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A public trust – for private benefit?

The Land Board’s acquiescence to corporate control of Hawaiʻi's resources represents the state’s continuing failure to uphold its fiduciary duties.

Will Caron

Photo and video by Grant Okazaki

The Board of Land and Natural Resources (BLNR), on December 9, 2016, voted to allow Alexander & Baldwin, Inc. (A&B) and its subsidiary East Maui Irrigation Company, Ltd. (EMI) the ability to continue diverting stream flow from approximately 120 East Maui streams to its land holdings in Upcountry and Central Maui. The board voted 5–2 to grant A&B and EMI the four permits the companies needed despite six hours worth of testimony from more than 40 individuals and organizations urging the board to deny the permits or, at the very least, postpone judgement until a proper hearing could be conducted on Maui in the community that will be affected by the decision. Board members Sam Ohu Gon III and Keoni Downey were the two ‘no’ votes.

The board’s decision to approve the renewal of the four revocable permits came with stipulations that at least are a step in the right direction. These stipulations include capping the amount of water A&B will be allowed to extract from the East Maui ecosystem at 80 million gallons per day (down from the previous 160 million gallons per day that the company has been taking up to this point), enforcing the July 2016 mandate that A&B fully restore stream flow in seven East Maui streams vital for taro farming, as well as adding Honomanu Stream to the list of the streams to be restored, and removing all structures adversely affecting the health of native stream species in the ecosystem.

“While today’s ruling does not in any way adequately address the injustices done to the people of East Maui, it signifies that A&B will no longer get everything it wants with no questions asked,” said Adriane Raff Corwin, Sierra Club Maui Coordinator, after the decision. “With that said, this ruling does provide the community with new tools to protect some of the streams, and The Sierra Club of Hawaiʻi will be watching closely to ensure they are fully implemented.”

While the BLNR members may have felt that, in adding these stipulations, they were striking a balance between the interests of the East Maui communities and the businesses that profit from the stream diversion, the ruling still falls far short of honoring the Hawaiʻi State Constitution’s “public trust doctrine” (contained within Article XI) and, therefore, signifies a failure on the part of the board to fulfill its fiduciary duty to the public.

Article XI (“Conservation, Control and Development of Resources”) states that:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaiʻi’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.

All public natural resources are held in trust by the State for the benefit of the people.

In granting A&B permits to divert water from East Maui streams—water that could otherwise be used by kalo farmers to feed their communities; water that, when diverted from its natural course, cannot maintain and regulate the precious ecosystem which endemic, endangered species rely on; water that sustains and empowers the communities that rely on it, connects Kanaka Maoli to their culture and shapes their identity—the BLNR has perpetuated a trend of state agencies and elected officials damaging that trust by clearly putting the interests of corporations before the interests of the people they serve.

This should have been a clear-cut case. This should have resulted in a unanimous vote to reject A&B’s permits. This was a missed opportunity to right a 150 year old wrong and to demonstrate that the state is committed to the revitalization of Kanaka Maoli culture and subsistence economics—the very traditional and customary practices that the public trust doctrine mandates be given priority access to water.

A&B claims that it needs public water from these 120 or so streams in order to meet its obligations as a major supplier of water for Upcountry and Central Maui residents, and because of the company’s stated goal of replacing their current sugarcane crop with diversified agriculture, both important and admirable uses for water resources. But the company and its representatives are disingenuous when presenting this narrative to the board and to the public.

Court documents submitted by A&B indicate there are 132 million gallons of water per day already available from the company’s existing private sources. Demonstrating a severe lack of stewardship over its private water, A&B loses an average of 41 million gallons per day, mostly due to unlined reservoirs and aging pipes. The remaining 91 million gallons of water per day from its private sources, if cared for and used wisely, is more than sufficient to meet the obligations for A&B water and land commitments to the County of Maui.

A&B holds 33,000 acres in central Maui, of which 23,000 acres are designated Important Agricultural Lands (IAL). A&B recently declared plans to harvest its last 17,000 acres of cultivated sugarcane by the end of 2016, and has expressed the intent to convert those fields to diversified agriculture in the future. Diversified agriculture needs less than half the water that is required to harvest commercial sugarcane, or about 2,500 gallons of water per acre per day.

With an average of about 42.5 million gallons of water per day for diversified agriculture on all cultivated acres and a $2 million annual contract with the County of Maui to supply 9 million gallons of water per day for Upcountry residents, 91 million gallons of water per day would more than sufficiently satisfy approximate A&B irrigation needs. Even if A&B were to grow on all 33,000 acres, the company would only need about 75 million gallons of water per day to cultivate diverse crops.

A&B has submitted no details for this diversified agriculture plan, but insists that 160 million gallons per day of public water is needed. A representative for EMI stated at the hearing that stream flow had been fully restored at seven of the 127 streams, only to have a kalo farmer pull out a video on her phone clearly showing that one of the streams in question has remained bone dry since the July court order. A representative from A&B’s sugar subsidiary, the Hawaiian Commercial & Sugar Company, stated at the hearing that A&B already produces diversified agriculture that benefits the community. But the A&B land currently producing anything other than sugarcane is used for testing the production of energy crops and as pasture land for Maui ranchers, neither of which can support sustainable food security for Maui communities the way that a robust investment in taro production would.

In January of 2016, a court found that the company’s stated reasons for its continued diversion of Maui waters to its own land holdings at the expense of kalo farmers, Hawaiian gatherers and cultural practitioners did not pass muster with Article XI. First Circuit Judge Rhonda Nishimura’s ruling invalidated the permits Alexander & Baldwin held from the state.

In a grotesque legislative farce, three Maui representatives, Joe Souki, D–Wailuku, Justin Woodson, D–Kahului and Kyle Yamashita, D–Upcountry—all of whom accepted money from A&B’s campaign donor PAC according to 2014 campaign finance reports—designed a bill specifically to help A&B circumvent this court ruling and allow them to continue taking water in spite of Judge Nishimura finding the practice to be unconstitutional. HB 2501, which Governor Ige (also a recipient of A&B campaign donations) signed into law, requires that “where an application has been made for a lease to continue a previously authorized disposition of water rights, a holdover may be authorized annually until the pending application for the disposition of water rights is finally resolved or for a total of three consecutive one-year holdovers, whichever occurs sooner.” This means that the legislative and executive branches colluded to create a new law that renders the court’s interpretation moot.

This dangerous precedent of abuse of our government’s system of checks and balances was wrapped up in ludicrous fear-mongering from both A&B representatives and the state legislators who supported the measure. Stirring up fear among Kaʻu farmers who likewise hold revocable permits from the Department of Land and Natural Resources to divert water to their farms on Hawaiʻi Island’s western quadrant, these corporate agents warned that Judge Nishimura’s ruling would affect the Kaʻu permits as well. This absurd threat succeeded in drumming up enough popular support to make the bill’s passage seem justified, despite the fact that it completely ignores the fact that A&B’s permits were rejected because they could not show a legitimate need for a public resource. A&B’s water banking on Maui is a completely different scenario from farmers and ranchers in Kaʻu who are using the water there to produce crops that are beneficial to their communities.

Thus, the last internal mechanism for putting a check on this corporate abuse of law, land and people was the BLNR and its ability to deny the permit renewal request at yesterday’s hearing. The members of the BLNR were the last institutional bulwark against an injustice that has been perpetuated by this company for generations. This is precisely what the BLNR is there for: to ensure that our public resources, enshrined with protection in the Hawaiʻi State Constitution, are sustained and remain available for responsible use and management by the true konohiki—the people of Hawaiʻi. The board’s decision, even with its stipulations, therefore represents a tragic failure to uphold this critical function.

The fact that the decision was made in Honolulu, financially out of reach of the majority of the working class citizens that will be directly affected by A&B’s hoarding of public water, makes the decision doubly disappointing as the board could have voted to hold a special hearing on Maui later this month. The community members of East Maui, at the very least, deserved the chance to look the board members in the eye and share their manaʻo in person.

At the heart of this issue is the struggle that people all over the world, from Standing Rock to the Gaza Strip, are facing. This is the struggle by ordinary men, women and children to ensure that their human rights—the right to clean air and water, the right to live on land free from pollution, the right to self-sufficiency and self-determination—are honored by their governments, instead of relegated to a backseat behind corporate domination and monopolization of natural resources.

Just as the United States government seems perfectly happy to accommodate fossil fuel conglomerates at the expense of people and cultures it deems expendable, the Hawaiʻi State government seems eager to hand East Maui’s streams over to a corporation with a colonial history that did not end with statehood, but which continues to this very day. But, just as we’ve seen at Standing Rock, and places like Henoko in Okinawa and on the slopes of Mauna Kea here in Hawaiʻi, when people unite and mobilize to defend their way of life, and the very Earth itself, they will never be defeated.

Already, three brave Maui wahine water protectors—at least two of which testified at yesterday’s hearing—have placed their bodies in front of A&B bulldozers, succeeding in stopping them from secretly diverting a stream they were supposed to be restoring. In granting A&B these permits, the state is inviting a public mobilization in the spirit of Standing Rock, pushing for water justice in East Maui. A&B and our “civil” servants had better be ready to face exactly that should they continue this arrogant abuse of Hawaiʻi’s resources and the rights of its people. Because people all over the world are realizing that, if they don’t stand up for their rights and for the preservation of the environment, their livelihoods, their identities and their happiness will continue to be traded off like commodities on the stock exchange in the name of corporate greed.