Editorial: Clarifying water rights on Maui

After years of muddled state handling of millions of gallons of precious Maui water, the Hawaii Supreme Court has now offered much-needed clarity.

In its ruling last week, the high court ruled in favor of East Maui taro farmers and subsistence gatherers, saying the state skirted the law when it, for years on end, renewed one-year “temporary” leases to allow millions of gallons of water daily to be diverted without proper environmental review. The lawsuit brought by the Native Hawaiian Legal Corp. for its client farmers, was against the state Board of Land and Natural Resources (BLNR), Maui’s water department and Alexander & Baldwin Inc., the company that’s been diverting the water from 33,000 acres of ceded lands.

At the legal heart of the decades-long water fight is the BLNR’s failure to subject the A&B leases to environmental review as required by the Hawaii Environmental Policy Act — and more broadly but just as importantly, the state agency’s failure to act in the best interest of the state and live up to its public trust obligations.

The public trust encompasses all the state’s water resources, the court noted, “and it requires that state agencies ‘must take the initiative in considering, protecting, and advancing public rights in the resource at every stage of the planning and decision-making process’.”

The high court’s rebuke was firm and clear: “In sum, the BLNR’s failure to make findings here was particularly troubling in light of the magnitude of the water diversions authorized and the BLNR’s role as a public trustee of the State’s water resources.”

The Native Hawaiian Legal Corp. hailed the court’s clarion message going forward: “After decades of litigation to address the mismanagement of East Maui’s water resources, today’s Supreme Court decision vindicates the rights of NHLC’s clients, provides clear direction to the Board and empowers the public to hold the state accountable with respect to its public trust resources.”

The court’s ruling is indeed hail-worthy — staking out in no uncertain terms the state’s obligation to tackle environmental conundrums, not overlook resource protection. The case was remanded to the Circuit Court for further proceedings to determine whether specific lease permits require an environmental assessment to comply with the law.

BLNR Chairwoman Suzanne Case, while acknowledging the court’s clarity in its interpretations and expectations, noted that many of the issues discussed in the decision have already been resolved by actions since the case went to court. It certainly bears watching, then, that environmental reviews and any awarding of future water leases by the BLNR, are done in the public interest.