Resources / Depending on your point of view, the dispute over the diversion of streams in East Maui either took a nasty turn last July or a turn for the better. According to a report from a state employee, people associated with the nonprofit group Na Moku ‘Aupuni O Ko’olau Hui allegedly brandished machetes, intimidated state Department of Land and Natural Resources (DLNR) employees, and took it upon themselves to open East Maui Irrigation Co.’s (EMI) diversions, prompting a state DLNR monitor to cut short his site inspection of a diversion on Wailuanui Stream.

But during a September 25 Commission on Water Resource Management hearing on East Maui streams, when resident taro farmer Kimo Day claimed responsibility for releasing the water, he was met with cheers and applause from many members of the public.

This month, the state Board of Land and Natural Resources (BLNR) is expected to hear a report on the incidents as they relate to a new motion in the ongoing contested case hearing over a 2001 request of EMI and its parent company Alexander & Baldwin (A&B) for a long-term lease of state lands in the East Maui watersheds of Honomanu, Keanae, Nahiku, and Huelo, which provide the bulk of the water that EMI diverts via its extensive ditch system.

‘Window Dressing’

In March 2007, the Land Board issued an interim order intended to provide immediate relief to petitioners Na Moku ‘Aupuni O Ko’olau Hui, Inc., Beatrice Kekahuna, and Marjorie Wallett, who for years have been seeking more water to grow taro and to exercise their constitutionally protected kuleana, riparian and traditional and customary rights.

For Na Moku, that relief was to come in the form of a release by EMI of 6 million gallons of water a day into Waiokamilo Stream, which runs through Wailuanui valley. For Kekahuna and Wallett, a DLNR monitor was to be appointed to help determine adequate flows for their taro fields. The monitor was also charged with helping to implement the board’s decision, fill information gaps and resolve disputes.

The March order was the first time the state ordered any significant release of water from the diversions –which for more than a century have taken some 160 million gallons of water a day out of East Maui for agriculture and other uses in Central Maui–and it was viewed by the petitioners as a huge victory.

But according to a motion filed on May 29 by their attorneys with Native Hawaiian Legal Corporation (NHLC), the DLNR has failed to meet its obligations under the interim order.

The motion asks the Land Board to enforce its order immediately by requiring the DLNR to, within a few months, issue a progress report, install flow and temperature gauges, implement water releases to keep temperatures within their clients’ lo’i below 77 degrees (to avoid pythium rot), and come up with an implementation budget, among other things.

In the motion, NHLC’s Alan Murakami and Moses Haia argue that adequate water has not been released and that O’ahu-based field monitor Morris Atta, who replaced Maui’s Daniel Ornellas as the monitor in early 2007, has been neither available nor responsive to their clients and has failed to make promised visits to Maui on a regular basis.

“[T]he interim order is currently nothing more than window dressing…[T]here has been no investigation or verification of the critical facts in this case, leaving the BLNR in the dark about the truth of the circumstances and Petitioners without any effective interim relief,” they wrote.

In their August 22 response to the motion, A&B and EMI’s attorneys David Schulmeister and Elijah Yip argued that they, too, are frustrated because their application for a long-term lease has been “stalled by the Petitioners’ tactics in this proceeding.”

Among other things, they allege that although EMI stopped diverting water from Waiokamilo Stream after the Land Board’s interim order, flows have not increased below its Ko’olau Ditch during dry weather, which suggests that the diversion does not affect the stream’s lower reaches in dry weather.

Opening the gates

Between the time NHLC filed its motion and A&B’s response, tensions among the parties came to a head. In its interim order, the Land Board found that Na Moku had made no claim for more water from Wailuanui Stream (a finding that NHLC argues was erroneous). Even so, Na Moku and its representatives appealed to the DLNR’s monitor to provide more water from that stream. While A&B/EMI has offered to repair an elbow joint and intake pipe in a pond along Wailuanui that were damaged by a landslide several years ago, NHLC states in its filings that such repairs would not solve its clients’ problems.

Frustrated with the monitor’s apparent unwillingness to act with regard to Wailuanui, members of Na Moku took matters into their own hands. According to an October 1 report to the Land Board by Atta, during a July 9 site visit he conducted with Ornellas and DLNR aquatic biologist Skippy Hau to verify the existence and impact of a purportedly abandoned watercourse called Filipino Ditch, they were unexpectedly joined by several Na Moku members “and invitees” who arrived equipped and outfitted to hike into dense forest.

While inspecting a diversion and speaking to Murakami about rights-of-entry and A&B/EMI’s right to occupy and use state land, Atta wrote, “several Na Moku members or their invitees began holding up their machetes and making confrontational statements such as, ‘Who going stop us if we open the diversion–You?’ (while indicating the Water Monitor).” He added that he then noticed that more water seemed to be flowing through the stream after a group of Na Moku members, their invitees, or both had opened the diversion. He also spotted a reporter or cameraman, apparently from Maui’s public access television station Akaku.

Atta stated that he objected to the unauthorized acts and the media’s presence and added that although Murakami said he disavowed any responsibility, Murakami nonetheless “did and said nothing to discourage either activity.”

As water rushed into the stream, the Na Moku group “began to display increasingly hostile behavior” and called for all of the stream diversions to be forced open, Atta wrote. Worried about rising tensions and the “displays of aggression,” Atta wrote that he became concerned for the safety of the DLNR team and told Murakami that “due to the unauthorized acts by his clients, the site visit was terminated immediately and that anyone remaining on the premises would be doing so as a trespasser.”

The aftermath

In A&B/EMI’s account of the events that followed, EMI personnel allegedly found on July 10 that sluice gates of three intakes had been opened and that boards in its tunnel for the Ko’olau Ditch had been lifted and propped up with rocks, causing water collected from streams further east to flow into Waiokamilo Stream. The “tampering,” according to Schulmeister and Yip, prevented HC&S from irrigating any of its fields with water from the Hamakua Ditch on July 10. They added that in a July 4 meeting with Na Moku member Kimo Day, Day “stated that he and others would do what they had to do to get water, whether EMI agreed or not.” Between July 15 and 29, EMI personnel closed sluice gates that had been opened nine times. The last time, on July 29, A&B/EMI’s attorneys state that EMI employees returning from the diversions were allegedly threatened by two Na Moku members who were on their way up.

Murakami told Environment Hawai’i that Atta’s account, “in one respect, is totally false and kind of an insult to the people that were there…about the machete wielding stuff,” and said that the Akaku video provides a better picture of what happened.

In their Sept. 12 response to the statements regarding the events of July, Murakami and Haia argued that the Land Board should first direct its staff to follow the interim order and allow the controversy over Wailuanui water to be dealt with by the monitor. However, they wrote, the events underscored the “extreme frustration and justified impatience amongst taro farmers facing the loss of two years worth of taro crops, only because no timely action from the stream monitor was forthcoming.”

At the September Water Commission hearing, Day told the crowd and the commissioners, “If any water is cut back, I will not have enough water to feed my lo’i.”

How or whether the July events will be dealt with at the Land Board’s hearing this month remains to be seen.

This article originally appeared in the November 2008 issue of Environment Hawai’i, an independent newsletter (online at [environment-hawaii.or]g). Reprinted with permission.

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