PART IX.Ā NATIVE HAWAIIAN WATER RIGHTS

 

Ā§174C-101Ā  Native Hawaiian water rights.Ā (a)Ā  Provisions of this chapter shall not be construed to amend or modifyrights or entitlements to water as provided for by the Hawaiian HomesCommission Act, 1920, as amended, and by chapters 167 and 168, relating to theMolokai irrigation system.Ā  Decisions of the commission on water resourcemanagement relating to the planning for, regulation, management, andconservation of water resources in the State shall, to the extent applicableand consistent with other legal requirements and authority, incorporate andprotect adequate reserves of water for current and foreseeable development anduse of Hawaiian home lands as set forth in section 221 of the Hawaiian HomesCommission Act.

(b)Ā  No provision of this chapter shalldiminish or extinguish trust revenues derived from existing water licensesunless compensation is made.

(c)Ā  Traditional and customary rights ofahupua`a tenants who are descendants of native Hawaiians who inhabited theHawaiian Islands prior to 1778 shall not be abridged or denied by thischapter.Ā  Such traditional and customary rights shall include, but not belimited to, the cultivation or propagation of taro on one's own kuleana and thegathering of hihiwai, opae, o`opu, limu, thatch, ti leaf, aho cord, andmedicinal plants for subsistence, cultural, and religious purposes.

(d)Ā  The appurtenant water rights of kuleanaand taro lands, along with those traditional and customary rights assured inthis section, shall not be diminished or extinguished by a failure to apply foror to receive a permit under this chapter. [L 1987, c 45, pt of Ā§2; am L 1991,c 325, Ā§8]

 

Law Journals and Reviews

 

Ā  Native Hawaiian Homestead Water Reservation Rights:Ā Providing Good Living Conditions for Native Hawaiian Homesteaders.Ā  25 UH L.Rev. 85.

 

Case Notes

 

Ā  Although the Hawaii administrative rules denominateaquifer-specific reservations of water to the department of Hawaiian homelands, such a limitation for purposes of water resource management does notdivest the department of its right to protect its reservation interests frominterfering water uses in adjacent aquifers.Ā  103 H. 401, 83 P.3d 664.

Ā  Insofar as the commission on water resource management, asthe agency authorized to administer the state water code, determines thecontents of the Hawaii water plan, which includes the designation of hydrologicunits and sustainable yields, and the commission's "interpretation of itsown rules is entitled to deference unless it is plainly erroneous orinconsistent with the underlying legislative purpose", it is within thecommission's authority to limit reservations of water to specific aquifers.Ā 103 H. 401, 83 P.3d 664.

Ā  Pursuant to article XI, Ā§Ā§1 and 7 of the Hawaii constitution,Ā§220(d) of the Hawaiian Homes Commission Act, and subsection (a), a reservationof water constitutes a public trust purpose.Ā  103 H. 401, 83 P.3d 664.

Ā  Where commission on water resource management failed torender the requisite findings of fact and conclusions of law with respect towhether applicant had satisfied its burden as mandated by the state water code,it violated its public trust duty to protect the department of Hawaiian homelands' reservation rights under the Hawaiian Homes Commission Act, the statewater code, the state constitution, and the public trust doctrine in balancingthe various competing interests in the state water resources trust.Ā  103 H.401, 83 P.3d 664.

Ā  Where commission on water resource management refused topermit cross examination of water use applicant's oceanography expert regardingthe limu population along the shoreline, in effect precluding the commissionfrom effectively balancing the applicant's proposed private commercial use ofwater against an enumerated public trust purpose, the commission failedadequately to discharge its public trust duty to protect native Hawaiians'traditional and customary gathering rights, as guaranteed by the Hawaiian HomesCommission Act, Ā§220, article XII, Ā§7 of the Hawaii constitution, and thissection.Ā  103 H. 401, 83 P.3d 664.

Ā  Commission on water resource management's conclusion that"no evidence was presented" to suggest that the rights of nativeHawaiians would be adversely affected by permit applicant's proposed useerroneously shifted the burden of proof to complainants; thus, commissionfailed to adhere to the proper burden of proof standard to maintain theprotection of native Hawaiians' traditional and customary gathering rights indischarging its public trust obligations.Ā  116 H. 481, 174 P.3d 320.