Kauai Springs fight ongoing

LIHUE — After Hurricane Iniki in 1992, Jim Satterfield saw there was no water left on Kauai. That’s when he got the idea to start bottling Kauai water.

“Let the people have their own water and then you’re going to keep all the plastic from piling up in the landfill,” Satterfield told The Garden Island.

But he didn’t start his business, Kauai Springs Inc., until 2002, and in 2006, a complaint stating Kauai Springs Inc. was conducting an industrial business on agricultural land was filed by a competitor, he said.

What has followed has been about a decade of court cases and appeals.

Throughout the years, Satterfield has maintained that his Koloa-based water bottling and distribution company is an agriculture-based business, and based his original permits off a county zoning ordinance that included bottled water as agricultural.

“We’re allowed to do an ag product on ag land and the ag product is water. There are no machines involved; it’s all gravity fed,” Satterfield said. “It’s good because it takes humans to do it; you’ve got to hire people and that’s good. The whole thing is good. I don’t know how we’ve ever got into this.”

The Planning Commission’s denial of extra permits at a June meeting, could shutter the business.

“These extra permits they say we need for an industrial activity, those are what they’re denying us for,” Satterfield said. “They’re saying it’s an industrial activity and it’s not. It’s an agricultural activity.”

The unanimous vote to deny the permits came after a robust conversation between commission members about the protection of a public trust, water, and Native Hawaiian and cultural traditions.

“Restoring the lo’i, kalo the o’opu and the opi in the stream is of value and we need to look at this not only today, but for the future purposes of our ‘aina and our keiki and moving forward into the future,” said Commissioner Heather Ahuna.

Glenda Nogami-Streufert, commission vice chair, said one of the major concerns is how this impacts present and future generations.

After reviewing all of the documents, Ahuna said the commission doesn’t believe the petitioner met the burden of following through in reference to the public trust doctrine.

“The land and the water, we need to make sure that the decisions that we make are not for a few; the decisions we make are for the public in general and to protect that trust that has been entrusted to us for future generations,” said Commissioner Kimo Keawe.

The public trust, Nogami-Streufert said, has several different parts.

“One is the maintenance of water in its natural state; two is to ensure an adequate supply of drinking water; three is to protect the use of water and the exercise of Native Hawaiian and traditional and customary rights; tour is reservation of water as recognized by the state water code as a protected use,” she said.

The commission has concluded that the bottling and commercial sale of water is not a reasonable and beneficial use of the public trust factors and tests related to 1978 Constitutional Laws,” Ahuna said.

“The Planning Commission determines that the petitioner has actually failed to meet its burden to justify the proposed water use in light of trust purposes,” she said.

Commissioner Roy Ho asked if Kauai Springs has the legal right to commercialize and sell water resources.

“And under the public trust, I would say ‘no,’” he said.

After the Planning Commissions decision, Kauai Springs sent a letter to its customers stating it likely would be receiving a cease-and-desist letter shortly, and urging them to contact Mayor Bernard Carvalho Jr. and County Council Chair Mel Rapozo asking that the permits be granted.

Otherwise, Kauai Springs could dry up.

“We’re operating on a day-to-day basis dangling over hell on a rotten stick,” Satterfield said.

Satterfield said he sent the letter to raise awareness among the mayor and council about what was happening.

Rapozo called a committee meeting discussion that included a robust public comment session and presentation by County Attorney Mauna Kea Trask.

“I do think it’s important that we and the public get informed of what the process is, where it’s at and where we’re going from here,” Rapozo said

Trask told the council this is an ongoing litigation case that began in 2006 and is still pending before the commission.

“Water is life,” Terry Ann Brun said during public testimony on the issue.

“I come from Minnesota where it’s the ‘Land of 10,000 Lakes,’ and we do drink from the rivers and the streams there. We have that right,” said Brun, a Kauai Springs customer. “Kauai is the richest, most abundant, we have all of the water source.”

Because of the Planning Commission’s recent denial of three grant permits — a use permit, a zoning permit and a special permit to continue bottling and delivering that water — Brun said he and other customers are being denied that right.

Satterfield defended his case during the public comment session.

“I would like you guys to think about two words: sustainability — which JoAnn (Yukimura) was really big on back then and I’m sure she still is — and stewardship,” he said. “Now I had the idea to bottle our own spring water instead of shipping it in from all over the world to the wettest place on earth.”

Kauai Springs offers a service for Kauai residents: the delivery of five- and three- gallon bottles of water to homes and businesses, he told the committee.

“I really think that the Planning Commission is getting me confused with someone who puts out a lot of plastic, and that’s not us,” he said.

Kauai Springs has faced a long-running legal dispute.

On Sept. 30, 2014, the Planning Department sent a letter to Kauai Springs Inc. ordering it to immediately cease and desist all activities. The department said Kauai Springs Inc.’s continued operation contradicted a recent ruling by the Hawaii Supreme Court, and that failing to shut down could result in fines of up to $10,000 per day and criminal prosecution.

Satterfield said he had no choice but to comply.

Less than two weeks later, on Oct. 9, however, the Planning Department suspended its cease-and-desist order for one month in order to “afford (Kauai Springs Inc.) the unfettered opportunity for due process before the Planning Commission.”

In a letter to Robert Thomas, attorney representing Kauai Springs, Director of Planning Michael Dahilig wrote that upon further review of the Supreme Court’s decision in the case, the commission “must hold further proceedings upon remand.”

“As opposing party to the matter given the contested case nature of the application, we believe further action by the Planning Commission is necessary to effectuate the Hawaii Supreme Court’s decision,” he wrote.

In February, the Supreme Court — in what has been called a landmark decision for Hawaii’s Public Trust Doctrine — sided with the county by striking down a 2008 Circuit Court ruling that the Planning Commission “exceeded its jurisdiction” in denying Kauai Springs Inc. three zoning permits for its operation.

Kauai Springs Inc. has a long-term agreement with the Knudsen Trust to obtain water from a spring at the base of Mount Kahili. The pipeline, which brings the water to company’s Koloa bottling facility, is owned by Grove Farm.

Hawaii’s Public Trust Doctrine states that, “All public natural resources are held in trust by the state for the benefit of the people.”

Gordon LaBedz of Kekaha applauded the commission’s decision.

“I would like to publicly thank our Kauai County Planning Commission for making the right decision on not permitting a bottled water company from taking our public water and reselling it back to us,” he wrote. “The Hawaii Supreme Court ruled that our county has the right to protect the public trust and our Planning Commission did just that. Water is owned by the public, whether it is groundwater, stream water or wetlands.”

The Planning Commission’s June 26 motion was to reverse the hearing officer’s recommendation and to deny the permit in the matter of remand from the Hawaii Supreme Court as it reflects on public trust doctrine.

Satterfield recently said Kauai Springs has all other permits required, everything else is up to date and it is, for now, continuing to operate.

Despite the battle, Satterfield said, the business is doing well.

“We’re just a mom-and-pop business, a micro water bottling company,” he said. “We have five boys that do all the work and we enjoy it, except for having a ball and chain on our ankle.”

Planning Commission Chair Donna Apisa did not want to comment for this story. Heather Ahuna did not return emails and calls for a comment on this story.

•••

Bethany Freudenthal, courts, crime and county reporter, can be reached at 652-7891 or bfreudenthal@thegardenisland.com.