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PAMELA DICKSON

P.O. Box 696

Wailuku, Hawai'i 96793

(808) 264-5659

WATER USE PERMIT APPLICANT PRO SE

2D16 F_i=''' -J"

COMMISSION ON WATER RESOURCE MANAGEMENT

STATE OF HAWAI'I

) Case No. CCH-MAI5-01 )

Mi 9: 44

Surface Water Use Permit Applications, Integration of Appurtenant Rights and Amendments to the Interim Instream Flow Standards, Na Wai 'Eha Surface Water Management Areas ofWaihe'e, Waiehu, 'lao, & Waikapli Streams, Maui

) TESTIMONY OF PAMELA DICKSON ON ) BEHALF OF JUDITH Y AMANOUE; ) EXHIBITS "2338-RIYU-I" - "2338-RIYU­) 6" )

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TESTIMONY OF PAMELA DICKSON ON BEHALF OF JUDITH Y AMANOUE

1. This testimony is provided in support of Surface Water Use Permit Application

("SWUP A") No. 2338, filed with the Commission on Water Resource Management on April 30,

2009, for the parcels in Waikapli, Tax Map Key ("TMK") Nos. (2) 3-5-012:027 and (2) 3-5-

012:041, on which my son Dustin Vegas and I live. Dustin also cultivates lo'i kalo on this land.

Our landlord, Judith Yamanoue, owns these two parcels, which have been in her family for

generations. She gave me permission to submit this testimony on her behalf.

2. Our domestic water use is a protected public trust purpose.

3. Dustin and I are descendants of native Hawaiians who inhabited the Hawaiian

Islands prior to 1778. Pursuant to Article XII, Section 7 of the Hawai'i Constitution and Hawai'i

Revised Statutes section 174C-IOI, our 'ohana's use of stream water is a traditional and

customary cultural practice that is a public trust purpose.

4. Based on the information set forth below, we request recognition of appurtenant

rights for TMK Nos. (2) 3-5-012:027 and (2) 3-5-012:041 in the amount of300,OOO gallons per

day. We request a Surface Water Use Permit for the current reasonable-beneficial use for

TMK Nos. (2) 3-5-012:027 and (2) 3-5-012:041 of 150,600 gallons per day.

QUANTIFICATION OF APPURTENANT RIGHTS

5. TMK Nos. (2) 3-5-012:027 and (2) 3-5-012:41 are comprised of the following:

(I) portions of two Land Commission Awards ("LCAs"), 'apana I ofLCA No. 434 to Palakiko,

confirmed by Royal Patent ("RP") No. 495, and LCA No. 2199 to Pahoa, confirmed by RP No.

3129; (2) 'apana 3 of Government Grant No. 1673 to John Richardson; and (3) a po'alima.

We are attaching various Mahele documents that confirm water use on TMK Nos. (2) 3-5-

012:027 and :041 at the time of the Mahele.

6. Attached as "2338-RIYU-I" is a true and correct copy ofLCA No. 434 to

Palakiko, as well the native register supporting the award (both the original and the English

translation).

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7. Attached as "2338-RIYU-2" is a true and correct copy of LCA No. 2199 to

Pahoa, as well as the native testimony supporting the award (both the original and the English

translation).

8. Attached as "2338-RIYU-3" is a true and correct copy of Govemment Grant

1673 to John Richardson (original and excerpt translated in English).

9. Attached as "2338-RIYU-4" is a true and correct copy of a screen shot from the

Office of Hawaiian Affairs' Kipuka Database, which has been marked to show the location of

'iipana I in LCA No. 434 (in yellow), LCA No. 2199 (in red), the po'alima (in green), and the

Government Grant No. 1673 to John Richardson (in pink). This map has also been marked to

show the location ofTMK Nos. (2) 3-5-012:027 (in blue) and (2) 3-5-012:041 (in orange).

10. A true and correct copy of the County tax map for TMK Nos. 3-5-012:027 and (2)

3-5-012:041 is also attached as "2338-RIYU-5."

I 1. Attached as "2238-RIYU-6" are true and correct copies of photographs of stone

terraces on Mrs. Yamanoue's land, evidencing an extensive and complex lo'i kalo system.

12. The documents in 2338-R1YU-I, referring to LCA No. 434, confirm that 'iipana I,

in the 'iii of Kuaiwa, was cultivated in wetland taro: the native register notes there were "41 lo'i

kalo" in 'apana I, and the map on the LCA shows 'iipana I surrounded a lo'i po'alima and lo'i

pa'ahao. We understand that these phrases refer to tracts of land cultivated in lo'i kalo for ali'i.

13. The documents in 2338-RIYU-2, referring to LCA No. 2199, confirm that this

parcel was cultivated in wetland taro: the native testimony refers to this land as '''aina kalo" and

notes a po'alima within it.

14. The document in 2338-R1YU-3, referring to Government Grant No. 1673,

confirms that 'apana 3 contained "3 lo'i.'·

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15. TMK No. (2) 3-5-012:027 is 0.71 acre. The other parcel, TMK No. (2) 3-5-

012:041, is 0.29 acre. Thus. in total, these parcels amount to 1.0 acre.

16. Based on the Miihele documents in 2338-RIYU-I through 2338-RIYU-4, as well

as the topography of Mrs. Yamanoue's land ("2338-R1YU-6"), the quantification of the

appurtenant rights is the amount of water sufficient to grow kalo on 1.0 acre using traditional

methods.

17. It is our understanding that, on average, taking into account fallow lo'i and

uncultivated areas such as banks between lo'i, healthy wetland kalo requires between 100,000

and 300,000 gallons of water per acre per day ("gad"), and that areas with greater proportions of

lo'i in cultivation will require an amount closer to the upper end of this range.

18. Thus, in our best estimation, the water right appurtenant to TMK Nos. (2)

3-5-012:027 and (2) 3-5-012:041 is 300,000 gallons per day ("gpd") (1 .0 acre x 300,000 gad).

AMOUNT REQUESTED UNDER PERMIT

19. We currently divert water from the kuleana 'auwai that runs along Waiko Road

for a non-commercial garden and 10'i kalo. Water is diverted into the 'auwai from the stream

through a traditional po'owai (intake made with stones) mauka of Ms. Shimizu' s parcel. Mrs.

Yamanoue's sister-in-law Katherine Riyu's property (TMK No. (2) 3-5-012:028) is directly

makai of Ms. Shimizu ' s. The water flows to Mrs. Riyu' s property in pipes and ditches. Since

Mrs. Yamanoue's property is next to Mrs. Riyu' s,thc water flows into Mrs. Yamanoue' s

property from Mrs. Riyu' s intake via PVC pipes.

20. Dustin is currently cultivating lo' i kalo on both Mrs. Yamanoue' s property and

Mrs. Riyu's property. There are II lo'i kalo on about half of Mrs. Yamanoue's property, or

approximately 0.5 acre. Applying the kalo water duty noted above, we are requesting a permit

for 150,000 gpd (0.5 acre x 300,000 gad) to irrigate these lo'i kalo.

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21. We also use some of the 'auwai water to irrigate our non-commercial garden of

bananas, carrots, lettuce, daikon, onions, and citrus, and to water the lawn. We are requesting a

permit for the amount of water necessary for these domestic uses as well. We believe that the

2002 State ofHawai'i Water System Standard for Maui County of600 gpd per single family

home is sufficient for these existing domestic water uses.

22. In total, we request a permit for 150,600 gpd.

Reasonable-Beneficial Analysis

23. Our existing use is still "reasonable-beneficial," defined as: "the use of water in

such a quantity as is necessary for economic and efficient utilization, for a purpose, and in a

manner which is both reasonable and consistent with the state and county land use plans and

public interest." Hawai'i Revised Statutes § 174C-3.

24. The quantity we are requesting is necessary for the economic and efficient

irrigation of the lo'i kalo and our home garden, which includes bananas, carrots, lettuce, daikon,

onions, and citrus for consumption by us, our 'ohana, and neighbors. Our use of the stream

water is economic and efficient, as we use only the amount needed to irrigate the lo'i kalo and

our garden and lawn, and we implement measures to minimize water loss, including using

garden hoses, which reduce evaporation and leakage.

25. Our use of stream water to irrigate our lo'i kalo and garden is also consistent with

the state and county land use plans and the public interest. Mrs. Yamanoue's land is classified

by the State as urban, and zoned by the County as agricultural. Our water use on Mrs.

Yamanoue's land for lo'i and domestic cultivation is in the public interest and fulfills public trust

purposes.

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Alternatives Analysis

26. Because Mrs. Yamanoue's land has appurtenant rights to stream water in the

nature of an easement that was conveyed at the time of the Miihele, and because, by using stream

water, we are exercising our right as Native Hawaiians to cultivate kalo in the traditional manner,

we are not required to provide an alternatives analysis to show that we have no practicable

alternative source of water. Our appurtenant and traditional and customary rights are for stream

water, not for water from any other source, and our exercise of these rights enjoy maximum

protection and first priority under the law. Nonetheless, the Alternatives Analysis set forth in

Mrs. Yamanoue's SWUPA remains applicable, true, and correct.

27. Mrs. Yamanoue's family and my family have always used a reasonable amount of

'auwai water to maintain a non-commercial garden of fruits and flowers, along with other

community members along this traditional 'auwai. Other alternatives, such as municipal water,

reclaimed wastewater, water from other ditch systems, desalinized water, and groundwater, are

not practicable alternatives to the 'auwai water from Waikapii Stream. Requiring us to pay for

these alternatives instead of diverting the small amount of stream water via the 'auwai that runs

alongside Mrs. Yamanoue's land would impose an unfair and impracticable cost on us and our

families, given that we are small, domestic water users who have always used the 'auwai that

runs alongside Mrs. Yamanoue's land to water a home garden.

SUMMARY

28. In sum: (I) our domestic water use is a protected public trust purpose; (2) our

' ohana' s traditional and customary right to grow kalo is a protected public trust purpose; (3) our

exercise of appurtenant rights is a protected public trust purpose, and we are entitled to 300,000

gallons per day; (4) at this time, we request a permit for our current and existing reasonable-

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o beneficial uses on the properly of 150,600 gallons per day, and this amount will be used to

irrigale lo'i kalo and our non-commercial garden and lawn, which are reasonable-beneficial uses

of stream water, for which there is no praclicable allemalive.

I, PAMELA DICKSON, do declare under penalty oflaw thatlhe foregoin&: is true

and correcl.

Dated: Waikapii, Hawai'i, J'Ihua~ 2 "6, ).0/ (P

G~~nv PAMELA DICKSON WATER USE PERMIT APPLICANT PRO SE

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2338-RIYU-1-P.1

2338-RIYU-1-P.2

Native Register (Palakiko – LCA 434) Translation

Helu 434 – Palakiko

Aloha ʻolua o nā Luna Hoʻonā. Ke haʻi aku nei wau i koʻu kuleana ʻāina, aia ma Waikapū

ma loko o ka ʻāina i kapa ʻia ʻo Kuaiwa, 41 loʻi kalo. Naʻu ponoʻī i hana ka nui o kēia mau loʻi me

koʻu waiwai ponoʻī.

Penei ka waiho ʻana, hema, ke kahawai, komohana, ka ʻāina o Atoni, hikina, ʻāina o Pahoa

(Pāhoa) a me ke kula, ʻākau, ke kula. Noʻu nō ke kula a pau o kēia ʻāina ʻo Kuaiwa, koe naʻe

kekahi wahi kula ʻuʻuku no kekahi kanaka ʻē aʻe. Na kuʻu makuahōnōwai, na Hoohei (Hoʻohei) i

hāʻawi mai iaʻu i kēia ʻāina kalo a me kēia kula o ia no ka mea nona ka ʻāina. ʻEhā makahiki ka

waiho ʻana ʻo ia ʻāina iaʻu.

Palakiko

Wailuku, Pepeluali 11th 1847

Number 434 – Palakiko

Greetings to the Land Commissioners. I am testifying for my land which is situated at

Waikapū in a land called Kuaiwa with 41 loʻi kalo. It is I only who work the majority of these loʻi

which are in my possession.

The boundaries are as follows, south by the stream (Waikapū), north by the land of Atoni

(Anthony Catalena), east by the land of Pahoa and the kula lands, north by the kula lands. All of

the kula in Kuaiwa are mine except a small piece which is owned by someone else. It was my

parent-in-laws that Hoohei (Hoʻohei) gave me this kalo land and kula land because this was his

land. Four years ago that land was left for me.

Palakiko

Wailuku, February 11th 1847

2338-RIYU-1-P.3

2338-RIYU-2-P.1

2338-RIYU-2-P.2

2338-RIYU-2-P.3

Native Testimony (Pahoa – LCA 2199) Translation

2199 – Pahoa (Pāhoa)

Eeka (ʻEʻeka) Hoʻohiki ̒ ia. Ua ̒ ike au 2 ̒ āpana ma ka ̒ ili o Kuaiwa (Kuaʻiwa) ma Waikapū

kekahi ʻāpana. A ma ke ahupuaʻa ʻo Waiohuli, Kula kekahi ʻāpana.

No Kapu mai kona ʻāina ma Waikapū i ka makahiki 1837. No kāna wahine mai ka ʻāpana

ma Kula i ka makahiki 1846. He ʻāina kahiko loa nō naʻe no kāna wahine. ʻAʻole mea keʻakeʻa. 1

Poʻalima ma ka ʻāina kalo ma Waikapū

ʻĀpana 1 – Penei nā palena o ka ʻāina kalo ma Waikapū. Mauka, ʻāina o Palakiko, komohana pēlā

nō, kula ʻāina o Mumuku, makai ʻāina o Hika.

2199 – Pahoa (Pāhoa)

Eeka (ʻEʻeka) testified that he knew of 2 parcels of land, one in the subdivision of Kuaiwa

(Kuaʻiwa) at Waikapū and another parcel in the land division of Waiohuli, Kula.

His land in Waikapū was from Kapu in 1837. The second parcel of land in Kula was from

his wife in 1846. The land from his wife is very old. No one has disputed his claim. There is 1

Poʻalima in the taro lands of Waikapū.

Parcel 1 – The boundaries are as follows for the kalo land in Waikapū. Towards the mountainous

region is Palakiko’s land, west is the same, kula by Mumuku’s land and towards the ocean by

Hika’s land.

2338-RIYU-2-P.4

2338-RIYU-3-P.1

2338-RIYU-3-P.2

Government Grant (John Richardson – Grant 1673) Translation (Portion)

ʻĀpana 3

3 Loʻi

E hoʻomaka ma ke kihi ʻākau e pili ana me kō Pahoa (Pāhoa) a e holo

Hema 38° Komohana 3 kaula ma kō Frank Sylva

Hema 39° Hikina 1.58 kaula ma ke kahawai (Waikapū)

ʻĀkau 37° Hikina 3.50 kaula ma kō Nahau (Nāhau)

ʻĀkau 57 ½° Komohana 1.51 kaula ma kō Pahoa (Pāhoa) a hiki ma ke kihi mua

Section 3

3 Taro Patches

Commence at the north corner adjacent with Pahoa’s (Pāhoa) land and proceed

South 38° West 3 chains at Frank Silva’s land

South 39° East 1.58 chains at the stream (Waikapū)

North 37° East 3.50 chains at Nahau’s (Nāhau) land

North 57 1/2° West 1.51 chains at Pahoa’s (Pāhoa) land until the first corner

2338-RIYU-3-P.3

2338-RIYU-4-P.1

2338-RIYU-5-P.1

2338-RIYU-6-P.1

2338-RIYU-6-P.2

PAMELA DICKSON

P.O. Box 696

Wailuku, Hawai'i 96793

(808) 264-5659

WATER USE PERMIT APPLICANT PRO SE

COMMISSION ON WATER RESOURCE MANAGEMENT

STATE OF HAWAI'I

Surface Water Use Pennit Applications, Integration of Appurtenant Rights and Amendments to the Interim Instream Flow Standards, Nli Wai 'Ehli Surface Water Management Areas ofWaihe'e, Waiehu, 'lao and WaikapU Streams, Maui

) Case No. CCH-MAI5-01 ) ) WITNESS LIST ) ) ) )

------------------------- ) WITNESS LIST

PARTY; M. RIYU & J. YAMANOUE/PAMELA DICKSON

NAMEI ORGANIZA TIONI SUBJECf

POSITION MATTER

EXHIBIT(S) TO BE

INTRODUCED BY WITNESS

Pamela Dickson Need for and use ofNli Wai 'Ehli water 2338-RlYU-1 to-6

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P.O. Box 696

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Wailuku, Hawai'i 96793

(808) 264-5659

WATER USE PERMIT APPLICANT PRO SE

COMMISSION ON WATER RESOURCE MANAGEMENT

STATE OF HAWAI'I

Surface Water Use Permit Applications, Integration of Appurtenant Rights and Amendments to the Interim Instream Flow Standards, Na Wai 'Eha Surface Water Management Areas of Waihe'e, Waiehu, 'Tao and Waikapu Streams, Maui

) CaseNo.CCH-MAI5-01 ) ) EXHIBIT LIST ) ) ) )

------------------------ ) EXHIBIT LIST

PARTY: M. RIYU & J. YAMANOUE/PAMELA DICKSON

EXHIBIT NUMBER DESCRIPTION REFERENCES

2338-R1YU-1 LCA No. 434, Native Register, Testimony of Pamela Native Register Translation Dickson

2338-R1YU-2 LCA No. 2199, Native Testimony, Testimony of Pamela Native Testimony Translation Dickson

2338-RIYU-3 Government Grant 1673 to John Testimony of Pamela Richardson Dickson

2338-RIYU-4 Screen shot from the Office of Testimony of Pamela Hawaiian Affairs' KTpuka Dickson Database, showing the location of LCA No. 434, LCA No. 2199, the po'alima, Government Grant No. 1673, TMK Nos. (2) 3-5-012:027 and (2) 3-5-012:041

2338-RIYU-5 County tax map for TMK Nos. 3- Testimony of Pamela 5-012:027 and (2 ) 3-5-012:041 Dickson

2338-RIYU-6 Photographs of stone terraces on Testimony of Pamela Mrs. Yamanoue's land Dickson

REC'D INTO

EVIDENCE

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