Environmental Law Clinic Update

Environmental Law Clinic Update:  Aia i Waiʻoli ke Aloha ʻĀina

Letani Peltier, Post-J.D. Fellow

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For the Spring Semester 2019, the Environmental Law Clinic assisted small family farmers from Waiʻoli, Kauaʻi in their efforts to restore and maintain their loʻi kalo system, which was severely damaged by heavy rainfall and flooding in April 2018. Although this system has been utilized since time immemorial, disaster relief efforts determined that the mānowai, poʻowai, and much of the ʻauwai are now on state conservation land. Importantly, the County of Kauaʻi dedicated over $500,000 in disaster relief to repair this system, which supports more than a quarter of all of the kalo grown in Hawaiʻi nei.  But, over a year after the flood, the funds have been inaccessible due to complex permitting and other requirements.

The farmers sought the clinic’s assistance in navigating the legal system’s maze of exemptions and other approvals. The clinic helped the farmers organize into a non-profit organization, the Waʻioli Valley Taro Hui (the “Hui”), and also worked closely with the farmers to apply for an easement from the Board of Land and Natural Resources (BLNR or the “Board”).  The clinicians’ work, including their factual and legal research, provides the Hui with a strong foundation so they may continue to mālama the land their families have had kuleana over since time immemorial.

A critical part of this effort involved a site visit on February 8-10, 2019, during which students engaged with the farmers to gain a better understanding of the legal issues and other challenges they continue to face as a result of last year’s flooding. Clinicians also had the opportunity to hike Waiʻoli Stream to the site of the damaged mānowai, the traditional rock structure that slows down the water and channels it into the rest of the loʻi kalo system. From there, clinicians followed the poʻowai (secondary diversion structure in the stream) and ʻauwai (traditional kalo irrigation ditch) down to individual farmers’ loʻi kalo. The students were joined by Office of Hawaiian Affairs (OHA) Trustee Dan Ahuna, Kauaʻi County Councilmember Mason Chock, and Commission on Water Resources Management hydrologist Aryon Strauch for this brief huakaʻi, which was led by the Hui.

Clinicians returned to Kauaʻi on April 5, 2019, to share their preliminary factual research and legal analysis. In addition to updating the farmers on the work done over the semester, clinicians provided an overview of the next-steps related to the Hui’s non-profit status, and also interviewed Hui members and then helped to draft testimony in preparation for BLNR’s meeting to request an easement for the relevant portions of the loʻi kalo system that was on state land.  

The Hui’s easement application was agendized for BLNR’s May 24, 2019 meeting. Eight Hui members flew to Honolulu to testify. Additionally, even though the Spring semester had already ended, one student submitted written testimony and another clinician testified in person in support of the Hui. The Board was overwhelmingly supportive and voted unanimously to approve an immediate right of entry and 55-year easement gratis – totally free of charge.  Further, the Board commended the Hui’s efforts and also recognized the significance of individual farmers joining together to steward an important biocultural resource. Boardmember Sam Gon recognized the historic nature of this action, noting that this was the first time BLNR entered into an agreement to co-manage natural and cultural terrestrial resources, and that it should serve as an exemple for all of Hawaiʻi nei.

Although Waiʻoli’s taro farmers have long worked alongside one another, they had never formally organized until the 2018 flood. Their ability to adapt in response to changing circumstances is reflective of the wisdom and innovation of their ancestors. Moreover, in the face of global climate change, the Waiʻoli Valley Taro Hui exemplifies the type of collaborative effort necessary to care for our biocultural resources, perpetuate taro farming for future generations, and build resiliency in our communities in response to flooding and other extreme weather events. 

This project would not have been possible without the kōkua of many partners. Mahalo piha to: the Office of Hawaiian Affairs and Trustee Ahuna, research analyst N. Wahine Tong, and policy analyst Wayne Tanaka in particular; Kauaʻi County and Councilmember Mason Chock and Deputy County Engineer Lyle Tabata in particular; Professor Nick Mirkay at the William S. Richardson School of Law whose expertise was critical in securing a state nonprofit and federal tax exempt status for the Hui; the Board of Land and Natural Resources; the hard working staff at the Department of Land and Natural Resources; the Waipā Foundation; and the Waiʻoli Valley Taro Hui.  

Thanks to these collective efforts, we are hopeful that forever more “aia i Waiʻoli ke aloha ʻāina; ia ʻāina momona no ka hui kalo: there at Waiʻoli is aloha ʻāina, that fertile land for the hui kalo.”[1]   

[1] This lyric comes from “Aia i Waiʻoli ke Aloha ʻĀina,” by Uʻilani Tanigawa Lum, who was so inspired by the kalo farmers and her experiences in Waiʻoli that she composed this beautiful mele.