High court gets
Waiahole water
division appeal

Kamehameha Schools joins the
challenge to the Water Commission

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By Diana Leone
dleone@starbulletin.com

Three parties to the Waiahole Ditch lawsuit are appealing the state Water Commission's final ruling on dividing water between Windward streams and Leeward irrigation projects to the Hawaii Supreme Court.

Appealing are the Waiahole-Waikane communities, Hawaii's Thousand Friends and Kamehameha Schools.

Each appealing party filed a brief statement with the Supreme Court yesterday, outlining key concerns with the commission's Dec. 28 final order on water allocations for Waiahole, Waikane, Waianu and Kahana streams. Among them were:

>> Whether the commission used wrong calculations and methods to decide in-stream flow standards for the streams.

>> Whether the commission was "arbitrary and capricious" in the way it set flow standards.

>> Whether the commission complied with the public trust doctrine, the water code and the Supreme Court's directions.

>> Whether the commission in effect took Kamehameha Schools' property by allocating ground water to others and violated its due-process rights.

>> Whether transfer of water use permits by Campbell Estate to the Honolulu Board of Water Supply was proper.

Jim Paul, an attorney for Hawaii's Thousand Friends, said his clients appealed "because we, with respect, do not believe that the Water Commission's decision, as it is now issued for the second time, complies really fully with what the Supreme Court asked it to do.

"What is says, basically, is that the Supreme Court is mistaken and the commission is correct. It's trying to make the court understand that it was wrong and the commission was right all along."

"My clients view it as too important to stand as a precedent," Paul said.

Another point he is concerned about: that the Water Commission puts the burden of proof on whether removing water from the Windward streams would harm them on people opposing it. "And those people," Paul said, "just happen to be those people who are least capable financially of meeting that kind of burden."

Each of the parties appealing the case will file opening briefs in the coming months.

In 1997, Windward interests appealed the commission's ruling on how Waiahole Ditch water should be allocated. The Hawaii Supreme Court required the commission to reconsider some points of its ruling, which led to the commission's final ruling on Dec. 28.