The Protection of the Environment, Cultural Resources, and Quality of Life in Hawaii State Court

• Publication year: 2020

The Protection of the Environment, Cultural Resources, and Quality of Life in Hawaii State Court

by David Kimo Frankel

Among the natural resources designated for preservation, protection, and restoration are "recreational resources," "historic resources," "scenic and open space resources," and "coastal ecosystems." See HRS § 205A-2. In my view they constitute property "owned" by the public.

Sandy Beach Defense Fund v, City Council, 70 Haw. 361, 389, 773 P.2d 250, 267 (1989)(Nakamura, J. dissenting)

Those who hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many. Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.

[BJfore these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.

Sierra Club v. Morton, 405 U.S. 727, 744-745 and 750, 92 S. Ct. 1361, 1371 and 1374 (1972) (Douglas, J. dissenting).

Despite the lamenting dissents of Justices Nakamura and Douglas, the doors of Hawaii state courts are open to protect resources so long as procedural obstacles are avoided. This article presents a broad overview of some of the basic issues in environmental cases in state court. It is not intended as a treatise on the substance of the state's environmental laws.¹ Nor does it describe specific cases in detail. Rather, it outlines how environmental cases are litigated. It discusses the typical claims brought to protect natural resources, cultural practices and quality of life. It highlights the procedural obstacles to bringing these claims to trial. It concludes by describing the relief available in these cases.

I. CLAIMS²

Three types of claims can be brought to protect natural resources, cultural practices, and quality of life: common-law and equitable claims; constitutional claims; and violations of state statutes, charter provisions, ordinances, or rules.³

A. Common-Law Claims

For the purposes of protecting natural and cultural resources and our quality of life, there are five claims that are the most appropriate⁴: public nuisance; desecration of graves; interference or infringement with custom; harm to public trust property; and breach of trust. When traditional property interests or personal injury are involved with damage to the environment— subjects beyond the scope of this article — claims for nuisance,⁵ trespass,⁶ or negligence⁷ may be appropriate.

[Page 4]

1. Public Nuisance

A public nuisance is one that unreasonably interferes with a right common to the general public.⁸ A public nuisance includes that which "unlawfully annoys or does damage to another, anything that works hurt, inconvenience, or damage . . . and anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights."⁹ Public nuisances include: the obstruction of a public right of way;¹⁰ the destruction of cultural sites;¹¹ the disturbance of burials;¹² and the violation of zoning laws.¹³

2. Desecration of graves

Claims based upon the desecration of graves have a long history.¹⁴

3. Interference with custom

Although there are few cases which discuss the claim, interference or infringement with custom is a recognized common-law claim.¹⁵

4. Harm to public trust property

The Hawaii Supreme Court has appeared to recognize the right to raise a claim of damage to public trust re-sources.¹⁶

5. Breach of trust

The ceded lands trust, the Hawaiian Homes trust, and the public trust doctrine each impose trust obligations upon government entities. Breach of trust claims are well recognized by the courts as a part of their inherent juris-diction.¹⁷

The ceded land trust¹⁸ requires the state to preserve and protect trust property¹⁹ and to prevent trust property from falling into ruin and from degradation.²⁰ Similarly, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands must comply with basic trust principles, including protecting and preserving the Hawaiian Home Lands' environmental assets and ensuring they are not harmed from interfering uses.²¹ The public trust doctrine governs the management of all natural resources,²² and includes a panoply of duties.²³

[Page 6]

Because government entities (unlike private parties) have trust duties to the public, breach of trust claims involving natural and cultural resources are generally filed against government entities.²⁴

B. Constitutional Claims

Citizens have the right to sue the government over its violation of its constitutional duties²⁵ (for prospective injunctive relief, but not for damages).²⁶ Because the constitution constrains the conduct of government rather than private parties, constitutional claims generally can only be filed against government agencies and officials.

The Hawaii Supreme Court has held that citizens can sue to enforce Hawaii State Constitution Article XII § 4 (ceded land trust obligations),²⁷ §7 (duty to protect traditional and customary practices)²⁸, and Article XI §§ 1 and 7 (public trust responsibilities).²⁹ The procedural vehicle to bring constitutional challenges appears to be HRS chapter 6 3 2 ³⁰ — although HRS chapter 673 is available in certain limited circumstances.

[Page 7]

C. Claims Based on Violations of State Statutes, Charter Provisions, Ordinances, or Rules.

Suits can be brought to enforce environmental statutes enacted by the state legislature, ordinances passed by the county councils, charter provisions approved by the people, and rules enacted by administrative agencies. Knowing which procedural vehicle may be best, however, can be challenging.

1. Environmental laws

Although citizens generally cannot enforce legislation unless the legislature intended to provide a private right of action,³¹ the public can usually seek redress of violation of laws that protect our natural resources, cultural practices, and our quality of life.³²

The legislature has provided for specific private rights of action in HRS §§ 6E-13 (historic preservation),³³ 46-4(a) (county zoning),³⁴ 128D-21 (hazardous substances), 195D-32 (endangered species), 205A-6 (coastal zone management), HRS § 342B-56 (air pollution), and 343-7 (environmental impact statements). These statutes, however, do not constitute the universe of environmental statutes which citizens can enforce.

[Page 8]

Article XI section 9 of the Hawaii State Constitution allows enforcement of all laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.³⁵ The private right of action likely includes all the statutes identified by the legislature in HRS § 607-25(c).³⁶ These statutes include those dealing with historic preservation (HRS chapter 6E),³⁷ county planning and zoning (HRS § 46-4 and the county planning and zoning ordinances adopted pursuant thereto),³⁸ county boards of water supply (HRS chapter 54), public lands (HRS chapter 171),³⁹ the water code (HRS chapter 174C), soil erosion (HRS chapter 180C), forest reserves (HRS chapter 183), the conservation district (HRS chapter 183C), state parks (HRS chapter 184), natural area reserves (HRS chapter 195), endangered species (HRS chapter 195D),⁴⁰ the state land-use law (HRS chapter 205),⁴¹ coastal zone management (HRS chapter 205A),⁴² harbors (HRS chapter 266),⁴³ air pollution (HRS chapter 342B),⁴⁴ water pollution (HRS chapter 342D), noise pollution (HRS chapter 342F), solid waste (HRS chapter 342H), hazardous waste (HRS chapter 34J), underground storage tanks (HRS chapter 342L), and environmental impact statements (HRS chapter 343).⁴⁵

The identification of HRS chapter 46 in HRS § 607-25(c) arguably allows citizen enforcement of a panoply of county ordinances that are all ultimately based on HRS chapter 46 — as well as county charter provisions.⁴⁶

Given their environmental subject matter and their identification in HRS § 604A-2 (environmental courts), a private right of action also likely exists to enforce statutes related to caves (HRS chapter 6D), Kahoolawe (HRS chapter 6K), hazardous substances (HRS chapter 128D),⁴⁷ litter (HRS chapter 339), electronic waste (HRS chapter 339D), solid waste (HRS chapter 340A), drinking water (HRS chapter 340E), ozone (HRS chapter 342C), nonpoint source water pollution, (HRS chapter 342E), integrated solid waste management (HRS chapter 342G), lead acid batteries and tires (HRS chapter 342I), asbestos and lead (HRS chapter 342P), and environmental covenants (HRS chapter 508C), as well as all the conservation and resource statutes within HRS title 12.

A private right of action likely applies to other environmental statutes, although not specifically identified in HRS § 607-25(c) or § 604A-2, including state planning (HRS chapter 226),⁴⁸ pesticides (HRS chapter 149A),⁴⁹ public access (HRS chapter 115), and all those statutes involved with reducing carbon emissions (portions of HRS chapters 196 and 269).⁵⁰

2. Declaratory Actions

Declaratory actions (HRS chapter 632) have been the procedural vehicle by which many environmental claims alleging violations of state statutes or county ordinances have been brought.⁵¹ Declaratory actions are typically filed — and can only be filed — when an appeal cannot be filed pursuant to HRS chapter 91.⁵²

[Page 9]

3. HRS chapter 91

When government agencies and officials render decisions, these decisions are generally challenged pursuant to HRS chapter 91.⁵³ These include: decisions regarding an agency's rules; agency declaratory orders; decisions made after a contested case hearing; and decisions to deny (or effectively deny) a request for a contested case hearing.

a. Challenging the validity of a rule Challenges to the validity of an administrative rule are filed...