Water Rights and Lahaina Fire
All Hawai‘i Stands with Maui Press Conference
Maui fires renew centuries-old tensions over water rights
LAHAINA >> Shortly after the ignition of the deadliest U.S. wildfire in more than a century, a developer of land around a threatened Maui community urgently asked state officials for permission to divert water from streams to fight the growing inferno.
West Maui Land Company, Inc. said it eventually received approval from the Hawaii commission that oversees water management, but suggested the state body didn’t act quickly enough and first directed the company to talk with a downstream taro farmer who relies on stream water, according to letters by a company executive obtained by The Associated Press and other news outlets.
Community members, including Native Hawaiian farmers, say the water the developer wanted for its reservoirs would not have made a difference in the fires. The reservoirs don’t supply Maui County’s fire hydrants, and firefighting helicopters — which could have dipped into the reservoirs for water — were grounded by high winds.
The Aug. 8 fire that killed at least 115 people took place below West Maui Land Company’s developments and the Hawaiian communities that rely on the water. But the dispute over water access during the blaze has sparked new tension in a fight that dates to the mid-1800s, when unfair water distribution practices took root when plantations were established during colonization.
“This is a 2023 rendition of what’s been happening in Lahaina for centuries,” said Kapua’ala Sproat, director of the Native Hawaiian law center at the University of Hawaii.
Glenn Tremble, who wrote the letters, told the AP via text that the company didn’t share the letters with the media and didn’t want to distract from West Maui’s losses. AP obtained the correspondence from various people familiar with the dispute.
“All we have asked is for the ability to make water available for fire prevention and suppression, to help people while we recover and to rebuild what we have lost,” he wrote.
The complex push-pull over Maui stream diversions recalls other battles over water rights in drought-stricken Western states that have pitted Native American tribes against farmers and farmers against urban areas.
Native Hawaiians have long fought to protect what they consider a sacred resource. Stream diversions continued even after the plantations closed, and booming development contributed to West Maui’s arid conditions. The West Maui Land Company’s subdivision — including multimillion-dollar gated homes that use diverted water — was untouched by the Lahaina fires, noted Native Hawaiians who live off the streams and farm taro, a cultural staple.
“At one time, Lahaina was known to be very verdant and very lush,” said Blossom Feiteira, a Native Hawaiian cultural practitioner and Lahaina native. Hawaiians revere water so much and its abundance was why Lahaina became the capital of the Hawaiian kingdom from 1820 to 1845, she said.
When sugar cane and pineapple fields from the plantation era shut down in the 1980s and 1990s, the water was redirected to gated communities with lush green lawns and swimming pools, she said. Overgrown brown brush and invasive grass cropped up around these developments.
“There has been resentment in the community about that kind of picture,” Feiteira said.
In one of the letters, West Maui Land Company said the state Commission on Water Resource Management should not prioritize “one individual’s farm” over fighting a wind-whipped fire.
“No one is happy there was water in the streams while our homes, our businesses, our lands, and our lives were reduced to ash,” the company said. The letter said the company requested “approval to divert more water from the streams so we could store as much water as possible for fire control” at 1 p.m. on the day of the fire, but that they were directed to first inquire with a downstream taro farmer.
At about 6 p.m., the commission approved the diversion of more water, the letter said.
West Maui Land’s suggestion that Kaleo Manuel, first deputy of the commission, delayed the release of stream water has struck a nerve among Native Hawaiians and others who say the company is making him a scapegoat and using the tragedy to take yet more water.
A Lahaina stream sustains Keʻeaumoku Kapu’s taro patches on his ancestral lands deep in Kauaula Valley in the mountains above Lahaina. He fled the town on the afternoon of the fire as flames approached and spent a night in his truck. The fire didn’t get close to his home and farm in the valley, but in 2018 area residents used water from the stream to fight a wildfire, he said.
He called West Maui Land’s characterization of the stream diversions “bogus” and disingenuous.
“They’ll do anything to get it,” Kapu said of the water.
The company is “trying to use this incredibly difficult time to get a legal and financial advantage, especially over their water resources, when that’s something they were not able to accomplish legally before the fire,” said Sproat, of the Native Hawaiian law center.
The letters caused such a commotion that the state Department of Land and Natural Resources re-assigned Manuel, drawing a lawsuit from West Maui residents decrying the move. The department said in a statement that Manuel’s reassignment didn’t suggest he did anything wrong, but would allow officials to focus on Maui.
Manuel couldn’t immediately be reached for comment. Community groups urged supporters to go to Manuel’s Honolulu office last week to bestow lei upon him in gratitude for his efforts.
Conflicts over stream diversions are not just a West Maui issue. Soon after the fires started, the state attorney general’s office filed a petition with the state Supreme Court blaming an environmental court judge’s caps on East Maui stream diversions for a lack of water for firefighting.
The court didn’t immediately issue a ruling after hearing arguments Wednesday.
“This is what happens when there’s literally not enough water anymore,” said Kamanamaikalani Beamer, a former trustee of the Commission on Water Resource Management, calling streams “the veins that fill up our aquifers.”
“Water brings together like the multitude of interests — economic, cultural,” he said. “But it’s because no one can just create it out of nothing.”
MEDIA ADVISORY
FOR IMMEDIATE RELEASE Wednesday, August 23, 2023
CONTACT: David Kimo Frankel, (808)345-5451, davidkimofrankel@gmail.com Wayne Tanaka, (808)490-8579, wayne.tanaka@sierraclub.org
“Shamelessly lying to exploit the suffering and destruction”: Sierra Club of Hawaiʻi, Maui County rebuke state and corporate lawyers’ false wildfire claims to increase Alexander & Baldwin’s control of East Maui streams
HONOLULU, HAWAIʻI – As the near entirety of Hawaiʻi pulled together to do whatever they could to save lives and ʻāina from the ravages of devastating wildfires, government lawyers in Honolulu worked alongside corporate attorneys for Alexander & Baldwin, to falsely claim that stream protections for East Maui left the island with “not enough water . . . to battle the wildfires.” These claims were submitted to the Hawai‘i Supreme Court on Wednesday, August 9, in an attempt to overturn an environmental court judge’s ruling that temporarily limited the amount of water the real estate investment corporation can divert from East Maui’s watersheds.
Today, the Hawaiʻi Supreme Court heard oral arguments over these claims, which were thoroughly debunked yet still stubbornly and inexplicably defended by the attorney general.
As was pointed out in written filings and today’s arguments before the supreme court:
-
Water from East Maui, stored in Central Maui, would never have been used to fight
the devastating wildfires in Lāhainā, in West Maui;
-
Millions of gallons of water from East Maui were and remain available in Central
Maui reservoirs for firefighting, and at least two million gallons of water continue to
flow into them every day;
-
Maui County can only realistically use a few hundred thousand gallons at most to
fight a fire;
-
The County in fact only used 37,000 gallons of water over 5 days to fight the fires in
Central Maui; and
-
The environmental court judge’s ruling had no impact on the county’s ability to fight
fires (per Maui County’s corporation counsel).
Despite the blatant factual misrepresentations in the state’s “writ of mandamus,” the deputy attorney general representing the state Board of Land and Natural Resources (BLNR) repeatedly refused to “walk them back,” to the apparent confusion and frustration of at least one justice.
A&B and the state’s main legal argument centered around the authority of the environmental court judge to “maintain jurisdiction” over and modify annual revocable permits the BLNR had issued to A&B, to divert East Maui streams through 2023.
In June, environmental court judge Jeffrey Crabtree ordered the BLNR to uphold Sierra Club of Hawai‘i’s constitutional right to a contested case hearing over the revocable permits. To prevent the permits from being automatically revoked, which would have cut the county and central Maui agricultural operations from receiving any East Maui water, the judge maintained jurisdiction over the permits. In doing so, he reduced the amount of water that could be diverted from East Maui from 40.49 million gallons of water per day, to 31.5 million gallons per day.
This latter amount was above what A&B was already taking, but below what the state Board of Land and Natural Resources (BLNR) had authorized. Judge Crabtree’s ruling fully authorized the 7.5 million gallons per day requested by Maui County, which included water needed for fire fighting. The 31.5 million gallon per day cap was based on A&B’s own reported water uses, and would reduce the unnecessary waste of public trust water while the contested case hearing was pending. It would also motivate the BLNR to actually hold the ordered contested case hearing in a somewhat timely fashion (as of this date, a contested case hearing has yet to be scheduled).
As Sierra Club of Hawai‘i attorney David Kimo Frankel noted, a prior 2001 court order to grant a contested case hearing over stream diversions to Nā Moku ʻAupuni o Koʻolau Hui, an organization of East Maui kalo farmers and community members, was ignored by the BLNR for years and years – while the permits they were contesting were secretly renewed on an annual basis.
“A&B and the BLNR ignored the law, trampled our rights, and drained our streams dry for decades,” said Kyle Nakanelua, an East Maui kalo farmer and resident. “Our kūpuna died waiting for their rights to be upheld, waiting to see water and life flow back into our streams, our loʻi, our estuaries and watersheds. And all throughout that time, BLNR rubber stamped A&B’s permits, A&B raked in profits, and millions of gallons of water were wasted – are still being wasted – every single day.”
“At least now, people can see how far the BLNR will go to give A&B everything it wants, shamelessly lying to exploit the suffering and destruction inflicted by the Maui wildfires – and not even apologizing when they get caught.”
– ## –
No. SCPW-23-0000471, Wednesday, August 23, 2023, 2 p.m., BLNR vs. CRABTREE
High Court rejects petition claiming insufficient water
The state Supreme Court on Thursday quickly denied a Board of Land and Natural Resources petition that claimed a judge’s ruling prevented enough water from being available to fight the Upcountry wildfires.
In its brief order denying the petition, the court said state attorneys failed to establish “a clear and indisputable right to the relief requested.”
Justices on Wednesday heard oral arguments on the petition, which asserted that the actions of Environmental Court Judge Jeffrey Crabtree ended up hampering efforts to fight the fires that destroyed some 19 homes and blackened thousands of acres.
In its petition, the board aimed to move forward a dispute over the use of East Maui water and overturn the June decision by Crabtree authorizing East Maui stream diversions to 31.5 million gallons of water per day, a reduction from the 40 million gallons per day authorized by BLNR.
The court dispute is the latest in a decades-long battle over the billions of gallons of water diverted from East Maui’s streams for Central Maui agriculture and development.
During oral arguments Wednesday a Maui County attorney told the justices there was indeed enough water to battle the wind-whipped flames, and an attorney with the Sierra Club of Hawai‘i pointed out that it takes tens of thousands of gallons of water to fight fires rather than the millions that were available.
On Thursday, David Kimo Frankel, attorney for the Sierra Club, said the Supreme Court’s quick rejection of the state’s petition demonstrates that the state’s position was “completely without merit.”
“The state attempted to exploit a horrific tragedy to deprive our streams of water,” Frankel said. “All the evidence proves that millions of gallons of water were available to fight fires.”
Frankel said very little of the water was used to battle the flames in the opening hours of the disaster, because it was too windy for helicopters to fly safely and there weren’t even enough firefighters and equipment to use millions of gallons per day.
The Department of the Attorney General responded to the court’s order with this statement: “While we are disappointed in the result, we respect the Hawai‘i Supreme Court’s decision.”
During a wildfire news conference last week, Gov. Josh Green expressed frustration about the ongoing conflicts over water and the fact people are resisting the release of water to fight fires.
But conservationists say they haven’t opposed water for firefighting, and Frankel pointed out that Crabtree approved 7.5 million gallons per day for Upcountry water needs, including for drinking water, Kula Ag Park and firefighting.
On social media the Sierra Club posted this statement: “We are grateful for the justice’s hard questioning and quick ruling. We are however, still disgusted at the state and A&B’s attempt to take more from East Maui streams for corporate profit and power. Their claims were baseless and shameful.”
The fires that started in Olinda and Kula on Aug. 8 continue to burn, and remain 85% contained with only hot spots left, officials said Thursday.
Maui Fire Department officials say that completely extinguishing the Upcountry fires might take an extended time because of the vast burn area and the nature of the rough terrain. Even though containment percentages have not changed over recent days, officials say there are no active threats among the ongoing fires.
Meanwhile, dozens of Native Hawaiians and conservationists held a news conference at the state Capitol on Thursday afternoon calling for freshwater resources to be protected.
They demanded the reinstatement of both the state Water Code, which was suspended by emergency proclamation by Green after the wildfires, and Kaleo Manuel as deputy director of the Commission on Water Resource Management. Last week Manuel was removed from his position after a letter was sent to the BLNR describing his actions during the wildfire that devastated Lahaina.
Speakers in Honolulu called Manuel a scapegoat and a fall guy for the fires, unfairly accused of delaying the filling of reservoirs that could not have been used that day by crews fighting the fires.
The truth is that the reservoirs are not connected to the Lahaina hydrants, and helicopters could not have flown that day because of the high winds, said Kamana Beamer, former member of the Commission on Water Resources Management.
“We now know unequivocally that the water that was being requested by Maui Water Land Co. couldn’t have been used to fight the fires that day in Lahaina,” Beamer said.
People were urged to sign a petition asking Green and BLNR Chair Dawn Chang to, among other things, return Manuel to his old job and reinstate the Water Code.
Why Hawaiian sovereignty has undeniable context for the Maui fires
As those in Maui try to make sense of the wildfires that left behind a trail of loss, experts and activists say the devastation has highlighted the issue of Hawaiian sovereignty.
Those involved in discussions around sovereignty, or the right of a nation-state to govern itself, spoke to NBC News to underscore that the issue has undeniable context for the fires. They include advocates and scholars fighting for international acknowledgment of the Kingdom of Hawaii as an existing nation-state to others working toward complete independence from U.S. interference.
The experts also spoke about the island’s fraught place in American history, which they say allowed corporations to expand and dry out the land in Lahaina, the town most severely devastated by the wildfires in the state. The U.S. claims that a congressional resolution passed in 1898 declared that the Hawaiian islands were “officially annexed.” But some scholars argue the resolution, an internal American law, has no legal standing in the Hawaiian Kingdom and makes American presence an illegal occupation.
But scholars and activists say that Native Hawaiians have ultimately been seeking their right to self-determination, or decision-making power, on their lands — and that the lack thereof is a root cause of the wildfires. And gaining agency and decision-making power, they add, is critical to healing.
“Lahaina is not America. But that fire is American. And it was really lit as far back as 1893,” said Keala Kelly, a filmmaker and sovereignty activist, referring to when U.S. troops illegally overthrew the Hawaiian queen. “Once the system of governance in Hawaii was stolen from us, everything about land and water became … this never-ending abusive system of theft.”
What do sovereignty and the movement around it mean to you?
Ron Williams, archivist at the Hawaii State Archives: It’s evolved. When Haunani-Kay [Trask, the late leader of the Hawaiian sovereignty movement] was arguing for it, it was a kind of a recognition of Hawaiian sovereignty and breaking away from America. What we’ve come to understand is … how illegal the proposed annexation was. It’s really clear that in 1898, annexation never happened. So if that’s true, then we are left with sovereignty remaining with the Hawaiian Kingdom, which means we’re under occupation.
Keanu Sai, political scientist and founding member of the Hawaiian Society of Law & Politics: I’m not part of the sovereignty movement. That’s a political movement made up of diverse groups of Native Hawaiians. And what they’re doing is they’re pursuing their version of sovereignty, and that is viewing sovereignty as an aspiration, not a reality.
The United States claims that it passed a law in 1898 called a joint resolution, purporting to annex Hawaii. The problem is, an American law could no more annex the Hawaiian Kingdom than the United States Congress passing a law today.
Keala Kelly, activist, filmmaker and journalist: Sovereignty is Hawaiians being self-determining, which is to say we decide our form of self-governance. The U.S. is the perpetrator of the crimes against us, so the U.S. deciding what Hawaiians can and cannot do is like asking the thief if he wants a side of fries to go with everything he just stole from us.
Kaniela Ing, sovereignty activist and national director of the climate organization the Green New Deal Network: Everything needs to be done with an eye toward “ho’omana lahui” — power building, rebuilding the power of our nation, not just a legal status. Questions like, “Who recognizes us as a sovereign kingdom?” That’s less important than that we have self-determination.”
Why are the history and discussions around Hawaiian sovereignty necessary context to the tragedy in Lahaina?
Kelly: This isn’t just a climate change issue, is it? It’s about the destruction of the land and the water, over a century of it, and setting it up for a terrible drought and some hurricane winds, 500 miles away. If that’s going to be discussed, it has to be understood in the context of the theft of our nationhood, which enabled the theft of that land and water.
Will the fires in Lahaina have an impact on action around sovereignty? Will we be seeing a greater thirst to engage in this topic?
Kelly: My sense is, when there is a tragedy here or anywhere else, Hawaiian rights to self-determination are the first thing to be thrown aside, even when it is the most relevant. You can never underestimate the power of fear.
Either we Hawaiians will pull our movement out of the ashes of Lahaina, or our movement for justice will be buried in those ashes, possibly forever.
Williams: The movement towards some sort of reconciliation of what President Cleveland called “An Act of War” by the United States against the sovereign nation of Hawaii has been gaining steam over the past decade, often highlighted by specific issues of injustice like the attempt to build the worldʻs largest telescope atop Mauna Kea. This recent tragedy will undoubtedly offer a significant opportunity for millions to become more educated about the truth of the theft of nationhood, and the truth is the most powerful weapon we have.
Is the topic of sovereignty and self-determination, or decision-making control, critical to Maui’s ability to grieve, mend and move forward?
Ing: When we talk about returning to the old ways, we mean reinstating a sustainable value system, where our nation’s wealth is measured by the health of our land and air and water.
The systems of capitalism and colonialism caused a disaster, and the values of sovereign Hawaii, once exemplified, is the solution to carry us forward.”
Sai: The United States, through the state of Hawaii, as the occupant in effective control of the majority of territory of the Hawaiian Kingdom, is obligated to establish a military government to provisionally administer the laws of the occupied state — the Hawaiian Kingdom.
Right now, there is no centralized control. It’s very decentralized and fragmented between the federal, state and county governments. They’re operating on their own. Maui county has got to deal with the blowback on the recovery. So when you talk about people who are there as victims, the first thing they’re looking at is survival.
The state of Hawaii will be forced to comply with international law by transforming itself into a military government in order to bring centralized control to the crisis that reaches across all the islands and not just Lahaina. Lahaina could be the flash point to drive compliance.
