Hawaii High Court Sides with Native Community Groups in Water Dispute 

Isaac Moriwake, the managing attorney of Earthjustice’s Mid-Pacific Office, represented the community groups in Nā Wai ‘Ehā Surface Water Management Areas.

The Hawaii Supreme Court this summer issued a landmark ruling upholding water rights and access for Native Hawaiian communities. 

The case concerned Na Wai ‘Ehā (“The Four Waters” in Hawaiian), a region in central Maui through which the Waihe‘e River, Waiehu Stream, Wailuku River, and Waikapū Stream flow. Conflict over the water flows in the area has been building for decades. This region and its waters hold historical and cultural importance to Native Hawaiians, who have long relied on the stream flows to grow their staple crop, kalo or taro, and support a host of other cultural and spiritual practices. These streams and communities, however, have suffered since the takeover of the area by sugar plantations beginning in the 19th century. 

Modern state law recognizes water resources as a public trust. The public trust doctrine — which derives from Hawaii’s constitution, comprehensive water code, and Native law and custom — establishes that the state must protect water resources, public uses, and Native rights whenever feasible. Yet plantation companies have sought to maintain their de facto control of water through large-scale diversions even after the end of the plantation era, a period from the mid-1800s through the late-1900s during which plantation conglomerates dominated the islands’ economy and society.

Under Hawaii’s Water Code, the state water commission must establish instream flow standards to protect the interests of the public and Native communities in flowing streams. The commission also administers a permit system for water use to regulate off-stream users, which in Nā Wai ‘Ehā now include entities like corporate farms, golf courses, and luxury subdivisions.

In 2004, Earthjustice took legal action before the commission on behalf of Maui community groups to stop the hoarding of stream flows by two companies, Wailuku Water Company, a former plantation converted to a water business, and Hawaiian Commercial & Sugar, the last sugar plantation on Maui. The proceeding led to a Hawaii Supreme Court victory in 2012 and a historic settlement in 2014 that restored flows in all four streams for the first time in 150 years. 

In 2016, the sugar plantation — which accounted for the lion’s share of stream diversions — finally closed. Yet, in this latest proceeding, which combined surface water permitting with a renewed petition to restore stream flows, the commission largely left the instream flow standards at the status quo levels reached by the settlement while the plantation was in full operation.

Multiple parties appealed the commission’s decision. These parties included private companies challenging restrictions on their water usage and community groups seeking to increase instream flows for ecological restoration and downstream uses by the public and Native Hawaiians. 

In June, the Hawaii Supreme Court issued a unanimous 134-page opinion comprehensively siding with the community groups and against the private companies in their respective appeals.

Overall, the ruling signals a thorough affirmation of the state’s constitutional public trust duty to prioritize the restoration of water resources and Native Hawaiians’ rights. The court’s opinion builds on its long line of precedent over decades (including the Waiahole Ditch case on O‘ahu in 2000 and the court’s previous ruling in the Na Wai ‘Ehā case in 2012) establishing an extensive framework of duties and standards under the public trust. 

The opinion, authored by Justice Sabrina McKenna, overturned the commission’s decision not to restore more flow to the streams after the closure of the sugar plantation. The court agreed with the community groups that the commission failed to meet its affirmative trust obligations. “Rather than proactively addressing the historic opportunity to restore stream flows,” the court observed, the commission’s decision “appears to be the result of a passive failure to take the initiative to protect the public trust in the light of [the plantation’s] closure.”

The court also ruled that the commission did not meet its independent constitutional duty to protect Native Hawaiian rights dependent on flowing streams, such as farming kalo, fishing, and gathering stream and nearshore resources like gobies, mollusks, crustaceans, and seaweed. Under established precedent, the state must, at a minimum, render specific findings and conclusions on the impacts to, and feasible protection of, Native rights affected by their decisions. The commission did not provide this required analysis in its status quo approach to maintaining stream flows.

“While thorough in many respects,” the court concluded, “the Commission’s final decision still does not evince the ‘level of openness, diligence, and foresight’ that is required where vital public trust resources like water are at stake.”

At the same time, the court rejected the appeals of the private large water users. It upheld the commission’s decision to restrict the amount of stream water allocated for two golf courses, emphasizing that the agency had not only the authority but the duty to scrutinize water allocations. Similarly, the court rejected arguments that the company that bought the shuttered plantation’s land was entitled to more water than the standard amounts that the commission allocated to enable the transition from sugarcane to less water-intensive agriculture. 

The court also rejected various challenges by Wailuku Water Company against the commission’s regulation of its operations. The court ruled, however, that the commission erred in delegating to the water company the authority to prioritize allocations between users during water shortages. The water company had appealed that ruling, and the community groups agreed the commission should not have ceded that responsibility to the private diverter.

In sum, the court’s decision is a comprehensive and uniform validation of the state’s public trust kuleana (Hawaiian for “right” and “responsibility”) to restore natural and cultural resources. It lays a strong foundation for other water cases to come, such as the well-publicized controversies in Maui Komohana (West Maui) brought to light by the Lahaina wildfire disaster. And it continues a decades-long tradition of the Hawaii Supreme Court leading at the forefront of the nation and the world in establishing the principles of the public trust for the protection of water and other resources.

Suggested Citation: Isaac Moriwake, Hawaii High Court Sides with Native Community Groups in Water Dispute, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Oct. 9, 2024), https://statecourtreport.org/our-work/analysis-opinion/hawaii-high-court-sides-native-community-groups-water-dispute