Miike next presents a chapter devoted to "Hawaiian Mythology and Social Structure," quoting liberally from standard authorities such as Martha Beckwith, Abraham Fornander and the Handys. This seems to set the stage for the last chapter, "Water and the Future," concluding: "The historical development of the law on fresh water in Hawai'i is somewhat analogous to the mo'olelo (Hawaiian legends), with the emphasis on the intention instead of on the facts."

In between, Miike provides chapters on "Land and Water in the Kingdom of Hawai'i," "Traditional and Customary Rights on Private Property," "Water Law in Hawai'i" and "The Waiahole Ditch Controversy."

The first three of these contain useful information about the development of water law in Hawai'i, especially the consequences of court decisions relating to the McBryde case and the so-called taking issue.

Miike fails, however, to state the obvious — that water law in Hawai'i is "complex and contradictory" because it includes at once traditional Hawaiian use of stream water, the doctrine of riparian rights and the doctrine of prior appropriation. The first two call for sharing the resource; the third provides for allocations on a first-come, first-served basis.

These legal contradictions are made even more slippery by the state Water Code, cobbled together in 1987, which contains specific provisions that are more politically expedient than principled.

The contradiction at the heart of the code is this: Regulators must "liberally" interpret the code to "obtain maximum beneficial use," while making only "adequate provision" for the protection of, among other things, traditional and customary Hawaiian rights and the protection of fish and wildlife.

Regulators also are required to "liberally" interpret the code to "protect and improve the waters of the state" and "liberally" interpret and apply it "in a manner which conforms with intentions and plans of the counties in terms of land use planning."

The long chapter on "The Waiahole Ditch Controversy" seems to have been inspired by Miike's desire to have the last word in a quarrel with the Supreme Court. As state health director, Miike was one of four members of the Commission on Water Resource Management who participated in the lengthy Waiahole Ditch Combined Contest Case, which decided how 27 million gallons a day of ditch water would be shared between Leeward water-use applicants and Windward streams.

The hearing began in early 1995, and the commission issued its decision and order Dec. 24, 1997. The commission allocated 14.03 mgd to Leeward agricultural and nonagricultural interests and required that 12.97 mgd be released into Windward streams.

The state Supreme Court disagreed with various aspects of the decision and asked the commission to reconsider some of its conclusions.

On Dec. 28, 2001, the commission issued its second decision and order, the merits of which Miike strenuously argues. His account, based on personal participation in the hearing, attempts to justify the commission's conclusions and discredit the court's review. He maintains that the court, troubled by the governor and attorney general's well- publicized meddling, brought "a jaundiced view to the analysis of the commission's actions."

The commission expanded on its reasoning, but the court was not satisfied. A court opinion issued June 21 remains skeptical of the commission's work. Contradictions in the State Water Code allow the commission, if not kept under scrutiny, to interpret the law willy-nilly to favor some interests over others.

Two of the commission's six members disqualified themselves from participating in the hearing. A third, the chairman, should have done the same. One inadvertent intention of Miike's mo'olelo might be to show that conflicts of interest do not lead to effective decision-making.

The court rebuked the commission on its handling of, among other things, the allocation of water to Windward streams and water wasted by a leaky delivery system.

The commission allocated water to the streams based on what it called the "half approach." According to one Hawaiian historian, traditional practice required that no diversions be allowed to take more than half the water in a stream.

There are many problems with this approach, which the court correctly rebuked as "erroneous," reminding the commission that 17 years had passed since the code was enacted and that the commission still had not established permanent instream flow standards.

The commission issued a water-use permit for 2.0 mgd to the Agribusiness Development Corp. for system losses. The court questioned, however, whether the corporation's use

of the water met the permitting requirements of the code. By not plugging leaks and preventing seepage, it appeared to be wasting water.

The June 21 opinion also requires the commission to re-examine the issuance of water-use permits for agriculture on Campbell Estate and Robinson Estate lands. However, Windward O'ahu streams and the critters in them have a claim on water, too.