” NHLC said in the writ. “The answer is: none. Petitioners apply for a writ of certiorari because the ICA’s opinion must be reversed immediately to end, once and for all, BLNR’s perverse practice of placing temporary permits authorizing the use of 33,000 acres of state land to divert up to 450 million gallons of water daily in holdover status.”

A&B has been diverting water in its system of ditches, tunnels and siphons for more than 150 years, most of those years for sugar operations, which ceased in 2016. Plaintiffs say those diversions have taken the main East Maui stream flows, crippling taro farming, hurting native ecosystems and deterring Native Hawaiian cultural practices.

In Carmichael vs. BLNR and Alexander & Baldwin, plaintiffs argue that four month-to-month permits approved by the state to A&B in July 2000 and repeatedly renewed year after year violate the law on temporary permits. Also, plaintiffs say the state requires environmental review of the water delivery system, which was never done.

After the Circuit Court ruling in 2016, the state Legislature acted to extend the revocable permit practice until this year. After contentious hearings and protests by Native Hawaiian and environmental groups, the Legislature in May did not provide an extension to the practice.

That threatened A&B’s access to East Maui water after the end of its current permit in December. A&B sugar land on Maui was sold last December to Mahi Pono, which has begun farming operations on those lands.

Based on the Intermediate Court of Appeals ruling, the state Board of Land and Natural Resources approved in October another one-year permit for A&B to continue to divert water from East Maui through 2020.

A&B submitted to the state in September a draft environmental impact statement for its East Maui diversions as part of an effort to obtain a long-term 30-year lease.

* Kehaulani Cerizo can be reached at kcerizo@mauinews.com.

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