On Wednesday, at a contested case hearing, Isaac Moriwake of Earthjustice cross-examined Wailuku Water Co. President Avery Chumbley about ditch flow records, The Maui News reported.

Moriwake was particularly interested in the period after 1988, when Wailuku Agribusiness, the predecessor to Wailuku Water, quit growing cane. In the view of Hui O Na Wai, for which Earthjustice is serving as attorney, that should have resulted in water no longer needed for irrigation.

Under the provisions of the State Water Code and a Hawaii Supreme Court decision, historic plantation uses that are abandoned lose whatever privileges they had. The Water Code also mandates restoration of stream flows to provide for needs of stream fauna and traditional users.

But to determine how much irrigation water was abandoned, Moriwake wanted to know how much was in the ditches. Chumbley said the records are missing for 1987-97.

He said he did not know what happened to them but that perhaps they were misplaced when Wailuku Agribusiness' offices were moved from Lower Main Street to Waiko Road.

Moriwake was surprised. Chumbley said there are no records that he knows of from before 1962, either.

"The company goes back to 1862; we're missing records for a hundred years," said Chumbley.

Many records never existed. The petitioners, who want the water commission to establish permanent in-stream flow standards for Iao, Waihee, Waiehu and Waikapu streams, wanted to know how much water is collected from eight tunnels driven in the mountainside.

"If I knew, I would give them to you," said Chumbley. But no one ever felt the need to install gauges at the locations, which are, with one exception, far back in rugged country.

For plantation purposes, the important number was how much water was in the ditches, whether from tunnels or from intakes within the streams. Which source contributed how much water wasn't of interest.

It is now, because the commission will have to make complex decisions about how much water to return to the streams, and how much of the harvested water to allocate to farming, kuleana holders, the Department of Water Supply or lot owners within the system.

Kuleana users present another records problem. Small ditches (auwai) branch off the large plantation ditches for use by kuleana owners.

Earlier this week, Chumbley had said his company doesn't know exactly how many kuleana ditches exist.

Hui O Na Wai Eha has been pursuing a list that it believes Wailuku Sugar Co. had maintained. This list supposedly names kuleana water-rights holders and the amounts of water they are entitled to receive.

Chumbley failed to provide the list when subpoenaed. He said Wednesday that is because it does not exist.

Moriwake was surprised. Doesn't Wailuku Water check the rights of kuleana users that it delivers water to, he asked.

Chumbley said it doesn't, and he wouldn't know how to. The plantation delivers water to gates at kuleana ditches based on history – it keeps doing what it has always done.

This is not uncontested. Some claimants to kuleana water have asserted that Wailuku Water has changed the diversions, although the company denies it.

Chumbley says he once saw a company document that, as he recalls it, listed a number of names, probably of people on kuleana ditches. Each name was matched with a telephone number, and since these were five-digit numbers, he guesses the list was from the early 1950s.

He said he does not know where the list is now and does not believe it ever specified what kuleana water rights existed.

He said the word kuleana was used loosely on the plantation to refer to a wide variety of land titles, such as royal grants, patents and kuleana awards. The latter were small plots that were granted to the Hawaiians who farmed them under the Kuleana Act of 1850.

Chumbley said the plantation has no records to indicate what kinds of rights went with which grants.

At this point, hearings officer Lawrence Miike interrupted to say that kuleana land rights did not have to imply water rights.

"Kuleana lands are separate from kuleana land water rights, which is a court-created right," he said.

The hearings before Miike, which began in December, was recessed Wednesday to resume on Jan. 24 and 25. Next week's sessions are scheduled from 9 a.m. to 4:30 p.m. at the Maui Community College's Laulima Building, Room 225.

Some kuleana claimants testified in December, but another four or five may testify next week.

If the hearings are not concluded after the session on Jan. 25, they may be extended again to Jan. 29-31.