It truly is shameful: The state Board of Land and Natural Resources (BLNR) has been judged to have “acted in bad faith” in alleging that stream protections for East Maui caused a shortage of water needed to fight the devastating Lahaina fire of Aug. 8.
Thursday’s Hawaii Supreme Court ruling pulled no punches, stating, “BLNR tried to leverage the most horrific event in state history to advance its interests,” and concluding that BLNR statements in a court filing made the day after the fire were “manifestly and palpably without merit” — i.e., not true.
The state had claimed that Maui County did not have enough “permitted water and reserve water to fight the fires,” the ruling noted, and that a standing environmental court ruling had created “an imminent threat to public health and safety.” But even after Maui County refuted that accusation, verifying that it had sufficient water, BLNR continued to pursue the claim.
That BLNR would offer “meritless assertions” in a bad faith effort to leverage the Lahaina tragedy as cover for lifting a cap on water diversions by real estate investment trust Alexander & Baldwin (A&B) and its subsidiary, East Maui Irrigation (EMI), is indeed troubling. The out-of-bounds action calls the agency’s fairness into question, demonstrating a foolhardy lack of consideration for the environments affected.
This Supreme Court slapdown can only magnify the mistrust felt by small agricultural concerns, Native Hawaiians and environmentalists who have long charged that A&B and other large and politically connected landowners have a direct line to state government officials and exert undue influence on decisions affecting use of water and other natural resources, as well as environmental protections.
The high court’s finding calls the objectivity of BLNR’s stance on East Maui water diversions in all forums into question, and should serve to prod the state into close reconsideration of calculations on this issue.
A&B and EMI have diverted water from East Maui waterways for 138 years, by means of annual permits approved by the BLNR since 2001. While changes in these diversion terms have been made and more alterations are pending, BLNR has also faced a string of contested case requests and court challenges from environmentalists and Native Hawaiians who have sought restoration of East Maui streams over these 20-plus years.
On April 12, a state appeals court ruled in favor of the BLNR and in support of its permit-renewal decision-making at a 2020 meeting, reversing an environmental court decision in a case brought by the Sierra Club of Hawaii. The court ruling found that the Sierra Club had no standing to demand a contested case in the first place, and further, that the environmental court judge had no authority to limit A&B/EMI water diversions, which amounted to second-guessing the BLNR’s expertise in a specialized field.
The appeals court’s decision will likely hamper access to contested-case hearings on BLNR’s permitting decisions in the future, and the Sierra Club is considering an appeal. In the wake of the Supreme Court’s findings in the more recent “bad faith” case, that appeal might be warranted.
Aside from that, the quality of BLNR’s decision-making in denying a contested case and in failing to address important concerns over water use should be revisited. As a public board, after all, it does have a duty to protect the public trust.
While the environmental court may have exceeded its legal authority, its order to alter diversions was made on the basis of evidence submitted that water takings permitted by the BLNR were doing more harm than good. Having now been called out by the Supreme Court for its “meritless assertions” over Maui water, BLNR must review its full collection of actions on East Maui water usage, making protection of the public trust its highest directive in all cases.
