HAWSCT's Latest Water Case Isn't About Water
by Robert Thomas, InverseCondemnation, December 17, 2018
You might think from the caption of the Hawaii Supreme Court's opinion in In re Contested Case Hearing on the Water Use Permit Application Originally Filed by Kukui (Molokai), Inc., No. SCOT-17-0000184 (Dec. 10, 2018), that, oh boy, we were about to get yet another pronunciation on Hawaii's water law from the court.
Alas, not so. Search as you might, there's nothing there that helps or hurts in the water law department. It's only about administrative law. Specifically, when a party to an administrative proceeding has waived their right to demand a contested case (a trial-like proceeding in an administrative agency).
Long backstory, but here's the short version: when an applicant writes to the agency and states, "This letter is to inform you that Molokai Public Utilities (MPU) does not intend to continue to pursue this case on remand," it's not too surprising that the agency -- and ultimately the Supreme Court -- is going to conclude that this is a waiver of MPU's right to pursue the case on remand. Slip op. at 19.
And as we know, the Hawaii Supreme Court is particularly open to claims of waiver, especially in water cases. Applicants: the burden is on you. Try and remember that.
LINK: In re Molokai Public Utilities, No. SCOT-17-0000184 (Haw. Dec. 10, 2018)