Group sues governor over water commission appointee

A group of Hawaii residents concerned about state water policy has sued Gov. Josh Green seeking to invalidate an unusual appointment to the Commission on Water Resource Management.

Environmental law firm Earthjustice filed the lawsuit Monday in state court on behalf of community group Hui Kanawai ‘Oia ‘i ‘o, contending that Green violated state law by appointing V.R. Hinano Rodrigues to fill a seat on the commission reserved for a traditional Native Hawaiian water management expert.

Green picked Rodrigues in October from a list of three candidates recommended by a nominating committee after a prior committee had recommended a different slate of four candidates in February.

The governor asked for the do-over after two candidates recommended by the first committee withdrew themselves from consideration. Green said he needed a new list of candidates because in his view the law required him to have at least three choices from the list.

The law governing commission selections requires that the nominating committee give the governor a list with at least three candidates.

Earthjustice claims that Green unlawfully circumvented state law with his selection of Rodrigues because he didn’t like the two remaining candidates on the original list recommended by the first committee.

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The lawsuit also alleges that the Green administration “asked, invited, or arranged for ” one of the recommended candidates on the first list, James “Kimo ” Falconer, to withdraw from consideration.

“A nominee cannot nullify a nominating committee list by withdrawing from the list, and the governor cannot nullify a list by arranging for such a withdrawal, ” the lawsuit said.

The state Department of the Attorney General, representing the Office of the Governor and other state agencies, declined to comment on pending litigation as a policy.

Rodrigues has been serving on the commission since October in an interim basis pending a public hearing and confirmation vote in the state Senate.

The seven-member commission governs the state water code, which can include determining how the public-­trust resource is divided by competing interests such as developers, industrial agriculture, small farmers and natural ecosystems.

One seat on the commission, sometimes referred to as the loea, or expert, seat, must be occupied by a person who has substantial experience or expertise in traditional Hawaiian water resource management techniques, including riparian use.

Rodrigues is a Native Hawaiian who grows his own taro and previously served as the History and Culture Branch chief at the State Historic Preservation Division within the state Department of Land and Natural Resources, which also oversees the water commission.

In September about 70 Hawaii environmental and Hawaiian cultural organizations expressed concern in a letter to Green about his water commission candidate list do-over.

Earthjustice alleges in the lawsuit that Green sought new candidates from a new committee because he didn’t like his options from the first committee.

The lawsuit cites a Hawaii News Now interview in which Green referred to two candidates, Lori Buchanan and Hannah Springer, as great people that would bring an “ideological perspective that was going to cause chaos ” amid an effort to find compromises between competing interests that include restoring streams and building homes.

Buchanan is a former chair of the Molokai Planning Commission. Springer is a former Office of Hawaiian Affairs trustee who once served on the Hawaii County Planning Commission. Both Buchanan and Springer were on the second list of recommended candidates, along with Rodrigues, according to the lawsuit.

“The governor’s likes and dislikes do not justify him disregarding the legally mandated process and making up his own rules, ” Earthjustice attorney Harley Broyles said in a statement. “The Legislature intentionally established this process for commission nominations as a check on partisanship by the governor. The law does not allow the governor to scrap the committee’s recommendations because they do not suit his political agenda.”

The lawsuit said the selection process for water commission appointments is different from other state commissions and boards, to which the governor directly names nominees, because the Legislature intended to “interpose a layer of independence and impartiality ” between governors and water commission appointments.

“The Legislature established the nominating committee process in recognition of the importance of the commission’s constitutionally mandated trustee kuleana (responsibility ) and the need for impartiality and independence in its nomination process, and as a distinct check on the governor’s general authority to nominate appointees, ” the lawsuit said. “The redo of the nominating committee process to produce a new list flouts the letter and purpose of these provisions and sets dangerous precedent for future abuse.”

Some of the biggest clashes over water allocations in recent decades have been in West Maui, which is where Rodrigues is from.

Marti Townsend, a local engagement specialist with Earthjustice, said Rodrigues has ties to large commercial water users in West Maui and isn’t supported by many proponents of Native Hawaiian cultural practices that depend on water, including taro farming and fishing.

Kekai Keahi, a Lahaina resident advocating for such uses, said in a statement, “The governor’s attempt to manipulate the nomination process for this key position is an insult to the law and to everyone who has worked with the commission for years to ensure it respects Hawaiian rights and values.”

The lawsuit seeks to have the appointment of Rodrigues declared invalid. The complaint also said that if the Senate decides not to confirm Rodrigues, then the governor should not be allowed to form yet another committee to recommend more candidates for the water commission’s loea seat.

No Senate confirmation hearing for Rodrigues has been scheduled yet. His term runs to June 30, 2028.

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