Good morning. Let us begin. We are privileged this morning

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JIM PAUL: May you please take your seats.

Good morning. Let us begin. We are privileged this morning

to have with us two brothers, Liko and Kala, who are going to

lead us in a chant to convene this symposium. They are from

Waipahu and Wihole.

LIKO: Today we are going to be reciting

three oli. The first of which is a Pali whose intent is to

help clear the way so we have a nice, productive, positive

event today. The second is, the second oli asks and answers

the question where is the water of Kane? Where is the water of

life? The third is an invitation. It asks us all to drink of

the sweet waters together, to share the goodness of life. I

just wanted to add that in Hawaiian tradition water is always

equated with oli. You're going to here that word in this

chant, the word oli, in Hawaiian that means life itself and you

always hear it with Kane kawai oli. The God Kane with the

waters of life and I'd just like to offer up these 3 short

chants to start our day off today. (Chanting in Hawaiian)

JIM PAUL: Thank you Kala and Liko for

blessing us with those words. Please go ahead and take a seat.

Good morning again and welcome to this symposium this morning

on managing Hawaii's trust doctrine. My name is Jim Paul and

I'm a member of the program committee which has been working on

pulling this program together today. I want to note that this

entire symposium has been generously under written by the

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Hawaii Community Foundation for which we cannot give enough

thanks and an also being cosponsored by several organizations

and I'd like to mention them; the Hawaii State Department of

Health, the Hawaii State Coastal Zone Management, the Hawaii

State Office of Planning, the Hawaii State Office of

Environmental Quality Control, the Hawaii State Department of

Land and Natural Resources Division of Aquatic Resources, the

Hawaii County Planning Department, the Department of Urban and

Regional Planning here at the University of Hawaii, the

Environmental Law Program at the Richardson School of Law here

at the University, the Natural Resources Section of the Hawaii

State Bar Association, the Native Hawaii Bar Association,

Hawaii Styles and Friends and the American Fishery Society, and

we thank all of them for their support on this important topic.

We are priviledged to have with us today two of the

widely respected and well-known people in the United States,

with respect to the Public Trust Doctrine, Professor Joseph Sax

and Mr. Jan Stevens, who you will be hearing from here shortly.

We are also priviledged to have with us today, as I'm sure all

of you here know, a very wide and very remarkable for me cross

section of Hawaii's leaders and people who are very interested

in this doctrine and most of you, as you know, have played a

role in some way, some small and some very large, in the cases

and in the development of this doctrine and where it is today.

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Before we begin I'd like to go over some preliminary

matters which are important. First, each of you has received

and you should have received a black binder with a number of

written materials in it. The third page of that binder, as you

may already have noticed, has our schedule for today and as you

can see right now we are only 10 minutes behind but we're right

on schedule. Our schedule is packed and it is tight but we're

going to do our best to stay with it so that we do finish by 1

P. M.. We have only one break and that's for 15 minutes and

that's from 1030 to 1045. The bathrooms, as you may have

noticed, are right outside the auditorium and to my left if you

haven't noticed, and feel free during the presentation not to

have to wait until the break to use them if you wish. We have

some coffee and some snacks outside as you see, but it is very

important that we bring no food or drink into this auditorium.

We thank very much the School of Architecture for permitting

us to use this auditorium but school regulations prohibit any

food or drink and we'd all appreciate your cooperation in that

regard. Unfortunately we cannot permit any oral questions or

any oral inquiries today because of our schedule and simply

because we just do not have time to do that. We ask your

understanding with respect to this and we ask your courtesy in

complying with this rule. That does not mean that, however, we

will not have questions. In the material that you were given

there were 3 by 5 cards. Please feel free to submit written

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questions during any part of today with respect to any aspect

of this. If you don't have your 3 by 5 cards, there will be

students from the law school and from the university who will

be walking through the aisle during our presentation and they

have 3 by 5 cards. Please feel free to ask them. You'll see

at various times that students will be bringing those questions

up to the moderators and to others, and they will be dealt

with. There will be opportunities during the break and after

we finish at 1 o'clock to speak with, I hope, for each of you

that can't restrain yourself and I include myself in that

category, to speak with Professor Sax or Mr. Stevens or others

of our panelists today. Written materials, obviously you

haven't had a chance to read them and we understand that but I

recommend them to you, they are very interesting and in

addition to the schedule the fourth page, and ît's ^ itself a

two sided page, has the biographies and ît's ^ itself a very

brief biography of our speakers and our panelists today. We

will not be spending time, with one exception that I'll get to

in a moment, really to get into people's backgrounds. Please

refer to those biographies. We prefer to use our time to try

to get into the issues today. There are articles and comments

that have been included. Most of the panelists that you will

see today on the panels have submitted written pieces sharing

some of their thoughts with respect to the Public Trust

Doctrine and I think a very interesting array of perspectives

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from different points of view about the doctrine and what it

means to people who are in some way responsible for dealing

with it and implementing the doctrine.

There's also the last six pages, a very good

bibliography which Professor Denise Antolini has been very good

to put together with respect to the Public Trust Doctrine, a

wealth of information, easy to use and easy to see, for you to

take with you. There are also, as you might have noticed, a

couple of books on sale at heavily discounted prices that are

out front and you'll have an opportunity, if you haven't

already, to take a look at those further at the break and at

the end of the day and I recommend both of those to you highly.

As you can see this is being videotaped today by

Ouella, so it is important that I remind each of our speakers

and our panelists it is important that each of us, and I'm

reminding myself, that each of us speak into a microphone

today, not only for the purposes of the people here but for the

purposes of the recording. Finally and not the least

important, for those of you who have beepers and cell phones

with you, if you would please do each of us a favor and turn

them off now.

The catalyst for this symposium was the August, 2000

Waiahole ditch decision. Denise has asked me to please call it

the Waiahole water decision but I can't break the habit. I

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call it the Waiahole ditch decision. Several interested

parties who are involved in that case believed that a gathering

such as this was essential to focus on the Public Trust

Doctrine and specifically that doctrine as it has now been

established by that decision in Hawaii. By coincidence, both

of our speakers today, both Professor Sax and Jan Stevens, are

quoted by the Hawaii Supreme Court in that decision. We hope

by the end of today, by 1 o'clock that all of us here will have

a better understanding of certain issues such as just what is

Hawaii's Public Trust Doctrine, who is responsible for managing

and implementing that doctrine, what are the specific

responsibilities of the state and its subdivisions and

agencies, what does it mean on a day-to-day basis for

regulators, policy makers and managers of the state, and why is

it supportive of and consistent with many of the native

American and native Hawaiian notions of the relationship

between human beings and natural resources. ît's ^ itself an

ambitious list of questions but I hope by 1 o'clock we all have

an opportunity to think about these questions.

It is now my pleasure to introduce Professor Denise

Antolini who will introduce our keynote speaker for the day,

Professor Joseph Sax. Because Denise's biography is not on

page four of your materials, permit me to just spend a brief

moment introducing her. Denise is an assistant professor at

the Richardson School of Law here at the university. She is

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very active in the law school's environmental program and has

been very active not only in this law school but in previous

live environmental issues across this state and elsewhere. She

was at the birth, if I can call it that, of the Waiahole ditch

case, a long long time ago but not too far away when she

represented the Waiahole, Waikane Community Association and

others before this case became a contested case here at the

water commission. Perhaps most importantly, she was a student

of Professor Sax's in his first year at the University of

California, Berkley, and she is looking forward to introducing

him today. Denise.

DENISE ANTOLINI: Aloha and good morning.

Especially in Hawaii, water is life and rain is literally and

figuratively, culturally and economically is a blessing. The

Hawaiian word for water, wai, is a beautiful word used to

describe so many special places with special sources of water

like Waiahole, Waikane, Waianu. The importance of water to

Hawaiian culture is evident in the term wai wai which means

wealth and Kanewai which means law. Yesterday I had the great

priviledge of accompanying Professor Joseph Sax and his wife

Ellie, and Jan Stevens and his wife Karen on a tour of the

Waiahole water system and stream. The morning was very gray

and very raining. Certain circumstances that might have

dampened the spirits of a less intrepid group of travellers but

Joe, Ellie, Jan and Karen were not only as you might guess very

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experienced travellers but each of them has visited Hawaii many

times over the past 30 years so as we began driving up the

Waiahole Valley Road into the misshrouded Pali, I think they

all knew we were in for an unforgettable Hawaiian adventure.

Suddenly we had a view between the dripping trees of

the stunningly steep cliffs ringing the back of Waihole Valley.

The spectacular cite of a symphony of gushing waterfalls

plunging down the Pali took our breath away. As we climbed up

the rough road to the tunnel, it quickly became evident to me

that yesterday, the day that these very special people came to

visit it, Waiahole stream was spectacularly high, perhaps at

record levels and the roaring sound was phenomenal and it was a

chicken skin experience. So why do I relate this story to you

as a way of introducing Professor Joseph Sax? For three

reasons.

First, to me the rain was a sign of blessing for

their visit to Hawaii. I hope they continue to enjoy every

minute of it and to come back often. Second, the full and wild

stream was a tribute in my mind to Joe. Without knowing it and

in a far away place that he probably never knew he would visit

and as a result of scholarship that he began over 30 years ago,

his wisdom and passion had had a real, immediate and

breathtaking impact. Yes, like so many of you in this room who

had some role and a little something to do with the restoration

of Waiahole stream, Joe was partially responsible for the fact

9


that that stream was gushing and not trickling. The third

reason is that Joe and his lifetime of scholarship reminds me

of the vitality, the wealth and the blessing of our water in

Hawaii. For more than four decades, his contribution to law

teaching, legal scholarship and public policy have been like

those waterfalls, incredibly prolific, sometimes unexpected,

always enriching, fluid and inviting and powerful. He has

authored over eight books and over a hundred articles on law

and public policy that are listed in your bibliography in the

areas of endangered species, citizen suits, environmental

impact, statement law, property law, takings, public lands,

especially national parks, and of course water law and the

Public Trust Doctrine. His life of teaching and scholarship

has touched so many lives, lives of people he never knew and

probably will never meet. Decades of students, advocates,

communities, decision makers, litigators and most importantly,

he's touched the haina.

From my experiences, first as a student of his first

year when he arrived at Berkley, and as a public interest

litigator, and now as a law teacher teaching environmental law,

I am very grateful to him for his pioneering work, especially

in areas of citizen suit litigation and water law. Joe is

recognized throughout the country as one of the founding

fathers of modern environmental law, not only the Public Trust

Doctrine. He's not only a lawyer's lawyer but in my view he's

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a scholar's scholar. He makes a difference. His biography is

summarized in your materials but let me highlight for you what

other nationally recognized scholars themselves have said about

Joe Sax. In 1998 there was an extraordinary panel of scholars

from across the country at an annual conference of the American

Association of Law Schools in San Francisco and I was lucky to

be able to go to this panel discussion and it was five or six

distinguished scholars all there to discuss the scholarship of

Joe Sax. And what a tribute it was and the room was packed.

The convener of that panel, Richard Lazarus from Georgetown

University Law Center, said this about Joe, "If one was to ask

legal scholars to name the two or three most significant

natural resources law scholars of modern times, Professor Joe

Sax's name would be on everyone's list." Extraordinarily

engaging in person, he is even more so in his legal

scholarship. He presents a rare combination of passion and

intellect. He has, in his own work both as a teacher and

scholar, demonstrated the positive attention for bridging

academic scholarship and law reform. He has been a mentor, a

model and indeed an inspiration of many of those who teach and

practice natural resources law today. He is a historian, a

multi-disciplinarian, an inventor, a tinkerer, a first-class

lawyer with a passion and a vision. Also known as the 'dean of

water law', he is a master of rhetoric, he's a populace seen as

an optimist. Professor Sax, thank you again for coming to

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Hawaii. We thank you for inspiring us, for educating us, and

for your creative and impragmatic approach to environmental law

in the public interest. Aloha and welcome.

PROFESSOR SAX: Thank you very much. I

would like to start by forgiving Denise for her exaggerated

introduction. ît's ^ itself comments like that assure that no

matter what one says in the speech itself, it's guaranteed to

be disappointing. I also want to thank Jim and others for

their hospitality to us on our visit here, both on behalf of

myself and my wife, and also to thank you two brothers for your

chant which was to me as a visitor a very special and unusual

treat and a wonderful way to introduce this session.

It's obvious to me just looking out at a large number

of people today that you have all come together to participate

in a very important symposium in which to discuss and to

inquire into the implications of a very important and

significant decision that was issued about a year ago by your

Hawaii Supreme Court. You will hear during the course of this

session from a number of people who are very broadly

experienced and extraordinarily knowledgeable about Hawaii law

and the history but unique and unusual legal history of this

state, a matter on which I am not an expert and can provide no

special knowledge. What I hope to be able to do today,

however, is to try to share with you some sense of how these

developments that you have been concerned with during the last

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years and months in Hawaii water and public trust law fit into

the more general context of water and public trust development

elsewhere in the United States to try to put your developments

into a prospective of what's been going on elsewhere in the

country. Let me start by saying simply water is unique among

resources and it's not unique simply because it sustains us,

though of course it does that.

Unlike other resources, unlike land or oil or timber

which are also essential to our modern lives, water, whether we

find it beneath the earth or in surface streams, is a moving

and a cyclical resource. Its supply is uncertain and

unchangeable from season to season and from year to year. By

its very nature, by its physical nature, it is a shared common

property. We cannot command it as a fixed object as we do with

land or with other minerals. The water we use today is not the

same water we'll use tomorrow and the water we use is routinely

used again and again by someone else downstream or downriver

and ultimately water returns to the sea. It is a continuum.

Surface water and underground water are parts of a single

integrated system. For these reasons the legal regime applied

to water is unlike any other and this has been true in every

state and in every nation and at all times. Water is never

owned in the usual sense. We acquire only use rights in it, or

what lawyers call a use of frock because water is inherently a

common resource. It is subject to common servitudes, the

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familiar ones such as the right of public navigation. We find

these concepts in various forms in all legal systems, not only

those familiar remnants of the Ancient Roman law that underlie

the modern Public Trust Doctrine which has stripped

privatization of the sea and the seashore, but also, for

example, the Spanish law, some elements of which are still

operative in the American Southwest.

One such concept is the Pueblo right which

establishes a common entitlement to water for the benefit of

the whole community or Pueblo in which therefore limits the

ability of anyone to invest in themselves private rights in

such water. You might be surprised to know that the city of

Los Angeles is a Pueblo and even today it holds Pueblo rights

in the Los Angeles River and in the ground water in the San

Fernando Valley distributary to the Los Angeles River.

Similarly in the 18th and 19th centuries, Spanish communities

in America constructed community ditches or sequias which

members of the community were obliged to maintain and such

facilities are still found and maintained in places like rural

New Mexico. Irrigation and early Indian communities in the

Southwest were also community and not individual efforts. All

these diverse laws from widely separated places on the globe

emphasize one idea - water is first and foremost and indelibly

a community resource whose fate tracks the communities' needs

as time goes on. Water evolves in the common law tradition,

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public trust law is common law founded on community water

rights. Public trust law evolves to meet community needs. The

public trust law is only one instrument in this more general

world. In western water law a whole panoply of distinctive

rules apply to water. All of which insulated in greater or

lesser degree from ordinary commodification. While one can

acquire these so-called use of frock /TRAE or use rights as

property rights in water and they are constitutionally

protected property rights. They can only subsist so long as

they are for beneficial use, only for the amount that's needed

for that beneficial use, only to the extent the water is not

wasted and the rights last only so long as the need remains.

One cannot hold water without using it merely as an investment

and non-use triggers forfeiture statutes that will return

unused water to the public. These are the general principals

of water law.

In more humid regions where riparian law prevails,

the central public precept of water law is that rivers belong

to the place where they arise. Traditional riparian law

permits use only to those whose land boarders the water and

prohibits water from being taken out of the watershed of origin

for use. Moreover, riparian doctrine traditionally restricted

demolition of natural flows, holding that the values of a river

must be protected for each successive resident and for the

downstream community. While some of these rules have given way

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in light of contemporary water needs, it is a striking fact

that elements of the riparian doctrine's community has been

making a strong resurgence in many places in the arid west.

Watershed restoration which watershed protection and

restoration, which has recently emerged as a new environmental

goal, is as old as the English common law of riparian rights

and natural flow. A number of western states, among them

Colorado, Montana and California have versions of so-called

areas of original laws and policies that are designed to assure

access to native waters to those communities in which waters

originate as against the fully commodified market property

approach to water and water rights.

There's one other feature of water law that reveals

its essential status as a common resource. I've already

adverted to its evolutionary character that permits it to adapt

to meet the changing needs of the community that depends upon

it. Because water is so central to the life of a community to

which it is a part, water has shown it's remarkably adaptable

to the needs of a community. Some of these transformations are

well-known. In preindustrial England and America, as I

mentioned just a moment ago, the natural flow doctrine

prevailed. Rivers were left to flow as they did did in the

state of nature which suited agricultural and pastural

landscapes prior to the 19th century. As industrialization got

under way, most prominently with the mills that powered the

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early industries of New England, natural flow doctrine yielded

to a more industry-friendly doctrine known as reasonable use.

The law changed to permit the versions to produce hydropower

and the natural flow doctrine gave way. The versions of it are

making a strong come back in the context of environmental

restoration. Similarly, the unique business needs of the

timber industry in the upper midwest, the lumber that built

places like Chicago, demanded a revised definition of what was

navigable water. One of the keystone concepts of traditional

water law, except during the winter when they could be skidded

across the snow, the only way to get the great white pine logs

to market was by floating them down the rivers but only waters

where tides ebbed in flow and where ships went carrying freight

were traditionally navigable public highways. So the courts

revised the notion of navigability and it narrowed the rights

of private land owners along these streams in the midwest by

determining that the river could be navigable even if it was

not effected by the tides and even if its suitability by

Congress was measured by the the movement of lumber and not by

ships. This is another classic example of the common laws

judicially-led evolution to accommodate the public and public

trust right in navigation.

As population moved west past the hundredth meridian,

the line dividing the so-called humid and arid regions of North

America, another and even more dramatic change occurred -

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riparianism, the very essence of water law in Anglo-American

tradition was simply not recognized in the West. Instead,

western states fashioned the prior appropriation system which,

among other things, abolished watershed restrictions and it

permitted water to be moved out of water basins where it was

needed for mining, later for irrigation and finally to support

municipal development in cities like Los Angeles, Denver,

Albuquerque, and San Francisco. Riparian landowners objected

that no such change could be acheived as against their

traditional riparian rights to the water and that such rights

were explicit in their land titles. Of course as we now know,

those claims too were overwhelmingly swept aside by the same

reasoning that had led to the modification of the natural flow

doctrine and to the redefinition of navigability. The courts

found that water was a community resource and that rights in

water were always contingent on the fundamental needs of the

community at the time reflecting natural conditions such as

aridity or the origin of social goals.

In a famous opinion in 1882 in Colorado, the Colorado

Supreme Court said that we conclude that the common law

doctrine is inapplicable here, imperative necessity unknown to

the countries which gave it birth, compelled the recognition of

another doctrine in conflict with the old. The evolutionary

character of water law has continued in a variety of contexts.

The principal of a coffin case that I just quoted and the

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commitment to beneficial which at that time meant economically

productive use as the source and limit of water rights, gave

rise to another Colorado case some 20 years later in which it

was determined that leaving water in streams would not serve as

a beneficial use and no one could acquire a right to leave

water in stream. Why? Because by the standards and the goals

of that day, water was considered too precious to be left in

the river. Indeed it was standard law that the only way to

perfect the beneficial's right of use was physically to take

the water out of the river and to apply it to some economic

purpose. When more contemporary values to protect fish and

riparian services, as well as recreation, came to the floor, it

was argued, as it had been when the appropriation doctrine

first displaced the riparian doctrine, that to treat instream

flows as beneficial and to allow an individual or a state

agency to appropriate water in stream for environmental

protection was to take away the established property rights of

others to appropriate the water. But the courts rejected this

claim just as they had rejected the previous traditional claims

and today in stream uses are everywhere considered beneficial,

even essential uses of water.

So once more history's wheel turned. I know that a

minute ago that Colorado eliminated riparian rights from the

very beginning of settlement. Many other western states, the

Dakota's, Oregon, California, retained some of these riparian

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rights at least for a while. Then in various ways with one

exception, Oklahoma, they either eliminated or restricted the

acquisition of future riparian rights. Though loss by nonuse

was absolutely antithetical to traditional riparian doctrine.

In each such instance, it was ascertained again that the

abolition of unused riparian rights was a violation of invested

property rights. Those claims too have failed. While

California courts struggled with this issue over many years,

they too have finally accepted that unused riparian rights can

be subordinated in order to foster more efficient and more

beneficial uses of water, as called for by the constitution's

mandate that water be used for reasonable and beneficial

purposes in the public interest.

Nearly a half century earlier, the California Supreme

Court had rejected the claims of riparians that they could use

water as extravagantly as they wished to benefit their lands

however great the adverse impact on others who had a need for

the water. This pre-existing riparian property right inherited

from the times of abundance, water was abolished by state

constitutional mandate in 1929, long after the common law

entitlement had been recognized. Yet again, the courts

rejected the claim that riparian's constitutionally protected

property rights had been violated. The courts held that

traditionally riparian perrogatives were no longer permissible

in light of the common interest in putting water to beneficial

20


and reasonable use as understood by the needs of the time. I

could extend this list almost endlessly. To your relief I will

not, but the central point I'm trying to make I hope is obvious

at this point. The rules governing the use of water have

always been in a dynamic relationship with the evolving values

of the community. You will no doubt have noticed that in all

the examples I have given you so far, I have made little

mention of the Public Trust Doctrine, as such, and indeed the

examples I've provided did not rest explicitly on the public

trust. The fact is that Public Trust Doctrine is the

theoretical underpinning of a general legal superstructure that

submits water rights and water uses to evolving community

needs.

It is, however, in public trust cases that the courts

have most fully articulated the legal relationship between

private use and public entitlement. Public Trust Doctrine in

America is nothing new. It is generally traced back to a New

Jersey case in 1821 and to the U.S. Supreme Court's decision in

the famous Illinois Central case in 1892. In each case, the

central message was that the lands underlying navigable waters

could never be privatized to the detriment of fundamental

private rights and in the water, in the lands and in the water

overlying them. The trust is old but its applications to water

diversions and to environmental protections is often new and

recent. In congruence with the fundamental principal that I

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have been describing, doctrine adapts to emerging social goals

and needs. It is often mistakenly asserted that the public

trust deals with submerged lands, such as tide lands, and thus

that it has nothing to do with water uses such as water used by

irrigators or municipalities who divert water from rivers or

who pump ground water, but the public trust is centrally about

water. States took ownership of bottom lands, tide lands, in

the original 13 colonies and later in the public land states of

which Hawaii, of course, is not one precisely in order to

protect public uses in the overlying waters. Using that

traditionally embraced navigation, water-related commerce,

fishing and in some places, fouling, hunting for foul.

Restrictions on disposition of public trust bottom

lands were imposed primarily to prevent filling or other uses

that would limit use of the overlying waters or access to them.

But there should be no misapprehension about the fact the

Public Trust Doctrine is primarily a water doctrine and only

instrumentally a land document. In a time before modern

regulatory government existed, it was believed that bottom land

proprietorship was essential to control overlying water use.

While it's true that the 1983 Mono Lake decision in California

is the first case that expressly applied the public trust to

diversionary uses followed shortly thereafter by Idaho, whose

legislature has set itself up in opposition to the courts and

perhaps next by Nevada, you will find nothing in the public

22


trust cases or in the literature to suggest that the public

trust protection of overlying waters excludes protection of

against diversionary uses. Indeed it could hardly be argued

that diversions that impaired public navigation, for example,

could not or would not be enjoined under the public trust even

if it's in its most traditional forms. The explanation for the

delayed application to appropriations for municipal use or

irrigation as we saw in the Mono Lake case or as you've seen in

your recent Hawaii case, is founded in the fact that the need

did not arise until social values evolved to recognize the need

to protect in stream and environmental values. Public Trust

Doctrine like water development generally has tracked community

goals and priorities. During the century and a half, dating

from the time of Arnold and Munley, the 1821 New Jersey case,

up to the era of the Mono Lake decision, our priorities were

overwhelmingly focused on the utilization of water to promote

settlement and economic development and that's what I was

describing earlier in the adoption of a new navigation doctrine

and the changes of riparian and the invasion of appropriation

doctrine. During those times, the public interest was viewed

as being promoted by encouraging diversionary uses, even to the

point of disallowing or forbidding in stream uses, as in the

case of Colorado as I mentioned a few minutes ago. Of course,

even in those days when the notion was that only by diverting

water by the water out of the stream can you make a beneficial

23


use. Even then no one thought it was a good idea to diminish

fisheries or to destroy the biologic productivity of estuarial

areas. It was simply assumed that in the vastness of the

country those values would be taken care of in undeveloped

streams, that they would be protected in reservations such as

national parks or wildlife refuges, or that they would be dealt

with by technological fixes such as fish hatcheries which were

to compensate for the destruction of salmon habitat, for

example.

As to the economies of indigenous people, insofar as

they depended on water, it must be said tragically that for a

long time it was generally believed that the public interest

would be advanced by terminating traditional uses, repudiating

native culture and beliefs, and assimilating native people into

the mainstream economy. Today everywhere in the mainland West,

native American water rights in the form of federal reserve

rights are being ascertained and are being recognized even

though they have been ignored for more than a century. As with

trust rights, generally they do not expire simply because they

have been unacknowledged for no matter how long a period of

time. Today, each of these earlier inceptions that I've

described whether to indigenous people, as to economical

services, or as to threatened services or to species, each of

those has either been repudiated or sharply revised, just as

the various earlier conceptions of water rights were revised to

24


meet the public priorities of their day. As water doctrine has

evolved, so has the common law Public Trust Doctrine, often in

phase with new statutes and new constitutional provisions that

made the trust explicit where it had previously been expressed

from common law decisions. In terms of the public trust,

probably the most significant modern decision was not the

national Audubon case, which was so well-known but probably but

an earlier case called Marks against Whitney, decided in 1971.

That case held the scope of the public trust protection could

evolve with changing public values and that the general purpose

of the trust to protect public rights in overlying water was

sufficient to encompass environmental values instream. As the

Court put it, "The public uses to which tidelands are subject

are sufficiently flexible to encompass changing public needs.

There is a growing public recognition that one of the most

important public uses is the preservation of those lands in

their natural state so that they may serve as ecological units

for scientific study and as environments that provide food and

habitat for birds and marine life." That's quoted from the

Court's opinion. One cannot contemplate the Marks' case

without recognizing that its conceptualization of the modern

public trust made national Audubon inevitable. After all, how

can one protect the marine environment without one? The water?

The adapted or evolutionary nature of the public trust has been

recognized in a number of states such as Washington and New

25


Jersey. A few years after Marks against Whitney, the North

Dakota Supreme Court opined that planning must take into

account the impact of water use as a public trust obligation.

In New Jersey, the courts have focused attention on beach

access, recognizing the vastly increased importance of

recreational use of water in modern times.

A similar case arose recently in Connecticut where

limitation of beach access to town residents was challenged as

violation of the public trust and while the Court did not

accept that theory, it did hold that exclusion violated the

expressive and vocational rights under the Constitution.

Though Wisconsin Supreme Court recently found that

privatization of waters through what is called documinium, like

condominium, marinas violated the public trust. Another

adaptive use of Public Trust Doctrine to modern recreational

conditions and a recognition of public rather than opposed to

merely private uses of water. In Vermont, the court found that

when private uses of trust lands consisted with the trust such

as use for warfage, the trust restrictions reemerged and the

property cannot be treated as free of the public trust.

The public trust is of special importance as the

states have expressly recognized because it invokes not just

authority but in due on the part of government to protect

public rights. Agriculture says of the state have an

affirmative obligation to come forward and to take on the

26


burden of ascertaining and implementing the public trust.

Moreover, the public trust is a continuing obligation. In

trust waters there can be no such thing as a permanent, once-

and-for-all, allocation of trust waters or land. That

principal is essential in acknowledging government

responsibilities to respond to changing public needs and

changing roles for water in the economy. National Audubon

affirmed that the public trust is a continuing obligation, that

it cannot be completed as to any given moment in time but must

remain open to accommodate new and changing conditions. That,

by the way, was not an invention of the national Audubon in

1983 but it had been the law in California since the 1920's

when it was articulated in an off-shore oil development case.

Similarly, in the California fish case going back to

1913, the courts held that grants of trust property must be

read as explicitly reserving public rights and public trust

uses as against assertions of permanent privatization. Other

states such as Arizona, have elevated the public trust to a

sovereign obligation, the Supreme Court says, "The Public Trust

Doctrine is a constitutional limit on legislative power." The

Illinois Supreme Court and the Illinois Federal District Court

had each turned over express legislative grants of trust

property to private entities make clear that they view the

trust as a constitutional mandate as had been the case in

Illinois Central a year earlier. The Washington Supreme Court

27


said, "Courts review legislation under the public," I'm quoting

again, "Courts review legislation under the Public Trust

Doctrine with a heightened degree of judicial scrutiny as if

they were measuring that legislation against constitutional

protection." Each of these approaches in its own way is in

accord with the general constitutional view in western states

that water belongs to the people, that it can never be fully

privatized and that the public interest in water can never be

granted away.

As the New Jersey court put it a hundred and

eighty-seven years ago, "such a result could never be born in

law by a few people." Speaking more broadly it could be said

that the whole history of property is not one of fixety but of

adaptive change within an evolving social setting and this

process goes back as far as one might want to look. At one

time, only eldest sons could inherit. When that posture became

socially unacceptable, a dramatic change in property rights

occurred. Similarly and until much more recently, when a woman

married, all of her property became her husbands to dispose of

at sole will. As the status of women changed, legislatures

enacted Married Women's Property Acts, and ended the husband's

dominion over spouses' property. Well within the last century,

child labor laws, maximum wage and hour laws, minimum safety

standard for workers, all of those laws invalidated valuable,

contract water property rights that had previously been

28


recognized. Sometimes new technological information such as

knowledge about radiation requires a formally valuable

equipment to be taken off the market. At one time, as some of

you may recall, every shoe store had a machine with an x-ray

that x-rayed your feet to make sure your shoes were not too

tight. Modern health laws made those valuable, property became

non property. The invention of the airplane forced us to

modify the notion that one owned his land from the center of

the earth to the top of the sky. Sometimes technology

increases property rights. Newly intrusive eavesdropping

equipment, for example, moves us to enlarge the definition of

what it means to trespass.

Sometimes social norms change. In the later 19th

century, when a number of states adopted prohibition on liquor

sales, stores and distilleries were left with liquor that they

could not even legally sale. Courts rejected the claim that

such laws violated property rights and the remaining stocks.

When the railroad was invented, noise and smoke that by

formally would be a nuisance, became an a future of

contemporary life that people were required to tolerate to some

extent. In light of this history, it can hardly come as a

surprise to anyone today that we should see property doctrines

evolving to bring about a reorientation of traditional

relationships between water being used devoted to diversionary

off stream uses and nystroem retention. That there should be

29


increased restrictions to promote water quality and that the

law ignore claims of indigenous people should finally be given

recognition. Though the Public Trust Doctrine has been one

important means through which some of these reallocations has

been acheived, it is not the only one and many parallel changes

could take place and indeed are taking place through other

means. Even the most casual observer of contemporary resource

law is aware of the statutes like the Clean Water Act and the

Endangered Species Act have been instrumental in reallocation

diversions to create greater instream flows. Indeed within

recent decades we have seen instream flow rights recognized for

the first time in a number of states and have seen an a much

greater use by water permit agencies, as well as federal land

management agencies, to maintain and enlarge bypass flows so as

to protect instream resources downstream. The U. S. Forest

Service has utilized bypass flows as a condition on its

right-of-way renewals for its water projects and the same sort

of conditions are being required on hydropower licenses as they

come up for renewal. We have even seen these issues arising in

a setting of reopening of interstate water allocations in the

U. S. Supreme Court.

In addition, active litigation and settlements by

Indians to finalize reserved right claims for reservations have

made mainland and native people and their traditional claims

major factors in ongoing water reallocations that are taking

30


place almost everywhere in the western states. Obviously, many

of these developments parallel changes that may be generated by

Hawaii's recent Waiahole ditch case. To be sure there are some

facts of that opinion that I'm sure will be discussed today

are, that are distinctive to Hawaii, or are at least our only

insipian to other states, such as the the application of the

trust to domestic use to ground water without explicit

reference to navigable waters and references to native and

traditional and customary uses.

Of course, California decisions also generated new

applications of old principals, as I'm sure Jan Stevens and his

talk will discuss in considerably more detail. In addition,

while the Hawaii opinion may suggest in a level of engaged

judicial oversight that has not, or at least has not yet been

water right's administration in other states under the Public

Trust Doctrine, regarding issues like burden of proof and

so-called precautionary principal. There are many examples,

some of which I've already noted of vigorous judicial

commitment in the states to protect public trust values, even

including invalidation of legislation that was determined to

undermind the public trust. Active implementation of public

rights in water reflecting contemporary public values, rather

than those of an earlier time would put Hawaii squarely in the

main stream of America's evolving water law system. Thanks.

JIM STEVENS: Thank you very much, Mr. Sax.

31


Now I'd like to introduce Peter Adler. It's not true that he

needs no introduction. He is our moderator for the first panel

and as I said, take a look at page four of your materials and

learn about Peter Adburg because his name is first on the

biography list.

PETER ADLER: Good morning everybody.

Thank you, Jim. Thank you Professor Sax for a very thought ful

start to our symposium today. All of you I know have seen the

Hilo park system. At some point I want you to imagine

Schroeder, as you watched on Charlie Brown lying on their backs

staring at cloud formations and Charlie Brown asks Shroeder

what he sees and Schroeder says, "Well I see a brief

perceptualization of fairness, of truth, of health. I see a

resolution of /* /* /* life labor and management, state of the

union vigil. I see a transformation within the halls of

justice has been enabling this force for citizens in the

communities and vigilance. What do you see?" And Charlie

Brown says, "Well, it doesn't take a (inaudible)." It's time

for me to introduce our panel. Their bios are in front of you.

And if you put your name cards, that will also help identify

who you are. We're going to talk both about --s and duckies,

as well as reconceptualization, explicit in what we need to be

talking about. I want to occur to our panels to use the

microphones, this is being recorded. And if you have

questions, we'll have people running around so get your notes

32


on cards and we'll try to get to at least a few of those.

The way we're going to do this panel is I'm going to

ask each of our pretty distinguished panel here today, all

lawyers, all attorneys and two members of the board of land and

naturalization resources, if you would take five minutes to try

to summarize what's in the papers that people have in front of

them but haven't yet had a chance to read and I know there will

be a little bit of bargaining and bickering and some out yield

of immediate care to somebody else so we won't watch you too

closely but I don't want you to go on too long. Oops. We have

a presentation so we have (inaudible introduction of the first

panel - Jan Stevens, Bill Tam, Jim Paul, Ken Kupchak, Tim Johns

and Gil Coloma-Agaran).

We have all lawyers except me. Okay so Jim, I'm

going to ask you to start, if you would with five minutes, if

you will tell us what's in your paper and again with as much

particularity on Hawaii application of public trust as you can.

JIM PAUL : Thank you, Peter. Let me see

if I can take less than five minutes. I have a paper that's in

the materials that is an attempt to summarize the Waiahole

ditch case with particular focus on the Public Trust Doctrine

and I've tried to do that by quoting excerpts, hopefully in an

organized way, that helps the reader understand what is a

lengthy and at times complex decision and to make it perhaps a

little easier to understand. I've also tried to pull out lists

33


of what I believe are the duties of the state as a trustee of

the statewide water resources trust, referred to for the first

time by the Waiahole decision as a trustee. I tried to list

those duties as I believe they flow from the decision; tried to

suggest duties of water applicants, the burdens they must carry

as a result of those decisions; talked a little bit about the

burden of proof issues as set forth by the Supreme Court which

also may be, or certainly a candidate for, the most important

aspect of the decision for some people; and finally, tried to

talk a little bit about what the supreme court decision said

about the relationship between counties in particular, county

planning processes and the water commission.

Let me suggest that there are some fundamental

principals about the Public Trust Doctrine as a result of the

Waiahole ditch case, seven or eight fundamental principals of

the Hawaii Public Trust Doctrine. Briefly and with some

simplification for purposes of being brief. First, at its core

it provides enduring protection of certain precious natural

resources in Hawaii for the benefit of not only all people but

for the benefit of future generations. Second the state of

Hawaii is the trustee, the trustee of the public trust

resources with all of the duties that go with the notion of

being a trustee. Third, the Public Trust Doctrine is a

power ful property right of its own that in most circumstances

takes precedent over other property rights whether they are

34


private property rights or governmental property rights.

Fourth, the Public Trust Doctrine requires principal public and

rational planning processes concerning the use and potential

destruction of public trust resources. Fifth, the burden is

squarely placed on those who seek to use the public trust

resources such as the Waiahole ditch water, squarely placed on

those who seek permits to use that water to prove that there

will be no significant harm to the public resource and the

court noted that that burden is higher in the case of private

commercial uses. Sixth, Professor Sax said the so-called

precautionary principal, when scientific data and analysis is

simply inadequate to assess the potential damage to resources

from requested uses. That lack of science should not be used

as a basis to permit the use, the degradation, or the

destruction of the public trust resource.

The science-based precautionary principal should

apply to protect resources when the harm from use or

consumptive activity cannot be measured with some degree of

confidence. Seventh, the Public Trust Doctrine closely mirrors

native Hawaiian and native American notions of stewardship and

of natural resources and the relationship between human beings

and those resources. And eighth, as Professor Sax has just

articulated and hopefully convincingly, the doctrine evolves

and it is a central feature of the doctrine that it has evolved

and it will continue to evolve. Peter.

35


PETER ADLER : Thank you, Jim, and can I

ask you to go next so we can do this somewhat in the order as

we have it in the book.

KEN KUPCHAK: Thank you Peter. Despite the

fact that I've written an article in 1971 suggesting the burden

of proof as it is today in this decision, today I'm acting as

the devil's advocate, the ghost of Christmas future exclaiming

that the emperor has no clothes. Federal law suggests that

Hawaii's Public Trust Doctrine evolved or was born and new in

August, 1959, the moment of statehood. While we are in the

public resources in 1959. These 1959 resources are determined

by law and not by science. They are determined by legal

decisions and possibly how the government itself addressed

these rights and maybe even taxed them. In 1959, public trust

resources cannot be expanded without paying just compensation.

In 1978, constitutional amendments that we make cannot take

away previously recognized property rights. The highest courts

in Maine, Massachussetts, New Hampshire and New York have

acknowledged, as Professor Callings has indicated that if the

state courts drift from the historic trust morings, they risk

running a file of the Fifth Amendment.

In the last nine years, the U. S. Supreme Court has

twice reinforced this unpreviously recognized by Justice

Stewart in 1972, when he said his sudden change in state law,

unpredictable in terms of relevant precedence, won't ever take

36


this claim. In 1992, a Lucas Court, which created the

background principal exception, noted that only objectable

reasonable application of relevant precedence would qualify.

This past year in Bush vs. Gore, Renquist, Scalia and Thomas

concur noted that state attempts to redefine background

principals can't undermind the takings claim. The second, the

(inaudible) previous decent was denial of certiorari by Scalia,

joined by O'Connor in 1994. In 1997, the New York Court of

Appeals was able to read these tea leaves and able to refuse to

expand the Public Trust Doctrine in unnavigable waters because

as David Callies says, "Because of the sudden and unstable

impacts of such a decision on private property rights." Let me

suggest that the reversal of City Mill on science may run a

file of discussion by the Supreme Court. If so, where else

does Waiahole lead us?

First, it's a lawyer's dream. There are no

standards. This case may create an unconstitutional broad

delegation of authority through the water commission. This

decision provides few clues as to what the public trust views,

purpose or value is today. Even more scary is that these

unloaded terms are said to possess, the continual potential to

evolve. The only place they seem to come to rest even

momentarily is at the Supreme Court. These concepts should

immediately intimidate any landowner, developer or lender.

Assuming that you could freeze the uses, purposes and values,

37


we are also missing the next starting point which is, what is

the natural state of the streaming question? To what point do

we measure the natural state? Pre Matahuli, pre-Tahitian and

Marchatian immigration, pre-1989, pre-1978, pre-code. What

stream flow guarantees the perpetuation of a natural state? Is

a use mark flame required to determine this? What standard

ensure determination is not arbitrary? Assuming we can clear

these hurdles, what water use allocation guidelines are there?

Do instream uses trump diversions? What about the following

diversions? Drinking water, customary and tragression of uses,

agriculture, acriculture?

What justifies a distinction between agriculture and

acriculture and other private uses? That's between out stream

uses, are there any allocational guidelines? The court's

invested right dicta arguably is limited to the application to

distinguish between public trust uses and non public trust

uses. The Public Trust Doctrine provides little support for

favoring one private user over another. A use would either

seem to be a public trust use or not. Of course under the

police spire, the state could always take what it needed but it

had to pay for it. By trying exto facto shoehorn in and under

a Lucas footnote, the recently resurrected Public Trust

Doctrine, Hawaii seeks to avoid paying the piper. Will it be

success ful? We won't know until either the water commission

or the court actually denies the previously private use. The

38


Waiahole community majority uses the words exclusive use but

it distinguishes private uses from public trust uses. This

might be a clue that the court did not mean to totally

disenfranchise private uses but rather merely subjected them to

rationing. One potential avenue through this maze might be to

recognize pre-existing off stream uses but to limit them to

their share of an intermittent and fluctuating surplus over the

predetermined minimum instream natural state flow. This

surplus might be divided prorata between the preexisting off

stream uses with reasonable and equally applied conservation

standards. New uses, however, might have to run the gauntlet

of prequalification regulation and justification.

Perhaps new uses might be allowed the extent that

either sufficient surplus remained or rights to a pre-existing

use were acquired. This might create a market on off stream

use entitlements, but only in favor of pre- qualified new uses.

To the extent that after some mystical guideline balancing,

off stream public trust uses trump instream or pre-existing off

stream private uses and survive the taking scrutiny. These

trump uses might also result in surplus. Without

legislative-adopted, equally applied guidelines, however, the

present system is subject to attacks of being arbitrary and a

breading ground for favoritism and graft. Bottom line,

however, is that it appears that my workload is guaranteed for

the future.

39


PETER ADLER : Thank you, Ken and Tim if

you would go next.

TIM JOHNS: Thank you, Ken, and what do you

really think? I guess I see Bill Ila in the audience and I'd

like him to do my disclaimer for me. I am a member of the land

board and nothing I say today should indicate my preference to

vote one way or another in particular issues that might come in

front of me so I'm speaking today as a private citizen. You

can look at the paper that I put in, basically the question

that was posed to me was what is the public trust doctrine in

Hawaii and I tried to talk a little about it but basically it's

whatever the Supreme Court says it is. And I'm not trying to

be flip about that but basically it is a common law doctrine,

it has a grounding in the Constitution but it's an under

pinning that's floating around in some of these cases and it's

annual going to be brought into focus by the Supreme Court and

possibly by the water commission but I think ultimately by the

Supreme Court.

What I tried to do in my papers is even more brief

than what Jim did, was to talk about the lessons of Waiahole

and then to raise some questions and I thought it might be

instructive to think, it was instructive to me as a non-

Waiahole combatant to think about what the Waiahole water

decision might have kind of meant, what kind of themes are

floating around in them. One of them, there are two major

40


themes that I saw and one of them was that the Waiahole, the

Public Trust Doctrine is an intragenerational, as well as an

intergenerational, doctrine so it's a way to have those --

doctrine so it's a way to protect certain public uses, to have

those uses distributed equitably among people today, different

types of uses today and also intergenerationally so generations

in the future are to be protected and that's very much in light

of native Hawaiian land management practices and theories. You

can take a look at, I described it in a little more detail in

there but basically it's intergenerationally, so not only

people today but people in the future. The second kind of

theme I saw was that the Public Trust Doctrine has espoused in

the Waiahole water case also describes it in a subsequentive

protective way, as well as procedurally protective so it sets

out certain subsequentive rights but it also, as Jim alluded

to, when he said the burden of proof is probably the most

important part of the decision, is that it also has a very

large procedural component to it as well. So for those of us

that are going to be wrestling with those decisions in the

future, the procedural part of it is going to be very important

and Jim spent quite a bit of time on his paper going through

how those procedural protections are set up so not only does it

set subsequentive rules but also protection. What's protected,

how it's protected, why it's protected but also talks about

what's protected and how it should be protected on a daily

41


basis.

The other part of my paper talked about questions

about where, if you want to know what the Public Trust Doctrine

means now, if you read Waiahole very narrowly and very closely,

ît's ^ itself very clear what it means for the water

commission and the Waiahole participants. ît's ^ itself less

clear what it might mean for Waiahole, I mean for the water

commission issues that come down the road that aren't, that

don't fit the same fact pattern as the Waiahole case. So, for

example, what if ît's ^ itself a public versus a public use?

What is Waiahole, tell us about that instead of a public versus

a private use. So the first question is, what does it mean for

the Waiahole case and the water planning in general? And

that's pretty clear. I think the Supreme Court was pretty/AE

clear about that. ît's ^ itself less clear when you start

talking about what does it mean for the water commission's

business in general. I think it's even less clear when you

start talking about the land board, what about the land's

division, what about Chris Vuen's planning department? How do

you apply the Waiahole decision to their actions with regard to

water decisions and then the next question I posed was, what

about non water resources, public trust resources or other

resources that are protected under the Constitution or held in

trust by the state for our people in this generation and in

future generations? Does that only cover water or does it

42


cover land, or does it cover any other public trust resource?

So those are the four kinds of questions that

depending on how the Supreme Court and/or the bodies that are

going to be forced to implement and decide those questions,

that's going to determine what the Public Trust Doctrine is

going to look like in Hawaii in the next few years. And even

though Professor Sax said we are in the main stream, I think

that we're probably going to be a bit on the cutting edge as

well, depending on how those decisions, on how those questions

are answered.

PETER ADLER : Bill, if you would give us a

summary of what's in your paper.

BILL TAM: My paper was on the outside, it

wasn't in your booklet so if you don't have a copy now, pick it

up before you go out at the front desk. I would like to

disagree with the last two speakers, although they're old

friends. I have more faith actually in the decision and in the

water code than I've heard so far. I would begin perhaps by

reminding all of us that the Supreme Court in the McBride

decision pointed back to the source of title to land in Hawaii

so I'm less afraid of the takings argument for a very simple

reason. The background principals of property law in Hawaii

that justice Scalia referred to in the Lucas case and that the

McBride court referred to go back to the very principals of the

land commission and recognize that the Public Trust Doctrine in

43


Hawaii is a function of Hawaii law, ît's ^ itself not a

national rule and it's Hawaii law and the background principals

include this following statement that is embedded in the title

of all land in Hawaii. It says, and it's at the beginning of

what I had in my paper, "What is the nature of the extent of

that power which the King has bestowed on this board?" Which is

the land commission board. "It can be no other than this

private fuditory right as an individual participant in the

ownership, not in sovereign perrogative as head of nation.

Among these perrogatives effect lands of the following to

encourage you and the use and enforce the use of the lands for

the common good. These perrogatives, power and duty his

majesty ought not and air go cannot surrender. Hence, the

following confirmation of the board and the title consequently

on them must be understood as subject to these conditions. A

wise Public Trust Doctrine has been embedded, not necessarily

the title of the land itself always subject to that. So Ken's

notion that it depends on the 1959 determination of what the

rights case was an error. But under the police power of any

sovereign, there's always that ability to regulate. Hawaii

adopted the Public Trust Doctrine, not in the Waiahole

decision, not in the McBride decision, not in the 1978

(inaudible), not in statehood, not in territorial land, not

even in 1899 when the Republic Supreme Court formally adopted

the common law doctrine, King vs. Oahu Railway. Arguably,

44


Public Trust Doctrine, which was part of common law in England

in the United States, was adopted at least in 1892 when

statutes 1-1, it exclusively said that the common law of

England, as amended by the common law of the United States and

the statutory law, is the law of Hawaii. There is also another

notion of public trust which I want to try to get people to

understand is -- it of related, there are express public trusts

as an admissions act, that is a different line of cases and a

different set of principals although they overlap. The

doctrine we're talking about here arises in judicial context

and has as a limitation on the power of government itself to

alienate those permanently those with trust assets.

In figuring out what the rules are for allocation

going forward, I think I'm more confident than Tim or Ken about

how to figure out the answers and I would offer for you the

following thought, it's in the paper in a general form and I

haven't gone into details. Think of the decision that anyone

in the government must make when they go to work in the

morning, and there are a lot of people here who are going to be

faced with this issue in the next couple of years, you get to

your desk in the morning and how do you actually do this? Now I

offer you the following suggestion : Think of an inverted

pyramid in which the fundamental questions have to be answered

before you can get to the secondary questions and the

fundamental questions are at a minimum what is necessary to

45


protect the resource now and in the future. Now the Supreme

Court on page 146 of your decision says that looking at the

preface and the purposes of the water code that there is not a

categorical priority for protectional uses and that's true for

any particular instance where you have a specific decision you

have to make but in regard to the overall protection of

resources, it is necessarily a categorical imperative. It is

necessary that the resource be in existence before you allocate

it. So the issues that you have to sort through in these

questions must start sort of as a raindrop in the metaphorical

hydrologic cycle from the top and work its way down. There is

a series of rules with regard to how you allocate under the

common law. There are riparian doctrine rules and there is the

correlative use rules that is modified by the recent decision.

We're not operating a vacuum. Properly understood, those are

sorted out. They don't say how much you get under a particular

instance because that would depend on all the other repeating

uses and Hawaii pointed out that there is a very close parallel

between Public Trust Doctrine and, which is the secular western

way of describing how a lot of Hawaiian practices work so

Hawaii is particularly suited for the Public Trust Doctrine in

its own traditions and customs so people should look at those

as parallel in different vocabularies. They're doing the same

things, they're not at odds with each other. I think another

factor which tends to get forgotten in sort of these academic

46


discussions about the law are geographic facts protecting

Hawaii and that's what we all have to keep in mind.

Although often unstated, we are on islands that are

bounded by shoreline and the ocean. We are here to grace the

mountains that catch enough of the rainfall coming by that they

graze and fill up, push off of them the water and streams,

unlike the Columbia River, doesn't run quickly particularly

down toward the ocean. It runs out in a dade. We, more than

other places on continental landmasses are constrained by the

limits and our interrelationships where prior appropriation

might work on the mainland, it's inappropriate in Hawaii, both

by custom and by geography. So the Public Trust Doctrine is

uniquely suited for describing a lot of the tradition that

already exists. The notion of caring for the future and for

future generations is embedded in the culture here. Joe Sax

did an article, talked about Ken Bowing's notion that we are

now like on spaceship earth. Well, our Hawaiian cousins

figured that out a long time ago, they came here --. I would

just like to mention one last thing, the last part of the paper

that I wrote, there was both a chronology, both of the evolving

nature of the Y water lines as Joe Sax mentioned, as well as

the conceptual evolution and I want to bring that to your

attention.

PETER ADLER: Thank you. I want to thank

each of you for continuing to be very brief. Gill, I want to

47


invite you as a commentator to give out your comments on either

the points made or the issues that have been raised because

they're starting to come up.

GILL : Well, I appreciate the chance to

not have to write a paper and I put in writing what I really

think about some of these things. I just wanted to make a

couple of observations about some of the things that you've

said and about the Public Trust Doctrine itself. First, I want

you to stop and think about the fact that Peter said that this

entire panel here is made up of all lawyers except for himself.

The first question that you have to think about is, do you

want the only people who work on these types of issues to be

lawyers? (Laughter.) This is the Waiahole decision. I've been

carrying it around for a couple of weeks now. When I first

read the decision, I read it and this may be, is something that

maybe just for a lawyer is I actually read it because I was

sort of interested in seeing what they said. Now that I'm back

at the department, I had to read it again to see what they are

telling us to do and ît's ^ itself a lot easier to say it than

to do it.

And the next thing I want to talk about is who the

trustee is. I think a lot of people who will read the decision

will say it's the water commission but it's also the state

legislature and that's something people should take seriously

and when I say it's a lot easier to say than to do, a lot of

48


it's going to depend on what kind of resources the water

commission and other people are interested in doing or getting

the best scientific information you can have in order to allow

decision makers to move forward, you're going to need

resources. In a couple of weeks hopefully we are going to have

something coming from the water commission from some panel that

the Waiahole decision required that will be setting up a form

to look at pending some studies. We also have some legislative

proposals to help fund those studies as well. But what usually

happens, the usual rule is the executive proposes and

legislation disposes. And sometimes you don't get what you're

looking for. The other thing I wanted to make a comment on a

little bit, and I don't necessarily disagree with what Bill is

saying, but I think we have to be very careful in the notion of

whether or not the U. S. Constitution doesn't ultimately

control what happens in Hawaii if we're part of this country.

I know that you're saying that the origin of the trust is

really set in Hawaiian law and I don't know if you can say that

separate or apart from what U. S. Law is. I appreciate very

much what Jim Paul said in his summary of the case but I would

encourage everybody to try to read the whole thing. One thing

about summaries is that sometimes it depends on what you're

looking for in the decision. I mean if I've seen summaries

that focuses on something on page 65, for example, where the

Court said, "Apart from the question of historic practice,

49


reasonness dictates that the public trust may have to

accommodate offstream diversions inconsistent with the mandate

of protection to the unavoidable impairment of public instream

uses and values. If that's all you have in summary of what the

Waiahole case says then that, suggests that, yeah, you can do

the diversions, you can do a lot of things but there's nothing

protective about it. The other last thing is really again

going back to who do you really want making the decisions and

the people that are appointed to these positions? What do they

have to know before becoming part of that panel?

PETER ADLER: Thank you. I want to pose

some questions to you and try to begin some discussion and this

is intended discussion and we don't assume there are right and

wrong answers but we're trying to tease out some of the

implications and some of the complexities, some of the future

complexities of the Waiahole decision. The first one I want to

ask you is I want to encourage you to engage in the authorized

practice of sociology for a second. I give you this sensation

because I'm a sociologist. And step out of being a lawyer.

This morning while these water junkies in this room are

thinking about water, there are people shopping at Safeway,

there are kids at the YMCA, there are people gardening, and in

the midst of a drought on the island of Hawaii, there is a

whole citizenry out there. What does this mean for them? What,

in fact, does this mean for people who don't know very much

50


about water and who are preoccupied by many other things? And

I'm going to return to Bill. Bill, what does this mean for

them?

BILL TAM: I think there's a perception by

the general public that if you turn on your path and water is

there, and I think if there is one message that should get

across is that we're on an island and we're on the verge in our

lifetimes of this not actually pumping the ground water and

perhaps using a service water that's available. And at least

if you will write checks on that and if you need to understand

we're about to reach the limit of how many checks do we write

on the bank before we go to drive? And that should lead to a

lot of different kinds of concerns, among them conservation.

And we need to make sure that the next million gallons of water

will cost $7 million to develop and if you think about how you

would use that $7 million to develop conservation measures, it

may help more than a million gallons.

Those are the kinds of things that I think people

need to pay attention to because we can do them now while we

still have some lead time before, if you will, the barge that's

coming into the harbor rams the dock and the idea is that we

have some bumpers on there now before we hit the problems and I

think that's what the public needs to be aware of, that they

need to change some of their habits now to avoid the problems

later.

51


PETER ADLER : Ken, same question, same

question. What does this mean for people who don't necessarily

know the intricacies but will be effected by it somehow?

KEN KUPCHAK: I guess I should keep my

devil's advocate hat on to be consistent as opposed to where I

might personally be on all these. One might argue that this is

one more strap on our economic foundation. One of the more

inflammatory lines that I cut out of my talk was that, "Once

more Hawaii retreats from the world of certainty and commerce

in favor of the mysticism of the dark ages." The bottom line

is that it's unlikely that there will be much private money

spent on water development in this state. I'd rather spend my

money in California or somewhere elsewhere I know the rules of

the game and that's the type of thing that Pash has been

criticized for bringing uncertainty to us, so in your pocket

book, it would be substantial.

PETER ADLER: Which raises the the next

question that I wanted to ask which was, where in fact if I'm

someone who wanted to use water, not old water I'm speaking

about, not just drinking out of a faucet. I want to use water

for tarrel. I want to use water for a development project. I

want to use water for additional municipal uses. Where do I go

to find the rules of the road now in post-Public Trust

Doctrine? Where do I go to find the rules? If I say, I really

want to do this, something's changed, where do I find the

52


rules? Jim Paul, where are the rules?

JIM PAUL : Desalted water is coming and

that is not in any of the rules but it is coming and to try to

get a little bit ahead, I think it's too far away from us, I

don't think we should fear it and I think that to respond

earlier to your question and trying to avoid your last one, I

think people should take comfort that the system is working and

that it is not necessary that consumptive activity should, must

percede the draining of all streams and rivers and that it

won't happen and that there will be water here for future

generations and ît's ^ itself a matter of checks and balances

in our government, as we know, and the Supreme Court has given

our government a tool in this very important decision to work

with to ensure that doesn't happen and it does mean that

desalted water is coming.

Where would I go? I would go to several different

places. Without getting too technical, you've got to go to the

water commission and if the water commission isn't involved in

a hands on way with your particular area of the state then

you're going to be going to cities and counties, looking at

their plans. You may be going to the board of water supply

depending on what you're doing and if there's a great deal at

steak, you're going to be going unfortunately to a lawyer

sooner or later.

KEN KUPCHAK: That's a great decision.

53


PETER ADLER: There are those who say this

is the lawyers fault in this decision. Let's talk, Tim, if you

would about the role of counties. Jim said if I'm a potential

user of water I may have to go to the county. What is the

county going to have to do with it? What is the role of the

county in all this? I thought this was a commission function.

What are the counties going to have to do in this? There are

mayors and council people in here, what are you going to tell

them?

TIM JOHNS: I guess the short answer,

actually Waiahole did talk quite a bit about counties, what the

role relationship between the counties and the water commission

and I think for the counties their land use planning

perrogatives are still preserved but I think that they have to

be much more proactive in not only how they manage not only

their land but how their water, their land use decisions, but

also how the water use decisions are integrated into that so if

I was going to advise the counties, I'd say start planning

right now and start planning more, do the integrated water

resource plan.

I know on Oahu they've tried to do that but you need

to do that kind of comprehensive planning and I'd also say

you're going to need to step up to the plate and help fund the

work of the water commission if you want that trustee to do his

54


job well, to really work together with the counties so that the

integration between the state level and county level of

planning is done effectively and so that would be my advice to

them post-Waiahole.

PETER ADLER: So one of the gists of this

is going to require a different kind of planning than you've

ever done. It sounds like that's going to be one of the

implications of this.

TIM JOHNS: Yes, I agree.

PETER ADLER: Let me turn it back over to

Bill and ask you what do you -- I have several questions, a

number of questions came up on this. What do you think the

implications are on for Hawaiians, the Hawaiian communities and

in particular does this impact them differentially, given it

favorably or infavorably given other trust obligations to

Hawaiians? What's the interface with that?

BILL TAM: Starting with Hawaiian Homes, I

think one of the benefits of this decision is a point that Tim

just made, affirmative duty to plan because Hawaiian Homes has

strong rights under Section 221 of the Hawaiian Homes

Commission Act and they're preserved, but the main question,

actually before the court right now in the Bolka case, is

whether Hawaiian Homes planning is far enough ahead so that it

is able to get water close enough to where it needs for it's

homestead as opposed to having to wait and go a further

55


distance and therefore more expensive for water.

With regard to the pertinent rights, those rights

have been protected by every Supreme Court decision since the

1800's. They've never been in doubt. It's a matter of

exercising the appurtenant rights and the court will protect

them. The problem has been that people have not been able to

do that in a practical matter because it's expensive but the

terms of the legal rights, they are strongly there. In terms

of customary practices, the court again has strongly protected

it, it's a question of how in practice that maintained but the

rights are protected as far as how the rights, in terms of how

the law's developed, Those are not threatened. So it's an

issue of how would one go and protect them and get that raised

to a decision-maker.

PETER ADLER: Let me turn back to Ken if I

could because a question was very specifically addressed to you

and said, why did the changes arise in Waiahole and if it did,

why didn't any of the Leeward parties choose to sue?

KEN KUPCHAK: It might just be premature.

As I said in my paper, we have to wait until they actually deny

somebody some use.

PETER ADLER: So, ît's ^ itself possible?

KEN KUPCHAK: Well, since the water code

came down and actually since the Kane Kane, people have been

trying to work together in hopes of avoiding that issue and I

56


think everybody's still in that mode. They've directly put off

saying who owns the water and everybody's still trying to get

along with each other and I think that's the Hawaiian way and

we still try to do that but when they cut off one person's past

use and give it to another person, that will go to the U. S.

Supreme Court if they'll take it.

PETER ADLER: But doesn't the Waiahole

decision actually resoove some old conflicts or, I assume it

starts some new conflict but raises new issues and you've

outlined some of those. What are the conflicts that have been

resolved or some that are going to be raiseed?

KEN KUPCHAK: Well, I mean there are, it's

a long decision, there are a lot of things in it. I just

picked on the things that I thought tredded on the United

States Constitution. As I mentioned earlier, I wrote a Law

Review article in 1971 suggesting the burden of proof be

changed to the way they've done it here and although there are

Constitutional arguments against that, that might be the more

sane way to deal with it. There are a number of good things in

it in a procedural area, which Jim and others have talked

about. I've raised my points today just for discussion

purposes to make sure those points got on the table.

PETER ADLER: Does anyone else want to

comment on this, on the issue of takings?

BILL TAM: Well, if you elevate western

57


notions of private property to the level of a religious

imperative, ît's ^ itself not fashionable these days but to

some sort of Gihad, then you don't like the Public Trust

Doctrine because you can have, as Professor Sax said, no

enduring rights in that water. And this is perhaps a whole

other subject that we don't have time for but I don't think

that a takings claim by any of the parties to the Waiahole

ditch case is going to get very far and we can discuss that at

a different time.

PANEL: We will.

PETER ADLER: Sort of a little bit, let's

see if we can get (inaudible) I'd like to ask Tim if I could,

to sort of get a little more definitive about whether the

Waiahole decision impacts just quantity issues, is it just an

allocative decision? Does it impact submerged lands as

Professor Sax has been raising her other jurisdiction? Does it

impact quality issues, so what's the reach of this decision or

what we think it is?

TIM JOHNS: You mean water quality issues or

quality of life issues?

PETER ADLER: Water quality.

TIM JOHNS: Well, obviously because of the

protected, the definition of the protected uses, it does

involve, effect quality as well because some of the uses in it

include the preservation of instream so I think it's very clear

58


that it also is going to impact not just quantity but quality

as well, so I think that was one of the more straight forward

questions out of Waiahole.

PETER ADLER: Okay, can you pass it back to

Bill Tams? What is the question comes up about implications

for stream restoration, lot's of questions about this. What

now are the implications of the decision of stream restoration

and where's that on the horizon?

BILL TAM : In 1988, the water commission

adopted basically the status quo as the instream flow standards

based upon the difficulty of determining from a scientific

point of view what it needed. The commission had talked with a

lot of the people from the mainland and looked at different

methods that are used there and found that the problem in

determining the instream flows from a biological point of view

in Hawaii are that they are short flashy streams, like the

Columbia River and other large rivers, and the fish life that

had developed had actually adapted to the highly variable

stream load. That makes it difficult to explain what is

necessary instream and Waiahole addressed that problem. I

think this is where there are two different standards in

science and right now I'll start with the cop out. One is the

level of science that's done where you reach some level of

certainty based on years and years of work and based upon

evidence and you make some narrow conclusions but a lot of peer

59


review and you try to say something that's concrete and true

and I think in the extreme situation they're going to have to

make some presumptions without a whole lot of science as -- and

to err on the side, if you will, of making sure you don't make

a mistake. The danger of making a mistake and managing water

would be revokable faced with uncertainty and science. Those

two things would have to be handled in some way when the law

does that.

I think that what's going to have to be to be done in

the future will be some presumptions be made and it may not

have confirmed science behind it but it's what you have to do

until you get there and I think there's going to be a tree

hugger, if you will, in decisions in regard to service water

where you might have some areas that are essentially wild and

scenic waters, you don't touch them. There are some that are

totally diverted by the Army Corps, they are channelized and

they are almost gone for all intensive purposes and the hard

questions are going to be the immediate ones where the benefit

are still being sided either way. That's where the work is

going to be.

PETER ADLER: Let me ask you a follow-on

question either to you or to Jim Paul because several questions

were touched on. Is the Public Trust Doctrine or the decision,

the Waiahole decision, it's touched the issue of water

recharge, and the questions comes up in allocating lower

60


people, what portion is going to be to accommodate water

recharge of the aquifers and the and the linkage between that

and stream flowing so I think what the question is what is

recharging and where is the Public Trust Doctrine or the

Waiahole decision touched on that piece? Does it touch that?

JIM STEVENS: I don't think it does

directly. Please correct me anyone in this room, if I'm wrong.

I think it does by implication but not directly. I think the

issue is pretty much left up in the air. Someone said during

the actual hearings before the water commission that if you

have seven hydrologists in the room that you'll get eight

different opinions about the extent of which you recharge the

aquifer.

PETER ADLER: So am I right that that

decision will go ultimately in the water commission? Is that

-- it will get worked out?

JIM STEVENS: Yes.

TIM JOHNS: I think it's, actually I think

it will, it wasn't addressed directly /* /* /* yeah, I think,

actually it will. Actually I think it will, it's, it may not

have been addressed directly but it will be, ît's ^ itself

going to be addressed during the comprehensive planning. I

mean the amount of recharge and how that effects the aquifer

and how the unified system and how that effects the stream is

all going to play out during the planning because I think

61


Waiahole does call for and require so it may not say you have

to do in for recharge but it's going to be picked up during the

planning aspects.

PETER ADLE: So is that the place where the

science will get wrestled through?

TIM JOHNS: Yes, and I think that the point

that both Bill and Jim touched on are the major points of

Waiahole is who should rightfully bare the risk of scientific

uncertainty and I think that Waiahole has made it clear who

needs to bare that risk and it shouldn't be on future

generations and the public trust, the public uses that are

being protected.

PETER ADLER: While you have the

microphone, a question has come in and I'm sorry this questions

is from a gentleman and it's specific but I think that's in the

nature of us trying to think these things through. The

question comes for you, Jim or Gill, and it very specifically

says that (inaudible) Waiahole make sense, it wasn't always

use ful and I want to remind you that this hearing took longer

than the O.J. Simpson trial. So was it useful, was it all

useful?

GIL COLOMA-AGARAN : I saw Mike Wilson in

the back. Actually the case isn't over yet. We just had oral

arguments on Monday but I'll tell you that, yeah, the case was

worthwhile. Basically one good thing that came out of it, we

62


made a lot of jokes about lawyers here but but we had probably

the best lawyers in the state all involved in some way in the

case, so the case was well presented, you got a lot of

information. I mean I think Larry was here. What do you

think, Larry? No one wants to comment on this.

TIM JOHNS : I want to add one more thing

because I wasn't even in sync I just watched it on tv. So I

think that what another lesson of the process of Waiahole is

that we really need to be looking at it sometimes the

traditional method of a contested case or litigation, that

model may not be the best way to make the best policy decisions

about public resources and even though a lot of good came out

of the way that Waiahole was answered. I think that

environmental ADR, not just to pump the panel that we were on

last week, but I think to the extent that you can focus issues

and not have it be as broadbased, you might be able to actually

make these decisions a little bit more efficiently but I won't

practice law for about ten years so I'll refer to these guys

that are going to be paid for these long answers.

KEN KUPCHAK: I think that's right and one

we need to think about the use of the experts is not just to

get these two people against each other and disagree. If you

get most hydrologists together, Jim's comment notwithstanding,

there's a law in which they agree and what the decision-maker

doesn't know an area, at least to learn about it will be very

63


use ful to narrow the scope of the disagreement so that they

then can focus on what does science tell you now. There are

some areas where the information may be asked but not to

present it to a decision-maker unfamiliar with the notion that

here are two people who totally disagree with each other,

mostly they don't. Mostly science is developed where there are

some areas where they may not have the same assumptions so I

think Jim's point on that is really good and ît's ^ itself a

way of narrowing the actual case against time.

PETER ADLER: Professor Sax said if I heard

him right, that this basically applies to water and one of the

questions here is does Hawaii, given our differences between

other geography, does this apply to other natural resources as

well? Does this decision, will this extend into other natural

resources? Ken.

KEN KUPCHAK: Actually the court

specifically reserved that, they didn't say no so it is an open

issue. I just wanted to throw out one other thing while we're

on this point. Professor Sax indicated about how this is

evolving and people are using recreational and environmental

aesthetic concerns for the Public Trust Doctrine. In 1989 our

state Supreme Court and the Sandy Beach SMA case specifically

found, I believe, that the aesthetic and environmental concerns

did not arise to due process protected property rights so they

may want to throw that out with City Mill but that would be

64


argued against the expansion of the Public Trust Doctrine in

that area.

PETER ADLER: Other comments?

BILL TAM: I think just briefly that

because our Constitution is quite different, it says that all

natural resources of our state are held in trust for the

benefit of the people that we, it is a little different than

what Professor Sax is talking about. He was talking about the

historical legal development of the doctrine and our

Constitution is different so I think the answer is yes, it does

go beyond water and the court did say explicitly in the

decision that, "The public trust demands," and I'm quoting,

"provision for wildlife, and scenic beauty."

TIM JOHNS: This is the second time that

the Constitutional amendment of 1978 has come up and I want to

reinforce the point that if rights existed prior to that date,

the state cannot take them away by Constitutional amendment, so

that issue would come up as well.

GIL COLOMA-AGARAN: I really think that

1978 Constitutional amendment is something that the people gave

to the government, really, more than anything else so that if

they didn't create a trust in 1978, created by the people and

ît's ^ itself a power and again its values being preserved for

the people. People can't take it away from the individual,

that's what the United States is all about.

65


PETER ADLER: Just a few more things. What

are the next steps for enforcing the court's decision? Is

legislative action necessary? Will the legislature have to step

in? And there's some concerns on whether we can trust the

legislature to do that. Of course, that's why we have the

courts to set that straight. What's the legislative role on

the future on this decision? What's the outcome of legislation?

BILL TAM: Just very briefly, there are

some in this room who can't be as candid as they would like to

be I am sure, but right now we have a massive -- in my view in

this state with respect to this, these entire issues because we

need to develop the science necessary to make the decisions

about instream flow standard for most of the more than 350

perineal streams that we have here. It cannot be done without

money, it cannot be done without resources. The water code

took effect in 1987 and water code required that intermix

meaning flow standard be set for all of those streams or at

least most of them.

As we sit here, today there are only four streams

that have such standard and those are the four streams involved

in the watershed, subject to the Waiahole case so despite the

fact that the policy has been expressed because of inadequate

resources given to the water commission, they haven't been able

to do their job but unless the legislature, with some

leadership from the executive branch, gives that a priority

66


despite the desires of the staff of the water commission and

despite the desires of those who have leadership

responsibilities for that process, ît's ^ itself going to be

very very hard to happen and that's a short summary.

PETER ADLER: We have about 30 questions,

many of which are seeking specific legal provisions so I

encourage you to take a break on your own. I also want to

thank our panel. We are out of time and we'll see you in 15

minutes.

(Recess taken)

PETER ADLER: The speakers have been

speaking in a fashion which everybody cannot hear so let me

just remind all of the upcoming panel members and our next

speaker and others to please speak into the microphones and

please speak up. Please do that. All right, I would like to

introduce Bill Tam, who is going to introduce our next speaker,

Mr. Jan Stevens. Again I refer you to the biography, with

respect to a brief summary of Bill's back ground. Among many

other things, Bill was the lawyer to the water commission for

over ten years and as many of you know was the lawyer for the

water commission during many of the underlying proceedings for

the Waiahole case.

BILL TAM: Can you here me all right? This

morning we're honored to have a second speaker with enormous

experience in the area of the Public Trust Doctrine. Jan

67


Stevens has been in the trenches for the last 35 or 40 years

trying to make the Public Trust Doctrine work in California.

His resume has those beautiful qualities of elegance and

intricacy where you don't need to say a whole lot more. He

graduated from the University of California, Berkley, Phi Beta

Kappa and editor of the Daily Californian. He graduated from

Bowl Hall and was associate editor of the Law Review and then

went to the California Attorney General's Office where he has

been, since 1961, the head of the land section representing the

California Coastal Commission, the State Lands Commission. His

list of cases is elegant in the same fashion. It begins with

12 cases in the United States Supreme Court as council of

record in natural resources representing the state of

California. Jan has been a friend of Hawaii also. He has been

here many times. He has been an aid in many ways that many of

you don't even understood or appreciate right now. He was for

a number of years the head of the Western Attorney General's

Legislation Action Committee which is the coordinating body

among all the natural resources lawyers in all the western

states and was responsible in that regard for coordinating work

among the western states in the United States Supreme Court, in

Congress and in 9th Circuit litigation. As head of that

committee, he served as a mentor to many people. He is

responsible for introducing Mr. Don Mon, who came to Hawaii,

who came here in 1987 and spoke at the state legislature and

68


the water conference. Don Mon was the chair of the California

Water Resources Control Board. His presentation to a number of

legislatures was critical in making them realize the importance

of adopting a water code. Jan has also had the long standing

life of a public servant. He has brought undaunted courage to

that job. He has been a role model to other people in public

life as to how to behave and how to bring the issues to the

floor of the right forums. I introduce to you Jan Stevens.

JAN STEVENS: Thank you very much, Bill.

ît's ^ itself really a pleasure to be here in more ways than

one. I've enjoyed this program enormously. I think the chant

was extremely deeply moving and appropriate. The hospitality

has been exceptional, even for a place like Hawaii. I'll do my

best to try to assist you, not that the intellect here needs

that assistance, but to assist you in dealing with this complex

antidiluvian and ancient theory. I was interested to hear the

hearings likened to the O.J. Simpson trial and I thought about

what Johnny Cochran might have done with this and perhaps he

might have come up with an argument for water use like, "If the

use don't fit, you must change it." Maybe that would have

surprised the water board. I don't know. ît's ^ itself hard

to simplify some of these matters but I do want to share some

of my feelings about the implementation of the trust and how

it's worked in four cases in California.

It's hard to really define the public trust and I

69


think this group has done a great deal toward it and to

explaining what is a beautifully drafted and very thoughtfully

prepareded opinion of the Hawaiian Supreme Court. I know when

I was in one of my first public trust hearings in the

California Supreme Court, Justice Richardson, no relation to

yours but a very brilliant man, leaned over and very kindly

leaned over and smiled and said what is this thing that you

call a public trust that you're trying to impress upon Clear

Lake? And although there had been literally foot after foot of

pleadings filed trying to define it, obviously the court was

still interested and I stammered out something as I usually do,

about how it's in the interest of the public and property which

precedes that of individual owners and comes historically

through the years, and as usual, I thought the next day about a

capsulation that might have been much better which

unfortunately I could never have done at the court. I was

going to cite St. Paul and say, "It was the substance of things

hoped for and the evidence of things unseen." And perhaps this

is what it remains in Waiahole.

I also want to welcome Hawaii to the -- of berme

water. Remember Al Stigger said about the west it's about

water and I was somewhat surprised that a state that I thought

was blessed with large quantities of water would still be

suffering from the conflicts and the scarcities which has

pursued much of the arid west, particularly California.

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Basically I want to welcome you to the world of the water

buffalo which is historically is rampaged over lakes, rivers

and underground basins in the west defending what is perceived

to be their rights against a menacing crowd of fishermen, bird

watchers, biologists and environmentalists. The term water

buffalo, I think, is particularly suitable here, ît's ^ itself

traditionally applied to defenders invested water rights,

members of a very small and archaing water lot bar. It can be

contrasted to the phrase, tree hugger, which is usually applied

by water buffalos to environmentalists. And others who

advocate environmental protection. The buffalo species, I

think, must exist in Hawaii because the dictionary defines it

as found in most tropical and subtropical regions. It's an

animal that when pestered wallows in the water in damp soil for

protection. For years the water buffalos had things pretty

much their own way. The water agencies believed they had no

alternative but to approve an appropriated permit if the water

was going to be put to an economic use. Riparians could draw

their water subject to little control and the owners of

underlying ground water could pump to their heart's content.

But as the gate of all American poet Dillon said, "The times

they were a changin'." And as Joseph Sax said, "Beneath the

murky navigable waters that are stirred an ancient doctrinal

beast capable of giving the water buffalo a good fight." The

Public Trust Doctrine goes back to Roman law and since I

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believe that that institutions are really the length of shadows

of individuals, I have a few pictures to illustrate the origins

of the public trust. This is a picture of the Emperor

Justinian and I like this pictures of the Emperor Justinian who

really is the ancient father of the public trust unlike

Professor Joe Sax who is the modern and youth ful father of the

public trust. Because it illustrates a primary factor of the

public trust and that is that it is a sovereign attribute of

government. Nothing could look more sovereign than the Emperor

Justinian and what we have to remember about the public trust

is that it's an attribute of sovereignty that cannot be dealt

away by legislatures or by administrative agencies. It is a

central function of government, this trusteeship, this duty

going back to Roman law that reflects that some things like the

air, the waters, their beds and banks cannot be reduced to that

kind of private ownership and that law can -- Blackstone

recognized as private property. Even in those days, the

tidelands and the waters over them were held in trust for the

people and as Joe pointed out the New Jersey Court stated in

1921 that reducing them to positive session was in was a

concept that violated the law of nature and the Constitution of

a well- ordered society and which never could be unborn by a

free people.

This was only 30 years after the revolution and I

think their words were rather meaningful. Now this principal,

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of course, was carried through and articulated by, in the

Illinois Central decision in 1892 by an otherwise rather

conservative justice and but one, once again, that you can see

was a person of decided views and of firm character, Justice

Steven Field, a Californian originally who served on the

California Court and the United States Supreme Court and wrote

an eloquent opinion in the Illinois central saying essentially

that the legislature has no power to dispose of the people's

interest in the navigable waters surrounding them. This has

pervaded the law of every state since then. It is the

principal that inspired the Veheman Declaration in the words of

the Mona Lake decision, that the trust is an affirmation of the

duty of the state to protect the people's common heritage of

streams, lakes marshlands and tidelands. At the same time,

logic was compelling the conclusion that the rule of law

protecting the waters of the state as Joe once again said,

necessarily extends beyond merely the beds and banks of

commercially navigable rivers and lakes.

In the 19th century, commerce was important and we

didn't necessarily have much time for recreation or bird

watching but the public trust is a common law concept and it

has evolved in a number of different ways to protect these

rights in not only commercially navigable rivers but in rivers

that are capable of recreational use, which rivers would

support fisheries and riparian values. There is another basis

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for this and that is the fact that when you do things in the

tributaries of large navigable waters, they can effect

navigable waters, they can obstruct navigation and they can

pollute the waters and they can destroy public trust values

which historically and traditionally exist within the larger

water bodies. So back in 1884 when -- began tearing down

mountains in upper northern California were preventing their

--to obstruct the American and Sacramento Rivers way down

stream and wipe out farmers, the California Supreme Court

upheld the prohibition of hydraulic mining. It didn't occur on

the river itself, it occurred way up there but it was really

ruining public trust values in the rivers and the public trust

applies. Whether it was inevitable that this would lead to

National Audubon, an opinion which so eloquently explained why

the public trust should protect the waters of Mona Lake, which

was described by by some alias lawyers as a saline scum. From

destruction by diversions for economic purposes of the highest

sort, many many miles of the way, the facts of these opinion,

have been widely publicized. Previously before 1941, the city

of Los Angeles had extended it's 200-mile long aqueduct to the

Mona Basin. Mona Lake, before the aqueducts diversion was the

largest body of water entirely within the state. It's one of

the oldest states within the country. It's large population of

rhinds, shrimps and flies made it one of the virtual alien

travel lodge frequented by large numbers of California grills,

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and other birds that were fellow annual migrants. The Los

Angeles aqueduct, which originally pushed up to the Owen's

Valley to take it's water was extended into the Mona Basin and

started diverting the water going into the Mona Lake and this,

of course, once again is an individual who fathered the Los

Angeles aqueduct, Bill Mulholland, a magnificent character, the

subject of a recent book by his daughter who barreled this

200-mile plus aqueduct from Los Angeles into the mountains of

California, surreptitiously caused the water rights to be

purchased from the farmers in the Owens Valley and then when

the water first came through the aqueducts, he said, "Go ahead,

take it."

This is the father of the modern day Los Angeles.

Now by the time the National Audubon case had been filed by a

small crew of environmentalists who represented on a pro bono

case by Morrison and Forrester and in 1979, the city had

largely drained all of it's lake, had begun diverting water

from the Mona Lake Basin and had greatly increased amounts

through a second aqueduct. We have a few illustrations.

Essentially this shows the aqueduct, it shows Mona Lake, it

shows the way in which L.A. pushed up through the Valley for

hundreds of miles in order to get to that water. Since 1941

when the diversions began, the lake had dropped over 40 feet.

It's shriddity had nearly doubled where even Brian flies and

Saline creatures would not even be able to survive. This is an

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illustration of what many people believe to be the ultimate

solution to Los Angeles' water supply. It is still not enough.

Nearly 15,000 acres of dry land lake bed had been exposed,

giving rise to toxic dust storms and creating a land bridge to

Naked Island, then the principal nesting place for the

California gulls. This is a picture under, down of the Mona

Lake as it had been increasingly drained. Ordinarily water

would have been surrounding those fantastic --s with the saline

waters. The lake had been greatly reduced by then, of course.

There was a land bridge created to the the principal nesting

places I had occassion to look at and there were a number of

physical measures taken by the enterprising engineers by the

L.A. Department of Water and Power to take care of this without

losing any water which, of course, is L.A.'s goal.

Now you must realize that by then, by now most of the

Owens Valley, and the Mona Basin as well, were owned by the

City Department of Water and Power. There was some forest

service land left, very little private land left and when you

went through that whole pristine area of the Sierra, you would

see L.A. Department of Water and Power trucks everywhere

carrying out their duties to make sure that the water went down

to this great city.

Well these are the islands within the lake. Naked

Island is once again, had been so greeted by that second line

down there as to permit any kind of predators to march on the

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island. And L.A. tried a number of things. They tried

blasting to increase the channel and that didn't work. They

put up big fences, coyote-proof fences supposedly, and we went

out there and saw the coyote tracks pacing up and down until

they found a place to where they could jump in, take a short

swim and have a delicious meal. It wasn't very hard to realize

that the only solution to saving Mona Lake and preventing it

from becoming that saline scum that the city already determined

that it would become was by increasing the amount of water

going into it, which by necessity was going to result in

decreasing the amount of water going to Los Angeles. Well, you

can imagine what a gargantuan struggle ensued from this. This

theory, this public trust theory which was the subject of the

lawsuit filed in 1979, represented an application not yet

applied to water diversions in California, except by

indirection, by the injunctions to prohibit the use of water

that effected things down stream by -- by debris. So

essentially we went through a great many maneuvers through

state and federal courts until this matter finally reached the

California Supreme Court and the Court issued it's historic

National Audubon opinion holding that, "appropriated water

rights and the Public Trust Doctrine were a part of an

integrated system of water and law that permitted Audubon to

pursue the public trust against the city. Now the court

realized that the Public Trust Doctrine was in a collision

77


course, as it said, with the prorated rights systems. These

were rights that the city had believed it secured fair and

square. They were rights that hithered to the administrative

agency that was charged with administering the water rights

system believed it had no alternative but to grant regardless

of predictions of harm to the public trust values and the

fisheries of the state. And the court stressed three basic

principals, all of them rooted in trust law. One is that the,

it was really much clearer than that. To start with, of

course, under the Public Trust Doctrine, every citizen has

standing to bring an action to protect the public trust. That

was no problem. So the Mona Lake committee, this small band

from all over the heroes in the Mona Basin who were virtually

penniless but dedicated to bring this action, as did the

National Audubon Society. The public trust applied to

non-navigable tributaries and it imposed the duty of continuous

supervision and control over the public trust values of Mona

Lake, a large lake navigable in California. It required the

consideration of trust impacts in evaluating the water rights

of the city. It imposed the duty to protect just impacts

whenever feasible and it imposed the duty which was not found

by past decisions made with respect to those water rights. The

rights were not frozen in law. These principals prevented any

party, the court said, from acquiring an invested right to

appropriate water in a manner harm ful to the interest

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protected by the public trust. Now there was a caveat, just as

this was in the Waiahole case. The court said nevertheless, is

a matter of current and historical necessity, the legislature

may authorize the diversion of water to distant parts of the

state even though unavoidable harm to trust uses of the source

stream may result. The court recognized, in other words, that

water had been going for many many years to Los Angeles and the

city was somewhat dependant on it although not entirely, and

this requires a balancing. With the balancing it involves the

state's affirmative duty to take the public trust into account

in planning an allocation of water resources and to protect

trust uses whenever feasible. In the Mona Lake dispute, the

board, as I said essentially had thrown up its hands. In 1940

when L.A. perfected its permits, it said it was powerless to do

it. The California Court, 40 years ago said that this is not

an accurate reflection of the public trust and that neither the

legislature or the water board or any judicial body in this

case has determined that the needs of Los Angeles outweigh the

needs of the Mona Basin and that the benefits are worth the

price. Nor has any responsible body determined whether some

lesser taking will better balance the diverse interests

involved. Accordingly the court held that all uses of water

including public trust uses must now conform to both public

trust considerations and the standard of reasonable use.

Well, this case went two places on remand. First it

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went to the Superior Court in El Dorado County by assignment

from the judicial council for initial consideration and

implementation of the California Supreme Court case. And it

was assigned to a judge who was an ex-district attorney whose

previous experience was exclusively criminal and who expressed

active disinterest and annoyance at being battled with such a

monstrous case of, -- by bands of attorneys who flew in from

all over the states to pester him. He handled it between

preliminary hearings and felony prosecutions and it went for

two and-a-half months on a preliminary injunction ordinarily

determined what kind of order should be issued against L.A.

pending a final determination against its water rights. This

was perhaps the 8th or 9th year of the Mona Lake litigation, a

short case by water rights standards but one that was dear to

us. I remember one time he was planning a trip, actually to

Hawaii, and when one of the experts submitted a graph

indicating water consumption in L.A. showing a horizontal line

followed by a large semi-circular and another horizontal line

and he said that reminded him of what he was going to look like

lying on the beach in Waikiki. Anyway, he issued a preliminary

injunction and he directed the city to keep from making any

more diversions pending a final determination because the lake

was endangered of irreparable harm. It went back to the water

board for consideration with new directions now from the

Caifornia Supreme Court and the water board. After another two

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or three months of hearings came up with a solution designed to

preserve the habitat, to prevent dust storms on the exposeed

lake bed, to protect the shrimp, brian flies and the scenic

values of the lake. It didn't order that the lake be restored

to its prediversions levels. It left some water for Los

Angeles. But it directed the city not to take out any water

from the lake until the lake had reached the level 16 feet

above it's previous diversion stage. In other words, there

were still some 10 feet that the lake could be raised in order

to acheive it's origin pristine state before diversion but the

--, or the board decided that in balancing these interests

these trust interests, the best answer was to raise it far

enough to preserve the two, prevent the dust storms and to

enhance the ecological and scenic values.

Los Angeles decided against the advice of their

lawyers not to appeal this decision. They felt that they had

had enough, that the handwriting was on the wall and that the

environmental balance must be restored at least in part to a

basin which under the 19th century philosophy of Eleanor Horn,

Bill Mulholland could be utterly despoiled in order to benefit

the growth of that great city in southern California. Since

National Audubon, of course, we have had three occassions in

which to implement the public trust. The public trust preacher

has been liberated from it's historical shackles as Joe Sax

once titled it, very amusing Law Review article, and it's

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appeared in varying forms and guidance. I always envisioned it

as something that lurched below the water's navigable lakes and

rivers and tidelands but obviously as you can see it has a

great deal of strength today and it has the ability to come out

of those waters and to actually divert flood gates and to stop

canals and extractions where previously people could have their

untravelled access. There is a number of ways in which the

creature has appeared. There are statutes which express the

public trust and as the panel indicated here there are

Constitutional provisions as well, which can be characterized

as manners in which the legislature has implemented his duty as

trustee in order to implement the public trust duty that the

state has. One California statute expresses one of it's

purposes by providing that the use of its water for recreation

and preservation, for the enhancement of fish and wildlife is

beneficial. Another one provides that fish must be kept in

good condition below damns and other structures and the

California appellate court expressly said that this is a

legislative implementation of the Public Trust Doctrine.

As we pointed out earlier, the Idaho Supreme Court,

the Montana Supreme Court recognized the public trust. The

Nevada Court indicated that it may be willing to when the time

is right and now, of course, the Supreme Court of Hawaii has

recognizeed the application. And you now face the duty of

implementing its principals and water allocations, which as

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Gill pointed out, is somewhat more difficult than enunciating

those eloquent principals which so accurately afflict the

general law. And I was struck by the similarities between

National Audubon and the Waiahole ditch decision. I think they

go beyond their agreement on their legal principals, as

important as that may be. Both cases involve the reallocation

of water from large and costly structures built at the turn of

the century to address growing needs. In both cases the court

expressed a much broader view of the powers of the state under

the Public Trust Doctrine than did the administrative agency

that was charged in administering these water rights. And in

both cases a number of parties in --- reflected a sort of

who's who of all the economic and economic, political and

environmental powers of the state. What about the world after

National Audubon in California? Well, in the first place I

should point out that the dire predictions made by the L.A.

Water and Power about the future of the economy and our

civilization and in light of this alleged instability brought

to the water rights system did not come true. Initially the

city published pamphlets suggesting inner city school children

would have to go without drinkable water and affordable power

if their diversions were restricted at all. Well, this did not

happen. In effect, of course, the city went around along with

the water board's decision and the decision was sweetened.

There were some -- made for the city for water reuse programs.

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There were adjustments made in the form of conservation and

the metropolitan water district was happy to increase its

sales. Colorado River water, which goes along with state water

project water from the San Joaquin Delta, down to Los Angeles

to satisfy its needs. It may be that the city doesn't have

that firm certainty of free portable water that it had prior to

National Audubon but maybe it never really had a right to that

certainty as we've suggested before. The last big drought in

California saw lawns withering in the north and people

blatantly washing their cars in the south unaware that there

was any problem.

This is a security which was false to begin with and

that we can no longer afford today, I think. Now as I said a

few cases have arisen since then and I think they're indicative

of the kind of experience that might be of benefit to you. In

one case, the court decided the case after reference to the

water board for an expert opinion and recommendation and

another one, the superior decided the case all by itself

without the help of the water board and in the next one, the

water board itself attempting to deal with public trust issues

so there's kind of an array of manners in which we can deal

with this thing. The first one involves the invariable defense

fund vs. East Bay Municipal Utility District, another 20-year

case in the water law field in which the public trust was

ejected at a later date when it first emerged from those waters

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as you saw the creature do. This was the effort by of East Bay

MUD to get its contract rights to water from the lower American

river. Now when Folsom Damn was built to widen the river, it

was widely expected that there would be large amounts of water

available through the bureau of reclamation for all kinds of

users, both within the American River basin and outside the

basin and East Bay MUD, which is East Bay water supplier saw a

great opportunity to supplement its existing supplies of Sierra

waters. As you can see, Folsom, the East Bay had attempted to

draw an aqueduct of its own from the American River to the

Mokola, so without a pointer I'll attempt to point out at

least, there's Folsom Damn, in 1959 or 60, there is the Folsom

south canal, edging it's way down to the McKulney River and

East Bay, Space Bay's McKulney's aqueduct, which for years has

been used as the source of pure mountain water for the people

of the San Francisco/East Bay area. It would be a simple

matter to exercise your rights under the old regime to sit and

extend and complete the aqueduct and to take this wonderful

mountain water, under 150 acre feed a year down to the people

of the East Bay. Initially only the environmental defense fund

saw a problem in this but by the time the National Audubon had

come down, both the State Department of Fishing Game and the

State Lands Commission felt that there might be a problem as

well. The case was filed, as I said, in the Superior Trial

Court in Almeida county and the judge initially felt that he

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didn't use the water board so a reference was made, a statutory

reference to the board for findings and recommendations. The

board spent 3 and a half years studying the matter, came out

with a multi-volume series of findings and recommendations and

a million dollar bill for the parties, and the judge essential

/AE found these recommendations lacking.

Basically the water board staff, a traditionally

oriented group at this time felt that this case was a difficult

case. The delivery of the water in that contract would not

cause significant harm to reasonable uses of the lower American

River. But what about the Supreme Court's admonition that harm

to the trust should be avoided whenever feasible. Well, the

water board staff found that none of the alternative diversions

proposed was as feasible as East Bay MUD's proposed diversion.

The plaintiffs had suggested that the water be taken out of

the Sacramento river where there's much more control, it's a

bigger water supply and Shasta Damn, rather than the Folsom

Damn initially determined how much water was going down.

Nevertheless the board recommended that East Bay MUD be allowed

to divert from the point that it wished to divert from, subject

to reasonable limitations. It also suggested that the board

study all water rights on the lower American River, a

resolution which the board adopted but as of now some 20 years,

10 years later has done nothing about. The trial court took a

different attack. The trial court, and this once again was a

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judge without prior water law experience, a judge appointed by

Governer Jerry Brown, who had previously been a criminal

defense lawyer and who had represented I think some rap stars

and other people but a judge who was extraordinarily capable of

grasping the issues and analyzing a public trust case in a

manner which really really gratifies one's faith in the

judiciary. The Court found that there was a cumulative impact,

that basically although the individual extraction by East Bay

MUD might not cause irreparable harm to the river and it's

resources, that impined with other extractions that are being

planned from the river, you could end up with a very trickling

kind of stream after 20 years of additional growth. The Court

found that a balancing process was necessary. And this is

important because the Court also rejected the plaintiff's

views. The plaintiff said that there was a feasible

alternative by which all public trust harm could be avoided and

that feasible alternative was to drive them down to the

Sacramento River and make them take the water out there so that

American River water could flow down the American River into

the Sacramento to the confluence, be used for recreation, be

useed by fish, birds and riparian values and then could be used

by East Bay MUD. It's a principal of water law that multiple

use is certainly better and more reasonable than single uses so

this seemed to make a lot of sense but the judge said I'm going

to weigh this. He was visibly effected by substantial evidence

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brought up by East Bay that the water was much purer and less

susceptible to health problems if it came from the sea areas

than if it came from the Sacramento River where many farmers

upstream had been irrigating and conducting various things.

Furthermore, it was felt that recognition must be

given to East Bay's long continued contract rights. They had

been paying for this water for 20 years, remember, and hadn't

received a drop. This was a take or pay contract as was

customarily employs and they just couldn't use it so the Court

imposed standards upon East Bay MUD and imposed a physical

solution saying that essentially they could extract the water

only if certain conditions were met. Minimum flows were

established in the river to keep the fish healthy and, I think

it's backward again, and to protect the American River parkway,

which was one of the most remarkable parkways in the state at

the time used by some 5 million people a year and had riparian

vegetation and creatures all the way down 30 miles from Folsom

Damn to the American River.

Okay, the next one. The Court held that East Bay MUD

may take it's water but only if these minimum flows to protect

fisheries were protected. They rejected a number of arguments

that didn't come up at Audubon. For instance, the East Bay

argued that the project had been expressly authorized by

Congress and by the legislature and thus therefore this

amounted to an overruling of the trust by legislation. The

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Court found no such project authorizations. Statutes must be

construed consistently to imply that this trust is not to be

revoked and that's the case here. The trust applies to

contractors for water as well as for those who hold the water

rights themselves. East Bay was a contractor. It applies to

artificial flows, if it didn't apply to artificial flows

virtually no river in California would be subject to the public

trust because they're all regulated. It applies a standard of

feasibility which implies a balancing task but nevertheless

comes out to prevent harm if it can be prevented reasonably.

It considers cumulative impacts and, at last as I said, it

provides a physical solution rather than a draconian refusal to

do this. Well, once again this is an opinion by the trial

court which was not taken up to the appellate courts and this

was one which I personally took part. I felt like we were sort

of universities in a bottle there because both sides felt that

there were issues in the judge's opinion that could be

corrected. Neither side was really satisfied with the solution

the judge had reached and on the last day an appeal could be

filed, I received a phone call from the lead council for East

Bay MUD saying, "Well, are you going to file an appeal, because

if you do we are." And I said, "No, not unless you do." So we

luckily, he was a gentleman and we agreed that neither side

would file an appeal and neither side did, so the judge's trial

court opinion resolved these major public trust issues in a

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major river in California.

The next case involved a judge in Sacramento County

who was dealing with Putin Creek, a creek which flows through

in part from the University of California in Davis was

drastically reduced by diversions and damns created in the

1950's to supply water to four cities in the Sacramento Valley.

Originally 375,000-acre feet a year went through Kudo creek by

the time the diversions took place they were reduced to

something like 17 to 27 thousand. Piton Creek was described by

the Court as a treasure, a home for birds, wild life, birds

fish and vegetation, a place where you can watch fish, watch

birds and fish in a new, kick back and enjoy the sights and

sounds and smells. A branch ran through the University of

California at Davis, professors conducted research classes

there, school children were brought for nature studies. A

coalition of environmentalists joined by the city of Davis and

the university alleged that the creek was suffering badly from

diversions to the extent that 22 miles of it's habitat had been

destroyed. The Court basically agreed. It found the existing

release schedule which was to the benefit of domestic use in

the cities had confined native fish to a very short breach of

habitat at that time to below diversion damn, favored exotics

over natives, jeopardized spawning, dried up trees and

vegetation and had a negative effect on the educational

resources. This, the Court held, was a violation of the public

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trust both in it's common law form and as implemented in the

fish and games section requiring that fish be kept in good

condition below damns.

The Court held that the precedent for these schedules

was inadequate. Once again, release flows were established 40

years ago and were reconsidered under national Audubon. The

judge said, "In a sense I feel that the I think the Salano

parties, the city feels this water belongs to them. They do

call it project water but I think the law says it belongs to

all of us." So the judge set releases, not as high as the

plaintiff environmentalists had hoped they'd be, amounting only

really to an additional 7 percent out of the water that the

cities were then extracting but enough, in the Court's opinion,

for the saving of the fisheries in there. And fisheries are

seen to be a significant aspect to every public trust case that

we looked at so far. There are lots of public trust uses on

the lower American that the judge could have and did consider

in addition to fisheries such as rafting, such as riparian

vegetation and aesthetic values but the Court set a baseline

and protection of fisheries in the assumption that once you did

that you had enough water for these other purposes. Fisheries

biologists should take heart at the attitude taken by the

Courts to date. The last case as was the case again on which

appeal was filed I should say, appeals were filed by the

parties, months went by of negotiation, the Court of Appeals

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failed to set the matter for hearing and at the last minute

before the Court set the matter, a settlement was reached at

the trial court level. Both sides decided that they were

better off resolving this matter in a way that concerned water

both to the environment and to the cities rather than take it

back up for another decade of uncertainty and I'm not sure

what.

Finally, the Uva River is a decision of the State

Water Board which it undertook directly. Under state law, any

individual may file a complaint with the water board regarding

existing use of water, and in this case a coalition of

fisheries groups contended that the waterflows in the Uva River

were insufficient to keep fish in good condition, thus

violating both the common law public trust and the statutes

which implement the public trust. The board was not ready to

be as liberal as it was in the Mona Lake case because the

electrical energy crisis was underway and there was a

substantial amount of hydropower coming from these works as

well. So aleutian order setting an interim flow schedule

enough to accommodate hydroelectric production and at the same

time, enough to provide more water for the fish and this time

they were attacked by the environmentalists that they weren't

taking enough measures to protect threatened species under

state and federal acts and that they were not implementing

state statutes saying it was the policy of the state to

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conserve threatened and endangered species. The board

characterized these provisions as policy statements, which must

be taken into account as part of the balancing process which

the other courts had undertaken, with respect to public trust

values and did not compel that in every case the balance be

struck in favor of the endangered or threatened species

whenever any additional flow would benefit those species. In

other words it was kind of a compromise. Then the board

rejected complaints that this decision did not evaluate flow

requirement to protect other trust resources in the river. In

these cases, they were small craft navigation, swimming

warmwater fish. Petitioners did not explain specifically how

their uses would be adversely effected and they did not specify

which changes were requested so procedurally they had dropped

the ball and the board pointed that out. The board wove

together as the Hawaii Court had done this series of public

trust statutory directions and public trust consideration

including a Stream Flow Protections Standards Act, the Keep

Fish In Good Condition Statute, the Salmon Seal and Trout and

Anatomy Fisheries Act, the California E.S.A., the Federal

E.S.A., and the Public Trust Doctrine. And based on all of

these, held that reevaluation of the water rights was in order

to establish instream flow requirements and that minimum flows

would be increased but not to the extent recommended by the

Fish and Game Department.

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No one was entirely happy and in this case, the water

agencies effected have taken up a court challenge to it but it

does represent one of the most comprehensive efforts the board

has done to implement public trust principals through a network

of decisions guided by statutory directions. And perhaps this

pattern, if not the result, is one we should look at. The

common law doctrine is somewhat amorphus. While it's powerful

and effective, it doesn't really provide a focus directive

which can be provided by the legislature which in the final

analysis is the trustee for the people of the state in

implementing the trust. Well, what lessons can we learn from

California encounters of the public trust kind. The trust

doctrine isn't a cure-all for the resolution of competing water

uses. It does provide some salutary guidelines and protections

for resources that were sadly neglected in past allocations of

water. It requires a consideration of trust values in

determining the using of water, requires the avoidance of harm

to those values whenever feasible. It reminds state agencies

and property rights advocates alike that the state's power and

future to protect trust values is a continuing one and the

issuance of a riparian water rights permit does not place water

beyond the reach of those protections.

What it does not do is revoke Mark Twain's

observation that while whiskey is for drinking, water is for

fighting over. The long fierce battles between water buffalos

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and tree huggers are going to go on. Cases are going to last

for generations as water rights matters often do. The spirit

of Lee Kause will survive the 21th century battle over this but

two good results are emerging. First the legislative and

administrative agencies have been encouraged or prodded to

consider the impacts of these actions on public trust values,

legislative guidelines are emerging the water rights agencies

have slowly begun to consider values beyond the ones that they

have traditionally followed. All of these cases except the Uva

River were settled at the trial Court or board level

begrudgingly but nevertheless realistically, the public trust,

that ancient Behemoth, hidden for so long under the waters has

emerged to confront the water buffalo. His appearance on the

field should do much to even up what was such an uneven battle

in past decades. Thank you.

PETER ADLER: Thank you very much, Jim.

Jim will now turn into our commentator for our next panel which

is going to be chaired by Kim Lowry. Professor Kim Lowry, who

you know from our biography, which again is the forth page of

your materials, among many other things is the chair of the

Department of Urban and Regional Planning. Kim.

KIM LOWRY: Thank you, Jim. We've heard a great deal

this morning about the public trust as legal doctrine and our

task on this panel is to grasp some of the practical issues of

implementing the public trust doctrine. Planners and resource

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managers have to deal with drawing up use rules, making plans,

making recommendations for regulatory decisions, and all those

other things that we associate with management. To extend

Peter's metaphor, it's the planners and the managers who have

to line these duckies up. The practical problem for those who

are the planners and the manager is how is the public trust

going to be manifested in the everyday work that they do? How

is their work going to be different if they take the public

trust seriously? Joining me on the panel are five or six people

who are directly involved in management, incorporated the

public trust in management decisions or whose management work

is effected by public trust decisions. From the far end we

have Charlene Hoe, who is the executive director of the

strategic planning section of Kamehameha schools. And Jan

Stevens is joining us and Colin Hippe and next to him is

Senator Colleen Hanabusa from the 21th district and also Vice

President of the Senate. And finally Chris Vuen and oh, I

don't want to leave Bill out, he's the Administrator of the

Aquatic Resources, Parkland and Natural Resources. We've

invited each of the panelists to make a short introductory

statement that summarizes the key points in their paper and

then we'll go straight to the questions from that. So with

that in mind I'm going to start at this end if you would and

I'll ask you Chris if you would begin. And again please make

sure that you use the microphone.

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CHRIS VUEN: Good morning and hello

everyone and I'm impressed at everyone who's taken their

Saturday morning off to talk about this important topic.

People often discuss that you have a distinguished panel. I

want to recognize that we have a very distinguished audience

including people that were directly involved in the Waiahole

decision as public advocates, attorneys, members of the

commission, decision-makers. We have many people in the

community who have worked hard on water issues without

recognition or compensation over many many years and I also

want to say Aloha to many of the members of the D.O.N.R. Who

deal with these kinds of issues on a daily basis and are

responsible for a lot of the day-to-day management of the

things we have been talking about here this morning.

I'm not going to talk about water very much. We've

heard a lot about water this morning. I could give a long

explanation and it's always very useful to talk about where

you're coming from and your background and I could spend a long

time talking about my transition from environmental activist to

now a government bureaucrat with a stop as an attorney along

the way. I have to confess that, but I guess to take one fact

from my background, I grew up in Hilo. As a result, it's hard

for me to completely relate to the scarcity of water. We have

135 inches of rain and I grew up near a stream, -- Stream

where I, as a youth, enjoyed instream benefits, made beneficial

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use of the stream flow. Today we recognize many species of the

Oahu as an endangered species. As I grew up we young fellows

in the neighborhood recognized it as a delightful thing to

spear and heat and certainly we won't do that anymore but I

thought I would talk about something a little bit different

than just water.

The question came up in the earlier panel, what are

the implications of the public trust doctrine for other natural

resources? And I started off my paper by quoting from the

Hawaii State Constitution which says that, "all public natural

resources are a public trust." Now I want to say something

right at the outset about this and that is I think it's also

something that Professor Sax said and it's the public trust

doctrine as discussed here today and as discussed by Professor

Sax and in the Waiahole water decision is not going to be

imported wholesale into all public natural resources and as I,

I'm going to talk in just a minute about what are public

natural resources. As we talk about what those are, you'll see

that there are many aspects of water law that don't apply that

are not going to apply. And I wanted to discuss this this

morning as a way of reminding us and reminding those of us who

are responsible in a more direct way for the stewardship of

those resources that yes, our state Constitution says that

those are something that are a matter of being held in trust.

I think that the overall direction that is being given to us by

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the Waiahole decision is that the long-term health of those

resources is what we must put first when we're making the hard

decisions that we have to make.

Public natural resources, what are they? Let's start

with the things that I think we'd all agree with. Air, that's

a big one. Bill is in charge of aquatic resources, fish,

wildlife, wild animals that live around us, not so wild

sometimes, public lands, lands owned by the people of Hawaii,

geothermal energy. Another big one, the sea and the seabed as

far as and in so far as their under state jurisdiction and in

so far as the state has control of them. The big areas. How

does this, how is this going to be a legal handle. I look at

it and my role, my role is to, as a planning director is to try

to guide our decision-makers in our counties so that they don't

make mistakes that have to be undone some day in the courts. I

think that a lot of law, legal decisions are made as a result

of public decision-makers making decisions that are, that's

duty to be undone and laws are made in those respects and in

the first line of action are people that make the decisions in

the first place and you need to make those in a very very

careful way. When I started working, one of the first things

that I told my staff, as a guide or principal we were going to

go under, something that's taught to carpenters, measure twice,

cut once. You know, take a good hard look at what you're

doing. Take a hard look at it again before you make a decision

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that can't be undone. One of the areas where, which maybe

public natural resources that are not so obvious. I spoke

earlier about public lands. Well, what about and this is a

tie-in to water. We've talked about water being a public trust

resource, our groundwater here and in all the islands depends

on upland water recharge. The Mauka lands, much of this

fortunately isn't public ownership. It behooves us as managers

of that public land to look at the, at those aspects of

managing those lands and seeing that those are managed properly

for upland, for recharge. But there are also private lands.

To what extent are private lands to which water is recharge?

Water recharge is dependent upon the aquifers depend, what

extent are those embedded with some kind of public trust for

that purpose and just to finish and on the areas that are

specifically in my paper, where I think that it, where the

Court may some day step in one of these areas outside of the

water and say a mistake has been made. It's in the area of

automatic approval. We had legislature in 1998 passed a law

that essentially says that all business and development related

permits including those that are used in land use,

environmental regulators the like can be automatically approved

if the --al body does not act upon them in a set amount of time

and thinking about the bodies that are making the decisions

whether B, L, and R, our own planning commission, the land use

commission but the most likely way for there to be a real

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stupid decision coming out of one of these bodies is if they

happen to blow the timeframe at some point and enact something

by an automatic approval and I'd suggest that some day if a

particularly -- and damning decision is made by act of an

automatic approval, the courts may come in and say that the

natural resource that's being jeopardized by that decision is a

public trust and like the Illinois Central, like these other

public trust cases, step in and are you -- them for them. Okay

and there's a couple of things I'd like to say and I'll

entertain questions about, I just want to say, if I could just

say one more thing on a theme and I want to say this to try to

explain to those of you in the public why sometimes people like

myself who have jobs now in the government don't do what we

ought to do or don't do as good a job as we should do and you

have to, we do a much better job in regulation and management.

In the Waiahole water case, it was very important and

there was a question that was set up. Was that something that

was worth the effort? I think it was absolutely something that

was worth the effort but think Waiahole water case. You had

maybe 15 attorneys in the room, you had commissioners, you had

transcribers, you had some of the brightest people in the

state, maybe 25 people from the state in a room discussing the

allocation of water. All that water depends upon recharge from

upland forests. Folks you don't have 20 to 25 people out there

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working on those upland forests, fixing the fences, making sure

that alien plants don't spread in the forest. We need to do a

much better job in active management.

Moderator: Thanks. This is passing the

mic to Bill, if you will. I want to remind you that there's an

opportunity to write down your questions and people will be

coming around and picking up your questions and we're going to

try to get to some of your questions and we're going to try to

make time so again, panelists give us the headlines so that way

we'll have some time for questions. Okay, Bill.

BILL DEVICK: I'm not a lawyer. I just

want to say is not a lawyer. I don't want to, I need to start

with a disclaimer, I'm not a lawyer. Is not a lawyer as such I

don't want to keep my thinking bound by legal principal. I

look at the public trust and I see a tool and I see a tool that

should be interpreted in the broadest possible sense. If we

look at what the decision making has done in the past, things

have really gotten rather messed up. If we look at fisheries,

they've collapsed. If we look at what's happening in streams,

we've got lots of problems. If we look at the land, we have

serious problems. Why is this happening? Because

decision-making has largely been focused on economic interests.

I see public trust as both a philosophy and a potential tool

to shift that thinking, to shift the balance in decision-making

towards protection conservation, thinking about the future,

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rather than simple immediate, economic advantage.

Obviously we'd like to have this and obviously it's

much easier said than done. One thing that is seriously

lacking in achieving this level of consideration is good

science, good understanding of what it is that we're dealing

with. There is a major -- principal which is frequently

associated with public trust and it can be used at least by

some people as an excuse to not collect the information. If we

don't know, that becomes a curetment for not making a decision,

especially towards protecting our conservation so we need the

science. If we don't have that, if we don't have the good

information, if in terms of want we simply fall back to the

pre-sautionary principal. What is going to be happening is

that we're going to be making the lawyers on the first panel

very happy. They're going to go to work and we're going to go

home.

MODERATOR : Thank you.

COLLEEN HANABUSA: Thank you. I think we

have a logistical problem here. Thank you. I guess on the

panel I'm one of those who you look to to have something wise

to say about where the legislature is going to go because after

all we are deemed to be the state and the trustees of the

public trust doctrine. All I have to say is that the reason

why you do not have the kind of legislation that many are

looking for is because of the fact that you do have so many

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types of views, a lot of them conflicting, that have to be

balanced and we do not, we the legislature, do not balance that

well, at all.

The Waiahole decision is very significant to me, not

so much as an attorney but as a lawmaker because of certain

things that the Supreme Court said that I think will impact how

we look at the public trust doctrine, how we look at the whole

area of the water rights into the future and that is, I think,

best stated by the decent of Justice Remeal that when he

pointed out that in his opinion the majority trumped the water

code by this nebulous common law doctrine called the public

trust. And of course he wasn't the minority but what this does

in fact tell us is that when the Supreme Court of my high has

now actively interjected themselves in a way that I don't

believe they have in the past, they are saying that they are

the ultimate entity that it determines whether or not we the

state has fulfilled our public trust in terms of the natural

resources, not only constitutionally mandated but also mandated

in common law principal.

What it tells us in the legislature is as the Court

did say in the majority that we are unable to advocate our

trust responsibilities whether it is by way of the water code

or even the water commission, in my opinion constitutionally

established by the people in the Constitutional Amendment. But

what does this then mean in terms of the legislature? We are

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undisputed the trustees, but what does that then mean for us in

terms of how we then exercise the issue of the public trust and

the management of this resource and I will tell you I don't

know whether the legislature as an entity has any idea as to

how to do it. It will continue to basically advocate it to the

water commission as the entity that should be making those

decisions and it will continue to be lobbied by all those

various interest groups to change that water code which

everyone will feel somehow effects how this necessary natural

resource is managed and the result will be probably what you

all have seen. Many of your faces are very familiar because

you're in our offices on various sides of various issues and

you know for the most part what happens is practically nothing.

And let me give you an example, how many of you know what visa

is, I mean it's a Constitutional requirement and basically

nothing has happened and every time there's a move toward visa

and there's a move against it around what's really interesting

is many times that move is done by both sides, what we would

consider both sides of the issue. Both environmentalists don't

want it done in a certain way and the people who represent

development, they don't want it touched. So we end up at

status quo, sort of at every juncture and we're almost at, what

it seems to me is that we have sort of an artificial balance

here and it isn't until one group is going to push that the

other group is going to react to. Let me give you another

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example, we all know Pash, the infamous Pash decision,

gathering rights, native Hawaiian rights. If you ever come to

a decision where people start saying, "Let's codify, let's do

something about it." I think you'll be surprised that both

sides of that issue will say let it be. We think it's working

cause no one wants anyone else to get a one-upmanship on it.

This legislature is probably going to continue on that way as

long as the people that are represented maintain that. When

that balance shifts by the election process and whatever party

preference or whatever the elections may be. I will say that

there will be a shift in that balance and at that point in

time, my estimate will be that there probably will be more

lawsuits filed and it will be filed under the Public Trust

Doctrine because that resource and as you see the sentiments of

the communities today and especially in these economic times

and the events of September 11th, I believe you will find,

excuse me, more and more of these types of decisions made with

the more immediate future in mind and for that you will have

sacrifices made, as well as what people would like to say are

the public trust and the future.

People are looking more to what is immediate and not

even saying, if there isn't an answer for the immediate, how

can you look for the future, what are you preserving it for?

So these are the kinds of issues that the legislature is going

to be faced with and unfortunately I believe that the concept

106


of the public trust in the near immediate future will be fine

if we can just keep it in the balance that it is now. Thank

you.

MODERATOR: Colin.

COLIN HIPPE: Aloha. We were asked to not

so much focus our energies on what the decision itself says in

terms of the doctrine. We've heard about it and from my

perspective, this is a Seminole case. This is a case that for

someone who is a Hawaiian rights advocate is long overdue but

all it does in my opinion is says something we already knew

already existed. If you look at the materials I prepared, I

began with the very simple statement and it was this, "Without

a resource, you can have no practice." For me, Waiahole

represents an opinion which basically says that we will care

about the protection of the resources. In my paper that I

presented, I go on and talk about some of the doctrine, some of

the rules that were in the case and I guess the fundamental

things that I think have changed and for all of you who are

planners or who are bureaucrats or who are people who are

deeply concerned about how we're going to meet this objective.

The basic thing that has changed is what we have just

said, that those who make decisions about water are trustees,

there is a picture in that case and I'm a person who loves

pictures and the picture is a picture of an umpire and if you

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read the case it talks about how people who make these

decisions, trustees must already be umpires passively calling

balls and strikes. Now Barry Bonds just hit 72 and I know that

many of you here probably, in fact let me just see a show of

hands. How many of you here play softball? You know, I got to

say that you folks really need to spend more time on

recreation.

The problem when you're playing soft ball,

particularly if you're playing as an adult and I don't do it as

much because my knees are gone but the problem with playing

softball is that they only give you one umpire when you're an

adult playing in a makuli game. And when you're in the makuli

league playing softball, that umpire's in position behind the

batter and there might be a play at second base and I want you

just to imagine for a second a rather -- umpire standing behind

the batter and there's a steal on and the batter runs to second

base and the umpire, looking through the pitcher, calls the

play at second base. It's a close play, the throw was from the

outfield. It is from behind the second baseman because he's

looking from the outfield receiving the throw and that umpire

stands at home plate, takes not one step to move out in the

field to be able to see what's going on. For me when I read

that language in the opinion and it's there, you know I've had

some experiences with that situation where the umpire is

cemented into the ground and is not doing the things that he or

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she needs to do which is to get out there, into the field. And

see what's going on, ask the questions, get the data, do the

analysis, and form a conclusion. And we know, you know, we

know that science is evolving. We know that what we know, will

know tomorrow will not nearly match what we knew yesterday and

it is that way with science. But this case says if you don't

know then you need to adopt some precautionary principals which

protect the resource. You can read all about that in what I've

basically written because it's there. I don't want to take any

more time but if you just remember that one principal. No more

are we going to stand for umpires standing cemented behind home

plate. They are going to have to get out there, ask the

questions and are going to have to make decisions. I wasn't

really going to talk about this but Senator Hanabusa, you made

just such a perfect segre for what I'm going to say now. I

work for the office of Hawaiian affairs and everything that

I've said is my own opinion but imagine public trustees that

are elected. What does that mean? Senator Hanabusa, I tried to

indicate that. You have your constituencies and you have your

political issues that need to be resolved, you have the need to

have yourself elected in two years if you're a representative

or four years if you happen to be in the Senate. How does that

body go about implementing the public trust, one which is

long-term and not short-term. I could write volumes about how

that structure could lead to some very interesting situations

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at the office of Hawaiian affairs. And a lot of it is

structural but the legislature has a role to play here and I

see the role that the legislature has to play that it has to

provide the resources, the resources for those people to go out

and to be able to go out and to be able to do the studies that

are necessary to make the decisions. How many planning

departments have biologists on their staffs? How many county

planning departments have biologists on their staffs? You know

those are the kinds of questions we need to be asking. How

many of them really have people who are cultural experts so

they can define what it is that practice is, so that they did

define what it is that needs to be protected.

I conclude my paper with a very, I think something

that all of us know whether you are Kama' aina, who you are

munahole, whoever you are, you are on this island, you live on

islands and you have a responsibility to -- aina and for me the

thing that this case represents and it's just another case in a

developing doctrine that our Supreme Court has embraced and it

is this that we must -- hanai, we must protect the land and the

water and we must protect the rights of those people to be able

to practice their traditional and customary ways with respect

to that resource.

MODERATOR: Thanks Colin.

CHARLIE HOE: I'm here on behalf of myself

and on behalf of (inaudible) and the fact, the question is why

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am I here was one that I have in the very beginning. Perhaps

it has to do with my job and not as an administrator of any

governmental office or the regulator on any level but simply as

a citizen. I came to the issue of water back in the earlier

1970's and I came to it being much younger and naive than I am

at this particular moment in time and looking for this

Constitution which to me was quite clear, that we were to take

care of our natural resources and of course that water being

primary to that. And I was concerned about it because our

family was trying to reopen some -- that had gone into some

remission for a period of time as the older generation passed

away and the younger generation had yet to take over.

(Inaudible) and as we tried to do that, tried to access our

equipment rights that came with the land that we found that the

streams that had preferred previous to that in the experience

to our family and the experience of our family been

sufficiently ongoing fully sufficient to the all of the -- in

our particular area was nearly dry. So we did, we went to all

of those agencies, all of those people we saw were the

caretakers of that resource and asked them for assistance. Can

you help us find the cause? Can you help us find the solution?

To the person and this was at the county, at the state and at

the federal level, we were told it's not our business and

furthermore it's not really a big problem and it's just you

folks in that little particular community.

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Well, we didn't quite believe that and so our

particular community said well, let's go ask. Let's go

statewide and see if our problem is just unique to our area or

is it broader than that and we actually took up our family, and

I say we because whatever we've done on these issues over the

years, we've taken individual personal responsibility to do it

and we've never done it alone. It's always been multiple

people coming together with positive energies to find solutions

rather than reasons why we cannot do problem solving. So a

group of people within our communities bundled up our family in

our jalopies, sent our trucks to the main islands and literally

went community to community asking, "Are you folks having water

problems and what are those water problems?" And to the

community and we went from Kauai to Molokai, Maui, to the big

island, all around and to the various communities asking that

question and two of the communities that we visited there were

having water problems. And no one up to that point had really

said okay, what can we maybe do about this and as we started

talking collectively statewide, one of the ideas that came to

us is that maybe what we can do is start with our own state

Constitution and maybe what we can do is take a look at the

list that look at the wording that currently says, take care of

our water and state resources, and make it a little bit

stronger, a little bit clearer, that not only do we

collectively have that responsibility but our government, of

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which we are a part, has the responsibility to take the lead,

has the responsibility to set aside resources, both human and

financial, and to take that task on directly.

I ended up being the person with the short straw and

was sent off to the Constitutional Convention in 1978 and

becoming part of that effort and I mean a very small part of a

very broad effort statewide to try to make that language more

clear so that we would have something to go to, some forum to

go to, rather than for more than the economic voice, which from

our prospective at that point seemed to be the only voice at

the table in making decisions relevant to water resources.

Provided the forum, more voices could be at the table to look

at the long-term care for our water resources, to look to the

perpetuity of the health for that resource, not just how can we

make a dollar in my time and in my generation. I think we have

before us an imperfect vehicle with our water code and I think

we're in the process collectively as a broad community of

having an ongoing dialogue of how do we best take care of this

resource. It's not going to be resolved by one act.

The Waiahole decision is a very important decision,

as I'll agree with Colin to my left, and it provides a very

important step forward that we need to be actively supporting

and working toward resolutions and I also agree that there are

multiple needs that we need to balance and how do you we do

that? With an eyetooth forever, not just today, with an

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eyetooth forever. It takes leadership, yes, from our

legislature but maybe more importantly from all of us. I think

that I have strong faith and many minds coming together to look

for resolution over the years from the time of the

Constitutional Convention initially again, I was much more

naive. My hopes were, okay, the Constitution says we're going

to have this entity, we're going to create this forum, we're

going to have this water code and instantaneously and we're

going to have a chance to have a voice and as you know it's

been ten years to define what the water code would actually be

and how we could get a water commission and all of those

balances, all of those competing voices were part of that

dialogue for nearly ten years. Through the course of that,

though, I think there was an agreement on the need to care for

the resource. To me that's the hope, that common ground there,

that's the hope.

MODERATOR: I have a lot of questions that

are coming in but I'm going to ask the panel to take off on an

issue that was raised by the Senator, she said that there's

legislative uncertainty about what to do next about the public

trust so if Senator Hanabusca or one from all over the

colleagues was to organize an informal forum bringing people

together from the executive branch or in the environmental

coalition or anywhere else in the community and asked them the

question, if we take the Public Trust Doctrine seriously, what

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two or three things ought we be doing to better implement?

What would you recommend? So Colin do you want to start? You

mentioned already having biologists, what else could you

recommend?

COLIN HIPPE: The one thing I would

recommend to the legislature is to bring their checkbook.

MODERATOR: I'd basically recommend

something similarly but let me give an example. We have an

incredible public highway system and the reason is that when

you buy gasoline, a chunk of the money from buying gasoline

goes into a fund that builds up and we have this, as a result

we have this incredible public highway system. Every month you

write a check to your local board of water supply that pays,

and that money goes to pay for the pipeline, maintenance

repair, pumping costs, reservoirs and the like and none of that

goes to managing and protecting the resources. And what we

need to do is find ways to make sure that that is part of the

equation and in what people, and people recognize that and when

you get out your checkbook and are paying for water every month

and we've got to get serious about looking at the public trust

and saying, "Gee, the long- term protection of the resources is

what's most important," and you've got to look at it and say

that that's just as important as pumping it underground.

BILL DEVICK: I thought as an easy solution

to this, obviously we have to -- that require but much of it

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too is attitude. We have to change people's ways of thinking.

I think it's down to education. I'm not sure that there is

not already a lot of potential in the existing system to direct

some of the effort to try to inform the public and especially

to inform kids because kids can influence their parents so

rather than at this point saying pull out the checkbook

especially considering the state of the economy. I would like

to see some greater effort on the part of the entire state

government to direct efforts toward informing people and

possibly if there was the legislative mandate of this pointed

and not in that direction.

MODERATOR: Jan, I think I'm going to --

when it comes to giving people advice, do you have any?

JAN STEVENS: I think it's hard but I think

the previous leaders have indicated some really good things. I

know in our state the Department of Fish and Game is

historically understaffed and underfunded and it makes it very

difficult to come up with adequate evaluations of things even

when there is a statute that provides them with the statutory

direction to give an opinion and there isn't one to keep fish

in good condition or a number of other legislative directives,

some of them conflicting, but a most of them in the direction

of this kind of evaluation. You have to finance the bad

quickly. Secondly, I think this idea of the public education

is a good one. Maybe it's tied to the funding thing. I know

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the tobacco fund in California has been extraordinarily

successful in putting up billboards and having public education

campaigns that's resulted in California being one of the lowest

smoking rights in the country so I know there's a lot to do

with public attitudes and with the culture as well, so you have

to have statutory tools, you have to fund their implementation

and I think public education is a big part of it. This is a

smart panel.

CHARLENE HOE: I would do all of the above

but I would also add that when we're first thinking about in

terms of creating the water forum and creating the water flow

and trying to have a forum outside of the courts to discuss

some of these issues and to come to resolution on behalf of the

community we weren't thinking of recreating the course although

that's always a tool and operation so if there were forums to

have multiple lines to come to the table, whether it's a round

table format or some form of corroboration that could be done

on an ongoing bases to help inform decision-making, I think

that would be a valuable step forward.

SENATOR COLLEEN HANABUSA: That's okay. I

expected to hear about funding and that's not unusual but let

me say that I think it's an educational process and it's a

priority and it's not only changing the community's focus but

also the decision-makers. Let me give you an example. After

the Waiahole decision came up, the one thing that I thought was

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very clear was that there was an emphasis and I think an equal

emphasis placed on experience and traditional Hawaiian water

resource management techniques so I introduced a bill that

would have added or required one member, originally it was one

member, on the water commission to have those kinds of skills.

Of course, it's --, people didn't know how to define it but I

said, I think you know the Supreme Court said that is one of

the important aspects of our public trust so we should have

someone. Because to me, yes, we did advocate our

responsibility to basically the commission and the commission

should have someone like that. And the bill got amended to

include someone with those characteristics. And let me tell

you what happened, Oahu testified in favor of it and Kailua

testified in favor of it and I believe the Life of the Land

did, but Department of Land and Natural Resources, I don't know

if Gill is here, but they testified against it and so did the

county of Kauai and some of my colleagues who I would have

thought would be strong advocates for this, also voted for it

with reservation.

The reason is, as I stated earlier, is because people

view it as we're sort of in an equilibrium now and anything

could upset this balance and it may require, it may then result

in something worse happening. So when we look it at it and

when we look at the funding or when we look at any other points

what you've got to understand is our structure as well. Yes we

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make policy, we talk about money. Most of those issues come

from the administrative branch. I see my good friend Bill

there. Ask Bill. He has problems in the Waianaie boat harbor.

We give him all of the money he wants but that's not all the

money he wants. But that's all the money the department will

tell us that he needs. So it's all of that, so it comes back

to our structure. So if you really want to start to institute

change, you've got to start with what people must first

understand what the public trust is and I would say most people

don't understand that there is this thing called a public

trust, what it means to water and it's even more fundamental

than that, that it is a natural resource that must be reserved

for the future. We as legislatures say yeah, we read it, we

understand it. But unless everyone else is there practicing

that to the point that it goes up to the administrative branch

and comes down, things like money, things like getting people

together and passing legislation, it isn't going to work. It's

not going to work. Until those people understand it and for

them to understand it, it's got to come from the grass roots.

Thank you.

MODERATOR: We have lots of wonderful

questions up here. Let me ask just a few in the remaining

time. What does the Public Trust Doctrine mean for the

practice of ocean leasing in Hawaii, particularly as to the

emergence of marine aquaculture? Anybody like to comment? Well,

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I have a feeling that somebody wants one of those lawyers to.

COLIN HIPPE: I'll take a swing. It seems

to me that this question of ocean leasing obviously would be

occurring in navigable waters so the trust doctrine would be

implicated and there have been bills in the legislature over

the last several years which talk about a water column, talk

about the submerged lands, talk about the water above the

submerged land, talk about the surface water. And that's

something which is presently under the jurisdiction of the

Department of Land and Natural Resources, the resource

managers. But I think ocean leasing is really important when

you look at it from a view that this is all one big circle. It

rains, it flows down to the ocean and then it recycles itself

again. But we're also concerned not just with the resource

itself. When we define resource, we mean those things that

live there. At least from the Hawaiian prospective we have

been on record on numerous occasions raising issues having to

do with the protection of the resource itself by these kinds of

ocean leasing endeavors and I will predict that they will

increase in the future and I will predict that in our economic

situation that some of the kinds of proposed activities, sea

vents, sea caves, floating city, perhaps something along those

lines will probably increase as the need for additional revenue

sources and food increases.

MODERATOR: Another question that the

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University of Hawaii has developed a science state and research

center has created a --- sign protocol to protect or restore

against feeding flows instream ecosystem negatively. Why is it

that EMR cut the funding for this? (Laughter) I'm going to help

out. The public trust doctrine has developed and financed a

safe level equivalent to the unified federal policy immerses

water -- approached the federal land and resource management.

Any comments on how the state can better finance and implement

an integrated watershed approach?

COLLEEN HANABUSA: Let me try that. We did

try many versions of the bill on the watershed on and it was

the funding on that was to increase, I believe one version was

to increase maybe 10 cents and whatever the board or water

supply would have collected and various versions of tapping on

to existing water, I guess you could call it, water cost and

we're able to get it and transferring it to watershed or -- it

into that special one for that particular purpose. It's like

anything else that looks, smells, talks, sounds like a tax. If

you do anything like that, the general public comes forward and

you are faced with people saying you are finding, the

government is finding another way of taxing us.

That is why it's so important for the people to

understand the necessity to preserve and it's only if you get

the general public at that point that you're going to be able

to look at any kind of funding mechanism which would take care

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of things such as watersheds and so forth. Short of that, it's

going to continue the way it is.

MODERATOR: Our time is running short so I

want to give the panel an opportunity to comment. We talked a

lot about the positive aspects of the Public Trust Doctrine

today and I'm curious to hear your comments about what worries

you or what you see as an uncertainty or the remnants of what

we haven't talked about. Any observations about that? Anybody?

What are the down sides?

COLLEEN HANABUSA: The down side is the

trustee. Primarily us in the legislature - 76 of us, you

know, 51 in the House, 25 in the Senate. All elected as Tom

had pointed out, some with two year terms, some with four year

terms or maybe with all of us with three year terms next year

and the priority with how people are looking at that. You have

many people who are out there and will say, they're

environmentalists or they're sensitive to the what-not the

preservation of the natural resources and they will do whatever

is necessary for a reelection if that's their priority or for

special interest if that's the way they're concerned so the

down side on the Public Trust Doctrine and the way that I read

the Waiahole decision and one of the things that I was

concerned about is that they made it clear that legislature is

the trustee and the legislature should not advocate the

responsibility. To me the smartest thing that happened was to

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create the commission itself. People and to designate the

criteria of the people to sit on it and to basically have these

people with the expertise and not to rely on the legislative

body. So the problem as I see it is that if the Public Trust

Doctrine can be kept in its most pure form and as much as I

said in my piece that I was concerned about the active role of

the courts. I would have to say that that is probably going to

be the saving grace in all of this but the down side is the

trustees because there is no Public Trust Doctrine unless you

have government and that's a threshold, no government, no

public trust. That's the presumption and you must have

government in some form or another and government is the

downfall to me as to the public trust.

MODERATOR: Anyone want to say anything

uplifting? I want to thank the panel. I also want to thank all

of you because there are some terrific questions that you

handed in. I'm going to pass these to the members of the panel

so they'll have an opportunity to get some of these. Thanks

very much to all of you.

JIM PAUL: And let me ask that you save

those questions because those of us on the program committee

are going to try to put all of the questions that have come in,

in writing on a website that will grow out of this symposium

and so that those questions will not be lost and will be used

in some other ways so please go ahead and show them to the

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panel but please save them so that we can use them in that

fashion.

Also I want to confirm that the additional black

books have arrived so those of you who did not receive them can

get them when you leave. But Professor Sax, if you would be so

kind to try to sum up for us perhaps in ten minutes.

PROFESSOR SAX: Well, the panel ended with

the question, does anyone want to say anything uplifting and

I'll volunteer. First, I think you're very fortunate. I was

amazed at the depth of knowledge, the commitment, the energy

that was expressed by the various people from this state who

have been on the two panels. I just think it's extraordinary

and you should feel very good about that. It seems to me that

that's a very good sign and I don't think there are very many

places that you'd be able to put together panels like that.

Let me just say a couple of things about what I would

take home from what I heard today. I thought the point that

the public trust is a philosophy and a tool was right on the

mark. I think that's exactly right. I think it creates an

opportunity to revise priorities, to utilize good science, to

turn things around from the way they've traditionally been done

so in the planning process, in the management and

administrative processes that are going to go on. Resources

will be looked at first and they'll be looked at in the context

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of good data about what the potential losses and potential

opportunities are. I want to say something about a question

that was raised, did the Court or does the Court, as a result

of a decision like this arrogate to its authority as against

the legislature? I think if you handle things right that's not

the case at all. I think if you handle things right and at

home you picked up some of this from what Jan Stevens said, the

presence of a Court which indicates a strong commitment to such

a doctrine and a willingness in an energetic way to see that

it's enforced. What it does if things work right is that it

empowers the legislature to move forward, let's say it pushes

the legislature to move forward on some agenda items that

perhaps have not gotten adequate attention. It energizes

administrative agencies to act and it stands ready in the

background to make sure that they do their jobs so it's there

if you play it right to help you get the job done and to create

some incentives to move in ways that you haven't been able to

do before but you've got to take advantage of that. I want to

say something also that about the fact that comments were made

about water controversies that go on and on and on and are

endless but I think again if you listen carefully to what Jan

was saying and the examples that he gave, the experience in

California has basically been that in light of the potential of

have having endless litigation, it has induced people to sit

down and to try to work out solutions and in most of these

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cases we have worked out solutions that don't give anybody all

that they want but create a kind of resolution that's

acceptable to everybody and gives to resources a great deal

more than they've had traditionally and I think that that's a

very positive experience and one that you might want to look

for some potential guidance. I think another point that Jan

made that I would also want to emphasize is that in the

aftermath of the Mono Lake case that was viewed as a very

radical decision by a court that had sort of stepped outside of

it's ordinary role. There was a lot of talk about collapse and

catastrophe and nothing could be built anymore and people won't

water and that food would not be available and every bad thing

that you can think of. And as you can see, we're still in

business. Things haven't collapsed and people have responded

in a positive way and that's something I think to be encouraged

about.

On a legal note that arose on the first panel, that

is the concerns that were expressed about whether the kind of

public trust interpretation you have is the taking property. I

just want to say a brief word about that. These are questions

that undoubtedly whether in this state or in others will

eventually find their way to the Supreme Court. My own

observation is that the critical issues that the U. S. Supreme

Court will want to look it is, what is the state law? The Court

has been traditionally very differential to state's

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interpretation to what their own law is. I mean, you heard me

and Jan refer to some states like Montana, Idaho and so forth.

You heard one of the panelists refer to states like Maine and

New York. The reason we referred to different states I think

because Maine and New York are classic cases of states that

have taken a very narrow view of the public trust and if you

have a state that takes a broad view of the public trust I

think you can expect. I mean the Supreme Court of the United

States will tend to kind of follow where the states go, so

states that have taken a narrow view are likely to have a much

more limited public trust. I think another question and I

don't know the answer to it in regard to Hawaii but another

question that's important is whether the Court ultimately will

take the view that these are rights and commitments that have

in fact been a part of your law for a long time going way back

or whether they are very new ideas, rather the Court itself

innovated or that came only at the time of your most recent

Constitution which was 1978.

Those are the types of questions that I don't know

the answers to but those will be critical questions. It is a

doctrine that's come up in many circumstances where courts

would say, yes here is a provision that you see only in a

relatively recent law but in fact it was simply an affirmation

by the legislation or by a Constitutional Convention of

something that in fact had been the accepted principals in the

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state for a long long time and that's I think one question that

will at some point will arise in the Hawaiian situation if your

Public Trust Doctrine is challenged on Constitutional grounds.

Finally I just want to say obviously Public Trust Doctrine is

a very important potential tool. It isn't a cure all, it isn't

going to solve all of your resource problems but it is an

important and valuable tool as long as it's used right.

Someone who's worked on environmental issues now for 40 years,

I want to say you are not going to solve all of your problems.

This is a world of never ending struggle. It just goes on and

on and on and you don't move forward as rapidly as you like to

but if you're moving forward even if, you know, you'd like to

go by miles but you're actually going by inches, at least

you're moving forward and as long as you keep at it, you know

you'll get there eventually. And the fact of the matter is, I

mean, that there never is enough money and everyone has that

problem. And there are always power ful forces with projects

that want to misuse resources and I think you have to face up

to the reality and you work against it and now it appears that

you've got some new or newly recognized and powerful tools to

help you in that and you have a lot of knowledgeable and

committed people to work on it and from across the water, we

wish you good luck.

MODERATOR: Joe, thank you very much. January

Stevens, where are you? Will you come up here for just a moment

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and Denise and Donna, will you please come up here for a

moment. We have two special little gifts, little mementos

that we would like to present to you at this time. They are

specially made, recently made wooden bowls of wood that have

been recently engraved in honor of their trip here to visit

with us here today and thank you very very much. I want to say

thank you again to the Hawaii community Foundation for

literally making this possible. Without their financial

support and their understanding of the importance of this topic

and their willingness to go the extra mile to make this happen

despite our limited budget which we creatively used to pull

this off. I want to thank them very very much and all of the

other sponsors I mentioned at the offset who have been very

important in this. I want to especially, where did Donna go?

Donna is right here. Donna, who is the executive director of

Hawaii's Styles and Friends is also the reason why this

symposium took place because she has been working 15- 18 hours

per day. And a special thanks to the pro bono efforts of our

moderators, Peter Adler and Kim Lowry, for helping us and to

Ouella for making a record of this and again for those of you

who are interested in having a copy of the record, I'm told you

should check with Donna. That may be possible and I want to

thank especially Denise Antolini and Bill Tam who with me and

Donna worked on the program committee for this. Good Job. And

thank you all very much. I want to second the comments that

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Chris Vuen said that this is a remarkable distinguished

audience with a lot of people who have had a lot to do with

this issue and related issues and as you can see we touched

with incredible speed, on many topics today and scratched the

surface on many of them and a conversation that, as the

panelists have said and others have said, needs to continue and

I'm sure will continue. Thank you very much.

Good morning. Let us begin. We are privileged this morning

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