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The Constitution
of the
State of Hawaii

Incorporating the November 7, 2006 election changes,
and including the annotation.

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Article XI - Conservation, Control and Development of Resources

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Sections

1Conservation and development of resources
2Management and disposition of natural resources
3Agricultural lands
4Public land banking
5General laws required; exceptions
6Marine resources
7Water resources
8Nuclear energy
9Environmental rights
10Farm and home ownership
11Exclusive Economic Zone

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.

11.1
Conservation and development of resources

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 (1979), excerpted in the note preceding the Preamble to the Constitution.

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.

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.

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.

11.2
Management and disposition of natural resources

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.

Hawaii Legal Reporter Citations:

Conservation lands. 77-2 HLR 77-793.

11.3
Agricultural lands

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.

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.

11.4
Public land banking

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]

11.5
General laws required; exceptions

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]

11.6
Marine resources

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]

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.

11.7
Water resources

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.

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.

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.

11.8
Nuclear energy

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]

11.9
Environmental rights

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.

Case Notes:

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

11.10
Farm and home ownership

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 (1979). 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.

11.11
Exclusive Economic Zone

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]

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Article XI - Conservation, Control and Development of Resources

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