LETTER: Dispute Over Waihe’e Access

Opinion pieces, analyses and letters are intended to provide a diverse range of views from our community. They are not intended to represent the views of Maui Now.

Editor’s Note: The following is in response to the dispute over Waihe’e access rights.

By K. Blaisdell

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. Photo by Wendy Osher.

I agree with my cousin Kamaunu Kahaiali’i. The key word is “lineal descendants.” Gathering rights is to assure that lawful occupants of an ahupua‘a may, for the purposes of practicing native Hawaiian customs and traditions, enter underdeveloped lands within ahupua‘a to gather items enumerated according to law. This does not mean that traditional and customary gathering rights was granted to just any person who is a Kanaka but did not reside within ahupua‘a (Back in the old days, if you are from another ahupua’a, you cannot just travel into another ahupua’a without kahea or asking), it simply means that gathering rights were limited to those of lineal descendancy FROM that particular ahupua’a which therefore can be proven by the Kamaunu family.

Mr. Varel and his attorneys’ interpretation of access is greatly flawed. There were actually 2 roads that lead into the back of the valley. The first lower road ran along side the Waihe’e stream passing Waihalulu and ending at Kauwahine Apana #2, across from the old Waihe’e Ditchmans house in Kamahoe (this is just near the shack where you pay to get in is located). The second road IS the road where the Kamaunu Ohana speaks of. That road traverses all the way to the back of the valley, passing the Waihe’e ditchmans house, crossing Waihe’e Stream all the way up to Alae and Waiauku’u. The ohana’s who have valid claims are those who are descendants of Pumaiwa’a, Kauwahine and Ha’ie, which the Kamaunu Ohana claims are therefore legal and valid. Those families had to have had a way to get to their kuleana and they did. This second road stretches as far back as a mile from the Waihe’e Ditchmans’ House just about where the second bridge is located (swinging bridges) and where the above named familes: Pumaiwa’a, Kauwahine and Ha’ie are also located.

I also agree with Mr. Varel. Even though the Kamaunu Ohana has every legal right, Mr. Varel also has a right to protect himself and property, hence the liability waiver. I can fully understand the frustration of everyone, but should someone like our keiki fall and gets killed on property owned by Mr. Varel, Mr. Varel is legally liable for everything and everyone that steps foot onto his property. Be honest here, if somene you love gets killed on his property knowing full well that he is legally liable, would any of you say, ” Its okay Mr. Varel, it was an accident” or would you sue him? I think we all know the answer. But, again, the Kamaunu Ohana and any ohana who are lineal descendants of the Waihe’e Ahupua’a DOES have a legal right under the laws of the Hawaiian Kingdom, Hawaii Revised Statutes and the Hawaii State Constitution to have the right of way and roads shall be free to all, on all lands granted in fee simple. Here are the laws below:

CIVIL CODE OF THE HAWAIIAN ISLANDS:
§l477: Where the landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house -timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple: provided, that this shall not be applicable to wells and water-courses, which individuals have made for their own use.

HAWAII REVISED STATUTES:
HRS §7-1 Building materials, water, etc.; landlords’ titles subject to tenants’ use. Where the landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use. [CC 1859, §1477; RL 1925, §576; RL 1935, §1694; RL 1945, §12901; RL 1955, §14-1; HRS §7-1]

HAWAII STATE CONSTITUTION, ARTICLE XII SECTION 7
TRADITIONAL AND CUSTOMARY RIGHTS
Section 7. The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua’a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. [Add Const Con 1978 and election Nov 7, 1978]