A Twenty-Year Paper Trail, and a Board That Keeps Not Reading It
On August 14, the Board of Land and Natural Resources sat through nearly eight hours of testimony — kalo farmers, kūpuna, children, the mayor of Maui, the chair of the Office of Hawaiian Affairs — and then declined to hand Mahi Pono a 30-year water license. That is, on its face, a win for the East Maui communities who have been showing up to rooms like this one for a very long time. It is also, when you set it against the last two decades of paper, the least the board could do, arriving on a schedule that has less to do with good governance than with how many times a court can say the same thing before it starts to stick.
The permit that wouldn’t end
Water has been leaving East Maui’s streams for the benefit of someone else’s fields since the sugar era, when what’s now East Maui Irrigation Company first built the ditch-and-tunnel system that still moves it. Alexander & Baldwin ran that system for more than a century before selling 41,000 acres of former plantation land to Mahi Pono, a company backed by the Canadian pension fund PSP Investments, in a $262 million deal in December 2018. The sale came with a financial hook: if Mahi Pono couldn’t divert at least 30 million gallons of water a day, Alexander & Baldwin owed it a $62 million rebate. Mahi Pono took full ownership of the irrigation system itself in mid-2025. (Sit with that before continuing, let it really sink in.)
What Mahi Pono inherited was not a long-term water right. It was a one-year revocable permit, reissued annually since the early 2000s, that the state has kept renewing on a rolling basis instead of ever answering the underlying question of how much water East Maui’s streams can actually spare. A 2018 state water commission order called for full or partial restoration of flow to 25 East Maui streams. The revocable-permit machinery has continued running more or less parallel to that order rather than through it — an arrangement that functions, in practice, as an unbroken multi-decade lease that nobody in state government has ever had to justify as one.
What courts have already said, repeatedly
This is not a case where the board was operating in a gray area and got caught on a technicality once. It is a case where the Hawaiʻi judiciary has told the board the same thing, in increasingly unambiguous terms, across nearly half a dozen separate rulings. In September 2025, the Hawaiʻi Supreme Court held in Sierra Club v. Board of Land & Natural Resources, No. SCWC-22-0000516, that BLNR’s practice of renewing East Maui’s revocable permits without individualized findings violated Sierra Club’s due process rights — describing more than a decade of unscrutinized continuances as “particularly troubling.” In a related 2024 case, BLNR v. Crabtree, the same court characterized the board’s justification for its water claims as “manifestly and palpably without merit, so as to indicate bad faith.” A month later, the court ruled again, this time on a comparable Kauaʻi diversion permit that had been continued for almost two decades without a hearing.
None of these rulings arrived out of nowhere. They’re the accumulated output of Sierra Club of Hawaiʻi and Nā Moku Aupuni o Koʻolau Hui — a hui of kalo farmers and lineal descendants from the Keʻanae-Wailuanui ahupuaʻa — filing, losing at the agency level, and winning on appeal, year after year, permit after permit. The 2016 “Free the Streams” rally that marched from ʻIolani Palace to Alexander & Baldwin’s Bishop Street offices is a decade old at this point. The litigation it foreshadowed is still going.
The permit that started this round
The most recent chapter began in January, when Nā Moku challenged BLNR’s newly issued 2026 permit and the board’s refusal to hold the contested case hearing Nā Moku had requested. That permit authorized 41.72 million gallons a day — nearly double what was actually diverted the year before. On July 21, the Environmental Court ruled in Nā Moku Aupuni o Koʻolau Hui v. Kanakaʻole, No. 1CCV-26-0000011, that BLNR had again violated due process by denying the hearing, and separately failed to meet its constitutional obligation to protect Native Hawaiian traditional and customary practices. A companion case, Sierra Club v. Kanakaʻole, No. 1CCV-25-0002146, reached much the same conclusion. Pending that overdue hearing, the court capped diversions at 31.5 million gallons a day — about 25 percent below what the board had approved, with 6.5 million gallons a day carved out for Maui County’s Upcountry water system and the Kula Agricultural Park. (Again, sit with these numbers. It’s worth taking the time to fully digest what’s happening.)
The room that showed up
That’s the backdrop against which Friday’s meeting has to be read. The official item wasn’t the contested case hearing itself — it was a staff recommendation to pursue a 30-year water license for Mahi Pono, via a public auction and a direct lease to Maui County, that opponents said could authorize up to 88 million gallons a day. Days before the meeting, DLNR had to issue a public notice disavowing a doctored version of its own agenda that was circulating online, apparently edited to make the proposal look even more one-sided than the real one. Whatever the doctored version added, the real proposal was enough to draw an eight-hour hearing’s worth of opposition, and the board, after member James “Jay” Carpio moved to reject it, voted the recommendation down. What the board did approve was letting its chairperson appoint a hearing officer for the contested case it has been under a running series of court orders to hold since at least 2025.
What still hasn’t happened
Here is the part that doesn’t resolve into a tidy ending: the contested case hearing has not occurred. What happened on August 14 is that the board declined to make the underlying problem worse while it continues not holding the hearing it owes. That is a meaningfully better outcome than the alternative, and it came only after a public record that now includes a state Supreme Court calling the board’s conduct “particularly troubling” in one case and indicative of “bad faith” in another, a quarter-century of annually renewed “temporary” permits, and a doctored agenda that needed its own press release to correct. It’s worth asking what threshold of judicial rebuke and public turnout is actually required to get an agency to do, on the first pass, what the law already asks of it — because the answer, on this record, appears to be: more than any single ruling has provided so far, and apparently not less than eight hours of testimony and a stream of unfavorable case law with someone’s name on it every few months. The hearing officer hasn’t been named yet either.
Sources:
Native Hawaiian Legal Corporation, “Environmental Court Rules BLNR Violated Native Hawaiian Rights and Public Trust Duties, Orders Contested Case Hearing on East Maui Stream Diversions,” July 2026, https://nativehawaiianlegalcorp.org/environmental-court-rules-blnr-violated-native-hawaiian-rights-and-public-trust-duties-orders-contested-case-hearing-on-east-maui-stream-diversions/;
Honolulu Star-Advertiser, “Judge orders hearing on E. Maui water permit,” July 21, 2026, https://www.staradvertiser.com/2026/07/21/hawaii-news/judge-orders-hearing-on-e-maui-water-permit/;
Honolulu Star-Advertiser, “BLNR nixes long-term East Maui water license for Mahi Pono,” August 15, 2026, https://www.staradvertiser.com/2026/08/15/hawaii-news/blnr-nixes-long-term-east-maui-water-license-for-mahi-pono/;
Hawaiʻi Public Radio, “Hawaiʻi Supreme Court reaffirms water advocates’ rights to challenge stream water diversion permits,” September 10, 2025, https://www.hawaiipublicradio.org/local-news/2025-09-10/hawaii-supreme-court-reaffirms-water-advocates-rights-to-challenge-stream-water-diversion-permits;
Sierra Club v. Board of Land & Natural Resources, No. SCWC-22-0000516 (Haw. Sept. 5, 2025), opinion, https://www.courts.state.hi.us/wp-content/uploads/2025/09/SCWC-22-0000516.pdf;
Sierra Club of Hawaiʻi, testimony to BLNR re: Case No. SCWC-22-0000516 and BLNR v. Crabtree, 154 Hawaiʻi 113, 547 P.3d 446 (2024), October 10, 2025 Land Board submittal, https://dlnr.hawaii.gov/wp-content/uploads/2025/10/D-6T.pdf;
Honolulu Civil Beat, “The Fight Over The Future Of East Maui Water Returns To The State Land Board,” November 14, 2025, https://www.civilbeat.org/2025/11/the-fight-over-the-future-of-east-maui-water-returns-to-the-state-land-board/;
Department of Land and Natural Resources, “DLNR Clarifies Proposed East Maui Water Licenses Before BLNR,” news release, August 11, 2026, https://dlnr.hawaii.gov/blog/2026/08/11/nr26-96/;
Maui Now, “End of an era: Alexander & Baldwin transfers full ownership of East Maui Irrigation to Mahi Pono,” June 24, 2025, https://mauinow.com/2025/06/24/end-of-an-era-alexander-baldwin-transfers-full-ownership-of-east-maui-irrigation-to-mahi-pono/;
State of Hawaiʻi Public Meetings Calendar, Board of Land and Natural Resources meeting agenda, August 14, 2026, https://calendar.ehawaii.gov/calendar/meeting/77647/details.html.
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