Waiahole Decision Part 1

The present appeal arises from an extended dispute over the water distributed by the Waiāhole Ditch System, a major irrigation infrastructure on the island of O'ahu supplying the island's leeward side with water diverted from its windward side. In 1995, this dispute culminated in a contested case hearing of heretofore unprecedented size, duration, and complexity before appellee Commission on Water Resource Management (the Commission). At the hearing, the Commission considered petitions to amend the interim instream flow standards for windward streams affected by the ditch, water use permit applications for various leeward offstream purposes, and water reservation petitions for both instream and offstream uses. The Commission issued its final findings of fact (FOFs), conclusions of law (COLs), decision and order (D & O) (collectively, final decision or decision) on December 24, 1997.

Parties on appeal include: the Commission; appellee/cross-appellant Estate of James Campbell (Campbell Estate); appellants City and County of Honolulu Planning Department and Board of Water Supply(collectively, the City); appellees/cross-appellants Department of Agriculture (DOA) and Department of Land and Natural Resources (DLNR), State of Hawai'i (collectively, DOA/DLNR); appellee/cross-appellant Dole Food Company, Inc./Castle & Cooke, Inc. (Castle); appellee Hawaii Farm Bureau (HFB); appellant Hawaii's Thousand Friends (HTF); appellant Kamehameha Schools Bernice Pauahi Bishop Estate (KSBE); appellee/cross appellant Land Use Research Foundation (LURF); appellee Nihonkai Lease Co., Inc. (Nihonkai); appellee/cross-appellant Pu'u Makakilo, Inc. (PMI); appellee/cross-appellant Robinson Estate (Robinson); appellants Waiāhole-Waikāne Community Association, Hakipu'u 'Ohana, and Ka Lāhui Hawai'i (collectively, WWCA); and appellee United *111 States Department of the Navy (USN). We have carefully reviewed their arguments in light of the entire breadth of this state's legal mandates and practical demands. For the reasons fully explained below, we affirm in part and vacate in part the Commission's decision and remand for further proceedings consistent with this opinion.

The Waiāhole Ditch System collects fresh surface water and dike-impounded ground water [FN1] from the Ko'olau mountain range on the windward side of the island of O'ahu and delivers it to the island's central plain. Beginning in Kahana Valley, the collection portion of the system proceeds along the windward side of the Ko'olaus, then passes under the Ko'olau crest to the leeward side at the North Portal. The section of the system known as the Waiāhole Main Bore or Tunnel extends from the North Portal to the Tunnel's leeward exit, South Portal Adit 8 (Adit 8). The delivery portion of the system begins at Adit 8 and winds through the plain of Central O'ahu. Measured at Adit 8, the system develops approximately 27 million gallons a day (mgd).

FN1. See generally Reppun v. Board of Water Supply, 65 Haw. 531, 533, 656 P.2d 57, 60 (1982) ("The geological structure of the Koolau mountains of Oahu enables parts thereof to act as natural reservoirs of fresh water; these natural storage compartments are called dike complexes or systems.").

The ditch system was built in significant part from 1913 to 1916 to irrigate a sugar plantation owned and operated by Oahu Sugar Company, Ltd. (OSCo). Until the plantation ceased operations in 1995, OSCo used much of the ditch's flow, in addition to a substantial supply of ground water pumped from the Pearl Harbor aquifer. At the time of this appeal, various leeward parties still retained, but were not using, well permits to pump approximately 53 mgd of leeward ground water.

Diversions by the ditch system reduced the flows in several windward streams, specifically, Waiāhole, Waianu, Waikāne, and Kahana streams, affecting the natural environment and human communities dependent upon them. Diminished flows impaired native stream life and may have contributed to the decline in the greater Kane'ohe Bay ecosystem, including the offshore fisheries. The impacts of stream diversion, however, went largely unacknowledged until, in the early 1990s, the sugar industry on O'ahu came to a close.

B. PROCEDURAL HISTORY

On July 15, 1992, the Commission designated the five aquifer systems of Windward O'ahu as ground water management areas, effectively requiring existing users of Waiāhole Ditch water to apply for water use permits within one year of that date. [FN2] In June 1993, the Waiāhole Irrigation Company (WIC), the operator of the ditch system, filed a combined water use permit application for the existing users of ditch water. In August 1993, OSCo announced that it would end its sugar operations, signaling the imminent availability of the ditch water used by OSCo and raising the question of its future allocation.

FN2. See Hawai'i Revised Statutes (HRS) ch. 174C, pt. IV (1993 & Supp.1999) ("Regulation Of Water Use"). HRS § 174C-41(a) (1993) states:

When it can be reasonably determined, after conducting scientific investigations and research, that the water resources in an area may be threatened by existing or proposed withdrawals or diversions of water, the commission shall designate the area for the purpose of establishing administrative control over the withdrawals and diversions of ground and surface waters in the area to ensure reasonable-beneficial use of the water resources in the public interest.

HRS § 174C-48(a) (1993) provides that: "No person shall make any withdrawal, diversion, impoundment, or consumptive use of water in any designated water management area without first obtaining a permit from the commission." "Existing uses," however, may continue pending application for a water use permit. See id. HRS § 174C-50(c) (1993) requires that permit applications for "existing uses" be made within one year from the effective date of water management area designation.

Conflict ensued. On November 4, 1993, DOA filed a petition to reserve [FN3] the ditch *112 flow for agricultural uses. The Office of Hawaiian Affairs (OHA), WWCA, KSBE, and the Department of Hawaiian Homelands also filed petitions to reserve water. On December 7, 1993, WWCA petitioned to amend upward the interim instream flow standards for the Windward O'ahu streams affected by the ditch (WIIFS); [FN4] OHA filed a similar petition on February 28, 1995. KSBE and Castle also filed separate water use permit applications specifically requesting water drawn by the ditch system from lands they owned. The petitions to amend the WIIFS and the permit applications collectively exceeded the entire flow of the ditch.

FN3. HRS § 174C-49(d) (1993) states:

The commission, by rule, may reserve water in such locations and quantities and for such seasons of the year as in its judgment may be necessary. Such reservations shall be subject to periodic review and revision in the light of changed conditions; provided that all presently existing legal uses of water shall be protected.

FN4. See HRS ch. 174, pt. VI, § 174C-71 (1993) ("Instream Uses Of Water"). HRS § 174C-71 reads in relevant part:

Protection of instream uses. The commission shall establish and administer a statewide instream use protection program.... In the performance of its duties the commission shall:

(1) Establish instream flow standards on a stream-by-stream basis whenever necessary to protect the public interest in waters of the State;

(2) Establish interim instream flow standards;

(A) Any person with the proper standing may petition the commission to adopt an interim instream flow standard for streams in order to protect the public interest pending the establishment of a permanent instream flow standard;

(B) Any interim instream flow standard adopted under this section shall terminate upon the establishment of a permanent instream flow standard for the stream on which the interim standards were adopted;

(C) A petition to adopt an interim instream flow standard under this section shall set forth data and information concerning the need to protect and conserve beneficial instream uses of water and any other relevant and reasonable information required by the commission;

(D) In considering a petition to adopt an interim instream flow standard, the commission shall weigh the importance of the present or potential instream values with the importance of the present or potential uses of water for noninstream purposes, including the economic impact of restricting such uses;

(E) The commission shall grant or reject a petition to adopt an interim instream flow standard under this section within one hundred eighty days of the date the petition is filed. The one hundred eighty days may be extended a maximum of one hundred eighty days at the request of the petitioner and subject to the approval of the commission;

(F) Interim instream flow standards may be adopted on a stream-by-stream basis or may consist of a general instream flow standard applicable to all streams within a specified area;

(3) Protect stream channels from alteration whenever practicable to provide for fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses;

(4) Establish an instream flow program to protect, enhance, and reestablish, where practicable, beneficial instream uses of water. The commission shall conduct investigations and collect instream flow data including fishing, wildlife, aesthetic, recreational, water quality, and ecological information and basic streamflow characteristics necessary for determining instream flow requirements.

The commission shall implement its instream flow standards when disposing of water from state watersheds, including that removed by wells or tunnels where they may affect stream flow, and when regulating use of lands and waters within the state conservation district, including water development.

In May 1994, the Commission received complaints that, with the close of OSCo's sugar operations, WIC was discharging unused ditch water into Central O'ahu gulches. After holding an investigation and several meetings and considering an order to show cause regarding WIC's continuing waste of water, the Commission requested the parties involved to enter into mediation. The mediation agreement and the Commission's subsequent order dated December 19, 1994 provided that WIC would continue to supply 8 mgd to the ditch, as measured at the North Portal, and release the surplus into the windward streams.

The interim restoration of windward stream flows had an immediate apparent positive effect on the stream ecology. The higher flows flushed out exotic fish species that were harming native species by carrying parasites and disease, competing for food and space, and interfering with spawning rituals. Experts saw excellent potential for the repopulation of native stream life such as 'o'opu (goby), *113 'ōpae (shrimp), and hīhīwai (snail). [FN5]

FN5. See Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary 68, 290-91 (rev. ed.1986)

On January 25, 1995, the Commission ordered a combined contested case hearing on the permit applications, reservation petitions, and petitions to amend the WIIFS. At a public hearing on April 18, 1995, the Commission received public testimony and requests to participate in the consolidated hearing. The Commission admitted a final total of twenty-five parties.

On July 14, 1995, the Commission's staff submitted a proposed order to bifurcate the contested case hearing. The proposed order recommended that the Commission decide in a separate proceeding the allocation of ground water drawn from KSBE's Waiawa lands in the Pearl Harbor aquifer sector on the leeward side of the Ko'olaus. On August 7, 1995, the Commission issued an order denying the proposed bifurcation order on the grounds that the interrelated nature of the applications for Waiāhole Ditch water favored the consolidated process.

The Commission also held hearings to determine the "existing uses" as of July 15, 1992, the date of the designation of Windward O'ahu as a ground water management area, that would be allowed to continue pending a decision on the permit applications, see supra note 2. On August 15, 1995, the Commission issued "Order Number 8," identifying the existing uses and their respective interim allocations. "Order Number 10," dated October 16, 1995, amended and clarified Order Number 8, allowing 9.3698 mgd, as measured at the North Portal, to flow into the ditch until further order of the Commission.

The contested case hearing commenced on November 9, 1995. Opening statements and presentation of evidence continued until August 21, 1996, spanning fifty- two hearing days and four evening sessions. The Commission received written testimony from 161 witnesses, 140 of whom also testified orally, and admitted 567 exhibits into evidence. The parties presented closing arguments from September 18 to 20, 1996.

On July 15, 1997, the Commission released its proposed decision, to which the parties submitted written and oral exceptions. While the Commission was considering its final decision, the state governor and attorney general publicly criticized the proposed decision as inadequately providing for leeward interests. At about the same time, the deputy attorney general representing the Commission was summarily dismissed. The Commission issued its final decision on December 24, 1997. The final decision differed from the proposed decision in various respects, most notably in its increasing the amount of water allocated to leeward permittees by 3.79 mgd.

C. THE FINAL DECISION

The Commission's final decision consisted of 1,109 FOFs, an extensive legal discussion section styled as COLs, and a D & O explaining at length the Commission's disposition. The following summary highlights the prominent elements of the Commission's analysis and decision; specifically contested FOFs and COLs appear in the relevant discussion sections of this opinion.

In its COLs, the Commission surveyed the law of water in Hawai'i, as established in the Hawai'i Constitution, State Water Code (the Code), and common law, focusing particularly on the "public trust doctrine." As a preface to its determination of the WIIFS, the Commission concluded that:

Under the State Constitution and the public trust doctrine, the State's first duty is to protect the fresh water resources (surface and ground) which are part of the public trust res. Haw. Const. Art. XI, § 7; Robinson v. Ariyoshi, 65 Haw. [641,] 674[, 658 P.2d 287, 310 (1982) ]. The duty to protect public water resources is a categorical imperative and the precondition to all subsequent considerations, for without such underlying protection the natural environment could, at some point, be irrevocably harmed and the "duty to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial uses" could be endangered. Id. However, the duty to protect does not *114 necessarily or in every case mean that all offstream uses must cease, that no new offstream uses may be made, or that all waters must be returned to a state of nature before even the first Hawaiians arrived in these islands and diverted stream water to grow taro. The particular level of protection may vary with circumstances and from time to time; but the primary duty itself remains.

COLs at 11. The Commission identified Windward O'ahu ground water and streams and Kane'ohe bAy as "part of the public trust res ... subject to review under the State's public trust responsibility as expressed in the State Water Code." Id. at 31.

The Commission acknowledged its duty under the Code to establish instream flow standards in instituting a program for instream use protection, see supra note 4. The Commission found that the interim restoration of windward stream flows had a "positive effect," FOFs at 17-18, and that "generally, the higher the volume of instream flow and closer the stream flow approaches its natural pre- diversion levels, the greater the support for biological processes in the stream and its ecosystem," COLs at 32. Thus, according to the Commission, "in general, it is expected that additional flows to the streams would increase the native biota habitat." FOFs at 17.

A more conclusive determination of the necessary instream flows, however, remained elusive. The Commission explained:

The Commission has found it difficult to quantify an instream flow that corresponds to a biological condition for a given flora or fauna. As a result, the methods used on the continental United States to determine an appropriate instream flow have proven unsuitable in Hawaii.

The Water Code provides for the establishment and modification of both interim and permanent instream flow standards on the assumption that scientific data will eventually provide firm knowledge about streams upon which to reach some permanent solution. Haw.Rev.Stat. § 174C-71. Unfortunately, such firm knowledge will require considerably more work and is years away. Until that scientific knowledge is available, stream management decisions will require a methodology that recognizes the preliminary and incomplete nature of existing evidence.

Given the long term work needed to define an ecologically necessary flow in a particular stream, the Commission will need to amend "interim" instream flow standards periodically until permanent standards can be adopted....

From the long term vantage point of science, the biological and environmental evidence regarding streams is preliminary. The data collection is just beginning. The conclusions are tentative. In some areas, experts are even hesitant to offer opinions. For the foreseeable future, it will be necessary to manage and protect streams through a system of working presumptions rather than on the basis of firm scientific knowledge.

COLs at 16. The Commission nonetheless maintained:

Where scientific evidence is preliminary and not yet conclusive regarding the management of fresh water resources which are part of the public trust, it is prudent to adopt "precautionary principles " in protecting the resource. That is, where there are present or potential threats of serious damage, lack of full scientific certainty should not be a basis for postponing effective measures to prevent environmental degradation.... In addition, where uncertainty exists, a trustee's duty to protect the resource mitigates in favor of choosing presumptions that also protect the resource.

Id. at 33 (emphasis added).

The Commission also reviewed the legal requirements for issuance of water use permits under the Code. [FN6] Although the various *115 requests for water collectively exceeded the flow of the ditch, the Commission concluded that, "[a]t least for the near term, water quantities in excess of the amended interim instream flow standard and subject to the conditions affecting supplemental flows[ [FN7]] are available at the present time to satisfy water use permit applicants for those existing and future offstream uses identified in the [D & O]...." Id. at 23. Based on this conclusion, the Commission further ruled that the statutory requirement of "reasonable- beneficial use" [FN8] could be fulfilled, particularly with respect to agricultural uses, by a "prima facie showing" of reasonableness and consistency with the public interest. Id. at 24-25. The Commission reasoned:

FN6. HRS § 174C-49(a) (1993) mandates:

To obtain a permit pursuant to this part, the applicant shall establish that the proposed use of water:

(1) Can be accommodated with the available water source;

(2) Is a reasonable-beneficial use as defined in section 174C-3; (3) Will not interfere with any existing legal use of water;

(4) Is consistent with the public interest;

(5) Is consistent with state and county general plans and land use designations;

(6) Is consistent with county land use plans and policies; and

(7) Will not interfere with the rights of the department of Hawaiian home lands as provided in section 221 of the Hawaiian Homes Commission Act.

FN7. As explained below, the Commission created a "buffer" of unallocated water for initial release in the streams and future allocation for offstream use.

FN8. HRS § 174C-3 (1993 & Supp.1999) defines "reasonable- beneficial use" as "the use of water in such a quantity as is necessary for economic and efficient utilization, for a purpose and in a manner which is both reasonable and consistent with the state and county land use plans and the public interest."

[I]n this case, a variety of management and legal factors postpone the need to fully analyze the affirmative "public interest" tests in the context of deciding "reasonable beneficial use." Among these factors are: 1) the obligation not to waste; 2) the release into windward streams of permitted, but not used, ground water; 3) the release into windward streams of unallocated ground water; 4) the ditch operation and management plan; 5) conservation measures; 6) the availability of alternative sources (ground water and reusable wastewater);[ [FN9]] 7) the four year non-use provisions of the Code (Haw.Rev.Stat. § 174C-58);[ [FN10]] 8) compliance review (Haw.Rev.Stat. § 174C-58 [sic] );[ [FN11]] and 9) low near term demand. Thus, careful management may defer the need to consider a higher level of scrutiny in analyzing the "public interest" test until the time when there is inadequate water for competing demands.

FN9. The Commission acknowledged that various leeward parties had access to leeward ground water. Campbell Estate, for example, still held 35 mgd in well permits, FOF 788, and Del Monte was profitably using its own ground water wells to irrigate lands for which it sought ditch water, FOFs 793-94. The Commission also noted the limited use of reclaimed water for irrigation, but concluded that reclaimed water was not presently available, in view of concerns regarding use of reclaimed water over potable aquifers and health regulations limiting such use to certain kinds of crops. FOFs 677-786; D & O at 8. The Commission, nevertheless, stated that it would "revisit and, if appropriate, reduce existing ground-water permits if reclaimed water becomes available and is allowable, subject to economic and health considerations." D & O at 8.

FN10. HRS § 174C-58 (1993) provides in relevant part:

Revocation of permits. After a hearing, the commission may suspend or revoke a permit for:

(4) Partial or total nonuse, for reasons other than conservation, of the water allowed by the permit for a period of four continuous years or more.

FN11. HRS § 174C-56 (1993) states in relevant part: "At least once every twenty years, the commission shall conduct a comprehensive study of all permits issued under this chapter to determine whether the conditions on such permits are being complied with."

Where, finally, there is inadequate supply for competing needs, both the "public interest" test and the examination of "reasonableness" will require more than a prima facie showing. As competition for water resources increases, the analysis of both the public interest and of reasonableness must become both more rigorous and affirmative. The counties will be required to articulate their land use priorities with greater specificity. For example, even at the present time, there is more land zoned for various uses than available water to supply those proposed uses. Thus, it is not sufficient to merely conclude that a particular parcel of land is properly zoned and that the use is "beneficial." That minimal *116 conclusion may be inadequate to resolve situations in which competitive demand exceeds supply. Further analysis of public interest criteria relevant to water (e.g., conservation, alternative uses, comparative public costs and benefits) will be needed.[ [FN12] ]

FN12. Elsewhere in its decision, the Commission maintained that its determination of current water availability did not necessarily "mean that the [City's] projected growth demands [could] be satisfied from Waiahole Ditch water; rather, the [City's] projected needs will require even greater analysis." Id. at 23.

Agricultural uses, the Commission concluded, were "generally" consistent with the public interest "where adequate water [wa]s available." Id. at 26. In times of scarcity and competition, however, "the standard of review [would] be higher." Id. at 26-27. Existing golf course and other nonagricultural uses were "already subject to this higher standard, in light of higher uses for windward surface water, including retaining the water in the streams." Id. at 27. The Commission subjected all permits to "conditions providing for stream restoration if the Commission determines that additional water should be returned to the streams." D & O at 30.

The Commission recognized its statutory duty, when considering competing water use permit applications, to approve the application that "best serves the public interest." [FN13] In the Commission's view, an inherent conflict existed between the permit applications, reservation petitions, and petitions to amend the WIIFS, but "[a]fter the evidence was weighed and reasonable beneficial uses evaluated, the scope of competition narrowed significantly." COLs at 28. The Commission, however, did indicate certain general priorities between types of uses. For example, because use of brackish water or treated effluent over the 'Ewa Plain would not harm the underlying caprock aquifer, and transporting water across the island "further reduces the protection afforded the stream ecosystem by keeping water in its area of origin," use of ditch water over the 'Ewa Plain caprock for new nonagricultural uses was "presumptively disfavored." Id. The Commission also stated:

FN13. HRS § 174C-54 (1993) states:

Competing applications. If two or more applications which otherwise comply with section 174C-49 are pending for a quantity of water that is inadequate for both or all, or which for any other reason are in conflict, the commission shall first, seek to allocate water in such a manner as to accommodate both applications if possible; second, if mutual sharing is not possible, then the commission shall approve that application which best serves the public interest.

Other non-agricultural uses in leeward Oahu for golf course and landscaping uses which could utilize available ground water or treated effluent also carry a heavy burden to show why stream water should be diverted out of its watershed of origin, even though central Oahu is closer to windward Oahu than the Ewa Plain. In the short term, uncertainty regarding the use of treated effluent over a potable aquifer, existing infrastructure to move Waiahole Ditch system water, and the need to study instream flow needs all mitigate in favor of continuing the use of Waiahole water for 1992 uses.

Likewise, the continued use of Waiahole Ditch water through the existing ditch system to preserve agriculture in central Oahu on lands in sugar production in 1992 ("footprint" lands) as well as on other lands in central Oahu suitable for agriculture has important value. If and until treated effluent or ground water is available, the State has a strong interest in retaining agriculture on these lands. Where instream flow values may be protected and offstream agricultural uses maintained, both "uses" are accommodated in the manner promoted by Haw.Rev.Stat. § 174C-54.

Having discussed the legal grounds for its decision, the Commission apportioned the Waiāhole Ditch water as follows. The Commission granted in part and denied in part WWCA's and OHA's petitions to amend the WIIFS, deeming it "practicable" to restore a total of 6.0 mgd to windward streams, id. at 19, *117 "more than 25% of the average total Waiahole Ditch flow measured at the North Portal (23.3 mgd)," id. at 33. Specifically, the Commission added 4.0 mgd to the 3.9 mgd "Q90 base flow" [FN14] of Waiāhole Stream and 2.0 mgd to the 0.5 mgd Q90 base flow of Waianu Stream, a tributary of Waiāhole Stream. D & O at 3. The Commission thus increased the combined base flow of Waiāhole and Waianu Streams to 10.4 mgd. Id. The Commission neither mentioned, nor made any provision for, the instream flow of Waikāne Stream.

FN14. The "Q90 base flow" represents the minimum flow of a stream equaled or exceeded at least 90 percent of the time. D & O at 2. The Commission's use of the Q90 base flow stems from its observation that "[r]unoff dominates stream flow in Hawaii and is responsible for highly variable stream flows.... In Hawaii, streams exceed average flow just 10% of the time." COLs at 16.

The Commission set aside a total of 13.51 mgd for leeward offstream uses: 12.22 mgd for "agricultural" uses and 1.29 for "other" uses. Id. at 6-7, 22. Leeward water uses would be measured according to average use over a twelve-month period, or the "twelve month moving average" (12-MAV). Id. at 12. The 12-MAV, the Commission elaborated, "allows for seasonal fluctuation, and is generally used for all water use reporting requirements by the Commission." Id.

In calculating the 12.22 mgd "agricultural allowance," the Commission preliminarily found that "2,500 gallons per acre per day (gad) is a reasonable duty of water for diversified agriculture." Id. at 6. The Commission left the gad figure open to future evaluation and adjustment, noting that it tended towards "the lower end of the range of estimates" due to the incipient state of diversified agriculture operations and "a lack of data on actual uses." Id. "There was evidence for both higher and lower quantities," the Commission stated, but "the flexibility in operational requirements and the duty not to waste should provide the appropriate safeguards in either direction." COLs at 25.

The 12.22 mgd agricultural allowance consisted of 10.0 mgd for former OSCo sugarcane lands currently used for diversified agriculture (approximately 4,000 acres supplied at 2,500 gad), and 2.22 mgd for Castle's agricultural lands (approximately 1,552 acres supplied at the lesser of 2,500 gad or the amount requested). D & O at 6-7. Of the 12.22 mgd total, the Commission allocated 10.64 mgd in water use permits, calculated by multiplying the 4,915 acres in "existing use" under Orders Number 8 and 10 by the lesser of 2,500 gad or the amount requested. Id. at 7. The remaining 1.58 mgd was designated a "proposed agricultural reserve," which would become available for agricultural use permits if confirmed through the requisite rulemaking procedures, see supra note 3. D & O at 7. The Commission expressly prohibited unauthorized "double counting" of water allocations, or the use of Pearl Harbor ground water on the same lands to which permits to use Waiāhole Ditch water applied, and noted that it could suspend or revoke permits for ground water from the Waipahu- Waiawa aquifer system after four years of partial or total nonuse, see supra note 10. D & O at 8.

Nonagricultural or "other" uses, including uses by a state prison, a cemetery, and two golf courses, PMI and Mililani Golf Club, received 1.29 mgd in permit allocations. The Commission, however, granted PMI's use of 0.75 mgd "subject to special requirements including a duty to seek alternative sources where they are reasonably available in the near future." COLs at 25. The Commission likewise imposed on Mililani Golf Course the duty to use alternative sources when they became reasonably available. Id.

The Commission also created a "non-permitted ground water buffer" of 5.39 mgd, intended for initial release in the windward streams, but available for offstream uses as a secondary source after the 1.58 mgd proposed reserve. Id. at 33-34. Applicants for the buffer water would not be required to petition to amend the WIIFS. D & O at 11. The Commission, however, would take a " 'hard look' at the best available scientific and stream flow data and decide whether an amendment to the [WIIFS] is needed" before approving any application and would issue all permits subject to "conditions providing for stream restoration if the Commission determines *118 that additional water should be returned to the stream." COLs at 34.

Preliminarily, therefore, the Commission released into windward streams, in addition to the 6.0 mgd added to the WIIFS, a "supplemental flow" of 6.97 mgd or more, consisting of the 5.39 mgd buffer, the 1.58 mgd proposed reserve, and any water authorized for use in water use permits but not actually used, which the Commission mandated would remain in windward streams "to avoid unlawful waste." Id. The Commission explained that "[t]hese supplemental flows will provide a field test to monitor and scientifically study the streams. As these supplemental flows may be permitted for offstream uses and the actual stream flow reduced from present levels, scientific studies will be conducted to examine the impact of reducing stream flows." Id.

The Commission announced its plan to establish technical advisory committees, representing a cross-section of interests, to undertake tasks such as assessing the implementation of the final decision, determining the feasibility of using treated wastewater over potable aquifers, and recommending studies, conservation measures, and monitoring plans. D & O 4-5. Parties receiving permits to use Waiāhole Ditch water on their lands would be required to "prepare, or contract for, a portion of the studies and monitoring activities resulting from this order," contributing funds on a pro rata basis according to the amount of water used. Id. at 10. The Commission would establish a committee "to recommend a reasonable amount for the funding and coordinate and set up the mechanism for the collection, accounting, and distribution of the funds." Id.

Several of the Commission's denials of water use requests are relevant to the present appeal. The Commission rejected DOA's 0.75 mgd permit application for a planned agricultural park "without prejudice to [reapplication] when DOA can demonstrate that actual use will commence within a reasonable time frame." Id. The Commission denied KSBE's requested allocation for golf-course and landscaping uses in connection with its planned Waiawa by Gentry residential development, stating that "[KSBE] may apply for additional water ... [upon receiving] the proper land use classification, development plan approvals, and zoning changes and [demonstrating] that actual use of water will commence within a reasonable time frame for a proposed project." COLs at 27.

The Commission also declined to grant WIC's request for 2.0 mgd to compensate for the "operational losses" of the ditch system due to factors such as evaporation and leakage. D & O at 11. The Commission nonetheless observed that, until it designated the Kahana watershed as a surface water management area, the 2.1 mgd of "non-regulated" Kahana surface water drawn by the ditch would approximately cover such losses. Id. at 12. The Commission proffered that, after designating Kahana as a surface water management area and receiving water use permit applications for the water, it "may consider deducting the operational losses from the non-permitted ground water." Id.

In all, of the 27 mgd total flow of the ditch, as measured at Adit 8, the Commission assigned 14.03 mgd to permitted leeward agricultural and nonagricultural uses and "system losses." For the near term, the Commission released 12.97 mgd in windward streams. However, 6.97 mgdof this 12.97 mgd remained available for offstream leeward uses as a "proposed agricultural reserve" or "non-permitted ground water buffer." The present appeal followed.

II. STANDARD OF REVIEW

Hawai'i Revised Statutes (HRS) § 174C-12 (1993) provides: "Judicial review of rules and orders of the commission under this chapter shall be governed by [HRS] chapter 91 [the Hawai'i Administrative Procedures Act, or HAPA]. Trial de novo is not allowed on review of commission actions under this chapter." Regarding appeals from agency decisions generally, this court has stated:

This court's review is ... qualified by the principle that the agency's decision carries a presumption of validity and appellant has the heavy burden of making a convincing showing that the decision is invalid because it is unjust and *119 unreasonable in its consequences. Konno v. County of Hawai'i, 85 Hawai'i 61, 77, 937 P.2d 397, 413 (1997) (citations omitted).

HRS § 91-14(g) (1993) enumerates the standards of review applicable to an agency appeal and provides: Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions; or

(2) In excess of the statutory authority or jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

GATRI v. Blane, 88 Hawai'i 108, 112, 962 P.2d 367, 371 (1998) (citing Poe v. Hawai'i Labor Relations Board, 87 Hawai'i 191, 194-95, 953 P.2d 569, 572-73 (1998)).

[FOFs] are reviewable under the clearly erroneous standard to determine if the agency decision was clearly erroneous in view of reliable, probative, and substantial evidence on the whole record. Alvarez v. Liberty House, Inc., 85 Hawai'i 275, 277, 942 P.2d 539, 541 (1997); HRS § 91-14(g)(5).

[COLs] are freely reviewable to determine if the agency's decision was in violation of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of agency, or affected by other error of law. Hardin v. Akiba, 84 Hawai'i 305, 310, 933 P.2d 1339, 1344 (1997) (citations omitted); HRS § § 91-14(g)(1), (2), and (4).

"A COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the conclusion is dependent upon the facts and circumstances of the particular case." Price v. Zoning Bd. of Appeals of City and County of Honolulu, 77 Hawai'i 168, 172, 883 P.2d 629, 633 (1994). When mixed questions of law and fact are presented, an appellate court must give deference to the agency's expertise and experience in the particular field. Dole Hawaii Division-Castle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424, 794 P.2d 1115, 1118 (1990). "[T]he court should not substitute its own judgment for that of the agency." Id. (citing Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984)).

Poe, 87 Hawai'i at 197, 953 P.2d at 573.

Curtis v. Board of Appeals, 90 Hawai'i 384, 392-93, 978 P.2d 822, 830-31 (1999).

An FOF or a mixed determination of law and fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made. See Leslie v. Estate of Tavares, 91 Hawai'i 394, 399, 984 P.2d 1220, 1225 (1999). "We have defined 'substantial evidence' as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. (quoting State v. Kotis, 91 Hawai'i 319, 328, 984 P.2d 78, 87 (1999)).

III. DISCUSSION [FN15]

FN15. As a threshold matter, we note that we have jurisdiction to entertain this appeal. See generally Peterson v. Hawaii Elec. Light Co., 85 Hawai'i 322, 326, 944 P.2d 1265, 1269 (1997) (recognizing the "obligation of appellate courts to insure that they have jurisdiction to hear and determine each case" (quoting Housing Fin. & Dev. Corp. v. Castle, 79 Hawai'i 64, 76, 898 P.2d 576, 588 (1995))). Pursuant to HRS § 174C-12, HRS chapter 91 governs our review of the Commission's decision. See also HRS § 174C-60 (1993) ("Contested cases") ("Chapter 91 shall apply except where it conflicts with this chapter."). HRS § 91-14(a) (1993) allows judicial review of a "final decision and order in a contested case." "A contested case is an agency hearing that 1) is required by law and 2) determines the rights, duties, or privileges of specific parties." Pele Defense Fund v. Puna Geothermal Venture, 77 Hawai'i 64, 67, 881 P.2d 1210, 1213 (1994); see HRS § 91- 1(5) (1993).

In this case, the parties appeal the Commission's decision regarding permit applications for "existing" and "new" uses and petitions to amend interim instream flow standards. As to existing use applications, HRS § 174C- 50(b) (1993) and Hawai'i Administrative Rules (HAR) § 13-171- 14(b) (1988) require a hearing where, as here, the quantity of water applied for exceeds 25,000 gallons per month and an objection to the application is filed by a person having standing to object. Furthermore, while the statutes and rules do not require a hearing with respect to petitions to amend interim instream flow standards, see HRS § 174C-3 (definition of interim standard); HAR § 13-169-40(e) (1988), or "new" use applications, see HRS § 174C-53 (1993); HAR § § 13-171-12, - 13, -16 to -19 (1988), constitutional due process mandates a hearing in both instances because of the individual instream and offstream "rights, duties, and privileges" at stake. See Puna Geothermal, 77 Hawai'i at 68, 881 P.2d at 1214.

HRS § 174C-60 states in relevant part: "Any other law to the contrary notwithstanding, including chapter 91, any contested case hearing under this section shall be appealed upon the record directly to the supreme court for final decision." See also HAR § § 13-167-65(b), 13-171-26 (1988). Although the referent of "this section" is unclear, see Ko'olau Agric. Co. v. Commission on Water Resource Management, 83 Hawai'i 484, 492, 927 P.2d 1367, 1375 (1996) (noting the "inartful drafting" of the Water Code's review provisions), we discern no sound basis for demarcating decisions on certain matters for initial appeal to the circuit court under HRS § 91-14(a), particularly in cases such as this one, where the Commission consolidates various matters in a single hearing. Accordingly, we read HRS § 174C-60 to provide for direct appeal to the supreme court from the instant combined contested case in its entirety. But cf. Peterson, 85 Hawai'i at 331, 944 P.2d at 1274 (holding, pursuant to HRS § 269-16(f) (1993), that direct appeal from order of Public Utilities Commission lies to this court only when order pertains to "regulation of utility rates" or "ratemaking procedures").

A. PROCEDURAL DUE PROCESS

As its first point on appeal, WWCA alleges a violation of its constitutional right *120 to procedural due process, specifically, its right to a fair tribunal. In Sussel v. City & County of Honolulu Civil Service Commission, 71 Haw. 101, 107, 784 P.2d 867, 870 (1989), we recognized:

"There are certain fundamentals of just procedure which are the same for every type of tribunal and every type of proceeding." R. Pound, Administrative Law 75 (1942). "Concededly, a 'fair trial in a fair tribunal is a basic requirement of due process.' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). This applies to administrative agencies which adjudicate as well as to courts. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973)." Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).

WWCA raises several grounds for its allegation of a denial of due process. We address each in turn.

1. Dual Status of the Commission Chairperson

WWCA accuses the chairperson of the Commission, Michael Wilson (Wilson), of having a "conflict of interest" due to his concurrent status as chairperson of the state Department of Land and Natural Resources (DLNR), an adverse party to WWCA in the instant contested case hearing before the Commission. [FN16] We note at the outset that the positions of chairperson of the Commission and chairperson of the DLNR are not incompatible per se. The common law doctrine of incompatible offices prohibits an individual from serving in dual capacity "[i]f one office is subordinate to the other or the functions of the offices are inherently inconsistent and repugnant to each other." State v. Villeza, 85 Hawai'i 258, 270, 942 P.2d 522, 534 (1997); see also Woods v. Treadway, 31 Haw. 792, 794 (1931). The legislature may nevertheless override this rule as it deems appropriate or necessary. See Schulman v. O'Reilly-Lando, 226 N.J.Super. 626, 545 A.2d 241, 243 (1988); American Canyon Fire Protection Dist. v. County of Napa, 141 Cal.App.3d 100, 190 Cal.Rptr. 189, 192 (1983). In this case, the legislature has expressly decreed that "[t]he *121 chairperson of the board of land and natural resources shall be the chairperson of the commission." HRS § 174C-7(b) (1993). The legislature has thus deemed it appropriate for one person to serve in both capacities.

FN16. DLNR joined in the leeward parties' joint application for a water use permit and in many of their motions during the hearing.

We must still decide, however, whether any impermissible conflicts of interest prevented Wilson from presiding over the instant proceeding. See Coyne v. State ex rel. Thomas, 595 P.2d 970, 973 (Wyo.1979) (distinguishing incompatibility of offices and conflict of interest). In arguing the negative, the Commission cites its own rule of disqualification, Hawai'i Administrative Rules (HAR) § 13-167-61 (1988), which states in relevant part: "No commission member shall sit in any proceeding in which the member has any pecuniary or business interest in the proceeding or who is related within the first degree by blood or marriage to any party to the proceeding."

It is undisputed that Wilson had no personal financial or familial interest in this proceeding. WWCA nonetheless analogizes this case to the line of precedent relating to disqualification for "institutional" or "structural" bias. See Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (reversing a conviction rendered by a mayor concurrently serving as village chief executive and judge, where the fines collected in the mayor's court provided a substantial part of his salary and the village's finances); Alpha Epsilon Phi Tau Chapter Hous. Ass'n v. City of Berkeley, 114 F.3d 840, 844-47 (9th Cir.1997) (discussing the standards established by Tumey and its progeny). Unlike those cases, the procedural infirmity here lies less in the potential for incidental institutional benefit to either the Commission or DLNR than in DLNR's institutional interest, as a party directly involved in this case, in a favorable decision by the Commission. In our view, therefore, the matter before us draws closer comparisons to precedent invalidating procedures whereby judges presided over nonsummary contempt proceedings that they played an instrumental role in bringing about. [FN17] See, e.g., Murchison, supra (finding a due process violation where a judge who served as "one-man grand jury" also presided over the trial); Brown, supra (ruling that a judge indirectly responsible for the institution of a contempt charge for conduct of which he had no personal knowledge could not preside over trial); see also White v. Board of Educ., 54 Haw. 10, 16, 501 P.2d 358, 363 (1972) (holding that, although the superintendent of education was the secretary of the decisionmaking board, he should have recused himself from a hearing regarding disciplinary action that he imposed). Here, Wilson similarly presided over a proceeding in which he, by direct association, [FN18] assumed an active partisan role. He sat in judgment, on the one hand, of legal claims and factual representations he advanced, on the other.

FN17. Other cases cited by DOA/DLNR, rejecting due process objections where the decisionmaker performed both investigative and adjudicative functions, see Withrow, 421 U.S. at 47-55, 95 S.Ct. 1456 previously expressed a position on a policy issue related to the dispute, see Hortonville Joint School Dist. v. Hortonville Educ. Ass'n, 426 U.S. 482, 493, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976), or shared a common employer with a party, see McDonald v. Cline, 193 W.Va. 189, 455 S.E.2d 558, 560 (1995), are similarly inapposite.

FN18. We do not join DOA/DLNR in speculating as to how much authority the DLNR chairperson actually wields over DLNR. See HRS § 26-15 (1993) (designating the board of land and natural resources as the head of DLNR and allowing the board to delegate powers to the chairperson). Whether the DLNR chairperson is the leader or subordinate of the board, or something in between, the result is the same.

Aside from any actual institutional bias on Wilson's part in this case,

"no one would argue seriously that the disqualification of [decision-makers] on grounds of actual bias ... prevents unfairness in all cases." State v. Brown, 70 Haw. 459, 467, 776 P.2d 1182, 1187 (1989). So "our system of [justice] has always endeavored to prevent even the probability of unfairness." In re Murchison, supra.

The Supreme Court teaches us too that justice can "perform its high function in the best way [only if it satisfies] 'the appearance of justice.' Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 [ (1954) ]." In re Murchison, supra. For in a popular government, " 'justice must not only be done but manifestly be seen to be done....' Rex v. Justices of *122 Bodmin, [1947] 1 K.B. 321, 325." Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 172 n. 19, 71 S.Ct. 624, 95 L.Ed. 817 (Frankfurter, J., concurring) (1951)

Sussel, 71 Haw. at 107-08, 784 P.2d at 870 (brackets in original). See also State v. Ross, 89 Hawai'i 371, 379, 974 P.2d 11, 19 (1998) ("[A]side from the technical absence of bias or conflict of interest, certain situations may give rise to such uncertainty concerning the ability of the [adjudicator] to rule impartially that disqualification becomes necessary.").

We have held that "the test for disqualification due to the 'appearance of impropriety' is an objective one, based not on the beliefs of the petitioner or [adjudicator], but on the assessment of a reasonable impartial onlooker apprised of all the facts." Ross, 89 Hawai'i at 380, 974 P.2d at 20. From this objective viewpoint, we fail to see how Wilson's dual status as adjudicator and litigant could not have reasonably cast doubt on his ability to rule with absolute impartiality. Indeed,

[h]aving been a part of [the advocacy] process a[n adjudicator] cannot be, in the very nature of things, wholly disinterested in [the result]. While he [or she] would not likely have all the zeal of a [party], it can certainly not be said that he [or she] would have none of that zeal.

Murchison, 349 U.S. at 137, 75 S.Ct. 623.

"[N]o [person] can be a judge in his [or her] own case...." Brown, 70 Haw. at 466, 776 P.2d at 1187 (citing Murchison, 349 U.S. at 136, 75 S.Ct. 623). Wilson served in that exact capacity with respect to DLNR in the instant proceeding. We thus hold that, where DLNR was a party in the contested case before the Commission, the basic constitutional mandate that a tribunal be impartial and that "justice must satisfy the appearance of justice," id. at 467, 776 P.2d at 1188 (citing Offutt, 348 U.S. at 14, 75 S.Ct. 11), precluded the joint chairperson of the Commission and DLNR from presiding over the hearing.

The appropriate remedy for any bias, conflict of interest, or appearance of impropriety is the recusal or disqualification of the tainted adjudicator. See Ross, 89 Hawai'i at 376-77, 974 P.2d at 16-17; 2 Charles H. Koch, Jr., Administrative Law & Practice § 6.10, at 306 (1997). Nonetheless, although WWCA objected early to Wilson's dual status, at no point during the proceedings did it seek Wilson's disqualification. It instead filed a motion seeking to dismiss DLNR from the instant proceeding. WWCA has not cited, nor have we discovered, any precedent for such a measure. [FN19] WWCA's course of action suggests that it objects less to the chairperson's dual status than to the nature of DLNR's participation in this case. [FN20]

FN19. Even on appeal, WWCA does not seek the usual remedy of rehearing or reconsideration without the chairperson, see, e.g., White, 54 Haw. at 16, 501 P.2d at 363 (remanding for rehearing), but simply asks this court to set aside the Commission's final decision, see infra note 24.

FN20. As WWCA points out, HAR § § 13-169-32 and -33 (1988) require DLNR to assist the Commission in investigating streams and developing instream flow standards.

A party asserting grounds for disqualification must timely present the objection, either before the commencement of the proceeding or as soon as the disqualifying facts become known. See, e.g., Honolulu Roofing Co. v. Felix, 49 Haw. 578, 615-16, 426 P.2d 298, 322 (1967); Yorita v. Okumoto, 3 Haw.App. 148, 152, 643 P.2d 820, 824 (1982); Capitol Transp. Inc. v. United States, 612 F.2d 1312, 1325 (1st Cir.1979) ("Contentions of bias should be raised as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist."). The unjustified failure to properly raise the issue of disqualification before the agency forecloses any subsequent challenges to the decisionmakers' qualifications on appeal. See Power v. Federal Labor Relations Auth., 146 F.3d 995, 1002 (D.C.Cir.1998) ( "[I]t will not do for a claimant to suppress his misgivings regarding bias while waiting anxiously to see whether the decision goes in his favor." (citation and brackets omitted)); In re Duffy, 78 Wash.App. 579, 897 P.2d 1279, 1281 (1995) ("A litigant's assertion of the right to disqualify a judge, whether based upon statute or due process *123 considerations, must be timely or the objection is waived.").

Despite its awareness of Wilson's dual status, WWCA, apparently as a matter of deliberate and strategic choice, never sought Wilson's disqualification. WWCA cannot now raise the matter as grounds for overturning the Commission's decision.

Additionally, even if WWCA had moved to disqualify Wilson, the long-recognized "rule of necessity" not only allows, but requires a decisionmaker to "act in a proceeding, when he [or she] would otherwise be disqualified, if jurisdiction is exclusive and no provision exists for substitution." Yamada v. Natural Disaster Claims Comm'n, 54 Haw. 621, 628, 513 P.2d 1001, 1006 (1973). See also Schwab v. Ariyoshi, 57 Haw. 348, 350, 555 P.2d 1329, 1331 (1976) ("[D]isqualification will not be permitted to destroy the only tribunal with power in the premises." (quoting Brinkley v. Hassig, 83 F.2d 351, 357 (10th Cir.1936)).

HAR § 13-167-6 (1988) provides: "Four members of the commission shall constitute a quorum to transact business and the concurrence of a simple majority of the members of the commission shall be necessary to approve any action of the commission." No procedure exists for the appointment of substitute commissioners. [FN21] In this case, two commissioners withdrew from the case at the outset, reducing the six-member Commission charged with "exclusive jurisdiction and final authority in all matters relating to the implementation and administration of the state water code," HRS § 174C-7(a), to the four-member quorum required to conduct business. Consequently, where Wilson's disqualification would have prevented the Commission from acting on this case, the "rule of necessity" demanded that Wilson preside over the instant proceeding. Wilson's dual status as chairperson of the Commission and the DLNR, therefore, did not constitute a reversible due process violation under the facts of this case.

FN21. HAR § 13-167-56(c) (1988) provides: "The chairperson of the commission shall be the presiding officer. However, the chairperson may designate another commission member, an appointed representative, or a master to be presiding officer unless prohibited by law." As explained in HAR § 13-167-56(b), the "presiding officer" performs mere administrative functions, such as giving notice of the hearing, administering oaths, issuing subpoenas, ruling on objections or motions, and "dispos[ing] of other matters that normally and properly arise in the course of a hearing authorized by law that are necessary for the orderly and just conduct of a hearing." HAR § 13-167-56 does not allow the grant of any ultimate decisionmaking authority to an alternate presiding officer. To the contrary, the Code mandates that the six-member Commission "shall have exclusive jurisdiction and final authority," HRS § 174C-7(a), and that "[t]he final decision on any matter shall be made by the commission," HRS § 174C-10 (1993).

2. Improper Influence by the Governor and Attorney General

WWCA also argues that the state governor and attorney general exerted improper influence on the Commission during the period of deliberation between the proposed and final decisions. WWCA specifically refers to the governor's public criticism of the proposed decision, the attorney general's personal appearance before the Commission in order to argue DLNR/DOA's exceptions to the proposed decision, and the dismissal of the deputy attorney general assigned to the Commission.

Where an agency performs its judicial function, external political pressure can violate the parties' right to procedural due process, thereby invalidating the agency's decision. See generally Sokaogon Chippewa Comm. Ass'n v. Babbitt, 929 F.Supp. 1165, 1173-80 (D.Wis.1996) (consolidating the case law); Koch, supra, at § 6.13. Such improper influence may issue from the legislature, see, e.g., ATX, Inc. v. United States Dept. of Transp., 41 F.3d 1522, 1527 (D.C.Cir.1994); Pillsbury Co. v. Federal Trade Comm'n, 354 F.2d 952, 963-64 (5th Cir.1966), as well as from sources within the executive branch, see, e.g., Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1543-48 (9th Cir.1993); Jarrott v. Scrivener, 225 F.Supp. 827 (D.D.C.1964). As the United States Court of Appeals for the D.C. Circuit explained in ATX:

[External political] interference in the administrative process is of heightened concern in a quasi-judicial proceeding, *124 which is guided by two principles. First, "the appearance of bias or pressure may be no less objectionable than the reality." [District of Columbia Fed'n of Civic Ass'ns v. ]volpe, 459 F.2d [1231,] 1246-47 [ (D.C.Cir.), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972) ] (emphasis added); see also Koniag, Inc. v. Andrus, 580 F.2d 601, 610 (D.C.Cir.), cert. denied, 439 U.S. 1052, 99 S.Ct. 733, 58 L.Ed.2d 712 (1978) (Koniag) (congressional letter "compromised the appearance of the Secretary's impartiality"). Second, judicial evaluation of the pressure must focus on the nexus between the pressure and the actual decision maker. As we have previously observed, "the proper focus is not on the content of ... communications in the abstract, but rather upon the relation between the communications and the adjudicator's decisionmaking process." [Peter ] kiewittt [ Sons' Co. v. United States Army Corps of Eng'rs], 714 F.2d [163,] 169-70 [ (D.C.Cir.1983) ].

41 F.3d at 1527 (footnote omitted). See also Pillsbury, 354 F.2d at 964 (holding that external pressure "focus[ing] directly and substantially upon the mental decisional processes" of an administrator in a pending case "sacrifice[d] the appearance of impartiality--the sine qua non of American judicial justice").

WWCA first objects to the governor's public remarks concerning his opinions on the merits of this case. After the issuance of the proposed decision, the governor publicly announced his support for leeward interests, criticizing the Commission's preliminary disposition. [FN22]

FN22. The governor's comments do not appear in the record. None of the other parties, however, dispute WWCA's rendition of their general content.

The governor appoints all of the commissioners, two of whom, the chairperson of DLNR and the director of the Department of Health, serve in his cabinet. See HRS § 174C-7(b); Haw. Const. art. V., § 6. The governor thus occupies an obvious position of influence over the Commission. We do not take lightly the governor's legitimate supervisory interest and role with respect to the Commission. At the same time, we cannot emphasize strongly enough that all adjudicative proceedings conducted by the Commission must conform to the same exacting standards of fairness, impartiality, and independence of judgment applicable in any court of law. See Sussel, 71 Haw. at 107, 784 P.2d at 870.

In the instant case, however, the governor's public remarks fall short of the level of interference that courts have deemed violative of due process. In the leading case on improper influence, Pillsbury, the adjudicator was personally subjected to "searching examination as to how and why he reached his decision in a case still pending before him and ... critici[sm] for reaching the 'wrong' decision." 354 F.2d at 964. Other cases involved, at minimum, some sort of direct contact with the decisionmaker regarding the merits of the dispute. See e.g., Koniag, 580 F.2d at 610; Jarrott, 225 F.Supp. at 831-33; see also Gulf Oil Corp. v. Federal Power Comm'n, 563 F.2d 588, 611 (3d Cir.1977) (holding that intervention for the purpose of expediting the disposition, rather than affecting its merits, did not influence the agency); ATX, 41 F.3d at 1528 (recognizing that legislative hearings not focusing directly on the decisionmakers and the merits of the case did not invalidate the agency decision).

Here, the governor made several general statements about his own views of the case. Although they related directly to the dispute before the Commission, the comments arose in public forums apart from the instant proceeding and reached the Commission indirectly, if only through the windward parties' objections. WWCA provides no evidence of the type of direct and focused interference seen in the cases cited above. [FN23] In the absence of evidence of direct communication with the decisionmakers, WWCA fails to *125 demonstrate the requisite "nexus between the pressure and the actual decision maker." ATX, 41 F.3d at 1527. As a result, we have no choice but to presume that the Commission upheld its duty to decide the case without taking the governor's remarks into consideration.

FN23. In its written objection to the Commission, HTF demanded that the Commission disclose any ex parte communications between the governor or others on his behalf and the Commission "so that they can be dealt with to eliminate or minimize their impact on this case." The Commission apparently did not respond to this request.

Regarding the complaint against the attorney general's personal participation in the hearing, we first note that, in contrast to the cases cited above, the attorney general expressed her objections not through any ex parte communications, but during the formal proceedings on the record. More significantly, all the cases of improper influence cited by WWCA and unearthed by our own research involved interference by an office having superior status or some control over the salary or tenure of the decisionmaker. See, e.g., ATX, supra (communications from members of Congress); Pillsbury, supra (same); Portland Audubon, supra (alleged interference from president and his staff); Jarrott, supra (high level state department officials contacted District of Columbia zoning board); Barkey v. Nick, 11 Mich.App. 381, 161 N.W.2d 445, 447 (1968) (city commissioner appeared before zoning board); Place v. Board of Adjustment, 42 N.J. 324, 200 A.2d 601, 605 (1964) (mayor appeared before zoning board). Unlike the governor, the attorney general wields no such authority over the Commission. The attorney general's personal intervention in the hearing, although direct, does not amount to the type and degree of political control that would normally violate due process.

WWCA argues that, because the office of the attorney general simultaneously represented the Commission, the resulting "conflict of interest" compromised WWCA's right to a fair hearing. The attorney general has a statutory duty, among others, to provide legal counsel to state agencies such as the Commission. See HRS § 26-7 (1993) (attorney general "shall administer and render state legal services"); HRS § 28-4 (1993) (attorney general "shall give advice and counsel"). Regarding potential conflicts in this duty, we have held that the office of the attorney general

may represent a state employee in civil matters while investigating and prosecuting him in criminal matters, so long as the staff of the [department of the attorney general] can be assigned in such a manner as to afford independent legal counsel and representation in the civil matter, and so long as such representation does not result in prejudice in the criminal matter to the person represented.

[State v. Klattenhoff, 71 Haw. 598,] 605, 801 P.2d [548,] 552 [ (1990) ]. In other words, "separate units of a governmental agency, such as the office of attorney general, may undertake concurrent representation that would otherwise offend [the provisions of the Hawai'i Rules of Professional Conduct (HRPC) governing conflicts of interest, including HRPC 1.7 (1995) ], ... so long as no prejudice is suffered by any of the clients." Comment to HRPC 1.10 (1995) (emphasis added).

Chun v. Board of Trustees of Employees' Retirement System of State of Hawai'i, 87 Hawai'i 152, 173-74, 952 P.2d 1215, 1236-37 (1998) (some alterations in original); see also HAR § 13-167-29(b) (1988) (requiring state agencies appearing before the Commission as an applicant or in an adjudicative setting to use counsel independent of the Commission's).

In Klattenhoff, we allowed separate deputies or divisions of the attorney general's office to represent conflicting interests. See id. at 605, 801 P.2d at 552. In this case, however, the attorney general herself advocated on behalf of two state agencies, DLNR and DOA, while deputy attorneys general represented the Commission and another agency, DHHL. HRS § 28- 8(a) (Supp.1999) authorizes the attorney general to "appoint, and at [her] pleasure remove, a first deputy and such other deputies .... [who] shall act under [her] direction and shall perform such duties as [she] may require." Given the attorney general's plenary authority over her department, we agree with WWCA that the attorney general's personal representation of DLNR/DOA necessarily prevented her department from affording independent legal *126 counsel to other state parties, particularly the Commission.

The question remains, however, whether this conflict of interest deprived WWCA of its right to a fair hearing. In Chun, we recognized that the attorney general's obligations as counsel to state agencies may conflict with her common law duties as representative of the "public interest," see HRS § 26-7 (providing that the attorney general "shall ... have such authority as heretofore provided by common law"). See Chun, 87 Hawai'i at 170, 952 P.2d at 1233.

Indeed, the legislature implicitly foresaw the likelihood of conflicts "eventuating" in connection with the Attorney General's multiple roles, duties, and functions when it enacted HRS § 28-8.3 in 1995, conferring upon the attorney general the prerogative, "for reasons deemed ... good and sufficient," to decline "to employ or retain an attorney" to represent "any department, board, commission, agency, bureau, or officer of the State" and, in that event, authorizing the state instrumentality--with the concurrence of the governor--to retain legal counsel on its own initiative for the purpose of securing such representation. See HRS § § 28-8.3(a)(16) and (b).

Id. at 174, 952 P.2d at 1237 (internal cross-reference omitted). We thus held that, where the attorney general "perceived herself to be in a conflict of interest with the [agency she represented], [she] was ethically obligated to recommend the retention of other counsel to represent the [agency] and to take such other action as, in her opinion, the circumstances required...." Id. at 176, 952 P.2d at 1239.

Here, in personally advocating DOA/DLNR's interests, the attorney general evidently decided that her vision of the "public interest" diverged from the Commission's. At about the same time as her appearance at the hearing, however, the attorney general "terminated" her representation of the Commission by summarily dismissing the Commission's attorney. While the reason for the dismissal is disputed, its practical consequence was as the Commission described in the cover letter of the final decision: "The decision was rendered without the assistance of counsel after the Commission's attorney was dismissed." Momentarily setting other questions of its propriety aside, therefore, we hold that the dismissal effectively cured the conflict generated by the attorney general's representation of the Commission.

WWCA also protests the dismissal as an impropriety in itself. We indeed harbor doubts about the manner in which theattorney general withdrew as the Commission's counsel. HRPC 1.16(d) (1994), for example, requires attorneys, upon termination of representation, to "take steps to the extent reasonably practicable to protect a client's interests." The record affords little evidence of any consideration of the Commission's interests on the part of the attorney general.

WWCA suggests that the dismissal both impaired the competence of the Commission and induced the Commission to change its decision. As to the first contention, the Code vests final decisionmaking authority and responsibility in the commissioners, see HRS § 174C-7(a), and mandates that "[e]ach member shall have substantial experience in the area of water resource management," HRS § 174C-7(b). As to the second, WWCA fails to show how the dismissal could have served as an intelligible and effective means of swaying the Commission on the merits, even assuming that it was so intended. All told, we are not convinced that the dismissal impaired the Commission's ability to decide this case competently and impartially to such an extent that a violation of WWCA's due process rights occurred.

WWCA argues that the substantial changes in the final decision, all to WWCA's detriment, establish that external pressure in fact influenced the Commission. We agree that a sudden reversal in direction or a weakly supported decision may raise an inference of improper influence. See ATX, 41 F.3d at 1529. Given the tenuous nexus between the conduct of the governor and attorney general and the Commission's deliberations, however, we believe that the changes, though concededly oddly timed, did not amount to an appearance of impropriety warranting reversal.

*127 Finally, WWCA attempts to combine the governor's comments with the attorney general's conduct as components of a larger concerted effort by the administration to undermine the Commission. WWCA offers no concrete proof of this alleged conspiracy. Without more, we have no alternative but to conclude that the whole does not exceed the sum of the parts. See In re Bouslog, 41 Haw. 270, 277 (1956) (maintaining that allegations of impropriety " must be based upon facts buttressed by reasons, and not a suppositious cumulative effect, which is at best a mere conclusion arguendo " (citation and internal quotation marks omitted)).

In sum, based on the foregoing facts and the relevant precedent, we cannot say that a violation of constitutional dimensions occurred in this case. This holding does not adequately convey, however, our serious misgivings regarding the events following the Commission's proposed decision. The question of timing is key to our concerns. The events in controversy occurred after months of painstaking hearings and deliberations--during the final stage between the Commission's proposed and final decisions. In the end, the Commission did in fact substantially alter its decision, deleting language favorable to the windward parties and increasing the amount of water allocated to leeward permittees. These eleventh hour developments, while falling short of a constitutional violation, strongly suggest that improper considerations tipped the scales in this difficult and hotly disputed case.

We acknowledge the prerogative of public officials to advocate according to their views of the "public interest" and to voice their views on public policy in public forums. Yet public officials must also be mindful of the broader public interest in the fairness and integrity of the adjudicatory process. Along these lines, it is safe to say that the conduct of the public officials in this case did nothing to improve public confidence in government and the administration of justice in this state.

Notwithstanding our feeling of unease regarding the circumstances under which the Commission rendered its final decision, our assessment of the totality of the circumstances prevents us from concluding that the aforementioned conduct constitutes a violation of WWCA's due process rights. Furthermore, in reviewing the merits of this case, we have identified substantial problems with the Commission's decision that require further attention. Thus, for the reasons articulated below, we vacate and remand the decision for further proceedings. In so doing, we are confident that the intervening years, along with the changes in the Commission's personnel, have sufficiently removed any taint of impropriety created by the conflicts and political pressures present in the prior proceeding. See Pillsbury, 354 F.2d at 965; Koniag, 580 F.2d at 611. [FN24]

FN24. In raising its various due process objections, WWCA specifically seeks the remedy of reinstatement of the Commission's proposed decision. In most cases, however, a remand for reconsideration or further proceedings will suffice to purge the taint of improper influence. But see Koniag v. Kleppe, 405 F.Supp. 1360, 1372-73 (D.D.C.1975) (reinstating the last untainted authoritative ruling because the effect of the external pressure had not yet dissipated); Jarrott, 225 F.Supp. at 836 (remanding for rehearing by a specially constituted board).

B. THE PUBLIC TRUST DOCTRINE

Substantial controversy arises from the Commission's discussion of the "public trust doctrine" in its decision. Before addressing the parties' arguments, we survey the historical development of the doctrine in this jurisdiction.

1. History and Development

The United States Supreme Court advanced the seminal modern expression of the public trust doctrine in Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). [FN25] The case arose from a disputed conveyance of land submerged under the navigable waters of Lake Michigan by the state legislature to private *128 interests. The Court characterized the state's interest in such lands as

FN25. The doctrine traces its origins to the English common law and ancient Roman law. See Lynda L. Butler, The Commons Concept: A Historical Concept with Modern Relevance, 23 Wm. & Mary L.Rev. 835, 846-67 (1982).

title different in character from that which the State holds in lands intended for sale.... It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.

Id. at 452, 13 S.Ct. 110 (emphasis added). "The control of the state for purposes of the trust," the Court continued,

can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. ... The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, ... than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the State the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters, they cannot be placed entirely beyond the direction and control of the State.

Id. at 453-54, 13 S.Ct. 110 (emphases added). [FN26] Because the wholesale surrender of state authority over the lands in question was "not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the uses of the public," id. at 453, 13 S.Ct. 110 the disputed grant was "necessarily revocable, and the exercise of the trust by which the property was held by the State can be resumed at any time," id. at 455, 13 S.Ct. 110.

FN26. Courts and commentators have identified up to three separate interests in trust resources: the jus privatum, or private property right, the jus regium, otherwise known as the police power, and the jus publicum, the public trust. See, e.g., id. at 456-58; Butler, supra, at 861- 62.

This court endorsed the public trust doctrine in King v. Oahu Railway & Land Co., 11 Haw. 717 (1899). Quoting extensively from Illinois Central, we agreed that "[t]he people of Hawaii hold the absolute rights to all its navigable waters and the soils under them for their own common use. The lands under the navigable waters in and around the territory of the Hawaiian Government are held in trust for the public uses of navigation." Id. at 725 (citation omitted). Later decisions confirmed our embrace of the public trust doctrine. See County of Hawaii v. Sotomura, 55 Haw. 176, 183-84, 517 P.2d 57, 63 (1973) ("Land below the high water mark ... is a natural resource owned by the state subject to, but in some sense in trust for, the enjoyment of certain public rights." (citation and internal quotation marks omitted)), cert. denied, 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111 (1974); In re Sanborn, 57 Haw. 585, 593-94, 562 P.2d 771, 776 (1977) (observing that any purported land court registration of lands below the high water mark was ineffective under the public trust doctrine); State v. Zimring, 58 Haw. 106, 121, 566 P.2d 725, 735 (1977) (holding that lava extensions "vest when created in the people of Hawaii, held in public trust by the government for the benefit, use and enjoyment of all the people.").

In McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330, aff'd on reh'g, 55 Haw. 260, 517 P.2d 26 (1973), appeal dismissed and cert. denied, 417 U.S. 962, 94 S.Ct. 3164, 41 L.Ed.2d 1135 (1974), we contemplated the public interest in water resources. Consulting the prior laws and practices of this jurisdiction, we observed that, in granting land ownership interests in the Māhele, [FN27] the Hawaiian Kingdom expressly reserved its sovereign prerogatives "[t]o encourage *129 and even to enforce the usufruct of lands for the common good." See id. at 184-86, 94 S.Ct. 3164 504 P.2d at 1337-39 (quoting Principles Adopted By The Board of Commissioners To Quiet Land Titles In Their Adjudication Of Claims Presented To Them, 2 Statute Laws of His Majesty Kamehameha III(SLH) 81, 85 (1847), reprinted in 2 Revised Laws of Hawaii (RLH) 2124, 2128 (1925) [hereinafter Land Commission Principles] ). "The right to water," we explained,

FN27. The Māhele and the subsequent Kuleana Act instituted the concept of private property in the Hawaiian Kingdom. For an overview of its operation, see id. at 184-85, 504 P.2d at 1337-38; Jon J. Chinen, The Great Mahele (1958); Lilikalā Kame'eleihiwa, Native Lands and Foreign Desires (1992).

is one of the most important usufruct of lands, and it appears clear to us that by the foregoing limitation the right to water was specifically and definitely reserved for the people of Hawaii for their common good in all of the land grants.

Thus by the Mahele and subsequent Land Commission Award and issuance of Royal Patent right to water was not intended to be, could not be, and was not transferred to the awardee, and the ownership of water in natural watercourses and rivers remained in the people of Hawaii for their common good.

Id. at 186-87, 504 P.2d at 1338-39 (footnote omitted) (emphases added). In Robinson v. Ariyoshi, 65 Haw. 641, 658 P.2d 287 (1982), we elaborated on our McBryde decision, comparing the retained sovereign "prerogatives, powers and duties" concerning water to a "public trust":

[W]e believe that by [the sovereign reservation], a public trust was imposed upon all the waters of the kingdom. That is, we find the public interest in the waters of the kingdom was understood to necessitate a retention of authority and the imposition of a concomitant duty to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial uses. This is not ownership in the corporeal sense where the State may do with the property 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.

Id. at 674, 658 P.2d at 310 (emphases added).

In the footnote accompanying this passage, we added:

The State unquestionably has the power to accomplish much of this through its police powers. Hudson County Water Co. v. McCarter, 209 U.S. 349, 28 S.Ct. 529, 52 L.Ed. 828 (1908). We believe however that the king's reservation of his sovereign prerogatives respecting water constituted much more than restatement of police powers, rather we find that it retained on behalf of the people an interest in the waters of the kingdom which the State has an obligation to enforce and which necessarily limited the creation of certain private interests in waters. See, Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L.Rev. 471 (1970); Maloney, Ausness & Morris, A Model Water Code, [ ]at 81 (1972).

Id. at 674 n. 31, 658 P.2d at 310 n. 31 (emphasis added). The trust over the water resources of this state, we observed, was "akin to the title held by all states in navigable waterways which was recognized in [Illinois Central ]." Robinson, 65 Haw. at 674, 658 P.2d at 310. Insofar as the two trusts differ in origin [FN28] and concern, however, we recognized that "the extent of the state's trust obligation of course would not be identical to that which applies to navigable waterways." Id. at 675, 658 P.2d at 310.

FN28. Regarding the navigable waters trust, the United States Supreme Court has explained:

At common law, the title and dominion in lands flowed by the tide water were in the King for the benefit of the nation.... Upon the American Revolution, these rights, charged with a like trust, were vested in the original States within their respective borders, subject to the rights surrendered by the Constitution of the United States.

The new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands under them, within their respective jurisdictions.

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473-74, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988) (quoting Shively v. Bowlby, 152 U.S. 1, 57, 14 S.Ct. 548, 38 L.Ed. 331 (1894)).

In 1978, this state added several provisions to its constitution specifically relating to water *130 resources. Article XI, section 1 of the Hawai'i Constitution states:

CONSERVATION AND DEVELOPMENT OF RESOURCES

Section 1. For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.

All public natural resources are held in trust by the State for the benefit of the people.

(Emphases added.) Article XI, section 7 further provides:

Section 7. The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.

The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use polices; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources.

(Emphasis added.) In 1987, pursuant to the constitutional mandate of article XI, section 7, the legislature enacted the State Water Code, HRS chapter 174C.

2. Relationship to the State Water Code

Several parties, most notably LURF, contend that the Commission erred by relying upon the public trust doctrine as a legal authority in addition to the State Water Code. According to LURF, the Code "subsumes and supplants whatever common law doctrine of public trust may previously have existed in Hawai'i." By invoking the public trust, LURF argues, the Commission improperly expanded its statutory powers, upsetting the Code's "balance of interests."

The public trust in the water resources of this state, like the navigable waters trust, has its genesis in the common law. See generally HRS § 1-1 (1993); Housing Fin. & Dev. Corp. v. Ferguson, 91 Hawai'i 81, 89-90, 979 P.2d 1107, 1115-16 (1999) (recognizing that "[t]he common law ... includes the entire wealth of received tradition and usage"). The legislature may, subject to the constitution, modify or abrogate common law rules by statute. See Fujioka v. Kam, 55 Haw. 7, 10, 514 P.2d 568, 570 (1973). Statutes in derogation of the common law, however, must be strictly construed. Burns Int'l Sec. Servs., Inc. v. Department of Transp., 66 Haw. 607, 611, 671 P.2d 446, 449 (1983). "Where it does not appear there was legislative purpose in superseding the common law, the common law will be followed." Id.; see also Watson v. Brown, 67 Haw. 252, 256, 686 P.2d 12, 15 (1984) (holding that a statutory remedy is "merely cumulative and does not abolish an existing common law remedy unless so declared in express terms or by necessary implication"). The Code does not evince any legislative intent to abolish the common law public trust doctrine. To the contrary, as discussed in Part III.C.2, infra, the legislature appears to have engrafted the doctrine wholesale in the Code.

As LURF points out, statutes establishing comprehensive regulatory schemes form an exception to the rule of strict construction. See Department of Transp. v. Transportation Comm'n, 111 Wis.2d 80, 330 N.W.2d 159, 164-65 (1983); Norman J. Singer, 3 Sutherland Statutory Construction § 61.03, at 190 (rev. 5th ed.1999). The Code certainly displaces common law rules of water use where effective. See Ko'olau Agric. Co., Ltd. v. Commission on Water Resource Management, 83 Hawai'i 484, 491, 927 P.2d 1367, 1374 (1996) ("In [water management areas], the permitting provisions of the Code prevail; water rights in non-designated areas are governed by the common law."). The further suggestion that such a statute could extinguish the public trust, however, contradicts the doctrine's basic premise, that the state has certain powers and duties which it *131 cannot legislatively abdicate. See Illinois Central, 146 U.S. at 453-54, 13 S.Ct. 110. This court has held that the doctrine would invalidate such measures, sanctioned by statute but violative of the public trust, as: the use of delegated eminent domain powers by a private party to condemn a public harbor, see Oahu Railway, supra; the land court's registration of tidelands below the high water mark, see Sanborn, supra; and a sale of lava extensions that did not promote a "valid public purpose," see Zimring, supra. Regarding water resources in particular, history and precedent have established the public trust as an inherent attribute of sovereign authority that the government "ought not, and ergo, ... cannot surrender." See McBryde, 54 Haw. at 186, 504 P.2d at 1338 (quoting Land Commission Principles); cf. Illinois Central, 146 U.S. at 455, 13 S.Ct. 110 ("[S]uch property is held by the State, by virtue of its sovereignty, in trust for the public.").

Most importantly, the people of this state have elevated the public trust doctrine to the level of a constitutional mandate. In interpreting constitutional provisions:

"[W]e have long recognized that the Hawai'i Constitution must be construed with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent." Hirono v. Peabody, 81 Hawai'i 230, 232, 915 P.2d 704, 706 (1996) (citation omitted). "This intent is to be found in the instrument itself." State v. Kahlbaun, 64 Haw. 197, 201, 638 P.2d 309, 314 (1981).

As we recently reiterated in State of Hawai'i, ex rel. Bronster v. Yoshina, 84 Hawai'i 179, 932 P.2d 316 (1997), "[t]he general rule is that, if the words used in a constitutional provision ... are clear and unambiguous, they are to be construed as they are written." Id. [at 186], 932 P.2d at 323 (quoting Blair [v. Cayetano], 73 Haw. [536,] 543, 836 P.2d [1066,] 1070 [ (1992) ] (citation omitted)). "In this regard, the settled rule is that in the construction of a constitutional provision the words are presumed to be used in their natural sense unless the context furnishes someground to control, qualify, or enlarge them." Pray v. Judicial Selection Comm'n, 75 Haw. 333, 342, 861 P.2d 723, 727 (1993) (citation, internal quotation marks, brackets, and ellipses omitted).

Moreover, "a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history which preceded it[.]" Carter v. Gear, 16 Haw. 242, 244 (1904), affirmed, 197 U.S. 348, 25 S.Ct. 491, 49 L.Ed. 787 (1905).

Hawaii State AFL-CIO v. Yoshina, 84 Hawai'i 374, 376, 935 P.2d 89, 91 (1997).

Article XI, section 1 of the Hawai'i Constitution mandates that, "[f]or the benefit of present and future generations, the State and its political subdivisions shall protect and conserve ... all natural resources, including ... water ... and shall promote the development and utilization of these resources ... in a manner consistent with their conservation " and further declares that "[a]ll public natural resources are held in trust for the benefit of the people." (Emphases added.) Article XI, section 7 reiterates the State's "obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people." (Emphases added.) The plain reading of these provisions manifests the framers' intent to incorporate the notion of the public trust into our constitution. The intensive deliberations on the subject in the convention record substantiate this interpretation. See Debates in Committee of the Whole on Conservation, Control and Development of Resources [hereinafter Debates], in 2 Proceedings of the Constitutional Convention of Hawaii of 1978, at 855-81 (1980) [hereinafter Proceedings]. [FN29] We *132 therefore hold that article XI, section 1 and article XI, section 7 [FN30] adopt the public trust doctrine as a fundamental principle of constitutional law in Hawai'i. See Payne v. Kassab, 468 Pa. 226, 361 A.2d 263, 272 (1976) ("There can be no question that the [constitution] declares and creates a public trust of public natural resources for the benefit of all people (including future generations as yet unborn)...."); State v. Bleck, 114 Wis.2d 454, 338 N.W.2d 492, 497 (1983) (grounding the public trust doctrine in the state constitution); Save Ourselves v. Louisiana Env't Control Comm'n, 452 So.2d 1152, 1154 (La. 1984) (recognizing a public trust based on the state constitution); Owsichek v. State, Guide Licensing and Control Bd., 763 P.2d 488, 493-96 (Alaska 1988) (holding that the constitutional "common use" clause adopted common law trust principles in relation to fish, wildlife, and water resources).

FN29. The delegates discussed at length the proposal that produced the final version of article XI, section 7. Some notable comments include: "[T]he amendment and committee proposal go beyond the mere power to regulate--which is generally known as the police power of the State--and impose a duty upon the State to regulate and protect," id. at 857 (statement by Delegate Fukunaga); "[W]hat the amendment attempts to do, as I read it, is to define what "public trust" means ... [;] it's an attempt to clarify and put it in the Constitution," id. at 859 (statement by Delegate Waihee); "[T]his amendment recognizes ... that water is a resource in Hawaii that needs to be protected for the use of all people," id. at 860 (statement by Delegate De Soto); "[The amendment] maintains the intent of the committee to establish a public trust doctrine for the State of Hawaii to protect the total water resources for the benefit of the people of Hawaii," id. (statement by Delegate Hoe); "I urge the passage of this amendment establishing a state water agency to act as trustee of all the water resources of Hawaii for the benefit of the people," id. (statement by Delegate Chong); "[T]he committee proposal as amended would make the State of Hawaii the trustee of the water of Hawaii for the benefit of the people of Hawaii," id. at 866 (statement by Delegate Hornick); "[T]his trust concept means that you go for the benefit of the people, and that's different from just mere regulation," id. at 876 (statement by Delegate Hanaike). See also id. at 862-68 (rejecting a proposed amendment stating merely that "[t]he State shall regulate and control all water"). The delegates deleted an express reference to the "public trust" in article XI, section 7 because of "[s]ome confusion generated by the [thought that] ... 'trust' implies ownership." Comm. Whole Rep. No. 18, in 1 Proceedings, at 1026. Public rights under the trust do not constitute state "ownership." See Illinois Central, 146 U.S. at 452, 13 S.Ct. 110; Robinson, 65 Haw. at 674, 658 P.2d at 310. In any event, the delegates explained that they had used "public trust" to describe "the duty of the State to actively and affirmatively protect, control and regulate water resources" and, in place of that term, "substituted language [that they] believe[d] fully convey[ed] the theory of 'public trust.' " Comm. Whole Rep. No. 18, in 1 Proceedings, at 1026 (emphasis added).

FN30. Because article XI, section 7 also mandates the creation of an agency to regulate water use "as provided by law," LURF and HFB argue that it is not self-executing. See State v. Rodrigues, 63 Haw. 412, 629 P.2d 1111 (1981) (holding that the creation of the independent grand jury counsel position in article I, section 11 was not self-executing). Whereas review of the history of article I, section 11 in Rodrigues evidenced the intent to require further legislative action, the same inquiry here reveals that the framers intended to invoke the public trust in article XI, section 7. See supra note 29. Article XI, section 7 is thus self-executing to the extent that it adopts the public trust doctrine. See Debates, in 2 Proceedings at 863 (statement by Delegate Waihee) ("What the [amendment] attempts to do is, first of all, create a fiduciary duty to regulate and control the water. The second thing that it does is establish a coordinating agency to regulate all water."); Haw. Const. art XVI § 16 ("The provisions of this constitution shall be self-executing to the fullest extent that their respective natures permit."); cf. Payne v. Kassab, 468 Pa. 226, 361 A.2d 263, 272 (1976) ("No implementing legislation is needed to enunciate these broad purposes and establish these relationships; the amendment does so by its own ipse dixit.").

Other state courts, without the benefit of such constitutional provisions, have decided that the public trust doctrine exists independently of any statutory protections supplied by the legislature. See, e.g., National Audubon Soc'y v. Superior Ct. Of Alpine Cty., 33 Cal.3d 419, 189 Cal.Rptr. 346, 658 P.2d 709, 728 n. 27 (1983.) ("Aside from the possibility that statutory protections can be repealed, the noncodified public trust doctrine remains important both to confirm the state's sovereign supervision and to require consideration of public trust uses in cases filed directly in the courts ...."), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983); Kootenai Envtl. Alliance v. Panhandle Yacht Club, Inc., 105 Idaho 622, 671 P.2d 1085, 1095 (1983) ("[M]ere compliance by [agencies] with their legislative authority is not sufficient to determine if their actions comport with the requirements of the public trust doctrine. The public trust doctrine at all times forms the outer boundaries of permissible government action with respect to public trust resources."). This view is all the more compelling here, in light of our state's constitutional public trust mandate. See San Carlos Apache Tribe v. Superior Court ex rel. Maricopa County, 193 Ariz. 195, 972 P.2d 179, 199 (1999) *133 ("The public trust doctrine is a constitutional limitation on legislative power.... The Legislature cannot order the courts to make the doctrine inapplicable to these or any proceedings."). To the extent that other courts have held otherwise, their decisions are neither controlling nor, for the reasons stated above, applicable in this state. See, e.g., R.D. Merrill Co. v. State of Wash. Pollution Control Hearings Bd., 137 Wash.2d 118, 969 P.2d 458 (1999).

The Code and its implementing agency, the Commission, do not override the public trust doctrine or render it superfluous. Even with the enactment and any future development of the Code, the doctrine continues to inform the Code's interpretation, define its permissible "outer limits," and justify its existence. To this end, although we regard the public trust and Code as sharing similar core principles, we hold that the Code does not supplant the protections of the public trust doctrine.