Hawaiʻi Supreme Court says the state “acted in bad faith” when it used the Lahaina fires as a reason to increase East Maui water flows

The Hawaiʻi Supreme Court ruled that the Board of Land and Natural Resources, through the State Attorney General’s office, acted in bad faith when it alleged there was not enough permitted water to fight the Aug. 8 wildfires because of an earlier ruling that capped the amount of water diverted from East Maui streams.

In making its Supreme Court ruling, the judge concluded that “BLNR tried to leverage the most horrific event in state history to advance its interests,” finding that the statements made in the BLNR’s petition were “manifestly and palpably without merit.”

On Aug. 9, the day after fires ravaged Lahaina, the Attorney General submitted a petition to the Hawai‘i Supreme Court, claiming that in stream protections for East Maui, established by environmental court judge Jeffrey Crabtree, left Maui with “not enough water . . . to battle the wildfires.”

The legal filing claimed that Judge Crabtree’s 31.5 million gallon per day cap on stream diversions by real estate investment trust Alexander & Baldwin “hamstringed” the agency’s ability to ensure water for firefighting, that the judge had “refused to permit any water for firefighting,” and that his decision “resulted in an imminent threat to health and safety.”

An opinion, written by Justice Todd Eddins on April 18, found that “the BLNR’s refusal to withdraw the meritless assertions, the flimsiness of its request for extraordinary relief, and its use of the Maui tragedy, support a finding of frivolousness and bad faith.”

The Department of the Attorney General responded to Maui Now’s request for comment saying the department disagrees with the court’s characterization and with its conclusions. Maui Now’s request for comment from BLNR was deferred to the AG’s office.

As had been proven with data by the Sierra Club and as confirmed by Maui County officials, “[c]ontrary to the claims in the BLNR’s petition, there was enough permitted water and reserve water to fight the fires. And the environmental court’s actions did not “result[] . . . in an imminent threat to public health and safety.”

According to court documents, in its July 2023 quarterly report to the BLNR, Alexander & Baldwin and East Maui Irrigation disclosed that in April, May and June 2023, there was a monthly average of 5.5 mgd available in the Central Maui reservoirs for fire protection.

During oral arguments, the County represented it used 37,000 gallons of water over approximately five days of fighting the fires, with high winds hampering aerial efforts.

Wayne Tanaka, director of the Sierra Club of Hawaiʻi, issued a statement saying, “This is not just about protecting East Maui’s streams and our most precious resource against corporate water hoarding and waste. This is not just about the shameless exploitation of an unimaginable tragedy by a government agency, to benefit one of the most powerful corporations in our islands. This is also about defending the integrity of our judiciary, and Hawaiʻi’s highest court, from disinformation submitted in bad faith.”

The court subsequently rejected the Attorney General’s assertion of sovereign immunity against the Sierra Club’s effort to recoup the costs of disproving the claims.