Isle Court Clarifies Key Water Ruling

In an important clarification of its 1973 landmark case involving water rights, the Hawaii Supreme Court yesterday defined state ownership of surplus water as a public trust for the people.

The decision comes on the eve of the departure of retiring Chief Justice William S. Richardson and includes a restatement of the philosophy that has guided the part-Hawaiian justice in his 17 years as head of the Hawaii judiciary.

Yesterday’s decision came in the form of answers to six questions posed by the 9th U.S. Circuit Court of Appeals which is considering an appeal of a 1977 decision by Federal Judge Martin Pence who ruled that the 1973 McBryde decision was unconstitutional.

The McBryde decision said that the state is the owner of all surplus water, such as that from rainstorms. The ruling arose from a 1959 dispute on Kauai between two sugar plantations — McBryde Sugar Co. and Gay and Robinson Co. — concerning use of water in the Hanapepe River. Plantation owners feared that as a result of the McBryde decision they might have to buy water from the state, causing many to go out of business.

The response yesterday appears to set aside that fear. In the 45-page unanimous decision written by Richardson, the court said by ownership it means not that “the state may do as it pleases; rather, we comprehend the nature of the state’s ownership as a retention of such authority to assure the continued existence and beneficial application of the resource for the common good.”

Richardson said this concept of ownership arises from the days of the Hawaiian monarchy when the king was given ownership of surface waters as a “public trust.”

Richardson referred to the first law relating to water passed by the kingdom that says water is a “bounty which God has provided which should be equally distributed, in order that there may be an equal distribution of happiness among all those who labor in those places.”

The court said it was necessary to reassert this principle of ownership in the McBryde decision because before that ruling “there existed no apparent comment law restraint upon the right of private parties to drain rivers dry for whatever purposes they saw fit.”