A ‘landmark decision’

LIHUE — In February, the state Supreme Court — in what has been called a landmark decision for Hawaii’s Public Trust Doctrine — sided with the County of Kauai by striking down a 2008 circuit court ruling that the Kauai Planning Commission “exceeded its jurisdiction” in denying Kauai Springs, Inc. permits for its operation.

Seven months later, and contrary to that ruling, the Koloa-based water bottling and distribution company’s doors remain open.

“They continue to operate,” said Attorney David Minkin, who was hired as special counsel to represent the county in the Kauai Springs case. “Working with the Planning Department, we have sent them a notice of violation telling them that, if they don’t shut down, we will start fining them and turn it over both at the Planning Commission level as well as the prosecutor’s office to go after them for violating the law.”

The notice was sent to Kauai Springs on Tuesday, following a site investigation of the property by the Planning Department a week before. It orders the company to cease and desist all water bottling and distribution activities. Failure to comply could result in fines of up to $10,000 per day, as well as criminal prosecution, the letter states.

Kauai Springs has been given until Oct. 14 to respond.

On Wednesday, at the request of Councilman Tim Bynum, Minkin briefed the Kauai County Council’s Planning Committee on the Supreme Court ruling in the case and its application and relevance to the law.

Hawaii’s Public Trust Doctrine states that, “For the benefit of present and future generations, the state and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the state … All public natural resources are held in trust by the state for the benefit of the people.”

Minkin said the Supreme Court judge ruled the Planning Commission made the right call in denying the permits. 

So what does the ruling mean moving forward?

“It means that, especially when water’s at issue, that every agency that has some duty or responsibility has to take a look at it from the constitutional perspective of the Public Trust Doctrine,” Minkin said. “You just can’t punt it and say, ‘Not my kuleana.’ You have to look at it. You have to evaluate it. You have to get information. And if you’re left with a question in the back of your mind that you don’t have enough information, it’s not the department, in this case the Planning Commission, it’s not their duty to go out and track down and get information.”

Instead, the applicant — in this case, Kauai Springs — must present the appropriate information.

“It basically shifts the burden,” Minkin said of the ruling.

Councilman Mel Rapozo questioned what good the Supreme Court decision is if the county doesn’t act on it. He said it’s time to put teeth behind it and stop Kauai Springs from utilizing the island’s natural resources illegally. 

“I think the public needs to know. Are we going to fine them? Are going to just send them letters? I mean, if it’s this landmark decision, we should be prosecuting,” Rapozo said.

Kauai Springs has a long-term agreement with the Knudsen Trust to obtain water from a spring at the base of Mount Kahili. The pipeline, which brings the water to company’s Koloa bottling facility, is owned by Grove Farm.

Deputy County Attorney Mauna Kea Trask said the ruling was a substantial document, 107 pages to be exact, and “took a while to digest.” 

“We are moving down that avenue,” he said of enforcement, adding that his hope is to reach a resolution without having to expend additional funds or go back to court.

Minkin said recent efforts to work things out with Kauai Springs’ legal counsel proved unsuccessful. 

“We’ve resolved it as much as I can, now the next step has to be taken,” he said to Rapozo. “And I’ve made the recommendation, I agree with you — my background is also law enforcement — and I think, yes, this needs to be shut down.”

Kauai Springs owner Jim Satterfield did not return phone calls or emails seeking comment.

For several years, the case went back and forth, with both sides filing appeals. In 2007, the Planning Commission denied Kauai Springs’ three permit.

Kauai Springs turned around and sued the commission over the denial of the permits.

In 2008, 5th Circuit Judge Kathleen Watanabe sided with Kauai Springs and ordered the county to issue the permits. 

“We felt, and the county felt, that was inappropriate … and we appealed it and we got the initial decision by the intermediate court,” which vacated the circuit court’s final judgement, Minkin said. “Applicant wasn’t happy with that and then it went up to the state Supreme Court, and the state Supreme Court went even further than the intermediate court did, to basically specify what our duties are as the county.”

The county has spent about $111,000, under the budget of $115,000, on the case, including the appeal, according to Minkin. 

Bynum said he is proud of the Planning Commission and county for taking the Public Trust Doctrine seriously. While the court case was long, with many ups and downs, it was important for the community, he said.

Chris D’Angelo, environment writer, can be reached at 245-0441 or cdangelo@thegardenisland.com.

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