Ka Wai Ola - Office of Hawaiian Affairs, Volume 21, Number 3, 1 March 2004 — Preserving water resources on Molokaʻi helps maintain Hawaiian cultural lifestyle [ARTICLE+ILLUSTRATION]

Preserving water resources on Molokaʻi helps maintain Hawaiian cultural lifestyle

Elawe i ke a'o a mālama, a e 'oi mau ka na'auao. He who takes his teachings and applies them increases his knowledge. E kanu i ka huli 'oi hā'ule ka ua. Plant the taro stalks while there is rain. 'Ōlelo No'eau. Moloka'i native plaintiffs filed legal action to protect Moloka'i's coral reefs and coastal resources. The leeward coast of Moloka'i sustains residents with a bounty of seaweed and fish along its coast. It is their belief that if the aquifer levels drop, it would have irreversible adverse impact on the reefs and shorelines. Moloka'i residents still rely heavily on our reefs and shorelines to supplement our traditional lifestyles. For several years, the Hawai'i Supreme Court has deliberated over the Contested Case Hearing on Water Use, Well Construction, and Pump Installation Permit Applications, Filed by Waiola O Moloka'i Ine. and Moloka'i Ranch Ftd. The challenge, from appellants DHHF and intervenors including

OHA and 10 Moloka'i residents, stemmed from Moloka'i Ranch's ability to satisfy conditions for the water permit to whether the Commission's decision sufficiently protected native Hawaiians' traditional and customary gathering rights, as guaranteed by the HHCA. On January 29, 2004, the high court rendered a unanimous decision that charged the Commission with falling short in several areas of applieahle statutes, codes and standards. The decision ordered that the approval given by the state Water Resource Management Commission for the Moloka'i water project be vacated and that the issue be referred back to the commission for further consideration. Native Hawaiian Fegal Corp. attorney Alan Murakami represented seven of the 10 Moloka'i intervenor appellants. "The Waiola decision is phenomenal. It confirms that the DHHF and Hawaiians trying to pursue their cultural heritage by continuing the traditions and customs of their ancestors along the shoreline are in the driver's seat in

preserving important water resources. The commercial interests on Moloka'i cannot trump these Hawaiian values. Moloka'i onee again leads the way in enforcing the water rights of Hawaiians." In its opinion, the court concurred with the 10 intervenor appellants whereby the Commission "failed adequately to discharge its puhlie trust duty to protect native Hawaiians' traditional and customary gathering rights." It also stated that the conclusion "erroneously placed the burden on the intervenors to establish that the proposed use would abridge or deny their traditional and customary gathering rights. Another major issue of debate was whether or not the Water Commission's decision violated DHHF's existing and future reservation rights. DHHF maintains that the Water Commission is subject to set aside adequate reservations of water to meet DHHF's current and future needs and to insure that other users did not interfere with this water. The court contends that the

reservations of water constitute a public trust purpose and that the decisions of the Commission shall "incorporate and protect adequate reserves of water for current and foreseeable development and use of Hawaiian Home Fands." This decision extended the public trust protection that it affirmed in the Waiāhole Ditch Case to the water rights of the Native Hawaiian people and confirmed that the Commission is obligated to ensure that all its actions protected the rights of Native Hawaiians. Native Hawaiian water rights and traditional and customary gathering rights are still protected by the Hawaiian Homes Commission Act, the Hawai'i Constitution and the Hawaii Revised Statutes. In our ever-changing world, preserving our water resources is an important part of maintaining our culture and our way of life on Moloka'i. E kanu mea 'ai o nānā keiki i kā ha'i. Plant edible food plants lest your children look with longing at someone else's. ■

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Colette Machado

Trustee, Moloka'i and Lana'i