Effort To Clarify Who Gets To Approve Maui Water Suit Settlement Flounders

Oct 30, 2019

The Maui County Council was unable to gather enough votes Tuesday to hire its own special counsel as it faces off against Mayor Michael Victorino over the fate of a federal Clean Water Act lawsuit. 

In 2012, community groups sued Maui County, alleging that a wastewater treatment plant in Lahaina violated the federal law and that effluent was reaching the ocean and impacting coral reefs. Last month, the council voted to settle the lawsuit ahead of arguments before the U.S. Supreme Court that are scheduled next week.

Several pro-environment council members want the settlement rather than risk an adverse decision by a Supreme Court with a conservative majority.

However, the Maui County corporation counsel has said it is up to Victorino to decide whether to settle the case, and the mayor declared he will not. The county has maintained that the Lahaina plant's use of injection wells to dispose of treated wastewater is a safe way to process sewage.

Council Chair Kelly King introduced the measure to let the council to hire its own legal representative. That would then allow members to seek a judicial ruling on the dispute over which branch of government gets to decide whether to settle lawsuits.

The Maui County Charter requires at least a two-thirds majority of the council to hire special legal counsel — which is six votes out of the nine-member council. Only five members voted in favor of the hiring, sending the measure back to the council's Governance, Ethics and Transparency Committee.

Meanwhile, a separate lawsuit has been filed against Victorino and Moana Lutey, the county corporation counsel. West Maui State Rep. Angus McKelvey, the nonprofit organization Maui Tomorrow and several Maui residents took the legal action in hopes of clarifying who has the final say in legal settlements.

“We should not have to step in and assert the council’s own authority as provided in the county code,” said Anthony Ranken, the lawyer who filed the lawsuit on behalf of the residents. “It’s a shame that more members of the council didn’t vote to support the authority of the body that they sit on.”

King hopes that the council can resolve the matter itself as well.

“I personally think that the council should take responsibility and find clarity ourselves,” she said. “We need to know this, not just for this case, but we need to know going forward for future settlements. If we don’t have the authority to settle, and the mayor does, why should we deliberate on any case?”

King suspects that because the new lawsuit names Victorino and Lutey, they may need special counsel themselves.

“I’m anticipating that this may morph into some other form of the resolution that would approve special counsel for various parties,” she said.

Ranken anticipates receiving a judgment on his clients’ lawsuit in about six weeks.

“If that ruling is in our favor, then the county will be ordered to withdraw the Supreme Court appeal,” he said.