Sunday, April 05, 2020
Hawai'i Free Press

Current Articles | Archives

Monday, December 03, 2012
ICA Mandates 'Contested Case' for Water Disputes
By Robert Thomas @ 7:26 PM :: 4023 Views :: Environment, Land Use

HAWICA: Water Commission Needs To Conduct Contested Case When Amending In-stream Flow Standards

by Robert Thomas,

Guess what? The Water Commission got it wrong again. The Hawaii Intermediate Court of Appeals held in this unpublished memorandum order that the Commission must hold a "contested case" hearing upon demand when the Commission sets "interim in-stream flow standards" under the Water Code (in other words, how much water should be allocated to whom and where for particular streams).

The dispute in this appeal was whether the process to establish those standards is about setting policy -- meaning the Commission need only hold a legislative-type public hearing -- or determined particular parties' rights -- in which case a trial-like contested case is required. The ICA concluded it was the latter.  There are three instances when an agency must hold an adjudicatory hearing: when required by the agency's own rules, when required by a statute, or when required by due process because the party asking for a contested case has some "property interest" that could be affected by the agency's decision.

Here, there isn't a rule or a statute requiring the Commission to conduct a trial to set interim in-stream flows, so the court analyzed whether the parties demanding a contested case had some constitutional rights at stake. Referencing a recent Hawaii Supreme Court decision from the same petition which the ICA characterized as holding that "the Commission's decisions setting or amending the IIFS can affect constitutionally protected property interests," the ICA concluded that the ability to "live, work, and play" in the areas of the streams at issue, and the native Hawaiian rights that stem therefrom, are a property interest protected by the Due Process Clause. These rights are "new property" entitlements (see Board of Regents v. Roth, 408 U.S. 564 (1972))  because they have a statutory basis in the Water Code. Because setting in-stream flows might affect these rights, the Commission needed to hold an adjudicatory hearing if asked.

Thought 1: Water rights in Hawaii are supposed to be about the "public trust" as well as private rights. But decisions like these mean that for the public to have its voice heard when the Commission establishes stream flows, it must do so in the context of an adjudicatory hearing under the Administrative Procedures Act. Which means you aren't testifying unless you are a percipient or expert witness. You have no stake in the outcome unless you formally intervene in a timely fashion and establish that you have some material stake in the outcome. You can't contact the agency members ex parte. The material the Commission can consider is limited to the (admittedly very expansive) rules of evidence. We're not sure how these limitations can be squared with the public's right to participate in setting stream flows which, after all, are supposed to be for public benefit. Implicit in these type of decisions are that certain private rights are more important than the public's general rights. Which may not be a bad thing.

Thought 2: The Hawaii Supreme Court has a very strong body of decisional law concluding that all sorts of expectations are constitutionally-protected property. This case adheres to that line of cases, so is not really surprising. 

Disclosure: we represent one of the many parties to this appeal, but did not take a position on these issues.



TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

808 State Update AM940


ACA Signups Hawaii



Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii



Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube


Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii


National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii


Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

School Choice in Hawaii

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii