## 4. Policy: Securing Water > "The proposition now is to lease the lands that contain this water ... The homestead lands will be protected, for it has always been the policy of the government to encourage small farms." > Land Commissioner Boyd, on leasing East Maui forest lands to a sugar company over the protest of Nāhiku homesteaders, 1902 [@paccomadvertiser_1902, p. 2] > "[The proposed action] allows for the local production of food, supporting the goal of food sustainability and food security for Hawaii." > Department of Land and Natural Resources staff, recommending the auction of a thirty-year East Maui water license, 2026 [@blnr_d7_2026, p. 63] ### 4.1 Introduction Farming, righteous or otherwise, requires water. For Mahi Pono, water access carried the weight of a $267 million investment, contingent on continued diversion through East Maui's plantation-era irrigation system. Securing that access required the firm to engage all three branches of state government: the legislature, which had enabled and could constrain holdover permits; the executive agencies that administered water allocations, from the Board of Land and Natural Resources (BLNR) to the Commission on Water Resource Management (CWRM); and the courts, which reviewed what the other branches had done. This chapter traces the firm's dealings with each branch from roughly 2018 through mid-2026. The firm's social license narratives, traced in the previous chapter, showed the firm presenting itself as a local entity, embodying local values, and promising local benefits. It is here that those claims, namely stewardship among the values and food security among the benefits, acquired material stakes. The stewardship and food security narratives traveled only as far as each arena's design admitted them: they led the firm's committee testimony and the board's submittals, narrowed to efficiency pledges at the commission, and reached the courts only as propositions of law. This chapter asks what narratives were carried into each arena, what policy actions were pursued to secure water, and what each branch of the state did in response. To understand the stakes, the chapter begins with the conditions the firm bought into: a century-old diversion running on temporary permits already under challenge, a public trust doctrine under which water use was a permission rather than a right, and a purchase price that had wagered on state support. The sections move through the legislature, the two executive bodies, the board that issued water permits and leases and the commission that set the streams' flows, and the courts that reviewed both. The chapter concludes by reviewing what became of the narratives across the arenas, whether any arena tested the firm's claims, and how state procedural design shaped what water would flow. ### 4.2 A Purchased Position #### 4.2.1 Position Mahi Pono did not build its institutional access from scratch, it purchased a position that Alexander & Baldwin had built and maintained. A&B had diverted water from East Maui streams since the 1870s, and from 1908 through its East Maui Irrigation Company (EMI), all supplying the sugarcane operations that came to define Central Maui's agricultural landscape ==[@wilcox_1996, pp. 55, 114, 117]==. Mahi Pono acquired EMI's ditches, easements, and permits, and with them the position, though not yet the standing, of A&B, a firm that had dominated Hawaiʻi's economy and politics for over a century. Kay et al. [[email protected]_2023], following Sizek [-@sizek_2021], term EMI's reanimation under new ownership a form of "zombie infrastructure" that, through its material, legal, and political facets, resurfaces the dispossession initiated by earlier capitalist investment. %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). Locator widened. Wilcox p. 117 carries only 1908 ("On 23 June 1908, Alexander & Baldwin formed the East Maui Irrigation Company to succeed the 1876 Hamakua Ditch Company"). The 1870s are at p. 55 ("In September 1876, Alexander secured rights from the government of King Kalakaua") and p. 114 ("In 1876 they formed the Hamakua Ditch Company and in 1878 completed the Hamakua Ditch"). Page 114 carries a printed folio, read from the page image by Claude. Previous: [@wilcox_1996, p. 117]. %% For 150 years East Maui's water has been held under licenses, leases, holdovers, and permits by successive corporate owners over the protest of East Maui residents. The Kingdom granted the first East Maui water license in 1876 to Alexander & Baldwin's Hāmākua Ditch Company, for twenty years at $100 a year [@maly.maly_2001, pp. 452-455; @wilcox_1996, p. 55]. ==Attorney General William R. Castle had advised the Minister of the Interior that the waters "from time immemorial run waste into the sea," that it "becomes the duty of the Government to aid and foster in every possible way, the agricultural interests of the country," and that "anything like a monopoly must be guarded against" [@maly.maly_2001, p. 450].== In 1878, Claus Spreckels, the "well-known capitalist of San Francisco" ==[@paccomadvertiser_1878, p. 3]==, petitioned for all unused water along East Maui's windward coast, from Hāmākua to Hāna [@maly.maly_2001, p. 462]. He received a government license for the streams at the western end of that reach, thirty years at $500 a year and renewable for another thirty, and a separate lease of the crown lands at Honomanū, where his Haʻikū Ditch began [@maly.maly_2001, pp. 464-467, 472-476; @blnr_d7_2026, Ex. A, p. 3; @wilcox_1996, p. 62]. ==The license recites that the franchise was "by the King and His Ministry in Cabinet Council assembled deemed and considered to be for the benefit of the agricultural interests, and the general welfare of the Hawaiian Kingdom" [@maly.maly_2001, p. 465]. A further recital states that the expenses and labor of the works "are great and the Hawaiian Government is not now ready or willing to undertake such works and incur such expense" [@maly.maly_2001, p. 465].== %% PLACED 2026-09-28 at HH's "place both", after HH asked for a better source for the Kingdom's position than the 1878 Advertiser. Both sentences were drafted by Claude, attacked by an adversarial reviewer who re-read the sources, and are placed in the reviewer's corrected wording; the only change since is "had advised" for "advised ... on September 7, 1876", so the opinion reads as preceding the grant it follows in the paragraph. Full record in [[1876-1878 the Kingdom's stated reasons - sources]]. CASTLE, Maly printed p. 450 (opinion of Wm. R. Castle, Attorney General, to Wm. L. Moehonua, Minister of the Interior, September 7, 1876, pp. 449-451): "as there are no cities, towns or villages, and at best but a very sparse population in that region and the waters from time immemorial run waste into the sea there can be no public use for which they are so valuable as to prevent a disposal"; "The Reciprocity Treaty having passed and a brighter future opening for the country, it becomes the duty of the Government to aid and foster in every possible way, the agricultural interests of the country upon which our prosperity mainly depends. In offering and furnishing such aid anything like a monopoly must be guarded against. The government acts for all parties and should endeavor to distribute equally whatsoever of favor it may have". LIMITS: the waste sentence is a legal argument taking the water outside a statutory bar on disposing of streams "valuable for public use"; the monopoly sentence concerns even-handed distribution of government favor and protection of private rights; Castle's third condition (p. 451) reserves the government's right to grant others water from the same streams and to carry it "through the ditch, canal or other waterway to be constructed by these grantees". That this is the same device as the 1938 easements and the reserved rights of the 1950s is an inference no source states; it is not in the prose. TO CHECK: the applicants' agents were "Messrs. Castle and Cooke" and the author is a Castle; no source read states the relationship. RECITAL, Maly printed p. 465 (indenture of July 8, 1878, Samuel G. Wilder as Minister of the Interior to Claus Spreckels, pp. 464-467): "the franchise asked for by the party of the second part on the terms and conditions hereinafter named, is by the King and His Ministry in Cabinet Council assembled deemed and considered to be for the benefit of the agricultural interests, and the general welfare of the Hawaiian Kingdom. And whereas the expenses and labor required for constructing such watercourses and aquaducts and conducting therein the waters of the hereinafter named streams, and utilizing such waters for purposes of irrigation and otherwise are great and the Hawaiian Government is not now ready or willing to undertake such works and incur such expense." LIMITS: the recitals are standing formula, not reasons particular to 1878; the 1876 indenture (pp. 452-453) recites disposal "for the promotion of agriculture and the general welfare of the Kingdom", water that "has from time immemorial flowed off into the sea", and a government "not now ready or willing to incur the expense"; an 1889 draft renewal (p. 484) repeats the wording. The King is not a party to the indenture. TERM: the 1878 instrument never calls itself a license; it says "Indenture", "franchise", "grant"; Maly heads it "Lease"; D-7 Ex. A p. 3 records that a 1911 amendment "Redescribed the instrument as a license". "The license recites" follows HH's "He received a government license" in the sentence before. PLACEMENT: Claude had said the recital would go after HH's Advertiser sentences. It is placed before them, directly after the sentence that names the license, so that "The license" has its antecedent and the instrument comes ahead of the press report. HH may prefer the other order. NOT PLACED, by recommendation: the petition's "lying waste" (Maly p. 462) and Adler's account of the cabinet change and the $40,000 loan from Spreckels to the King (adler_1960 pp. 55-62), which would open a thread 4.2 does not follow. %% Reportedly, the King and his Ministers had granted Spreckels the lease and license due to the prospect of using stream waters "wasted by running into the sea" to bring a "hitherto unproductive region under cultivation" [@paccomadvertiser_1878, p. 3]. The benefits, it was said, would "accrue to the community and Kingdom generally" though "San Francisco will also come in for a share" [@paccomadvertiser_1878, p. 3]. ==In 1881 thirteen residents asked the commissioners of crown lands not to dispose of the water rights of the crown lands of Honomanū, Keʻanae, and Wailua to "the millionaire" Spreckels [@maly.maly_2001, p. 482; @environmenthawaii_1997].== In 1898 Spreckels' Hawaiian Commercial and Sugar Company (HC&S), which held the license and ditch, was acquired by a group including Messrs Alexander & Baldwin [@wilcox_1996, pp. 62-63; @wilsonokamoto_2019, p. 1-4; @blnr_d7_2026, Ex. A, p. 3]. %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). HH'S ADVERTISER SENTENCES RESTORED 2026-09-28 at HH's direction ("i think as written this still holds up"): the rewrite described under (1) below was placed as a span and then withdrawn, and HH's two sentences stand as he wrote them. His hedges "Reportedly" and "it was said" attribute the content to the report; all four quotations are verbatim from the one article; "though" follows the article's own "but San Francisco will also come in for a share". What remains true of the source, for the record: only "accrue to the community and Kingdom generally" is the Advertiser's own voice, the other three passages sit in its relay of the California Demokrat, and the article gives the King and Ministers one reason (the advantages of cultivation), the "wasted" phrase belonging to the account of Spreckels's reasoning. HH's decision. Changes (2) and (3) below remain placed. Three changes were first placed. (1) ADVERTISER SENTENCES rewritten so each quotation has its speaker. The 1878 article's first two paragraphs are the Advertiser's editorial voice; the rest is the Advertiser relaying a translation of an article in "the German newspaper, California Demokrat" about an interview with Spreckels. Source, read from the clipping image by Claude and by the adversarial reviewer: "the collateral and incidental benefits that will accrue to the community and Kingdom generally" (Advertiser); "many small streams, whose waters were wasted by running into the sea"; "but San Francisco will also come in for a share of the benefits to be realized"; "His Majesty the King and his Ministers, seeing that the advantages of bringing a hitherto unproductive region under cultivation would be very great, gave Mr. Spreckles all the necessary privileges for the carrying out of his enterprise" (all three in the relayed Demokrat account). The source spells the name Spreckles. HH's previous wording: "Reportedly, the King and his Ministers had granted Spreckels the lease and license due to the prospect of using stream waters "wasted by running into the sea" to bring a "hitherto unproductive region under cultivation" [@paccomadvertiser_1878, p. 3]. The benefits, it was said, would "accrue to the community and Kingdom generally" though "San Francisco will also come in for a share" [@paccomadvertiser_1878, p. 3]." (2) PAGE 3 added to the "well-known capitalist" citation. No printed folio has been seen; page 3 rests on the Newspapers.com index and on the article sitting on the third image of the Library of Congress scan; Maly's transcription gives 2. (3) 1881 SENTENCE: the clause "as the last intake of the Haʻikū Ditch was finished" removed, since no source supports it (Maly p. 51 is Bowser in 1880 expecting completion that year; Wilcox p. 62 has the ditch completed in 1879); Maly p. 51 dropped; the lands named as the petition names them, Maly p. 482: "Do not dispose any of the water rights (pono wai) of the Crown Lands (aina lei alii), those being from Honomanu, Keanae, Wailua, to the millionaire (Claus Spreckels) of Kamaomao." Previous wording: "In 1881, as the last intake of the Haʻikū Ditch was finished, thirteen residents asked the commissioners of crown lands not to dispose of the water of Honomanū and the crown lands east of it to "the millionaire" Spreckels [@maly.maly_2001, pp. 51, 482; @environmenthawaii_1997]." NOT TOUCHED, HH's to decide: the 1898 sentence ("a group including Messrs Alexander & Baldwin" has no source in the library; Environment Hawaiʻi 1997 also dates Spreckels's license to 1881 against Maly's 1878). %% The same year, the Republic of Hawaiʻi licensed to the Nāhiku Sugar Company, then being formed by H. P. Baldwin and partners, the water and tract of land above the Nāhiku homestead tract established in 1897 [@maly.maly_2001, pp. 382-383, 488]. The license ran thirty years, on the condition that the water "be used for the general benefit of the owners and occupiers of lands within the Nahiku tract" [@maly.maly_2001, p. 488]. In late 1901 the Nāhiku homesteaders, a mixed settlement of American, European, Portuguese, and Hawaiian lot-holders [@maly.maly_2001, p. 383], petitioned Congress on the belief that the Nāhiku Sugar Company intended to "divert and carry away the public waters of this tract" for sale to HC&S "forty or fifty miles away" [@paccomadvertiser_1902b, p. 1]. Their petition, echoing the 1898 license terms, asked that the waters "be retained for the common benefit of all of the land owners in said tract" [@paccomadvertiser_1902b, p. 1]. The Territory's land commissioner told the press, amid grousing that the petitioners "saw fit to ignore this office entirely and appealed directly to Washington," that the homesteaders' supply "was in no danger" [@paccomadvertiser_1902, p. 2]. In January 1902 the Territory of Hawaiʻi advertised two leases of government land in Koʻolau, of 12,500 and 6,500 acres, for sale at public auction the next month [@evebulletin_1902a, p. 8]. Joseph P. Cooke of Alexander & Baldwin said that "there was likely to be quite lively bidding for the leases at the auction sale" [@evebulletin_1902, p. 1]. In February the homesteaders petitioned Governor Dole that, "not being financially able to compete with corporations," they feared the water would be "diverted and taken to some other district" [@maly.maly_2001, p. 490]. Their letter said the applicant, H. P. Baldwin for the Nāhiku Sugar Company, whose land adjoined the homestead lots, had holdings that "make it impracticable for others to compete in the bidding," so that =="the apparently fair application will virtually be a walkover as far as beneficial results to the Government is concerned" [@maly.maly_2001, pp. 391, 490; @paccomadvertiser_1902, p. 2]==. Five days later, at the auction, H. P. Baldwin took the larger tract at $1,100 a year against an upset price of $1,000 and the smaller at its upset price of $4,000 [@hawstar_1902, p. 5; @blnr_d7_2026, Ex. A, pp. 7, 9]. "The bidding, however, was not lively," the Pacific Commercial Advertiser reported, "and only one lease was sold above the upset price" [@paccomadvertiser_1902a, p. 7]. %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). WALKOVER quoted with its subject and its qualifier. Maly p. 490 (letter of W. L. Hardy to Governor Dole, February 21, 1902, enclosing the petition): "... which make it impracticable for others to compete in the bidding ad so the apparently fair application will virtually be a walkover as far as beneficial results to the Government is concerned and are impoverishing of the district in many respects and in no long time forcing it under monopolistic control." Maly prints the letter twice; p. 391 has "and so". The same letter thanks the governor "for withdrawing lot # 3 from sale". Previous: so that the sale "will virtually be a walkover" [@maly.maly_2001, p. 490; @paccomadvertiser_1902, p. 2]. NOT TOUCHED, HH's to decide: "Their letter said the applicant, H. P. Baldwin for the Nāhiku Sugar Company, whose land adjoined the homestead lots". No source joins Baldwin and the company that way: Boyd names the company as applicant, Aiken's report of January 9, 1902 (Maly p. 390) and the leases (p. 491) name Baldwin alone, Cooke says "we have offered an upset price". %% By February 1902 three instruments held the water from Honomanū to the Hāna Plantation's lease line. Spreckels' 1878 license and lease at the western end had passed to HC&S, the 1902 leases filled the middle, and the 1898 license covered the Nāhiku end [@maly.maly_2001, pp. 464-467, 472-476, 488; @paccomadvertiser_1902, p. 2; @blnr_d7_2026, Ex. A, pp. 3, 7, 9]. Each was held by Baldwin or by a firm he was part of [@wilsonokamoto_2019, p. 1-4; @blnr_d7_2026, Ex. A, pp. 7, 9; @maly.maly_2001, p. 488]. In 1908 Alexander & Baldwin formed the East Maui Irrigation Company (EMI), succeeding the Hāmākua Ditch Company, to oversee surface water for its plantations [@wilcox_1996, p. 117]. Despite the homesteaders' 1902 warning, licenses continued to be distributed by bid. EMI won four twenty-one-year licenses at public auction for Hāmākua (1917), Honomanū (1919), Keʻanae and Wailua (1925), and Nāhiku (1930) [@blnr_d7_2026, Ex. A pp. 11, 13, 15, 17; @maly.maly_2001, pp. 501, 508, 511, 515], and every license since [@blnr_d7_2026, p. 12]. The 1917 Hāmākua license was the first to let its holder sell government water, and the first in which the Territory reserved a right to withdraw water for "reclamation, homestead or other public uses" [@blnr_d7_2026, p. 12]. That 1917 license and Spreckels' renewed license of 1878 were due to expire in 1938 [@blnr_d7_2026, Ex. A pp. 3-4, 11]. By that year the ditch system ran across government and company land, and that March the Territory and EMI exchanged perpetual easements. EMI received a permanent right to keep its ditches on government land to convey its water, and the Territory received a permanent right to send water, its own or another licensee's, through the stretches on company land [@blnr_d7_2026, pp. 12-13]. The 1938 agreement stated the Territory's "desire ... to have competitive bidding on licenses," which the joint use of the ditches was to make possible [@blnr_d7_2026, pp. 60-61]. The two expiring licenses were cancelled and merged into a single Huelo license area, won at auction by EMI that July [@blnr_d7_2026, Ex. A pp. 4, 12, 19]. In the 1950s, the Territory reserved "the right to issue other ... licenses and leases within the Licensed Area" as part of the Keʻanae and Nāhiku licenses [@blnr_d7_2026, Ex. A pp. 25, 27]. The 1950 Keʻanae license required its holder to take all available water for nine months of the year and EMI, the only bidder, won the auction [@kay.etal_2023; @blnr_d7_2026, Ex. A p. 25]. Bidding, however, was for the license fee alone. The government set a rate for water, charged per million gallons, that was tied to the price of sugar. A summary by the county's water department took this as "indicating the fact that the water is to be used by the sugar industry" [@mauiwaterdept_1961, p. 2]. The same summary found that the 1938 agreement "makes it almost impossible" for anyone but EMI to bid for licenses and indeed that in past auctions only EMI had been bidding [@mauiwaterdept_1961, p. 2]. Despite the Territory reserving the right to alternative or additional licensees, the duty to take as much water as possible and the rate indexed to sugar all but required a bidder to have cane to irrigate at the end of the ditch. The right to sell diverted water, however, gave EMI a market beyond sugar. In 1960 that market included Maui County, which paid EMI $40 per million gallons for water, for which EMI paid the state $1.26 to $3.556 [@mauibos_1961, p. 1; @mauiwaterdept_1961, pp. 1-3]. The county's water department called the rates "relatively high even when considering the use of some of the East Maui Irrigation Co., Ltd.'s transmission structures" and recommended that the state turn the Honomanū water license over to the County [@mauiwaterdept_1961, pp. 3, 5]. In April 1961, with that license about to expire, the Board of Supervisors asked the legislature for "a complete study of all the water licenses on Maui" and a year's delay in the sale [@mauibos_1961, p. 2]. The resolution also questioned the 1938 agreement, under which "the rights and easements granted by the State are in perpetuity" [@mauibos_1961, p. 2]. ==EMI's license was held over for two six-month periods, to June 1962 [@blnr_d7_2026, p. 15, Ex. A pp. 23-24].== That December an agreement among EMI, HC&S, and the county's Board of Water Supply "gave the County permission to take State water for domestic purposes only" from the Huelo and Honomanū license areas [@blnr_d7_2026, Ex. A p. 31]. In February 1962 the successor was auctioned, and it went to EMI for twenty-four years [@blnr_d7_2026, Ex. A pp. 23-24, 31]. %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). EXTENSION stated as the source has it and cited. D-7 Table 2-4 (printed p. 15): "6-month Holdover July 1, 1961 – Dec. 31, 1961" and "6-month Holdover Jan. 1, 1962 – June 30, 1962". Ex. A pp. 23-24: "the Board approved a six-month extension and authorized the sale of a successor license to commence July 1, 1962. The archival file reflects uncertainty regarding whether an earlier extension had also been granted between July and December 1961. Correspondence from A&B indicates that the Board approved an extension on July 14, 1961." No source gives a reason; the sentence sits after the supervisors' request for a year's delay and states no cause. Previous: "EMI's license was extended for a year." %% The 1962 Honomanū license was the last the state issued [@blnr_d7_2026, p. 13]. The Board of Land and Natural Resources (BLNR) had "originally anticipated replacing the four historical licenses with a single long-term disposition," but a long-term license required a public auction and was subject to legislative disapproval [@blnr_d7_2026, pp. 16, 18; @blnr_minutes_1986, p. 2]. As each license ran out, in 1971, 1976, 1981 and 1986, the diversions persisted through water permits [@blnr_d7_2026, pp. 14-16; @wilcox_1996, p. 121]. However, in the words of BLNR staff in 1984, "water permits can only be for a period of one year at a stretch," which staff gave as the reason "the applicants on the agenda are listed in some cases as EMI and other cases as A&B" [@blnr_minutes_1984, p. 2]. A&B held the permit one year and its subsidiary EMI the next [@blnr_minutes_1984, p. 2; @wilcox_1996, p. 121]. In 1984 East Maui taro farmers and residents, through the Native Hawaiian Legal Corporation (NHLC), asked the BLNR for a contested case hearing on the renewal of the Keʻanae, Nāhiku, and Huelo permits [@blnr_minutes_1984, pp. 2-3; @blnr_d7_2026, Ex. A p. 32]. Three years later the board's chair reported that a hearing "has not been scheduled as of this date," and the permits were again renewed [@blnr_minutes_1987, p. 2]. NHLC attorneys objected each year that alternating permittee names gave the firms "uninterrupted use of the water" without the review a long-term license would have required [@environmenthawaii_2005]. In 2000 A&B asked the BLNR to consider a long-term license, and staff were directed to proceed towards such a disposition while annual permits continued [@blnr_d7_2026, p. 16]. In 2001, Nā Moku Aupuni o Koʻolau Hui, an organization of East Maui taro farmers and cultural practitioners, ==requested a contested case hearing on the permits and the proposed lease, and the board deferred, granting a holdover permit on a month-to-month basis pending the hearing [@blnr_2001, pp. 8, 13]==. In 2015, with East Maui streams still dewatered, ==the hui and two individuals sued, challenging the permits as unlawful [@carmichael.v.blnr_2022, p. 9].== In early January 2016 a circuit court ruled that A&B's uninterrupted use under the nominally temporary permits was not the temporary use the public lands statute authorizes, ==a ruling every party appealed [@carmichael.v.blnr_2016; @carmichael.v.blnr_2022, pp. 14-15]==. %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). Three changes. (1) 2001 REQUEST. Minutes p. 8: Carl Christensen of the Native Hawaiian Legal Corporation testified "on behalf of Na Moku Aupuni O Koolau Hui, a Native Hawaiian non-profit organization whose members reside in the Keanae/Wailuanui area, and several individual Native Hawaiians ... who request a contested case hearing to challenge the legality of the proposed disposition of revocable permits, and/or subsequently a long-term lease." P. 13: "Member Inouye made a motion to defer this item, and grant a holdover permit on a month-to-month basis, pending the results of the contested case hearing." One hearing, one permit in the motion, and the lease was challenged too. Previous: "requested contested case hearings on the permits, and the board deferred, granting holdover permits on a month-to-month basis pending the hearing [@blnr_2001, p. 13]". (2) PLAINTIFFS. Carmichael 2022 p. 9: "on April 10, 2015, Petitioners ... filed a complaint", the petitioners being "Healoha Carmichael, Lezley Jacintho, and Nā Moku". The opinion does not say where the two individuals live. Previous: "the hui sued, challenging the permits as unlawful." (uncited). The complaint was an environmental review claim (pp. 10-11), which is narrower than "challenging the permits as unlawful"; HH's phrase left. (3) APPEAL. Carmichael 2022 p. 15: "The A&B Defendants, the State Defendants, the County, and Petitioners all appealed the circuit court's order." The plaintiffs cross-appealed while defending the result. The holding is quoted at p. 14: "A&B's continuous uninterrupted use of these public lands on a holdover basis for the last 13 years is not the 'temporary' use that HRS Chapter 171 envisions." The 2016 order itself has no attachment in Zotero; its date, January 8, 2016, is from the 2019 appellate opinion and Dawson 2016. Previous: "a ruling A&B appealed [@carmichael.v.blnr_2016]". NOT TOUCHED: "an organization of East Maui taro farmers and cultural practitioners" (the minutes' description is quoted above); "with East Maui streams still dewatered" (uncited). %% Within weeks of the 2016 ruling, five House members, the Water and Land Committee chair and Speaker among them, introduced a bill to authorize the holdover practice the court had just invalidated; a Senate companion, its sponsors including ==three Maui senators== and Donovan Dela Cruz, stalled in committee ==[@hb2501_2016; @sb3001_2016; @blair_2016]==. Three of the five House introducers, the Speaker included, held Maui seats ==[@blair_2016]==. The bill drew sharp opposition from Native Hawaiian organizations and environmental groups==. The Sierra Club's Marti Townsend said it would continue A&B's "special treatment" and called the firm's holdover permit "a unique beast created out of thin air just for A&B" [@blair_2016].==^[The author served as chair of the Sierra Club's Oʻahu Group during the period discussed in this chapter.] Despite objections the measure passed, ==authorizing up to three consecutive one-year holdovers where an application had been made for a lease to continue a previously authorized disposition. The Act was to be repealed on June 30, 2019, though holdovers first applied for before that date could be reauthorized beyond it [@act126_2016, secs. 1, 4].== %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). Four changes. (1) SIERRA CLUB QUOTATION. It described A&B's holdover permit, not the bill. Blair, April 5, 2016: "Marti Townsend of the Sierra Club said Alexander & Baldwin has benefitted from "special treatment" that HB2501 would continue. "A&B has been on a 'holdover' permit since 2002," she explained. "This is a unique beast created out of thin air just for A&B. It is not a revocable permit that is renewed annually at a Land Board meeting, like everyone else's permits for access to public resources."" The article gives her no title. "special treatment" is her phrase; "would continue" is the reporter's indirect speech. Previous: "with the Sierra Club calling it "a unique beast created out of thin air just for A&B" [@blair_2016]." (2) SENATORS. Blair: "three Maui senators, Rosalyn Baker, Gil Keith-Agaran and Kalani English". No source says they were all of Maui's senators. Previous: "all three of Maui's senators". (3) OFFICES AND MAUI SEATS cited to Blair, since the bill status pages list surnames only: "The author of HB 2501 is Rep. Ryan Yamane, chair of House Water and Land Committee. Bill sponsors are Agriculture Committee Chair Clift Tsuji and three Maui lawmakers, House Speaker Joe Souki and Reps. Justin Woodson and Kyle Yamashita." (4) ACT 126. Sec. 4 (SLH 2016 pp. 420-421): "(1) This Act shall be repealed on June 30, 2019 ... and (2) Any holdovers first applied for under this Act prior to June 30, 2019, may be reauthorized, as provided in section 1 of this Act, beyond June 30, 2019." Sec. 1 reaches an application "for a lease under this section to continue a previously authorized disposition of water rights" and allows "a total of three consecutive one-year holdovers". The Act also conditions a holdover on being "consistent with the public trust doctrine", which the chapter does not mention. Previous: "Despite objections the measure passed [@act126_2016], authorizing up to three consecutive one-year holdovers through 2019 for any applicant with a pending long-term lease application." %% In late 2016, with its East Maui water draw down to 20 to 25 million gallons per day (MGD), Hawaiian Commercial & Sugar (HC&S) told CWRM that its pivot to diversified agriculture on the former sugarcane lands would require over 100 MGD from all sources [@dawson_2016]. In June 2018, after a contested case, CWRM replaced the status quo standards it had adopted for these streams in 1988 with stream-specific ones, ==returning to free flow the streams that had "historically supported significant kalo cultivation" and substantially reducing what could be diverted offstream [@cwrm_2018, Executive Summary pp. iii-iv; @blnr_d7_2026, pp. 17-18].== What remained divertible was BLNR's to allocate. %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). KALO STREAMS quoted, locators corrected. CWRM 2018 Executive Summary p. iv: "The Commission's decision will return free flowing water, with no upstream diversions, to all streams which have historically supported significant kalo cultivation (Honopu, Huelo, Hanehoi, Pi‘ina‘au, Palauhulu, Ohia (Waianui), Waiokamilo, Kualani, Wailuanui, Makapipi)." P. iii: "Our decision will necessitate significant reductions in offstream diversions." The list has ten names; the source does not state the number. The PDF uses roman numerals twice, so the locator names the Executive Summary. The 1988 date is not in the decision; it is in D-7, printed pp. 17-18: "CWRM adopted the status quo IIFS applicable to the East Maui streams on June 15, 1988." Previous: "returning the ten that had historically supported kalo cultivation to free flow and substantially reducing what could be diverted offstream [@cwrm_2018, p. iii; @blnr_d7_2026, p. 18]." STILL OPEN, not changed: the decision's own findings record earlier amendments to some of these streams' standards in 2008 and 2010 (FOF 8 and 11, pp. 4-5), so "replaced the status quo standards it had adopted for these streams in 1988" does not hold for every stream. "What remained divertible was BLNR's to allocate" is supported at Executive Summary p. ii. %% A&B's material and legal position was thus assembled by diversion and ditch, lease and license, over generations since 1876. By the time of the sale to the Public Sector Pension Investment Board (PSP) A&B held four permits, one for each East Maui license area, Nāhiku, Keʻanae, Honomanū, and Huelo. These nominally temporary and ostensibly annual permits had run for decades without environmental impact review [@blnr_d8_2023, pp. 3-4; @wilcox_1996, p. 121; @carmichael.v.blnr_2022, pp. 11, 38]. Over the same century and a half, A&B's political position secured favorable treatment by the state through petition, bid, renewal, or holdover, against the objections of county residents and the County alike. Through its legislative achievement with Act 126 A&B extended its timeline of secure water access. Yet, with the durability of that security in question, the Act's three-year window became a deadline for any HC&S land sale to be viewed as commercially viable. In December 2018 PSP bought into each of these positions with water insecurity, barring further legislative achievements, factored into the agreement. ==If EMI or A&B became "legally prohibited from delivering" 30 MGD, and what EMI could still lawfully deliver fell short of the buyer's need as the buyer determined it, before state leases were obtained or eight years elapsed, A&B owed a $31 million rebate, and a second $31 million if the shortfall was not cured within a year. It owed $31 million if no state lease authorizing at least 30 MGD was executed within five years, extendable to eight. Total rebates were capped at $62 million on the $267 million price [@alexander&baldwinllcseriesr.etal_2018, secs. 2.1, 2.7(a)-(e), (h), 14.5].== Inability caused by "earthquakes, droughts or natural disasters" was excluded, so what A&B underwrote was the risk of failing to secure permission to divert [@alexander&baldwinllcseriesr.etal_2018, sec. 2.7(a)]. This clause added quantifiable financial stakes to every subsequent permit hearing, legislative vote, and court ruling. While A&B risked the rebate, PSP had, in a most literal sense, bet the farm on the state's water permitting process. %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). REBATE TERMS restated from the agreement. Sec. 2.7(a): a Productivity Loss Event needs both "(x) EMI or Seller is legally prohibited from delivering the Minimum Water Amount" and "(y) the amount of water that EMI is then not legally prohibited from delivering to Buyer is less than Buyer's actual surface water need at that time, as determined by Buyer in its sole discretion, exercised in good faith", "prior to the earlier of (i) the date State Leases are obtained ... or (ii) eight (8) years after the Closing Date"; the initial rebate is $31,000,000. Sec. 2.7(b), (c): a further $31,000,000 one year later unless cured. Sec. 2.7(d): a Lease Failure Rebate of $31,000,000 if leases authorizing at least the Minimum Water Amount are not executed "within five (5) years of the Closing Date", extendable "for up to a maximum of an additional three (3) years in the aggregate". Sec. 2.7(h): total rebates "shall not under any circumstance exceed the total amount of $62,000,000.00". Sec. 14.5: "'Minimum Water Amount' shall be 30 million gallons per day ('MGD') of surface water for use by Buyer". Sec. 2.1: "$267,055,351.39". "A&B" is shorthand: the Seller is three entities (Alexander & Baldwin, LLC, Series R; Alexander & Baldwin, LLC, Series T; A & B Properties Hawaii, LLC, Series R), with the rebates guaranteed by "Seller's ultimate parent entity, Alexander & Baldwin, Inc." (sec. 2.8). Previous: "If EMI became "legally prohibited from delivering" 30 MGD before a long-term water lease was issued or eight years elapsed, whichever came first, A&B owed rebates of up to $62 million on the $267 million price, including $31 million if no state lease issued within five years, extendable to eight [@alexander&baldwinllcseriesr.etal_2018, sec. 2.7(a)-(b), (d)-(e), (h)]." NOT TOUCHED, HH's to decide: "In December 2018 PSP bought". The Buyer in the agreement is "MAHI PONO HOLDINGS, LLC, a Delaware limited liability company"; PSP is named in secs. 7.3 and 14.1 and is not a party. The library source tying PSP to Mahi Pono is pspinvestments_2018. %% What Mahi Pono purchased, then, was the infrastructure of diversion without a settled entitlement to the water it carried. With existential questions pending, the zombie could only live on with state approval. #### 4.2.2 Permission In Hawaiʻi water is governed as a public trust resource, with origins in Indigenous custom and law ==[@sproat.palau-mcdonald_2022, p. 540]. In 1978 the people of Hawaiʻi elevated the doctrine into a constitutional mandate through a constitutional amendment [@inre.nawaieha_2024, p. 42].== Under the Hawaiʻi State Constitution, article XI, section 1, "[a]ll public natural resources are held in trust by the State for the benefit of the people," and the state is directed to promote their development and use "in furtherance of the self-sufficiency of the State" [@hawconst_1978]. Section 7 requires the state to "protect, control and regulate the use" of its water resources [@hawconst_1978]. The supreme court has read the trust as imposing an "affirmative duty" on the state "to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible," and as precluding "any grant or assertion of vested rights to use water to the detriment of public trust purposes" ==[@inre.nawaieha_2024, pp. 44-45]==. %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). Three changes. (1) PAGE added: Sproat and Palau-McDonald p. 540, "This landmark decision affirmed the origin of Hawaiʻi's Public Trust in Indigenous custom and law". The chapter's phrase tracks the source's words without quotation marks. (2) 1978 SENTENCE added, answering HH's question of 2026-09-28 about the doctrine under earlier governments as far as the three cited sources allow. In re Nā Wai ʻEhā p. 42: "In 1978, the people of Hawaiʻi elevated the public trust doctrine and further protections for water resources into a constitutional mandate through a constitutional amendment." The sources place the trust's origin in Native Hawaiian custom and Kingdom law; none says it governed water licensing under the Republic or the Territory. (3) LOCATOR: the "vested rights" quotation is on p. 44 and the "affirmative duty" quotation on p. 45. The 2024 court is quoting Kauai Springs (2014) quoting Waiāhole (2000); the source's subject is "the State and its political subdivisions". Previous: [@sproat.palau-mcdonald_2022] and [@inre.nawaieha_2024, p. 44]. %% This public trust doctrine extends across each branch of government ==[@manahan_2019, pp. 265, 273]==. ==Because the trust arises from a constitutional mandate, the state's duty to weigh competing public and private uses is independent of the duties the legislature creates by statute [@inre.nawaieha_2024, p. 45]. In Waiāhole the court had concluded that legislation cannot extinguish the common law public trust, and read the constitutional trust as a limitation on the legislature as well as the commission [@manahan_2019, p. 271].== The duty binds the agencies that allocate the water. CWRM must actively manage the trust, weighing the cumulative impact of existing and proposed diversions on trust purposes [@manahan_2019, p. 273], ==while BLNR, as a public trustee of the state's water resources, must meet its own trust obligations when it continues permits for state water [@carmichael.v.blnr_2022, pp. 38-39].== Interpreting and defending the trust ultimately falls to the courts [@manahan_2019, p. 266]. Those seeking trust water for private commercial gain "bear the burden of justifying proposed uses in light of protected rights in the resources, including traditional and customary Maoli practices," which the trust protects as uses in their own right ==[@sproat.palau-mcdonald_2022, p. 542; @inre.nawaieha_2024, pp. 43-45]==. Private commercial use is therefore a permission rather than a right, revocable on the state's judgment of whether it can be justified. %% PLACED 2026-09-28 at HH's "place them", from the audit and its adversarial review ([[4S 4.2 quote and citation audit 2026-09-28]]). Four changes. (1) THREE BRANCHES cited. Manahan p. 265: "All three branches of government carry out public trust duties depending on their role in making decisions concerning the corpus of the trust" (of the doctrine in general); p. 273: "the legislative and executive branches are judicially accountable for the dispositions of the public trust". (2) LEGISLATION SENTENCE split. In re Nā Wai ʻEhā p. 45: "As the public trust arises out of a constitutional mandate, the duty and authority of the state and its subdivisions to weigh competing public and private uses on a case-by-case basis is independent of statutory duties and authorities created by the legislature." Manahan p. 271: "After concluding that legislation cannot extinguish the common law public trust, the court turned to the PTD as embodied in the Hawaii Constitution" and "The structural role of the constitutional PTD imposed a limitation not only on the Commission, but on the state legislature". Neither source says legislation cannot extinguish the constitutional trust. Previous: "Because the trust is constitutional rather than statutory, legislation cannot extinguish it [@manahan_2019, p. 271]." (3) BLNR. Carmichael 2022 p. 38: "the BLNR did not comply with HRS § 171-55 or its public trust obligations"; p. 39: "the BLNR's role as a public trustee of the State's water resources". The case concerns the continuation of revocable permits and does not address leases. Previous: "while BLNR must satisfy the same obligations when it issues permits and leases for state water." (uncited). (4) PAGES added for In re Nā Wai ʻEhā: p. 43 lists "the exercise of traditional and customary Native Hawaiian water rights" as a protected purpose, p. 44 has "never been understood to safeguard rights of exclusive use for private commercial gain", p. 45 "the burden ultimately lies with those seeking or approving such uses to justify them". NOT TOUCHED: HH's closing sentence on permission, which is the author's inference; the sources place the burden on those "seeking or approving" uses. %% ### 4.3 The Legislature: HB 1326 (2019) With Act 126's holdover window set to expire in June 2019, just months after Mahi Pono took possession, the firm's first policy action was to seek a legislative extension. Without one, the diversions would again rest on BLNR authority the court had ruled unlawful, with A&B's appeal still undecided. As introduced, House Bill 1326 proposed to let holdovers renew annually without limit while a long-term water lease application remained pending. It would also allow a holdover permit challenged in a contested case to continue "without action by the board" until that case concluded, ensuring a challenge could not interrupt the flow of water [@hb1326_2019]. Beyond food security narratives, the firm's broadest argument for the bill was that its water access and the public's were inseparable. In written testimony for each of the bill's three committee hearings, Mahi Pono offered its legitimation narratives as justification for the extension. The stewardship and food security claims were explicit, framing the firm as "stewards of the land and water," "committed to high-quality, non-GMO foods for local consumption," "exploring regenerative and traditional Native Hawaiian farming practices," and "planning a full range of agricultural operations and related uses to increase Hawaii's food production and food security" [@mahipono_hb1326_2019]. The testimony promised "good jobs and economic activity for Maui residents for generations to come," committed to providing "land and water in an agricultural park for use by small, local farmers, together with resources such as farming expertise, resources and equipment, and farming capital," and assured the committee that the firm was "doing our research and listening to the community before making any final crop decisions" [@mahipono_hb1326_2019]. To this general repertoire the testimony added water-specific claims, bundling corporate and public water needs into a single framing: "We need this legislation to ensure a continuous source of water: (1) to farm; and (2) for the County of Maui for its upcountry Maui community," positioning the firm as "one of 10 water permit holders" alongside "neighbor island utilities, ranchers and small farmers" [@mahipono_hb1326_2019]. It pledged to "use only what we need" and "improve the infrastructure to reduce leakage," and claimed the firm "both supports and intends to honor" CWRM's restoration of streamflow to East Maui streams [@mahipono_hb1326_2019]. As the bill moved through committees, these claims were weighed against growing amounts of public testimony, and each committee reshaped the measure. Each chamber numbers its successive committee rewrites as House Drafts (HD) or Senate Drafts (SD). In the House, the Water and Land Committee extended Act 126's temporary authority by seven years without changing the three-year holdover limit [@hb1326hd1_2019], while the Finance Committee rewrote the statute to allow ten consecutive years of holdovers [@hb1326hd2_2019]. The Senate then proposed a fundamentally different bill. The proposed SD1 raised the holdover cap from three to six consecutive years (against HD2's ten), exempted traditional kalo cultivation from the permitting framework, introduced volume thresholds requiring public trust findings for any holdover exceeding two million gallons per day, and mandated that the Department of Land and Natural Resources (DLNR) hold public hearings on administrative rules for water leases before approving any holdover after January 1, 2020 [@hb1326sd1_2019]. The joint Senate hearing of the Water and Land Committee and Ways and Means Committee on April 2, 2019 drew nearly six hours of oral testimony and 747 written submissions, 604 in opposition and 40 in support [@blair_2019b]. Senators and Mahi Pono alike expressed frustration that DLNR had not developed guidelines for long-term water leasing, but the firm argued the department should "address these concerns on its own or perhaps more specifically under a resolution" rather than through statutory mandate [@blair_2019b; @mahipono_hb1326sd1_2019]. The Office of Hawaiian Affairs (OHA) contested the Upcountry entanglement directly, testifying that "only A&B would meaningfully benefit from these measures, which would shield A&B from legal and financial liabilities under its Central Maui sales agreement," and that "there is no legal reason why water service to Upcountry Maui water would need to be disrupted" [@oha_hb1326_2019]. A&B, in a written statement, dismissed the charge as "a red herring" and called the permits "just one step in the long process of securing long-term access to water" [@blair_2019b]. The state Departments of Agriculture and Land and Natural Resources supported the bill [@hb1326testimony_wlh_2019; @hb1326testimony_wtlwam_2019]. Maui County Mayor Victorino testified in support, warning that without EMI access to East Maui water, "I'm not sure if EMI would stay in the business of operating and maintaining the East Maui watershed ditch system" [@victorino_2019]. When the committees reconvened on April 4, Water and Land Committee Chair Kai Kahele went beyond the proposed SD1, extending the holdover cap to ten years but adding language that excluded any water user whose permits had been invalidated by a court, a description that fit only A&B, whose permits the circuit court had ruled unlawful in the 2016 *Carmichael* decision. Kahele described his draft as a "new chapter" in state water management that was "transparent and accountable," and the committee approved 3-2 [@blair_2019d]. Ways and Means Chair Donovan Dela Cruz, who had co-sponsored the 2016 holdover bill, then indefinitely deferred the measure, effectively killing the bill [@hb1326_2019; @sb3001_2016]. As Sierra Club Director Marti Townsend observed, "this bill was intended to provide for A&B, and if the amended version didn't provide for A&B, the Senate wasn't going to pass it" [@blair_2019d]. As A&B's statement had suggested, the bill's defeat imposed no material constraint on the firm's water access. In the legislative arena, making claims carried no burden of proof. The firm told three committees it was a steward, would honor CWRM's restorations and only use what water it needed. It presented its private use of a public trust good as one of shared public interest, bundling food production, infrastructure upkeep, and the county's water. While not designed to evaluate these claims, only the legislature could rewrite the statute the holdovers rested on, as it had in 2016. Yet the Senate draft that would have required public trust findings and rules hearings before any further holdover was the one that died. The stakes of the measure were asymmetric. Passage of the original bill would have insulated the diversions from challenge for as long as a lease application stayed pending, while its failure changed nothing at the ditch. For the firm, losing cost nothing. For those who cheered the bill's defeat, this win kept open a route to challenge the permits and no more. Where the firm could not afford to lose was where the water was allocated, at the two executive bodies, and those arenas operate with a different design. ### 4.4 The Executive: CWRM and BLNR With the legislative route closed, the question of water access returned to the executive branch, where two bodies govern it and their institutional designs differ in ways that would prove consequential. BLNR issues the revocable permits and would issue any long-term lease, deciding by board vote on staff recommendations at its regular meetings. CWRM, administering the State Water Code, issues water use permits in designated management areas, and an objection from a person with standing requires a hearing at which claims are subject to sworn testimony and evidentiary standards [@hrs174c, § 174C-53]. BLNR hears contested cases as well, but no comparable requirement obliges it to, and the entitlement has had to be established as a matter of constitutional due process. At both bodies the firm's applications are processed administratively under the same chair, the DLNR chairperson presiding ex officio over each. In East Maui, CWRM sets interim instream flow standards (IIFS), the amount of water that must stay in each stream before any can be taken. In 1988, shortly after the Water Code was enacted, CWRM adopted statewide "status quo" standards, defined as the amount of water then flowing in each stream, and applied them to East Maui that June [@blnr_d7_2026, pp. 17-18]. For diverted streams that fixed the standard at the flow the EMI ditches left, so any restoration required amending it. In 2001, the same year as their BLNR contested case hearing requests, Nā Moku Aupuni o Koʻolau Hui and three East Maui practitioners petitioned CWRM to amend IIFS for twenty-seven East Maui streams. CWRM handled the petitions for nine years without a contested case, until the Intermediate Court of Appeals ordered one in 2012, a hearing on the record with findings of fact and conclusions of law [@cwrm_2018, pp. 7-8]. In April 2016 A&B announced that it would fully and permanently restore seven of the twenty-seven East Maui streams identified in the 2001 contested case hearing request [@mauinow_2016a]. In June 2018 CWRM's decision in the contested case set a standard for each of the twenty-seven streams, returning to free flow the ten streams that "historically supported significant kalo cultivation" and still fed cultivated loʻi, and leaving the rest partly diverted [@cwrm_2018, pp. iv-vi]. Most of the ten were the streams A&B had released, and the Commission wrote that it "followed A&B's decision" in restoring them [@cwrm_2018, p. iv]. In the remaining streams, CWRM restored only what stream habitats required, with no additional volume for taro farming to resume where it had ceased [@cwrm_2018, pp. v-vi]. The contested case hearing had tested the figures each party presented. Nā Moku claimed roughly 120 acres required water for taro, about 27 of which were in Keʻanae [@cwrm_2018, FOF 283, 326-327, pp. 74, 84; FOF 593, p. 156]. The commission measured active cultivation instead. It rejected the acreages as counted "without taking into account what portion of those parcels have ever been or are currently cultivated with taro" and found that the 10.53 acres actually in taro at Keʻanae needed no more water than the stream was already carrying [@cwrm_2018, FOF 283, p. 74; FOF 326, p. 84; FOF 285-288, p. 75]. The kalo streams were returned to full flow whatever the acreage finding, and where the diverter had already conceded a stream the commission held further findings on the farmers' needs "unnecessary" [@cwrm_2018, p. iv; FOF 328, p. 85]. On the diverter's side, HC&S had characterized all water it could not account for as system losses, 22.7 percent of what it delivered between 2008 and 2013 [@cwrm_2018, FOF 727, p. 192]. The commission's findings of fact accepted the figure as reasonable for sugar and applied it to diversified agriculture, grossing HC&S's stated irrigation requirement for the former cane lands up from 89 to 115 MGD [@cwrm_2018, FOF 702, p. 184; FOF 737, p. 193]. Its executive summary then called losses over 20 percent "not acceptable," adding that "Modern agribusiness investors should not expect to build a new industry on the back of century-old infrastructure" [@cwrm_2018, FOF 726-727, pp. 191-192; p. vi]. Both figures were tested, and neither set the standard for any stream. The farmers' acreage served only to check that the restored flow would cover the cultivated loʻi, and the diverter's loss rate sat inside the 115 MGD requirement the commission's findings recorded for HC&S [@cwrm_2018, FOF 287-288, p. 75; FOF 702, p. 184]. The commission was explicit about the limit of its own authority. Its order "establishes a quantity of water that must remain in each stream" and "does not allocate any additional water that can potentially be diverted offstream to support other activities as that is under the purview of the Board of Land and Natural Resources" [@cwrm_2018, p. ii]. Yet the order stated an intent "to ensure that a sufficient amount of offstream water is available" for diversified crops on the 23,000 acres in central Maui designated as important agricultural lands. Measured against that target, the commission estimated it had "provided for about 90% of the irrigation needs" of those lands [@cwrm_2018, p. vi]. Six months after the order, the Mahi Pono purchase closed, and what CWRM left divertible BLNR could allocate by permit. #### 4.4.1 BLNR: Annual Revocable Permits After HB 1326 failed in the Senate, Act 126 was automatically repealed on June 30, 2019. Days earlier, however, the Intermediate Court of Appeals (ICA) had overturned the circuit court ruling that had prompted Act 126, leaving BLNR free to keep the permits in holdover status while the holdover's lawfulness went back to the circuit court [@carmichael.v.blnr_2019, pp. 13-16]. BLNR chair Suzanne Case responded that the opinion clarified the board's authority to continue revocable permits, and that requests to continue the water permits would follow pending the long-term lease process [@cerizo_2019c]. The requests followed, the board characterizing the permits as remaining "in holdover status" pending the unresolved contested case [@blnr_d1a_2019, p. 3]. The statutory shelter the legislature declined to revive was, within months, reanimated by a court's re-reading of the board's permitting statute. Under Act 126, A&B had submitted annual requests to BLNR for review and authorization of the holdover permits [@act126_2016; @strand_2018]. The original permits carried conditions, and the approvals had layered on more, among them an 80 MGD diversion ceiling set in 2017 and compliance with CWRM's June 2018 instream flow order [@blnr_d1a_2019, pp. 3, 28]. In its September 2019 compliance report, A&B stated that "water collection enabled by these East Maui revocable permits continued to serve the needs of the public water systems that serves Upcountry Maui and Nahiku" as well as "increasing diversified agricultural activities in Central Maui undertaken by Mahi Pono," and that "maintaining these Central Maui lands in agriculture is consistent with the state's constitutional mandate to protect important agricultural lands" [@ching_2019]. Ahead of the October 2019 BLNR meeting to determine the permit status, DLNR staff wrote in their recommendation to the Board that permit renewal "allows for the local production of food, supporting the goal of food sustainability and food security for Hawaiʻi," adding that "it may also translate into lower prices for consumers when produce does not have to be shipped to Hawaiʻi from outside of the state" [@blnr_d1a_2019, p. 15]. Deriving its estimate from the six highest-diversion months since sugar operations ceased, which averaged 33.45 MGD, staff recommended a cap averaging 35 MGD per month [@blnr_d1a_2019, p. 7]. Staff further signaled that, upon issuance of the long-term water lease or sooner if necessary, it would seek the Board's approval to require A&B/EMI to provide at least 5 MGD to serve State projects at Pūlehunui and the County of Maui's municipal and domestic needs [@blnr_d1a_2019, p. 6]. At the legislature, Mahi Pono had positioned itself as "one of 10 water permit holders" alongside utilities, ranchers, and small farmers [@mahipono_hb1326_2019]. Yet an exhibit attached to the staff submittal listed A&B/EMI at a 26.64 MGD average and the five other consumptive permit holders statewide, ranches, farms, and a community water cooperative, at a combined 0.28 MGD; the only other user of comparable scale, the Kauai Island Utility Cooperative's hydroelectric plant averaging 11.34 MGD, is counted as consumptive only because its water is not returned to the stream from which it is diverted [@blnr_exhibit1_2019]. At the October 2019 meeting, Mahi Pono told the board it required an annual average of 45 MGD for the coming year, 34 MGD at the start of the year rising to 56 MGD by its end, citing more than $60 million already invested in the operation and another $20 million planned for irrigation improvements [@cerizo_2019b]. The BLNR voted unanimously to issue new one-year permits to A&B and Mahi Pono at 45 MGD for 2020, 10 MGD above its own staff's recommendation, with the 5 MGD allocation for state, municipal, and domestic users incorporated within that total [@cerizo_2019b]. The cap was set as an annual rather than the monthly average staff had proposed [@dawson_2019]. In 2020, staff recommended no reduction and BLNR renewed the permits at the same 45 MGD for 2021, despite Mahi Pono's own demand estimates ranging from 24.5 to 32.3 MGD [@blnr_d8_2020, pp. 14-15], and denied the Sierra Club's request for a contested case hearing [@sierraclub.v.blnr_2025, p. 2]. In 2021 the Environmental Court voided those permits and ordered the hearing held, and in August the board granted the Sierra Club's request, covering the 2021 permits and their continuation through the end of 2022 [@blnr_minutes_20210813]. No renewal followed for 2022, the adjudication taking its place, and the court's interim caps governed until the contested case concluded. In the two renewals that followed, staff derived lower caps from actual use and the board, again, granted higher ones. In November 2022, staff recommended lowering the cap to 35 MGD, citing nine months of actual diversions averaging 14.15 MGD; the board granted 40.49 for 2023, the permittees' own estimate [@blnr_d5_2022, pp. 4-6]. That estimate itemized 27.91 MGD for diversified agriculture, 7.5 for the County of Maui, 0.07 for historical and industrial uses, 2.22 for reservoir, fire protection, evaporation, dust control and hydroelectric uses, and a further 2.79 as a cushion, described as ten percent of the projected diversified agriculture need [@blnr_d5_2022, p. 4]. Staff noted that the county's 7.5 exceeded what the county actually used, and that the surplus stayed in the ditch system and ran to reservoirs on the former plantation [@blnr_d5_2022, p. 6]. In December 2023, Mahi Pono sought its allocation on a per-acre basis, with authority to raise the cap as planting grew [@blnr_d8_2023, p. 5]. Staff recommended 22.7 MGD for the firm, calculated from the 9,079 acres then planted at 2,500 gallons per acre per day, a rate itself above the 1,836 the firm's 2022 reporting showed, and a total of 27.4 MGD once the county's 4.7 was added [@blnr_d8_2023, pp. 5-6; @blnr_d5_2022, p. 7]. Grant Nakama, Mahi Pono's senior vice president of operations, told the board that cultivation would reach a projected 14,800 acres by the end of 2024 [@yamamoto_2023]. Testifying for the Sierra Club, attorney David Frankel pointed to the companies' own usage data as showing no need for an increase. "What they have done consistently is exaggerate their needs to you," he said [@yamamoto_2023]. Before the vote BLNR chair Dawn Chang said "This is just a revocable permit for one year," recalling that she had challenged the department to move to long-term dispositions. "We cannot be doing these RPs," she said, "but we were stuck here" [@yamamoto_2023]. The board kept a fixed total rather than the per-acre design, settling on 12,500 acres for the calculation and approving 38.25 MGD for 2024, of which 31.25 went to the permittees for agricultural use, 6 to the county for the Kamole treatment plant and 1 to the Kula Agricultural Park [@blnr_minutes_20231207]; the flexibility it did grant was temporal. The permits themselves had run on an annual average until the contested-case order capped each month's diversion, while the courts' interim caps ran separately as monthly averages; the 2024 permit returned to the annual average [@blnr_d8_2020, p. 9; @blnr_d5_2022, pp. 5-6; @sierraclub.v.blnr_2025, p. 13; @blnr_d9_2024, pp. 6-7]. In December 2024, staff replaced the fixed total with the per-acre formula the firm had sought a year earlier. Calculating from the firm's reported 2024 use, 34.07 MGD across 10,442 planted acres, staff recommended a cap of 3,263 gallons per planted acre per day under which the allowable total would rise as planting expanded [@blnr_d9_2024, pp. 5-6]. That rate is not a crop requirement but a median of three months' total diversion per planted acre, covering system losses and non-agricultural uses alongside diversified agriculture [@blnr_d9_2024, pp. 4-5]. Staff framed the change as administrative, alleviating "the need to conjecture how much acreage will be planted in 2025" [@blnr_d9_2024, p. 6]. Staff also recommended returning to a monthly average, acknowledging it "may be more challenging to the Applicant" but calling it "more appropriate... to ensure compliance", noting that under the annual average adopted for 2024 they could not confirm the firm's compliance for the year before the board had to decide on the next permit [@blnr_d9_2024, pp. 6-7]. Nakama told the board the permit should stay on an annual average and that the staff volume was "too low, even if the annual average is used", and the board approved the 2025 permit at staff's 3,263 gallons per acre but on an annual average and with 1 MGD deducted from the resulting total, denying contested case requests from the Sierra Club and from the Native Hawaiian Legal Corporation on behalf of Nā Moku [@moseley_2024; @blnr_2024, pp. 11-12; @blnr_d3_2025]. Nā Moku's written petition followed six days later, and the board did not deny it until July 2025, more than half way through the permit year it concerned [@blnr_d3_2025]. The county's allocation was capped monthly and the firm's annually [@blnr_2024, pp. 11-12]. What the board issued for 2025 set the firm's ceiling not as a fixed total but a per-acre rate, the firm's reported use divided by its planted acreage to fix the rate and that rate multiplied by ongoing planted acreage to set the ceiling, rising as planted acres increased. This relegated the state's regulatory process to arithmetic on the firm's own figures. The board reversed the design a year later. In December 2025 staff proposed returning to a fixed total, 2,765.82 gallons per acre multiplied by the 12,734 acres then planted, or 35.22 MGD averaged annually, fixed rather than left to rise with planting [@blnr_d15_2025, pp. 4-5]. Staff attributed the recommendation to "concerns raised by Sierra Club that Mahi Pono is planting too many acres," an objection to allocation rising with planting [@blnr_d15_2025, p. 5]. The board adopted that figure and amended only the county's share, raising it from the recommended 6.25 to 6.5 MGD averaged monthly, and denied contested case requests from the Sierra Club and Nā Moku [@blnr_2025, pp. 10-11]. In July 2026 the Environmental Court reversed the 2026 permit, ordered a contested case hearing on it and the anticipated 2027 permit, and capped diversions in the interim [@namoku_v_kanakaole_2026]. Though the firm's claims at the legislature emphasized using only what water was needed, the BLNR annual permit process measured that need by the firm's own use and projections. The board, in setting ceilings above actual use and staff recommendations, demonstrated a willingness to provide for the firm on its own terms. This was exemplified in 2025 when the ceiling was set based on the firm's own plantings and use rates. Though the board stepped back from that design a year later, in no year did it set the ceiling below the firm's reported use. Under the public trust doctrine the private user must justify their use, which the courts, as will be shown, have read as a demonstration of actual need. The board, in never making need estimates of its own, took the firm's own use and projections as that demonstration. The most detailed account of the farm's projected water use would come in the firm's farm plan, put forward in the environmental review for the long-term lease. #### 4.4.2 BLNR: The Long-Term Lease ##### Environmental Review Alongside holdover permits, the parallel process of pursuing a long-term water lease was underway. In the months after the January 2016 ruling, while the holdover bill that would become Act 126 advanced at the legislature, the BLNR ordered A&B to submit a scope of work for environmental review in support of its application for a long-term water lease [@blnr_2016a]. In July 2016, BLNR directed preparation of an Environmental Impact Statement (EIS) under Hawaiʻi's environmental review law, Hawaiʻi Revised Statutes (HRS) Chapter 343, [@wilsonokamoto_2017]. A&B filed its Environmental Impact Statement Preparation Notice (EISPN) for a proposed 30-year lease of East Maui water in 2017 [@wilsonokamoto_2017]. The notice justified the lease as continuation, the EMI Aqueduct System "maintained to continue to serve the community, continue Maui's rich agricultural heritage, and to enhance the sustainability and diversity of Maui's economy" [@wilsonokamoto_2017, p. 22]. After the sale to Mahi Pono, and eighteen days ahead of the October 2019 BLNR vote, A&B published its 2,700-page Draft Environmental Impact Statement (DEIS) [@wilsonokamoto_2019]. Within the DEIS, A&B stated that Mahi Pono's "objective is to transition as much of the former sugarcane land as possible to diversified agriculture" and enumerated the firm's plans, jobs, and potential tax revenue to the state [@wilsonokamoto_2019, p. v]. Among the justifications offered for the 30-year lease was the finding that "\[d]iversified agriculture will increase the amount of local food production and enhance Hawai‘i's food security" [@wilsonokamoto_2019, p. v]. Food security had appeared nowhere in the EISPN's 106 pages prepared for A&B's proposed action [@wilsonokamoto_2017]. Where the notice had justified the lease as continuation, the DEIS built a case on Mahi Pono's food security narrative. Beyond food security, the DEIS deployed recurrent adjacent legitimation narratives, promising "increased local food sustainability" [@wilsonokamoto_2019, p. xiii] and "greater food self-sufficiency and more exports" [@wilsonokamoto_2019, p. xii]. The DEIS chapter assessing the Proposed Action's consistency with state and county land use plans, policies, and controls tied the same narrative to state policy, explicitly linking Mahi Pono production goals with those of the State and Governor Ige's Sustainability Initiative. As written, the "Water Lease under the Proposed Action will allow for the transition of approximately 30,000 acres of former sugar cane land in Central Maui to diversified agriculture" [@wilsonokamoto_2019, p. 5‑91], this "diversified agriculture operation will aid in achieving the State's goal of doubling local food production by the year 2020" [@wilsonokamoto_2019, p. 5‑4], "reduce dependence on oversea \[sic] sources" [@wilsonokamoto_2019, p. 5‑91], and "\[i]n the event of a major catastrophe limiting overseas food supplies, this diversified agriculture initiative could supply the State with significant amounts of food" [@wilsonokamoto_2019, p. 5‑5]. Such claims rested on a farm plan ([@tbl:farmplan]), which the DEIS's second chapter enumerated in crop-by-crop acreages, per-acre daily water rates, and each use's share of the total diversion. The DEIS is explicit about the plan's design, projecting use of "the total amount of water available after compliance" with the CWRM's 2018 instream flow standards, 82.33 MGD allocated against 82.35 available [@wilsonokamoto_2019, pp. 2-17, 2-18]. That availability counted the Department of Hawaiian Home Lands (DHHL) water reservation until converted to active use [@wilsonokamoto_2019, p. 2-17]. Of the plan's 30,000 acres, 43% would be orchards with the highest irrigation rate in the plan, consuming four of every five gallons of the proposed 30 billion gallons of annual water use. The orchard emphasis mirrored the operator's existing portfolio, Pomona Farming's California holdings running to almond, pistachio, and walnut orchards [@pomonafarming_2025]. PSP had acquired a majority stake in Pomona in 2017, by its own account to build "a larger platform, primarily focused on California almonds and water rights" [quoted in @rose-smith_2024]. : Mahi Pono farm plan under the proposed Water Lease. Adapted from Table 2-1 of the DEIS [@wilsonokamoto_2019, p. 2‑18]. {#tbl:farmplan} | Proposed Use | Acres | Gallon<br>Per Acre a Day | Total<br>MGD | Annual<br>MG | % of<br>Total | | ------------------------------------------- | ------ | ------------------------ | ------------ | ------------ | ------------- | | Community Farm | 800 | 3,392 | 2.70 | 987 | 3.28% | | Orchards (citrus, mac nuts, beverage crops) | 12,850 | 5,089 | 65.43 | 23,883 | 79.48% | | Tropical Fruits | 600 | 4,999 | 2.94 | 1,073 | 3.57% | | Row and Annual Crops | 1,200 | 3,392 | 4.09 | 1,491 | 4.96% | | Energy Crops | 500 | 3,392 | 1.70 | 622 | 2.07% | | Pasture, irrigated | 4,700 | 1,161 | 5.46 | 1,992 | 6.63% | | Pasture, unirrigated | 9,100 | 0 | 0.00 | 0 | 0.00% | | Green Energy | 250 | 0 | 0.00 | 0 | 0.00% | | **TOTAL** | 30,000 | 2,744 | 82.33 | 30,047.77 | 100.00% | *Note.* The source's Surface MGD and Ground Water MGD columns are omitted here. The source's "Annual MGD" column header is relabeled "Annual MG," as its values are annual million gallons (82.33 MGD × 365 ≈ 30,048 MG). The Tropical Fruits row reproduces an inconsistency in the source itself: 600 acres at 4,999 gallons per acre per day yields 3.00 MGD, not the 2.94 MGD shown, though the row's annual and percentage values are consistent with 2.94. The DEIS states no derivation for the per-acre rates; the plan as a whole is expressly built to the water available under the commission's 2018 decision (82.33 MGD allocated against 82.35 MGD available; see text). Elsewhere in the DEIS, the Social Impact Assessment, built from focus groups held in November 2018 and 18 interviews conducted the following April [@wilsonokamoto_2019, p. 4‑134], recorded community optimism about crop diversity and food self-sufficiency. Interviewees wanted "a healthy balance between allocating a portion of agricultural products for Maui food self-sufficiency and exportation for profit" [@wilsonokamoto_2019, p. 4‑144], and the assessment documented concern that "\[a]gricultural exportation may take precedence over local market" [@wilsonokamoto_2019, p. 4‑135]. Under the DEIS's own projections for the Proposed Action (i.e. the 30-year lease), estimated total farm sales would generate $160.7 million per year, $56.2 million (~35%) of which would be from export. Under the No Action/No Lease alternative, total farm sales would reach $57.7 million per year, $11.5 million (~20%) of which would be from export sales [@wilsonokamoto_2019, p. 3‑22]. Contrastingly, annual farm sales within Hawai‘i would more than double from $46.1 million under the No Action alternative to $104.4 million should the long-term lease be secured [@wilsonokamoto_2019, p. 3‑22]. : Projected annual farm sales under DEIS alternatives. Constructed from data in the DEIS [@wilsonokamoto_2019, p. 3‑22]. {#tbl:sales} | | Hawaiʻi ($M) | Export ($M) | Total ($M) | | --------------- | ------------ | ----------- | ---------- | | No Action | 46.1 (80%) | 11.5 (20%) | 57.6 | | Proposed Action | 104.4 (65%) | 56.2 (35%) | 160.6 | *Note.* Percentages show each market's share of the scenario total, computed on the component sums. Dollar figures are the DEIS's component values, which sum to $57.6 million and $160.6 million against the source's stated totals of $57.7 million and $160.7 million, a rounding artifact in the source itself. By the firm's own projections, then, the lease would expand local sales in absolute terms while shifting the composition of revenue further toward exports: the share of farm sales leaving Hawaiʻi growing from a fifth to more than a third. The application for public water was thus built on the proposition that more food for the islands required more food leaving them. The DEIS also included a Cultural Impact Assessment (CIA) that, from the historical record and consultation with community members, identified potential impacts to the regional environment, taro farming, freshwater ecosystems, and cultural sites [@hammatt_2019, pp. xii-xiii]. A majority of the taro farmers it consulted voiced concern over the lack of water needed to maintain a healthy and productive *loʻi kalo*, describing not just a crop but a way of life. One participant told the assessors that when the streams dry up, "that adversely impacts the way of life, the cultural practice if you will" [@hammatt_2019, interview summary for Kyle Nakanelua, pp. 233, 427]. The assessment also included sworn statements from the contested case that produced CWRM's 2018 IIFS, forwarded by Nā Moku's counsel, in which the hui's president, a Wailuanui taro farmer, shared the same sentiment: "Without the water, my whole way of life would be lost. Corporations last forever. Traditional people do not" [@hammatt_2019, p. 226; decl. of Edward Wendt ¶¶ 3-4, 20, at pp. 315, 317]. The DEIS executive summary characterized the assessment's informants as possibly having "an unclear understanding of how the CWRM D&O and the awarding of the Water Lease may affect cultural resources and practices," and attributed its reliance on testimony from that case to "the reluctance of many to participate in the CIA consultation" [@wilsonokamoto_2019, p. ix]. During the 45-day DEIS public comment period, environmental and Native Hawaiian groups critiqued the draft as deficient in its stream-by-stream disclosure and its treatment of cultural and ecological impacts [@rybak_2019d]. The comments submitted and responses from the applicant were documented in the Final EIS, submitted in 2021 [@wilsonokamoto_2021]. In one exchange, a taro farmer averred that flowing streams and taro were Maui's food security. The response explained that "the Hawaiʻi market is too small to use all of the farm products expected to be produced on the Central Maui agricultural fields, and thus some export is necessary" [@wilsonokamoto_2021, app. N, resp. to Burns no. 3]. The same response cited the share that would stay, approximately 65% of farm sales within the State, eliding the growth of the share that would be exported (see [@tbl:sales]). Hui o Nā Wai ʻEhā commented that many East Maui ahupuaʻa "have the potential for Native Hawaiian lineal descendants to return to their ancestral lands and cultivate them for their communities and the overall food security of Maui" [@wilsonokamoto_2021, app. N, Hui o Nā Wai ʻEhā comment no. 9]. The response reviewed the places the comment named and gave each stream's restoration status under the 2018 IIFS order, but limited its consideration of cultivation to existing or historical taro areas. It pointed to the Final EIS's projection that East Maui taro farms could cover about 55 acres by 2030, "all or nearly all" of that acreage in those areas and relying primarily on the fully restored streams, "given the barriers presented by terrain and the economic challenges of initiating new taro cultivation" [@wilsonokamoto_2021, app. N, resp. to Hui o Nā Wai ʻEhā no. 9; p. 4-290]. In both exchanges the question was the locus of food security. The mahiʻai located it not only in their existing loʻi and communities but in the potential for expanded cultivation on ancestral lands and the return of lineal descendants, on streams that in many cases remain diverted. The applicant, circumscribing East Maui's potential, took CWRM's standards as given and confined its projection to the taro lots on streams already fully restored. It located food security in the yield of Central Maui production, enabled in part by export. Other comments turned from the locus of food security to that of water control. An investigative group of the county's Board of Water Supply had studied buying the EMI system, and its vice chair attached the group's report to her own comment. That report named the "risk of allowing a private equity firm and foreign pension fund to control a significant amount of Maui's water, which is a Public Trust, and to have outsized influence over Maui's water, agricultural industry and food security for 30 years" [@wilsonokamoto_2021, app. N, Chan Hodges comment, attached BWS TIG report, p. 64]. The responses treated the report as a case for public ownership, an alternative they called speculative and outside the scope of the EIS, and did not address the influence risk the report named [@wilsonokamoto_2021, app. N, resp. to Chan Hodges nos. 1-4]. To another commenter's objection to a "foreign pension fund profiting from our public trust resources" [@wilsonokamoto_2021, app. N, Russell comment no. 29], the response differentiated profit and local benefits. It listed new agricultural activity, "food production, employment, payroll," and tax revenue as what the lease would bring [@wilsonokamoto_2021, app. N, resp. to Russell no. 29]. Profits, the response said, "when they exist, will be distributed to its investors," while "most of the economic benefits will remain in Hawaiʻi" [@wilsonokamoto_2021, app. N, resp. to Russell no. 29]. In both exchanges the question was control, and the answers were about scope and about where benefits would acrrue. The Final EIS also included an updated Cultural Impact Assessment. For the taro farming impact, the DEIS noted the commission's 2018 instream flow order "has the potential to reduce or eliminate this cultural impact" [@hammatt_2019, p. 395]. The update treated that mitigation as accomplished on the fully restored streams, since they "will remain fully restored and diversions will not be permitted," concluding that "cultural impacts to taro farming from water diversion at these locations have been mitigated." For the streams only partly restored, CWRM had set the standards for native stream animals and the gathering that depends on them, not for taro [@cwrm_2018, p. 238]. The update nonetheless presented this partial flow as "intended to minimize cultural impacts to taro farming from water diversion at these locations," and recorded the order's finding that the least restored streams have no known taro cultivation [@hammatt_2020, pp. 456, 459-461]. The Final EIS itself went a step further, concluding that further increases to stream flow "would not result in even greater amounts of farming in East Maui." All or nearly all additional taro cultivation, it reasoned, would occur "in existing/historical taro cultivation areas, not in new areas, given the barriers presented by terrain and the economic challenges of initiating new taro farms" [@wilsonokamoto_2021, p. 7-3]. Possibilities the *mahiʻai* had raised in the interviews and comments, *loʻi kalo* cultivation returning to streams where it had ceased and lineal descendants returning to work them, were thus addressed by reference to the IIFS order and by assumed barriers rather than by assessment. The Final EIS admitted historical areas in principle, yet found the impact mitigated, and projected farming, only on the fully restored streams. The EIS thus considered only one future, defined by what the applicant projected. BLNR accepted the Final EIS in October 2021 [@wilsonokamoto_2021]. Hawaiʻi's environmental review law is procedural, requiring that environmental effects be considered before approvals are granted [@antolini_2011]. Acceptance is, by the statute's own definition, "a formal determination" that the document "adequately describes identifiable environmental impacts," not a judgment on the merits of a proposed action [@hrs343, § 343-2]. The EIS is "a condition precedent to approval" of the lease [@hrs343, § 343-5]. A lease could not be issued without EIS acceptance, but nothing required a lease to follow. ##### Lease Decision In January 2022, the Maui county council adopted a resolution urging the mayor to seek an intergovernmental agreement that would let Maui County take over the proposed thirty-year lease, its sponsor arguing that county control would "allow the county to support local farmers, food security and sustainable agriculture" by managing the water "as a public trust resource" [@hiraishi_2022]. In November 2022, Maui voters approved a charter amendment giving the county power to create regional entities charged with managing water resources and taking over plantation-era water systems, and the East Maui Community Water Authority (EMWA) was the first established under it [@riker_2022a]. In September 2024, the board was scheduled to decide whether to issue a long-term lease at up to 85.23 MGD, drafted for sale at public auction, and whether to adopt staff's recommendation that a contested case hearing be held on it first [@blnr_agenda_20240927, item D-12]. Maui Mayor Bissen asked for a postponement so the county could work with East Maui water users toward a partnership, and the BLNR chair withdrew the item [@blnr_d4_2024; @dobbyn_2024]. In November 2024, the EMWA asked the board to grant it the lease by direct negotiation rather than sell it at auction, and staff recommended that the board weigh the two means of disposition together in a contested case hearing [@blnr_d4_2024]. The board voted the recommendation down [@blnr_minutes_20241108, item D-4]. In June 2025, A&B transferred to Mahi Pono the half interest in EMI it had retained since the initial sale, leaving the firm to pursue the lease alone. A&B also agreed to pay Mahi Pono $55.3 million in installments over four years, less than the 2018 agreement would have required if no long-term lease issued by 2026 [@lyte_2025]. In November 2025, DLNR staff recommended a contested case hearing a third time, and the county's request had grown. In 2024 it had sought a lease of its own, negotiated rather than bid. The alternative now before the board was a set-aside, under which the governor would transfer the water to the county by executive order, with no lease, no rent and no term, and with allocation passing from the state to the county. A lease, by contrast, holds the county to a fixed quantity for stated purposes and leaves allocation with the state [@blnr_minutes_20251114, item D-10; @blnr_d7_2026, p. 65]. The board deferred decision making for six months to let the county's negotiations with the firm continue [@huff_2025; @dlnr_2025]. In April 2026, the county asked the board to back an executive order that would set the water aside and hand the county the state's rights in the ditch system as well [@blnr_d7_2026, pp. 65-66]. Ahead of the board's August 2026 meeting, DLNR staff recommended against the county's request, on the reasoning that a set-aside would leave one entity to allocate the water, take a share for its own use, and sell the rest to a private user, in tension with the public trust [@blnr_d7_2026, pp. 65-66]. Staff proposed instead selling the lease at public auction for a thirty-year term, alongside a second thirty-year lease negotiated directly with the county to cover its domestic, municipal and agricultural uses, at the same 6.5 MGD it draws under the current permit [@blnr_d7_2026, pp. 62, 67]. ==Staff grounded both in the 1938 agreement's joint use of the aqueduct system "will make competitive bidding possible" [@blnr_d7_2026, pp. 60-61]. Because the agreement defines the Territory to include its licensees, staff reasoned, the county's water could move through EMI's system under the easement the state already held, and "no separate set aside or assignment of the State's easement interest is required" [@blnr_d7_2026, p. 61]. A third recommendation delegated to the chair an operations and maintenance agreement among the East Maui licensees for the EMI system [@blnr_d7_2026, p. 2]. Auction, staff wrote, "best realizes the public value of the resource for the benefit of the trust" [@blnr_d7_2026, p. 64]. The draft terms set the license to commence on "the date of sale if the current permittee is the successful bidder" [@blnr_d7_2026, p. 68].== %% DRAFTED 2026-09-18 (evidence): the state's own link from the 1938 competitive-bidding recital to the 2026 auction. All five quotations read today in the D-7 PDF; pages are the printed "Page N" (PDF page plus 1), matching this paragraph's existing cites. The first sentence is a short declarative and may want merging. Not included, because it rests on a text search of pp. 1-75 and not a full read: the submittal does not discuss who other than the permittee could bid. Confirm before asserting. Section VII of the Agreement (EMI bears all O&M cost so long as no one else is licensed) is quoted at D-7 p. 61 if wanted. %% The submittal recommended no contested case hearing, the first of the four staff submittals not to recommend one. Staff wrote that "setting a cap for water is not good water management as water is 'fluid'" and that the interim instream flow standards are "the more appropriate mechanism to ensure instream uses are protected," while limiting the auction to the 87.95 MGD the EIS had analyzed, up from the 85.23 MGD noticed in 2024 and against the firm's reported use of about 34 [@blnr_d7_2026, pp. 67-68]. Staff justified the disposition under the public trust as one that "allows for the local production of food, supporting the goal of food sustainability and food security for Hawaii" and "may also translate into lower prices for consumers when meat and produce do not have to be shipped to Hawaii from outside of the state," language staff had put to the board in 2019, alongside article XI, section 3 of the state constitution, which directs the State to promote diversified agriculture [@blnr_d7_2026, p. 63; @blnr_d1a_2019, p. 15]. For the August 2026 hearing, more than two thousand written testimonies were submitted, most in opposition: East Maui taro farming families, Native Hawaiian organizations, officials from the mayor to the OHA chair, the EMWA among them, and, from Ottawa, the Public Service Alliance of Canada, the union whose members' pensions PSP invests, alongside well over a thousand individual submitters [@blnr_d7t_2026; @blnr_d7t1_2026, pp. 115-120; @schaefers_2026]. Most of the opposition argued that no long-term disposition should precede the contested case the court had ordered on the permits; behind that ran the county's process, the public trust, and the still-partial stream restoration [@blnr_d7t_2026]. The Hawaiian Homes Commission chair opposed the license because DHHL's water reservation, requested in 2020, had never been addressed, water the lease's farm plan had counted as available to the farm until converted to active use [@blnr_d7t2_2026, pp. 164-167; @wilsonokamoto_2019, p. 2-17]. Support came from the Hawaii and Maui County Farm Bureaus, the Maui Cattlemen's Association, produce distributors, and the firm's own workforce. The firm's written testimony opened on their accomplishments, "more than 20,000 acres of fallow lands," formerly in sugarcane, into "an active and diversified farm," and gave the firm's mission as growing food locally to improve Hawaiʻi's "food sustainability outlook." It then turned to water. The continued success of the farm, and of "every other agricultural venture," was "entirely dependent on access to an adequate, reliable, and cost-effective source of irrigation water" [@blnr_d7t2_2026, pp. 463-465]. The rest of the testimony accepted the commission's 2018 order, endorsing the stream restorations it required and the priority of uses that puts instream needs, cultural practitioners and the county ahead of the firm. It supported the county's separate license and asked for the stability a long-term disposition would bring. At the hearing, asked whether the disposition should be deferred for further negotiation with the county, its counsel answered that the county had "no land, no easement, no transmission rights, no ability to transmit water from the sources to where it needs it at the weir," and that moving the water "would require Mahi Pono's land, Mahi Pono's infrastructure" [@blnr_audio_2026].^[The author gave oral testimony at this hearing as advocacy director of the Hawaiʻi Farmers Union, in opposition to the disposition [@blnr_audio_2026].] After nearly eight hours of testimony, the board's Maui member moved to deny the staff recommendations for the thirty-year lease auction. The firm and EMI responded with a request for a contested case hearing, asserting a property interest as current permittees; the motion to grant it failed on a three-to-three vote [@blnr_livestream_2026; @schaefers_2026]. The board then denied the disposition in full, unanimously [@blnr_livestream_2026; @schaefers_2026]. For the long-term lease, the food security rationale backed the shift from temporary permit disputes to a thirty-year allocation. When staff carried that rationale into the lease recommendation, the firm's narrative became the state's reasoning. The farm plan ([@tbl:farmplan]), allocating water by acreage at assumed per-acre rates, was the most detailed projection of water use in the record. That it was not built from current use or need, but instead scaled to the full volume of water available above the IIFS, was taken as a given. The review evaluated the impacts of diverting everything above the commission's standards, and nothing else. This boundary of planning and review, existing stream flow and cultivation as the commission's order left them, was the applicant's proposed action and its projected future. Greater cultivation in East Maui fell outside that frame. No counter calculations considered the outcomes of fully restored streams, nor their potential to again feed the loʻi and people of East Maui. The food security narrative, like the volume of need, was thus never held to measure. In the auction staff proposed, the state adopted this future as its own, against the futures of East Maui outside the frame. The board's denial of the auction was its first refusal of the firm in this record. Though the thirty-year lease was denied, the annual permits would continue. Now, for the second time, and again only because a court required it, the board would have to decide the firm's permit on an evidentiary record rather than on the firm-provided figures [@namoku_v_kanakaole_2026; @dlnr_nr26100_2026]. #### 4.4.3 CWRM: Nā Wai ʻEhā Surface Water Use Permits Nā Wai ʻEhā, the four streams of Central Maui (the Waiheʻe and Wailuku rivers, Waiehu and Waikapū streams) supplies a western portion of Mahi Pono's lands, the roughly 3,700-acre Waiheʻe-Hopoi fields, a supply separate from the East Maui system [@cwrm_2019; @cantor.etal_2020]. Sproat [-@sproat_2011], writing while the contested case was still running, frames the Nā Wai ʻEhā proceeding as a matter of environmental justice, the fair treatment and meaningful involvement of communities in the enforcement of environmental law [@sproat_2011, p. 136]. The watershed's 2008 designation as a surface water management area made water use there subject to CWRM permits, and users across the watershed applied, from kuleana kalo farmers to the county to HC&S. Their applications, together with community petitions to restore streamflow, were adjudicated in a contested case that Hui o Nā Wai ʻEhā and the Maui Tomorrow Foundation had set in motion nearly two decades earlier [@cantor.etal_2020; @dawson_2021]. In 2017, a CWRM hearings officer recommended 15.65 MGD for HC&S's diversification plans to irrigate bioenergy crops, with the community groups' exceptions seeking to cut the allocation to 4.68 [@cwrm_2019]. At the August 2019 hearing on substituting Mahi Pono for HC&S on the application, Nakama was asked for specific water requirements, replying that "We're still working on the farm plan, and of course a lot of the farm plan is driven by how much water we would be allocated," placing his estimate only "in the middle of 15 and 30-something" [@uechi_2019b]. At that same hearing the firm suggested it might seek to reopen a portion of the case. In November 2019 Mahi Pono entered a stipulation instead with the Office of Hawaiian Affairs, the Hui, and Maui Tomorrow. The stipulation converted the use to food crops and set a two-tier allocation derived from the commission's standard water duty for diversified agriculture, 2,500 gallons per acre per day across the plantable acreage, 9.35 MGD initially, rising to 11.22 only on a licensed surveyor's confirmation that planted food crops, actual need, and loss reduction had materialized [@cwrm_2019; @dawson_2021]. Skipping the food security vocabulary of its legislative testimony, Mahi Pono highlighted water use efficiency and local provisioning, stating that water would be "requested and delivered…only when needed, and only in quantities equating to the requirement for crop irrigation," so that it could "grow fresh, local, and GMO-free food for the Maui community" [@mauinow_2019a]. CWRM commissioners commended the consensus [@mauinow_2019a], and the Hui's board president credited the settlement in part to community pressure after a rally that drew hundreds [@cerizo_2019d]. In June 2021, after months of deliberation across numerous users' applications, the commission granted 176 permits in all. The decision initially allocated 15.65 MGD to Mahi Pono, the volume recommended in 2017, rather than the parties' 2019 agreed amount, numbers that worked out to roughly 4,500 gallons per acre per day across the firm's fields while the same order held other diversified agriculture users to 2,500 [@dawson_2021]. Two days later the commission issued an amended "errata" that recalculated the firm's total irrigation need at 9.125 MGD, applying the same duty the stipulation had been built on, and rejected Mahi Pono's claimed system losses as "excessive and unsubstantiated" [@cwrm_2021; @dawson_2021]. Crediting the firm's well water against that need left a stream allocation of just under 5 MGD [@cwrm_2021]. The errata presents its revisions as corrections of calculation error [@cwrm_2021], though it came a day after the community groups flagged the overallocation and raised the possibility of an appeal [@dawson_2021]. Mahi Pono sought reconsideration on the ground that it had settled in 2019 at the commission's urging only to be allocated less than half the stipulated amount, the just-under-5 MGD against the 11.22 [@dawson_2021a]. The commission denied the motion, with Chair Case explaining that CWRM "has to consider the larger picture and its trust responsibilities to balance water use amongst users, uses, and resource protection" and that every other diversified agriculture permittee was held to the per-acre standard [@dawson_2021a]. The decision left the firm one of the 176 permittees drawing on the Nā Wai ʻEhā streams, held to the same 2,500 gallons per acre per day as every other diversified agriculture user [@dawson_2021]. Parties from all sides, Mahi Pono included, appealed the order, diverting Nā Wai ʻEhā again into the courts. The commission's order went up on appeal, brought by parties from all sides, Mahi Pono included. In June 2024 the supreme court sent it back, ordering CWRM to reset the stream flow standards, to take back the shortage-balancing duty it had handed to Wailuku Water Company and "to a lesser extent, Mahi Pono," and to show how it had arrived at Mahi Pono's allocation, which the order "does not make reasonably clear" [@inre.nawaieha_2024, pp. 4-5]. Each executive body pointed to the other for the question it did not take up. CWRM's order set what must stay in each stream and left offstream allocation to the board, listing issues "for the BLNR to consider in their future water lease deliberations" [@cwrm_2018, p. ii], even as the same order aimed to leave available "about 90%" of the irrigation need it presumed for the 23,000 acres of important agricultural lands. BLNR for its part deferred to the commission's standards on instream protection, its staff calling them "the more appropriate mechanism to ensure instream uses are protected" when recommending the lease and reasoning, when denying Nā Moku's 2025 petition, that "[o]nly CWRM ... may address aspects of water use regarding a stream" [@blnr_d7_2026, pp. 67-68; @blnr_d3_2025, p. 6]. Between the two, neither was obliged to examine what the firm actually needed, and both avoided adjudication until a court required it. Once required, what each produced differed. Ordered by a court to hold a hearing on the East Maui standards, the commission put the diverter's water needs, its losses and its restoration schedule on a record and made findings on them, and at Nā Wai ʻEhā it did the same to Mahi Pono's own claims. At the board no statute obliges a hearing, and the two it has held on these permits were both ordered by courts. Across the same years it granted more than its staff recommended in three renewals without recording why, and denied contested case requests whenever it was free to deny them. For East Maui communities, any future amendment of the instream standards carries the burden of establishing productive acreage on streams still partly diverted. The last such proceeding took seventeen years, more than half the term the proposed lease would have run. The mahiʻai, whose practices and water access are constitutionally protected, bore that burden, and had borne a century of dewatered streams before it. The firm, by contrast, could claim all the water available and project from that figure what it would accomplish. ### 4.5 The Judiciary Disputes over BLNR renewals and CWRM allocations all landed in the courts, where the litigation tested whether the state had followed its own law in authorizing the diversions. The taro farmers' *Carmichael* litigation asked whether the BLNR permits could be held over at all, and the Sierra Club's successive appeals attacked how each renewal was decided. The litigation reached what could be measured of the firm's stewardship, the water it used and the losses in its ditches, but never weighed its food security outcomes. The firm's food security narrative was, however, tried as a claim that the public trust protected its diversions. ##### Holdover Authority and Procedural Rights, 2016 to 2022 When Mahi Pono was formed, A&B's appeal in *Carmichael v. BLNR* was pending. Taro farmers had challenged the held-over permits, and in early 2016 the circuit court had ruled the permits' continued holdover unlawful [@carmichael.v.blnr_2016]. In June 2019 the Intermediate Court of Appeals (ICA) overturned that ruling. The ICA held that under the public lands statute (HRS § 171-55) the BLNR could keep the permits in holdover status so long as the holdover remained temporary and served the best interests of the State [@carmichael.v.blnr_2019, pp. 13-14]. The next two renewals issued under that authority. At the November 2020 renewal, the BLNR denied the Sierra Club's request for a contested case hearing, and the Sierra Club appealed to the Environmental Court [@sierraclub.v.blnr_2025, pp. 12-13]. In May 2021 the Environmental Court ruled that the denial had violated the Sierra Club's due process rights [@sierraclub.v.blnr_2025, pp. 12-13]. The court voided the permits but paused its own order, directing the BLNR to hold the hearing it had refused, and in July the court capped diversions at 25 MGD, averaged monthly, until that hearing concluded [@sierraclub.v.blnr_2025, pp. 12-13]. The BLNR convened the court-ordered contested case in December 2021, and DLNR chair Suzanne Case appointed herself hearing officer [@sierraclub.v.blnr_2025, p. 13]. In March 2022, a unanimous Hawaiʻi Supreme Court threw out the ICA's decision and revived the 2016 ruling: the permits "were not authorized under HRS § 171-55" [@carmichael.v.blnr_2022, p. 53]. In *Carmichael v. BLNR*, the court found the board had continued the permits "for more than ten years" and "without scrutiny and without an adequate explanation as to why a continuance served the best interests of the State," concluding that the board "did not comply with HRS § 171-55 or its public trust obligations" [@carmichael.v.blnr_2022, p. 38]. The court further held that the permitted diversions were an "action" using state lands, subjecting them to Hawaiʻi's environmental review law; whether they qualified for an administrative exemption from review went back to the circuit court to decide [@carmichael.v.blnr_2022, p. 50]. In May 2022 the Environmental Court lowered the interim cap to 20 MGD [@environmenthawaii_2022]. The court's caps ran only until the contested case concluded, and the following month it did: Case's June decision and order restored the 45 MGD ceiling the BLNR had first set in 2019, 10 MGD above what its staff had recommended [@blnr_d5_2022, exh. B; @sierraclub.v.blnr_2025, p. 13; @cerizo_2019b]. The supreme court had condemned the holdover practice without adjudicating volumes, while the Environmental Court's caps were solely an interim limit. The BLNR, having run the contested case itself, set the ceiling where it saw fit. ##### Water-Need Evidence and Interim Limits, 2022 to 2024 The Sierra Club appealed again over the 2023 renewal, challenging the BLNR refusal of another contested case hearing, and there, in June 2023, Environmental Court Judge Jeffrey Crabtree capped diversions at 31.5 MGD, reaffirming the cap by written order in July [@blnr.v.crabtree_2024, pp. 2-3]. A&B and EMI moved the court to restore the 40.49 MGD ceiling the board had set at its November 2022 renewal, traced above, supporting the motion with a chart from Nakama that put anticipated crop needs at 31.53 MGD for the year [@dawson_2023a]. Sierra Club attorney David Frankel argued the numbers were "speculative opinions ... inadmissible under Hawaiʻi Rules of Evidence" [@dawson_2023a]. His rebuttal put three rates before the court: the 5,089 gallons per acre per day the firm claimed, the DEIS farm plan's orchard rate ([@tbl:farmplan] above); the 2,541 that CWRM's Ayron Strauch estimated for citrus at full build-out by running the University of Hawaiʻi's irrigation model;^[The Irrigation Water Requirement Estimation Decision Support System (IWREDSS), which estimates crop irrigation requirements by crop, soil, and location.] and the 1,930 the firm's own quarterly reports showed its orchards actually using [@dawson_2023a]. In court, Frankel argued, the firm supported the 5,089 rate by citing the model's crop coefficients while never running the model [@dawson_2023a]. The DEIS itself specifies no method for the rate other than stating that the plan projects use of the total water available [@wilsonokamoto_2019, pp. 2-17, 2-18]. In August 2023, days after fire destroyed Lahaina, the board asked the supreme court to override the environmental court directly, mid-case, rather than appeal in the normal course,^[A petition for a writ of mandamus, an extraordinary remedy courts grant only where the petitioner shows a clear right and no other path to relief.] asserting the cap left too little water to fight the fires [@blnr.v.crabtree_2024, pp. 12-13]. The supreme court denied the petition within the month, noting the cap had already been suspended for fire suppression at the companies' own request [@blnr.v.crabtree_2024, p. 13]. In the Environmental Court, meanwhile, the motion to restore the 40.49 MGD was still pending, and in September 2023 Crabtree ruled informally against it, finding the companies had failed to meet their evidentiary burden to demonstrate their actual water needs [@dawson_2023a]. Before the board, the parties had by then agreed to a contested case hearing on the 2023 and 2024 permit continuations, but they could not agree on what the permits' status would be while it ran [@blnr_d8_2023, p. 4]. In December 2023 the board let the four license-area permits held-over since 2001 sunset, and issued one new permit for 2024, the renewal traced above [@blnr_d8_2023, p. 4]. In April 2024 the Intermediate Court of Appeals overturned the Environmental Court's May 2021 due process ruling, holding that the BLNR denial of the Sierra Club's requested hearing had not violated due process [@sierraclub.v.blnr_2024, p. 34]. Days later, the supreme court granted the Sierra Club attorney fees over the board's petition against the environmental court, finding its firefighting-water claims "so 'manifestly and palpably without merit, so as to indicate bad faith'" [@blnr.v.crabtree_2024, p. 16]. ##### Public Trust Duties and Hearing Requirements, 2025 to 2026 In September 2025, in *Sierra Club v. BLNR*, the supreme court restored the Environmental Court's 2021 ruling.^[Two side fights were still running. The Sierra Club's separate appeal of Case's June 2022 contested-case decision, thrown out as moot in March 2023 once the permit year ended, was revived by the ICA in December 2024, reasoning as in *Carmichael* that one-year decisions would otherwise escape review entirely [@sierraclub.v.blnr_2024a, pp. 2, 4]. And in April 2025 the ICA reversed Crabtree's 2023 rulings, the supreme court agreeing that August to review the reversal [@sierraclub.v.blnr_2025a].] Before the BLNR could vote to renew the permits, the court held, the constitution entitled the Sierra Club to the contested case hearing it had requested in November 2020 [@sierraclub.v.blnr_2025, p. 6]. By then the vote was five years old, and the permits it renewed had lasted just one. The rulings kept arriving after the permits they judged had expired. In October 2025 the Sierra Club's appeal of the June 2022 contested case decision, the one that had restored the 45 MGD ceiling, ended with the Environmental Court reversing that decision. The court found the board had breached its public trust duties on five grounds, among them failing to hold the companies to their burden on actual water needs. For future permits it instructed the board to require practical mitigation of system losses, to have CWRM's instream flow standards in place and implemented before more water is taken, and to make findings on traditional and customary practices [@sierraclub_v_blnr_794_2025, ¶¶ 8-9]. In January 2026 the court vacated the 2025 permit on the Sierra Club's appeal, because due process had required a contested case hearing before renewal [@sierraclub_v_chang_2026, ¶¶ 9, 15]. In February it vacated the same permit on Nā Moku's appeal, because the board had made no findings that renewal served the State's best interest and none on Native Hawaiian practices [@namoku_v_blnr_2026, ¶¶ 18-20]. Within weeks of the BLNR's December 2025 decisions on the 2026 permit, both the Sierra Club and Nā Moku appealed to the Environmental Court, each challenging the denial of its own contested case request and the permit approval itself [@sierraclub_appeal_2025; @sierraclub_v_kanakaole_2026, ¶ 1; @namoku_v_kanakaole_2026, ¶ 1]. In July 2026 the court reversed the approval and sent the matter back to the board, holding that due process required a contested case hearing before any renewal [@namoku_v_kanakaole_2026, ¶ 15]. The court found the BLNR had also breached its public trust duties "by (1) failing to render independent findings for the identification and protection of Native Hawaiian traditional and customary practices, and (2) failing to operate with a presumption in favor of public use and access to the water resources at issue" [@sierraclub_v_kanakaole_2026, ¶ 22]. BLNR had defended the permit by adopting CWRM's 2018 decision and order setting the IIFS, on the reasoning that the standards already protected instream uses. The court endorsed Nā Moku's argument that the two agencies exercise "distinct and independent kuleana," CWRM setting the minimum that must remain in a stream and BLNR determining independently how much above that minimum may be diverted, so that "BLNR is not required to grant any amount of water above the IIFS" [@namoku_v_kanakaole_2026, ¶ 17]. It ordered the hearing held on the 2026 permit and the anticipated 2027 one, rejecting the board's objection that the one-year permit term made it impossible [@namoku_v_kanakaole_2026, ¶¶ 18-20]. Pending that hearing it capped diversions at 31.5 MGD, of which 6.5 went to the county, leaving the firm 25 against the 34.07 its own reports had produced for 2024. Unlike the rulings before it, this one reached past the permit year, binding the 2027 permit as well as the 2026 one, and the hearing it compelled was the one the board had declined whenever it was free to [@namoku_v_kanakaole_2026, ¶¶ 18-20]. Mahi Pono and EMI told the court that BLNR had faced a yearly choice between "granting Sierra Club's request for a CCH and cutting off the diversions" or "ensuring the continued delivery of water to the County for municipal and domestic purposes and central Maui for Mahi Pono's diversified agriculture crops" [@sierraclub_v_kanakaole_2026, ¶ 16 n. 9]. The court found the same premise in the board's description of its interest as "ensuring uninterrupted water for municipal purposes . . . as well as supporting agriculture," calling it "an apparent misunderstanding that each year's East Maui RP renewal is an 'all or nothing' decision," and held that the framing "improperly framed the issue in a way that practically assured" the Sierra Club's request would be refused [@sierraclub_v_kanakaole_2026, ¶¶ 5, 16-17]. Mahi Pono argued in its brief defending the permit that diversified agriculture is a protected trust purpose under article XI, section 3 of the state constitution [@sierraclub_v_kanakaole_2026, ¶ 31]. The court accepted that diversified agriculture is consistent with the public interest but held that this "does not obligate the State or its agencies to authorize stream diversions for off-stream private use as a matter of course, or otherwise defeat the presumption in favor of public use and access," and that any balancing of competing interests in water "stops short of embracing private commercial use as a protected 'trust purpose'" [@sierraclub_v_kanakaole_2026, ¶¶ 30-31]. With that, the courts had moved from correcting the board's procedure to stating its duties. Across this mire of cases, communities and advocates went to court to make the state follow its own law, while the firm went to court to defend its diversions as the questions were decided. In a decade of rulings, the courts had found the held-over permits unauthorized, the firm's numbers unproven, the BLNR's firefighting-water claims made in bad faith, CWRM's streamflow standards failing the public trust, and the renewal process unconstitutional. Yet water never stopped flowing to Mahi Pono parcels. What the firm carried into these proceedings fared no better than the state's conduct did. The narratives reached the courts only after translation into legal propositions, and neither survived being stated as a claim about what the state owed the firm. The August 2026 denial left the firm where the decade of litigation had already placed every other dispute over this water. Mahi Pono had asked the board for a contested case hearing and been refused. Whether it would appeal the denial, and carry into court the property interest it had asserted before the board, was unresolved as this chapter was written. ### 4.6 Conclusion: Narratives and Neoregulation This chapter asked what narratives the firm carried into each arena, what it pursued there to secure water, and what each branch of the state did in response. Mahi Pono's social license, as the previous chapter documented, was built on three interlacing narrative claims: that it is a local entity, farming by local values, and delivering local benefits. To varying degrees, each claim surfaced in the firm's policy pursuits. The local entity claim arrived mostly as letterhead, with "A Maui Farming Company" affixed to legislative and BLNR testimony. The firm's Hawaiian-cum-corporate values served its public identity building. At the legislature it invoked those values, terming itself a steward of land and water, and at the commission the claim narrowed to using water only when and as needed. The local benefits narrative, broadly relating to food security and self-sufficiency, reached the most arenas: in legislative testimony, environmental review, and in modified form before the courts. With these narrative claims the firm brought its social license efforts from general public relations into the specific policy work of securing water access. More broadly, that legitimacy building created a qualitative context within which the quantities of water it pursued were understood. The actions the firm pursued through those arenas were an extension of the holdover statute, annual permits, a thirty-year lease, a permit at Nā Wai ʻEhā, and the defense of each when challenged in court. The state's role was legible in the procedural design of each arena. That design shaped what claims could be made and how, or whether, such claims would need to be defended. At the legislature there are no evidentiary standards, so narrative claims in that arena serve a contextual function, constructing stakes against which a bill is weighed politically. At CWRM communities could compel a contested case while BLNR routinely denied such requests. In the courts a claim had to arrive as law. The food security narrative therefore entered as the nearest proposition legal doctrine could offer, that diversified agriculture is a constitutionally protected public trust purpose, argued from case law that such use serves the self-sufficiency of the state [@sierraclub_v_kanakaole_2026, ¶ 31]. Though the court declined this argument, BLNR staff used it weeks later in their recommendations. Arenas thus varied in how claims were tested, whether hearings could be compelled, and what qualified as evidence to make such claims. Read against the policy lens, this chapter documents both halves of what Pechlaner and Otero call neoregulation, regulation in favor of capital that pairs "weak regulatory oversight" with strong, actively constructed protection [[email protected]_2010, p. 193]. The weak oversight took a different form in each arena. The department had no guidelines for long-term leasing, and the legislature let die the one draft that would have attached conditions to the holdovers. The board granted above its staff's figures without findings and denied hearings whenever it was free to. The environmental review left the applicant to draw the boundary of what counted as an impact, and acceptance asked only whether that boundary was adequately described. Between the two executive bodies, each pointing to the other, no one was obliged to examine the firm's need at all. That gap served as a protection that would otherwise have had to be legislated. On the protection side, the record shows individuated actions by the state that procedural design alone does not describe. Act 126 was enacted for A&B weeks after a court rebuked the holdover practice, and the 2019 bill to extend it was, in the Sierra Club director's words, "intended to provide for A&B," dying once its amendments no longer did [@blair_2019d]. The 2025 ceiling BLNR set for Mahi Pono rose with the firm's own planting, though temporary this approach supplanted regulating for reporting. The beneficiary changed but the state's practice of tooling for a sole corporate actor did not. The zombie infrastructure, as Kay and colleagues describe, has not just a physical embodiment, but a legal one [@kay.etal_2023]. The holdover permits and the statute that sheltered them outlived the plantation as the ditches did, and served its successor the same way. ==An older legal body of the same kind is the 1938 agreement. Its recital named competitive bidding as the purpose, and every license sold under it went to EMI. In 2026 staff made it "the basis" of the auction they recommended [@blnr_d7_2026, p. 60]. The agreement aimed at competition and left standing what made it unlikely, license terms written for a sugar user and an easement that outlasted every license. The county bought state water back at many times EMI's price, and East Maui residents, whose rights the licenses reserved, were not parties to the bidding or the conveyance. The 1950 license had required its holder to take all available water. In 2026 staff set the auction at 87.95 MGD, with a plan for the water's use due within thirty days of the board's approval [@blnr_d7_2026, pp. 68, 75]. In both years the amount came first and the use was fitted to it. The commissioner who in 1902 said that "the homestead lands will be protected" and the staff who in 2026 wrote that the auction "allows for the local production of food" each spoke for a disposition in the language of local benefit.== %% REWORDED 2026-09-19 after HH said the sentence "needs to be clearer". First version: "The 1950 license had required its holder to take all available water, and in 2026 the quantity was again set first, with the plan for its use to follow." What was unclear: which quantity, set by whom, and what "again" joined. Now three sentences: the 1950 duty, the 2026 sequence with its figure and both pages (p. 68 for 87.95 MGD, p. 75 for the plan), and the parallel stated outright as HH's judgment ("In both years the amount came first and the use was fitted to it"). "due within thirty days of the board's approval" follows the source's words, since p. 75 does not say whether that falls before or after the auction itself. Earlier note follows. ADDED 2026-09-19 at HH's request ("place that sentence as a span with the p. 75 cite"): the 1950 and 2026 parallel, the present-day corollary of "A bidder needed cane to irrigate at the end of the ditch" in 4.2. The 1950 half restates the 4.2 paragraph (GL 3349 Provision 4, D-7 Ex. A p. 25: March 1 to November 30, up to the Licensor's share of aqueduct capacity; "all available water" is the license's phrase). The 2026 half is new to the chapter, hence the citation: D-7 p. 75, draft condition 15, read 2026-09-19, "Within 30 days of the Board's approval, each Licensee must submit a Water Use Plan to be approved by the Chairperson", with the quantity fixed at p. 68 ("limited to the amount that the EIS contemplated, which is 87.95 MGD") and the rent appraisal also waiting on that plan (p. 71). Deliberately NOT said: that the lease was sized to the farm plan. Staff tie the quantity to the EIS, not to the farm plan by name; the DEIS farm plan totals 82.33 MGD against staff's 87.95, and the difference has not been traced (check the FEIS before any sentence joins the two figures). "again" is HH's judgment joining the two years. It echoes line 190's Nakama quotation ("a lot of the farm plan is driven by how much water we would be allocated"). Since this introduces one new fact in a conclusion, an alternative is to put the p. 75 sequence into the 4.4.2 staff paragraph and leave this sentence uncited. %% %% REVISED 2026-09-19 after two review passes (academic-writing-coach, academic-humanizer) and HH's "make the fixes": the long analytic paragraph that followed this one carried six facts new to the chapter, so its evidence moved to a new paragraph in 4.2 and its claim came here as two sentences, placed before the epigraph-return sentence so that "the language of local benefit" still hands off to "No state arena is designed to evaluate narrative claims". Both new sentences restate 4.2 and carry no citation, per the closer convention. JUDGMENTS that are HH's: "left standing what made it unlikely" and "many times EMI's price" ($40 against $1.26 to $3.556, so roughly eleven to thirty-two times). "were not parties to" rests on the parties named in the 1938 Agreement and the licenses. The replaced paragraph and its comment are in the verification log. Earlier note follows. DRAFTED 2026-09-19 (HH leaning toward drafts): the epigraph's return and the 1938 callback, restating the 4.2 and 4.4.2 spans, so it re-cites only the one new quotation ("the basis", D-7 p. 60). Both epigraph quotations are cited at the chapter head. The first sentence is a short declarative and may want merging. What this draft does not do is the analytic step HH named (a design aimed at competition that leaves the incumbent's consolidated position and the cost to communities unaddressed); the beats below hold the verified material for that, to write over or to ask for as a draft. %% ==BEATS for the 4.6 neoregulation paragraph (write in your voice, then delete the bullets). Job: name the 1938 Agreement as the older legal body of the zombie and say what an auction designed for competition leaves untouched, the incumbent's consolidated position and the cost to those who do not control the conveyance. Extends the paragraph above; it is not a new paragraph unless you want one. - The Agreement's stated aim was competitive bidding. This restates line 43; one clause here. - Every license auctioned under it went to EMI, and the county said in 1961 it made bidding "almost impossible" for anyone else. Restates line 43; one clause. - In 2026 staff made the same Agreement "the basis" of the auction they recommended. Restates line 43; one clause. - New fact, needs its cite: the Territory reserved "the right to issue other and licenses and leases within the Licensed Area" in the 1950 Keʻanae and 1955 Nāhiku licenses, and on this record never used it [@blnr_d7_2026, Ex. A pp. 25, 27]. - New fact, needs its cite: the perpetual easement outlived every license and "is in place irrespective of the issuance of any Water Lease" [@wilsonokamoto_2019, p. 3-6]. The paragraph above names the holdover permits and Act 126 as the zombie's legal body. The easement is older than both. - Cost to the county, new facts: in 1961 it paid EMI $40 per million gallons for water EMI bought from the state at $1.26 to $3.556, and its upcountry districts were "very dependent on East Maui Irrigation Company and its willingness to sell" [@mauibos_1961, p. 1]. Carry the qualification: within the year the state gave the county a carve-out inside EMI's Huelo license (a first right through the Kula system, 1.25 MGD without payment), not a license and not the conveyance [@blnr_d7_2026, Ex. A pp. 29-31]. - 2026 echo: the county asked for the state's rights in the ditch system and staff kept them with the state (lines 172 and 174). Restatement; a clause. - Cost to East Maui, new facts: the 1950 Keʻanae license "required the Licensee from March 1 to November 30 of each license year, to take all available water" [@blnr_d7_2026, Ex. A p. 25]. The Native Hawaiian Legal Corporation asked for a contested case on renewal of the Keʻanae, Nāhiku and Huelo licenses in July 1984, for taro farmers [@blnr_d7_2026, Ex. A p. 32]. D-7 does not give the outcome. - Judgment, flagged as yours and not a source's: that the design aims at competition and does not address the incumbent's consolidated power. The record under it is the single bidder from 1938 to 1962 and the 2026 commencement clause written for "the current permittee" (line 174). That D-7 nowhere discusses another bidder rests on a text search only. - Judgment, flagged as inference: stream communities appear in these instruments only in reserved-rights clauses and never as a party to the bidding or the conveyance. The clauses are attested; "never" is an absolute and has not been checked against every license. - Settled reading: the design is state action, the same point the next paragraph ends on ("Deferral, renewal, and lag were not the state standing aside"). Do not repeat that sentence here.== %% [2026-09-19: most of these beats are now drafted, the evidence at line 45 in 4.2 and the claim in the callback above; this block can be deleted once HH is satisfied.] BEATS 2026-09-18 for the 4.6 neoregulation paragraph, at HH's request to connect the 1938 "competitive bidding" to the 2026 auction. Sources and verification in [[Competitive bidding 1938 to 2026 - beats for 4S]] and [[D-7 2026 license history - review against the research note]]. Depends on the drafted spans at lines 43, 45 and 174; if either is cut, the restatement beats need their cites back. The 1938 Agreement instrument (toh.emi_1938) and the 1961 Maui County resolution and summary (mauibos_1961) were added to Zotero 2026-09-18 under HH's keys. The recital is still cited through D-7's quotation of it; cite the instrument directly (p. 1) if preferred. Line numbers recomputed 2026-09-19 after the epigraph went in and again after its comment was cleared. New beat available: the 1902 homesteaders, "not being financially able to compete with corporations" (line 41), is the cost-to-communities point in the petitioners' own words. %% No state arena is designed to evaluate narrative claims, so the context the firm constructed pervaded the proceedings, and it met a narrative of the state's own, the neoproductivist goal of doubling local food production. Within that frame more production is the public interest by definition, so the claim of farming for Hawaiʻi's food security carried no gallon limit and needed no measure of how much water it required or where the food would go. It could justify any quantity, the annual permits above stated use, the ceiling built from the firm's own planting, and finally the lease sized to all allowable water above the IIFS. Where communities could compel the state to show its duty discharged, the firm's numbers were tested and cut. Where they could not, the claims were absorbed into the state's own reasoning, and nothing required them to be true. Deferral, renewal, and lag were not the state standing aside. They were the form its action took to keep the zombie alive. Through all of it public trust water kept flowing, diverting the fate of East Maui mahiʻai towards a future too similar to the past. Perpetuating that status quo, the state's continued diversion approvals 'carry water' for a private firm, accepting that firm's proposition that export of island products and profits is the cost for greater self-sufficiency. What such a proposition elides, and the next chapter explores, is how food system risk shifts as a result.