Tomorrow our legal team, Lance D Collins, Esq and Bianca Isaki, Esq will appear before the Supreme Court of the State of Hawaii. The background on why we are in court follows below. You can join and watch on the Supreme Court’s live stream YouTube channel. We believe the High Court will know how many people have clicked onto this link. We are hoping that many of you will take the time to watch/listen to the oral argument as we feel this is an important issue regarding fresh water preservation on Kauai. We’d like the Court to know that there are many who do care.

We won’t have a Decision right away, but sometimes you can tell which way the Court is leaning by the questions they ask of our attorney Lance D Collins, Esq.

Factual Background:
Beginning in 2016, we flew to Honolulu to object to the Board for the Department of Land and Natural Resources (BLNR) annual renewal of KIUC’s revocable permit (RP7340) to divert the waters of Waiʻaleʻale and Waikoko streams without limits on the quantity of water diverted and without any scrutiny or enforcement of the conditions that the State required of KIUC when they gave them their permit. KIUC was diverting an unlimited quantity of water from these two state land streams, allowing the water to flow through a 5 mile water transmission system that carried the diverted waters to KIUCʻs Waiahi hydro-power plants. Their two plants that produced hydro-power are each100 years old, to satisfy just 1% of the islands power need.

Our objection to the annual renewal without requiring KIUC to maintain the 5 mile water transmission ditch system fell on deaf ears. We also strongly objected to the fact that their permit allowed KIUC to divert the entire base flow from the streams. When it wasn’t raining, each stream would suffer long stretches of dry stream beds.

KIUC’s revocable permit was renewed in 2016 and 2017 despite our objections and testimony from more than a dozen people who presented oral testimony and photographs showing the disrepair and deterioration in the system following the state grant of the permit to KIUC in 2003.

Finally, in 2018 the trees that had been allowed to grow in and near the ditch fell and caused significant damage to several parts of the 5 mile transmission ditch system, limiting the amount of water from Waiʻaleʻale and Waikoko that reached the hydro-power plants. We asked KIUC to close the diversions and restore stream flow to protect several invasive species that relied on these state waters for their survival. FOM also raised the fact that traditional and cultural practitioners gathered indigenous hawaiian plants and water from the streams for medicinal purposes.

In December 2018, we appeared before the board again and finally obtained an Order from the BLNR that required KIUC to not divert all the water from the streams which had been creating dry stream beds. There had been at least 1 mile of dry stream bed in the Waiʻaleʻale streams, adversely impacting the flora and fauna (migrating

Oʻopu and Opae – both indigenous, only found Hawaii) as well as other species of fish. 

KIUC did re-establish flow for Waiʻaleʻale but they have never properly closed the diversion at Waikoko to assure restoration of at least some uninterrupted stream flow mauka to makai as required by Hawaii law. 

Thereafter, we appeared annually in December requesting KIUC compliance with their state contract and its conditions that they maintain the 5 mile water transmission system to its condition when they took over the diversion operation in 2003. In 2021 and 2022, we ultimately requested that the land board assign the case to a hearing officer, as we requested a contested case because we could not see any evidence that KIUC was even trying to maintain the conditions required by their permit. KIUC took the position that because they were only receiving an annual permit they didn’t want to invest the money needed to properly care for the 5 mile water transmission system because they had no assurance that their RP would be renewed the following year. FOM argued that this position lacked merit because their permit had been renewed every year since 2003. They did not have any good cause for not taking care of the water transmission system other than they didn’t want to spend the money. They were using the water to make power and charging customers one of the highest rates per kilowatt hour in the United States. KIUC was making money but did not want to spend money on maintaining the system that they had contractually agreed to maintain.

In December 2023, KIUC came before the Board and announced that they would not be asking for a renewal of the RP. They indicated that they would close off the two diversions at the two streams. Waiʻaleʻale stream is once again flowing full but the Waikoko stream diversion has not been properly closed and there remains 300′ of dry stream bed below the diversion site.

We appealed the Board’s denial of our requests for a Contested Case (12/21 and 12/22). The Circuit Court Judge on Oahu found in our favor and ruled that the Board (BLNR) should have granted our requests for a Contested Case so that these issues could have been properly resolved by a hearing officer.

About the time of the Circuit Court Judge’s favorable ruling, KIUC decided not to seek renewal of their revocable permits to divert the waters from these two important streams. They walked away and left the 5 mile transmission system a mess. 

The State Attorney General appealed the Circuit Court Judge’s Decision. By the time the matter was briefed before the Court of Appeal, KIUC had announced that they would not be renewing their permit. None of the parties raised or argued what the Court of Appeal based their decision on. The Court of Appeals reversed the trial court Decision in FOM’s favor and found that because KIUC had not renewed their permit, our complaints were now moot. 

In response, FOM filed a Writ of Certiorari asking the Hawaii Supreme Court to hear the matter. FOM did not have an automatic Right of Appeal to the Hawaii Supreme Court after the Appellate Court decided our case was moot and refused to consider our case further.

Fortunately, our legal team did a great job with the Writ that FOM filed and the Hawaii Supreme Court granted and accepted our case for review. Lance Collins, an attorney from Maui, who also sits on assignment as a Judge on Maui, has obtained several favorable decisions from the Hawaii Supreme Court. He will argue our case before the State High Court.

No. SCWC-23-0000383, Tuesday, February 11, 2025, 10:30 a.m.

KIA‘I WAI O WAI‘ALE‘ALE, an unincorporated association, FRIENDS OF MĀHĀ‘ULEPŪ, a nonprofit corporation, Petitioners and Respondents/Plaintiffs-Appellants-Appellees, vs. BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I, Respondent and Petitioner/Defendant-Appellee-Appellant, and KAUA‘I ISLAND UTILITY COOPERATIVE, a domestic cooperative association, Respondent/Defendant-Appellee-Appellee.

For those who will attend in person:
The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Brief Description:
This appeal arises out of a dispute over the State of Hawai‘i, Board of Land and Natural Resources’ (BLNR) denial of contested case hearings for the continuation of revocable water permits (RP) on Kaua‘i.  The RPs permitted the Kaua‘i Island Utility Cooperative (KIUC) to use State lands in the Līhu‘e-Kōloa Forest Reserve on a “month-to-month” basis to divert freshwater to power its hydropower plants.

At a 2020 BLNR public meeting, Petitioners/Plaintiffs-Appellants/Appellees Kia‘i Wai O Wai‘ale‘ale and Friends of Māhā‘ulepū (Plaintiffs) requested that BLNR hold a contested case hearing on KIUC’s application to renew its RP for 2021.  BLNR denied Plaintiffs’ request and renewed the 2021 RP.  Plaintiffs subsequently submitted written petitions for a contested case hearing on the 2021 RP.

A year later, at a 2021 BLNR public meeting, Plaintiffs requested a contested case hearing on KIUC’s application to renew its RP for 2022.  BLNR denied Plaintiffs’ written petitions for a contested case hearing on the 2021 RP; denied Plaintiffs’ requests for a contested case hearing on the 2022 RP; and renewed the 2022 RP.

Plaintiffs/FOM appealed to the Environmental Court.  During the pendency of the appeal, KIUC did not seek renewal of the RP for 2023. The Environmental Court, inter alia, concluded that (1) Plaintiffs had standing and protected property interests such that BLNR violated their due process rights by denying contested case hearings; and (2) because BLNR failed to enter findings of fact or conclusions of law, the court could not determine if BLNR properly exercised its discretion in approving the RPs.  The court vacated the 2021 and 2022 RPs. 

BLNR appealed to the Intermediate Court of Appeals (ICA), which determined that Plaintiffs had standing and protected property interests, but reversed the Environmental Court’s decision because Plaintiffs failed to designate a sufficient record to review the 2021 RP and also on mootness grounds as to the 2022 RP.

We granted both Plaintiffs’ and BLNR’s applications for writs of certiorari.  Plaintiffs assert that the ICA gravely erred by: (1) reversing the Environmental Court despite ongoing environmental damage from KIUC’s diversion structures and the absence of an RP; (2) holding that the Environmental Court lacked jurisdiction to issue declaratory relief; and (3) concluding the record was deficient. 

BLNR asserts that the ICA gravely erred in concluding that Plaintiffs had standing and protected property interests.
Mahalo nui,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756

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