Robert Thomas
Robert Thomas

BY ROBERT THOMAS – At the January 11, 2012, Hawaii Water Law Conference, several presenters discussed what is known as the “East Maui water case” (that is easier to say than “In re Petition to Amend Interim Instream Flow Standards for Waikamoi, Puohokamoa, Haipuaena, Punalau/Kolea, Honomanu, West Wailuaiki, East Wailuaiki, Kopiliula, Puakaa, Waiohue, Paakea, Kapaula, and Hanawi streams“), which was up before the Hawaii Supreme Court on a certiorari application after the Intermediate Court of Appeals dismissed the case for lack of appellate jurisdiction. The Water Commission denied the petitioner’s request for a contested case, and the ICA dismissed the appeal from the Water Commssion because under the Hawaii Admistraitve Procedures Act, there was no final order from which the petitioners could appeal.

But by the time we all returned to our offices late in the day, the Hawaii Supreme Court had granted the application for certiorari and summarily vacated the ICA’s dismissal, and sent the appeal back to that court “for disposition” on the merits.

Under the Water Code, the ICA has appellate jurisdiction to review under section 91-14 of the APA a final decision of the Water Commission in a “contested case.” The Hawaii Supreme Court has previously concluded that an order denying a request for a contested case is itself appealable from the “appeals from contested cases” provision in this statute.

The court concluded the ICA has appellate jurisdiction because the Acting Depty Director to the Chairperson of the Board of Land and Natural Resources certified the Water Commission minutes by signing them, and “[t]he decision, as reflected in the minutes of the Commission’s October 18, 2010 meeting, is a final decision of the Commision for which judicial review may be sought pursuant to HRS § 91-14(a).” Order at 2.

In our view, the more interesting question to be resolved is whether the Water Commission’s setting or amending interim instream flow standards under the Water Code must be accomplished by a “contested case” (a quasi-judicial administrative hearing). Under Haw. Rev. Stat. § 91-1, a “contested case” is an agency proceeding “in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.” The issue of whether establishing the amount of water that must be in a stream in order to “protect the public interest in [that] particular stream” is one that determines the rights of specific parties and thus must be accomplished by litigation, or is more in the nature of a legislative determination, is one we will be following closely.

Disclosure: we represent the Hawaii Farm Bureau in this case, although we did not file a brief or take a position on the issue presented in the application for certiorari.

Amended Order Accepting Application for Writ of Certiorari, In re Petition to Amend Interim Instream Flow S...

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.