Native Hawaiian Farmers Seek to Recover Benefits Reaped from Illegal Stream Diversions
Plaintiff Healoha Carmichael, pictured above in 2015 in Honomanū Stream, is a Native Hawaiian cultural practitioner, who fishes and gathers ‘opihi, hīhīwai, ʻōpae, and ʻoʻopu. These traditions were passed to Carmichael from her grandparents, and she is committed to continuing these practices in the manner she was taught.
Ashley K. Obrey, Senior Staff Attorney, Native Hawaiian Legal Corporation
Healoha Carmichael is a Native Hawaiian fisher and gatherer, born in Ke‘anae-Wailuanui on the east side of Maui. Accessible by only a windy, two-lane highway, Healoha’s rural community is known for its abundant rains, rich forests, and dozens of streams, with verdant valleys and gulches that have sustained Native Hawaiians like Healoha and her kūpuna (ancestors) for centuries. Keʻanae-Wailuanui is considered a “cultural kipuka” where “Hawaiians have maintained a close relationship to the land through their livelihoods and customs—that play a vital role in the survival of Hawaiian culture as a whole.” Healoha’s community and its ways of life, however, have been severely impacted for more than a century.
The History of Illegal Water Diversions in East Maui
Alexander & Baldwin (“A&B”) is one of the storied “Big Five” sugarcane corporations that wielded considerable power over the economy and politics across Hawai‘i prior to and through the overthrow of the Kingdom, during the annexation of Hawaiʻi into the United States, and in early statehood. For more than 125 years, A&B’s operations included diversion of millions of gallons of east Maui water every day.
Over time, the impacts of these diversions on the environment and on Native Hawaiian cultural practices in east Maui have been devastating. Streams completely dried out. Plants and animals that live in the streams died. Native Hawaiian families lost the means to continue traditional farming and gathering practices critical to maintaining culture and sustaining their foodways.
Since the 1970s, Hawaiʻi law evolved to impose trust duties on the state to safeguard water and the environment for the public good and affirmatively protect Native Hawaiian traditional and cultural practices. Nevertheless, A&B’s large-scale diversion of water from across east Maui persisted without the required analysis or respect for environmental and cultural impacts. For decades, the state has issued “temporary” annual revocable permits authorizing A&B and its subsidiary East Maui Irrigation (“EMI”) to divert up to 450 million gallons of water a day from east Maui streams across approximately 33,000 acres of former Crown owned public land.
Community Advocacy and Resistance
This is an ‘ōpae, or shrimp.
Healoha is a member of Nā Moku Aupuni O Koʻolau Hui (“Nā Moku”), a collective of Native Hawaiian descendants from Keʻanae-Wailuanui. Nā Moku families have experienced first-hand the irreparable harm caused by the state and A&B’s water diversion, which has dried up streams, devastated lo‘i (taro patches), and destroyed habitats for native water animals like the ‘o‘opu, ‘ōpae, and hīhīwai (fish, shrimp, and a species of snail, respectively) that Native Hawaiians traditionally gather.
For decades, Nā Moku has advocated to protect these streams. Nā Moku has consistently objected to the permits that authorize A&B to drain streams dry. It also attempted to restore water to these streams by petitioning the state to set minimum flow standards for certain streams and demanding relief from the state. Nā Moku also repeatedly asked that the environmental and cultural impact of the diversions be studied and disclosed, which A&B/EMI and the state refused to do for nearly two decades.
Carmichael v. Board of Land and Natural Resources
In April 2015, Healoha, Nā Moku, and another Native Hawaiian farmer finally sued to stop all A&B’s east Maui diversions until disclosure of the environmental impact. In 2022, the Hawai‘i Supreme Court held that the Hawai‘i Board of Land and Natural Resources breached its trust duties in continuing A&B’s one-year permits and that the state’s authority to issue permits is subject to environmental review requirements. In 2023, the environmental court ruled that state and A&B/EMI violated the law. It held that the state “had no authority to renew or continue the [permits] to calendar year 2015 and thus had no legal basis to authorize A&B’s use of the diverted stream water.” The court also concluded:
“[H]uge diversions of stream water over decades had a significant cumulative impact. This includes the irreplaceable waste of enormous amounts of a public trust asset (water), reducing water flows in some streams to levels where habitat was significantly or severely damaged, and the loss of Native Hawaiian cultural resources.”
Based on the court’s order, Healoha and Nā Moku amended their complaint to seek restitution from A&B for diverting water without proper legal authority. The plaintiffs alleged that A&B was unjustly enriched when the state authorized and A&B took so much water that the streams were drained dry, depriving the plaintiffs of their rights to engage in traditional and customary practices. The litigation continues and is currently on appeal.
The Ongoing Fight for Water Restoration
ʻO‘opu is the general name for fishes included in the Eleotridae, Gobiidae, and Blennidae families.
While the Carmichael case was pending, Nā Moku’s advocacy resulted in measured but meaningful progress for minimum flow standards which fully restored flow in 10 streams and restored another seven streams to at least 90% flow at all times. While tens of millions of gallons of water continue to be diverted daily, the 2018 restoration of these streams was an important step forward for the community. Despite some restoration of water, it has been difficult for Healoha to pass down some of the traditions she learned from her kūpuna to her son and the next generation. Impacts to streams require her to hike further upland to gather than she had to when she was a child, because there is not enough water in the streams at the lower elevations to support an abundance of ʻo‘opu, ‘ōpae, and hīhīwai. Uncertain about the future of the water, Healoha and the larger community continue to worry about the impacts of these diversions on their subsistence lifestyles and constitutionally-protected traditional and customary practices. Meanwhile A&Bʻs successor-in-interest, Mahi Pono, continues to fiercely advocate for more water.
According to Healoha, “I am so blessed to have been taught the traditions of old and to have grown up in a place where the customary practices of my kūpuna literally feed and sustain me and my family. I want to continue these practices in the same ways I was taught, and I want to teach my son. To pass this knowledge down, we need flowing streams.”