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Native Hawaiian Law - A Treatise, Chapter Traditional and Customary Access and Gathering Rights. by David M. Forman and Susan K. Serrano.
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Majority at 49 n. But neither the text nor the history of article XI, section 1 provides for differing levels of protection for individual natural resources, such as water as compared to land, and this court should not establish artificial distinctions without a compelling basis for doing so. It is fundamental that the land held in trust under article XI, section 1 should receive the full protections it is rightfully afforded under our constitution. An essential step in securing these protections is establishing a clear framework for agencies and courts to employ in future cases when applying public trust principles to state conservation land.

In the absence of such guidance, courts and agencies will be forced to develop their own ad hoc methods of applying public trust principles to the various natural resources implicated by their decisions, which will result in incorrect interpretations and unequal treatment of protected resources.

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Our caselaw setting forth public trust principles governing water resources provides a uniform standard that may easily be applied to other natural resources with only minor alterations. By identifying a general framework for evaluating the impact of State actions, we ensure that all of the public natural resources entrusted to the State for the benefit of the people are afforded the same degree of protection as the text and history of article XI, section 1 attest that the drafters intended. I therefore write separately.

Thurston ed. It belonged to the chiefs and the people in common , of whom Kamehameha I, was the head, and had the management of the landed property. State by Kobayashi v. Zimring, 58 Haw. Responding to pressure from foreign settlors who sought fee title to land, Kamehameha III instituted a reformation of the traditional system of land tenure during the s. In , this court specifically addressed the implications of this history in State by Kobayashi v.

Chief Justice Richardson then dispelled all doubt that he was referring to the common law public trust doctrine, stating: [W]e hold that lava extensions vest when created in the people of Hawaii, held in public trust by the government for the benefit, use and enjoyment of all the people. Under public trust principles, the State as trustee has the duty to protect and maintain the trust property and regulate its use.

In a footnote, he cited Illinois Central R. Illinois, U. A review of the convention records indicates that the delegates were well aware of contemporary decisions by this court regarding the public trust doctrine when they drafted the provision. Robinson, 54 Haw. Bronster v. Cayetano, 73 Haw. Gardens at W. Maui Vacation Club v.

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Thus, the principle that public land is a public natural resource within the meaning of article XI, section 1 has long been established under our law. Our evolving caselaw applying constitutional public trust principles to water usage was collected and summarized by this court in Kauai Springs, Inc.

Next, the framework provides the agency with evidentiary guides to assist it in addressing these obligations. Lastly, the framework informs the applicant as to what must be shown in order to obtain a permit. All of these principles may be applied to state conservation land with relatively little alteration.

The first principle, originally derived from Robinson v.


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Ariyoshi, 65 Haw. Additionally, agencies must verify that the use of the land will further a public purpose and that the project is not unreasonable considering possible alternate uses of the conservation land. In making this determination, the Kauai Springs framework calls upon the agency to consider the proposed use of conservation land in relation to the public trust purposes that this court has identified.


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The public trust purposes for water resources were developed over time through case-by-case adjudication. An analogous trust purpose for conservation land exists for each. The first trust purpose, the maintenance of waters in their natural state, is easily adapted: the maintenance of conservation land in its natural state.

The second--the protection of domestic water use--is likewise applicable. The analogous trust purpose for conservation land requires the State to consider the protection of the common uses to which the general public puts conservation land, including access, outdoor recreation, and enjoyment. The third and fourth trust purposes for water resources also have direct analogues when applied to state conservation land. The protection of water in the exercise of Native Hawaiian and traditional and customary rights clearly coincides with the protection of conservation land in the exercise of traditional and customary rights.

And consideration of the reservations of water enumerated by the State Water Code would similarly coincide with consideration of the various dedications and regulations of land set forth in federal, state, and local law. The next set of principles set forth in Kauai Springs provide evidentiary guidance to the agency in fulfilling its public trust obligations, which may also be directly applied to conservation lands with little need for modification.

As with water, any consideration of a proposed use of conservation land should include a presumption in favor of public use, access, enjoyment, and resource protection. Proposed uses for conservation land should be evaluated on a case-by-case basis, 7 and proposals for private or commercial uses should be assessed with a high level of scrutiny. Under the framework, an applicant is required to demonstrate the need for a conservation district use permit, the propriety of using conservation land to fill that need, and a lack of a practicable alternative location suitable for the project.


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And, if there is a reasonable allegation of harm to public trust purposes, the framework requires that the applicant demonstrate that reasonable mitigation measures will be implemented to alleviate the cumulative impact on trust purposes of both existing and proposed uses. Applying this requirement to conservation land, an applicant must demonstrate that there will be reasonable efforts undertaken to mitigate the negative impact on the public trust purposes discussed above from both the proposed undertaking and other existing projects that make use of conservation land.

In sum, our precedents governing the constitutional public trust obligations of agencies and applicants may readily be adapted to conservation land, and the history and text of article XI, section 1 indicate that they should be so applied. The TMT project should therefore be considered in light of our existing public trust framework rather than ascribing differing types of constitutional protections depending on the particular public natural resource at issue.

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In addressing its constitutional public trust obligations, however, the Board made a number of conclusions that are not wholly consistent with established law. To be sure, the three constitutional trusts share similarities, including that the public is a beneficiary of each.

And in some instances, the trusts may share assets in common, as in the present case when the conservation land at issue is both ceded land and a public natural resource. But each of the three trusts is distinct, with its own historical origin and unique trust purposes. It also does not afford a presumption in favor of public use, access, enjoyment, and resource protection, nor does it require that the agency subject proposed private or commercial uses to a higher level of scrutiny.

Lastly, the rule does not speak to the obligations that article XI, section 1 imposes on the applicant for the proposed use of natural resources, including demonstrating an actual need for the resource, a lack of alternative means of meeting that need, and the undertaking of reasonable mitigation measures if the proposed use will cause harm to public trust purposes. To be sure, the majority cites an array of findings that are relevant to our determination of whether the Board fulfilled its public trust duties under article XI, section 1. Majority at The majority, however, does not provide significant guidance regarding how these findings should be evaluated or applied under our precedents, stating only in very general terms that they fulfil the requirement of conservation and resource protection.

And, because the majority does not establish a framework or set forth specific requirements, the basis for its determination that BLNR fulfilled its article XI, section 1 public trust obligations remains unclear.

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Further, the majority misapprehends portions of the article XI, section 1 public trust doctrine that it does apply. The majority appears to conclude that these factors make the TMT project a public use that falls within the presumption. But this approach threatens to render the presumption meaningless.

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Although donations or payments to the State and community that are unrelated to the actual use of a resource may be somewhat relevant to whether the proposed use of the conservation land is being put to a reasonable and beneficial use, they have no bearing on whether the proposed use is itself public in nature. Were this not the case, virtually any use of a natural resource could be converted to a public use falling within the presumption simply by coupling it with sufficient auxiliary payments to the State or community.

The Board made a range of detailed findings and conclusions relevant to this inquiry. It made additional specific findings regarding the impact of the project on the flora, fauna, and other biological resources located at and near the project site, including by considering the effect of the project on various habitats and the possibility of the introduction of invasive species. And the Board made detailed findings regarding the plan to decommission and restore the project site upon the completion of the TMT project.

Based on these findings, BLNR concluded that the TMT Project would not cause significant damage to the public natural resources on or surrounding the project site. The Kauai Springs framework next calls upon an agency to consider whether the proposed use of the conservation land is beneficial and reasonable in relation to other possible uses. The Board stated that these benefits would accrue at very little harm to the public.

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Under the framework, the agency must duly evaluate the impact of the proposal on the enumerated trust purposes this court has identified. As discussed, in the context of conservation lands, these purposes include the maintenance of conservation lands in their natural state, protection of recreational usage by the public, protection of conservation lands in the exercise of Native Hawaiian traditional and customary rights, and the preservation of various land dedications and compliance with regulations in state and local law.

Each of these trust purposes was properly considered by the Board in its decision and order. BLNR also considered the effect of the TMT project on the public trust purpose of public access, enjoyment, and recreation.