Lanai group ‘pleased’ with water ruling

A roughly 20-year dispute over whether a luxury resort golf course on Lanai is improperly tapping the island’s stressed drinking water supply appears headed back to the state Land Use Commission after a court ruling last week.

The Intermediate Court of Appeals for Hawaii issued the ruling March 21 concerning the Manele Golf Course at the Four Seasons Resort Lanai.

The resort’s owner, billionaire Larry Ellison, inherited the long-running litigation when he bought 98 percent of Lanai from Castle &Cooke Inc. in 2012. The court’s decision effectively extends the dispute that began about two decades ago and has already reached the Hawaii Supreme Court.

Ellison’s company, Pulama Lanai, reserved comment on how it regards the court’s decision and how it might respond because it is part of active litigation.

“This has been a dec­ades-long issue that preceded (Ellison) taking ownership of the island and that we hope the matter is resolved as we go through the legal process,” the company said in a statement.

Opponents of the water use practices by Castle &Cooke, and now Pulama, called the ruling a victory in what has been a long battle that has held victories and losses for both sides.

“We’re very pleased with the decision,” said Butch Gima, president of Lanaians for Sensible Growth, a community group challenging the water use in court.

The group contends Castle &Cooke and Pulama failed to comply with a requirement regarding where they get water for the golf course. A state commission imposed the water restriction in 1991 as a condition of allowing the golf course and resort to be built.

The condition stated that the developer “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 nonpotable sources of water (e.g. brackish water, reclaimed sewage effluent) for golf course irrigation requirements.”

In 1996 the Land Use Commission concluded that Castle &Cooke had not developed an alternative water source, so it ordered the company to cease using water from the aquifer and to file a plan to use nonpotable water sources outside the aquifer. The commission had previously said that the condition was created based on Castle &Cooke agreeing not to use water from the high-level aquifer.

The development firm, which had sought to amend the condition so that nonpotable water from the aquifer could be used for the golf course, appealed the LUC’s order and argued that the existing water source was needed to prevent the course from closing and creating an economic hardship.

After a Circuit Court judge let the LUC decision stand but prevented a water shutoff, the case reached the Hawaii Supreme Court. That court ruled in 2004 that the LUC was wrong to interpret its condition as prohibiting use of any water from the aquifer to irrigate the golf course, and said that the condition appears to prohibit use of only potable water from the aquifer.

Hawaii’s high court instructed the LUC to clarify its 1996 decision that concluded the condition on water use was being violated, and to hold further hearings if necessary.

The LUC held new contested-case hearings in 2006 during which even the definition of potable water — generally water that is safe or fit to drink — was a point of argument.

The renewed case before the LUC was finally decided in 2010 with the commission modifying the water-use condition so that the Manele golf course could be irrigated with groundwater so long as the water’s chloride, or salt, concentration was more than 250 milligrams per liter — a level at which most people will notice a salty taste.

Castle &Cooke had argued that this lightly salty water would seep into the ocean if not used for golf course irrigation. But the community group argued that such water taken from wells reduces the amount of drinking water in the aquifer.

“For practical purposes they are pumping water (for golf course use) that is drinkable,” said David Kopper, an attorney with the Native Hawaiian Legal Corp. representing Lanaians for Sensible Growth. “This is the only source of drinking water for Lanai.”

Lanaians for Sensible Growth appealed the LUC’s new decision to Circuit Court, in part on grounds that the commission hearings didn’t give the group a full and fair opportunity to pre­sent evidence. In 2012 the court ruled in favor of the community group and invalidated the LUC’s 2010 water-use condition modification.

This decision happened several months after Ellison bought Lanai, and his company appealed the Circuit Court ruling in 2013 to the Intermediate Court of Appeals, which issued its ruling March 21.

In the new ruling the intermediate court said Lanaians for Sensible Growth didn’t get a fair shake in the 2006 hearings, and called the LUC’s hearing procedure unlawful.

The court noted that the community group had intended to have a private hydrology consultant testify but that a final day of hearings was canceled for lack of a quorum after two days of hearings in which witness testimony was heard from Castle &Cooke, Maui County and the state Office of Planning.

The court decision also noted that an attorney for the community group objected to closing the hearing without receiving testimony from their hydrology consultant that would have been relevant to rebutting testimony presented by a Castle &Cooke water expert.

“Such a process does not satisfy the appearance of justice,” the court ruling said.