What is the public trust doctrine in Hawaii? The short answer is: It is whatever the Hawaii Supreme Court says it is. Which is a flippant way of saying that any analysis of the public trust doctrine in Hawaii must begin with the Waiahole case. The case has been described in detail by others, including those on the panel today. I do not pretend to be an expert on Waiahole or the public trust doctrine. I would like to offer a few observations about the lessons of Waiahole and pose a few questions about its implications for the future of the public trust doctrine in Hawaii. My perspective is of one who is a "Waiahole non-combatant" but one who may well be invlolved in applying the public trust doctrine in the future as a member of a board that oversees many of Hawaii's public resources. LESSONS OF WAIAHOLE

The Waiahole decision provides several lessons about the public trust doctrine. Hawaii. From Waiahole and the body of law upon which is based we have learned that the public trust doctrine in Hawaii is based on both the Constitution and the common law and is intended to protect certain common rights of usage of certain natural resources. We have learned that in Hawaii it applies to all water resources under a state water resources trust. We have learned that the protection of certain public uses requires the state to undertake proactive water resource management based upon comprehensive planning, using the precautionary principle as a guideline to allocate appropriately the risk of scientific uncertainty in water resource management decisions. We have learned that the public trust doctrine in general evolves with changing public values and needs and that the particular public water uses now protected include the maintenance of waters in their natural state, domestic water use and the exertcise of Native Hawaiian and traditional and customary rights. Finally, we have learned that the doctrine can be applied in water managment decisions via case-by-case analyses undertaken by the Hawaii Water Commission.

Apart from the concrete "lessons," two themes emerge from Waiahole. First, the public trust doctrine in Hawaii can be seen as a tool to accomplish intergenerational as well as intragenerational equity with regard to the use of certain resources. The intergenerational equity component is reflected in the emphasis on resource protection, planning, controlled development and the precautionary principle. The intragenerational equity component is reflected in quest for balance among competing users (public vs. private; instream vs offstream) and the emphasis on clear, rational and fair resource decisionmaking. Second, while much of the public trust is "substantively protective" in nature, a large component of the doctrine could be seen as "procedurally protective" as well. In other words, as delineated in Waiahole, the public trust doctrine requires many procedural safeguards to ensure that the state adequately discharges its fiduciary duty as a trustee of trust resources. Illustrations of this procedural component include the guidelines on how case-by-case balancing analyses are to be conducted and the guidelines regarding the burden and standard of proof.

THE FUTURE OF THE PUBLIC TRUST DOCTRINE IN HAWAII AFTER WAIAHOLE

Although there are many lessons to be learned from Waiahole, the case also raises several questions. How some of these questions are answered will determine the future development of the public trust doctrine in Hawaii. Four such questions follow.

What does the Waiahole decision mean for the Waiahole participants and Oahu water planning in general?

The Waiahole decision was fairly clear in the directions it provides to the Commission for the particular Waiahole issues presented to the Supreme Court. The decision contains a framework on how to proceed and how to balance competing interests. How the Commission implements that framework is yet to be seen, Commission has not yet rendered its decision on remand. An additional question is whether the Commission will be able to comply fully with the Waiahole "framework" if it cannot abtain additional resources for its work.

What does the Waiahole decision mean for the Water Commission in general and the issues it decides?

In other words, how applicable are the Waiahole "lessons" to other situations? While the decision certainly contains broad language, the Waiahole case itself primarily concerned a "public use vs. private commercial use" water allocation decision in a designated water management area. What should the Commission do statewide? And what about a case where competing "public trust uses" are in question?

What does the Waiahole decision mean for other state or governmental agencies when dealing with water issues?

Do the state water resource trust doctrine requirements of Waiahole apply only to the Commission, or do they apply to other state agencies as well, i.e., the Board of Land and Natural Resources, or the Coastal Zone Management program at the state Office of Planning? If they do apply, how do they apply?

What does the Waiahole decision mean for other non-water public resources?

The Supreme Court in the Waiahole decision embraced the public trust doctrine by recognizing the state water resources trust. Does the same reasoning apply to all public resources held by the state under Article XI of the Hawaii State Constitution? If so, what are the parameters of that trust and how are those trust uses to be protected?