Sierra Club Appeals BLNR’s Unconstitutional Rejection of Due Process, Public Trust in East Maui
By Wayne Tanaka, Chapter Director | Reading time: 3 minutes
The Sierra Club of Hawaiʻi, alongside Nā Moku ʻAupuni o Koʻolau Hui - an organization of farmers and lineal descendants of East Maui - has filed an appeal of the Board of Land and Natural Resources’ (BLNRs’) rejection of our contested case hearing requests over the issuance of a revocable permit to divert East Maui streams thru 2026.
For a quarter century, East Maui’s streams have been continuously diverted under “temporary,” annual “revocable permits” that have been “held over” or renewed every year. Last year, a Hawaiʻi Supreme Court ruling reaffirmed that an evidentiary proceeding, called a “contested case hearing,” must be held prior to the issuance of these permits, if requested by the organizations like the Sierra Club; such a proceeding is necessary to ensure that our members’ constitutional rights are given due process, and so that the BLNR has vetted, factual information to protect these rights as required under state laws and the public trust.
A subsequent environmental court decision also found that the BLNR had breached its public trust duties in the issuance of past East Maui stream diversion permits, including by failing to protect Native Hawaiian traditional and customary practices, or to address the rampant waste of diverted stream water; the court accordingly ordered the BLNR to make necessary findings regarding Native Hawaiian traditional and customary rights in its issuance of future permits, and to ensure that no more water is taken from East Maui’s streams until the Water Commission’s stream flow restoration orders for the region are fully implemented (read more details on these decisions in our past coverage here).
The BLNR ignored these legal rulings in its last-minute issuance of the revocable permit for 2026 last December.
The BLNR not only rejected the contested case hearing requests by Nā Moku ʻAupuni o Koʻolau Hui and the Sierra Club of Hawaiʻi, but then proceeded to issue a revocable permit that authorized a more than 50% increase in the amount of water that could be diverted out of East Maui, compared to the amount of water that was taken last year.
Numerous other issues, such as the continued noncompliance with Water Commission stream restoration orders, ongoing waste of water from leaky infrastructure, a failure to properly account for Native Hawaiian traditional and customary rights, a failure to assess coastal impacts, and an overall lack of information regarding how much water has been and would be taken from any given stream, among many others, also plagued the permit.
To add insult to injury, the BLNR’s apparent violation of clear court rulings as well as its statutory and constitutional obligations only sought to appease a private corporation based in Canada - at the expense of local residents, ecosystems, and streams.
Notably, the Sierra Club had offered not to challenge the issuance of a revocable permit if a contested case hearing to address these and other issues was commenced in January, and as long as no more water was allowed to be taken from East Maui as had been taken last year, consistent with the Environmental Court’s ruling. This offer was rejected.
Accordingly, the Sierra Club of Hawaiʻi along with Nā Moku ʻAupuni o Koʻolau Hui has now been forced to file an appeal of the BLNR’s decision with the environmental court - something that will only cost time and money for all sides, while streams and the people and ecosystems they support continue to suffer.
Stay tuned for more updates on this hugely disappointing development. In the meantime, you can read Sierra Club of Hawaiʻi’s notice of appeal here, watch the BLNR hearing here, review the submittal and testimonies here (see agenda item D-15), and sign up for East Maui action alerts here.