Ka Wai Ola - Office of Hawaiian Affairs, Volume 32, Number 8, 1 August 2015 — In the matter of contested case hearing Waiʻola o Molokaʻi Inc. [ARTICLE+ILLUSTRATION]

In the matter of contested case hearing Waiʻola o Molokaʻi Inc.

Contributed by Native Hawaiian Legal Corp. n its efforts to develop light industry and small-scale tourism on Moloka'i, Moloka'i Ranch applied for a permit to pump over one million gallons of ground water per day from the Kamiloloa aquifer system. Evidence showed that allowing the ranch to pump that mueh ground water from the proposed well could have had an adverse effect on the nearshore oeean environment in whieh limu and certain fish thrived. Despite this, the State of Hawai'i's Commission on Water Resource Management (Commission) granted the ranch's permit application. Thereafter, several Native Hawaiians who claimed to

depend on these marine resources for subsistence purposes challenged the Commission's decision granting the ranch's permit application.

The Department of Hawaiian Home Lands (DHHL) also challenged the decision claiming that pumping that mueh groundwater from the Kamiloloa t aquifer would reduce the amount of water available to homesteaders on Hawai-

ian homelands and effectively violate its right to a reservation of water for such use. In reversing the decision granting this permit, the Hawai'i Supreme Court ruled that the Commission on Water Resource Management failed to discharge its puhlie trust

duty to protect Native Hawaiian traditional and customary practices and that the permit applicant bore the burden of demonstrating that

the proposed well would not affect such practices. In doing so, the * Court noted that "the absence of evidence 5^ that the proposed use would affect native Hawaiians' rights was insufficient to meet the

burden imposed upon [the permit applicant] by the puhlie trust doctrine, the Hawai'i Constitution, and the Code." The Court also ruled that the Commission's failure to determine whether the Ranch had met its burden to establish that its pro-

posed use of water did not interfere with DHHL's reservation rights effectively violated DHHL's superior rights to a reservation of water from the same aquifer for future

homestead uses. ■ This is part of a series of case highlights provided by the Native Hawaiian Legal Corp.

The Wai'ola o Moloka'i ine. case arose when the state Commission on Water Resource Management granted a permit to Moloka'i Ranch to pump more than 1 million gallons of ground water eaeh day from the Kamiloloa aquifer system. - Photo: Ama Johnson