Carmichael v. BLNR: Water Rights and Environmental Law Ruling

The case of Carmichael v. Board of Land and Natural Resources, decided by the Supreme Court of Hawai’i, addressed issues surrounding environmental compliance and public trust obligations. The court examined the legality of continued revocable water permits issued by the Board of Land and Natural Resources (BLNR), which authorized the diversion of significant water resources from East Maui streams.

Background of the Case

The case stemmed from BLNR’s issuance of revocable water permits to Alexander & Baldwin, Inc. (A&B) and East Maui Irrigation Co., Ltd. (EMI). These permits, originally intended to be temporary, allowed the diversion of more than 100 million gallons of water per day from East Maui streams. Despite statutory limits restricting such permits to one-year terms, the BLNR continued the permits on a “holdover” basis for over a decade without conducting environmental assessments (EA) under the Hawai’i Environmental Policy Act (HEPA).

In 2015, Healoha Carmichael and Nā Moku Aupuni o Ko’olau Hui, a Native Hawaiian organization, challenged the continuation of these permits. They argued that the permits violated HEPA and the public trust doctrine by failing to protect environmental and cultural resources. The circuit court granted the plaintiffs’ motion for partial summary judgment, declaring the permits invalid. The Intermediate Court of Appeals (ICA) reversed, leading to the Supreme Court’s review.

Legal Issues

The Supreme Court addressed several key issues:

1. Legality of Permit Continuation: Whether the BLNR’s practice of annually continuing revocable permits violated statutory restrictions limiting such permits to one year.
2. HEPA Compliance: Whether the continuation of the permits constituted “action” requiring an environmental assessment.
3. Public Trust Doctrine: Whether the BLNR fulfilled its obligations as a trustee of public trust resources.

Court’s Analysis and Decision

The Supreme Court vacated the ICA’s decision and remanded the case for further proceedings. The court’s key findings included:

• Permit Limitations: The court held that HRS §171-58 limits the disposition of water rights by temporary permits to a maximum term of one year. The BLNR’s continuation of the permits beyond this term was unauthorized.
• Environmental Review: The court determined that the continuation of the permits constituted “action” under HEPA, triggering the requirement for an environmental assessment. It emphasized that the BLNR’s failure to conduct such assessments was inconsistent with statutory mandates.
• Public Trust Obligations: The court criticized the BLNR for failing to demonstrate that its decisions served the “best interests of the State” as required by HRS §171-55. The court underscored that the BLNR’s role as a public trustee obligated it to prioritize the protection and management of water resources.

The Supreme Court’s decision in Carmichael v. Bd. of Land & Nat. Res. reinforces the importance of compliance with environmental laws and public trust principles. By clarifying the limitations on temporary permits and emphasizing the need for thorough environmental reviews, the court’s ruling serves as a pivotal precedent for managing Hawai’i’s natural resources.

Our Legal Expertise

At Whitcomb, Selinsky, PC, we understand the complexities of environmental compliance and public trust law. Contact us to navigate legal challenges related to resource management and environmental regulations.

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