2020-02-06 Exh B Piilani Partners Remand SMA 18-070

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It next goes into the, the analysis of the public trust doctrine, and it makes some very important points here. The Court was critical that the original Decision, after it recited the principles of the Kauai Springs case, which we all talked about numerous times here a year ago, it "the Commission then, in summary fashion, concluded that those principles militated against the grant of the SMA [use] permit. It is not clear, however, what findings of fact the Commission relied upon to make the mixed finding [offact] and conclusions of law." The Court pointed out that the Kauai Springs case talked about another very important duty when one is acting as a trustee of a public trust, and that is that, "When an agency or other deciding body considers an application for permits under circumstances that require the deciding body to perform as a public trustee to protect a public trust resource, the agency or other deciding body must make findings sufficient to enable an appellate court to track the steps that the agency took in reaching the decision." So, that's kind of part of the direction of the Court, and then the Court on the next page gave three specific examples of how the Commission's original decision didn't satisfy that requirement. The first one was that the Commission did not consider Piilani's proposed use in relation to other public or private uses. Now, why is that important? Because as we've talked about several times, every Hawaii case on the public trust in water, starting with the Waiahole case, set forth the test for how do you identify reasonable beneficial use, and it's a standard that requires examination of the proposed use in relation to other public and private uses. So, when the Court didn't see that, it was concerned about the reasonable beneficial analysis. It's second example was the Commission did not address the degree of risk of contamination but merely stated that there is a risk. You know, anybody can imagine a risk of anything until it can be okay, well, you know, there's a pretty substantial risk that this could happen. That's one thing. There was no evidence in the record, though, that would support a substantial risk. It was contrary to the evidence. And, that was really the Court's third point or the third example, which was the Commission did not respond to expert scientific or test technical opinion evidence presented by Piilani by pointing to contrary scientific or technical opinion evidence. Now, the Commission could not have done that because there was no scientific or technical evidence in the record that was contrary to what Mr. Nance said, I mean, he was the only hydrologist that testified. So, you know, a lay member of the public that said well this bad thing could happen because it happened somewhere else, that's—you can't equate that as, as being technical or scientific evidence. The Court did go on to note, though, and this was in the next paragraph, and it's kind of interesting. The Court was open-minded and said that's not to say that the Commission is wrong. They could very well be right, but we just can't tell from this opinion. We can't tell from your findings of fact and conclusions of law that what you're saying is true, because you haven't cited to things in the record that demonstrate that what you say is true. So, the Court did what it did, what the Court did in the Kauai Springs case. I mean it basically, and—and Ms. Hall read you the language from the Order, the Court basically said, I'm going to give you another chance to convince me that you've got this right and that the denial is EXHIBIT B 12