Outsourcing doesn’t violate public trust
What does the term "Public Trust Doctrine" mean to you boaters?
I raise the question because it is a term that has periodically laced public testimony at legislative hearings regarding how best to fix Hawaii's disintegrating recreational boating facilities.
The apparent meaning to those testifying has been that any divestiture of our state-operated marinas to the private sector would somehow be a violation of the Public Trust Doctrine.
Such a definition might come as a surprise to all of the states, counties, and municipalities across the U.S. that have embarked on public/private partnerships, but perhaps it's worthwhile to examine this doctrine nevertheless.
All it takes in this age of the Internet is a quick Google search and suddenly you have more than you ever wanted to know about any subject, including the Public Trust Doctrine.
We can learn, for instance, the doctrine's original concept dates back to A.D. 530 and the Roman Empire when it was proclaimed that, "By the law of nature these things are common to all mankind: the air, running water, the sea, and consequently the shores of the sea."
This concept was later adopted by the English in their Magna Carta and eventually found its way into the common laws of America's developing colonies, and even later, its states. Nearly all agreed that their shorelines and waters must be held in trust for the benefit of the public.
Still, it has been left to the courts to define what actually is a benefit to the public and how best to protect a resource and yet "promote its reasonable maximum and beneficial use."
Hawaii's Supreme Court has opined that, "Any balancing between public and private purposes begins with a presumption in favor of public use, access, and enjoyment."
So, when it becomes readily apparent that an agency of the state, in this case the Department of Land and Natural Resources, has substantially impaired the public's use of our boating infrastructure through an inability to maintain it, what then?
According to a National Oceanic and Atmospheric Administration educational Web site ( www.csc.noaa .gov/ptd), "Each state has the authority to grant private ownership and rights of possession in Public Trust lands with the proviso that they cannot substantially impair public use of trust lands and waters."
Wouldn't an arrangement between the state and a few marina management companies be as compatible with such a proviso as, say, the licensing of commercial catamaran and beach-boy services on Waikiki Beach, or the Atlantis Submarine dock on the Hilton Hawaiian Village beach?
And it's not like we would be setting any sort of legal precedence, as such outsourcing is accepted and is the virtual rule in most harbors of the nation.
No, the only likelihood would be that Hawaii's recreational boaters would finally be provided with the kind of safe, modern facilities boaters elsewhere take for granted.