Water rights heroes John and Rose Marie Duey at home in ‘Īao Valley with taro growing behind them.
(Sterling Kini Wong, Office of Hawaiian Affairs)
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September 9, 2016
It was like a horrible dream: Native Hawaiians fined for growing food and practicing their culture.
For decades, Native Hawaiian kalo (taro) farmers have fought to restore water flows to rivers and streams that plantation companies have drained dry for over a century. No one ever imagined these farmers could be penalized for trying to carry on the vital and sacred practice of growing kalo to feed their families and communities.
But that’s what the Hawaiʻi water commission’s staff tried to do recently by citing “mom-and-pop” farmers in ʻĪao Valley on Maui, threatening them with thousands of dollars in fines for placing a pipe in a stream to access water for their loʻi (wetland taro patches). Worse yet, the farmers targeted were John and Rose Marie Duey—community icons who have led the movement to restore instream flows to Nā Wai ʻEhā (Maui’s “Four Great Waters” of Waiheʻe, Waiehu, Wailuku and Waikapū) for more than 12 years.
In the end, the water commission not only rejected the proposed fines and recognized the Dueys’ right to use the water; it also directed staff to develop a process for expediting water permits for kalo farmers. Out of this seemingly dark hour came justice for the Dueys and a ray of hope for Native Hawaiian water rights.
A Family and a River
The Dueys’ saga began in 2004, when they and other community members, represented by Earthjustice, brought legal action to restore Nā Wai ʻEhā stream flows that were being diverted by two companies, Wailuku Water Company and Hawaiian Commercial & Sugar. The Duey ʻohana (family) has lived in ʻĪao Valley for almost 50 years, within a stone’s throw of the dewatered Wailuku River. Aunty Rose, a Native Hawaiian, traces her ancestral roots to this valley. Uncle John, a Midwestern farmer originally from Indiana, read about Hawaiʻi’s laws protecting rivers and streams as a public trust and was appalled that plantation companies were still hoarding all the stream flows as their private property.
Around the same time that their legal battle to restore stream flows began, the Dueys also sought to reopen ancient loʻi on their land, which was their right as a Native Hawaiian ʻohana and as landowners along the river. But the river was virtually dry because Wailuku Water Company was diverting all the flow. Also, the landowner directly upland of the Dueys had bulldozed the traditional ʻauwai (irrigation canal) that ran stream water to the Dueys’ land. After consulting with water commission staff, the Dueys placed a pipe in a small pond in the otherwise empty river bed, managing to collect some water to feed several small loʻi, after which they returned the flows to the river.
So, the Dueys were there from day one. And as the battle against entrenched historical injustices dragged on for more than a decade, the Dueys remained steadfast in their presence and commitment. Through tremendous sacrifices of their time, money and energy, the Dueys turned an initial meeting in their backyard with Earthjustice attorneys into a broad and still-growing community movement.
Indeed, when the litigation over Nā Wai ʻEhā stream flows went all the way to the Hawaiʻi Supreme Court, the court referred to the Dueys by name in its decision. The plantation companies sought to block the case from even being heard, but the court ruled that the Dueys and other ʻohana had the right to enforce the law. Following our victory, in 2014, the diverters agreed to restore about 25 million gallons a day to the four rivers and streams, which are now flowing for the first time in 150 years.
Streams Flow, but Community Members Are Still Waiting
But our work is not over by any stretch. After all the time and effort to restore stream flows, the Dueys and other kalo farmers are still subjected to complex and burdensome processes for determining water rights and obtaining permits. While these community members with legally protected rights have waited in limbo for years, the companies continue to divert flows.
The trial in the next round of Nā Wai ʻEhā litigation, involving over 100 water use permit applications to use stream water, is currently underway. And Earthjustice, together with our longtime ally the Office of Hawaiian Affairs, continues to take the lead in enforcing the rights of community members to maintain their ways of life connected to the flowing streams, while defending against attempts by diverters to grab water for developments like subdivisions, golf courses and industrial agriculture. We are also seeking to increase the instream flow restoration in response to Hawaiian Commercial & Sugar’s announcement earlier this year that it is shutting down its sugar operations for good.
A Disaster—and Redemption
It was in the midst of this permitting trial that the Dueys were slapped with an enforcement action subjecting them to thousands of dollars in fines for the pipe they had installed 12 years ago in trying to exercise their water rights.
In Earthjustice’s decades of dealing with the water commission, we’ve never seen anything quite like the public reaction to the fines. Within days, a tidal wave of public outrage spread across not just Nā Wai ʻEhā, but the entire state. Testimonies in support of the Dueys poured in by the hundreds in less than a week, including letters from the Office of Hawaiian Affairs and the Department of Hawaiian Homelands, as well as Maui’s mayor.
At their hearing, the Dueys expressed feelings of hurt and anger at the enforcement action, but they were also gracious to commission staff, acknowledging them as “good people” with a “difficult” job to do.
Several commissioners questioned the misplaced priorities behind the enforcement action and personally apologized to the Dueys. In the end, the commission voted unanimously to reject the fines and issue the Dueys a permit for their pipe. And the commissioners didn’t stop there. They ordered staff to develop an expedited permitting process for kalo farmers, so that others won’t have to suffer through a decade-long ordeal.
In the end, what started as a potentially historic disaster ended with a hopeful breakthrough for Native Hawaiian rights to water, to grow their traditional staple crop and to practice their culture.
The Dueys’ Legacy: People Can Make a Difference
The Dueys often recall that when they first brought this case, the traditional name “Nā Wai ‘Ehā” for these legendary waterways and the overall region, which supported the largest continuous area of kalo cultivation in all of the islands, had largely faded from popular memory and use. But through their tireless efforts, the Dueys and other ʻohana have put Nā Wai ‘Ehā back on the map.
This is literally true: Uncle John led a one-man campaign before state and federal geographic boards to officially change the name of the river in his valley from ʻĪao Stream back to its traditional name of Wailuku River. He believed the river should regain its traditional name and status as a river, in addition to its flow. The Dueys and others have also put their indelible stamp on the law (memorialized by name in the court’s decision) and the history of the lands and waters they call home.
Uncle John reflected, “It’s been a long time and lots of pain, but I truly believe what we have gone through will help others down the road.”
It’s been a long time and lots of pain, but I truly believe what we have gone through will help others down the road.
As we pursue ongoing Nā Wai ʻEhā litigation in the coming months, this latest moment of victory and justice for the Dueys propels us forward. The remarkable outpouring of aloha for these heroes of Nā Wai ʻEhā shows us just how far we’ve come since our legal campaign began 12 years ago—and that there’s no turning back now.
The managing attorney of the Mid-Pacific Office in Honolulu, Isaac has extensive experience litigating before federal and state courts and agencies on a range of issues, including water rights, Native Hawaiian rights, shoreline protection, endangered species, environmental health and disclosure, and clean energy.
Established in 1988, Earthjustice's Mid-Pacific Office, located in Honolulu, Hawaiʻi, works on a broad range of environmental and community health issues, including to ensure water is a public trust and to achieve a cleaner energy future.