Ka Wai Ola - Office of Hawaiian Affairs, Volume 35, Number 5, 1 Mei 2018 — Supreme Court schedules arguments on 1993 water use permit [ARTICLE]

Supreme Court schedules arguments on 1993 water use permit

NŪHOU ^ NEWS /

By Cheryl Corbiell Editor's Note: For clarity, this article uses 'Moloka'i Ranch' to refer to the current entity, as well as its related entitities Kukui (Moloka' i), ine., Moloka'i Properties Ltd., and Molokai Puhlie Utitlities. Thirty-nine Moloka'i residents whose service across the pae 'āina has helped protect Native Hawaiian water rights were honored by the Hawaiian Homes Commission at its April 6 meeting on Moloka'i. The Moloka'i hui worked diligently for several years and in 1992 saw their island finally designated as a water management area, whieh provides for the highest level of management when water resources may be threatened by current or proposed withdrawals. The hui's work set in motion two decades of water rights litigation, whieh is still ongoing today. Because the Kualapu'u aquifer system area's fresh groundwater supply is limited, the dispute centers on how to allocate groundwater withdrawal in central and eastern Moloka'i. In the most recent chapter of disputes over water withdrawals and uses on Moloka'i, the Hawai'i Supreme Court has scheduled oral arguments for May 31, 2018 regarding a 1993 water use permit application by Moloka'i Ranch to the Commission on Water Resource Management (CWRM). Judy Caparida, one of the original hui members and current intervenor said, "I and others got involved in water rights

because Moloka'i Ranch wanted more water, and at the same time the Ranch was wasting water. We took pictures and video evidence of the wasted water. Today, they still want more water." Unlike land, water in Hawai 'i is not privately owned. After a century of struggle over water use and allocation, the 1978 Constitutional Convention clarified "The State has an obligation to protect, control and regulate the use of Hawai'i's water resources for the benefit of its people." Thus the state government must protect public trust uses of the water and ensure its maximum reasonable and beneficial use, In 1992, the Moloka'i ground water management designation triggered a one-year period for entities such as Moloka'i Ranch to apply for permits to continue existing uses. In 1993, Moloka'i Ranch applied to CWRM for a water use permit for Well 17 in Kualapu'u, central Moloka'i, to use the water to redevelop a closed golf course and resort on West Moloka'i. Well 17 is within 130 to 2,000 feet of two Department of Hawaiian Homelands (DHHL) wells and a County of Maui well. The Office of Hawaiian Affairs (OHA), DHHL and individuals from Moloka'i, Judy Caparida and Georgina Kuahuia, intervened in the Moloka'i Ranch water use application. After years of agency proceedings, in 2001, CWRM granted a water use permit to Moloka'i Ranch, for its existing and proposed uses of water. The Native Hawaiian agencies and individuals appealed because of their concerns about the impacts on the Kualapu'u aquifer, the increased

salinity of the water from the withdrawals and its potential adverse effects on the interconnected nearshore coastal waters and traditional and customary gathering rights, and the failure to designate DHHL's water reservations as a public trust purpose, "superior to the prevailing private interests in the resources." In 2007, the Hawai'i Supreme Court overturned the CWRM decision because the Commission did not properly consider, among other things, the impacts of the Ranch's use of the water reservation DHHL needed for homesteading or on the groundwater flow to the coast that supports traditional and customary practices of Hawaiians. The Court made clear that permit applicants such as Moloka'i Ranch have the burden to prove that the proposed use will not interfere with any public trust purposes and also to establish that the proposed well would not affect Native Hawaiian rights. In early 2008, the Ranch submitted motions to CWRM to continue water withdrawals. However, in May 2008, Moloka'i Ranch announced to CRWM [and the PUC] that it was closing all operations and it could no longer afford to operate the water and sewer utilities and did not intend to continue the water case. Nonetheless, in October 2015, the Ranch's ground water use permit application was accepted as complete by CWRM. In February 2017, CWRM dismissed the contested case based on the Moloka'i Properties' 2008 letter stating that it would not pursue the case. In March 2017, the Ranch surprised CWRM, DHHL and OHA and appealed the dismissal of the contested case to the Hawai'i Supreme Court and is arguing the Ranch's 2008 letter did not mean they were abandoning their appeal. Following the Supreme Court's decision, the SEE DHHL ON PAGE 16

DHHL

Continued from page 5 Ranch did not receive authorization for withdrawals for Well 17. In April 2018, Moloka'i Ranch announced its entire 56,000-acre property was for sale. Today, the water rights drama awaits the next step whieh is the Hawai'i Supreme Court oral arguments in Honolulu on May 3 1 about the interpretation of the 2008 letter. Students with the University of Hawai'i Environmental Law Clinic at a Moloka'i community meeting on April 12 summarized the background issues in the ongoing litigation including Moloka'i Ranch's requests for more water and new plans for its water system, the failure of Moloka'i Ranch to consider any practical alternatives, impacts of further withdrawals on adjacent DHHL and Maui Department of Water Supply wells, and the expected conflicts with public trust purposes such as traditional and customary Native Hawaiian practices. Individual intervenors, Judy Caparida and Georgina Kuahuia, the Hawaiian Homes Commission and OHA are participating in the litigation to protect Native Hawaiian water rights on Moloka'i. Chairman Jobie Masagatani, Chairman of the Hawaiian Homes Commission said, "We are glad the Supreme Court has already scheduled oral arguments on this matter and we are confident we will win on appeal." OHA Board of Trustees Chairperson Colette Machado said, "We are glad for the ehanee to again make sure the state protects public trust uses of water, whieh includes Hawaiian gathering rights and the needs of Hawaiian Home Lands." Molokai's 25-year Native Hawaiian waterrights saga continues, and the May 31, 2018 oral argument before the Hawai'i Supreme Court will be a very important chapter in the battle for water resources in Moloka'i and Hawai'i. ■