Water rights contested

LIHUE — A case that began before the county planning commission and made its way to the highest court in the state continued Tuesday in Kauai’s circuit court, where a judge appeared on the verge of siding with a Koloa couple embroiled in the 13-year legal battle.

“The court is very familiar with the facts of this case,” Fifth Circuit Judge Kathleen Watanabe said, opening proceedings in a case she first handled over a decade ago, when the owners of a Koloa water bottling company contested the Kauai County Planning Commission’s decision to revoke the business’ water and land use permits.

Jim and Denise Satterfield are the co-owners and founders of Kauai Springs, which was shut down by the county earlier this year. Tuesday’s hearing was the latest in a seemingly unending string of appeals filed by both parties, starting in 2006 when the Satterfields contested the planning commission’s ruling in circuit court, where they won.

The county appealed that ruling, and the case headed to the Hawaii Intermediate Court of Appeals, which overturned Watanabe’s decision. Then, the Satterfields took the matter to the state Supreme Court, which remanded the case back to the county planning commission for clarification.

The planning commission hadn’t changed its mind in the intervening 13 years. The permits stayed revoked. The Satterfields appealed again, placing the case back in circuit court, before the same judge who heard it in 2008.

The issue has become complicated, but the arguments are essentially this: The Satterfields believe the planning commission has no authority to revoke their permits and did so because they are prejudiced against them. The planning commissioners’ decision, in the simplest possible terms, is that the Satterfields have no right to bottle and sell something that belongs to everyone and is owned by no one.

The Kauai Springs side of things

Oral arguments started with Gregory Meyers, the most recent attorney retained by the Satterfields.

Meyers began by telling a story about the inspiration for Kauai Springs, which he said came in the aftermath of Hurricane Iniki, when Satterfield saw the island’s residents struggling to find and access clean drinking water.

“The light clicked on with Mr. Satterfield and he realized he could help the people of Kauai,” he told Watanabe.

According to Meyers, the Satterfields started their business intending to work in accordance with the public trust doctrine established by the Hawaii Constitution and the water rights it is meant to protect and regulate.

Meyers also pointed out that Kauai Springs was originally denied its permits when the commission ruled against the recommendation of its own hearing officer, who determined that the Satterfields had met the burdens necessary to guarantee that their operation would not damage the public’s water resources.

“He said, ‘Give them their permits,’” Meyers said of the planning department officer. “But six members of the planning commission said, ‘Forget it.’ They didn’t want to deal with the issue of water rights, and it’s a big issue on this island.”

Watanabe interrupted to ask whether Meyers was implying that the commissioners decision hinged on protecting cultural and traditional aspects of the watershed, to which he replied that it was not entirely clear because deliberations were done in executive session but added that his understanding was “there was a big focus” on Kauai Springs “theoretically damaging” Native Hawaiian water rights.

Throughout his argument Meyers returned to a central tenant of the Satterfields’ argument, insisting there is no evidence of traditional use of the site where Kauai Springs taps a gravity-fed private water system that once supplied the Koloa Sugar Plantation on a plot of land on Maluhia Road.

The Satterfields also maintain that the amount of water their business consumes is such a small fraction of the pipeline’s overall output that any potential damage or diversion of the water would be negligible.

“We’re talking about 650 gallons out of 290,000 that flow through their property every day,” Meyers said. “They’re barely touching it.”

The county’s position &the judge’s questions

Deputy County Attorney Mark Bradbury opened statements on behalf of the county by explaining that, contrary to Meyers’ intimations that the commissioners decided the case based on biased or preconceived ideas about Kauai Springs and its owners, the planning commission “read in detail” the state Supreme Court’s opinion, which formed the basis of its decision with regard to its duty to protect water resources.

“Did the planning commission do just that?” Watanabe asked.

Part of the contested issue at Tuesday’s hearing was a stipulation in the Supreme Court’s order remanding the case to the planning commission, requiring it to clarify the reasons behind revoking the Kauai Springs zoning permits.

When Watanabe asked what justification the commissioners relied on when making their decision, Bradbury said, “What I’m referring to are the reasonable allegations of harm testified about by the four or five people who testified back in 2007.”

A January 2007 planning commission meeting on the Kauai Springs permits drew members of the public who came out in support both sides of the issue. Among those opposing the Satterfields and their water bottling business were Native Hawaiians.

“Aloha,” Puanani Rogers began in her brief address to the commission. “Please, nobody has the right to sell our water, much less a foreigner — somebody that does not live here, does not know our aina, does not know how we feel about these things. Please do something right today and deny this.”

Makaala Kaaumoana, also testified at the 2007 planning commission meeting, calling Kauai Springs use of the water “the least of your considerations,” citing a hierarchy of needs governing state officials’ decisions on how to manage water that places commercial enterprise behind environmental, cultural and recreational concerns.

Bradbury echoed those statements over a decade later, arguing that any diversion of the natural flow of water can have unintended effects on taro fields, fish and flora downstream, saying, “You’re supposed to maintain the water in its natural state.”

Watanabe questioned him on the Satterfields’ argument regarding the relatively small amount of water being diverted from the daily flow and grilled him on whether the commission had any direct evidence that the Kauai Springs operation would damage the watershed.

“I’m still waiting to hear what those specific findings are,” she said.

“Everybody knows water is life. Every drop of water creates life,” Bradbury argued, explaining that regardless of the amount or how seemingly indirect the long-term impact, any diversion of the natural flow of the watershed could have unintended and unanticipated effects on the surrounding environment

“You’re looking at water that runs down a hillside and affects everyone downstream. That’s basically the commission’s position,” he said. “I’m not from Hawaii, and I have trouble understanding it, but Hawaiians apparently understand it quite well.”

A ruling delayed with a hint

Watanabe allowed the opportunity for rebuttal, and, at the end of Meyers’ statements, asked him what specific remedy the Satterfields were seeking,

“That you grant Kauai Springs the permits they’ve been asking for for 13 years,” he said.

Watanabe closed the hearing with instructions for both lawyers to prepare written statements presenting findings of facts and conclusions as well as proposed orders, explaining that she will review the submitted documents, amend them as necessary, and hand down a ruling inside of three weeks.

She declined to tip her hand one way or another but told the attorneys and the 25 or so members of the public who showed up in support of the Satterfields that, based on the proceedings, they could probably guess “how this is gonna go down.”