Litigation Station: Sierra Club Goes to Court (Again) in East Maui Water Saga

By Kayli Ann Yoshioka, Chapter Extern and Wayne Tanaka, Chapter Director | Reading time: 5.5 minutes

On Wednesday, July 30, Judge Lisa Cataldo heard oral arguments in the Sierra Club’s appeal of the Board of Land and Natural Resources’ (BLNR’s) denial of our contested case request, for a revocable permit authorizing the diversion of tens of millions of gallons of water per day from East Maui through 2025.  

In December of 2024, the BLNR rejected the Sierra Club’s contested case request and issued stream diverter Alexander & Baldwin (A&B) and its then-partner Mahi Pono a revocable permit to dewater East Maui streams for another year. The Sierra Club appealed this rejection, leading to the oral arguments held last Wednesday. 

Sierra Club attorney David Kimo Frankel kicked off the hearing by emphasizing the need for a contested case hearing to examine and address new factual matters that have arisen over the past three years. For example, the Water Commission had determined in 2023 that the public trust required a dozen streams in Huelo to have at least some of their stream flow restored - a fact that the BLNR neglected to consider in authorizing a permit that could drain these streams dry 70-80% of the year. In addition, the BLNR had authorized far more water to be diverted than what the permittee’s own expert had recently said would be needed for diversified agriculture - something that could and should be addressed through the thorough examination of evidence that a contested case would provide. 

Frankel also highlighted the need for judicial intervention to ensure that if and when a contested case hearing was ordered, the BLNR would hold one promptly. He pointed to past instances of BLNR foot dragging in dealing with its public trust obligations; in one example, a previous appeal of a prior revocable permit was ruled moot, after the BLNR failed to hold a contested case hearing on the one-year permit for well over half a year. To prevent similar foot-dragging, he argued, the judge’s “equitable” powers should be used to modify the permit and incentivize much more prompt action, such as by placing a “cap” on the amount of water that could be diverted under the permit while a contested case hearing was pending.  

Deputy attorney general Miranda Steed, representing the BLNR, began her oral arguments with what Judge Cataldo characterized as a move that felt like “gamemanship”- stating that the BLNR had not yet received a transcript of its decisionmaking on the revocable permit, making the record incomplete and the Sierra Club’s appeal premature. Unlike in previous years, the BLNR minutes from that meeting did not reflect the BLNR’s reasoning in denying the Sierra Club’s contested case hearing request. Accordingly, the BLNR had ordered a transcript, which had still not been completed several months later. Without a transcript, the record did not give the court a basis to find that the BLNR had made a “clear error” in denying the Sierra Club sufficient due process. 

(In his rebuttal, Frankel would clarify that the denial of a contested case request is reviewed “de novo” as a matter of law, and did not need a finding of “clear error” to be reversed - making a transcript unnecessary).

Steed also challenged the Sierra Club’s standing and ability to sue, stating that the Sierra Club only had an “interest” in how much water remained in East Maui’s streams, and not in what happens to water after it is diverted. She also argued that the Sierra Club’s constitutional interest in water should be defined and limited to the provisions of the Water Code, that the BLNR’s permitting authority was focused primarily on revenue generation, and that the Sierra Club should pursue relief from the Water Commission if it was concerned about water being taken from streams.  

(Frankel’s rebuttal noted that the BLNR clearly had the authority and duty to protect streams consistent with the constitutional public trust; the explicit language of the BLNR permitting statute, which required the BLNR to impose permit terms and conditions in “the best interest of the state”; and as affirmed by CWRM itself, when it set updated minimum stream flow requirements for the Huelo streams and noted that the BLNR would have to determine how much, if any, stream flow that exceeded those requirements could be diverted).

Steed also argued that the judge did not have any authority to set a “cap” or modify the revocable permit to incentivize the timely holding of a contested case hearing. The judge could only order that a contested case hearing would be required and the permits vacated, or simply affirm the BLNR’s decision. 

(Frankel’s rebuttal noted that no one wanted to see the permits vacated, that there was ample precedent for the court to modify the permit - as Judge Crabtree had done - and that BLNR would have no incentive to act in a timely manner without some level of judicial modification. He noted that the BLNR had a demonstrated willingness to drag its feet when it came to East Maui water, and had failed to even make a decision on a previous contested case request for a revocable permit issued in 2023, until it denied that request in December 2024 - just weeks before the annual permit was set to expire).  

Trisha Akagi, attorney for A&B, urged the judge to wait until the supreme court rendered its opinion on whether a contested case hearing should have been held on a previous permit issued in 2022. She reiterated the need for a transcript, and repeated Steed’s argument that the Sierra Club should pursue relief from the Water Commission. She also said that the Sierra Club would be able to raise its concerns again in six months, when the permit for 2026 would be considered by the BLNR, and that opportunities to testify before the BLNR were sufficient to satisfy the Sierra Club’s due process rights.

Judge Cataldo ultimately expressed some hesitation about rendering a decision without a transcript, although she clearly understood the pressing nature of the situation, with the 2025 revocable permit set to expire in December. Wanting to avoid any more undue delays, and after some discussion with the attorneys on all sides, she ordered the BLNR to ensure that a transcript was produced no later than August 18, with a brief on that transcript due from A&B and the BLNR by August 29th, a reply brief from the Sierra Club due on September 5th, and a response to the Sierra Club’s reply due by September 10th.

Please stay tuned for more developments on our legal fight for East Maui’s streams, watershed, estuaries, and the communities that rely on them! In the meantime, read our separate article on the BLNR’s denial of a separate contested case request on the same permit, submitted by cultural practitioners and lineal descendants of East Maui.