THE SENATE	S.C.R. NO.	156
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII

SENATE CONCURRENT

RESOLUTION

 

 

REQUESTING THE DEPARTMENT OF THE ATTORNEY GENERAL TO SUBMIT AN ANNUAL REPORT ON LITIGATION INVOLVING NATIVE HAWAIIAN TRADITIONAL AND CUSTOMARY RIGHTS AND THE STATE’S PUBLIC TRUST OBLIGATIONS UNDER ARTICLES XI and XII of the HAWAII STATE CONSTITUTION.

 

 

     WHEREAS, the Hawaii Constitution imposes affirmative fiduciary obligations on the State and its agencies to protect Native Hawaiian traditional and customary rights and to manage public trust lands and natural resources for the benefit of present and future generations; and

 

     WHEREAS, article XI, section 1, of the Hawaii State Constitution affirms the State’s duty to protect and preserve Hawaii’s natural public trust resources; and

 

WHEREAS, article XI, section 7, of the Hawaii State Constitution affirms the State's duty to protect, control, and regulate Hawaii's water resources for the benefit of its people; and

 

WHEREAS, article XII, section 4, of the Hawaii State Constitution affirms the State's duty to also hold in trust "ceded," or seized lands taken from the Hawaiian people without their consent or compensation, for the benefit of Native Hawaiians and the general public; and

 

WHEREAS, article XII, section 7, of the Hawaii State Constitution affirms and protects the traditional and customary rights of Native Hawaiians and imposes an obligation on the State and its political subdivisions to preserve and protect those rights; and

 

WHEREAS, courts in the State of Hawaii have repeatedly reviewed and, in many instances, overturned or corrected agency actions that failed to comply with these constitutional duties; and

 

     WHEREAS, selected holdings by the courts include the following:

(1)  In In re Water Use Permit Applications, 94 Hawai i 97 (2000), the Hawaii Supreme Court rejected the state’s position that keeping public trust water in streams constitutes waste, and that a lack of evidence of demand justifies the draining of Kahana stream;

 

(2)  In In re Wai ola o Moloka i, 103 Hawai i 401 (2004), and in In re Kukui, 116 Hawai i 481 (2007), the Hawaii Supreme Court found the State failed to recognize and protect Department of Hawaiian Home Lands water reservations and Native Hawaiian traditional and customary rights as public trust purposes of water;

 

(3)  In In re Petition to Amend Interim Instream Flow Standards for Waikamoi, 128 Hawai i 497 (2012), the Hawaii Intermediate Court of Appeals rejected arguments limiting protections for Native Hawaiian cultural practitioners' water rights and reaffirmed that decisions affecting water resources must comply with the State's public trust obligations and procedural safeguards;

 

(4)  In In re ‘ ao Ground Water Mgmt. Area High-Level Source Water User Permit Apps., 128 Hawai‘i 228 (2012), the Hawaii Supreme Court found that the state failed to adequately protect Native Hawaiian traditional and customary rights and consider other instream public uses in N  Wai  Eh , and failed  to adequately address massive water waste and alternative water sources as required by the public trust;

 

(5)  In Kilakila  O Haleakal  v. Board of Land and Natural Resources, 131 Hawai i 193 (2013), the Hawaii Supreme Court rejected the State's argument that the Board of Land and Natural Resources could vote to grant a conservation district use permit prior to holding a contested case hearing as requested by Native Hawaiian cultural practitioners;

 

(6)  In Ching v. Case, 145 Hawai i 148, 449 P.3d 1146 (2019), the Hawaii Supreme Court rejected the State’s argument that it could delegate its constitutional public trust duty to protect and preserve “ceded” (seized) public trust lands to the lessee of those lands, particularly after repeated reports of harm to trust property in violation of the lease;

 

(7)  In In re Surface Water Use Applications, 154 Hawai i 309 (2024), the Hawaii Supreme Court rejected the State’s argument that it need not take the initiative to examine how more water could be restored to N  Wai  Eh  after the closure of sugar operations in central Maui, and need not examine how Native Hawaiian traditional and customary rights could be specifically impacted by not updating minimum stream flow requirements;

 

(8)  In Frankel v. Board of Land and Natural Resources, No. CAAP-20-0000603 (Haw. Intermediate Ct. App. Jan. 29, 2025), the Intermediate Court of Appeals concluded that the State had not demonstrated compliance with its public trust duties in the management of "ceded" (seized) lands known as “Lot 41” and clarified that the public trust doctrine applies to such lands and requires agencies to exercise diligence and transparency in decision-making affecting public trust resources; and

 

(9)  In Kia i Wai O Wai ale ale v. BLNR, SCWC-23-0000383 (Hawai i Sep. 30, 2025), the Hawai i Supreme Court rejected the State’s argument that the Board of Land and Natural Resources had no constitutional public trust duty or authority to protect Native Hawaiian traditional and customary rights harmed or threatened by violations of a Board permit; and

 

WHEREAS, repeated judicial review of agency actions affecting Native Hawaiian traditional and customary rights and public trust resources highlights the need for careful legal analysis and adherence to constitutional, statutory, and procedural requirements in state decision-making; and

 

WHEREAS, repeated litigation necessary to correct legally erroneous or procedurally deficient agency actions has imposed significant financial, personal, and institutional burdens on Native Hawaiian community members, their allies, and public interest organizations seeking to uphold constitutional protections and the State’s public trust responsibilities; and

 

WHEREAS, judicial decisions invalidating agency actions based on violations of public trust duties or other constitutional provisions may have significant fiscal, operational, and policy implications for the State; and

 

     WHEREAS, the Legislature finds that improved transparency and interagency learning regarding litigation outcomes would promote constitutional compliance, reduce future litigation risk, and strengthen public confidence in state governance; now, therefore,

 

     BE IT RESOLVED by the Senate of the Thirty-third Legislature of the State of Hawaii, Regular Session of 2026, the House of Representatives concurring, that the Department of the Attorney General is requested to submit an annual report to the Legislature regarding litigation involving state agency actions affecting Native Hawaiian traditional and customary rights protected under Article XII, Section 7 of the Hawaii Constitution, and the State’s public trust obligations under Article XI, Sections 1 and 7, and Article XII, Section 4 of the Hawaii Constitution; and

 

     BE IT FURTHER RESOLVED that the annual report include, for the preceding fiscal year:

 

(1)  A summary of pending and completed litigation involving alleged violations of Native Hawaiian traditional and customary rights protected under the Hawaii Constitution;

 

(2)  A summary of litigation involving alleged violations of the State’s public trust obligations in the management of public lands, water resources, and other natural resources;

(3)  A description of the legal issues raised in such cases and the status or outcome of the litigation;

 

(4)  An assessment of whether agency actions challenged in the litigation complied with constitutional protections for Native Hawaiian traditional and customary practices and the State’s fiduciary duties in managing public trust resources; and

 

(5)  Any corrective actions or policy changes implemented by state agencies in response to judicial decisions involving these constitutional duties; and

 

     BE IT FURTHER RESOLVED that the Department of the Attorney General is requested to submit the annual report no later than twenty days prior to the convening of each Regular Session of the Legislature; and

 

     BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Attorney General of the State of Hawaii and the heads of all principal state departments and agencies.

 

 

 

OFFERED BY:

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