Establishes provision for citizen suits. (SB843 SD1 HD2 English, Espero) GOOD   Committee Report

Authorizes citizen suits against state and county agencies for violations of Habitat Conservation Plans (HCP) and Safe Harbor Agreements (SHA) and for violations of any provision of HRS Chapter 195D (Conservation of Aquatic Life, Wildlife & Land Plants) or of its implementing rules.

Provides that if BLNR votes to enter into a HCP or SHA for which the majority of the endangered species recovery committee recommended disapproval, the board may not enter unto the plan or agreement unless plan is approved by a 2/3 majority vote of both houses of the legislature.

Requires SHA shall be approved if the agreement proposes to create, restore, maintain, or improve significant amounts of habitat for a minimum of 5 years for private lands and a minimum of 15 years for public lands.

April 28, 2003 approved by governor (Act 35 2003)

Temporary invasive species council. (SB 1505 SD1 HD2 CD1 Kokubun, English, Hooser- Kauai) GOOD  Committee Report

Establishes temporary invasive species council to provide policy level direction, coordination & planning among state departments, federal agencies, & international and local initiatives to control & eradicate harmful invasive species & prevention of introduction of other invasive species.

Requires council to create and implement a plan that includes prevention, early detection, rapid response, control, enforcement and education with respect to invasive species and create a mission statement articulating the State's position against invasive species.

Requires annual report to the legislature and governor.

Economic diversification. (HB 1579 HD1 SD2 CD1 Schatz (Oahu) and 10 others)   Committee Report

Requires DBEDT to create a vision, develop and implement plans, programs and initiatives facilitate the diversification of State's economy to be updated every 3 years.

Explore ways to remove redundancies in delivery of public services relating to economic diversification, including consolidating agencies to eliminate duplicative or outmoded functions and activities, to increase efficiency in delivery of services, enhance productivity, eliminate unnecessary regulation.

Food recycling (SB 319 SD2 HD1 Kim)   Committee Report

Establishes provisions relating to food waste recycling.

Authorizes each county to assess an annual food waste-recycling surcharge.

Provides that a county with a population of 500,000 (Oahu) may request an exemption, based on a determination by DOH that that county does not have the recycling capacity to meet requirements.

Requires DOH to review all county exemptions annually and determine recycling capacity.

Mediation for contested cases. (SB 1075 SD1 HD1 Senator Kokubun Big Island)   Committee Report

Provides that an agency may encourage parties to a contested case hearing to participate in mediation prior to the hearing.

May suspend all further proceedings in the contested case pending outcome of mediation.

Mediation shall not exceed 30 days from date case is referred to mediation.

Costs shall be borne equally by the parties unless otherwise agreed, ordered by agency or provided by law. * Emphasis added. If this becomes law it has the potential to be extremely expensive for citizens organizations.

New rulemaking procedure. (HB 285 HD1 SD2 Rep. Say and 33 other representatives.)   Committee Report

Each agency shall develop and use flexible approaches in adopting, amending, or repealing rules that meet the needs of the agency.

In adopting, amending, or repealing rules, the head of the agency shall ensure that the rules are developed in concert with the spirit and intent of the law.

Provides that after a public hearing has been held on any rules, the proposed rule shall not be adopted until the head of the agency concurs that the proposed rule has a rational nexus to the law and conforms to the letter, spirit, and intent of the law.

Any interested party may appeal the adoption of a rule by filing for regulatory review.

Establishes automatic repeal of administrative rules.

Amends historic sites provision. (HB 1285 HD1 SD1 CD1 Rep. Hale- Big Island) GOOD  Committee Report

Makes it unlawful to damage historic properties or burial sites in the course of land development or land alteration activities when the necessary approvals have not been sought as required by the historic preservation law.

Requires the stopping of work in the immediate area of any discovery of a burial site.

Establishes a procedure to enforce the historic preservation law through the service of written notices to alleged violators that outlines steps to be taken to correct the violations.

Establishes civil penalties and identifies the conditions under which administrative penalties may be imposed.

Provides that it shall be unlawful for a person to remove, excavate, injure, destroy, or alter any historic property or burial site during the course of land development or land alteration activities, which required an approval, without obtaining the required approval.

Establishes Kona wilderness area. (HB 1509 HD2 SD2 CD1 Rep Herkes (Big Island), KahoÔohalahala (Maui County), Kahikina (Oahu), Morita, Chang (Big Island), Hamakawa (Big Island), Evans, Hale, Kawakami (Kauai) GOOD   Committee Report

Includes Honomalino, Okoe, KapuÔa, Kaulanamauna and Manuka shall be included in wilderness area.

Provides that area is to be used for preservation of visual, cultural, and historic aspects as well as archeological sites, native plants and animals, to provide wilderness area with minimal manmade structures, and to permit limited access for recreational purposes.

No new homes or other structures shall be constructed within 1000 feet of the shoreline of the south Kona wilderness area.

All lands in wilderness area shall be classified as conservation.

Act to be repealed on 12/31/06 if the exchange of lands is not consummated prior to that date.

Kohala historical sites. (HB 1613 HD2 SD1 CD1 Evans, Say) GOOD   Committee Report

Requires DLNR to renew its efforts to acquire through land exchange the lands adjacent to the Kohala historical sites state monument to preserve, protect and provide public access to these historical sites.

Authorizes MoÔokini Luakini Corp. to protect and care for MoÔokini heiau site.

Limited liability of owner. (SB 552 SD2 HD2 Inouye, English-Maui County) GOOD   Committee Report

Establishes provision relating to landowners' liability for access to control invasive species.

Defines invasive species to mean any plant, plant pest, noxious weed, microorganism, biological control organism, or animal that can directly or indirectly injury or cause damage to the environment or ag, horticulture, aquaculture, animal or public health, native species, natural resources, irrigation or navigation.

Disposition of public lands. (SB 1403 HD1 CD1 Bunda) BAD  Committee Report

Defines maritime related as a purpose or activity that requires and is directly related to loading, off loading, storage, or distribution of goods, & services of maritime industry. *(emphasis added)

Land exchange. (HB 83 HD1 Reps. Kanoho (Kauai), Bukoski (Maui), Thielen (Oahu)  Committee Report

Accreted beach lands are public lands. (HB 192 HD1 SD1 CD1 Reps. Morita (Kauai), Thielen, Bukoski, Kanoho, Evans (Oahu), Waters (Oahu), Lee (Oahu) GOOD   Committee Report

Defines accreted land to mean land formed by the gradual accumulation of land on a beach or shore along the ocean by the action of natural forces.

Redefines public lands to include accreted lands not otherwise awarded.

Requires the office of environmental quality control to inform the public of an application for the registration of land by accretion for any land accreted along the ocean.

Amends land exchange process. (HB 1212 HD1 SD1 Say)   Committee Report

Requires the BLNR to approve in principal the exchange of public land for private land instead of current procedure where BLNR has approved exchange and legislature can only disapprove by 2/3rds vote of either senate or house.

Percentage to manage trails and public access. (SB 1040 SD1 HD1 CD1 Hanabusa) GOOD   Committee Report

HawaiÔi Tourism Authority (SB 38 HD2 CD1 Senator Donna Mercado Kim Oahu)   Committee Report

Establishes HawaiÔi tourism registry. (SB 1462 HD2 CD2 Kim, Espero)   Floor Amendment

Fixed rail action plan for Oahu (SB 464 SD2 HD2 CD1 (Senators Kawamoto, Espero, Kanno Oahu)  Committee Report

Requires DOT with Oahu Metropolitan Planning Organization & City and county to develop an action plan for implementation of a fixed rail or monorail transit system.

Oahu board of water supply experimental modernization projects (SB 363 HD1 Kawamoto)   Committee Report

Provides that with or without approval from chief executive, the board of water supply director may conduct an experimental modernization project to determine whether specific changes in its human resource program would result in a more desirable program.

Provides criteria but does not identify "experimental modernization project."

April 30/ 2003 approved by governor (Act 40 2003)

New member of water commission. (SB 1594 HD1 Hanabusa) GOOD   Committee Report

Adds new member to Water Commission that shall have substantial experience or expertise in traditional Hawaiian water resource management techniques and in traditional riparian usage. *(emphasis added)

BArchived from Na Mea Wai Apau

Hawai`i State Constitution Article XI Section 1
Managing Hawaii's Public Trust Doctrine Symposium October 6, 2001 Transcript(.pdf, 182 kb) Brochure (.pdf, 138 kb) Pictures

Conference Explores Ways to Advance The Public Trust Doctrine in Hawai`i

IMPLEMENTATION OF PUBLIC TRUST DOCTRINE IN HAWAII
Bill Devick, Division of Aquatic Resources Department of Land and Natural Resources (.doc)

AN ADMINISTRATOR'S VIEW OF HAWAII'S PUBLIC TRUST DOCTRINE By Colin Kippen (.doc)

A STATE LEGISLATOR'S VIEW OF THE PUBLIC TRUST DOCTRINE SENATOR COLLEEN HANABUSA (.doc)

THE AUGUST, 2000 HAWAII SUPREME COURT WAIAHOLE DITCH DECISION: COMMENTS AND EXCERPTS REGARDING THE PUBLIC TRUST DOCTRINE (.doc)

Implementing the Public Trust Doctrine-Lessons Learned in California Jan Stevens (.doc)

THE CONSTITUTION, PROPERTY RIGHTS AND THE FUTURE OF WATER LAW* JOSEPH L. SAX (.doc)

HAWAII PUBLIC TRUST DOCTRINE PATHFINDER: WHERE TO FIND MORE INFORMATION ON THE PUBLIC TRUST DOCTRINE AND THE SCHOLARSHIP OF PROFESSOR SAX (.doc)

MANAGING THE PUBLIC TRUST IN HAWAII: KEY QUESTIONS REMAIN UNANSWERED By: Kenneth R. Kupchak and Jamesner A. Dumlao (.doc)

WHAT IS THE PUBLIC TRUST DOCTRINE IN HAWAII? A FEW HUMBLE OBSERVATIONS AND QUESTIONS Timothy E. Johns (.doc)

Waiahole Case Links

Supreme Court Waiahole Ditch Water Contested Case Decision HAWAII'S WAIAHOLE DITCH DECISION: Instream Flow, Public Trust and the Burden of Proof Court's Waiahole Decision 'Inspiring,' Says Public Trust Expert Jan Stevens Waiahole water might be reallocated Public Trust Resources At Issue In Dispute Over Waiahole Water (1996)

Other Hawai'i Links

Managing the Public Trust in Hawai'i: Key Questions Remain Unanswered THE PUBLIC TRUST DOCTRINE: WHO HAS THE BURDEN OF PROOF (1996) Local Resources: Learn How to Assert YOUR Rights Hawaii Coastal Zone Management Program Office of Planning Hawaii Ocean Science and Technology Conservation and the Public Trust, A Roundtable Discussion March 1999 (.pdf, 246 kb) Environment Hawai`i Ocean Energy Exports Summary of Financial and Technical Assistance Programs for the Conservation of Natural Resources

"By the law of nature, these things are common to mankind: the air, running water, the sea, and consequently the shores of the sea..." Institutes of Justinian, 2.1.1 (529 A.D.)

The Public Trust Doctrine is: University of Toledo College of Law Public Trust Doctrine Profile of the history and litigation related to the public trust doctrine. Select bibliography and articles. Links to major litigation. The Public Trust Doctrine: A Gift From A Roman Emperor. The Public Trust Doctrine The Public Trust Doctrine may very well become the most important tool for citizens seeking to protect their streams and rivers from harmful water developments and users, especially in states with no established minimum instream flows.

US COURT OF APPEALS FOR THE NINTH CIRCUIT ESPLANADE PROPERTIES, LLC, v. CITY OF SEATTLE
The Governmental Law Center, Albany Law School, Public Trust Doctrine Home Page "The Public Trust Doctrine Website is offered by the Governmental Law Center of the Albany Law School as an educational service to provide information and foster a discourse for parties interested in public policy, research, and application in natural and cultural resources planning and management of the Public Trust Doctrine."

Mono Lake Committee

"The Mono Lake Committee is a non-profit citizen's group dedicated to protecting and restoring the Mono Basin Ecosystem; educating the public about Mono Lake and the impacts on the environment of excessive water use; and promoting cooperative solutions that protect Mono Lake and meet real water needs without transferring environmental problems to other areas." Legal Institute of the Great Lakes, University of Toledo College of Law, Ohio, Public Trust Doctrine (including information on the Great Lakes' Public Trust Doctrine Workshop)

U.S. Environmental Protection Agency, Office of Wetlands, Oceans & Watersheds, Coastlines: Information About Estuaries and Near Coastal Waters

"...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 Article XI

• Section 1: Conservation and Development of Resources
• Section 2: Management and Disposition of Natural Resources
• Section 3: Agricultural Lands
• Section 4: Public Land Banking
• Section 5: General Laws Required; Exceptions
• Section 6: Marine Resources
• Section 7: Water Resources
• Section 8: Nuclear Energy
• Section 9: Environmental Rights
• Section 10: Farm and Home Ownership
• Section 11: Exclusive Economic Zone

THE CONSTITUTION OF THE STATE OF HAWAII

As Amended and in Force January 1, 2000

ARTICLE XI

CONSERVATION, CONTROL AND DEVELOPMENT OF RESOURCES

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]

AGRICULTURAL LANDS

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]

PUBLIC LAND BANKING

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]  

GENERAL LAWS REQUIRED; EXCEPTIONS

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]

MARINE RESOURCES

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]

WATER RESOURCES

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]

NUCLEAR ENERGY

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]

ENVIRONMENTAL RIGHTS

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]

FARM AND HOME OWNERSHIP

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.

EXCLUSIVE ECONOMIC ZONE

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]