HCR365

WHEREAS, before the annexation of Hawaii by the United States in 1898, all of the land and natural resources were held in trust for the benefit of the people by the high chiefs, known as ali`i `ai ahupua`a or ali`i `ai moku, who oversaw the native tenants' use of the land and natural resources; and

WHEREAS, since the annexation, state agencies have assumed oversight and management of the 1,800,000 acres of land "ceded" to the United States under a trust in 1898; and

WHEREAS, chapter 171, Hawaii Revised Statutes, authorizes the Board of Land and Natural Resources to serve as the primary trustee to prudently manage and dispose of these resources; and

WHEREAS, chapter 174C, Hawaii Revised Statutes, designates the Commission on Water Resource Management as the agency responsible for protecting and managing all water resources, including all water streams on ceded lands; and

WHEREAS, taro farming, which utilizes natural water resources available from valley floors and slopes on which taro is cultivated, was the primary form of agriculture supporting Hawaiians in pre-Western contact Hawaii; and

WHEREAS, the adjacent ahupua`a of Ke`anae and Wailuanui located on the northeast flank of Haleakala on the island of Maui, supported intensive and extensive wetland taro cultivation that was irrigated by water streams in these respective ahupua`a since ancient times, and the streams have continued unabated until the present day; and

WHEREAS, western contact brought about significant changes in both the traditional Hawaiian land tenure system and Hawaii's social structure; and

WHEREAS, Hawaii's traditional land tenure system seemed ill suited for the western mercantile economy emerging as a result of these changes; and

WHEREAS, on December 10, 1845, Kamehameha III established and outlined the responsibilities of the Board of Commissioners to Quiet Land Titles, otherwise known as the Land Commission, to oversee the conversion of the ancient land tenure system to a property system of private ownership; and

WHEREAS, on August 6, 1850, the Kingdom enacted the Kuleana Act authorizing the Land Commission to grant fee simple title to native tenants, or hoa`āina, together with rights to access land and water necessary for the cultivation of taro and other traditional and customary pursuits; and

WHEREAS, although approximately forty‑two hundred of the 13,514 applications for kuleana under the Māhele were not approved, the Land Commission ultimately awarded 28,658 acres to native tenants, less than one per cent of the lands available in the islands; and

WHEREAS, in contrast, by 1864, two hundred thirteen non-native people in Hawaii had purchased over three hundred twenty thousand acres of government land, subject to the rights of native tenants; and

WHEREAS, in 1876, the predecessors to Alexander and Baldwin commenced construction of a system of ditches and tunnels that now divert, on average, one hundred sixty million gallons of water per day from East Maui streams to irrigate sugarcane fields owned by Hawaiian Commercial and Sugar Company in Central Maui; and

WHEREAS, in 1902, the Commissioner of Public Lands issued lease number 538 to H. P. Baldwin, leasing lands in East Maui until 1933 for the development, storage, transportation, or other utilization of the water thereon, thereby allowing construction of a ditch system; and

WHEREAS, this royal lease was issued subject to the condition that there would be no interference with the vested interests in water of land owners in Ke`anae, Wailuanui, or other parts of East Maui; and

WHEREAS, in 1904, Hawaiian Commercial and Sugar Company, which was Alexander and Baldwin's Maui sugar plantation, while continuing its out-of-watershed diversion of stream flow from East Maui streams, successfully sued to enjoin Wailuku Sugar Company's out-of-watershed stream flow diversions from the Wailuku Stream based upon Hawaiian Commercial and Sugar Company's claim of appurtenant rights connected with its purchase of interests in nearby kuleana; and

WHEREAS, the Board of Land and Natural Resources presently leases over thirty‑three thousand acres of ceded lands to Alexander and Baldwin's East Maui Irrigation Company, from which it presently diverts an average of 60,000,000,000 gallons of water per year from East Maui streams at one-fifth of a cent per thousand gallons; and

WHEREAS, pursuant to article XI, sections 1 and 7, of the Constitution of the State of Hawaii and section 174C‑101, Hawaii Revised Statutes, any diverter of water has the legal burden of demonstrating that any diversion of water is not harming the riparian and appurtenant water rights held by downstream taro farmers or those rights traditionally and customarily exercised for subsistence, cultural, and religious purposes, including fishing, gathering limu, and the taking of o`opu, hihiwai, and opa`e from streams; and

WHEREAS, the Hawaii Supreme Court has upheld these water rights in four recent court decisions that required diverters of water to carry the burden of demonstrating the absence of harm to those with superior riparian, appurtenant, and traditional rights to water; and

WHEREAS, the First Circuit Court has also ruled that any diversion of water cannot injure others with appurtenant, riparian, or traditional and customary native Hawaiian rights to the same water; and

WHEREAS, members of Na Moku Aupuni O Ko`olau Hui, Beatrice Kekahuna, Marjorie Wallett, and other East Maui taro farmers who are native Hawaiian kuleana land owners, have appurtenant, riparian and traditional and customary native Hawaiian rights that are violated by Alexander and Baldwin's East Maui Irrigation Company's stream diversions; and

WHEREAS, this deprivation of water rights has resulted in a chronic injury to the residents of Wailuanui and Ke`anae valleys and has directly impacted their capacity to continue traditional and customary practices, contrary to sound public policy and constitutional protections; and

WHEREAS, the Board of Land and Natural Resources has, since at least May of 2001, failed to act to fully and timely protect the rights of these residents of East Maui; and

WHEREAS, for the past year, staff of the Department of Land and Natural Resources has failed to timely implement the terms of the interim relief ordered by the Board of Land and Natural Resources while contested case hearings continued to give the East Maui taro farmers timely and prompt interim relief to cure the chronic problems related to inadequate releases of water to support their traditions and customs; and

WHEREAS, the Commission on Water Resource Management is required under section 174C‑71(2)(E), Hawaii Revised Statutes, to act upon any petition to amend interim instream flow standards for a stream within one hundred eighty days, guided by its duties to protect water resources under the public trust doctrine, in order to protect the integrity of fresh water stream ecologies, as well as riparian and appurtenant rights of traditional taro farmers; and

WHEREAS, East Maui taro farmers filed petitions to amend interim instream flow standards for twenty‑seven East Maui streams, currently subject to unmitigated diversions by the Alexander and Baldwin's East Maui Irrigation Company, to restore greater flows to protect their traditional and customary practices which depend on irrigation water for taro, subsistence gathering, and fishing practices; and

WHEREAS, a scientific study by the United States Geological Survey enables the State Commission on Water Resources Management to predict the degree of restoration to a stream habitat with any given restoration of stream flow, thereby eliminating the absence of any scientific basis for acting on petitions to restore stream flow; and

WHEREAS, for the past six years, the Commission on Water Resource Management has failed, refused, or neglected to act on petitions to amend the interim in-stream flow standards of twenty-seven East Maui streams filed on behalf of these East Maui residents despite repeated reminders and demands to follow the statutory deadline to act; and

WHEREAS, the Commission on Water Resource Management has offered no rational basis for delaying action on the pending petitions to amend interim instream flow standards and has not provided any schedule for when action will be taken; and

WHEREAS, the State's failure to timely act results in ongoing harm to the superior water rights of these East Maui residents and to the traditional and customary practices guaranteed under the Constitution of the State of Hawaii and other state law; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-fourth Legislature of the State of Hawaii, Regular Session of 2008, that the Board of Land and Natural Resources and the Commission on Water Resource Management are each requested to submit a report to the Legislature not later than twenty days prior to the convening of the Regular Session of 2009, explaining why each agency has not ordered Alexander and Baldwin's East Maui Irrigation Company to:

(1) Immediately release all water now being diverted from Wailuanui and Waiokamilo streams, and their tributaries, and from the watershed mauka of the ili of Kupau, so that it may flow unimpeded past its ditch system and into Wailuanui Valley for taro irrigation unless Alexander and Baldwin's East Maui Irrigation Company can demonstrate that any given quantity of the water is not needed to keep water temperature in any taro lo`i cultivated by members of Na Moku below 77 degrees Fahrenheit;

(2) Immediately release all water now being diverted from Pi`ina`au and Palauhulu streams, and their tributaries, so that it may flow unimpeded past its ditch system and into Ke`anae Valley for taro irrigation unless Alexander and Baldwin's East Maui Irrigation Company can demonstrate that any given quantity of the water is not needed to keep water temperature in any taro lo`i cultivated by members of Na Moku below 77 degrees Fahrenheit;

(3) Immediately release all water now being diverted from Honopou Stream so that it may flow unimpeded past its ditch systems and into Honopou stream unless Alexander and Baldwin's East Maui Irrigation Company can demonstrate that any given quantity of the water is not needed to keep water temperature in any taro lo`i cultivated by Beatrice Kekahuna, Marjorie Wallett, or their ohana, below 77 degrees Fahrenheit; and

(4) Immediately and affirmatively demonstrate, with clear and convincing evidence, its actual water needs and, within the constraints of available knowledge, the propriety of draining water from public streams to satisfy those needs, such as the practicability of using alternative sources before authorizing the diversion of water from the 33,000 acres of ceded lands in the East Maui forest reserve, over which it has jurisdiction to protect and manage for future generations; and

BE IT FURTHER RESOLVED that the Board of Land and Natural Resources is requested to explain in its report why the Board does not have a regular system and protocol in place that would promptly require the timely release of water into the disputed streams that support the valleys of Honopou, Ke`anae and Wailuanui unless, and until, Alexander and Baldwin's East Maui Irrigation Company thoroughly demonstrates that the above taro farmers and stream gatherers no longer require the stream flow released from the Alexander and Baldwin's East Maui Irrigation Company ditch system; and

BE IT FURTHER RESOLVED that as part of its report, the Board of Land and Natural Resources is requested to determine whether the staff of the Department of Land and Natural Resources is capable of monitoring the effect of any water diversions, now and in the future, allowed by the Board for any violations of the common law, the constitution, or statutory rights specified by the article XI, section 7 and article XII, section 7 of the Constitution of the State of Hawaii; section 221 of the Hawaiian Homes Commission Act; and sections 171-58 and 174C-101, Hawaii Revised Statutes, and thereafter, provide a simple, clear, and efficient process for investigating reported violations, and conducting timely and frequent reviews of any disputes that arise at regularly scheduled meetings of the Board of Land and Natural Resources so these water rights issues are promptly resolved; and

BE IT FURTHER RESOLVED that as part of its report, the Commission on Water Resource Management is requested to determine the level of budgeting and staffing required to promptly respond to complaints of interference with appurtenant water rights and in-stream flows necessary to support the continued ability of Hawaiians to pursue their traditional and customary practices dependent on adequate stream flow, and, thereafter, provide a simple, clear, and efficient process for investigating reported violations of these rights, and conducting timely and frequent reviews of any disputes that arise at regularly scheduled meetings of the Commission on Water Resource Management so these water rights issues, complaints, and disputes are promptly resolved, as envisioned by the Legislature pursuant to sections 174C‑10 and 174C‑13, Hawaii Revised Statutes; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Chairperson of the Board of Land and Natural Resources and the Chairperson of the Commission on Water Resource Management.

	OFFERED BY:	_____________________________

Report Title:

East Maui; Traditional Riparian Rights

HOUSE OF REPRESENTATIVES	H.C.R. NO.	365
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII