*1 P.3d In the Matter the WATER USE APPLICATIONS,
PERMIT Petitions Interim Instream Flow Standard
Amendments, and Petitions for Water
Reservations the Waiãhole Ditch Hearing.
Combined Case Contested
No. 21309.
Supreme Court Hawai'i.
Aug. 2000. Sept.
Reconsideration 2000. Denied
As Amended Nov.
103
105
107
Gilbert D. Butson Reinwald O’Connor & briefs, Playdon, Appellee/Cross- for on the Appellant Puu Makakilo.
Stephen Cheryl A. Nakamu- K.C. Mau and Craven, Sutton, Rush, Moore, Morry ra of & Beh, briefs, Appellee/Cross-Appel- on the lant The Robinson Estate. Bronster, Attorney
Margery General of S. Hawaii, Rian, M. Haunani Bums and Heidi General, Lau, Marjorie Attorneys Deputy briefs, Appellees/Cross-Appellants Department Agriculture of Hawaii State Department Natural of Land and Re- sources. Kudo,
Benjamin Fujimoto Wesley A. M. Imanaka, Stacy Dwyer, E. Uehara Schraff, Kudo, Meyer Fujimoto, on the & briefs, Applicant/Petitioner-Appellant *12 109 Bishop Kamehameha Schools Bernice Pauahi lee/Cross-Appellant Company, Dole Food Cooke, Estate. & Inc. Inc./Castle Paul, James T. Pamela W. Bunn and Jessi- Arakawa, Corporation David Z. Counsel Paul, Johnson, ca Trenholme of Park & Niles Morita, Ishikawa, and Mark K. Randall K. Intervenor/Appellant for Hawaii's Thousand Pang Yamashiro, Duane W.H. and Reid M. Friends. Counsel, Deputies briefs, Corporation on the City Appellants County for and of Honolulu briefs, Padgett, D. Appel- Frank on the for Planning Department and Board of Water lant Commission on Water Resource Man- Supply. agement. Gibson, Douglas Michael W. Appleton S. Legal James K. Mee of Pacific Foundation and Keith M. Yonamine of Ashford & Wri- Matsumoto, Cary T. Tanaka LaFoun- ston, briefs, on Applicant-Appel- for Chow, briefs, & Appellee taine on for lee/Cross-Appellant The Estate James Hawaii Farm Bureau. Campbell. Jon T. Yamamura and Kevin E. Moore of Ball, briefs, Appli- Carlsmith on the for
Paul H. Aehitoff and David L. Henkin of cant/Appellee Co., Nihonkai Earthjustiee Legal Lease Ltd. Defense Fund for Peti- tioners/Appellants Com- Waiáhole-Waikáne Schiffer, J. Attorney Lois Assistant Gener- Association, munity Hakipu'u ‘Ohana and Ka al, Klarquist Robert Mergen, and Andrew C. Láhui Hawai'i Alan T. Murakami and Attorneys, Appellate Section Environment & Carl C. Christensen the Native Hawaiian Division, Natural Department Resources Legal briefs, Corporation, on the for Peti- Cheryl Justice and Connett and Paul M. tioners/Appellants Com- Waiáhole-Waikáne Sullivan, Division, Attorneys, Pacific Naval munity Association Hakipu'u ‘Ohana. Command, Engineering Facilities on the briefs, Appellee Depart- United States Gabrio, Gino L. Patrick W. Hanifin and Navy. ment of the Cades, Schutte, Kuribayashi Laurie A. Fleming Wright & and Orlando R. Davidson Fong Alan M. Oshima of Oshima Chun & Callies, briefs, and David Ap- L. on the Chung for Appellee/Cross-Appellant The Es- pellee/Cross-Appellant Land Use Research Campbell. tate of James Foundation. Dwyer Naomi U. Kuwaye of Imanaka Slovin,
Gary Margaret Meyer M. Leong Fujimoto Jenkins for Appli- Sehraff Kudo Goodsill, Anderson, Quinn and Lisa Bail of Petitioner-Appellant & Kamehameha cant/ Stifel, briefs, Applicant-Appel- Bishop Schools Estate. TABLE OF CONTENTS I. BACKGROUND. Ill A. INTRODUCTION. Ill B. PROCEDURAL Ill HISTORY. FINAL C. DECISION. 113 II. STANDARD OF REVIEW. 118 III. DISCUSSION. 119 A. PROCEDURAL DUE PROCESS. 119 1. Dual Chairperson. Status the Commission 120 Improper Attorney 2. Influence General Governor. 123 B. PUBLIC TRUST DOCTRINE. 127 History 1. Development. 127 Relationship to the State Water Code. 3. State Water Resources Trust. Scope of a. the Trust. b. Substance the Trust. Purposes i. of the Trust. ii. Powers and Duties of the State Under the Trust. c. Standard of Review under the Trust. 144 144 WATER CODE. THE STATE OF INTERPRETATION C. Statutory Construction. Principles of 1. Basic 145 146 147 *13 Policy. Declaration of 2. Code Water FLOW STANDARDS. INSTREAM D. Protection. for Instream Use Statutory Framework of the 1. Overview 150 152 157 158 160 160 Objections Amendment. to the WIIFS 2. Procedural 3. Substantive 4. Objections Allocations. to Instream . Standard for Waikáne Stream Interim AND OFFSTREAM USES. OF INSTREAM BALANCING INTERIM E. USE PERMITS. F. WATER Applicants’ of Proof... Burden 1. Permit 2,500 Allocation of Gallons Generally, and the Agriculture, 2. Diversified Day. per per Acre 164 164 164 164 165 165 167 Campbell Estate’s Permits. 3. Seeds) (ICI 146,166 . a. Field Nos. 115,116,145,161 (Gentry/Cozzens) . Nos. b. Field . Sources c. Alternative Ground Water 4. PMI’s Permit. “Existing “Agricultural a. Use”. b. Use”. “Nonagricultural 168 171 171 Uses”. c. Distinctive Treatment Application of the Standards. d. Commission’s Average . Moving 5. 12-Month COMPENSATE FOR WATER TO KAHANA OF SURFACE G. USE DITCH “SYSTEM LOSSES”. ERROR . POINTS OF H. KSBE’S 173 174 Zoning Requirement. 1. System. Ditch Regulation 2. Unified “Ali‘i 175 176 180 183 183 186 Rights”. 4. n Correlative Rights. Takings 5. KSBE’s 6. Ankersmit’s Claim. Testimony. REQUIREMENT TO FUND STUDIES. I. MISCELLANEOUS OBJECTIONS. J. DOA/DLNR’S THE CITY’SMISCELLANEOUS OBJECTIONS. K.
IV. CONCLUSION. O) (D NAKAYAMA, (collectively, & final MOON, C.J., LEVINSON, sion and order decision) 24, 1997. on December decision or IBARRA, in RAMIL, Judge Circuit JJ. and KLEIN, J. Recused. Place of appeal include: Commis- Parties on sion; Estate appellee/cross-appellant NAKAYAMA, J. by Opinion of the Court Estate); appel- Campbell (Campbell James Planning from an extend- present appeal City County arises Honolulu lants (col- Supply Department and Board of Water distributed dispute the water ed over City); appellees/cross-appel- lectively, major System, irrigation Ditch Waiáhole (DOA) Department Agriculture lants supply- island of on the 0‘ahu infrastructure Department of Land and Natural Resources di- side with water ing island’s leeward (DLNR), (collectively, of Hawaii State DOA/ 1995, this its windward side. verted from DLNR); Dole Food appellee/cross-appellant in a case hear- dispute culminated contested Cooke, (Castle); Inc. Company, & Inc./Castle size, dura- unprecedented ing of heretofore (HFB); appel- Bureau appellee Hawaii Farm tion, appellee Commis- complexity before (HTF); ap- Thousand Friends lant Hawaii’s (the Management Resource sion on Water Pauahi pellant Schools Bernice Kamehameha Commission). hearing, At the Commis- (KSBE); appellee/cross appel- Bishop Estate petitions to the inter- amend sion considered Foundation Land Use Research lant windward flow standards for im instream Co., (LURF); Inc. appellee Nihonkai Lease ditch, per- by the water use affected streams (Nihonkai); appellee/cross-appellant Pu‘u offs- for various leeward applications mit Makakilo, (PMI); appellee/cross-appel- Inc. peti- purposes, and water reservation (Robinson); tream appellants lant Robinson Estate Association, uses. and offstream tions for both instream Community Waiáhole-Waikáne (col- findings ‘Ohana, its final Láhui Hawaii Hakipu'u issued and Ka The Commission WWCA); (COLs), lectively, appellee United (FOFs), law deci- conclusions of fact
HI (USN). Department Navy aquifer. States of the We from the Pearl Harbor At the time appeal, carefully arguments parties have of this reviewed their various leeward still retained, light legal using, permits but were not well entire breadth of this state’s pump approximately mgd practical mandates of leeward demands. For the below, fully explained ground water. reasons affirm in part
part and vacate in the Commission’s system Diversions the ditch reduced proceedings decision and remand further streams, spe- flows several windward opinion. consistent with this Waiáhole, Waianu, Waikáne, cifically, *14 streams, affecting
Kahana the natural envi- I. BACKGROUND dependent ronment and human communities upon them. impaired Diminished flows na- A. INTRODUCTION may tive stream have to life contributed System The Waiáhole Ditch collects fresh greater Bay the decline in the Káne'ohe eco- dike-impounded ground surface water system, including the offshore fisheries. The range water1 the Ko'olau mountain on impacts diversion, however, of stream went the windward side of the island of 0‘ahu and until, largely unacknowledged early in the plain. delivers to the island’s central Be- 1990s, sugar industry on 0‘ahu to a came ginning Valley, por- Kahana the collection close. system tion proceeds along of the the wind- B. PROCEDURAL HISTORY Ko'olaus, passes
ward side of the then under the Ko'olau crest to the side at leeward 15, 1992, July desig- On the Commission system North Portal. The section of the aquifer systems nated the five Windward known the Waiáhole Main or Bore Tunnel areas, ground management 0‘ahu as water extends from the North Portal Tun- effectively requiring existing users (Adit exit, nel’s leeward South Portal 8Adit apply Waiáhole Ditch water for use water 8). delivery portion The system be- permits year within one of that date.2 In gins through plain at Adit 8 and winds 1993, Irrigation Company June the Waiáhole Central sys- 0‘ahu. Measured at Adit (WIC), operator system, of the ditch filed develops approximately gal- tem 27 million permit application a combined water use for day (mgd). lons a existing August ditch water. users announced that it would end its OSCo significant ditch system The was built sugar operations, signaling the imminent part irrigate sugar from 1913 to availability by of the ditch water used OSCo operated Sug- plantation by owned and Oahu raising question of its future alloca- (OSCo). Company, planta- ar Ltd. Until the tion. operations tion ceased used OSCo flow, 4, 1993, much of the ditch’s addition to a Conflict ensued. November On ground supply pumped petition substantial DOA filed a reserve3 the ditch generally Reppun Supply, 1. See Board Water and surface waters in the area to ensure rea- 531, 533, (“The 65 Haw. sonable-beneficial use of the water resources in geological structure of the Koolau mountains interest. parts 174C-48(a) (1993) Oahu enables thereof to act as natural provides §HRS that: "No water; storage withdrawal, diversion, reservoirs of fresh these natural person shall make sys compartments complexes are called dike or impoundment, consumptive use of water in tems.”). any designated management area without permit obtaining a first from the commission.” 174C, (HRS) 2. See Hawai'i ch. Revised Statutes however, uses,” "Existing may pending continue (1993 pt. ("Regulation Supp.1999) IV & Of Wa- application permit. use id. HRS for a water Use”). 174C-41(a) (1993) ter states: 174C-50(c) (1993) requires permit appli- determined, reasonably When it can be after “existing cations uses” be made within one conducting investigations scientific and re- year manage- from the effective date of water search, that the in an water resources area designation. ment area by may existing proposed be threatened water, or diversions withdrawals com- 174C-49(d) (1993) 3.HRS states: designate pur- mission shall the area for the commission, rule, establishing pose administrative control The reserve water ground quantities over withdrawals and diversions such locations and and for such investigation holdmg an several uses. The Office of After agricultural flow (OHA), KSBE, considering WWCA, meetings an order to show Hawanan Affairs continuing regarding waste of WIC’s Homelands cause Department Hawaiian water, requested parties water. petitions filed to reserve On also media- petitioned to enter into mediation. The involved December WWCA agreement Commission’s subse- upward flow tion and the the interim instream amend 19,1994 provid- quent order December 0‘ahu streams dated standards Windward mgd (WIIFS);4 supply OHA filed ed that WIC would continue the ditch affected ditch, Por- February as measured at the North petition similar tal, surplus into wind- separate and release the KSBE and Castle also filed specifically request- applications 'ward streams. permit system from ing by the ditch water drawn restoration windward The interim they petitions to amend lands owned. apparent pos- had an stream flows immediate permit applications col- and the the WIIFS high- ecology. on the stream itive effect lectively the entire flow exceeded species *15 exotic fish er flows flushed out ditch. species by carrying par- harming native were disease, competing for food and May Commission In received asites space, interfering spawning rituals. with complaints with the close of OSCo’s repo- potential for operations, discharging Experts un- saw excellent sugar was WIC ‘o‘opu such as gulches. pulation native stream life ditch into Central 0‘ahu used impor- year may potential judgment as in be or instream values of the its seasons necessary. subject potential shall be present Such reservations of the uses of water tance light periodic review and revision purposes, including to changed eco- for noninstream conditions; present- provided that all uses; restricting impact nomic such protect- ly existing legal of water shall be (E) grant reject a The commission shall ed. adopt petition to an interim instream flow under within one hun- standard this section VI, (1993) pt. § 174C-71 4. See HRS ch. days eighty petition dred the date ("Instream Water”). Of 174C-71 Uses days may eighty one hundred be filed. The part; reads relevant eighty extended a maximum one hundred The commis- Protection instream uses. days request petitioner of the and sub- shall and administer a statewide sion establish commission; ject approval to tire protection program.... In instream (F) may flow performance of duties shall: Interim instream standards its the commission (1) stream-by-stream on a adopted Establish instream flow standards a basis or on necessary stream-by-stream basis whenever to general a instream flow standard consist of public protect interest waters specified applicable area; all within to streams a State; (3) Protect stream channels alteration (2) flow stan- Establish interim instream fishery, practicable provide to whenever wildlife, dards; aesthetic, scenic, recreational, (A) standing Any person proper with the uses; other beneficial instream may petition adopt an the commission to inter- instream flow standard for streams order im program an instream flow Establish pending protect the interest the es- enhance, reestablish, prac- protect, where permanent flow tablishment standard; a instream ticable, instream uses of water. The beneficial investigations and commission shall conduct (B) Any interim instream flow standard including fishing, collect instream flow data adopted section shall terminate under this recreational, wildlife, aesthetic, quality, permanent upon the in- establishment of ecological information and basic stream- flow standard for the stream on which stream necessary determining flow characteristics adopted; interim standards were requirements. flow (C) instream adopt petition A interim instream an implement shall its in- The commission set forth flow standard under section shall disposing concerning of water need stream flow standards when and information data protect watersheds, including instream uses removed and conserve beneficial from state they fnay and reasonable of water and other relevant tunnels affect wells or where commission; required by flow, information regulating and when use of lands stream (D) petition considering adopt an and waters within the state conservation dis- standard, flow the commis- interim instream trict, including development. present weigh importance of the sion shall
H3 (snail).5 (goby), ‘ópae (shrimp), and hihlwai exceptions. submitted and oral written While considering the Commission was its 25, 1995, January On the Commission or- decision, governor final the state and attor- dered a hearing combined contested case ney general publicly proposed criticized the permit applications, petitions, reservation inadequately decision as providing for lee- petitions to amend the At a WIIFS. time, ward interests. At about the same 18, 1995, hearing on April the Com- deputy attorney general representing the public testimony mission received and re- summarily Commission was dismissed. The quests participate in the consolidated its issued final decision on De- hearing. The Commission admitted final cember 1997. The final decision differed twenty-five total parties. proposed from the decision in various re- 14, 1995, July On the Commission’s staff spects, notably in increasing most proposed submitted a order bifurcate the amount of permit- water allocated to leeward hearing. proposed contested case order mgd. tees 3.79 recommended that the Commission decide in separate proceeding the allocation of THE FINAL C. DECISION ground water drawn from KSBE’s Waiawa lands in aquifer the Pearl Harbor sector on The Commission’s final decision consisted August leeward side of the Ko'olaus. On 1,109 FOFs, legal extensive discussion 7, 1995, the Commission issued an order COLs, styled as explain- section and a D & O denying proposed bifurcation order on ing length disposition. the Commission’s grounds that the interrelated nature following summary promi- highlights *16 applications the for Waiáhole Ditch water analysis nent elements the Commission’s process. favored the consolidated decision; specifically contested FOFs appear and COLs in the relevant discussion hearings The Commission to also held de- opinion. sections of this July 15, termine “existing the uses” as of 1992, designation the date Wind- COLs, surveyed In its Commission ground management ward as a 0‘ahu Hawaii, law of water as established area, pend- that would be allowed to continue (the Constitution, Hawaii State Water Code ing permit applications, a decision see Code), law, focusing particularly common supra August note 2. On the Com- “public'trust preface on the doctrine.” As a 8,” mission identify- issued “Order Number WIIFS, to determination of its the Com- ing existing respective uses and their mission concluded that: 10,” interim allocations. “Order Number Under the State Constitution and the 16, 1995, dated October amended and clari- doctrine, public duty trust the State’s first 8, allowing fied mgd, Order Number 9.3698 protect to is fresh water resources Portal, as at measured the North to flow into (surface ground) part which are the ditch until further order of the Commis- XI, public trust res. Haw. Const. Art. sion. 7; [641,] Ariyoshi, Robinson v. 65 Haw. hearing The contested case commenced on 674[, duty ]. The Opening 1995. November statements and protect public to is a resources cate- presentation of continued until Au- evidence precondition gorical imperative and the to gust spanning fifty-two hearing considerations, subsequent all for without days evening and four The sessions. Com-- underlying protection such the natural en- testimony mission from received written could, point, vironment at be some irrevo- witnesses, orally, 140 whom also testified cably “duty harmed and the to maintain into admitted exhibits evidence. purity and flow our waters fu- parties presented closing arguments generations ture and to assure 20,1996. September 18 to put waters of our to land are reasonable 15, 1997, July endangered.
On the Commission released and beneficial uses” could be However, decision, proposed parties duty its to protect which the Id. does not Elbert, (rev. ed.1986) Mary Dictionary 5. See Kawena & H. Pukui Samuel Hawaiian 290-91 upon perma- which necessarily that all streams to reach some every or in case mean cease, § 174C-71. must that no new nent solution. Haw.Rev.Stat. offstream uses made, knowledge Unfortunately, all such firm will or that offstream uses require considerably work and is returned to a state more waters must be years away. knowl- ñrst Hawaiians ar- Until scientific nature before even available, edge management de- stream stream rived in these islands and diverted require particular methodology cisions will grow taro. The level incomplete vary preliminary and protection may recognizes with circumstances time; existing primary but the nature evidence. from time duty itself remains. long Given the term work needed ecologically necessary define an flow a identified at 11. The Commission COLs stream, particular the Commission will ground water and streams Windward 0‘ahu instream need to amend “interim” flow “part Bay trust and Kane'ohe permanent periodically standards until subject ... to review under State’s res adopted.... standards can be responsibility expressed in the trust long vantage point Id. at 31. State Water Code.” From the term science, biological and environmental duty its acknowledged The Commission preliminary. regarding streams is evidence instream flow under the Code establish just beginning. The data collection is in- instituting program standards areas, conclusions are tentative. some supra protection, note 4. The stream use see experts opinions. are offer even hesitant to found that the interim restora- future, For the it will be neces- foreseeable “positive flows had a tion windward stream sary manage protect streams effect,” 17-18, “generally, and that POPs through system working presumptions higher volume of flow and instream than on the basis of firm scientific rather its approaches stream flow natural closer the knowledge. levels, greater support pre-diversion processes biological in the stream and at 16. The COLs Commission nonetheless Thus, ecosystem,” according COLs maintained: *17 Commission, general, expected “in is preliminary scientific is Where evidence that additional flows to the streams would yet regarding and not the man- conclusive biota habitat.” increase the native POFs agement which of fresh water resources trust, public prudent part are of the it is to “precautionary principles” pro- in adopt A conclusive determination of the more is, tecting the resource. That where there however, flows,
necessary instream remained potential present are threats of serious explained: elusive. The Commission certainty damage, lack of full scientific found it difficult to Commission has postponing not a for effec- should be basis corresponds quantify an flow that instream prevent tive measures to environmental a biological given to a condition for flora or addition, degradation.... un- where result, a fauna. As the methods used exists, duty certainty protect a trustee’s the continental to determine United States mitigates choosing in the resource favor proven have appropriate instream flow re- presumptions protect also unsuitable Hawaii. source. provides Code estab- Water added). (emphasis Id. and modification of both interim lishment legal permanent and flow standards on The Commission also reviewed the instream per- requirements use assumption that scientific data will for issuance water knowledge Although eventually provide firm about mits the various under the Code.6 (1) 174C-49(a) (1993) Can accommodated with available 6. HRS mandates: source; part, permit pursuant To a to this obtain (2) a use defined applicant proposed Is reasonable-beneficial use shall establish that the 174C-3; section water: 6) sures; requests collectively for water availability exceeded the alternative ditch, flow the (ground Commission concluded sources water and reusable waste- 7) term, least for year “[a]t the near provi 9] the four non-use water[ quantities (Haw.Rev.Stat. excess the amended of the interim sions Code 174C- subject 8) (Haw.Rev. 58);[10] instream flow compliance standard and review [sic]);[11] 9) affecting conditions supplemental flows[7] Stat. 174C-58 and low near present satisfy Thus, are available at time management term demand. careful permit applicants use higher those exist defer need to consider ing and scrutiny analyzing future offstream uses “public identified level of [D Id. O ]”& at 23. Based on this interest” test until the is time when there conclusion, the inadequate Commission further ruled competing water for demands. statutory requirement of “reason Where, finally, inadequate sup- is there fulfilled, partic able-beneficial use” could be needs, ply competing “public both the ularly uses, respect with agricultural test and interest” the examination of “rea- “prima showing” facie of reasonableness and require pri- sonableness” will more than a consistency public with the interest. Id. at showing. ma competition facie As for wa- 24-25. The Commission reasoned: increases, analysis ter resources case, variety management
[I]n this both interest and reasonable- legal postpone fully and factors rigorous need ness must become both more analyze “public required affirmative interest” affirmative. The counties will be deciding tests in the priorities context “reasonable to articulate their land use with Among greater beneficial use.” specificity. example, these factors are: For even at 1) waste; 2) time, obligation not present the re there is more land zoned into permitted, lease windward streams of for various than available water 3) used, water; ground Thus, but not supply proposed the release those uses. it is into merely windward streams of unallocated not sufficient conclude that 4) water; ground operation particular parcel the ditch properly land is zoned 5) management plan; conservation mea and that the use “beneficial.” That min- (3) any existing legal Will not interfere with 793-94. The FOFs Commission also noted water; irrigation, limited use of reclaimed water for but (4) interest; present Is with consistent water was concluded reclaimed (5) county available, gen- ly Is regarding consistent with state view of concerns use of plans designations; eral potable aquifers land use reclaimed water over and health (6) county plans regulations limiting Is consistent land use such use to certain kinds of 677-786; policies; crops. sion, nevertheless, & FOFs D O at 8. The Commis rights Will not interfere with the stated that it would "revisit *18 and, department provid- existing ground-water appropriate, of Hawaiian home lands as if reduce permits ed in section of Hawaiian Homes Com- if reclaimed water becomes available allowable, subject mission Act. and is economic and health considerations.” D & O at 8. below, explained 7. As the Commission created a "buffer” unallocated initial water for release (1993) provides 10. HRS in 174C-58 relevant in the streams and future allocation for offstream part: use. permits. hearing, a Revocation After (1993 may Supp.1999) suspend permit 8. HRS 174C-3 & defines or a commission for; revoke "reasonable-beneficial use” as "the use of water quantity necessary a in such for as economic utilization, nonuse, (4) purpose and a efficient for and in a Partial or total for reasons other conservation, manner which is both and reasonable consistent than allowed water county plans years permit period with the state and land use and the for four continuous public interest.” more. acknowledged part: 9. The Commission 11. HRS 174C-56 in relevant various states parties ground every twenty years, leeward had to leeward "At access least once the commis- Estate, Campbell example, study comprehensive all water. still held sion shall conduct permits mgd permits, chapter in well FOF and Del Monte issued under to determine profitably using ground permits was its own water wells whether the conditions on such are be- water, irrigate sought ing complied lands for which it ditch with.” ‘Ewa Plain inadequate igin,” of ditch water over the to re use be imal conclusion competitive nonagricultural in was caprock which de for new uses solve situations analysis of supply. Further Id. Com “presumptively mand disfavored.” The exceeds to water public interest criteria relevant stated: mission also conservation, uses, com (e.g., alternative non-agricultural uses in leeward Other benefits) will be public costs and parative landscaping golf uses Oahu for course needed.[12] ground could utilize available which Id. at 25. carry heavy bur- also or treated effluent uses, why conclud- be Agricultural the Commission to show stream water should den ed, pub- origin, “generally” with the consistent out of its watershed of were diverted adequate though [wa]s “where is closer to lic interest even central Oahu scarcity IcL In times of at 26. Ewa Plain. available.” windward Oahu than the however, competition, term, “the standard uncertainty regarding the short higher.” Id. at 26-27. aqui- potable [would] review over a treated effluent nonagricultur- Existing golf fer, course other existing Waia- infrastructure move “already subject higher water, to this al uses were system Ditch and the need to hole standard, higher in uses for wind- light study mitigate all in instream flow needs water, including retaining the ward surface continuing favor the use Waiahole 27. Com- Id. at water in the streams.” uses. subjected permits all to “conditions mission Likewise, use of the continued Waiahole if the Com- for stream restoration providing through existing sys- ditch Ditch water that additional water determines mission preserve agriculture in central tem D & 0 returned to the streams.” should be in sugar production on lands Oahu lands) (“footprint” on other well recognized statutory its The Commission agricul- Oahu suitable for lands central considering competing water use duty, when If and until important ture has value. applica applications, approve permit ground water is avail- treated effluent that “best serves the interest.”13 tion able, strong State interest has view, an con In the Commission’s inherent retaining agriculture on these lands. permit applications, flict existed between pro- may be instream flow values Where petitions petitions, and to amend reservation agricultural tected offstream WIIFS, was “[a]fter but evidence maintained, accommodated both “uses” are uses eval weighed reasonable beneficial promoted Haw.Rev.Stat. the manner uated, competition scope of narrowed § 174C-54. significantly.” COLs at 28. Commis at 28-29. Id. sion, however, general did indicate certain legal Having grounds discussed the types of uses. For exam priorities between decision, apportioned or treated ple, because use brackish water Com- Ditch water as follows. The Waiahole Plain would not harm over the ‘Ewa effluent part part granted mission and denied caprock aquifer, underlying and trans petitions to amend the WWCA’s OHA’s across the island “further re porting water *19 WIIFS, a deeming “practicable” it restore protection afforded the stream duces the streams, id. mgd at ecosystem by in its of or total 6.0 windward keeping water area decision, quantity pending are for a tion 174C-49 in its Commission 12. Elsewhere all, inadequate of current wa- or maintained that its determination water for both or that is conflict, availability necessarily that the did not "mean any ter reason are in which for other [City’s] growth projected be [could] demands sat- first, commission shall seek to allocate rather, water; Ditch isfied from Waiahole both in such a manner as to accommodate greater [City’s] require projected will needs even second, applications possible; if if mutual ” analysis. at 23. Id. sharing possible, then the commission is not approve application which best selves shall 13. HRS 174C-54 states: interest. Competing applications. ap- If two or more added.) (Emphasis comply plications which otherwise sec- total, than average mgd “more 25% the total 12.22 Commission allocated Waiahole Ditch flow mgd measured at the North permits, 10.64 water use calculated (23.3 mgd),” Portal at Specifically, by 4,915 id. 33. multiplying “existing acres in mgd the Commission added 4.0 to the 3.9 use” under Number 8 and 10 Orders mgd “Q90 base flow”14 of Waiahole Stream 2,500 gad requested. lesser or the amount mgd Q90 mgd and 2.0 0.5 base flow of remaining desig- Id. at 7. The mgd 1.58 was Stream, tributary a Waianu of Waiahole reserve,” “proposed agricultural nated a D Stream. O at& 3. The Commission thus which would agricultur- become available for increased combined flow base permits through req- al use if confirmed mgd. Waiahole Waianu Streams to 10.4 rulemaking procedures, uisite supra see note mentioned, Id. The Commission neither nor D expressly 3. & O 7. The Commission any provision for, made the instream flow of prohibited counting” unauthorized “double Waikane Stream. allocations, or the use of Pearl Harbor ground water on same to which The Commission set a lands aside total of 13.51 permits mgd applied, for to use mgd leeward Waiahole Ditch water offstream uses: 12.22 “agricultural” for suspend uses and 1.29 for and noted that it could “other” or revoke 6-7, ground permits uses. Id. at for Waipahu- Leeward water uses water from the would according average be measured aquifer system years Waiawa after four a period, nonuse, over twelve-month or partial supra “twelve total D see note 10. (12-MAV). moving average” month Id. at & O at 8. 12-MAV, 12. The the Commission elaborat- uses, Nonagricultural including or “other” ed, fluctuation, “allows for seasonal and is cemetery, a prison, state and two generally for all reporting used water use courses, Club, golf PMI and Mililani Golf requirements by the Commission.” Id. mgd in permit received 1.29 allocations. The calculating mgd “agricultural the 12.22 Commission, however, granted PMI’s use allowance,” preliminarily the Commission mgd “subject special requirements 0.75 “2,500 gallons per found that per day acre including duty to seek alternative sources (gad) duty is a reasonable for diver- they reasonably where are available agriculture.” Id. sified at 6. The Commission near future.” at 25. COLs figure gad open left the to future evaluation imposed likewise on Mililani Golf Course the adjustment, noting that to- tended duty they to use alternative sources when range wards “the lower end of esti- reasonably became available. Id. incipient mates” due to the state diversi- agriculture operations fied and “a lack of “non-per- The Commission also created data actual Id. uses.” “There was evi- ground mgd, mitted water buffer” of 5.39 higher quantities,” dence for both and lower for initial intended release the windward stated, flexibility the Commission “the but streams, but uses as a available offstream operational requirements duty and the not to secondary mgd pro- source after 1.58 provide appropriate waste should safe- posed Applicants for reserve. Id. at 33-34. guards in either direction.” COLs at 25. required buffer water would petition to D & at 11. mgd agricultural amend the WIIFS. O The 12.22 allowance con- Commission, however, mgd would take sugar- sisted 10.0 for former OSCo look’ at currently “‘hard the best available scientific cane lands used for diversified agriculture 4,000 (approximately and stream flow data and sup- acres decide whether 2,500 plied gad), mgd 2.22 [WIIFS] amendment needed” before Castle’s 1,552 agricultural (approximately approving application lands and would issue all acres 2,500 supplied gad permits subject at the providing lesser to “conditions *20 requested). amount D at& O 6-7. stream if the Of the restoration Commission deter- "Q90 represents The flow” "[r]unoff base the minimum observation that flow dominates stream 14. equaled responsible highly flow of a stream or exceeded at least 90 in Hawaii and is for variable Hawaii, percent of D O 2. the time. & at The Commis- stream flows.... In exceed streams Q90 average just sion’s use of the base flow stems at 16. from its flow of the time.” COLs 10% for may apply opment, stating “[KSBE] be should re- that additional water mines [upon receiving] the water ... to stream.” COLs at additional turned classification, development proper land use therefore, Preliminarily, the Commission zoning changes and plan approvals, and streams, in addition windward released into will [demonstrating] that actual use of water WIIFS, “sup- a mgd 6.0 added to for within a time frame commence reasonable more, mgd or consist- of 6.97 plemental flow” project.” COLs at 27. proposed buffer, mgd mgd the 1.58 ing of the 5.39 reserve, authorized water proposed to grant also declined Commission actually permits but for use water use mgd compensate to request for 2.0 WIC’s used, mandated would which the Commission system “operational of the ditch losses” “to avoid unlaw- in windward streams remain evaporation to such as and leak- due factors explained ful Id. The Commission waste.” none- D 0 at 11. The Commission age. & provide supplemental flows will that “[t]hese that, designated it observed until theless scientifically study monitor and a field test to man- as a surface water Kahana watershed supplemental flows As these the streams. area, mgd “non-regulat- agement the 2.1 uses and the permitted for offstream be by drawn the ditch ed” Kahana surface water present from lev- actual stream flow reduced Id. approximately cover such losses. would els, to be conducted scientific studies will proffered after 12. The Commission reducing stream impact of examine the designating as a water man- Kahana surface Id. flows.” receiving permit agement area and water, “may it applications for the consider plan to announced The Commission operational from committees, deducting losses advisory establish technical interests, non-permitted ground water.” Id. representing a cross-section of assessing the im- tasks such as undertake all, mgd of the 27 total flow of the decision, final plementation of the deter- ditch, Adit the Commission as measured at feasibility using treated mining the ag- mgd permitted assigned 14.03 leeward aquifers, potable and rec- oyer wastewater “sys- nonagrieultural ricultural and uses and measures, studies, ommending conservation term, For near Com- losses.” tem monitoring plans. D & 0 4-5. Par- mgd in mission released 12.97 windward receiving permits use Waiahole ties However, mgd 6.97 of this 12.97 streams. Ditch on their lands would re- lee- mgd available for offstream remained for, por- quired “prepare, or contract agricultural re- “proposed as a ward uses monitoring tion activities studies “non-permitted ground buff- serve” order,” contributing resulting from this present appeal followed. er.” according .the pro funds on a rata basis at 10. The of water used. Id. amount II. STANDARD OF REVIEW would establish committee (HRS) a reasonable amount “to recommend 174C- Hawaii Revised Statutes up funding and coordinate and set provides: of rules “Judicial review collection, accounting, for the mechanism commission under this and orders Id. of the funds.” governed by chapter and distribution chapter [HRS] shall be [the Hawaii Administrative Procedures denials wa- Several Commission’s Act, de novo is not allowed HAPA]. Trial present requests are ter use relevant of commission actions under this on review rejected DOA’s appeal. The Commission chapter.” Regarding appeals agency planned mgd application for a permit 0.75 generally, this court has stated: decisions prejudice [reap- agricultural park “without qualified ... This court’s review is plication] when DOA can demonstrate principle agency’s that the decision within a reasonable actual use will commence presumption validity carries a Commission denied time frame.” Id. The mak- appellant heavy has burden of golf-course requested allocation KSBE’s showing deci- ing convincing that the with its landscaping uses in connection unjust Gentry is invalid because devel- sion planned Waiawa residential
119 305, 310, consequences. 1339, unreasonable in its Kon Hawai'i 933 P.2d 1344 Hawai'i, (1997) (citations 61, omitted); County no v. 85 §§ Hawai'i HRS 91- of 77, (1997) 397, (citations (4). (2), 14(g)(1), 937 P.2d 413 and omitted). “A presents ques COL mixed (1993) of 91-14(g)
HRS tions fact and law is reviewed under enumerates clearly applicable of erroneous the standards review standard because an dependent agency appeal provides: Upon upon the conclusion is re- particular of facts and circumstances of may view the court record the affirm Zoning agency Appeals decision or case.” Price v. of the Bd. remand the of Honolulu, City County pro- case with 77 instructions further 168, 172, 629, ceedings; Hawai'i 883 or it P.2d 633 modify reverse or (1994). questions if the decision and When mixed of law order the substantial rights presented, appellate and fact are petitioners may have been give prejudiced agen court must because the deference administrative conclusions, findings, decisions, cy’s expertise experience in par or or- ticular ders are: field. Dole Hawaii Dimsion- Cooke, Ramil, v. Castle & Inc. 71 Haw. (1) In violation of constitutional or 419, 424, (1990). 1115, 794 P.2d 1118 statutory provisions; or “[T]he court should not substitute its (2) In statutory excess authori- judgment agency.” own for that of the ty jurisdiction or agency; or (citing Agsalud, Id. Camara v. 67 Haw. (3) upon procedure; Made unlawful or 212, 794, (1984)). 216, 685 P.2d 797 (4) law; by Affected other error of or Poe, 197, 87 953 Hawai'i P.2d 573. (5) Clearly erroneous view of the 384, Appeals, v. Curtis Board 90 Hawai'i reliable, probative, and substantial evi- 392-93, 822, (1999). 978 P.2d 830-31 record; on dence the whole or An or FOF a mixed determination (6) Arbitrary, capricious, or or charac- (1) clearly and fact is law erroneous when terized abuse of or discretion clear- sup the record lacks substantial evidence ly unwarranted exercise discretion. (2) port determination, finding or or de Blane, 108, 112, v. GATRI 88 Hawai'i 962 spite support substantial evidence 367, (1998) (citing P.2d 371 Poe v. Hawai'i determination, finding or appellate court Board, 191, Labor 87 Relations Hawai'i is left and firm conviction the definite 194-95, 569, (1998)). 953 572-73 P.2d that a has made. v. mistake been See Leslie [POFs] under are reviewable Tavares, 394, 399, 91 Hawai'i Estate 984 clearly erroneous standard determine (1999). P.2d 1225 “We have defined agency clearly if the decision was erro ‘substantial evidence’ as credible evidence reliable, probative, neous view quality probative which is of sufficient substantial evidence on the whole rec person value to enable reasonable cau Inc., House, Liberty ord. Alvarez v. 85 support (quoting tion to conclusion.” Id. Hawai'i 942 P.2d 541 319, 328, Kotis, State Hawai'i 984 P.2d v. (1997); 91-14(g)(5). §HRS (1999)). freely [COLs] are reviewable to deter- if agency’s in vio- mine decision was III. DISCUSSION15 statutory pro- lation of or constitutional A. PROCEDURAL DUE PROCESS
visions, statutory authority in excess of jurisdiction agency, point appeal, As first affected its WWCA Akiba, alleges right error of law. Hardin v. constitutional other violation matter, they jurisdiction note we to hear determine As a threshold have have jurisdiction appeal. general Housing Corp. (quoting entertain this each case" Castle, Fin. & Dev. Co., 64, 76, ly Light Peterson v. Elec. Hawai'i 898 P.2d Hawaii Hawai'i 322, 326, 174C-12, (1995))). (recogniz Pursuant to HRS ing "obligation appellate chapter governs our review of Commis- courts insure *22 120 to having a interest” due his process, specifically, “conflict of procedural
to
due
City
v.
&
Sussel
In
right
chairperson
to a fair tribunal.
of the state
status
concurrent
County Honolulu Civil Service Commis- Department of
and Natural Resources
Land
sion,
101, 107,
867,
P.2d
870
71 Haw.
784
(DLNR),
to
party
an adverse
WWCA
(1989),
recognized:
we
hearing before the
instant contested case
just
are certain fundamentals
“There
at
outset
We note
Commission.16
every
procedure which are the same for
positions
chairperson
of the Commis-
every type of
type
proceed-
of tribunal and
chairperson of the DLNR are not
sion and
Law 76
Pound,
Administrative
ing.” R.
incompatible per
common law doc-
se. The
(1942). “Concededly, a ‘fair trial in a fair
prohibits an indi-
incompatible
offices
trine
pro-
requirement
a
of due
tribunal
is
basic
serving
capacity
one
“[i]f
vidual from
in dual
136,
Murchison,
133,
re
U.S.
349
cess.’
or
is
to the other
office
subordinate
(1955).
623,
This
75
WWCA
(Wilson),
Commission,
natural
shall be the
of land and
resources
Michael Wilson
Geothermal,
(1993)
privileges"
§
stake.
Puna
also
174C-60
at
sion’s decision. See
HRS
("Contested cases”) ("Chapter
apply
Hawai'i
at 1214.
91 shall
ex-
P.2d
"Any
part:
§
cept
chapter.”).
with
HRS
HRS
174C-60 states
relevant
where it conflicts
this
notwithstanding,
(1993)
contrary
91-14(a)
in
judicial
§
other law to the
review of a
allows
cluding
hearing
chapter
contested case
case.”
decision and order in a contested
“final
appealed upon
1)
hearing
under this section shall be
agency
"A contested case is
directly
supreme
for final
2)
record
to the
court
rights,
required
duties,
law and
determines the
13-167-65(b),
§§
decision.” See also HAR
13-
privileges
specific parties."
Pele
(1988). Although the
171-26
referent
“this
Venture, 77
Puna
Fund v.
Geothermal
Defense
unclear,
Agric.
section” is
see Ko'olau
Co. v.
64, 67,
(1994);
881 P.2d
see
Hawai'i
Management,
Resource
Commission Water
91-1(5) (1993).
§HRS
484, 492,
(1996)
927 P.2d
Hawai'i
case,
parties appeal the Commis-
In this
drafting"
(noting the "inartful
of the Water
permit applications
regarding
sion's decision
provisions), we
no sound
Code’s review
discern
petitions
"existing”
to
"new” uses and
demarcating
decisions on certain mat
basis
to
interim instream
standards. As
amend
flow
appeal
court under
ters for initial
to
circuit
174C-50(b)
§
existing
applications,
91-14(a),
use
HRS
particularly
§
in cases such as
HRS
(HAR)
one,
and Hawai'i
Rules
Administrative
consolidates
where the Commission
where,
13—171—14(b)(1988) require
hearing
§
single hearing. According
in a
various matters
here,
quantity
applied
provide
as
25,000
of water
for exceeds
ly,
§
HRS 174C-60 to
for direct
read
objection
gallons per
supreme
month and an
appeal
court
instant
from the
having standing
application
person
entirety.
is filed
in its
combined contested case
But cf.
Furthermore,
Peterson,
object.
while the statutes
Hawai'i at
269-16(f) (1993),
§
require
hearing
respect
(holding, pursuant
HRS
rules do
appeal
petitions
dards,
of Public Utilities
to amend interim instream flow stan-
that direct
from order
(definition
only
when
174C-3
of interim
Commission lies
this court
order
see HRS
standard);
13-169-40(e)
(1988),
utility
"regulation
pertains
or "rate-
rates”
HAR
making procedures”).
applications,
HRS
"new” use
174C-53
see
-13,
13-171-12,
(1993);
§§
HAR
to -19
-16
joint
(1988),
parties'
joined in
process
due
DLNR
the leeward
constitutional
mandates
many
permit
hearing
application for a
of the individ-
in both instances because
duties,
during
hearing.
"rights,
of their motions
ual instream and offstream
chairperson
comparisons
commission.”
precedent
draws
invali
closer
*23
174C-7(b) (1993).
legislature
The
thus
dating procedures whereby judges
has
presided
appropriate
person
it
deemed
for one
nonsummary contempt
over
proceedings that
in
capacities.
serve
both
they played an
in bringing
instrumental role
See, e.g., Murchison, supra
about.17
(finding
decide, however,
We must still
wheth
process
a due
a judge
violation where
who
any impermissible
pre
er
conflicts of interest
grand jury”
as
presid
served
“one-man
also
presiding
vented Wilson from
in
over the
trial); Brown,
oyer
(ruling
ed
supra
proceeding.
stant
Coyne
See
v. State ex rel.
judge indirectly responsible
a
for the institu
Thomas,
(dis
970,
(Wyo.1979)
595 P.2d
973
contempt
tion of
eharge
a
for conduct of
tinguishing incompatibility of offices and con
personal
which
had no
knowledge
he
could
interest).
flict
In arguing
negative,
preside
trial);
not
over
see also
v.
White
the Commission cites its own
of disquali
rule
Educ.,
10, 16,
358,
Board
54 Haw.
501 P.2d
fication,
(HAR)
Hawai'i Administrative Rules
(1972)
(holding
although
363
super
(1988),
§ 13-167-61
which
in
states
relevant
secretary
intendent of education was the
part: “No commission member shall sit in
board,
decisionmaking
he should have
any proceeding in
any
which the member has
hearing regarding
recused himself from a
pecuniary
pro
or business
in
interest
Here,
disciplinary
imposed).
action that he
ceeding or who is related within
first
similarly presided
proceeding
Wilson
a
over
by
degree
marriage
any party
blood or
he, by
association,18
in which
direct
assumed
proceeding.”
partisan
judgment,
active
role.
sat in
He
undisputed
per
It is
that Wilson had no
hand,
legal
on the
one
claims and factual
sonal
or familial
in
financial
interest
this
representations
advanced, on
he
the other.
proceeding. WWCA
analogizes
nonetheless
precedent relating
this case to the line of
any
Aside from
actual
on
institutional bias
disqualification for
case,
or
“institutional”
“struc
in
part
Wilson’s
this
Ohio,
Turney
tural” bias. See
v.
273 U.S.
argue seriously
“no
would
one
(re
510,
437,
(1927)
47
Despite its awareness of Wilson’s dual sta- facts this ease. tus, WWCA, apparently as a matter of delib- choice, and strategic erate sought never Wil- disqualification. son’s Improper WWCA cannot now the Governor Influence grounds
raise
matter as
for overturning
Attorney
General
the Commission’s decision.
argues
governor
WWCA also
that the state
Additionally,
if
even
had
attorney general
WWCA
improper influ-
exerted
Wilson,
to disqualify
moved
long-recog
during
period
ence
the Commission
allows,
necessity”
nized
only
“rule of
but
deliberation
proposed
between the
final
requires a
pro
to “act in
decisionmaker
specifically
decisions. WWCA
refers to the
ceeding, when he [or she] would otherwise be
governor’s public
proposed
criticism of the
*25
disqualified,
jurisdiction
if
is exclusive and no decision,
attorney general’s personal ap-
the
provision exists for substitution.” Yamada
pearance before the
order to
Comm’n,
v. Natural Disaster Claims
54 argue
exceptions
pro-
to the
DLNR/DOA’s
621, 628,
(1973).
1001,
Haw.
513 P.2d
1006
decision,
posed
depu-
and the
dismissal
the
348,
See also
Ariyoshi,
Schwab v.
57 Haw.
ty attorney general assigned to the Commis-
350,
1329,
(1976)
555 P.2d
1331
(“[Disqualifi
sion.
permitted
cation will not
destroy
be
the
judi
agency performs
Where an
only
power
premises.”
tribunal with
in the
function,
cial
political pressure
external
can
(quoting
351,
Brinkley Hassig,
v.
83 F.2d
357
parties’ right
procedural
violate
(10th
the
due
Cir.1936)).
process, thereby invalidating
agency’s
the
de
(1988)
§
provides:
HAR 13-167-6
“Four
generally Sokaogon
cision. See
Chippewa
shall,
members
the commission
constitute a
Babbitt,
1165,
F.Supp.
Comm. Ass’n v.
929
quorum to transact business and the concur-
(D.Wis.1996) (consolidating
1173-80
the case
simple
of a
majority
rence
of the members of
law); Koch, supra,
§
improper
6.13. Such
the
necessary
commission shall be
to approve
see,
legislature,
influence
issue from the
any action of the
proce-
commission.” No
ATX,
e.g.,
Inc. v.
Dept.
United States
appointment
dure exists for the
of substitute
1522,
Transp.,
(D.C.Cir.1994);
41 F.3d
case,
commissioners.21 In this
two commis-
Comm’n,
Pillsbury
v.Co. Federal Trade
outset,
sioners
from
withdrew
ease at
the
(5th
Cir.1966),
F.2d
963-64
as well as
reducing
six-member Commission
branch,
from
within
sources
the executive
charged
jurisdiction
with “exclusive
and final
see, e.g.,
Soc’y
Portland Audubon
v. Endan
authority in
relating
imple-
all matters
Comm.,
gered
1534, 1543-48
Species
984 F.2d
mentation and administration of the state
(9th Cir.1993);
Scrivener,
v.
Jarrott
code,”
174C-7(a),
§
HRS
four-
(D.D.C.1964).
F.Supp. 827
theAs
United
quorum required
member
to conduct busi-
Appeals
States Court
for the D.C. Circuit
Consequently,
disqual-
ness.
where Wilson’s
explained in ATX:
prevented
ification would have
the Commis-
case,
acting
sion
political]
on this
[External
the “rule of
interference
necessity”
preside
process
heightened
demanded that
Wilson
administrative
proceeding.
over the
quasi-judicial proceeding,
instant
Wilson’s dual
in a
concern
13-167-56(c) (1988)
§
provides:
normally
21. HAR
properly
"The
Aat
ters
arise in Ae
chairperson
pre-
by
hearing
shall be
commission
course of a
auAorized
Aat are
law
However,
siding
chairperson may
necessary
orderly
just
officer.
for Ae
of a
conduct
member,
designate
ap-
hearing.”
§
another commission
HAR 13-167-56 does not allow Ae
pointed representative,
grant
auAority
presid-
any
decisionmaking
a master
ultimate
ing
by
prohibited
presiding
officer unless
law.” As ex-
to an alternate
officer. To Ae con-
13—167—56(b),
plained
"presiding
trary,
in HAR
Ae Code
Aat the six-member
mandates
functions,
performs
jurisdiction
officer”
mere administrative
Commission "shall have exclusive
174C-7(a),
giving
hearing,
auAority,”
such as
notice of the
administer-
and final
and Aat
oaths,
ing
issuing
ruling
subpoenas,
objec-
any
on
on
made
final decision
matter shall be
"[t]he
motions,
(1993).
commission,”
"dispos[ing]
tions or
of other mat-
HRS 174C-10
First,
lightly
legitimate
governor’s
guided by
principles.
two
do not take
which is
pressure may
respect
appearance
supervisory
of bias or
interest and role with
“the
time,
objectionable
reality.”
can
less
than the
At
be no
the Commission.
the same
enough
adju
Fed’n Civic Ass’ns
emphasize strongly
Columbia
[District
not
all
[1231,] 1246-47
]Volpe, 459 F.2d
proceedings
dicative
conducted
the Com
denied,
(D.C.Cir.),
cert.
U.S.
[
exacting
mission must conform to the same
(empha
]
WWCA
the of
agencies,
because
cated on behalf of two
DLNR
state
general
DOA,
attorney
simultaneously
fice
the
deputy
general
attorneys
while
Commission,
represented
resulting
represented the Commission and another
28-8(a)
compromised
§
“conflict of interest”
agency,
(Supp.1999)
WWCA’s
DHHL. HRS
right
hearing.
attorney
to a fair
general
attorney general
“appoint,
authorizes the
others,
statutory duty, among
pro
remove,
pleasure
deputy
has
[her]
and at
first
legal
agencies
deputies
vide
counsel to state
such as
and such
....
shall
[who]
other
act
(1993)
perform
§
the Commission.
26-7
See HRS
under [her] direction and shall
such
general
(attorney
may require.”
“shall administer and ren
[she]
duties as
Given the
services”);
legal
general’s
§
der
attorney
plenary authority
state
HRS
28-4
over her
general
(attorney
give
department,
“shall
agree
advice
we
that the
with WWCA
counsel”). Regarding potential
attorney general’s personal representation
conflicts
duty,
in this
held that
necessarily prevented
we have
the office of
her de-
DLNR/DOA
attorney general
partment
affording independent
legal
attorney
parties,
after the Commission’s
particularly
counsel
to other state
counsel
Momentarily setting other
was dismissed.”
the Commission.
aside, therefore, we
questions
propriety
of its
however,
remains,
question
effectively
hold that
dismissal
cured
deprived
conflict
interest
whether
general’s
generated by
attorney
conflict
right
hearing.
to a fair
of its
WWCA
representation
the Commission.
attorney gen
Chun,
recognized
agencies
obligations
to state
as counsel
eral’s
protests
dismissal
also
WWCA
common
duties
with her
law
conflict
har
impropriety in itself.
indeed
as an
We
interest,”
“public
see
representative of the
the manner in which the
bor doubts about
attorney
(providing that
§ 26-7
HRS
general
Commis
attorney
withdrew
authority as
... have
genera] “shall
such
1.16(d) (1994), for ex
sion’s counsel. HRPC
law”).
provided
common
heretofore
upon
requires attorneys,
termination
ample,
Chun,
at 1233.
87 Hawafi
steps
representation, to
to the extent
“take
Indeed,
implicitly
legislature
foresaw
reasonably
protect a client’s
practicable to
“eventuating” in
of conflicts
the likelihood
affords little evidence
The record
interests.”
Attorney
with the
General’s
connection
in
Commission’s
consideration
duties,
roles,
functions when
multiple
attorney general.
part of
terests on the
it
HRS
28-8.3
confer-
enacted
prerog-
attorney general the
ring upon the
suggests that
the dismissal both
WWCA
ative,
good and
“for reasons
...
deemed
impaired
competence of the Commission
sufficient,”
employ or
“to
retain
decline
change
and induced the Commission to
represent
depart-
attorney”
“any
contention,
first
As to the
the Code
decision.
bureau,
commission,
ment, board,
agency,
authority
decisionmaking
and re-
vests final
event,
and,
in that
or officer of
State”
commissioners,
sponsibility in
see HRS
instrumentality—with
authorizing
state
174C-7(a),
and mandates
that “[e]aeh
governor—to
retain
concurrence of
experience
shall
substantial
member
have
on its
initiative for the
legal counsel
own
management,”
the area of water resource
securing
representation.
such
purpose of
174C-7(b).
second,
toAs
28-8.3(a)(16)
(b).
§§
See HRS
could
fails to show how the dismissal
WWCA
(internal
cross-
Id.
Finally,
attempts
public
WWCA
to combine the
conduct of
officials in this
case did
governor’s
attorney gen-
with the
nothing
comments
improve public
gov-
confidence in
components
eral’s conduct
larger
of a
justice
ernment and the
administration
by
concerted effort
administration
un-
this state.
dermine the Commission. WWCA offers no
Notwithstanding
feeling of
our
unease re-
proof
alleged
concrete
of this
conspiracy.
garding the circumstances under which the
more,
Without
we have no alternative but to
decision,
its final
rendered
our
conclude that the whole does not exceed the
totality
assessment of the
of the circum-
parts.
sum of
Bouslog,
See In re
prevents
concluding
us
stances
that the
Haw.
(maintaining
that alle-
aforementioned conduct constitutes a viola-
gations
impropriety
upon
“must be based
rights.
tion of
process
WWCA’s due
Fur-
reasons,
facts buttressed
suppo-
not a
thermore,
reviewing
the merits of this
effect,
sitious cumulative
which is at best a
”
ease,
problems
we have identified substantial
(citation
arguendo
mere conclusion
and in-
require
with the Commission’s decision that
omitted)).
quotation
ternal
marks
Thus,
further attention.
for the reasons ar-
sum,
In
foregoing
based on the
facts and
below,
ticulated
we vacate and remand the
precedent,
say
the relevant
we cannot
that a
decision for
In
proceedings.
further
so do-
violation of constitutional dimensions oc-
ing,
intervening
we
are confident
n eurred in this
holding
case. This
does not
years, along
changes
with the
in the Commis-
adequately convey, however, our serious mis-
personnel,
sufficiently
sion’s
have
removed
givings regarding
following
the events
impropriety
taint of
con-
created
proposed
ques-
Commission’s
decision. The
political pressures present
flicts and
in the
timing
key
tion
to our concerns. The
prior proceeding.
Pillsbury, 354
F.2d at
controversy
events
occurred after months
965; Koniag,
sion’s and final decisions. end, did substantially the Commission in fact controversy Substantial arises from the decision, deleting language alter favorable “public Commission’s discussion trust parties increasing to the windward addressing doctrine” its decision. Before permit- amount Of water allocated to leeward parties’ arguments, survey the histor- developments, tees. These eleventh hour development juris- ical doctrine falling while short of a constitutional viola- diction. tion, strongly suggest improper consid- tipped difficult erations the scales in this History Development hotly disputed case. acknowledge prerogative Supreme
We
The United States
Court ad-
according
expression
officials to advocate
to their
vanced the seminal modern
of the
“public
views
interest” and
voice
trust doctrine in Illinois Central Rail-
*29
public
Illinois,
387,
on
policy
public
their views
in
forums.
road
v.
146
13
Co.
U.S.
S.Ct.
(1892).25
public
110,
Yet
officials must
mindful
also be
of
interests.
by
property
of the trust
which the
in
exercise
interest
such lands as
state’s
any
by
at
was
the
can be resumed
held
State
in
from
which
character
that
title different
455,13
time,”
at
id.
S.Ct.
in lands
for
the State holds
intended
It is
in trust
the
sale....
a title held
public
the
trust doc
This court endorsed
they
enjoy
people
the
the
State
Co.,
Railway
King
of
in
v. Oahu
& Land
trine
waters, carry
navigation of
on com-
the
(1899).
extensively
Quoting
129
rather,
courage
property
pleases;
and
the usufruct of
with
even
enforce
do
the
as it
good.”
for
at
lands
the common
See id.
184-
comprehend the
of
we
nature
the State’s
86,
(quot-
Water
is no less an
public
concept
essential
The
trust
a dual
below,
“usufruct
right
of lands”
found
sovereign
responsibility.
when
rather
and
See Rob
above,
(de
ground.
inson,
674,
than
the
In
view
the
65 Haw.
P.2d at
at
658
310
ultimate
scribing
value water to the ancient Hawai
the
as “a
authority
trust
retention of
ians,
inescapable
sovereign
imposition
it is
duty”
that the
res
of a
the
concomitant
added));
guarantee public
ervation
(emphases
was intended to
Reppun,
see also
65
water,
rights
regardless
all
of its immedi Haw. at 547-48
n.
P.2d at
&
656
68-69 &
practices
ate
(explaining
“right”
source. Whatever
ancients
n. 14
the
the
correlation of
time,
therefore,
in
“duty” underlying
have observed
them
the ancient Hawaiian
must
system).
conclude that
the
thoroughly
reserved trust
Previous decisions have
encompasses
ours,
any usage
in
developed
sovereign authority
reviewed the
of the state
including
“ground
proposed
McBryde,
water”
54
uses
under the trust.
Haw. at 180-
by
parties
1335-1339; Robinson,
pub
in the instant case. The
which
waters.” 65 Haw.
resources trust.
Robin
reserved water
See
Keeping this
at
In “uses” state constitutes a distinct “use” un other or of natural disposes changing have evolved with der the water resources trust. This public trust
137
any portrayal
acknowledging
general pub
of
In
retention
waters
water, however,
lic’s need for
we do not lose
natural
Reppun,
their
state as “waste.” See
sight
“original
As
trust’s
intent.”
Haw. at
n.
76
65
560
656 P.2d at
n. 20
above,
early
noted
review the
law of the
XI,
(citing
1
acknowledg-
section as an
article
kingdom
specific objective
pre
reveals the
free-flowing
ment
interest
“a
serving
rights of
during
tenants
native
sake”).
own
stream
system private
the transition to a western
Máhele,
property.
the law “Re
Before
riparian
prior ap
Whether under
or
specting
Irrigation”
Water for
assured native
statute,
propriation
systems, common law
equal proportion”
tenants “their
of water.
uniformly recognized
states have
domestic
1842, reprinted
Laws of
See
in Fundamental
uses, particularly drinking,
among
(1904). Subsequently,
Laws
Hawaii 29
See,
highest
e.g.,
water resources.
provision
Act
aforementioned Kuleana
(Second)
§
Restatement
Torts
850A cmt. c
rights
ensured tenants’
to essential incidents
(1979)
(Second)
[hereinafter
]
Restatement
kuleana,
beyond
including
of land
their own
domestic,
“natural,”
(preference
uses water,
recognition
that “a little bit of land
law);
riparian
§
under
Cal. Water Code
1254
title,
even with allodial
if
they be cut off
(“domestic
(West 1971)
highest
use
privileges
very
all
other
would be
little
use”);
103G.261(a)(1) value,”
(1850).
Privy
3B
Minn.Stat. Ann.
Council Records 713
549-50,
1997)
(West
(domestic
Reppun,
at
also
Haw.
given
priori
first
riparian rights
P.2d
69-70 (analogizing
jurisdiction
ty).
presents
exception.
This
no
7 of
under section
the Kuleana Act to water
granting
In
simple
individuals fee
title to
rights of Indian
reservations Winters v.
Act,
kingdom
land in
Kuleana
ex
States,
United
U.S.
S.Ct.
pressly guaranteed:
people
“The
shall
...
(1908));
Bailey,
L.Ed.
v.
Peck
cf.
water,
right
to drinking
running
have
658, 661
(recognizing “appurte
Haw.
water....”
Enactment
Further Princi
rights”
nant
water based
“immemorial
(codi
ples
Laws
1850 at 202
usage”).34
history
with
line
and our
(1993)).
fied
7-1
See also
prior precedent,
Kalipi
see
v. Hawaiian
191-98,
McBryde,
viduals),
Montgomery,
139 development.” present “use and system The state water ancient Hawaiian resources trust thus necessity, embodies a dual man- subsequently court this reasserted 1) 2) protection date of and maximum reason- equitable the dormant interest able and beneficial use. and maximum beneficial allocation of id; Robinson, resources. See 65 Haw. at “protection” The mandate co 674-77, at 310-12. incides with pub the traditional notion of the developed lic respect navigable trust with adopted princi state has such This understood, and tidal commonly waters. As ples in its constitution. The second clause protects public trust waters and sub XI, provides 1 article section that the state merged against lands irrevocable transfer to promote development “shall and utiliza see, private parties, Central, e.g., Illinois su tion of a [water] resources in manner consis pra, impairment,” or “substantial whether for tent with their and in conservation further private see, purposes, e.g., State v. self-sufficiency ance of the State.” Comm’n, supra. juris Public Serv. In this added.) (Emphasis it framers deemed diction, our in McBryde decisions and its necessary to define “conservation” and progeny plain meaning and the history agreed following: on protection, “the im XI, “protection”36 term article section provement and use natural resources' ac XI, 1 and article 7 section establish that the cording principles will assure their duty state has a comparable to ensure the highest economic or social See benefits.” availability continued and existence of its wa Rep. Stand. Comm. No. in 1978 Proceed present genera ter resources for and future added). ings, (emphases at 685-86 The sec tions. XI, ond clause article section 1 thus re jurisdiction,
In mandating this sembles laws in other states the water re duty sources trust encompasses highest also to maximum beneficial or best promote See, e.g., reasonable and beneficial use of of water resources. Cal. Const. art. 2; X, 16, 3; § water resources in order to maximize their N.M. Const. art. N.D. Cent. social people and economic benefits to the (Supp.1999). of Code 61-04-01.1.1 Unlike this rights state. many systems Post-Máhele water deci rights the traditional water ignored duty, however, treating public governed by provisions, sions such article XI, commodity resources as reducible to abso section l’s mandate of “conservation”- private ownership, lute recognizes “protection” such that “no limita minded use as valid tion ... supposed purpose assuring “highest existed or was to exist to consonant with power [the ... owner’s] to use the waters as economic and social of the resource. benefits” fit,” al., Sugar saw Appro- he Hawaiian Commercial & L. Anderson Prior See Owen et Co., Sugar Co. v. Wailuku 2 priation, Rights Haw. in Waters and Water (1904). (Robert 539-48, 12.03(e)(2), ed., Reppun, 65 Haw. at E. Beck 1991) founding P.2d at principles Rights] (noting 63-69. Based Water [hereinafter ear- mote the with the tion of ... "protection,” the committee merely stating protection on the mony is opinion tion. Your Committee subdivisions this concern.... balance that is tion mandates the Much contradictory deleting prior previous " and amended Section present language conservation, development preservation that the current testimony, natural natural provide language that "[t]he implied and resources,” was received [T]he the draft of article beauty, places in the word "conserva- which protection State agreed language language the expressly legislature noted: insufficient as conservation [1] and its simply contrasted with with this testi- expressing to replacing and utiliza- end XI, mandating recognize shall Section this sec- political empow- section weight pro- and the XI, our sheds make clear form the plaining, Delegate Debates, Stand. Comm. destruction and resources groundwater fare of duty natural ered the State section State.”). (emphases and natural stream environments because our resources future protect 2in Hoe) ("[Article basis of beauty.” against *40 resources, that the Proceedings, respect generations Rep. added). our safeguard groundwater irreversible our water resources No. we must obligations “conserve and "agency to a watersheds and XI, See also id. at 688 the natural and therefore in the prior at 857 section protect depletion, resources, will also have the include the wel- Proceedings, draft (statement 7] develop our natural beauty system"); strives waste streams water- article (ex- to 140 that, in so do per- maintained as “the court nonetheless
ly proscriptions against “nonuse”
all”).
duty
ing,
waste of
But see id.
must bear mind
biggest
“the state
ceived
13.05(a)
taking
to-
(explaining
the modern trend
the
the
trustee to consider
effect
uses).
providing
preserve,
for instream flows
so far as
public
wards
trust and to
short,
object
interest,
not
con-
maximum
uses
public
with the
consistent
use,
equitable,
but
the most
sumptive
Cal.Rptr.
rather
Id.
protected
the trust.”
189
reasonable,
omitted).
of state
(citation
and beneficial allocation
346,
P.2d
resources,
recognition that
with full
water
Many
primarily those advo
parties,
of the
protection also constitutes “use.”
resource
uses,
cating
attempt
distinguish
offstream
suggests,
foregoing
discussion
As
one.
present
from the
the Mono Lake case
public
of the
trust fash-
notion
conventional
important
differ in
The two cases indeed
navigable
and tidal
in the context
ioned
First,
respects.
National Audubon involved
partial picture only offers
waters
public purpose,
the domestic
diversions
this
trust of this state. With
resources
water
Angeles.
compa
No
City
of the
of Los
leading deci-
understanding,
turn to the
we
public
are advanced
rable offstream
needs
public
to water re
applying
sion
trust
Second,
court
the National Audubon
here.37
sources,
Society
Superior
National Audubon
public
against a
sought
trust
to assert
419,
County,
Alpine
33 Cal.3d
C ourt of
nonconsump-
system equating
rights
denied,
709,
Cal.Rptr.
658 P.2d
cert.
See, e.g.,
re
with “waste.”
In Waters
tive use
977, 104
141
others,
this
from
and
source
to
seek
with due
of
consideration
their effect on the
parameters
define the trust’s essential
Audubon,
public trust. See
189
National
light
legal
practical
of this state’s
and
346,
re- Cal.Rptr.
P.2d
658
at 728.
quirements
present
and its historical and
cir-
end,
cumstances. To this
we hold that the
The state also bears an “affirma
state water resources trust embodies the fol-
duty
tive
public
take the
trust into account
lowing
principles:
fundamental
planning
and
of
allocation water re
sources,
protect public
and to
trust uses
trust,
public
Under the
state
feasible[ 39].”
(emphasis
whenever
Id.
add
authority
duty
has
preserve
and
both
ed). Preliminarily,
duty
we note that
this
present
rights
of
generations
and future
may.
readily
translate into substantive
Robinson,
in the waters of the state. See
65
public
results.40
has
definite interest
674,
310;
Haw. at
658 P.2d at
see also State
development
in the
and use of water re
337,
1128,
v.
Ry.,
Central Vt.
153 Vt.
571 A.2d
for various
sources
reasonable and beneficial
(1989) (“[T]he
1132
power
supervise
state’s
public
private
purposes,
in
offstream
property
perpetuity
trust
coupled
cluding -agriculture,
generally
see
Haw.
duty
power.”),
the ineluctable
exercise
.
XI,
Therefore,
Const. art.
3.41
apart from
denied,
931, 110
2171, 109
cert.
495 U.S.
S.Ct.
question
practice,42
of historical
reason
(1990).
501
continuing
L.Ed.2d
authori
necessity
public
dictate that
trust
ty of
pre
the state
over water resources
may have to
offstream diver
accommodate
any grant
cludes
rights
or assertion of vested
sions
pro
inconsistent with the
of
mandate
to use water to
public
the detriment of
trust
tection,
impairment
Robinson,
the unavoidable
of
677,
purposes. See
14 Pa.Cmwlth.
323 A.2d
“conservation,”
(1976).
226,
historical
and
Pa.
A.2d
tection”
468
361
263
continuing understanding
trust as
and
preference
have indicated
We
public rights,
guarantee of
and
common
accommodating
and offstream
both instream
reality
game
com
the “zero-sum”
between
Reppun, 65 Haw.
uses where feasible. See
any balancing
peting
demand that
water uses
552-54,
20,
71-72,
n.
at
656 P.2d
at
556-63 &
public
purposes begin
private
between
(allowing ground
n.
water diver
73-78 & 20
use,
presumption
public
with a
favor of
uses);
to
sions short of “actual harm”
surface
See,
access,
enjoyment.
e.g., Zimring,
674,
Robinson,
at
143
purposes
of
e.
vate commercial
bore
burden
Standard
Review under the Trust
of
Robinson,
proof);
65 Haw.
also
at 649 n.
Finally,
public
cf.
special
inter
8,
(noting
P.2d at 295 n.
658
8
under the
ests
trust
resources demand that
this
law,
demonstrating
“[t]he
common
burden of
qualifications
court
of its
observe certain
review,
II,
injurious
supra.
standard of
see Part
As
transfer of
not
water was
cases, agency
affecting
in other
decisions
rights of
wholly upon
others rested
public
carry presumption
trust resources
transfer”).
seeking
those
validity.
presumption
particularly
challenges
significant
appellant
where
designates
The constitution
within
agency’s
substantive decision
ex
primary guardian
pub
Commission as the
erroneous,”
pertise
“clearly
91-
HRS
Const,
rights
lic
under the trust. Haw.
art.
14(g)(5), “arbitrary,”
“capricious,” or an
XI,
such,
section 7. As
the Commission must
discretion,”
§ 91-14(g)(6).
“abuse of
relegate
not
itself to the
of a
role
mere
Ourselves, 452
See Save
So.2d at 1159.
“umpire passively calling
for
balls and strikes
trust, however,
public
is a state
it,”
appearing
adversaries
before
but instead
constitutional doctrine. As with other state
considering, pro
must take the initiative in
guarantees,
constitutional
the ultimate au
tecting,
advancing public rights
and
in the
thority
interpret
public
and defend the
every
stage
planning
resource
trust in Hawaii
with
rests
the courts of this
Ourselves,
decisionmaking process.
452
Save
128,
Quitog,
state. See State v.
85 Hawai'i
(citing
So.2d
1157
Calvert
Coordi
Cliffs’
559,
(1997)
3,
(recog
130 n.
938 P.2d
561
3n.
nating Comm. v. United States Atomic En
nizing
Supreme Court
the Hawaii
as the
Comm’n,
(D.C.Cir.
1109,
ergy
449 F.2d
1119
final,
judicial
“ultimate
tribunal with
unre-
1971); Scenic Hudson Preservation
authority
interpret
Confer
viewable
and enforce
(2d
FPC,
608,
Cir.1965));
ence v.
354
Constitution”).
F.2d
the Hawaii
Debates,
Proceedings,
also
see
at 857
public
dispensa
Judicial review
trust
(statement
(“Thus,
by Delegate Fukunaga)
complements
public
concept
tions
of a
XI,
7],
Supreme
trust.
[The
Court]
Arizona
said
[article
under
must
section
State
...,
imposed upon
“The duties
state
take
active
affirmative role water
simply
are
and not
the duties
a trustee
management.”). Specifically,
public
trust
manager.”
good
of a
duties
business
compels
duly to
the state
consider the cumu
Dep’t, 155
Kadish v. Arizona State Land
impact
existing
proposed
lative
diver
484, 487,
1183,
(1987),
Ariz.
747 P.2d
purposes
implement
sions on trust
and to
605,
2037,
aff'd,
490 U.S.
S.Ct.
mitigate
impact,
reasonable measures to
this
(1989).
private
L.Ed.2d 696
Just as
trust
See,
including the use of alternative sources.
judicially
ees are
accountable to
ben
their
Ourselves,
1157-58;
e.g., Save
452 So.2d at
res,
dispositions
eficiaries
so the
Kootenai,
94;
Payne,
ter N.W.2d 462-64 Arizona Law in Pub. Interest Cent. for 1976). sum, may compromise the state Hassell, 172 Ariz. 837 P.2d 168-69 public rights only pursuant in the resource dismissed, 172 (Ariz.Ct.App.1991), review (brackets openness, made with a decision level Ariz. omitted). citation diligence, foresight commensurate high priority rights un Nevertheless, these command Supreme as the Idaho Court the laws our der state. elaborated: legislative is the say will intent. One avenue
This is
court
legis-
history
judgment
legislative
interpretive
that of
as an
tool.
supplant
However, it
agency.
does mean
lature
Gray
Dir.
Administrative
[v.
a “close look” at
that this court will take
*44
Court],
138,] 148,
84 Hawai'i
931 P.2d
complies
if it
with
the action
determine
(1997)
[580,]
(quoting
Toyo
v.
590
State
[
]
act
and will
trust doctrine
18-19,
893,
mura,
8,
P.2d
Hawai'i
904
80
or
merely
stamp
agency
as a rubber
(brackets
(1995))
points
ellipsis
903-04
legislative action.
(footnote omitted).
original)
This
in
court
added).
Kootenai,
(emphasis
671
at 1092
P.2d
spirit
may
“[t]he
also consider
reason
Owsicheck,
(holding
763
at 494
See also
P.2d
law,
cause which
of
induced
rights to
grants
of exclusive
harvest
legislature to
it ...
to discover
enact
subjected to
natural
resources
should be
1-15(2) (1993).
meaning.”
true
its
HRS
scrutiny”);
Juan Coun
“close
Weden v. San
materia,
pari
upon
or
the same
“Laws in
(1998)
678,
273,
ty,
958 P.2d
135
283
Wash.2d
matter,
subject
with
shall be construed
that,
(observing
a constitutional
even absent
What is clear in
to each other.
reference
mandate,
legislation under the
“courts review
may
in
upon
called
aid to
one statute
be
heightened
with
de
trust doctrine
a
explain
what is doubtful
another.” HRS
judicial scrutiny,
gree
they
if
were
1-16(1993).
measuring
legislation against
constitu
(citation
State,
20, 31,
quo
91
979 P.2d
protections"
tional
and internal
Barnett v.
Hawai'i
omitted)).
Davia,
1046,
(1999) (quoting
marks
tation
1057
State v.
87
(1998)).
249, 254,
1347,
P.2d
1352
Hawai'i
953
THE
C.
INTERPRETATION OF
WA-
determine,
If we
based
TER CODE
construction,
foregoing
statutoiy
rules
Principles
Statutory
1. Basic
Con-
unambiguously
legislature
spo
that the
has
struction
question,
matter
ken on the
then our
See,
U.S.A,
inquiry
e.g.,
ends.
Chevron
Inc.
significant
appeal
A
number
issues on
Council, Inc.,
Resources
v. Natural
Defense
require interpretation of the State Water
2778,
837, 842-43,
U.S.
104
81
467
S.Ct.
statutes,
construing
recog-
In
we have
Code.
(1984)).
legislative
L.Ed.2d 694
When the
nized that
clear, however, this
is
than
court
intent
less
obligation
to ascertain and
our foremost
is
rule of
will
the “well established
observe
give
legisla-
effect to the intention
statutory
an admin
construction
where
ture,
primarily
to be
which is
obtained
respon
agency
charged
is
with the
istrative
language
contained
the statute
sibility
carrying
of a
out
mandate
statutory
And
must
lan-
itself.
read
which
words of broad and
statute
contains
guage in the context of the
statute
entire
meaning,
persuasive
courts accord
indefinite
it in a
and construe
manner consistent
weight
to administrative construction and
purpose.
same,
follow the
unless
construction is
doubt,
is
there
doubleness
When
Thompson,
palpably
Brown v.
erroneous.”
meaning, or
indistinctiveness
uncertain-
(1999)
1, 18,
586,
Hawai'i
603
979 P.2d
statute,
ty
expression
an
of an
used
Wilson,
Keliipuleole
(quoting
v.
85 Hawai'i
ambiguity exists....
226,
(1997)).
217,
300,
941 P.2d
See also
Employees
Hyman,
Ins. Co. v.
Government
statute,
construing
ambiguous
1, 5,
Hawai'i
P.2d
ambiguous
meaning words
“[t]he
(“[J]udieial
expertise
agency
is
deference
context,
sought by examining
may be
interpretation
guiding precept
where
words,
ambiguous
phrases,
with which the
application
ambiguous
statu
broad
may
compared,
and sentences
be
in order
tory language
an administrative tribunal
meaning.”
ascertain their true
1-15(1) [(1993)]. Moreover,
subject
(quoting
Richard
are
review.”
courts
determining
Metcalf,
Hawai'i
v.
resort to extrinsic aids
(1996))).44
sary,
accepted
develop-
Such
“reflects a
is
guide
deference
sensitivity
proper
political
ing
implementing
policy.
roles
judicial branches,”
insofar as “the reso-
(c) The
shall
state
code
be liberal-
statutory
ambiguity
lution of
text
ly interpreted to obtain maximum benefi-
question
policy
often more
than law."
cial
the waters
State
Mines,
Pauley
Inc.,
BethEnergy
501 U.S.
uses,
purposes
aquacul-
such as domestic
111 S.Ct.
45. uses would to section that have effect which, Code, polluting aquifer, apart Water from the addi- a stream or or that would Model 174C-2(c) through rights, damage pump- § tion tracks excessive of Hawaiian HRS resource diversion, verbatim, explains: ing permitted, should be no application matter how useful the of that water (3) Subsection sets out a list of water uses might given enterprise.... This be to a would which are declared to be beneficial. A second law, mean as matter no bal- further of water uses is declared be in class public ancing occurs that extreme level harm. special pro- interest. These uses receive added). (emphasis Id. an under Model Water Code.There is tection duty upon the state and local affirmative boards to see that these uses are not 47.Tire Commission also found: "Even small adversely flow increases should be as beneficial to viewed by operation par- the code. In affected ticular, the native im- biota because those incremental preferred these shall other only provements could not become substantial uses.,... beneficial improve with time but could also our knowl- added). (emphases Id. edge during period, appropriate the entire if base 46. were FOF The cited commentator notes the reasonable- simultaneous studies undertaken.” interpretation, effect 174. ness of this Commission, however, protection found provisions, calculat- then consider ing relationship the exact objections. between instream parties’ specific ecological flows and benefit “difficult” due to
a lack of
knowledge.
sufficient
scientific
Statutory
1. Overview the
Framework
Still,
COLs at 16.
being,
for the time
Instream Use Protection
“practicable”
Commission deemed it
in-
Instream
crease
flow standards48
the interim instream flow
are
standards
(WIIFS)
integral part
regulatory
for windward
by
mgd.
streams
scheme
6.0
estab
Id. assigned
(1993)
It
§
also
to the streams a
lished
the Code. HRS
174C-71
mgd “non-permitted ground
provides
5.39
buff-
at the outset that “[t]he commission
proposed
er”
agricultural
and 1.58
reserve.
shall establish and
administer
statewide
Id. at 33.
protection program.”
instream use
In fur
mandate,
therance
the Code states
DOA/DLNR,
City,
and KSBE raise
“shall,”
inter alia:
the Commission
procedural challenges
several
to the Commis-
“[establish
instream flow
standards
sion’s
They
amendment of the WIIFS.
also
stream-by-stream
necessary
basis whenever
allege that
the Commission erred
amend-
protect
interest
the waters of
ing the WIIFS absent sufficient evidence of
state,”
174C-71(1);49
§
HRS
“[establish
quantity
required
exact
of water
in-
standards,”
interim instream flow
HRS
argue
stream uses. WWCA and HTF
174C-71(2);
and “[establish an instream
wrongfully
the Commission
allocated water
enhance,
program
protect,
flow
determining
offstream use
rees
before
tablish,
quantity
streams;
actually
practicable,
needed for the
where
beneficial
in-
particular,
they
water,”
designation
174C-71(4);
contest the
stream uses
HRS
174C-5(3)
see also general
(same);
buffer
flows.
first
We
review the
*47
174C-31(i)(1)
design
operation
§
of the
instream
(Supp.1999)
Code’s
(requiring
HRS
48. The Code defines "instream flow standard”
367 n.
742 n. 5
(citation
quantity
"a
depth
omitted).
as:
or
or
quotation
flow of water
and internal
marks
required
present
water which
specif-
is
to be
at a
interpret
We
also
must
statutes in accordance
system
specified
ic location in a stream
at certain
requirements.
with
relevant constitutional
wildlife,
year
protect fishery,
times of the
id.
at 367-68 n.
DOA/DLNR, that Com the asserts the only to limits the Commission authority to alter the 1992 that the Code lacks the mission stream, per “per- standard one interim pending the establishment DOA/ standards explained it "established promulgated The Commission it the 54. act in which In the same existing Code, on the adoption [1992] interim flow basis legislature the mandated the the standards, than on the structures ... rather be- diversion flow state-wide interim instream ecological any biological or value of the ginning Haw. Sess. L. basis of Windward O'ahu. See given flow level.” COLs at 17. § stream Act 4 at 101. passing DLNR on relies references to “modi allows Code the amendment of in- interim appearing permanent fication” in the stan stream flow standards. provisions, 174C-71(1)(D), § dard see HRS argues also the DOA/DLNR (F), provi but not the interim standard must establish interim standards situations, In sions. certain reasoning such through rulemaking procedures under may control, based on the rule of construc HAPA, § see (Supp.1999). HRS 91-3 The legislature]
tion that “[w]here [the
includes
provides
contrary, defining
Code
such
particular language in one
of a
section
stat
“temporary
standards as
instream flow stan
ute but omits it in another section of the
adopted
dard[s] ...
the commission with
Act,
generally presumed
same
it
that [the
necessity
public hearing.'”
out the
a
HRS
legislature]
intentionally
acts
purposely
added).
§
(emphasis
Indeed,
174C-3
the
disparate
in the
inclusion
exclusion.” Go
require
Code does not
rulemaking
even
States,
v.
zlon-Peretz
United
498 U.S.
standards;
permanent
the
establishment
(1991)
S.Ct.
L.Ed.2d 919
174C-71(1)(F)
§
merely
HRS
states
States,
(quoting Russello v. United
464 U.S.
adoption
“[b]efore
of an
instream flow stan
(1983)).
104 S.Ct.
where, Commission, according to the the evi provisions HAR 13-169-49.1. These make generally dence demonstrates the need for rulemaking; require- no reference such flows, increased but nonetheless falls short of fact, would, ment su- render rule a showing establishing perma the desired 91-3, perfluous repetition of HRS which nent standards. already allows of rules rule- amendment making. During hearing, the Commis- respond Interim standards must interim 16,” sion issued “Order No. objects wherein con- circumstances. DOA/DLNR foregoing provisions cluded that the allowed amendment of the interim standards based evidence, the modification of instream flow standards on less than conclusive but insists standards, underlying keeping the 1992 without amendment rule. which lack any evidentiary Considering ambiguity proposition basis. This of the rule and purpose agency readings strains the overall Code deference owed see, regulations, Maha‘ulepu limits of e.g., well reason. We thus affirm their own Comm’n, 332, 339, Commission’s determination Land Use Haw. *51 much, duly acknowledged protect 55. The Commission to at stat- sion’s instream uses.” COLs ing that fact the ”[t]he that interim standard is 15. adopted quickly more does not alter the Commis- 174C-71(2)(E),—50(d), (1990), §§ say that time limit in cannot the HRS P.2d we -53(c) time commission “until such as the interpretation. erred in its Commission applications is to act on merits of the able the of one also while the We observe City that the petitions.” The maintains rulemaking “generality hallmarks of its not such extensions. Code does authorize Co., effect,” re Elec. see In Hawaiian that, although foregoing first note the We 459, 466, (1996), P.2d Hawai'i provisions phrased in the man are deadline at concerned the instream the decisions hand con datory, they provide no indication the In particular streams. Or flow standards may just sequences noncompliance. One explained: der No. the Commission legislature easily surmise that the intend petition modify flows at ... A to instream period statutory time expiration ed the fact-intensive, specific a indi- locations is operate approval, to as an automatic rather site that determination each vidualized See, denial, pending application. than directly may 1994) downstream offs- affect (repealed e.g., § HRS 183-41 claims [Individual tream interests.... (automatically granting applicant’s proposed may site-spe- expiration to The need be examined. use of conservation distinct land 180-day statutory period); § inquiry in this case is not HRS 91- required cific 13.5(c) (requiring agencies act (Supp.1999) to making, with a compatible with rule but develop application for a or on an “business process due provides method which approval” permit, or ment-related license procedures necessary to assess individual appli provided, time limit “or the within the interests. approved”). be cation shall deemed agree with assessment We the Commission’s event, point any City In fails and, thus, reject that the contention objection in the Commission’s record improperly Commission amended WIIFS Ap Hawaii Rules of extension time. See adjudication rulemaking. via instead 28(b)(4) (HRAP) pellate Rule Procedure City yet proce another The raises (2000) (requiring point of to include error objection, arguing that dural the Commission objected appellant in the record the where granted petitions improperly to amend error). suggests alleged City The no expiration of the statu the WIIFS after the depart why gener from the reason should petitions. on tory time limit for action such properly al not raised shall rule issues 174C-71(2)(E) provides: HRS Inouye, 90 be See Hill v. deemed waived. (1998). reject Hawai'i grant shall commission Furthermore, appear not does adopt petition instream an interim flow City objected prior to the Commission’s deci under this section within one standard proceedings sion for the to consolidate eighty days peti- date the hundred petitions to amend the and the water WIIFS eighty days tion one is filed. The hundred applications, should permit which have of one hun- be extended maximum parties respec that the placed all on notice eighty days request of dred at the probably limits would not met. tive time subject petitioner approval granted par numerous the commission.... hearing ties it admitted in the considerable attention, escapes City’s Although it presenting argu latitude evidence imposes decisions also a deadline on Code City little concern for ment. The showed applications. regarding permit water use fully availing itself of this time constraints in 174C-50(d) (Supp.1909), relating to reasons, opportunity. these we hold For uses,” 174C-53(c) “existing and HRS objections City waived uses,” (1993), identically relating re- “new to extend the statuto Commission’s decision ninety quire application “within action an proceeding. ry instant deadlines days application requiring calendar an hearing, eighty calendar within hundred Objections to Instream Al- Substantive hearing.” days application requiring locations 13, 1995, designation reviewing July the Commission issued the Commission’s On WIIFS, it is instructive to distill the 180-day which
Order No. extended *52 Commission, analysis. required by Commission’s The information the commission.” first, petitions however, considered the statute, amend assign any does not permit applications WIIFS and the water use proof, burden of and dowe that believe together hearing. Regarding the same justifying the ultimate burden of interim estuary ecosystem, the windward stream and petitioner. standards falls on Apart from acknowledged generally the Commission process the adversarial initiated WWCA’s flows, beneficial effect increased instream petition, has an the Commission affirmative but concluded that “a more definitive deter- duty protect under the trust and depends mination of [WIIFS] on the promote instream trust uses. accordance collection of additional information and sub- duty, with this the Commission estab- must sequent weighing of instream and values permanent lish instream flow standards of its Having offstream uses....”56 at 31. COLs necessary protect own accord “whenever conceded the lack of a firm scientific basis for interest the waters disposition, the Commission then allocated 174C-71(1); § supra State.” see HRS also quantity of water to windward streams 1740-71(4) § note 49. requires HRS “practicable” light it deemed of immediate Commission to “[e]stablish instream flow and near-term offstream demands. Id. 19. enhance, reestablish, program protect, and time, however, granted At the same permit practicable, where beneficial instream uses of applications for offstream uses based investigations water” and to “conduct and “prima facie” standard and the conclu- bare fishing, collect including instream flow data adequate sion that “there water to meet wildlife, aesthetic, recreational, quality, water water immediate use needs as set forth ecological and and information basic stream & Id. at [D O].” 23-25. Close review of necessary flow characteristics for determin- therefore, reasoning, the Commission’s re ing requirements.” instream flow The Code pro veals the of its decisionmaking nature planning provisions mandate the Commission any proper findings cess: without as to the “study inventory requirements existing and water purposes, actual instream for. or the reasonableness offstream diversions resources the State and the means and requirements, relative to these the Commis augmenting conserving methods of and such effectively assigned sion resources,” 174C-31(c)(1) windward § HRS remaining streams the water it had after (Supp.1999), formulating a “water re approved per the bulk of the offstream use protection quality plan,” sources and which requests. mit information, include, among must other “re quirements for beneficial instream uses and City argues that WWCA failed protection,” § environmental 174C- proving to meet its burden of actual 31(d)(2).57 obligates The Code also the Com required for amount uses. HRS instream “abridge mission to ensure that it does not 174C-71(2)(C) § requires petitions deny” customary rights traditional'and adopt interim standards forth “set data 174C-101(c) § Native Hawaiians. See HRS concerning information protect the need to (1993); (pre- wa see conserve beneficial instream uses of also HRS 174C-63 serving appurtenant rights). ter other relevant and reasonable impact restricting 56. The summarized the “methodol- as well as the economic ogy” establishing finally, un- instream flow standards such Fourth uses. the Commission water, der HRS 174C-71 as follows: any, may weigh must and decide what if effectively be removed from its source First, investigate the Commission must diverted from windward streams for offstream ecology including stream stream and, sought Second, information, use both within the watershed flows. with this here, outside watershed. Commission determines how different (in- COLs protection flows affect different levels restoration, needed) cluding partial if required 57. The Commission was to have should be afforded the streams at issue ' adopted plan evaluating later the entire Hawaii "not the water flows needed for instream Third, July years values. deter- than three 1987.” HRS Commission must uses, 174C-32(c) (1993). present potential mine the offstream *53 154 preliminary is made Where scientific evidence numerous
The Commission
findings
yet
regarding
lack of scienti
not
man
regarding the current
conclusive
inability
experts
knowledge
fic
agement
which
of fresh water resources
stream
quantify the correlation between
trust,
to
prudent
to
part
is
are
de
flows
benefits. We
and environmental
pro
adopt “precautionary principles” in
judgment for
Com
our
cline
substitute
is,
tecting
resource. That
there
where
concerning
ruling that
its ultimate
mission’s
present
potential threats of
are
serious
a
support
there was insufficient evidence
certainty
damage,
full
lack of
scientific
flow
conclusive assessment
instream
more
postponing
should not be
basis for
effec
requirements.58
a mixed determination
Such
prevent
tive measures to
environmental
Commission’s
of law and fact lies within the
certainty
degradation.
“Awaiting for
will
discretion,
designated expertise and sound
reactive,
only
preven
not
often allow
in
case
not dem
and the
does
evidence
tive, regulatory
Ethyl Corp. v.
action.”
clearly
onstrate it
to be
erroneous.
1, 25,
(D.C.Cir.),
F.2d
cert.
541
5-29
EPA
Hawai'i
927
Agricultural,
Ko'olau
at
denied,
2663, 49
judgments.60 Neither the constitution nor uses, tified offstream flow while instream Code, therefore, constrains the Commission proper designation, standards still await of certainty fulfilling to wait for full scientific public spirit fends the trust and the duty its towards the in mini- interest protection instream use scheme. We have mum instream flows. rejected serving the idea streams as case, private proper understanding convenient reservoirs for offstream Robinson, of the Commission’s use. mandate reveals the 65 Haw. at faulty logic arguments challenging (maintaining private parties at 311 do early planning stage, designate management 60. At this Commission Commission only reasonably need determined, estimate instream and offs reasonably can be "[w]hen areas supra, MacDougal, tream demands. See at 66 n. conducting investigations after scientific and re Board, (citing State Water Resources Control search, may that water in an area be resources 180); Cal.Rptr. 227 Code, at 107(5) see also Model Water added)). (emphasis threatened” The Commis supra, (requiring agency the state regulations, example, own allows sion’s "using to calculate instream flows the best infor uses, DLNR, assessing "employ instream available"); Joseph Dellapenna, Regu mation W. significance various methods determine the 905(b), Riparianism, Rights § lated in 1 Water require each use and its associated stream water ("The process, plan 534 ning generally minimum flow ... like quantitatively ments. Instream uses ..., place is to take more in the rated, recognizing qualitatively instream will abstract and establish a benchmark on the may rely than on factors other streamflow competing basis of which users can malee much plans development maintain their overall value.” HAR 13—169— more definite for the use and water.”); 174C-41(a) 33(b) (1988) added). (requiring (emphasis cf. trustee, Thus, pursuant duties right “to drain rivers unfettered not have the fit”). they precaution, the Commission purposes s[ee] the interest dry for whatever very Nonetheless, “mar- providing achieves that reasonable buffer should consider result, safety” purposes the constitution- gins as it reverses for instream trust insofar statutory proof establishing standards. burden estab- instream flow al and when against public Commission, however, working presumption con- should not lishes uses. “buffer” at instream cern itself with allocations Rather, should the outset. the Commission portrayed the buffer un- for scientific incorporate allowances precautionary principle. aspect “one *55 certainty initial the into its determination of error in the margins for A buffer allows Any in minimum flows excess standard. recognizing delay in and for the estimates until remain in the stream standard shall this changes.” 33. measuring at On COLs actually for offstream permitted needed “buff- contrary, the we do not believe use, policy against waste keeping in with the er,” category of distinct as a formal and merely recognition in that the standard allocation, truly protective or fulfill a would required under an absolute minimum states above, precautionary purpose. As stated flows, any These unallocated circumstances. yet designate has the Commission where however, catego- will not constitute a distinct standards, a flow buffer proper instream according ry quantity, will fluctuate but on their constitution and Code stands the supply and demand. variations heads, allowing flows of instream diversions requisite completion proce- the before foregoing, we Based on the vacate the analysis protec- for use instream dure designation of the Commission’s WIIFS out the Commission sets tion. Even where groundwater “nonpermitted buffer” appropriate in- in earnest to determine the proceedings consis and remand for further standards, we think that a for- stream flow opinion. In order to effectu tent with this in- category less an mal “buffer” serves in- framework for ate the Water Code’s protection than as a distraction strument of protection, the Commission stream use establishing mini- task from the mandated shall, purpose, work haste and with utmost flows and an invitation mum instream establishing permanent instream towards light tem- this minimum the understate In standards for windward streams. flow by If protection provided the buffer. porary meantime, desig the shall Commission in- determines the minimum the Commission standard based on the best nate interim first, contemplated stream flows presently available. Cali information Cf. Code, designate formal “buffer” it need not Trout, Court, Superior Inc. v. fornia precaution. flows for the sake of As Cal.App.3d Cal.Rptr. recognized, policy against Commission (ordering the water board estab any above des- waste dictates that data lish flow based on available rates ignated minimum flows and not otherwise proceeding with more elaborate stud while any for use remain the streams needed ies). Commission, do not bar We therefore, best, super- a buffer event.61 At pending permanent the establishment fluous; worst, it is a violation of standards, setting from the interim stan instream and an end run around the trust than combined total of the dard lower no provisions. it protection Since serves previous “base” and “buffer” flows62 legitimate refuse to stand. purpose, we let subsequently. amending the standard case, however, In general princi- Part III.E. this no fault with the findWe infra in- reasoning. suggest to us that underlying several factors ples the Commission’s Commission, may designate example, 62. The for We also the Commission’s 61. are unconvinced reasoning enables the for that the buffer Commis- as to allow fluctua- the interim standard so study flow reductions on the effect of permitted sion III.F.5. uses. See Part tions infra easily just as The Commission could streams. alternating purpose by accomplish flows this streams, diverting among instead of flows offstream uses. should, term standard least for the time applicable standard all speci- streams in a being, incorporate pres 174C-71(2)(F). much of total fied area.” 1) ent instream lack of proper flows: case, the Commission amended WIIFS adequate studies and information on the basis, general on a still but which identified streams; 2) corresponding inability streams would receive the increased base presently to fulfill the in- findings, flows. In accordance with its 3) protection framework; stream use respect Commission should do the same substantial, largely expert uneontroverted to the new minimum flows established testimony present instream flows remand and flows excess of this mini- represent necessary the minimum to sus mum, including proposed agricultural re- 4) habitat; adequate tain an stream serve. finding “in general, Commission’s it is expected additional flows Interim Standard Waikane Stream streams would increase the native biota habitat”; petitioned 5) WWCA the Commission gener the Commission’s particular to amend the provision ous interim standard for and near-term immediate *56 windward streams. “prima offstream demands a Waikane Stream was under facie” among assignment petition. standard. The Commission’s the streams of identified streams, only the buffer flows to the windward Commission nonetheless amended face, on its seems to amount to a the base flows of determi Waiáhole and Waianu “practicable” nation “protect, that it is Streams. enhance, by and reestablish” instream uses presented WWCA evidence of the need for quantity, for least the interim. If Stream, increased flows in of Waikáne none so, generally this would meet the definition parties dispute.63 which the The Commis- purpose of “interim” standards under sion, however, not does mention Waikáne Code. analysis We leave the final Stream at all in its allocation instream foregoing factors and determination of In appeal, flows. its brief on the Commis- appropriate interim standard to the gates sion states that “the available for water remand. put restoration cannot now water Waikane Finally, providing for the release Any physical Stream.... reconstruction of agricultural “proposed “buffer” system the ditch in-depth should await more streams, reserve” into windward Com not, justifica- studies.” Whether valid this specify did not it appor mission how would appears tion in the nowhere Commission’s “supplemental among tion these flows” Nothing decision. in the decision indicates specific ambiguity streams. Such hinders practica- that the Commission considered progress a towards rational instream use bility restoring flows Waikane Stream. protection program. The Commission found agency “[T]he must make its more “[a] suitable restoration of wind findings reasonably parties clear. The
ward partitioning streams would involve the guess, the court should be left to among of flow systems a number stream fact, any respect question [Kahana, Waikane, material or to Waianu, such as any Streams],” 172, group of minor matters that have Waiáhole FOF and that “[i]t significance, precise finding cumulative makes a difference how the water is distrib agency.” into the re Elec. Div. uted streams. Water should In Kauai Co., 166, 183, Citizens 60 equally more This Utilities Haw. distributed.... is an un (1978) restoration,” (quoting natural P.2d In re FOF 180. The Terminal Code Inc., 134, 139, grants adopt Transportation, the Commission discretion to 54 Haw. (1972)). stream-by-stream standards “on a interim P.2d also Kilauea See general Neighborhood Comm’n, basis or ... instream flow [as] Ass’n v. Land Use Roberts, Aquatic biologist Hodges, example, Henry part-Hawaiian Marc for farmers resid- ing Valley, probably require testified that it would dou- Waikane testified that diminish- bling support current flow Waikane Stream to ed are their flows insufficient desired good create a stream habitat. Denise Medeiros levels of taro cultivation. possibility 227, 230, of additional diversions. 751 P.2d Haw.App. (“An correctly investi- identified the agency’s findings suffi Commission must be ecology stream and determina- gation of the reviewing track court to cient to allow the tion of the correlation between flow levels its steps by agency reached which Akiba, steps as first in the values decision.”); 87- and instream 81 Hawai'i Rife (review determining “methodology” for the instream (App.1996) 584-85 standards, supra see note but admit- flow practical ing numerous reasons re conclusions). that the lack of “firm” scientific evidence ted adequate findings and quiring properly completing these prevented it from is Clarity agency’s decision all the sum, inquiries. In are still preliminary “in a case as this where such more essential question how with the the Commission performs trustee and left agency should, presently and fu- for the foreseeable duty it has to demonstrate bound ture, competing instream and offs- balance it the discretion vested properly exercised develop proceeds tream interests statute.” Save constitution and the instream flow standards. permanent Ourselves, 452 at 1159-60. So.2d decision, recognized the Commission case, pro- has not In this the Commission flows, high stating: base the need findings that would or conclusions vided estuary High important flow is decision re- base meaningful review its enable ecosystem as well as the stream itself. thus remand garding Stream. We Waikane generated during proper The flows storm events resolution matter Electric, perform function from that 60 Haw. at different Commission. Kauai 185-86, estuary (recognizing flows. The does not assimi- P.2d at 537-38 re- base *57 great from flood remedy late a deal nutrients appropriate mand as an “where the invalid, events, through the water moves agency inadequate, or in- because has made system rapidly. Those flows flush findings”); so complete see also 3 Kenneth C. Pierce, Jr., system. flow J. Administra- out the estuarine The base
Davis & Richard (3d ed.1994) (dis- steady that is carries the load nutrients tive Law Treatise 18.1 productivity, remedy for estuarine and cussing aside and essential the usual “set remand”). to sustain the nutrient levels essential
throughout
year.
IN-
INTERIM BALANCING
E.
OF
long-term flows are
FOF 262. Consistent
AND OFFSTREAM USES
STREAM
conducting meaningful
also essential
that,
The Commission found
stream studies.
foregoing rulings concerning the
Our
adequately
any impacts
“to
on
evaluate
permit any
nor
preclude
WIIFS neither
change
regime,
study
in flow
would need
present
future allocations for offstream
and
period of
to be conducted over an extended
recognized, “[g]iven
As the Commission
use.
(2)
time, starting
or
with at least two
three
long
work
to define an
term
needed
(3)
years,”
“it
and that
is better to
FOF
particular
ecologically necessary
in a
flow
gather years of
data
de-
accumulated
before
stream,
to amend
the Commission will need
ciding
impact,”
whether there was an
FOF
periodically
perma
until
standards]
[interim
13-169-20(2),
generally
§§
HAR
200. See
adopted.”
can
nent standards
be
COLs
-22(1),
im-
(recognizing
-23
“vital”
Thus,
desig
the Commission
even after
program
“systematic
of a
of base-
portance
on remand based
nates the WIIFS
requiring
line research”
Commission
information, may
available
amend the
best
part
to conduct
research as
of the man-
such
further informa
in either direction as
WIIFS
protection program).
dated
instream
hand,
tion
available. On the other
becomes
adequate
information be-
merely affirming
interim
Until
scientific
the Commission’s
available, therefore, ongoing
fur-
or
effectively assigning to instream comes
solution of
subject
only
allocations not
not otherwise allocated for
ther offstream
uses
uses,
impairment
unknown
instream values to
and near-term offstream
immediate
risk,
undermine efforts at effective
yet
validity
but also
have not
addressed
allocations,
Conceivably,
alone the
the Commission
present offstream
let
research.
dry incrementally,
may
could drain a stream
interest. The Commission
still
dry
perpetuity,
leave
diverted stream
act when
not
benefits and risks are
determining
without
appropriate
times,
ever
in-
capable
quantification.
all
exact
At
say,
stream flows.
however,
Needless
we cannot
the Commission
not
should
hide
accept
proposition.
such a
uncertainty,
behind scientific
but should con-
systematically
judiciously
it as
front
alternative, however,
opposite
does
possible—considering
every offstream use
appear very practicable.
WWCA insists
potential
view of
the cumulative
harm
Commission
of any
bar the issuance
instream uses and values and
the need
permits for offstream
until
uses
sufficient
meaningful
require-
studies
flow
stream
require-
scientific information on instream
expect
easy
ments.
do not
We
this to be an
ments becomes available.
doWe
not believe
nothing
it is
task. Yet
novel to
adminis-
per
the law
such a
mandates
se rule.
legal process
gener-
trative function or the
hardly
can
expected
Commission
Ethyl Corp.
al.
minimal de the Commission permits under the conditions adequate water to meet “there is clared Code, supra of the conditions see note Two needs,” and made immediate water use require applicant, and uses based for offstream liberal allowances turn, requested of the address the effect standard, reasoning “prima mere facie” on a public “rea- allocation on instream values: management that “careful defer use,” § HRS 174C- sonable-beneficial higher scrutiny to consider a level need 49(a)(2); in- public “consistent with [permit applications] analyzing the until 174C—49(a)(4). terest,” two con- HRS inadequate is water for com time when there overlap; defines “reason- ditions the Code truth, peting at 25. demands.” COLs in such able-beneficial use” “use water uncertainty regarding instream flow actual necessary quantity is economic any requirements prevented determination utilization, purpose, for a efficient adequacy present as to the consis- manner both reasonable and which justify any rigorous not supply and did less county plans land use tent with state permit applications than analysis of the (em- interest,” and the 174C-3 required event. would added). phases above, discussed the Commission troubled, therefore, As Com- are We erroneously as a examined instream use permissive di- mission’s view towards stream “competing use” under HRS 174C-54. versions, instream flow particularly while the Nevertheless, it properly construed ap- standards remained limbo. Such instream values as an intrinsic element proach only contradicts the Commission’s inquiry permitting process. involved in the conclusions, *59 findings and but also the own Code, Water the source the Model management logic water resource law of “reasonable-beneficial Code’s definition mind, in this these concerns in state. With 1.03(4), use,” stan see id. states permitting provisions turn the Code fea dard was intended to combine “best permits use issued water riparian use” under law tures” of “reasonable Commission in this case. prior appropria under and “beneficial use” commentary id. at 171.64 tion law. ch. F. WATER USE PERMITS As one of the authors the Model Water explained: Code HTF use contest WWCA They beneficial use” permits granted by Commission. A standard “reasonable matter, that, incorporates the “best general permit which features argue .as use and beneficial use” meet burden of both reasonable applicants failed to their required specific would be standard which proof. also raises various thus WWCA use, purpose of permits of the objections to the issued. examination (Second), 12.03(c)(2) (beneficial use). supra, generally 64. See Restatement Anderson, use); (reasonable supra, § 850A value, levels”). society its economic its value to in- maintenance of minimum flows cluding possible consideration harm continuing uncertainty to Due to the regarding society through Commission, harm body, requirements, instream flow balancing admission, and a by by harm caused fully apply its own could not against currently use methods avail- and assess the results of the “reasonable- able reduce or eliminate that “public harm. beneficial use” interest” tests under the Code. The thus Commission was Maloney, Prank E. Florida’s “Reasonable subject permits constrained to all to condi- Water Use Have Standard: East Beneficial” “providing tions for stream restoration if the Met?, and West 31 U. Fla. L.Rev. Commission determines that additional water added); (emphasis see also Model Wa should be returned to the D streams.” & O Code, supra, § commentary ter at 179 Therefore, although many at 30. pro-lee- (clarifying under the “consistent -with parties pre- ward criticize the Commission’s standard, public proposed interest” “a liminary WIIFS, designation they of the fail use, valid, which otherwise would have an to realize that the of a absence more conclu- unreasonably harmful effect fish or wild necessary sive determination of instream might rejected life being well be inconsis predetermined every aspect flows of the public with the express tent statement of decision, including Commission’s provision [the interest model for HRS issued, permits use tentative at best. ]”). 174C-3(c) thus confirm and We em phasize that the “reasonable-beneficial use” explained uncertainty We that the above standard and the related criterion of “consis by the lack created of instream flow stan- public with tent demand interest” exami dards modifies nature Commis- proposed only nation of the not standing use analysis, but sion’s does reduce the level alone, but also in public relation to other scrutiny apply. Similarly, it must such private particular uses and the water source uncertainty permit appli- does not excuse Hence, question. permit applicants re affirmatively justifying pro- cants their questing water diverted from streams must posed uses insofar as circumstances allow. duly into public take account the interest minimum, very applicants At prove must Dunn, instream flows. Shokal v. Cf. own their actual water needs. The Code’s (1985) (“[T]he 330, 707 Idaho P.2d use” “reasonable-beneficial standard allows all proof burden of as to cases where the only quantity necessary “in such a as is public ... appli interest lies with the rests for economic and efficient utilization.” HRS cant....”). added). Furthermore, § 174C-3 (emphasis case, prior unavailability advocating the instant besides social and economic proper uses, utility proposed appli- instream flow standards made permit their permit applicants’ justifying task of their cants must also demonstrate the absence measures, proposed practicable mitigating including more difficult. Had the Com- previously mission been able establish the use alternative water sources. Such standards, trust, more applicants requirement conclusive is intrinsic to the show, only respect would statutory protection have needed to instream use values, scheme,65 instream uses and that their and the definition “reasonable- use, impair designated (Second), allocations would not beneficial” Restatement *60 cf. 850A(f) 174C—31(j), §§ § instream flows. supra, See HRS -71 & h (considering cmt. the (last Code, paragraph); supra, “practicality avoiding Model Water adjusting of harm 1.07(6) commentary (explaining § at 107 that in the use method of use” as one factor provision 174C-31(j) the for riparian inquiry), model HRS is an “reasonable use” and granting any consumptive “prohibits part any balancing of of com- essential between interests, permit see, adversely e.g., use that peting would affect the Kahana Sunset above, 174C-71(1)(E) 65. As discussed re- Commission must also consider alternative quires existing permitting the Commission in to consider various sources or new uses in the solutions,” instance, "physical including analysis part of "uses water first as a of sources,” determining from alternative when in- “reasonable-beneficial” and "consistent with the public permit. stream flow standards. It is axiomatic that the interest” for a conditions Maui, uncertainty at This agriculture.” Id. 6. County 86 Hawai'i fied Owners Ass’n embryonic largely from the (explaining appears to stem 66, 72, 947 P.2d agricultural operations. state diversified analysis under Hawaii Environmen that on permits based Policy mitigating must mea The Commission issued the tal Act include demand, alternatives). Notwithstanding approximate but mandated re- and sures any permitted into and tentative nature lease unused present uncertain therefore, streams, permit ap at and process, windward id. conditioned permitting permits on a final of water plicants still their actual determination must demonstrate and, years, Al- quantity five id at 30. constraints of available use within the needs draining though appear appropriate at knowledge, propriety of these measures time, permits satisfy those that should needs. we reiterate streams actual water needs.
reflect Generally, Agriculture, 2. Diversified specifically Commis- WWCA contests the of2,500 per Allocation Gallons and the 2,500 per per provision gallons acre sion’s Day per Acre day (gad) every for acre of land diversified outset, agree At the we only fraction of such agriculture, where matter, general as a Commission any given land is in actual cultivation at time. agriculture on land zoned diversified dispute does not the reasonableness WWCA agriculture is with the consistent 2,500 gad figure applied acreage policies in use fulfills state interest. Such actually in cultivation. Parties testified use, and beneficial water favor reasonable amounts, higher support lower and but agri agriculture, diversified conservation “more selected this conserva- Commission lands, self-sufficiency and cultural increased “starting point,” noting figure tive” that XI, §§ 1 Const. art. this state. See Haw. adjustable and will evalu- “it is an number Moreover, 174C-2(c). 3; in this & HRS periodically upon request, based on ated case, primarily considered Commission experience.” the best available data and field applications agricul granted permit asserts, however, that the Id. 6. WWCA existence, already adding the tural uses per-acre figure every application of this and, if appropri that would caveat “revisit land, including ly- those agricultural acre of ate, existing permits if ground-water reduce fallow, ing “gross in a resulted over-alloca- is available and reclaimed water becomes exceeding far actual need. tion” of water allowable, subject to economic health hear- evidence at the uncontroverted D For time & 0 considerations.” ing establishes that leeward farmers cultivate therefore, disposi being, the Commission’s only any to one-half of their land at one-third more maintains the interim solu tion or less testi- given time. This evidence includes the during the contested case hear tion reached Sou, mony Larry and Alec of farmers Jefts ing positive effects on the windward on which the Commission based its determi- resulting streams therefrom. Because 2,500 gad figure. nation The Commis- must still determine ultimate Commission that, according sion observed its decision validity present allocations relation Sou, any point, they maximum “at one requirements, depending on to instream (½) ground crop have in actual is one-third water, nothing availability is of reclaimed ( n ) land, two-thirds of their while the other standpoint. For long-term settled from harvest, stages plow down and in various however, present apart from purposes, disrupt buildup.” Id. arid aeration insect yet questions regarding actual unanswered mitigating practicable measures needs proffers Campbell Estate the Com- alternatives, say cannot upon testimony dem- mission’s reliance Sou’s accommodating existing erred in duly consid- onstrates the Commission *61 restoring agricultural uses while instream 2,500 gad allocating in uncultivated land ered flows. every acre. Nihonkai further cites Sou’s testimony decision, his direct that estimated its admitted written the Commission 3,500 gad duty represented of to on actual for diversi- “a lack of data added.) average all given over acres (Emphasis mgd all acres Instead the .186 irrigated are at one time. In actual that Sou confirmed would be un- “sufficient” (54,000 practicality, conditions, as much 2” as of water der efficient use Sou received gallons/acre) 2,500 necessary crop is gad every when a is one acres he Nihonkai, planted. first irrigation After leases from inmgd the initial to .48 total. D 15,000 germinate, range water is at a & O at 21. set
gallons per day (gpd) gradually re- Larry Jefts’s with Campbell lease Estate 6,000 gpd. duced to The amount of water “Average usage states: annual ... is esti- vary will depending upon used crop, 2,500 per day per mated be acre of arable season, weather, long how a field was fal- added.) being land (Emphasis cultivated.” low, and market factors. quoted language The Commission in decision, peak
There will be times when is at id. but still allocated water for However, importance. vital during Jefts, certain all 620 regard acres leased to without months, average seasons or will cultivation, we as acreage actually in id. at 21. 5,400 [gad]. much During periods Finally, other Commission noted because 1,800 using [gad]. be as little as per-acre require- the much lower 1,800 agriculture, ments diversified added.) (Emphasis hearing, At the reit- Sou 5,400 gad, compared previously average giving erated that “the we are is an grown 7,500 10,000 sugar, gad, land, average on period all land over would purposes become available for other years.” In questioning Sou about his esti- acreage if planted.” “even the same was mates, Commissioner Miike stated: “I know added). (emphasis COLs The Commis- all your you’re 3500[gad] across saying lands sion, nevertheless, 2,500 assigned gallons per considering fallow land....” Accordingly, day to as much as two or three times the asserts, Nihonkai the record evinces that the acreage actually planted, resulting per- in a Commission in included fallow land its calcu- duty apparently approaching acre that of lations. sugar contradicting the Commission’s occasion, however, appar- On another Sou 2,500 description gad aas “more conserva- ently acknowledged gad figure that ap- figure.” tive plied only actually to land in cultivation. The transcript part: reads relevant “A reviewing judge must court propriety agency solely by action Q:' Now, you signed that lease grounds agency, invoked and that 2,325 says [gad] Nihonkai will rea- be clarity basis must be set forth with such as to sonably your pur- sufficient for cultivation understandable.” poses; right? isn’t that Louisiana-Pacific NLRB, Corp., Western Div. v. 52 F.3d A: Yes. (9th Cir.1995) (quoting Chenery SEC Q: your July And the chart attached to (1947)) (brackets Corp., 332 U.S. 196-97 you 18th affidavit shows that don’t intend omitted). quotation and internal marks to have more than acres cultivation at Here, patent incongrui the record contains time, any one correct? ties that the Commission’s decision does not Yes, exceeding A: run would into a satisfactorily resolve. The failure of the lot trouble. explain address and these math, Q: Okay. my according So precludes contradictions effective review of using 2,325 186,000 [gad] acres would total Electric, its decision. See Kauai Haw.
gallons (cid:127)per your day. according So 183-86, 590 P.2d at do 536-38. We not de figures your your lease, affidavit and in mand from the Commission written assess 186,000 gallons per day reasonably suffi- every piece testimony. ment evidence needs; your right? cient is that Nor do we Commission from foreclose the 2,500 A: provided allocating This would be sufficient gallons per day more than every aspect irrigation, per we accounted for if acre cultivation more is indeed nec line, having system shutting essary. best But where record demonstrates exactly peak.... off uncertainty when it’s at a conflict or considerable *62 164 115, 116, 1)5,
evidence, and 161 fac b. Field Nos. agency must articulate its Cozzens) clarity, (Gentry and analysis giving tual with reasonable discounting for the evidence some reason also 1.19 Campbell Estate received Shalala, See, rejected. F.3d e.g., 51 Green 115, 116, Í45, mgd for Nos. and Field (7th Cir.1995); 96, 101-02 Thompson v. Bow multiplied by consisting 145 total acres (8th Vemco, Cir.1988); en, F.2d that, 2,500 gad. at least The record reveals (6th NLRB, 79 F.3d Cir. Inc. v. 1995, Terry Ranch until Circle “C” Cozzens’s 1996). especially articulation is crucial Such (Cozzens) land for Hay Co. leased this & us, such as those before under circumstances forage production. In November interpreta small in the which variations 115,116, Campbell Estate Fields Nos. leased to vast tion differences of evidence lead Gentry (Gentry). Development and 145 to Co. has Because the Commission failed result. hearing, Campbell rep- Estate At the analysis, provide this minimal we vacate to “I have not resentative testified: been 2,500 gad figure and re adoption its of the [Gentry] they’re do- with on what discussion proceedings for further consistent mand ing, understanding they will my is that but opinion. this growing crops Nos. agricultural [on Fields 115, 116, no record 145].” and .contains Campbell Estate’s Permits crops type or amount of evidence Gentry As No. intends to cultivate. for Field Seeds) (ICI Nos. and 166 a. Field 161, the does not indicate whether record contests the Commission’s WWCA land, occupying is much less Cozzens still to Nos. and mgd allocation of .86 Field present his and the nature and extent of Estate, Zeneca, to leased Campbell 166 of Campbell as- planned operations. Estate (ICI Seeds). Inc., ICI Seeds The Com dba owns the master lease serts that Del Monte mgd by multiplying the mission derived .86 agricultural crops. grow No and intends to 2,500 by gallons acres of both fields total appears in direct of this intent evidence per day (gad). hearing, At per acre record. however, during its Seeds testified ICI basic information on current Absent such February, to peak season from November use, mgd of 1.19 pi'ojeeted and the allocation only and plants com 100 acres seed agriculture fields was diversified these 300,000 average only gallons of clearly We vacate the allocations erroneous. day, mgd. During sum per or .3 115, 116, Nos. and 161 Field months, only plants mer ICI Seeds “three proceedings remand for further consistent crops, com and four” acres of “some other opinion. with this very amounts.” small mgd Campbell Estate asserts the .86 c. Alternative Ground Water Sources provision sorghum allocation includes hearing, Campbell At the time of the soy cultivated ICI ICI bean also Seeds. permits pump mgd Estate held sorg- actually grown stated: “We have Seeds ground agri water from beneath lands for soy past still hum and beans purposes. argues that cultural WWCA grow sorghum, but main focus is on some our Commission, requiring Campbell erred express com.” did not inten- ICI Seeds water, longer in this no use Estate and, in increasing its corn cultivation tion of operations, in order to since OSCo concluded fact, space” ato need for “isolation testified minimize from windward streams. diversions Thus, plots corn. between its Com- using year-round mgd Regarding practicability .86 mission’s allocation of water, 166, nearly ground Campbell pumped three times its Estate Field Nos. 146 testimony during merely that “it average demand its four-month cites effect stated season, put require millions of infra- finds no record would dollars peak basis place pump clearly the alloca- structure in erroneous. We vacate aquifer Campbell for further Pearl Harbor wells tion to ICI Seeds remand currently opinion. which use Waiahole proceedings consistent with Estate fields *63 true, if Ditch water.” Even noting this broad present state- their existence and nonuse. meaning ment has little without evidence and finding One “Campbell states that Estate has analysis per-unit of the actual breakdown of permits well for mgd,” FOF and the these costs relative to cost of ditch water COLs section mentions a footnote that record, fact, and other alternatives. “[a]gricultural permits approxi- water use Campbell reveals that Estate supply up could mgd mately ground for Harbor Pearl mgd permitted to 6.16 ground of its water to water are still parties held various agricultural certain fields for as little 39as used,” being not [are] at 19 10.66 id. n. As per gallons. cents By compari- thousand out, Campbell points Estate the Commission son, pay leeward per farmers 35 cents thou- general did make various findings on the water, gallons sand for ditch county rate irrigation effects on aquifers, leeward many schedules indicate that other farmers sources, costs of developing other alternative dependent municipal supplies water pay growth future water demand. None anywhere from 60 cents to thou- $2.47 per answer, any of these degree reasonable gallons. sand OSCo used extensive amounts clarity, why practicable Camp- it is not for ground Campbell water on Estate lands bell Estate ground permitted to use water apparent difficulty, with little and Del Monte it and not otherwise use an alternative currently profit using turns pumped diverting the sole for source water ground on Campbell water Estate lands. streams, given windward especially the still Royal 0‘ahu Resort decided that it could unsettled state the instream flow stan- feasibly ground water from its on-site dards. and, accordingly, well applica- withdrew its In neglecting to the practicability address tion for water from the ditch. using pumped ground as an water alterna- The Commission maintained that diversion, tive to stream the Commission obliged it not any “is particu ensure that adequate failed to establish for basis lar enjoys subsidy guaranteed user ac granted Campbell allocations Estate. We cess expensive less water sources when to. thus Campbell permit vacate Estate’s alternatives are available and values proceedings remand further consistent are at stake.” agree. COLs at 19. We opinion. with this protection Stream and restoration need not expensive the least alternative for off- .be 4. PMI’s Permit “practicable” stream users to be from a broader, long-term per social and economic argues WWCA also that the Commission spective. uses, Unlike leeward offstream issuing mgd permit erred PMI .75 windward instream uses have no alternatives use, golf contrary legal course to its own ground cost to the windward water in regarding conclusions PMI such use. de- question. Recognizing that such water “is permit challenges fends its allocation and only supplement source base stream validity of the Commission’s conclusions uses, .... satisfy any riparian flow and [to] objections the first instance. PMI’s require appurtenant potential rights, agri offstream our initial attention. culture in the affected area and enhance .... Bay estuary ment the Kaneohe and fisher “Existing a. Use” ies,” id. at conditionally error, approved point As agricultural its first PMI con leeward “[i]f ground until designation treated effluent or tests the Commission’s PMI’s available,” “new,” id. at 28-29. The opposed Commission’s use as to “exist decision, nonetheless, ing,” fails to Camp discuss use under the Code.67 174C- 50(c) (1993) ground permits beyond bell Estate’s provides part: in relevant pro- explained why 66. The same agricultural section in the Commission’s retains these permits seeking posed "Agricultural while windward Oahu water for decision stated: water use agriculture.” permits approximately mgd for Pearl Har- ground (and used) barely bor by water are still held argues point 67. WWCA that the is immaterial Campbell Campbell Estate. Estate has "existing enjoy greater rights because uses” no express ignore statutory deadline ex- permit for a continue application An *64 isting permit applications. a existing must be made within use an use from, date period year one effective 174C-50(c) § HRS allows Commission management designation [of the water cause,” “just filings based on accept late rights, Except appurtenant for area]. fail- accept- precludes the Commission but period creates a apply within this ure to years applications than five ing late “more use, presumption abandonment implementing of rules the effective date after user, if to revive the user desires promulgated chapter.” this Commission use, permit apply must for a under 27, implementing May rules the Code on the commission deter- section 174C-51. If and, thus, any accept late could not just is cause for the that there mines 27,1993. May None of the applications after file, filing. may allow late failure to this deadline. applications in case met However, may not allow a the commission argues PMI that the Commission’s literal years filing more than late after five 174C-50(c) § an reading leads to of HRS implementing this date rules effective deadline insofar as it set the absurd result chapter. expiration filings for late before added). case, In this the Com (Emphases following designation one-year filing period aquifers as designated the windward mission management To con- of the water area. management areas effective ground water legislature trary, could we believe 3, 1993, July 1992. On June Waiáhole filings rationally allow late intended to have (WIC), oper Company former Irrigation during period an of transition to only initial ditch, joint water use ator of the filed regulatory system under the Code. We parties permit application on behalf of the in no error the Commission’s adher- thus see at that time. The using from the ditch 174C-50(c)’s express § terms. ence HRS application no mention PMI. On made 14, 1994, an amendment to WIC filed June questions Finally, timeliness joint application. The amendment mere aside, not an PMI’s use constitute “ex does in exhibits ly to PMI the attached referred isting contemplated by as In use” the Code. many existing proposed along with other ease, “existing identifying in this uses” 0‘ahu, most of which golf courses Central premise proceeded from the from the Octo did not ditch. On seek ‘existing in the term use’ used that “the filed another amendment ber WIC Code, 174C, chapter for pur HRS Water including applicant; PMI finally PMI as poses permits, use refers those of water 3, 1995. February application on filed its own desig particular as of the date a area uses requested an submissions Neither these management area under as a water nated permit “existing for PMI. use” 174C, underlying con This Part IV.”68 HRS however, clusion, plain contradicts the read points acquire that it did not out PMI 174C-50(a) (1993) ing of the Code. HRS question until foreclosure sale property existing in a uses of water “[a]ll also cites states that on 1994. PMI November management ... designated water area testimony representative that the of WIC’s 1, 1987, only July joint application in continued PMI from omission of after July permit issued accordance with sections and the first amendment 174C-53(b).” (Em 174C-52, 174C-51, oversight part.” my These exi- “was an added.) 174C-50(b) (1993) phasis compel the Commission to gencies do sibly contrary, subjects higher "new uses” to a standard the Code "new uses.” On the than gives "existing” legal priority over "new” uses "existing uses.” than permitting process. See HRS in the uses 174C-49(a)(3) (requiring applicant for a new originally in- The Commission advanced this interfere the use "will not to establish that use with case, “existing terpretation use” another water”). legal existing use of also Supply Appli- Water Water UsePermit re Board of Agricultural, 83 Hawai'i Ko'olau Koolaupoko Manage- Water cations Ground preferences (“Existing given are (Oahu), Declaratory Ruling DEC- No. Moreover, ment Area Code....”). out, as WWCAit under the 5, 1995). (April 0A94-G3 points the Commission’s decision osten- self provides PMI, golf-course irrigation qualifies further that “the commission shall as an permit “agricultural issue a of a the continuation under use” the Code. July if in existence on criteria in policy favoring PMI cites the “max- Code’s (a) existing subsection are met and the use is imum ... purposes beneficial use such as (Emphasis reasonable beneficial.” add- uses,” ... irrigation agricultural and other ed.) provisions initial These the Code’s 174C-2(c) added), (emphasis sup- §HRS “ “existing section on uses” establish port argument ‘irrigation’ for its is and legislature “existing intended term use” *65 always ‘agricultural’ was an use.” PMI existing July to refer to uses the provision. reads too much into this lan- The Code, of effective date the see 1987 Haw. guage question “agricultural in confirms that 102; § Sess. L. Act 10 at also see infra irrigation, uses” entail but does not ren- (listing analogous provisions note 98 in other “irrigation” “agricultural der synon- and use”
jurisdictions).69 We thus hold that the Com- ymous or coextensive. 15,1992, in identifying July mission erred the “change “any in The Code defines use” as designation ground of date of the windward change modification or in water use or from areas, management water as the relevant domestic, municipal, military, agricultural to “existing for cut-off date uses” under the (including agricultural processing), or indus- Code. 174C-3; § generally trial uses.” HRS see PMI, According prior to “[t]he owner of (1993) § (requiring permittees HRS 174C-57 property PMI began using the Waiahole seeking change apply permit for use Ditch water the late summer or fall of modification). PMI contends because 1991.” property The water use on the PMI irrigation privately golf of a owned course entirely postdates July apart 1987. Even statutory meets neither the definitions of “existing from the untimeliness of PMI’s use” use,”72 “municipal “domestic use”71 and nor therefore, permit application, PMI’s use did meanings “military” the common of “in- or not meet Code’s “existing definition of use,73 elimination, process dustrial” it use.”70 “agricultural must The constitute use.” case, however, any instant not does involve b. “Agricultural Use” use,” believe, “change and not we do event, objects any also legislature PMI Commis that intended golf possible sion’s classification of water for limit use the universe use classifica- “nonagricultural According single pro- courses as use.” tions to those enumerated this provisions reporting management per- 69. The water Codé corrobo- nated area” without a reading, requiring "[a]ny mit, person making 174C^48(a), this rate regarding HRS silent any use of [to] water area the State file a July uses initiated after 1987 but before water year person's declaration of the use within one context, designation. management In this area implementing from effective date of the rules say erred in we cannot Commission 174C-26(a) (1993), chapter,” this HRS and allowing pending Com- PMI’s use continue mandating the Commission issue "certifi- mission's final decision. confirming cates” based on these declarations usage recognized "shall be com- “ any 'Domestic means use of for use’ 71. resolving relating existing mission in claims personal pur- needs and for household individual rights including appurtenant and water rights, uses poses drinking, bathing, heating, cook- such as use,” riparian and correlative ing, gardening, noncommercial and sanitation.” added). (emphasis pro- 174C-27 These §HRS 174C-3. legislature's visions reflect inventory intent limit the "existing rights and uses” to those “ Code, existing adoption at the time of the domestic, ‘Municipal use’ means the indus- 72. than some rather unidentified future date such trial, through pub- and commercial use of water designation management of a water area. county persons lic available to of a services health, protection promotion of their however, agree, 70. We do with WWCA’s con- comfort, safety, protection proper- for the necessarily prevented that the Code tention fire, ty purposes listed under the from allowing PMI to continue its term use’.’’ Id. ‘domestic pending use Waiahole Ditch final application. Although decision on its the Code withdrawal, diversion, "any Code define terms. prohibits impound- does not these ment, any consumptive desig- use water in Indeed, golf “agricul- “Nonagri- Treatment courses fit c. Distinctive vision. readily any of cultural category no more than Uses” tural” others, comparisons suggested be- require legal its discussion cultivating growing land cover and tween permits, the Commission ments for use crops notwithstanding. legislature ap- expressed repeatedly to hold intention agreed, amending pears recently to have course, “golf “nonagricultural such as uses” clarify “agricultural use” means Code to irrigation” to parks landscape different growing, process- “the of water for the other uses in standards and conditions than livestock, aquatic ing, treating crops, that, in Having concluded times of case. animals, plans and ornamental flowers greater competition, the standard review “existing foliage,” agri- and that and similar higher, agricultural would alternating “replacing use” means cultural “existing golf stated that Commission further crop any agricultural cultivation non-agricultural existing course and other crop, agricultural shall not other which subject already higher to this stan uses are *66 change as in be a use.” HRS construed dard, light higher in for windward uses added). (Supp.1999) (emphases § 174C-3 water, including retaining water in surface 27. at The Commission streams.” COLs points that PMI out under state “non-agricultural in that uses also concluded law, agricultural land in use districts golf landscap Leeward Oahu for course and facilities, “open clude area recreational in ground uses which could utilize available ing ranges.” cluding golf golf driving and courses carry heavy a treated ... effluent 205-2(d) agricul (Supp.1999). §HRS State why to show stream water should be burden districts, however, tural also include “wind origin,” out of id at diverted its watershed farms” machines and wind and “small-scale out “[t]he and that use surface water meteorological, quality, air noise and other irrigate golf side to courses in the watershed and data collection scientific environmental region an will arid not be reasonable bene monitoring facilities.” The inclusion Id. alternatives, including ficial if reusable use “agricultural of a in under a use districts” wastewater, are available and other needs separate land not establish use statute does upon dependent exclusively surface water “agricultural” as allocation use frustrated,” id. at 24.74 on would be Based purposes. conclusions, these the Commission decided subject require special will to that “[PMI] golf irrigation classifying In course including duty to alternative ments seek use,” ap “nonagricultural as the Commission reasonably they are available sources when irrigation parently golf that course decided in and that “Mililani the near future” Golf policy than raised different considerations duty to also has a use alternative Course “agricul typically those associated reasonably they when available.” sources are attempt PMI not to tural use.” does discred Id. 25. it determination of fact and this mixed law erroneous, merely rulings clearly argues but that the PMI asserts that these are arbi- trary, capricious, to an of discretion. by Commission is constrained statute des abuse First, “agricul They nothing ignate golf irrigation although of the sort. course are permit approach PMI it tural use.” Such an contradicts asserts that received different similarly objections rigid categories. allegedly than own conditions situat- PMI’s (MGC),75 support in Ac Mililani Golf the Commis- It also finds little the Code. ed Club requires PMI sion’s in fact both cording due deference the Commission’s decision interpretation, hold that the MGC to use alternative sources when reason- Commission Moreover, ably assuming excluding golf irrigation in did not course available. even err imposed category “agricultural that exclusive re- use.” the Commission party appeal. pro- "[a] is not to this 74. The Commission further ruled that MGC posed golf would show course use have to (emphasis no alternatives are available.” id. added). (1958)). “nonagricultural ease,
strictions on
not
use”
shared
5.01
this
Treatise
ease,76
by
required
other uses
such
measures Commission was
law to rule on
lay squarely
ap-
within the
competing permit applications,
Commission’s
the various
pointed
weighing
PMI,
negotiating
including
function
by way
adjudica-
that of
of an
competing
regulating
interests in
the water
proceeding.
Agricultural,
tive
See Ko‘olau
See, e.g.,
resources of this state.
(“At
HRS
One useful distinction between its func- [I]n tion[,] adjudication is agency frequently that “the former affects must decide rights of individuals the abstract controversies basis of doc- new ...[,] trines, operates concretely spe- [the while not applied latter] theretofore to a problem, upon capacity.” though individuals in individual their cific drawn to be sure 466-67, (quoting at 918 at principles reflecting Id. P.2d 568-69 1 broader Davis, purposes Kenneth C. Administrative Law of the statutes involved evidently subjected agricul The 77. HAPAdefines a "rule” as requirement a tural uses to similar native to seek alter agency general particular each statement of or concluding it would sources "revis applicability implements, future and, effect existing ground appropriate, if it reduce interprets, policy, prescribes or law or de- permits or if reclaimed water becomes avail allowable, subject organization, procedure, prac- able and is to economic and scribes 8, considerations,” D health & O at requirements any agency. term tice ground "[i]f and until treated effluent or water is regulations concerning only not does include available, strong the State has interest in re management agency the internal of an and not lands,” taining agriculture on COLs these at 28- affecting rights private procedures avail- 29. The to all standard conditions attached is public, to the nor able does term include permits proviso include that: sued permit "This declaratory rulings pursuant issued to section by may be modified the Commission and 91-8, intra-agency nor memoranda. initially granted per- of water the amount Id. may mittee be reduced if Commission deter necessary adequate ... mines it is to: c. insure conservation measures....” D & O at28. 170 giving prece- dealing Accordingly, we hold that
from the rules invoked
prior
commission decisions
deci-
dential effect
problems.
agency
If the
related
rule-making.
constitute
adjudicatory
... does not
sion
under
reached
precedent,
guides
power
becomes
467-68,
at
Hawai'i
569-70
81
way
conduct in much
same
future
(footnote
(some
original)
omit
alterations
promulgated
though it were a new rule
ted).
rule-making power....
under
PMI,
Aluli v. Lew
The decisions cited
591-92,
(1992),
Shoreline,
in,
56,
Vega
P.2d
P.2d
decisions, “[ajdjudicated may regard, present and do In this case more eases Electric, closely parallels ... Hawaiian wherein as vehicles for formation serve applied light an- agency which we held the uncertain health policies, are fields, therein,” electromagnetic “general- the Public and such eases effects nounced properly ly guide agency decided provide a to action that the Utilities Commission may cases. transmission lines expected place to take future whether electric Subject underground by way adjudication qualified role of deci- rather stare 468-69, 471-72, process, they rulemaking. id. at than sis in the administrative 570-71, Likewise, at do precedents.” Wyman-Gordon 573-74. serve Co., 765-66, the Commission abused its at at not believe that 394 U.S. S.Ct. case-by-case pursuing (emphasis original). Aerospace discretion in evolu- See Bell Co., adjudicative policy through 1771. at tion of water use 416 U.S. S.Ct. proceedings hearing. ticability using such as instant ground We water stands analysis thus hold that the Commission’s distinctive odds with the Commission’s own “nonagricultural treatment of concerning nonagricultural uses” decision uses. “illegal decision did constitute permit rulemak- We PMI’s vacate remand ing.” proceedings in further accordance with the
decisions of the Commission and this court. Application d. the Commission’s Standards Moving Average 5. Twelve-Month
Our objects affirmance of the distinct stan WWCA to the Commis nonagricultural dards for developed Moving Average sion’s use of 12-Month (12-MAV) this case us leads to measure leeward uses. Accord allegation WWCA, WWCA’s ing the Commission the 12-MAV “almost allows apply time, failed to per these standards to PMI’s given unlimited” diversions at but application. mit required especially months, The Commission during drier so summer PMI and long MGC to use alternative sources diversions are offset these below- available,” “reasonably when observing average year. use over the rest This golf the use diverted arrangement, stream water for argues, WWCA reduces the irrigation in region course an arid would not incentive to conserve water and frustrates protection. be reasonable-beneficial if alternatives were efforts at instream use stated, previously available. supra As we see previously, As noted the Commission found III.F.1., Part and the Commission itself rec high, “throughout consistent base flows ognized, supra see note all users have year” was “essential” stream duty practicable to seek alternatives when estuary ecosystem. Despite finding, conflicting public faced with interests. Re practical Commission did not address the however, garding specifically, PMI WWCA effect on the base flows of 12-MAV asserts that the Commission failed consid streams, simply windward but observed: already er alternative sources available to “The 12-MAV allows seasonal fluctuation PMI, namely, pumped ground water. demand], generally [in offstream and is used testimony, PMI reporting requirements.” adduced and the for all D Commis- water use found, original developers sion that the ignores had O at 12. This & blanket rationale planned caprock irrigate well water to apparent stream di- differences between golf course under much “rosier” econom- versions and uses from other present. ic than aquifers.78 conditions FOF sources such as basal *69 insight This offers regarding little the cur- Campbell Commission and ar- Estate practicability using of rent such In water. gue that of unused water into the the release brief, requiring its PMI declares that PMI to requirement permittees streams that and the caprock the use well water “would render the pay provide adequate for their water use golf economically PMI course unfeasible.” safeguards. properly if to Even limited actu- question Although the of relevance PMI’s however, need, may al still offstream ability water, pay current to the record subject windward streams to extreme and demonstrates, any event, that alterna- potentially harmful flow fluctuations base supply ground tive of water would cost a year. disputes over the of a No course one per of gallons blended rate 58 cents thousand agricultural the nature of variable water de- users, PMI, including to various leeward corresponding mand and the flexi- need for opposed per gallons to the thousand $1.20 decision, however, bility. Nowhere its did pays that PMI for Waiáhole Ditch water. duty to the Commission fulfill its consider grant requested impact fluctuating of of in- PMI’s allocation the diversions on any prac- practicability without reasoned flows and discussion of the stream base the storage aquifers reducing 78. The sustainable characteristics based draft rates less than the yield periods.” during Department allow "draft rates in the other excess sustainable Honolulu, yield periods high during Planning, City County demand and low General & (1990). recharge, Management long compensation § so as there is Oahu Plan 2.4.1 Water maily request application. D & specific mitigate to denied adopting measures Conceding “operational losses 11. that impact. occur,” however, Commission declared: portion and remand this We vacate presented no “Because there was evidence In order to Commission’s decision. present for the concerning any demand use mitigate impact of offstream de variable water, water should and because of Kahana flows, the base Commis mand instream wasted, temporarily be Commission coordi measures such as sion shall consider recognizes mgd 2.1 Kahana surface wa and rates of offstream nation of the times operational corresponds approximately to ter reservoirs, uses, and use construction also Id. at 5-6. The Commission losses.” period of a shorter time over which jurisdiction that it lacked over the asserted see, average usage, e.g., HAR 13- measure an permitting of Kahana surface water and 171—14(b) (requiring the Commission process nounced its intention initiate average in meas to consider a three-month designating the Kahana watershed as a uses).79 necessary, If uring existing management Id. at water area. 6: surface designate so WIIFS higher accommodate offstream demand perceive defects in We several year. See HRS 174C- times certain reasoning. First and most Commission’s (defining as a “instream flow standard” suggestion retaining flow, troublesome is depth “required of water quantity, waste, contrary water in streams constitutes specified ... times present at certain be ” added)). protection. public trust mandate year (emphasis Second, any apart management water STREAM SUR- G. OF KAHANA USE juris designation, the Commission has area FACE WATER TO COMPENSATE any dispute regarding “to diction hear DITCH LOSSES” FOR “SYSTEM protection, permits, or consti resource interests,” tutionally protected see also contests Commis WWCA (1993),80 investigate § 174C-1Ó and to mgd 2.1 from Kahana Stream to sion’s use of response appropriate action” in and “take sys ditch operational losses from the cover wasting ditch is allegation WWCA’s decision, the proposed In Commis tem. operation upkeep, water due deficient operator request ditch sion denied (1993).81 Third, rely 174C-13 see HRS recognition system mgd “as losses for 2.0 inaction, justify ing on a lack of evidence that such losses “shall be as use” and ruled ignores its own affirmative the Commission permitted use in part of each considered a statutory duty trust and subject under the shall to the over system, protection to investi [, scheme instream use permit ... shall be cap and] all within each consider, gate, protect interest im proposed and addressed identified The Commis supra in the flow of Kahana stream. plan[, note.79].” see plementation decision, duty recognized this when it again apparently sion final the Commission for-. Presumably, matter shall be made have al- The final decision on some such measures ready "Implementation adopted the commission. been *70 added.) required agricul- (Emphasis that the Commission Plan” users, operator along with the ditch and tural DOA, provides part: § in relevant within six months of the Commis- 81.HRS 174C-13 to draft to "coordinate and facili- sion's decision order any complaint person com- If files a delivery D & at of water.” tate any wasting person other is or mission that polluting diversion, making with- water or is 80. HRS 174C-10 states: drawal, impoundment, consumptive use wa- any activity occurring within or other or ters Dispute The commission shall resolution. area, management not ex- a water dispute outside any jurisdiction to statewide hear have regarding of exempted code, pressly without a under this protection, resource water water permit required, the commission constitutionally where one is protected permits, water in- made, investigation terests, take shall cause an be water where there is insufficient action, water, notify complainant appropriate and competing whether or meet needs designated as a thereof. area involved has been not the added.) chapter. (Emphasis management area under this water petition designate subjects considered the ground Wind ment both area and surface ward as a management 0‘ahu surface water water designated diversions from the area to area in 1992. The Commission decided not statutory permit requirement. on petition to act at that time based argues WWCA that the allocation of water “designation staff recommendation that operational losses is wasteful and dis- ground protects water surface waters and courages system repairs. Campbell Estate essentially comparable designation necessary counters that such losses are and Kahana, Poko, [the surface water in Ko‘olau compare favorably inevitable and with other systems.” aquifer Waimanalo] In the systems express opinion nationwide. We no case, however, present the Commission con time, on this at this merely issue but decide that, designating cluded without a surface that the Commission must scrutinize such an management area, “jurisdic water it lacks allocation proposed as -would other permit tion” to regulate or otherwise surface “use,” pursuant permitting process. to the water diversions from Kahana stream. remand, On the Commission shall consider The Commission’s apply rationale would permit application mgd for 2.0 to cover any surface water diversion from windward system losses and determine whether this watersheds; extreme, taken to its it would request is appropriate given the still uncer- anyone permit allow require- to evade the flows, tain interest in instream by simply ment diverting same any practicable based on actual need and above, below, rather ground. than measures, mitigating including repairs to the Although presumes prior desig- Code system. ditch management nation of a water area its permit requirement, see HRS 174C-48 H. KSBE’S POINTS OF ERROR82 (1993), prescribes different criteria for Zoning Requirement I. designation ground surface permit application, KSBE re - areas, 174C-44, management §§ see HRS for, alia, quested mgd golf 4.2 inter course (1993 Supp.1999), provisions & these landscaping connection with its should not rigidly be construed so proposed by Gentry” development. ‘Waiawa absurdity, yet, create or worse to circum- request The Commission denied the without vent Commission’s constitutional and prejudice reapplieation “at such time statutory obligations. The Commission rec- proper [KSBE] obtains the land use classifi ognized integrated nature of the waters cation, plan development approvals, and zon present collected the ditch in its decision. ing changes, and when it be determined 13-169-20(3) (“Recognition See also HAR that the actual of water will use commence given shall interrelationship natural proposed within a reasonable time frame waters.”). ground between surface and This proj COLs at 27. KSBE as ect.”83 similarly beyond court has looked artificial serts that the Commission in conclud erred surface-ground distinctions with the under- ing that proposed KSBE’s water uses must standing part that “all waters are of a natu- zoning conform with classifications addi ... constituting part ral watercourse other, general tion to plans land more body moving whole Reppun, water.” policies. (citation omitted); Haw. at 73at supra dispute see also Part III.B.3.a. begin, Given un- To KSBE does not disputed interrelationship finding direct between although the Commission’s I Phase case, ground surface and in this development develop- waters had received therefore, designation plan we hold that approval, ment Phase II had not. FOF ground Windward manage- requested mgd 0‘ahu 496. Much of KSBE’s 4.2 *71 error, points one granted mgd 82. As of its KSBE contends 83. The Commission KSBE 0.17 by rejecting pro- that the Commission erred its existing agricultural D uses. O& at 8. KSBE, however, posed findings. pres- not does any supporting argument, ent and our review of record does not demonstrate the Commis- clearly sion’s action to be erroneous. thus, general develop- fall under Commission’s to Phase II allocation related authority, § permitting see HRS 174C-48. respect part to that of the With ment.84 therefore, KSBE, however, argues objection that the Commis fails application, KSBE’s sion, manage by regulating separate on its own terms. water effectively proceeding, ment areas one cre 174C-49(a) permit requires appli- § HRS new, management consolidated water ated use,' proposed cants to establish that their complying statutorily with area without “(5) consistent with state and inter alia: is §§ HRS 174C-41 procedures, mandated see plans designa- county general and land use (1993 disagree. Supp.1999). & to -47 We (6) tions; county with land is consistent [and] merely provisions pro The cited describe the plans policies....” (Emphasis add- use designa management for water area cedures ed.) Zoning nothing than a “land other tion; way they require no the Commis do argues designation.” Although KSBE sion, management water once establishes merely “imple- zoning classifications areas, compartmental regulate them a plans, it development cannot erase ment” Indeed, the Code’s abolition of ized basis. practical, legally distinction established against common law restrictions water the two. See Revised Charter between “beyond overlying land or transfers and uses § County City and of Honolulu 5-408 174C-49(c) watershed,” (1994) § HRS (“development outside the plans”); id. 6-907 (1993), approach. ordinances”); tends to belie such an also (“zoning see GATRI v. course, Blane, 108, 112-15, 367, Commission, designate must Hawai'i water specific (rejecting argument management findings based on 371-74 areas independent community plan no general relating particular had area. See HRS each apart zoning). 174C-44, designa from independent §§ Given force effect -45. But statute, regula we cannot plain language preclude tion does not consolidated requiring here, say where, delivery system Commission erred tion water zoning compliance county classifications. from several different water draws water
management areas. Sys- Regulation the Ditch 2. Unified by provisions invoked fail to Other KSBE tem contradict, support, flatly argument its objects to the Commis also KSBE regulate by must that the Commission water Sys Ditch sion’s treatment the Waiáhole 174C-50(h) (1993) hydrologic units. HRS integrated regulatory single unit for tem as competition arising addresses between exist- out, part purposes.85 points As KSBE “they ing draw water from the uses when system underlying its lands on Waiawa hydrologically area and same controllable part side of Ko'olaus and the the leeward quantity aggregate water consumed collecting side lie water the windward appropriate exceeds the sustainable users hydrologic respectively, units: separate yield or flow standards established instream ground management the Pearl Harbor water (Emphasis pursuant law for the area.” and the Ko'olau Poko and Kahana area added.) “hydrologic unit” The Code defines KSBE ground management water areas. ground drainage area or as “a surface contends that the Commission exceeded two,” basin or a combination statutory authority bounds reason 174C-3, “hydro- but does define by collectively regulating drawn from plain logically area.” The read- controllable hydrologic units. different ing of the latter term indicates that the area system qualifies, “controlled” the ditch question All the lie within lands and, “hydrologic designated management irrespective of units.” areas 1,88 motion, proceedings, average bifurcate the the mea- use to be 84. KSBE estimated its mgd mgd completion I at the of Phase and 2.92 ditch flows at Adit and the alloca- surement of at full build-out. of water drawn from KSBE’s lands to other tion parties. specifically the denial of the KSBE contests order, proposed staff's and KSBE's *72 174C-53(b) (1993) requires contemporaneous HRS consolidation or Commission, acting permit in applica- hearing on a will be proper conducive to the tion, only objections to consider “those filed dispatch of its business to the ends by person a has property who some justice unduly delay interest pro- and will not any hydrologic land within the unit from ceedings. sought by applicant which the water is to KSBE criticizes the Commission’s unified directly be drawn or who bemil and imme- system “arbitrary, treatment of the ditch as diately by proposed the water use affected capricious and inconsistent with the laws added.) application.” (Emphases Not- gravity,” “patently absurd” and “fictitious.” withstanding alleged independence Initially, apart pointing out that water hydrologic involved, units allocations from by gravity through flows leeward force portion system the leeward ditch “di- lands, underlying manmade tunnel its KSBE rectly immediately” affect the windward proven developed has not the water parties any insofar as allocation of the lee- not, conditions, its lands would under natural supply proportionately ward reduces the windward, way thereby affecting find its amount of water otherwise demanded from event, In windward stream flows. we terms, By therefore, windward streams. its believe that the Commission’s consolidated 174C-53(b) allows the consolidated approach in this case demonstrates re- due regulation single of a diversion such works gard for the direct and inevitable interrela- System. the Waiahole Ditch tionship among the waters collected Finally, although KSBE insists that system. system’s ditch Given the existence manage Commission must the “source” of operation, no continued we consider it water, very provision it cites states: regulation more absurd a unit or fictitious place “Water “aquifer systems” source” means a -within or than the various and “sec- tors,” may developed, units,” from which is or water “hydrologic manage- and “water (1) including but to: generally, not limited ment areas” it traverses.86 such area as watershed defined reasons, foregoing For the we hold that boundaries, topographic or a definitive regulating did err in the Commission (2) ground body; specifically, water Waiahole Ditch infrastructure as unified stream, particular other surface system. regulation consolidated tunnel, body, spring, or 'well or related single comports entirely diversion works combination thereof.” comprehensive the Commission’s function of added). (emphasis §HRS 174C-3 management. planning and HAR expressly 13-167-31 autho- Rights” 3. “Ali‘i pro- rizes the Commission combine related ceedings, providing: alleges that KSBE the Commission commission, upon wrongfully ignored abridged
Consolidations. The its “ali‘i its motion, upon rights” denying permit application. own initiation or consoli- its essence, “sovereign preroga or hearing purposes date for for other KSBE claims may contemporaneously along recognized consider two or tives” over water the lines McBryde progeny, by proceedings more which involve substan- and its virtue of tially parties legacy same or issues which are status “the of the Kamehameha related, closely the same or if it finds ali‘i.”87 assigns significance permit ap- particular properly
86. KSBE Commission denied KSBE’s result, representations by nothing both plication. illegal leeward and windward we see As a parties during proceeding one that no but allocating irrational seeking KSBE was water from KSBE’s lands. flowing otherwise into the ditch from KSBE’s matter, agree practical We as a the Com- permitted lands uses elsewhere. has mission water drawn from allocated parties. other KSBE’s lands to leeward Kanahele, generally George S. Pauahi however, object permittees, leeward do not (1986) (documenting derivation of 164-66 so, they sensibly disposition, do nor could lands). KSBE given the indivisible nature of the ditch’s flow. objection, As have for KSBE's held that the *73 Peck, 1387-39; 661-63 state a P.2d at Haw. at have held that the has We cf. rights (rejecting duty protect to Native Hawaiian the claim that the owner trust acknowledge larger part ahupua'a superior to water. also KSBE’s of an had We background rights paramount”). a charitable trust need not unique as as “lord We by repeat analysis ably presented a Whatev in those founded Native Hawaiian ali‘i. significance legacy may carry, legal disposing argument this in er of KSBE’s decisions however, certainly grant not KSBE does here. right or to all
“absolute” “undiminished” with its lands. KSBE’s water connected Rights 4. Correlative all, sovereign right, first claim of must parties appeal, to and Two this KSBE yield sovereign ultimately to which it Castle, rights” ground assert “correlative XII, (pro appeals. art. See Haw. Const. by prede- collected the ditch. Castle’s water customary rights and viding traditional applied permit a as originally cessor subject right “the State to are ditch of the Uwau Tunnel of the “owner” rights”). regulate such To the extent system mgd approximately 2.7 sovereign authority exercised over ali'i Com- ground water derived therefrom. The water, they by authority dele received such ownership did not address the claim mission gation sovereign.88 from the Pursuant permit; granting appeal, a on Cas- Castle mandate, statutory constitutional and final permitted merely its tle defends allocation as presently delegated authority resides protected “existing correlative use.” Commission, to be exercised the benefit maintaining gone KSBE has further people of the state. See Haw. Const. ground throughout that it “owns” the water 174C-7(a). XI, 7;§ art. by the from its lands. drawn ditch Moreover, prior as our case law makes on Castle and KSBE base their claims this clear, speak “sovereign it is fruitless City court’s decision Mill Co. v. Honolulu rights” “sovereign responsibili- apart from (1929). Comm’n, Sewer & Water 30 Haw. See, 547-48, Reppun, 65 at e.g., ties.” Haw. case, appellant City peti- In that Mill (pointing at out the “funda- P.2d 68-69 Com- tioned the Honolulu Sewer Water “separation mental of the mistake” permit mission for a drill artesian well ‘right’ its to control water from concomitant property. at com- on its See id. 918. The ”).89 ‘duty’ no KSBE undertakes substantive application on mission denied the based evi- sovereign of any duties owed to discussion well dence the new would further threat- good. supra III.B. In the common See Part ground already en the overburdened regard, this KSBE does little more than supply. Id. at 921. right revive the same claims absolute previously disapproved appeal, the court first court. On reviewed the See, 184-87, e.g., McBryde, governing ground law Haw. 504 common rules waters: Hutchins, System (kapu') Wells The Hawaiian of the ali'i nui was sacred A. son 21-22.(1946) Rights ("Subject (akua). though god power Water he were His power, persons king [sovereign] (mana) all down authority complete. was But this was rights considered to have in the lands were or some .European concept equivalent not to our added)); (emphasis products.” FOF 981 nui, right.” The Hawaiian "divine ali'i old ("Generally, apportionment were thinking person- practice, did not exercise chiefs, although highly ... ulti- controlled dominion, al but channeled dominion. oth- king....”). authority mate rested with the words, er he was trustee. The instances in rejected which an nui and even killed ali'i was 89. As we observed in that case: abuse of his role are sufficient because his mo'i], paramount chief nui born [The] [ali'i authority proof personal was that it but the soil and hence first-born maka'ai- trusteeship right (pono). that established (island [commoners] nana a moku dis- Water, then, sunlight, like as a of life source trict), was in whom a medium was vested man, possession of to land and was the no authority. power divine But this invest- man, even nui the ali'i or mo 'i. ment, ritualistically which was established (quoting 548 n. at 68-69 n. 14 Id. at by genealogical primacy, well as was instru- 63). supra, Handy Handy, & providing only channeling pow- mental in authority, per- right. The er and not a vested *74 added). (emphasis doctrines have
Three been advanced Id. at 922-23 es- After courts and text writers which or chewing bear more as “common-law rule” “unsound” directly subject. less on this One referred free-flowing and inconsistent with nature argument to in this in waters, underground case some adopted the court of the books as “the common-law rule,” doctrine” rights that: “correlative to the effect piece is that an individual owner of [landowner] Each should so his exercise land, good who has to sink fortune right deprive as not others of their successfully an his [or artesian well on her] rights in part. whole or in In times land,' is the owner absolute of all the water greater plenty probably use freedom of naturally that from flows well or that permitted ordinarily can be would be by any can be drawn pump, therefrom permitted question. without times powerful, however and that he [or she] greater scarcity or scarcity of threatened may pleases as [or she] use water he waters, quality or all deterioration of the may conduct to supply lands and required this would be under view to so communities at from [or distance his conduct their use of wa- themselves piece parcel may her] own of land and ter as not to take more than their reason- Another, even it. waste sometimes called able share. doctrine,” “the is reasonable use that an possessing individual owner of land such a Id. at 925.90 may flowing
well
use all of the waters
from
Having
plaintiffs
determined the
nature
the well
nature or obtainable therefrom
water,
rights
ground
the court reversed
by pumping, provided the
is used on
plaintiffs permit
the commission’s denial of
only,
his [or her] own land
but that
[or
he
application for
of a
the construction
new well.
may so
she]
use it either for domestic
held,
police power,
not
the court
did
purposes or for irrigation or for the main-
case,
“justify,
showing
under the
made
this
pur-
tenance of factories or other industrial
prohibition
appellant’s proposed
poses.
this rule
no
Under
there is
limit to
permitting
well while at
same
all
time
may
used,
quantity
that
be
existing
operated
wells to
to be
continue
provided it is
on
used
the owner’s land.
without diminution.” Id. at 946.
The third is known
“the
as
rule
correla-
rights”
recognize
tive
and is to the
that all of
“cor
effect
This state continues to
rights
owners
lands under which lies an
See Haw. Const. art.
relative
rule.”
rights
XI,
uses”);
artesian basin
(referring
have
the waters of
7
to “correlative
basin;
174C-27(a)
(same);
that
that
Reppun,
each
use water there- HRS
long
injure
as
not
she]
he
at
n.
656 P.2d at
n. 16
[or
does
Haw.
555-56
Mill).91
thereby
rights
City
(citing
of others and that
court
As this
noted
however,
Reppun,
“groundwater rights
times
not
when there is
sufficient water
have
all each will be limited to a
never been
with exactness and the
reasonable
defined
precise scope
always
rights
share of the water. Under
third
of those
rule
have
subject
development.”
diversion of
to lands other than
65 Haw.
remained
origin
permitted
might, perhaps,
City
that
at
at
n. 16. In
be
556 n.
Mill,
only
not
court
that
under some circumstances and
under
decided
the state
uses,
larger
arbitrarily prevent
for in-
others and certain
could not
one landowner’s
might,
purposes,
perhaps,
allowing
dustrial
use while
other landowners’
permitted
origin
necessity,
on
freely
even the land of
and saw “no
under
continue
therefore,
permitted
stating
being
pre
some circumstances while
with exactness the
principles
govern
ad-
under others.
cise
which should
indicates,
Mill,
City
description
90. As this
the correlative
91.
on the facts of
WWCA
Based
right
overlying
"analogous
argue
rights only
of an
landowner
City
correlative
encom-
right
riparian
[of
of a
owner's
reasonable
pass
purposes.
We
no
domestic
find
Dist.,
Wright
use] in a stream.”
v. Goleta Water
precedent
reason
for such
limitation
Cal.App.3d
Cal.Rptr.
rights.
these
(1985).
(1903).
shaw, 141
74 P.
each [landown
of the share of
Cal.
measurement
lands
transporting
30 Haw. at
Parties
water to distant
er.”
“appropriators,” subor
deemed mere
are
matter,
preliminary
affirm
As
right
overlying
landowners. See
dinate
conclusion
the rule
the Commission’s
749; Tarlock,
id.;
Cal.Rptr.
Wright, 219
ground
all
wa
rights applies to
correlative
no
supra,
4:14.
can thus claim
Castle
29.92
As
ters
the state. COLs
*75
in
rights”
“correlative
this case.
observed, although
facts of
the
specifi
City
involved “artesian” waters
Mill
KSBE,
As for
the correlative
cally,
offers no sound basis
the decision
a
rights
grants overlying
rule
landowners
any
distinguishing
from
oth
“artesian” water
only
necessary for
right
to such
as
water
water,
ground
including the
category of
er
Katz,
772; City
P. at
reasonable use. See
74
in
dike-impounded “percolating” waters
(“[E]ach
Mill,
Waiawa
Mill,
added);
City
(emphases
see also
all,
parties.
First of
other leeward
(acknowledging the fluid and
Haw. at 925-27
properly
we have
that the Commission
held
migratory
rejecting
nature
application for non
permit
denied KSBE’s
ownership).
line with this
rule of absolute
conditions,
statutory
'see
compliance with the
*77
of
understanding,
rights
correlative
rule
is
supra
takings claim
Part III.H.l. KSBE’s
unqualified
City Mill
not describe an
does
PASH,
Ha
entirely premature. See
79
thus
limited,
right
ownership,
situational
of
but
452,
(citing
wai'i
181 ” enjoyment use, owners to a like .... rights” use and cial with “administrative based Smith, v. 407, Patrick (quoting Code, systems. 75 134 See Model Water permit Wash. 1076, (1913))).97 P. Consequently, 1079 supra, commentary de- (identify ch. 1 at 78-79 situation, pending on landowner could ing permit advantages systems three over 1) entitled certain uses of water but not rights common regimes: agency law others. Even established uses could later makes disputes decisions before have fall shortage 2) into disfavor. A could severe erupted litigation; agency into makes altogether. Usufructuary foreclose use wa- comprehensive, its decisions on a rather than sum, rights, always ter “have been incom- 3) basis; piecemeal, agency decisionmak- plete property rights, expectations so the experts ers are their base decisions on [rightholders] enjoyment of these XI, plans).98 long-range Pursuant to article rights generally are expec- weaker than the constitution, section of its 7 this state has right tation of exploit full value jurisdictions followed suit. Courts in other Tarlock, supra, dry 3:92, land.” 3-153. at regulation against have sustained such con Code, supra, See also Model Water 2 ch. State, See Omernik v. challenge. stitutional commentary (recognizing un- 165-68 6, (1974); 64 Omer 218 734 Wis.2d N.W.2d certainty riparian rights and the corre- Department [sic] nick v. Natural Re sponding “property absence of a interest sources, 370, 114, cert. 238 Wis.2d N.W.2d particular prevail- those rules of distribution denied, 1679, 425 U.S. 96 S.Ct. time”); ing Sax, The Con- Joseph L. (1976); Village Tequesta v. L.Ed.2d 184 stitution, Property Rights and the Future (Fla.), Jupiter Corp., Inlet cert. So.2d Law, Water 61 U. Colo. L.Rev. 267-69 denied, U.S. S.Ct. (ex- Sax, Law] Water [hereinafter (1979); Valley Town Chino L.Ed.2d 377 plaining “change how unchanging Prescott, City 131 Ariz. jurisprudence”). chronicle of water (1981) (en banc), dismissed, appeal 457 U.S. (1982); protection
In the
interest
and maximum
102 S.Ct.
73
1310
L.Ed.2d
Steiner,
resources,
Cherry
(D.Ariz.1982),
v.
beneficial use
water
numerous
543
1270
F.Supp.
(9th Cir.1983),
'd,
legislation replacing
cert.
states
enacted
have
that have validated
step
abolishing
ingly
substantial
riparian
more
land
Mexican
Spanish
riparian
ground
common law
unexercised
irrigation
grants
appurtenant
not include
did
rights in
to accommodate the
order
381, 355
502
rights), aff'd, 163 Tex.
S.W.2d
private
appropriative
development
(1962).
power,
beyond
police
Even
rights.100
public
therefore,
original
limitation of the
justi
primai-ily
foregoing courts have
of absolute enti
KSBE’s claims
trust defeats
regulations based on the
disputed
fied the
PASH, 79 Hawai'i at
to water. See
tlement
Omernik,
See,
218
power.
e.g.,
police
452,
(acknowledging that
P.2d at 1273
903
670;
743; Tequesta, 371
at
at
So.2d
N.W.2d
assuredly
per
government
can assert a
“the
711-14;
127 N.W.2d
Knight,
California-
pre-existing
that reflects
manent easement
567-69;
Power,
Hud
Oregon
73 F.2d at
cf.
upon
(quot
title”
the landowner’s
limitation
McCarter, County
Co. v.
U.S.
son
Water
ing
v.
Coastal Coun
Lucas
South Carolina
529,
349, 356,
L.Ed. 828
28 S.Ct.
1003, 1028-29,
cil,
(averring
public interest
substan
S.Ct.
that the
U.S.
“omnipresent”
tially
(1992)) (internal
undiminished rivers
quotation
Rule 702 I. TO FUND STUD- skill, expert “by knowledge, of an experience, IES training, proffered education.” KSBE Estate, Campbell joined by other “public opinion” expert. Ankersmit as a parties, (collectively, leeward the leeward regarding
Ankersmit testified her extensive permittees) object requirement experience opinion poll the field of they subsequent contribute stream studies ing, years spanning 23 and “over 2000” sur *80 monitoring part activities. The relevant veys private government for various or Commission’s reads: decision ganizations. objecting party presented The permittees on The whose lands the wa- specific qualifications. no to rebuttal her system ter from the Ditch is Waiahole record, Based on the we hold that the Com for, prepare, por- or a used shall contract by declining mission abused its discretion to monitoring tion studies and activities qualify expert. Ankersmit (see, resulting example, from for this order believe, however, Lake,
We do not
In re: Mono
Decision
State of
Board,
excluding
that the Commission
in
Ank-
erred
California
Resources Control
Water
(1943)
alleges
taking
(holding
101. KSBE
a
also
of its "ali'i
9/20/94, (stating a transfer that paragraph) that Funding shall be page change any a in condition of the “involves on the amount water used based constitutes a pro permit ... is also invalid and rata basis. The Commis- shall on 174C-62(f) revocation”); § ground for HRS a committee to recom- shall establish sion (1993) (requiring permittees to funding, notice a reasonable amount mend permit change in conditions due to declared up set the mechanism coordinate and collection, provisions, expressly accounting, shortage). and distribu- water These for the grant implication, obvious the Com- committee shall tion the funds. The authority to condition wide-ranging findings and recommendations mission submit its with its approval permits within use accordance to Commission (8) re- protect regulate the Final mandate eight months from the date Presumably, good. common sources 0]& is issued. [D requirement authority encompasses the such at 10. D & 0 that permittee to studies that a contribute permittees maintain The leeward determining will assist the Commission requires to fund the Code the Commission impact permitted of the the water on. provisions they simply cite studies. n source. conduct vari- mandate that Commission studies, investigations, and inventories. ous assert, permittees The leeward do command Commission to They not however, amounts to un condition own, prohibit finance activities these “regulatory leveraging” in vio constitutional ordering appropriate alternative lation of fifth amendment the United funding. §§ HRS See 174C- sources I, States Constitution and article section -71(4) -48, -71(1)(E), 5(1), -31(c), -41(a), Constitution, supra see note of the Hawaii (1993 Supp.1999). & claim, they their cite 94. As the basis of Commission, 174C-31(j) § the Nollan v. Coastal HRS mandates California 825, 107 permits 483 U.S. S.Ct. L.Ed.2d “shall condition under (1987), Supreme States chapter a manner as which the United Part IV of this such building permit condition in- Court invalidated protect' instream flows.” Code permit requiting dedication of a access other references cludes numerous 174C-49(e) (1993) easement, § condition lacked an “es where the conditions. See HRS underly subject permits purpose nexus” to of the (stating that all shall be sential 834-37, ing regulations. id. department building of Hawaiian rights of the City also S.Ct. 3141. See Dolan home lands “whether condition Tigard, permit”); S.Ct. explicitly stated in the HRS U.S. (1994) (1993) “rough (requiring (requiring propor the Commission L.Ed.2d 174C-56 study tionality” development condition comprehensive of all is- between the conduct a develop proposed every twenty years impact and the permits sued once ment). however, conditions); Dolan, dealt compliance Nollan and permit monitor 174C-57(a) (1993) regulation simple (providing that with the fee HRS interests police power. aspect under the This or condition of a estate “modification one real case, contrast, management permit permittee’s involves the may be conditioned on water, aspects usufructuary a state changes in interests acceptance of other 174C-58(2) to which no individual permit”); (allowing trust resource Hence, per- right.102 the lee suspend can claim exclusive Commission to or revoke *81 any permitees’ argued analogy between the “any violation of ward mit for willful condition funding requirement and the land permit”); (Supp.1999) instant 174C-59 Seattle, cases); City takings question v. 147 Garneau We need not address the additional degree 802, (9th Cir.1998) (“Assuming whether and to what Nollan and Dolan [Nollan F.3d 812 beyond to mone extend tary land dedications include physical apply Dolan outside the context of ] presently at exactions such as those issue. invasions, plaintiff must still show in the first a F,3d See, Petera, e.g., Clajon Corp. v. Prod. government imposition of the ex [instance] that 1566, (10th Cir.1995) (viewing & 1578-79 n. 21 taking.’’). a action would constitute physical and Dolan as an extension the Nollan States, development invalidated in exactions Nollan Ass’n United 415 U.S. (1974)). Sax, at
and Dolan fails S.Ct. L.Ed.2d 370 lee- the outset. See Wa The (“[A]n Law, permittees acknowledge, swpra, at 280 ward fail to ter owner of a howev- er, directly right the studies relate to their property has right lesser than proving burden of that their uses are “rea- the ... landowner Nollan. The state is sonable-beneficial” with ‘taking* owner, “consistent the something belonging not to an 174C-49(a). interest,” public §HRS pre- As asserting right always but is it held as a discussed, viously any previous lack of the burdening servitude owners of water comprehensive precluded permit- studies rights.”).103 from proving, tees Commission from permittees’ The leeward contention determining, the actual extent to which the funding requirement that the constitutes an public diversions would sacrifice values illegal point, “tax” is closer to the but similar estuary ecosystem. the windward stream and ly unavailing. See Kentucky River Auth. v. denying Rather than permits for insuffi- Danville, City (Ky.Ct.App. S.W.2d 374 proof, cient grant Commission decided to 1996), denied, cert. 520 U.S. 117 S.Ct. permits with the condition per- that the (1997) (inquiring L.Ed.2d 682 mittees to at contribute studies aimed deter- charge by authority whether assessed river mining the effect of the diversions. The illegal legiti water use was an tax or a studies, therefore, “directly benefit” leeward fee). acknowledge mate user We while permittees ways: only by in two not helping authority the Commission has the to condi requisite proof, them to marshal their but permits payment appropriate tion on the by allowing public also them exclusive use fees, any taxing it power. does not have interim, despite resources in present Const, VIII, generally art. Haw. section 3. In proof. public absence of such The as a Medeiros, State v. 89 Hawai'i whole, 973 P.2d sure, gain will also from the (1999), question addressed wheth through knowledge studies enhanced charge imposed by governmental Nevertheless, er enti regulation. informed better ty is a “fee” instead of a “tax.” We devel grant the extent that the studies the leeward oped three-part “analyz[ing] therein a permittees test by benefits not shared (1) charge applies large, perhaps whether direct at public’s even at the ex- (2) service, beneficiary particular pense, require of a is allo unfair to we do believe it directly defraying pro permittees provide cated the costs a reasonable share service, viding reasonably pro is of the costs. portionate to Id. the benefit received.” at prong The second of Medeiros
367,
windward an- Commission could quire greater analysis. even The evidence ticipate already the need address the presented by in this case indicates that pending petitions for By reservations. ear- year pro- water demand for Oahu’s marking an estimated amount of re- water (an jected growth mgd) additional will quired subsequent in proceedings, remaining exceed the island’s estimated provided specific notice (76 ground supply mgd) at least proposal agricultur- for further diversions for mgd. al use in the generally near future. See added). (emphases Contrary COLs at 23 91-3(a)(l)(B) (requiring agency, City’s reading, suggests this discussion prior hearing, to the to make available the prospective City’s no bar use of proposed adopted). rule to be No error re- Rather, simply Waiahole Ditch water. from such sulted action. inescapable reality in states the times of one, scarcity competition, no be it the K. THE CITY’S MISCELLANEOUS user, City any potential expect can other OBJECTIONS quantities to demand water in such from City The takes issue with the discussion such sources as it sees fit. concerning Commission’s final decision City’s City future water needs. The first rejects City apparently this lat- even alleges erroneously the Commission however, proposition, ter inasmuch as it also City using foreclosed the from Waiahole opposes requirement “prioritize” that it Ditch water the future where “no notice portion its future relevant demands. The given City’s was ... future use the Commission’s decision states: [the would be Commission] considered competition As in- water resources expressly precluded City presenting creases, analysis both begin, City evidence on that To issue.” and of interest reasonableness must be- does mention or contest the Commis- rigorous come both more and affirmative. City’s petition sion’s denial for a be required The counties will articulate grounds reservation untimeliness. The priorities greater spec- their land moreover, City, point single fails to to a ificity. example, present For at the even evidentiary ruling adverse the Commis- time, there more land zoned various fact, Commission, granted sion. The supply than water to available those City ample opportunity during hearing Thus, proposed uses. it is not sufficient to present evidence on its future water de- merely parcel particular conclude that a mands.104 properly land is zoned and that the use is event, City overstates Com- That minimal conclusion “beneficial.” ruling. portion mission’s of the decision inadequate resolve situations City by the contested reads as follows: competitive supply. which demand exceeds term, quantities analysis At least for the near Further criteria interest conservation, (e.g., excess of the alter- amended interim instream relevant to water uses, subject comparative public flow standard and to the conditions native costs and benefits) affecting supplemental flows are will available be needed. City argues Nothing
104. The also the Commission record or deci- the Commission’s claim, impact failed restoration on consider the economic of stream sion substantiates this potential municipal water uses. *84 added). City’s land portion illegally will “restrict” the use (emphasis Another at 25 Id. authority any planning the decision states: unless it accedes of City’s of water Such and all the demands. all of concludes that The Commission powers the expansive an view of counties’ permit applicants proposed water use express headlong into the constitutional runs propose are “consistent have or uses that county policies” and plans statutory designation land use of the Commission with and except as noted above. While [KSBE] over matters of water as the final authority applications are all “consistent” with these planning regulation. Haw. and See use lack plans policies, use and such land Const, 174C-7(a). 7; I, § §HRS art. county plans poli- among the and ;priority by only provides a minimal standard cies alleging that Commission judge applications. which to imposed prioritize a uses on “directive” added). (emphasis 27at Id. counties, City misapprehends position. has Commission’s The Commission City requiring the coun- asserts that The acknowledged appeal consistently on that it designate priorities among proposed ties usurps planning authority their land zon- use nor inclination has neither expressly authority. ing The Water Code City any such action and that force authority respect the counties’ reserves “is, fact, priorities a re its discussion planning policy. The Code’s land use City’s] help.” As quest for the Commis [the policy” states: “The state wa- “declaration decision, existing sion observed its liberally interpreted code shall ter already supply is to accom insufficient which conforms with applied in manner planned and zoned modate the land uses plans in terms intentions the counties Thus, City. City accepts it or whether the 174C-2(e). planning,” § land use HRS not,'this compel the shortfall will Commission provides: § 174C-4 further HRS prioritize among proposed making uses in contrary “Nothing chapter in this shall Indeed, among ultimate choices them. zoning power planning or restrict the must, plan City itself as matter sound county chapter 46.” also [HRS] under integrated ning policy, actively develop 46^4(a) (1993) (stating that the coun- HRS contingencies addressing the aris plans liberally powers “shall be construed ties’ see, supply, e.g., ing from the limitations them”). exercising county favor 174C-31(d). if process, prop HRS Such City explain fails to how The nonetheless undertaken, prio erly necessarily will entail any aspect actu- Commission’s decision City’s ritizing among competing uses.105 The ally City’s planning func- interfered with therefore, only objections, contradict the City pres- as tion. Insofar formulated Code, disregard priori but also the need using was plans while OSCo still ent See, managing any scarce resource. ties water, hardly claim Ditch it can Waiáhole applica e.g., (competing §§ HRS 174C-54 availability depend plans 174C-62(a) (1993) tions); (requiring fundamentally, reject this water. More periods City’s suggestion plan Commission to formulate Commission plan integrated An decision includes an ex- mands. water resource 105. The Commission’s description planning process: of this concept plan- cellent encompasses the of least-cost integrated The Commission believes ning types all of resources and considers plan developed must be in or- water resource conservation, equally: supply, reclaimed new prepare for Oahu’s water future. This der to water, structures, rate well alternative as plan how we will meet water must address management The other demand methods. given dwindling supply and must demand prioritize competing our planning process would assess and balance plan demands. urban, agricultural, competing needs such planning scenarios would construct various customary rights, appurtenant traditional and incorporate help decision-makers uncer- to tainties, gathering rights, Lands Hawaiian Home externalities, environmental priori- rights, protection, and stream and set decision-making. community into needs ties for allocation decisions. ranges population assess scenarios would projections water de- D & O 2. and commensurate shortage, including system permit legislature designed tional framers and the classification).106 judi- as an instrument for (cid:127) planning regulation, cious than rather coordination, contemplates The Code rath- management.107 crisis The Commission’s de- conflict, er than between the Commission and *85 cision reflects the considerable time and at- 174C-49(a)(6), the counties. HRS for ex- case; it to tention devoted this we commend ample, requires permits that water use is- its efforts. But much more work in lies the by sued the Commission be “consistent years critical ahead if the Commission is to county plans policies,” land ensuring use and constitutionally realize its statutorily and consistency between water and land uses. purpose. mandated Both planning the water use and instream protection provisions use coopera- mandate We have rendered our decision with ut- tion between the Commission and coun- the care, balancing most due to deference the 174C-31(d) (“the ties. HRS commis- judgment Commission’s of with level scruti- sion in coordination with the ... counties ny importance necessitated the ultimate shall an integrated formulate coordinated present these matters to the and future conservation, program protection, for the and generations of our For state. the reasons management county”); in the waters each opinion, in part stated vacate in we the (“In carrying part, 174C-71 out this Commission’s decision and remand for addi- the cooperate commission shall with ... the conclusions, findings tional and with further county governments any agen- and of their hearings necessary, if consistent with this cies.”). objectives The of the Commission 1) opinion, regarding following: the the des- always converge. and counties not will ignation of an interim instream flow standard respective To the extent that their functions for windward streams based on the best in- however, and duties the Commission permit, available, specific formation as well as the seeking and counties should be common apportionment any flows allocated or oth- ground. regard, agree In this with the released, streams, erwise to the windward see prioritizing requirement Commission that its 2) III.D.3; supra Part the merits but, is not a to City’s authority, threat petition to amend the interim for standard rather, is cooperation a call for and mutual Stream, III.D.4; 3) Waikáne supra see Part accommodation in keeping spirit with the 2,500 gallons per actual per need for acre understood, City’s allega- Code. So day agriculture, over all acres diversified tion of error lacks merit. 4) III.F.2; supra see Part the actual needs (ICI Seeds), Field Nos. 146 and 166 see
IV. CONCLUSION
III.F.3.a,
supra
115,116,
Part
and Field Nos.
Cozzens),
In the
to
(Gentry
supra
introduction
its decision and or-
and 161
and
see
der,
that,
III.F.3.b; 5)
projected
“by
the Commission
practicability Camp-
Part
year
projected
using
water demand
bell
PMI
Estate
alternative
growth
ground
sources,
remaining
Oahu will exceed the
supra
see
Parts III.
6)
ground-water
III.F.4.d;
practicable
resources on the island.” Id.
F.3.c &
measures to
urgent
1. This
mitigate
forecast underscores the
impact of
variable offstream de-
streams,
planning
preparation
III.F.5;
need for
supra
mand
see
Part
7)
permit
Commission and the counties
application
before more
the merits
losses,”
complications develop.
“system
serious
supra
eonstitu-
ditch
see
Part
See,
City wrongly alleges
e.g„
106. The
Rep.
that the Commis-
Stand. Comm.
No.
("[The
Proceedings,
public
concept
system
trust]
at 688
priori-
sion seeks to institute a
of “fixed
implies
only
power
protect
the re-
contrary
public
ties” between uses
trust
responsibility
long
sources but the
fore
to do so
be-
and the
Code.
Commission does not demand
any
develops.");
Rep.
crisis
Comm.
Stand.
hierarchy
rigid
applicable
a
tion,
situa-
Journal,
No.
1987 House
1262-63
merely acknowledges
but
in future
("[Y]our
opinion
Committee
that the
involving
System,
cases
the Waiáhole Ditch
serve
water code should
tool
an incen-
required
deny
will
certain uses
favor of
planning
tive
the wise
of Hawaii's water
and, thus,
prioritize among
others
will need
resources, rather
a water
than as
crisis and
proposed uses.
mechanism.”).
shortage management
instream
“public
status
perior
claims”
aspects
all
affirm
other
III.G. We
ad-
Hawaiian and traditional
not otherwise
uses” and “native
decision
Commission’s
rights,” thereby trumping
opinion.108
customary
in this
dressed
(HRS) chapter
Statutes
Hawai'i Revised
RAMIL,
Dissenting Opinion by
J.
(the
(1993
Code),
Supp.1999)
I dis-
174c
&
doctrine,
expressed
public
sent. The
trust
majority
nebu-
resorts
Because
in-
Hawai'i Constitution
as subse-
as a
law
trust doctrine
lous common'
Code,
authority
quently incorporated into
does not
separate
assign “su-
distinct and
revolutionary theory
permits.
applying for
As the Code
proposes
water use
108. The dissent
demonstrates,
doctrine,
abundantly
legislature
did not
the trust
trust
which
system. The
insists that
nothing
present
create such a
dissent
i.e.,
what the
more than
amounts
*86
legislature,
words,
people,”
is,
"the
the
"the State” or
majority says it
“the sum of
other
policy.
law and
should determine water
competing
of the
and economic interests
social
generally
We
Dissent at
9 P.3d
508.
compose
public."
Dissent
individuals that
the
dissent,
sentiment, but, unlike the
we
share this
may
purposes
the
view
the
16. While this
suit
duly follow it.
dissent,
can
finds
in law. The dissent
it
no basis
regarding our wa-
The dissent voices concern
applying
public
doc-
precedent
the
trust
cite no
persons,
lying
in the hands of "six
ter future
it
expansive manner that
advocates
in the
trine
case,
persons
composed
four
who
the
this
(the
proceeded
Washington
cases cited
See id. at
the State for benefit of Duty, I. The State’s Public Trust En- as Constitution,
shrined in the Hawai’i Re- quires Balancing a Process Between WATER RESOURCES Competing Public Interest Users. obligation Section 7. The has an State majority, its effort define the protect, regulate control and the use of trust, purposes on vague, relies water Hawaii’s resources for benefit of jurisdic- common law foreign notions from people. its tions. I start with our Constitution. legislature provide shall wa- for which, Because provided constitutions derive their authori ter agency resources ty law, people adopt from the who draft and shall set overall water conserva- them, tion, long quality policies; we have held Hawai'i and use bene- define uses; protect ground Constitution must construed accordance ficial and reasonable resources, people with the intent of the framers and the and surface water watersheds it, environment; adopting princi and that the “fundamental and natural stream establish ple interpreting provision a constitutional priorities criteria water use as- while for necessarily regulate” a bal- existing involved suring appurtenant rights and in- riparian ancing competing and establish social and economic correlative and (“When considering of Ha- regulating all uses Id. use and de- procedures terests. resources, water resources. economic velopment waii’s our natural major Const, and benefits are concerns. social (1978) (Em- XI, §§ art. Haw. economics, However, broad definition added). phases resources, thrifty’ that of ‘careful and use reading plain A of the above constitutional of immediate than the narrow sense rather provisions intent to accord does not reveal an return, adopted.”). In financial should be To the con- superior claims certain uses. establishing duty “protect, con- the State’s XI, generally trary, obli- Article Section regulate” benefit of all trol and development gates “promote State presumably meant people, the framers (1) “in utilization” of our water resources more, noth- exactly they said—nothing what conservation” manner consistent their ing less. (2) self-sufficiency “in furtherance Furthermore, contrary to the of the State.” XI, imposes Specifically, section article majority’s expansive use trust (1) con- obligation two-fold State doctrine, XI, plain, Article Section 7 makes protect natural re- Hawaii’s serve legislature provide “the shall for water sources, “in a develop the resources law, which, agency provided resources consistent with their conservation manner pri- ... criteria for use shall establish self-sufficiency of and in furtherance of added.) (Emphasis ...” other orities. The framers further defined State.” words, public policy making “how” or the protection, improve- as “the “conservation” properly legis- reserved function was according resources ment natural Accordingly, constitutional lature. these highest principles assure their will *88 provisions adopt common did not the law or social Stand. Comm. economic benefits.” to public as a determine trust doctrine device 77, Proceedings, (empha- 686 Rep. No. in 1 at or prioritized. water is to be used how added). fashioning duty to In State’s sis the history Turning now to the constitutional resources, its develop conserve and natural nothing equate provisions, I find to of these framers, to cognizant the need the while obligation “protect, public trust to the State’s competing preserving in balance the interests regulate the wa- and use Hawaii’s control resource, using did not mandate and the people” for of its resources the benefit ter particular balancing to favor such be skewed according superior claims to certain with uses. Rather, framers used the term uses. the XI, Furthermore, imposes 7 article section to “public trust” “describe the nature the pro upon fiduciary “obligation a to the State people relationship the and its between State tect, regulate use of Hawaii’s control and the actively duty of to and and the the State people.” its resources the benefit of regulate water affirmatively protect, control history resources, provi development, constitutional behind this including water the support any suggestion to that the sion fails and allocation of water.” Comm. Whole use trust,” “public adoption expressed 1 as Rep. Proceedings No. in the Consti- the Constitution, to Hawaii at Hawai'i was intended tutional Convention grant superior particular types of Proceedings]. In- claims to [hereinafter 1026 Rather, trust,” deed, keenly “public use. were aware that water framers framers,1 formally a fiduciary “protect, by imposed duty to control and defined such a read, keenly proposal subsequently was amended to The framers were aware the nebulous public aspects obligation protect, The initial of the trust doctrine. an control “The State has to by Envi- proposal the Committee on submitted regulate the use of Hawaii’s water resources ronment, Agriculture, Conservation and Land people.” Whole Comm. for the benefit its by part, "All waters shall be held read relevant Proceedings, Rep. No. in 1 at 1026. Accord- people of State as a trust for the Whole, ing it amended to the Committee on Rep. No. in 1 Hawaii." Stand. Comm. proposal in order to added). (emphasis Proceedings, at The term 688 trust," however, "public was deleted and the
193
(“I
fiduciary duty
“actively
ings,
on the
to
thing
State
at 870
think the one
want
affirmatively protect,
regulate”
protect
control and
ed was
small
taro farmer as
water,
agricultural
the water resource as
well as
opposed to the
users of
mere
unless
authority to
Rep.
emergency
do
it conflicts with
so. Comm. Whole
No.
some overall
situ
Comm,
(statement
1026;
Proceedings,
ation or
priority”)
by
at
use
see
Dele
Debates,
Waihee),
XI,
gate
September
Whole
article
section
reserved
Debates],
Proceedings,
prioritizing
legisla
task
uses for the
[hereinafter
Const,
(‘What
XI,
7; Debates,
ture. Haw.
art.
attempts
[amendment]
to do
(“[W]hat
to,
all,
Proceedings, at
is
done is
fiduciary duty
first of
we’ve
create
policy
set out
to be
part
considered
establish
regulate
of the
State
and control
ing
clear,
criteria....
it
[J]ust
its
make
thing
water. The second
it
does is
only
agency
setting
this
that will be
coordinating agency
regulate
establish
water.”)
policy;
done,
(Statement
criteria
this would be
in the
by
all
Delegate Wai-
by
legislature,
overall
hee);
(“The
sense
the state
Id
[of
intent
the amend
agency
implementing
itself would be
the de
ment] was to
it
make
clear that the State had
agency
tails. What we wanted was an
whose
duty
responsibility
and the
to care for
policies
would have
input
as broad
resources,
Hawaii’s
simply
rather than
possible.
the overall
...
so.”)
So
scheme
(Statement
power
by
do
Dele
up
would be
‘in
set
accordance
law5 or
(“Exercise
gate Fukunaga); Id. at 867
of the
legislature,
agency
would then
police power
purely
discretionary, and for
implementation
set the
points
and the finer
results;
discretionary
language
“trust”
im
this.”)
(Statement
Waihee));
Delegate
poses
obligation
act
the benefit of
(“As
states,
proposal
Id. at 869
the amended
(Statement
people.”)
by Delegate
all the
legislature
will allow the
to set water use
Horniek).
again,
Once
while the framers
priorities, ‘set overall water conservation’ and
mindful
were
of the need to balance various
forth.”)
(Statement by
Chong)).
so
Delegate
use,
competing
in regulating
interests
Rep.
sum,
see Comm. Whole
No.
in 1 Proceed
a review of the
his
constitutional
(“Because
ings,
evergrowing
tory
at 1026
reveals that
the framers viewed the
population,
present ag
“public
fiduciary
the need to maintain
duty
trust” as a
of the State
control,
develop
ricultural uses and
new
protect,
regulate
some
ones
diminishing
supply,
and the
people.
freshwater
it is
for all
The framers made
*89
important
extremely
public
that the State act with a
it
that
clear
their view of the
trust ob
fiduciary responsibility
regard
sense of
with
ligation also embraced offstream economic
water”); Debates,
water,
of
to the use
in 2
agriculture, by
Proceed
uses of
such as
the
clarify the intent behind the
the
use of
term
water and fisheries. These
be
resources are to
"public
gen-
enjoyment
peo-
trust.” Some confusion has been
in
held
trust
the use and
for
implies
ple.
already
supreme
erated
the term because "trust”
The Hawaii
court has
However,
ownership.
navigable
imposed
public
was
never intended to
the
trust
waters
proposal
question
Bishop
that the
confront the
of own-
and the
under
lands
them the case of
Mahiko,
However,
(1940).
ership of water resources
is
because that more
v.
Haw.
to
35
608
appropriately
litigation, your
matter
the
possible
for
courts. The
avoid confusion and
question
ownership
language
your
re-
Committee has substituted
which
freshwater
ability
fully conveys
theory
sources
irrelevant to the
the State to
Committee believes
police powers
regard
“public
exercise
to water
trust.”
added).
possessed
power
long
(emphases
Simply put,
because the State has
Id.
"what
protect,
regulate
attempts
to
and
Hawaii's
do ...
control
amendment
to
is to define what
fresh-
Comm,
'public
water resources
the health and
trust’ &eans.”
of Whole De-
for
welfare of
Therefore,
bates,
Debates],
people.
"public
September
...
[hereinafter
Hawaii’s
trust”
1978
(statement by Delegate
Proceedings,
was used to describe the nature of
relation-
in 2
at
859
Waihee).
ship
people
between the State and its
and the
Furthermore,
duty
actively
affirmatively
recognized
to
State
and
this
itself has
court
resources,
protect,
regulate
obligation
control and
water
"[t]he
that
extent of the state’s trust
including development,
and allocation of
over all
use
waters
course would not be identical
applies
navigable
water.
to that which
to
waters.” Rob-
theory
Ariyoshi,
public
public
The
trust
holds that the
v.
65
inson
287,
Haw.
658 P.2d
denied,
(1982),
rights
important
has certain
in water
re-
310
reconsideration
66 Haw.
sources,
(1983).
including
underlying navigable
land
apparent
that
this
Regulato-
Comprehensive
II.
Code is a
The
Constitution,
into
the framers
the Hawaii
Trumps
Law.
ry Statute That
Common
uses;
they
prioritize
re
did
intend to
not
legislature.2
for
In
years
hearings,
many
matter
of exhaustive
served
After
confusion,
deed,
deleted
finally
acceptable
avoid
the framers
legislature
struck an
trust,”
“public
recognizing that the
public
term
competing
interest
balance between
vague,
public
law
trust doctrine
common
pass
it to
Code
users that enabled
be,
been,
justify any
and has
used
could
Code,
legislature
Through
See,
i.e., ownership.
e.g., Payne v.
thing,
only
constitutional obli-
affirmed the State’s
(Pa.1976)
Kassab,
(rejecting
361 A.2d
“protect,
regulate
gation control
appellants
state violated the
claim
people,”
of all its
it estab-
the benefit
public
by implementing
street widen
trust
comprehensive
program
“a
lished
impact
ing
negatively
would
“the
project that
174C-2(b) (1993
planning,”
&
resources
historical, scenic,
environ
recreational and
that set forth
the State
Supp.1999),
how
land).
ma
values” of a tract of
The
mental
satisfying
duty.
Haw.
go about
would
public trust doc
jority’s expansive use of the
Const,
(“The
XI,
legislature
shall
art.
view,
case, in my
in this
will create
trine
which,
provide
agency
for a water resources
uncertainty.
public
The
trust
confusion
law,
provided by
...
shall
establish crite-
obligation
merely imposes an
on the
doctrine
priorities....”)
(Emphasis
ria for water use
affirmatively
regulate
protect
State
added.)
policy,
the Code
its declaration
does not
our
resources. The doctrine
forth
embraces the
trust
set
protect
“how”
provide guidance as to
by providing
“the
Hawaii Constitution
guidance,
is cru
waters. “That
which
those
of the
are held
the benefit
waters
State
today,
is found
cial to the decision
reach
It is
citizens
State.
declared
only
v. De
in the Water Code.” Rettkowski
people
are
the State
beneficiaries
Ecology,
partment
858 P.2d
right
protected
to have
waters
have a
banc).
(1)
(Wash.1993) (en
Given that
174C-2(a) (1993).3
their use.” HRS
legislature to
called on the
create
framers
various, competing
then
inter-
Code
identifies
forth the Com
to set
ests that
the Commission must balance
law,” ie.,
authority
provided
“as
mission’s
charge
“protect,
administering
the State’s
Code,
trump
common
statutes
regulate”
control and
water:
law,
Kam,
7, 10,
Fujioka
Haw.
liberally interpreted
[Code]
shall
(1973), it
be inconsistent to
would
the wa-
obtain maximum
adopt
conclude that
intended to
the framers
beneficial
purposes such as
ters of the State for
the common law
trust doctrine when
*90
uses,
uses,
aquaculture
irrigation
domestic
they urged
legislature to enact the Code.
the
uses,
agricultural
power
other
devel-
disagree
Accordingly,
strongly
with the
I
XI,
opment, and commercial and industrial
majority’s
holding that article
sections
However,
provision shall
public
adequate
adopt
common law
uses.
wholesale the
protection
made
the
of traditional
principle
as a fundamental
of
be
trust doctrine
for
Robinson,
(1) Recognizing
pa-
state
the
that the waters of the
are
2.
this court observed that
In
public
authority
property
in
in
of the State’s
and interests
the
of the state and are held
rameters
citizens,
developed
on case
it is declared
water resources "should
by
trust for the benefit of its
by
particu-
legislature
the
people
basis or
the
case
the
of
as beneficiaries
the state
of
public
lar interests
the
are raised
de-
right
the
to have the waters
this trust have
at
Given essential such as is state, by may only the continued of this island it legislature existence state and the 196 (1975) 342 A.2d power the framework Pa.Cmwlth. within exercise conferred”); (Bowman, P.Ji, by concurring) in (“Simply it is statute under which the Licensing Industry provision identify v. Corp. Motor Vehicle voking [the
HOH
constitutional
.,
135, 141,
P.2d
69 Haw.
‘public natural
ing
as the trustee of
the state
Bd
(1987) (maintaining
agency
resources,’]
that an
agency]
a
[the
nor
third
neither
pass upon
to
the
“generally
power
lacks the
beyond
party
enlarge
can
its ‘trustee’ role
has
law
constitutionality of a statute. The
statutory power
and
parameters
the
its
nullify
agencies may not
been clear that
long
tramps
authority.”). Simply put, the Code
Davis,
statutes.”)
(Quoting 4 K.
Administra
law,
way
the other
around. Fu
common
not
(2d
26:6,
at 434
tive Law Treatise
jioka,
at 570.
55 Haw. at
P.2d
ed.1983)).
fiduciary duty
a
It is the
that owes
State
Majority’s Expansive
the
III. The
View of
regulate
and
people
“protect,
its
control
Inject
unll
Public Trust Doctrine
Sub-
the
Hawaii’s water resources for
use of
the
Uncertainty into the Code-
stantial
Const,
XI,
people.”
art.
of its
Haw.
benefit
Process.
Based Water Allocation
Thus,
body
the
legislature,
it
the
as
7.
is
view, majority
pub-
the
my
employs
making
charged
responsibility
with the
(1)
a
recognize
lic trust
doctrine
device
laws,
public policy,
it is
that determines
uses,
and na-
certain
such as instream uses
legislature who
set water use
should
public
rights,
tive
trust values
Hawaiian
provided by
priorities “as
law.”
id. Wa
See
(2)
analysis
proposi-
from the
launch
state,
a
is
lifeblood of this island
ter
public
supe-
have
tion that these
trust values
prioritize competing
uses water
decision to
majority goes
rior
claims
other uses.
will un
public policy
that
is a
determination
any
of the trust
to “eschew”
view
doubtedly shape
course
our future.
public
private
use as
embraces
commercial
should
in the
Such
determination
rest
Majority
9 P.3d at
purpose.
trust
people of this
hands of the
State instead
agree.
approach,
With such an
I cannot
case,
persons,
of six
or in this
discretion
discussed, I
previously
As
believe
composed
who
the Commission.
persons
four
trust,
public
in the Hawai'i
as established
Hawai'i,
County
C
Konno v.
f.
Code,
adopted in
is
Constitution and as
(“The
61, 79,
397, 415
Hawai'i
control,
fiduciary duty
protect,
simply
law
of what the
could be
determination
regulate
use of our water resources
properly
that is
left to the
should be
one
people
all
for the
of Hawai'i.
benefit
sovereign,] through their
people,
are
[who
obligation
Such an
demands
State
legislative representatives”).
To
elected
actively manage its natural resources
dili-
does,
otherwise,
majority
conclude
as the
interests,
gently
competing
both
balancing
impermissibly transgress
separa
would
social,
to arrive at
economic
order
powers
by allowing an
tion of
doctrine
execu
policy
ultimately in
of what is
determination
statutory author
agency to transcend its
tive
interest;
public’s
not man-
best
does
lawmaking
ity
usurp
legislature’s
priority
particular
uses. The State’s
date
guise
enforcing
function under the
obligations to “promote diversi-
constitutional
agency’s interpretation
“public
of what the
agriculture”
agricultural
fied
and “increase
R.D. Merrill
trust” demands. See
Co.
self-sufficiency”
less consider-
warrant no
State,
P.2d
137 Wash.2d
they
offstream uses
ation because
involve
(1999) (“[T]he
duty]
[public trust
devolves
private
gain
indi-
that result
economic
State,
upon
particular agency.
Const,
(1978).
XI, §
Haw.
art.
viduals.
[agency’s] enabling
does not
statute
Indeed,
interest advanced
authority
trust
grant it
assume the
no more than the sum of
trust amounts to
pub
state....
[R]esort
duties of the
competing social and economic interests of
as an
canon of
lic trust doctrine
additional
public.
compose
the individuals that
necessary
light
is not
construction
*92
Huffman, A Fish
Water:
law James L.
Out
specific provisions at issue and the water
codes.”); The
Doctrine in a Constitution-
Public Trust
policies expressed
the state water
(1989)
527,
Fox,
Democracy,
Envtl. L.
549
Community College
al
Delaware
(“Public rights
by
public,
are exercised
the
justifying
light
burden of
their
uses]
democracy
purposes protected
people.”).
by
which in
the
is the
the trust.” Id. at
144, 9
at 454.
P.3d
majority’s
The
view of the public trust
accepting
majority’s
Even
the
articulation
essentially
invites this court to
rewrite the
(1)
public
true, given
trust as
that
the
uses,
prioritize particular
thereby
Code to
knowledge necessary
scientific
to establish
higher
imposing
scrutiny
level
on “non-
more definitive instream flow standards—the
uses,”
public trust
legislature
where the
im-
primary
to safeguard
mechanism
instream
posed
accepting
none. Because
such an invi-
admittedly “years away,” majority
uses—is
drafted,
tation would
the
devalue
Code as
(2)
114,
426,
scope
at
P.3d at
and
full
process,
circumvent the democratic
and in-
public
consequently
instream uses
remain
ject
uncertainty
substantial
into the Code-
undefined,
impossible
I believe that it is
process upon
based
allocation
water
which
applicants that
offs-
demonstrate
their
depends,
compelled
this State
I am
to dis-
impair public
tream
will not
uses
instream
sent.
majority acknowledges
uses. The
that “the
uncertainty
by
created
lack of
instream
IV.
Impossible
Users Face an
Offstream
flow standards
modifies the
nature
Burden of Proof.
161,
analysis....”
Commission’s
Id. at
“[ujnder
majority
The
holds
public
light
uncertainty,
P.3d
at 473.
this
Code, permit applicants
trust and the
have majority
applicants
holds that
for offs-
justifying
the burden of
proposed
their
uses
“[ají
uses,
minimum,’’
very
tream
must
light
protected
public rights in the
(1)
(2)
needs,
demonstrate
and
their actual
Majority
at
resource.”
P.3d at 472.
“within the constraints
available knowl-
majority
by
arrives
this determination
edge,
propriety
draining
water
taking
following steps.
majority
needs,” ie.,
public
satisfy
streams to
those
trust,
public
reasons that
by
as defined
practicable mitigation
absence of
measures.
common law and
incorporated
into the
added).
(emphases
Id. at
CONCLUSION
31,1996. Assuming arguendo that such sale
join
wholeheartedly
majority’s call
I
“use,”
common
under the
water constitutes
more defini-
for
to establish
the Commission
rights, it
law rule of correlative
establishes
for the
flow standards
wind-
tive instream
KSBE,
best,
“appropriator”
at
an
pur-
“utmost haste
ward streams with
lands, and
use on distant
ground water for
fear,
156,
I
ing the fact that it was points motion denied. KSBE
KSBE’s previously
out that it sold water to leeward notes public widely (noting public at 73-74 no one It that the trust N.W.2d understood assigns presumptions priorities destroyed no of in the bal- greatly impaired use be would purposes. ancing See National P.2d trust outweighed that the benefit Audubon, 723; Cal.Rptr. XI, harm), and must conform to article section Stevens, Sovereign’s The Public Trust: A Jan S. l’s mandate of "conservation.’’ The Commis- People's Prerogative Environ- Ancient Becomes sion, words, still ensure that all other must Right, 14 223-225 U.C. Davis L.Rev. mental protected purposes are to the extent feasi- trust nevertheless, (1980). balancing, must Such ble. Comm’n, reasonable, see, e.g., State v. Public Serv.