On February 4, First Circuit Judge Rhonda Nishimura granted an interlocutory appeal of her January 8 ruling that four holdover revocable permits held by Alexander and Baldwin and the East Maui Irrigation Co., and renewed by the state Board of Land and Natural Resources in December 2014 and ever year for the past decade or so, were invalid.
She also granted a stay of enforcement to the Maui Department of Water Supply, which relies on about 8 million gallons a day of the stream water diverted under those permits for 80 percent of its Upcountry domestic and agricultural needs.
Nishimura did not, however, grant the Land Board and the Department of Land and Natural Resources a stay, noting that the agencies failed to provide any evidence that they would be impacted by the enforcement of her ruling.
She also found that A&B/EMI, which diverts on average about 150 million gallons of water a day from East Maui streams, and Hawaiian Commercial & Sugar Co. (HC&S), which uses most of the water, did not ask for a stay. Therefore, she wrote, they are not entitled to any relief, but are not precluded from filing their own motion for a stay of enforcement.
“The County’s motion for stay pending appeal is granted only as to the county and only as applied to the water presently delivered by defendants East Maui Irrigation to the county for the Department of Water Supply’s continued provision of water to customers of its Upcountry service area,” she wrote, adding, “The state defendants’ joinder is denied other than to the extent necessary to accommodate the continued diversion of water delivered by East Maui Irrigation to the county.”
Why A&B/EMI didn’t explicitly seek a stay is unclear. By not seeking one, the companies and their supporters have been better able to argue to the state Legislature that House Bill 2501 is critical to HC&S’s final sugarcane harvest and A&B’s future use of its fields for diversified agriculture.
The bill, ostensibly designed to benefit A&B/EMI, proposed creating a “holdover period” during which an entity that had a previously authorized diversion of water would be able to continue diverting until its application for a long-term lease was decided on by the Land Board. A Senate version, SB 3001, was killed last month. The House version was alive at press time but still had to clear the Finance Committee.
A&B/EMI, which had diverted the water for its sugarcane plantation for decades under month-to-month revocable permits (and before that under long-term water licenses and leases), sought a 30-year water lease in 2001. However, the matter has been tied up in litigation since then following a contested case hearing request and a petition to amend interim instream flow standards filed by East Maui residents represented by the Native Hawaiian Legal Corporation.
Some who support the continued diversion have argued to the Legislature that should the bill fail to pass, the diversions would have to cease and Central Maui would become a “dust bowl.”“Just as a matter of law, unless the court issues a stay, then the order becomes effective immediately,” attorney Yvonne Izu, representing A&B, told the Senate Committee on Water, Land, and Agriculture at a hearing last month on SB 3001. (That being said, A&B/EMI are still diverting the streams.)
Native Hawaiian Legal Corporation attorney Camille Kalama, however, testified that A&B/EMI had other options that would have allowed them to continue to divert water and could have gone to the court, just like the county did, to stay the January 8 ruling. She urged the committee to ask A&B/EMI representatives why they didn’t.
Addressing the stay issue, Izu said she didn’t know what the rationale was for the position the company had taken. Although she was representing the companies at the Senate Committee hearing on the bill, she said she is not representing them in the court case.
“My understanding was that they joined in the stay. There might have been some problem with how they phrased that joinder so the court said A&B did not actively ask for a stay themselves,” she said.
In its filings with the court, A&B/EMI and HC&S did seek to join in the county’s motion for an appeal, but did not file a similar joinder to the county’s motion for a stay. However, in a memorandum supporting its position, the companies’ attorneys did write that they “joined in the arguments” the county and state made in their motions for an appeal and a stay.
Although committee chair Sen. Mike Gabbard indefinitely deferred SB 3001, he said he was willing to entertain the House version if and when it came before him. In the meantime, he recommend that A&B “avail itself of other non-legislative remedies, i.e., a stay of Nishimura’s order.”
As of press time, A&B/EMI still had not sought a stay of enforcement. Whether or not they need one, or even need HB 2501, to continue irrigating HC&S’s final cane crop is debatable.
At the Senate hearing, an A&B representative testified that HC&S has 35,000 acres in sugar and that it needs all of the water its diverting now from East Maui, some 150 mgd, for its crop. But according to the companies’ court filings, HC&S is cultivating a much smaller area.
The NHLC, the Office of Hawaiian Affairs, and others seeking restoration of stream flow have argued that the amount of water emanating from A&B’s private lands in East Maui, in addition to the more than 80 million gallons a day available from brackish wells, are sufficient to meet the companies’ immediate needs. NHLC attorneys, citing EMI’s own expert, have argued that 30 percent of the diverted water, or roughly 40 million gallons a day, comes from A&B-owned lands.
But both the state and A&B/EMI/HC&S have argued before the court that although 30 percent of EMI ditch water originates from private land, the actual diversions are mostly on state land.
“If all of the diversions located on state lands are ordered to be shut down, there would be few places for the water to enter the EMI ditch, regardless of its source. The 40 million gallons of water on average that the plaintiffs say would remain in the EMI ditch system is available only on paper as it would have few ways to enter the ditch system,” the state argued in its memo supporting the appeal and stay.
A&B/EMI/HC&S attorneys added, “Thirty percent of the available water would be insufficient to sustain and ripen the 16,000-17,000 acres of sugarcane planned to be harvested this year.”
Based on an estimate that 4,844 gallons per acre per day of water are needed for HC&S’s East Maui cane fields, HC&S’s wells could service about 17,200 acres, according to Lawrence Miike, hearing officer in a contested case hearing on the interim instream flow standards of many of the streams A&B/EMI divert (see our cover story for more on this).
— Teresa Dawson