Litigation Station: East Maui Double Win: Supreme court, environmental court side with Sierra Club and East Maui streams

By Wayne Tanaka | Reading Time: 7 minutes

The Hawaiʻi Supreme Court in September delivered another decisive blow to the Board of Land and Natural Resources’ (BLNRs’) repeated denial of water protectors’ constitutional rights, ruling that the BLNR must hold a fact-intensive contested case hearing before allowing East Maui’s streams to be drained dry.

The supreme court opinion in Sierra Club v. Board of Land and Natural Resources also affirmed that the BLNR must consider the mauka-to-makai impacts of its decisions, given the wide-ranging impacts of stream diversions on watersheds, estuaries, and the nearshore environment.

In 2020, the BLNR renewed A&B's revocable permit to dewater East Maui streams, while denying the Sierra Club of Hawaiʻi's request for an evidentiary hearing, or contested case, to more thoroughly examine the environmental and cultural impacts of its decision - as well as A&B's apparent waste of millions of gallons of water per day. 

The environmental court subsequently found that the BLNR had deprived Sierra Club of Hawaiʻi members' constitutional right to a healthful environment, without due process. The environmental court further reduced the amount of water that A&B was authorized to take from East Maui until an evidentiary hearing on the Sierra Club's concerns was held, and due process satisfied.

The intermediate court of appeals later reversed the environmental court’s decisions - a ruling that was reversed again by the Hawaiʻi Supreme Court in Friday’s opinion.

The supreme court opinion, finding that the BLNR had failed to uphold the Sierra Club's right to be heard, reflected the court’s historic “concern about barriers facing community members seeking meaningful participation in an agency’s proceeding and determinations affecting the environment.”

“This is about more than the BLNR’s responsibility to consider the impacts of dried out streambeds, disrupted cultural practices, and rampant water waste – all of which are extremely critical issues,” observed David Kimo Frankel, attorney for the Sierra Club of Hawaiʻi. “This is also about whether a government agency can simply deprive you of your constitutional rights – without any opportunity to present and examine facts, cross examine witnesses, or demonstrate the extent of the harm that you may suffer from its decisions.”
Notably, the supreme court again rejected the attorney general’s outlandish assertion that the BLNR has no power to protect streams - despite having the authority to authorize their diversion. This argument had been rejected as far back as 2003, and specifically shot down by the court in another September decision, Kia‘i Wai O Wai‘ale‘ale v. BLNR.

In another remarkable affirmation of our coastal protection laws, the supreme court also emphasized that the BLNR, as a state agency, must consider the “mauka to makai” impacts of its decisions under the Coastal Zone Management Act. The explicit provisions of the act require the BLNR to consider the impacts of stream diversions on coastal waters and ecosystems, even if the diversions it authorized took place far upstream from the coast.

“The court recognized the common-sense fact – embodied in our coastal zone management law, and in the state’s own taxpayer-funded studies – that what happens mauka affects makai,” said Wayne Tanaka, Sierra Club of Hawaiʻi executive director.

The controversy over the BLNR's repeated issuance of "temporary" permits to allow A&B to continuously drain east Maui streams dry is long-standing, having spawned more than twenty years of litigation, highly controversial legislation, and multiple rebukes by the environmental court as well as the highest court of the land. In 2023, environmental court Judge Crabtree found that the BLNR's denial of the Sierra Club of Hawaiʻi's contested case request on a subsequent stream diversion permit "offends the constitution." Last year, the supreme court concluded that the BLNR and Attorney General had made false claims regarding the need for increased stream diversions during the Maui wildfires, stating that the "facts" presented “were so manifestly and palpably without merit, so as to indicate bad faith.”

While the one-year permits issued in 2020 have already expired, the supreme court opinion will likely influence the outcome of similar cases pending in lower courts, concerning the BLNR's repeated denials of evidentiary hearing requests from the Sierra Club of Hawaiʻi and other water advocates. This includes requests for hearings on subsequently issued revocable permits, including one submitted for the 2025 east Maui revocable permits by Nā Moku ʻAupuni o Koʻolau Hui, a group of kalo farmers and lineal descendants of east Maui. Of course, the BLNR may choose to save the substantial time and costs of litigation by conceding that its refusal to hold contested case hearings for these permits was unlawful - but given its history, this is far from certain.

Environmental Court Sets Future Permit Requirements

In another victory, on October 29, Environmental Court Judge Lisa W. Cataldo sided with the Sierra Club in its appeal of revocable permits issued by the BLNR to divert East Maui streams in 2022. The court found that the BLNR had “breached its public trust duties,” given that its permits:

• Failed to protect Native Hawaiian traditional and customary practices;

• Failed to ensure that water taken from streams was and will be used in a reasonable and beneficial manner given system losses;

• Failed to hold A&B/EMI to their burden regarding their actual water needs and the lack of alternative water sources; 

• Improperly authorized an increase in the amount of water diverted from east Maui before resolution of the Sierra Club’s petition to set instream flow standards; and 

• Failed to protect the flow of the 12 Huelo streams and impermissibly used “uncertainty” as a reason for its abdication of these streams.

Although the 2022 permits have long expired, after finding that these failures may only be repeated over time, the court ordered the BLNR to ensure that future revocable permits for East Maui stream diversions:

• Require practical mitigation measures to reduce system losses;

• Ensure that CWRM’s interim instream flow standards are in place and fully implemented before allowing more water to be taken from east Maui streams; and

• Render necessary findings regarding Native Hawaiian traditional and customary practices.

These protections will provide critical baselines for stream diversion permits going forward, including those anticipated to be proposed for 2026. 

A history of due process denied.

The BLNR has a long history of refusing to uphold the due process rights of community members, including those of Kānaka ʻŌiwi in particular, and then being rebuked by the courts. For example: 

• The Hawai‘i Supreme Court held that BLNR erred in denying a contested case hearing on the continuation of a revocable water permit for the Blue Hole water diversion on Kauaʻi for the years 2021 and 2022, after the permit had been continued for almost two decades. Kia‘i Wai O Wai‘ale‘ale v. BLNR, SCWC-23-0000383 (Haw. Sep 30, 2025).

• The Intermediate Court of Appeals held that BLNR improperly denied a request for a contested case hearing on the renewal of commercial boating permits on Maui. Ka Malu o Kahalawai v. BLNR, CAAP-22-0000377 (July 28, 2025).

• The Intermediate Court of Appeals held that BLNR improperly denied a request for a contested case hearing on the revocable permit to preset chairs in front of the Kahala Hotel. Ralston v. BLNR, CAAP-22-0000402 (June 10, 2025)

• In 2024, the environmental court finally concluded that BLNR improperly denied a request for a contested case hearing on East Maui revocable permits. Nā Moku v. BLNR, Civ. No. 16-1-0052-01 JPC Dkt 102 at 6.

See also Kaleikini v. Thielen, 124 Hawai‘i 1, 237 P.3d 1067 (2010) (BLNR chair refused to hold contested case hearing required before approving the removal of burials); Kilakila ‘O Haleakalā v. Bd of Land & Natural Res., 131 Hawai‘i 193, 317 P.3d 27 (2013) (BLNR approved conservation district use permit before holding a required contested case hearing); Mauna Kea Anaina Hou v. Bd. of Land & Natural Res., 136 Hawai‘i 376, 363 P.3d 224 (2015) (same).