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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

LĀNAʻIANS FOR SENSIBLE GROWTH, Intervenor-Appellant,

vs.

LAND USE COMMISSION, COUNTY OF MAUI DEPARTMENT OF PLANNING, 

STATE OFFICE OF PLANNING, Appellees,

and

LĀNAʻI RESORTS, LLC, Petitioner-Appellee.

SCOT-17-0000526

APPEAL FROM THE LAND USE COMMISSION

(Agency Docket No. A89-649)

MAY 15, 2020

McKENNA, POLLACK, JJ., WITH WILSON, J., JOINING IN PARTS I—

III(A)-(D) AND DISSENTING IN PARTS III(E) AND IV, AND WITH 

RECKTENWALD, C.J., CONCURRING IN THE JUDGMENT AND DISSENTING,

WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY POLLACK, J., 

EXCEPT AS TO PARTS III(E) AND IV

In 2017, the Land Use Commission of the State of 

Hawaiʻi determined that, when it prohibited a resort from 

irrigating its golf course with “potable” water as a condition 

Electronically Filed

Supreme Court

SCOT-17-0000526

15-MAY-2020

10:31 AM
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of its administrative order issued almost thirty years earlier, 

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

Instead, the Land Use Commission found that the term was 

intended to carry a special meaning that the Commission does not 

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

contains chlorides over an unspecified level. Based upon this 

special interpretation of “potable,” the Land Use Commission 

determined that the resort had not violated the administrative 

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

circumstances in which it was adopted offer any reason to depart 

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

prohibit the resort from watering its golf course with water 

that is suitable for drinking under county water quality 

standards. This plain meaning is consistent with the common 

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

ruling in this case and serves to fulfill the constitutional 

duties with which the Land Use Commission is presumed to have 

complied. 

We thus conclude that the Land Use Commission erred in 

its 2017 Order by interpreting a condition in its administrative 

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

Accordingly, we also consider whether the Commission erred in 

determining that the resort did not violate this condition under 

its plain meaning, which prohibits the utilization for golf 
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course irrigation water suitable for drinking under the county’s 

water quality standards.

I. BACKGROUND

A. The Initial Proceedings and the 1991 LUC Order

This case began in November 1989, when Lānaʻi Resorts 

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

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

of Hawaiʻi (LUC).

1 The Petition sought “to effect district 

reclassification” of a large tract of rural and agricultural

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

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

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

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

approving the Resort’s Petition subject to several conditions

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

which gave rise to the litigation now before this court. 

Condition 10 states that the Resort is not allowed to use 

potable water to irrigate the golf course:

 

1 Several entities have owned the Resort since the original 

boundary amendment proceedings in 1989. For clarity, these entities are 

collectively referred to as “the Resort.” 

2 LSG is “an unincorporated association of Lanai residents” who 

“used the subject property for hiking, subsistence and recreational fishing, 

and for the enjoyment and appreciation of the ancient Hawaiian archaeological 

sites located there.”
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10. [The Resort] shall not utilize the potable water 

from the high-level groundwater aquifer for golf course 

irrigation use, and shall instead develop and utilize only 

alternative non-potable sources of water (e.g., brackish 

water, reclaimed sewage effluent) for golf course 

irrigation requirements.

In addition, [the Resort] shall comply with the 

requirements imposed upon [it] by the State Commission on 

Water Resource Management as outlined in the State 

Commission on Water Resource Management’s Resubmittal -

Petition for Designating the Island of Lanai as a Water 

Management Area, dated March 29, 1990.

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

paragraph of Condition 10 refers to the State Commission on 

Water Resource Management’s (CWRM) March 1990 recommendation 

against designating the island of Lānaʻi as a water management 

area.3 

B. The 1996 LUC Order

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

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

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

classification or otherwise be changed to a more appropriate 

classification. The OSC stated that the LUC had reason to 

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

requirement that it develop and utilize alternative sources of 

non-potable water for golf course irrigation.

 

3 In May 1989, the CWRM received a “petition to designate the 

Island of Lanai as a Water Management Area for the purpose of regulating the 

use of ground-water resources” because the “resort development on Lanai in 

the future would cause water demand to exceed the available water supply.”
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Following twelve days of hearings regarding the OSC,

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

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

Resort was irrigating the golf course primarily with nonpotable, brackish water from two wells located within the high 

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

use did not comply with Condition 10 and accordingly ordered the 

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

the high level aquifer for golf course irrigation requirements.”

The Resort appealed the LUC’s decision to the Circuit 

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

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

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

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

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

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

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

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

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

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

 

4 Section 20.24.020 of the Maui County Code, the LUC noted, 

“define[d] potable water as water containing less than 250 milligram per 

liter of chlorides.” Nonetheless, the LUC found that “[t]he potability of 

any water source does not depend on any particular level of chloride 

concentration.”
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noted that the parties disagreed as to the meaning the 1991 LUC 

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

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

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

conclusively establish that the aquifer contained only potable 

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

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

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

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

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

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

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

at 395.

C. The 2010 LUC Order

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

granted the Resort’s Motion for Modification of Condition 10

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

relevant part, the following:

a. [The Resort] shall not use ground water to irrigate the 

Mānele Golf Course, driving range and other associated 

landscaping if the chloride concentration measured at the 

well head is 250 milligrams per liter (250 mg/l) or less.

b. In the event the chloride concentration measurement of 

ground water to irrigate the Mānele Golf Course, driving 

range and associated landscaping falls below 250 mg/l, [the 

Resort] shall cease use of the affected well(s) producing 

such ground water for irrigation purposes until such time 

as the chloride concentration measurement of the water 

drawn from such wells rises above 250 mg/l.
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The case was again appealed, and on review the Intermediate 

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

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

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

Sensible Growth v. Lanai Resorts, LLC, Nos. CAAP-13-0000314, 

CAAP-12-0001065, 2016 WL 1123383 (App. Mar. 21, 2016) (mem.).

D. The 2017 LUC Order

The LUC held further hearings following the second 

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

Conclusions of Law and Decision and Order that are the subject 

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

Resort had violated Condition 10 when it used brackish water 

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

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

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

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

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

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

 

5 The LUC noted that the Hawai‘i Department of Health defines 

“potable water” as “water free from impurities in amounts sufficient to cause 

disease or harmful physiological effects.” The terms potable and non-potable 

“do not exist in State or federal primary drinking water regulations,” the 

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

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

The LUC noted that the United States Environmental 

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

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

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

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

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

The LUC also explained that “in practice, county water 

departments generally limit chloride levels of water within 

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

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

The LUC found, however, that chlorides are considered 

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

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

chloride levels are not regulated by standards designed to 

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

would allow public water systems to provide drinking water with 

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

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

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

 

6 One milligram (mg) per liter (l) is equal to one part per million 

(ppm), and the LUC appears to have used the terms interchangeably.
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water pumped at or above 250 ppm in their domestic water 

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

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

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

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

with chloride concentrations of greater than 250 ppm to be used 

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

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

are met.”7

Turning to the wells used to irrigate the golf course, 

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

chloride levels of water from Well 1 have always been greater 

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

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

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

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

“presented any evidence that the chloride levels of either Well 

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

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

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

 

7 The LUC also concluded that “the record contains inconclusive 

evidence as to the degree to which the pumping of water from Wells 1 and 9 in 

the Pālāwai Basin may cause the leakage of water from other areas of the high 

level aquifer that are currently used for potable drinking water.”
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Wells 1 and 9 had been tested for potability and found to be 

free of primary contaminants, the LUC determined that they would 

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

to their chloride levels. 

The LUC found that “it was reasonable to conclude that 

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

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

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

interpretation other than its common or general meaning,” as 

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

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

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

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

may have incorrectly assumed that the high level aquifer 

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

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

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

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

supplies” found in the high level aquifer. 

The LUC therefore concluded that the specific language 

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

in accordance with its common sense meaning, and the condition 

“specifically excluded from ‘potability’ brackish water of a 

kind that is used elsewhere in these islands for drinking.” The 
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LUC stated that the Resort presented “substantial credible 

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

and is brackish under the specific meaning of the language in 

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

alternate source of water.”

The LUC also addressed the public trust doctrine 

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

the authority and duty to preserve the rights of present and 

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

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

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

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

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

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

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

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

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

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

concluded that the Resort “made an affirmative showing that its 

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

conflict and is consistent with public trust principles and 

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

because of its determination that the Resort “proved its 
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compliance with Condition No. 10 by a preponderance of the 

evidence.”

LSG filed a direct appeal from the 2017 LUC Order to 

this court.

II. STANDARDS OF REVIEW

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

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

standards set forth in the judicial review provision of the 

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

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

Upon review of the record, the court may affirm the 

decision of the agency or remand the case with instructions 

for further proceedings; or it may reverse or modify the 

decision and order if the substantial rights of the 

petitioners may have been prejudiced because the 

administrative findings, conclusions, decisions, or orders 

are:

(1) In violation of constitutional or statutory 

provisions;

(2) In excess of the statutory authority or 

jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, 

probative, and substantial evidence on the whole 

record; or

(6) Arbitrary, or capricious, or characterized by 

abuse of discretion or clearly unwarranted exercise 

of discretion.

This court has further clarified that

[c]onclusions of law are reviewed de novo, pursuant to 

subsections (1), (2) and (4); questions regarding 

procedural defects are reviewable under subsection (3); 

findings of fact (FOF) are reviewable under the clearly 
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erroneous standard, pursuant to subsection (5), and an 

agency’s exercise of discretion is reviewed under the 

arbitrary and capricious standard, pursuant to subsection 

(6).

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

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

III. DISCUSSION

The 2017 LUC determined that brackish water is per se

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

notwithstanding that this meaning is contrary to the “common 

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

Condition 10, the presumption that the 1991 LUC complied with 

its constitutional public trust duties, and the circumstances in 

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

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

common sense meaning rather than a special interpretation under 

which water with chloride levels higher than an unspecified 

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

10 prohibits the Resort from irrigating its golf course with

water suitable for drinking under the county’s water quality 

standards. 

A. The 2017 LUC’s Interpretation of Condition 10 Is Contrary to 

Its Plain Meaning, Which Prohibits Golf Course Irrigation with 

Water that Is Suitable for Drinking under County Water Quality 

Standards.

The 2017 LUC concluded that the plain language of 

Condition 10 indicates that, counter to the common sense meaning 
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of its terms, brackish water is necessarily “non-potable” within 

the meaning of the condition. In interpreting the text of 

Condition 10, the general principles of statutory construction 

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

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

construction apply equally to the construction of an 

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

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

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

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

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

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

administrative rule). If the language of the order is 

unambiguous and applying it in its literal sense would not 

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

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

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

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

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

special interpretation other than its common and general 

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

P.3d 1014, 1024 (2006).

The 2017 LUC found such an indication in the language 

of Condition 10, which includes brackish water as a possible 
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example of non-potable water. The 2017 LUC expressly 

acknowledged that the water from Wells 1 and 9 could be 

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

It however reasoned that, by stating that the Resort was 

required to “develop and utilize only alternative non-potable 

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

effluent),” Condition 10 clearly indicated that brackish water 

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

the term must therefore carry a “special interpretation” other 

than its common sense meaning. (Emphasis added.) 

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

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

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

following the abbreviation indicates only that brackish water is 

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

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

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

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

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

definitional of an affected term, rather than just a possible 

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

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

hydrochloride and powder cocaine are the same substance); 

Droplets, Inc. v. eBay, Inc., No. 2:11-CV-401-JRG-RSP, 2014 WL 
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4217376 at *7 (E.D. Tex. Aug. 22, 2014) (finding that “i.e.” is 

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

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

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

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

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

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

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

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

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

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

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

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

phrase, rendering brackish water as an interchangeable term for 

non-potable. 

Thus, the 2017 LUC’s interpretation divorces the term 

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

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

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

from the high-level groundwater aquifer for golf course 

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

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

key inquiry is instead whether the water at issue fulfills the 

common meaning of the term “potable,” which this court has 
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stated to be “suitable for drinking.” Lanai Co. v. Land Use 

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

(quoting Webster’s Seventh New Collegiate Dictionary 664

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

suitable for drinking under county water quality standards and 

“non-potable” if it is not. 

Tellingly, neither the 2017 LUC nor the Chief 

Justice’s opinion concurring in the judgment and dissenting

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

2017 LUC, has offered an alternative definition of “nonpotable.”

8 Because they eschew the common definition of the 

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

their analysis is untethered to any specific test that can be 

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

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

reclaimed sewage effluent that are expressly mentioned in 

Condition 10. 

 

8 In support of its revamping of the definition of “potable,” the 

minority points to the second paragraph of Condition 10 that requires the 

Resort to comply with the requirements imposed by the CWRM Resubmittal, which 

appears to include an authorization for the CWRM chairperson to reinstitute a 

water-management-area designation proceeding if certain indications of an 

impending water shortage exist. Minority Op. at 19-20; see infra note 9. 

But this authorization cannot change the meanings of the terms used in 

Condition 10, which are fixed based on the LUC’s intention at the time the 

condition was imposed.
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Conversely, applying the plain language of Condition 

10 in accordance with its common meaning does not produce an 

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

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

by the general public. The provision does not expressly 

identify all brackish water as a permissible source of water for 

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

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

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

LUC’s “special interpretation.”

B. The LUC Is Presumed To Have Complied with Its Constitutional 

Public Trust Duties, Including the Preservation of Water for 

Domestic Use.

The plain reading of Condition 10 is reinforced by the 

presumption that the LUC complied with its public trust 

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

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

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

affecting public trust resources carry a presumption of 

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

administrative order is reasonably susceptible to an 

interpretation that would not meet the agency’s public trust 

obligations and one that would properly fulfill those duties, we 

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

Hawai‘i 385, 391, 453 P.3d 205, 211 (2019); In re Doe, 96 Hawaiʻi 
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73, 81, 26 P.3d 562, 570 (2001) (“[W]here a statute is 

susceptible of two constructions, by one of which grave and 

doubtful constitutional questions arise and by the other of 

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

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

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

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

consistent with its constitutional public trust duties, and this 

court must interpret Condition 10 in light of this commitment. 

As the 2017 LUC recognized, these duties include an 

obligation to protect and preserve water for domestic use by the 

public with a particular focus on “protecting an adequate supply

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

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

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

the LUC possesses a continuing constitutional obligation to 

ensure that the measures it imposes to protect public trust 

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

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

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

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

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

ensure that the prescribed measures are actually being 

implemented”). 
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From this perspective, it is apparent that Condition 

10 serves to protect and preserve the waters of Lānaʻi for 

domestic use by prohibiting the Resort from irrigating its golf 

course with water that would otherwise be used as drinking 

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

for purposes of Condition 10 would not turn on whether the 

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

no evidence that the 1991 LUC contemplated when it first imposed 

the condition. 

Indeed, the 1991 LUC would have violated its public 

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

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

and endorsed by the minority. Permitting the Resort an 

indefinite license to irrigate its golf course using any water 

with chloride levels in excess of a given level would not

adequately preserve and protect Lānaʻi’s drinking water supply in 

the long term because, as technology develops and climate change

likely fundamentally alters the availability of fresh water, 

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

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

permit a private commercial resort to irrigate its golf course 

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

LUC’s special interpretation does little to prevent this 

outcome. See Waiāhole I, 94 Hawai‘i at 138, 9 P.3d at 450 
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21

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

has never been understood to safeguard rights of exclusive use 

for private commercial gain.”).

The minority would have this court instead rely on the 

CWRM’s review of the monthly monitoring reports that Condition 

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

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

 

9 Condition 10 states that the Resort shall comply with the 

conditions set forth in the CWRM Resubmittal, which recommended the following 

actions to protect Lāna‘i’s water supply:

1. Require [the Resort] to immediately commence monthly 

reporting of water use to the [CWRM], under the authority 

of Chapter 174C-83, HRS, which would include pumpage, water 

level, temperature, and chloride measurements from all 

wells and shafts;

2. In addition to monthly water use reporting and pursuant 

to Secs. 174C-43 & 44, HRS, require [the Resort] to monitor 

the hydrologic situation so that if and when ground-water 

withdrawals reach the 80-percent-of-sustainable-yield rate, 

the [Resort] can expeditiously institute public 

informational meetings in collaboration with the [CWRM] to 

discuss mitigative measures;

3. Require [the Resort] to formulate a water shortage plan 

that would outline actions to be taken by the [Resort] in 

the event a water shortage situation occurs. This plan 

shall be approved by the [CWRM] and shall be used in 

regulating water use on Lanai if the [CWRM] should exercise 

its declaratory powers of a water emergency pursuant to 

Section 174C-62(g) of the State Water Code. A draft of 

this plan should be available for public and [CWRM] review 

no later than the beginning of October 1990 and shall be 

approved by the [CWRM] no later than January 1991;

4. That the [CWRM] hold annual public informational 

meetings on Lanai during the month of October to furnish 

and receive information regarding the island’s water 

conditions. The public shall be duly notified of such 

meetings;

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

(continued . . .)
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22

While these reports are relevant to the State’s continuing 

public trust duty to monitor the Resort’s compliance with 

Condition 10, the submission of monthly water reports prepared

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

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

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

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

‘to protect and maintain the trust property and regulate its 

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

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

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

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

original)).

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

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

 

(. . . continued)

evaluations of ground-water conditions on the island if and 

when:

a. The state water-level of any production well falls below 

one-half its original elevation above mean sea level, or

b. Any non-potable alternative source of supply contained 

in the [Resort’s] water development plan fails to 

materialize and full land development continues as 

scheduled.

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

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

day].
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23

§ 174C-62.

10 By contrast, Condition 10’s prohibition on the use 

of potable water serves to help prevent such a shortage from 

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

Condition 10 is properly interpreted to vary based on whether 

 

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

(a) The commission shall formulate a plan for 

implementation during periods of water shortage. As a part 

of the plan, the commission shall adopt a reasonable system 

of permit classification according to source of water 

supply, method of extraction or diversion, use of water, or 

a combination thereof.

(b) The commission, by rule, may declare that a water 

shortage exists within all or part of an area when 

insufficient water is available to meet the requirements of 

the permit system or when conditions are such as to require 

a temporary reduction in total water use within the area to 

protect water resources from serious harm. The commission 

shall publish a set of criteria for determining when a 

water shortage exists.

(c) In accordance with the plan adopted under subsection 

(a), the commission may impose such restrictions on one or 

more classes of permits as may be necessary to protect the 

water resources of the area from serious harm and to 

restore them to their previous condition.

. . . .

(g) If an emergency condition arises due to a water 

shortage within any area, whether within or outside of a 

water management area, and if the commission finds that the 

restrictions imposed under subsection (c) are not 

sufficient to protect the public health, safety, or 

welfare, or the health of animals, fish, or aquatic life, 

or a public water supply, or recreational, municipal, 

agricultural, or other reasonable uses, the commission may 

issue orders reciting the existence of such an emergency 

and requiring that such actions as the commission deems 

necessary to meet the emergency be taken, including but not 

limited to apportioning, rotating, limiting, or prohibiting 

the use of the water resources of the area. Any party to 

whom an emergency order is directed may challenge such an 

order but shall immediately comply with the order, pending 

disposition of the party’s challenge. The commission shall 

give precedence to a hearing on such challenge over all 

other pending matters.
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the water is of a quality that the county water agency would, at 

that time, deem suitable for domestic use, the provision 

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

use of the limited natural resource is always prioritized over 

the irrigation of a private commercial golf course, regardless 

of whether Lānaʻi’s water supply is actively threatened.

11 See

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

that the public trust doctrine obligates an agency to consider 

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

protection of domestic water use” and to subject commercial uses 

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

minority clearly would not protect and preserve the public trust 

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

allowing perpetual commercial use of a public water resource to 

irrigate the Resort’s golf course unless the CWRM determines 

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

 

11 County water quality standards necessarily take into 

consideration the DOH and the EPA’s safety regulations. See Hawai‘i 

Administrative Rules §§ 11-20-2, 11-20-4 to 11-20-7, 11-21-2; 40 C.F.R. §§ 

141.2, 141.61-.66 (2020). However, more than just safety considerations 

inform a county water agency’s evaluation of the suitability of water for 

domestic use. A host of secondary considerations such as taste, appearance, 

odor, the cost and feasibility of purification or other processing, and the 

availability of alternative sources may affect whether a county water agency 

views a water source as suited for domestic use. See EPA, Secondary Drinking 

Water Standards: Guidance for Nuisance Chemicals (2017) (listing various 

chemicals that do not threaten water safety but may negatively affect the 

desirability of water for drinking), 

https://www.epa.gov/dwstandardsregulations/secondary-drinking-waterstandards-guidance-nuisance-chemicals [https://perma.cc/NT4B-6MAE]. 
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25

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

interpretation therefore renders Condition 10 ineffectual in 

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

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

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

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

promote the development and utilization of [water] resources in 

a manner consistent with their conservation and in furtherance 

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

original)). 

Further, the interpretation advocated by the minority

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

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

State must perform its statutory function in a manner that 

fulfills the State’s affirmative constitutional obligations.” 

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

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

 

12 The minority claims to agree that the Resort is not allowed 

perpetual use of the water in Wells 1 and 9. Minority Op. at 11. Yet its 

reading of Condition 10 specifically provides for this outcome. As the 

minority itself states, “if Wells 1 and 9 were made part of Lāna‘i’s potable 

water system – in other words, if they no longer were ‘brackish’,” then the 

Resort “[o]f course” could not use the water. Minority Op. at 11. This 

reading of Condition 10 means that water would have to be no longer brackish 

for it to be made part of Lāna‘i’s potable water system, ignoring the 

scientific reality that brackish water can be potable. Consequently, the 

minority allows the perpetual use of potable water. 
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26

The State’s affirmative duty to protect and preserve 

constitutional rights is by its very nature not delegable to a 

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

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

it is not reasonable for a trustee to delegate the supervision 

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

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

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

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

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

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

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

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

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

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

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

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

position that they should be able to monitor their own 

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

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

The Hawaiʻi Constitution requires the State to engage 

in evaluative monitoring of the wells with regard to the 

county’s standards for domestic water usage to protect against 

the conflict of interest inherent in self-reporting. Ching, 145 
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27

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

“constitutional trust obligation” to reasonably monitor the 

lessee to ensure that the lessee actually complies with the 

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

1011 (concluding that the State had a continuing public trust 

duty to reasonably monitor the developer to ensure that the 

permit conditions are being followed). By engaging in 

reasonable monitoring, the State can thus determine on an 

ongoing basis whether the Resort has violated Condition 10 by

irrigating its golf course with water that the county water

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

1991 LUC would have fulfilled its public trust duties by 

crafting such a standard that can evolve with time and 

contemporary conditions, including the changing environment and 

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

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

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

that the common sense meaning of potable water is indeed what 

the LUC intended in Condition 10.

13

 

13 As noted, the appeal in this case was taken following our remand 

to the LUC to determine whether the Resort “was using potable water from the 

high level aquifer” in violation of Condition 10. Lanai Co., 105 Hawaiʻi at 

306, 316, 97 P.3d at 382, 392. Accordingly, this opinion reviews the 2017 

LUC’s decision on remand and does not consider whether the Resort’s 

prospective use of the water in Wells 1 and 9 complies with the LUC’s 

constitutional public trust obligations to “preserve the rights of present 

(continued . . .)
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The minority also contends that there is nothing in 

Condition 10 that expressly provides the Resort with “fair 

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

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

This contention assumes that the Resort was given permanent 

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

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

conclude that the Resort would have been on notice that its 

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

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

for drinking under county water quality standards. As this 

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

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

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

at 447.

In concluding that Condition 10 of the Permit was 

intended to prohibit the Resort from watering its golf course 

with a public water resource suitable for drinking under county 

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

 

(. . . continued)

and future generations in the waters of the state,” which “precludes any 

grant or assertion of vested rights to use water to the detriment of public 

trust purposes[]” and “empowers the state to reexamine any prior use.” Kauai 

Springs, Inc., 133 Hawaiʻi at 172, 324 P.3d at 982 (citing Waiāhole I, 94 

Hawaiʻi at 141, 9 P.3d at 453).
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public trust doctrine rulings in which this court recognized 

rights and obligations protected under the Hawaiʻi Constitution. 

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

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

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

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

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

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

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

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

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

court registration of land below the high water mark is 

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

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

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

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

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

affirmative duty to take the public trust into account in the 

planning and allocation of water resources, and to protect 

public trust uses whenever feasible.” (quotations and footnote 

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

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

consideration of whether the landowners or impacted parties had 

notice of the existence of those rights prior to the court’s 
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30

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

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

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

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

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

could consent to” private condemnation of the waters of Honolulu 

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

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

historical and current development of public trust doctrine and 

water law in Hawaiʻi). 

In none of these cases did we suppose that the 

constitutional mandates of the public trust doctrine were 

inoperable or unrecognizable because the parties did not have 

express notice of the existence of the rights protected under 

the doctrine. Instead, our cases indicate that State action 

with regard to trust resources is inherently limited by and 

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

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

[public trust] doctrine would invalidate such measures, 

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

use of delegated eminent domain powers by a private party to 

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

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

extensions that did not promote a ‘valid public purpose.’”
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31

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

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

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

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

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

retain any meaning and effect, it must recognize enduring public 

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

prevailing private interests in the resources at any given 

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

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

future generations therefore inherently limits the Resort from 

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

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

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

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

protecting an adequate supply of drinking water.”). 

“[T]his court has repeatedly reaffirmed that the 

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

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

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

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

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

P.3d at 982 (“[T]he public trust doctrine applies to all water 
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32

resources without exception or distinction.” (alteration in 

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

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

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

therefore, the duty and authority to maintain the purity and 

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

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

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

and enforce rights guaranteed by the Hawaiʻi Constitution when 

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

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

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

therefore could not have waived its duty to ensure that water 

potable under county water quality standards from Wells 1 and 9 

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

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

the state over its water resources precludes any grant or 

assertion of vested rights to use water to the detriment of 

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

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

obligation ‘to protect and maintain the trust property and 

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

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

that the Resort does not violate Condition 10 by using water for 
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33

irrigation that is suitable for drinking under county water 

quality standards, regardless of the chloride level of the 

water.

14 

C. The 1991 Hearing and Findings of Fact Do Not Indicate the 

1991 LUC Considered Brackish Water To Be Per Se Non-potable.

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

interpretation of potability that is based on whether water 

meets the county’s water quality standards for drinking water 

rather than whether water contains enough chlorides to qualify 

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

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

 

14 The minority relies on this court’s decision in DW Aina to 

contend that this opinion fails to give the Resort the “ascertainable 

certainty” required in an administrative order. Minority Op. at 4-6 (citing 

DW Aina Leʻa Dev., LLC v. Bridge Aina Leʻa, LLC, 134 Hawaiʻi 187, 215-16, 339 

P.3d 685, 713-14 (2014)). The court in DW Aina was presented with a 

contractual dispute over whether the LUC had adequately defined the term 

“completed” as it related to affordable housing. DW Aina Leʻa Dev., LLC, 134 

Hawaiʻi at 215-16, 339 P.3d at 713-14. Whether and when housing was 

“completed” in that case did not concern the State’s public trust duties. In 

pointed contrast, in this case, “potable” is imbedded with constitutional 

implications under the public trust doctrine that extend beyond a permit

condition or administrative rule. See Ching, 145 Hawaiʻi at 178, 449 P.3d at 

1176 (“[T]he State’s constitutional public trust obligations exist 

independent of any statutory mandate and must be fulfilled regardless of 

whether they coincide with any other legal duty.”); In re Conservation Dist. 

Use Application HA-3568 (In re TMT), 143 Hawaiʻi 379, 415, 431 P.3d 752, 788

(2018) (Pollack, J., concurring) (“This court has indicated that an agency’s 

public trust obligations may overlap with the agency’s statutory duties, and 

it would follow that they may similarly overlap with duties imposed by an 

administrative rule.”). 

The minority further asserts that county water quality standards 

fail to provide fair and predictable elements. Minority Op. at 3-4. As 

stated, county water quality standards are those standards that the county 

water agency would use in its domestic water system.

15 As noted, the term “brackish” is commonly defined as “somewhat 

salty, distasteful.” Lanai Co., 105 Hawaiʻi at 299 n.10, 97 P.3d at 375 n.10.
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golf course at Manele is too brackish for drinking water.” 

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

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

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

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

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

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

rather as one factor that is evaluated in determining 

potability. 

But this does not mean that the LUC intended that the 

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

regardless of surrounding circumstances, nor that the LUC 

intended that the designation would change only if the chloride 

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

there is no indication that the LUC contemplated the proposed 

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

therefore significantly more likely that it considered “nonpotable” only in terms of county water quality standards rather 

than any specific numerical value. Accordingly, the 

circumstances in which the 1991 LUC Order was adopted also do 

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

terms. 

The minority and the Resort argue, however, that 

various references in the LUC’s 1991 Findings of Fact and the 
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35

testimony and questions posed at the original LUC hearings 

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

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

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

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

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

common sense meaning of potable in favor of reliance on 

disparate references in the testimony of selected witnesses in a 

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

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

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

problematic is the minority’s reliance on the phrasing of 

questions posed by counsel during the hearing to interpret the 

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

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

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

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

lawyer believed brackish was synonymous with non-potable. 

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

to the witness does not mean that the lawyer considered brackish 

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

highlights the analytical flaws of extrapolating from an 
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36

interpretation of a lawyer’s question to determine the meaning 

of a term in the 1991 LUC Order.16 

It is plainly contrary to principles of statutory 

construction in interpreting an administrative order to rely on 

selected witness testimony and the phrasing of attorney 

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

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

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

The language of Condition 10 and the circumstances in 

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

that all brackish water would be considered inherently nonpotable. By the 2017 LUC’s own admission, such a holding would 

require this court to interpret the terms “potable” and “nonpotable” in a manner that is contrary to their “common sense” 

meanings. We reject an interpretation of a term that is 

contrary to its common sense meaning, especially in the absence 

of far stronger indications that this is what was intended. 

Further, such an interpretation would be contrary to public 

 

16 Additionally, some of the testimony cited by the minority appears 

to implicitly acknowledge that potability is an evolving concept that may 

change with time. Minority Op. at 16. For example, James Kumagai, the 

Resort’s expert witness on civil, sanitary, and environmental engineering, 

testified that “Well 9 has proved to have higher chlorides than what we had 

anticipated . . . . It’s brackish and we consider that right now nonpotable, 

but suitable for landscape irrigation.” (Emphasis added.) If potability was 

a static concept based only on whether chloride levels exceed a specific 

threshold, there would be no reason for Kumagai to clarify that, as of that 

moment, the Resort considered the brackish water in Well 9 to be non-potable. 
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37

trust principles with which the LUC is presumed to have 

complied. The 1991 LUC fulfilled its constitutional public 

trust duties with respect to Condition 10 by crafting a standard 

that turns on county water quality standards for drinking water 

as they develop. 

D. A Proper Interpretation of Condition 10 Permits a Correct 

Analysis of the Effects of Leakage from the High Level Aquifer.

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

determined whether the Resort’s actions were the cause of

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

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

actions would mean that potable water was being utilized under 

Condition 10: 

LUC makes no specific finding or conclusion as to whether [the 

Resort] was using potable water. Additionally, it is not clear 

from finding No. 30, whether the potable water leaking into Wells 

No. 1 and 9 is a direct result of [the Resort’s] actions, or if 

such leakage would occur irrespective of [the Resort’s] water 

usage. Similarly, assuming [the Resort’s] use is affecting 

potable water in the high level aquifer, the LUC did not indicate 

whether such an effect would qualify as “utiliz[ing] the potable 

water” under Condition No. 10.

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

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

the record was inconclusive as to the degree to which the 

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

water from other areas of the high level aquifer that are 

currently used for potable drinking water. It further found 

that there was no indication that any leakage has harmed 
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38

existing or planned uses of water for domestic purposes. 

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

inconsistent with the language of Condition 10 “in which 

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

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

of the Mānele Golf Course.”

Properly interpreting Condition 10 to prohibit the 

Resort from utilizing water that meets county water quality 

standards for domestic use resolves the issue of leakage. 

Leakage would result in a violation of Condition 10 if the 

commingling of freshwater with brackish water changes the 

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

suitable for domestic use under county water standards and the 

Resort thereafter uses the water for irrigation. However, the 

2017 LUC’s interpretation would permit utilization of the water 

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

level aquifer renders the water suitable for domestic use under 

county water quality standards, further evincing the flawed 

nature of such an interpretation. 

In addressing the issue of freshwater leakage, the 

minority concludes that the 2017 LUC did not err in holding 

that, “By drawing only from brackish Wells 1 and 9 in the highlevel aquifer, the Resort did not ‘utilize’ any other sources 

per Condition 10.” Minority Op. at 17. As stated, under the 
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2017 LUC interpretation, regardless of whether the Resort’s 

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

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

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

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

the 2017 LUC would find that the commingling of freshwater with 

brackish water renders such mixed water in Wells 1 and 9 as nonpotable and thus usable for golf course irrigation. This flawed 

proposition highlights the illogical and non-common sense

interpretation that the 2017 LUC applies to Condition 10 in

equating non-potable water with brackish water.17 

E. The 2017 LUC Did Not Clearly Err in Concluding That the Water 

in Wells 1 and 9 Was Non-potable Under County Water Quality 

Standards.

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

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

 

17 Indeed, the analysis applied by the 2017 LUC would allow the 

Resort to pump water from Wells 1 and 9 with the full knowledge that potable 

water was leaking from the high level aquifer as a result of its pumpage. 

But even assuming that the Resort was unaware that its actions were causing 

leakage, the language of Condition 10 makes no distinction as to whether the 

Resort’s utilization of potable water is intentional or not; it is not 

permitted. The minority would require “conclusive evidence of leakage, and 

that leakage caused the designation of Wells 1 and 9 to change from 

‘brackish’ to ‘potable’” in order to prove that the Resort was utilizing 

water from a potable well. Minority Op. at 17 n.4 (emphasis added). Such a 

reading clearly violates the public trust doctrine. If there is evidence of 

potable water leaking from the high level aquifer into Wells 1 and 9, the 

Resort will be in violation of Condition 10, regardless of whether the water 

in Wells 1 and 9 remain non-potable. See Kauai Springs, Inc., 133 Hawaiʻi at 

174, 324 P.3d at 984. Alternatively, the minority would require conclusive 

evidence that the water utilized by the Resort “originated in the potable 

wells.” Minority Op. at 17 n.4. It is unclear how the source of commingled 

water can be shown by “conclusive evidence.” 
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because of its chloride levels, and it cannot be said that this 

finding was clearly erroneous given the evidence in the record. 

The 2017 LUC therefore did not err in determining that the 

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

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

compliance with Condition 10 by evaluative monitoring of the 

quality of water that the Resort uses for irrigation in relation 

to the county water quality standards for drinking water. 

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

for irrigation that was considered suitable for drinking under 

county water quality standards, regardless of the chloride level 

of the water. 

The contention in Justice Wilson’s opinion, dissenting

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

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

county water quality standards during the relevant time period 

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

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

indicate otherwise, that the County of Maui would not have 

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

not clearly erroneous, and the Resort accordingly did not 

violate Condition 10 of the LUC’s administrative order.
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IV. CONCLUSION

For the foregoing reasons, the 2017 LUC Order is 

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

Alan T. Murakami

(Moses K.N. Haia, III, with him 

on the briefs)

for appellant Lānaʻians for 

Sensible Growth

Bryan C. Yee

(Dawn Takeuchi-Apuna with him on 

the brief)

for appellee State Office of 

Planning

Benjamin A. Kudo 

(James K. Mee and Sarah M. 

Simmons with him on the brief)

for appellee Lānaʻi Resorts, LLC

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

I join in Parts I—III(A)-(D) of

this opinion.

/s/ Michael D. Wilson