Constitution of Hawaii — Article 11

ARTICLE XI

 

CONSERVATION, CONTROL AND DEVELOPMENT OF RESOURCES

 

Note

 

  This article was redesignated from "Article X Conservation and Development of Resources" to be "Article XI Conservation, Control and Development of Resources" by Const Con 1978 and election Nov 7, 1978.  The former Article XI now appears as Article XII.

 

Law Journals and Reviews

 

  Environmental Protection Based on State Constitutional Law:  A Call for Reinterpretation.  12 UH L. Rev. 123.

 

CONSERVATION AND DEVELOPMENT OF RESOURCES

 

     Section 1.  For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.

     All public natural resources are held in trust by the State for the benefit of the people. [Add Const Con 1978 and election Nov 7, 1978]

 

Note

 

  A proposal of the 1978 Constitutional Convention deleted the former section 1 of the old Article X, which read:  "Section 1.  The legislature shall promote the conservation, development and utilization of agricultural resources, and fish, mineral, forest, water, land, game and other natural resources."  This deletion appears to be one of the unspecified changes submitted for ratification under Question 34.  On whether any of the changes submitted under Question 34 was in fact approved by the electorate, see Kahalekai v. Doi, 60 H. 324, 590 P.2d 543, excerpted in the note preceding the Preamble to the Constitution.

 

Attorney General Opinions

 

  The department of Hawaiian home lands' authority to manage and dispose of geothermal resources on its lands, which stems from the Admission Act, the Hawaii constitution, and the Hawaiian Homes Commission Act, does not run afoul of the public trust doctrine.  Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

  Residential Use of Hawai`i's Conservation District.  14 UH L. Rev. 633.

  Hawai`i Constitution, Article XI, Section 1:  The Conservation, Protection, and Use of Natural Resources.  19 UH L. Rev. 177.

  Proceedings of the 2001 Symposium on Managing Hawai`i's Public Trust Doctrine.  24 UH L. Rev. 21.

  Wiping Out the Ban on Surfboards at Point Panic.  27 UH L. Rev. 303.

  Biopiracy in Paradise?:  Fulfilling the Legal Duty to Regulate Bioprospecting in Hawai`i.  28 UH L. Rev. 387.

  The Patenting of Sacred Biological Resources, the Taro Patent Controversy in Hawai`i:  A Soft Law Proposal.  29 UH L. Rev. 581.

  Water Regulation, Land Use and the Environment.  30 UH L. Rev. 49.

  Propagating Cultural Kīpuka:  The Obstacles and Opportunities of Establishing a Community-Based Subsistence Fishing Area.  31 UH L. Rev. 193.

  Where Justice Flows Like Water:  The Moon Court's Role in Illuminating Hawai`i Water Law.  33 UH L. Rev. 537 (2011).

  The Wash of the Waves: How the Stroke of a Pen Recharacterized Accreted Lands as Public Property.  34 UH L. Rev. 525 (2012).

  The Public Trust Doctrine:  Some Jurisprudential Variations and Their Implications.  38 UH L. Rev. 261 (2016).

  Nā Mo`o o Ko`olau:  The Water Guardians of Ko`olau Weaving and Wielding Collective Memory in the War for East Maui Water.  41 UH L. Rev. 189 (2018).

  Applying Indigenous Ecological Knowledge for the Protection of Environmental Commons:  Case Studies from Hawai`i for the Benefit of "Island Earth".  41 UH L. Rev. 300 (2019).

  Implementing PASH and Its Progeny Within DLNR.  43 UH L. Rev. 420 (2021).

  PASH:  No One Legacy.  43 UH L. Rev. 452 (2021).

  Eliminating the Hardship Variance in Honolulu's Shoreline Setback Ordinance:  The City and County of Honolulu's Public Trust Duties as an Exception to Regulatory Takings Challenges.  43 UH L. Rev. 464 (2021).

  PASH and the Evolution of Native Hawaiian Rights Protection.  43 UH L. Rev. 550 (2021).

  A Litigator's Approach to Issues Concerning Exercise and Protection of Native Hawaiian Traditional and Customary Rights.  43 UH L. Rev. 592 (2021).

  Finding a New Path:  A Practical Look at PASH, the Public Trust, and Western Property Law.  43 UH L. Rev. 613 (2021).

  Ho`okahe Wai:  An Analysis of a Proposed Exemption from Hawai`i's Water Leasing Process for Kalo Farming and Consistency with Hawai`i's Public Trust Doctrine.  44 UH L. Rev. 145 (2022).

  Mai Kēia Manawa ā Mau Loa Aku:  Kānaka Maoli Governance Through Nearshore Fisheries Management in Mo`omomi.  45 UH L. Rev. 185 (2022).

  Ola i ka Malu `Ulu o Lele:  An Emerging Collective Memory of Injustice in Maui Komohana as a Foundation for Recovery from Lahaina's Wildfires and Restorative Justice for Hawai`i.  47 UH L. Rev. 2 (2024).

  A Right to Living Culture:  Articulating Issues and Opportunities for Protecting Contemporary and Emerging Native Hawaiian Rights, Practices, and Resources.  47 UH L. Rev. 180 (2024).

 

Case Notes

 

  State Constitution's conservation clause may obligate counties to use their authority to conserve public-trust resources, but it does not permit counties to exercise power that the State has not granted them.  Therefore, it is irrelevant whether county ordinance is beyond the county's police power under this section because it is impliedly preempted by state law.  842 F.3d 669 (2016).

  Although the public trust doctrine and the state water code share similar core principles, the code does not supplant the protections of the public trust doctrine.  94 H. 97, 9 P.3d 409.

  The maintenance of waters in their natural state constitutes a distinct "use" under the water resources trust.  94 H. 97, 9 P.3d 409.

  The state water resources trust embodies the following fundamental principles:  the State has both the authority and duty to preserve the rights of present and future generations in the waters of the State; and the State bears an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.  94 H. 97, 9 P.3d 409.

  This section and article XI, §7 of the Hawaii constitution adopt the public trust doctrine as a fundamental principle of constitutional law in Hawaii.  94 H. 97, 9 P.3d 409.

  Under this section, article XI, §7 of the Hawaii constitution and the sovereign reservation, the public trust doctrine applies to all water resources, unlimited by any surface-ground distinction.  94 H. 97, 9 P.3d 409.

  Pursuant to this section and §7 of the Hawaii constitution, §220(d) of the Hawaiian Homes Commission Act, and §174C-101(a), a reservation of water constitutes a public trust purpose.  103 H. 401, 83 P.3d 664.

  Where commission on water resource management failed to render the requisite findings of fact and conclusions of law with respect to whether applicant had satisfied its burden as mandated by the state water code, it violated its public trust duty to protect the department of Hawaiian home lands' reservation rights under the Hawaiian Homes Commission Act, the state water code, the state constitution, and the public trust doctrine in balancing the various competing interests in the state water resources trust.  103 H. 401, 83 P.3d 664.

  Department of health's (DOH) duties under the public trust doctrine requires the DOH to not only issue permits after prescribed measures appear to be in compliance with state regulation, but also to ensure that the prescribed measures are actually being implemented after a thorough assessment of the possible adverse impacts the development would have on the State's natural resources; this duty is consistent with the constitutional mandate under this section and the duties imposed upon the DOH by chapters 342D and 342E.  111 H. 205, 140 P.3d 985.

  The public trust duties imposed on the State under this section also applied to the county, as a political subdivision of the State; this section mandates that the county has an obligation to conserve and protect the State's natural resources; the county's power under the general laws with respect to its public trust duty to protect the natural resources of the State can be found in chapter 180C; thus, the county had a duty to protect the waters located adjacent to defendant's property.  111 H. 205, 140 P.3d 985.

  As the department of Hawaiian home lands' reservation of water did not constitute an "existing legal use" for purposes of §174C-49(a)(3) but a public trust "purpose", commission on water resource management was obligated to take this reservation into account in the planning and allocation of water resources and to protect it whenever feasible, as this public trust purpose status made it superior to private interests in the resources at any given time; however, commission was not precluded from approving uses which may compromise this reservation, as long as commission's decision was "made with a level of openness, diligence, and foresight".  116 H. 481, 174 P.3d 320.

  Commission on water resource management failed in its public trust duty to hold water use permit applicant to its burden of demonstrating the absence of other practicable alternative sources of water when it reserved consideration of feasible alternative sources of water until after the "new uses" water permit had been granted; commission thus failed to establish an adequate basis for the amount of "new uses" water allocated to applicant.  116 H. 481, 174 P.3d 320.

  Despite evidence that permit applicant violated chapter 340E, neither the water code nor the public trust precluded the commission on water resource management from allocating water to applicant to supply water to domestic end users from a delivery system that may not comply with chapter 340E; as this jurisdiction separately regulates water allocation and drinking water standards, and there was no discernable legislative intent to make water use permit applications subject to compliance with chapter 340E, violations of chapter 340E were not germane to a review of the propriety of water allocation under the water code and the public trust.  116 H. 481, 174 P.3d 320.

  The planning commission's findings of fact were not erroneous and its conclusions of law were correct, viewed in light of the duties and authority mandated by the public trust; therefore its decision to deny applicant's permits was not arbitrary and capricious.  133 H. 141, 324 P.3d 951 (2014).

  Where the public utilities commission dealt not with a proposed use, but rather a rate increase that did not increase the amount of water used or change how the water was extracted, and the utility's effect on the public trust water resources would be the same whether or not the rate increase was approved by the commission, the commission's rate approval had no effect on the public trust; thus, the commission did not violate the public trust doctrine.  127 H. 234 (App.), 277 P.3d 328 (2012).

  Appellee Kauai County planning commission's public trust duty under this section, coupled with the State's power to create and delegate duties to the counties, established that appellee had a duty to conserve and protect water resources in considering whether to issue a special permit to appellant water bottling company.  130 H. 407 (App.), 312 P.3d 283 (2013).

  Public trust duties under this section extended to appellee Kauai County planning commission's review of appellant water bottling company's existing and proposed use of water for its operations; the county's public trust duty under this section coupled with the State's power to create and delegate duties and responsibilities to the various counties through the enactment of statutes, established that the county had a duty to conserve and protect water in considering whether to issue a use permit and zoning permit to appellant.  130 H. 407 (App.), 312 P.3d 283 (2013).

  The applicable standards and criteria that appellee Kauai County planning commission was required to employ to meet its public trust obligations in considering appellant water bottling company's combined application for a use, zoning, and special permit were:  (1) that appellee's decision be initially grounded in the framework of statutes and regulatory provisions that authorize appellee to act; (2) that appellee make appropriate assessments and require reasonable measures to protect the water resources; and (3) because appellant sought to use the water for economic gain, that appellee give the application a higher level of scrutiny and that appellant carry the burden to justify the use of the water in light of the purposes protected by the public trust.  130 H. 407 (App.), 312 P.3d 283 (2013).

 

 

MANAGEMENT AND DISPOSITION OF NATURAL RESOURCES

 

     Section 2.  The legislature shall vest in one or more executive boards or commissions powers for the management of natural resources owned or controlled by the State, and such powers of disposition thereof as may be provided by law; but land set aside for public use, other than for a reserve for conservation purposes, need not be placed under the jurisdiction of such a board or commission.

     The mandatory provisions of this section shall not apply to the natural resources owned by or under the control of a political subdivision or a department or agency thereof. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Executive board, see §26-15.

 

Attorney General Opinions

 

  Not applicable to agriculture department.  Att. Gen. Op. 64-14.

  Not applicable to Hawaiian home lands department.  Att. Gen. Op. 64-15.

 

 

AGRICULTURAL LANDS

 

     Section 3.  The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands.  The legislature shall provide standards and criteria to accomplish the foregoing.

     Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action. [Add Const Con 1978 and election Nov 7, 1978]

 

Law Journals and Reviews

 

  Maha`ulepu v. Land Use Commission:  A Symbol of Change; Hawaii's Land Use Law Allows Golf Course Development on Prime Agricultural Land by Special Use Permit.  13 UH L. Rev. 205.

  Is Agricultural Land in Hawai`i "Ripe" for a Takings Analysis?  24 UH L. Rev. 121.

  "Urban Type Residential Communities in the Guise of Agricultural Subdivisions:"  Addressing an Impermissible Use of Hawai`i's Agricultural District.  25 UH L. Rev. 199.

  Avoiding the Next Hokuli`a:  The Debate over Hawai`i's Agricultural Subdivisions.  27 UH L. Rev. 441.

  Crying Over Spilt Milk:  Recognizing Hawaii's Unique State Characteristics in the Context of the Dormant Commerce Clause.  32 UH L. Rev. 513 (2010).

 

Case Notes

 

  Unconstitutional if applied to deny importation of out-of-state goods for no reason other than goods traveled in interstate commerce.  590 F. Supp. 778.

  This section requires legislative action to become operative; the nature of the required legislative action, at the least, is the adoption of standards and criteria; because this section is not "complete in itself", it requires implementing legislation.  102 H. 465, 78 P.3d 1.

  Until standards and criteria for the preservation of agricultural lands are adopted by the legislature, this section is legally inoperative; thus, developer's lands could be rezoned without a two-thirds majority vote of the city council; trial court correctly ruled that passage of council rezoning bill by simple majority did not violate this section.  102 H. 465, 78 P.3d 1.

  This section does not require land use commission to stay land reclassification proceedings pending completion of the county important agricultural lands designation process, as this section is not self-executing and its plain language expresses no intent to require commission to stay reclassification proceedings pending formal identification of important agricultural lands.  136 H. 505, 364 P.3d 213 (2015).

 

 

PUBLIC LAND BANKING

 

     Section 4.  The State shall have the power to acquire interests in real property to control future growth, development and land use within the State.  The exercise of such power is deemed to be for a public use and purpose. [Add Const Con 1978 and election Nov 7, 1978]

 

 

GENERAL LAWS REQUIRED; EXCEPTIONS

 

     Section 5.  The legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws, except in respect to transfers to or for the use of the State, or a political subdivision, or any department or agency thereof. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Act 3, L Sp 2007 1st, requiring the Hawaii community development authority to set aside state lands for use by the Kewalo Keiki Fishing Conservancy (KKFC), a private nonprofit section 501(c)(3) organization under the Internal Revenue Code, violated this section; Act 3 could only be interpreted as being a special legislation because it was enacted to benefit the KKFC specifically and was limited to a specific property.  Att. Gen. Op. 07-2.

 

Case Notes

 

  Where Act 2, L Sp 2007 2d created a class that was "logically and factually limited to a 'class of one' ", that is, it was not reasonably probable that other members could enter the class in the future, the class was illusory; thus, Act 2 was a special law in violation of this section and the circuit court erred when it concluded that Act 2 was constitutional and dismissed plaintiff's claims as moot.  120 H. 181, 202 P.3d 1226.

  Where, without the legal authority provided by §15 of Act 2, L Sp 2007 2d through an exercise of legislative power, the operating agreement between the superferry and the state department of transportation would have remained void and unenforceable by the circuit court's order as it related to the lands at Kahului Harbor, Act 2 was an exercise of legislative power over state lands.  120 H. 181, 202 P.3d 1226.

 

 

MARINE RESOURCES

 

     Section 6.  The State shall have the power to manage and control the marine, seabed and other resources located within the boundaries of the State, including the archipelagic waters of the State, and reserves to itself all such rights outside state boundaries not specifically limited by federal or international law.

     All fisheries in the sea waters of the State not included in any fish pond, artificial enclosure or state-licensed mariculture operation shall be free to the public, subject to vested rights and the right of the State to regulate the same; provided that mariculture operations shall be established under guidelines enacted by the legislature, which shall protect the public's use and enjoyment of the reefs.  The State may condemn such vested rights for public use. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Law Journals and Reviews

 

  Protecting Hawai`i's Fisheries:  Creating an Effective Regulatory Scheme to Sustain Hawai`i's Fish Stocks.  29 UH L. Rev. 243.

  Propagating Cultural Kīpuka:  The Obstacles and Opportunities of Establishing a Community-Based Subsistence Fishing Area.  31 UH L. Rev. 193.

  Mai Kēia Manawa ā Mau Loa Aku:  Kānaka Maoli Governance Through Nearshore Fisheries Management in Mo`omomi.  45 UH L. Rev. 185 (2022).

 

Case Notes

 

  Private fishing rights not established under §96 of the Organic Act continue to be free to the public under this section.  48 H. 152, 192, 397 P.2d 593.

 

 

WATER RESOURCES

 

     Section 7.  The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.

     The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources. [Add Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  State water code, see chapter 174C.

 

Attorney General Opinions

 

  The Hawaii constitution does not include any provision for geothermal resources analogous to that afforded to water under this section; the same level of protection and interest-balancing afforded to water resources are not applicable to geothermal resources.  Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

  Private Hopes and Public Values in the "Reasonable Beneficial Use" of Hawaii's Water:  Is Balance Possible?  18 UH L. Rev. 1.

  Cultures in Conflict in Hawai`i:  The Law and Politics of Native Hawaiian Water Rights.  18 UH L. Rev. 71.

  Proceedings of the 2001 Symposium on Managing Hawai`i's Public Trust Doctrine.  24 UH L. Rev. 21.

  Native Hawaiian Homestead Water Reservation Rights:  Providing Good Living Conditions for Native Hawaiian Homesteaders.  25 UH L. Rev. 85.

  Biopiracy in Paradise?:  Fulfilling the Legal Duty to Regulate Bioprospecting in Hawai`i.  28 UH L. Rev. 387.

  Water Regulation, Land Use and the Environment.  30 UH L. Rev. 49.

  Where Justice Flows Like Water:  The Moon Court's Role in Illuminating Hawai`i Water Law.  33 UH L. Rev. 537 (2011).

  A New Narrative:  Native Hawaiian Law.  39 UH L. Rev. 233 (2016).

  Nā Mo`o o Ko`olau:  The Water Guardians of Ko`olau Weaving and Wielding Collective Memory in the War for East Maui Water.  41 UH L. Rev. 189 (2018).

  Applying Indigenous Ecological Knowledge for the Protection of Environmental Commons:  Case Studies from Hawai`i for the Benefit of "Island Earth".  41 UH L. Rev. 300 (2019).

  Implementing PASH and Its Progeny Within DLNR.  43 UH L. Rev. 420 (2021).

  Eliminating the Hardship Variance in Honolulu's Shoreline Setback Ordinance:  The City and County of Honolulu's Public Trust Duties as an Exception to Regulatory Takings Challenges.  43 UH L. Rev. 464 (2021).

  Ho`okahe Wai:  An Analysis of a Proposed Exemption from Hawai`i's Water Leasing Process for Kalo Farming and Consistency with Hawai`i's Public Trust Doctrine.  44 UH L. Rev. 145 (2022).

  Ola i ka Malu `Ulu o Lele:  An Emerging Collective Memory of Injustice in Maui Komohana as a Foundation for Recovery from Lahaina's Wildfires and Restorative Justice for Hawai`i.  47 UH L. Rev. 2 (2024).

 

Case Notes

 

  Although the public trust doctrine and the state water code share similar core principles, the code does not supplant the protections of the public trust doctrine.  94 H. 97, 9 P.3d 409.

  In denying water use permit application, water resource management commission did not wrongfully ignore and abridge petitioner's "ali`i rights" where, to the extent that the ali`i exercised sovereign authority over water, they received such authority by delegation from the sovereign; pursuant to constitutional and statutory mandate, final delegated authority presently resides in the commission, to be exercised for the benefit of the people of the State.  94 H. 97, 9 P.3d 409.

  The maintenance of waters in their natural state constitutes a distinct "use" under the water resources trust.  94 H. 97, 9 P.3d 409.

  The rule of correlative rights applies to all ground waters of the State.  94 H. 97, 9 P.3d 409.

  The state water resources trust embodies the following fundamental principles:  the State has both the authority and duty to preserve the rights of present and future generations in the waters of the State; and the State bears an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.  94 H. 97, 9 P.3d 409.

  This section and article XI, §1 of the Hawaii constitution adopt the public trust doctrine as a fundamental principle of constitutional law in Hawaii.  94 H. 97, 9 P.3d 409.

  Under this section, article XI, §1 of the Hawaii constitution and the sovereign reservation, the public trust doctrine applies to all water resources, unlimited by any surface-ground distinction.  94 H. 97, 9 P.3d 409.

  Pursuant to this section and §1 of the Hawaii constitution, §220(d) of the Hawaiian Homes Commission Act, and §174C-101(a), a reservation of water constitutes a public trust purpose.  103 H. 401, 83 P.3d 664.

  Where commission on water resource management failed to render the requisite findings of fact and conclusions of law with respect to whether applicant had satisfied its burden as mandated by the state water code, it violated its public trust duty to protect the department of Hawaiian home lands' reservation rights under the Hawaiian Homes Commission Act, the state water code, the state constitution, and the public trust doctrine in balancing the various competing interests in the state water resources trust.  103 H. 401, 83 P.3d 664.

  As the department of Hawaiian home lands' reservation of water did not constitute an "existing legal use" for purposes of §174C-49(a)(3) but a public trust "purpose", commission on water resource management was obligated to take this reservation into account in the planning and allocation of water resources and to protect it whenever feasible, as this public trust purpose status made it superior to private interests in the resources at any given time; however, commission was not precluded from approving uses which may compromise this reservation, as long as commission's decision was "made with a level of openness, diligence, and foresight".  116 H. 481, 174 P.3d 320.

  Commission on water resource management failed in its public trust duty to hold water use permit applicant to its burden of demonstrating the absence of other practicable alternative sources of water when it reserved consideration of feasible alternative sources of water until after the "new uses" water permit had been granted; commission thus failed to establish an adequate basis for the amount of "new uses" water allocated to applicant.  116 H. 481, 174 P.3d 320.

  The planning commission's findings of fact were not erroneous and its conclusions of law were correct, viewed in light of the duties and authority mandated by the public trust; therefore its decision to deny applicant's permits was not arbitrary and capricious.  133 H. 141, 324 P.3d 951 (2014).

  Where the public utilities commission dealt not with a proposed use, but rather a rate increase that did not increase the amount of water used or change how the water was extracted, and the utility's effect on the public trust water resources would be the same whether or not the rate increase was approved by the commission, the commission's rate approval had no effect on the public trust; thus, the commission did not violate the public trust doctrine.  127 H. 234 (App.), 277 P.3d 328 (2012).

 

 

NUCLEAR ENERGY

 

     Section 8.  No nuclear fission power plant shall be constructed or radioactive material disposed of in the State without the prior approval by a two-thirds vote in each house of the legislature. [Add Const Con 1978 and election Nov 7, 1978]

 

 

ENVIRONMENTAL RIGHTS

 

     Section 9.  Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law. [Add Const Con 1978 and election Nov 7, 1978]

 

Law Journals and Reviews

 

  Enforcement of Environmental Laws in Hawai`i.  16 UH L. Rev. 85.

  A Suggested Framework for Judicial Review of Challenges to the Adequacy of an Environmental Impact Statement Prepared under the Hawaii Environmental Policy Act.  18 UH L. Rev. 719.

  Hawai`i Constitution, Article XI, Section 1:  The Conservation, Protection, and Use of Natural Resources.  19 UH L. Rev. 177.

  When Nobody Asks:  The Toxic Legacy of Oahu's Pineapple Lands.  29 UH L. Rev. 553.

  Ala Loop and the Private Right of Action Under Hawai`i Constitution Article XI, Section 9:  Charting a Path Toward a Cohesive Enforcement Scheme.  33 UH L. Rev. 367 (2010).

  The Moon Court's Environmental Review Jurisprudence:  Throwing Open the Courthouse Doors to Beneficial Public Participation.  33 UH L. Rev. 581 (2011).

  A Self-Executing Article XI, Section 9-–The Door For a Bivens Action for Environmental Rights?  34 UH L. Rev. 187 (2012).

  Applying Indigenous Ecological Knowledge for the Protection of Environmental Commons:  Case Studies from Hawai`i for the Benefit of "Island Earth".  41 UH L. Rev. 300 (2019).

  Reoccurring Cultural Insensitivity:  Confronting the Abdication of Core Judicial Functions.  43 UH L. Rev. 341 (2021).

  Eliminating the Hardship Variance in Honolulu's Shoreline Setback Ordinance:  The City and County of Honolulu's Public Trust Duties as an Exception to Regulatory Takings Challenges.  43 UH L. Rev. 464 (2021).

  PASH and the Evolution of Native Hawaiian Rights Protection.  43 UH L. Rev. 550 (2021).

  Intervening in the Public's Interest Before the Maui County Planning Commission, Hawai`i.  44 UH L. Rev. 1 (2022).

 

Case Notes

 

  Section does not enlarge subject matter jurisdiction of federal courts.  714 F.2d 77.

  Chapter 205 is a law relating to environmental quality within the meaning of this section as it implements the guarantee of a clean and healthful environment established by this section.  123 H. 391, 235 P.3d 1103 (2010).

  In the circumstances of the case, this section created a private right of action to enforce chapter 205, and the legislature confirmed the existence of that right of action by enacting §607-25, which allows for the recovery of attorneys' fees in such actions.  123 H. 391, 235 P.3d 1103 (2010).

  This section is self-executing, and §205-12 imposes "reasonable limitations and regulations" that were applicable to the case which allowed the private right of action to enforce chapter 205.  123 H. 391, 235 P.3d 1103 (2010).

  Because:  (1)  §6E-13(b) allows a suit to be brought only for a restraining order or injunctive relief and is an exception to the sovereign immunity doctrine for which no waiver is necessary, and therefore does not contain a waiver of the State's sovereign immunity; and (2)  nothing in this section expressly waived the State's immunity for attorney's fees, there was no clear relinquishment of the State's sovereign immunity, and thus, the State's immunity barred petitioner's request for fees based on the private attorney doctrine.  129 H. 454, 304 P.3d 252 (2013).

 

 

FARM AND HOME OWNERSHIP

 

     Section 10.  The public lands shall be used for the development of farm and home ownership on as widespread a basis as possible, in accordance with procedures and limitations prescribed by law.

 

Note

 

  This is the former section 5 of the old Article X.  A proposal of the 1978 Constitutional Convention deleting this provision from the Constitution was not validly ratified.  Kahalekai v. Doi, 60 H. 324, 590 P.2d 543.  In view of the holding, the revisor has restored the provision and designated it as section 10 of this article under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

 

EXCLUSIVE ECONOMIC ZONE

 

     Section [11].  The State of Hawaii asserts and reserves its rights and interest in its exclusive economic zone for the purpose of exploring, exploiting, conserving and managing natural resources, both living and nonliving, of the seabed and subsoil, and superadjacent waters. [Add SB 2021 (1988) and election Nov 8, 1988]