Lana'ians for Sensible Growth v. Land Use Commission.

463 P.3d 1153, 146 Haw. 496

• Court: Hawaii Supreme Court
• Decided: May 15, 2020
• Docket: SCOT-17-0000526
• Status: Published

Opinion

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Electronically Filed Supreme Court SCOT-XX-XXXXXXX 15-MAY-2020 10:31 AM IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

LĀNAʻIANS FOR SENSIBLE GROWTH, Intervenor-Appellant,

vs.

LAND USE COMMISSION, COUNTY OF MAUI DEPARTMENT OF PLANNING, STATE OFFICE OF PLANNING, Appellees,

and

LĀNAʻI RESORTS, LLC, Petitioner-Appellee.

SCOT-XX-XXXXXXX

APPEAL FROM THE LAND USE COMMISSION (Agency Docket No. A89-649)

MAY 15, 2020

McKENNA, POLLACK, JJ., WITH WILSON, J., JOINING IN PARTS I— III(A)-(D) AND DISSENTING IN PARTS III(E) AND IV, AND WITH RECKTENWALD, C.J., CONCURRING IN THE JUDGMENT AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY POLLACK, J., EXCEPT AS TO PARTS III(E) AND IV

In 2017, the Land Use Commission of the State of

Hawaiʻi determined that, when it prohibited a resort from

irrigating its golf course with “potable” water as a condition ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

of its administrative order issued almost thirty years earlier,

it did not mean “potable” by any common definition of the term.

Instead, the Land Use Commission found that the term was

intended to carry a special meaning that the Commission does not

define--other than to say it excludes brackish water that

contains chlorides over an unspecified level. Based upon this

special interpretation of “potable,” the Land Use Commission

determined that the resort had not violated the administrative

order. But neither the text of its administrative order nor the

circumstances in which it was adopted offer any reason to depart

from the plain meaning of the condition, which was intended to

prohibit the resort from watering its golf course with water

that is suitable for drinking under county water quality

standards. This plain meaning is consistent with the common

meaning of “potable” that this court recognized in its previous

ruling in this case and serves to fulfill the constitutional

duties with which the Land Use Commission is presumed to have

complied.

We thus conclude that the Land Use Commission erred in

its 2017 Order by interpreting a condition in its administrative

order to mean that brackish water is per se “non-potable.”

Accordingly, we also consider whether the Commission erred in

determining that the resort did not violate this condition under

its plain meaning, which prohibits the utilization for golf

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course irrigation water suitable for drinking under the county’s

water quality standards.

I. BACKGROUND

A. The Initial Proceedings and the 1991 LUC Order

This case began in November 1989, when Lānaʻi Resorts

(the Resort) filed a Petition for Land Use District Boundary

Amendment (Petition) with the Land Use Commission of the State

of Hawaiʻi (LUC).1 The Petition sought “to effect district

reclassification” of a large tract of rural and agricultural

land so that the Resort could build an eighteen-hole golf course

in Mānele on the island of Lānaʻi. The LUC permitted Lānaʻians

for Sensible Growth (LSG) to intervene in the matter.2 In April

1991, after six days of hearings, the LUC issued an order

approving the Resort’s Petition subject to several conditions

(1991 LUC Order). Among these conditions was Condition 10,

which gave rise to the litigation now before this court.

Condition 10 states that the Resort is not allowed to use

potable water to irrigate the golf course:

1 Several entities have owned the Resort since the original boundary amendment proceedings in 1989. For clarity, these entities are collectively referred to as “the Resort.” 2 LSG is “an unincorporated association of Lanai residents” who “used the subject property for hiking, subsistence and recreational fishing, and for the enjoyment and appreciation of the ancient Hawaiian archaeological sites located there.”

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10. [The Resort] shall not utilize the potable water from the high-level groundwater aquifer for golf course irrigation use, and shall instead develop and utilize only alternative non-potable sources of water (e.g., brackish water, reclaimed sewage effluent) for golf course irrigation requirements.

In addition, [the Resort] shall comply with the requirements imposed upon [it] by the State Commission on Water Resource Management as outlined in the State Commission on Water Resource Management’s Resubmittal - Petition for Designating the Island of Lanai as a Water Management Area, dated March 29, 1990.

(Emphasis added.) The “Resubmittal” referred to in the second

paragraph of Condition 10 refers to the State Commission on

Water Resource Management’s (CWRM) March 1990 recommendation

against designating the island of Lānaʻi as a water management

area.3

B. The 1996 LUC Order

In October 1993, the LUC issued an Order to Show Cause

(OSC) to the Resort, directing it to show why certain portions

of its golf course should not revert to their former land use

classification or otherwise be changed to a more appropriate

classification. The OSC stated that the LUC had reason to

believe the Resort had failed to comply with Condition 10’s

requirement that it develop and utilize alternative sources of

non-potable water for golf course irrigation.

3 In May 1989, the CWRM received a “petition to designate the Island of Lanai as a Water Management Area for the purpose of regulating the use of ground-water resources” because the “resort development on Lanai in the future would cause water demand to exceed the available water supply.”

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Following twelve days of hearings regarding the OSC,

the LUC issued its Findings of Fact, Conclusions of Law, and

Decision and Order (1996 LUC Order). The LUC found that the

Resort was irrigating the golf course primarily with non-

potable, brackish water from two wells located within the high

level aquifer: Well 1 and Well 9.4 The LUC concluded that this

use did not comply with Condition 10 and accordingly ordered the

Resort to “immediately cease and desist any use of water from

the high level aquifer for golf course irrigation requirements.”

The Resort appealed the LUC’s decision to the Circuit

Court of the Second Circuit, which reversed the 1996 LUC Order.

See Lanai Co. v. Land Use Comm’n, 105 Hawaiʻi 296, 306, 97 P.3d

372, 382 (2004). We affirmed on review, holding that “the LUC

erred in interpreting Condition No. 10 as precluding the use of

‘any’ or all water from the high level aquifer.” Id. at 319, 97

P.3d at 395. This court explained that Condition 10 bars the

use of only potable water from the high-level aquifer, and it

allows the Resort to use non-potable water for golf course

irrigation. Id. at 310, 97 P.3d at 386. We stated that

“potable” is ordinarily defined as “suitable for drinking” but

4 Section 20.24.020 of the Maui County Code, the LUC noted, “define[d] potable water as water containing less than 250 milligram per liter of chlorides.” Nonetheless, the LUC found that “[t]he potability of any water source does not depend on any particular level of chloride concentration.”

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noted that the parties disagreed as to the meaning the 1991 LUC

intended when it used the term in Condition 10. Id. at 299 n.8,

97 P.3d at 375 n.8 (2004) (quoting Webster’s Seventh New

Collegiate Dictionary 664 (1965)). The evidence did not

conclusively establish that the aquifer contained only potable

water, we held, and, indeed, the LUC’s findings of fact

“suggest[ed] that the use of [Wells 1 and 9], and their brackish

water supply, was permissible.” Id. at 313, 97 P.3d at 389.

Because the 1996 LUC Order was ambiguous, we remanded the case

to the LUC “for clarification of its findings . . . as to

whether [the Resort] used potable water from the high level

aquifer, in violation of Condition No. 10.” Id. at 319, 97 P.3d

at 395.

C. The 2010 LUC Order

On remand in 2010, the LUC vacated its 1996 Order and

granted the Resort’s Motion for Modification of Condition 10

(2010 LUC Order). The newly-modified Condition 10 provided, in

relevant part, the following:

a. [The Resort] shall not use ground water to irrigate the Mānele Golf Course, driving range and other associated landscaping if the chloride concentration measured at the well head is 250 milligrams per liter (250 mg/l) or less.

b. In the event the chloride concentration measurement of ground water to irrigate the Mānele Golf Course, driving range and associated landscaping falls below 250 mg/l, [the Resort] shall cease use of the affected well(s) producing such ground water for irrigation purposes until such time as the chloride concentration measurement of the water drawn from such wells rises above 250 mg/l.

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The case was again appealed, and on review the Intermediate

Court of Appeals (ICA) held that the 2010 LUC Order was invalid

because LSG was not given a “full and fair opportunity to have

its evidence heard and considered post-remand.” Lanaians for

Sensible Growth v. Lanai Resorts, LLC, Nos. CAAP-XX-XXXXXXX,

CAAP-XX-XXXXXXX, 2016 WL 1123383 (App. Mar. 21, 2016) (mem.).

D. The 2017 LUC Order

The LUC held further hearings following the second

remand and on June 1, 2017, issued the Findings of Fact,

Conclusions of Law and Decision and Order that are the subject

of this appeal (2017 LUC Order). In determining whether the

Resort had violated Condition 10 when it used brackish water

from Wells 1 and 9 for golf course irrigation, the LUC explained

that the “common sense definition” of potable is “drinkable,”

and that the word “brackish” means “somewhat salty” and

“distasteful.”5 (Quoting Lanai Co., 105 Hawaii at 299 n.10, 97

P.3d at 375 n.10.) Based on testimony from the hearings, the

LUC determined that “[w]ater with chloride concentrations above

5 The LUC noted that the Hawai‘i Department of Health defines “potable water” as “water free from impurities in amounts sufficient to cause disease or harmful physiological effects.” The terms potable and non-potable “do not exist in State or federal primary drinking water regulations,” the LUC stated.

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250 ppm or mg/L is considered ‘brackish,’” but water above this

threshold “may also be considered ‘potable.’”6

The LUC noted that the United States Environmental

Protection Agency’s (EPA) “secondary standards” define “brackish

water” as “water having chlorides of 250 mg/L or above.” When

chloride levels exceed 250 mg/L, the LUC stated, customers begin

to complain of “taste issues” and problems arise “with the water

system itself such as corrosion and deposits in the pipelines.”

The LUC also explained that “in practice, county water

departments generally limit chloride levels of water within

their municipal system to less than 160mg/L, or at most, under

the EPA’s secondary standard of 250 mg/L.”

The LUC found, however, that chlorides are considered

to be a “secondary contaminant” because they affect only the

“aesthetic qualities” of drinking water. In other words,

chloride levels are not regulated by standards designed to

protect public health. The Hawai‘i Department of Health (DOH)

would allow public water systems to provide drinking water with

chloride levels in excess of 250 mg/L, the LUC found, and some

public water systems have done so in the past. It is also

“typical,” the LUC stated, “for county water supplies to use

6 One milligram (mg) per liter (l) is equal to one part per million (ppm), and the LUC appears to have used the terms interchangeably.

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water pumped at or above 250 ppm in their domestic water

systems, blended into other water.” There are currently potable

wells on Oʻahu that produce water with over 250 mg/L chlorides,

the LUC found, and Maui wells have likely also done so in the

past. Thus, the LUC reasoned that “it is possible for water

with chloride concentrations of greater than 250 ppm to be used

as potable water . . . either directly or blended with other

potable sources . . . so long as other drinking water standards

are met.”7

Turning to the wells used to irrigate the golf course,

the LUC explained that “[f]rom 1948 to present, the documented

chloride levels of water from Well 1 have always been greater

than 250 mg/L.” The LUC found that Well 9 was “connected to the

brackish water system” in 1992, and “[f]rom 1993 to present, the

documented chloride levels of the water from [the well] have

always been greater than 250 mg/L.” “No party,” the LUC found,

“presented any evidence that the chloride levels of either Well

1 or 9 has ever dropped below 250 mg/L.” Wells 1 and 9 “draw

the only known high-level ground water in the state that is

brackish, as opposed to fresh,” the LUC stated. And, although

7 The LUC also concluded that “the record contains inconclusive evidence as to the degree to which the pumping of water from Wells 1 and 9 in the Pālāwai Basin may cause the leakage of water from other areas of the high level aquifer that are currently used for potable drinking water.”

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Wells 1 and 9 had been tested for potability and found to be

free of primary contaminants, the LUC determined that they would

“not be accepted by the County[ of Maui] as potable wells” due

to their chloride levels.

The LUC found that “it was reasonable to conclude that

the water from Wells 1 and 9 may be considered ‘potable’” under

the term’s “common sense meaning.” The LUC reasoned, however,

that when it was used in Condition 10, “potable” had “a special

interpretation other than its common or general meaning,” as

evidenced by the inclusion of “the category of ‘brackish’ water

as a specific example . . . [of] an ‘alternate source’ of

water.” Due to the “unique existence of brackish high-level

water” in Wells 1 and 9, those involved in the original hearing

may have incorrectly assumed that the high level aquifer

contained only freshwater, the LUC explained. Thus, “in the

specific context of this Docket and Condition 10, ‘brackish’

water was considered not to be potable,” the LUC found, “but

rather a source of water ‘alternate’ to the ‘potable’ water

supplies” found in the high level aquifer.

The LUC therefore concluded that the specific language

of Condition 10 indicated that the term “potable” was not used

in accordance with its common sense meaning, and the condition

“specifically excluded from ‘potability’ brackish water of a

kind that is used elsewhere in these islands for drinking.” The

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LUC stated that the Resort presented “substantial credible

evidence” that the water used to irrigate the golf course “was

and is brackish under the specific meaning of the language in

Condition 10 in the 1991 [LUC] Order, and therefore an allowable

alternate source of water.”

The LUC also addressed the public trust doctrine

explaining that “[u]nder the public trust, the state has both

the authority and duty to preserve the rights of present and

future generations in the waters of the state.” (Quoting In re

Water Use Permit Applications (Waiāhole I), 94 Hawaiʻi 97, 141, 9

P.3d 409, 443 (2000).) Additionally, the LUC noted that it was

required to “consider whether [the Resort’s] use negatively

affects past, current or future uses of potable water from the

high-level aquifer.” Although the evidence regarding “the

potential long-term effect of withdrawals from Wells 1 and 9 on

drinking water wells” on Lānaʻi was “ambiguous,” the LUC found,

“no party [] raised a reasonable allegation of harm against that

or any other public trust use of water.” Therefore, the LUC

concluded that the Resort “made an affirmative showing that its

use of Wells 1 and 9 to irrigate Mānele Golf Course does not

conflict and is consistent with public trust principles and

purposes.” The 1996 LUC Order was vacated by the 2017 LUC

because of its determination that the Resort “proved its

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compliance with Condition No. 10 by a preponderance of the

evidence.”

LSG filed a direct appeal from the 2017 LUC Order to

this court.

II. STANDARDS OF REVIEW

Pursuant to Hawaiʻi Revised Statutes (HRS) § 205-19

(Supp. 2016), this court reviews LUC decisions under the

standards set forth in the judicial review provision of the

Hawai‘i Administrative Procedures Act, HRS § 91-14(g). HRS § 91-

14(g) (Supp. 2016) provides as follows:

Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

This court has further clarified that

[c]onclusions of law are reviewed de novo, pursuant to subsections (1), (2) and (4); questions regarding procedural defects are reviewable under subsection (3); findings of fact (FOF) are reviewable under the clearly

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erroneous standard, pursuant to subsection (5), and an agency’s exercise of discretion is reviewed under the arbitrary and capricious standard, pursuant to subsection (6).

Kauai Springs, Inc. v. Planning Comm’n of Kaua‘i, 133 Hawai‘i

141, 164, 324 P.3d 951, 974 (2014).

III. DISCUSSION

The 2017 LUC determined that brackish water is per se

“non-potable” within the meaning of Condition 10,

notwithstanding that this meaning is contrary to the “common

sense” definition of the term. However, given the text of

Condition 10, the presumption that the 1991 LUC complied with

its constitutional public trust duties, and the circumstances in

which the condition was adopted, it is apparent that the 1991

LUC intended to use the term “potable” in accordance with its

common sense meaning rather than a special interpretation under

which water with chloride levels higher than an unspecified

number is inherently non-potable. This is to say that Condition

10 prohibits the Resort from irrigating its golf course with

water suitable for drinking under the county’s water quality

standards.

A. The 2017 LUC’s Interpretation of Condition 10 Is Contrary to Its Plain Meaning, Which Prohibits Golf Course Irrigation with Water that Is Suitable for Drinking under County Water Quality Standards.

The 2017 LUC concluded that the plain language of

Condition 10 indicates that, counter to the common sense meaning

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of its terms, brackish water is necessarily “non-potable” within

the meaning of the condition. In interpreting the text of

Condition 10, the general principles of statutory construction

apply. See Boswell v. Brazos Elec. Power Co-op., Inc., 910

S.W.2d 593, 599 (Tex. App. 1995) (“Rules of statutory

construction apply equally to the construction of an

administrative order.”) (citing Trapp v. Shell Oil Co., 198

S.W.2d 424, 439 (Tex. 1946))); State v. Guyton, 135 Hawai‘i 372,

378, 351 P.3d 1138, 1144 (2015) (applying canons of statutory

construction to a court order); Int’l Bhd. of Elec. Workers,

Local 1357 v. Hawaiian Tel. Co., 68 Haw. 316, 323, 713 P.2d 943,

950 (1986) (applying canons of statutory construction to an

administrative rule). If the language of the order is

unambiguous and applying it in its literal sense would not

produce a result that is absurd, unjust, or at odds with

governing law, we are bound to enforce the plain meaning of the

administrative order. See Guyton, 135 Hawai‘i at 378, 351 P.3d

at 1144. We are only free to depart from this plain meaning if

there is some indication that a term was intended to be “given a

special interpretation other than its common and general

meaning.” Singleton v. Liquor Comm’n, 111 Hawai‘i 234, 244, 140

P.3d 1014, 1024 (2006).

The 2017 LUC found such an indication in the language

of Condition 10, which includes brackish water as a possible 14 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

example of non-potable water. The 2017 LUC expressly

acknowledged that the water from Wells 1 and 9 could be

considered “potable” under the common sense meaning of the word.

It however reasoned that, by stating that the Resort was

required to “develop and utilize only alternative non-potable

sources of water (e.g., brackish water, reclaimed sewage

effluent),” Condition 10 clearly indicated that brackish water

was considered “non-potable” for purposes of the condition, and

the term must therefore carry a “special interpretation” other

than its common sense meaning. (Emphasis added.)

But “e.g.”, an abbreviation for the Latin phrase

exempli gratia, simply means “for example.” Black’s Law

Dictionary 717 (11th ed. 2019). The inclusion of brackish water

following the abbreviation indicates only that brackish water is

an example of water that could be “non-potable” if the water

qualifies as such under the word’s ordinary meaning. In

contrast, the term “i.e.”, an abbreviation for the Latin phrase

id est, means “that is.” Black’s Law Dictionary 895 (11th ed.

2019). Thus, when a term is meant to be interchangeable with or

definitional of an affected term, rather than just a possible

example, “i.e.” is used. See DePierre v. United States, 564

U.S. 70, 80 (2011) (using “i.e.” to demonstrate that cocaine

hydrochloride and powder cocaine are the same substance);

Droplets, Inc. v. eBay, Inc., No. 2:11-CV-401-JRG-RSP, 2014 WL

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4217376 at *7 (E.D. Tex. Aug. 22, 2014) (finding that “i.e.” is

a definitional expression while “e.g.” is merely an explanatory

expression); Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364,

1373 (Fed. Cir. 2014) (noting that “i.e.” serves as a

definitional phrase that provides clarity compared to “e.g.”

which serves to provide an example); Hoseman v. Weinschneider

(In re Weinschneider), 42 Collier Bankr.Cas.2d 1860, 1999 WL

676519, at *3 n.3 (Bankr. N.D. Ill. Aug. 30, 1999) (using “i.e.”

to demonstrate that a name is interchangeable with an acronym).

The 2017 LUC altered the established meaning of “e.g.” by

finding that brackish water is per se non-potable because the

term “e.g.” was used. This nullifies the distinction between

“i.e.” and “e.g.” as it converts “e.g.” into a definitional

phrase, rendering brackish water as an interchangeable term for

non-potable.

Thus, the 2017 LUC’s interpretation divorces the term

“brackish” from Condition 10’s overarching requirement that the

water utilized by the Resort be non-potable in the first

instance. (“[The Resort] shall not utilize the potable water

from the high-level groundwater aquifer for golf course

irrigation use[.]”) Simply being brackish, however, does not

make water non-potable within the meaning of Condition 10. The

key inquiry is instead whether the water at issue fulfills the

common meaning of the term “potable,” which this court has

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stated to be “suitable for drinking.” Lanai Co. v. Land Use

Comm’n, 105 Hawai‘i 296, 299 n.8, 97 P.3d 372, 375 n.8 (2004)

(quoting Webster’s Seventh New Collegiate Dictionary 664

(1965)). Brackish water is therefore “potable” if it is

suitable for drinking under county water quality standards and

“non-potable” if it is not.

Tellingly, neither the 2017 LUC nor the Chief

Justice’s opinion concurring in the judgment and dissenting

(minority), which accepts the specialized meaning adopted by the

2017 LUC, has offered an alternative definition of “non-

potable.”8 Because they eschew the common definition of the

terms of Condition 10 in favor of a “special interpretation,”

their analysis is untethered to any specific test that can be

applied in the future. It is thus wholly unclear what water

would qualify as non-potable other than the brackish water and

reclaimed sewage effluent that are expressly mentioned in

Condition 10.

8 In support of its revamping of the definition of “potable,” the minority points to the second paragraph of Condition 10 that requires the Resort to comply with the requirements imposed by the CWRM Resubmittal, which appears to include an authorization for the CWRM chairperson to reinstitute a water-management-area designation proceeding if certain indications of an impending water shortage exist. Minority Op. at 19-20; see infra note 9. But this authorization cannot change the meanings of the terms used in Condition 10, which are fixed based on the LUC’s intention at the time the condition was imposed.

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Conversely, applying the plain language of Condition

10 in accordance with its common meaning does not produce an

absurd or unjust result. Instead, it effectuates the purpose of

Condition 10: to protect Lānaʻi’s drinking water supply for use

by the general public. The provision does not expressly

identify all brackish water as a permissible source of water for

golf course irrigation, nor does it present any other reason to

deviate from the plain meaning of its terms. This court is

therefore not at liberty to do so, and we thus reject the 2017

LUC’s “special interpretation.”

B. The LUC Is Presumed To Have Complied with Its Constitutional Public Trust Duties, Including the Preservation of Water for Domestic Use.

The plain reading of Condition 10 is reinforced by the

presumption that the LUC complied with its public trust

obligations. Waiāhole I, 94 Hawai‘i 97, 135, 9 P.3d 409, 447

(2000) (“The public trust is a dual concept of sovereign right

and responsibility.”). Under our precedent, “agency decisions

affecting public trust resources carry a presumption of

validity.” Id. at 143, 9 P.3d at 455. Thus, logically, if an

administrative order is reasonably susceptible to an

interpretation that would not meet the agency’s public trust

obligations and one that would properly fulfill those duties, we

are obligated to adopt the latter. Cf. Morita v. Gorak, 145

Hawai‘i 385, 391, 453 P.3d 205, 211 (2019); In re Doe, 96 Hawaiʻi

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73, 81, 26 P.3d 562, 570 (2001) (“[W]here a statute is

susceptible of two constructions, by one of which grave and

doubtful constitutional questions arise and by the other of

which such questions are avoided, our duty is [to] adopt the

latter.” (quoting Jones v. United States, 529 U.S. 848, 857

(2000))). In other words, the 1991 LUC is presumed to have

reviewed and granted the Resort’s Petition in a manner that was

consistent with its constitutional public trust duties, and this

court must interpret Condition 10 in light of this commitment.

As the 2017 LUC recognized, these duties include an

obligation to protect and preserve water for domestic use by the

public with a particular focus on “protecting an adequate supply

of drinking water.” Kauai Springs, Inc. v. Planning Comm‘n of

Kaua‘i, 133 Hawai‘i 141, 172, 324 P.3d 951, 982 (2014) (citing

Waiāhole I, 94 Hawai‘i at 136–37, 9 P.3d at 449–50). Further,

the LUC possesses a continuing constitutional obligation to

ensure that the measures it imposes to protect public trust

resources are implemented and complied with. See Kelly v. 1250

Oceanside Partners, 111 Hawai‘i 205, 231, 140 P.3d 985, 1011

(2006) (holding that an agency has a continuing public trust

duty “not only [to] issue permits after prescribed measures

appear to be in compliance with state regulation, but also to

ensure that the prescribed measures are actually being

implemented”). 19 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

From this perspective, it is apparent that Condition

10 serves to protect and preserve the waters of Lānaʻi for

domestic use by prohibiting the Resort from irrigating its golf

course with water that would otherwise be used as drinking

water. Thus, whether the water in Wells 1 and 9 is “potable”

for purposes of Condition 10 would not turn on whether the

chloride concentration exceeds a given level--for which there is

no evidence that the 1991 LUC contemplated when it first imposed

the condition.

Indeed, the 1991 LUC would have violated its public

trust duties if it had intended “potable” water to convey the

special, non-common sense interpretation adopted by the 2017 LUC

and endorsed by the minority. Permitting the Resort an

indefinite license to irrigate its golf course using any water

with chloride levels in excess of a given level would not

adequately preserve and protect Lānaʻi’s drinking water supply in

the long term because, as technology develops and climate change

likely fundamentally alters the availability of fresh water,

“brackish” water may become needed for domestic use. It would

assuredly be counter to the State’s public trust obligations to

permit a private commercial resort to irrigate its golf course

with water that the public needs for daily living, and the 2017

LUC’s special interpretation does little to prevent this

outcome. See Waiāhole I, 94 Hawai‘i at 138, 9 P.3d at 450 20 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

(“[A]lthough its purpose has evolved over time, the public trust

has never been understood to safeguard rights of exclusive use

for private commercial gain.”).

The minority would have this court instead rely on the

CWRM’s review of the monthly monitoring reports that Condition

10 requires the Resort to submit to hold that the LUC’s public

trust obligations have been satisfied.9 Minority Op. at 19-20.

9 Condition 10 states that the Resort shall comply with the conditions set forth in the CWRM Resubmittal, which recommended the following actions to protect Lāna‘i’s water supply:

1. Require [the Resort] to immediately commence monthly reporting of water use to the [CWRM], under the authority of Chapter 174C-83, HRS, which would include pumpage, water level, temperature, and chloride measurements from all wells and shafts;

2. In addition to monthly water use reporting and pursuant to Secs. 174C-43 & 44, HRS, require [the Resort] to monitor the hydrologic situation so that if and when ground-water withdrawals reach the 80-percent-of-sustainable-yield rate, the [Resort] can expeditiously institute public informational meetings in collaboration with the [CWRM] to discuss mitigative measures;

3. Require [the Resort] to formulate a water shortage plan that would outline actions to be taken by the [Resort] in the event a water shortage situation occurs. This plan shall be approved by the [CWRM] and shall be used in regulating water use on Lanai if the [CWRM] should exercise its declaratory powers of a water emergency pursuant to Section 174C-62(g) of the State Water Code. A draft of this plan should be available for public and [CWRM] review no later than the beginning of October 1990 and shall be approved by the [CWRM] no later than January 1991;

4. That the [CWRM] hold annual public informational meetings on Lanai during the month of October to furnish and receive information regarding the island’s water conditions. The public shall be duly notified of such meetings;

5. Authorize the Chairperson to re-institute water- management-area designation proceedings and, hence, re-

(continued . . .) 21 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

While these reports are relevant to the State’s continuing

public trust duty to monitor the Resort’s compliance with

Condition 10, the submission of monthly water reports prepared

by the Resort would not by itself assure the required level of

protection and preservation of Lāna‘i’s water resources. Ching

v. Case, 145 Hawai‘i 148, 170, 449 P.3d 1146, 1168 (2019) (“The

most basic aspect of the State’s trust duties is the obligation

‘to protect and maintain the trust property and regulate its

use’” which includes a duty “to reasonably monitor the trust

property,” to ensure that “a trustee fulfills the mandate of

‘elementary trust law’ that trust property not be permitted to

‘fall into ruin on the [the trustee’s] watch’” (alteration in

original)).

The CWRM’s powers are intended to be used to respond

to and mitigate a water shortage once it has begun. See HRS

(. . . continued)

evaluations of ground-water conditions on the island if and when:

a. The state water-level of any production well falls below one-half its original elevation above mean sea level, or

b. Any non-potable alternative source of supply contained in the [Resort’s] water development plan fails to materialize and full land development continues as scheduled.

c. Items 1, 2, and 3 are not fulfilled by [the Resort].

d. If source water uses exceeds 4.3 [million gallons per day].

22 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

§ 174C-62.10 By contrast, Condition 10’s prohibition on the use

of potable water serves to help prevent such a shortage from

arising in the first place. If the “potable” distinction in

Condition 10 is properly interpreted to vary based on whether

10 HRS § 174C-62 (2011) provides as follows:

(a) The commission shall formulate a plan for implementation during periods of water shortage. As a part of the plan, the commission shall adopt a reasonable system of permit classification according to source of water supply, method of extraction or diversion, use of water, or a combination thereof.

(b) The commission, by rule, may declare that a water shortage exists within all or part of an area when insufficient water is available to meet the requirements of the permit system or when conditions are such as to require a temporary reduction in total water use within the area to protect water resources from serious harm. The commission shall publish a set of criteria for determining when a water shortage exists.

(c) In accordance with the plan adopted under subsection (a), the commission may impose such restrictions on one or more classes of permits as may be necessary to protect the water resources of the area from serious harm and to restore them to their previous condition.

. . . .

(g) If an emergency condition arises due to a water shortage within any area, whether within or outside of a water management area, and if the commission finds that the restrictions imposed under subsection (c) are not sufficient to protect the public health, safety, or welfare, or the health of animals, fish, or aquatic life, or a public water supply, or recreational, municipal, agricultural, or other reasonable uses, the commission may issue orders reciting the existence of such an emergency and requiring that such actions as the commission deems necessary to meet the emergency be taken, including but not limited to apportioning, rotating, limiting, or prohibiting the use of the water resources of the area. Any party to whom an emergency order is directed may challenge such an order but shall immediately comply with the order, pending disposition of the party’s challenge. The commission shall give precedence to a hearing on such challenge over all other pending matters.

23 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

the water is of a quality that the county water agency would, at

that time, deem suitable for domestic use, the provision

fulfills the LUC’s public trust duty to ensure that the public’s

use of the limited natural resource is always prioritized over

the irrigation of a private commercial golf course, regardless

of whether Lānaʻi’s water supply is actively threatened.11 See

Kauai Springs, Inc., 133 Hawai‘i at 174, 324 P.3d at 984 (noting

that the public trust doctrine obligates an agency to consider

“whether the proposed use is consistent with,” inter alia, “the

protection of domestic water use” and to subject commercial uses

to “a high level of scrutiny”). The position asserted by the

minority clearly would not protect and preserve the public trust

as it concludes that all brackish water is non-potable, thus

allowing perpetual commercial use of a public water resource to

irrigate the Resort’s golf course unless the CWRM determines

that there exists a water shortage on Lāna‘i of sufficient

11 County water quality standards necessarily take into consideration the DOH and the EPA’s safety regulations. See Hawai‘i Administrative Rules §§ 11-20-2, 11-20-4 to 11-20-7, 11-21-2; 40 C.F.R. §§ 141.2, 141.61-.66 (2020). However, more than just safety considerations inform a county water agency’s evaluation of the suitability of water for domestic use. A host of secondary considerations such as taste, appearance, odor, the cost and feasibility of purification or other processing, and the availability of alternative sources may affect whether a county water agency views a water source as suited for domestic use. See EPA, Secondary Drinking Water Standards: Guidance for Nuisance Chemicals (2017) (listing various chemicals that do not threaten water safety but may negatively affect the desirability of water for drinking), https://www.epa.gov/dwstandardsregulations/secondary-drinking-water- standards-guidance-nuisance-chemicals [https://perma.cc/NT4B-6MAE].

24 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

severity to require mitigation measures.12 The 2017 LUC’s

interpretation therefore renders Condition 10 ineffectual in

preserving Lāna‘i’s public water resource for future generations

in derogation of the public trust. Waiāhole I, 94 Hawai‘i at

139, 9 P.3d at 451 (“The second clause of article XI, section 1

[of the Hawaiʻi Constitution] provides that the state ‘shall

promote the development and utilization of [water] resources in

a manner consistent with their conservation and in furtherance

of the self-sufficiency of the State.’” (second alteration in

Further, the interpretation advocated by the minority

would rely on the Resort to self-report the composition of the

water in Wells 1 and 9. As we have held, “an agency of the

State must perform its statutory function in a manner that

fulfills the State’s affirmative constitutional obligations.”

Mauna Kea Anaina Hou v. BLNR, 136 Hawai‘i 376, 414, 363 P.3d 224,

262 (2015) (opinion of the court as to Part IV by Pollack, J.).

12 The minority claims to agree that the Resort is not allowed perpetual use of the water in Wells 1 and 9. Minority Op. at 11. Yet its reading of Condition 10 specifically provides for this outcome. As the minority itself states, “if Wells 1 and 9 were made part of Lāna‘i’s potable water system – in other words, if they no longer were ‘brackish’,” then the Resort “[o]f course” could not use the water. Minority Op. at 11. This reading of Condition 10 means that water would have to be no longer brackish for it to be made part of Lāna‘i’s potable water system, ignoring the scientific reality that brackish water can be potable. Consequently, the minority allows the perpetual use of potable water.

25 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

The State’s affirmative duty to protect and preserve

constitutional rights is by its very nature not delegable to a

private entity. See Ka Pa‘akai O Ka‘Aina v. Land Use Comm’n, 94

Hawai‘i 31, 50–51, 7 P.3d 1068, 1087–88 (2000). And, manifestly,

it is not reasonable for a trustee to delegate the supervision

of a third party’s compliance with an agreement that is designed

to protect trust property to the third party itself. Ching, 145

Hawai‘i at 181, 449 P.3d at 1179 (“It is self-evident that, as a

general matter, it is not reasonable for a trustee to delegate

the supervision of a lessee’s compliance with the terms of a

lease of trust property to the lessee.”); see also In re Estate

of Dwight, 67 Haw. 139, 146, 681 P.2d 563, 568 (1984) (“A

trustee is under a duty to use the care and skill of a [person]

of ordinary prudence to preserve the trust property.” (citing

Bishop v. Pittman, 33 Haw. 647, 654 (Haw. Terr. 1935))); cf.

Halderman v. Pennhurst State Sch. & Hosp., 526 F.Supp. 428, 433

(E.D. Pa. 1981) (“The Commonwealth defendants appear to take the

position that they should be able to monitor their own

compliance with the Court’s Orders. This would be somewhat akin

to requesting the fox to guard the henhouse.”).

The Hawaiʻi Constitution requires the State to engage

in evaluative monitoring of the wells with regard to the

county’s standards for domestic water usage to protect against

the conflict of interest inherent in self-reporting. Ching, 145 26 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

Hawai‘i at 178, 449 P.3d at 1176 (holding that the State has a

“constitutional trust obligation” to reasonably monitor the

lessee to ensure that the lessee actually complies with the

conditions of the lease); Kelly, 111 Hawai‘i at 231, 140 P.3d at

1011 (concluding that the State had a continuing public trust

duty to reasonably monitor the developer to ensure that the

permit conditions are being followed). By engaging in

reasonable monitoring, the State can thus determine on an

ongoing basis whether the Resort has violated Condition 10 by

irrigating its golf course with water that the county water

agency would at that time deem suitable for domestic use. The

1991 LUC would have fulfilled its public trust duties by

crafting such a standard that can evolve with time and

contemporary conditions, including the changing environment and

developing technologies. Waiāhole I, 94 Hawaiʻi at 137, 9 P.3d

at 449 (“[W]e recognize domestic water use as a purpose of the

state water resources trust.”). This court therefore presumes

that the common sense meaning of potable water is indeed what

the LUC intended in Condition 10.13

13 As noted, the appeal in this case was taken following our remand to the LUC to determine whether the Resort “was using potable water from the high level aquifer” in violation of Condition 10. Lanai Co., 105 Hawaiʻi at 306, 316, 97 P.3d at 382, 392. Accordingly, this opinion reviews the 2017 LUC’s decision on remand and does not consider whether the Resort’s prospective use of the water in Wells 1 and 9 complies with the LUC’s constitutional public trust obligations to “preserve the rights of present

(continued . . .) 27 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

The minority also contends that there is nothing in

Condition 10 that expressly provides the Resort with “fair

notice” that its authorization to use water from Wells 1 and 9

was subject to changing circumstances. Minority Op. at 4-5.

This contention assumes that the Resort was given permanent

authorization to use all brackish water in Wells 1 and 9 because

all such water is non-potable. It is far more logical to

conclude that the Resort would have been on notice that its

usage of Wells 1 and 9 for golf course irrigation would no

longer be permitted when the water was potable, i.e., suitable

for drinking under county water quality standards. As this

court has emphasized, “The public trust, by its very nature,

does not remain fixed for all time, but must conform to changing

needs and circumstances.” Waiāhole I, 94 Hawaiʻi at 135, 9 P.3d

at 447.

In concluding that Condition 10 of the Permit was

intended to prohibit the Resort from watering its golf course

with a public water resource suitable for drinking under county

water quality standards, this court is following a long line of

and future generations in the waters of the state,” which “precludes any grant or assertion of vested rights to use water to the detriment of public trust purposes[]” and “empowers the state to reexamine any prior use.” Kauai Springs, Inc., 133 Hawaiʻi at 172, 324 P.3d at 982 (citing Waiāhole I, 94 Hawaiʻi at 141, 9 P.3d at 453).

28 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

public trust doctrine rulings in which this court recognized

rights and obligations protected under the Hawaiʻi Constitution.

See King v. Oahu Ry. & Land Co., 11 Haw. 717, 725 (Haw. Terr.

1899) (holding that navigable waters are owned by the State in

public trust); State by Kobayashi v. Zimring, 58 Haw. 106, 121,

566 P.2d 725, 735 (1977) (concluding that lava extensions are

public land held in trust for the people of Hawaiʻi); Cty. of

Hawaii v. Sotomura, 55 Haw. 176, 183-84, 517 P.2d 57, 63 (1973)

(holding that land below the high water mark is a natural

resource owned by the State); In re Sanborn, 57 Haw. 585, 593-

94, 562 P.2d 771, 776 (1977) (stating that any purported land

court registration of land below the high water mark is

ineffective because such land is held in public trust); McBryde

Sugar Co. v. Robinson, 54 Haw. 174, 186-87, 504 P.2d 1330, 1339

(1973) (holding that the right to water was specifically and

definitely reserved for the people of Hawaiʻi); Waiāhole I, 94

Hawaiʻi at 132, 9 P.3d at 444 (“The state also bears an

affirmative duty to take the public trust into account in the

planning and allocation of water resources, and to protect

public trust uses whenever feasible.” (quotations and footnote

omitted) (quoting Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d

709, 728 (Cal. 1983))). Such rulings were made without

consideration of whether the landowners or impacted parties had

notice of the existence of those rights prior to the court’s 29 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

disposition. See, e.g., Sotomura, 55 Haw. at 180, 517 P.2d at

61 (“We hold that registered ocean front property is subject to

the same burdens and incidents as unregistered land[.]” (citing

HRS § 501-81)); Oahu Ry. & Land Co., 11 Haw. at 736 (observing

that “it is doubtful if the State as a trustee for the public

could consent to” private condemnation of the waters of Honolulu

harbor); see generally Native Hawaiian Law: A Treatise, 76-148,

426-458 (Melody Kapilialoha MacKenzie ed. 2015) (discussing the

historical and current development of public trust doctrine and

water law in Hawaiʻi).

In none of these cases did we suppose that the

constitutional mandates of the public trust doctrine were

inoperable or unrecognizable because the parties did not have

express notice of the existence of the rights protected under

the doctrine. Instead, our cases indicate that State action

with regard to trust resources is inherently limited by and

subject to the State’s public trust duties. See Waiāhole I, 94

Hawaiʻi at 131, 9 P.3d at 443 (“This court has held that the

[public trust] doctrine would invalidate such measures,

sanctioned by statute but violative of the public trust, as: the

use of delegated eminent domain powers by a private party to

condemn a public harbor; the land court’s registration of

tidelands below the high water mark; and a sale of lava

extensions that did not promote a ‘valid public purpose.’”

30 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

(citations omitted)); see also Oahu Ry. & Land Co., 11 Haw. at

725 (public harbor); In re Sanborn, 57 Haw. at 593-94, 562 P.2d

at 776 (land court registration below high water mark); Zimring,

58 Haw. at 121, 566 P.2d at 735 (lava extensions). As this

court has unequivocally stated, “if the public trust is to

retain any meaning and effect, it must recognize enduring public

rights in trust resources separate from, and superior to, the

prevailing private interests in the resources at any given

time.” Waiāhole I, 94 Hawaiʻi at 138, 9 P.3d at 450. The LUC’s

duty to protect and preserve Lāna‘i’s drinking water in trust for

future generations therefore inherently limits the Resort from

utilizing water in Wells 1 and 9 that is suitable for drinking

under county water quality standards. See id. at 131, 9 P.3d at

443; Kauai Springs, Inc., 133 Hawaiʻi at 172, 324 P.3d at 982

(“[T]he public trust protects domestic water use, in particular,

protecting an adequate supply of drinking water.”).

“[T]his court has repeatedly reaffirmed that the

State’s public trust obligations pursuant to article XI, section

1 of the Hawai‘i Constitution extend ‘to all water resources.’”

Umberger v. Dep’t of Land & Nat. Res., 140 Hawaii 500, 521, 403

P.3d 277, 298 (2017) (quoting Waiāhole I, 94 Hawaiʻi at 133, 9

P.3d at 455); accord Kauai Springs, Inc., 133 Hawaiʻi at 172, 324

P.3d at 982 (“[T]he public trust doctrine applies to all water

31 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

resources without exception or distinction.” (alteration in

original)). The State thus has a constitutional obligation to

protect water for all future generations. Kauai Springs, Inc.,

133 Hawaiʻi at 172, 324 P.3d at 982 (“The public trust is,

therefore, the duty and authority to maintain the purity and

flow of our waters for future generations . . . .” (citing

Waiāhole I, 94 Hawaiʻi at 138, 9 P.3d at 450)). Accordingly,

“[a]n agency is not at liberty to abdicate its duty to uphold

and enforce rights guaranteed by the Hawaiʻi Constitution when

such rights are implicated by an agency action or decision.”

Mauna Kea Anaina Hou, 136 Hawaiʻi at 415, 363 P.3d at 263

(opinion of the court as to Part IV by Pollack, J.). The LUC

therefore could not have waived its duty to ensure that water

potable under county water quality standards from Wells 1 and 9

would not be permitted for golf course irrigation. Waiāhole I,

94 Hawaiʻi at 141, 9 P.3d at 453 (“The continuing authority of

the state over its water resources precludes any grant or

assertion of vested rights to use water to the detriment of

public trust purposes.”); Ching, 145 Hawai‘i at 170, 449 P.3d at

1168 (“The most basic aspect of the State’s trust duties is the

obligation ‘to protect and maintain the trust property and

regulate its use.’”). Thus, the LUC has a continuing duty to

evaluate the potability of the water in Wells 1 and 9 to ensure

that the Resort does not violate Condition 10 by using water for 32 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

irrigation that is suitable for drinking under county water

quality standards, regardless of the chloride level of the

water.14

C. The 1991 Hearing and Findings of Fact Do Not Indicate the 1991 LUC Considered Brackish Water To Be Per Se Non-potable.

The 1991 LUC’s findings of fact are consistent with an

interpretation of potability that is based on whether water

meets the county’s water quality standards for drinking water

rather than whether water contains enough chlorides to qualify

as “brackish.”15 For instance, finding of fact 73 of the 1991

LUC Order stated that the “[g]roundwater underlying the proposed

14 The minority relies on this court’s decision in DW Aina to contend that this opinion fails to give the Resort the “ascertainable certainty” required in an administrative order. Minority Op. at 4-6 (citing DW Aina Leʻa Dev., LLC v. Bridge Aina Leʻa, LLC, 134 Hawaiʻi 187, 215-16, 339 P.3d 685, 713-14 (2014)). The court in DW Aina was presented with a contractual dispute over whether the LUC had adequately defined the term “completed” as it related to affordable housing. DW Aina Leʻa Dev., LLC, 134 Hawaiʻi at 215-16, 339 P.3d at 713-14. Whether and when housing was “completed” in that case did not concern the State’s public trust duties. In pointed contrast, in this case, “potable” is imbedded with constitutional implications under the public trust doctrine that extend beyond a permit condition or administrative rule. See Ching, 145 Hawaiʻi at 178, 449 P.3d at 1176 (“[T]he State’s constitutional public trust obligations exist independent of any statutory mandate and must be fulfilled regardless of whether they coincide with any other legal duty.”); In re Conservation Dist. Use Application HA-3568 (In re TMT), 143 Hawaiʻi 379, 415, 431 P.3d 752, 788 (2018) (Pollack, J., concurring) (“This court has indicated that an agency’s public trust obligations may overlap with the agency’s statutory duties, and it would follow that they may similarly overlap with duties imposed by an administrative rule.”). The minority further asserts that county water quality standards fail to provide fair and predictable elements. Minority Op. at 3-4. As stated, county water quality standards are those standards that the county water agency would use in its domestic water system. 15 As noted, the term “brackish” is commonly defined as “somewhat salty, distasteful.” Lanai Co., 105 Hawaiʻi at 299 n.10, 97 P.3d at 375 n.10.

33 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

golf course at Manele is too brackish for drinking water.”

(Emphasis added.) By stating that some water is too brackish

for domestic use, the LUC indicated that there is water that is

brackish, but not so brackish as to render it non-potable under

then-existing standards for domestic use. The 1991 LUC thus

does not appear to have considered brackishness to be a binary,

yes-or-no trait that necessarily makes water non-potable, but

rather as one factor that is evaluated in determining

potability.

But this does not mean that the LUC intended that the

water in Wells 1 and 9 would always be considered non-potable

regardless of surrounding circumstances, nor that the LUC

intended that the designation would change only if the chloride

levels were to drop below the threshold of 250 ppm. Indeed,

there is no indication that the LUC contemplated the proposed

250 ppm threshold prior to imposing Condition 10, and it is

therefore significantly more likely that it considered “non-

potable” only in terms of county water quality standards rather

than any specific numerical value. Accordingly, the

circumstances in which the 1991 LUC Order was adopted also do

not present any reason to depart from the plain meaning of its

terms.

The minority and the Resort argue, however, that

various references in the LUC’s 1991 Findings of Fact and the

34 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

testimony and questions posed at the original LUC hearings

suggest that the LUC viewed Wells 1 and 9 as permissible sources

of non-potable water for irrigation. Minority Op. at 13-17. A

court “must read the language of an administrative order in the

context of the entire order.” Lanai Co., 105 Hawai‘i at 310, 97

P.3d at 386 (emphasis added). Instead, the minority rejects the

common sense meaning of potable in favor of reliance on

disparate references in the testimony of selected witnesses in a

record exceeding 17,000 pages, including hundreds of pages of

hearing transcripts, to determine the 1991 LUC’s intent in

imposing Condition 10. See Minority Op. at 15-17. Equally

problematic is the minority’s reliance on the phrasing of

questions posed by counsel during the hearing to interpret the

meaning of a term in Condition 10. Minority Op. at 16. The

minority infers that because LSG’s lawyer, in referencing a

witness’s prior response during cross-examination, asked about

“a nonpotable or brackish water source” for the golf course, the

lawyer believed brackish was synonymous with non-potable.

Minority Op. at 16. The manner in which the question was posed

to the witness does not mean that the lawyer considered brackish

water and non-potable water to be the same; instead, it

highlights the analytical flaws of extrapolating from an

35 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

interpretation of a lawyer’s question to determine the meaning

of a term in the 1991 LUC Order.16

It is plainly contrary to principles of statutory

construction in interpreting an administrative order to rely on

selected witness testimony and the phrasing of attorney

questions. See Guyton, 135 Hawai‘i at 378, 351 P.3d at 1144.

Instead, the plain meaning of the term “potable,” as made clear

by the entirety of the 1991 LUC Order, must prevail.

The language of Condition 10 and the circumstances in

which it was adopted indicate that the 1991 LUC did not intend

that all brackish water would be considered inherently non-

potable. By the 2017 LUC’s own admission, such a holding would

require this court to interpret the terms “potable” and “non-

potable” in a manner that is contrary to their “common sense”

meanings. We reject an interpretation of a term that is

contrary to its common sense meaning, especially in the absence

of far stronger indications that this is what was intended.

Further, such an interpretation would be contrary to public

16 Additionally, some of the testimony cited by the minority appears to implicitly acknowledge that potability is an evolving concept that may change with time. Minority Op. at 16. For example, James Kumagai, the Resort’s expert witness on civil, sanitary, and environmental engineering, testified that “Well 9 has proved to have higher chlorides than what we had anticipated . . . . It’s brackish and we consider that right now nonpotable, but suitable for landscape irrigation.” (Emphasis added.) If potability was a static concept based only on whether chloride levels exceed a specific threshold, there would be no reason for Kumagai to clarify that, as of that moment, the Resort considered the brackish water in Well 9 to be non-potable.

36 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

trust principles with which the LUC is presumed to have

complied. The 1991 LUC fulfilled its constitutional public

trust duties with respect to Condition 10 by crafting a standard

that turns on county water quality standards for drinking water

as they develop.

D. A Proper Interpretation of Condition 10 Permits a Correct Analysis of the Effects of Leakage from the High Level Aquifer.

In Lanai Co., this court noted that the LUC had not

determined whether the Resort’s actions were the cause of

potable water leaking into Wells 1 and 9, and assuming that they

were, the LUC had not indicated whether the effect of such

actions would mean that potable water was being utilized under

Condition 10:

LUC makes no specific finding or conclusion as to whether [the Resort] was using potable water. Additionally, it is not clear from finding No. 30, whether the potable water leaking into Wells No. 1 and 9 is a direct result of [the Resort’s] actions, or if such leakage would occur irrespective of [the Resort’s] water usage. Similarly, assuming [the Resort’s] use is affecting potable water in the high level aquifer, the LUC did not indicate whether such an effect would qualify as “utiliz[ing] the potable water” under Condition No. 10.

Lanai Co., 105 Hawaiʻi at 316, 97 P.3d at 392 (emphases added)

(alteration in original). On remand, the 2017 LUC found that

the record was inconclusive as to the degree to which the

pumping of water from Wells 1 and 9 may cause the leakage of

water from other areas of the high level aquifer that are

currently used for potable drinking water. It further found

that there was no indication that any leakage has harmed

37 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

existing or planned uses of water for domestic purposes.

Finally, the 2017 LUC concluded that the leakage “theory” is

inconsistent with the language of Condition 10 “in which

brackish water was described as non-potable, and in which

brackish water from Wells 1 and 9 [was] proposed for irrigation

of the Mānele Golf Course.”

Properly interpreting Condition 10 to prohibit the

Resort from utilizing water that meets county water quality

standards for domestic use resolves the issue of leakage.

Leakage would result in a violation of Condition 10 if the

commingling of freshwater with brackish water changes the

composition of the water in Wells 1 and 9 such that it becomes

suitable for domestic use under county water standards and the

Resort thereafter uses the water for irrigation. However, the

2017 LUC’s interpretation would permit utilization of the water

in Wells 1 or 9 regardless of whether leakage from the high

level aquifer renders the water suitable for domestic use under

county water quality standards, further evincing the flawed

nature of such an interpretation.

In addressing the issue of freshwater leakage, the

minority concludes that the 2017 LUC did not err in holding

that, “By drawing only from brackish Wells 1 and 9 in the high-

level aquifer, the Resort did not ‘utilize’ any other sources

per Condition 10.” Minority Op. at 17. As stated, under the

38 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

2017 LUC interpretation, regardless of whether the Resort’s

pumping of water from Wells 1 and 9 causes leakage of potable

water from the high level aquifer into those wells, such leakage

does not constitute “utilization” of potable water from the high

level aquifer so as to violate Condition 10. This is because

the 2017 LUC would find that the commingling of freshwater with

brackish water renders such mixed water in Wells 1 and 9 as non-

potable and thus usable for golf course irrigation. This flawed

proposition highlights the illogical and non-common sense

interpretation that the 2017 LUC applies to Condition 10 in

equating non-potable water with brackish water.17

E. The 2017 LUC Did Not Clearly Err in Concluding That the Water in Wells 1 and 9 Was Non-potable Under County Water Quality Standards.

The 2017 LUC found that the water from Wells 1 and 9

would not currently be accepted as potable by the County of Maui

17 Indeed, the analysis applied by the 2017 LUC would allow the Resort to pump water from Wells 1 and 9 with the full knowledge that potable water was leaking from the high level aquifer as a result of its pumpage. But even assuming that the Resort was unaware that its actions were causing leakage, the language of Condition 10 makes no distinction as to whether the Resort’s utilization of potable water is intentional or not; it is not permitted. The minority would require “conclusive evidence of leakage, and that leakage caused the designation of Wells 1 and 9 to change from ‘brackish’ to ‘potable’” in order to prove that the Resort was utilizing water from a potable well. Minority Op. at 17 n.4 (emphasis added). Such a reading clearly violates the public trust doctrine. If there is evidence of potable water leaking from the high level aquifer into Wells 1 and 9, the Resort will be in violation of Condition 10, regardless of whether the water in Wells 1 and 9 remain non-potable. See Kauai Springs, Inc., 133 Hawaiʻi at 174, 324 P.3d at 984. Alternatively, the minority would require conclusive evidence that the water utilized by the Resort “originated in the potable wells.” Minority Op. at 17 n.4. It is unclear how the source of commingled water can be shown by “conclusive evidence.”

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because of its chloride levels, and it cannot be said that this

finding was clearly erroneous given the evidence in the record.

The 2017 LUC therefore did not err in determining that the

Resort was in compliance with Condition 10. However, the State

has a continuing public trust duty to ensure the Resort’s

compliance with Condition 10 by evaluative monitoring of the

quality of water that the Resort uses for irrigation in relation

to the county water quality standards for drinking water.

Condition 10 would be violated if the Resort were to use water

for irrigation that was considered suitable for drinking under

county water quality standards, regardless of the chloride level

of the water.

The contention in Justice Wilson’s opinion, dissenting

as to Parts III(E) and IV, that the record does not establish

whether the water in Wells 1 and 9 contained potable water under

county water quality standards during the relevant time period

is unpersuasive. Wilson, J., Dissenting as to Parts III(E) and

IV at 21-23. The 2017 LUC found, and the record does not

indicate otherwise, that the County of Maui would not have

accepted the water in Wells 1 and 9 as potable. That finding is

not clearly erroneous, and the Resort accordingly did not

violate Condition 10 of the LUC’s administrative order.

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IV. CONCLUSION

For the foregoing reasons, the 2017 LUC Order is

affirmed to the extent that it is consistent with this opinion.

Alan T. Murakami /s/ Sabrina S. McKenna (Moses K.N. Haia, III, with him on the briefs) /s/ Richard W. Pollack for appellant Lānaʻians for Sensible Growth I join in Parts I—III(A)-(D) of this opinion. Bryan C. Yee (Dawn Takeuchi-Apuna with him on /s/ Michael D. Wilson the brief) for appellee State Office of Planning

Benjamin A. Kudo (James K. Mee and Sarah M. Simmons with him on the brief) for appellee Lānaʻi Resorts, LLC