On the day after wind-driven wildfires broke out across Maui, the state filed a complaint to the state Supreme Court claiming that, due to a judge’s ruling, there was not enough water to fight the flames that destroyed 19 Upcountry homes and thousands of acres.

Earlier in the day, state Environmental Court Judge Jeffrey Crabtree issued a temporary stay on his order, making the water available. But because it takes 24 hours from the points of diversion for water to reach the reservoirs, there was even further delay, according to the filing.

The complaint, filed by the state attorneys on behalf of the state Board of Land and Natural Resources, asks the court to move the water dispute forward and to overturn the June decision by Crabtree authorizing East Maui stream diversions to 31.5 million gallons of water per day, a reduction from the 40 million gallons per day authorized by BLNR.

Oral arguments about the issue were held before the Supreme Court on Wednesday afternoon, ending with Chief Justice Mark Recktenwald saying the justices would consider the arguments in a decision to be issued later.

During the virtual court session, some of the justices appeared skeptical about the state’s assertions.

What’s more, an attorney for Maui County acknowledged that enough water was indeed available to battle the wildfires.

Sierra Club of Hawaii attorney David Kimo Frankel told the court that the state’s claims are unsupported and false.

“They are scandalous,” Frankel told the justices. “It is preposterous to suggest (Crabtree) in any way jeopardized the ability of anyone to fight any fires.”

The court dispute is the latest in a decades-long battle between corporations and small farmers over the diversion of stream water on Maui.

In recent years the Sierra Club has filed a series of lawsuits challenging BLNR’s annual decisions authorizing the continuation of one-year revocable permits for water diversion into the plantation-era water system that carries billions of gallons of water from windward East Maui to Central Maui.

In June, Crabtree lowered the amount of water that Alexander & Baldwin and East Maui Irrigation can take from East Maui streams by some 9 million gallons per day.

East Maui Irrigation is jointly owned by A&B and Mahi Pono, which acquired some 41,000 acres of former sugar cane land from A&B in 2018 to cultivate other crops. Crabtree’s ruling allowed Mahi Pono to maintain its allocation under its permit.

On Wednesday, Deputy Attorney General Miranda Steed accused Crabtree of not filing final judgment in his latest ruling and instead modifying permits on his own, therefore exceeding his authority under the law and preventing BLNR from appealing the decision to a higher court.

“This excess of jurisdiction is what warrants the (actions) the board requests today,” Steed said.

The 33-page complaint filed Aug. 9 harshly criticizes Crabtree for making judgments on water usage that should be reserved for an agency with scientific and technical expertise.

“As a result, there was not enough permitted water to battle the wildfires on Maui this morning,” it said.

The filing noted that the board reserves water for firefighting in Central Maui under the revocable permits issued for water diversions.

“The circuit court disagreed and refused to permit any diversion of water for firefighting under the permits,” the complaint says. “Despite years of precedent warning the circuit court not to substitute its judgment for that of the agency, the court decided it knew best.

“Shortly after making this decision, terrible wildfires broke out in Maui, leaving the court and agency hamstringed and unable to act quickly within the circuit court’s own parameters to adjust water for firefighting.”

When fighting wildfires, the Maui Fire Department and Division of Forestry and Wildlife use water from available reservoirs, including the ones fed by diversions under these permits.

Associate Justice Todd Eddins asked Steed whether Maui County’s assertion that there was sufficient water to fight the fires refutes BLNR’s claim. The deputy attorney general responded that there are more agencies fighting the fire than the Maui Fire Department, and that includes the state through DOFAW.

But Maui County Deputy Corporation Counsel Mariana Lowy-Gerstmar testified that only 37,000 gallons of reservoir water was used to fight the fire over five days.

Even so, Steed maintained that the 7.5 million gallons diverted for the county every day, including at least 2 million gallons per day continuously flowing into reservoirs, was not enough.

Eddins pointed out that the complaint is “replete with intemperate language” and “flippant remarks” directed at the judge including, for example, accusing Crabtree of having “uniformed notions of hydrology,” that he’s making decisions “while Maui burns,” and “those fighting the wildfires are left hoping” the judge “checks his email.”

“I don’t see any factual support for it,” he said.

Both Eddins and Associate Justice Sabrina McKenna asked Steed if she was willing to walk back the statements against the judge. At first she stood by the words but later apologized for the harshness of the language, adding that they were not approved by state Attorney General Anne Lopez.

“The board is not intending to blame the circuit court for the fires,” Steed said. “When this petition was first filed, we were in the first 24 hours of a serious, unprecedented emergency.”

Frankel said BLNR’s petition was filed under false pretenses and the attorney general should be sanctioned.

“It mischaracterizes the Environmental Court’s actions and statements. It exploits a tragedy,” he said.

Earlier, Sierra Club Director Wayne Tanaka called the state’s complaint unfounded, dishonest and scary, describing it as a move on the part of state and corporate attorneys to exploit a tragedy and roll back protections for East Maui’s streams, estuaries and communities.

Tanaka wondered if Gov. Josh Green was behind the play for water, considering what he said at a news conference in Wailuku last week:

“One thing that people need to understand especially those from far away is that there’s been a great deal of water conflict on Maui for many years. It’s important that we’re honest about this. People have been fighting against the release of water to fight fires. I’ll leave that to you to explore,” Green said.

Tanaka said the state should offer an apology. “We’re not going to stand for this exploitation of a tragedy,” he said.

The Upcountry fires continue to burn and remain 85% contained with only hot spots left.