East Maui kalo farmers affirmed by state Supreme Court decision on water rights
March 9, 2022, 4:00 PM HST
* Updated March 10, 10:58 AM
A recent milestone decision affirmed Native Hawaiian kalo farmers and subsistence gatherers in a long-fought legal battle over East Maui water rights.
In Carmichael vs. BLNR and Alexander & Baldwin, the state Supreme Court found that the state violated water leasing law in East Maui by allowing A&B to divert water from state land for years without environmental review, according to a 53-page opinion issued last week.
Ed Wendt, who has been involved in the fight for East Maui’s water for decades, said the decision brings hope for the future.
“It’s been a long journey,” Wendt, past president of Nā Moku Aupuni O Ko‘olau Hui, said in a news release. “Many kūpuna have already died waiting for water, for justice. The suffering that our people endured for so long—it’s genocide. But, because of our fight and our legal victories, we are starting to see farmers coming back. We are finally starting to have hope for our next generation.”
The Supreme Court remanded the case back to the Circuit Court to determine whether A&B was required to prepare an environmental assessment for the revocable permits.
In the case, Native Hawaiian kalo farmers and subsistence gatherers argue that A&B’s month-to-month permits approved by the state — and repeatedly renewed year after year — violate the law on temporary permits and that environmental reviews should have been done.
Plaintiffs are represented by Native Hawaiian Legal Corp. and include Healoha Carmichael, Ke’anae gatherer and fisher who relies on traditional subsistence practices to provide for her family; Lezley Jacintho, who grows kalo in Honopou to feed her family, teach her kids to feed themselves and live as her grandparents did; and Nā Moku, a community group of farmers, fishermen, and gatherers from Ke‘anae-Wailuanui, a news release said.
Since 1985, the state Board of Land and Natural Resources allowed A&B to use state land in East Maui to divert as much as 450 million gallons of water daily by continuously issuing to A&B “temporary” revocable permits without preparing an environmental assessment.
In 2015, Carmichael, Jacintho and Nā Moku sued the state and A&B to end this practice.
After the Circuit Court invalidated the permits in 2016, the case was reviewed by the Intermediate Court of Appeals, which reversed the decision in 2019. Then, the plaintiffs appealed to the Hawai‘i Supreme Court.
A&B has been diverting water in its East Maui Irrigation system of ditches, tunnels and siphons for more than 150 years, most of those years for sugar operations, which ceased in 2016.
Opponents have said those diversions have taken the main East Maui stream flows, crippling taro farming, hurting native ecosystems and deterring Native Hawaiian cultural practices.
Some of those stream flows were restored after the state water commission set in-stream flow standards in June 2018.
At the end of 2018, A&B sold 41,000 acres of former sugar land to Mahi Pono, which began its ongoing farming operations. As part of the acquisition, A&B and Mahi Pono co-own EMI.
A&B, whose water permits are nontransferable, now uses its revocable permits for Mahi Pono farming.
The company would not have been allowed to apply for a revocable permit beyond 2019 were it not for the Intermediate Court of Appeals overturning the lower court’s decision.
A&B submitted to the state in 2019 a draft environmental impact statement for its East Maui diversions as part of an effort to obtain a long-term 30-year lease.