In a lengthy case over water quality in central Maui, Hawaii’s Supreme Court has sided with indigenous Hawaiian plaintiffs, dealing a severe blow to the state’s water industry.
Judge Sabrina McKenna wrote the 134-page unanimous opinion finding that the Water Resources Management Commission failed to adequately restore flows from the Waihee, Waiehu, Wailuku and Waikapu rivers, collectively known as Na Wai Eha or the “Four Great Waters” of Central Maui, following the closure of the former Hawaiian Commercial & Sugar plantation in 2016.
“Na Wai Eha, especially the Wailuku River, are considered world-class rivers. Not only do they provide abundant water, but they also have an extensive natural ecosystem and provide more than 65% of the water for the entire island,” said Hokuao Pellegrino, president of Hui o Na Wai ʻEha, in a phone conversation on Monday.
In the Supreme Court’s decision last Thursday, the justices ruled that the commission had failed to protect the rights of Native Hawaiians like Pellegrino who rely on the water’s currents for a variety of purposes, as required by the state constitution. Those protected activities include kalo farming and gathering, fishing and recreational activities.
Following the closure of the HC&S plantation, the commission maintained existing flow rates in a 2021 decision rather than seizing “the historic opportunity” to restore water to Na Wai Eha’s four rivers, the ruling said. This decision “appears to be the result of passive failure to take the initiative to protect public trust in the face of the closure of HC&S.”
“We are grateful that the Supreme Court continues to understand that the health and well-being of our community is directly tied to the health and well-being of our ʻaina, wai and kai,” Pellegrino said in a press release. “This ruling makes clear once again that protecting our rivers and the rights of Kuleana kalo farmers is of the utmost importance. It also speaks to the resilience of the Na Wai ʻEha community and our commitment to protecting our water resources, increasing kalo production and revitalizing native ecosystems from mauka to makai.”
Earthjustice, an environmental law firm, brought the case on behalf of Hui o Na Wai ‘Eha and the Maui Tomorrow Foundation. The Office of Hawaiian Affairs joined the case along with the other plaintiffs.
“When we began this fight two decades ago, Na Wai ‘Eha was being exploited for private profit, but this recent Supreme Court ruling further shifts the course of history toward justice,” Earthjustice attorney Isaac Moriwake said in the press release.
The court’s decision came almost 20 years to the day after Maui community groups filed a lawsuit against the state on June 25, 2004, over its handling of water at Na Wai ‘Eha.
In this latest ruling, the court remanded the case to the Water Commission so that it can properly restore the water flows of the Na Wai ‘Eha Creek.
“This makes it very clear to them what they have to do,” Pellegrino said by phone.
Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.
Civil Beat’s coverage of environmental issues on Maui is supported by grants from the Center for Disaster Philanthropy and the Hawaii Wildfires Recovery Fund, the Knight Foundation and the Doris Duke Foundation.
Read the verdict here:
