Ke aloha o ko Kakou aina, ‘Ola ka mana ku pa’a. Panoanoa ka ‘aina, Manoanoa ka po’e.
The Love of our land, is the power for us to stand fast. Rare is the land, many is the people.
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.”
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.”
The Constitution of the State of Hawai’i
As Amended and in Force January 1, 2000
Article XI
Conservation, Control and Development of Resources
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
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]
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
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]
Public Trust Doctrine in Hawaii
Articles
National Park Service and Hawaii’s Public Trust Doctrine - Commission on Water Resource Management (2014)
Traditional water rights, ecology and the public trust doctrine in Hawaii – by C. S. Papacostas
In Law We Trust - by Mark Dowie
Public Trust Doctrine Upheld in Hokulia Ruling
The National Park Service and Hawaii’s Public Trust Doctrine (2014)
Public Trust Doctrine Upheld in Hokulia Ruling (2004)
Video: The Children's Climate Crusade (Bill Moyers 2015)
Traditional water rights, ecology and the public trust doctrine in Hawaii – by C. S. Papacostas
In Law We Trust - by Mark Dowie
Public Trust Doctrine Upheld in Hokulia Ruling
The National Park Service and Hawaii’s Public Trust Doctrine (2014)
Public Trust Doctrine Upheld in Hokulia Ruling (2004)
Video: The Children's Climate Crusade (Bill Moyers 2015)
Waiahole Ditch Case
The Waiahole case arose from the efforts of small family farmers and Native Hawaiians, led by citizen groups Hakipu`u `Ohana, Ka Lahui Hawai`i, Kahalu`u Neighborhood Board, Makawai Stream Restoration Alliance and a coalition of supporters (collectively the "Windward Parties"), to restore streams originally diverted by Central O`ahu sugar plantations. O`ahu Sugar's 1993 announcement of its closure in 1995 sparked a monumental legal battle over the diverted water -- in the words of the Hawai`i Supreme Court, a case of "unprecedented size, duration, and complexity." The Windward Parties sought to return diverted flows to the streams to restore native stream life, such as `o`opu, `opae and hihiwai; protect traditional and customary Native Hawaiian practices; support the productivity of the Kane`ohe Bay estuary; and preserve traditional small family farming, including taro cultivation. But large scale agricultural and development interests, including Campbell Estate, Robinson Estate, Kamehameha Schools, Dole/Castle & Cooke, and others, joined by the State, pushed to continue the flow of Windward water to leeward lands to subsidize golf course irrigation, short-term corporate agriculture, and housing development.
The Hawai’i Supreme Court issued a landmark decision in support of HTF’s public trust doctrine arguments in the Waiahole Ditch Contested Case. The court concluded that the doctrine “applies to all water resources” in Hawai’i, above and below the surface of the ground, and that under the doctrine “the state has both the authority and duty to preserve the rights of present and future generations in waters of the state.”
The Hawai’i Supreme Court issued a landmark decision in support of HTF’s public trust doctrine arguments in the Waiahole Ditch Contested Case. The court concluded that the doctrine “applies to all water resources” in Hawai’i, above and below the surface of the ground, and that under the doctrine “the state has both the authority and duty to preserve the rights of present and future generations in waters of the state.”
Waiahole Case Links
Supreme Court Waiahole Ditch Water Contested Case Decision (2000)
Supreme Court Waiahole Ditch Water Contested Case Dissenting Opinion
Appeal from the Commission on Water Resource Management
An Administrator's View of Hawaii's Public Trust Doctrine - by Colin Kippen
Court’s Waiahole Decision ‘Inspiring,’ Says Public Trust Expert Jan Stevens
Economic Impact of the Waiahole irrigation System (Dept of Ag 2012)
Public Trust Resources At Issue In Dispute Over Waiahole Water
Supreme Court Waiahole Ditch Water Contested Case Dissenting Opinion
Appeal from the Commission on Water Resource Management
An Administrator's View of Hawaii's Public Trust Doctrine - by Colin Kippen
Court’s Waiahole Decision ‘Inspiring,’ Says Public Trust Expert Jan Stevens
Economic Impact of the Waiahole irrigation System (Dept of Ag 2012)
Public Trust Resources At Issue In Dispute Over Waiahole Water