A legal challenge by Maui farmers over water access rights was dismissed by a state board Friday.
In Dec. 2024, the Board of Land and Natural Resources granted a permit to companies Alexander and Baldwin, Inc. and East Maui Irrigation Co. allowing them to divert a certain amount of water from the East Maui Watershed to supply water to Maui County facilities, municipal users and farmers.
The one-year revocable permit would allow the companies to extract up to about 34 million gallons of water daily to irrigate more than 10,000 acres of agricultural land.
This decision prompted Native Hawaiian advocacy group Nā Moku Aupuni O Ko‘olau Hui to file for a contested case, arguing that the diversion of water from the watershed would negatively impact Native Hawaiian farmers who rely upon that water.
“Nā Moku’s members are kalo farmers, fishers and gatherers who … have seen streams run dry for long periods as a result of [stream] diversions,” read the contested case.
“There are two big issues,” said Ashley Obrey, an attorney representing Nā Moku, at a BLNR hearing Friday, July 11. “Water, obviously, it’s the lifeblood of Nā Moku’s members, their traditional and customary practices, their subsistence lifestyle … And we’re talking about due process.”
Obrey argued that the members of Nā Moku are sufficiently impacted by decisions involving the watershed to have the right to air their grievances through the contested case hearing process, something that has been repeatedly been denied them.
This was the latest challenge in a dispute that has gone on for more than 40 years. In 1984, a group of East Maui farmers similarly petitioned for a contested case against four water diversion permits that the state had previously granted to different sugarcane producers.
While that contested case was ultimately dismissed, Nā Moku requested another contested case in 2001, when the BLNR was once again considering auctioning a long-term water diversion license for the East Maui watershed. This contested case was eventually discontinued.
In 2018, yet another contested case hearing led to the state Commission on Water Resource Management to set new standards for the maintenance of the watershed. In particular, those standards determined that a nearly 23% water loss rate should be sufficient to maintain current agricultural uses of the watershed.
In light of these repeated dismissals, the Department of Land and Natural Resources recommended that the board once again dismiss Nā Moku’s latest petition, partly because, the DLNR argued, the group simply cannot prove that its members are actually impacted by a new irrigation company taking over water diversion rights.
In reference to Nā Moku’s claims of streams running dry, the DLNR postulated that “the dry streams could be the result of other factors, such as drought, with no causal relation to the diversions.”
Furthermore, the DLNR determined that the board would not be able to remedy Nā Moku’s complaints even if the contested case succeeded: only the Commission on Water Resource Management can address stream water use, while the BLNR can only consider requests for permits.
Obrey disputed this, arguing that the BLNR’s responsibility for land management would be served by taking actions to limit the extraction of water, so as to restore and enrich the surrounding ecosystems.
David Kimo Frankel, another attorney representing Nā Moku, told the BLNR in a letter that the DLNR has “tangled themselves up like a pretzel in coming up with a rationale to deny” the hearing, adding that the board has repeatedly accommodated groups seeking to divert water from the watershed, but claims powerlessness when faced with a contested case petition.
Several Maui residents also submitted letters urging the BLNR to grant the Nā Moku petition.
O‘ahu BLNR member Aimee Barnes agreed, saying the board has a responsibility to ensure that the diversion of public waters meets the public trust, and believed that denying the petition would not be consistent with that responsibility.
But board ultimately voted to uphold DLNR’s recommendation — that is, to reject the petition — with Board Chair Dawn Chang saying that Nā Moku has been afforded ample opportunities to present their side, and that denying a contested case does not constitute a breach of due process.
Two BLNR members — Barnes and Kaua‘i member Karen Ono — cast the only dissenting votes.
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