Nominee’s record on Hawaiian issues raises concern

By Sterling Wong

Native Hawaiian history and rights took center stage during Senate

Judiciary Committee confirmation hearings for U.S. Supreme Court nominee Brett Kavanaugh.

Native Hawaiians raised concerns over Kavanaugh’s record prior to his appointment as a federal appeals court judge in 2006. In private practice, Kavanaugh co-wrote a legal brief to the U.S. Supreme Court for the Rice v. Cayetano case in 1999. His brief argued that OHA’s Native Hawaiian-only elections violated the 14th and 15th amendments of the U.S. Constitution. He then wrote a provocative op-ed for the Wall Street Journal in which he called OHA “a racial-spoils system” and Hawai‘i’s “system of racial separatism.”

On Sept. 13, OHA Chair Colette Machado released the following statement:

“The Office of Hawaiian Affairs (OHA) joins U.S Senator Mazie Hirono in calling the nation’s attention to Judge Kavanaugh’s extreme positions on Native peoples in general and Native Hawaiians in particular. The record now reflects that Judge Kavanaugh holds long-standing views about Native Hawaiians that mirror positions taken by organizations whose goals include stripping Native peoples and nations of their dignity as sovereign entities within the United States, contrary to settled United States policies towards Native Americans. Judge Kavanaugh has demonstrated a low level of knowledge about the history of Native Hawaiians and their pre-existing sovereignty well before western contact. His nomination is alarming to all American Indians, Alaskan Natives and Native Hawaiians.” At the time of printing, Judge Kavanaugh’s nomination was still being considered by the Senate Judiciary Committee, but may be voted on by the full Senate as soon as the last week of September. •

Restoration of Wai‘ale‘ale water on Kaua‘i heads to litigation

Submitted by Earthjustice

LIHUE, HI – On Aug. 21, the Hawai‘i Commission on Water Resource Management (“Commission”) considered a historic staff proposal to restore water to Wai‘ale‘ale and Waikoko Streams on the island of Kaua‘i after nearly 150 years of complete diversion. The two streams flow directly from Mount Wai‘ale‘ale, a place of paramount sacredness in Hawaiian culture. Although the staff proposal suggested restoring less than one-third of median stream flows, the Commission was entertaining recommendations to increase the proposed restoration when Kaua‘i Island Utility Cooperative (“KIUC”), which currently diverts the streams to run two small plantation-era hydro plants, requested a contested case hearing. The request initiated legal action and ended the Commission’s deliberations over restoring stream flows.

The dispute over appropriate instream flow levels will now be resolved in an adversarial trial-like proceeding before the agency. Kaua‘i community group Hui Ho‘opulapula Nä Wai o Puna, represented by non-profit environmental law firm Earthjustice, submitted its own request for a contested case hearing after Commission deliberations halted. The Department of Hawaiian Homelands also requested to participate.

“Yesterday’s outcome was unfortunate, but consistent with KIUC’s history of disrespecting public trust water resources,” said Adam Asquith, a taro farmer and member of Hui Ho‘opulapula Nä Wai o Puna. “The Commission was doing an excellent job of working towards a more just and balanced mahele (division) of stream waters. When it became apparent to KIUC that it might have to share more stream water with the community, it shut down the entire process.”

The interim instream flow levels (“IIFS”) under consideration at yesterday’s meeting are the primary legal mechanism by which the Commission fulfills its duty to protect stream resources by setting minimum amounts of water that must remain flowing in a stream at all times. An estimated 200 community members attended the Aug. 21 meeting on a workday, with a standing-room-only crowd filling Kaua‘i Community College’s Fine Arts Auditorium when the hearing opened.

“The significance of restoring water to this area cannot be overstated or translated easily into a number,” said Debbie Lee-Jackson, a Native Hawaiian cultural practitioner, and member of Hui Ho‘opulapula Nä Wai o Puna. “It’s something you feel in your na‘au when you go to this place; these waters are sacred. I remain hopeful that the Commission will be responsive to community requests to restore flow and justice to these streams.”

KIUC argued at the meeting in favor of continued diversions for its hydro plants, which account for only around one percent of its energy uses. But it was hard-pressed to answer questions from Commissioners asking it to justify its actual water and hydropower needs. Publicly available information shows that the outdated Waihi plants are not integral to KIUC’s generation needs, and are only becoming more obsolete with advancements in renewable energy resources.

“The Commission’s deliberations show that it takes seriously its fiduciary responsibility to protect the outstanding cultural significance and sacredness of these two streams,” said Earthjustice attorney Leinä‘ala Ley. “While we are disappointed that KIUC has chosen an adversarial path at this time, we remain both hopeful that KIUC will seek a more cooperative and culturally responsible solution, and committed to ensuring an outcome that honors the principle that Hawai‘i’s streams are a public trust resource and legacy for all.” •