Chad Blair: How water in Hawaii has become a matter of public trust


Article XI, Section I of the Hawaii Constitution states that, for the benefit of all generations, the state shall conserve and protect all of its natural resources, including water.

Water as well as land, air, minerals and energy sources are held in the public trust, a major result of the 1978 Constitutional Convention.

And yet, despite this fundamental principle, the battles for water rights continue today, most recent and most visible in East Maui, where taro farmers and environmental groups have mingled with major developers. and landowners for decades about diverting water from streams. .

A new book, “Water and Power in West Maui”, written by Jonathan Scheuer, long active in helping groups manage environmental conflicts and conserve resources, and Bianca Isaki, lawyer and director of North Beach-West Maui Benefit Fund reminds us that struggles to control access to fresh water are hardly confined to East Maui.

This is a statewide problem, and it is fundamentally about “the perpetuation of political and economic power and privilege,” as the book’s blurb accurately states.

And if the title of the book means anything to you, it’s intentional.

“Land and Power in Hawaii,” first published in 1985 by George Cooper and Gavan Daws, became a surprise bestseller in the local market, though, as a New York Times review observed at the At the time, the book “is full of the driest data from real estate files and legislative registers.

Maui aquifers and section numbers.  Figure from CWRM, Water Resources Protection Plan, Section 3 (2008).
Maui aquifers and section numbers. The map is from the State Commission on Water Resources Management, Water Resources Protection Plan, Section 3 (2008). CWRM

That’s all. But what is not dry is the main claim in “Land and Power” – that state officials and the local Democratic Party “have profited as developers, lawyers, entrepreneurs, investors and sometimes as influential hawkers in the development that changed the face of the islands, “as The Times puts it. Everything was legal as well, although that doesn’t mean it was appropriate.

Like ‘Land and Power’ on land use and ownership, ‘Water and Power’ is an invaluable resource for understanding how Hawaii got to where it is today with regard to water rights. . I will be adding my copy of the book to the Hawaii Civil Beat Office Literary Collection, which includes “Land and Power,” Broken Trust, ”“ Hawaii Pono, ”and more.

“Free for all”

“Water and Power in West Maui,” published this year by the North Beach West Maui Benefit Fund and distributed by University of Hawaii Press, begins with a trial in 1895, Horner v. Kumuliilii, in which the Lahaina region’s largest sugarcane plantation, Pioneer Mill, sued 60 Hawaiians in West Maui over water claims involving the Kauaula Valley.

Paul Isenberg and CF Horner owned Pioneer Mill. Kumulilli means “little foundation” in Hawaiian.

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With the rapid boom in sugar cultivation from the 1860s on Maui, the watershed streams were increasingly diverted for the cultivation and milling of cane.

The Grand Mahele of 1848-1852 (mahele means division) during the Hawaiian kingdom resulted in the privatization of land, leading to the establishment of sugar cane plantations.

But the Mahele did not privatize water, and the Kuleana law of 1850 explicitly stated: “The people also have the right to clean and running water, and the right of way. Water sources, running water and roads will be free for everyone.

The Hawaii Supreme Court ruled against most of the plaintiffs’ complaints in Horner v. Kumuliilii, but it has not settled the battle for water, which would have been fought in our courts for much of the last century.

It was not until the 1973 decision in McBryde v. Robinson that the Hawaii Supreme Court made it clear that Mahele did not intend to treat water as private property to be bought and sold. Gay and Robinson and McBryde Sugar Co. were two large sugar cane plantations in the Hanapepe area of ​​Kauai who fought for water rights.

Yet the legal battles continued, so far tourism had supplanted agriculture as the main economic engine of the islands.

Jonathan Likeke Scheuer
Jonathan Likeke Scheuer.

The first page of the chapter on Horner v. Kumuliilii sets the tone for the book by opening up with two contrasting quotes. The first describes how the Sugar Mill persecuted Hawaiians in the 1890s by having them arrested and forcibly taking their water rights, while the second is taken from the Westin Kaanapali’s website in 2017 promoting the complex as a playground for guests which includes a “pirate ship pool” for keiki.

The use of quotes was Scheuer’s idea. Another clever editorial move came from Isaki, who begins the chapter on the history of the ditch system by comparing the selfish actions of Pioneer Mill to the Hawaiian warrior Alapai who in 1738 drained three streams of Maui so that he there is no more food for Chief Kauhi’s forces or for the people.

Both situations, the authors explain, amount to the monopolization of water resources as a tactic of war. Water is indeed energy, a fundamental source of life but also a commodity for the enjoyment of visitors to the detriment of native Hawaiians.

“A question of self-determination”

“Water and Electricity in West Maui” is not for the general reader. Heavy on acronyms like CWRM and KLMC and in terms like “sustainable performance” and “interim reserve flow standards”, this may discourage some readers.

But one of the book’s main lessons for all of us is that Hawaii needs to be “a better protector” of public trust, as the authors say. The book makes it clear that Hawaii has too often fallen far short of this target, and particular criticism is directed at the State Commission on Water Resources Management, which the CWRM stands for.

Participants each planted huli in the new kalo law, July 30, 2017, Kahoma, Maui.
Participants plant huli in the new kalo law in Kahoma, Maui, July 30, 2017. The creek is also shown top right. Bianca Isaki

Scheuer, currently chairman of the State Land Use Commission, and Isaki, who has contributed to two other books on West Maui, say the commission displayed anti-Hawaiian bias in its take decision and did not recognize the rights of kuleana holders. land. Protecting water resources is, for many native Hawaiians, a “matter of self-determination,” a resistance to foreign powers with their lawyers and engineers trying to intimidate the Kanaka Maoli and their customary practices.

Bianca Isaki
Bianca Isaki.

The end of the water struggles in West Maui is nowhere in sight, conclude Scheuer and Isaki. “Nothing in the area of ​​water resource management and development in Hawaii, let alone West Maui, is unresolved.”

With Hawaii – like much of the planet – experiencing more drought, more wildfires, and more powerful storms, the control of freshwater will only become more intense. A chapter on the importance of groundwater protection warns that the demand for groundwater, pumped from wells and aquifers, will only increase in places like the Lahaina region, even though water resources are likely to decrease in yield.

The authors hope that their book will serve “as a useful tool in the collective implementation of a more equitable and sustainable water future” – for West Maui and Hawaii as a whole.

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

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