Court's Waiahole Decision 'Inspiring,' Says Public Trust Expert Jan Stevens

posted in: February 2002, Water | 0

Jan Stevens, who championed the public trust doctrine while employed with the California Attorney General’s Office and working on the celebrated Mono Lake case, spoke in Honolulu last fall at a conference on the public trust sponsored by the University of Hawai`i law school’s environmental law program, local bar associations, and the group Hawai`i’s Thousand Friends.

Teresa Dawson of Environment Hawai`i caught up with Stevens after the conference to get some insight about where Hawai`i’s water struggles fit into the larger national picture.

What place does Waiahole have in the nation’s discussion of the public trust doctrine?

I think the Hawai`i Supreme Court opinion has been the keynote in unifying the traditional native law with the common law and with state constitutional and statutory law. It’s probably the best single opinion that brings all those things together, and the virtue of that is it really shows how universal the public trust is, what a common principle that’s shared by all these three systems of law. That’s inspiring.

Local legislator Colleen Hanabusa in a panel discussion remarked that how or whether the public trust doctrine is implemented depends greatly on the governmental structure. How does the structure of Hawai`i’s government compare to California’s?

I really think it’s very similar. I think Hawai`i has the tools to implement the trust through the Water Commission, which is very much like California’s state water board. All the commission needs is the kind of direction that the Supreme Court has provided to apply trust standards and to avoid harm when it can.

The attorneys general of the west had a conference in February and one of the things they discussed was the Waiahole case and the fact that it was so consistent with western water law that it’s really a mainstream kind of a opinion. That was refreshing to see.

One panel member said Hawai`i may not just be in the mainstream with regard to public trust doctrine, but has a chance to be on the cutting edge. What do you think?

I think [Hawai`i is] on the cutting edge with respect to imposing a planning requirement and to amalgamating the Hawai`i law into this. Obviously [the Waiahole decision is] the cutting edge for Hawai`i. It’s been an interesting system that you’ve had [with] large land holdings and water diverted for the purpose of plantations. We had a real interesting discussion about small farming with the Reppuns [Waiahole taro farmers] and the virtues of small farms versus large farms with employees.

What are the greatest misconceptions about the public trust doctrine?

Well, I think there are two kinds of misconceptions. One is on the part of the water rights holders, and they have done their best to minimize the trust and to say that basically, the public trust has been subsumed into the state water rights systems to the extent that doesn’t really exist anymore and all it is is a matter of deciding whether domestic use should be favored over recreational use and questions of that sort. That’s wrong, I think.

The public trust is an extra layer of review and trusteeship that has to be taken into account in making water allocation decisions for public trust purposes. And on the other side, I think there might be a tendency to overestimate its efficacy as a tool in reforming water rights law systems because it does permit balancing. The problem is that without sufficient legislative guidance on the balancing test, it depends on the predilections of an individual judge if you take it to court and what that judge feels.

In the lower American [River] case, the judge felt it wasn’t necessary to require East Bay MUD [municipal utility district] to take its water out of the Sacramento River instead of the American because he felt that a physical solution was appropriate and could accommodate the contract. Another judge might have come out the other way. The ironic part is that after another eight years of struggling, East Bay MUD has decided to go down to the Sacramento River, which is what the judge could have ordered them to do in the first place and saved all this time. It’s unpredictable.

The subject of when Hawai`i adopted the public trust doctrine came up today. Why does it matter whether it was pre-overthrow or after statehood that it was incorporated into Hawai`i law?

If the state court makes a sudden, unpredictable change in state property law, that can result in property owners claiming a compensable taking. The older the doctrine is and the longer you can show that it was applicable in the state, the less likely you are of having that argument sustained, and this is a long accepted principle of property law; they couldn’t have been surprised by the ruling, they could have had no investor expectations.

— Teresa Dawson

Volume 12, Number 8 February 2002