Recorded: March 2011
Isaac Moriwake and Kapua Sproat, attorneys in our Hawaiʻi office speak with Earthjustice staffer Jessica Knoblauch.
For more than 10 years, the Hawaiʻi office has been involved in a massive legal effort to restore freshwater, taken by sugar plantations, to the streams in which it rightfully belongs. The cases, which pit large companies against local residents, are often described as David and Goliath struggles and several of Earthjustice's victories have been precedent-setting.
Jessica Knoblauch: Hey Kapua and Isaac. Thanks so much for taking the time to speak with me. Kapua, let's start with you. Can you tell me a little bit about how Earthjustice got involved with water rights issues in Hawaiʻi?
Kapua Sproat: When Earthjustice initially got involved in the water issues here in Hawaiʻi in the late 1980s and early 90s, it was a really unique time in Hawaiʻi's history. It was a time of immense change as the sugar cane plantations and pineapple plantations that had really dominated all life in our islands for at least 150 years began to be phased out for other economic alternatives like tourism and the military. For over a century our public trust resources had been managed as private commodities of a handful, maybe five or so, companies. And so there was a groundswell of change where community members stepped forward to try to return our public trust resources to public management and control. During that time, one of the first cases to come up was the Waiāhole case that Earthjustice was very privileged to participate in by partnering with a handful of small family farmers and native Hawaiian interests on the windward side of Oʻahu. We were very fortunate to be part of this groundswell of change and to try to bring our legal expertise to partner with communities that had already provided the framework for the public trust management of our resources.
Jessica: In 2000, the Hawaiʻi Supreme Court issued a landmark decision directing the state to consider the public interest in protecting and restoring the stream systems. That decision had a direct effect on the case in Maui that Isaac and you are both involved with?
Kapua: The 2000 Waiāhole decision that was issued by the Hawaiʻi Supreme Court was landmark in many different ways. It strongly reaffirmed the public trust doctrine and made clear that our water resources are not the private property of any individual or company, but instead our state has the responsibility of managing these resources for the benefit of present and future generations. While the Hawaiʻi Supreme Court acknowledged the state water commission's efforts at water conservation, it went far beyond them to insure that our resources would receive the protection that the law requires. It again very strongly reaffirmed the public trust principle, and in addition adopted the precautionary principle, which previously had only been cited in a handful of cases. That acknowledged that even in the face of scientific uncertainty, trustees of public trust resources needed to act on behalf of the resource. And if they didn't have enough info, that lack of information wouldn't tie their hands. Instead, they needed to make the best decision that they had and always err on the side of protecting the resource.
So the 2000 decision decided some issues that really helped to solidify the legal framework that we currently have for water resource management in Hawaiʻi. Beyond that it was a real beacon of hope for our communities, like those on Maui in Na Wai Eha because this was a real David and Goliath-like issue. This is the first time that the courts ordered water restored to the streams and communities of origin. So many communities like those in Na Wai Eha were really inspired by what happened in the Waiāhole case and have since picked up the mantle and are seeking to bring the law to life on the ground in their own communities.
Jessica: Isaac, tell me a little about how you first got involved with litigating over water rights issues in Hawaiʻi?
Isaac Moriwake: Well, in 2004 Earthjustice teamed up with community groups on Maui that wanted to extend the Waiāhole precedent and the mandate there to restore streams to the communities in Nā Wai ʻEhā, or the Four Great Waters on Maui. This is in central Maui on the windward side of the west Maui mountains. And so Kapua and I got involved and engaged the community to bring a legal action before the state water commission to restore these legendary streams to their former glory.
Jessica: And so what kind of effect were these water projects having on the environment and on Maui's people?
Isaac: Well, like other diversions across the islands, these diversions on these particular streams take much or all of the flows during normal, non-rainy conditions and leave these streams completely bone dry below the diversions. These diversions used to be for large-scale plantation agriculture, but as plantation agriculture has phased out across the state, including in this Na Wai Eha area, these plantations are now changing to water companies. In the Nā Wai ʻEhā case, what used to be the Wailuku Sugar Plantation is now the Wailuku Water Company, and they're actively trying to sell the diverted stream water to the public. This is against the law of Hawaiʻi, which very clearly establishes that water and flowing streams are a public trust resource and not the private property of these plantation companies.
These diversions have been going on for decades and sometimes, as in the case of Nā Wai ʻEhā, for more than a century. And through this long period of abuse it really has devastated the biological and the ecological integrity of the streams but also the cultural system, this native Hawaiian culture that depends on free-flowing streams for the stream life that the stream flows feed, for the near shore marine life and resources that the freshwater entering the streams sustain. Stream flow is also essential for cultivating kalo or taro, which is the native Hawaiian staple and really the symbol of native Hawaiian culture. All these resources over the years declined because of these large-scale plantation diversions. And we really saw this in vivid detail when in 2004 we met with the community on Maui in Nā Wai ʻEhā where basically over a century of abuse and exploitation of the water resources have left the streams dry and the communities deprived of this lifeblood of their culture.
Jessica: Water and Hawaiʻi's culture is essentially intertwined. You can't separate the two.
Isaac: Absolutely. Kapua talked about this already as far as the meaning of water within a Hawaiian culture, but we see this in Nā Wai ʻEhā, which traditionally and historically was the largest area of continuous wetland cultivation of taro in all of the Hawaiian islands. It's legendary of being the breadbasket of Maui. And at the heart of this system were these flowing streams. So it was both an ecological system and an intertwined cultural system that supported each other and symbiotically related to each other and developed over a thousand years.
Jessica: You said that the sugar plantations essentially turned into water companies. And that's against the law? That's what Earthjustice is arguing, that these companies can't just take the water and then sell it back to the people?
Isaac: That's right. As plantation agriculture has phased out across the island, the water by and large has not returned. And what's happening is that the plantation diverters see water as an independent source of profit and are now forming things like water companies in order to exploit that resource. This is against Hawaiʻi law, which clearly states that water, both traditionally in Hawaiʻi culture and even today because Hawaiʻi law incorporates these Hawaiian traditions, is not private property. It's not an independent source of profit. It is meant to be a public trust resource for present and future generations for everyone's benefit.
Jessica: So you mentioned a few weeks back that you guys were preparing to litigate a case. What's the current status of the Maui case right now?
Isaac: Currently it is on appeal to the Hawaiʻi Appellate Court. In 2004, together with the community, we brought an action to restore stream flows. After many years of delay and litigation, we finally got an initial ruling by the hearings officer of the state water commission that would have restored roughly half of the stream flows to the Nā Wai ʻEhā streams. Then the plantations went crazy, and they brought with them the unions and the farm bureau and basically threatened the Water Commission that if you do this, if you restore the stream flow, then we will shut down. Under that pressure, the majority of the water commission caved and did a complete 1-80, a complete about face, and ended up restoring only a bare minimum trickle to the streams. As opposed to one-half that the hearings officer recommended, now it's less than one-fifth of the normal stream flows under non-rainy conditions. And just really left them the minimal amount that reasonably should have been restored to these streams. So, as is the community's right under the law, we're assisting the communities to appeal this Commission's decision to the Hawaiʻi appellate courts.
Jessica: And when you talk about the community, what types of groups of people are on this side of the debate?
Isaac: They include residents, long-time community members in these valleys and watersheds through which the Nā Wai ʻEhā streams flow, and also native Hawaiians whose ancestry extends back hundreds of years connected to this particular region of this island. And they have legal rights to this water, rights that have been disregarded for at least a hundred years. Also, they include residents on Maui who are supporting these communities although they don't necessarily live within these valleys. And also people far flung throughout the state and even abroad that just support this concept of preserving the natural resource for future generations and defending this concept of the principle of water being a public resource and not private property.
Jessica: One of the things that I noticed the companies tend to argue is that this is essentially an issue that's jobs versus the environment. Does it have to be an either/or situation or is there a way to have both?
Isaac: Absolutely not. And that's a false dichotomy, jobs versus the environment. You always see that rhetoric tossed out in environmental contexts, but it really is false in this particular case. And all you need to do is look at the way that these companies have treated the resources over the years, but particularly when we started putting the heat on them in the legal forum.
Throughout the case, we have covered all kinds of abuse of the resource. One, they're wasting water from their leaky system. More than 25 percent of the water they divert, they lose. They don't care about that because as long as they take it and they hold onto it, they have that control over it. Secondly, along the same lines, they over-irrigate their crops, in some cases to the extent of dumping the water onto sandy fields. We found [they were using] up to 25 to 50 percent more than they actually need for sugar cane, which already is a very water intensive, very thirsty crop, particularly in the arid areas where these plantations are growing them. And third, particularly Hawaiʻi Commercial and Sugar Company, which is the plantation that is using most of the diverted water currently, they're not using their primary traditional water source over a better part of a century, which was their non-potable agricultural wells. And actually in other parts of the plantation this is still one of their primary water resources. They don't use a single drop from their wells in this part of their plantation because they're rather get "free" or "cheap" stream water.
So the bottom line here is that the plantations have sensible, feasible alternatives to draining public streams and depriving streams and the communities of the only source of water that they have. But they don't care. And they don't want to pursue these alternatives because it's not about the alternatives, it's not about reasonable use. It really is about them just trying to hoard the water because it's their private commodity that they're trying to keep control of.
Kapua: Well, and in addition that argument totally ignores the significant community-based economic development opportunities that are available throughout Nā Wai ʻEhā if water's restored to the streams and communities. By leaving water in the streams and allowing that mountain to ocean connection to persist, that allows many small family farmers, many local fishermen, many families to continue to live a semi-subsistence lifestyle while also participating in a host of community-based economic development opportunities.
Isaac: Not to mention the incalculable economic benefits of preserving the resource of flowing streams. Setting aside not only the valley for tourism-based economy, but the value of a natural resource and all of the benefits that it provides in terms of the in-stream resources as well as the near shore resources. And, very critically in Nā Wai ʻEhā, if these streams were to flow from mountain to ocean as they do naturally, they would recharge the underlying public drinking water aquifer through the infiltration to the stream bed. And studies already show that millions of gallons a day are lost in terms of this recharge of this drinking water source. And the public is being deprived of that water while at the same time the plantation diverters, one of them being a water company, turns right around and sells that diverted water that is not recharging the aquifer to the public. Really on the face of it, it's a big scam that is benefitting no one but these private diverters.
Jessica: I'm guessing that if you don't have local water resources, it's hard to grow crops and probably makes Hawaiians more dependent on these plantations for work and for money if they can't have their own subsistence farming.
Isaac: Absolutely. And that was the point that Kapua drove home in terms of community economic development and empowerment. There are all kinds of economic benefits beyond sustaining a plantation, growing a crop that barely made sense when you had a whole lot of cheap labor, free land, all the land you could take, and free water. And now what's going on and why are we focusing only on jobs on this particular plantation? But even a bigger picture than that, look at all those economic benefits and other benefits that you can't even put dollar signs on that would accrue to the public and not just these private companies if the streams would be restored.
Kapua: And the economic card that Hawaiian Commercial and Sugar Company has tried to play is false, to say the least, and I think that when you look at the number of jobs and opportunities that are created in the larger community, some of the results of leaving the water in the streams, that's obviously false. But I think that people who live on islands need to be even more cognizant of the larger issue. And for us here in Nā Wai ʻEhā our food security and our food sovereignty is critical. And so, especially given the increasing global crisis having to do with petroleum and everything else, it's important for us to have food grown in our communities that will feed our people. And by leaving water in the streams or restoring water to the streams, that allows many more small family farmers to produce healthy, organic, locally-produced food to feed our communities rather than supporting or subsidizing sugar that's largely not consumed here but shipped out of Hawaiʻi for the private profit of one company.
Jessica: And has there been any case studies on what happens when the water returns? Kapua, I know you had the case over in Oʻahu with the Waiāhole ditch. There was some water restored with that case, correct?
Kapua: Absolutely, in the Waiāhole case, centered on the island of Oʻahu, we saw an immediate and direct benefit from having water restored to our streams and to our communities. Many of the folks who were involved in that case expected that perhaps within five years or 10 years we'd seen ecosystem benefits in the near-shore marine waters and in the streams that were affected. But what we saw instead were immediate effects. As soon as the water was restored, that immensely changed the habitat that was available for our native stream life that provided fresh flowing water for small family farmers who wanted to grow a range of agricultural crops, especially kalo or taro, which is culturally significant here in Hawaiʻi and for native Hawaiians. And so, this has already been tried and tested. And what we saw from the Waiāhole case was that once the water is returned, we will see a direct and immediate benefit not just to the ecosystem but to the communities that rely on those ecosystems as well.
Jessica: Has this effort expanded beyond Maui and Oʻahu? Are any of the other islands seeking similar litigation?
Kapua: After the 2000 Waiāhole decision, Earthjustice was contacted by people throughout Hawaiʻi who were interested in bringing the law to life in their own communities. And we've partnered with people on many different islands after the Waiāhole decision. We successfully worked with communities on the big island of Hawaiʻi who were seeking to do the same thing, and we're able to have some of those streams restored and some diversions abandoned. In addition, we're continuing to receive inquiries from a host of other islands where people are wanting to do the same thing.
Jessica: You touched on it a little bit, but Hawaiʻi's battle over water rights goes back to the 1700s when foreigners first came and tried to privatize water. If you could just talk a little bit more about when Earthjustice decided to jump into the mix and why?
Kapua: In Hawaiʻi, water is life. And indeed in pre-contact European society water was a source of all life for our streams and communities. In our traditional system of land management, our free flowing streams of water flowing from the mountains to the oceans was really at the center of our communities and all life. In many ways, free-flowing streams are really the lifeblood of our communities, and they help to define our quality of life. In the upper reaches of the streams, of course water was important for drinking. As water flowed from the mountains down to the ocean, it was important to support traditional agriculture and aquaculture. And, of course this water flowed down into our near shore marine areas that provided nutrients for our estuaries and fisheries and were really the nursery grounds for the animals in our ocean area.
So freshwater in particular was really vital for our streams and communities. But with the arrival of foreigners beginning in the 1700s and especially in the 1800s with the establishment of the plantations, water was no longer viewed as a public trust resource. In fact, in Hawaiian society, water was viewed as a physical embodiment of one of our gods. But with the arrival of Westerners, water wasn't appreciated in the same way. It was no longer respected as a life force and instead became a private commodity that was available for sale to the highest bidder.
And so the plantations really came in and fundamentally changed how and where water was used in Hawaiʻi for the last 150 years. They constructed massive irrigation systems that took water from wet, windward, predominantly native Hawaiian communities and took it over to the central and leeward plains where it was used to subsidize sugar cultivation. Even though the laws in the kingdom of Hawaiʻi and even into the territory always recognized the public trust nature of our water resources, these laws remained largely on the books. And they were ignored by the powerful, political and economic interests of the plantations. And so really it wasn't until the 1950s or 1970s that a movement came about to return these public resources to public management and control. And that was done in partnership with the communities. The law was a critical tool in achieving this counterrevolution in water resource management in Hawaiʻi.
Jessica: So essentially like you said the law was already on the books. Earthjustice and our clients are basically just enforcing the law that hasn't been enforced in many, many years.
Kapua: At bottom, that's really what Earthjustice has been doing. We've been partnering with community groups to insure that the law is respected and upheld. And that's been critical in small communities like Hawaiʻi where often politics or economics can outweigh, or has in the past at least, outweighed the force of law. But what Earthjustice has been able to do is to use our constitutional provisions and our statutory provisions to insure that the law is more than something that just exists in books and libraries. And that actually has forced an effect and can be used proactively to help protect our resources for present and future generations.
Jessica: The issue of water rights seems to be an ongoing issue. And on top of that global warming is negatively impacting water supplies. What kinds of solutions can Hawaiians look to in order to insure that there's water for the next generation?
Isaac: Your question really raises what these stream restoration cases are all about. It's about preserving and conserving the resource so that we still have it for decades down the line and for future generations. As Kapua mentioned, we live on an island and we have no other source of water other than what we've got right here. And in that sense we in Hawaiʻi are kind of a microcosm of what our entire world is facing towards water scarcity. And with all of the problems of water quality and quantity, availability of water for all people, and it being a public resource and a basic human right, I think that these cases that Earthjustice was spearheading in Hawaiʻi highlight the need for the public ownership and stewardship of a precious resource on behalf of all and that the resource should not be monopolized as private property or by a handful of private interests. That's what our stream restoration work is about. For so long it's just been about private parties extracting and taking. And now the law clearly states and Earthjustice's partnership with these communities are seeking to enforce, the principle that we need to start giving back. It's about taking care of the resource over the long-term and for future generations because that is all we have.