By Lisa Asato / OHA Public Information Specialist

Moloka'i Properties Ltd. said it expects to resubmit its application for a water permit “in the next few months,” following a recent Hawai'i Supreme Court ruling in a case that pitted the landowner against the Office of Hawaiian Affairs, two homesteaders and state Department of Hawaiian Home Lands.

The refiling “will be heard as a new water application, but it will be based on existing and current uses for the residences, for the agricultural activities, for the golf course and whatever uses are currently going on out of that system,” said Daniel Orodenker, general manager for land and entitlements and general counsel for Moloka'i Properties Ltd., commonly known as Moloka'i Ranch.

Because of the “very technical” nature of the decision, he said the company is “trying to ascertain from the (State) Commission on Water Resource Management how we can file this in an appropriate manner.”

The Supreme Court ruled Dec. 26 that the water commission had erred in issuing a water use permit in 2001 to Kukui (Moloka'i) Inc., later bought by Moloka'i Properties. The permit allocated 936,000 gallons a day for “existing uses” and 82,000 gallons a day for “new uses” for Kukui, which at the time owned lands including the now-closed Kaluako'i Hotel and the once closed and now-reopened golf course.

In a 56-page ruling, the court remanded the case to the commission, which the court said had failed to impose the burden of proof on the applicant that its water allocation would not interfere with the water needs of DHHL; had improperly shifted the burden of proof to Native Hawaiian practitioners regarding the impact on their exercise of customary and traditional rights; and had ignored the closure of Kaluako'i Hotel and golf course when it evaluated the application's “existing uses.”

“This decision represents a substantial victory for OHA and Native Hawaiians in protecting Native Hawaiian rights as well as the 'life-giving water' of Moloka'i for OHA's beneficiaries and all who reside there,” said OHA Chairperson Haunani Apoliona. “OHA is hopeful this Supreme Court ruling will reinforce our position as it relates to the contested-case hearing before the State Water Commission for Maui County at Nā Wai 'Ehā.”

Jon Van Dyke, who represented OHA during the contested-case hearing and the appeal to the State Supreme Court, said the ruling means that “the allocation of water permits on Moloka'i is back to square one, and it can be anticipated that another protracted contested-case hearing will probably be held in the future to determine how much water Moloka'i Properties Ltd. is entitled to.”

Water rights granted under the 2001 allocation were less than the applicant had sought but more than should have been allowed in light of evidence showing that Kukui had never used the amount of water it claimed and that the allocation would negatively impact DHHL's ability to deliver water to its Moloka'i homesteaders, according to arguments presented by OHA and Native Hawaiian groups.

The court also reaffirmed and clarified other principles established in its previous decisions, including that public trust purposes include the protection of: waters in their natural state, domestic uses particularly for drinking purposes, and the exercise of Native Hawaiian traditional and customary rights.