State Supreme Court Rules Counties Must Protect Coasts

by Steven Stein – THE GARDEN ISLAND

City and county governments have a responsibility to protect coastal waters, the Hawai Supreme Court has ruled.

In a 60-page unanimous decision issued Friday, the court delighted state environmental groups by requiring city and county governments to take an active role in coastal water regulation.

“This is a landmark decision,” said Judy Dalton, a Kauai Sierra Club spokesperson. “It puts counties on notice that yes indeed, they are responsible for what happens on our coastlines.”

The court justified its ruling by invoking Article XI, Section 7 of the state Constitution, which requires the conservation of coastal waters for the public.

“The courts have realized that the public-trust doctrine is a mandate in our Constitution that should finally give us some leverage to get the counties to comply,” Dalton said.

The ruling applies to the Hokulia resort development project near Kailua-Kona on the Big Island, which is owned by 1250 Oceanside Partners, a Honolulu development company.

In September 2000, heavy rains sent runoff from the development into nearby Kealakekua Bay, launching six years of conflict between Hokulia and local environmentalists.

On Oct. 30, 2000, the Kelly Plaintiffs, four Big Island environmentalists upset with the discharge into Kealakekua Bay, filed a complaint against Oceanside and the state Department of Health with the Big Island Circuit Court.

In 2002, Circuit Judge Ronald Ibarra sided with the Kelly Plaintiffs, ruling that the state and county had a responsibility to protect coastal waters near Hokulia.

Ibarra also found the state and county at fault for not protecting these waters. Although the high court’s ruling affirmed Ibarra’s decision to hold state and county governments responsible, it did not find the state and county at fault.

According to David Kimo Frankel, a lawyer for the Sierra Club who filed an amicus brief on behalf of Protect Keopuka Hana, a group of Native Hawaiian cultural practitioners and environmentalists who sued the state and Hawaii County, the state and county were let off the hook because “evidence wasn’t properly submitted.”

Representatives from Hokulia and the state and county were unavailable for comment yesterday.

Although the court’s ruling pleased Frankel, he said it will be difficult to enforce because of the state’s limited resources.

“We all know that the Department of Health and the Kauai Public Works Department don’t have enough staff to investigate and monitor developments to ensure they’re not polluting water quality,” Frankel said. “We’ll see if agencies take these responsibilities seriously. If the county and state don’t uphold the public-trust responsibility, there will be a lot more lawsuits.”