On June 6, every seat in the ornate second-floor courtroom of Ali`iolani Hale was taken well before the 9 a.m. start of oral arguments before the justices of the Hawai`i Supreme Court. Stragglers were forced to stand.
That day, parties in one of the biggest fights over water in state history argued over whether and, if so, how the state Commission on Water Resource Management erred in its 2010 decision on a petition to amend the interim instream flow standards (IIFS) of four West Maui streams, collectively known as Na Wai `Eha.
Perhaps more important to observers than the critique of the commission’s decision was the discussion of whether or not the court even had jurisdiction over the case. The court’s answer to that question is likely to clarify how decisions regarding water must accommodate constitutional protections of Native Hawaiian traditional and customary practices.
The court’s decision in the Na Wai `Eha case will almost surely make or break a similar appeal of interim instream flow standards set for 19 streams in East Maui.
The cases were initiated by Native Hawaiians, kuleana landowners, and environmentalists who have long wanted waters — diverted for more than a century by commercial users — to be restored to their streams of origin. Combined, the cases involve hundreds of millions of gallons a day of diverted stream water, several hundred sugar plantation jobs, and an unknown number of people with constitutionally protected rights to use that water. In short, the future of Maui is at stake.
Justice Simeon Acoba went straight to the point with his first question to Isaac Moriwake, the Earthjustice attorney representing appellants Hui O Na Wai `Eha and the Maui Tomorrow Foundation: How does the Hawai`i Supreme Court have jurisdiction over the Water Commission’s decisions on IIFS?
In this case, the commission decided in 2010 to set IIFS that partially restored flows in Wai`ehu Stream and Wailuku River, but restored none to Waikapu and `Iao streams in West Maui. The result: instead of diverting an average of 67 million gallons of water a day (mgd), Wailuku Water Company (WWC) and Hawaiian Commercial & Sugar were limited to about 54 mgd.
To Moriwake, the answer to Acoba’s question is in the court’s 2000 decision regarding waters diverted by the Waiahole Ditch from Windward to Central O`ahu. A footnote in the order states that while statutes and rules don’t require a contested case hearing on petitions to amend IIFS, constitutional due process mandates one because of the individual instream and offstream rights, duties, and privileges at stake. And according to Hawai`i Revised Statues, if a contested case hearing is required by law, it is also appealable in court.
In particular, constitutional protections for Hawaiian practices and the state Water Code give the Office of Hawaiian Affairs — a co-appellant — and its beneficiaries an undisputed claim of entitlement, added attorney Pamela Bunn, who represents OHA in this case.
“Doesn’t the constitutional protection limit itself to property rights?” Acoba asked.
“It is a property right,” she said.
To which Acoba asked, “You want to limit it to property rights?”
Bunn later clarified that perhaps they were using the term “property interest” differently, noting that in another Supreme Court case (Pele Defense Fund v. Puna Geothermal Venture), a property interest was defined as a benefit to which the claimant is legitimately entitled, not necessarily a vested property right.
To deputy attorney general Julie China, the public trust is incompatible with any private property right.
She argued that the court had jurisdiction in the Waiahole case only because water use permits affecting individual rights and the IIFS were being issued for the same streams. In the Na Wai `Eha case, only IIFS are being set, she said.
“Amending IIFS is more like the Ko`olau Ag case, where designation of a Water Management Area was at issue,” China said. In that case (Ko`olau Agricultural Co. Ltd. v. CWRM), the court found that CWRM’s decision to designate a Watershed Management Area (WMA) in Windward O`ahu could not be appealed in court. Among other things, the court found that the designation, unlike water use permitting, “neither affects any property interest of existing or potential water users nor requires the determination of any individualized facts.”
Acoba noted that in the Puna Geothermal case, the court found that if a party’s constitutional rights are affected by the granting of a permit to another party, that mandated a contested case hearing and gave the court jurisdiction.
“Is that similar to Native Hawaiians in this case?” he asked China.
“No. No one has any due process property right,” she replied.
“I’m not talking about a property right. I’m talking about a constitutional provision to protect Native Hawaiian traditions,” which are not specifically tied to due process rights, Acoba said.
China argued that the protection of traditional and customary practices is not absolute, but is subject to the right of the state to regulate such rights.
“Are you saying Native Hawaiians don’t have any water rights?” Justice Sabrina McKenna asked.
China repeated that no one can have a public trust property right in water.
Justice Paula Nakayama then raised the issue of a kuleana landowner in the Na Wai `Eha area whose ability to grow taro is limited by the diversions of commercial users.
“He doesn’t have any right to challenge [the IIFS decision]?” she asked.
Although he has no due process property right, his kuleana right would be addressed when CWRM issued water use permits, China said. (Because Na Wai `Eha is a designated surface water management area, current and future offstream users of water must obtain a permit from the commission.)
“What if there’s no water?” Chief Justice Mark Recktenwald asked.
The commission will have to do some balancing, China said.
“It’s more than just balancing,” Acoba interjected, pointing out that the Water Code states that it shall not abridge or deny traditional and customary rights.
“Such rights shall include cultivation or propagation of taro. What you said has to be qualified,” Acoba said.
Not if there’s insufficient stream water, China replied. “Then there’s going to have to be balancing by the commission.”
“I don’t think that’s the case here. We’re talking about a situation where apparently there is water,” Acoba said. And to China’s insistence that no one has a legitimate claim or entitlement to water, Acoba pointed out that the court’s Waiahole decision requires the commission to “start out with a presumption of the right of the public to access and enjoy water.”
Acoba later asked Moriwake whether the court’s Waiahole decision in 2000 overruled its 1996 Ko`olau Ag decision limiting appeals to the permitting process.
“Ko`olau didn’t address the point of IIFS,” Moriwake said, adding that WMA designation simply determines whether a resource is threatened or not.
The IIFS process is “the make or break process” to address the needs of those with constitutionally protected rights. People with rights to exercise traditional and customary practices don’t have to apply for a water use permit and those with kuleana rights automatically get one, he said.
A number of Native Hawaiian Legal Corporation’s attorneys attended the Na Wai `Eha oral arguments, notebooks in hand. The NHLC represents Na Moku `Aupuni O Ko`olau Hui, which is contesting the CWRM’s decision on IIFS for 19 East Maui streams. The court’s decision regarding its jurisdiction in the Na Wai `Eha case will have a direct impact on NHLC’s current appeal before the Intermediate Court of Appeals.
After holding lengthy public hearings in 2010 in response to Na Moku’s 2001 petition to amend the IIFS of about two dozen East Maui streams, the commission decided to significantly restore a few of them, provide minimal flow to a handful of others, and maintain the status quo for the rest. The NHLC requested a contested case hearing on CWRM’s decision regarding 19 of those streams, arguing that the commission failed to take into account the needs and rights of Native Hawaiians in setting the IIFS.
Unlike Na Wai `Eha, the IIFS were not determined by means of a contested case hearing and the watersheds involved have not been designated as surface water management areas. And because East Maui is not a designated Water Management Area, no CWRM permits for offstream uses are required. A license or lease from the state Board of Land and Natural Resources, however, is required for the East Maui Irrigation Company and/or its parent company, Alexander & Baldwin, Inc. to divert water via their irrigation system, most of which crosses state land.
CWRM rejected NHLC’s petition for a contested case hearing on the IIFS. The NHLC appealed to the ICA, but has been waiting for months for the ICA to act on the case. (The ICA issued its first ruling in the case last fall, holding that the CWRM action was not appealable because it was not a final decision. The Supreme Court remanded that decision back to the ICA, however, where it awaits further action.)
Like the Na Wai `Eha appellants, Na Moku has argued that the Hawai`i Supreme Court’s Waiahole ruling stated that constitutional due process mandates a contested case hearing for IIFS.
— Teresa Dawson
Volume 23, Number 1 July 2012