Case Highlights

 

Na Moku Aupuni O Ko`olau Hui

 

For 120 years, East Maui families and farms have competed with large agribusiness corporations for one of life’s precious resources - fresh water. Fed by approximately 110 streams, East Maui by all accounts should have enough water and more to supply the needs of its residents and farmers. But an average of 160 million gallons a day, about as much as the densely populated island of O`ahu, uses, is carried off by the East Maui Irrigation system to the plains of Central Maui. The system, a series of ditches, tunnels and pipes built nearly a century ago, is owned and operated by landowner Alexander and Baldwin or its subsidiary East Maui Irrigation Company. Capable of collecting & transporting 445 million gallons of water a day, the EMI system is a monument to the fading era of sugar plantations. Ironically, as a condition for receiving royal permission to take this water from this culturally and historically rich area, Henry Baldwin in 1876 promised not to injure the interests of downstream water users. Over vocal protests by the taro farmers of the day, who feared the repercussion of the diversions being allowed, the Kingdom agreed to the massive transfer of water from one end of the island to the central valley sugar plantations.

As the sugar industry grew during the late 19th to 20th century, so did the thirst for East Maui’s waters. Today, housing subdivisions, big box retailers and golf courses have replaced much of sugar. The need for water, however, has not abated. The longstanding and pervasive diversion of East Maui’s waters has had a profoundly negative impact on the traditional and customary practices of Native Hawaiians. Along this rugged and beautiful coastline, a subsistence lifestyle is not an optional activity, it is a mainstay. The gathering of fresh water mollusks hihiwai & shrimp opae or the cultivation of ancient loi fields to grow kalo continues to be a struggle because of the lack of water. In Keanae-Wailuanui, the continuation of these practices has earned the area the unique distinction of being designated by Maui County as a “cultural landscape” deserving of protection for its unique cultural resources.

With a clear grasp of what could be lost forever, families & farmers from Wailuanui and Keanae decided to reverse the century’s old practice. In 2001 Na Moku Aupuni O Koolau Hui challenged the state Board of Land & Natural Resources practice of repeatedly issuing annual permits to Alexander & Baldwin or East Maui Irrigation to continue the water diversion. Under the law, the BLNR has an ongoing duty to protect this public trust resource from unbridled exploitation for commercial gain. Accordingly, Na Moku demanded a contested case hearing on whether the BLNR should allow A&B to continue diverting water from these public trust lands. In the course of the lengthy hearings that ensued, Alexander and Baldwin revealed that it was using an egregious amount of water to irrigate an acre of land -- 17,000 gallons per day in the wet season and 34,000 gallons per day in the dry season. Nevertheless, the company argued it needed every drop it diverts, even when it admitted it sells water to Maui Land and Pineapple Company, when its diversions exceed a certain amount. The decision from the contested case hearing was appealed and a circuit court judge remanded the case to the BLNR to deal with issues related to the annual permits.

With the help of NHLC, the community also in 2001 filed petitions to amend the interim instream flow standards to restore more flow in 27 East Maui streams with the State Commission on Water Resource Management. Constitutional and statutory provisions affirming Hawaiian traditions mandate the restoration of water levels in streams to support taro farming and subsistence gathering. Na Moku was able to persuade the United States Geologic Survey agency to conduct stream studies and based upon its findings, provide the State Commission on Water Resource Management with different streamflow scenarios. By statute, the CWRM is supposed to act upon Na Moku’s petition within a year of filing any petition for amendment of an interim instream flow standard.

In March 2007, the BLNR issued an interim decision to grant Na Moku’s members partial relief while the contested case hearings proceeded. This decision represents the first time a government agency has returned water from ceded lands that it previously leased out to an operating sugar plantation to benefit taro farmers demanding increased flow to support their traditional taro farming. The decision also makes provisions for an appointed monitor responsible to the BLNR to correct any errors in its decision that could affect the ability of taro farmers to obtain sufficient water to support taro growing. Although Na Moku attempted to implement this decision in support of taro growing in Wailuanui Valley and push for the legal respect it deserves from this state agency managing the resources of the valley, the monitor has been an abject failure, abdicating his responsibilities despite repeated requests for his help. As a result, Na Moku was forced to demand enforcement after a record of failure to perform which was as inexcusable as it was devastating to taro crops which died as a result of his nonfeasance while on duty. Despite a performance record that is devoid of any semblance to the terms of March 2007 interim order, the BLNR has yet to decide on whether it will hold the monitor appointed, Morris Atta, accountable for his deplorable performance, or lack thereof. In reaction to his abject failure to respond to taro farmers whose crops died on his watch, taro farmers Kimo Day and Bush Martin had to resort to opening sluice gates to restore natural flow to Wailuanui Stream without the sanction of Atta, who inexcusably delayed any action on their requests to adjust releases to meet the needs of taro farming affected by the flow in that stream for over a year.

The CWRM has been, up to the fall of 2008, even far less responsive than the BLNR, despite clear judicial directions from past Hawai`i Supreme Court water case decisions such as, Waiahole I, Waiahole II and Waiola, which collectively uphold the public trust mandate to protect Hawaiian rights dependent on water sources such as streams. CWRM has even failed to adhere to the 180-day statutory deadline to act, missing that deadline by over 6 years without so much as an explanation.

However, on September 25, 2008, Hawaiian taro farmers and subsistence gatherers who depend so heavily on free flowing streams to sustain their traditions and customs finally got partial relief from the Commission. After a massive display of public support from the Maui community at large, the CWRM voted to restore stream flow to 8 of the 27 streams for which Na Moku petitioned to restore over 7 years earlier. While only a partial victory, Na Moku and its supporters celebrated the first release of water from diversions supporting an active sugar plantation in history. Such a restoration of flow could not have occurred but for the strong community reaction to the plight of taro farmers and subsistence gatherers victimized by decades of disrespect for their rights by state officials. Similar to the approach of the BLNR in its Interim Order, the CWRM adopted what it termed “adaptive management strategies,” which are designed to allow for implementing, monitoring, and evaluating actions to restore flows partially at first. After the evaluation phase, the CWRM strategies allow the possible amendment of stream flows to adjust to needs which might not have been fully recognized under the decision over the course of the first year of implementation. Na Moku decided to work with the CWRM, in light of its limited resources, in the hope that close communication with its staff will result in the realization that certain streams may have to be restored to a greater degree during the following year than that contemplated under the terms of the September 25, 2008 decision.

 
 

 

       

·          May 14, 2001 – Alexander & Baldwin/East Maui Irrigation requests that the Board of Land & Natural Resources issue revocable permits or long-term 30 year licenses for “right, privilege and authority to enter and go upon the above-described areas for the purpose of developing, diverting, transporting and using government-owned waters.”

 

·      May 21, 2001 - BLNR considers A&B/EMI’s request at its meeting.

 

·      Na Moku, et al. objects to A&B/EMI’s application and requests a contested case hearing arguing in part that the BLNR could not issue revocable permits or a long-term lease for the East Maui water license areas until it determines and respects superior riparian and appurtenant rights to the same water. 

 

·      Consequently, the Board orders that a contested case hearing be held and placed the permits in “holdover status.”

 

●      May 2002 – Governor Cayetano appoints, and the Senate confirms, Alexander and Baldwin Vice President Meredith Ching to serve as  one of 6 commissioners on the CWRM, despite opposition on her appointment from Na Moku, who urge rejection by the Senate because of the obvious conflict of interest she would have deciding on any stream flow restoration petition that is considered by the CWRM. 

 

·      October 21, 2002 – a hearing is held before hearings officer, retired Judge E. John McConnell

 

·      January 24, 2003 – Hearing’s Officer McConnell adopts the proposed rulings of A&B/EMI and based on that, the BLNR orders that it could grant a long-term lease without first determining superior rights as long as the lease was made subject to subsequent rulings. 

 

·      February 7, 2003 -  Na Moku, et al. appeals BLNR’s order to the First Circuit Court of the State of Hawai`i . 

 

·      Nov. 17, 2004 - The case is sent back to Hearings Officer McConnell and Na Moku, et al. files motions for declaratory rulings.  Na Moku’s motions urge the BLNR to declare: (1) that A&B/EMI has the burden to show how its diversions are not injurious to the rights of Native Hawaiians (2) that until A&B/EMI carries out this burden, its watershed diversions are a continuous, ongoing violation of both the applicable rule of law and the state’s public trust, and (3) that unless and until A&B/EMI (a) defines all the potentially affected interests in the streams from which water will be diverted under its 4 revocable permits, and (b) demonstrates that the diversions will not detrimentally affect any rights of Na Moku, et al., the DLNR cannot authorize the diversion of, and A&B/EMI cannot divert, stream water from those East Maui streams.

 

·      March 18, 2005 - Hearings Officer McConnell again adopts A&B/EMI’s proposals & denies Na Moku’s motions. McConnell also ruled that (1) an evidentiary hearing for interim relief be held, (2) each party who claims an interest in East Maui stream water, needs to make a prima facie showing identifying the claimed interest and, with reasonable specificity, the quantity of water required to satisfy that interest.

 

·      April 18, 2005 -   Na Moku appeals McConnell’s rulings on these motions to the First Circuit Court.

 

·      Aug. 15, 2005 & Nov. 8, 2005 -   The First Circuit Court dismisses this appeal because it has determined that the hearings officer’s rulings were not appealable pursuant to H.R.S. 91-14.

 

·      The parties then enter into an unsuccessful attempt at mediation.

·      Oct. 10-12, 2005 & Nov. 14-15, 2005 – Na Moku participates in the interim relief hearings without waiving its objections to those proceedings.

 

●      May 2006 – Governor Lingle re-appoints Meredith Ching to her second four-year term as a Water Commissioner.  The Senate confirms her appointment without opposition. 

 

·      On June 21, 2006 - six full months after receiving the parties proposed findings, conclusions and order, Hearings Officer McConnell issued his recommended Order on Interim Relief.  As with his first recommended order that the First Circuit Court reversed and his March 18, 2005 Order on Interim Relief, it is a near identical recitation of A&B/EMI’s proposal. 

 

·      Aug. 11, 2006 – Na Moku files its exceptions to Hearings Officer McConnell’s proposed findings and conclusions.

 

·      Sept. 1, 2006—Oral arguments before BLNR

 

●      December 2006 – CWRM votes to follow protocol on amending IIFS, starting with East Maui, which it develops after FINALLY obtaining legislative appropriations to fund three new staff positions in Stream Protection Branch of CWRM

 

·      March 23, 2007 – The BLNR finally grants PARTIAL interim relief, pending a final decision on whether to renew revocable permits to Alexander and Baldwin. It orders the release of up to 6 mgd at the point on Waiokamilo Stream where Wailuanui taro farmers historically tapped the stream for irrigation. While only a partial solution, the historic order marks the first release of water into a stream from diversions supporting an ongoing sugar plantation operation. Na Moku continues to press for additional releases from streams still predominantly diverted by Alexander and Baldwin in Wailuanui, Keanae and Honopou Valleys, as the Interim Order provides.

 

●      April 2007 – As provided in Interim Order, DLNR appoints stream monitor Daniel Ornellas, a DLNR staff worker on Maui who immediately sets to work to release water into Waiokamilo Stream and begins to investigate water disputes as required under the Interim Order.  Ornellas makes himself “available” to parties in the field on request, as the Interim Order provides.  

 

●      June 21, 2007 – DLNR abruptly replaces Ornelllas with Morris Atta, a DLNR staff person based in Honolulu over protest by Na Moku members who fear the difference in availability of the stream monitor to farmers will cripple implementation of Interim Order.   

 

●      July 3, 2007 – NHLC writes to Mr. Atta to specify the disputes Na Moku has with EMI, which the monitor is required to investigate and resolve.  Taro farmers Beatrice Kekahuna and Marjorie Wallet in Honopou, and Ed Wendt, Steven Ho`okano, Kimo Day, and Norman “Bush” Martin in Wailuanui Valley begin suffering another crop year from inadequate flow of water in their home valleys, and demand that Atta act immediately to resolve the inadequacy of flows caused by EMI mauka diversions.   

 

●      September 25, 2007 – Disappointed and frustrated by the absence of Mr. Atta on Maui for long stretches of time, Na Moku protests and extracts personal promises from Mr. Atta and BLNR deputy attorney general Linda Chow for Mr. Atta to make a m minimum of monthly trips to Maui, interspersed with assistance from Mr. Ornellas, so Na Moku’s concerns may be resolved timely.  Taro farmers continue to suffer from inadequate flows in Wailuanui and Honopou valleys caused by EMI mauka diversions.   

 

●      October 2007 – Atta makes first site visit to Honopou since appointment to monitor position. Taro farmers continue to suffer from inadequate flows in Wailuanui and Honopou valleys caused by EMI mauka diversions.  

 

●      November 2007 – Na Moku realizes that, without explanation, Chow and Atta have reneged on promise to make monthly trips and implement Interim Order timely.  Taro farmers continue to suffer from inadequate flows in Wailuanui and Honopou valleys caused by EMI mauka diversions.  Despite September site visit to allegedly resolve water disputes with EMI, Atta has done nothing to implement terms of Interim Order or to resolve conflicts.  NO explanations for the inaction are offered. 

 

●      December 13, 2007 – During second site visit since his appointment 6 months earlier, Atta abruptly announces he can no longer serve as monitor and asks for names for a possible replacement.  Taro farmers continue to suffer from inadequate flows in Wailuanui and Honopou valleys caused by EMI mauka diversions.  Despite September site visit to allegedly resolve water disputes with EMI, Atta has done nothing to implement terms of Interim Order or to resolve conflicts.  NO explanations for the inaction are offered.               

 

●      January 2008 – Na Moku provides DLNR with a possible replacement for Atta.  Taro farmers continue to suffer from inadequate flows in Wailuanui and Honopou valleys caused by EMI mauka diversions.  Despite September site visit to allegedly resolve water disputes with EMI, Atta has done nothing to implement terms of Interim Order or to resolve conflicts.  NO explanations for the inaction are offered.

 

●      March 2008 – DLNR fails to respond to any of repeated protests of inaction by Atta and hears nothing from the DLNR about any possible replacement for Atta.  In abject frustration with the nonfeasance of Atta, Na Moku files Motion for Enforcement of the Interim Order with the BLNR, condemning Atta’s inaction and calling for immediate and timely actions on Na Moku’s complaints filed 8 months previously.  As a result of the monitor’s inaction, taro farmers continue to suffer from inadequate flows in Wailuanui and Honopou valleys caused by EMI mauka diversions.  NO explanations for the inaction are offered.  

 

●      March 25, 2008 – CWRM publishes a notice of public meeting with CWRM staff to take public input on long-delayed action on Na Moku’s petitions to restore instream flow to 8 of the 27 streams which were the subject of the original May 2001 filing by Na Moku. 

 

●      April 10, 2008 – CWRM staff hold meeting at Haiku Community Center to listen to public input on Na Moku’s petitions to restore flow to 8 streams along East Maui coastline – Honopou, Hanehoi, Huelo, Palauhulu, Pi`ina`au, Waiokamilo, Kualani, and Wailuanui Streams – which directly provide the irrigation water to affected taro growers.  Seven years have passed since the petitions were filed, on which the CWRM was required to act within 180 days of filing, by law.  Scores of Hawaiians and non-Hawaiians testify in unity demanding return of water to these streams.  There is no public opposition expressed during a lengthy five-hour evening meeting.  NO explanations for the prior inaction are offered, other than the lack of resources.

 

●      May 2008 – The BLNR orders a hearing be held on Na Moku’s Motion to Enforce the Interim Order, and sets deadlines for the submission of a status report from Mr. Atta by August 12, and responses by the affected parties by August 22.  It sets a hearing on the motion for Oct. 1, 2008.  However, as a result of the monitor’s continuing inaction to address inadequate stream flows, taro farmers continue to suffer from inadequate flows in Wailuanui and Honopou valleys caused by EMI mauka diversions.  NO explanations for the inaction are offered.

 

●      June 25, 2008 -  After repeated demands to him, Atta arrives to inspect dry and cracked taro lo`i in Wailuanui Valley, for which taro farmers Kimo Day and Bush Martin cannot get sufficient flow from Wailuanui Stream due to EMI’s mauka diversion of that stream.  By this time, after months of trying, both Day and Martin are at their wits end, losing taro crops that will affect their ability to plant the following year due to the devastation to their huli caused by the lack of adequate irrigation water.  Atta calls for another site inspection two weeks later to inspect the diversion works of EMI which might be implicated, but makes no commitments to resolve this conflict. 

 

●      July 9, 2008 -  Atta conducts his last site inspection in his attempt to observe EMI diversions of streams causing harm to taro farmers.  During the site inspection, he balks at the presence of video taping of the event, then disavows any power to restore the stream flow sought by taro farmers.  When taro farmers hear his excuses, they resort to self-help, lifting sluice gates that divert water into Wailuanui Stream  from two tributaries and cause the stream to naturally flow unimpeded, frustrated by the inaction of the BLNR monitor.  As a result, Atta preemptively terminates the official site inspection and leaves the field. 

 

●      July 2008 – Despite repeated subsequent attempts by EMI over the following weeks to restore diversions from Wailuanui Stream into the Ko`olau Ditch, taro farmers restore natural flow to Wailuanui Stream on each occasion.  Because of the extended and chronic inaction of Atta to their legitimate requests for help, on which Atta never offered any explanation as to why he did not act, taro farmers in Wailuanui Valley felt compelled to act to protect their constitutionally-guaranteed rights to water that the monitor refused to acknowledge. 

 

●      August 12, 2008 – Atta fails to submit his report to the BLNR, without excuse or explanation.

 

●      September 19, 2008 – CWRM staff submits recommended actions to only partially restore (up to 50%) of 6 of the 8 streams immediately under consideration for restoration.  It proposes to leave the other two streams – Palauhulu and Kualani – alone because of the absence of adequate information.  It also recommends the adoption of “adaptive management strategies” which allow the staff in the one-year period following adoption to adjust flows as may be needed to support taro farming and other needs.  A&B/HC&S move to consolidate all 27 petitions for action by the CWRM, arguing it allows for a comprehensive analysis of the cumulative impact of the combined action on its sugar plantation operations. 

 

●      September 25, 2008 – CWRM holds action meeting on Na Moku’s petitions to restore flow to 8 of the 27 streams for which it filed petitions.  During the afternoon portion of the hearing during working hours, A&B/HC&S bus over 100 HC&S workers, all outfitted in red T-shirts emblazoned with the HC&S title,  to Haiku Community Center in an attempt to show massive support for its position to keep control over the bulk of the diverted water.  However, few actually testify and ultimately A&B/HC&S publicly take the position that some restoration is probably justified, claiming it never wanted to deprive taro farmers of all water.  Scores of witnesses, constituting the bulk of the testimony delivered over 2 days of hearing, testify in support of restoring stream flow to all streams.  On the second day, few red shirts are present in the audience.  In the end, CWRM rejects A&B/HC&S motion to consolidate, and follows staff recommendations on partial restoration of stream flow, leaving a one-year implementation period using the AMS suggested by the staff, during which the staff could recommend changes to the stream flow ordered as needs dictate. 

 

●      October 1, 2008 – Atta submits his report; BLNR postpones hearing on motion until after the parties can respond to Atta’s report. 

 

●      November 3, 2008 – Na  Moku and other parties file their responses to the Atta Report, condemning Atta’s belated attempt to rationalize his chronic absenteeism and failure to even follow the direction of the BLNR.

 

●      November 13, 2008 – BLNR holds hearing on Motion to Enforce, but does not act, postponing decision until December meeting. 

 
   

 

[ Home ] [ Keeping Ancestral Lands ] [ Na Moku Aupuni O Ko`olau Hui ] [ Individual Claims Review Panel Claimants ] [ Naue ] [ Back on the Homestead ]

 

Copyright © 2003 Native Hawaiian Legal Corporation