Bill Text: HI SR143 | 2013 | Regular Session | Introduced

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Bill Title: Native Hawaiian Corporation; UH Study

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2013-03-19 - Referred to HRE/WTL/THA. [SR143 Detail]

Download: Hawaii-2013-SR143-Introduced.html

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THE SENATE	S.R. NO.	143
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII

SENATE RESOLUTION

 

 

requesting the university of hawaii William s. Richardson School of law to provide an updated study to the Legislature on ANY OF the issues RELATED TO PUBLIC CONCERN OR CONTENTIOUSNESS OVER THE USE OF PUBLIC LANDS and POTENTIAL ramifications surrounding THE USE OF available lands, public lands, AND ceded lands.

 

 

     WHEREAS, our democratic system of government is founded upon the belief that a system of checks and balances is necessary to prevent the usurpation of power by any one of the three branches of government from the others; and

 

     WHEREAS, the doctrine of separation of powers is that a government functions best when its powers are not concentrated in a single authority but divided among different branches; and

 

     WHEREAS, under the separation of powers doctrine, laws are created and passed by the Legislature, which are enforced and implemented by the Executive and interpreted by the Judiciary; and

 

     WHEREAS, the doctrine of separation of powers is one of the fundamental cornerstones in our governmental structure, a doctrine that encapsulates the ideals of a democratic government, a doctrine heavily influenced by those that have experienced a tyrannical government where the power to make, enforce, and interpret law lay in the hands of one or only a few individuals; and

 

     WHEREAS, James Madison stated, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, ... may justly be pronounced the very definition of tyranny ... [T]he preservation of liberty requires that the three great departments of power should be separate and distinct"; and

 

     WHEREAS, the original framers of the United States Constitution found it imperative to distinguish the roles of each branch of government and to expressly delegate certain powers and responsibilities to each branch, which ensures that no central authority will ever become too powerful to endanger the liberties of the people; and

 

     WHEREAS, as James Madison stated, "Power belonging to one of the departments ought not be directly and completely administered by either of the other departments.  It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.  It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it"; and

 

     WHEREAS, the Hawaii State Constitution provides in article III, section 1, "The legislative power of the State shall be vested in a legislature ... Such power shall extend to all rightful subjects of legislation"; and

 

WHEREAS, article XI, section 2, of the Hawaii State Constitution states, "The legislature shall vest in one or more executive boards or commissions powers for the management of natural resources owned or controlled by the State"; and

 

     WHEREAS, it is the responsibility or the kuleana of the Legislature to enact the laws that govern the State of Hawaii that includes laws defining the appropriate use of the State's land and natural resources, while ensuring that these resources are maintained for the benefit of the people of Hawaii; however, this task is often frustrated by executive agencies in their administrative rules and by the judiciary in its interpretation of statutes and constitutional provisions; and

 

     WHEREAS, although judicial legislation is not unique to Hawaii, it has become increasingly prevalent in the Hawaii Supreme Court's opinions concerning land use and water law; and

 

     WHEREAS, there is a noticeable trend in Hawaii Supreme Court opinions to regularly vacate the decisions of our commissions and agencies on grounds based apparently on nothing more than the Court's beliefs and policies that lack sufficient foundation in legal precedent, which is judicial activism that creates uncertainty among the public and among the commissions and agencies tasked with implementing the laws; and

 

     WHEREAS, the Court's creation of new laws and policies through judicial law making encroaches upon the powers and responsibilities of the Legislature to make laws; and

 

     WHEREAS, judicial law making is an egregious over stepping when constitutional provisions and statutes exist that are intended to apply to the facts of the case before the court, in which case the courts should not be making new law but instead should be limited to determining whether or not the applicable statute applies to the particular case before the court; and

 

     WHEREAS, in the Waiahole Ditch case (In the Matter of the WATER USE PERMIT APPLICATIONS, 94 Haw. 97 (2000)) involving a contested case hearing before the Water Resource Management Commission, the Commission entered an order apportioning water for various agricultural, nonagricultural, and leeward off stream uses; and

 

WHEREAS, in affirming the Waiahole Ditch decision of the Water Resource Management Commission, the Hawaii Supreme Court's opinion rested on an antiquated and obsolete doctrine of public trust, which had not been mentioned by previous court rulings in water law cases since the 1800's, including that the "public trust doctrine" is a fundamental principle of constitutional law in Hawaii and that the framers of the constitution intended to adopt the doctrine through article XI, section 1 (conservation and development of resources), of the Hawaii State Constitution; and

 

WHEREAS, the Court then proceeded to expand the scope of the doctrine to include all water resources, unlimited by any surface or ground distinction, under a broad interpretation of "all public natural resources" as stated in article XI, section 1, of the Hawaii State Constitution; and

 

WHEREAS, the Waiahole Ditch decision did not follow the long line of previously decided water dispute cases but took on a separate path by using the public trust doctrine on water resources; the Court had no authority to create a new law as it relates to the scope of the public trust doctrine; and

 

     WHEREAS, another more recent example is the "rail decision" in Kaleikini v. Yoshioka (August 24, 2012), in which the Hawaii Supreme Court interpreted the provisions of chapter 6E, Hawaii Revised Statutes, to add a new requirement that archaeological inventory surveys must be complete as to all phases of a project before a project may begin; in this case, the City and County of Honolulu and State argued that the project's programmatic agreement provided that as long as an archaeological survey was prepared for a particular phase, construction could begin on that part of the project although surveys were not prepared for the other phases; and

 

     WHEREAS, in the Kaleikini case, the Court acknowledged the absence of an express phasing provision but reasoned that the review process for the entire project area must be completed prior to the State Historic Preservation Division giving its concurrence in the project; in doing so, the Court created a new rule of practice and procedure for the agency, which intrudes upon the agency's authority and discretion; and

 

     WHEREAS, in Ka Pa‘akai o Ka ‘Aina v. Land Use Commission, decided in 2000, the Court created an analytical framework for state agencies to follow when making decisions that affect native Hawaiian rights, specifying three areas that need to be addressed by state agencies when making such decisions; and

 

     WHEREAS, the Ka Pa‘akai o Ka ‘Aina decision mandated that agencies must state:  (1) definitive findings regarding the extent of native Hawaiian practices, (2) definitive findings about the practices undertaken outside of the area of concern or the subject of the permit, and (3) specific findings or conclusions regarding the effects on the impairment of any water uses under article XII, section 7, of the Hawaii State Constitution, relating to traditional and customary rights; and

 

WHEREAS, by mandating that the agencies make these specific findings, the Court interfered judicially in the role of the Commission by replacing the discretion of the Commission with its own views of what the public interest should be and which considerations must be given more weight than others; and

 

     WHEREAS, twelve years after establishing its own policy in the Ka Pa‘akai o Ka ‘Aina decision, the Hawaii Supreme Court relied upon that policy as establishing precedent when it overruled the Water Resource Management Commission in In re 'Iao Ground Water Management Area High-Level Source Water Use Permit Applications (August 16, 2012), holding that although the Commission was thorough in several respects, because it failed to issue specific findings or conclusions in accordance with the rule established in Ka Pa‘akai o Ka ‘Aina, its decision and order must be vacated; and

 

     WHEREAS, judicial legislation affects not only the immediate parties to a proceeding, but also creates unpredictability for the public and private sectors and hamstrings commissions and agencies by the new policies and procedures created by the Judiciary; and

 

     WHEREAS, the Legislature should not continue to abdicate to the Judicial branch unpredictable and unwarranted judicial interpretations that contradict legislative intent, thereby shifting the balance of powers to the Judiciary; and

 

     WHEREAS, the Legislature must create the laws and policies that shape and help determine the use of lands and resources entrusted to the people of Hawaii; and

 

     WHEREAS, an updated study on public lands is necessary; and

 

     WHEREAS, the University of Hawaii William S. Richardson School of Law has the knowledge, expertise, and resources to gain a firm grasp of the public concern and contentiousness over public lands and to study potential ramifications to public lands and potential ramifications surrounding the use of available lands, public lands, and ceded lands; now, therefore,

 

     BE IT RESOLVED by the Senate of the Twenty-seventh Legislature of the State of Hawaii, Regular Session of 2013, that the University of Hawaii William S. Richardson School of Law is requested to provide an updated study to the Legislature on any of the issues related to public concern or contentiousness over the use of public lands and potential ramifications surrounding the use of available lands, public lands, and ceded lands; and

     BE IT FURTHER RESOLVED that the University of Hawaii William S. Richardson School of Law is requested to report its findings and recommendations to the Legislature no later than twenty days prior to the convening of the Regular Session of 2014; and

 

     BE IT FURTHER RESOLVED that a certified copy of this Resolution be transmitted to the University of Hawaii William S. Richardson School of Law.

 

 

 

	OFFERED BY:	_____________________________

Report Title: 

Native Hawaiian Corporation; UH Study