Maui County’s legal quest to quickly take a 20-acre parcel of privately owned land by eminent domain for the public use of building a permanent dump site for the Lahaina fire debris suffered a big setback in federal court this week.

U.S. Magistrate Judge Kenneth Mansfield on Monday denied the county’s motion for an order of possession of the property next to the Central Maui Landfill that has been owned by Komar Maui Properties since 2015.

Mansfield also directed the court clerk to return to Maui County the $830,000 it deposited as its good faith appraised value of the land.

The eminent domain case is set for a jury trial, but not until September 2025. The county can appeal the decision and request an expedited trial.

Maui County wouldn’t make anyone available to answer questions about the ruling on Tuesday but did provide a one-paragraph written comment from its Corporation Counsel that included: “Under the rules of civil procedure for United States District Courts, the court will rule on all contested issues, including the validity of the county’s eminent domain action. The date for hearing on this matter has not yet been set.”

As a result of the ruling, the estimated 400,000 cubic tons of nonrecyclable debris and ash from the Aug. 8 fire will continue to be stored at the temporary site in Olowalu — a location that has raised environmental concerns due to its proximity to the ocean and an ecologically sensitive reef.

The Army Corps of Engineers has already moved the majority of debris from the 5-mile burn site in Lahaina and expects to have all of it in the Olowalu dump by February.

The county’s statement also said its Department of Environmental Management is “currently evaluating its options in light of the court’s ruling.”

Shayne Agawa, who heads the department, said a month ago that the county can’t begin to construct the municipal solid waste landfill until it has possession of the land, and even with expedited permitting under an emergency proclamation, the process will take about a year.

It already has been more than three months since the County Council voted 9-0 to authorize the Bissen administration to obtain the land by eminent domain. The members were told by Mayor Richard Bissen, a former judge, and Agawa that it would be the quickest way to get the debris out of Olowalu and to the Central Maui site that was preferred by island residents.

The council was also told by the county’s lawyers that the process to get the land likely could be done in a matter of days.

The county did not file its motion for eminent domain until April 30. And had the case stayed in district court on Maui, where it was filed, the county likely would have received possession quickly, said Honolulu attorney Mark Murakami, who has handled many eminent domain cases but is not involved in this one.

“You can get an order of possession in the same day,” he said.

Komar was able to get the county’s case moved into federal court due to “diversity jurisdiction,” which applied because the property owner was based in another state (California) and the amount of money in question was more than $75,000, said Andy Naden, executive vice president and general counsel of Komar Investments, the umbrella company of the property owner. The county did not dispute this, according to the order.

This led to a hearing in Honolulu last Wednesday, during which Mansfield heard arguments about whether state or federal laws and procedures apply in the county’s motion for order of possession.

Komar, in its opposition to the county’s motion for possession, said that the county only needs 5 acres of the land to serve the public purpose of handling the Lahaina fire debris, which is estimated to take up about five football fields five stories high, and taking the other 15 acres is an unjustified land grab.

With the ruling, Mansfield is requiring that the evidentiary hearing and jury trial occur before the county can get possession of the land.

Naden said Tuesday that he hopes the ruling will get the county to negotiate because of the urgency of some entity building the permanent debris site.

When making the case to the County Council to authorize eminent domain, Agawa said time was of the essence because the Federal Emergency Management Agency is willing to pay 100% of the tipping costs, but that number could be reduced to 90% after a certain period, leaving the county to absorb the other 10%.

Komar has offered the county several settlement options but has continually been rebuffed. On Thursday, Bissen canceled indefinitely an already rescheduled settlement conference that was set for Friday at the Courtyard Maui Kahului Airport with four representatives of Komar, according to Naden.

Komar, which has built 11 landfills around the country, purchased the land from Alexander & Baldwin for $700,000 with the intent of building a construction and demolition landfill and has been trying to do so for nine years, Naden said.

If Komar built the landfill, it would save the county millions because FEMA is not paying for the construction of the permanent debris site. But it would mean that the county would lose out on the estimated $40 million revenue in tipping fees (based on the going rate of $110 per ton) and millions more in potential tipping fees from debris not from the fire.

Naden said Komar has been trying since it bought the property to build a construction and demolition landfill on the property, but the county has held up its ability to acquire the permits. He said the more complex solid municipal waste landfill is not needed for fire debris.

After the council authorized eminent domain but before any lawsuits were filed, Komar offered the county a “donation” of 5 acres. This donation came with conditions that included the remaining 15 acres receive the same permitting as the 5 acres it was giving to the county.

The county swiftly declined the offer, saying in a news release that the county needed the full 20 acres for its long-term landfill plan. The county said in its court filings it had only three months left of capacity at its landfill.

Komar also publicly offered the county the entire parcel in exchange for 20% of all tipping fees, which the county also did not accept.

“If the county doesn’t want to negotiate then we want our day in court,” Naden said.

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.

Civil Beat’s coverage of environmental issues on Maui is supported by grants from the Center for Disaster Philanthropy and the Hawaii Wildfires Recovery Fund, the Knight Foundation and the Doris Duke Foundation.