NO. SCAP-30603 Wednesday, June 6 2012, 9 a.m.

(Amended 05/11/12)

IN RE `IAO GROUND WATER MANAGEMENT AREA HIGH-LEVEL SOURCE WATER USE PERMIT APPLICATIONS AND PETITION TO AMEND INTERIM INSTREAM FLOW STANDARDS OF WAIHE`E RIVER AND WAIEHU, `IAO, AND WAIKAPU STREAMS CONTESTED CASE HEARING.

Attorneys for Petitioners-Appellants/Cross-Appellees Hui O Nā Wai `Eha and Maui Tomorrow Foundation, Inc.: Isaac H. Moriwake and D. Kapua`ala Sproat of Earthjustice

Attorneys for Intervenor-Appellant/Cross-Appellee Office of Hawaiian Affairs: Anna Elento-Sneed and Pamela W. Bunn of Alston Hunt Floyd & Ing

Attorneys for Applicant-Appellee/Cross-Appellant County of Maui, Department of Water Supply: Patrick K. Wong, Corporation Counsel, and Jane E. Lovell, Deputy Corporation Counsel

Attorneys for Applicant-Appellee/Cross-Appellee Hawaiian Commercial and Sugar Company: David Schulmeister and Elijah Yip of Cades Schutte LLP

Attorneys for Applicant-Appellee/Cross-Appellee Wailuku Water Company, LLC: Paul R. Mancini and James W. Geiger of Mancini Welch & Geiger, Gilbert S.C. Keith-Agaran of Takitani & Agaran

Attorneys for Appellee/Cross-Appellee Commission on Water Resource Management: David M. Louie, Attorney General, and Donna H. Kalama and Julie H. China, Deputy Attorneys General

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Certificate of Recusal, by Associate Justice James E. Duffy, Jr., filed 06/07/11.

NOTE: Order assigning Circuit Court Judge Rom A. Trader, in place of Justice Duffy, filed 06/14/11.

NOTE: Order accepting Application for Transfer, filed 06/23/11.

NOTE: Order granting motion for postponement of oral argument; oral argument rescheduled to 06/06/12.

COURT: MER, CJ; PAN, SRA, & SSM, JJ; Circuit Court Judge Rom A. Trader, in place of Justice Duffy, recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Nā Wai ʻEhā, or “the four great waters of Maui,” is the collective name for the Waiheʻe River and the Waiehu, ʻĪao, and Waikapū Streams. The case before the court began when Hui O Nā Wai ʻEhā and Maui Tomorrow Foundation, Inc. (“Hui/MTF”), through Earthjustice, petitioned the Commission on Water Resource Management (“the Commission”) to amend the Interim Instream Flow Standards (“IIFS”) for the Nā Wai ʻEhā, which had been in place since 1988. Around the same time, several parties, including Maui County Department of Water Supply (“MDWS”), Hawaiian Commercial & Sugar Company (“HC&S”), and Wailuku Water Company (“WWC”), filed Water Use Permit Applications (“WUPA”) for the same area. The Commission held a combined hearing to resolve the IIFS and WUPA; in addition to the above-named parties, the Office for Hawaiian Affairs (“OHA”) participated. The current appeal seeks review of the Commission’s resulting Findings of Fact, Conclusions of Law, and Decision and Order, in which the Commission amended the IIFS for two of the four streams, and retained the existing IIFS, as set in 1988, for the two remaining streams.

Hui/MTF and OHA appeal on related grounds. They argue that the Commission erred in balancing instream and noninstream uses, and therefore the IIFS do not properly protect traditional and customary Native Hawaiian rights, appurtenant water rights, or the public trust. Both parties also contest the Commission’s estimations of diversions, arguing that it did not properly consider waste and alternative sources, and that it miscalculated the diverters’ actual need. MDWS’s cross-appeal challenges whether the Commission properly considered municipal noninstream use when balanced with instream values and commercial noninstream uses.

In addition, HC&S, WWC, and the Commission challenge whether the court has jurisdiction to consider the appeal.