East Maui taro farmers were declaring victory after the Hawaii Supreme Court ruled that the state skirted the law when it continually allowed the use of millions of gallons of diverted water per day without the proper environmental review.
The court Thursday
issued its decision in a long-contested lawsuit by East Maui community members represented by the Native Hawaiian Legal Corp. against the state Board of Land and Natural Resources and Alexander &Baldwin Inc.
In a 53-page opinion, the court ruled the BLNR failed to determine whether the one-year leases allowing A&B to divert water from 33,000 acres of ceded lands were in the best interest of the state, as required by law.
In addition, the court held that the leases are subject to review under the Hawaii
Environmental Policy Act. The case was sent back to the Circuit Court for further proceedings to determine whether the permits require an environmental assessment to comply with the law.
The decision is the latest in a series of victories in recent years by those in Hawaii fighting to restore water to streams for traditional uses.
In this case, Na Moku
Aupuni o Ko‘olau Hui, a group of taro farmers and Native Hawaiian practitioners, for more than a
decade has been fighting the state and A&B over revocable water permits that are renewed annually. The permits have allowed the
company to continue a long-standing practicing of diverting water from East Maui streams for agriculture and other uses in Central Maui.
Since 1985, BLNR allowed A&B to use state land in East Maui to divert as much as 450 million gallons of water a day by issuing to A&B
annual “temporary” revocable permits without preparing an environmental assessment.
In 2015, Healoha Carmichael, Lezley Jacintho and Na Moku Aupuni o Ko‘olau Hui sued the state and A&B to end the practice.
Following Thursday’s
decision, Native Hawaiian Legal Corp. attorney Ashley Obrey said the rights of her clients were vindicated.
The decision, she said in a statement, “provides clear direction to the board and empowers the public to hold the state accountable with respect to its public trust resources.”
BLNR Chair Suzanne Case provided this response to the court’s decision:
“Although the court did not rule in favor of the State, the court has provided clear language regarding its interpretations and what is expected upon remand. We would note that many of
issues discussed in the decision have been resolved by actions that have occurred since the case was put before the court.”
The oral argument for this case — held in May 2020 in the first few months of the coronavirus pandemic — was the first ever heard by the state Supreme Court via videoconferencing and livestreamed for public viewing.
