The Hawaiʻi Supreme Court has ruled that the Sierra Club of Hawaiʻi was improperly denied the ability to contest one-year revocable permits that allow the diversion of millions of gallons of water from east Maui streams.
The order from Friday stems from the state Board of Land and Natural Resources renewing four revocable permits in 2020 that allowed commercial real estate company Alexander & Baldwin and its subsidiary, East Maui Irrigation, to divert the water for a year.
“BLNR's decision to renew the RPs implicated Sierra Club’s constitutional right to a clean and healthful environment … We further conclude that constitutional due process entitled Sierra Club to a contested case hearing before the Board voted to renew the (revocable permits),” the court's opinion said.
During the renewal process, the land board denied a request from the Sierra Club to challenge the permits in a contested case hearing, leading to multiple court rulings — the latest being the Supreme Court's last week.
The court also noted its longstanding concern about “barriers facing community members seeking meaningful participation … on matters affecting the environment.”
The Sierra Club said the ruling reaffirms the land board's responsibility to protect the environment, but also protects the right to due process to challenge its decisions.
“This is about more than the BLNR’s responsibility to consider the impacts of dried out streambeds, disrupted cultural practices, and rampant water waste — all of which are extremely critical issues,” said David Kimo Frankel, attorney for the Sierra Club of Hawaiʻi, in a statement. “This is also about whether a government agency can simply deprive you of your constitutional rights – without any opportunity to present and examine facts, cross-examine witnesses, or demonstrate the extent of the harm that you may suffer from its decisions.”
While the 2020 revocable permits that were challenged in court have already expired, the organization said the ruling can impact similar cases ongoing in lower courts.
It noted specifically the 2025 east Maui revocable permits submitted by Nā Moku ʻAupuni o Koʻolau Hui, which is made up of east Maui kalo farmers and lineal descendants.
In 2002, the land board considered a long-term lease for A&B, but that proposal was shelved, also because of a contested case hearing.
But the company has been able to divert water from east Maui streams anyway because of the one-year revocable permits that the land board has renewed every year.
That has resulted in a de facto two-decade lease. A&B diverts about 30 million gallons of water per day from east Maui streams.
