Hawaii Navigability Report
Hawaii has few navigable streams. The Wailua River on Kauai is the only navigable river by boats larger than kayaks. Smaller navigable waterways include the Waimea, Hanape'pe, Lumahai, and Hanalei Rivers. Given how few navigable waterways exist, there is very little law regarding the public's rights in those waterways, and practically no law exists that discusses the public's right to recreate in non-navigable rivers.
State Test of Navigability
Courts in Hawaii have recognized three different tests of navigability: (1) the navigable-in-fact test: if a body of water is navigable-in-fact, or actually navigable, then it is navigable-in-law; (2) the reasonable improvement test: a waterway is navigable in law if reasonable improvement will render it navigable-in-fact; and (3) the ebb and flow test: “estuarine tidal areas which are regularly inundated by the mean higher, high tide are subject to the navigational servitude.”1) The courts have been vague, however, in determining which test applies in what circumstances, indicating that it depends on the context. It should be noted that there is a major exception to these navigability tests: courts have held that the tests may not apply to ponds because of the unique legal status of Hawaiian fishponds as strictly private property.2)
Hawaii's Constitution mandates that the waters of Hawaii, including navigable rivers and streams, be protected in a public trust for its citizens.3)) Hawaii's Supreme Court affirmed the public trust doctrine in a 2000 decision on the diversion of water for private use, finding that the state had the right “to maintain the purity and flow of [its] waters for future generations” and holding that ”[t]he public trust doctrine applies to all water resources without exception or distinction.”4) However, the law in Hawaii is silent on streambed ownership.
Extent of Public Rights in Navigable and Non-Navigable Rivers
The public trust provisions of the state Constitution provide for broad access to Hawaii's waterways. There are, however, restrictions. Among them, Hawaii statute provides that “no person shall anchor, moor, or otherwise place any vessel, houseboat, or other contrivance on or within the ocean waters or navigable streams of the state without a permit from the Department of Land and Natural Resources.”5) However, this statute provides an exception for “pleasure craft or fishing vessels temporarily anchored for a period of less than seventy-two hours.”6) Additionally, as stated above, Hawaii considers fishponds to be strictly private property.
Several government agencies oversee Hawaii's navigable waterways. Hawaii has created a commission for the protection of in-stream flows, for purposes such as recreation.7) The Department of Land and Natural Resources (“DLNR”) is responsible for overseeing and regulating activities on Hawaii's navigable waterways.8) The DLNR and the Division of Boating and Ocean Recreation are responsible for, among other things, removing nonnatural obstructions and public safety hazards, adopting safety measures, and licensing commercial activities on navigable waterways.9) Useful information can be found on the agencies' websites at www.hawaii.gov/dlnr and www.hawaii.gov/dlnr/dbor/dbor.html.