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Article XI, Section I of the Hawaii Constitution states that, for the benefit of all generations, the state and its political subdivisions all of its natural resources, including water.

Water along with land, air, minerals and energy sources are held in public trust, a major outcome of the 1978 Constitutional Convention.

And yet, in spite of this bedrock principle, battles over water rights continue through the present day, most recently and prominently seen in East Maui, where taro farmers and environmental groups have tangled with large developers and land owners for decades over diversion of stream water.

A new book, written by Jonathan Likeke Scheuer, long active in helping groups manage environmental conflict and preserve resources, and Bianca Isaki, an attorney and director for the North Beach-West Maui Benefit Fund, reminds us that struggles over controlling access to fresh water are hardly limited to East Maui.

It’s a statewide issue, and it is fundamentally about “perpetuation of political and economic power and privilege,” as a blurb for the book accurately states.

And if the title of the book rings a bell, that is intentional.

first published in 1985 by George Cooper and Gavan Daws, became a surprise bestseller in the local market, even though, as a New York Times at the time, the book is “crammed full of the driest of data from real estate records and legislative dockets.”

That it is. But what is not dry is the primary assertion in “Land and Power” — that state and local Democratic Party officials “profited as developers, lawyers, contractors, investors and sometimes as influence peddlers in the development that changed the face of the islands,” as the Times put it. It was also all legal, though that doesn’t mean it was proper.

Like “Land and Power” on land use and ownership, “Water and Power” is an invaluable resource in understanding how Hawaii got to be where it is today regarding water rights. I will add my copy of the book to the Civil Beat office collection of literary Hawaii that includes “Land and Power,” Broken Trust,” “Hawaii Pono” and more.

‘Free To All’

“Water and Power in West Maui,” published this year by the North Beach West Maui Benefit Fund and distributed by University of Hawaii Press, begins with an 1895 lawsuit, Horner v. Kumuliilii, in which the largest sugar plantation in the Lahaina area, Pioneer Mill, sued 60 Hawaiians in West Maui over water claims involving Kauaula Valley.

Paul Isenberg and C.F. Horner were owners of Pioneer Mill. Kumulilli means “small foundation” in Hawaiian.

With the rapid rise of sugar cultivation beginning in the 1860s on Maui, streams from watersheds were increasingly diverted for the growing and milling of cane.

The Great Mahele of 1848-1852 (mahele means division) during the Hawaiian Kingdom resulted in the privatization of land, leading to the establishment of sugar plantations.

But the Mahele did not privatize water, and the Kuleana Act of 1850 stated explicitly, “The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all.”

The Hawaii Supreme Court ruled against most of the complaints of the sugar plaintiffs in Horner v. Kumuliilii, but it did not settle the fight over water, which would be fought in our courts for much of the last century.

It wasn’t until the 1973 ruling in McBryde v. Robinson that the Hawaii Supreme Court made clear the Mahele did not intend water to be treated like private property to be bought and sold. Gay and Robinson and McBryde Sugar Co. were two large sugar plantations in the Hanapepe area on Kauai who fought each other over water rights.

Still, legal battles continued, for now tourism had supplanted agriculture as the top economic driver for the islands.

The first page on the chapter on Horner v. Kumuliilii sets the tone of the book by opening with two contrasting quotes. The first describes how the sugar mill persecuted Hawaiians in the 1890s by having them arrested and by forcibly taking their water rights, while the second is drawn from the website of the Westin Kaanapali in 2017 promoting the resort as a playground for guests that includes a “pirate ship pool” for keiki.

The use of the quotes was Scheuer’s idea. Another smart editorial decision came from Isaki, who begins the chapter on the history of the ditch system by comparing the selfish actions of Pioneer Mill to the Hawaiian warrior Alapai who, in 1738, dried up three Maui streams so there would be no food for the forces of the chief Kauhi or for the people.

Both situations, the authors explain, amount to the monopolization of water resources as a tactic of war. Water is indeed power, a fundamental source of life but also a commodity for the pleasure of visitors at the expense of Native Hawaiians.

‘A Self-Determination Issue’

“Water and Power in West Maui” is not for the general reader. Heavy on acronyms like CWRM and KLMC and terminology like “sustainable yield” and “interim instream flow standards,” it may turn off some readers.

But a major takeaway from the book for all of us is that Hawaii needs to be “a better protector” of the public trust, as the authors state. The book makes clear that Hawaii has too often fallen very short of that goal, and particular criticism is leveled at the state Commission on Water Resource Management, which is what CWRM stands for.

Scheuer, currently chair of the state Land Use Commission, and Isaki, who has contributed to two other books on West Maui, say that the commission has demonstrated anti-Hawaiian bias in its decision-making and failed to recognize the rights of holders of kuleana lands. Water resource protection is, for many Native Hawaiians, a “self-determination issue,” a resistance to foreign powers with their lawyers and engineers trying to bully kanaka maoli and their customary practices.

The end of struggles over water in West Maui are nowhere in sight, Scheuer and Isaki conclude. “Nothing on the terrain of water resource management and development in Hawaii, much less West Maui, is settled.”

With Hawaii — like much of the planet — experiencing more drought, more wildfires and more powerful storms, control of fresh water will become only more intense. A chapter on the importance of protecting groundwater warns that demand for groundwater, pumped from wells and aquifers, will only grow in places like the Lahaina area, even as water resources are likely to decline in yield.

The hope of the authors is that their book will serve as “a useful tool in collectively implementing a more equitable and sustainable water future” — for West Maui and Hawaii as a whole.

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.