Hawai`i's Public Trust Doctrine
The following is a condensation of the opening speech given by James T. Paul, Paul, Johnson, Park & Niles, at the first statewide Hawai`i Aquatics Conference held on June 11-12, 1999 in the ahupua`a of Kaneohe.
The Public Trust Doctrine is a judicial created last ditch resort, a refusal to permit free enterprise and consumptive activity to proceed without restraint to inevitability. It sets limits and attempts to draw a line. It is principled. In the management of natural resources, it is one of the most unusual, most powerful, most useful doctrines in our legal system. It is part of the common law of the State; it is provided for in the Hawaii Constitution; and all of us should be very glad. What follows is a shortened summary of that doctrine.
The history of the doctrine has two building blocks: Roman law and English law. It is "old law." It is one of the oldest, most deeply rooted concepts in the entire body of law. Roman Law. The Roman's believed there were different kinds of property, depending upon the nature of the property. Some property belonged to the gods; some property belonged to the state; some belonged to individuals; and some was "common property." It is the concept of "common property" that is central to what we now know as the public trust doctrine. It cannot be privately owned, and it is for common use, by everybody. What is common property? Under the Roman's it included the sea, the seashore, the harbors, and all navigable rivers. The Roman's believed the sea was subject to the right of free navigation, and that the sea was entirely non-proprietary in nature. The law in Hawai`i and the U.S. regarding the oceans is exactly the same today. The public trust doctrine has incorporated the Roman notion of the special nature, the destiny if you will, of these properties.
English Common Law. English "common law" was judge made. Generally, when the United States was formed in 1776, we imported and adopted all English common law.
The English had a twist on the Roman notion of common property. Navigable rivers, the ocean and the seashore were held by the King for the benefit of the King's subjects. These resources were "owned" by the King, but not for his private use; he held them "in trust" for the benefit of all citizens. This is the origin of the "trust" concept in public trust doctrine.
This British idea of trusteeship was incorporated in U.S. law. There are, of course, many examples of trusts other than the public trust. Perhaps surprisingly, in the United States it is the individual states, not the federal government, that took over the role the King played in England. Therefore, it is the State of Hawai`i, not the federal government, that "owns" the public trust resources in Hawai`i.
What does the State of Hawai`i own? What is the property that is part of the public trust? The original answer was to look to the law of England in 1776: navigable waters, the ebb and flow of tidal waters, and the land beneath them. Therefore, at the moment of independence of the original 13 states, and thereafter at moment of state hood for the other 37 states, those public trust resources became the property of each state to be held in trust for the public.
As did every other state when formed, when Hawai`i became a state in 1959, it instantly owned in trust: the ocean from the high tide line three miles out to sea; all navigable waters; all tidal waters, whether navigable or not; and all land beneath those waters. What is "navigable water"? There is a very specific national definition: a body of water is "navigable" if in its natural condition the water can be used for water-born commerce. The U.S. Supreme Court has expanded that definition so that today all navigable waters and all tidal waters, whether navigable or not, and the lands beneath them, are subject to the public trust.
In England, the activities protected by the public trust doctrine were navigation and fisheries. In the U.S., these purposes have been expanded to include not only navigation and fisheries, but promotion of commerce as well. Court decisions in various states have also expanded the physical scope of the trust property to include non-navigable tributaries that affect public trust property, as well as wetlands and dry sand areas. For example, if uses of tributaries adversely affect public trust property, they may be regulated. One California case has suggested how the public trust doctrine will expand: "The preservation of ... lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area." Other courts have emphasized that environmental concerns are only relatively recently being sufficiently understood by science to warrant such protection.
In 1978, the Hawai`i Supreme Court expanded the high tidal water line to the high wash of waves, noting that the Public Trust responsibilities of the State were so powerful that they could and did trump legislation that was inconsistent with them. That same year, the Hawai`i Constitutional Convention made the Public Trust Doctrine a part of the Hawai`i Constitution (Article XI, Section 1).
The Waiahole Ditch is an example of how the Public Trust doctrine applies. In 1913 construction of the Ditch began. The idea was to divert 20+ mgd of fresh water from the Kahana, Waikane and Waiahole water sheds to sugar cane fields on leeward side to supplement what became 50-100 mgd being pumped from Pearl Harbor aqueduct. The Ditch is a complex of tunnels blasted into and through the Koolau Mountains with surface water intakes, ditches, gates and flumes that mine dike-impounded water and deliver it to the central plains.
Ground and surface waters are physically interrelated in Koolaus. Nature brilliantly created natural reservoirs within the mountains behind dikes formed by cooling lava, which fed streams, springs, and seeps. As a result, water collected from those dikes for the Ditch was at the direct expense of surface water flow in Waiahole, Waikane and Kahana streams. When the Ditch complex was completed, Waiahole stream flow was reduced by 85%.
In the Waiahole Ditch contested case hearings before the State Water Commission in 1997, the director of the Division of Aquatic Resources for the Department of Land and Natural Resources, Bill Devick, testified that prior to the diversions, Waiahole was noted for its abundant native fish population. But by 1990, only one o`opu species could be found in the stream and that was not common. Reduction in stream flows is "probably the central reason why fisheries in Kaneohe Bay have declined."
How does the public trust doctrine apply to the Waiahole Ditch? Kaneohe Bay is clearly a public trust resource and the evidence presented in the hearings showed that it was clearly affected by the diversions. Waiahole stream was clearly affected and may be both "navigable" and "tidal", in which case it is a public trust resource. But what if the streams were found not to be a traditional public trust resource? Case law of other states and the Hawai`i Constitution make a compelling case that these streams -- Waiahole, Waikane, Kahana - are subject to public trust jurisdiction. The evidence clearly demonstrates the interdependence of the ocean and these freshwater streams and the devastation of fisheries in Kaneohe Bay and in the streams caused by the diversion of water into the Ditch.
I suggest that four lessons of public trust doctrine are incumbent upon our State managers regarding aquatic resources. First and foremost, the State is the trustee of the public trust resources. This is the highest duty under law and that duty requires the State to protect aquatic resources that are part of the Trust. This is a "categorical imperative." Second, when someone wants to use or destroy a public trust resource, those who seek to do so must have the burden of proof to demonstrate that their use will not significantly harm the resource, or if it will harm it, the proposed new use is "consistent with the purposes of the trust." Third, if there are alternative sources of water available, those should be used unless an extremely compelling case, "consistent with purposes of trust," can be made. Fourth, the "Precautionary Principle" must be followed. This principle provides that where scientific evidence is preliminary and not yet considered conclusive regarding management and risk to the public trust resource, the trust resource must be protected. Lack of full scientific certainty should never be the basis for permitting the degradation or destruction of public trust resources.
The public trust doctrine provides principled guidelines to leaders who are concerned about the tension between development and preservation, between the rights of Native Hawaiian's and non-indigenous peoples. It serves as a beacon to guide us.
Hawai`i must be a model not only for the United States, but for the world in terms of management of natural resources. To paraphrase a proverb credited to the Lakota Sioux: "We didn't inherit the earth from our ancestors; we borrow it from our children." The public trust doctrine is the legal embodiment of this principle.
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