The Public Trust Doctrine finds its origin in ancient Roman civil law. It was then and now accepted that citizens enjoy the right to free access to seashore, tidelands or what we in Hawai‘i call waters and land up to the high water mark. Lands and water which may be privately owned are also subject to the Public Trust Doctrine. That is to say that though privately owned, the State holds it in trust for the general public and this doctrine outweighs any concepts of ownership.

Essential to the trust doctrine is the existence of government. Without government there is no "king" or "state" that holds the access, use and rights for the citizenry or the public.

The State of Hawai‘i holds all water for the use and common good of the people. The people of the State confirmed this by way of Article XI Section 1 of the Hawai‘i State Constitution. The waters of are held in trust for the public. Certain of the State’s obligations as Trustee was believed to be transferred to the Water Commission; and through the Water Code, the Legislature felt it delineated the role of the Commission along with other relevant governmental agencies.

The Hawai‘i Supreme Court has corrected this presumption by ruling that the State Legislature cannot abdicate its responsibilities as the Trustee to the Water Commission or Code. What is of major significance in the Court’s decision is its identification of itself as "the ultimate authority to interpret and defend the public trust in Hawai‘i." By this ruling, the Court has interjected itself into the decision making process of what is the public trust.

In his dissent, Justice Mario Ramil states that the majority was trumping the Water Code for what he calls a "nebulous common law" doctrine. Justice Ramil is in the minority; however, what is evident for lawmakers is that the Court has sent a clear message that the presumption in the balancing of the public and private purposes for water use begins in favor of the public use.

When State lawmakers revisit the issue of the Water Code, they must do so with the Court’s ruling in mind. They must also realize that the Supreme Court has, in the exercise of their role as the ultimate authority to interpret and defend the public trust, specifically looked to provisions of the Commission’s decision and did not hesitate to identify areas which the Court wants addressed. It should be expected the Court will continue in their role of the ultimate monitor.