Chang, Williamson

Cox, Doak C.

Rappa, Peter J.

Sorenson, John

Tabata, Ray

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University of Hawaii at ManoaEnvironmental CenterCrawford 317. 2550 Campus RoadHonolulu. Hawaii 96822Telephone (808) 948-7361Office of the DirectorProposals 171,230, 518, 657, 701, 757, 783, and 808RELATING TO RESOURCE CONSER VATIONStatement forCon Con Committee on Environment, Agriculture,Conservation and LandPublic Hearing 11 August 1978byDoak C. Cox, Environmental CenterJohn Sorenson, GeographyRay Tabata, Sea GrantWilliamson Chang, School of LawPeter J. Rappa, Environmental CenterRL:0303 AProposals 171,230,518,657,701,757,783 and 808 have in common that they wouldrevise or replace Section 1 of Article X of the Constitution. Hence they are addressedtogether in this statement. The statement does not reflect an institutional position ofthe University of Hawaii.Article X, Section 1 provides that the legislature shall promote the conservation,development, and utilization of agricultural resources and of natural resources. Of thenatural resources it names specifically fish, mineral, forest, water, land, and game.Conservation, in itself, means a wise balance of preservation and developmentfor use. Hence the combination of conservation, development and utilization seemsto give undue weight to the use end, and even destructive use, of the preservation-usespectrum. This unbalance seems represented also in the legislation that has been passedunder Section 1, and in the regulatory activities of the executive agencies, particularlythe Department of Land and Natural Resources in which the principal resource managementpowers have been vested. That Department has, for example, paid more attention tothe development of water resources to which the State has water rights for the supplyof water through State systems than to the oversight, management, and regulation ofwater resources in general. It has left to the Department of Health the proposal to limitstream diversions, although the authority of the department to regulate stream diversionsis quite questionable and the pertinent competence of that Department is much lessthan that of the Department of Land and Natural Resources.Some of the proposals considered here relate specifically to water conservation,but present deficiencies in present management practices are not restricted to waterAN EQUAL OPPORTUNITY EMPLOYER-2-resources. Regulations recently adopted concerning geothermal development are muchmore concerned with administration of the geothermal rights owned by the State thanwith the conservation of geothermal resources.It should not be considered, however, -that the present deficiencies in practice arein actuality the result of the unbalance implied in Article X, Section 1. They represent,rather, the slowness of the legislative and executive branches of government to recognizethe full importance of the preservation aspect of conservation as well as the developmentaspect. In spite of the unbalance implied by Section 1, the language of that articledoesnot prevent the legislature from deciding where the proper balance should be, and underthe statutes that have been passed, the executive boards and agencies have considerablelatitude in their regulatory activities.Hence, although it would be desirable to amend Section 1 to remove the unbalance,there can be no assurance that the constitutional amendment will actually result in appropriateconservation of natural resources in practice.Furthermore, care should be taken in any amendment, that the present unbalance,should not be overcorrected so that appropriate development of resources is undulyimpeded.It should be recognized that Section 1 now relates to agricultural as well as naturalresources. Agricultural resources are based on the natural resources of the soil, terrain,and climate, but they involve artificial aspects in addition, technology and individualknow-how. No amendment involving this section should cancel its applicability to agriculturalresources unless some substitute were provided.Hence, in reviewing the eight proposals of concern, although we consider thatamendment of Article X, Section 1 would be desirable, such amendment is not strictlynecessary, and that the effects indicated or implied by each proposal should be examinedin some detail.Proposal 171Proposal 171 would delete the present Section 1 of Article X and add a sectionmaking it a duty and power of the State and of each person to conserve and protect land,lair, water, native and endemic fora and fauna and other natural resources from pollution,impairment, destruction and depletion.Where the present Section 1 seems somewhat unbalanced in favor of developmentand use, the proposed substitute seems unbalanced in favor of preservation. Most usesof natural resources involve their impairment to some extent. Even the developmentof renewable resources for particular uses decreases their availability for other uses,and non-renewable resources cannot be developed without their reduction.The duty of every person that would be expressed in the proposal is not clear.Would everyone have to participate in a Conservation Corps? Although the benefit ofpresent and future generations is expressed as an aim in the proposal, neither presentnor future generations would be able to make full use of the resources of the State underthe provisions of the proposed amendment..':l- -3- 'The proposal would, in addition, establish a standing to sue. We have commentedon such provisions for standing with respect to other proposals, and wish here simplyto reinforce the need to relate such standing to rights that are reasonable and appropriate.-'------ ..::;......-----•t \Proposal 230Proposal 2.30 would amend Section 1 to establish, as a first priority in the dev~l~~m~t15f agricultural and natural resources, those developments that would contribute to t·heself-sufficiency 01 the State.Although further development of self-sufficiency is an appropriate general aim,it would seem unwise to base the first priority in all resource management decisionson this aim alone. If use of particular resource might contribute either: i) to the productionof either some product of small value in the State or, ii) some product of great valueelsewhere, whose sale might add materially to the income of the State and its people,but not to the production of both products, it would seem that the use of the resourcefor the latter would be more in accord with the public welfare in general.A Constitutional provison that the State should seek or promote self-sufficiencymight be appropriate but would not seem necessary. The proposed provision, at leastin its present form, seems unwise.Proposal 518I.-Proposal 518 would amend Section 1 so that it would, in its placement of promotionalduties on the legislature, qualify the development and utilization of agricultural andnatural resources to be promoted as development and utilization consistent with conservation.It would thus appropriately remedy the present unbalance of Section 1Proposal 657Proposal 657 would replace the present Section 1 with a new section. The applicabilityof the replacement would be restricted to public natural resources, excluding privatelyowned resources and the non-natural aspects of agricultural resources. It would establishthe applicability of the public trust concept to the resources covered. And it would replacethe present combination of functions: conservation, development, and utilization; bythe two combinations of: i) conservation and ii) protection, and management and regulation..,The proposal would remove the present unbalance of Section 1 but replace it withan unbalance in the opposite direction, combining conservation and management, (whichare neutral) with preservation, (which would exclude development) and with regulation,which would curb development. The unbalance would be particularly drastic because,in the language of the proposal, the protection would be from destruction, impairment,pollution, and depletion to the greatest extent possible. Although such uses as enjoymentof scenery would still be permitted, no development of resources would be possible becauseany development involves some impairment such as by pollution or depletion•In restricting its applicability to public natural resources, the proposal wouldundesirably reduce the present applicability of .Sect ion 1 to agricultural resources, andI, very unwisely cancel its present applicability to natural resources subject to privateownership.Proposal 701Under Proposal 701, Sections 1 and 2 of Article X would be replaced by two newsections, the first dealing with the conservation, development, use, management, anddisposition of resources generally, the second dealing with water specifically.-4--The first of the proposed new sections is in two parts.The first part, would require the State to perform, with respect to the natural,cultural, and aesthetic resources, the functions of protection, maintenance and preservation,for appreciation of the present and future generations. This part would also requirethe State to promote development and utilization of flora and fauna, natural energy,agricultural, water, mineral, and oceanic resources.As we have pointed out earlier both the protection and maintenance end andthe development and utilization end of the preservation-use spectrum are important.However, since the enumerations of the resources to be protected under the firstpart of the proposed section is different from the enumeration of those to be developedunder the same part, the phrasing suggests that those who would have to interpret itshould examine it closely to see what is in the protection enumeration that is not thedevelopment enumeration, and vice versa. Because the relative importance of preservationvs development of a particular resource may change from time to time, we suggest thatit would be unwise to try to make a distinction in the Constitution between those resourcesin which preservation is the more important and those in which development is the moreimportant.The remainder of the first new section proposed is actually the language of thepresent Section 2 of Article X except as this language is preceded by the phrase: unlessotherwise stated.The second new section proposed would declare that not withstanding the existenceof vested water rights, the State is custodian of all the freshwater resources within itsboundaries. The effect would presumably be to confirm that the State has the powerto regulate all such resources. This is actually a present power of the State, one underwhich legislation has been passed controlling waste, controllng pollution, and controllinguse more generally when and where water is limiting.The second section would also require the legislature to vest in a single commissionthe authority to manage fresh water resources. This would require merging, in a singlecommission, managerial and regulatory authorities that are now spread between theDepartment of Land, Natural Resources, the Department of Health, and possibly otherdepartments. As the conservator of public health, the DOH usefully has regulatorypowers with respect to water quality. As the conservator of natural resources, the DLNRusefully has regulatory powers with respect to water flows. Although centralizationof authority as proposed would have certain advantages, it would thus have disadvantagesalso. Placements of authority of this sort would best be left to legislation and not specifiedin the Constitution. Furthermore, whereas the term management applies well to theState functions that are appropriate in the case of water resources whose rights of useit owns and which it develops the term regulation seems a better fit to the functionsthat are appropriate in the case of those water resources that are subject to privatewater rights or development by private parties.The second section would, in addition establish, as criteria for water resourcemanagement, the general welfare of the State, beneficial use, and the prevention ofwasteful and unreasonable authorizations. Most of these are appropriate criteria whoseexplicit statement may be useful although it seems unnecessary in the light of otherConstitutional provisions. It is, however, more precisely wasteful and unreasonable usesof water that is of concern, not the wasteful and unreasonable authorizations.(-5-Proposal 757Proposal 757 would replace Section I of Article X with a new section providingthat the State has an interest in the natural resources within its domain, independentof and behind the title of all of its citizens. The intent appears to be to recognize theState's sovereignty over the natural resources and its powers to regulate uses. Theactual language appears appropriate, although not that usually used.The proposed new section would also provide that the State has the duty and powerto conserve and protect the natural resources, and to develop and utilize them in thepublic interest. The proposal would thus rectify the unbalance represented in the presentSection 1.The proposed new section does not mention agricultural resources, and would thusappear to cancel certain powers and duties now placed in the legislation having to dowith the non-natural aspects of agricultural resources.Proposal 783Proposal 783 would revise Section 1 to add geothermal and other energy resourcesto the specific natural resources it now lists. Since Section 1 alread covers all naturalresources, the addition is unnecessary, although the current interest in geothermaldevelopment suggests possible desirability to its explicit inclusion.This proposal would also qualify the word development by the addition of the adjectiveecological. The intent may be to emphasize that development should be ecologicallyconservative, but since conservation is already a requirement, the addition seems unnecessary.The actual language suggested would seem to alter completely the original intent ofthe use of the word development, which was development for human use.Proposal 808Proposal 808 would replace the present Section 1 with three new sections.The first of the proposed new sections is similar to the first part of the first newsection proposed in Proposal 701, and our comments on that section apply to this proposal.In addition, it should be noted that not all historic qualities should be maintained, asthe proposal would require, nor should present cultural and aesthetic qualities wherethese present qualities are undesirable.The second of the proposed new sections is identical to the present Section 2 andshould not be adopted unless Section 2 is deleted or revised.The third of the proposed new sections is identical to the secorod new section proposedin Proposal 701, and our comments on that section apply to this one also.2-053-01

Proposal 171, 230, 518, 657, 701, 757, 783, and 808, Relating to Resource Conservation - Statement for Con Con Committee on Environment, Agriculture, Conservation and Land Public Hearing 11 August 1978

http://scholarspace.manoa.hawaii.edu/bitstream/10125/31214/1/RL0303A.pdf

Proposal 171, 230, 518, 657, 701, 757, 783, and 808, Relating to Resource Conservation - Statement for Con Con Committee on Environment, Agriculture, Conservation and Land Public Hearing 11 August 1978

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