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Mayor will not withdraw the injection wells case

Council to mull hiring outside attorney; citizens threaten legal action

MICHAEL VICTORINO, To proceed with injection well case

WAILUKU — Maui County Mayor Michael Victorino announced his intention on Friday to press forward with the injection well case before the U.S. Supreme Court, setting up a clash between his administration and the Maui County Council, which has voted to settle the case, and community members, who are threatening legal action.

“This issue must be clarified once and for all, not relitigated endlessly at county taxpayers’ expense,” Victorino said in a letter on Friday afternoon. “Plaintiffs chose federal courts to file suit against Maui County in 2012. If their case has merit, they should welcome having it heard by the Supreme Court.”

Isaac Moriwake, an Earthjustice attorney representing the plaintiffs, welcomed the challenge.

“If the mayor won’t do the right thing, we’re more ready than ever to go to the Supreme Court and defend clean water for the nation against the Victorino and Trump administrations,” he said. “The courts have ruled against the county time and again in this case, and even if the mayor gets his way and blocks the settlement, we believe justice will prevail at the Supreme Court in favor of clean water protection, and not the right to pollute.”

The mayor’s decision did not come as a surprise to council Chairwoman Kelly King.

Rosemary Robinson of Haiku (from left), Isabelle Kohler of Paia and Sylvia Litchfield of Makawao camp out in front of the mayor’s office Friday afternoon. They were calling on the administration to “honor the County Council’s decision to settle the injection (well) case, stop the attack against our nation’s clean water protections and focus our resources on eliminating the pollution of our West Maui waters.” Mayor Michael Victorino announced on Friday afternoon that he was moving forward with the case. -- The Maui News / COLLEEN UECHI photo

“I assumed that’s where he was going,” King said. “If he really wanted to settle it and honor the will of the people, he would’ve done it a long time ago.”

On Friday, the council planned to discuss a resolution that would have allowed them to hire an outside attorney in the debate over who has the power to settle the case. However, most of the meeting went toward discussion and eventual approval of a resolution authorizing King to provide comments on Alexander & Baldwin’s draft environmental impact statement for a long-term water lease.

The meeting was recessed until 9 a.m. Oct. 29, roughly a week before the injection wells case is scheduled to be heard before the Supreme Court on Nov. 6. It’s the final stage in a long legal battle that began in 2012 when four environmental groups sued the county over the use of the wells at its Lahaina facility, saying the effluent was reaching the ocean and impacting coral reefs.

The county and the plaintiffs have a settlement agreement in the works; however, the administration has said the Supreme Court hearing is necessary to help clarify the reach of the federal Clean Water Act. Victorino has argued that under the current ruling, county facilities would be in violation and would require millions of dollars in upgrades to properly dispose of the wastewater.

“We should not risk the staggering costs of retrofitting treatment plants, jeopardize our recycled water program or exposing our taxpayers or residents to costly legal battles over a new interpretation of regulations for wastewater disposal,” Victorino said.

Council Chairwoman Kelly King presides over the council meeting on Friday. Council members are trying to decide whether to hire an outside attorney to help resolve the debate over who has the authority to settle the injection wells case. -- The Maui News / COLLEEN UECHI photo

But the council and plaintiffs have said they would rather the county spend its time and money on solutions instead of litigation.

“The ironic thing is we agree with the mayor,” King said. “We agree on reuse and recycling water, and we’ve put more money than ever before in this budget to move towards that goal, but for some reason they still feel like they need to go to the Supreme Court.”

On Sept. 20, the council voted 5-4 to settle the case and withdraw it from the Supreme Court. But the decision triggered a debate between county attorneys over who has the authority to settle the case. The Department of Corporation Counsel cites a Hawaii Supreme Court case to argue that the settlement involves functions of the mayor and the council and thus requires the approval of both; Office of Council Services attorneys say that case deals with Honolulu’s charter, which does not give the same powers to the council as Maui County’s charter does.

Victorino said that he did not ignore the council’s vote, which “authorized the necessary funding but did not require me to settle this case.”

“In a settlement such as this, the mayor and the County Council both need to concur,” he said. “In this case, I don’t concur with with the council majority. This follows the long respected principle of separation of powers in government.”

King said that there are “a lot of things that are mayor functions that the council decides by policy,” such as the budget, which the mayor proposes but the council vets and votes on.

“I don’t think just because something has administrative aspects means the mayor has ultimate authority, because he could say that about anything,” she said. “I think by not clearing this up, I think we’re relegating our authority to the mayor.”

The dispute between government branches and county attorneys is why the council is considering hiring special counsel to seek a court’s ruling. And while there’s little time to do so before Nov. 6, both King and Moriwake said that the county can still withdraw the case at any time before the Supreme Court issues its decision.

“Nov. 6 is not any kind of drop dead date,” Moriwake said.

On Friday, testifiers urged the council to get an independent legal opinion. Jenny Roberts, speaking on behalf of Surfrider Foundation, one of the plaintiffs, said that “corporation counsel is not acting in the best interest of this council by not withdrawing the appeal and by refusing to execute the settlement.”

“And the mayor’s stonewalling has not gone unnoticed by the public,” Roberts said. “The public as a whole has spoken their piece, and our representatives have made their choice. But now we’re being silenced.”

Meanwhile, Wailuku attorney Anthony Ranken told the council that he had been retained by several private parties, including state Rep. Angus McKelvey, and that they would be filing a lawsuit next week against the mayor to compel him to sign the settlement.

Three protesters also set up beach chairs in front of the mayor’s office, holding signs calling for the mayor to “settle the case” and “protect the Clean Water Act.” Rosemary Robinson of Haiku, Isabelle Kohler of Paia and Sylvia Litchfield of Makawao said that they were calling on the administration to “honor the County Council’s decision to settle the injection (well) case, stop the attack against our nation’s clean water protections and focus our resources on eliminating the pollution of our West Maui waters.”

Friday’s meeting was recessed shortly after 4 p.m., with the council losing quorum and after King’s office received a suspicious package addressed to Council Chambers. King said it ended up being a bunch of broken coral with a note from somebody who claimed to have picked up the coral around the island and now wanted to return it to Maui.

Police were called to inspect the package, but King said no evacuation was ordered.

* Colleen Uechi can be reached at cuechi@mauinews.com.

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