The Hawaii Supreme Court has ruled that the state Board of Land and Natural Resources violated constitutional rights when it allowed Alexander &Baldwin Inc. to divert streams in East Maui without granting community groups a full hearing on the environmental and cultural consequences.
In a decision issued Friday, the justices said BLNR denied the Sierra Club of Hawaii due process by rejecting the group’s request for a contested case hearing before granting A&B a 2020 permit to continue drawing water from the region.
The court also emphasized that state agencies must consider the “mauka to makai” impacts of their actions under the Coastal Zone Management Act, which requires consideration of how upstream decisions affect coastal ecosystems.
“This particular one involved a decision made in 2020 for the year 2021, allowing Alexander &Baldwin to take too much water from streams in East Maui,” said David Kimo Frankel, attorney for the Sierra Club of Hawaii. “We didn’t fully participate in decision-making, including cross-examining claims that Alexander &Baldwin was making about the need for the water, how much water was being wasted, and the Board of Land and Natural Resources denied our request.”
The environmental court initially sided with the Sierra Club, ruling that members’ constitutional right to a healthful environment had been infringed and modifying the permit to reduce the amount of water A&B could take until a proper hearing could be held. The Intermediate Court of Appeals later reversed that ruling, but the Supreme Court’s opinion restored the environmental court’s decision.
In an email to the Honolulu Star-Advertiser, a state Department of Land and Natural Resources spokesperson said the agency is obligated to comply with the court’s decision but must first conduct a thorough review of the opinion. The spokesperson added that next steps will include evaluating current practices, and that no specifics can be provided until that process is complete.
The agency also said it is reviewing the court’s opinion to determine its implications and emphasized that its role is to protect, conserve and manage Hawaii’s “precious natural, cultural and historic resources” for both present and future generations.”
Frankel described the ongoing water diversions in stark terms.
“There are a number of streams in which Alexander &Baldwin has been taking all the water. What that means is 70% of the time the stream is bone dry below the diversion, and 30% of the time it rains enough that water can pass through their diversion structures and get downstream,” he said. “So what we’ve been trying to do is get more water in the streams, reduce the amount of water that’s wasted, and ensure that folks that use the streams for recreation, for cultural practices and for the critters that live in them — that they all have enough water.”
The Supreme Court ruling is expected to influence at least three other pending cases involving similar BLNR permits.
“There should be a court decision in one of those cases relatively soon that will, we hope, reduce the amount of water that A&B can take from our streams,” Frankel said.
The dispute over East Maui water diversions is long-standing, stretching back more than two decades.
Na Moku ‘Aupuni o Ko‘olau Hui, a group of Native Hawaiian kalo farmers and fishers, has filed multiple lawsuits since the early 2000s challenging BLNR’s revocable permits, which typically last one year.
The Sierra Club began filing its own suits in 2019. Past rulings have repeatedly rebuked BLNR, including a 2014 Supreme Court decision in favor of Na Moku and a 2023 environmental court finding that the agency’s denial of a contested case hearing “offends the constitution.”
Frankel said the Supreme Court’s latest decision is significant for two main reasons.
First, it reinforces that agencies must account for the downstream ecological impacts of their decisions, even when diversions occur far upstream.
The Sierra Club said it was not given a full opportunity to participate in the BLNR’s decision-making process, including the ability to question A&B about how much water it needed and how much was being wasted, because the board denied its request for a contested case hearing.
Wayne Tanaka, executive director of the Sierra Club of Hawaii, said the court’s ruling reinforces both ecological reality and a broader legal principle.
“Ocean lovers can also celebrate the court’s recognition that all agencies need to consider the coastal impacts of their actions, even those far upland from the shore,” Tanaka said. “Anyone growing up here knows that what happens mauka impacts makai, and now the Land Board and government entities must recognize this reality.”
Second, the ruling underscores the public’s right to meaningful participation in natural resource decision-making.
“You have to give citizens a meaningful chance to participate in decision-making when the decision affects natural resources,” Frankel said. “That participation means, for example, being able to cross-examine the developer or the commercial users’ witnesses, to discover whether the claims they make are true or not.”
Tanaka added a note on the importance of evidence-based decisions.
“The court made clear that decisions regarding our most precious resource should be based on carefully vetted facts, not summary assertions by potentially biased and politically connected parties,” he said. “This is particularly critical now as our life-giving waters become ever more scarce due to climate destabilization, toxic contamination, and degraded watersheds.”
The one-year permits at the center of this ruling already have expired, but the Supreme Court’s decision is expected to shape future BLNR permitting. That includes a current challenge by Na Moku to the agency’s 2025 permits authorizing East Maui water diversions. Frankel emphasized that the ruling provides both a legal framework and a practical precedent for communities and environmental groups advocating for water in East Maui streams.
“This is about more than dried-out streambeds or water waste,” Frankel said. “It’s about ensuring that the people and species that rely on these streams can actually participate in decisions that affect their environment, culture and livelihoods. The Supreme Court made it clear: agencies cannot simply deprive citizens of their constitutional rights when they make these decisions.”
Tanaka said the ruling also speaks to a larger principle of constitutional protection.
“In the big picture, the ruling reaffirms that government agencies should not be able to deprive us of our constitutional rights, whether it is the right to property, or to a healthful environment, without due process and a meaningful chance to be heard,” he said. “In today’s political climate, we can be thankful that our Hawaii Supreme Court still recognizes due process as a fundamental cornerstone of the law.”
Source: The Garden Island
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