Litigation Station: Hawaiʻi Supreme Court Castigates Attorney General, Board of Land & Natural Resources for Lying About and Exploiting Lahaina Tragedy
by Kirsten Kagimoto, Chapter Deputy Director and Wayne Tanaka, Chapter Director | Reading time: 3.75 minutes
Last month, in a unanimous and blistering decision, the Hawaiʻi Supreme Court found that the Board of Land and Natural Resources (BLNR), through the Attorney General's (AG’s) office, acted in “bad faith” when it submitted false claims to exploit the Lāhainā fires, in order to allow Alexander & Baldwin (A&B) to divert more water from East Maui’s streams.
On August 9, the day after wildfires ravaged Lāhainā, the AG submitted a petition on behalf of the BLNR to the Hawaiʻi Supreme Court, claiming that Environmental Court judge Jeffrey Crabtree’s 31.5 million gallon per day (mgd) cap on A&B’s East Maui stream diversions left Maui with “not enough water…to battle the wildfires.” The petition also claimed that the judge had “refused to permit any water for firefighting,” and that his decision “resulted in an imminent threat to health and safety.” The petition asked the supreme court to revoke the 31.5 mgd cap and prevent judge Crabtree from imposing any similar restrictions on water diversions going forward.
These claims were quickly proven false by both the County of Maui and the Sierra Club of Hawaiʻi during oral arguments before the supreme court on the petition. However, even after being given multiple opportunities from supreme court justices to “walk back” their false assertions, the AG and BLNR declined to do so. When the Sierra Club’s attorney, David Kimo Frankel, later requested that the false claims be withdrawn, the AG and BLNR again inexplicably refused.
Accordingly, when the Sierra Club attempted to recoup the costs of disproving the false claims, the Hawai‘i Supreme Court minced no words. The court’s ruling in favor of the Sierra Club found that the AG and BLNR "tried to leverage the most horrific event in state history to advance its interests,” and that “hard data” by the Sierra Club as well as statements from Maui County officials demonstrated how "[c]ontrary to the claims in the BLNR’s petition, there was enough permitted water and reserve water to fight the fires”; clearly, the environmental court’s actions did not “result[] . . . in an imminent threat to public health and safety.”
Finding that the AG’s and BLNR’s “refusal to withdraw the 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,” the court rejected their claims of sovereign immunity and ruled in favor of the Sierra Club - and in doing so, also defended the integrity of our Judiciary and our very system of constitutional governance.
As Chapter Director Wayne Tanaka stated after the ruling,
"This is not just about protecting East Maui’s streams and our most precious resource against corporate water hoarding and waste. This is not just about the shameless exploitation of an unimaginable tragedy by a government agency, to benefit one of the most powerful corporations in our islands.
This is also about defending the integrity of our judiciary, and Hawaiʻi’s highest court, from disinformation submitted and maintained as fact, and in bad faith.
Our courts are supposed to be the protectors of truth and justice – and our last line of defense against the use of lies to violate both individual rights and the public interest. The Attorney General’s submission of dishonest claims to the supreme court was in many ways an attack on one of the core foundations of our representative democracy.
We are heartened that our supreme court has made clear it will not tolerate attempts to degrade its solemn role, and the role of our Judiciary, by the unapologetic use of falsehoods to manipulate legal outcomes – even, and perhaps especially, by government attorneys.”
Our commitment to accountability
The Sierra Club of Hawaiʻi stands firm in our commitment to accountability and integrity. We refuse to tolerate the degradation of our judicial system, the exploitation of our people and ʻāina, or the corruption of our democracy, especially and particularly by those who would abuse their political power and influence for their own private gain.
We applaud the Hawaiʻi Supreme Court for its commitment to upholding truth and justice in its latest ruling regarding our public trust water resources. This ruling sends a powerful message that our courts will not be swayed by deceitful tactics, even when wielded by government agencies.
Alongside our allies, we will continue to stand against injustice and defend our lands, waters, and people to ensure a more equitable and resilient future for our future generations. Please join us by making a donation today to support our efforts, following us on Instagram, Facebook, and Twitter, and subscribing to our email lists.
Ola i ka wai!