The road to justice, like the Hāna Highway, is long and winding. Our lawsuit is just one turn among countless twists and turns in this lengthy fight for water for all. But before proceeding further, we need to look back at what others have achieved. 

For more than a century, Alexander & Baldwin and East Maui Irrigation have dewatered dozens of streams and countless tributaries in East Maui.

In 2001, Nā Moku Aupuni o Ko‘olau Hui, and their attorneys at the Native Hawaiian Legal Corporation (NHLC), officially challenged the renewal of Alexander & Baldwin and East Maui Irrigation’s (A&B/EMI) revocable permits to take more than a hundred million gallons of water daily from dozens of East Maui streams. The hui also filed petitions to protect the flows of more than two dozen streams and tributaries. Thanks to the hard work and perseverance of Nā Moku, NHLC, the Maui Tomorrow Foundation and its attorney Isaac Hall, in 2018, the Water Commission ordered the “full restoration” of nine streams that had been de-watered for a century. 

On top of the restoration of those nine streams, the Water Commission also ordered that five additional streams receive 64% of their baseflow—the minimum amount of water that native species need to grow and reproduce—and eight streams required to have a trickle of water— 20% of their baseflow—just enough to ensure the streams’ connectivity (which is not much, but better than nothing). The Commission’s decision was historic, but history does not stand still.

The era of sugar production in Hawaiʻi came to an end in 2016, when the last HC&S sugar mill closed on Maui. The Central Maui lands that were once used for sugarcane sat barren and there was little use for the water still being diverted from East Maui streams. In late 2018, Mahi Pono, LLC, a farming venture between a California-based agricultural group and one of Canada’s largest pension investment managers, purchased the Central Maui lands from A&B. This purchase also split ownership of East Maui Irrigation—the company that manages the East Maui diversions and waterflow—50/50 between A&B and Mahi Pono.

Although the Water Commission restored water to some streams, it did not consider 13 other east Maui streams. The Water Commission’s sister agency, the Board of Land and Natural Resources, authorized A&B/EMI to take all the water from these 13 streams, leaving them bone dry 80% of the time. BLNR has allowed A&B/EMI to take all of the water from these 13 streams, knowing the harm the diversions inflict on the stream ecosystems and ignoring the Water Commission’s standard set for the other East Maui streams. BLNR has allowed A&B/EMI to divert water from these streams for years, rarely requiring the diverters to cite how much water they currently use and what it is used for—basic information needed for sound decision making. 

The bottom line: the Department of Land and Natural Resources and its board have failed to protect East Maui streams from exploitation for profit—and that is why we are suing.

The Hawaiʻi Environmental Court heard our case against the Board of Land and Natural Resources in August. The trial was the first virtual trial any of us have experienced—the judge, the attorneys, the witnesses. Only the judge, a clerk and a court reporter were in the courtroom, and everyone else appeared remotely via video conference call.

East Maui’s waters and public lands have been exploited and mismanaged for far too long. Hundreds of East Maui residents and farmers, their families and friends, and countless other nature lovers have fought for the return of water to the streams for decades. Piece by piece, we slowly chip away at the entrenched exploitation of the public’s streams. We’ve said it before and we’ll say it again—there is enough water for everyone, if only the resources are managed correctly.

First, A&B/EMI are no longer dumping the water from several streams into Ho‘olawa Stream, one of the 13 streams that can be completely dewatered. The torrent of water caused extreme erosion to the stream banks and made the stream unsafe for swimming. It was also an unnecessary and unreasonable diversion of water from the other streams. At first, this seems like a non-issue. If the Sierra Club is advocating for more water in the streams, how can we at the same time protest too much water? But we quickly learned that the excess of water was dangerous to downstream users. The Sierra Club went on to raise the issue—although it was not a major part of our complaint—and the dumping stopped last year. As EMI’s Mark Vaught testified under oath at our trial—yes, “excess water was coming down Hoʻolawa stream.” And he put a stop to it “because of the Sierra Club’s complaint and because it was the right thing to do."

Second, A&B/EMI have actually started to clean up the debris and abandoned diversion material. After folks testified about trash on public lands along the East Maui streams in 2017, the Board of Land and Natural Resources added a condition that A&B/EMI needed to start cleaning up its mess. In November 2018, A&B told the Board of Land and Natural Resources that other than one tractor, “there was little other debris.” At that same meeting, long-time Sierra Club member Lucienne de Naie and Chapter Director Marti Townsend testified as to the debris and brought photographs. But the Board and its department did nothing. In January 2019, the Sierra Club sued. By October 2019, A&B/EMI reported cleaning up several hundred feet of old pipe. And at the trial, A&B showed photographs of vast mounds of debris that had littered our public lands, but was now being properly disposed of. We think the pressure we applied worked to improve protections for our public trust resources. 

Third, we are finally starting to get more information as to how the water taken from East Maui’s streams is being used. During our trial, we asked questions of A&B and Mahi Pono that the Board of Land and Natural Resources failed to ask—questions that are critical for balanced decision making. We do not have a complete picture yet, but the picture is starting to fill in and we find it disturbing. 

Most worrisome is the extreme waste of water. More than 22.7% of the water from East Maui streams is being lost due to seepage in the system and evaporation. A&B/EMI have done a poor job of maintaining their systems and because BLNR has never really pressed A&B/EMI to report on how the water is being used, the diverters have had no reason to. A&B/EMI have even gone as far to say that if they fixed the seepage in the system, there wouldn’t be any water to replenish the aquifer below. 

The Players

The Department of Land and Natural Resources

The Department of Land and Natural Resources, and its board, have the constitutional obligation of protecting Hawaiʻi’s natural resources. However, they also have a long record of not upholding their duties. In East Maui, the Board of Land and Natural Resources has issued short term, “holdover” revocable permits for water diversions—for decades, allowing diverters to avoid the rigorous review needed for a long term lease. 

Alexander & Baldwin

Formed in 1870, A&B dug ditches through the East Maui watershed to transport water from the wet side to the dry side of Maui where they operated a sugar plantation on 36,000 acres in Central Maui. A&B formed EMI to operate the East Maui ditches. A&B has been evolving away from sugar since the 1980’s. In December 2016 it closed the last of its sugar operations, laying off 660 workers during the winter holidays. In 2017, A&B transitioned to a Real Estate Investment Trust. 

East Maui Irrigation

The company that operates the East Maui ditch system. Since the Central Maui land sale in December 2018, this company is now owned half-half by Alexander & Baldwin and Mahi Pono. 

Mahi Pono

The new farming company formed to purchase 41,000 acres of land that A&B held in Central Maui for $262 million in 2018. Mahi Pono withdrew from this lawsuit a few months after intervening to join the case.

Side note: $62 million of that sale price is tied to continuing access to water from East Maui streams (a public trust resource that A&B does not own, so technically should not be able to sell).

The Defendants - Department of Land and Natural Resources

The DLNR’s position in this case comes down to a few themes:

1. “That’s not my job”  

2. “One man’s trash is another’s treasure” (and that’s direct quote 😮)

3. “I don’t know,” “I am not sure,” “I don’t recall”

DLNR focused attention on the Commission on Water Resource Management (CWRM) which has the responsibility to set in-stream flow standards. DLNR argues that CWRM’s decision justifies draining 13 streams dry 80% of the time. CWRM, however, has never considered the biological, cultural or recreational value of these 13 streams. In 1998, CWRM set a blanket status quo standard that authorized all the existing diversions on these 13 streams to continue.

“I don’t recall.” More than two dozen times, the Department of Land and Natural Resources's Ian Hirokawa could not recall details of BLNR’s approval of the continuation of the revocable permits. Similarly, Glenn Higashi did not know the answers to questions that he handled easily in his depositions. Fortunately, we have documents and their deposition testimony to fill in the gaps. And they did answer some important questions.

Ian Hirokawa confirmed that:

• BLNR imposed no condition protecting 13 streams, which have no meaningful instream flow standard

• In 2019, BLNR authorized a 66% increase in the amount of water diverted

• BLNR has no idea which streams the increase will come from

• BLNR set no deadline for the modification of harmful diversion structures

• No one provided information as to how precisely all the water taken from East Maui’s streams would be used

• In 2019, DLNR representatives met privately with A&B, but when the Sierra Club requested a similar meeting, A&B’s attorney was invited to attend.

Glenn Higashi confirmed that:

• The Division of Aquatic Resources has relied on the work of Sierra Club’s expert witness in this case, Mike Kido (more on our expert, Mr. Kido, in part 3)

• Stream diversions harm native aquatic species

• Streams need 64% of their base flow for native species to grow and reproduce

• The typical diversion removes all the base flow 70-80% of the time

• Increasing the amount of water diverted will have an adverse impact

• Modification of diversion structures would help native aquatic species

Unfortunately, Higashi contradicted himself several times and recanted some of his prior testimony.

In response to our documentation of remnant concrete, rusty rebar, and disconnected pipes left in and along the stream, BLNR’s attorney argued that this dangerous debris could still possibly be useful, and so was not in fact trash. 

The Defendants - East Maui Irrigation and Alexander & Baldwin

The premise of A&B’s argument is similar to DLNR’s, that this case is an attempt to amend the Water Commission’s earlier decision on 27 other streams. A&B played up the hardship it has suffered trying to run a successful sugar plantation. 

Meredith Ching testified that:

• After Judge Nishimura’s ruling in 2015 invalidating A&B’s temporary permits to divert stream water, A&B continued to divert and use water from East Maui. 

• A&B did not disclose to BLNR which streams the increase in diversions will come from.

• In April 2016, A&B announced that it would be fully and permanently restoring seven streams, but in fact, one of those streams had never been diverted and A&B had ceased diversions on another one years earlier.

• A&B claimed in 2019 that water from East Maui streams was being used to irrigate 6,500 acres of pasture. Mahi Pono’s witness testified later in the trial that in fact Mahi Pono did not irrigate pasture in 2019. 

• The land that A&B sold to Mahi Pono is worth $62 million more when at least 30 million gallons of water per day of East Maui water are provided to it. 

• More than 22.7% of water from East Maui streams is being lost, and millions of gallons of water are unaccounted for.

• A&B’s consultant for the Environmental Impact Statement on the long-term lease concluded that 85% of habitat is destroyed on the 13 streams if they are fully diverted – as the BLNR authorized.

A&B also argued that it has not benefited from the lengthy delay in getting a lease. 

A different picture emerged on cross examination. When pressed by our attorney, David Kimo Frankel, Meredith Ching conceded that through 2011, A&B diverted between 165 and 126 million gallons of water from East Maui everyday. Water that it used on its sugar plantation (presumably) for profit. And then in 2018, A&B sold its land holdings in Central Maui to Mahi Pono for $262 million. In that land sale agreement, $62 million was to be repaid back to Mahi Pono if a minimum of 30 million gallons of water was not delivered to East Maui everyday for eight years. 

On direct questioning from David Schulmeister, Meredith Ching blamed the delay in the EIS on the East Maui taro farmers and other residents seeking justice. But on cross examination by David Kimo Frankel it was revealed that in 2014 the taro farmers represented by Nā Moku Aupuni O Koʻolau Hui actually withdrew their objection to A&B completing the EIS for long-term lease. So the delay in completing the EIS was not due to litigation, as she had claimed.

The Intervenors - Maui County

A&B has long used the County as a human shield to justify its diversions. But of the 23.99 - 28 million gallons of water that A&B has been diverting for the past several years, the County has never required more than 3.76 million gallons of water. So far this year, the County’s needs have averaged less than 3 million gallons per day. The Sierra Club has not objected to the County’s continued use of this water to meet existing needs. 

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The entrenched bureaucracy and lack of accountability regarding East Maui’s streams runs deep. This is something we’ve known all along, yet it is still gut wrenching to hear agencies and corporations’ matter-of-fact accounts in court—with little regard to the decades of harm they have caused.

At the end of the day, the diverted waters and the land upon which they are diverted from, belong to the people. The government has a constitutional responsibility to protect these resources from the exact scenario that has played out for decades. And that is why we committed to making sure they do so.

The Sierra Club brought this case because the Board of Land and Natural Resources has routinely ignored the testimony we have provided every year. Despite our repeated and varied efforts to motivate the Board of Land and Natural Resources to take a hard look at the conditions of the East Maui streams, the Board members and staff refuse to fulfill their responsibility to the streams. The Board of Land and Natural Resources’s job is to protect our natural resources and ensure that whatever water is taken from our streams is actually put to good use. The record here shows that the Board has never had the information it needed to make an informed decision. 

Several Sierra Club members testified to the impact that diversions have on their experience of East Maui streams.

The Heroes

Miranda Camp

Ms. Camp is a current Maui Group Executive Committee member, former co-chair, and dedicated advocate to protect the water. She has testified at many public hearings related to East Maui over the years. At this trial she said the streams “feed her soul.”

“A lush environment along the streams, seeing native plants and all the water, hearing the water flow, feeling the water. It's just—it's something I have to do.” 

Rob Weltman

Mr. Weltman is the Maui Group Chairperson and a software engineer. He is an avid hiker and outdoorsman, having led many hikes along East Maui streams. And he is deeply committed to the restoration of East Maui streams. He said at the trial that East Maui streams are

“very, very special in terms of nature. In my mind, they represent the cycle of life, of water falling, flowing, feeding—feeding farms, feeding people, feeding the plants and animals that live along the streams.”

Lucienne de Naie

Ms. de Naie lives in East Maui, along a stream that has historically been diverted but is on the list to be restored. She testified that the East Maui streams for her, like many others, provide a “spiritually fulfilling experience,” not unlike the experience of going to church.

Megan Loomis Powers

Ms. Powers is a long-time Sierra Club member and life-long resident of East Maui. She gave moving testimony about her childhood growing up along these streams, watching them change over time, and the disastrous effects that the mismanagement of stream diversions can have on the residents and ecosystem of this area. Ms. Powers described the immense beauty and health of the streams when they were allowed to flow—the mosses and ferns that would blossom, the ʻoʻopu that would return to the pools, the people that would come together to swim in massive pools of fresh water.

“You know, I am made of that,” she explained to the court. “The bones and the flesh in my body are made from the food that we grew and the water that we drank from that area. So I really have a visceral connection to how water is life, in a serious way.”

She compared those experiences to the 85% of time when EMI took all of the water. She watched the slow decay of the streams, as the waterfalls stopped and the springs eventually dried up. Ms. Powers recounted the heart wrenching, futile experience of trying to rescue dozens of little fish and other stream wildlife as they gasped for water in stagnant pools left to dry up.

“It's like every cell in my body knows what it is to have water that sustains life and to not have it. And I'm not only concerned about the streams that I live on, but all the streams.”

Mike Kido, Our Expert

Mr. Kido is an expert in stream biology and ecology. In February, just as COVID-19 began raising concerns here, Mr. Kido dedicated 3 days along the streams at issue in East Maui so that he could draft an expert written report on the state of these streams. He also spent a full day being deposed by the other parties. He agreed to help our case, pro bono, now that he has retired to Washington.

We learned of Mike’s work from long-time stream advocate, Marjorie Ziegler of the Conservation Council for Hawaiʻi. It is heartbreaking that she—and many longtime residents of East Maui—did not get to see the streams fully restored before she passed away. But her work lives on today through all of us. 

Mr. Kido testified as to the biological integrity of streams and how diversions harm the native aquatic life, in particular ‘o‘opu and ‘ōpae. He explained the life cycle of the amphimodrous species (those are critters that migrate between freshwater and ocean environments). Prior to his testimony, the court granted a DLNR motion to limit some of the issues that Mr. Kido could talk about, but the limitation was not significant. A&B did attempt to discredit him, but Mr. Kido carefully and meticulously explained that A&B's assumptions were incorrect. Marj would have been proud. 

BLNR failed to hold A&B/EMI accountable for its water usage.

As the landlord overseeing the use of public lands rented by private companies for profit, BLNR has a legal obligation to ensure the public’s resources are used properly—not harmed and not wasted. Yet, the evidence shows that more than a million gallons of water a day are “lost” to evaporation and seepage (that’s the word for water leaking after it is shuttled out of the watershed). A surprisingly small amount of East Maui water is used for the actual growing of food in Central Maui—less than 4 million gallons of water on average per day this year.

BLNR failed to address the harm caused by diversion structures on public land.

The concrete, rebar, and metal grates installed on streams throughout East Maui are an ongoing harm to the streams and the people who rely on them. Even if the diversion has been “closed” and water flows down the stream, the abandoned diversion infrastructure captures stream life, hosts mosquitos, and poses a danger to people in the area, not to mention an awful eyesore. As landlord, the BLNR is the agency responsible for ensuring that A&B/EMI, as renters of state land, return the property in satisfactory condition. That is not happening. 

BLNR failed to protect these 13 streams that were not covered by the Water Commission’s 2018 decision on 27 other streams in East Maui. 

The defendants in this case make a lot of the Water Commission’s decision to restore the taro feeding streams of East Maui. While this decision was progress, it is completely silent on the fate of the 13 streams not included in the original petition failed by Nā Moku Aupuni O Koʻolau Hui in 2001. 

As a result, EMI and A&B can drain these 13 streams dry. The BLNR took no action over the last several years to ensure that these streams were not harmed by taking excessive amounts of water from any one stream. This is unacceptable. 

BLNR failed to make sure that A&B cleaned up all its trash that litters public land. 

The record shows that the East Maui watershed is littered with remnants of diversion materials. Rusting metal, broken concrete, PVC pipes and rubber tubes, industrial debris should not be allowed to decay in the public’s forest for lack of follow through. As the renter of these lands, A&B and EMI have an obligation to pick up its rubbish. BLNR, as landlord, has the responsibility to ensure that A&B fulfills this obligation. 

One final note before closing arguments. Much is made of the need to support local agriculture in Central Maui. The Sierra Club is very clear that the Central Maui agricultural lands should be used to grow food. Competent stream management and successful local agriculture are not at odds with each other—it is possible to have both. EMI could better manage the diversions so that they did not lose so much water to seepage, and Mahi Pono could grow crops that do not require an excessive amount of water and then we would have a healthy watershed in East Maui and local food growing in Central Maui. It is BLNR’s job to ensure that EMI, A&B, and Mahi Pono strike this proper balance. 

And we should not ever forget about the generations of farmers that are living and growing food in East Maui. The water needs to be fairly shared amongst all of us, and that is why it is so crucial that BLNR do its job, like it is supposed to, for East Maui and for all streams in Hawaiʻi.