The doctrine of the public trust has become a keystone nationally in the efforts of communities to press for restored streams, watersheds, and other natural resources that are part of the public weal. In Hawai`i, the public trust doctrine played an important role in legal arguments to have at least a part of the diverted water from Waiahole Stream restored to Windward O`ahu channels. In August 2000, the state Supreme Court’s decision regarding that case cites the public trust doctrine extensively.
At an October 4 conference at the University of Hawai`i on the public trust doctrine, Moderator Kem Lowry, chair of the University of Hawai`i’s Department of Urban and Regional, posed a question to a panel of people from various governmental and private agencies. If we take the public trust doctrine seriously, he asked, what two or three things ought we be doing to better implement it? Here are some of the responses.
Colin Kippen, Office of Hawaiian Affairs: The one thing I would recommend to the Legislature is to bring your checkbook.
Chris Yuen, Hawai`i County Planning Director: I’d basically recommend something similar, but let me give an example. We have an incredible public highways system and the reason is that when you buy gasoline, a chunk of the money from buying gasoline goes into a fund that builds up, and É as a result we have this incredible public highways system.
Every month, you write a check to your local board of water supply that pays É for pipelines, maintenance, repair, pumping cost, reservoirs and the like. None of that goes to managing and protecting the resource itself.
What we need to do is find ways to make sure that that is part of the equationÉ When you get out your checkbook and you pay for water every month, if you’re serious about looking at the public trust, and serious about saying that, ‘Gee, the long-term protection of the resource is what’s most important,’ then we’ve got to look and say that that’s just as important as pumping it out of the ground.
Bill Devick, administrator, Division of Aquatic Resources for the state Department of Land and Natural Resources: I don’t know if there’s actually an easy solution to this. Obviously, we have to have funding to do the work that is required, but much of this, too, is attitude. We have to change peoples’ way of thinking. This gets down to education.
I’m not sure that there is not already a lot of potential in the existing system, to direct some of that effort to trying to inform the public and to especially informing kids, because kids can influence their parents.
So, rather than at this point simply saying pull out the checkbook, especially considering the state of the economy, I would like to see some greater effort on the part of the entire state government to direct efforts towards informing people. Possibly if there was a legislative mandate, it could somehow be pointed in that direction.
Moving Forward, By Miles or Inches
Joseph L. Sax, one of the keynote speakers along with Jan Stevens, presented closing remarks at the conference. Sax is James H. House and Hiram H. Hurd Professor of Environmental Regulation at Boalt Hall School of Law at the University of California at Berkeley and an expert in the public trust doctrine:
There are not many places where one could put together a panel like Hawai`i [has]. The public trust is a philosophy and a tool. Planning, management, administrative processes, sources will be looked at first and in context of good data about potential losses and opportunities are. If you handle things right, in the presence of a court that supports the public trust doctrine, it empowers the Legislature to move forward and pushes the Legislature to move forward on some agenda items that have not gotten adequate attention. It energizes administrative agencies to act, and it stands ready in the background to make sure they do their jobs. It’s there if you play it right to help you get the job done and to create some incentives to move new ways. But you’ve got to take advantage of that.
On the subject of endless water controversies: Jan [Stevens] gave examples from California. In light of the potential of having endless litigation, people have been induced to work out solutions that don’t give anybody all that they want but create an acceptable resolution. In the aftermath of Mono Lake case, there was a lot of talk about collapse, that nothing could be built, food would not be available. As you see, things have not collapsed. That’s encouraging.
Then there are the legal points about É property taking. These are questions that will find their way to the Supreme Court. My own observation is that critical issues that the U.S. Supreme Court will want to look at is what is the state law? The court has been traditionally very deferential to a state’s interpretation of its own law. [Montana, Idaho, Arizona, Maine, and New York] are classic cases of states that have taken a narrow view of public trust doctrine. If you have a state that takes broad view, you can expect the Supreme Court will follow where states go.
Another question I don’t know answer to is whether the court will ultimately decide these are rights that have been a part of your law for a long time, going way back or new ideas. Those will be critical questions.
It’s not a cure-all. It’ll not solve all your resource problems. This is a world of never-ending struggle. It just goes on and on and on.
But [be it by] miles or inches, at least you’re moving forward.
— Teresa Dawson
Volume 12, Number 8 February 2002