Hawaii Island Journal - Last Issue Stories
12/16/08 8:24 PM
Preserving Paradise for Future Generations
How we can use the Public Trust Doctrine to preserve our natural resources
by Jack Kelly
Hawai'i - we call it paradise. Sapphire ocean waters, fringed by miles of sparkling sand beaches, and the most extensive and productive coral reefs in the world, surround our islands topped by soaring peaks, home to our native forest watersheds.
As we go about our daily lives working to meet the price of paradise, it may be easy to forget that the natural world surrounding us belongs to everyone. Natural resources are ours to enjoy and to protect. They don't belong to private developers bent on profiting from their use or to government agencies looking for new sources of revenue. They belong to the people.
Are these resources being protected? Is government properly performing its function as steward of natural resources, stewards of the Public Trust?
Mud flows into the ocean in Kona, on Maui and Kauai from construction projects allowed by county and state officials to grub excessive acreage, more focused on present tax revenue than
Once-verdant valleys where fields of taro flourished alongside free-flowing streams have gone dry, no longer able to feed the keiki o ka 'aina; the water having been diverted to serve the growing city. And as the city continues to grow, the once sweet water table falls, turning brackish and salty and driving us to drink from bottles.
As population grows and government dishes out millions to promote tourism and dangles tax incentives to attract new business, Hawaii's natural resources are increasingly strained. From Waiahole to East Maui, to 'Iao Peak, to Kona and beyond, the future of planning and preservation of these resources hinges on the Hawai'i Supreme Court's interpretation of the Public Trust Doctrine and its implementation by the Lingle administration.
The Public Trust Doctrine (PTD) can give you a voice in what goes on around us in the forums that matter. It gives you a chance to advocate for a clean environment, and to protect sparkling streams and clear, bountiful ocean waters. An opportunity to speak for the preservation of the majestic stands of forest that assure the coming blessing of the rain, the ua; to preserve the traditional practices of Hawaiians, their right to gather and the right to malama the ancestors; these are all elements of the Public Trust. Most of all, the trust gives every citizen a chance to have a hand in passing down these resources to the generations yet to come.
But there are those who think the Public Trust infringes on the rights of private landowners. The conflict between the PTD and private interests occurs almost daily in the courtrooms of this state, although the most famous and defining of those is the Waiahole ditch water case, (Re: Water Use Applications, 94 Hawaii 97(2000), now before the Hawai'i State Supreme Court for the second time.
The Waiahole ditch story is a classic battle between big business interests, environmentalists and Hawaiian practitioners. Built by the Oahu Sugar Company in the early 1900s to deliver water to their extensive sugar plantations, the Waiahole ditch system collects surface water and dike-impounded water from the Ko'olau Mountains on the windward side of Oahu and delivers it to the central Oahu plain.
Under normal conditions, each county's Department of Water Supply controls the allocation and
the future of the coral reefs that suffocate beneath the choking sediment.
How we can use the Public Trust Doctrine to preserve our natural resources
by Jack Kelly
Hawai'i - we call it paradise. Sapphire ocean waters, fringed by miles of sparkling sand beaches, and the most extensive and productive coral reefs in the world, surround our islands topped by soaring peaks, home to our native forest watersheds.
As we go about our daily lives working to meet the price of paradise, it may be easy to forget that the natural world surrounding us belongs to everyone. Natural resources are ours to enjoy and to protect. They don't belong to private developers bent on profiting from their use or to government agencies looking for new sources of revenue. They belong to the people.
Are these resources being protected? Is government properly performing its function as steward of natural resources, stewards of the Public Trust?
Mud flows into the ocean in Kona, on Maui and Kauai from construction projects allowed by county and state officials to grub excessive acreage, more focused on present tax revenue than
Once-verdant valleys where fields of taro flourished alongside free-flowing streams have gone dry, no longer able to feed the keiki o ka 'aina; the water having been diverted to serve the growing city. And as the city continues to grow, the once sweet water table falls, turning brackish and salty and driving us to drink from bottles.
As population grows and government dishes out millions to promote tourism and dangles tax incentives to attract new business, Hawaii's natural resources are increasingly strained. From Waiahole to East Maui, to 'Iao Peak, to Kona and beyond, the future of planning and preservation of these resources hinges on the Hawai'i Supreme Court's interpretation of the Public Trust Doctrine and its implementation by the Lingle administration.
The Public Trust Doctrine (PTD) can give you a voice in what goes on around us in the forums that matter. It gives you a chance to advocate for a clean environment, and to protect sparkling streams and clear, bountiful ocean waters. An opportunity to speak for the preservation of the majestic stands of forest that assure the coming blessing of the rain, the ua; to preserve the traditional practices of Hawaiians, their right to gather and the right to malama the ancestors; these are all elements of the Public Trust. Most of all, the trust gives every citizen a chance to have a hand in passing down these resources to the generations yet to come.
But there are those who think the Public Trust infringes on the rights of private landowners. The conflict between the PTD and private interests occurs almost daily in the courtrooms of this state, although the most famous and defining of those is the Waiahole ditch water case, (Re: Water Use Applications, 94 Hawaii 97(2000), now before the Hawai'i State Supreme Court for the second time.
The Waiahole ditch story is a classic battle between big business interests, environmentalists and Hawaiian practitioners. Built by the Oahu Sugar Company in the early 1900s to deliver water to their extensive sugar plantations, the Waiahole ditch system collects surface water and dike-impounded water from the Ko'olau Mountains on the windward side of Oahu and delivers it to the central Oahu plain.
Under normal conditions, each county's Department of Water Supply controls the allocation and
the future of the coral reefs that suffocate beneath the choking sediment.
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Hawaii Island Journal - Last Issue Stories
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use of water resources.
However, the State Water Code provides for the Commission on Water Resource Management (COWRM) to step in and take control, through the creation of a "ground water management area," when an individual aquifer is determined to be overextended and in danger of failing. When that happens all potential and existing users of that water have to file petitions with the COWRM in order to receive water.
In 1992 the COWRM designated the five aquifers, Koolauloa, Kahana, Koolaupoko, Waimanalo, and a portion of Kawailoa in Windward Oahu as ground water management areas.
In 1993, Oahu Sugar announced it was going to close up shop, and a rush of applications were filed for a share of the 27 million gallons per day running though the ditch.
The State Department of Agriculture, Office of Hawaiian Affairs, Hahalu'u Neighborhood Board, Hakipu'u Ohana, Waiahole-Waikane community Association, Kamehameha Schools, and Department of Hawaiian Homelands all got in line for future water allocations.
In 1994 the Commission received complaints that the ditch operator, Waiahole Irrigation Company (WIC), was dumping unused water into central Oahu gulches.
After an investigation and subsequent mediations, the Commission ordered that WIC continue to supply 8 million gallons per day to the ditch and return the rest to the windward streams. The reflow had an immediate restorative effect on the stream ecology, flushing out exotic fish species and reviving the population of native stream life.
It also enabled traditional taro farmers to successfully continue their farming.
In 1995 the Commission ordered a combined contested case hearing and heard testimony from twenty-five participants.
On July 15, 1997 the Commission released its decision that created a political shockwave that is still reverberating.
"Under the State Constitution and the Public Trust Doctrine, the State's first duty is to protect the fresh water resources (surface and ground) which are part of the public trust. The duty to protect public water resources is a categorical imperative and the precondition to all subsequent considerations, for without such underlying protection the natural environment could, at some point, be irrevocably harmed and the 'duty to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial uses' could be endangered."
However, the underlying duty did not mean off-stream uses of the water must cease or that no new uses may be made. The Commission acknowledged that in- stream flow standards must be established so that a program for in-stream protection may be instituted. After levels of flow needed to maintain a healthy stream environment are determined, the Commission may establish how many off-stream uses may be accommodated.
Establishing the in-stream flow standards needed to maintain a healthy stream environment is easier said than done, and in the interim the Commission established uses for the various parties that are still being contested.
The case revolves around the question of how far government can go in protecting a public trust resource without adversely affecting the rights of private property owners, which are also constitutionally protected.
Donna Wong, Executive Director of Hawaii's Thousand Friends, a Waiahole plaintiff, states, "In arguing the Public Trust Doctrine, Hawaii's Thousand Friends sought not only to protect native ecosystems in Windward Oahu streams and Kaneohe Bay but to show that, under the Doctrine, the State, as trustee of all water in the State, has both the authority and duty to preserve the rights of present and future generations in the waters of the state."
An Old Idea Whose Time Has Come
The Public Trust Doctrine goes back to 530 A.D. when the Emperor of Rome, Justinian, called the empire's legal minds together and compiled in writing all the laws of the empire.
One of those many laws was a central statement; "by the law of nature these things are common to all mankind; the air, running water, the sea and consequently the shores of the sea." The seashore then was open to all.
As history unfolded, Roman law became the basis for much European law, including English law that forms the basis for American jurisprudence as well. In America, as the colonies were forming, the right to the waters and shorelines were vested with the individual states.
However, the State Water Code provides for the Commission on Water Resource Management (COWRM) to step in and take control, through the creation of a "ground water management area," when an individual aquifer is determined to be overextended and in danger of failing. When that happens all potential and existing users of that water have to file petitions with the COWRM in order to receive water.
In 1992 the COWRM designated the five aquifers, Koolauloa, Kahana, Koolaupoko, Waimanalo, and a portion of Kawailoa in Windward Oahu as ground water management areas.
In 1993, Oahu Sugar announced it was going to close up shop, and a rush of applications were filed for a share of the 27 million gallons per day running though the ditch.
The State Department of Agriculture, Office of Hawaiian Affairs, Hahalu'u Neighborhood Board, Hakipu'u Ohana, Waiahole-Waikane community Association, Kamehameha Schools, and Department of Hawaiian Homelands all got in line for future water allocations.
In 1994 the Commission received complaints that the ditch operator, Waiahole Irrigation Company (WIC), was dumping unused water into central Oahu gulches.
After an investigation and subsequent mediations, the Commission ordered that WIC continue to supply 8 million gallons per day to the ditch and return the rest to the windward streams. The reflow had an immediate restorative effect on the stream ecology, flushing out exotic fish species and reviving the population of native stream life.
It also enabled traditional taro farmers to successfully continue their farming.
In 1995 the Commission ordered a combined contested case hearing and heard testimony from twenty-five participants.
On July 15, 1997 the Commission released its decision that created a political shockwave that is still reverberating.
"Under the State Constitution and the Public Trust Doctrine, the State's first duty is to protect the fresh water resources (surface and ground) which are part of the public trust. The duty to protect public water resources is a categorical imperative and the precondition to all subsequent considerations, for without such underlying protection the natural environment could, at some point, be irrevocably harmed and the 'duty to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial uses' could be endangered."
However, the underlying duty did not mean off-stream uses of the water must cease or that no new uses may be made. The Commission acknowledged that in- stream flow standards must be established so that a program for in-stream protection may be instituted. After levels of flow needed to maintain a healthy stream environment are determined, the Commission may establish how many off-stream uses may be accommodated.
Establishing the in-stream flow standards needed to maintain a healthy stream environment is easier said than done, and in the interim the Commission established uses for the various parties that are still being contested.
The case revolves around the question of how far government can go in protecting a public trust resource without adversely affecting the rights of private property owners, which are also constitutionally protected.
Donna Wong, Executive Director of Hawaii's Thousand Friends, a Waiahole plaintiff, states, "In arguing the Public Trust Doctrine, Hawaii's Thousand Friends sought not only to protect native ecosystems in Windward Oahu streams and Kaneohe Bay but to show that, under the Doctrine, the State, as trustee of all water in the State, has both the authority and duty to preserve the rights of present and future generations in the waters of the state."
An Old Idea Whose Time Has Come
The Public Trust Doctrine goes back to 530 A.D. when the Emperor of Rome, Justinian, called the empire's legal minds together and compiled in writing all the laws of the empire.
One of those many laws was a central statement; "by the law of nature these things are common to all mankind; the air, running water, the sea and consequently the shores of the sea." The seashore then was open to all.
As history unfolded, Roman law became the basis for much European law, including English law that forms the basis for American jurisprudence as well. In America, as the colonies were forming, the right to the waters and shorelines were vested with the individual states.
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The concept of the public nature of the tidelands and waters grew, as did the responsibility of the state to ensure that the "public trust" was preserved.
In the Kingdom of Hawai'i, it was acknowledged that certain lands and waters could not be disposed of.
Article One of the Hawaiian Kingdom's Civil Code states,
"The Minister of the Interior is prohibited from selling the water ponds, springs and streams belonging to the Government . . . and any sale in contravention of this section shall be absolutely null and void."
The Kingdom Code goes on to establish responsibility with the State for managing the valuable public resources.
"The said Minister shall be accountable for the preservation and safe keeping of the government property, and it shall be his duty to prosecute any person injuring, trespassing upon, or wrongfully taking the same."
In 1848 the Great Mahele came into being and the lands of the Kingdom were divided between the chiefs and the King.
However, the rights of the native tenants who held kuleana lands were expressly reserved. Koe noe ke kuleana o na kanaka, "reserving the people's kuleana therein." This phrase appears on all the royal patents and land grants.
This phrase was originally interpreted to mean only a reservation of a house, lots, taro
patches, or gardens of natives lying within the boundaries of the land conveyed.
Later, however, it was interpreted to include all of the rights of native tenants. These rights are set forth in the Act of August 6, 1850, including riparian rights to stream water and the use of the sea and coastal areas to harvest for food. The use of the trails that traversed mauka-makai and between ahupua'a have also been included in this bundle of rights due to recent litigation. The concept of the public trust is well seated in Hawaiian history and this is an important fact in the balancing of the public trust versus the rights of property owners in the present-day climate of pressure on all resources.
It's About Water
"The Public Trust is centrally about water. It is primarily a water doctrine and only instrumentally a land doctrine," said Joseph Sax, professor of Law at the University of California at Berkeley and recognized throughout the country as one of the founding fathers of modern environmental law.
As the concept grew, so did the definition of what public trust resources should include. From an original interpretation that allowed public use of the seashore, to the protection of all streams that eventually end up at the sea, to all water resources as a group and more, one element of the Public Trust Doctrine is that it has always tracked community goals and priorities. In that sense, the trust concept is always changing depending on those societal goals. In the 1800s, American social priorities were focused on the utilization of water to promote settlement and economic development.
In those days, the idea of leaving water in a stream to benefit the stream itself was anathema. Water was too precious to be left in the river. But today, the appropriation of water for environmental protection of the stream resources is itself considered one of the essential uses of water.
"As to the economies of indigenous peoples, insofar as they depended on water, it must be
said tragically that for a long time it was generally believed that the public interest would be advanced by terminating traditional uses, repudiating native culture and beliefs, and assimilating native people into the mainstream economy," says Sax. " These rights do not expire simply because they have been unacknowledged for no matter how long a period of time. Social values have evolved to recognize the need to protect in-stream, environmental and related values."
William Tam, former counsel to the Hawai'i State Water Commission from 1987-97 and an authority on the Public Trust says, "In Hawai'i there is a very close parallel between Public
Trust Doctrine and traditional Hawaiian customs. The doctrine is just the secular western way of describing a lot of what Hawaiian practices were. So Hawai'i is particularly suited for the Public Trust Doctrine in its own traditions and customs."
In 1976, participants in the Constitutional Convention, the framers of Hawaii's modern day
In the Kingdom of Hawai'i, it was acknowledged that certain lands and waters could not be disposed of.
Article One of the Hawaiian Kingdom's Civil Code states,
"The Minister of the Interior is prohibited from selling the water ponds, springs and streams belonging to the Government . . . and any sale in contravention of this section shall be absolutely null and void."
The Kingdom Code goes on to establish responsibility with the State for managing the valuable public resources.
"The said Minister shall be accountable for the preservation and safe keeping of the government property, and it shall be his duty to prosecute any person injuring, trespassing upon, or wrongfully taking the same."
In 1848 the Great Mahele came into being and the lands of the Kingdom were divided between the chiefs and the King.
However, the rights of the native tenants who held kuleana lands were expressly reserved. Koe noe ke kuleana o na kanaka, "reserving the people's kuleana therein." This phrase appears on all the royal patents and land grants.
This phrase was originally interpreted to mean only a reservation of a house, lots, taro
patches, or gardens of natives lying within the boundaries of the land conveyed.
Later, however, it was interpreted to include all of the rights of native tenants. These rights are set forth in the Act of August 6, 1850, including riparian rights to stream water and the use of the sea and coastal areas to harvest for food. The use of the trails that traversed mauka-makai and between ahupua'a have also been included in this bundle of rights due to recent litigation. The concept of the public trust is well seated in Hawaiian history and this is an important fact in the balancing of the public trust versus the rights of property owners in the present-day climate of pressure on all resources.
It's About Water
"The Public Trust is centrally about water. It is primarily a water doctrine and only instrumentally a land doctrine," said Joseph Sax, professor of Law at the University of California at Berkeley and recognized throughout the country as one of the founding fathers of modern environmental law.
As the concept grew, so did the definition of what public trust resources should include. From an original interpretation that allowed public use of the seashore, to the protection of all streams that eventually end up at the sea, to all water resources as a group and more, one element of the Public Trust Doctrine is that it has always tracked community goals and priorities. In that sense, the trust concept is always changing depending on those societal goals. In the 1800s, American social priorities were focused on the utilization of water to promote settlement and economic development.
In those days, the idea of leaving water in a stream to benefit the stream itself was anathema. Water was too precious to be left in the river. But today, the appropriation of water for environmental protection of the stream resources is itself considered one of the essential uses of water.
"As to the economies of indigenous peoples, insofar as they depended on water, it must be
said tragically that for a long time it was generally believed that the public interest would be advanced by terminating traditional uses, repudiating native culture and beliefs, and assimilating native people into the mainstream economy," says Sax. " These rights do not expire simply because they have been unacknowledged for no matter how long a period of time. Social values have evolved to recognize the need to protect in-stream, environmental and related values."
William Tam, former counsel to the Hawai'i State Water Commission from 1987-97 and an authority on the Public Trust says, "In Hawai'i there is a very close parallel between Public
Trust Doctrine and traditional Hawaiian customs. The doctrine is just the secular western way of describing a lot of what Hawaiian practices were. So Hawai'i is particularly suited for the Public Trust Doctrine in its own traditions and customs."
In 1976, participants in the Constitutional Convention, the framers of Hawaii's modern day
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constitution, felt strongly enough about the Public Trust to memorialize the concept in Article XI, 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."
This constitutional edict gives the Public Trust Doctrine expanded authority and thrusts it onto center stage as a planning tool for the future, not only for water resources but natural resources in general. The Constitution leaves no doubt that the Trust's central purpose is the conservation of those resources for the use of future generations.
However, for too long the consumption of natural resources for purposes of private economic gain has held sway in the socio-political balance in our state.
Bill Devick, Director of the Division of Aquatic Resources of the state Department of Land and Natural Resources (DLNR) states, "Virtually all of the living resource problems we are facing, declining fish populations, loss of native species and habitats, invasions of alien species to name a few - have as their root cause excessive human exploitation. Government is supposed to manage these resources in a responsible manner, weighing human needs or wants against the ability of the environment to accommodate those demands. Ideally, recognition of the priority that should be given to the Public Trust will in the future shift the fulcrum in balancing those decisions from the side of exploitation towards protection."
Colin Kippen, Deputy Administrator of the Office of Hawaiian Affairs (OHA) states, "Waiahole discussed the need for coordinated planning amongst the COWRM and the counties, especially in those situations where more land is planned and zoned for development than there is water available. For example, the court noted this problem for the City and County of Honolulu stating, 'the existing water is already insufficient to accommodate land uses planned and zoned by the city. Whether the city accepts it or not, this shortfall will compel the Commission to prioritize among proposed uses in making ultimate choices among them'."
Though the court in Waiahole presumes that the balance between public and private purposes begins in favor of the public, the Constitution also upholds the rights of private property owners. The doctrine does not automatically render insignificant uses of resources for private commercial gain; it only establishes a need for balance among competing interests.
Supreme Court Justice Mario Ramil in his dissenting opinion in the first Waiahole decision felt that the COWRM and the court went too far in establishing priorities in favor of public use. "I would hold that the Commission exceeded its statutory authority when it cited to the common law public trust doctrine as a distinct and separate authority for justifying priority for particular uses of water."
Although many of the detractors of the Waiahole decision claim that the court has set itself up as the ultimate authority in balancing these interests, it is the voices of the people that will determine what our societal goals are going to be.
Private Attorney General Doctrine
Close cousin to the Public Trust Doctrine is the concept of the Private Attorney General.
For a wide range of reasons like political pressure, lack of resources, or lack of awareness, the State often fails in its mandate to protect public resources.
For example, in Waiahole, then-governor Cayetano and his Attorney General openly criticized the Commission's position during the pendancy of COWRM's decision. That criticism appears to have influenced the final decision that increased the water allocations to the leeward parties and brought a flurry of appeals to the Supreme Court.
"While the Commission was considering its final decision, the state governor and attorney general publicly criticized the proposed decision as inadequately providing for leeward interests," writes the Court in its August 2000 decision. "At about the same time, the deputy attorney general representing the Commission was summarily dismissed. The Commission issued its final decision on December 24, 1997. The final decision differed from the proposed decision in various respects, most notably in its increasing the amount of water allocated to leeward permitees by 3.79 million gallons per day."
"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."
This constitutional edict gives the Public Trust Doctrine expanded authority and thrusts it onto center stage as a planning tool for the future, not only for water resources but natural resources in general. The Constitution leaves no doubt that the Trust's central purpose is the conservation of those resources for the use of future generations.
However, for too long the consumption of natural resources for purposes of private economic gain has held sway in the socio-political balance in our state.
Bill Devick, Director of the Division of Aquatic Resources of the state Department of Land and Natural Resources (DLNR) states, "Virtually all of the living resource problems we are facing, declining fish populations, loss of native species and habitats, invasions of alien species to name a few - have as their root cause excessive human exploitation. Government is supposed to manage these resources in a responsible manner, weighing human needs or wants against the ability of the environment to accommodate those demands. Ideally, recognition of the priority that should be given to the Public Trust will in the future shift the fulcrum in balancing those decisions from the side of exploitation towards protection."
Colin Kippen, Deputy Administrator of the Office of Hawaiian Affairs (OHA) states, "Waiahole discussed the need for coordinated planning amongst the COWRM and the counties, especially in those situations where more land is planned and zoned for development than there is water available. For example, the court noted this problem for the City and County of Honolulu stating, 'the existing water is already insufficient to accommodate land uses planned and zoned by the city. Whether the city accepts it or not, this shortfall will compel the Commission to prioritize among proposed uses in making ultimate choices among them'."
Though the court in Waiahole presumes that the balance between public and private purposes begins in favor of the public, the Constitution also upholds the rights of private property owners. The doctrine does not automatically render insignificant uses of resources for private commercial gain; it only establishes a need for balance among competing interests.
Supreme Court Justice Mario Ramil in his dissenting opinion in the first Waiahole decision felt that the COWRM and the court went too far in establishing priorities in favor of public use. "I would hold that the Commission exceeded its statutory authority when it cited to the common law public trust doctrine as a distinct and separate authority for justifying priority for particular uses of water."
Although many of the detractors of the Waiahole decision claim that the court has set itself up as the ultimate authority in balancing these interests, it is the voices of the people that will determine what our societal goals are going to be.
Private Attorney General Doctrine
Close cousin to the Public Trust Doctrine is the concept of the Private Attorney General.
For a wide range of reasons like political pressure, lack of resources, or lack of awareness, the State often fails in its mandate to protect public resources.
For example, in Waiahole, then-governor Cayetano and his Attorney General openly criticized the Commission's position during the pendancy of COWRM's decision. That criticism appears to have influenced the final decision that increased the water allocations to the leeward parties and brought a flurry of appeals to the Supreme Court.
"While the Commission was considering its final decision, the state governor and attorney general publicly criticized the proposed decision as inadequately providing for leeward interests," writes the Court in its August 2000 decision. "At about the same time, the deputy attorney general representing the Commission was summarily dismissed. The Commission issued its final decision on December 24, 1997. The final decision differed from the proposed decision in various respects, most notably in its increasing the amount of water allocated to leeward permitees by 3.79 million gallons per day."
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In cases where the state fails to protect, citizens have the right to step in and act as "public attorney generals." Often those citizens lack the resources necessary to sustain lengthy legal proceedings. Only through the efforts of public interest law firms like Native Hawaiian Legal Corp., Earthjustice, or private attorneys acting pro bono (no fees), is it possible. Recognizing this, a number of courts have adopted the practice of awarding attorney fees to public interest litigants. But this isn't always the case and it's still a gamble for citizens and their attorneys to do so.
The California Supreme Court has stated, in adopting the doctrine, "the purpose of the doctrine is to promote vindication of important public rights."
Citizen involvement on all the islands has brought the Public Trust Doctrine to bear on a wide range of issues in Hawai'i.
In a Kona case, Leslie v. Board of Appeals, plaintiffs claimed the county Planning Director erred by approving a subdivision without assessing possible effects on coastal resources before the fact (see "Advocates in Action", HIJ Nov. 16-30).
In a case similar to Waiahole, a group of citizens in Maui have sued DLNR, Alexander and Baldwin, Maui Land and Pineapple and others to stop the allocation of public lands and waters which have directly affected native Hawaiian and associated water rights of the plaintiffs. These actions are examples of private citizens picking up the ball in defense of the Public Trust. As population increases in Hawai'i and resources are increasingly threatened, the State can expect many more actions that will hopefully result in a balancing of Trust responsibilities with economic development.
Jeff Mikulina, Chair of the Hawai'i Chapter of the Sierra Club states, "With disappearing coastline, increasing pressure on wild lands, and heightened demand for limited freshwater resources, the Public Trust Doctrine's role in protecting Hawaii's environment will only grow. I view the Public Trust Doctrine as a sort of lighthouse - a point of reference - in the fog of property rights advocacy and co-modification of natural resources."
The California Supreme Court has stated, in adopting the doctrine, "the purpose of the doctrine is to promote vindication of important public rights."
Citizen involvement on all the islands has brought the Public Trust Doctrine to bear on a wide range of issues in Hawai'i.
In a Kona case, Leslie v. Board of Appeals, plaintiffs claimed the county Planning Director erred by approving a subdivision without assessing possible effects on coastal resources before the fact (see "Advocates in Action", HIJ Nov. 16-30).
In a case similar to Waiahole, a group of citizens in Maui have sued DLNR, Alexander and Baldwin, Maui Land and Pineapple and others to stop the allocation of public lands and waters which have directly affected native Hawaiian and associated water rights of the plaintiffs. These actions are examples of private citizens picking up the ball in defense of the Public Trust. As population increases in Hawai'i and resources are increasingly threatened, the State can expect many more actions that will hopefully result in a balancing of Trust responsibilities with economic development.
Jeff Mikulina, Chair of the Hawai'i Chapter of the Sierra Club states, "With disappearing coastline, increasing pressure on wild lands, and heightened demand for limited freshwater resources, the Public Trust Doctrine's role in protecting Hawaii's environment will only grow. I view the Public Trust Doctrine as a sort of lighthouse - a point of reference - in the fog of property rights advocacy and co-modification of natural resources."
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