Musings: Doctrinaire

Invoking the Hawaii Public Trust Doctrine for projects involving water use is becoming de riguer among those who are pursuing various anti-something agendas.

Most recently, we see it being touted by Friends of Mahaulepu in an petition to Gov. Ige warning there's a “big problem” on Kauai because someone wants to start a dairy and is voluntarily doing an EIS to address community concerns.

Uh, what was the problem again?

The group bizarrely believes that it's a violation of the trust doctrine for Grove Farm to provide Hawaii Dairy Farms with water from Waita Reservoir. As The Garden Island reports:

“It’s not really theirs to sell,” [group leader Bridget] Hammerquist said of the water from Waita.

Bridget is woefully misinformed, and TGI, sadly, perpetuates her ignorance with its regurgitative reporting. Here's how it really works:

In 1989 the state required all water users to declare their water source — diversion, well pumping, etc. — to the state Commission on Water Resource Management. That data was and still is used to determine allocation of water, provided that you have a permit from DLNR.

Grove Farm has a permit to divert water into the Waita reservoir and deliver it to farmers, and that includes a dairy. What's more, the Mahaulepu acreage was designated Important Ag Lands in large part because it has a viable water source for agriculture.

Under the faulty reasoning of the petition, all IAL designations are meaningless and no one can use any water in the state because it “all belongs to the public.”

Wrong. In reality, water resources don't actually “belong” to the public. According to the pertinent sections of the State Constitution, emphasis added:

“All public natural resources are held in trust by the State for the benefit of the people.” 

Which means the State decides how public water sources — streams and aquifers — are used.

And yes, the State is obligated “to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.” Which does not mean water can't be used, or that citizens have veto power. “Final delegated power rests in the hands of the commission.”

Though Bridget tried to use the Hawaii Supreme Court decision on Kauai Springs  to back her claims, that ruling never said water can't be sold. It merely affirmed that private commercial users of water bear the burden of justifying their uses.

The Constitution further states, emphasis added:

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.

A dairy that seeks to produce milk for local consumption — as HDF has promised to do, despite repeated lies by opponents that it's going to “ship it to China” — is clearly in furtherance of the self-sufficiency of the State.

Furthermore, the State has a constitutional mandate to promote diversified agriculture, which is why agriculture is a protected use of water, warranting its own plan under the state water code.

Bridget's ignorance isn't limited to the public trust doctrine and water code. She is also quoted as saying:

“We’re trying. We’re trying to be heard. We don’t want to be the little island in the north that becomes their waste dump for a product that they make here and take elsewhere and leave the waste behind.”

Oh, I see. But it's perfectly OK for other places to be the waste dump for stuff that is shipped to Kauai because The Garden Island is just too pure and pristine to actually produce its own food — or any of its industrial and manufacturing needs for that matter.

Meanwhile, hapless tourists are signing the petition, oblivious to the impact they and their rental cars are having on the environment, or how construction of their own resort rooms and vacation rentals changed things.

The group's petition further states: “HDF must not be permitted to operate a dairy in Mahaulepu.” 

Mmmm, so why demand an EIS when you won't accept it, make like you're even the tiniest bit reasonable when you're not?

We'll soon see whether reason or rhetoric prevails as the Council pursues what appears to be a near unanimous goal of providing affordable housing. Councilman Arryl Kaneshiro seemed the most realistic when he told TGI:

There is a need for development because there is a housing need, so if we need houses, we need to develop — they’re not just going to show up.

Councilman Gary Hooser was the most rhetorical in his call to “aggressively expand the available inventory of affordable housing through public/private partnerships”—  even as he seeks to derail such construction in the Lihue-Hanamaulu area, where nearly all the new affordable inventory is planned, by pursuing a ground water management designation for the area.

Gary went on to say he intends to ensure “the very largest businesses in Kauai County are complying with the laws governing property taxes and (grading and grubbing).”

Oh, so you going after the Hyatt, Wilcox Memorial Hospital, Manu Kai (PMRF), St. Regis, Ohana Pacific Management, Aston Aloha Beach, Sheraton Kauai, Kauai Beach Resort and Bayada Home Health Care now, Gary? Cuz that's the most recent line-up of the Top 10 Kauai businesses.

Or are you still singling out the seed companies, even though Pioneer is the only one in the top 10, ranking number six? 

Or perhaps you, like Bridget, aren't concerned about facts, you're just going for effect.