Putting the Public Back in the Public Trust Doctrine: A Reinterpretation to Advance Native Hawaiian Water Rights

Steven Hindman

*This post is the second of three entries, each of which were winners of the Environmental and Law Use Law Section’s award for the best law review notes or articles related to environmental or land use law. This post includes an abstract and introduction; for the entirety of the article, please visit the Washington Law Review.

The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s application has not always benefited Native Hawaiian interests.

This Comment analyzes the current status of the public trust doctrine in Hawai‘i and its unique relation to Native Hawaiian rights. Because the State has historically prioritized large sugar plantations on the islands over its Native population, modern applications of the doctrine to protect the islands’ natural resources are a relatively new concept in Hawaiian law. By evaluating statutes and cases from the Kingdom of Hawai‘i (1795–1893); the Territory of Hawai‘i (1900–1959); and the current State of Hawai‘i (1959–present), this Comment builds a more complete picture of Hawaiian jurisprudence around natural resource allocation and explores ways to reinterpret the public trust doctrine. One of the purposes of the doctrine has been to protect Native Hawaiian water rights and to uphold the exercise of Native Hawaiian traditions and customs, yet the State has yet to live up to that purpose. The State Legislature should enact laws that require consultation with Native cultural organizations when a state agency issues any permit in land, water, or other natural resource or when any court reviews the allocation and use of any natural resource.

INTRODUCTION

Some Native Hawaiians¹ consider the Mauna Kea Mountain to be an ancestor: a living parent of Wākea (Sky Father) and Papa (Earth Mother).² The summit is widely known as the “Kūkahau‘ula (a cluster of cinder cones), . . . a wahi pana (storied place) and wao akua (the place where gods reside).”³ The “piko (navel)” touches the sky in a way that those who visit become aware of the connections to their ancient ancestors.⁴ Numerous shrines pepper the mountain, indicating a pattern of pilgrimage or “a walk upward and backward in time to cosmological origins” to worship various deities.⁵ The Mauna Kea summit can be thought of as the “piko ho‘okahi (the single navel),” which secures the “spiritual and genealogical connections, and the rights to the regenerative powers of all that is Hawai‘i.”⁶ Before Europeans explored the islands of Hawai‘i, Native Hawaiians considered the summit off limits to all but the highest chiefs and priests.⁷

The Mauna Kea summit has been a point of contention for Native Hawaiian rights. The State of Hawai‘i and the University of Hawai‘i sought use of the summit for the gigantic Thirty-Meter-Telescope (TMT) because of its favorable conditions for space observation.⁸ This project would be the first of its kind in size and capabilities but would desecrate highly sacred land.⁹ In In re Conservation District Use Application (CDUA) HA-3568 (Mauna Kea),¹⁰ the Hawai‘i State Supreme Court ruled in favor of the University and held that the public trust principles supported the construction of the TMT.¹¹ Cases like this illustrate the need to adapt Hawai‘i’s public trust doctrine to meet the needs of the Native residents.

Native Hawaiians have always maintained some legal rights to use their land and water for subsistence farming practices.¹² The State of Hawai‘i has a troubled relationship with the greater Native Hawaiian population, often because the State puts the interests of the influential sugar industry above all else.¹³ The Hawai‘i State Supreme Court has acknowledged in several opinions that the State owes some duty to protect the scarce and valuable resources on the islands.¹⁴ This acknowledgement has led to the emergence of the public trust doctrine through Hawai‘i State Supreme Court precedent.¹⁵ This Comment harmonizes the needs of Native Hawaiians with the needs of the state to protect its resources. Additionally, this Comment argues that the public trust doctrine can go beyond simply protecting the natural resources of the state and protect the people who have historically used and conserved those resources. By looking at recent decisions from the Court stripping Native Hawaiians of their rights, this Comment demonstrates the need for reforms and provides proposed amendments to better support Native rights. It is imperative to always uphold Native rights and freedoms in any situation. How the government treats one group of people informs us of how they treat others.¹⁶ By ensuring our laws and judicial precedents protect Native Hawaiian rights, society as a whole benefits.

Part I of this Comment explores the complex history of Native Hawaiian water laws and explains how the legal landscape shifted when westerners encountered the islands. Concurrently, Part I establishes a framework for the public trust doctrine that led to the landmark McBryde Sugar Co. v. Robinson¹⁷ decision and the subsequent implementation of the doctrine into Hawai‘i State statutes. This framework creates a more complete picture of the doctrine and how it relates to Native Hawaiian culture and traditions. Part II analyzes the In re Water Use Permit Applications (Waiāhole Ditch)¹⁸ and Mauna Kea opinions to demonstrate when the doctrine can be used to benefit Native Hawaiians and, alternatively, when the doctrine can be used to acquire Native land and harm Natives in the process. In Part III, this Comment explores how the public trust doctrine can be amended in state statutes to require Native input in any resource allocation decision. Finally, this Comment concludes by framing the public trust doctrine in the context of the larger battle for increased sovereignty for the Native Hawaiian people and provides proposed amendments.

To develop a more accurate conveyance of Native storytelling, this Comment will use many important Native Hawaiian terms and expressions throughout. The use of these terms reflects the need to remain true to the Native perspective and reject the common practice of westernizing Native culture and erasing Native history. Each term will be defined at its first use but, for convenience and clarity, this Comment includes an appendix following the conclusion.

I. THE DEVELOPMENT OF THE PUBLIC TRUST DOCTRINE IN HAWAI‘I

[For the rest of this article, please visit the Washington Law Review.]

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1. The terms “Native Hawaiian” and “Kānaka Maoli” will be used to refer to “all persons descended from the Polynesians who lived in the Hawaiian Islands when Captain James Cook arrived in 1778.” Jon M. Van Dyke, Who Owns the Crown Lands of Hawai’i? 1 n.1 (2008). Both “Native Hawaiian” and “Kānaka Maoli” will be capitalized throughout this Comment to denote the unique legal status of this group in relation to the governments of Hawai‘i and the United States. See HAW. REV. STAT. § 10-1 (1979) (noting that the State of Hawai‘i acknowledges its trust obligations to the Native Hawaiian people upon admission as a state, including in the State Constitution). ↩︎
2. In re Conservation Dist. Use Application HA-3568 (Mauna Kea), 431 P.3d 752, 757 (Haw. 2018). ↩︎
3. Id. ↩︎
4. See id. at 758. ↩︎
5. Id. (quotation marks omitted). ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. See id. at 758–59. ↩︎
9. See id. at 757, 759. ↩︎
10. 431 P.3d 752 (Haw. 2018). ↩︎
11. Id. at 775. ↩︎
12. See Shaunda A.K. Liu, Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders, 25 U. Haw. L. Rev. 85, 86–87 (2002) (explaining that “[i]n ancient times, the land and its resources were under the control of the king, who in turn parceled out areas to his chiefs and supporters down to the common people”); see also Hawaiian Homes Commission Act, 1920, Pub. L. No. 67–34, ch. 42, § 207(a), 42 Stat. 108, 110–11 (1921) (codified as amended in HAW. CONST. art. XII, §§ 1–3) (noting “[t]he commission is authorized to lease to native Hawaiians the right to the use and occupancy of a tract or tracts of Hawaiian home lands” for agricultural, aquacultural, pastoral, or residential purposes); see also Haw. Rev. Stat. § 174C-101(c) (2022) (enumerating “traditional and customary rights [of Native Hawaiians] . . . include, but [are] not . . . limited to, the cultivation or propagation of taro on one’s own kuleana”). ↩︎
13. See infra section I.D. ↩︎
14. See, e.g., McBryde Sugar Co. v. Robinson, 504 P.2d 1330, 1338–39, aff’d on reh’g, 517 P.2d 26 (Haw. 1973) (concluding that the State of Hawai‘i is the “owner of the water [in streams in rivers]” and this water is “reserved for the people of Hawaii for their common good”); Reppun v. Bd. of Water Supply, 656 P.2d 57, 66–67 (Haw. 1982) (explaining that the Supreme Court justices concurred with the “conclusion reached in McBryde that . . . the ownership of water in natural watercourses, streams, and rivers remained in the people of Hawaii for their common good”). ↩︎
15. See infra section I.F. ↩︎
16. See, e.g., Luis Angel Toro, “A People Distinct from Others”: Race and Identity in Federal Indian Law and the Hispanic Classification in OMB Directive No. 15, 26 Tex. Tech. L. Rev. 1219, 1241 (1995) (“While gross physical similarities are used as shorthand for the differences among at least some of these groups, it is economic, political, and social forces, and not physical differences, that act to keep these groups internally similar and externally somewhat separate from the rest of society.”). ↩︎
17. 504 P.2d 1330, aff’d on reh’g, 517 P.2d 26 (Haw. 1973). ↩︎
18. 9 P.3d 409 (Haw. 2000). ↩︎