New & Noteworthy: East Maui Permits, 5G Tower

posted in: New & Noteworthy, November 2020, Water | 0

Wait a Minute: On October 22, the Sierra Club of Hawai‘i asked 1st Circuit Judge Jeffrey Crabtree to force the state Board of Land and Natural Resources to wait until its December 11 meeting to consider renewing four revocable permits to Alexander & Baldwin, Inc., and East Maui Irrigation.

Those permits, which would allow the companies to continue diverting tens of millions of gallons of water a day from East Maui streams, are the subject of a lawsuit the Sierra Club filed against the board last year. Among other things, the group has argued that the Land Board failed to ensure that the diverted water is not wasted or that the diversion structures are not harming stream life.

Parties to the case made their final arguments in September. (In our October issue, we erroneously stated that the arguments were heard in June.)

The Department of Land and Natural Resources planned to bring the permits to the Land Board for renewal at its November 13

meeting. In an October 15 letter, Sierra Club of Hawai‘i executive director Marti Townsend asked Land Board chair and DLNR director Suzanne Case to give Judge Crabtree more time to rule on the case, but the state would not commit to a one-month delay.

The group then filed a motion for a limited preliminary injunction. “A BLNR vote on these permits before this court issues a ruling would prejudice the Sierra Club and undermine judicial economy,” wrote the group’s attorney, David Kimo Frankel. He added, “The defendants will argue that these claims would be rendered moot if BLNR votes on these permits before this court renders its trial decision. Moreover, a premature BLNR vote will unnecessarily spawn satellite litigation.”

He argued that the Sierra Club is likely to prevail in its underlying claims, having showed that the Land Board failed to: “(1) protect the streamflow of 13 streams (in any way whatsoever); (2) address the harmful diversion structures on public land, (3) scrutinize A&B’s request (including most of thewater it takes from east Maui streams that is lost); and (4) ensure that A&B cleaned up all its trash that litters public land.”

He continued that the Land Board’s re- fusal to “admit even one iota of a shortcoming suggests that the BLNR Defendants are going to repeat the error of their ways – requiring another trial in another two years.”

A hearing on the motion is scheduled for November 12.

Cell Tower Approved: After AT&T filed a federal lawsuit over the denial of a permit to erect a monopole in the Hawai‘i County district of Puna, the county’s Windward Planning Commission has reversed itself. On October 1, it granted the company the permit it sought, allowing AT&T to move forward with erecting a monopole tower, disguised as an evergreen tree, on a small portion of a 20-acre lot in the Hawaiian Paradise Park subdivision.

The reversal came after the county Corporation Counsel and attorneys for AT&T arrived at a stipulated agreement, approved by federal Judge Kenneth J. Mansfield. That agreement required the commission to reconsider AT&T’s application within 90 days of September 8, the date when the stipulation was filed with the court.

When the commission re-heard the application, AT&T amended the proposal to move the monopole 13 feet to the northeast, pushing the fall radius even further from a parking lot, playground, and disused basketball hoop.

Several individuals testified against the application, but not nearly so many as voiced opposition when the commission rejected it in March. In the end, the commission voted to approve the application, 5-0.

(For background, see the “Cell Tower Challenge” item in the New & Noteworthy column of the August 2020 edition of Environment Hawai‘i.)

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