HB 2230: DLNR; Public Trust Resources; Public Trust Doctrine; Hierarchy of Duty

A BILL FOR AN ACT

relating to public trust resources.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that the State holds all public natural resources in trust for the benefit of present and future generations pursuant to article XI, section 1, and article XI, section 7, of the Hawaii State Constitution.  The Hawaii supreme court has affirmed that this public trust is a constitutional mandate that requires the State to prioritize the protection and conservation of resources.

     The legislature further finds that while various court decisions have recognized the prioritization of certain uses over other uses for public trust resources, a policy has not been uniformly codified for all resources and areas administered by the department of land and natural resources.  This lack of legal clarity has led to inconsistent management, prolonged litigation, and the degradation of public trust resources.

     The legislature recognizes the governor's proclamation declaring 2026 as the "Year of Our Coastal Kuleana", affirming the State's responsibility to steward Hawaiʻi's coastal and marine resources, a declaration which prioritizes public trust resource protection.

     The purpose of this Act is to require the department of land and natural resources to adopt administrative rules that establish a hierarchy of duty to guide management decisions in accordance with the department's role as a fiduciary trustee of public trust resources.

     SECTION 2.  Chapter 171, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§171-     Hierarchy of duty for public trust resources.  (a)  In administering, managing, regulating, or permitting the use of public trust resources, the department shall adhere to the following hierarchy of duty, listed in order of priority:

     (1)  Duty 1 – resource protection:  Preservation, protection, and restoration of the natural environment, including ecosystems, watersheds, coastal areas, marine resources, biodiversity, and ecological processes.  This duty is mandatory and non-discretionary and shall supersede all other uses.  Any action that would cause significant degradation of a public trust resource shall be prohibited;

     (2)  Duty 2 – public and cultural uses:  Cultural uses, including Native Hawaiian traditional and customary practices exercised for subsistence, cultural, religious, and customary purposes consistent with article XII, section 7, of the Hawaii State Constitution.  Uses that directly serve the public interest, including subsistence gathering and other non-commercial uses conducted in accordance with applicable laws and rules, and non-commercial recreational activities; provided that such activities are compatible with resource protection, public safety, and the sustainability of public trust resources; and

     (3)  Duty 3 – commercial uses:  Commercial or for-profit activities that utilize public trust resources or public lands or waters.  Commercial uses may be permitted only when:

          (A)  The department affirmatively determines that a surplus of ecological and social carrying capacity exists;

          (B)  Feasibility studies, environmental review, and best available science demonstrate that the activity will not impair higher-priority duties; and

          (C)  The use provides a clear public benefit and is consistent with long-term sustainability of the resource.

The burden of proof shall rest with the applicant or committee to demonstrate compliance with this hierarchy of duty.

     (b)  The hierarchy of duty established under this section shall apply to all permits, leases, licenses, easements, renewals, amendments, and approvals issued or administered by the department.  Any existing authorization that is renewed or materially amended after the effective date of this Act shall be subject to the requirements of this section.

     (c)  Failure to comply with the hierarchy of duty established under this section shall constitute grounds for denial, revocation, or modification of any permit or authorization.

     (d)  Nothing in this section shall be construed to diminish or limit any constitutional protections, including Native Hawaiian rights or the State's fiduciary obligations under the public trust doctrine.

     (e)  The department shall adopt rules pursuant to chapter 91 to implement this section.  The rules shall:

     (1)  Establish clear standards and criteria for determining compliance with each level of the hierarchy of duty;

     (2)  Require the use of best available science, traditional ecological knowledge, and Ka Paʻakai analysis;

     (3)  Provide procedures for evaluating cumulative impacts and long-term sustainability; and

     (4)  Ensure meaningful public participation, including consultation with Native Hawaiian practitioners."

     SECTION 3.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect upon its approval.

Report Title:

DLNR; Public Trust Resources; Public Trust Doctrine; Hierarchy of Duty

Description:

Establishes a hierarchy of duty for public trust resources to be applicable to the decisions made by the Department of Land and Natural Resources in the management of the State's public natural resources.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.