The public trust doctrine is known to apply to water resources and to conservation lands in Hawai\u02bbi. And an August 2019 ruling by the Hawai\u02bbi Supreme Court further clarified that all public natural resources are held in trust by the state, as are ceded lands, which are held in trust for the benefit of Native Hawaiians and the general public.<\/p>\n\n\n\n
\u201cAccordingly, our constitution places upon the state duties with respect to these trusts much like those of a common law trustee, including an obligation to protect and preserve the resources however they are utilized,\u201d the high court wrote in its decision in a case (Ching v. Case<\/em>) regarding the Department of Land and Natural Resources\u2019 management of the Pohakuloa Training Area on Hawai\u02bbi Island.<\/p>\n\n\n\n That ruling spurred Honolulu attorney David Kimo Frankel to ask the 1st Circuit Court to reconsider a ruling made earlier that year regarding the application of the public trust doctrine to an urban-zoned state parcel fronting the Kahala Hotel & Resort on O\u02bbahu.<\/p>\n\n\n\n The court had rejected Frankel\u2019s argument that the Board of Land and Natural Resources failed to meet its public trust duties when it voted in November 2018 to approve a revocable permit to the hotel\u2019s owner, Resorttrust Hawai\u02bbi, LLC, that allowed for potential commercial use, as well as extensive presetting of equipment that hampered public use. This despite the fact that resort\u2019s agreement with the state allowing for the creation of the parcel (known as Lot 41) called for it to be used as a public beach.<\/p>\n\n\n\n In his minute order denying Frankel\u2019s motion for reconsideration, the judge Jeffrey Crabtree noted that even though the Hawai\u02bbi Supreme Court\u2019s decision regarding the Pohakuloa Training Area states that all pubic natural resources are held in trust, \u201cIf this broad language was intended to change the recent and specific cautionary language in TMT, surely the Supreme Court would have said so expressly.\u201d<\/p>\n\n\n\n The Intermediate Court of Appeals held a different view. In a ruling released on January 29, it unanimously agreed that because Lot 41 is ceded land, public trust principles apply, and that the Circuit Court erred in ruling that they did not.<\/p>\n\n\n\n The majority of the ICA also stated in its ruling, \u201cThe circuit court erred in denying Frankel’s motion for partial summary judgment because the evidence, even when viewed in the light most favorable to the Board and Resorttrust, did not show that the Board (1) began with the presumption in favor of public use, (2) considered alternatives, or (3) provided a clear analysis when it issued a permit that compromised a public trust resource. \u2026<\/p>\n\n\n\n \u201cThe circuit court \u2026 abused its discretion in denying Frankel’s motion for reconsideration brought pursuant to Ching<\/em>.\u201d<\/p>\n\n\n\n The ICA vacated the circuit court\u2019s August 6, 2019 order “denying Frankel’s motion for partial summary judgment and August 20, 2019 orders granting the Board\u2019s and Resorttrust’s motions for summary judgment,\u201d and remanded the case to the Circuit Court for \u201cfurther proceedings consistent with this opinion.\u201d<\/p>\n\n\n\n Associate Judge Keith Hiraoka, however, dissented from the majority with regard to its findings that the Land Board failed to meet its public trust duties. He noted that in 2011, the Land Board approved a recommendation from the Department of Land and Natural Resources\u2019 Land Division to designate Lot 41 as one to be used for income generation.<\/p>\n\n\n\n He added, \u201cThe September 2018 DLNR staff submittal stated that Lot 41 was \u2026 \u2018unsuitable for public auction lease\u2019 because of the \u2018site issues\u2019 described in the submittal. This shows that BLNR did \u2018begin with a presumption in favor of public use, access, and enjoyment\u2019 for all \u2018lands and improvements under [its] control and management[,]\u2019 \u2026 ; balanced the need to generate revenue to fund the [Special Land Development Fund]; and decided that Lot 41 should be used to generate income that would fund global, long-term protection of all public lands.\u201d<\/p>\n\n\n\n Finally, he stated that the permit conditions imposed by the Land Board regarding the placement of equipment on Lot 41 \u201cshows it considered, and complied with, its duty to protect the public’s use of the trust resource while balancing the need to use the urban-zoned land for income generation.\u201d<\/p>\n\n\n\n Whether there will be an appeal to the Hawai\u02bbi Supreme Court remains to be seen. The current permit for Lot 41 held by Resorttrust does not allow for any resort equipment to be placed there, but does allow a shower to remain.<\/p>\n\n\n\n \u2014 Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" The public trust doctrine is known to apply to water resources and to conservation lands in Hawaiʻi. And an August 2019 ruling by the Hawaiʻi Supreme Court further clarified that all public natural resources are held in trust by the … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16365,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[534],"tags":[3],"class_list":["post-16364","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-february-2025","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16364","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16364"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16364\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16365"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16364"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16364"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16364"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}