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Other Views

By George M. Hudes

Saturday, September 23, 2000

Landed interests
seek too much
Waiahole water

THE Sept. 9 Other Views column of David Callies (Insight section, "Supreme Court ignored water mandates") misrepresented both the spirit and specifics of the Hawaii Supreme Court decision in the Waiahole water case.

Callies is not merely a University of Hawaii law professor. He also represented the Land Use Research Foundation, a developer's lobby, before the Water Commission in the Waiahole water case.

Rather than legal scholarship, his statements should be seen as a rhetorical opening salvo in the coming attempt by big landed and development interests in Hawaii in the next legislative session.

They want to create confusion and fear needed to gut provisions of the Hawaii Constitution, the State Water Code and the Supreme Court's carefully considered interpretation of these documents.

Callies made two basic points in his commentary:

First, he said that land zoned for urban development in Leeward Oahu requires water and that the decisions of the Hawaii Commission on Water Resources Management should be consistent with county and state plans and zoning.

Callies suggested that the Supreme Court, by invalidating some of the allocations of Waiahole waters made by the Water Commission, has ignored the legal mandates for consistency of water allocations with state and county plans and zoning and that, because of this, a shortage of water for urban development in Leeward Oahu will result.

This is false. Requests and allocations for Waiahole Ditch waters in Leeward Oahu have been for short-term agriculture and golf courses, not urban development.

More important, Callies conveniently ignored an important factual finding by the Water Commission in its Waiahole water allocation decision that the Supreme Court quoted on page 13 of its 164-page decision:

"For example, even at the present time, there is more land zoned for various uses than available water to supply those proposed uses. Thus, it is not sufficient to merely conclude that a particular parcel of land is properly zoned and that the use is 'beneficial.' That minimal conclusion may be inadequate to resolve situations in which competitive demand exceeds supply. Further analysis of public interest criteria relevant to water (e.g. conservation, alternative uses, comparative public costs and benefits) will be needed."

It was the shortcomings of the Water Commission's "further analysis" on which, among other things, the Supreme Court took the Water Commission to task. The court did this by explaining and applying the requirements of the public trust which is the legally mandated basis according to which all fresh waters in Hawaii are to be managed.

This brings us to Callies' second point, which is that the Supreme Court has elevated "an arcane doctrine called the 'public trust' over the Water Commission and the statutory code created by our Legislature to implement our state constitutional protection of our natural resources..."

ARCANE means mysterious or understood by very few. And while public trust doctrine may be mysterious to or not understood by Callies, the Hawaii Supreme Court noted: "Most importantly the people of this state have elevated the public trust doctrine to the level of a constitutional mandate."

Both the state Constitution and the Hawaii Water Code specify that the waters of our state are held in public trust. The court then explained the nature of the public trust and how it operates with respect to water in Hawaii, including reference to numerous historic and contemporary legal sources.

Beyond stating that a public trust carries a responsibility for the State of Hawaii to exercise great care in safeguarding natural water resources and more than a simple balancing of interests in determining uses to which they may be put, any shorthand attempt to explain the concept would inevitably shortchange both the interested public and a clarity in history, scope and substance to which the Supreme Court devotes more than 30 pages of its opinion.

Those interested in this issue should read the opinion of the Hawaii Supreme Court itself. It can be found on the Internet at jud/21309.htm.

George M. Hudes is a board member of
Hui Ulu Mea Ai, a community development
corporation in Waiahole.

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