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.

SCR156

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 Hawaiʻi 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 Waiʻola o Molokaʻi,
103 Hawaiʻi 401 (2004)
,
and in
In re Kukui
, 116
Hawaiʻi 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
Hawaiʻi 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
�
Īao 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 Nā Wai ʻEhā, and
failed
�
to adequately address massive
water waste and alternative water sources as required by the public trust;

(5)
�
In
Kilakila ʻO Haleakalā v.
Board of Land and Natural Resources
, 131 Hawaiʻi 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 Hawaiʻi 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 Hawaiʻi 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 Nā Wai
ʻEhā 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
Kiaʻi Wai O Waiʻaleʻale v. BLNR,
SCWC-23-0000383 (Hawaiʻi Sep. 30, 2025),
the Hawaiʻi 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:

_____________________________

Report Title:
�

Annual
Report; State Public Trust and Constitutional Obligations