Resume bottling — for now

LIHUE — After closing up shop and referring its clients to competitors, Kauai Springs, Inc. is back in business — at least temporarily — said owner Jim Satterfield.

On Sept. 30, the County of Kauai Planning Department sent a letter to the Koloa-based water bottling and distribution company ordering it to immediately cease and desist all activities. At that time, Planning said Kauai Springs’ continued operation contradicted a recent ruling by the Hawaii Supreme Court, and that failing to shut down could result in fines of up to $10,000 per day and criminal prosecution.

Satterfield said he had no choice but to comply.

“We stopped business on the 30th and have lost all our accounts,” he said.

Less than two weeks later, on Oct. 9, however, the County of Kauai Planning Department suspended its cease and desist order for one month in order to “afford (Kauai Springs) the unfettered opportunity for due process before the Planning Commission.”

In a letter to Robert Thomas, the attorney representing Kauai Springs, Director of Planning Michael Dahilig wrote that upon further review of the Supreme Court’s decision in the case, the Commission “must hold further proceedings upon remand.”

“As opposing party to the matter given the contested case nature of the application, we believe further action by the Planning Commission is necessary to effectuate the Hawaii Supreme Court’s decision,” he wrote.

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

In a written statement Tuesday to The Garden Island, Dahilig said the Supreme Court remanded the case to the Planning Department for further proceedings consistent with their opinion of law.

“We have made clear to Kauai Springs’ counsel that if the applicant does not wish to supplement the record and application with information consistent with the Supreme Court’s opinion, we will seek to close out their application within a month,” he said. “The applicant has recently made gestures to the Department with the intent to reapply, and the Commission cannot entertain two open applications for the same use for the same parcel. We suspended the C&D order to allow the potential for a Supreme Court ordered remand proceeding to occur without further confusing the record.

By phone Tuesday, Thomas said the Supreme Court ruling was long and complex, but that his reading of it was that it did not order Kauai Springs to shut down.

“It sounds like they have taken a second look at the order from the Supreme Court and agree with us,” he said of the Planning Department.

As of Tuesday morning, neither Thomas not Satterfield was aware of the Oct. 9 letter suspending the cease and desist order. The letter was sent only to Thomas, who said he was out of town and unable to receive it.

After losing nearly all his accounts, Satterfield called the letter “too little, too late.”

“They told me to shut down on the 30th, so we did,” he said. “And now this?”

Satterfield said the situation has been hard on his family and confusing, and that to regain accounts that took 12 years to secure would be next to impossible. However, he plans to try.

To date, the Planning Commission has not taken any formal action to implement the Supreme Court decision. Additionally, Dahilig said the commission has not received any correspondence from Thomas or Kauai Springs affirmatively requesting implementation.

“Nevertheless, we believe the record should be clear whether your client has taken its opportunity to provide further evidence consistent with the principles laid out in the decision and receive an amended decision from the Commission concerning the above referenced permit applications,” Dahilig wrote to Thomas.

If the Commission does not receive additional evidence from Kauai Springs by Nov. 8, Dahilig said the department would seek a default decision to implement its C&D order.

Satterfield said the Supreme Court ruling shifts the burden and that it is up to him to prove his operation is not negatively impacting the community or environment. He plans to do that via a supplemental application and hydrology report by the end of the 30-day period.

“We have zero impact,” he said of Kauai Springs. “What we are taking out of that spring is less than a drop in the bucket. And we’re not taking it, we’re getting it from Grove Farm.”

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.

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.”

Attorney David Minkin, who was hired as special counsel to represent the county in the Kauai Springs case, could not be reached for comment Tuesday.

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

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