Hawaiʻi’s High Court issues another historic ruling in Maui’s Nā Wai ‘Ehā case

The Hawaiʻi Supreme Court on Thursday issued a landmark decision in the long-running water case over Nā Wai ‘Ehā, “The Four Waters” of Waihe‘e, Waiehu, Wailuku, and Waikapū in central Maui. In a 134-page unanimous opinion authored by Justice Sabrina McKenna, the court ruled in favor of Maui community groups Hui o Nā Wai ‘Ehā and Maui Tomorrow Foundation, who were represented by Earthjustice, and joined by the Office of Hawaiian Affairs (OHA).

The ruling overturned the 2021 state Commission on Water Resource Management decision that failed to return more stream flows to Nā Wai ‘Ehā after the closure of the former Hawaiian Commercial & Sugar (HC&S) plantation in 2016, according to an Earthjustice press release. The court sent the case back to the commission to properly restore Nā Wai ‘Ehā stream flows to the extent practicable as mandated by law. 

“We are grateful that the supreme court continues to understand that the health and well-being of our community is directly linked to the health and well-being of our ʻāina, wai, and kai,” said Hōkūao Pellegrino, President of Hui o Nā Wai ʻEhā. “This ruling once again makes clear that the protection of our streams and kuleana kalo farmers’ rights is of utmost importance. It further speaks to the resiliency of the Nā Wai ʻEhā community and our commitment to mālama our water resources, increase kalo production, and revive mauka-to-makai native ecosystems.” 

“The court agreed with the community groups and OHA that the commission failed to meet its legal duties to restore stream flows following the end of HC&S’s water-intensive sugar operations,” according to Earthjustice. “In its 2021 decision, the commission essentially retained the existing flow levels that were set while HC&S was still in full operation.”

The court observed, “Rather than proactively addressing the historic opportunity to restore stream flows,” the commission’s decision “appears to be the result of a passive failure to take the initiative to protect the public trust in the light of HC&S’s closure.” 

The court also ruled that the commission did not meet its constitutional duty to protect Native Hawaiian rights dependent on stream flows, such as growing kalo, gathering, and fishing. The court concluded, “While thorough in many respects, the Commission’s final decision still does not evince the ‘level of openness, diligence, and foresight’ that is required where vital public trust resources like water are at stake.” 

“When we began this fight two decades ago, Nā Wai ‘Ehā were drained dry for private profit, but this latest ruling by the supreme court further turns the flow of history toward justice,” said Earthjustice attorney Isaac Moriwake. “This win is a testament to the Nā Wai ‘Ehā community, including many kupuna who join us in memory and spirit, who continue to make history by standing for a more pono water future.” 

The court’s opinion is the latest historic ruling from Hawai‘i’s highest court upholding the fundamental legal principle that water resources like flowing rivers and streams are a public trust requiring priority protection under the law. Earthjustice reports the opinion “builds on the court’s long line of precedent over decades,” including the Waiāhole Ditch case on O‘ahu in 2000 and the court’s previous ruling in the Nā Wai ‘Ehā case in 2012. The court’s decision comes almost 20 years to the day when the Maui community groups, represented by Earthjustice, initiated legal proceedings over Nā Wai ‘Ehā on June 25, 2004. 

“For two decades, Maui Tomorrow has been proud to stand with the water protectors of Nā Wai ʻEhā,” said Albert Perez, Director of Maui Tomorrow Foundation. “We are grateful that the Hawai‘i Supreme Court agrees that streams need to have enough water to support their life cycles, and that hard working kalo farmers need to have water in their loʻi. We look forward to working with the water commission to implement the court’s decision.” 

“The court confirmed that the state is in no way obligated to give away public water for private profit, including sacrificing streams to water golf turf,” said Moriwake. “In this era of climate change, these rulings send a clear and strong signal for other critical water management decisions to come, including in West Maui.”