The “public trust” doctrine got a further boost in Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (July 28, 2006).
The public trust doctrine in its original form under Hawaii law was that the Crown or government owns title to all land below the high water mark, which is held in trust for the people for navigation and other public purposes. In other words, land under the ocean is a public resource, and incapable of private ownership. This doctrine has historical roots in American and English common law.
In more recent times, that ancient doctrine was expanded when the courts, following the suggestion of influential academics, began using the doctrine to justify finding that more and more resources were subject to the trust, and therefore not private property. While there is some debate about whether the public trust affects ownership of property subject to the trust, the doctrine was expanded to cover all water resources (not just submerged land), new land formed by lava flows, and beachfront land makai of the high wash of the waves. These forms of property, the court determined, was held in trust by the government as a public resource, to be protected for “future generations.”
The Kelly case, however, was not about further geographic expansion of the public trust, as it involved waters well within the scope of the original doctrine — nearshore ocean waters, which the parties did not dispute were subject to the trust. Rather, the question before the court was the scope of the duty imposed by the trust, namely which government entity has the obligation to enforce and protect the trust.
The background facts: After heavy rains caused a landowner’s erosion control measures to fail, dirt and other runoff ended up in the nearby ocean. The plaintiffs asserted, among a litany of claims, that the County of Hawaii had a public trust duty to prevent the runoff and water pollution since it had allowed the landowner to grade its property as part of a large scale luxury development. The plaintiffs also alleged that the landowner violated the terms of a water pollution control permit issued by the State of Hawaii Department of Health.
The County did not contest the existence of a public trust duty to protect nearshore waters, but argued it was the State’s duty, not the County’s. The court disagreed, holding that the Hawaii Constitution requires all governmental entities, including the state and “political subdivisions” to “conserve and protect Hawaii’s natural beauty and natural resources.” Haw. Const. art. XI, § 1. The court noted that the terms “political subdivision” and “county” as used in the constitutional text are straightforward, and expressly command both the State and County governments to affirmatively protect public trust resources. The court held, however, that despite the existence of this duty, the plaintiffs had not proven the County breached it.
Additionally, the court determined that the state’s duty to protect the public trust went beyond simply enforcing its statutes. The court held that the government has the obligation at “every stage” of the planning process to “take the initiative” in protecting the resource, and its role goes beyond that of a “mere umpire.”
While the decision was, technically, a win for the State and the County (the court found that neither breached their duties in this case), it certainly does not forecast an easier future for governments or especially for property owners who wish to exercise their constitutional right to make reasonable use of their land. By adding yet another layer of regulation with a constitutional nature — while leaving the standards very amorphous — Kelly has further complicated the land use process with little guidance to governments or property owners.