The day after fires incinerated much of Lahaina on Aug. 8, killing 101 people and displacing thousands, the Hawaii Attorney General’s Office filed court papers alleging an environmental court judge had weakened the county’s firefighting ability by reducing the volume of water two private companies could divert from East Maui streams.
 
On Thursday, the Hawaii Supreme Court issued a stinging rebuke, saying the state’s arguments were frivolous and riddled with false claims, and that it should pay the Sierra Club of Hawaii’s attorney fees.
 
“What they did was inexcusable. They had no evidence to support their claims,” said Sierra Club attorney David Frankel, referring to the state’s case.

The AG’s office “disagrees with the court’s characterization and with its conclusions,” spokeswoman Toni Schwartz said in an email.

The matter revolves around revokable water permits held by real estate company Alexander & Baldwin and its subsidiary, East Maui Irrigation, that allow the companies to divert streams originating in the mountains of East Maui. The companies have owned and operated a ditch system for 138 years that takes water from East Maui and transfers it to Central and Upcountry Maui for agricultural, domestic and other uses.

The Sierra Club had challenged the Board of Land and Natural Resources’ decision not to hold a contested case hearing before issuing the permits, a case that landed before Oahu’s Environmental Court.
 
Circuit Judge Jeffrey Crabtree reviewed the arguments and sided with the Sierra Club on July 14. He also lowered the amount of water A&B and EMI could take from the streams from 40.4 million gallons to 31.5 million gallons a day.

His decision prompted state attorneys to petition the Hawaii Supreme Court on Aug. 9 — the day after the Maui fires — to find that the judge exceeded his authority.

“Maui is in peril as it is ravaged by wildfires. Central Maui has no water for fire reserve because the Respondent Judge substituted his judgment for that of the agency,” the petition said. “As a result, there was not enough permitted water to battle the wildfires on Maui this morning.”

The state argued that the Circuit Court had effectively assumed the statutory duties of the land board and the Commission on Water Resource Management, government agencies tasked with issuing permits for natural resources and managing water.
 
Crabtree’s order violated the doctrine of separation of power and was based on his “uninformed notions of hydrology,” the petition said.
 
By lowering the amount of water allowed to be diverted, the judge also put public safety at risk because not enough was reserved for firefighting, state lawyers argued.
  
“Having the circuit court act as the gatekeeper to water has resulted in an imminent threat to public health and safety,” state attorneys argued. 
 
The Hawaii Supreme Court disagreed entirely and said the state failed to produce any evidence to support its incendiary claims.
 
Justice Todd Eddins, who authored the high court’s opinion, found the state’s position was built on meritless assertions.

“The flimsiness of its request for extraordinary relief, and its use of the Maui tragedy, support a finding of frivolousness and bad faith,” he wrote.

Eddins noted that Maui County and the Sierra Club showed that there was more than enough water for firefighting and that Crabtree’s order had zero impact on the tragedy that unfolded on Aug. 8.

“Maui County flatly contradicted the BLNR. The county said it had way more than enough water to fight the fire,” the judge pointed out.
 
He cited the Sierra Club’s characterization of the AG’s and land board’s petition as a “brazen attempt to capitalize on tragedy to subvert the judicial process.”

Wayne Tanaka, Sierra Club’s Hawaii director, said the state’s legal maneuver one day after the deadly fire was a “shameful attempt to exploit the tragedy to give more control over our public trust resource to a private entity.”

Court Ruling Overturned In Separate East Maui Water Case

While the Sierra Club won this round, it recently lost another court fight over water permits held by A&B and EMI.

Tanaka said his group will likely appeal a decision issued last week by the Hawaii Intermediate Court of Appeals.

The appeals court reversed a decision by the environmental court that had sided with the Sierra Club, ruling in favor of the land board and co-appellants, A&B, EMI and Maui County.

Hawaii Deputy Attorney General Melissa Goldman said in a DLNR release that she was pleased because the appeals court decision recognizes that state agencies “acting in their field of expertise make policy decisions in our system of government.”

The issue stemmed from a Nov. 13, 2020, public hearing where the land board considered reissuing one-year permits for A&B and EMI. The board issued the permits in 2000 and has renewed them annually since 2001, when the companies applied for a 30-year lease but nonprofits Maui Tomorrow and Na Moku Aupuni o Koolau Hui requested a contested case hearing — a matter that remains pending before the land board.

On the eve of the November 2020 public hearing, the Sierra Club requested a contested case hearing. The land board said no.

Tanaka said a contested case would have allowed for more thoughtful decision-making and give the public a wider opportunity to weigh in.

“Water is such an essential resource. We need to make sure that decisions are well-informed and carefully considered,” Tanaka said.

The environmental court ordered BLNR to hold a contested case hearing, modify the permit terms, and reduce the amount of water A&B and EMI could divert until the hearing was held and a decision rendered.

The board complied, held a contested case hearing in December 2021, and renewed the permits with 23 conditions.

Meanwhile, the state, A&B, EMI and Maui County successfully appealed the environmental court’s judgment.

In its 49-page decision, the appeals court found that the BLNR acted correctly in initially denying the request for a contested case hearing because the Sierra Club was not constitutionally entitled to have one.

The environmental court lacked jurisdiction to modify the permit terms, exceeded its authority and substituted its own judgment for that of BLNR, “an expert agency dealing with a specialized field,” according to the decision.

The appeals court said the Sierra Club was not entitled to attorney fees or costs in that case.

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.

Civil Beat’s coverage of environmental issues on Maui is supported by grants from the Center for Disaster Philanthropy and the Hawaii Wildfires Recovery Fund, the Knight Foundation and the Doris Duke Foundation.