Chad Blair: How Water In Hawaii Became A Matter Of Public Trust - Honolulu Civil Beat


About the Author

Chad Blair

Chad Blair is the politics and opinion editor for Civil Beat. You can reach him by email at cblair@civilbeat.org or follow him on Twitter at @chadblairCB.


Article XI, Section I of the Hawaii Constitution states that, for the benefit of all generations, the state and its political subdivisions shall conserve and protect all of its natural resources, including water.

Water along with land, air, minerals and energy sources are held in public trust, a major outcome of the 1978 Constitutional Convention.

And yet, in spite of this bedrock principle, battles over water rights continue through the present day, most recently and prominently seen in East Maui, where taro farmers and environmental groups have tangled with large developers and land owners for decades over diversion of stream water.

A new book, “Water and Power in West Maui,” written by Jonathan Scheuer, long active in helping groups manage environmental conflict and preserve resources, and Bianca Isaki, an attorney and director for the North Beach-West Maui Benefit Fund, reminds us that struggles over controlling access to fresh water are hardly limited to East Maui.

It’s a statewide issue, and it is fundamentally about “perpetuation of political and economic power and privilege,” as a blurb for the book accurately states.

And if the title of the book rings a bell, that is intentional.

“Land and Power in Hawaii,” first published in 1985 by George Cooper and Gavan Daws, became a surprise bestseller in the local market, even though, as a New York Times review observed at the time, the book is “crammed full of the driest of data from real estate records and legislative dockets.”

Maui aquifers and section numbers. Figure from CWRM, Water Resources Protection Plan, Section 3 (2008).
Maui aquifers and section numbers. The map is from the state Commission on Water Resource Management, Water Resources Protection Plan, Section 3 (2008). CWRM

That it is. But what is not dry is the primary assertion in “Land and Power” — that state and local Democratic Party officials “profited as developers, lawyers, contractors, investors and sometimes as influence peddlers in the development that changed the face of the islands,” as the Times put it. It was also all legal, though that doesn’t mean it was proper.

Like “Land and Power” on land use and ownership, “Water and Power” is an invaluable resource in understanding how Hawaii got to be where it is today regarding water rights. I will add my copy of the book to the Civil Beat office collection of literary Hawaii that includes “Land and Power,” Broken Trust,” “Hawaii Pono” and more.

‘Free To All’

“Water and Power in West Maui,” published this year by the North Beach West Maui Benefit Fund and distributed by University of Hawaii Press, begins with an 1895 lawsuit, Horner v. Kumuliilii, in which the largest sugar plantation in the Lahaina area, Pioneer Mill, sued 60 Hawaiians in West Maui over water claims involving Kauaula Valley.

Paul Isenberg and C.F. Horner were owners of Pioneer Mill. Kumulilli means “small foundation” in Hawaiian.

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With the rapid rise of sugar cultivation beginning in the 1860s on Maui, streams from watersheds were increasingly diverted for the growing and milling of cane.

The Great Mahele of 1848-1852 (mahele means division) during the Hawaiian Kingdom resulted in the privatization of land, leading to the establishment of sugar plantations.

But the Mahele did not privatize water, and the Kuleana Act of 1850 stated explicitly, “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.”

The Hawaii Supreme Court ruled against most of the complaints of the sugar plaintiffs in Horner v. Kumuliilii, but it did not settle the fight over water, which would be fought in our courts for much of the last century.

It wasn’t until the 1973 ruling in McBryde v. Robinson that the Hawaii Supreme Court made clear the Mahele did not intend water to be treated like private property to be bought and sold. Gay and Robinson, and McBryde Sugar Co. were two large sugar plantations in the Hanapepe area on Kauai who fought each other over water rights.

Still, legal battles continued, for now tourism had supplanted agriculture as the top economic driver for the islands.

Jonathan Likeke Scheuer
Jonathan Likeke Scheuer. 

The first page on the chapter on Horner v. Kumuliilii sets the tone of the book by opening with two contrasting quotes. The first describes how the sugar mill persecuted Hawaiians in the 1890s by having them arrested and by forcibly taking their water rights, while the second is drawn from the website of the Westin Kaanapali in 2017 promoting the resort as a playground for guests that includes a “pirate ship pool” for keiki.

The use of the quotes was Scheuer’s idea. Another smart editorial decision came from Isaki, who begins the chapter on the history of the ditch system by comparing the selfish actions of Pioneer Mill to the Hawaiian warrior Alapai who, in 1738, dried up three Maui streams so there would be no food for the forces of the chief Kauhi or for the people.

Both situations, the authors explain, amount to the monopolization of water resources as a tactic of war. Water is indeed power, a fundamental source of life but also a commodity for the pleasure of visitors at the expense of Native Hawaiians.

‘A Self-Determination Issue’

“Water and Power in West Maui” is not for the general reader. Heavy on acronyms like CWRM and KLMC and terminology like “sustainable yield” and “interim instream flow standards,” it may turn off some readers.

But a major takeaway from the book for all of us is that Hawaii needs to be “a better protector” of the public trust, as the authors state. The book makes clear that Hawaii has too often fallen very short of that goal, and particular criticism is leveled at the state Commission on Water Resource Management, which is what CWRM stands for.

Participants each planted huli in the newly opened loi kalo, July 30, 2017, Kahoma, Maui.
Participants planting huli in the newly opened loi kalo in Kahoma, Maui, July 30, 2017. The stream is also pictured at top right. Bianca Isaki

Scheuer, currently chair of the state Land Use Commission, and Isaki, who has contributed to two other books on West Maui, say that the commission has demonstrated anti-Hawaiian bias in its decision-making and failed to recognize the rights of holders of kuleana lands. Water resource protection is, for many Native Hawaiians, a “self-determination issue,” a resistance to foreign powers with their lawyers and engineers trying to bully kanaka maoli and their customary practices.

Bianca Isaki
Bianca Isaki. 

The end of struggles over water in West Maui are nowhere in sight, Scheuer and Isaki conclude. “Nothing on the terrain of water resource management and development in Hawaii, much less West Maui, is settled.”

With Hawaii — like much of the planet — experiencing more drought, more wildfires and more powerful storms, control of fresh water will become only more intense. A chapter on the importance of protecting groundwater warns that demand for groundwater, pumped from wells and aquifers, will only grow in places like the Lahaina area, even as water resources are likely to decline in yield.

The hope of the authors is that their book will serve as “a useful tool in collectively implementing a more equitable and sustainable water future” — for West Maui and Hawaii as a whole.

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.


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About the Author

Chad Blair

Chad Blair is the politics and opinion editor for Civil Beat. You can reach him by email at cblair@civilbeat.org or follow him on Twitter at @chadblairCB.


Latest Comments (0)

Being sequestered over the past year+, I've watched more NHK TV stories.  I've been so impressed by how small Japanese villages and towns have engineered and built waterways a couple of hundreds of years ago to re-direct water safely.  They understand that the watersheds of their volcanic islands send water from rain and snow down the mountains to the ocean, and this mineral-rich water nourishes the aquaculture fish and seaweed farms they tend.In a story yesterday, the video described how a small village built a large stone waterway 180 years ago,  to re-direct the water safely, to prevent landslides.  This enabled the village to build rice paddies and grow wasabi safely, allowing the mountain water to nourish the farms, then flow to the sea safely.Hawai'i could learn many things about respecting and working with the environment from its volcanic archipelago counterpart in the eastern Pacific.

katisha · 2 weeks ago

Folks can understand what they can see but that's just part of the story. Water running down a stream or a river is visable. We can see it, where it is going, how much is there and all it's physical attributes. If it's dammed up, we can see the amount that is there.  Groundwater is different. Wells can destroyed groundwater aquifers when over pumped. Water that was thought to be limitless is now proving to have limits, both surface water and ground water. When something has limits, it's value increases with it's usefullness. Dams and wells have made it available but it's recharge is limited by nature. Understanding those limits are more important to its preservation than all the laws. lawyers and courts in Hawaii, the US and the world. I've seen water go from unlimited to limited here in the islands over the past 50 years. The same holds true on the mainland. 

Vandy63 · 2 weeks ago

Did the BLNR follow through with their meeting, supposedly last month, to finalize allocation of water from east Maui to Hawaiian taro farmers and Maui Pono and others? I read that the Hawaii courts ruled to cut Pono’s allocation from 45mgd to 24mgd but would not rule on final allocation of this long contested resource. 

pohaku · 3 weeks ago

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