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Public Trust Doctrine

View our Brochure on the Public Trust Doctrine Here

Find links to other Public Trust Doctrine sites Here

Hawai'i's Public Trust Doctrine Ke aloha o ko Kakou aina, 'Ola ka mana ku pa'a. Panoanoa ka 'aina, Manoanoa ka po'e.

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."

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

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]


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