Supreme Court Justices last week upbraided a lawyer who accused a lower court judge of failing to ensure there was adequate water to fight the blazes.

After wildfires swept West Maui in 2019, a state senator from the island introduced a bill proposing to amend the Hawaii Water Code to support the bill’s overarching premise.

“It is important that there be water in the former plantation reservoirs so that there is quicker access to fresh water to control fires,” the preamble said.

Sen. Gil Keith-Agaran’s measure passed out of the Senate and one House committee before stalling. In the meantime, there was lively testimony presaging debates that have unfolded amid a series of devasting wildfires on Maui this month.

The fight centers on how much power owners of private water systems should have to divert streams to fill their plantation-era reservoirs with water to control wildfires.

On one side of the 2020 bill were supporters like the Department of Land and Natural Resources, Mahi Pono, a large land owner, and the Maui Fire Department. Opponents included the Sierra Club, Earthjustice, the Native Hawaiian Legal Corp. and the Office Hawaiian Affairs.

West Maui Land Co. wanted to divert stream water to its Kauaula Reservoir in Launiupoko, near Lahaina during this month’s wildfires. The request and subsequent delay in granting permission show a widening division over the use of water on Maui. (Stewart Yerton/Civil Beat/2023)

“OHA is concerned that this measure would encourage and promote corporate and private water banking, in contravention to the public trust doctrine, in a manner that may compromise the integrity and function of our watersheds, without [sic] questionable benefits to the overall safety of the public,” OHA wrote in its testimony, referring to the principle that stream water is protected as a public resource under Hawaii law.

Earthjustice’s Isaac Moriwake echoed OHA in the organization’s testimony, saying the bill sponsored by Keith-Agaran and former Sens. Kai Kahele and Gil Riviere went too far.

“While fire safety is certainly in the general public interest, amending the Code to justify the banking of water in former plantation reservoirs specifically or solely for such potential use is neither advisable nor necessary,” Moriwake wrote. 

Fast forward three years. And the impasse has grown. Arguments are even more impassioned.

Landowners insist it’s simply common sense to divert stream water to reservoirs to use, if it’s needed, during wildfires.

Environmental groups and Native Hawaiian advocates say the landowners are using the destruction of Lahaina as an excuse to bank water they don’t need for fire safety — a continuation of plantation water hoarding at the expense of traditional Native Hawaiian farmers and other users.

Moriwake said in an interview that the battle over water in Maui has turned more intense than he has seen it in decades of handling contentious legal cases over water. He blames business interests.

“They see an opening, and they grab like hell,” he said.

Given such mistrust, there’s no clear solution – certainly not a quick one.

The only path forward may be long slogs through agency administrative hearings followed by appeals through the courts, said Jonathan Scheuer, a former chairman of the Hawaii Land Use Commission and co-author of the book “Water and Power in West Maui.”

“Ignoring water issues and water conflict doesn’t make it go away,” Scheuer said. “During the many decades in which public trust rights to water were ignored, it didn’t so much eliminate conflict as make those on the losing side of the conflict and their losses invisible.”

The system works, he said, even if it can take years.

“The contested case process can be long, can be expensive and can be deeply uncomfortable,” he said. “But the laws of our state, and the laws of Hawaii — some of which long predate Hawaii statehood — demand this process. And it leads to progress. Sometimes the only way to solve a problem is to work your way through it.”

Aliiolani Hale. Hawaii State Supreme Court Building.
As fires on Maui were still smoldering earlier this month, the state asked the Hawaii Supreme Court to force a lower court judge to relinquish a case. The court denied the request. (Cory Lum/Civil Beat/2022)

‘Maui Is In Peril’

A recent oral argument before the Hawaii Supreme Court shows the intensity of the rhetoric. 

On Aug. 9, as fires still smoldered in Maui’s Upcountry, the Hawaii Attorney General’s Office petitioned the Hawaii Supreme Court to order a lower court judge to relinquish a case pending before the lower court. The attorney general said the lower court judge had hindered the firefighting effort.

“Maui is in peril as it is ravaged by wildfires,” the Attorney General’s Office wrote in its petition. “Central Maui has no water for fire reserve because the Respondent Judge substituted his judgment for that of the agency. As a result, there was not enough permitted water to the battle the wildfires on Maui this morning.”

During an oral argument on Wednesday, Hawaii Supreme Court Justice Todd Eddins upbraided Miranda Steed, the deputy attorney general representing the Department of Land and Natural Resources, for those opening lines in the petition. The department in essence was blaming Hawaii Environmental Court Judge Jeffrey Crabtree for hindering the ability to use water to fight fires on Maui. 

“Your petition is replete with intemperate language relating to the respondent judge in the case, and I don’t see any factual support for it,” Eddins said at one point.

Steed refused to back down, even after Justice Sabrina McKenna joined Eddins, repeatedly asking the deputy attorney general to retract her statements, which Eddins noted were refuted by the case record. Finally, at the end of her argument, Steed conceded, “We’re not blaming the circuit judge, and we do apologize for the harshness of the language.”

The court denied the attorney general’s request the next day.

As fire spread south of Lahaina land and property near the intersection at Hokiokio Place and Lahaina Bypass Road, pictured here, suffered damage. (Zeke Kalua/County of Maui/2023)
This house near Hokiokio Place and Lahaina Bypass Road suffered no visible damage, even though fire ravaged land surrounding the house. The home’s irrigation system, attached to Launiupoko Irrigation Co.’s reservoir, was turned on before the tenant evacuated, wetting the ground to create a firebreak surrounding the property, irrigation company officials say. (Stewart Yerton/Civil Beat/2023)

There seems little argument that water from private reservoirs can be used to fight and control fires. Even if the reservoirs aren’t attached to public fire hydrant systems, the water can often be scooped out of the reservoirs by helicopters and dumped onto the fires, said Bobby Lee, president of the Hawaii Fire Fighters Association, a statewide union.

“It is a good idea if it’s in normal weather and the choppers can fly,” Lee said. “It is absolutely a good idea.”

There’s also another potential use, something that Steed in her oral argument referred to as “fire suppression.” It essentially means using water to create fire breaks by wetting the ground to prevent wildfires from spreading.

Whether water from private reservoirs could have been used to fight fires during the West Maui fires earlier this month is another question. It was too windy for firefighting choppers to fly. And private reservoirs are not connected to fire hydrants in Lahaina.

But the water was used for fire suppression.

Around midday on Aug. 8, as fires were flaring up in the area, an executive with West Maui Land Co.’s water and land management division asked permission from DLNR’s Commission on Water Resource Management to divert stream water to a reservoir managed by the company’s Launiupoko Irrigation Co., located in a residential neighborhood near Lahaina. 

“In response, CWRM asked us whether MFD had requested permission to dip into our reservoirs and directed us first to inquire with the one downstream user to ensure that his lo’i and other uses would not be impacted by a temporary reduction (not elimination) of water supply,” West Maui Land Co.’s Glenn Tremble wrote soon after the fire, in correspondence that’s become a symbol of the fight over using reservoir waters to control fires on Maui. 

It was 6 p.m. before the water commission granted the approval to divert the water. By then it was too late for West Maui Land to divert the water: the fire had spread, cutting off access to a road the company’s crews would need to reach hillside equipment to steer water to the reservoir, Tremble said.

The Lahaina fire, the deadliest wildfire in the U.S. in more than a century, destroyed more than 2,200 buildings and killed at least 115 people.

An Obscure State Water Official Has Gained National Prominence

The incident has become a defining moment in the latest battle over water in West Maui. 

Kaleo Manuel, the deputy director in charge of water resource management at the time, hasn’t spoken publicly since the incident but has become a prominent figure in the controversy.

Right wing pundits and politicians have criticized Manuel, casting him as a symbol of what’s wrong with progressive politics.

Environmental and Native Hawaiian activists, meanwhile, have rallied around him. After DLNR reassigned Manuel to a new position soon after the fire, pending an investigation, two Maui residents asked a court to step in and force DLNR to give Manuel his old job back on grounds that the department had violated the state’s open meetings law by reassigning Manuel behind closed doors with no opportunity for public testimony.

The progressive Hawaii Alliance For Progressive Action has called on supporters to sign a petition demanding the reinstatement of Manuel in response to what HAPA calls “plantation disaster capitalism.”

“We can surmise from the timeline of events that the reason for his re-assignment is his unwillingness to bend to the will of West Maui Land Company and other corporations like them that have been taking more than their fair share of water for decades,” HAPA says in a call for action. “In every decision he has made over the last five years, Kaleo stood up for the interests of regular people and the streams themselves.”

West Maui Land Co.’s Glenn Tremble, pictured here in one of the company’s plantation-era facilities, is calling for unity within the community. “We’ve got to come together on what the priorities are and how to get there,” he said.

West Maui Land Co.’s real estate development projects include four subdivisions near an area called Launiupoko, which is south of Lahaina. Although the company has built lower-cost “workforce” housing, many Launiupoko homes are mansions built on land zoned for agriculture. Such developments are often called “agricultural subdivisions,” “gentleman estates,” or, colloquially, “fake farms.”

Manuel’s supporters say West Maui Land Co. couldn’t have used its reservoir water for fire control on Aug. 8. Tremble points to a modest house near West Maui Land’s more affluent estates as an example of how reservoir water was used for fire control. 

Located on Hokiokio Place and Lahaina Bypass Road above an area called Puamana, the house’s yard is surrounded by scorched earth. Despite the burnt yard and other fire damage nearby, the house is in perfect condition, surrounded by patches of green grass. 

The property’s tenant apparently turned on the irrigation system, which is attached to Launiupoko Irrigation Co.‘s reservoir, before evacuating, Tremble said. West Maui Land Co. workers turned the water off the next morning, he said. 

Water from the reservoir could have been used that way – as “fire suppression,” essentially to wet the ground — to keep the fire from spreading into residential neighborhoods, Tremble said.

“Having the ability to do that is a tremendous benefit in a wildfire,” Tremble said. “It’s common sense.”

Reconciliation Is A Long Shot

Rather than bringing people together, the Maui fires have driven people further apart. 

“I do hope we can see something coming out of this that’s a positive going forward,” Tremble said. “We’ve got to come together on what the priorities are and how to get there.”

But reconciliation seems unlikely. Moriwake points to a recent article co-written by University of Hawaii law professor Kapua Sproat warning that the destruction of Lahaina could be used to push through unpopular laws and policies. He sees West Maui Land Co.’s request for water and the subsequent sidelining of Manuel as vindication of his worries about the 2020 law that would have allowed reservoir waters to be used to fight fires. 

For its part, even though DLNR still has not let Manuel speak for himself, the agency did make what amounted to a defense of its embattled water official.

On Friday, Dawn Chang, chair of the Hawaii Board of Land and Natural Resources who also oversees the water commission, finally spoke about Manuel. She praised him for his work as deputy director of the water commission to address “historic disparities” in the way public trust water has been distributed.

“No one’s blaming Kaleo,” she said. “No one’s punishing Kaleo.”

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

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