Last month, Environmental Court Judge Jeffrey Crabtree held a hearing on an August 17 motion by the Sierra Club of Hawaiʻi to require Alexander & Baldwin and East Maui Irrigation Company to submit a fire protection plan to the state Board of Land and Natural Resources and to line at least one of their reservoirs within six months.
The Sierra Club filed its motion about a week after attorneys for the state claimed in a petition to the Hawaiʻi Supreme Court that Judge Crabtree’s June 16 order capping the amount of water A&B and EMI could take from East Maui streams to 31.5 million gallons a day did not provide enough water to fight the wildfires that swept through parts of Maui that month.
The state’s petition — supported by A&B and EMI — sought a stay of Crabtree’s order, despite testimony from Maui County counsel that ample water was available for firefighting under the cap. The petition was ultimately denied.
While the attorneys for the state and Maui County did not oppose the Sierra Club’s motion to require the fire plan and reservoir lining, those for A&B and EMI did, arguing that it’s the Land Board’s role, not the court’s, to attach those kinds of conditions to the permits that allow them to divert water from state lands in East Maui.
The June order required the Land Board to hold a contested case hearing, which the Sierra Club had requested last November when the board voted to continue the companies’ water diversion permits.
Early last month, a deputy attorney general for the Land Board indicated that it was finally taking steps toward convening a hearing on the permits for this year and for the coming year.
Given that, the A&B/EMI attorneys warned that a court order granting the Sierra Club’s motion might conflict with conditions on fire protection or reservoir lining that the Land Board might impose as a result of that hearing.
The Sierra Club’s motion asked A&B and EMI to prepare a fire plan “that identifies the volume of water that needs to be available for firefighting, the identity of those reservoirs best suited for firefighting, the minimum depth of water needed in the reservoirs that would be used, the minimum number of reservoirs that are needed, and the maximum appropriate distance separating the needed reservoirs.”
In addition to not being the court’s jurisdiction to order such a plan, A&B’s attorneys argued, “[t]his request requires A&B/EMI to be the firefighting/fire predicting expert for Maui, when the [Maui Fire Department] itself has said it is unable to provide this kind of information.”
They also pointed out that the diversion permits will expire well before the reservoir could be lined.
“Given the short-term authorizations provided by the RPs, it would be unreasonable and impracticable to require A&B/EMI to incur the time and expense of lining at least one reservoir,” they wrote. They estimated that it would cost $3.85 million to line a reservoir with a 10-acre surface area.
The Sierra Club’s attorney, David Kimo Frankel, countered that the Land Board had abdicated its responsibility to address the water needs for firefighting, having largely ignored the organization’s pleas since over the past few years to assess firefighting needs.
He added that it would likely be months before the Land Board issued a decision in the contested case. A hearings officer had not yet been appointed as of press time.
In a previous contested case hearing, the Land Board did order A&B and EMI to work with the Maui Fire Department to determine what its exact needs are, but the department explained that its needs vary depending on the circumstances.
Frankel conceded that a precise assessment might not be practical, but argued that the court should not allow the companies and the Land Board “to make the ‘perfect’ be the enemy of the ‘good.’ At a minimum, everyone needs to understand the orders of magnitude involved. For years, A&B has misled BLNR and the public by insisting that millions of gallons were needed to flow into reservoir every single day for fire protection. We now know that is not true. A single fire may require tens of thousands of gallons of water from the Central Maui reservoirs. Maybe hundreds of thousands of gallons are required. But not millions of gallons. And not millions of gallons every single day of the year. …
“How hard could it be to determine whether there needs to be at a minimum, one foot, or a meter, or more of water depth in a reservoir for a helicopter to successfully scoop up water? How many yards or miles apart are the reservoirs currently being used from each other? Which reservoirs have been used in the past two decades to fight fires? If A&B needs to hire an expert who can crunch numbers and make a reasonable projection, so be it. It can start by consulting the Hawaiʻi Wildfire Management Organization. But A&B cannot continue to justify pouring millions of gallons of water daily from east Maui streams to fight fires when it has made no substantive effort to get the answers to basic questions,” Frankel wrote.
With regard to the concerns A&B and EMI raised about the time and expense it would take to line one reservoir, Frankel pointed out that the companies did not object to the Land Board’s June 2022 decision to require them to submit a revised diversion system upgrade plan by December 1 of that year.
“If BLNR can require an upgrade plan that will require implementation over the course of future years, it is arbitrary to use the duration of the permit as an excuse for not ordering the lining of a reservoir that might take longer than this year to complete,” Frankel wrote.
He added that EMI co-owner Mahi Pono, which uses water diverted under the permits for its diversified crops in Central Maui, “has spent more than $30 million planting trees. It spends $6-8 million on water annually, which is only 18-30 percent of its annual operating budget. Mahi Pono spent $20 million on its irrigation system. A&B sold water from east Maui streams to Mahi Pono for $62 million. While you might not be able to find $3.85 million under the sofa cushions, such an expense is relatively insignificant when compared to A&B’s profits on the sale of the water and Mahi Pono’s expenditures.”
Crabtree ultimately decided not to grant the relief the Sierra Club requested.
According to Frankel, Crabtree said he would issue a written ruling that simply asked the parties to talk about firefighting needs.
“We will have to see what his written ruling actually says,” he stated in an email.
Sanctions
“A&B and its counsel took advantage of a tragedy to take more water from our streams,” Frankel alleged in a September 28 memorandum supporting a motion by the Sierra Club to sanction A&B, EMI, and their attorneys Trisha Akagi and Mallory Martin and/or the law firm they work for, Cades Schutte, LLP.
Starting the morning of August 9, to ensure that ample water was available to fight wildfires that were raging on Maui at the time, Judge Crabtree repeatedly suspended his 31.5 million gallons a day cap on the amount of water A&B and EMI could divert from East Maui streams.
The court had reached out that morning to the parties in the case to see if the cap was posing any problems with ongoing firefighting efforts.
Akagi replied that Maui Fire Department has asked EMI/Mahi Pono to bring more water to Central Maui to fight the fires. She reported that EMI had “already begun the process of delivering additional, much needed water to Central Maui so that the Maui Fire Department can continue to fight these devastating wildfires. …
”A&B/EMI ask that the Court temporarily suspend its imposed cap of 31.50 mgd so as to allow EMI/Mahi Pono to continue to support the effort to contain these devastating wildfires. To be clear, given the seriousness of this emergency, even if the Court declines this request, EMI will continue to provide to the Maui Fire Department the water that is needed to fight the ongoing wildfires.”
The next day, Martin emailed the court, reporting that the fire department was continuing to drop water onto the fires and asking Judge Crabtree to continue the suspension of the cap.
On August 14, Akagi reported that air drops to fight the fire in Kula/Upcountry continued and the fire was only 60 percent contained. She asked for another 24-hour suspension of the cap.
Crabtree issued minute orders suspending the cap each time he was asked by the attorneys for A&B and EMI.
But after Akagi’s August 14 request, Frankel suggested in an email that the court should require A&B to provide more information. What it had provided, he stated, was “terribly misleading. If the reservoirs are empty — which would be unprecedented — it should say so.”
Crabtree nonetheless granted another 24-hour suspension, and then another after Akagi asked for one the next day.
“A little over an hour later, however, A&B withdrew that request. Based on conversations with Maui County’s corporation counsel, it is the Sierra Club’s understanding that A&B withdrew its request because the County had raised concerns with Ms. Akagi that A&B was misrepresenting the facts to this court,” Frankel wrote last month.
What’s more, Frankel noted that in a declaration to the Hawaiʻi Supreme Court filed in response to a petition for writ of mandamus and prohibition from deputy attorneys general representing the Land Board, Mahi Pono VP Grant Nakama never stated the Fire Department asked that more water be brought in. Nakama stated only that the department did ask to use the company’s trucks.
Nakama also admitted to being unsure of whether the water in the company’s reservoirs would be sufficient to fight the fires and whether the 31.5 mgd cap would be exceeded if EMI brought more water in.
Maui County Corporation Counsel Mariana Löwy-Gerstmar testified before the Hawaiʻi Supreme Court in August that only 37,000 was needed by the fire department to fight the fires in Upcountry. She also testified that the 31.5 mgd cap provided enough water to fight the fires.
Frankel pointed out that based on use data provided by the companies, millions of gallons of diverted water a day, unused by the county or Mahi Pono, accumulates in the company’s reservoirs. He also listed the many times that Mahi Pono overestimated its water needs.
He argued that Akagi and Martin failed to investigate the basis of the companies’ claims — despite their history of inaccurate water needs estimates. He added that the attorneys’ emails to the court that were misleading, inaccurate, and lacked evidentiary support. He noted that the attorneys digitally signed their emails and did not object to them being included in the court record. Given all of this, he argued, they should be sanctioned, under the Hawaiʻi Rules of Civil Procedure.
In a September 8 ruling on a motion by A&B and EMI to increase the cap, Judge Crabtree ordered that in cases of a fire-related emergency where the parties cannot obtain a suspension of the cap in time, the parties are pre-authorized to divert more water than the current cap allows.
“This pre-authorization will remain in effect until any such emergency has passed according to public authorities. We will sort out later, if necessary, whether the extra taking was reasonable and necessary. The pre-authorization in this paragraph shall remain in place until further written order of the court, or until other lawful order from public safety officials,” he wrote.
In his motion for sanctions, Frankel asked that the court set aside its previous orders suspending the cap and order A&B, Martin, Akagi and/or their law firm to pay for the time he spent on August 14 drafting his response to their emails. He also asked that they pay the Sierra Club’s fees for the time spent on its motion for sanctions.
— Teresa Dawson
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