Molokai water permit denied
A Hawaiian group praises the Supreme Court ruling against a major landowner
WAILUKU » The Hawaii Supreme Court has overturned a decision to grant a water permit to a major landowner in West Molokai, raising questions about future development and the impact on residents and businesses in the region.
Justices struck down a decision by the state Commission on Water Resource Management in 2001 that allowed Kukui (Molokai) Inc. to take a little more than 1 million gallons a day from a well in the island's central area.
The firm, now known as Molokai Properties Ltd. and Molokai Ranch, is the major provider of water to the island's west side.
The ranch provides water to the industrial park at Palauea; a resort, which includes beach lots, condos and a golf course, at Kaluakoi; and Maunaloa Town, including the ranch's 22-room lodge.
The population of West Molokai is a little more than 2,500, according to City-Data.com.
Colin Lau, a state deputy attorney general representing the Water Commission, said the Supreme Court has asked the commission to do a number of things.
"We'll discuss this with the Water Commission," said Lau.
Lau, who was not representing the commission in 2001, said his office was still reviewing the 56-page decision issued on Dec. 26.
Daniel Orodenker, general counsel for Molokai Properties Ltd., said the ranch also was still reviewing the decision.
Orodenker said besides its private service, the ranch provides water through a state Public Utilities Commission permit.
He said a little more than 1 million gallons a day is taken out of the ranch's Well 17, and about half a million gallons a day of nonpotable water is provided through surface water.
The conflict stems from water permit requests after the commission took control of underground water resources on Molokai on July 15, 1992.
Kukui Molokai was required to file a request for a permit for existing uses by July 15, 1993.
The Supreme Court said the commission violated Hawaii law by considering an untimely use application filed on Dec. 15, 1993.
The Supreme Court said the commission also failed to adequately scrutinize Kukui Molokai's request to divert water and failed to consider the effect of the closure of Kukui Molokai's hotel and golf course on the allocation of water.
The Supreme Court also said the commission impermissibly shifted the burden of proving harm to those claiming a right to exercise a traditional and customary native Hawaiian practice.
The decision recognizes the constitutional reservation of water resources for the state Department of Hawaiian Homes Lands on Molokai as a "public trust," requiring the commission to exercise a higher level of scrutiny for private users.
Hawaiian Homes controls more than 25,380 acres on Molokai, and its well is located within a half-mile of the ranch's Well 17.
Jon Van Dyke, an attorney who filed the appeal on behalf of the state Office of Hawaiian Affairs, said the Supreme Court decision means the commission will have to reapply for the permit, including existing uses.
"It was a wonderful outcome," Van Dyke said.
Office of Hawaiian Affairs Trustee Colette Machado said the court decision will help native Hawaiians.