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March Planned in Opposition to Waihee Fees and Waivers

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   August 30th, 2011 · 7 Disqus Comments · Featured, Maui News

By Wendy Osher

Famed waters of Eleile in Waihe'e Valley. Photo by Wendy Osher.

Family members connected to the Waihe’e ahupua’a (land division) are planning a march on Saturday amid a dispute over traditional access rights to the Valley.

Members of the Kamaunu ‘ohana say the issue came to a head on Friday, August 19, when family members attempted to cross the property owned by John G. Varel to swim and visit the upper reaches of the valley.

According to Waihe’e resident, Johanna Kamaunu, a verbal argument ensued between her niece and a booth attendant on Varel’s property, over fees. Allegations of harassment surfaced from both sides, and police were called to respond to the impending altercation.

The Kamaunu ‘ohana children have made the trip up the mountain a weekly event, said Johanna Kamaunu. “Glad am I that their rights—not privilege—were challenged, because now they understand more than I could have taught… exercise your rights before someone exercises them for you,” said Kamaunu.

According to an August 24 letter from Varel’s attorney, Brian Jenkins, to the Department of Land and Natural Resources, Varel had been charging a $3 fee to non-residents of Waihe’e, as a way to defray costs in monitoring tourists and hikers, and providing waiver forms.

“Mr. Varel has not and does not charge admission to residents of Waihe’e who want to cross his land so long as they sign a liability waiver,” the letter stated.

Kaniloa Kamaunu responded saying, “We might as well pay the fee if we sign the waiver because it negates what we are claiming. We don’t have to. It’s already our right, and has been our right,” he said, citing Kingdom Law from 1859.

“Varel’s contract warranty deed is now pitted against the superiority of the Land Commission Award, the certified authority of the Royal Patent, and constitutional vested conditions of the Kuleana Act,” said Johanna Kamaunu.

In terms of state laws, Kaniloa Kamaunu said chapter 7.1 of the Hawaii Revised Statutes states that native tenants have a right to gather and traverse. “Roadways and right of ways are free to all,” he said.

Varel said access to his property is considered trespass, if it is done without permission or a retained legal right or easement to enter for certain purposes. When he purchased the property in 2001, he said he had the option of completely blocking access to prevent crime and vandalism.

The current, paved roadway was constructed for sugar cane operations and is now used as an easement by Wailuku Water Company to access the former plantation water distribution system and flumes at the back of the Valley.

Traditional access, Jenkins states, was along Waihee Stream, and not via the old sugar cane road that crosses the Varel property.

This statement is disputed by Kamaunu family members who say that prior to construction, an unpaved access road did exist at the location and was used by area residents. “All the families that lived along that old road were named in the easement because it was once a road we all used, it was their right of way,“ said Johanna Kamaunu.

Valley residents used the old and new roads to access the storied waters of ‘Eleile, for the gathering of ‘opae, fresh fruit, and use of spring water for taro cultivation.

Cultural practitioners say the area beyond Varel’s property is especially significant and considered traditional cultural property because of its importance in story, song, and chant. It is here that, Johanna Kamaunu states, flood waters were said to have taken the lives of sisters ‘Eleile and Wailua who were known for their kapa making skills.

Hawaiian proverbs and poetical sayings refer to the waters of ‘Eleile in the phrase: Ka wai ho‘iho‘i la-‘i o ‘Eleile, speaking of the way in which the waters carry back the ti-leaf stalk.

Area resident, Pualani Waihe’e Kamaunu said the area of Waihe’e once served as a political center and was one of three places of refuge for Queen Ka’ahumanu. Waihe’e Kamaunu said according to family documentation and oral histories, there are 18 heiau or temple sites in Waihe’e, 10 to 12 of which are documented.

“My grandmother used to go there to get ‘opae, mountain apples, and guavas,” said Waihe’e Kamaunu.

In addition to hunting, and gathering of food as well as ti leaf, laua’e fern and materials for hula implements, the area beyond the Varel property also includes family burials, according to Kaniloa Kamaunu.

“For him (Varel) to claim he has ownership to the only road and entrance to the property is against the law. There is no other way to get to the mountain but to walk through the river and find your own way,” said Kaniloa Kamaunu.

Visitors that traverse Varel’s property are often drawn to the area because of the popularity of a trail beyond his property, referred to by many as the Swinging Bridges, because of two suspended steel cable and wood bridges that cross Waihe’e Stream.

As of last Thursday and Friday, Varel said Wailuku Water Company had constructed a 20-foot fence across the trail back near the Swinging Bridges. There are also pre-existing gates on Varel’s property that can be used to control vehicle access.

“So until folks get a pass to ingress their (Wailuku Water Company’s) property most folks will have no reason to trespass across my property to get there,” said Varel.

Varel has also since closed his small produce stand where he said county permits allowed him to sell items produced on his macadamia nut and fruit farm, as well as water. This was also where fees were collected and waivers were signed.

As for Waihe’e Valley residents, Varel said he was still willing to allow them access if they sign a liability waiver form. Since his fruit stand closed, those requesting access must now call in advance to make arrangements, he said.

“If they want to march they can march to the end of Waihe’e Valley Road, but that is as far as they can go without permission,” said Varel.

A meeting was held with planned marchers and officers from the Maui Police Department to ensure safety and determine what course of action marchers had planned to take.

“They wanted to know if it was going to be peaceful–for me that was always the intent,” said Waihe’e Kamaunu.

She went on to say, “It is my inherent birthright and civil right to march.”  When the march is over, she said, she planned to file a civil suit, as well as an injunction to get gates removed from Varel’s property.

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  • Alapa'i Nui's

    Stick 2 your guns Varel! They give themselves fake names, why because they shame let the people know the real them! Pualani Waihe’s Kamaunu! Palanai’o!! Let them take you to court, they don’t have two dollars two stand on! If somebody crosses my property, they deal with me!

    • guest

      Truly, ownership of real property is only a license granted by the state. Any rights are arbitrary. Ask yourself "Who bought it from God?" I suggest a search for agreement instead of conflict.

  • Pualani aka Waihee

    Is this a threat to my life Mr. Varel?

  • K. Blaisdell

    “So until folks get a pass to ingress their (Wailuku Water Company’s) property most folks will have no reason to trespass across my property to get there,” said Varel.

    This comment by Mr. Varel is wrong…Hawaii Law is clear. An easement gives one party the right to go onto another party’s property. That property may be owned by a private person, a business entity, or a group of owners. Easements may be obtained for access to another property, called "ingress and egress", where HRS 7.1 applies to Native Hawaiians (Kanaka Maoli) for gathering rights and traditional and customary practices. The easement is a real property interest, but separate from the legal title of the owner of the underlying land…

  • K. Blaisdell

    … on 11-30-2010 In Pila’a vs. Andrade, the court held that the owner of a kuleana has appurtenant access and water rights over other property in the ahupua`a, of which the kuleana is a part. In other words, if you must pass through properties owned by others in order to get to your Kuleana, the law and the courts says that you can. If your Kuleana Land falls into the same Ahupua’a as the private landowner, and the only way for you to travel to your kuleana is to go through other properties for you to gather, practice your traditional and customary rights pursuant to HRS 7.1, than it is illegal for any private landowner to deny you easement…

  • K. Blaisdell

    …this is legally called "Easement by Necessity". An Easement by Necessity is the requirements for establishing, for the benefit of a kuleana, an easement under HRS Section 7-1 by necessity and/or based on ancient or historical use typically for gathering rights and/or traditional and customary practices. Mr. Varel did indeed grant access to all Kanaka as long as you sign a waiver of liability. However, to deny access to any Kanaka who have legitimacy to pass freely through ones property for traditional and customary practices, gathering rights and to get to their Kuleana is illegal and a violation of law pursuant to HRS 7.1. On another note, it is Wailuku Water that should be in the hot seat and not Mr. Varel.

  • K. Blaisdell

    oh, on another note… in order for this to work, there are several factors that comes into play:
    1. You must provide proof of claim to your particular Kuleana in that particular ahupua’a
    2. You must provide proof of DIRECT lineal descendancy FROM that ahupua’a
    3. You must provide proof of FACTUAL gathering rights and/or traditional and customary practices (meaning you cannot claim "swimming" as a traditional and customary practice).

    Just because you have Kanaka blood, that doesnt give you inherent rights automatically to any place in Hawaii. You ONLY have inherent rights in YOUR ahupua’a. Im a descendant of Waiehu, that means I cannot go to Kanaio and claim land and gathering rights there, I ONLY have rights within my ahupua’a. This is law, this is Kanawai.