Lana'ians for Sensible Growth v. Land Use Commission. ( 2020 )

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Electronically Filed
Supreme Court
SCOT-XX-XXXXXXX
15-MAY-2020
10:31 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
LĀNAʻIANS FOR SENSIBLE GROWTH, Intervenor-Appellant,
vs.
LAND USE COMMISSION, COUNTY OF MAUI DEPARTMENT OF PLANNING,
STATE OFFICE OF PLANNING, Appellees,
and
LĀNAʻI RESORTS, LLC, Petitioner-Appellee.
SCOT-XX-XXXXXXX
APPEAL FROM THE LAND USE COMMISSION
(Agency Docket No. A89-649)
MAY 15, 2020
McKENNA, POLLACK, JJ., WITH WILSON, J., JOINING IN PARTS I—
III(A)-(D) AND DISSENTING IN PARTS III(E) AND IV, AND WITH
RECKTENWALD, C.J., CONCURRING IN THE JUDGMENT AND DISSENTING,
WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY POLLACK, J.,
EXCEPT AS TO PARTS III(E) AND IV
In 2017, the Land Use Commission of the State of
Hawaiʻi determined that, when it prohibited a resort from
irrigating its golf course with “potable” water as a condition
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of its administrative order issued almost thirty years earlier,
it did not mean “potable” by any common definition of the term.
Instead, the Land Use Commission found that the term was
intended to carry a special meaning that the Commission does not
define--other than to say it excludes brackish water that
contains chlorides over an unspecified level. Based upon this
special interpretation of “potable,” the Land Use Commission
determined that the resort had not violated the administrative
order. But neither the text of its administrative order nor the
circumstances in which it was adopted offer any reason to depart
from the plain meaning of the condition, which was intended to
prohibit the resort from watering its golf course with water
that is suitable for drinking under county water quality
standards. This plain meaning is consistent with the common
meaning of “potable” that this court recognized in its previous
ruling in this case and serves to fulfill the constitutional
duties with which the Land Use Commission is presumed to have
complied.
We thus conclude that the Land Use Commission erred in
its 2017 Order by interpreting a condition in its administrative
order to mean that brackish water is per se “non-potable.”
Accordingly, we also consider whether the Commission erred in
determining that the resort did not violate this condition under
its plain meaning, which prohibits the utilization for golf
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course irrigation water suitable for drinking under the county’s
water quality standards.
I. BACKGROUND
A. The Initial Proceedings and the 1991 LUC Order
This case began in November 1989, when Lānaʻi Resorts
(the Resort) filed a Petition for Land Use District Boundary
Amendment (Petition) with the Land Use Commission of the State
of Hawaiʻi (LUC).1 The Petition sought “to effect district
reclassification” of a large tract of rural and agricultural
land so that the Resort could build an eighteen-hole golf course
in Mānele on the island of Lānaʻi. The LUC permitted Lānaʻians
for Sensible Growth (LSG) to intervene in the matter.2 In April
1991, after six days of hearings, the LUC issued an order
approving the Resort’s Petition subject to several conditions
(1991 LUC Order). Among these conditions was Condition 10,
which gave rise to the litigation now before this court.
Condition 10 states that the Resort is not allowed to use
potable water to irrigate the golf course:
1
Several entities have owned the Resort since the original
boundary amendment proceedings in 1989. For clarity, these entities are
collectively referred to as “the Resort.”
2
LSG is “an unincorporated association of Lanai residents” who
“used the subject property for hiking, subsistence and recreational fishing,
and for the enjoyment and appreciation of the ancient Hawaiian archaeological
sites located there.”
3
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10. [The Resort] shall not utilize the potable water
from the high-level groundwater aquifer for golf course
irrigation use, and shall instead develop and utilize only
alternative non-potable sources of water (e.g., brackish
water, reclaimed sewage effluent) for golf course
irrigation requirements.
In addition, [the Resort] shall comply with the
requirements imposed upon [it] by the State Commission on
Water Resource Management as outlined in the State
Commission on Water Resource Management’s Resubmittal -
Petition for Designating the Island of Lanai as a Water
Management Area, dated March 29, 1990.
(Emphasis added.) The “Resubmittal” referred to in the second
paragraph of Condition 10 refers to the State Commission on
Water Resource Management’s (CWRM) March 1990 recommendation
against designating the island of Lānaʻi as a water management
area.3
B. The 1996 LUC Order
In October 1993, the LUC issued an Order to Show Cause
(OSC) to the Resort, directing it to show why certain portions
of its golf course should not revert to their former land use
classification or otherwise be changed to a more appropriate
classification. The OSC stated that the LUC had reason to
believe the Resort had failed to comply with Condition 10’s
requirement that it develop and utilize alternative sources of
non-potable water for golf course irrigation.
3
In May 1989, the CWRM received a “petition to designate the
Island of Lanai as a Water Management Area for the purpose of regulating the
use of ground-water resources” because the “resort development on Lanai in
the future would cause water demand to exceed the available water supply.”
4
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Following twelve days of hearings regarding the OSC,
the LUC issued its Findings of Fact, Conclusions of Law, and
Decision and Order (1996 LUC Order). The LUC found that the
Resort was irrigating the golf course primarily with non-
potable, brackish water from two wells located within the high
level aquifer: Well 1 and Well 9.4 The LUC concluded that this
use did not comply with Condition 10 and accordingly ordered the
Resort to “immediately cease and desist any use of water from
the high level aquifer for golf course irrigation requirements.”
The Resort appealed the LUC’s decision to the Circuit
Court of the Second Circuit, which reversed the 1996 LUC Order.
See Lanai Co. v. Land Use Comm’n, 105 Hawaiʻi 296, 306, 97 P.3d
372, 382 (2004). We affirmed on review, holding that “the LUC
erred in interpreting Condition No. 10 as precluding the use of
‘any’ or all water from the high level aquifer.” Id. at 319, 97
P.3d at 395. This court explained that Condition 10 bars the
use of only potable water from the high-level aquifer, and it
allows the Resort to use non-potable water for golf course
irrigation. Id. at 310, 97 P.3d at 386. We stated that
“potable” is ordinarily defined as “suitable for drinking” but
4
Section 20.24.020 of the Maui County Code, the LUC noted,
“define[d] potable water as water containing less than 250 milligram per
liter of chlorides.” Nonetheless, the LUC found that “[t]he potability of
any water source does not depend on any particular level of chloride
concentration.”
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noted that the parties disagreed as to the meaning the 1991 LUC
intended when it used the term in Condition 10. Id. at 299 n.8,
97 P.3d at 375 n.8 (2004) (quoting Webster’s Seventh New
Collegiate Dictionary 664 (1965)). The evidence did not
conclusively establish that the aquifer contained only potable
water, we held, and, indeed, the LUC’s findings of fact
“suggest[ed] that the use of [Wells 1 and 9], and their brackish
water supply, was permissible.” Id. at 313, 97 P.3d at 389.
Because the 1996 LUC Order was ambiguous, we remanded the case
to the LUC “for clarification of its findings . . . as to
whether [the Resort] used potable water from the high level
aquifer, in violation of Condition No. 10.” Id. at 319, 97 P.3d
at 395.
C. The 2010 LUC Order
On remand in 2010, the LUC vacated its 1996 Order and
granted the Resort’s Motion for Modification of Condition 10
(2010 LUC Order). The newly-modified Condition 10 provided, in
relevant part, the following:
a. [The Resort] shall not use ground water to irrigate the
Mānele Golf Course, driving range and other associated
landscaping if the chloride concentration measured at the
well head is 250 milligrams per liter (250 mg/l) or less.
b. In the event the chloride concentration measurement of
ground water to irrigate the Mānele Golf Course, driving
range and associated landscaping falls below 250 mg/l, [the
Resort] shall cease use of the affected well(s) producing
such ground water for irrigation purposes until such time
as the chloride concentration measurement of the water
drawn from such wells rises above 250 mg/l.
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The case was again appealed, and on review the Intermediate
Court of Appeals (ICA) held that the 2010 LUC Order was invalid
because LSG was not given a “full and fair opportunity to have
its evidence heard and considered post-remand.” Lanaians for
Sensible Growth v. Lanai Resorts, LLC, Nos. CAAP-XX-XXXXXXX,
CAAP-XX-XXXXXXX, 2016 WL 1123383 (App. Mar. 21, 2016) (mem.).
D. The 2017 LUC Order
The LUC held further hearings following the second
remand and on June 1, 2017, issued the Findings of Fact,
Conclusions of Law and Decision and Order that are the subject
of this appeal (2017 LUC Order). In determining whether the
Resort had violated Condition 10 when it used brackish water
from Wells 1 and 9 for golf course irrigation, the LUC explained
that the “common sense definition” of potable is “drinkable,”
and that the word “brackish” means “somewhat salty” and
“distasteful.”5 (Quoting Lanai Co., 105 Hawaii at 299 n.10, 97
P.3d at 375 n.10.) Based on testimony from the hearings, the
LUC determined that “[w]ater with chloride concentrations above
5
The LUC noted that the Hawai‘i Department of Health defines
“potable water” as “water free from impurities in amounts sufficient to cause
disease or harmful physiological effects.” The terms potable and non-potable
“do not exist in State or federal primary drinking water regulations,” the
LUC stated.
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250 ppm or mg/L is considered ‘brackish,’” but water above this
threshold “may also be considered ‘potable.’”6
The LUC noted that the United States Environmental
Protection Agency’s (EPA) “secondary standards” define “brackish
water” as “water having chlorides of 250 mg/L or above.” When
chloride levels exceed 250 mg/L, the LUC stated, customers begin
to complain of “taste issues” and problems arise “with the water
system itself such as corrosion and deposits in the pipelines.”
The LUC also explained that “in practice, county water
departments generally limit chloride levels of water within
their municipal system to less than 160mg/L, or at most, under
the EPA’s secondary standard of 250 mg/L.”
The LUC found, however, that chlorides are considered
to be a “secondary contaminant” because they affect only the
“aesthetic qualities” of drinking water. In other words,
chloride levels are not regulated by standards designed to
protect public health. The Hawai‘i Department of Health (DOH)
would allow public water systems to provide drinking water with
chloride levels in excess of 250 mg/L, the LUC found, and some
public water systems have done so in the past. It is also
“typical,” the LUC stated, “for county water supplies to use
6
One milligram (mg) per liter (l) is equal to one part per million
(ppm), and the LUC appears to have used the terms interchangeably.
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water pumped at or above 250 ppm in their domestic water
systems, blended into other water.” There are currently potable
wells on Oʻahu that produce water with over 250 mg/L chlorides,
the LUC found, and Maui wells have likely also done so in the
past. Thus, the LUC reasoned that “it is possible for water
with chloride concentrations of greater than 250 ppm to be used
as potable water . . . either directly or blended with other
potable sources . . . so long as other drinking water standards
are met.”7
Turning to the wells used to irrigate the golf course,
the LUC explained that “[f]rom 1948 to present, the documented
chloride levels of water from Well 1 have always been greater
than 250 mg/L.” The LUC found that Well 9 was “connected to the
brackish water system” in 1992, and “[f]rom 1993 to present, the
documented chloride levels of the water from [the well] have
always been greater than 250 mg/L.” “No party,” the LUC found,
“presented any evidence that the chloride levels of either Well
1 or 9 has ever dropped below 250 mg/L.” Wells 1 and 9 “draw
the only known high-level ground water in the state that is
brackish, as opposed to fresh,” the LUC stated. And, although
7
The LUC also concluded that “the record contains inconclusive
evidence as to the degree to which the pumping of water from Wells 1 and 9 in
the Pālāwai Basin may cause the leakage of water from other areas of the high
level aquifer that are currently used for potable drinking water.”
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Wells 1 and 9 had been tested for potability and found to be
free of primary contaminants, the LUC determined that they would
“not be accepted by the County[ of Maui] as potable wells” due
to their chloride levels.
The LUC found that “it was reasonable to conclude that
the water from Wells 1 and 9 may be considered ‘potable’” under
the term’s “common sense meaning.” The LUC reasoned, however,
that when it was used in Condition 10, “potable” had “a special
interpretation other than its common or general meaning,” as
evidenced by the inclusion of “the category of ‘brackish’ water
as a specific example . . . [of] an ‘alternate source’ of
water.” Due to the “unique existence of brackish high-level
water” in Wells 1 and 9, those involved in the original hearing
may have incorrectly assumed that the high level aquifer
contained only freshwater, the LUC explained. Thus, “in the
specific context of this Docket and Condition 10, ‘brackish’
water was considered not to be potable,” the LUC found, “but
rather a source of water ‘alternate’ to the ‘potable’ water
supplies” found in the high level aquifer.
The LUC therefore concluded that the specific language
of Condition 10 indicated that the term “potable” was not used
in accordance with its common sense meaning, and the condition
“specifically excluded from ‘potability’ brackish water of a
kind that is used elsewhere in these islands for drinking.” The
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LUC stated that the Resort presented “substantial credible
evidence” that the water used to irrigate the golf course “was
and is brackish under the specific meaning of the language in
Condition 10 in the 1991 [LUC] Order, and therefore an allowable
alternate source of water.”
The LUC also addressed the public trust doctrine
explaining that “[u]nder the public trust, the state has both
the authority and duty to preserve the rights of present and
future generations in the waters of the state.” (Quoting In re
Water Use Permit Applications (Waiāhole I), 94 Hawaiʻi 97, 141, 9
P.3d 409, 443 (2000).) Additionally, the LUC noted that it was
required to “consider whether [the Resort’s] use negatively
affects past, current or future uses of potable water from the
high-level aquifer.” Although the evidence regarding “the
potential long-term effect of withdrawals from Wells 1 and 9 on
drinking water wells” on Lānaʻi was “ambiguous,” the LUC found,
“no party [] raised a reasonable allegation of harm against that
or any other public trust use of water.” Therefore, the LUC
concluded that the Resort “made an affirmative showing that its
use of Wells 1 and 9 to irrigate Mānele Golf Course does not
conflict and is consistent with public trust principles and
purposes.” The 1996 LUC Order was vacated by the 2017 LUC
because of its determination that the Resort “proved its
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compliance with Condition No. 10 by a preponderance of the
evidence.”
LSG filed a direct appeal from the 2017 LUC Order to
this court.
II. STANDARDS OF REVIEW
Pursuant to Hawaiʻi Revised Statutes (HRS) § 205-19
(Supp. 2016), this court reviews LUC decisions under the
standards set forth in the judicial review provision of the
Hawai‘i Administrative Procedures Act, HRS § 91-14(g). HRS § 91-
14(g) (Supp. 2016) provides as follows:
Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise
of discretion.
This court has further clarified that
[c]onclusions of law are reviewed de novo, pursuant to
subsections (1), (2) and (4); questions regarding
procedural defects are reviewable under subsection (3);
findings of fact (FOF) are reviewable under the clearly
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erroneous standard, pursuant to subsection (5), and an
agency’s exercise of discretion is reviewed under the
arbitrary and capricious standard, pursuant to subsection
(6).
Kauai Springs, Inc. v. Planning Comm’n of Kaua‘i, 133 Hawai‘i
141, 164, 324 P.3d 951, 974 (2014).
III. DISCUSSION
The 2017 LUC determined that brackish water is per se
“non-potable” within the meaning of Condition 10,
notwithstanding that this meaning is contrary to the “common
sense” definition of the term. However, given the text of
Condition 10, the presumption that the 1991 LUC complied with
its constitutional public trust duties, and the circumstances in
which the condition was adopted, it is apparent that the 1991
LUC intended to use the term “potable” in accordance with its
common sense meaning rather than a special interpretation under
which water with chloride levels higher than an unspecified
number is inherently non-potable. This is to say that Condition
10 prohibits the Resort from irrigating its golf course with
water suitable for drinking under the county’s water quality
standards.
A. The 2017 LUC’s Interpretation of Condition 10 Is Contrary to
Its Plain Meaning, Which Prohibits Golf Course Irrigation with
Water that Is Suitable for Drinking under County Water Quality
Standards.
The 2017 LUC concluded that the plain language of
Condition 10 indicates that, counter to the common sense meaning
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of its terms, brackish water is necessarily “non-potable” within
the meaning of the condition. In interpreting the text of
Condition 10, the general principles of statutory construction
apply. See Boswell v. Brazos Elec. Power Co-op., Inc., 910
S.W.2d 593, 599 (Tex. App. 1995) (“Rules of statutory
construction apply equally to the construction of an
administrative order.”) (citing Trapp v. Shell Oil Co., 198
S.W.2d 424, 439 (Tex. 1946))); State v. Guyton, 135 Hawai‘i 372,
378, 351 P.3d 1138, 1144 (2015) (applying canons of statutory
construction to a court order); Int’l Bhd. of Elec. Workers,
Local 1357 v. Hawaiian Tel. Co., 68 Haw. 316, 323, 713 P.2d 943,
950 (1986) (applying canons of statutory construction to an
administrative rule). If the language of the order is
unambiguous and applying it in its literal sense would not
produce a result that is absurd, unjust, or at odds with
governing law, we are bound to enforce the plain meaning of the
administrative order. See Guyton, 135 Hawai‘i at 378, 351 P.3d
at 1144. We are only free to depart from this plain meaning if
there is some indication that a term was intended to be “given a
special interpretation other than its common and general
meaning.” Singleton v. Liquor Comm’n, 111 Hawai‘i 234, 244, 140
P.3d 1014, 1024 (2006).
The 2017 LUC found such an indication in the language
of Condition 10, which includes brackish water as a possible
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example of non-potable water. The 2017 LUC expressly
acknowledged that the water from Wells 1 and 9 could be
considered “potable” under the common sense meaning of the word.
It however reasoned that, by stating that the Resort was
required to “develop and utilize only alternative non-potable
sources of water (e.g., brackish water, reclaimed sewage
effluent),” Condition 10 clearly indicated that brackish water
was considered “non-potable” for purposes of the condition, and
the term must therefore carry a “special interpretation” other
than its common sense meaning. (Emphasis added.)
But “e.g.”, an abbreviation for the Latin phrase
exempli gratia, simply means “for example.” Black’s Law
Dictionary 717 (11th ed. 2019). The inclusion of brackish water
following the abbreviation indicates only that brackish water is
an example of water that could be “non-potable” if the water
qualifies as such under the word’s ordinary meaning. In
contrast, the term “i.e.”, an abbreviation for the Latin phrase
id est, means “that is.” Black’s Law Dictionary 895 (11th ed.
2019). Thus, when a term is meant to be interchangeable with or
definitional of an affected term, rather than just a possible
example, “i.e.” is used. See DePierre v. United States, 564
U.S. 70, 80 (2011) (using “i.e.” to demonstrate that cocaine
hydrochloride and powder cocaine are the same substance);
Droplets, Inc. v. eBay, Inc., No. 2:11-CV-401-JRG-RSP, 2014 WL
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4217376 at *7 (E.D. Tex. Aug. 22, 2014) (finding that “i.e.” is
a definitional expression while “e.g.” is merely an explanatory
expression); Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364,
1373 (Fed. Cir. 2014) (noting that “i.e.” serves as a
definitional phrase that provides clarity compared to “e.g.”
which serves to provide an example); Hoseman v. Weinschneider
(In re Weinschneider), 42 Collier Bankr. Cas. 2d 1860, 1999 WL
676519, at *3 n.3 (Bankr. N.D. Ill. Aug. 30, 1999) (using “i.e.”
to demonstrate that a name is interchangeable with an acronym).
The 2017 LUC altered the established meaning of “e.g.” by
finding that brackish water is per se non-potable because the
term “e.g.” was used. This nullifies the distinction between
“i.e.” and “e.g.” as it converts “e.g.” into a definitional
phrase, rendering brackish water as an interchangeable term for
non-potable.
Thus, the 2017 LUC’s interpretation divorces the term
“brackish” from Condition 10’s overarching requirement that the
water utilized by the Resort be non-potable in the first
instance. (“[The Resort] shall not utilize the potable water
from the high-level groundwater aquifer for golf course
irrigation use[.]”) Simply being brackish, however, does not
make water non-potable within the meaning of Condition 10. The
key inquiry is instead whether the water at issue fulfills the
common meaning of the term “potable,” which this court has
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stated to be “suitable for drinking.” Lanai Co. v. Land Use
Comm’n, 105 Hawai‘i 296, 299 n.8, 97 P.3d 372, 375 n.8 (2004)
(quoting Webster’s Seventh New Collegiate Dictionary 664
(1965)). Brackish water is therefore “potable” if it is
suitable for drinking under county water quality standards and
“non-potable” if it is not.
Tellingly, neither the 2017 LUC nor the Chief
Justice’s opinion concurring in the judgment and dissenting
(minority), which accepts the specialized meaning adopted by the
2017 LUC, has offered an alternative definition of “non-
potable.”8 Because they eschew the common definition of the
terms of Condition 10 in favor of a “special interpretation,”
their analysis is untethered to any specific test that can be
applied in the future. It is thus wholly unclear what water
would qualify as non-potable other than the brackish water and
reclaimed sewage effluent that are expressly mentioned in
Condition 10.
8
In support of its revamping of the definition of “potable,” the
minority points to the second paragraph of Condition 10 that requires the
Resort to comply with the requirements imposed by the CWRM Resubmittal, which
appears to include an authorization for the CWRM chairperson to reinstitute a
water-management-area designation proceeding if certain indications of an
impending water shortage exist. Minority Op. at 19-20; see infra note 9.
But this authorization cannot change the meanings of the terms used in
Condition 10, which are fixed based on the LUC’s intention at the time the
condition was imposed.
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Conversely, applying the plain language of Condition
10 in accordance with its common meaning does not produce an
absurd or unjust result. Instead, it effectuates the purpose of
Condition 10: to protect Lānaʻi’s drinking water supply for use
by the general public. The provision does not expressly
identify all brackish water as a permissible source of water for
golf course irrigation, nor does it present any other reason to
deviate from the plain meaning of its terms. This court is
therefore not at liberty to do so, and we thus reject the 2017
LUC’s “special interpretation.”
B. The LUC Is Presumed To Have Complied with Its Constitutional
Public Trust Duties, Including the Preservation of Water for
Domestic Use.
The plain reading of Condition 10 is reinforced by the
presumption that the LUC complied with its public trust
obligations. Waiāhole I, 94 Hawai‘i 97, 135, 9 P.3d 409, 447
(2000) (“The public trust is a dual concept of sovereign right
and responsibility.”). Under our precedent, “agency decisions
affecting public trust resources carry a presumption of
validity.” Id. at 143, 9 P.3d at 455. Thus, logically, if an
administrative order is reasonably susceptible to an
interpretation that would not meet the agency’s public trust
obligations and one that would properly fulfill those duties, we
are obligated to adopt the latter. Cf. Morita v. Gorak, 145
Hawai‘i 385, 391, 453 P.3d 205, 211 (2019); In re Doe, 96 Hawaiʻi
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73, 81, 26 P.3d 562, 570 (2001) (“[W]here a statute is
susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of
which such questions are avoided, our duty is [to] adopt the
latter.” (quoting Jones v. United States, 529 U.S. 848, 857
(2000))). In other words, the 1991 LUC is presumed to have
reviewed and granted the Resort’s Petition in a manner that was
consistent with its constitutional public trust duties, and this
court must interpret Condition 10 in light of this commitment.
As the 2017 LUC recognized, these duties include an
obligation to protect and preserve water for domestic use by the
public with a particular focus on “protecting an adequate supply
of drinking water.” Kauai Springs, Inc. v. Planning Comm‘n of
Kaua‘i, 133 Hawai‘i 141, 172, 324 P.3d 951, 982 (2014) (citing
Waiāhole I, 94 Hawai‘i at 136–37, 9 P.3d at 449–50). Further,
the LUC possesses a continuing constitutional obligation to
ensure that the measures it imposes to protect public trust
resources are implemented and complied with. See Kelly v. 1250
Oceanside Partners, 111 Hawai‘i 205, 231, 140 P.3d 985, 1011
(2006) (holding that an agency has a continuing public trust
duty “not only [to] issue permits after prescribed measures
appear to be in compliance with state regulation, but also to
ensure that the prescribed measures are actually being
implemented”).
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From this perspective, it is apparent that Condition
10 serves to protect and preserve the waters of Lānaʻi for
domestic use by prohibiting the Resort from irrigating its golf
course with water that would otherwise be used as drinking
water. Thus, whether the water in Wells 1 and 9 is “potable”
for purposes of Condition 10 would not turn on whether the
chloride concentration exceeds a given level--for which there is
no evidence that the 1991 LUC contemplated when it first imposed
the condition.
Indeed, the 1991 LUC would have violated its public
trust duties if it had intended “potable” water to convey the
special, non-common sense interpretation adopted by the 2017 LUC
and endorsed by the minority. Permitting the Resort an
indefinite license to irrigate its golf course using any water
with chloride levels in excess of a given level would not
adequately preserve and protect Lānaʻi’s drinking water supply in
the long term because, as technology develops and climate change
likely fundamentally alters the availability of fresh water,
“brackish” water may become needed for domestic use. It would
assuredly be counter to the State’s public trust obligations to
permit a private commercial resort to irrigate its golf course
with water that the public needs for daily living, and the 2017
LUC’s special interpretation does little to prevent this
outcome. See Waiāhole I, 94 Hawai‘i at 138, 9 P.3d at 450
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(“[A]lthough its purpose has evolved over time, the public trust
has never been understood to safeguard rights of exclusive use
for private commercial gain.”).
The minority would have this court instead rely on the
CWRM’s review of the monthly monitoring reports that Condition
10 requires the Resort to submit to hold that the LUC’s public
trust obligations have been satisfied.9 Minority Op. at 19-20.
9
Condition 10 states that the Resort shall comply with the
conditions set forth in the CWRM Resubmittal, which recommended the following
actions to protect Lāna‘i’s water supply:
1. Require [the Resort] to immediately commence monthly
reporting of water use to the [CWRM], under the authority
of Chapter 174C-83, HRS, which would include pumpage, water
level, temperature, and chloride measurements from all
wells and shafts;
2. In addition to monthly water use reporting and pursuant
to Secs. 174C-43 & 44, HRS, require [the Resort] to monitor
the hydrologic situation so that if and when ground-water
withdrawals reach the 80-percent-of-sustainable-yield rate,
the [Resort] can expeditiously institute public
informational meetings in collaboration with the [CWRM] to
discuss mitigative measures;
3. Require [the Resort] to formulate a water shortage plan
that would outline actions to be taken by the [Resort] in
the event a water shortage situation occurs. This plan
shall be approved by the [CWRM] and shall be used in
regulating water use on Lanai if the [CWRM] should exercise
its declaratory powers of a water emergency pursuant to
Section 174C-62(g) of the State Water Code. A draft of
this plan should be available for public and [CWRM] review
no later than the beginning of October 1990 and shall be
approved by the [CWRM] no later than January 1991;
4. That the [CWRM] hold annual public informational
meetings on Lanai during the month of October to furnish
and receive information regarding the island’s water
conditions. The public shall be duly notified of such
meetings;
5. Authorize the Chairperson to re-institute water-
management-area designation proceedings and, hence, re-
(continued . . .)
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While these reports are relevant to the State’s continuing
public trust duty to monitor the Resort’s compliance with
Condition 10, the submission of monthly water reports prepared
by the Resort would not by itself assure the required level of
protection and preservation of Lāna‘i’s water resources. Ching
v. Case, 145 Hawai‘i 148, 170, 449 P.3d 1146, 1168 (2019) (“The
most basic aspect of the State’s trust duties is the obligation
‘to protect and maintain the trust property and regulate its
use’” which includes a duty “to reasonably monitor the trust
property,” to ensure that “a trustee fulfills the mandate of
‘elementary trust law’ that trust property not be permitted to
‘fall into ruin on the [the trustee’s] watch’” (alteration in
original)).
The CWRM’s powers are intended to be used to respond
to and mitigate a water shortage once it has begun. See HRS
(. . . continued)
evaluations of ground-water conditions on the island if and
when:
a. The state water-level of any production well falls below
one-half its original elevation above mean sea level, or
b. Any non-potable alternative source of supply contained
in the [Resort’s] water development plan fails to
materialize and full land development continues as
scheduled.
c. Items 1, 2, and 3 are not fulfilled by [the Resort].
d. If source water uses exceeds 4.3 [million gallons per
day].
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§ 174C-62.10 By contrast, Condition 10’s prohibition on the use
of potable water serves to help prevent such a shortage from
arising in the first place. If the “potable” distinction in
Condition 10 is properly interpreted to vary based on whether
10
HRS § 174C-62 (2011) provides as follows:
(a) The commission shall formulate a plan for
implementation during periods of water shortage. As a part
of the plan, the commission shall adopt a reasonable system
of permit classification according to source of water
supply, method of extraction or diversion, use of water, or
a combination thereof.
(b) The commission, by rule, may declare that a water
shortage exists within all or part of an area when
insufficient water is available to meet the requirements of
the permit system or when conditions are such as to require
a temporary reduction in total water use within the area to
protect water resources from serious harm. The commission
shall publish a set of criteria for determining when a
water shortage exists.
(c) In accordance with the plan adopted under subsection
(a), the commission may impose such restrictions on one or
more classes of permits as may be necessary to protect the
water resources of the area from serious harm and to
restore them to their previous condition.
. . . .
(g) If an emergency condition arises due to a water
shortage within any area, whether within or outside of a
water management area, and if the commission finds that the
restrictions imposed under subsection (c) are not
sufficient to protect the public health, safety, or
welfare, or the health of animals, fish, or aquatic life,
or a public water supply, or recreational, municipal,
agricultural, or other reasonable uses, the commission may
issue orders reciting the existence of such an emergency
and requiring that such actions as the commission deems
necessary to meet the emergency be taken, including but not
limited to apportioning, rotating, limiting, or prohibiting
the use of the water resources of the area. Any party to
whom an emergency order is directed may challenge such an
order but shall immediately comply with the order, pending
disposition of the party’s challenge. The commission shall
give precedence to a hearing on such challenge over all
other pending matters.
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the water is of a quality that the county water agency would, at
that time, deem suitable for domestic use, the provision
fulfills the LUC’s public trust duty to ensure that the public’s
use of the limited natural resource is always prioritized over
the irrigation of a private commercial golf course, regardless
of whether Lānaʻi’s water supply is actively threatened.11 See
Kauai Springs, Inc., 133 Hawai‘i at 174, 324 P.3d at 984 (noting
that the public trust doctrine obligates an agency to consider
“whether the proposed use is consistent with,” inter alia, “the
protection of domestic water use” and to subject commercial uses
to “a high level of scrutiny”). The position asserted by the
minority clearly would not protect and preserve the public trust
as it concludes that all brackish water is non-potable, thus
allowing perpetual commercial use of a public water resource to
irrigate the Resort’s golf course unless the CWRM determines
that there exists a water shortage on Lāna‘i of sufficient
11
County water quality standards necessarily take into
consideration the DOH and the EPA’s safety regulations. See Hawai‘i
Administrative Rules §§ 11-20-2, 11-20-4 to 11-20-7, 11-21-2; 40 C.F.R. §§
141.2, 141.61-.66 (2020). However, more than just safety considerations
inform a county water agency’s evaluation of the suitability of water for
domestic use. A host of secondary considerations such as taste, appearance,
odor, the cost and feasibility of purification or other processing, and the
availability of alternative sources may affect whether a county water agency
views a water source as suited for domestic use. See EPA, Secondary Drinking
Water Standards: Guidance for Nuisance Chemicals (2017) (listing various
chemicals that do not threaten water safety but may negatively affect the
desirability of water for drinking),
https://www.epa.gov/dwstandardsregulations/secondary-drinking-water-
standards-guidance-nuisance-chemicals [https://perma.cc/NT4B-6MAE].
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severity to require mitigation measures.12 The 2017 LUC’s
interpretation therefore renders Condition 10 ineffectual in
preserving Lāna‘i’s public water resource for future generations
in derogation of the public trust. Waiāhole I, 94 Hawai‘i at
139, 9 P.3d at 451 (“The second clause of article XI, section 1
[of the Hawaiʻi Constitution] provides that the state ‘shall
promote the development and utilization of [water] resources in
a manner consistent with their conservation and in furtherance
of the self-sufficiency of the State.’” (second alteration in
original)).
Further, the interpretation advocated by the minority
would rely on the Resort to self-report the composition of the
water in Wells 1 and 9. As we have held, “an agency of the
State must perform its statutory function in a manner that
fulfills the State’s affirmative constitutional obligations.”
Mauna Kea Anaina Hou v. BLNR, 136 Hawai‘i 376, 414, 363 P.3d 224,
262 (2015) (opinion of the court as to Part IV by Pollack, J.).
12
The minority claims to agree that the Resort is not allowed
perpetual use of the water in Wells 1 and 9. Minority Op. at 11. Yet its
reading of Condition 10 specifically provides for this outcome. As the
minority itself states, “if Wells 1 and 9 were made part of Lāna‘i’s potable
water system – in other words, if they no longer were ‘brackish’,” then the
Resort “[o]f course” could not use the water. Minority Op. at 11. This
reading of Condition 10 means that water would have to be no longer brackish
for it to be made part of Lāna‘i’s potable water system, ignoring the
scientific reality that brackish water can be potable. Consequently, the
minority allows the perpetual use of potable water.
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The State’s affirmative duty to protect and preserve
constitutional rights is by its very nature not delegable to a
private entity. See Ka Pa‘akai O Ka‘Aina v. Land Use Comm’n, 94
Hawai‘i 31, 50–51, 7 P.3d 1068, 1087–88 (2000). And, manifestly,
it is not reasonable for a trustee to delegate the supervision
of a third party’s compliance with an agreement that is designed
to protect trust property to the third party itself. Ching, 145
Hawai‘i at 181, 449 P.3d at 1179 (“It is self-evident that, as a
general matter, it is not reasonable for a trustee to delegate
the supervision of a lessee’s compliance with the terms of a
lease of trust property to the lessee.”); see also In re Estate
of Dwight, 67 Haw. 139, 146, 681 P.2d 563, 568 (1984) (“A
trustee is under a duty to use the care and skill of a [person]
of ordinary prudence to preserve the trust property.” (citing
Bishop v. Pittman, 33 Haw. 647, 654 (Haw. Terr. 1935))); cf.
Halderman v. Pennhurst State Sch. & Hosp., 526 F. Supp. 428, 433
(E.D. Pa. 1981) (“The Commonwealth defendants appear to take the
position that they should be able to monitor their own
compliance with the Court’s Orders. This would be somewhat akin
to requesting the fox to guard the henhouse.”).
The Hawaiʻi Constitution requires the State to engage
in evaluative monitoring of the wells with regard to the
county’s standards for domestic water usage to protect against
the conflict of interest inherent in self-reporting. Ching, 145
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Hawai‘i at 178, 449 P.3d at 1176 (holding that the State has a
“constitutional trust obligation” to reasonably monitor the
lessee to ensure that the lessee actually complies with the
conditions of the lease); Kelly, 111 Hawai‘i at 231, 140 P.3d at
1011 (concluding that the State had a continuing public trust
duty to reasonably monitor the developer to ensure that the
permit conditions are being followed). By engaging in
reasonable monitoring, the State can thus determine on an
ongoing basis whether the Resort has violated Condition 10 by
irrigating its golf course with water that the county water
agency would at that time deem suitable for domestic use. The
1991 LUC would have fulfilled its public trust duties by
crafting such a standard that can evolve with time and
contemporary conditions, including the changing environment and
developing technologies. Waiāhole I, 94 Hawaiʻi at 137, 9 P.3d
at 449 (“[W]e recognize domestic water use as a purpose of the
state water resources trust.”). This court therefore presumes
that the common sense meaning of potable water is indeed what
the LUC intended in Condition 10.13
13
As noted, the appeal in this case was taken following our remand
to the LUC to determine whether the Resort “was using potable water from the
high level aquifer” in violation of Condition 10. Lanai Co., 105 Hawaiʻi at
306, 316, 97 P.3d at 382, 392. Accordingly, this opinion reviews the 2017
LUC’s decision on remand and does not consider whether the Resort’s
prospective use of the water in Wells 1 and 9 complies with the LUC’s
constitutional public trust obligations to “preserve the rights of present
(continued . . .)
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The minority also contends that there is nothing in
Condition 10 that expressly provides the Resort with “fair
notice” that its authorization to use water from Wells 1 and 9
was subject to changing circumstances. Minority Op. at 4-5.
This contention assumes that the Resort was given permanent
authorization to use all brackish water in Wells 1 and 9 because
all such water is non-potable. It is far more logical to
conclude that the Resort would have been on notice that its
usage of Wells 1 and 9 for golf course irrigation would no
longer be permitted when the water was potable, i.e., suitable
for drinking under county water quality standards. As this
court has emphasized, “The public trust, by its very nature,
does not remain fixed for all time, but must conform to changing
needs and circumstances.” Waiāhole I, 94 Hawaiʻi at 135, 9 P.3d
at 447.
In concluding that Condition 10 of the Permit was
intended to prohibit the Resort from watering its golf course
with a public water resource suitable for drinking under county
water quality standards, this court is following a long line of
(. . . continued)
and future generations in the waters of the state,” which “precludes any
grant or assertion of vested rights to use water to the detriment of public
trust purposes[]” and “empowers the state to reexamine any prior use.” Kauai
Springs, Inc., 133 Hawaiʻi at 172, 324 P.3d at 982 (citing Waiāhole I, 94
Hawaiʻi at 141, 9 P.3d at 453).
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public trust doctrine rulings in which this court recognized
rights and obligations protected under the Hawaiʻi Constitution.
See King v. Oahu Ry. & Land Co., 11 Haw. 717, 725 (Haw. Terr.
1899) (holding that navigable waters are owned by the State in
public trust); State by Kobayashi v. Zimring, 58 Haw. 106, 121,
566 P.2d 725, 735 (1977) (concluding that lava extensions are
public land held in trust for the people of Hawaiʻi); Cty. of
Hawaii v. Sotomura, 55 Haw. 176, 183-84, 517 P.2d 57, 63 (1973)
(holding that land below the high water mark is a natural
resource owned by the State); In re Sanborn, 57 Haw. 585, 593-
94, 562 P.2d 771, 776 (1977) (stating that any purported land
court registration of land below the high water mark is
ineffective because such land is held in public trust); McBryde
Sugar Co. v. Robinson, 54 Haw. 174, 186-87, 504 P.2d 1330, 1339
(1973) (holding that the right to water was specifically and
definitely reserved for the people of Hawaiʻi); Waiāhole I, 94
Hawaiʻi at 132, 9 P.3d at 444 (“The state also bears an
affirmative duty to take the public trust into account in the
planning and allocation of water resources, and to protect
public trust uses whenever feasible.” (quotations and footnote
omitted) (quoting Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d
709, 728 (Cal. 1983))). Such rulings were made without
consideration of whether the landowners or impacted parties had
notice of the existence of those rights prior to the court’s
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disposition. See, e.g., Sotomura, 55 Haw. at 180, 517 P.2d at
61 (“We hold that registered ocean front property is subject to
the same burdens and incidents as unregistered land[.]” (citing
HRS § 501-81)); Oahu Ry. & Land Co., 11 Haw. at 736 (observing
that “it is doubtful if the State as a trustee for the public
could consent to” private condemnation of the waters of Honolulu
harbor); see generally Native Hawaiian Law: A Treatise, 76-148,
426-458 (Melody Kapilialoha MacKenzie ed. 2015) (discussing the
historical and current development of public trust doctrine and
water law in Hawaiʻi).
In none of these cases did we suppose that the
constitutional mandates of the public trust doctrine were
inoperable or unrecognizable because the parties did not have
express notice of the existence of the rights protected under
the doctrine. Instead, our cases indicate that State action
with regard to trust resources is inherently limited by and
subject to the State’s public trust duties. See Waiāhole I, 94
Hawaiʻi at 131, 9 P.3d at 443 (“This court has held that the
[public trust] doctrine would invalidate such measures,
sanctioned by statute but violative of the public trust, as: the
use of delegated eminent domain powers by a private party to
condemn a public harbor; the land court’s registration of
tidelands below the high water mark; and a sale of lava
extensions that did not promote a ‘valid public purpose.’”
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(citations omitted)); see also Oahu Ry. & Land Co., 11 Haw. at
725 (public harbor); In re Sanborn, 57 Haw. at 593-94, 562 P.2d
at 776 (land court registration below high water mark); Zimring,
58 Haw. at 121, 566 P.2d at 735 (lava extensions). As this
court has unequivocally stated, “if the public trust is to
retain any meaning and effect, it must recognize enduring public
rights in trust resources separate from, and superior to, the
prevailing private interests in the resources at any given
time.” Waiāhole I, 94 Hawaiʻi at 138, 9 P.3d at 450. The LUC’s
duty to protect and preserve Lāna‘i’s drinking water in trust for
future generations therefore inherently limits the Resort from
utilizing water in Wells 1 and 9 that is suitable for drinking
under county water quality standards. See id. at 131, 9 P.3d at
443; Kauai Springs, Inc., 133 Hawaiʻi at 172, 324 P.3d at 982
(“[T]he public trust protects domestic water use, in particular,
protecting an adequate supply of drinking water.”).
“[T]his court has repeatedly reaffirmed that the
State’s public trust obligations pursuant to article XI, section
1 of the Hawai‘i Constitution extend ‘to all water resources.’”
Umberger v. Dep’t of Land & Nat. Res., 140 Hawaii 500, 521, 403
P.3d 277, 298 (2017) (quoting Waiāhole I, 94 Hawaiʻi at 133, 9
P.3d at 455); accord Kauai Springs, Inc., 133 Hawaiʻi at 172, 324
P.3d at 982 (“[T]he public trust doctrine applies to all water
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resources without exception or distinction.” (alteration in
original)). The State thus has a constitutional obligation to
protect water for all future generations. Kauai Springs, Inc.,
133 Hawaiʻi at 172, 324 P.3d at 982 (“The public trust is,
therefore, the duty and authority to maintain the purity and
flow of our waters for future generations . . . .” (citing
Waiāhole I, 94 Hawaiʻi at 138, 9 P.3d at 450)). Accordingly,
“[a]n agency is not at liberty to abdicate its duty to uphold
and enforce rights guaranteed by the Hawaiʻi Constitution when
such rights are implicated by an agency action or decision.”
Mauna Kea Anaina Hou, 136 Hawaiʻi at 415, 363 P.3d at 263
(opinion of the court as to Part IV by Pollack, J.). The LUC
therefore could not have waived its duty to ensure that water
potable under county water quality standards from Wells 1 and 9
would not be permitted for golf course irrigation. Waiāhole I,
94 Hawaiʻi at 141, 9 P.3d at 453 (“The continuing authority of
the state over its water resources precludes any grant or
assertion of vested rights to use water to the detriment of
public trust purposes.”); Ching, 145 Hawai‘i at 170, 449 P.3d at
1168 (“The most basic aspect of the State’s trust duties is the
obligation ‘to protect and maintain the trust property and
regulate its use.’”). Thus, the LUC has a continuing duty to
evaluate the potability of the water in Wells 1 and 9 to ensure
that the Resort does not violate Condition 10 by using water for
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irrigation that is suitable for drinking under county water
quality standards, regardless of the chloride level of the
water.14
C. The 1991 Hearing and Findings of Fact Do Not Indicate the
1991 LUC Considered Brackish Water To Be Per Se Non-potable.
The 1991 LUC’s findings of fact are consistent with an
interpretation of potability that is based on whether water
meets the county’s water quality standards for drinking water
rather than whether water contains enough chlorides to qualify
as “brackish.”15 For instance, finding of fact 73 of the 1991
LUC Order stated that the “[g]roundwater underlying the proposed
14
The minority relies on this court’s decision in DW Aina to
contend that this opinion fails to give the Resort the “ascertainable
certainty” required in an administrative order. Minority Op. at 4-6 (citing
DW Aina Leʻa Dev., LLC v. Bridge Aina Leʻa, LLC, 134 Hawaiʻi 187, 215-16, 339
P.3d 685, 713-14 (2014)). The court in DW Aina was presented with a
contractual dispute over whether the LUC had adequately defined the term
“completed” as it related to affordable housing. DW Aina Leʻa Dev., LLC, 134
Hawaiʻi at 215-16, 339 P.3d at 713-14. Whether and when housing was
“completed” in that case did not concern the State’s public trust duties. In
pointed contrast, in this case, “potable” is imbedded with constitutional
implications under the public trust doctrine that extend beyond a permit
condition or administrative rule. See Ching, 145 Hawaiʻi at 178, 449 P.3d at
1176 (“[T]he State’s constitutional public trust obligations exist
independent of any statutory mandate and must be fulfilled regardless of
whether they coincide with any other legal duty.”); In re Conservation Dist.
Use Application HA-3568 (In re TMT), 143 Hawaiʻi 379, 415, 431 P.3d 752, 788
(2018) (Pollack, J., concurring) (“This court has indicated that an agency’s
public trust obligations may overlap with the agency’s statutory duties, and
it would follow that they may similarly overlap with duties imposed by an
administrative rule.”).
The minority further asserts that county water quality standards
fail to provide fair and predictable elements. Minority Op. at 3-4. As
stated, county water quality standards are those standards that the county
water agency would use in its domestic water system.
15
As noted, the term “brackish” is commonly defined as “somewhat
salty, distasteful.” Lanai Co., 105 Hawaiʻi at 299 n.10, 97 P.3d at 375 n.10.
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golf course at Manele is too brackish for drinking water.”
(Emphasis added.) By stating that some water is too brackish
for domestic use, the LUC indicated that there is water that is
brackish, but not so brackish as to render it non-potable under
then-existing standards for domestic use. The 1991 LUC thus
does not appear to have considered brackishness to be a binary,
yes-or-no trait that necessarily makes water non-potable, but
rather as one factor that is evaluated in determining
potability.
But this does not mean that the LUC intended that the
water in Wells 1 and 9 would always be considered non-potable
regardless of surrounding circumstances, nor that the LUC
intended that the designation would change only if the chloride
levels were to drop below the threshold of 250 ppm. Indeed,
there is no indication that the LUC contemplated the proposed
250 ppm threshold prior to imposing Condition 10, and it is
therefore significantly more likely that it considered “non-
potable” only in terms of county water quality standards rather
than any specific numerical value. Accordingly, the
circumstances in which the 1991 LUC Order was adopted also do
not present any reason to depart from the plain meaning of its
terms.
The minority and the Resort argue, however, that
various references in the LUC’s 1991 Findings of Fact and the
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testimony and questions posed at the original LUC hearings
suggest that the LUC viewed Wells 1 and 9 as permissible sources
of non-potable water for irrigation. Minority Op. at 13-17. A
court “must read the language of an administrative order in the
context of the entire order.” Lanai Co., 105 Hawai‘i at 310, 97
P.3d at 386 (emphasis added). Instead, the minority rejects the
common sense meaning of potable in favor of reliance on
disparate references in the testimony of selected witnesses in a
record exceeding 17,000 pages, including hundreds of pages of
hearing transcripts, to determine the 1991 LUC’s intent in
imposing Condition 10. See Minority Op. at 15-17. Equally
problematic is the minority’s reliance on the phrasing of
questions posed by counsel during the hearing to interpret the
meaning of a term in Condition 10. Minority Op. at 16. The
minority infers that because LSG’s lawyer, in referencing a
witness’s prior response during cross-examination, asked about
“a nonpotable or brackish water source” for the golf course, the
lawyer believed brackish was synonymous with non-potable.
Minority Op. at 16. The manner in which the question was posed
to the witness does not mean that the lawyer considered brackish
water and non-potable water to be the same; instead, it
highlights the analytical flaws of extrapolating from an
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interpretation of a lawyer’s question to determine the meaning
of a term in the 1991 LUC Order.16
It is plainly contrary to principles of statutory
construction in interpreting an administrative order to rely on
selected witness testimony and the phrasing of attorney
questions. See Guyton, 135 Hawai‘i at 378, 351 P.3d at 1144.
Instead, the plain meaning of the term “potable,” as made clear
by the entirety of the 1991 LUC Order, must prevail.
The language of Condition 10 and the circumstances in
which it was adopted indicate that the 1991 LUC did not intend
that all brackish water would be considered inherently non-
potable. By the 2017 LUC’s own admission, such a holding would
require this court to interpret the terms “potable” and “non-
potable” in a manner that is contrary to their “common sense”
meanings. We reject an interpretation of a term that is
contrary to its common sense meaning, especially in the absence
of far stronger indications that this is what was intended.
Further, such an interpretation would be contrary to public
16
Additionally, some of the testimony cited by the minority appears
to implicitly acknowledge that potability is an evolving concept that may
change with time. Minority Op. at 16. For example, James Kumagai, the
Resort’s expert witness on civil, sanitary, and environmental engineering,
testified that “Well 9 has proved to have higher chlorides than what we had
anticipated . . . . It’s brackish and we consider that right now nonpotable,
but suitable for landscape irrigation.” (Emphasis added.) If potability was
a static concept based only on whether chloride levels exceed a specific
threshold, there would be no reason for Kumagai to clarify that, as of that
moment, the Resort considered the brackish water in Well 9 to be non-potable.
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trust principles with which the LUC is presumed to have
complied. The 1991 LUC fulfilled its constitutional public
trust duties with respect to Condition 10 by crafting a standard
that turns on county water quality standards for drinking water
as they develop.
D. A Proper Interpretation of Condition 10 Permits a Correct
Analysis of the Effects of Leakage from the High Level Aquifer.
In Lanai Co., this court noted that the LUC had not
determined whether the Resort’s actions were the cause of
potable water leaking into Wells 1 and 9, and assuming that they
were, the LUC had not indicated whether the effect of such
actions would mean that potable water was being utilized under
Condition 10:
LUC makes no specific finding or conclusion as to whether [the
Resort] was using potable water. Additionally, it is not clear
from finding No. 30, whether the potable water leaking into Wells
No. 1 and 9 is a direct result of [the Resort’s] actions, or if
such leakage would occur irrespective of [the Resort’s] water
usage. Similarly, assuming [the Resort’s] use is affecting
potable water in the high level aquifer, the LUC did not indicate
whether such an effect would qualify as “utiliz[ing] the potable
water” under Condition No. 10.
Lanai Co., 105 Hawaiʻi at 316, 97 P.3d at 392 (emphases added)
(alteration in original). On remand, the 2017 LUC found that
the record was inconclusive as to the degree to which the
pumping of water from Wells 1 and 9 may cause the leakage of
water from other areas of the high level aquifer that are
currently used for potable drinking water. It further found
that there was no indication that any leakage has harmed
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existing or planned uses of water for domestic purposes.
Finally, the 2017 LUC concluded that the leakage “theory” is
inconsistent with the language of Condition 10 “in which
brackish water was described as non-potable, and in which
brackish water from Wells 1 and 9 [was] proposed for irrigation
of the Mānele Golf Course.”
Properly interpreting Condition 10 to prohibit the
Resort from utilizing water that meets county water quality
standards for domestic use resolves the issue of leakage.
Leakage would result in a violation of Condition 10 if the
commingling of freshwater with brackish water changes the
composition of the water in Wells 1 and 9 such that it becomes
suitable for domestic use under county water standards and the
Resort thereafter uses the water for irrigation. However, the
2017 LUC’s interpretation would permit utilization of the water
in Wells 1 or 9 regardless of whether leakage from the high
level aquifer renders the water suitable for domestic use under
county water quality standards, further evincing the flawed
nature of such an interpretation.
In addressing the issue of freshwater leakage, the
minority concludes that the 2017 LUC did not err in holding
that, “By drawing only from brackish Wells 1 and 9 in the high-
level aquifer, the Resort did not ‘utilize’ any other sources
per Condition 10.” Minority Op. at 17. As stated, under the
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2017 LUC interpretation, regardless of whether the Resort’s
pumping of water from Wells 1 and 9 causes leakage of potable
water from the high level aquifer into those wells, such leakage
does not constitute “utilization” of potable water from the high
level aquifer so as to violate Condition 10. This is because
the 2017 LUC would find that the commingling of freshwater with
brackish water renders such mixed water in Wells 1 and 9 as non-
potable and thus usable for golf course irrigation. This flawed
proposition highlights the illogical and non-common sense
interpretation that the 2017 LUC applies to Condition 10 in
equating non-potable water with brackish water.17
E. The 2017 LUC Did Not Clearly Err in Concluding That the Water
in Wells 1 and 9 Was Non-potable Under County Water Quality
Standards.
The 2017 LUC found that the water from Wells 1 and 9
would not currently be accepted as potable by the County of Maui
17
Indeed, the analysis applied by the 2017 LUC would allow the
Resort to pump water from Wells 1 and 9 with the full knowledge that potable
water was leaking from the high level aquifer as a result of its pumpage.
But even assuming that the Resort was unaware that its actions were causing
leakage, the language of Condition 10 makes no distinction as to whether the
Resort’s utilization of potable water is intentional or not; it is not
permitted. The minority would require “conclusive evidence of leakage, and
that leakage caused the designation of Wells 1 and 9 to change from
‘brackish’ to ‘potable’” in order to prove that the Resort was utilizing
water from a potable well. Minority Op. at 17 n.4 (emphasis added). Such a
reading clearly violates the public trust doctrine. If there is evidence of
potable water leaking from the high level aquifer into Wells 1 and 9, the
Resort will be in violation of Condition 10, regardless of whether the water
in Wells 1 and 9 remain non-potable. See Kauai Springs, Inc., 133 Hawaiʻi at
174, 324 P.3d at 984. Alternatively, the minority would require conclusive
evidence that the water utilized by the Resort “originated in the potable
wells.” Minority Op. at 17 n.4. It is unclear how the source of commingled
water can be shown by “conclusive evidence.”
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because of its chloride levels, and it cannot be said that this
finding was clearly erroneous given the evidence in the record.
The 2017 LUC therefore did not err in determining that the
Resort was in compliance with Condition 10. However, the State
has a continuing public trust duty to ensure the Resort’s
compliance with Condition 10 by evaluative monitoring of the
quality of water that the Resort uses for irrigation in relation
to the county water quality standards for drinking water.
Condition 10 would be violated if the Resort were to use water
for irrigation that was considered suitable for drinking under
county water quality standards, regardless of the chloride level
of the water.
The contention in Justice Wilson’s opinion, dissenting
as to Parts III(E) and IV, that the record does not establish
whether the water in Wells 1 and 9 contained potable water under
county water quality standards during the relevant time period
is unpersuasive. Wilson, J., Dissenting as to Parts III(E) and
IV at 21-23. The 2017 LUC found, and the record does not
indicate otherwise, that the County of Maui would not have
accepted the water in Wells 1 and 9 as potable. That finding is
not clearly erroneous, and the Resort accordingly did not
violate Condition 10 of the LUC’s administrative order.
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IV. CONCLUSION
For the foregoing reasons, the 2017 LUC Order is
affirmed to the extent that it is consistent with this opinion.
Alan T. Murakami /s/ Sabrina S. McKenna
(Moses K.N. Haia, III, with him
on the briefs) /s/ Richard W. Pollack
for appellant Lānaʻians for
Sensible Growth I join in Parts I—III(A)-(D) of
this opinion.
Bryan C. Yee
(Dawn Takeuchi-Apuna with him on /s/ Michael D. Wilson
the brief)
for appellee State Office of
Planning
Benjamin A. Kudo
(James K. Mee and Sarah M.
Simmons with him on the brief)
for appellee Lānaʻi Resorts, LLC
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