A&B may get water permit in the end

Appeals court overturns ruling at heart of E. Maui diversion controversy in Legislature

Alexander & Baldwin’s controversial effort to continue to divert water from state land in East Maui, which died in the state Legislature in May, gained new life following an appellate court decision Tuesday.

The state Intermediate Court of Appeals vacated a 2016 1st Circuit Court judgment in favor of East Maui taro farmers and native practitioners and sent the case back to the lower court.

In the case Carmichael vs. BLNR and Alexander & Baldwin, the plaintiffs challenged month-to-month water permits granted by the state Board of Land and Natural Resources to A&B in 2000 that were annually renewed. The plaintiffs argued that the permits, which allowed A&B to take the main flow of water from streams on state land, were a blank check without environmental reviews and not in keeping with rules for temporary permits.

The diversions interrupted continuous flow of the streams in East Maui, leaving taro farmers unable to tend to their loi and Native Hawaiians to conduct their native practices, they argued.

Oahu Circuit Court Judge Rhonda Nishimura ruled in favor of the plaintiffs in 2016, saying that the annual rollover of permits for 13 years was not temporary and thus in violation of the law for holdover permits.

The state Intermediate Court of Appeals ruled that Nishimura’s summary judgment contained factual problems and returned the case to the lower court for clarification. In the meantime, the state can continue to dole out revocable permits as it has done prior to the ruling.

“The (Intermediate Court of Appeals) affirmed the authority of the Board of Land and Natural Resources to issue permits for the temporary occupancy of state lands on a month-to-month basis, not to exceed one year,” said Krishna F. Jayaram, special assistant to the state attorney general, on Wednesday.

Jayaram also said that the BLNR may “continue the permit for additional one year periods where the use will be temporary and ‘under conditions and rent which will serve the best interests of the state.’ ”

“In light of this (court) decision, it is the position of the Department of the Attorney General that the Board of Land and Natural Resources has the authority to continue revocable permits on a month-to-month basis for additional one year periods subject to meeting the requirements of HRS section 171-55,” Jayaram said.

Now A&B, along with small farmers, ranchers and utilities on Hawaii and Kauai islands, all of whom were lumped into the contentious House Bill 1326, may apply for revocable permits, which were set to expire at the end of this year. That bill called for extending revocable permits for seven years.

But the measure failed in May with Native Hawaiian and environmental groups in vigorous opposition to both A&B and the bill in the state Senate.

The Native Hawaiian Legal Corp., which represents the East Maui taro farmers and Native Hawaiian practitioners, said Wednesday that it plans to appeal Tuesday’s ruling.

“We have no choice but to appeal this ruling,” said Summer Sylva, Native Hawaiian Legal Corp. attorney. “No court should be sanctioning BLNR’s two-decades-long practice of permitting the use of 33,000 acres of public lands and billions of gallons of public water annually to one commercial diverter without requiring the completion of any environmental review whatsoever.

“A&B’s uninterrupted use of these resources for over 140 years is the kind of abuse, neglect and injustice that our state’s environmental protection statutes were enacted to stamp out.”

A&B spokesman Darren Pai on Wednesday said that the company is reviewing the decision and can’t comment until the analysis is completed. A&B had diverted water for its sugar cane crops in Upcountry and Central Maui for more than a century, but it shut down Hawaiian Commercial & Sugar Co. in December 2016.

A&B sold its former sugar fields, more than 40,000 acres, to Mahi Pono in December. Both companies own half of East Maui Irrigation, which runs the diversion system of ditches, tunnels and siphons.

BLNR Chairwoman Suzanne Case said Wednesday that the court’s opinion clarifies BLNR’s authority to continue revocable permits.

“DLNR is committed to moving the water lease applications forward, working collaboratively with water users, and can now submit requests to the BLNR to continue the water RPs while this process is pending,” she said.

Case added that the ruling takes pressure off farmers and utilities who can meet state requirements for revocable permits since many would have a “hard time” finishing the long-term water lease process by the December expiration date of their revocable permits.

Sylva said that the positive aspect of Tuesday’s ruling is that it will allow small farmers and other applicants with minimal environmental impacts an avenue to obtain revocable water permits. These permit holders should not have been grouped with A&B and held to the same standard.

“We have always maintained that the Carmichael lawsuit was singularly focused on A&B’s permits alone because the magnitude of its environmental impacts and injuries upon East Maui’s watershed and the six and seven generations of Hawaiian communities deprived of life-giving wai (water) had no equal,” she said. “So, too, no other water permits have been the subject of a contested case that has lasted 18 years and counting. . . .

“Giving these small farmers, ranchers and water users peace of mind that their family operations were never the target of this lawsuit is the one silver lining in this decision.”

Native Hawaiian taro farmers and cultural practitioners for generations have fought for protection of East Maui’s streams, which were left dry from A&B diversions that rerouted natural flows to feed its now-closed sugar plantation.. Last year, a landmark decision by the Commission on Water Resource Management established interim in-stream flow standards for key East Maui streams. Full restorations or continuous flows in 17 streams were ordered by the commission.

Because of the East Maui history surrounding water rights and the significance of environmental standards, Tuesday’s ruling was disheartening, Sylva said.

“After fighting for decades to provide the Hawaiian communities and public trust resources of East Maui with the protections guaranteed them under our state laws and our state Constitution, we regret that the three appellate judges assigned to this case elected to read the statute that governs BLNR’s management and permitting of public lands and water as nullifying the bedrock of environmental protection law — environmental reviews and assessments,” she said. “It’s as if they forgot that BLNR, like (the Commission on Water Resource Management), serves as the primary guardian of our state’s public trust resources, and that the letter and spirit of our environmental laws speak most directly and most importantly to these agencies and the public trust duties entrusted to them.”

Another piece to the state water rights permitting puzzle is the Upcountry water system, which partially relies on water from EMI diversions. Without HB 1326, supporters argued that Upcountry water would be in question, while opponents said water would continue to flow uninterrupted, and the Department of Water Supply was faced with the challenge of figuring out how to ensure water capture and delivery.

County Water Supply Director Jeff Pearson said Wednesday that he welcomes any options that would ensure water can get from East Maui to Kamole Weir, where EMI’s ditch system meets the county system, and eventually to Upcountry water users.

“I am happy with the fact there are options out there for an RP to continue water to get to Kamole,” he said.

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