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Hawaii News

Arguments heard remotely in state Supreme Court proceeding

A long-simmering dispute over Maui water rights finally landed at the Hawaii Supreme Court as the first case ever to be argued remotely before the justices using internet videoconferencing technology, a move prompted by the corona­virus pandemic.

Despite some early technical problems, the two-hour hearing, which was livestreamed over the Hawaii judiciary’s YouTube channel Tuesday, went fairly smoothly as the five justices and opposing attorneys came face to face even though they were in separate locations.

On the docket was Carmichael v. Board of Land and Natural Resources, a case that pits Maui taro farmers against the state, Maui County and former plantation owner Alexander &Baldwin Inc.

For more than 150 years, A&B has diverted billions of gallons of water from the rain-soaked mountainous terrain of windward East Maui for uses in arid Central Maui, mainly for the HC&S sugar plantation that closed in 2016 and for the Upcountry water system.

In the process, streams in East Maui have run dry, interfering with traditional taro farming and causing undue environmental harm, according to the plaintiffs.

For more than a decade, Na Moku Aupuni o Ko‘olau Hui, a group of taro farmers and Native Hawaiian practitioners, has been fighting A&B and the state over revocable water permits that are renewed annually, giving the company the right to continue diverting the water.

Summer Sylva, executive director of the Native Hawaiian Legal Corp., who represents Maui taro farmers, argued during the live­stream that Hawaii environmental law that protects natural and cultural resources has been long ignored by the state in granting the revocable permits since 2005.

She said A&B has had many years to complete a required environmental impact statement for the water division but has failed to do so, while the state has stood by, allowing the illegal action.

But attorneys for BLNR and A&B claimed they were following the law in supporting vital agricultural and water needs in Central and Upcountry Maui. An EIS is in the works, they said.

In addition, Maui County attorney Caleb Rowe told the justices that invalidated permits could lead to water shortages for as many as 35,000 Upcountry residents, farms and businesses.

The oral arguments were delayed at the outset when Justice Richard Pollack lost his internet connection, and Chief Justice Mark Recktenwald had to remind high-court members a number of times to unmute their microphones in order to be heard.

No one is allowed to record the proceedings when the justices assemble in the historic courtroom at Ali‘iolani Hale. Similarly, a “no recording” sign was posted throughout the YouTube session, and afterward the video was immediately unavailable and marked private.

Most of the state’s court proceedings have been postponed since early March due to the COVID-19 pandemic. More high-court oral arguments are expected to be held remotely as long as social distancing mandates remain in place.

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