The Saga Continues: Sierra Club’s Ongoing Fight to Protect East Maui’s Streams

By Parker Kilkenny, J.D. candidate at William S. Richardson School of Law, University of Hawaiʻi – Mānoa | Reading time: 5.5min

For the better part of a decade, the Sierra Club of Hawai‘i has fought to protect East Maui streams from being drained dry for the benefit of private enterprises. Every year, the Board of Land and Natural Resources (BLNR), the very entity constitutionally tasked with guarding these precious resources, has thwarted these efforts. Hiding behind bureaucratic procedures, the BLNR has continually denied the Sierra Club and East Maui community members a meaningful opportunity to ensure it upholds its own public trust and statutory responsibilities, in its annual issuance of permits to dewater East Maui streams.

After hearing oral arguments last month, the Environmental Court will soon decide whether the BLNR will get away with its latest attempt to avoid formal scrutiny of its 2026 annual stream diversion permit, which now allows Canadian pension fund PSP Investments (dba Mahi Pono) to divert - and waste - millions of gallons of East Maui stream water each day.

Since 2019, the BLNR has systematically undermined Sierra Club’s right to challenge its annual East Maui stream diversion permits, and ensure the public trust is upheld in East Maui’s streams. Year after year, including as recently as December 2025, it has denied Sierra Club’s requests for a contested case hearing on these permits, ignoring the concerns and constitutional rights of the Sierra Club and East Maui community members.

Notably, a contested case hearing would provide the Sierra Club and other interested parties the opportunity to offer and cross-examine expert testimony and other evidence, and would require the BLNR to explicitly consider questions relevant to its statutory and constitutional public trust duties.

A court did order the BLNR to hold a contested case hearing for the 2021 stream diversion permit, which was extended to 2022; while the BLNR eventually held a contested case hearing, the permit it subsequently issued failed to address basic public trust concerns. That permit was later ruled by the Hawaiʻi Supreme Court to be in breach of the public trust, based on the record developed during the contested case.

Since then, the BLNR has continually denied Sierra Club’s, and more recently Nā Moku ʻAupuni o Koʻolau Hui’s (Nā Moku’s), requests for a contested case hearing on its annual East Maui permits, which have largely been rubber-stamped despite significant new information and changing conditions.

Notably, the BLNR has invariably scheduled its decision-making on these annual permits at the end of the year, when the current permit is weeks from expiring. This has allowed it to disingenuously claim that a contested case hearing would delay the issuance of any permit until well into the following year, and cut off water needed for diversified agriculture in Central Maui and by Upcountry Maui residents (an outcome that could have been easily avoided with the solution offered by the Sierra Club and Nā Moku last year). 

On June 25, 2026, Sierra Club appeared before the Environmental Court in its challenge to the BLNR’s denial of a contested case hearing for this year’s permit. Sierra Club attorney David Kimo Frankel emphasized a few simple requests: First, that the court reverse BLNR’s decision denying the Sierra Club’s 2026 contested case hearing request, and order the BLNR to move forward with a contested case. Second, that a cap be imposed on the amount of water that can be diverted until the contested case hearing is completed. Finally, that BLNR be prohibited from authorizing any other East Maui water diversions until the contested case hearing occurs.

For the first request, the court had already indicated it would likely find that a contested case hearing is required by law, in light of its previous ruling on the 2025 annual East Maui permit, and by a supreme court opinion on a previous permit.

As Frankel argued, the latter two requests were critical to ensuring the BLNR did hold a court-ordered contested case hearing in a timely manner, since it could easily drag its feet, and delay the commencement of any hearing until the end of the year – or beyond, when the 2026 annual permit would be replaced by a 2027 permit.

This concern was underscored by the BLNR attorney’s claim as to how long a contested case hearing would take. When asked by the Environmental Court how long it takes to move through these administrative proceedings, BLNR counsel stated that it takes a minimum of 17 months. In other words, it would be impossible for anyone to challenge the permits within the year they are issued, according to BLNR’s attorney.

Accordingly, by imposing a cap on the amount of water to be diverted, and by prohibiting BLNR from issuing new permits until the 2026 contested hearing is completed, contested case proceedings can move forward without the risk of further harm to East Maui’s streams – and without forcing Sierra Club to continue the never-ending hamster wheel of “Groundhog Day” litigation it has been on since 2019. This “solution” is based on solid precedent: in 2021, the court extended the expiration date of the 2021 permit into 2022, to allow for the contested case hearing to take place. As Frankel made clear, this deadline extension method is well within the equitable power of the court, and appears to be the only way to allow a permit to be challenged before it expires.

When asked why BLNR is so opposed to a contested hearing, BLNR counsel seemed incapable of articulating why it refuses to comply with this simple procedural requirement.

Frankel surmised that the BLNR has no idea which streams water is being diverted from, or how much water is being diverted – two politically embarrassing and constitutionally untenable issues that a contested case would force it to address. 

Other issues a contested case hearing would bring to light include the BLNR’s failure to implement stream restoration and mitigation measures ordered by the Commission on Water Resource Management; the BLNR’s failure to properly assess the impacts of water diversion on traditional and cultural practices; or its arbitrary refusal to apply the consistently accumulating case law outlining its constitutional and statutory obligations. All of these issues and more suggest the BLNR may be just hoping the whole thing will become water under the bridge—if there is any water left to flow, that is.

In any case, for far too long, the BLNR has refused to allow contested case hearings to take place, refused to be held accountable for their decisions, and refused to uphold their responsibilities to protect and maintain east Maui streams for present and future generations. The public’s right to meaningfully intervene in BLNR’s decision making – and in decisions by other agencies impacting our constitutional rights – may hinge on our court system’s ability to ensure meaningful due process for East Maui’s streams and communities. 

Ultimately, Sierra Club’s East Maui litigation may help to determine whether or not administrative governmental bodies are subject to the rights of the people - or the whims of a few powerful private interests.

Be sure to subscribe to our streams e-mail list at https://sierraclubhawaii.org/eastmaui-email for updates from our East Maui campaign, and check out other issue areas you can be updated on at https://sierraclubhawaii.org/blog/email-0622.