| Hawai'i's
Public Trust Doctrine
HAWAII’S THOUSAND FRIENDS welcomes you to an in-depth discussion of the most far-reaching and influential land and water use court decision in the last forty years. These web pages contain a summary of Hawaii’s Public Trust doctrine, the court decision, scholarly papers, attorney opinions, and the transcript (with photos) of HTF’s highly successful Symposium on “Managing Hawaii’s Public Trust Doctrine.” In strong language, the Hawai‘i Supreme Court described the public trust doctrine as “the right of the people to have the waters protected for their use [which] demands adequate provision for traditional and customary Hawaiian rights, wildlife, maintenance of ecological balance and scenic beauty, and the preservation and enhancement of the waters …” “For the benefit of present and future generations, the State
and its
political subdivisions shall conserve and protect Hawaii’s natural
beauty
and all natural resources, including land, water, air, minerals and
energy
sources, and shall promote the development and utilization of these
resources
in a manner consistent with their conservation and in furtherance of
the
self-sufficiency of the State. All public natural resources are
held
in trust by the State for the benefit of the people.”
Waiahole Case Links Supreme
Court Waiahole Ditch Water Contested Case Decision
Other Hawai'i Links
Managing
the Public Trust in Hawai'i: Key Questions Remain Unanswered
"By the law of nature, these
things are
common to mankind: the air, running water, the sea, and consequently
the
shores of the sea..."
The
Public Trust Doctrine is: University of Toledo College of Law
"...So neither can the king intrude upon the common property, thus understood, and appropriate it to himself or the fiscal purposes of the nation. [T]he enjoyment of it is a natural right which cannot be infringed or taken away, unless by arbitrary power, and that, in theory at least, [can]not exist in a free government..." - Arnold v. Mundy, 6 N.J.L. 1, 87-88 (1821) The Public Trust Doctrine has a very long and noble pedigree. It has been handed down with little change from the Roman Empire, via the English Common Law, to become part of present American legal thought. The preeminent scholar on the subject, Joseph L. Sax, describes the Public Trust Doctrine most eloquently in this excerpt from his book entitled Defending the Environment: A Strategy For Citizen Action, 163-165 (1970).
The scattered evidence, taken together, suggests that the idea of a
public
trusteeship rest upon three related principles. First, that certain
interests—like
the air and the sea—have such importance to the citizenry as a whole
that
it would be unwise to make them the subject of private ownership.
Second,
that they partake so much of the bounty of nature, rather than that of
individual enterprise, that they should be made freely available to the
entire citizenry without regard to economic status. And, finally, that
it is a principal purpose of government to promote the interests of the
general public rather than to redistribute public goods from broad
public
uses to restricted private benefit...
Public Trust Doctrine Cases |
STATE CONSTITUTION:Provisions relating to water
THE CONSTITUTION OF THE STATE OF HAWAII As Amended and in Force January 1, 2000 CONSERVATION AND DEVELOPMENT OF RESOURCES Section 1. For the benefit of present and future
generations, the State and its political subdivisions shall
conserve and protect Hawaii's natural beauty and all natural
resources, including land, water, air, minerals and energy
sources, and shall promote the development and utilization of
these resources in a manner consistent with their conservation
and in furtherance of the self-sufficiency of the State. All public
natural resources are held in trust by the State
for the benefit of the people. [Add Const Con 1978 and election
Nov 7, 1978] MANAGEMENT AND DISPOSITION OF NATURAL RESOURCES Section 2. The legislature shall vest in one or more executive boards or commissions powers for the management of natural resources owned or controlled by the State, and such powers of disposition thereof as may be provided by law; but land set aside for public use, other than for a reserve for conservation purposes, need not be placed under the jurisdiction of such a board or commission The mandatory provisions of this section shall not apply to the natural resources owned by or under the control of a political subdivision or a department or agency thereof. [Ren and am Const Con 1978 and election Nov 7, 1978] Section 3. The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action. [Add Const Con 1978 and election Nov 7, 1978] Section 4. The State shall have the power to acquire interests in real property to control future growth, development and land use within the State. The exercise of such power is deemed to be for a public use and purpose. [Add Const Con 1978 and election Nov 7, 1978]
Section 5. The legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws, except in respect to transfers to or for the use of the State, or a political subdivision, or any department or agency thereof. [Ren and am Const Con 1978 and election Nov 7, 1978] Section 6. The State shall have the power to manage and control the marine, seabed and other resources located within the boundaries of the State, including the archipelagic waters of the State, and reserves to itself all such rights outside state boundaries not specifically limited by federal or international law All fisheries in the sea waters of the State not included in any fish pond, artificial enclosure or state-licensed mariculture operation shall be free to the public, subject to vested rights and the right of the State to regulate the same; provided that mariculture operations shall be established under guidelines enacted by the legislature, which shall protect the public's use and enjoyment of the reefs. The State may condemn such vested rights for public use. [Ren and am Const Con 1978 and election Nov 7, 1978] Section 7. The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources. [Add Const Con 1978 and election Nov 7, 1978] Section 8. No nuclear fission power plant shall be constructed or radioactive material disposed of in the State without the prior approval by a two-thirds vote in each house of the legislature. [Add Const Con 1978 and election Nov 7, 1978] Section 9. Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law. [Add Const Con 1978 and election Nov 7, 1978] Section 10. The public lands shall be used for the development of farm and home ownership on as widespread a basis as possible, in accordance with procedures and limitations prescribed by law. Section [11]. The State of Hawaii asserts and reserves its
rights and interest in its exclusive economic zone for the
purpose of exploring, exploiting, conserving and managing natural
resources, both living and nonliving, of the seabed and subsoil,
and superadjacent waters. [Add SB 2021 (1988) and election Nov 8,
1988]
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