Oral Argument Before the Hawaii Supreme Court — No. SCOT-17-0000526
No. SCOT-17-0000526, Thursday, July 12, 2018, 8:45 a.m.
LANAIANS FOR SENSIBLE GROWTH, Intervenor-Appellant, vs. LAND USE COMMISSION, COUNTY OF MAUI DEPARTMENT OF PLANNING, STATE OFFICE OF PLANNING, Appellees, and LANAI RESORTS, LLC, Petitioner-Appellee.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorneys for Appellant:
Alan T. Murakami and Moses K.H. Haia, III
Attorneys for Appellee State Office of Planning:
Bryan C. Yee and Dawn Takeuchi-Apuha, Deputy Attorneys General
Attorneys for Appellee Lanai Resorts, LLC:
Benjamin A. Kudo, James K. Mee, and Sarah M. Simmons
COURT: MER, C.J.; PAN, SSM, RWP, and MDW, JJ.
The Appellant, Lanaians For Sensible Growth (LSG) contends that the State Land Use Commission (LUC) erred in interpreting a water use condition which LUC imposed in 1991.
In 1991, the LUC approved redistricting to allow Lanai Resorts, LLC (LR) to construct its Manele golf course on Lanai, subject to restrictions in Condition No. 10 of its Decision and Order, which provided, in relevant part:
Petitioner shall not utilize the potable water from the high-level groundwater aquifer for golf course irrigation use, and shall instead develop and utilize only alternative non-potable sources of water (e.g., brackish water, reclaimed sewage effluent) for golf course irrigation requirements.
In 1996, the LUC found that LR violated Condition No. 10 because it was using water from the high-level aquifer (HLA). LR appealed the 1996 Order, and this court determined that Condition No. 10 did not prohibit the use of all water from the HLA for golf course irrigation, but only prohibited the use of “potable” water from the HLA for golf course irrigation. Lanai Co., Inc. v. Land Use Comm’n, 105 Hawaii 290, 319, 97 P.3d 372, 395 (2004). On remand, this court directed the LUC to clarify its findings as to whether LR used potable water from the HLA in violation of Condition No. 10.
In 2017, the LUC determined that LR had complied with Condition No. 10 and had provided substantial credible evidence that the water being used to irrigate the Manele Golf Course was brackish under the specific meaning of the language of Condition No. 10 and, therefore, was an allowable alternate source of water. The Commission also found that LR made an affirmative showing that its water use was consistent with public trust principles.
LSG appealed the LUC’s 2017 Decision and Order directly to this court. LSG presents a number of issues on appeal, which can be summarized as follows:
1. Whether the LUC’s 2017 Decision and Order correctly interpreted Condition No. 10;
2. Whether the LUC followed public trust principles in interpreting Condition No. 10 and in determining that LR’s water use was consistent with public trust principles;
3. Whether this court should estop the LUC from arriving at an inconsistent conclusion in its 2017 Decision and Order compared to its 1996 Order.