Opening Shots Foreshadow Bitter Fight Over Future Rights to Use Waiahole Water

In November, the state Commission on Water Resource Management will open the contested case to decide who will ultimately obtain rights to use the water in the Waiahole Ditch, a system of tunnels and ditches that carries millions of gallons a day of water from windward streams to the Central O`ahu plain. More than a dozen parties have been admitted to the contested case.

The series of hearings that constitute the contested case will last well into the next year. Throughout that time, Environment Hawai`i will be making regular reports on various aspects of the case.

Exchanges between the attorneys representing the state and the Waiahole contestants became heated in September as a result of efforts by the Waiahole farmers to use several state employees as expert witnesses in support of their efforts to restore water to windward O`ahu streams. Representing the Waiahole-Waikane Community Association, Hakipu`u `Ohana, Kahalu`u Neighborhood Board, and Ka Lahui Hawai`i are attorneys with the Sierra Club Legal Defense Fund and the Native Hawaiian Legal Corporation.

By mid-September, parties were to have submitted their list of witnesses. Included in SCLDF’s list were at least two employees of the Department of Land and Natural Resources.

This elicited a stinging letter to SCLDF from Deputy Attorney General Rick J. Eichor, representing the state Department of Agriculture and the state Department of Land and Natural Resources, both of which have allied themselves with the leeward O`ahu interests seeking continued diversion of windward water through the Waiahole Ditch. “Please give to me a written explanation of the basis for you to contact employees of DLNR for written testimony in case [sic] without my knowledge or consent,” Eichor wrote. “If I do not receive a response by September 22, 1995, I will file a complaint with the Office of Disciplinary Counsel reporting your actions and requesting that they take appropriate action.”

Paul Achitoff of SCLDF responded to Eichor on September 27: “[Y]our threat was without legal basis, and … your efforts to inhibit communication between such employees and this office is itself improper.”

Eichor answered (on October 4), by claiming that he had made no such effort: “nothing in my letter denies you access to state employees, nor does it demand that you refrain from communicating with them in the future. You took their statements before it was even made known to me. My concern is whether in doing so you have breached the attorney’s ethical code… When you use state employees without my knowledge, we are thrust into a dispute on the propriety of such contact.”

Other charges of interference by Eichor in the windward parties’ efforts to obtain testimony were made by James Paul of Paul Johnson Park & Niles, which represents Hawai`i’s Thousand Friends. In a letter to the commission dated September 18, Paul wrote: “Apparently, state employees have been instructed by the attorney general’s office to clear in advance any requests for testimony.” As further evidence of the state’s efforts to block the testimony of its employees in support of the windward petition, Paul quoted a passage written by Eichor in correspondence with the Water Commission, in which Eichor argues that (quoting from Eichor) “government employees … should not be presented as free expert witnesses. A party desiring expert witness testimony must secure that from non-government employees.”

(In a letter to the commission dated September 18, Achitoff also took exception to that claim of Eichor’s. By “suggesting that a party that subpoenas a government employee would be receiving ‘free’ expert testimony,” Achitoff wrote, “Mr. Eichor seems to have forgotten that our clients — and all other taxpayers in this state — pay the salaries of those employees.”)

Hostile Witnesses

Serving as backdrop for these disputes over witnesses are two rulings (called minute orders) of the Water Commission. Minute order 20, issued on September 14, required all expert-witness testimony to be written in the form of an affidavit and submitted to all parties in advance of the witnesses’ appearance. This would allow the attorneys for opposing interests opportunity to prepare their questions for cross-examination.

But many state employees with expert knowledge of affected resources in the windward area were hesitant to cooperate voluntarily by providing advance written testimony. In some cases, SCLDF attorneys who had approached state employees were told that the employees feared retribution, including possible loss of their jobs, should they voluntarily cooperate with the windward parties. Achitoff noted in a filing with the commission that some of the employees reported that Eichor “had spoken with them … questioned them about what they, and we [SCLDF attorneys and staff] had said in any discussions, and instructed them to consult with him before providing [the windward parties] with any assistance in this case.”

In an effort to address this, the Water Commission revised Minute Order 20 and, in Minute Order 21, allowed oral expert testimony to be given from witnesses who are “hostile to the calling party’s interests” and who, “after being requested by the calling party, refuse to provide advance written testimony.” In addition, the parties who wish to have the expert testify must first provide the commission in writing with “convincing reasons why advance written direct testimony” cannot be supplied and then submit a description of the testimony the witness is expected to provide. Should the live testimony differ from the description of the anticipated testimony, the commission may have it excluded.

Attorneys for the windward parties objected strenuously to Minute Order 21, as, among other things, penalizing them if they are not prescient in guessing the testimony of witnesses who have refused, for whatever reasons, to cooperate. At press time, Minute order 21 continued to stand.

Water Commissioner Herbert “Monty” Richards — whose September appointment, by the way, still has not been made public by the governor’s office — is chairman of an organization that has given financial support to a leeward rancher who uses Waiahole Ditch water. The organization that Richards, a Big Island rancher, heads is the DOD Oversight Committee, which was established to decide how to allocate the several million dollars appropriated by the federal government to help get diversified agricultural projects off the ground in areas hit hard by the closure of sugar operations.
The appropriation was placed into the Department of Defense budget by U.S. Senator Daniel Inouye. The justification for the project being placed in the DOD budget, Inouye has said, is that it can provide products for the military’s Meals-Ready-to-Eat packages.

The DOD Oversight Committee acts in effect as a board of directors for the Rural Economic Transition Assistance-Hawai`i (RETA-H) Project. The committee reviews proposals submitted to it for funding, decides if they qualify, and, if so, recommends an appropriate funding level. According to an Information Paper on RETA-H prepared by the Hawai`i Island Economic Development Board (whose executive director, Paula Helfrich, is also administrator for the project), funds were initially directed toward the Hamakua area of the Big Island. Recently, however, “the project has been expanded to a statewide scope to utilize the agricultural resources being released by the Hawai`i sugarcane industry in Waialua, Central O`ahu, and Ka`u,” according to an information sheet distributed by the HIEDB.

In addition to Richards, members of the Oversight Committee (selected, according to Helfrich, by Inouye) include William Paty, trustee of the Robinson Estate (a party in the Waiahole contested case); Dave McCoy of Campbell Estate (another contestant); Oswald Stender, a trustee of Bishop Estate (a contestant); Grant Hamachi of the Hawai`i Farm Bureau Federation; and Eusebio “Bobo” Lapenia of the International Longshoremen’s and Warehousemen’s Union Local 142 (who also is a member of the state Land Use Commission).¹

Among the projects receiving funds from the DOD Oversight Committee is the Circle C Ranch in Kunia, O`ahu. Helfrich told Environment Hawai`i that the Circle C received $75,000 to support a “haylage” project, which converts hay through fermentation into a high-nutrient cattle feed.

Terry Cozzens, owner of the Circle C Ranch, has submitted testimony to the Water Commission that his ranch, on land “licensed” from the Campbell Estate and subleased from Del Monte, uses about 240,000 million gallons a day of Waiahole Ditch water. “That quantity will continue to increase as more fields are planted and need irrigation,” Cozzens stated.

Unless Richards declares a conflict of interest, he will participate in the Water Commission’s decision as to whether a project he approved of and recommended funding for as DOD Oversight Committee chairman will get Waiahole water. Under state law, conflict of interest is narrowly construed to mean that the party in question or a close family member stands to gain financially as a result of decisions to which the person is a party. By this standard, Richards probably would not be found to be conflicted.

In its filings with the Water Commission, Kamehameha Schools/Bishop Estate routinely describes its interest in the contested case proceeding as follows: “KSBE is a Native Hawaiian organization which seeks to use the water emanating from its Waiawa lands to generate income for the benefit of Native Hawaiian children … now and in perpetuity.” But if the expert witnesses testifying on behalf of the estate have their way, those Native Hawaiian children will live in a world where poi continues to be in short supply and taro cultivation is restricted.

Ronald Englund, a biologist testifying for Bishop Estate, declared in his written testimony that “increased taro cultivation correlative with an increased flow [of Waiahole water] on the Windward side could have detrimental effects on native `o`opu,” referring to the native freshwater fish of Hawai`i. “Return flow from taro fields,” England continued, “often increases water temperature and organic nutrient levels, and reduces dissolved oxygen in streams.” Taro farmers, however, have often pointed out that the more water they have in the streams used to irrigate their taro lo`i, the lower the temperature of the water that leaves their fields. If anything, it would seem that Englund’s argument would support increased flow of Waiahole water to windward taro fields.

Another Bishop Estate expert witness, agricultural economist Peter Garrod, warned of the dangers of increasing the supply of taro to the market — one possible consequence of increasing the flow of Waiahole water to windward streams. Garrod, a University of Hawai`i professor who also works as a private consultant doing business as Evaluation Research Consultants, wrote in his prepared testimony that as many as 180 acres in the Waiahole area might be opened up to taro cultivation if windward stream flows were restored. This, he wrote, would have a “minor” impact on consumers, who would see prices of poi drop slightly, but a major impact on taro growers. “The reduced prices for taro” brought about by the increase in supply “will drive some of the existing producers out of business,” Garrod wrote.

He went on to explain his conclusions: “The demand for taro for poi is very inelastic. That is, increases in supply will result in proportionally greater decreases in price. An increase of taro production in this state above 30 acres will have a severe impact on the industry, forcing some areas to go out of production.”

Asked whether there is “sufficient land and water for taro cultivation on the windward side to meet the existing state taro market,” Garrod answered: “Yes.”

Bishop Estate is asking the commission to grant it the use of all of the waters originating in the Waiahole tunnel past the summit of the Ko`olau mountains, which marks the northeastern boundary of land owned by the estate. The volume of such water is estimated at 4.2 million gallons a day. Bishop Estate has said it needs the water for irrigation of 1,786 acres for “golf courses, school and park site landscaping, commercial and industrial parcel landscaping, landscaping of multi-family residential sites, transitional uses [not defined] and roadway landscaping.”

1. As a LUC member, Lapenia also wields considerable power. See, for example, the discussion of his role in the decision to deny Conservation District status for three streams in North Hilo, [url=/members_archives/archives_more.php?id=1115_0_29_0_C]Conservation District[/url] column.

— Patricia Tummons

Volume 6, Number 5 November 1995