Ka Wai Ola - Office of Hawaiian Affairs, Volume 25, Number 2, 1 February 2008 — 'Victory' for Native Hawaiians in Molokaʻi water rights case [ARTICLE]

'Victory' for Native Hawaiians in Molokaʻi water rights case

By Lisa Asatū Public lnfurmatiun Specialist Moloka'i Properties Ltd. said it expects to resubmit its applieahon for a water pennit "in the next few months," following a recent Hawai'i Supreme Court ruling in a case that pitted the landowner against the Office of Hawaiian Affairs, two homesteaders and state Department of Hawaiian Home Lands. The refiling "will be heard as a new water applieahon, but it will be based on existing and current uses for the residences, for the agricultural activities, for the golf course and whatever uses are currently going on out of that system," said Daniel Orodenker, general manager for land and entitlements and general counsel for Moloka'i Properties Ltd., commonly known as Moloka'i Ranch. Because of the "very technical" nature of the decision, he said the company is "trying to ascertain from the (State) Commission on Water Resource Management how we ean file this in an appropriate manner." The Supreme Court ruled Dec. 26 that the water conunission had erred in issuing a water use permit in 2001 to Kukui (Moloka'i) Ine., later bought by Moloka'i Properties. The pennit allocated 936,000 gallons a day for "existing uses" and 82,000 gallons a day for "new uses" for Kukui, whieh at the time owned lands including the now-closed Kaluako'i Hotel and the onee closed and nowreopened golf course. In a 56-page ruling, the court remanded the case to the eommission, whieh the court said had failed to impose the burden of proof on the applicant that its water alloeahon would not interfere with the water needs of DHHL; had improperly shifted the burden of proof to Native

Hawaiian practitioners regarding the impact on their exercise of customary and traditional rights; and had ignored the closure of Kaluako'i Hotel and golf course when it evaluated the applieation's "existing uses." "This decision represents a substantial victory for OHA and Native Hawaiians in protecting Native Hawaiian rights as well as the Tife-giving water' of Moloka'i for OHA's beneficiaries and all who reside there," said OHA Chairperson Haunani Apoliona. "OHA is hopeful this Supreme Court ruling will reinforce our position as it relates to the contested-case hearing before the State Water Commission for Maui County at Nā Wai 'Ehā." lon Van Dyke, who represented OHA during the contestedcase hearing and the appeal to the State Supreme Court, said the ruling means that "the alloeahon of water pennits on Moloka'i is back to square one, and it ean be anticipated that another protracted contested-case hearing will probably be held in the future to determine how mueh water Moloka'i Properties Ltd. is entitled to." Water iights granted under the 2001 alloeahon were less than the applicant had sought but more than should have been allowed in light of evidence showing that Kukui had never used the amount of water it claimed and that the alloeahon would negatively impact DHHL's abihty to deliver water to its Moloka'i homesteaders, according to arguments presented by OHA and Native Hawaiian groups. The court also reaffirmed and clarified other principles established in its previous decisions, including that puhlie trust purposes include the protection of: waters in their natural state, domestic uses particularly for drinking purposes, and the exercise of Native Hawaiian traditional and customary rights. I