PART IX. 
NATIVE HAWAIIAN WATER RIGHTS



 



§174C-101  Native Hawaiian water rights. 
(a)  Provisions of this chapter shall not be construed to amend or modify
rights or entitlements to water as provided for by the Hawaiian Homes
Commission Act, 1920, as amended, and by chapters 167 and 168, relating to the
Molokai irrigation system.  Decisions of the commission on water resource
management relating to the planning for, regulation, management, and
conservation of water resources in the State shall, to the extent applicable
and consistent with other legal requirements and authority, incorporate and
protect adequate reserves of water for current and foreseeable development and
use of Hawaiian home lands as set forth in section 221 of the Hawaiian Homes
Commission Act.



(b)  No provision of this chapter shall
diminish or extinguish trust revenues derived from existing water licenses
unless compensation is made.



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



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



 



Law Journals and Reviews



 



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



 



Case Notes



 



  Although the Hawaii administrative rules denominate
aquifer-specific reservations of water to the department of Hawaiian home
lands, such a limitation for purposes of water resource management does not
divest the department of its right to protect its reservation interests from
interfering water uses in adjacent aquifers.  103 H. 401, 83 P.3d 664.



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



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



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



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



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