Hawai‘i Supreme Court Finds State Violated Water Leasing Law in East Maui
News Release from Native Hawaiian Legal Corp, March 4, 2022
Today, the Hawai‘i Supreme Court issued its decision in Carmichael, et al. v. Bd. of Land and Natural Resources, et al.—a long-contested lawsuit by East Maui community members represented by the Native Hawaiian Legal Corporation (“NHLC”) against the Board of Land and Natural Resources (“BLNR”), Alexander & Baldwin, Inc. and its subsidiaries (“A&B”), and Maui County over state water diversion permits in East Maui. In a 53-page opinion, the Court ruled that the state’s ongoing practice of permitting A&B to divert more than 100 million gallons of water per day from 33,000 acres of ceded lands violated state water leasing laws. The Court held that, per state statute and BLNR’s trust duties, the BLNR should have determined—but did not—that the leases were “in the best interests of the State” before continuing them in 2014. The Court also held that these leases are subject to review under the Hawai‘i Environmental Policy Act (“HEPA”). The case has now been remanded to lower courts for further proceedings to determine whether these permits require an environmental assessment to comply with HEPA.
For more than a century, the waters of East Maui have been subject to broad scale commercial diversions. Since 1985, BLNR allowed A&B to use state land in East Maui to divert as much as 450 million gallons of water daily by continuously issuing to A&B “temporary” revocable permits without preparing an environmental assessment. In 2015, Healoha Carmichael, Lezley Jacintho, and Nā Moku Aupuni O Ko‘olau Hui, represented by NHLC, sued the state and A&B to end this practice. After a circuit court invalidated the permits in 2016, this case was reviewed by the Intermediate Court of Appeals, which reversed the circuit court’s decision in 2019. That same year, NHLC’s clients appealed to the Hawai‘i Supreme Court.
In today’s opinion, the Supreme Court acknowledged “the significant environmental impact of the permitted action[,]” holding that “the BLNR’s authority to issue revocable permits is subject to . . . environmental review[.]” The Court also determined that the Board implemented a “sweeping process” of continuing revocable permits “without an adequate explanation as to why a continuance served the best interests of the State.” The Court remanded the case back to the circuit court to determine whether A&B was required to prepare an environmental assessment for the revocable permits.
The plaintiffs in this lawsuit are Native Hawaiian farmers and subsistence gatherers whose lives have been impacted by A&B’s mass water diversions. Healoha Carmichael, a gatherer March 3, 2022 2 Native Hawaiian Legal Corporation and fisher who was raised in East Maui and lives in Ke‘anae, relies on traditional subsistence practices to provide for her family. Lezley Jacintho grows kalo in Honopou to feed her family, teach her kids to feed themselves, and live as her grandparents did. Nā Moku is a community group of farmers, fishermen, and gatherers from Ke‘anae-Wailuanui. Ed Wendt, past president of Nā Moku, has been involved in the fight for East Maui’s water for decades.
“It’s been a long journey,” says Wendt. “Many kūpuna have already died waiting for water, for justice. The suffering that our people endured for so long—it’s genocide. But, because of our fight and our legal victories, we are starting to see farmers coming back. We are finally starting to have hope for our next generation.” Carmichael, following in the footsteps of Wendt and the water protectors who came before her, is optimistic about her community’s future. “My great grandmother was the first in our family who started fighting for our water, and generations later, I feel like our voices are finally being heard,” she said. “I’m hopeful that my son will not have to continue to endure the same kinds of legal battles that we did.”
This decision is the latest victory in an ongoing battle NHLC has fought alongside the kalo farmers, gatherers, stewards, and fishermen and women of East Maui—all in an effort to restore water back into their streams, lo‘i kalo, and fisheries after more than a century of commercial diversions. “After decades of litigation to address the mismanagement of East Maui’s water resources, today’s Supreme Court decision vindicates the rights of NHLC’s clients, provides clear direction to the Board, and empowers the public to hold the state accountable with respect to its public trust resources,” NHLC staff attorney Ashley Obrey stated.
The oral argument for this case, held on May 5, 2020, was the first ever heard by the Hawai’i Supreme Court remotely (via videoconferencing) and livestreamed for public viewing.