Litigation Station Updates
By Wayne Tanaka, Chapter Director | Reading time: 8 minutes
Sierra Club and our legal beagles scored two victories in our efforts to protect our 'āina, wai, and social fabric this month. Our friends in Guåhan, meanwhile, had their case to stop the open burning and detonation of hazardous military waste on ancestral lands heard before the Ninth Circuit Court of Appeals on Oʻahu. Read on for more!
Housing proclamation amended, lawsuit withdrawn
As you may have heard, in September, Governor Green responded to our lawsuit challenging his emergency proclamation on housingʻs unconstitutional attack on critical environmental and cultural protections, as well as on fundamental laws protecting the public's “right to know.”
He issued a new proclamation - now called a proclamation on “affordable housing” (the original proclamation on housing had no affordability requirements, despite its ostensible purpose) - that removed the previous version's suspensions of the environmental review law, historic preservation law, land use commission oversight of land use changes, and Sunshine law.
Then, in October, Governor Green amended his proclamation again - this time to largely restore the county councils' role in approving or modifying the exemptions and fee waivers proposed for “Section 201H” affordable housing projects in their respective counties. This was in response to our concerns, and the concerns of our co-plaintiffs, that locally-elected representatives should have a say on whether or not developer free passes are commensurate with the actual benefits they provide to the community.
With the majority of our substantive concerns successfully addressed, and after much deliberation, the plaintiffs in our legal intervention - including the American Civil Liberties Union of Hawaiʻi, Nā ʻOhana o Lele Housing Committee, Hawaiʻi Advocates for Truly Affordable Housing, E Ola Kākou Hawaiʻi, and Land Use Commissioner Kūʻikekeokalani Kamakea-ʻŌhelo - agreed to withdraw our legal complaint. This was done “without prejudice,” meaning that we are all free to come back to court if the Governor changes his mind and once again attacks these bedrock legal protections using his dubious executive emergency authorities.
Many thanks to our co-plaintiffs for their willingness to stand against the Governor's blatant executive overreach, and to the team at the Earthjustice Mid-Pacific Office for their excellent legal representation.
While this victory will allow us to shift our focus on other important areas of work, there are still concerns with the current emergency proclamation that should make all of us take pause.
For example, serious questions remain regarding the overall constitutionality of the Governor's emergency proclamation, which relies on a highly complex, century-old problem to unilaterally usurp the legislature's role as the lawmaking branch of government.
Critical discussions are also needed on what constitutes truly “affordable housing,” defined in the current proclamation as any project where the majority of units can be priced up to 140% of the Area Median Income (equivalent to $3,200/month rent for a studio or $4,100/month for a 2-bedroom apartment in Honolulu).
Most concernedly is the myopic narrative from administration officials and developers alike, to scapegoat vaguely alluded to “regulations” for our housing crisis, without acknowledging the true causes of our runaway housing costs and lack of truly affordable housing.
This strongly suggests that we are likely to see continued legislative attacks on the environmental and cultural protections deemed inconvenient for developers' profit margins - so be sure to sign up for action alerts at https://www.hawaiicapitolwatch.org to help defend our ʻāina and communities from developer lobbyists.
Environmental court calls it like it is for Maui Hikina stream diversions
A fundamental legal principle of the public trust in water is that private water users must account for their actual needs, and demonstrate why these needs should outweigh any impacts to the public interest, and to other water users. As the Hawaiʻi Supreme Court has repeatedly and clearly held, the state is “duty-bound to place the burden on the applicant [for a private water use] to justify the proposed water use in light of the trust purposes. [Applicants] must demonstrate their actual needs, and. . . the propriety of draining water from public streams to satisfy those needs.” Kaua’i Springs, Inc. v. Planning Commission of Kaua’i, 133 Hawai’i 141 (2014) (citing In re Water Use Permit Applications (Waiãhole I), 94 Hawai’i 97 (2000)).
Of course, real estate investment trust Alexander & Baldwin and Canadian pension fund Mahi Pono have never demonstrated their actual, quantified needs for Maui Hikina (East Maui) stream water water under the annual revocable permits that they have been issued by the Board of Land and Natural Resources for years and years.
Needless to say, these corporations have also not justified the impacts of their diversions on East Maui's streams, estuaries, and communities — particularly in light of the millions of gallons of diverted water that they continue to waste every single day, due to their refusal to line their ditches and Central Maui reservoirs.
Nonetheless, the Board of Land and Natural Resources (BLNR) has routinely rubber-stamped their revocable permit requests, most recently authorizing the diversion of over 40 millions of gallons of water from East Maui's streams per day, in the latest round of permits that the Sierra Club is currently challenging.
In June of this year, Environmental Court Judge Jeffrey Crabtree overrode the BLNR and reduced the amount of water that can be taken under these revocable permits to 31.5 million gallons per day - a modest reduction that still exceeded reported water uses for the past several years. After the attorney general failed in an attempt to exploit the Maui fires to challenge the Environmental Court judge's authority, Alexander and Baldwin appealed to Judge Crabtree directly, asking him to allow them to take the full 40.5 million gallons per day originally authorized.
Unfortunately for Alexander and Baldwin, the judge actually stuck to the clear legal requirements that they quantify their actual need for water - and found their evidence lacking, to say the least.
In upholding his prior decision, Judge Crabtree noted that “A&B did not meet its evidentiary burden. There is conflicting and inconsistent data. A&B’s submissions are not sufficient to reliably demonstrate an increase is currently justified to the court’s previously imposed stream diversion cap of 31.5 MGD.”
Looking at water use reports, he noted that the 31.5 million gallon per day “cap” on diversions “is substantially more than is actually ever used in any month according to the . . . data, and is far more than is used in 5 of the 9 months for which data is available.”
He refused to increase this cap to accommodate their claims of “unavoidable” waste, “absent evidence that X amount of system waste cannot reasonably be avoided, and absent evidence that the court’s current cap is not working.”
He also recognized that Mahi Pono was claiming to need the same amount of water for newly planted trees as mature trees - which did not yet exist - and that it was inappropriate to conclude, as suggested, that Mahi Pono's water needs during wet months would be the same as during dry months.
Notably, Judge Crabtree found that “No evidence has been presented that Mahi Pono’s crops are dying or are not thriving. No evidence has been presented that the reservoirs are dry, it is a hot month, there has been insufficient rain the last 30 days, and therefore more water is needed now.”
Accordingly, and consistent with the public trust doctrine, the Environmental Court stood by its earlier 31.5 million gallon per day “cap” on Maui Hikina stream diversions. Read Judge Crabtree's decision here.
While this is a temporary victory, there are still many issues to be resolved just with these permits alone. We are still awaiting our contested case hearing that Judge Crabtree ordered to the BLNR to hold regarding the same revocable permits - five months ago. On November 15, Judge Crabtree will also consider Alexander and Baldwin's request to extend the permits, as they will likely expire before the contested case hearing (which has not yet begun) is completed. In addition, there is the real risk that the BLNR will try to use its own delays in starting the contested case hearing to “moot” out our concerns - an issue that will also be considered on November 15. Be sure to subscribe to our streams email list for more updates on this and other matters affecting our public trust stream resources.
Prutehi Litekyan fight against toxic military contamination goes to the Ninth Circuit Court of Appeals
While the Sierra Club is not a party to this litigation, it is worth noting that our Red Hill ally Prutehi Litekyan/Save Ritidian - represented by Earthjustice - has now appealed the Guam District Court's decision to not require a federal environmental assessment for the U.S. military's renewed open burn/open detonation permit for their ancestral lands in Litekyan (also known as Ritidian).
On October 6, Earthjustice's David Henkin made the common sense argument before the Ninth Circuit Court of Appeals in Honolulu that the U.S. Air Force should have complied with the federal National Environmental Policy Act before submitting its application to continue the open-air burning and detonation of hazardous waste on Tarague Beach in Litekyan, adjacent to Guåhan's sole source aquifer. CHamoru groups have been fighting to stop this practice, which releases untold toxic chemicals into the air, land, and water, contaminating their ancestral lands and subsistence resources potentially for generations. The environmental assessment they are seeking would force the Air Force to take a hard look at the impacts that open burning and detonation activities have on the environment, and consider alternative ways to dispose of military munitions and other hazardous waste in a more environmentally protective manner.
Be sure to follow @prutehilitekyan and @protectguamwater on Instagram for more updates about this campaign.