Hawai‘i Supreme Court sides with East Maui Water advocates in latest opinion

The Hawai‘i Supreme Court on Thursday confirmed that the Board of Land and Natural Resources violated water advocates’ constitutional rights when it permitted Alexander & Baldwin, Inc. to divert fresh water from East Maui streams as part of a renewal of a Revocable Permit. The court also affirmed the BLNR’s statutory responsibility to consider the mauka-to-makai impacts of its decisions, given the wide-ranging impacts of stream diversions on watersheds, estuaries, and the nearshore environment.

According to the court opinion: “Private enforcement of these policies was essential, as no other party sought to test BLNR’s reasoning behind setting a 45 mgd cap on water diversion and the change in the agency’s definition of water waste. And Sierra Club’s advocacy on their members’ behalf could benefit the public generally, for example, in assessing potential water waste and vindicating procedural rights.”

The Department of Land and Natural Resources responded to Maui Now’s request for comment, thanking the Hawaiʻi Supreme Court for bringing this case to a conclusion.  “It is now our obligation to comply with the Court’s decision,” according to DLNR.

“The Department of Land and Natural Resources is carefully reviewing the Court’s opinion to assess its implications.  We remain steadfast in our duty to protect, conserve, and manage our state’s precious natural, cultural, and historic resources for Hawaiʻi’s current and future generations,” according to its statement.  

In 2020, the BLNR renewed A&B’s revocable permit for taking water form East Maui streams, while denying the Sierra Club of Hawaiʻi’s request for an evidentiary hearing, or contested case. The Sierra Club wanted a more thorough examination of the environmental and cultural impacts of the decision and alleged waste of millions of gallons of water per day. 

The environmental court subsequently found that the BLNR had deprived Sierra Club of Hawaiʻi members’ constitutional right to a healthful environment, without due process. The environmental court further reduced the amount of water that A&B was authorized to take from east Maui until an evidentiary hearing on the Sierra Club’s concerns was held, and due process satisfied.

The intermediate court of appeals later reversed the environmental court’s decisions – a ruling that was reversed again by the Hawaiʻi Supreme Court in Thursday’s opinion.

“This is about more than the BLNR’s responsibility to consider the impacts of dried out streambeds, disrupted cultural practices, and rampant water waste – all of which are extremely critical issues,” said David Kimo Frankel, attorney for the Sierra Club of Hawaiʻi. “This is also about whether a government agency can simply deprive you of your constitutional rights – without any opportunity to present and examine facts, cross examine witnesses, or demonstrate the extent of the harm that you may suffer from its decisions.”

The controversy over the BLNR’s repeated issuance of “temporary” permits to allow A&B to continuously drain east Maui streams dry is long-standing, having spawned more than 20 years of litigation, highly controversial legislation, and multiple rebukes by the environmental court as well as the highest court of the land.

While the one-year permits issued in 2020 have already expired, the Sierra Club notes that the supreme court opinion could influence the outcome of similar cases pending in lower courts.

In July 2025, A&B terminated all remaining obligations under the land sales agreements related to Mahi Pono’s purchase of former A&B lands on Maui.