ARTICLE XI

 

CONSERVATION, CONTROL AND DEVELOPMENT OF RESOURCES

 

Note

 

This article was redesignated from "Article X Conservation and Development of Resources" to be "Article XI Conservation, Control and Development of Resources" by Const Con 1978 and election Nov 7, 1978. The former Article XI now appears as Article XII.

 

Law Journals and Reviews

 

Environmental Protection Based on State Constitutional Law: A Call for Reinterpretation. 12 UH L. Rev. 123.

 

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]

 

Note

 

A proposal of the 1978 Constitutional Convention deleted the former section 1 of the old Article X, which read: "Section 1. The legislature shall promote the conservation, development and utilization of agricultural resources, and fish, mineral, forest, water, land, game and other natural resources." This deletion appears to be one of the unspecified changes submitted for ratification under Question 34. On whether any of the changes submitted under Question 34 was in fact approved by the electorate, see Kahalekai v. Doi, 60 H. 324, 590 P.2d 543, excerpted in the note preceding the Preamble to the Constitution.

 

Attorney General Opinions

 

The department of Hawaiian home lands' authority to manage and dispose of geothermal resources on its lands, which stems from the Admission Act, the Hawaii constitution, and the Hawaiian Homes Commission Act, does not run afoul of the public trust doctrine. Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

Residential Use of Hawai`i's Conservation District. 14 UH L. Rev. 633.

Hawai`i Constitution, Article XI, Section 1: The Conservation, Protection, and Use of Natural Resources. 19 UH L. Rev. 177.

Proceedings of the 2001 Symposium on Managing Hawai`i's Public Trust Doctrine. 24 UH L. Rev. 21.

Wiping Out the Ban on Surfboards at Point Panic. 27 UH L. Rev. 303.

Biopiracy in Paradise?: Fulfilling the Legal Duty to Regulate Bioprospecting in Hawai`i. 28 UH L. Rev. 387.

The Patenting of Sacred Biological Resources, the Taro Patent Controversy in Hawai`i: A Soft Law Proposal. 29 UH L. Rev. 581.

Water Regulation, Land Use and the Environment. 30 UH L. Rev. 49.

Propagating Cultural Kīpuka: The Obstacles and Opportunities of Establishing a Community-Based Subsistence Fishing Area. 31 UH L. Rev. 193.

Where Justice Flows Like Water: The Moon Court's Role in Illuminating Hawai`i Water Law. 33 UH L. Rev. 537 (2011).

The Wash of the Waves: How the Stroke of a Pen Recharacterized Accreted Lands as Public Property. 34 UH L. Rev. 525 (2012).

The Public Trust Doctrine: Some Jurisprudential Variations and Their Implications. 38 UH L. Rev. 261 (2016).

 

Case Notes

 

State Constitution's conservation clause may obligate counties to use their authority to conserve public-trust resources, but it does not permit counties to exercise power that the State has not granted them. Therefore, it is irrelevant whether county ordinance is beyond the county's police power under this section because it is impliedly preempted by state law. 842 F.3d 669 (2016).

Although the public trust doctrine and the state water code share similar core principles, the code does not supplant the protections of the public trust doctrine. 94 H. 97, 9 P.3d 409.

The maintenance of waters in their natural state constitutes a distinct "use" under the water resources trust. 94 H. 97, 9 P.3d 409.

The state water resources trust embodies the following fundamental principles: the State has both the authority and duty to preserve the rights of present and future generations in the waters of the State; and the State bears an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. 94 H. 97, 9 P.3d 409.

This section and article XI, 7 of the Hawaii constitution adopt the public trust doctrine as a fundamental principle of constitutional law in Hawaii. 94 H. 97, 9 P.3d 409.

Under this section, article XI, 7 of the Hawaii constitution and the sovereign reservation, the public trust doctrine applies to all water resources, unlimited by any surface-ground distinction. 94 H. 97, 9 P.3d 409.

Pursuant to this section and 7 of the Hawaii constitution, 220(d) of the Hawaiian Homes Commission Act, and 174C-101(a), a reservation of water constitutes a public trust purpose. 103 H. 401, 83 P.3d 664.

Where commission on water resource management failed to render the requisite findings of fact and conclusions of law with respect to whether applicant had satisfied its burden as mandated by the state water code, it violated its public trust duty to protect the department of Hawaiian home lands' reservation rights under the Hawaiian Homes Commission Act, the state water code, the state constitution, and the public trust doctrine in balancing the various competing interests in the state water resources trust. 103 H. 401, 83 P.3d 664.

Department of health's (DOH) duties under the public trust doctrine requires the DOH to not only issue permits after prescribed measures appear to be in compliance with state regulation, but also to ensure that the prescribed measures are actually being implemented after a thorough assessment of the possible adverse impacts the development would have on the State's natural resources; this duty is consistent with the constitutional mandate under this section and the duties imposed upon the DOH by chapters 342D and 342E. 111 H. 205, 140 P.3d 985.

The public trust duties imposed on the State under this section also applied to the county, as a political subdivision of the State; this section mandates that the county has an obligation to conserve and protect the State's natural resources; the county's power under the general laws with respect to its public trust duty to protect the natural resources of the State can be found in chapter 180C; thus, the county had a duty to protect the waters located adjacent to defendant's property. 111 H. 205, 140 P.3d 985.

As the department of Hawaiian home lands' reservation of water did not constitute an "existing legal use" for purposes of 174C-49(a)(3) but a public trust "purpose", commission on water resource management was obligated to take this reservation into account in the planning and allocation of water resources and to protect it whenever feasible, as this public trust purpose status made it superior to private interests in the resources at any given time; however, commission was not precluded from approving uses which may compromise this reservation, as long as commission's decision was "made with a level of openness, diligence, and foresight". 116 H. 481, 174 P.3d 320.

Commission on water resource management failed in its public trust duty to hold water use permit applicant to its burden of demonstrating the absence of other practicable alternative sources of water when it reserved consideration of feasible alternative sources of water until after the "new uses" water permit had been granted; commission thus failed to establish an adequate basis for the amount of "new uses" water allocated to applicant. 116 H. 481, 174 P.3d 320.

Despite evidence that permit applicant violated chapter 340E, neither the water code nor the public trust precluded the commission on water resource management from allocating water to applicant to supply water to domestic end users from a delivery system that may not comply with chapter 340E; as this jurisdiction separately regulates water allocation and drinking water standards, and there was no discernable legislative intent to make water use permit applications subject to compliance with chapter 340E, violations of chapter 340E were not germane to a review of the propriety of water allocation under the water code and the public trust. 116 H. 481, 174 P.3d 320.

The planning commission's findings of fact were not erroneous and its conclusions of law were correct, viewed in light of the duties and authority mandated by the public trust; therefore its decision to deny applicant's permits was not arbitrary and capricious. 133 H. 141, 324 P.3d 951 (2014).

Where the public utilities commission dealt not with a proposed use, but rather a rate increase that did not increase the amount of water used or change how the water was extracted, and the utility's effect on the public trust water resources would be the same whether or not the rate increase was approved by the commission, the commission's rate approval had no effect on the public trust; thus, the commission did not violate the public trust doctrine. 127 H. 234 (App.), 277 P.3d 328 (2012).

Appellee Kauai County planning commission's public trust duty under this section, coupled with the State's power to create and delegate duties to the counties, established that appellee had a duty to conserve and protect water resources in considering whether to issue a special permit to appellant water bottling company. 130 H. 407 (App.), 312 P.3d 283 (2013).

Public trust duties under this section extended to appellee Kauai County planning commission's review of appellant water bottling company's existing and proposed use of water for its operations; the county's public trust duty under this section coupled with the State's power to create and delegate duties and responsibilities to the various counties through the enactment of statutes, established that the county had a duty to conserve and protect water in considering whether to issue a use permit and zoning permit to appellant. 130 H. 407 (App.), 312 P.3d 283 (2013).

The applicable standards and criteria that appellee Kauai County planning commission was required to employ to meet its public trust obligations in considering appellant water bottling company's combined application for a use, zoning, and special permit were: (1) that appellee's decision be initially grounded in the framework of statutes and regulatory provisions that authorize appellee to act; (2) that appellee make appropriate assessments and require reasonable measures to protect the water resources; and (3) because appellant sought to use the water for economic gain, that appellee give the application a higher level of scrutiny and that appellant carry the burden to justify the use of the water in light of the purposes protected by the public trust. 130 H. 407 (App.), 312 P.3d 283 (2013).

 

 

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