▪ 2006 Land Use in Review: Hawaii Water Law is Not a Federal Case

Just in case you were wondering whether Hawaii water rights issues were matters of federal or state law, the Hawaii Supreme Court has provided the answer. 

In Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (Apr. 5, 2006), the court held that prevailing on a state law water rights claim in state court does not entitle the victor to federal civil rights attorneys fees. 

That conclusion may seem a touch obvious, one might think, but despite a rather clever and "tenuous" argument by the party seeking to fee-shift, the court correctly determined that issues of water rights and the common law public trust were matters of state law.  Disclosure: I represented the Hawaii Farm Bureau Federation, one of the prevailing parties in this appeal.

The appeal arose when the owner of a private water transport system on Maui sought a long term lease from the State Board of Land and Natural Resources, allowing the use of surface water originating in state-owned land.  Several individuals and organizations intervened in the administrative process, alleging that the lease would interfere with their preexisting water rights, rights as Native Hawaiians, and rights under Hawaii's public trust in water, and that before entering into a lease, the agency must undertake an environmental assessment under the  Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.

The agency rejected the claims, and the intervenors appealed to state court, adding a claim for due process violations.  The trial court ruled against the intervenors and in favor of the state on the due process claims, for the intervenors on the EA and public trust claims, and remanded the case back to the agency.  After judgment was entered, the intervenors sought nearly a quarter of a million dollars in attorneys fee under the federal fee-shifting statute, 42 U.S.C. § 1988.  That statute allows a party who prevails on a federal civil rights claim (42 U.S.C. § 1983) to make the loser pay attorneys fees.  The trial court denied the motion and the intervenors appealed.

The Supreme Court held that despite characterizing their water rights and public trust claims as claims under the law admitting Hawaii as the 50th state (the Admission Act), the claims made by the intervenors were, in reality, arguments under state law. The court compared the claims actually made by the intervenors to the claims the intervenors said they made, and found no federal civil rights claim was present, much less a federal claim on which the intervenors prevailed.  The court characterized the request for attorneys fees as "tenuous," but refused to impose Rule 11 sanctions for a frivolous argument.