Water Use Permits and Public Trust Doctrine in Hawaii: The Waihole Ditch Supreme Court Case

Water Use Permits and Public Trust Doctrine in Hawaii: The Waihole Ditch Supreme Court Case

Introduction

The Supreme Court of Hawaii, in the landmark case In the Matter of the Water Use Permit Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Reservations for the Waihole Ditch Combined Contested Case Hearing (94 Haw. 97), addressed a multifaceted dispute involving the distribution and regulation of water resources on the island of Oahu. The central conflict revolved around the Waihole Ditch System, a critical irrigation infrastructure diverting water from the windward to the leeward side of the island. With the cessation of sugar plantation operations by the Oahu Sugar Company (OSCo) in 1995, excess water discharged into Central Oahu gulches began to negatively impact native stream ecosystems and the greater Kneohe Bay environment.

The case brought together a diverse array of parties, including the Commission on Water Resource Management, the State of Hawaii Departments of Agriculture and Land and Natural Resources, private estates such as the Bernice Pauahi Bishop Estate and the Estate of James Campbell, community associations, corporations like Dole Food Company, and governmental bodies including the City and County of Honolulu. The pivotal issues encompassed the amendment of interim instream flow standards, the allocation of water use permits for existing and new offstream purposes, and the reservation of water for both public and private uses.

Summary of the Judgment

On September 17, 2000, the Supreme Court of Hawaii delivered its opinion, affirming in part and vacating in part the Commission on Water Resource Management's (the Commission) December 24, 1997 decision concerning the allocation of water from the Waihole Ditch System. The Court focused on several critical areas:

  • Procedural Due Process: WWCA (Waiahole-Waikane Community Association) alleged that the Commission Chairperson, who also served as the Chairperson of the Department of Land and Natural Resources (DLNR), presented a conflict of interest. The Court, however, found no actionable conflict due to the lack of personal financial interests and the Rule of Necessity, which mandated the Commission's continued operation despite potential biases.
  • Public Trust Doctrine: The Court affirmed the application of the public trust doctrine, expanding its scope to encompass all water resources in Hawaii, both surface and ground waters. This doctrine obligates the State to protect water resources for public use, balancing competing interests, including instream environmental needs and offstream agricultural and municipal uses.
  • Interpretation of the State Water Code: The Court delved into statutory interpretations, emphasizing that water use must be reasonable and beneficial while aligning with public interest and land use policies. The Commission was required to establish instream flow standards based on comprehensive planning and scientific data.
  • Instream Flow Standards: The Court critiqued the Commission's determination to adjust interim instream flow standards without sufficient scientific backing, leading to the vacating of these allocations and ordering further proceedings.
  • Water Use Permits: The Court found flaws in the Commission's allocation processes, particularly regarding the use of a twelve-month moving average (12-MAV) for water diversions and the allocation of water permits exceeding actual needs, resulting in vacated permits for certain agricultural and nonagricultural uses.

The dissenting opinion, authored by Circuit Judge Ibarra, criticized the majority for overstepping statutory bounds by relying heavily on the public trust doctrine to prioritize instream uses over other legitimate water uses, arguing that such decisions should remain within the purview of the legislative framework established by the State Water Code.

Analysis

Precedents Cited

The Court's analysis was heavily influenced by foundational cases that shaped the public trust doctrine. Notably:

  • Illinois Central Railroad Co. v. Illinois (1892): Established the modern public trust doctrine, asserting that the State holds certain natural resources like navigable waters in trust for public use, thereby limiting private ownership.
  • King v. Oahu Railway Land Co. (1899): Reinforced the application of the public trust doctrine to lands submerged under navigable waters, emphasizing the State's duty to preserve these resources for public enjoyment.
  • REPPUN v. BOARD OF WATER SUPPLY (1982): Expanded the public trust to include all fresh water resources, not just navigable waters, recognizing the ecological and public health implications of water resource management.
  • ROBINSON v. ARIYOSHI (1982): Further delineated the public trust doctrine in Hawaii, emphasizing the State's duty to maintain the purity and flow of waters for future generations.

These cases collectively informed the Court's understanding that the public trust doctrine in Hawaii is a comprehensive mandate, requiring the State to balance environmental protection with economic and social water uses.

Legal Reasoning

The Court meticulously analyzed the intersection of procedural due process, the public trust doctrine, and the State Water Code:

  • Procedural Due Process: The Court scrutinized allegations of bias due to the dual roles of Commission members, ultimately determining that no substantial conflict existed that would warrant disqualification. The Rule of Necessity justified the Commission Chairperson's continued role despite potential institutional biases.
  • Public Trust Doctrine: Recognizing the constitutional basis for the public trust in Hawaii, the Court affirmed that this doctrine extends to all water resources, mandating the State to protect these resources for public benefit. The doctrine imposes an affirmative duty to balance competing water uses, ensuring that no single use undermines the public's enduring rights and environmental health.
  • State Water Code Interpretation: The Court interpreted the Code's provisions on "reasonable-beneficial use" as requiring water use to be economically efficient and socially beneficial while aligning with public interest and land use policies. The Commission was tasked with establishing instream flow standards based on scientific data, yet failed to do so adequately, leading to the Court's intervention.
  • Instream Flow Standards and Permit Allocations: The Court found that the Commission's adjustments to instream flows lacked sufficient scientific justification, undermining their role in protecting water resources. Additionally, the use of a twelve-month moving average (12-MAV) for water allocations was deemed problematic as it allowed for excessive diversions during peak demand periods without ensuring sustainable flows.

Impact

This judgment has profound implications for water resource management in Hawaii:

  • Strengthening Environmental Protections: By affirming the expansive application of the public trust doctrine, the Court reinforced the State's obligation to protect water resources, ensuring that environmental and public health considerations are paramount in water allocations.
  • Regulatory Oversight and Accountability: The decision mandates the Commission to adhere strictly to procedural and substantive standards in water resource planning, requiring comprehensive scientific studies and rational allocation methods to balance competing demands.
  • Future Water Use Permits: The ruling necessitates a more rigorous justification process for offstream water uses, particularly those that could negatively impact instream flows. This ensures that water permits are granted based on actual needs and sustainable practices.
  • Legislative Clarifications: The Court's emphasis on the legislative framework highlights the need for clear statutory guidelines governing water allocations, potentially prompting legislative action to refine water management policies.

Additionally, the case sets a precedent for how courts may interpret and enforce public trust obligations in environmental resource disputes, ensuring that ecological sustainability is integral to legal adjudications.

Complex Concepts Simplified

Public Trust Doctrine

The public trust doctrine is a legal principle originating from English common law, later adopted in various U.S. jurisdictions, which holds that certain natural resources (such as navigable waters) are preserved for public use, and the government must protect these resources for the benefit of the public. In Hawaii, the doctrine has been expanded to include all water resources, both surface and ground waters, imposing a fiduciary duty on the State to balance environmental protection with economic and social water uses.

Reasonable-Beneficial Use

"Reasonable-beneficial use" is a standard set by the State Water Code requiring that any water use must be economically efficient, socially beneficial, and consistent with public interest and land use policies. This means that water cannot be wasted and must be used in a way that benefits both the user and the community, aligning with broader environmental and developmental goals.

Correlative Rights

Correlative rights refer to the principle that landowners adjacent to a water source have rights to use the water as long as their use does not significantly harm the rights of other landowners. In Hawaii, this principle is superseded by the public trust doctrine and the statutory regulations of the State Water Code, which prioritize public and environmental needs over individual water claims.

Conclusion

The Supreme Court of Hawaii's decision in the Waihole Ditch case underscores the paramount importance of protecting water resources as a public trust. By affirming the expansive application of the public trust doctrine and critiquing the Commission's allocation methods, the Court has reinforced the State's duty to balance environmental sustainability with economic and social water uses. The judgment ensures that future water allocations will require rigorous justification based on actual needs and sustainable practices, thereby safeguarding Hawaii's vital water ecosystems for current and future generations. This case serves as a crucial precedent in environmental jurisprudence, highlighting the judicial branch's role in upholding constitutional and statutory mandates in resource management.

Moving forward, the Commission on Water Resource Management must undertake comprehensive scientific studies and establish clear, sustainable instream flow standards. These measures are essential for rational water resource planning and for maintaining the delicate balance between preserving natural ecosystems and supporting essential human and economic activities on Oahu.

Case Details

Year: 2000
Court: Supreme Court of Hawaii.

Judge(s)

Opinion of the Court by NAKAYAMA, J. Dissenting Opinion by RAMIL, J.

Attorney(S)

Gilbert D. Butson of Reinwald O'Connor Playdon, on the briefs, for Appellee/Cross-Appellant Puu Makakilo. Stephen K.C. Mau and Cheryl A. Nakamura of Rush, Moore, Craven, Sutton, Morry Beh, on the briefs, for Appellee/Cross-Appellant The Robinson Estate. Margery S. Bronster, Attorney General of Hawaii, Heidi M. Rian, Haunani Burns and Marjorie Lau, Deputy Attorneys General, on the briefs, for Appellees/Cross-Appellants State of Hawaii Department of Agriculture and Department of Land and Natural Resources. Benjamin A. Kudo, Wesley M. Fujimoto and Stacy E. Uehara of Dwyer, Imanaka, Schraff, Kudo, Meyer Fujimoto, on the briefs, for Applicant/Petitioner-Appellant Kamehameha Schools, Bernice Pauahi Bishop Estate. David Z. Arakawa, Corporation Counsel and Mark K. Morita, Randall K. Ishikawa, Duane W.H. Pang and Reid M. Yamashiro, Deputies Corporation Counsel, on the briefs, for Appellants City and County of Honolulu Planning Department and Board of Water Supply. Michael W. Gibson, Douglas S. Appleton and Keith M. Yonamine of Ashford Wriston, on the briefs, for Applicant-Appellee/Cross-Appellant The Estate of James Campbell. Paul H. Achitoff and David L. Henkin of Earthjustice Legal Defense Fund for Petitioners/Appellants Waiahole-Waikane Community Association, Hakipu'u 'Ohana and Ka Lahui Hawaii and Alan T. Murakami and Carl C. Christensen of the Native Hawaiian Legal Corporation, on the briefs, for Petitioners/Appellants Waiahole-Waikane Community Association and Hakipu'u 'Ohana. Gino L. Gabrio, Patrick W. Hanifin and Laurie A. Kuribayashi of Cades, Schutte, Fleming Wright and Orlando R. Davidson and David L. Callies, on the briefs, for Appellee/Cross-Appellant Land Use Research Foundation. Gary M. Slovin, Margaret Jenkins Leong and Lisa Bail of Goodsill, Anderson, Quinn Stifel, on the briefs, for Applicant-Appellee/Cross-Appellant Dole Food Company, Inc./Castle Cooke, Inc. James T. Paul, Pamela W. Bunn and Jessica Trenholme of Paul, Johnson, Park Niles for Intervenor/Appellant Hawaii's Thousand Friends. Frank D. Padgett, on the briefs, for Appellant Commission on Water Resource Management. James K. Mee of Pacific Legal Foundation and Cary T. Tanaka of Matsumoto, LaFountaine Chow, on the briefs, for Appellee Hawaii Farm Bureau. Jon T. Yamamura and Kevin E. Moore of Carlsmith Ball, on the briefs, for Applicant/Appellee Nihonkai Lease Co., Ltd. Lois J. Schiffer, Assistant Attorney General, Robert Klarquist and Andrew C. Mergen, Attorneys, Appellate Section Environment Natural Resources Division, Department of Justice and Cheryl Connett and Paul M. Sullivan, Attorneys, Pacific Division, Naval Facilities Engineering Command, on the briefs, for Appellee United States Department of the Navy. Alan M. Oshima of Oshima Chun Fong Chung for Appellee/Cross-Appellant The Estate of James Campbell. Naomi U. Kuwaye of Dwyer Imanaka Schraff Kudo Meyer and Fujimoto for Applicant/Petitioner-Appellant Kamahameha Schools Bishop Estate.

Comments