Ripple Effect

It’s the middle of the day, and Maui community members are celebrating as a local resident jumps into Wailuku River and joyfully scoops clear, crisp water onto his face and body.

His are the first splashes that the river has seen in more than 150 years.

How The Century-long Fight Began

Back in the mid-1800s, plantations began taking Wailuku River water—and other water resources throughout Hawaiʻi—to grow thirsty crops like sugar cane and pineapple. Native communities were left out to dry, no longer able to depend on the water for ecological and cultural functions like growing taro, a staple food as old as Hawaiian civilization.

Wailuku River (also known as ʻĪao Stream), together with the Waiheʻe, Waiehu, and Waikapū waterways, make up Nā Wai ʻEhā, or the “Four Great Waters” of Maui.

After years of citizen action and court battles led by Earthjustice, these waters are once again coming back to life. (See a timeline of major milestones.) But the larger fight to uphold public and native Hawaiian water rights continues to flow like an undercurrent from island to island.

“We’ve come a long way in the past 11 years, but we are not quite there yet,” says John Duey, president of the organization Hui o Nā Wai ʻEhā, which was formed in 2003 to fully restore stream flows in these communities. Born in Indiana, Duey moved to Maui in 1961 after meeting his wife Rose Marie, a native Hawaiian with ancestral ties to the island. He began fighting for water rights after realizing that the sugar plantations were violating the law by privatizing a public resource.

Water: A Public Trust Resource

For centuries, Hawaiians have believed that water can’t be owned—it’s a public trust resource that belongs to everyone, including future generations.

“You borrowed and used it as needed,” says Earthjustice attorney Isaac Moriwake, a lifetime Hawaiʻi resident who has spent more than a decade fighting for these traditional native principles.

Beginning in the 19th century, plantation owners began dismantling those principles. They bought up large tracts of land in the dry central plains of several islands and built elaborate systems of tunnels and flumes, reservoirs and penstocks to bring water from the wetter to the drier sides of the islands. This takeover of resources eventually led to the unlawful overthrow of the Hawaiian Kingdom in 1893 by plantation barons conspiring with the American government. Soon after, federally appointed territorial judges began changing Hawaiʻi’s laws to redefine water as private property to be bought and sold.

The impact of the sugar companies’ water grab was rapid and dramatic across the islands as taro fields and streams dried up.

On Oʻahu, for example, the Waiāhole Ditch took water from the windward side of the Koʻolau mountain range, where it naturally ran down several streams, irrigated extensive fields of taro and then fed into the Kaneʻohe Bay estuary.

Fish and other species native to the streams and estuary disappeared, as did the Hawaiian communities along the windward valleys that depended on the freshwater for survival.

Reclaiming Ancient Water Rights

But by the end of World War II, after dominating a majority of Hawaiʻi’s water for more than a century, the plantations began declining in the face of increased competition overseas. Meanwhile, democratic changes in Hawai‘i led to appointing judges to the court system who were more representative of Hawaiʻi’s people. In 1972, the Hawaiʻi Supreme Court ruled that the plantation-era courts distorted the original intent of Hawaiʻi’s water laws and that water was always a public trust resource. This “public trust doctrine” was later enshrined in the state constitution and water code.

The time had come, it seemed, for Hawaiians to reclaim their ancient water rights, but the plantation barons had other ideas. They began selling their lands, and the water along with it, to private developers for use on golf courses, resorts and luxury subdivisions. If they couldn’t sell it right away, the companies hoarded the water or dumped it outright to keep control over the precious commodity.

“These plantation companies turned into water companies and wanted to control the future. But water is not their private property,” says Moriwake. As the momentum for public water rights grew, family farmers and Hawaiians who remained near Oʻahu’s Ka¯neʻohe Bay began pushing for the return of flows taken by the Waiāhole Ditch. They enlisted Earthjustice, who in 1988 began legal action to force the restoration of stream flows on the windward side of the island.

Over the following years, the state water commission conducted exhaustive hearings that pitted Earthjustice’s clients against Hawaiʻi’s most powerful private interests. The commission ended up short-changing the Hawaiians and small farmers, and Earthjustice’s Paul Achitoff appealed the case to the state Supreme Court. In 2000, the court issued a landmark ruling that required more protection of stream flows and of the public uses that depend on them. The court’s decision reaffirmed that all the waters of the state are held in trust for the people, including Native Hawaiians in particular.

A Groundswell of Change

The victory in Oʻahu soon created a ripple effect across the islands. In Maui, Earthjustice brought legal action on behalf of the citizen groups Hui o Nā Wai ʻEhā and Maui Tomorrow. Together, they challenged water diversions dating back 150 years when the first sugar plantations on the island began draining the streams. Their legal case built on the precedent set in Oʻahu, that Hawaiʻi’s flowing streams are a public trust resource.

“We were very fortunate to be part of this groundswell of change and to combine our legal expertise with communities that had a deep commitment to justice,” says Moriwake.

Despite the state Supreme Court’s precedent-setting ruling, the plantations didn’t give up the water easily, and Earthjustice and its clients once again found themselves in court against powerful private interests. In 2012, the court again ruled in favor of Earthjustice’s community clients and sent another strong message upholding the public trust.

Today, all four waters of Nā Wai ʻEhā are now flowing for the first time since the 19th century.

Still, the people of Hawaiʻi remain vigilant to ensure that all of the islands’ waters are rightfully restored to the people.

Just a week after the Oct. 13 water release, Duey’s group held a rally in central Maui to remind the state water commission that it must continue to work to restore stream flows from mauka to makai (mountain to ocean). About 500 people showed up, including Duey’s two children, four grandchildren and one great-granddaughter.

“It was nice seeing the young people get involved,” says Duey.

“These private companies own the land and they think they own the water.

“I check up on them to make sure they’re doing the right thing, but I won’t be here forever.”

Find out more about the ongoing fight to restore water rights at Restore Stream Flow.

The Mid-Pacific office’s legal work established the renowned precedent that water is a public trust, not private property. Everyone has a right to a healthy environment. We could not achieve these gains without your support. Thank you.

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