Book of the Month: Water and Power in West Maui

HCJ: You co-authored the book Water and Power in West Maui in 2021. Before we get into what’s happening now, can you tell us why you wrote this book?

Scheuer: I was asked to write the book by folks from West Maui. The North Beach – West Maui Benefit Fund has commissioned a whole bunch of really great books on this area. I had presented at a conference they co-sponsored in 2017 with Nā `Aikāne O Maui, whose offices were in the old ILWU Union Hall on the site of Mokuhinia and Moku`ula. While I was presenting there on burial law issues, I also had some conversations about water rights and water history. Lance Collins and others approached me offering me a small stipend to work on a book on the history of water in West Maui. I asked Bianca Isaki to help me, as we had worked on projects before together. I had wanted to write a book on water for a while as well; some of it is based on my doctoral dissertation which looked at the history of water across Hawai`i and the Waiāhole Water Case, which was the first test in court of our modern water code which passed in 1987.

HCJ: Before we move on, you just mentioned two places in Lahaina, Mokuhinia and Moku`ula – can you explain for people who may not know what these are?

Scheuer: Moku`ula was the royal residence and seat of Hawaiian Government during the Kingdom when the capital was Lahaina, from 1820 – 1845. The whole area, what people refer to as the Royal Complex, in many ways is the equivalent of `Iolani Palace. Moku`ula was an island in the middle of a large freshwater pond, Mokuhinia, mauka of Alanui Mo`i (what is referred to now as Front Street). For hundreds of years it was a residence of the high chiefs of Maui, and when Lahaina was the capital it was the residence of Kauikeaouli – Kamehameha III.

With the rise of sugar plantations in Lahaina that eventually consolidated as Pioneer Mill, surface water diversions and then groundwater pumping diverted water that fed this pond, along with lo`i and other wetlands all across Lahaina. During the early Territorial period, Maui County declared the area to be a malarial threat, they filled it in, and put up a baseball field.

There is a huge post-fire effort to see that it is restored as part of the Lahaina Royal Complex led by the Maui County Department of `Ōiwi Resources. Frankly it’s always stunning to me to realize how few people know of these places and their significance; what happened there is the equivalent as if the Territory had torn down `Iolani Palace.

HCJ: What historical legal actions should readers understand as context for what’s happening today?

Scheuer: Maybe the briefest way to answer is this – it is impossible to understand our current water fights without understanding the history of water in Hawai`i, particularly its legal history. And while that history is pretty long – around 180 years – it can be described kind of simply. Over that time we have gone in a circle. We began in the 1840s and before understanding water was a commonly held resource, then the law changed it could be bought and sold like private property, and again we now legally know it is a Public Trust resource, held by the government in trust for the people.

The highest chief of an island, and then eventually the monarch, was the head of all land and water. However, they did not own that land or water as their personal property. As Mary Kawena Pukui wrote in the 1930s, they acted as a trustee on behalf of the gods. Individual kalo farmers –the major water users – did have rights though, and they couldn’t arbitrarily have their water taken away. In the 1890s, Emma Metcalf Nakuina famously wrote that one of the penalties in ancient times for someone who broke down someone’s dam was that that person could be killed, and their body used to temporarily rebuild the dam, as a warning to others! On the other hand, a farmer who failed to contribute labor to the maintenance of the auwai could lose their access to water.

That was an intertwined cultural, legal, and religious understanding of water. That made its way into the first Laws in Hawai`i. The Declaration of Rights in 1939, and the constitution of 1840 (both written in Lahaina) put that in writing. And then, during the Māhele from 1848 to 1852, there was a series of acts creating some interests in private property in land. But even then, water was excepted from that. The Kuleana Act specified that “The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple…”

Of course, what happened in Lahaina and across the rest of Hawaii, was that the Māhele had other consequences. For business, the creation of some private property rights in land allowed capital to be raised and invested. Nobody wants to raise and invest in capital in land if they don’t think they’re going to be able to hold onto it. And very quickly, the economic success of the sugar industry, and later the large ranches and the pineapple industry, lead to massive economic growth, the transformation of landscapes and waterscapes across Hawaii, and the increasing political and economic power of the plantations.

The Plantations’ power extended into the judiciary, A whole bunch of Hawai`i Supreme Court cases were passed that ignored that legal history, and started to treat water like private property that could be owned and bought and sold. This started with a case on Maui, a fight between two sugar planters, Peck v. Bailey. And eventually the law started to treat water like private property. As an example, if you look at the Hawaiian Homes Commission Act as passed by Congress in 1921, it refers to “government owned water” and “privately owned water”, which reflected the understanding of water at that time, even though it was nonsense.

That all changed starting in the 1970s. Once again, two sugar planters were fighting over water, this time on the island of Kaua’i. The Gay and Robinson Plantation had been fighting for decades with the McBryde Plantation over who owned how much water in the Hanapēpē River. The case made it to the Hawai`i Supreme Court but this time – under Chief Justice William S. Richardson – the court looked at all that previous law, all the way back to the Kingdom, including provisions in the Kuleana Act. And they concluded that there never was any private property in water in Hawai`i.

What followed was a 1978 Constitutional Amendment and the 1987 passage of the state Water Code, in order to implement that idea that water is a Public Trust resource that no one individually owns.

So all our struggles over water today exist in that context. Across Hawai`i, you have folks who continue or are revitalizing cultural practices around water. And you have industries and corporations and individuals, and even those in Government, who are trying, within this current legal system, to really treat water like private property. That’s the heart of the struggle.

HCJ: West Maui has seen significant activity around water in the past year, from litigation between private landowners to a county MOU with MLP. What should residents understand about how these developments affect their relationship to water?

Scheuer: Yes, this is a period of high conflict in water around West Maui, though that struggle has been going on for over 170 years.  Whoever controls the water of West Maui will have the largest say over West Maui’s future.   Do we want control to be through democratic institutions, or do we want most of the management to be by private corporations? Any goals that people have, whether it’s a business wanting to expand, whether it’s local families wanting affordable housing, a farmer wanting to farm, or a land owner wanting to get a return on their property – all of these depend on water being available.

HCJ: Kuleana landowners have specific water rights under Hawaiʻi law. How well does the current situation (the litigation, the MOU) protect or threaten those rights?

Scheuer: Kuleana, in this sense, refers to the individual parcels awarded to individual maka`āinana during the Māhele under the Kuleana Act.  These lands on paper have some of the most significant water rights in Hawai`i.   In fact the Water Code specifically notes that Kuleana water rights are not extinguished, even if the holder of the rights doesn’t apply for or is not granted any permits under the Code.   Despite that legal priority, folks across Hawai`i have seen that rights on paper don’t always translate into wet water on the ground.  So, for many folks in the community, one of the biggest concerns they have is about how the fight between large landowners and the County acquisition might affect kuleana water rights and other traditional and customary Hawaiian water rights and uses. Legally, nothing should change their rights or priority.    Practically, however, whoever runs a water system can really impact whether those rights are easy or difficult to exercise.  To me, having the County control these systems dramatically increases the ability of public trust water users to have their rights respected – but it doesn’t guarantee it.  In the past, especially during the Territorial Period but also well into statehood – the County has often sided with, or in some cases really been run for, large landowners and businesses.

HCJ: Who in West Maui has historically been left out of water decisions, and are those voices present in what’s happening now?

Scheuer: I’d add fishermen too, because one of the things that keeps our reefs healthy and our nearshore productive is fresh water flowing into the ocean, but during the plantation era that was legally declared to be a waste of water. So fisheries declined in order to support water use by the plantations.

One of the biggest things that happened in recent west Maui water history was the “designation” of Lahaina as a surface and ground water management area in 2022.  Under the state Water Code there are designated and undesignated areas.  In undesignated areas, most water decisions – whether new wells are allowed, how much they can pump, if water can be taken from streams – are often made behind closed doors, landowners working with government appointees.   In some ways it’s still like the plantation era, where regular folks have little information, little access and no say.   In designated water management areas, those decisions are subject to public processes.    And folks should know, the vast majority of the State is undesignated, and the state almost always, including now, drags its feet on designation.

But in West Maui over the last decade, a lot of grass roots folks really educated themselves about their water rights, they fought for designation of a water management area, and now they have legal access to those decisions. They’re also extremely diligent at tracking all the things that are happening on the county and state level regarding water.  So their voices are more present than they have been for over a century.

That said there are still all sorts of problems. For reasons that are unclear, the current state administration through the Water Commission has not processed any of those water use permits yet required by designation.   Most of those applications were turned in three years ago – and this includes permits for people wanting to exercise kuleana water rights.  The state Water Commission is not being transparent about why this is taking so long.  So people are still being left out of important discussions.

HCJ: In 2022, 64% of Maui voters approved a charter amendment establishing a framework for community water authorities to “provide a long-term reliable supply of water for domestic and agricultural needs.” How does that mandate shape the way you’re watching what’s currently happening in West Maui?

Scheuer: It shapes it in at least two ways.  I have had the honor of serving on the governing board for the East Maui Water Authority,  the `Aha Wai O Maui Hikina.  The 2022 charter amendment established us, and also gave the Council the power to establish other water authorities across Maui County.  On my board of 11 Members, eight of whom are East Maui taro farmers, and they asked me to be their Chair when we first met in February 2024.  I just finished my time as Chair in April. I handed it over to Kyle Nakanelua, and agreed to stay as vice chair to help.  I have about four more years on my term.

Having been in this process for years, I have seen first-hand how relentless the political pressure has been for the East Maui Water Authority to fail.  I was personally put through the political ringer,  which one local media source covered in detail, after I was first nominated to serve.  The state Legislature, which has no direct control over us, did a gut and replace on a resolution in 2024 to encourage the County Council not to fund us.  A former mayor who campaigned against the Charter amendment secured a seat on the `Aha, claimed we were violating the Charter, and continues to lobby against us.  And the state BLNR four times over the last two years has put measures on the agenda to start the process that would end in issuing a 30 year water license for East Maui to the company doing business as Mahi Pono, which is owned by a $300 billion Canadian public pension fund.  Running the East Maui system is what we are set up to do, so I have characterized those as “assassination attempts” in the sense that they would make it almost impossible for us to fulfill our mandate.

So one way that mandate shapes how I watch what’s happening in West Maui is that I understand more than I ever have how relentless the folks are who want to maintain private control.  They will do almost anything.  And they did, after the fires, working with some state officials, in West Maui and in East Maui.

A second is that as our board has developed, and as we have hired our executive director and she has built our department, we appreciate how meaningful this deep community leadership in a governmental body on these water issues is.  That has not been stood up yet for West Maui, which is still working through designation permitting, but I hope that they will have a water authority too when the time is right, if that’s what the community wants.

HCJ: What perspective does your current work give you that the public may not see or understand? (i.e. What are you watching that isn’t making it into press coverage?)

Scheuer: That I can talk about?  Haha.  A few things. Specific to the exit of the Century Golf tournament at Kapalua, I would recommend to people they listen to an episode of a golf podcast called No Laying Up that is entitled “What happened at Kapalua?”  There was a ton of information in there about why the PGA may have left, ways the courses at Kapalua could be more water efficient, and other issues.  In all the main media in Hawaii the issue was simplified as a water for taro growers and drought issue, and it was way more complex than that.

Beyond that specific example, one thing I would note, to oversimplify, important political leaders in our state that have one  of two differing orientations to participating in how water is managed.  The larger group, the group that used to be called the Machine in Hawai`i, views all of these issues – the public trust doctrine, permitting, community involvement – as a barrier to their goals.  So they fight designation, they try repeatedly to use the tools of government to keep water as private as they can.  The smaller group – and these include leaders who are Democrats and who are Republicans – embrace the idea of the public trust.

This plays out in who is nominated to staff or sit on important Boards and Commissions, like the Water Commission, the Land Board, the Land Use Commission, the County Water Boards.   A huge amount of governance in Hawai`i is done by these Commissions, and most people don’t know that, and who they are or what they do. The media occasionally covers them.  Almost nobody ever knows who’s being nominated.  But these institutions shape our future.

HCJ: If you were advising county officials right now, what’s the question they should be asking?

Scheuer: Well, I am in a couple of ways already. But not directly on the dispute between TY and MLP or on the West Maui acquisitions.  One question I think they should be asking very soon is:

HCJ: If you were advising community groups right now, what’s the question they should be asking?

Scheuer: I’d ask them to ask the same question, how are we going to be involved in water governance of this and when they succeeds?

HCJ: What would meaningful community ownership or stewardship of West Maui’s water look like structurally?

Scheuer: That’s really a question for the people of West Maui to decide. I certainly do have some thoughts which I shared above – I think the idea of another Water Authority for this area should be seriously considered.

HCJ: If someone wanted to learn more about water in Maui, what’s one thing you’d tell them to read, one person you’d tell them to talk to, and one place you’d tell them to go stand in?

What to read?  So I don’t make any money if people buy Water and Power in West Maui; the nonprofit that published it does.  So I don’t feel awkward recommending it.

In terms of a person, I don’t want to get any of my friends mad at me by naming them!  I think what I would tell them to do is watch, online, the recordings of the Water Commission meetings related to Lahaina and held on Maui.  Put on your earphones when you are on the treadmill and listen to the really intense brilliance of a ton of perspectives on water in that place, these meetings go on for hours and hours.  If you can only choose one, listen to the first meeting the CWRM held on Maui after the fires, on October 24, 2023.

Where to stand?  Stand anywhere near the coast in Lahaina where you can get an open view around you.  Look toward the mountains, remember what you would have once seen in front of you were wetlands.  If you can see it, look to Ka`anapali and the lush golf courses and resorts, and to the right, to the luxury subdivisions and vacation homes in Launiupoko. And then look at the dry land post fire in front of you, and the usually cloud laden summit of Mauna Kahalawai far ahead of you.

You are taking in the history, inequity and current challenges of water in West Maui.

HCJ: If a community member in West Maui wanted to have agency in what is happening right now, what’s the most direct lever they have right now?

Scheuer: Get involved.  Show up at meetings – CWRM, County Council – and listen.  Pay attention to calls for action via email and social media.  Get involved with any number of local groups who track these issues.

HCJ: What’s a question you wish we would have asked?

Scheuer: One thing I am asked – do I have hope? I do, though sometimes I think of it as irrational optimism.  Across Maui, community is often pitted against forces with far more resources than they have – pension investment funds worth billons of dollars; sometimes actual billionaires.  The fires are not the first tragedy that has hit West Maui or Hawaiʻi.  Despite all that, the community has persevered and despite the struggles they have won important victories. We hold onto those and we built on those.