by Andrew Walden
The Hawaii Intermediate Court of Appeals April 30 issued a mixed ruling in Kauai Springs, Inc. v. Planning Commission of the County of Kauai. The case continues a nearly-decade-long campaign in which OHA has served as the agent of an Oahu-based bottled water company seeking to destroy its tiny Kauai-only competitor, Kauai Springs.
The Office of Hawaiian Affairs acting at the behest of “a beneficiary” employed by the competitor, won a January 2007 Kauai Planning Commission ruling shutting down the company. Kauai Springs appealed the ruling, winning September 23, 2008 a favorable decision from the 5th Circuit Court including an injunction under which the company has been able to continue selling bottled water on Kauai for the past five years. The injunction, which was not challenged by the Planning Commission, continues to allow Kauai Springs to operate, selling up to a limit of 1,000 gallons per day—miniscule by bottled water industry standards.
Kauai Springs is owned and operated by Kauai resident Jim Satterfield, his wife Denny Satterfield, and their five sons. Jim Satterfield tells reporters: “We have been suppressed. If (the competition) wanted to stifle us, they did a good job.”
In a 2007 letter to then-Kauai Planning Commissioner Randal Nishimura, OHA administrator, Clyde Namuo states that “the Hawaii Supreme court has found that where surface water and underground water mix and become part of a single system, (traditional Hawaiian) water rights can be protected.”
In other words, if you want water, you have to win the favor of OHA $omehow.
The ICA ruling upholds part of the circuit court ruling and overturns other parts and remands the case back to the Kaua`i Planning Commission “for further proceedings consistent with this opinion.” Attorneys for Kaua`i Springs are considering their next move.
Smelling money, OHA’s in-house Ka Wai Ola June, 2013 writes:
The ruling means agencies will be required to consider the impacts a project would have on public trust resources when granting permits….
In the appeals court ruling issued in late April, a three-judge panel reversed the lower court ruling saying the commission “had a duty to conserve and protect water resources in considering whether to issue the Special Permit to Kauai Springs.”
The court said the commission “should make appropriate assessments and require reasonable measures to protect the water resources at issue in this case; and, because Kauai Springs seeks to use the water for economic gain, this case requires that the Planning Commission give the permit application a higher level of scrutiny.”
The case was sent back to the planning commission. It will be up to the commission to decide whether to deny or grant the permit.
Environment Hawaii devotes its June, 2013 cover story to the case, writing: “the issue before the Intermediate Court of Appeals was whether the county Planning Commission erred in denying the permits needed for a private water bottler to operate in the state Agricultural District.”
The ICA decision comes on the heels of a State Supreme Court decision in Kelly vs 1250 Oceanside Partnership which holds that the counties are responsible to uphold the state’s so-called public trust in water.
Like the OHA ‘beneficiary’ whose money grubbing motives launched the assault on Kauai Springs, Kelly vs 1250 Oceanside plaintiff Jack Kelly demanded millions of dollars in personal cash in settlement negotiations with defendant 1250 Oceanside, developers of Hokulia. Kelly was hired to attack Hokulia by then-Sierra Club boss David Frankel, a leading eco-attorney.
Kelly’s co-plaintiff Jim Medeiros is described in his late mother’s TRO filing against him. According to the then-76-year-old Mrs. Medeiros, on March 13, 2006, the day before the Hokulia settlement was announced, Jim Medeiros, stormed into a Hawaii-County-mediated family hooponopono session and announced: “I oki (divorce) from you ma -- I don’t need you bitches any more, I’m into the money now!”
LINK: Text of Ruling
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Kauai Springs website: www.kauaisprings.com
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