By Uʻilani Tanigawa Lum, Esq. and V. Luʻukia Nakanelua, Esq.
Ua puni o Maui me ka nani, ʻaʻohe mea like aku…kuhinia Maui!
Maui is overwhelmed with beauty, there is none equal to it…Maui is rich with sweetness!
In an early 20th century mele, Kiaʻāina recounts the characteristics and beauty of Maui’s ʻāina momona.
From the glistening plains of Kamaʻomaʻo to the glorious mountains Haleakalā and Līhau – Maui is incomparable. This mele boasts of Maui as kuhinia: fat, rich, and satisfied. A measure of the health of our ʻāina, people and leaders, both ʻāina momona and kuhinia refer to land that is fertile, healthy, and abundant. Such abundance is made possible by wai. Ola i ka wai; life is sustained by water.
For more than two decades, Maui has been at the forefront of water issues across the island: Maui Hikina (East Maui), Nā Wai ʻEhā, and even in Maui Komohana (West Maui). These issues and incremental triumphs have not only carved out a path to justice for our small town communities and kamaʻāina, but they have had resounding legal implications throughout ko Hawaiʻi pae ʻāina.
Our laws in Hawaiʻi are unique. They are shaped by the customs and traditions of Kānaka Maoli. The Hawaiʻi State Constitution not only provides special protection for traditional and customary practices, but makes it clear that all public natural resources, like water, are held in trust by the state for the benefit of the people. In other words, no one can “own” water.
Further, our constitution affirms that the state has an obligation to protect, control, and regulate the use of Hawaiʻi’s water resources for the benefit of its people for present and future generations. Maui communities have been a part of leading the charge to bring these important protections and kuleana back to life for the “rubber boots” on the ground.
In Maui Hikina, kalo farmers sought to return wai to their streams by challenging Alexander & Baldwin, Inc., (A&B’s) and its subsidiaries’ practice of dewatering streams in the moku of Koʻolau and Hāmākualoa for their private benefit in Central Maui. In Nā Wai ʻEhā, kalo farmers sought to enforce our laws by challenging decrepit plantation remnants selling water to the public.
With staunch advocates and its kūpaʻa communities, the fight for pono returns to Maui in the ongoing restoration of wai, ʻāina momona, and kuhinia – the extravagance of Maui that makes this place so prominent.
ʻOiʻoi nā Moʻo o Maui Hikina – The Ongoing Fight for Water in East Maui
ʻOiʻoi ʻo Maui Hikina – Maui Hikina forges ahead. This saying heralds the resilience and independence of this renowned community, which has resisted the decimation of its wai and practices under the totemic traditions of moʻo – sacred reptilian water deities – since the late 1800s.
They then led the charge again in the 2000s to restore wai after a century of plantation diversions. For over 20 years, the Office of Hawaiian Affairs (OHA) has worked alongside the Native Hawaiian Legal Corporation (NHLC) representing Nā Moku ʻAupuni ʻo Koʻolau Hui (Nā Moku) and other kalo farmers, gatherers, and fishers of Maui Hikina, in complex legal battles to return wai to kahawai.
In March 2022, Nā Moku celebrated its latest victory in its moʻokūʻauhau of advocacy for wai and ʻāina momona.
Back in 2001, Nā Moku petitioned the state water commission to restore flows to 27 streams in Maui Hikina. They also challenged the state Board of Land and Natural Resources (BLNR) for allowing A&B to drain water from Maui Hikina to subsidize their sugar operations on the island’s central plain. As both cases unfolded, and with the closure of Maui’s last plantation in 2016, A&B attempted to transcend these challenges to change the law, at the state legislature, in favor of its status quo diversions.
In 2019, a statewide coalition of kalo farmers and social and environmental justice allies were victorious in stopping these attempts, signaling a huliau – an emblematic shift in the history of land and power in Hawaiʻi.
Building on this momentum, the water commission restored flows to many Maui Hikina streams in 2018 and the Sierra Club of Hawaiʻi also took legal action to protect an additional 13 streams and stop the illegal water waste.
The Maui Hikina community recently marked another victory in the struggle for wai and ʻāina momona. On March 3, 2022, the Hawaiʻi Supreme Court issued its long-awaited decision in Carmichael vs. Board of Land and Natural Resources.
Two years after hearing the first virtual oral argument, Hawaiʻi’s highest court held that the state’s ongoing practice of rubber-stamping A&B’s temporary revocable permits, from 2001 to 2014, violated state law. They also confirmed that the practice of diverting more than 100 million gallons of water per day was subject to environmental review under the Hawaiʻi Environmental Policy Act (HEPA).
The court also concluded that, given BLNR’s trust and statutory duties, they should have determined whether the leases were “in the best interests of the State,” before continuing them in 2014 – but failed to do so. While this was a victory for Nā Moku, the case must now go back to a lower court for further decision-making.
In its press release on the court’s decision, NHLC staff attorney Ashley Obrey said, “After decades of litigation to address the mismanagement of East Maui’s water resources, today’s Supreme Court decision vindicates the rights of NHLC’s clients, provides clear direction to the Board, and empowers the public to hold the state accountable with respect to its public trust resources.”
Despite having another success story under the community’s belt, the war for water in Maui Hikina endures. The people of Maui Hikina and their allies are once again preparing for battle in this next step of the saga: the awarding of long-term leases for diversions of stream water to protect wai and ʻāina momona throughout Maui Hikina.
Kaulana nā Wai ʻEhā – Famous are the Four Great Waters
Waiheʻe, Waiehu, Wailuku, and Waikapū, collectively, are the epicenter lauded as the largest contiguous area of wetland kalo cultivation in all of Hawaiʻi. As in Maui Hikina, Nā Wai ʻEhā is returning to its famed abundance of freshwater resources, political prowess, and religious significance after becoming a playground for sugar plantation owners who, throughout the 20th century, took freshwater from streams as if it was their private property.
In 2004, alongside the leadership of Hui o Nā Wai ʻEhā and Maui Tomorrow Foundation, Inc. (the Hui), Earthjustice took legal action against Wailuku Water Company and Hawaiian Commercial & Sugar (HC&S) to restore ma uka ma kai flow to Nā Wai ʻEhā’s streams, rivers, and communities.
In 2012, the Hui celebrated the Hawaiʻi Supreme Court’s decision that affirmed the state water commission failed to uphold the public trust and protect Native Hawaiian rights. The Hui also negotiated a landmark settlement in 2014 that restored flows to all four rivers and streams for the first time in over a century. With the state’s permitting process for surface water in motion, the closure of HC&S’ last plantation in 2016, and Mahi Pono, LLC’s purchase of A&B’s lands in 2018, the Hui continues its efforts to return more wai to Nā Wai ʻEhā.
On June 28, 2021, nearly 20 years after the initial battle began, the state water commission issued its latest decision detailing water rights in Hawaiʻi. With the Hui’s advocacy, this decision is a much-needed next step in restoring priorities for the public trust and Native Hawaiian rights.
The Hui, however, having stewarded this ʻāina for generations, has raised concerns about critical parts of the decision, including oversights on Mahi Pono’s water allocation and missed opportunities to restore more stream flows given the plantations’ closure.
While taking great strides to return nā wai kaulana, the Hui’s advocacy for pono continues at the Hawaiʻi Supreme Court. Given the ongoing issues, the Hui has also begun to explore other options – like advocacy at the state legislature – to resolve these decades-long issues, reaffirm existing rights, and restore ʻāina momona.
He Au Huli – A New Era
As the tides – and streamflow – turn, advocates across our pae ʻāina continue to work to effectuate important provisions grounded in state law and the foundational values that once ensured our peoples’ survival on our remote island home.
Alongside community hui and staunch advocates and attorneys, OHA has indeed supported this shift back to ʻāina momona on Maui. To this end, William S. Richardson School of Law’s Ka Huli Ao Center for Excellence in Native Hawaiian Law has also provided training and legal services to our communities and their decision-makers.
With support from and in partnership with OHA, Ka Huli Ao’s Aʻo Aku Aʻo Mai Initiative not only provides law students with live-client, non-litigation experience but also provides free legal services to kuaʻāina, neighbor island communities and seeks to bring the law to life on the ground and in our communities. As a poignant example, this initiative assisted the Hui in securing access to water and their traditional and customary practices in the first-ever designated surface water management area.
In both Maui Hikina and Nā Wai ʻEhā, the struggles for wai are reflective of generational struggles to return the natural and cultural resources necessary for us to live and thrive – resources integral to ʻāina momona. These are also lessons of Kānaka Maoli and other communities’ advocacy for restorative environmental justice – a holistic approach to our most pressing issues and historical injustices.
Given an impending climate crisis, the global pandemic, water contamination and shortages, and the rising cost of living, the return to ʻāina momona is imperative.
With an eye toward the horizon, Maui Nui will contend with emerging water issues, including those in Maui Komohana and on Molokaʻi. While the communities of Maui Hikina and Nā Wai ʻEhā have tirelessly shouldered the burden of returning wai and actualizing important legal protections, there is more work to be done – not just by these hui, but by our collective Hawaiʻi. Ultimately, Maui’s kūpaʻa communities – through their decades-long advocacy and aloha – have forged pathways to justice and a return to ʻāina momona through wai.
Kuhinia Maui! Maui is rich with sweetness!
Authors’ note: With the exception of terms that are not readily known by looking up a definition, or terms that need more context and an expanded definition (e.g., “moʻo”), we have not included translations of Hawaiian words. Given ʻōlelo Hawaiʻi’s place as an official language of the state, we are cognizant of encouraging and normalizing its use without providing definitions. If readers are unfamiliar with any of the words used in this article, please reference www.wehewehe.org, Ulukau’s online dictionary.
Uʻilani Tanigawa Lum, Esq. and V. Luʻukia Nakanelua, Esq. are hula sisters, kupa of Maui, and attorneys. Uʻi and Luʻu are both Post-J.D. Fellows at the William S. Richardson School of Law’s Ka Huli Ao Center for Excellence in Native Hawaiian Law where they work to advance cutting-edge research in Native Hawaiian law; foster understanding of Native Hawaiian history, culture, and social context; facilitate law teaching and learning; and support on-the-ground Native Hawaiian justice issues.