CHARTING THE BOUNDARIES OF HAWAII'S EXTENSIVE PUBLIC TRUST DOCTRINE POST-WAIAHOLE DITCH.

• Author: Ching, Ana

1. Introduction 117 II. Background 118 A. Ahupua 'a System 119 B. Western Contact and Mahele 120 C. Ceded Lands and Admission Act 121 D. Hawai'i State Constitution 122 E. Common Law 122 III. Waters 123 A. Waiahole Ditch 124 1. Defining the Scope, Purpose, and Substance of the Public Water Trust 126 2. Agency and Lower Court Decisions Following Remand 127 B. In re Wai'ola o Moloka'i 128 1. MR-Wai'ola's Request for a Water Use Permit 129 2. The Hawai'i Supreme Court's Decision 130 C. Kaua'i Springs 132 1. Lower Court Rulings 133 2. The Hawai'i Supreme Court's Decision 134 3. The Planning Commission's Decision on Remand 135 IV. Lands 135 A. Lava Extensions 136 1. Historical Land Grants and Traditional Usage 137 2. Accretion and Avulsion 138 B. Pohakuloa 139 1. The Circuit Court's Decision 141 2. The Hawai'i Supreme Court's Decision 142 C. MaunaKea 143 1. Development for Astronomical Uses 144 2. Mauna Kea I 146 3. BLNR Contested Case Hearing 146 4. Mauna Kea II 147 5. Inclusive, Participatory Processes 149 V. Conclusion 149 I. INTRODUCTION

   Hawai'i's public trust doctrine is perhaps the most expansive in the country. Unique in its breadth and constitutional basis, the Hawai'i public trust doctrine also sets itself apart from that of other states in terms of its origins. Unlike other states, the Hawai'i legislature and judiciary have rarely pointed to Justinian or Roman law as the origins for the public trust doctrine. (1) Instead, Hawai'i's public trust origins lie in Hawaiian history and traditional Native Hawaiian land use practices. This deep connection to history and culture have significantly influenced the development of public trust purposes, both in the state constitution and in state case law.

   The majority of Hawai'i public trust cases concern water issues. Hawai'i's expansive public water trust is grounded largely on the Hawai'i supreme court's landmark In re Water Use Permit Applications (Waiahole Ditch) (2) decision, which has served as a basis for many subsequent public trust decisions. (3) Waiahole Ditch is a cornerstone of the Hawai'i public trust doctrine. Thus, any examination of Hawai'i public trust case law must begin by surveying Waiahole Ditch and subsequent water cases. However, Hawai'i public trust case law also pertains to resources other than water--most notably, lands. The Hawai'i supreme court has applied the public trust doctrine to land extensions created during volcanic eruptions (4) and, most recently, to Mauna Kea, a mountain peak not adjacent to any bodies of water but which is a site of Native Hawaiian religious practices. (5)

   Woven throughout all of Hawai'i's public trust cases are notions of Native Hawaiian traditional and cultural rights, which are protected under the Constitution of the State of Hawai'i. (6) The inclusion of Native Hawaiian rights as a trust purpose leaves space for expanding Hawai'i's public trust: because traditional Hawaiian and cultural practices incorporate all aspects of Hawai'i's natural resources--including freshwater, marine, land, air, and wildlife resources--recognizing native rights under Hawai'i's public trust doctrine must necessarily mean extending the trust to all of Hawai'i's natural resources. However, extending the public trust doctrine does not necessarily lead to greater protections for all resources, as courts have ruled that the public trust doctrine requires a balancing between protection on the one hand, and maximum beneficial use on the other. (7) Thus, the trust's objective is not to maximize protection, but instead to achieve the most equitable and beneficial allocation of resources. As the case law demonstrates, this approach has left space for commercial uses of public resources.

   This Comment traces the unique history of Hawai'i's public trust doctrine and contemplates the trust's future. Section II examines the doctrine's roots in Hawaiian history and in Native Hawaiian land use practices. Section III surveys some of Hawai'i's many public water trust cases, including the landmark Waiahole Ditch decision, which established much of the groundwork for subsequent judicial interpretation of the public trust doctrine. Section IV surveys land trust cases, including two very recent decisions, Ching v. Case (Pohakuloa) (8) and Matter of Conservation District Use Application HA-3568 (Mauna Kea II), (9) the former decided in 2018 and the latter decided in 2019. Finally, Section V notes that the public trust doctrine requires the state and its agencies to consider Native Hawaiian rights when determining allocation of trust resources, and concludes by arguing that this requirement is best served by including and embracing native voices in administrative proceedings, rather than resorting to judicial solutions.

2. BACKGROUND

   In one sense, Hawai'i's public trust doctrine originated in a late twentieth century court decision. (10) But, in another sense, the doctrine's roots are much deeper and are grounded in Hawaiian history and in traditional Native Hawaiian land use practices. When applying the public trust doctrine, Hawai'i courts often begin by examining the unique history of private land ownership in the state. (11) Because courts also tend to draw connections between the modern public trust doctrine and traditional Native Hawaiian views toward land, water, and other resources, understanding these connections is necessary before examining the case law. (12)

   1. Ahupua 'a System

      Private land-ownership was non-existent in Hawai'i's pre-contact period. (13) Instead, the mo'i (king) of any given island was responsible for administering the land, which he parceled out into ahupua 'a, areas stemming from a central point in the uplands and fanning out to the sea along the natural boundaries of the watershed. (14) Under the leadership of the mo'i, the ali 'i (chiefs) and konohiki (overseers) would administer the ahupua'a, and the maka'ainana (common people) would tend the land. (15) Each ahupua'a contained the resources needed to sustain the community, including access to freshwater, upland timber, lowland farms, and fisheries along the coast. (16) Under this system, in which the common people maintained access to the resources of their respective ahupua'a, all resources remained available for public use. (17)

      For most of Hawai'i's history, no single king ruled over all of Hawai'i's lands. Instead, multiple kings controlled individual islands or island groupings. (18) But at the turn of the nineteenth century, King Kamehameha I became the first monarch to bring all eight major Hawaiian islands under his sovereign rule. (19) Even with all islands under his control, the land did not belong privately to the king, but rather "belonged to the chiefs and the people in common, of whom Kamehameha I. was the head, and had the management of the landed property." (20)

   2. Western Contact and Mahele

      Following western contact in the late eighteenth century, conflicts arose between natives, who held to their traditional public land use system, and foreigners, who often sought to claim private land rights without the king's consent. (21) In the 1840s, under pressure from foreign residents who sought fee title to Hawai'i lands, King Kamehameha III (22) instituted reforms of the traditional land use system. (23) Known as the Great Mahele (Great Division), the scheme allocated approximately one third of lands to the king, one third to the chiefs, and one third to the government for future allocation to commoners. (24) The Kuleana Act, (25) which established fee simple ownership of land, followed shortly thereafter. (26)

      Under the reforms, Hawai'i established a Board of Commissioners to Quiet Land Title (commonly known as the Land Commission), the purpose of which was to investigate and ascertain or reject all private land claims. (27) Upon ascertaining a land claim, the commission would make an award and, after receiving payment, the Minister of Interior would issue a Royal Patent for the land. (28) Under this new system, public land rights diminished as individuals gained private title to lands. (29) However, in granting private land ownership, the king expressly reserved his sovereign prerogatives to encourage and enforce the use of lands for the common good. (30) Water in particular, as one of the "most important usufruct of lands," could not be transferred to an awardee of land, and ownership of water in natural watercourses was reserved for the people for their common good. (31)

      Although intended to provide secure land title to Native Hawaiians, the Mahele and Kuleana acts were a catastrophe for most. (32) The Kuleana Act required claims for government land to be filed within two years of enactment. (33) Lacking money and knowledge of Western administrative systems, most Native Hawaiians made no claims, and the government eventually auctioned off most of the land to non-natives. (34) In all, native residents ended up with less than one percent of the total land set aside for the common people. (35) The government considered this historical backdrop when Hawai'i became a state in 1959, and later when it introduced amendments to Hawaii's state constitution in 1978. (36)

   3. Ceded Lands and Admission Act

      The 1893 overthrow of the Hawaiian Kingdom led to a Congressional Joint Resolution of Annexation in 1898, (37) at which point Hawai'i became a territory of the United States. (38) Upon annexation, all real property classified as crown lands or government lands was ceded to the federal government. (39) Congress, recognizing the special nature of these "ceded lands," exempted them from general laws governing federal lands and directed instead that the lands should be held in trust for the benefit of Hawai'i's people. (40)

      Upon Hawai'i's admission to the Union in 1959, the federal government returned ceded lands to the state. (41) The terms of admission "considered the plight of the Hawaiian people," as evidenced by section 5(f) of the Admission Act, which...