Bishop Estate tried to defeat other Hawaiian
interests in the tumult over Waiahole Ditch,
putting a housing development ahead of taro,
stream restoration and cultural renewal
in the bid for the life-giving water.
Profits or the People?
By Ian Y. Lind
"...OHA views the efforts of Bishop Estate in its current water use permit application for water flowing through the Waiahole Ditch as insensitive to the long-term needs of the Hawaiian community, particularly with respect to its argument that it has an ownership interest in the water merely because the water percolates through its property.
"The education of Hawaiian children requires not only that they be provided with classrooms, books, computers and inspirational teachers but also that they be able to live in an environment where the traditions and culture of the Hawaiian community are maintained and where verdant valleys and running streams can support taro growing, restoration of fishponds and the gathering of traditional foods from the streams, such as oopu, hihiwai and opae. The short-term payoffs generated by the development of golf courses and suburban residential housing units will in the long run be destructive of those previously enumerated values that are essential to the total educational mission of the Bishop Estate.
"If the Hawaiian people are to survive and build a sovereign Hawaiian nation, they must maintain their ties to their history and culture and to the aina (earth or land) and kai (sea). This would include maintaining subsistence lifestyles in rural Hawaiian communities."
-- Excerpt from an objection to Bishop Estate's application to the Commission on Water Resource Management for 4.2 million gallons per day of water to support the "Waiawa by Gentry" development, filed by attorneys Jon Van Dyke and Elizabeth Pa Martin, March 1995.
Kamehameha Schools/Bishop Estate was criticized by the Office of Hawaiian Affairs in 1995 for putting land development and short-term profits ahead of cultural survival, according to records of the Commission on Water Resource Management.
OHA attorneys charged that the estate was "insensitive to the long-term needs of the Hawaiian community" during the Waiahole Ditch water case, still awaiting final disposition by the water commission. The estate opposed efforts by other Hawaiian organizations to make more water available for taro growing, stream restoration and cultural renewal in the valleys of windward Oahu.
The criticism highlights the difficulty faced by the estate in reconciling its role as an investor, landowner and developer, with concern for preserving Hawaiian culture.
The water commission has spent more than two years determining the future distribution of Waiahole water, which for most of this century has been diverted to the island's dry side for irrigation of now-closed sugar plantations.
Bishop Estate argued that enough water should be set aside for a 3,600-acre development planned by the Gentry Companies on estate land in Waiawa. That site on the dry Leeward side is projected to include over 13,000 housing units, 112 acres of commercial-industrial businesses, two golf courses and over seven miles of roadway landscaping, commission records show.
The estate asked for 4.2 million gallons a day of water to be reserved for the development, and said it should be given priority because income from the project will support Kamehameha Schools.
To defend the "Waiawa by Gentry" project, the estate hired lawyers and experts to undermine water claims being made by other Hawaiian groups, including OHA, the Native Hawaiian Advisory Council, Native Hawaiian Legal Corporation, Waiahole-Waikane Community Association and Ka Lahui Hawaii.
These organizations argued that greater water flow in windward streams and increased taro cultivation is critical to preserving Hawaiian culture and strengthening Hawaiian communities, and is essential to traditional and customary practices that Hawaiians have a right to enjoy.
Bishop Estate was the only Hawaiian organization to disagree.
Attorney Paul H. Achitoff of the Earthjustice Legal Defense Fund, which represented four of the windward organizations, estimates that the estate spent well over $1 million and possibly several million on lawyers and expert witnesses.
"They clearly approached the case as if money was no object," Achitoff said. "They had more lawyers than any other single party in the case, and would often have two or three lawyers sitting there all day, days and weeks at a time, turning out bills."
"It's ironic that while Bishop Estate was wrapping itself in native Hawaiianness at every opportunity, it was going out and hiring so-called experts to testify that streams don't need to be restored, that we don't need any more taro, and all because they want to get water from the ditch so Gentry can build its development in Waiawa," Achitoff said.
The estate's position in the Waiahole proceedings received little public attention at the time partly because of a reluctance among Hawaiian groups to publicize their differences.
"Many of us were Kamehameha alumni, and it was a hard thing for us to do," said Elizabeth Pa Martin, executive director and attorney for the Native Hawaiian Advisory Council, which represents OHA in the water commission case.
Working with Martin on the Waiahole case is retired Judge Walter M. Heen, one of the authors of "Broken Trust," the critical essay published earlier this year in the Star-Bulletin that prompted the attorney general's investigation of the estate.
"I've written to the trustees (a) number of times," Martin said. "I told them, 'You guys are going against Hawaiian interests and yet you claim to be a Hawaiian organization.' I've questioned them on that, but not out in public."
Martin said she met with estate trustee Gerard Jervis and attorney Nathan Aipa, and asked them "to fashion something that wouldn't be so adverse to our position."
Bishop Estate spokeswoman Elisa Yadao said she was not familiar with the estate's actions in the Waiahole case, but said "our primary concern was that water in Waiawa remain in Waiawa."
h12 Counter to Hawaiians?
Jon Matsuoka, a professor of social work at the University of Hawaii, said he has testified in other cases "where Bishop Estate, as a landowner or developer, was a stakeholder on a side that was counter to other Hawaiians who had been adversely affected by development."
"I expect that, even now, a lot of people don't know of their role in land development and the impact they have," Matsuoka said. "Obviously, the estate is doing a lot of good for a select sector of the Hawaiian community, but it's not a free lunch. They are taking from the sector that probably needs help the most, those who are heavily reliant on natural resources for subsistence."
Matsuoka said his studies have identified areas of the state, such as Molokai and Puna on the Big Island, where Hawaiian residents obtain half their food from fishing, hunting, or gathering limu, plants and other edibles.
"It's a continuum, with not a lot of subsisting out here in urban Oahu, but when you go out to Hawaiian enclaves in the hinterlands, there are a lot of people with that type of relationship with traditional cultural practices and the natural environment," Matsuoka said.
In those cases, Matsuoka said, "development disrupts those patterns and destroys those vital resources.
"Once the resource is gone, so is the cultural practice."
Estate claimed powers onceBy Ian Y. Lind
held by Hawaiis monarchs
BISHOP Estate has inherited the absolute powers once held by Hawaii's ruling monarchs and should be free to use its land and resources without interference from the state.
This startling claim was among those made by attorneys representing the estate during proceedings in the Waiahole Ditch water case, which is still pending before the Commission on Water Resource Management.
The estate was not successful in convincing the state commission or other parties in the case.
But the claim is a key example of the estate's strategy of harnessing growing public and legal recognition of traditional Hawaiian rights to bolster its own power and autonomy.
The argument advanced on the estate's behalf by the law firm Dwyer Imanaka Schraff Kudo Meyer & Fujimoto is deceptively simple:
Kamehameha Schools/Bishop Estate inherited lands once held by Kamehameha the Great.
The estate "stands in the shoes of Bernice Pauahi Bishop" and is therefore entitled to exercise the same power that she and her ancestor, Kamehameha the Great, wielded over their lands.
Quoting from a 1902 Hawaii Supreme Court decision, estate attorneys sought to convey the extent of the alii's powers: "Kamehameha I, by right of conquest, became lord paramount of these islands. He was an absolute monarch. His will was law. He was the lord of life and death. He was unrestrained by any constitution. He was owner of all the land in the kingdom, whether under the sea or above it."
Since recent Hawaii Supreme Court decisions have recognized traditional and customary land rights of native Hawaiian tenants, "then logically to the same extent, if not more, the trust of Bernice Pauahi the legacy of the Kamehamehas, must be entitled to those traditional and customary prerogatives enjoyed by the Kamehameha alii," Bishop Estate argued.
In legal responses filed with the water commission last year, the attorney general's office said the claim "continues to stretch credibility."
And the Earthjustice Legal Defense Fund, which represents the Waiahole-Waikane Community Association and other groups, dismissed it as "bizarre" and without supporting evidence.
Then-Deputy Attorney General Rich Eichor told the commission that Bishop Estate is not a descendant of the Kamehamehas.
"KSBE is an entity known as a 'trust.' A trust is a legal creation designed by lawyers for the purpose of managing property. A trust is not the legal descendant of anyone," Eichor wrote in opposition to the claim.
Eichor also pointed out that provisions of the state Constitution were intended to protect the rights of native Hawaiian tenants who were displaced by a landlord, such as Bishop Estate, and were not meant to bolster the power of landowners.
Ironically, Eichor recently resigned from the attorney general's office and joined the law firm headed by former Attorney General Warren Price, which now counts Bishop Estate among its clients.
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