BLNR Denies East Maui Kalo Farmers, Cultural Practitioners Due Process In East Maui Stream Diversions

By Wayne Tanaka, Chapter Director | Reading time: 4.5 minutes

On Friday, July 11, in a divided 4-2 vote, the Board of Land and Natural Resources (BLNR) rejected Nā Moku ʻAupuni o Koʻolau Hui’s (Nā Moku’s) contested case request on the issuance of a revocable permit to dewater East Maui streams thru 2024. 

Nā Moku, a hui of East Maui kalo farmers and lineal descendants who, for decades ,have been fighting to restore streams diverted by A&B, had submitted their written petition for a contested case in December 2024, a few days after the BLNR decision to issue the revocable permit. The BLNR took up this request a half a year later.  

(The Sierra Club had also requested a contested case hearing verbally and in writing on the same permit, which the BLNR immediately denied before rendering its decision. Read our Litigation Station article for more on the oral arguments recently held on our appeal of this denial).

A contested case hearing would be the only means to fully assess numerous complex issues raised by the permit, relating to the public trust obligations of the BLNR. These include questions regarding the actual amount of East Maui water needed by the stream diverter, the full extent of impacts to native ecosystems and associated Native Hawaiian traditional and customary rights resulting from authorized stream diversions, and the amount of water that could be saved and left in East Maui’s streams if the diverter was required to use a lined reservoir in Central Maui (millions of gallons of water per day are currently wasted by the use of unlined and uncovered reservoirs to “store” East Maui stream water), among many others. 

Prior to the meeting, Department of Land and Natural Resources (DLNR) staff had recommended that the BLNR reject Nā Moku’s contested case request, premised on three propositions. First, staff suggested that only CWRM, and not BLNR, could take action to protect streams. Second, staff suggested that Nā Moku did not suffer from injuries, such as to their Native Hawaiian traditional and customary rights, that can be traced to the issuance of the revocable permit, and that even if a contested case hearing were to be held for the revocable permit, BLNR’s alleged inability to protecgt streams would not remedy the injury suffered by the permitted stream diversions. Finally, DLNR staff also pointed to governmental interests in saving time and money weighed in favor of the rejection of the contested case request.

The staff recommendation was immediately characterized in written testimonies as poorly rationalized and legally absurd. As the Sierra Club and others succinctly pointed out, the premise that the BLNR has no authority to protect streams is contrary to clear supreme court precedent, as well as the BLNR’s own past practices. A contested case hearing would allow the BLNR to address problematic conditions in the revocable permit that likely violated the public trust, as well as impinged on Nā Moku’s constitutionally protected traditional and customary rights. 

Unlike a regular BLNR meeting, a contested case would provide all parties the opportunity to present, defend, and cross-examine evidence and witnesses, and thus allow the building of a record upon which BLNR decisions on the permit would be explicitly made - including conditions to uphold the public trust and Nā Moku’s rights.

During the BLNR meeting, testifiers emphasized the importance of a contested case to ensure the careful consideration and protection of the public trust, consistent with the BLNR’s fiduciary obligations. Nā Moku members’ traditional and customary rights, which are dependent upon sufficient stream flow, would also be particularly impacted by the amount of water being taken out of East Maui streams - something which should not be allowed without first giving Nā Moku the due process protections of a contested case hearing. Testifiers further reasoned that the time and cost burdens to the BLNR in holding a contested case hearing should not override the clear governmental interests in ensuring constitutional due process and the enforcement of the public trust in water. 

While Chair Chang tried to downplay the need for a contested case by reminding the public that the permit was just for one year, testifiers reminded the BLNR that the one year approvals to divert had been continually issued year after year for four decades–and that issues addressed through a contested case hearing could greatly improve future permits’ consistency with the public trust. 

Ultimately, the BLNR voted to deny the contested case hearing per the recommendation of the staff. Chair Chang, in her vote, did walk back the initial assertions in the staff recommendation that the BLNR had no authority to take action to uphold the public trust. But she, alongside members Pua Canto, Riley Smith, and Vernon Char nevertheless voted to deny Nā Moku the opportunity to help the BLNR fulfill its public trust obligations. Members Aimee Barnes and Karen Ono did vote against the staff recommendation, but their no votes were unfortunately outnumbered.

While Nā Moku will also be able to appeal the BLNR’s decision to the courts, there is hope that a favorable decision in Sierra Club’s case will convince the BLNR and Attorney General to do the right thing, and grant both Nā Moku and the Sierra Club a contested case hearing - without wasting more government and community resources fighting a losing legal battle.