Monday, June 17, 2024
Hawai'i Free Press

Current Articles | Archives

Saturday, January 14, 2012
Supreme Court Keeps East Maui Water Case Alive
By Robert Thomas @ 11:44 PM :: 9937 Views :: Kauai County, DHHL, Energy, Environment

HAWSCT: Appellate Jurisdiction Triggered By Signed Water Commission Minutes

by Robert Thomas, January 12, 2012

At yesterday's Hawaii Water Law Conference, several presenters discussed what is known as the "East Maui water case" (that is easier to say than "In re Petition to Amend Interim Instream Flow Standards for Waikamoi, Puohokamoa, Haipuaena, Punalau/Kolea, Honomanu, West Wailuaiki, East Wailuaiki, Kopiliula, Puakaa, Waiohue, Paakea, Kapaula, and Hanawi streams"), which was up before the Hawaii Supreme Court on a certiorari application after the Intermediate Court of Appeals dismissed the case for lack of appellate jurisdiction. The Water Commission denied the petitioner's request for a contested case, and the ICA dismissed the appeal from the Water Commission because under the Hawaii Administrative Procedures Act, there was no final order from which the petitioners could appeal.

But by the time we all returned to our offices late in the day, the Hawaii Supreme Court had granted the application for certiorari and summarily vacated the ICA's dismissal, and sent the appeal back to that court "for disposition" on the merits.

Under the Water Code, the ICA has appellate jurisdiction to review under section 91-14 of the APA a final decision of the Water Commission in a "contested case." The Hawaii Supreme Court has previously concluded that an order denying a request for a contested case is itself appealable from the "appeals from contested cases" provision in this statute.

The court concluded the ICA has appellate jurisdiction because the Acting Deputy Director to the Chairperson of the Board of Land and Natural Resources certified the Water Commission minutes by signing them, and "[t]he decision, as reflected in the minutes of the Commission's October 18, 2010 meeting, is a final decision of the Commission for which judicial review may be sought pursuant to HRS § 91-14(a)." Order at 2.

In our view, the more interesting question to be resolved is whether the Water Commission's setting or amending interim instream flow standards under the Water Code must be accomplished by a "contested case" (a quasi-judicial administrative hearing). Under Haw. Rev. Stat. § 91-1, a "contested case" is an agency proceeding "in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing." The issue of whether establishing the amount of water that must be in a stream in order to "protect the public interest in [that] particular stream" is one that determines the rights of specific parties and thus must be accomplished by litigation, or is more in the nature of a legislative determination, is one we will be following closely.

Disclosure: we represent the Hawaii Farm Bureau in this case, although we did not file a brief or take a position on the issue presented in the application for certiorari.

Amended Order Accepting Application for Writ of Certiorari, In re Petition to Amend Interim Instream Flow S...


Related: Enviros win 90% in Hawaii Supreme Court


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


Aloha Pregnancy Care Center


Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii


Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii Military History

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Together


Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

July 4 in Hawaii

Land and Power in Hawaii

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

National Parents Org Hawaii

NFIB Hawaii News

NRA-ILA Hawaii


OHA Lies

Opt Out Today

Patients Rights Council Hawaii

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii

Rental by Owner Awareness Assn

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

School Choice in Hawaii

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii