A legal dispute over the water source for a Lanai golf course that has spanned more than two decades has been kept alive by a state appeals court ruling that could mean more litigation for months, if not years.
A group called Lanaians for Sensible Growth is challenging developer Castle & Cooke Resorts LLC’s irrigation of the Manele Bay luxury 18-hole course with water from the island’s high-level aquifer.
Castle & Cooke’s lawyers say the case involves the very existence of the nearly 20-year-old golf course, which provides jobs and helps the island’s economy.
But to the challengers, the issue involves protecting Lanai’s underground water sources. They cite a 1991 condition by the state Land Use Commission that reclassified 139 acres from rural and agricultural to urban and paved the way for the course.
The condition, the Lanai-ans group says, restricted the developer from using water from the aquifer.
The commission, however, modified the condition in 2010 and permitted Castle & Cooke to use brackish water from the aquifer wells.
The Lanaians group appealed that ruling, but a state judge refused to hear the case.
In the latest development, the Hawaii Intermediate Court of Appeals ruled last month that Circuit Judge Karl Sakamoto had jurisdiction to hear the Lanaians group’s appeal of the 2010 commission decision. The court sent the case back to him.
The litigation is yet another involving Hawaii’s underground and surface waters that are critical for development and agricultural purposes but are also important in preserving natural habitats and sustaining communities around the state.
It also means that billionaire Larry Ellison, who purchased Lanai in June, will inherit litigation that already has gone to the Hawaii Supreme Court without a final resolution.
The appeals court ruling was issued the same day the Supreme Court ruled in favor of Native Hawaiian Legal Corp. attorneys in declaring that the Honolulu rail project cannot proceed without first surveying the entire 20-mile route for archaeological and burial sites.
The Native Hawaiian Legal Corp. lawyers also represent the Lanaians group.
Alan Murakami, Native Hawaiian Legal Corp. attorney, said he had hoped the appeals court would rule in the Lanaians group’s favor in restricting water from the aquifer, but said he considers the decision sending the case back to Circuit Court a win.
"The lower court (Sakamoto) has already intimated it would rule in our favor," Murakami said.
Brett Tobin, a Castle & Cooke lawyer, declined to comment but helped write the company’s legal briefs to the appeals court expressing frustration over the length of the dispute that "can now be measured in decades, rather than merely years."
The company called the Lanai group’s efforts a "misguided crusade" to keep alive a "perpetual litigation."
The group, the company said, is actually trying to "kill off the golf course outright, even if it means putting the golf course employees out of work, depriving Lanai of the critical mass of visitor attractions necessary to the health of its economy and significantly eroding the Maui County tax base."
"There is nothing ‘sensible’ about this course of action by Lanaians for Sensible Growth," the company said.
Castle & Cooke had urged the appeals court to throw out the Lanai group’s appeal, which would essentially uphold the commission’s 2010 decision.
Castle & Cooke is currently using an average of 650,000 gallons a day of what it says is brackish water from the aquifer wells.
The company maintains that the nonpotable or nondrinking water would seep into the ocean if it isn’t used for the course.
But the Lanaians group argues that water taken from the wells for the golf course reduces the amount of drinkable water from other wells tapping into the aquifer.
Butch Gima, 58, president of the Lanaians group, said it is not trying to destroy the golf course and would not object to Castle & Cooke developing alternative sources of water.
He said Castle & Cooke’s predecessor had agreed not to use water from the aquifer in seeking the 1991 reclassification for the golf course.
"We feel they need to honor their commitment," he said.
Gima, a Lanai resident born and raised on the island, said the availability of water is low compared with other islands in the state.
"Most importantly, we have a small sustainable yield with one aquifer, and we have to be conservative," he said. "Based on the infrastructure we have right now, that’s the prudent thing to do."
Castle & Cooke has the option of asking the Hawaii Supreme Court to review the appeals court ruling and throw out the Lanaians group’s appeal.
If unsuccessful or if Castle & Cooke does not seek a review, the Circuit Court will hear the Lanaians group’s appeal of the commission’s 2010 decision.
