SECOND OF 2 PARTS
SOUTH POINT, Hawaii Island » Every six days, rancher Daryl Kaluau Sr. fills his tanker truck with 6,000 gallons of water, drives to the remote hillside pasture he is leasing here from the Department of Hawaiian Home Lands and transfers the precious cargo into two large holding tanks.
It is a labor of necessity.
Without the water, Kaluau couldn’t keep his 300 head of cattle alive.
A third-generation cowboy, Kaluau is one of 24 homesteaders who have ranching leases for 25 acres each in the hills overlooking the arid, wind-whipped Ka Lae coastline. Kaluau and several other homesteaders also lease adjacent land to accommodate their herds.
But most of the 24 aren’t ranching.
Because DHHL has not provided water for the lots, even though the leases were awarded nearly 30 years ago, most of those homesteaders have been unable to secure alternative means to water and have given up on raising livestock, the lessees say.
Another 12 homesteaders who have farming lots nearby have even greater problems.
They not only lack water, but they can’t even get to their homesteads. The sole access road has been unusable for more than two decades — a victim of neglect, they say.
That means most of the 36 ranching and farming homestead lots under lease in South Point aren’t being used for their intended purposes — if they’re being used at all.
South Point is in one of the drier regions on the Big Island. Though the pasture area averages 34 inches of rain annually, it has been especially dry in recent years, according to federal weather data.
In 2010, when a major drought hit the island, South Point received less than 9 inches. Hilo, by contrast, had 135 inches that year.
Ever since getting their leases, the South Point homesteaders have pleaded with DHHL to provide water to the lots, saying the area’s rainfall is not enough and too unreliable to sustain livestock.
"Without water this damn place is no good," said Thomas Kaniho, 85, who has one of the 25-acre pastoral homesteads.
The agency over the years has cited multiple reasons for not being able to provide water, including the expected high costs, limited funding, more pressing priorities elsewhere and a moratorium on making new connections to the county water system here.
The South Point case and others like it raise a fundamental question: Is DHHL obligated to provide sufficient water supplies in a reasonable time to homesteaders who sign 99-year leases, especially for ranching and farming lots?
Lessees and their advocates say the agency is legally bound to do so. They refer to the nearly century-old federal law, the Hawaiian Homes Commission Act, that created the 203,000-acre land trust and that calls for adequately supplying homesteads with water. DHHL oversees the trust.
The lessees also cite the Hawaii statute that transferred the trust obligations to the state in 1959 as a condition of statehood and another 1990 Hawaii law reinforcing the notion that supplying homesteaders with sufficient water was a principal purpose of the Hawaiian Homes act.
Alan Murakami, an attorney for the Native Hawaiian Legal Corp., said the laws do not allow the state to ignore the water requirement because of financial concerns.
"This is a condition of statehood," Murakami said. "This is a promise to be fulfilled. … It’s a matter of law."
Asked about the water requirement, DHHL spokesman Puni Chee said in a written response to the Honolulu Star-Advertiser that the department is "obligated to prudently manage its lands for the purposes of the HHCA. This means in part that DHHL must prioritize its many needs according to available resources."
Getting water to homestead lots has long been a challenge for the agency because much of the trust land is in remote, arid areas of the state, making cost a primary obstacle. Critics have contended that the state’s inability to secure adequate irrigation for farming and ranching has been one of the major failures of the homesteading program.
Homesteaders have sued the state over issues related to its trust obligations, but the courts have yet to rule on precisely what those obligations are for water.
That question was at the core of a 2009 lawsuit filed by about a dozen ranching lessees in Honokaia on the Big Island.
The homesteaders cited the state and federal laws to argue that DHHL was failing in its obligation to provide piped water to their lots, crippling the potential for any successful homesteading activity.
But because the case was settled last year, the court never ruled on the merits of the plaintiffs’ arguments, which the state disputed.
The settlement requires the state to spend up to $1.2 million to develop a gravity-based water transmission system to serve the Honokaia ranchers.
In court papers, the state attorney general’s office in 2010 argued that the Honokaia plaintiffs’ reading of the Hawaiian Homes act would render DHHL an insurer of business success, not a manager of trust assets.
Yet the federal law, the state argued, provides discretion to the commission that oversees DHHL to determine priorities and allocate resources among the thousands of beneficiaries and their competing interests.
The state also argued that it could not be held liable for violating the 1990 law because that statute never took effect. Though the law was written with the aim to amend the federal act, it was subject to the consent of Congress, which never gave its approval, the state argued.
Such legal arguments have little bearing on the daily struggles of homesteaders trying to make a go of ranching or farming without a steady water supply.
Mike Isaacs, 69, whose family has a 100-acre ranching homestead in Puukapu on the Big Island, told the Star-Advertiser that he hauled water to the site for 14 years but stopped when the costs became too high, all but ending his herding operation.
DHHL several years ago installed water lines to serve the Puukapu homesteads, but the lines have yet to be activated because of design problems, Isaacs said.
"There’s miles and miles of pipe but no water in them," he said, blaming the situation on what he called DHHL’s incompetence.
But Chee told the Star-Advertiser that the Puukapu delivery system has no problems — a contention critics question given how long the pipes have sat empty.
In his written responses, Chee said the department intends to activate the system once interim water rates are established and a contract to operate and maintain the system is awarded. The contract goes out to bid this month.
Before DHHL decides on whether to construct water systems for ranching areas like South Point and Puukapu, it does an analysis of the expected costs and benefits.
When requests were considered for Puukapu in the 1980s, they were denied because the cost per lot was deemed too high, according to DHHL.
The department approached the U.S. Department of Agriculture for infrastructure funding, but that agency concluded the value of the cattle did not justify the cost, according to Chee.
More recently, DHHL has commissioned an engineering study to examine what can be done to develop more water sources in Kau, the region that includes South Point. The study is ongoing.
Gil Johnston, a Chicago law professor who as a teenager worked as a ranch hand in South Point and later represented homesteaders as an attorney, remembers questioning DHHL in the 1970s about water issues when the agency was considering developing homestead lots in the area.
"Water was always a problem there," Johnson said in a phone interview from Illinois.
Three of the 24 pastoral lessees, including Kaniho, were fortunate to secure water rights via existing county meters years ago after the previous users stepped aside, according to lessees.
Those rights were secured without DHHL’s help, they said. But no other meters have become available since then.
Kaniho shares the water from his meter with several neighboring lessees, including Gilbert Medeiros Jr., 56.
Medeiros has the lease originally held by his uncle, who subsequently assigned it to Medeiros’ father, Gilbert Medeiros Sr.
The junior Medeiros said his uncle and father waited years for DHHL to get water to the area but eventually lost hope. "After a while you just give up," Medeiros said.
Medeiros said he’s thankful that Kaniho is willing to share his water supply, which Medeiros uses for his 80 cattle. During particularly dry periods, though, the water flow is reduced to just a trickle, he said.
Kaluau, whose father and grandfather also were ranchers, loads his tanker truck at a county meter to which his father secured the rights in 1961. It sits along Mamalahoa Highway several miles from Kaluau’s leasehold lot.
Kaluau said he realizes he’s fortunate to have a steady water supply, particularly because he suspects that DHHL won’t be able to provide a remedy for years, if at all.
