Public trust and marina privatization

Water Ways
Honolulu Star Bulletin 08/02/03
By Ray Pendleton

Apparently I'm not alone in believing that the sooner our state-run marinas are privatized the better.

The e-mail in response to last week's column recommending such private management was overwhelmingly in agreement. Still, there were, of course, a few folks with divergent views.

One of the more interesting slants on the issue was from a reader who opined that such privatization would be in violation of the "Public Trust Doctrine."

I must admit, that compelled me to immediately jump on an Internet search engine for some research on just what the Public Trust Doctrine is and what it has to do with marina management.

I had heard the term used in recent years in connection with irrigation water, but not with recreational boating marinas.

For any of you who are as unenlightened as I was, let me share what I have so recently learned.

To say that the Public Trust Doctrine is nothing new would be quite an understatement.

It was apparently conceived during the rule of Roman Emperor Justinian in A.D. 530 and the doctrine simply proposed that, "By the law of nature these things are common to all mankind: the air, running water, the sea, and consequently the shores of the sea."

Later, the law of England adopted this recognition of public tidelands and waters -- along with most other Roman laws -- as eventually did the colonies in America, as they were created.

And, of course, when the colonies formed the Union and additional states entered it, nearly all continued to hold their shorelines and waters in trust for the benefit of the public.

But, as they say, therein lies the rub: how one defines what benefits the public.

Hawaii's Supreme Court has said, in regard to the Waiahole water resource, that the state is obligated to regulate the use of its water resource consistent with the dual mandates of protecting the resource and promoting reasonable maximum and beneficial use to the resource.

"Any balancing between public and private purposes begins with a presumption in favor of public use, access and enjoyment," was the majority opinion.

And interestingly, among a number of public trust uses and purposes the court named were: navigation, commerce, fishing, bathing, swimming, boating and scenic viewing.

So, the question must be asked, how would privatizing our state's marinas be inconsistent with those uses and purposes?

Our state has established a lengthy track record showing its inability to adequately operate and maintain most of the marinas in its trust. Has this enhanced their public use, access and enjoyment?

The vast majority of Hawaii's small boat harbors have turned into proverbial "elephant burial grounds," where old boats go to die.

In the same way that beachboy services are licensed to operate on Waikiki Beach -- with governmental oversight -- to offer activities the public enjoys, marinas should be operated by the private sector to offer an enhanced boating environment the public can enjoy.

How better to sustain the public trust than to provide boat owners with the best maintained and managed marinas possible?

Last week's Column ~|~ Water Ways Archives

HoloHolo Hawai`i Ocean Sports News