Friday, April 4, 2014


DOWN THE RABBIT HOLE, DOWN THE DRAIN: Once again a land use ruling by Kaua`i 5th Circuit "junior" Judge, Katherine Watanabe who never met a claim of vested rights she didn't like- or a developer whose claims to have a right to do anything they damned-well please for that matter- has been overturned by the Supreme Court, at great time and expense for one of the few public interest law firms around.

According to a press release from Earthjustice

The Hawaiʻi Supreme Court recently issued another landmark decision on water resources and the public trust. The case, Kauai Springs v. Kauai Planning Commission, involved a company bottling and selling spring water on the island of Kauaʻi.

The court’s opinion strongly reinforced principles that water is a public trust, and that private companies profiting off these resources bear the burden of justifying their diversions and showing the resources will not be jeopardized...

The court’s decision is its latest statement on the public trust doctrine, the legal principle that the government holds water resources in trust for certain presumptively favored “trust purposes” including resource protection. This case builds on the court’s historic precedent in 2000 in the Waiāhole case, where Native Hawaiian and rural communities represented by Earthjustice successfully compelled the restoration of stream flows diverted by former plantation companies.

Some highlights from the court’s latest ruling include:

  • Contrary to the company’s claims of “grandfathered” diversions, “no person or entity has automatic vested rights to water.”
  • Private commercial users of water bear the burden of affirmatively justifying their uses. “[A] lack of information from the applicant is exactly the reason an agency is empowered to deny a proposed use of a public trust resource.”
  • This burden includes showing the use is reasonable and beneficial and consistent with trust purposes, has no practicable alternative water source, and implements mitigation of the cumulative impact of diversions.
  • Government agencies have “duties under the public trust independent of the permit requirements,” including a duty to hold private commercial users to their burden under the public trust...

(This case began in 2006 when the Planning Commission of Kauaʻi County cited the bottling company for unlawfully operating without required land use permits. Left with unresolved questions whether the diversion and sale of water was permissible, the commission denied the request for after-the-fact permits. On appeal, the lower court reversed and ordered the permits issued. The intermediate appeals court rescinded the permits, but sent the case back for more hearings. Finally, the supreme court ruled that the commission was justified in denying the permits without better information.)

Watenabe seems capable of bizarre rulings that fly in the face of Hawai`i State Supreme Court decisions in including this one which was based on the far-reaching Waiaholewater case that determined that water to be a constitutional public trust.

In addition, apparently even the broad "smart growth" concept that says that the local community should determine growth is an alien concept to Watenabe. She's made "give-backs"- things like roads parks and other amenities demanded by our local planning commission in exchange for development rights- all but impossible to attach to development approvals without some strict yet nebulous almost unattainable concept of a "direct nexus" being applied, as in the case of struck-down attempts to make the resort developers of that monstrosity right across from Safeway help to alleviate the traffic nightmare they helped create.

How many overturns does it take to unscrew a judge from her seat after her 10 year term is up? Many hope she's over her limit.

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