In a setback for environmentalists and some Native Hawaiian farmers, a First Circuit Court judge on Tuesday sided with the state, Maui County and Alexander & Baldwin in a case regarding the use of stream water from East Maui.

But the ruling is a victory for land developers and the state agencies that make decisions on off-stream water uses.

The case, filed by Sierra Club Hawaii, centered on the Board of Land and Natural Resources’ decisions renewing stream-use permits in 2018 and 2019 to A&B.

The Sierra Club alleged that the BLNR violated its public trust duties by “not having sufficient information and not fully considering the impact” to 13 streams in East Maui. Other users of the water include small taro operations.

While allowing that the Sierra Club “raised legitimate questions and concerns” over the BLNR’s decisions on what are known as hold-over revocable permits, Judge Jeffrey Crabtree concluded in his 46-page decision that “several broader principles and factual issues guide the court’s conclusion that the BLNR did not fail in its duties under either a constitution(al) balancing test or under its public trust duties.”

A photo of a stream in East Maui, provided to Hawaii media by the state Department of Land and Natural Resources. Courtesy: DLNR

The BLNR is pleased with Crabtree’s ruling.

“Water is obviously fundamental to everyone,” said Suzanne Case, who chairs both the BLNR and the Commission on Water Resources Management. “East Maui has a long and challenging past, but we’re dealing with the present and the future. The BLNR and CWRM have worked long and hard to meet their constitutional obligations and statutory mandates to protect our public trust resources and allow for sustainable use. Careful balancing is key.”

In an email to supporters after the decision was released, Marti Townsend, director of Sierra Club Hawaii, said she was “saddened” and “extremely disappointed” in the court’s ruling.

“The court ruled against us,” she said. “Even though it recognized that there is ‘no meaningful’ protection of the 13 streams we are seeking to defend, at the end of the day the court’s ruling decides that these streams are less important than other streams.”

Asked if the Sierra Club will appeal Crabtree’s decision, Townsend told Civil Beat Wednesday, “We are looking at our options.”

Civil Beat left messages with A&B seeking comment.

Long-Running Dispute

Crabtree’s ruling likely does not end the fight over East Maui water, which has been ongoing for over two decades and whose origins date to the 19th century.

A related dispute — on whether the BLNR and A&B can effectively bypass Hawaii’s Environmental Policy Act to divert the streams — awaits a decision from the Hawaii Supreme Court.

The Carmichael v. BLNR case, which was heard in May 2020, was filed by the Native Hawaiian Legal Corp. The NHLC represents farmers Healoha Carmichael and Lezley Jacintho and the nonprofit Na Moku Aupuni O Koolau Hui.

The water-rights issue has also been the subject of contentious and complicated deliberations before the BLNR and at the Hawaii Legislature.

For more than a century A&B and East Maui Irrigation (another defendant in the Sierra Club lawsuit) have diverted water from streams in East Maui to sugar plantation operations. Besides agriculture, the water is also used for residential use in Upcountry Maui, for fire-fighting and for commercial purposes.

What has changed more recently, as Crabtree observed, is the “historic demise of water-intensive sugar cane” and the 2018 sale of A&B’s former sugar crop lands in Central Maui to Mahi Pono, a new company focused on diversified agriculture.

“Mahi Pono was essentially starting from scratch, during a historic change, in a new market where the actual use of water depends on variables that Mahi Pono has little control over,” Crabtree wrote. “Realistically, the court concludes that Mahi Pono deserves some time and mileage to gain experience and figure things out.”

Read the court ruling here:

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