By Glenn I. Teves
The construction of the Molokai Irrigation System (MIS) had been contemplated for a long time, from conception to completion covering a period of over 30 years. Completed in 1968, the intent of the MIS was to supply water to the dry Ho`olehua plains in fulfillment of the Hawaiian Homes Act. Although over 200,000 acre of lands were set aside for the rehabilitation of the native Hawaiians, only two areas, Molokai and Waimea, Kauai actually have rights to water specified in the Hawaiian Homes Act of 1920.
The construction of the MIS was a major undertaking, and required boring a tunnel over 5 miles from the base of the East Molokai Mountains behind Manila Camp to the back of Waikolu Valley. A five mile pipeline would transport water from the tunnel to a 124 acre reservoir in Kualapu`u, followed by transmission lines carrying water to individual farms throughout Kualapu`u and Ho`olehua.
Just a few years after the MIS was completed, there were already threats of using this system for other than its intended purpose, namely resort development on the West End that envisioned 30,000 people and numerous hotels. This was of grave concern to Ho`olehua homesteaders who feared their water would be allocated to west end water consumers in the event of a water shortage. To prevent the approval of an agreement between the State Board of Land and Natural Resources (BLNR) and Kaluakoi Corporation aka Louisiana Land and Exploration Company to transport water from Well 17 in Kualapu`u to West Molokai through the MIS, Ho`olehua homesteaders and Life of the Land sued.
Life of the Land is a statewide environmental group based in Honolulu formed by a group of concerned women, and have been involved in other environmental cases on Molokai, including the Papohaku sand mining.
There were actually three suits to stop the movement of water to the West Molokai. Included were members of the Ho`olehua Homesteaders Cooperative Association, individual homesteaders, and also Life of the Land. Over seventy homesteaders were involved in the suits, including Emma Ah Ho, Samuel Peters Sr. & Jr, Maraea Pawn, Harry Kealoha, Elizabeth Makaiwi, Martha Naeole, Lucy Flores, Annie Kaawa, Ruth Awai, Joan Mollena, Edmund Kaimikaua, Edward Pelekai, Amoy Dacuycuy, James Mawae Jr, Rose May Enos, and many others.
The first suit, filed on February 9, 1973 in the U.S. District Court, was initiated by the Molokai Homesteaders Cooperative Association and Life of the Land against the US Secretary of the Interior, who funded a major part of the construction of the MIS. Homesteaders contended that the BLNR did not have the authority to negotiate and enter into an agreement with Kaluakoi Corporation. The District Court denied their claims, and the US Court of Appeals for the 9th Circuit affirmed the lower court decision in October 29, 1974. On July 11, 1975, BLNR executed the agreement with Kaluakoi Corporation to carry water through the MIS.
On December 15, 1975, seventy homesteaders representing the Molokai Homesteaders Cooperative Association and numerous named individuals brought an action in the 1st District (State) Court against the BLNR and Kaluakoi Corporation, alleging violations of environmental laws (HRS 343 and 344). Known as Ah Ho vs. Cobb, homesteaders and others questioned the need for an Environmental Assessment (EA) or Environmental Impact Statement (EIS). Homesteaders lost the suit because it was determined that the lease was executed before environmental statutes became law in Hawaii.
In the third case, seventy homesteaders filed a third action in the Second Circuit (State) Court. This instant appeal sought relief similar to the Ah Ho Case, but on different grounds. The Court found that the agreement did not jeopardize or prejudice the quality and quantity of the state water and also that the agreement did not deplete the State’s water supply. The Court relied on the theory that Kaluakoi Corporation would never use state water in the MIS coming from Waikolu. Quoting the case, “The rental arrangement here under consideration does not contemplate the System will supply to the corporation any of the System’s water.” Quoting from the first case a similar rationale, “The proposed contract here in issue does not involve the sale of the System’s water surplus or otherwise.”
With time, these assumptions have proven to be FALSE. Since the agreement was approved, Kaluakoi and its predecessors, including Molokai Ranch used MIS water many times when their pumps broke down. Under oath, a former manager of the Molokai Irrigation System admitted that he had given Kaluakoi Corporations water without injecting a proportionate amount of water prior to withdrawal on the West End, and had falsified water records. The storage of water was not allowed in the original agreement, yet five years ago DOA started allowing the storage of water by Molokai Ranch AT NO COST. Where in this world can you find free storage of anything?
Attorneys for the defendant, BLNR and Kaluakoi Corporation, also conceded during oral arguments that an Environmental Impact Statement would be required prior to a present board approval of an action with similar consequences. Quoting from the case, “We entertain no doubt that the pertinent statutory provisions would mandate the preparation of an EIS if Kaluakoi’s application for ‘rental of space’ in the System’s facilities were presented to the Board now.” A proposal whose approval would facilitate the development of a large resort complex in a previously unpopulated area through the use of the Molokai Irrigation System’s pipeline, allow water to be transported from its sources to another area, and cause a rise in the salinity of the system’s irrigation water would be within the purview of activities covered by Chapter 343 (Relating to Environmental Impact Statements). The use of a government pipeline, the implicit commitment of prime natural resources to a particular purpose, perhaps irrevocably, and the substantial social and economic consequences of the governmental approval of the proposal would dictate the preparation of an EIS.
The Court also concluded that “In the event of a drought or an emergency, the State reserved the right to set priorities and control the allocation of water.” This right has never been acted upon, and West End consumers have gotten their same allocation of water even when farmers were being asked to cut back on their water use.
As we look back on these cases, it was only through the courage of Ho`olehua homesteaders banding together, and who stood up for what they believed in that these issues have seen the light of day. Three generations later, this unfinished business will have to be dealt with as DOA and Molokai Ranch, managers and users of the MIS, will have to disprove environmental impact in all aspects of moving water from one part of the island to another, impact on ground and surface water, and also impact on native flora and fauna. Non-enforcement of laws will be exposed, and as a result, state agencies will have a clearer understanding of their responsibilities as it relates to the Hawaiian Homes Act.