Families in Maui Hikina have been fighting for the return of their streams and their way of life since the 19th century. In 2001, kalo farmers started a new legal battle to restore streamflow, and stop the corporate theft of water by Alexander and Baldwin (A&B) and its subsidiaries, while also illuminating state agencies’ failure to fulfill their public trust responsibilities. Native Hawaiian Legal Corporation, representing Nā Moku ‘Aupuni ‘o Ko‘olau Hui, an association of kalo farming families in this district, along with other kalo farmers, subsistence gatherers, and fishers, particularly of the Ko‘olau and Hāmākualoa districts filed a formal petition with the State Water Commission for new minimum stream flows for 27 streams throughout Maui Hikina, and thereby kicked off a nearly 20-year legal battle on many fronts.
Nā Moku’s first legal action ultimately forced the Water Commission to issue a historic decision in 2018 to amend poor streamflow standards for most of the petitioned streams in Maui Hikina—fully restoring some of the streams that traditionally supported wetland kalo cultivation and restoring the majority of streamflow to streams in support habitat for native stream and marine wildlife. It was a huge victory. The Water Commission ordered diversion structures to be retired, reduced the amount of water available to A&B for its reasonable and beneficial off-stream uses to 88 million gallons per day, from a high average of 160 million gallons a day.
Though it is a historic and decisive decision, the Water Commission staff continues its struggles to implement and enforce the order.
A&B side-stepped stream protections in the Water Code for many years because the State Board of Land and Natural Resources (the Board) repeatedly renewed “holdover” revocable permits to A&B for access to public land for the purpose of diverting water, but without conducting any environmental review or imposing meaningful stream protections. For 20 years, the “holdover” arrangement allowed A&B to exploit public trust stream resources for commercial profit. In 2014, Nā Moku challenged this practice in Carmichael, et al. v. BLNR, et al.
Huge changes occurred while the community waited for the Hawai‘i Supreme Court to issue a final decision in the Carmichael case. In 2016, A&B closed its sugar plantation on Maui – the last in Hawai‘i – and sold its prime sugar plantation lands to Mahi Pono, which is owned by a California-based agricultural group and a Canadian pension investment firm.
Lawmakers also attempted to pass several bills that sought to weaken protections for streams. H.B. 2501 was passed during the 2019 legislative session and granted all current stream diverters, who have already submitted a lease application, to receive month-to-month temporary permits for three years. Kalo farmers across the islands stood up in opposition to this blatant violation of the state’s public trust responsibilities to Native Hawaiian people, traditional kalo farmers, and everyone in Hawai’i that relies on a clean, functioning environment to thrive. The network of public trust defenders was large and diverse, including traditional and customary Native Hawaiian practitioners, educators, students, scientists, and advocates for social and environmental justice. For a full list of the people and organizations who helped “free the streams,” click here. Their work limited the timeframe for A&B and BLNR to side-step the law to three years, and secured additional permanent restorations of stream flows in Maui Hikina. When A&B returned 3 years later asking lawmakers for an extension on their special treatment, the network of kalo farming families and their allies in social and environmental justice across the pae ‘āina overwhelming defeated the bill and defended all streams from expanded exploitation. This outcome was a key moment in the recalibration of land and power in the Hawaiian Islands.
This shift helped inform how the public received the environmental impact statement for Maui Hikina stream diversions. In 2020 and 2021, this much anticipated document garnered a lot of public interest and discussion about how best to manage profit-driven desires to divert and hoard fresh stream water. Then in 2021, the BLNR unanimously voted to accept the final environmental impact statement that A&B and Mahi Pono had prepared for their proposed long-term water lease. This document is required to guide the Board in making an informed decision about whether to issue A&B and Mahi Pono a long-term water lease to continue diverting streams flowing from now state managed lands in Maui Hikina.
Finally, in 2022 the Hawai‘i Supreme Court ruled in the Carmichael case that the Board’s ongoing permitting of A&B’s mass water diversions from the Crown Lands violated state water leasing laws. The case was remanded back to the lower courts for further proceedings to determine whether these permits require environmental review and whether they “serve the best interests of the State.” This decision vindicates the public trust and Native Hawaiian rights for the Maui Hikina community, provides clear guidelines for the Board, and empowers the community at large to hold government agencies accountable.
And still yet, the war for the mo‘o and water of Maui Hikina continues. The people of Maui Hikina and all of their allies are preparing now for the next phases in this struggle: the long-term lease for diversions of stream water for East Maui Irrigation Company, and the effort to protect additional streams throughout Maui Hikina.
Learn even more about this work from the Office of Hawaiian Affairs:
Ola I ka Wai: East Maui: https://www.kamakakoi.com/eastmaui
No Wai ka Wai: For Whom is the Water: https://www.kamakakoi.com/nowaikawai