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Oral Argument Before the Hawaii Supreme Court No. SCOT-21-0000581

No. SCOT-21-0000581, Tuesday, December 5, 2023, 10 a.m.

SURFACE WATER USE PERMIT APPLICATIONS, INTEGRATION OF APPURTENANT RIGHTS AND AMENDMENTS TO THE INTERIM STREAM FLOW STANDARDS, NĀ WAI ʻEHĀ SURFACE WATER MANAGEMENT AREAS OF WAIHEʻE RIVER, WAIEHU STREAM, WAILUKU RIVER PREVIOUSLY KNOWN AS ʻĪAO STREAM AND WAIKAPŪ STREAM, MAUI. (Case Number CCH-MA 15-01)

The above-captioned case was set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument was livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Ōlelo TV 53.

Attorneys for Appellant/Cross-Appellee MMK MAUI, LP:

Jodi S. Yamamoto, Wil K. Yamamoto, and Jesse J. T. Smith of Yamamoto Caliboso

Attorneys for Appellee/Cross-Appellant MAHI PONO LLC:

David Schulmeister, Michi Momose, and Trisha H. S. T. Akagi of Cades Shutte

Attorney for Appellee/Cross-Appellant HUI O NĀ WAI ʻEHĀ and MAUI TOMORROW FOUNDATION, INC.:

Isaac H. Moriwake of Earthjustice

Attorneys for Appellee/Cross-Appellant OFFICE OF HAWAIIAN AFFAIRS:

Judy A. Tanaka and Pamela W. Bunn of Dentons US LLP

Attorneys for Appellee/Cross-Appellant WAILUKU WATER COMPANY, LLC:

Paul R. Mancini and James W. Geiger of Mancini, Welch & Geiger LLP

Attorneys for Appellee/Cross-Appellee COMMISSION ON WATER RESOURCE MANAGEMENT:

Julie China, Linda L. W. Chow, and Miranda C. Steed, Deputy Attorneys General

Attorneys for Appellee/Cross-Appellee COUNTY OF MAUI, DEPARTMENT OF WATER SUPPLY:

Caleb P. Rowe and Kristin K. Tarnstrom, Deputies Corporation Counsel

NOTE: Order assigning Circuit Judge Henry T. Nakamoto and Circuit Judge Kirstin M. Hamman due to vancancies, filed 06/14/23.

NOTE: Order granting motion to postpose the 9/14/23 oral argument, filed 09/12/23.

NOTE: Order setting new oral argument date to 12/05/23 at 10:00 a.m., filed 09/14/23.

COURT: Recktenwald, C.J., McKenna and Eddins, JJ., and Circuit Judge Nakamoto and Circuit Judge Hamman, assigned by reason of vacancies

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

This is a direct agency appeal from the Commission on Water Resource Management (“the Commission”) concerning Nā Wai ‘Ehā, or “the four great waters of Maui.” Nā Wai ‘Ehā encompasses Waihe‘e River, Waiehu Stream (North and South), Wailuku River (formerly ‘Īao Stream), and Waikapū Stream, and their surrounding ahupua‘a.

In 2008, the Commission designated Nā Wai ‘Ehā as a surface water management area. Over 140 applicants filed surface water use permit applications (“SWUPAs”). Then, in 2016, Alexander & Baldwin, Inc., announced the closure of Hawaiian Commercial & Sugar Co., and plans to transition from sugar to diversified agriculture. Community groups Hui o Nā Wai ʻEhā and Maui Tomorrow

Foundation, Inc. (“the Hui/MTF”) filed a petition with the Commission to amend Nā Wai ‘Ehā’s Interim Instream Flow Standards (“IIFS”) in light of that closure. The Commission consolidated the IIFS and SWUPA proceedings. Following a contested case hearing, on June 28, 2021, the Commission issued its Findings of Fact, Conclusions of Law, and Decision and Order, amended by Errata issued June 30, 2021, setting IIFS for Nā Wai ‘Ehā and granting various parties’ SWUPAs.

On appeal, the Hui/MTF and the Office of Hawaiian Affairs assert the Commission failed to comply with its constitutional and statutory mandates to restore Nā Wai ‘Ehā stream flows to the “extent practicable.” MMK Maui, LP (“MMK”), Mahi Pono, LLC (“Mahi Pono”), and Wailuku Water Company, LLC (“WWC”), each contend the Commission violated their due process rights and challenge various aspects of their respective surface water use permits (“SWUPs”). MMK challenges the water allocation in its SWUP for operation of two golf courses, and the Commission’s denial of its request to monitor its water use on a 12-month moving average. Mahi Pono challenges the water allocation in its SWUP for diversified agriculture operations. WWC challenges various conditions and/or directives attached to its SWUP for system losses related to its water delivery operations through the Nā Wai ‘Ehā ditch system.

The Commission argues, among other things, that it properly exercised its discretion under the public trust and Water Code in setting IIFS for Nā Wai ‘Ehā and granting each applicant’s SWUPA.