Hawaii Supreme Court Oral Arguments: The Next Big Hawaii Water Case

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Robert Thomas

BY ROBERT THOMAS – Watch this case: it is likely to be a landmark in Hawaii water law.

Hawaii water law cases tend to be vast adventures in history, culture, irreconcilable arguments, and oddball doctrines (e.g., appurtenant water rights are keyed to the amount of taro under cultivation at the time of the 1848 Mahele), and the appeal to be heard by the Hawaii Supreme Court on Wednesday, June 6, 2012, starting at 9:00 a.m., appears to be no different. It seems to have something for everyone: appellate jurisdiction, administrative law (the old metaphysical question of what is a “contested case”), instream flow standards, Native Hawaiian rights, and the public trust in water resources.

Here’s the description of In re `Iao Ground Water Management Area High-Level Source Water Use Permit Applications and Petition to Amend Interim Instream Flow Standards of Waihe`e River and Waiehu, `Iao, and Waikapu Streams Contested Case Hearing, No. SCAP-30603 (let’s just call it the “West Maui Water Case”) from the Judiciary web site:

Nā Wai ʻEhā, or “the four great waters of Maui,” is the collective name for the Waiheʻe River and the Waiehu, ʻĪao, and Waikapū Streams. The case before the court began when Hui O Nā Wai ʻEhā and Maui Tomorrow Foundation, Inc. (“Hui/MTF”), through Earthjustice, petitioned the Commission on Water Resource Management (“the Commission”) to amend the Interim Instream Flow Standards (“IIFS”) for the Nā Wai ʻEhā, which had been in place since 1988. Around the same time, several parties, including Maui County Department of Water Supply (“MDWS”), Hawaiian Commercial & Sugar Company (“HC&S”), and Wailuku Water Company (“WWC”), filed Water Use Permit Applications (“WUPA”) for the same area. The Commission held a combined hearing to resolve the IIFS and WUPA; in addition to the above-named parties, the Office for Hawaiian Affairs (“OHA”) participated. The current appeal seeks review of the Commission’s resulting Findings of Fact, Conclusions of Law, and Decision and Order, in which the Commission amended the IIFS for two of the four streams, and retained the existing IIFS, as set in 1988, for the two remaining streams.Hui/MTF and OHA appeal on related grounds. They argue that the Commission erred in balancing instream and noninstream uses, and therefore the IIFS do not properly protect traditional and customary Native Hawaiian rights, appurtenant water rights, or the public trust. Both parties also contest the Commission’s estimations of diversions, arguing that it did not properly consider waste and alternative sources, and that it miscalculated the diverters’ actual need. MDWS’s cross-appeal challenges whether the Commission properly considered municipal noninstream use when balanced with instream values and commercial noninstream uses.

In addition, HC&S, WWC, and the Commission challenge whether the court has jurisdiction to consider the appeal.

We won’t be able to attend the arguments, but we do have a copy of the briefs. There are a lot of  them, since this appeal involves a lot of parties and there are cross-appeals:

This will be the first major water case heard by the court since Chief Justice Recktenwald took over, and we’re all looking for signals of whether the court will continue in the direction it took under CJ Moon, strongly in favor of public ownership and against any private interest. It will also be the first big water case to be decided by Associate Justice Sabrina McKenna, so it will be interesting to see how she views the arguments. Moreover, Circuit Judge Rom Trader is sitting in for the now-retired Justice James Duffy.

We’ll bring you more after we review the oral argument recording.



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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.