HAWSCT's Latest Water Law Decision: Water Commission Gets It Wrong (Yet Again)

by Robert Thomas, InverseCondemnation.com

When a Hawaii Supreme Court opinion starts off like this one, waxing poetic about "Na Wai Eha, or 'the four great waters of Maui,'" you don't need to read the remaining 88 pages to know what the ineviatable result will be: the Water Commission got it wrong, again.

That's the end result of the unanimous opinion in In re Iao Ground Water Management Area, No. SCAP 30603 (Aug. 15, 2012). Here's the court's own summary of its latest pronouncement on water law, including "interim instream flow standards," customary and traditional Native Hawaiian practices, and more:

As explained below, the court holds that it has jurisdiction in the instant case, and takes this opportunity to expand upon the jurisdictional analysis from In re Water Use Permit Applications “Waiâhole I”, 94 Hawai'i 97, 9 P.3d 409, (2000). In reviewing Hui/MTF’s and OHA’s points of error, the court concludes that the Commission on Water Resource Management erred in several respects. First, in considering the effect of the IIFS on native Hawaiian practices in Nâ Wai 'Ehâ, the Commission failed to enter findings of fact and conclusions of law regarding the effect of the amended IIFS on traditional and customary native Hawaiian practices in Nâ Wai #Ehâ, and regarding the feasibility of protecting any affected practices. Second, the Commission’s analysis of instream uses was incomplete, as it focused on amphidromous species and did not fully consider other instream uses to which witnesses testified during the hearings. Third, the Commission erred in its consideration of alternative water sources and in its calculation of diverting parties’ acreage and reasonable system losses. The court must vacate the Commission’s June 10, 2010 Findings of Fact, Conclusions of Law, Decision and Order, and remand the case for further proceedings.

Slip op. at 3-4.

Although we haven't had time to digest the short-for-a-water-law opinion, but we can't say we were surprised because the oral arguments earlier this year foreshadowed this result. Besides, has the Hawaii Supreme Court ever held that a lower court or an agency got it right on water law? Here are the briefs of the parties in the case, in the event you want to see the arguments.

We're going to read the opinion, and then bring you a report.

In re Iao Ground Water Management Area, No. SCAP-30603 (Aug. 15, 2012)