VIDEO/PHOTOS: Dispute Over Waihe’e Access Unresolved
By Wendy Osher
[flashvideo file=http://www.youtube.com/watch?v=U6qoLIAel5M /] Tears flowed along Waihe’e Valley Stream as members of the Kamaunu ‘ohana reluctantly suspended a march that arose out of a dispute over traditional access rights.
“The emotion that transpired was that of grief,” said Kaniloa Kamaunu.
Between 60 and 75 people gathered at the Waihe’e Ball Park on Saturday morning to support the march, but organizers asked that participants stay back, opting instead to send just a select few including family elders, spiritual leaders, and key community members, to deliver an offering and place a kapu at the site.
“We didn’t want people to be accused of anything when they came here innocently, just to support our family, support our cause, and support us as Native Hawaiians,” said Kamaunu. He said statements he made earlier indicating his plans to pass through gates along private property and face arrest, appeared to have triggered a higher level of monitoring by authorities.
“As a family we decided not to endanger anyone else who may become guilty by association,” said Kamaunu; but he said, “This in no way means that we have agreed to what is happening.”
Kamaunu, who was among the small group that delivered the pū’olo (bundle), wept at the sight of a fence that stood as a physical barrier between him and a road he had traversed throughout his life.
“For me not to go to the mountain, it’s like you might as well take away my legs, take away my arms, and just leave me there to die because that’s part of me. That’s my whole life,” said Kamaunu.
“He (Varel) is not going to prosper until the gate itself and anything that is imposing or threatening us not to traverse is taken away,” said Kamaunu.
One Gate is Closed, Another is Erected:
The gate is now one of two physical barriers that pose an obstacle to what had been used as an access to the upper reaches of the valley for hiking, recreation, gathering of food and materials, visiting family burials and conducting cultural practices.
John G. Varel, the owner of the Waihe’e Valley Plantation, closed a gate at the entrance of his property following an August 19, 2011 argument over fees and waivers that transpired between an attendant at his plantation and a member of the Kamaunu ‘ohana.
A separate fence, Varel said, was constructed by Wailuku Water Company LLC around August 25-26, across the trail back near the Swinging Bridges, blocking access to the bridges and the mauka region beyond his property.
Now anyone who wants to gain valley access through the road and trail, is advised to first get written permission from Wailuku Water Company, and then call the Waihe’e Valley Plantation to make further arrangements, according to a sign on the Varel property.
“If you feel you have to put up a barrier, so that peace has no part of your life, you’re in the wrong place,” said Kamaunu Kahaialii. “This valley belonged to our ancestors and all the lineal descendants who have been here for more than a thousand years.”
Fees and Waivers:
In a phone interview last week, Varel said he had been charging a fee to non-residents in part to monitor visitors; He said access to Waihe’e Valley residents is free as long as a liability waiver is signed so that people understand that going back into the Valley is at their own risk.
A sign posted at the Varel gate on Saturday morning read: “Hiking on Waihe’e Valley Plantation’s property without permission in writing is breaking the law. You will be arrested. Bail is $250. This will go on your record and you will have to appear in court.”
The signs, fences, waivers, and forms have created a pile of pilikia (trouble) for families who say traditional access rights allow for the free use of roads as stated in both the Hawaii Revised Statutes (HRS 7-1) and the Civil Code from 1859 (section 1477).
Varel said he has never charged a fee to Native Hawaiian residents of Waihe’e who want to cross for traditional rights; but maintains that the old plantation road through his property is not a protected access way and was not a trail or ancient road used by Native Hawaiians before 1892.
Kamaunu family members are in disagreement, saying that the road serves as the only access point to practice their rights that predate 1892, and claim it was built over a pre-existing road that was used by previous generations.
Family members say there was also an older road that was about 20 to 30 feet closer to the river from the current asphalted road. Johanna Kamaunu said documentation exists to this older road of an easement naming valley residents.
Property Rights vs. Traditional Rights:
A background statement from Varel outlines parameters for use of his property saying, “access is considered trespass, if it is done without permission or a retained legal right or easement to enter for certain purposes.”
It further states, “The rights can be reasonably regulated by the landowner to protect the health, safety and security of the landowner and the native Hawaiians who are exercising their traditional and customary rights.”
Kahaialii stood in disagreement saying, “When someone tells you that you need a license or permission to mālama (take care of) your kūpuna (ancestors), just go. That palapa (document), that’s their ‘ōpala (trash). But go, because it’s the right thing to do,” he said.
“It’s very emotional for me because you’re talking about my heritage, you’re talking about my kūpuna who lived and was buried in that area in a place that I grew up and I love,” said Kaniloa Kamaunu.
“Ashes are scattered in that valley, way up inside against what we call the Wall of Tears,” said lifelong Waihe’e Valley resident, Ben Rogers.
He said access to the ocean and mountain is a right. Even at Haleakala, he said, “in a restricted zone, if you are Hawaiian and you go there to malama ‘aina, they cannot keep you out; and they cannot charge you a fee because they cannot tax a right.”
Finding common ground:
“Hopefully you’ll remember this day,” said Pualani Waihe’e Kamaunu, who organized the event. “We’re going to go forward and celebrate today,” because she said friends and family had gathered as one.
“This gathering, e kupaianaha no keia (how marvelous this is)—there should be more like this,” said Kahaialii.
“Take this from here, celebrate this moment now, and do whatever is necessary from this point to find resolve for this valley,” said Hawaiian rights advocate, Ke’eaumoku Kapu in addressing the group who had gathered on Saturday.
Late last month, Varel’s attorney had suggested a meeting with a neutral mediator to allow both sides to discuss the situation face to face. He suggested retired Judge Boyd Mossman serve in this capacity because of his native Hawaiian lineage and knowledge of traditional rights.
It is unclear what path each side will take, but both have expressed hopes at finding a resolve.
“He ‘ono no ke ola i na pono no kākou: Life is ono when we’re pono,” said Kahaialii, “and that means we do the right things, at the right time, for the right reason.”