Ka Wai Ola - Office of Hawaiian Affairs, Volume 4, Number 1, 1 Ianuali 1987 — NHLC Report [ARTICLE]

NHLC Report

Native Hawaiian Lepal Corporation

The Water Code

By Mahealani Ing, Executive Director Hawaiian tradition has always engendered wise and judicious care of natural resources, and water management is a good example. In the evolution of Hawaiian water law, our state embraced ancient customs and adopted them not just as a means of preserving native Hawaiian rights, but as the core of applicable eommon law. The konohiki in charge of an ahupua'a controlled water so that all needs for cultivation were met, and then allocated any surplus.

Court decisions recognized continuing water nghts appurtenant to lands in quantities needed to cultivate taro following the Great Mahele. Prescriptiue rights (rights established by long, unchallenged tenure) as against other private parties were also recognized until the McBryde decision. Rights not appurtenant or prescriptiue were held as riparian (rights of a landowner abutting water to the reasonab!e, beneficial use of that water). Although riparian law still applies, the state supreme court has ruled that the State of Hawaii, as successor to the kings and chiefs who formerly held all the lands, had mueh greater authority to allocate riparian rights than existed in other states. This is because the state, as the successor in interest to the kings and chiefs, was obligated to assure a fair distribution of water among all people who put it to productive use. During the Great Mahele, lands passed to private parties subject to a reservation of rights in the king (now the state) to allocate water among all who needed it. The waters were held in a public trust for eommon use. If you live up mauka next to a stream, do you have the right to divert and use the water in that stream or river in such quantities as to deprive downstream kuleana owners and taro growers? Hawaii law says no. The Hawaii Supreme Court said in Reppun u. Board of Water Supply that riparian rights in Hawaii were analaguous to the federally reserved water rights accruing to Indians described in the Winters u. United States case.

The Court in lVinfers concluded that when the Government created Indian reservations, it intended to deal fairly with them by reserving for them water without whieh their lands would be useless. Similarly, when the sovereign of Hawaii reserved appurtenant rights to ahupua'a tenants (kuleanaowners), he intended (and his successor, the state of Hawaii intended), to deal fairly with them by reserving for them water without whieh their lands would be useless. The court in Heppun went on to emphasize that the statute whieh codifies this principle, H.R.S. section 7-1, provided for the people's own use, and did not include nor contemplate rights to se!l water for profit. A 1978 constitutional amendment recognized the state's long-standing trust obligation to manage water resources for the pubiic benefit. Since that time, implementing legislation has failed to pass despite numerous attempts to enact a Water Code embodying public trust principles. Those opposing such a code have succeeded in blocking such legislation in Representative Calvin Say's Committee on Water, Land Use, Development and Hawaiian Affairs. OHA's ad hoe Water Committee chaired by Trustee Moses Keale whieh included attorney Mililani Trask as well as NHLC attorneys have actively supported passage of a version of a bill sponsored by community groups and the Department of Land and Natural Resources. However, county and sugar lobbyists have effectively blocked passage of such legis!ation.

Should large commercial users have carte blanche, long-term leases whieh do not provide for meaningful, periodic review? What happens when permittees who obtain water for agricultural purposes decide to switch that use to resort or urban development? Shouldn't the state or county planners have a say as to whether there should be such a change in use? Some versions of the Water Code supported by sugar lobbyists have proposed mechanisms whereby water allocations to large users would be locked up perpetually without further governmental intervention or regulation. Other procedures have been proposed whieh do not afford due process protections to kuleana farmers, and whieh may operate to effectively extinguish their appurtenant or riparian rights.