HR275

WHEREAS, in pre-Western contact Hawai‘i, the high chiefs, known as ali‘i ‘ai ahupua‘a, or ali‘i ‘ai moku, held in trust for the benefit of the people all of the land and natural resources and they, or their land agents, known as konohiki, oversaw the use of lands and resources by its native tenants; and

WHEREAS, regime changes since ancient times have resulted in state government agencies assuming the oversight and management functions for the 1,800,000 acres of lands "ceded" to the United States under a trust in 1898; and

WHEREAS, chapter 171, Hawaii Revised Statutes, authorizes the Board of Land and Natural Resources to serve as the primary trustee to prudently manage and dispose of these resources; and

WHEREAS, chapter 174C, Hawaii Revised Statutes, designates the Commission on Water Resources Management as the agency responsible for protecting and managing all water resources, including all water streams on ceded lands; and

WHEREAS, taro farming, which utilizes natural water resources available from valley floors and slopes on which taro is cultivated, was the primary form of agriculture supporting Hawaiians in pre-Western contact Hawaii; and

WHEREAS, the adjacent ahupua‘a of Ke‘anae and Wailua-nui, located on the northeast flank of Haleakala on the island of Maui, supported intensive and extensive wetland taro cultivation that was irrigated by water streams in these respective ahupua‘a since ancient times, and the streams have continued unabated until the present day; and

WHEREAS, western contact brought about significant changes in both the traditional Hawaiian land tenure system and Hawai‘i's social structure; and,

WHEREAS, Hawaii's traditional land tenure system seemed ill suited for the western mercantile economy emerging as a result of these changes; and

WHEREAS, on December 10, 1845, Kamehameha III established and outlined the responsibilities of the Board of Commissioners to Quiet Land Titles, otherwise known as the Land Commission, to oversee the conversion of the ancient land tenure system to a property system of private ownership; and

WHEREAS, on August 6, 1850, the Kingdom enacted the Kuleana Act authorizing the Land Commission to grant fee simple title to native tenants, or hoa‘āina, together with rights to access land and water necessary for the cultivation of taro and other traditional and customary pursuits; and

WHEREAS, although approximately 4,200 of the 13,514 applications for kuleana under the Māhele were not approved, the Land Commission ultimately awarded 28,658 acres to native tenants, less than one per cent of the lands available in the islands; and

WHEREAS, in contrast, by 1864, two hundred thirteen non-native people in Hawaii had purchased over 320,000 acres of government land, subject to the rights of native tenants; and

WHEREAS, in 1876, the predecessors to Alexander and Baldwin commenced construction of a system of ditches and tunnels that now divert, on average, 160,000,000 gallons of water per day from East Maui streams to irrigate sugarcane fields owned by Hawaiian Commercial and Sugar Company in Central Maui; and

WHEREAS, in 1902, the Commissioner of Public Lands issued lease number 538 to H. P. Baldwin, leasing lands in East Maui until 1933 for the development, storage, transportation, or other utilization of the water thereon, thereby allowing construction of a ditch system; and

WHEREAS, this royal lease was issued subject to the condition that there would be no interference with the vested interests in water of land owners in Ke‘anae, Wailua-nui, or other parts of East Maui; and

WHEREAS, in 1904, Hawaiian Commercial and Sugar Company, which was Alexander and Baldwin's Maui sugar plantation, while continuing its out-of-watershed diversion of stream flow from East Maui streams, successfully sued to enjoin Wailuku Sugar Company’s out-of-watershed stream flow diversions from the Wailuku Stream based upon Hawaiian Commercial and Sugar Company's claim of appurtenant rights connected with its purchase of interests in nearby kuleana; and

WHEREAS, the Board of Land and Natural Resources presently leases over 33,000 acres of ceded lands to Alexander and Baldwin's East Maui Irrigation Company, from which it presently diverts an average of 60,000,000,000 gallons of water per year from East Maui streams at one-fifth of a cent per thousand gallons; and

WHEREAS, the First Circuit Court has ruled that any diversion of water cannot injure others with appurtenant, riparian, or traditional and customary native Hawaiian rights to the same water; and

WHEREAS, members of Na Moku Aupuni O Ko‘olau Hui, Beatrice Kekahuna, Marjorie Wallett, and other native Hawaiian kuleana land owners in East Maui, have appurtenant, riparian and traditional and customary native Hawaiian rights that are violated by Alexander and Baldwin's East Maui Irrigation Company's stream diversions; and

WHEREAS, this deprivation of water rights has resulted in a chronic injury to the residents of Wailua-nui and Ke‘anae valleys and has directly impacted their capacity to continue traditional and customary practices, contrary to sound public policy and constitutional protections; and

WHEREAS, the Board of Land and Natural Resources has, since at least May of 2001, failed to act to protect the rights of these residents of East Maui; and

WHEREAS, for the past six years, the Commission on Water Resource Management has failed to act on petitions to amend the interim in-stream flow standards of twenty-seven East Maui streams filed on behalf of these East Maui residents; and

WHEREAS, for the past six months, the Board of Land and Natural Resources has failed to act on a request by these East Maui residents for timely and prompt interim relief; and

WHEREAS, the State's failure to act results in ongoing harm to the superior water rights of these East Maui residents; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-fourth Legislature of the State of Hawaii, Regular Session of 2007, that the Board of Land and Natural Resources and the Commission on Water Resource Management are each requested to submit a report to the Legislature not later than twenty days prior to the convening of the Regular Session of 2008, explaining why each agency has not ordered Alexander and Baldwin's East Maui Irrigation Company to:

(1) Immediately and, at a minimum, release a combined total of 5,000,000 gallons of water -- which is calculated at fifty-one acres of taro land requiring 100,000 gallons of water per acre per day -- that is diverted from Wailua-nui and Waiokamilo streams and their tributaries, and from the watershed mauka of the ili of Kupau, so that it is allowed to flow past its ditch system and into Wailua-nui Valley for taro irrigation;

(2) Immediately release into Honopou Stream, below its Haiku diversion, additional stream flow so that, at the point of the Kekahuna and Wallett properties' diversion from Honopou Stream, if necessary, no less than 600,000 gallons per day may flow into their auwai to meet the irrigation water needs of the respective residents and their families without requiring them to divert more than half of Honopou Stream flow at their diversion point; and

(3) Immediately and affirmatively demonstrate, with clear and convincing evidence, their actual water needs and, within the constraints of available knowledge, the propriety of draining water from public streams to satisfy those needs, such as the practicability of using alternative sources; and

BE IT FURTHER RESOLVED that the Board of Land and Natural Resources is requested to explain in its report why the Board does not have a regular system and protocol in place that would promptly require the timely release of water into the disputed streams that support the valleys of Ke‘anae and Wailua-nui unless, and until, Alexander and Baldwin's East Maui Irrigation Company thoroughly demonstrates that the above taro farmers and stream gatherers no longer require the stream flow released from the Alexander and Baldwin's East Maui Irrigation Company ditch system; and

BE IT FURTHER RESOLVED that as part of its report, the Board of Land and Natural Resources is requested to determine whether the staff of the Department of Land and Natural Resources is capable of monitoring the effect of any water diversions, now and in the future, allowed by the Board for any violations of the common law, the constitution, or statutory rights specified by the article X1, section 7 and article XII, section 7 of the Constitution of the State of Hawaii; section 101 of the Hawaiian Homes Commission Act; and sections 171-58 and 174C-101, Hawaii Revised Statutes, and thereafter, provide a simple, clear, and efficient process for investigating reported violations, and conducting timely and frequent reviews of any disputes that arise at regularly scheduled meetings of the Board of Land and Natural Resources so these water rights issues are promptly resolved; and

BE IT FURTHER RESOLVED that as part of its report, the Commission on Water Resources Management is requested to determine the level of budgeting and staffing required to promptly respond to complaints of interference with appurtenant water rights and in-stream flows necessary to support the continued ability of Hawaiians to pursue their traditional and customary practices dependent on adequate stream flow, and, thereafter, provide a simple, clear, and efficient process for investigating reported violations of these rights, and conducting timely and frequent reviews of any disputes so these water rights issues are promptly resolved; and

BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the Chairperson of the Board of Land and Natural Resources and the Chairperson of the Commission on Water Resources Management.

	OFFERED BY:	_____________________________

Report Title:

BLNR; DLNR; Water Resources

HOUSE OF REPRESENTATIVES	H.R. NO.	275
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII