Real Estate & Property Law

Hawaii Agriculture at Risk: Water Law and Land Use

By Robert Thomas (inversecondemnation.com)

In theory, Hawaii reveres agriculture: pre-western contact Hawaii was primarily an agrarian society, many of us trace our family's history to the post-contact "plantation days," and today, even environmental groups proclaim they support farmers and ranchers and want to "keep the country country."  Who among us of a certain age didn't work in the cannery or the fields during summer break, or doesn't miss Arakawa's? The state Constitution even, in article XI, section 3, expressly protects farming and ranching by commanding the State to ?conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands.?

But often the theory of agriculture runs headlong into the reality. For example, agricultural uses may be prohibited on ag land, an interisland ferry by which farmers can transport their goods to market is shut down by the courts due to environmental worries, and most critically, Hawaii's unique and byzantine maze of water law, which seems to give lesser standing to ag uses than other uses, threatens the water supply. In these and other situations, farmers and ranchers turned to the legislature, which enacted, for example, the Hawaii Right to Farm Act, which prohibits most nuisance lawsuits against "farm operations," and Act 5, which voids new private deed covenants restricting agricultural uses of ag land.

Thanks to Hawaii House Blog (the blog of the majority in the Hawaii House of Representatives) for posting "The Rodney Dangerfield of the Economy" summarizing a recent joint meeting of the House Committees on Agriculture and Water and Land & Ocean Resources where local farmers and ranchers briefed lawmakers on the state of Hawaii agriculture, the troubling times they face, and the need for balance in the law. [Disclosure: I am general counsel for Hawaii Farm Bureau Federation, and represent HFBF in the East Maui water case mentioned in the post].

One place to start: clarify that ag uses of land and water have constitutional status, and should be treated at least on par with other uses, not (as they currently seem to be) as mere commercial uses, undeserving of equal consideration. 

Full post as published by inversecondemnation on December 06, 2008 (boomark / email).