On January 29, 2004, the Hawai’i Supreme Court, in another groundbreaking decision upholding the public trust doctrine and the rights of native Hawaiians to water and to practice traditional and customary gathering, unanimously concluded that the State of Hawai’i Commission on Water Resource Management wrongly granted Wai`ola O Moloka`i, a subsidiary of Moloka`i Ranch, permits to construct and operate a well to fuel massive development on Moloka`i. The Court threw out the permits and ordered the Commission to revisit the matter.
Moloka`i Ranch applied for the permits in 1996 to drill and pump a well in Kamiloloa, claiming it intended to develop its lands over the next fifteen to twenty years. Its purported plans were very ambitious, and included 1,292 housing units, an industrial park, 120 luxury campgrounds, and various other commercial operations.
The proposed well site is only three miles from an existing Department of Hawaiian Home Lands well, and DHHL has a water reservation of 2.9 million gallons per day to service some of its 25,000 acres on Moloka`i. DHHL, with hundreds of homestead leases and a long waiting list, was concerned that the proposed well would interfere with its water rights, and objected to the permit application. Moloka`i residents Walter Ritte, Glenn Davis, and Karl Mowat, represented by Earthjustice, and other residents also intervened to oppose the application, based on concern that the well, by reducing the flow of groundwater to Moloka`i’s south shore, would reduce availability of limu that many residents rely on for subsistence, interfere with fishponds, and have a dramatic and unwanted cultural and social impact on the rural island. The Office of Hawaiian Affairs also intervened to oppose the permit.
At the contested case hearing, Moloka`i Ranch failed to show that its well would not interfere with DHHL’s water rights, or with Hawaiians’ subsistence gathering rights. The Commission nevertheless issued a permit for 655,928 gallons per day, on the basis that DHHL and the Moloka`i residents had not proven that the well would cause the harms they feared.
In its decision issued yesterday, the Court held that “DHHL’s reservations of water throughout the State are entitled to the full panoply of constitutional protections afforded the other public trust purposes enunciated by this court” in the Waiahole Ditch case, and that by failing to insure that the proposed well would not interfere with DHHL’s water reservation, the Commission “violated its public trust duty to protect DHHL’s reservation rights under the [Hawaiian Homes Commission Act], the [Water] Code, the Hawai’i Constitution, and the public trust doctrine in balancing the various competing interests in the state water resources trust.”
The Court also held that the Commission had wrongly tried to put the burden on the Moloka`i residents to prove that the well would interfere with their traditional and customary gathering rights as native Hawaiians. According to the Court, Moloka`i Ranch was “obligated to demonstrate affirmatively that the proposed well would not affect native Hawaiians’ rights; in other words, the absence of evidence that the proposed use would affect native Hawaiians’ rights was insufficient to meet the burden imposed upon [Moloka`i Ranch] by the public trust doctrine, the Hawai’i Constitution, and the Code.”
As Earthjustice attorney Paul Achitoff observed, “The Supreme Court has said, loud and clear: Developers can no longer get permits just by arguing that their proposals won’t affect native Hawaiian rights — they have to prove it.”
Moloka`i resident Glenn Davis remarked: “I’m thankful that the process works. Moloka`i Ranch didn’t consult with the community before they made their application, but maybe now they will.”