Depending on your point of view, the dispute over the diversion of streams in East Maui either took a nasty turn last July or a turn for the better. According to a report of a state employee, people associated with the nonprofit group Na Moku `Aupuni O Ko`olau Hui allegedly brandished machetes, intimidated state Department of Land and Natural Resources employees, and took it upon themselves to open East Maui Irrigation Co.\u2019s diversions, prompting a state Department of Land and Natural Resources monitor to cut short his site inspection of a diversion on Wailuanui Stream.<\/p>\n
But during a September 25 Commission on Water Resource Management hearing on East Maui streams, when resident taro farmer Kimo Day claimed responsibility for releasing the water, he was met with cheers and applause from many members of the public.<\/p>\n
This month, the state Board of Land and Natural Resources is expected to hear a report on the incidents as they relate to a new motion in the ongoing contested case hearing over a 2001 request of EMI and its parent company Alexander & Baldwin for a long-term lease of state lands in the East Maui watersheds of Honomanu, Keanae, Nahiku, and Huelo, which provide the bulk of the water that EMI diverts via its extensive ditch system.<\/p>\n
\u2018Window Dressing\u2019<\/b><\/i><\/p>\n
In March 2007, the Land Board issued an interim order intended to provide immediate relief to petitioners Na Moku `Aupuni O Ko`olau Hui, Inc., Beatrice Kekahuna, and Marjorie Wallett, who for years have been seeking more water to grow taro and to exercise their constitutionally protected kuleana, riparian and traditional and customary rights. For Na Moku, that relief was to come in the form of a release by EMI of 6 million gallons of water a day into Waiokamilo Stream, which runs through Wailuanui valley. For Kekahuna and Wallett, a DLNR monitor was to be appointed to help determine adequate flows for their taro fields. The monitor was also charged with helping to implement the board\u2019s decision, fill information gaps and resolve disputes.<\/p>\n
The March order was the first time the state ordered any significant release of water from the diversions \u2013 which for more than a century have taken some 160 million gallons of water a day out of East Maui for agriculture and other uses in Central Maui \u2013 and it was viewed by the petitioners as a huge victory. But according to a motion filed on May 29 by their attorneys with Native Hawaiian Legal Corporation, the DLNR has failed to meet its obligations under the interim order.<\/p>\n
The motion asks the Land Board to enforce its order immediately by requiring the DLNR to, within a few months, issue a progress report, install flow and temperature gauges, implement water releases to keep temperatures within their clients\u2019 lo`i below 77 degrees (to avoid pythium rot), and come up with an implementation budget, among other things.<\/p>\n
In the motion, NHLC\u2019s Alan Murakami and Moses Haia argue that adequate water has not been released and that O`ahu-based field monitor Morris Atta, who replaced Maui\u2019s Daniel Ornellas as the monitor in early 2007, has been neither available nor responsive to their clients and has failed to make promised visits to Maui on a regular basis.<\/p>\n
\u201c[T]he interim order is currently nothing more than window dressing\u2026.[T]here has been no investigation or verification of the critical facts in this case, leaving the BLNR in the dark about the truth of the circumstances and Petitioners without any effective interim relief,\u201d they wrote.<\/p>\n
In their August 22 response to the motion, A&B and EMI\u2019s attorneys David Schulmeister and Elijah Yip argued that they, too, are frustrated because their application for a long-term lease has been \u201cstalled by the Petitioners\u2019 tactics in this proceeding.\u201d<\/p>\n
Among other things, they allege that although EMI stopped diverting water from Waiokamilo Stream after the Land Board\u2019s interim order, flows have not increased below its Ko`olau Ditch during dry weather, which suggests that the diversion does not effect the stream\u2019s lower reaches in dry weather.<\/p>\n
The Hawai`i Farm Bureau Federation, Maui County, and the nonprofit Maui Tomorrow, all of which are intervenors in the case, also filed responses to Na Moku\u2019s motion. Maui Tomorrow\u2019s attorney Isaac Hall noted that Na Moku\u2019s motion was also filed on behalf of his client and Maui Tomorrow supporters Neola Caveny and taro farmer Ernest Schupp, who are seeking to enforce their appurtenant and riparian rights to water from Puolua and Hanehoi streams.<\/p>\n
Opening the Gates<\/b><\/i><\/p>\n
Between the time NHLC filed its motion and A&B\u2019s response, tensions among the parties came to a head. In its interim order, the Land Board found that Na Moku had made no claim for more water from Wailuanui Stream (a finding that NHLC argues was erroneous). Even so, Na Moku and its representatives appealed to the DLNR\u2019s monitor to provide more water from that stream. While A&B\/EMI has offered to repair an elbow joint and intake pipe in a pond along Wailuanui that were damaged by a landslide several years ago, NHLC states in its filings that such repairs would not solve its clients\u2019 problems.<\/p>\n
Frustrated with the monitor\u2019s apparent unwillingness to act with regard to Wailuanui, members of Na Moku took matters into their own hands. According to an October 1 report to the Land Board by Atta, during a July 9 site visit he conducted with Ornellas and DLNR aquatic biologist Skippy Hau to verify the existence and impact of a purportedly abandoned watercourse called Filipino Ditch, they were unexpectedly joined by several Na Moku members \u201cand invitees\u201d who arrived equipped and outfitted to hike into dense forest.<\/p>\n
While inspecting a diversion and speaking to Murakami about rights-of-entry and A&B\/EMI\u2019s right to occupy and use state land, Atta wrote, \u201cseveral Na Moku members or their invitees began holding up their machetes and making confrontational statements such as \u2018Who going stop us if we open the diversion \u2013 You?\u2019 (while indicating the Water Monitor).\u201d He added that he then noticed that more water seemed to be flowing through the stream after a group of Na Moku members, their invitees, or both had opened the diversion. He also spotted a reporter\/camera man, apparently from Maui\u2019s public access television station AKAKU.<\/p>\n
Atta stated that he objected to the unauthorized acts and the media\u2019s presence and added that although Murakami said he disavowed any responsibility, Murakami nonetheless \u201cdid and said nothing to discourage either activity.\u201d<\/p>\n
As water rushed into the stream, the Na Moku group \u201cbegan to display increasingly hostile behavior\u201d and called for all of the stream diversions to be forced open, Atta wrote. Worried about rising tensions and the \u201cdisplays of aggression,\u201d Atta wrote that he became concerned for the safety of the DLNR team and told Murakami that \u201cdue to the unauthorized acts by his clients, the site visit was terminated immediately and that anyone remaining on the premises would be doing so as a trespasser.\u201d<\/p>\n
The Aftermath<\/b><\/i><\/p>\n
In A&B\/EMI\u2019s account of the events that followed, EMI personnel allegedly found on July 10 that sluice gates of three intakes had been opened and that boards in its tunnel for the Ko`olau Ditch had been lifted and propped up with rocks, causing water collected from streams further east to flow into Waiokamilo Stream. The \u201ctampering,\u201d according to Schulmeister and Yip, prevented HC&S from irrigating any of its fields with water from the Hamakua Ditch on July 10. They added that in a July 4 meeting with Na Moku member Kimo Day, Day \u201cstated that he and others would do what they had to do to get water, whether EMI agreed or not.\u201d Between July 15 and 29, EMI personnel closed sluice gates that had been opened nine times. The last time, on July 29, A&B\/EMI\u2019s attorneys state that EMI employees returning from the diversions were allegedly threatened by two Na Moku members who were on their way up.<\/p>\n
Murakami told Environment Hawai`i<\/i> that Atta\u2019s account, \u201cin one respect, is totally false and kind of an insult to the people that were there\u2026about the machete wielding stuff,\u201d and said that the AKAKU video provides a better picture of what happened.<\/p>\n
When asked whether the releases by Na Moku had resulted in more water for taro farming, Murakami said, \u201cOh yeah. It cleared out the muliwai. It was like night and day. It was black water before\u2026.Afterward, there were people picnicking and swimming again. Of course, there is much more water for taro.\u201d<\/p>\n
In their September 12 response to the statements regarding the events of July, Murakami and Haia argued that the Land Board should first direct its staff to follow the interim order and allow the controversy over Wailuanui water to be dealt with by the monitor. However, they wrote, the events underscored the \u201cextreme frustration and justified impatience amongst taro farmers facing the loss of two years worth of taro crops, only because no timely action from the stream monitor was forthcoming.\u201d<\/p>\n
At the September Water Commission hearing, Day told the crowd and the commissioners, \u201cIf any water is cut back, I will not have enough water to feed my lo`i.\u201d<\/p>\n
How or whether the July events will be dealt with at the Land Board\u2019s hearing this month remains to be seen since, according to Atta\u2019s report, the disputes over Wailuanui stream are being negotiated by the parties involved.<\/p>\n
In his report, Atta recounts all of the actions he and Ornellas have taken to implement the board\u2019s order, which include doing site visits, assisting in the release of water into Waiokamilo Stream and working with the U.S. Geological Survey to install flow and temperature gauges.<\/p>\n
— Teresa Dawson<\/p>\n
Volume 19, Number 5 — November 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
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