Hawaii's Thousand Friends

LANDMARK WATER DECISION BY HAWAII SUPREME COURT

Apr 02, 2001

LANDMARK WATER DECISION BY HAWAI'I SUPREME COURT UPHOLDS PUBLIC TRUST DOCTRINE IN WAIAHOLE CONTESTED CASE!
Friends who have viewed the Hawaii Supreme Court's decision may have been as delighted as your HTF board by the intensity, almost passion, of the justices' embracement of the Public Trust Doctrine. They said, not once, but many times, that a Hawaiian stream has an intrinsic value that far surpasses its use as a conveyor of irrigation or landscape water. In a closely, and extensively reasoned decision the court found that a Hawaiian stream is not a resource to be looted for golf course irrigation, but something of value to be preserved and guarded as a natural treasure, and to be used with the greatest possible care.

The Court made it explicitly clear that entities taking
stream waters have to show the State Water Commission a compelling legitimate reason for having the water, prove that taking it will do no-harm to the stream, and that no other water sources are available. The Justices said further that the burden of proof of that taking water is acceptable lies with the "takers" of water, who must show the commission that no damage will occur. The "guardians" of water, therefore, are not obliged to prove that taking water will damage the streams. They further affirmed that agencies allocating water should use the "precautionary principle" that requires that when there is uncertainty as to whether taking water will hurt the resource you refrain from doing so until it is, reasonably certain that no harm-will be done.

The Court spelled out in great detail the applicability of the Public Trust Doctrine, and they reviewed the case law with extraordinary attention. It was plain to us that they did not want this decision overturned. They placed it squarely in the mainstream of Hawaiian law and the common law that underlies that law. They were at pains to demonstrate that the Public Trust Doctrine had been with us along time, was incorporated in many of their earlier decisions, and had to be considered in future water issue's. They reaffirmed that streams had protection and that, if anybody tried to mess them up, as has been the practice in Hawai'i, they had best be ready for a serious battle. Your Board has embraced the Public Trust Doctrine wholeheartedly, and most ably represented by attorney Jim Paul, we used our intervenor status at the Water commission hearing to insist that the public trust law be honored. It has been honored now.

The Court noted that the Water Commission's arithmetic in allocating water was more worthy of the Cat in the Hat than of a technical government body. Not only could it not multiply correctly, it got addition and subtraction all wrong. It gave as much water to a fallow field as to a planted one. It gave more water than was asked for in some cases. It even gave an allocation for "wasted" water to prop up a badly leaking ditch system. Such actions are not acceptable, said the Court, and neither is taking stream water without first ascertaining that there is no alternative source of water.

The Court found that the instream flow studies were grossly insufficient, and that depending on these to decide on how much water to take out of the stream was-defective management. Management, said the Court, is, what the Water Commission was created to do, and must d6 it properly, as we are running out of water. It is water that you should be managing, not crises. The waters of Hawai'i belong to all the people of the State and not the owners of the land the waters flow over (or under) which the waters flow. The message was always the same: the Water Commission must allocate and care for Hawaii?’s waters. It must act as a trustee and safeguard the water.

By invoking the Public Trust Doctrine so vigorously the Hawai'i Supreme Court has set a new environmental standard for Hawai?’i and undoubtedly influenced other states. It has affirmed that there is a higher threshold of environmental protection the state must meet, one that has been ignored too long here. This decision ends the days of the "takers" and begins the days of the "guardians" of our waters The decision was a big ALOHA for natural Hawaii.

While we are on the subject of aloha, a full measure goes to our executive director, Donna Wong, and former board member Steve Kubota, who both represented us at every day of the hearings and materially assisted our brilliant attorney, Jim Paul, in making our case for the Public Trust Doctrine. Aloha also to Hawai'i Lai'eikawai for financial support. Aloha- to the Reppuns, their supporters and allied organizations, and their talented attorney Paul Achitoff and the entire Earth Justice Legal Defense Fund team. Aloha to-the strong Hawaiian team that came out to protect Hawaiian streams. The whole effort ended in success, and we now have a much stronger hand to play when we rise in defense of our waters


Fred Madlener, Past HTF President