On June 20, Hawaii’s Supreme Court ruled unanimously that Hawaii’s Commission on Water Resource Management failed to protect the public trust, as it is constitutionally required to do, in failing to preserve and protect Central Maui stream flows from diversion. This is a second, significant Supreme Court ruling in favor of Native Hawaiian group Hui o Na Wai ‘Eha, the community preservation advocates of Maui Tomorrow and nonprofit environmental law organization Earthjustice, which have been fighting in court for more than two decades for stream flow restoration — and sufficient access to water for wetland taro farmers in Central Maui.
The shame is that the state has resisted and delayed fulfilling its proper role for so many years — not only the 20 years this case has been in court, but in a saga reaching back to the mid-1800s, when Hawaii converted from a communal- to a private-property system, and Hawaiian rights of access to and subsistence from lands and waters began to be methodically stripped away.
This case has revealed copious evidence that plantation-era water diversions by large landowners dried up historically flowing, naturally occurring waterways, as well as waters flowing to Hawaiian taro farmers. Yet the state has failed to reform its fact-finding and decision-
making process adequately to provide adequate remedies, all the way through to the June court decision.
This case must trigger a permanent overhaul in the water commission’s processes, as well as a Hawaii-wide examination of whether “business as usual” operations for state agencies responsible for public trust stewardship are constitutionally adequate.
The court’s ruling has a simple rationale: “Streams need to have enough water to support their life cycles, and hard-working kalo (taro) farmers need to have water in their lo‘i,” as Albert Perez, director of Maui Tomorrow Foundation, stated. Yet in 2021, the commission ruled against farmers and preservationists, declining to adjust stream flows for Central Maui’s benefit despite the fact that a major water user and land owner, Hawaiian Commercial &Sugar plantation (HC&S), had closed down operations in 2016. The ruling overturns that 2021 decision, calling it “a passive failure to take the initiative to protect the public trust,” and orders the commission to restore stream flows to the extent feasible.
“Water resources like flowing rivers and streams are a public trust requiring priority protection under the law,” as Earthjustice rightly commented about the ruling. Also, “It is the state’s constitutional duty to protect Native Hawaiian rights dependent on stream flows, such as growing kalo, gathering, and fishing.”
The court’s ruling is a win for the environment of Central Maui and its Na Wai ‘Eha, or “Four Great Waters” — the Waihee and Wailuku rivers, and the Waiehu and Waikapu streams, along with their surrounding watersheds. Before the plantation diversions, this area was a Hawaiian agricultural center for wetland taro.
The case reaches back to 2004, when the groups sued to end or reduce diversions by Wailuku Water Co. — a commercial water company formed with conveyance systems operated by defunct Wailuku Sugar — and HC&S. In 2008, the commission decided to leave streams largely dry.
In 2012, when the case reached the Hawaii Supreme Court for the first time, the court issued a landmark ruling overturning the commission’s 2008 decision, and directed the agency to consider effects on Hawaiian practices and justifications for allowing diversions.
A settlement in 2014 aimed to restore flows in all four streams, for the first time in 150 years. Then HC&S closed in 2016, prompting a permit process to use surface water. The commission’s faulty 2021 decision to leave excessive water with HC&S successor Maui Pono and Wailuku Water Co. led to the appeal decided by the Supreme Court last month.
It must now be crystal clear that projected private use, such as golf course irrigation, is not privileged over public trust stewardship. This finding has strong implications for water use decision-making in an era of climate change and dwindling resources, and the state ignores it at the public’s peril.
