SB 3323

THE SENATE
S.B. NO.
3323
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII
A BILL FOR AN ACT
RELATING
TO ECOSYSTEM RIGHTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
���� SECTION 1.� This Act shall
be known and may be cited as the Na Aina no Ia Act, or NANI Act.
���� SECTION 2.�
The Hawaii Revised Statutes is amended by adding a new chapter to be
appropriately designated and to read as follows:
"Chapter
ECOSYSTEM
RIGHTS: WATERSHEDS AND CORAL REEFS
���� ��� -1� Definitions.� As used in this chapter:
���� "Coral reef" means a coral reef
ecosystem, including the fish, invertebrates, limu (algae), marine mammals, and
all other living components that form a functional marine life ecosystem.
���� "Ecosystem person" means a coral
reef or watershed with legal personhood.
���� "Legal personhood" or "legal
person" means recognition in law as a rights-bearing entity, with the
capacity to be represented in legal proceedings and to exercise rights and
protections under the law.
���� "Recognized customary knowledge"
means knowledge derived from established Native Hawaiian or local community
practices that have been consistently observed, transmitted, and validated
within those communities and that are relevant to the stewardship, protection,
or restoration of the affected ecosystem person.
���� "Science-backed claim" means a
claim supported by credible evidence, including peer-reviewed research,
governmental resource data, or expert testimony grounded in marine science,
environmental science, recognized customary knowledge, or Kanaka Maoli
traditional ecological knowledge.
���� "Watershed" has the same meaning
as in section 183-31.
���� ��� -2� Watersheds and coral reefs; legal personhood.� (a) �Each watershed or coral reef located in the
State shall be recognized as a legal person and shall have the rights, powers,
and protections of a legal person, including the right to exist, flourish, and
naturally evolve, defined to include measurable ecological conditions such as
maintaining or increasing live coral cover, avoiding activities that impair
recruitment or resilience, and ensuring conditions that allow natural recovery
processes, and as reflected by Kanaka Māoli traditional and customary
cultural values, practice, and worldview, including the notion and practice of malama
aina. �All rights secured by this chapter
shall be inherent, fundamental, and inalienable and shall be self-executing and
enforceable against both private and public actors, including through
injunctive relief, mandatory corrective actions, and court-ordered restoration.
�Courts shall issue mandatory injunctions
whenever a violation of an ecosystem person's rights is established, regardless
of the availability of monetary or administrative remedies. �By codifying these rights, the State seeks to
ensure the restoration and vitality of watershed and coral reef ecosystems for
the benefit of present and future generations, in harmony with Kanaka
Māoli knowledge and stewardship practices.
���� (b)
�State agencies, entities, and
subdivisions shall recognize the legal personhood of watersheds and coral reefs
in the State and shall not engage in, authorize, or attempt to engage in
activities that violate the rights, powers, and protections bestowed upon any
ecosystem person by its establishment as a legal person.
���� ��� -3� Natural resources; uses; activities; leases.� The natural resources found
associated with watersheds and coral reefs, including all flora and fauna,
shall be considered to have an inalienable connection to the health and
well-being of the ecosystem person. �No
use, activity, or lease involving watersheds or coral reefs shall be approved
that compromises or endangers this connection.
���� ��� -4� Right of action.� Any individual, public agency, or private
entity may bring an action against another individual or entity that violates
or attempts to violate the rights of an ecosystem person in the State, and
courts may order injunctive relief, moratoria on harmful activities,
restoration plans, monitoring, penalties proportionate to harm, and long-term
stewardship obligations. �If liability is
established, the court shall require ecological restoration sufficient to
return the ecosystem person to its ecological baseline that existed before the
harm, or, if that baseline was already degraded, to the best scientifically
achievable functional condition necessary to fully remedy the injury without
imposing liability for unrelated historic degradation, unless the plaintiff requests
an alternative remedy based on cultural or customary considerations. �An action brought by a private individual
shall be accompanied by a science-backed claim. �Courts shall liberally grant standing to
persons enforcing this chapter, in recognition of their kuleana
(responsibility) as stewards of the affected ecosystem person.
���� ��� -5� Relationship to the public trust; no diminishment; rule of construction.� (a) �This chapter shall be considered cumulative of
and complementary to the public trust doctrine recognized in article XI of the
Constitution of the State of Hawaii and in the decisions of the Hawaii supreme
court. �It establishes additional avenues
for stewardship and enforcement and shall not be construed to supplant,
replace, or diminish the public trust.
���� (b)
�Nothing in this chapter shall be
construed to limit, modify, diminish, or otherwise affect:
���� (1)� The
State's fiduciary duties as public trustee over public natural resources; or
���� (2)� The protection of Native Hawaiian traditional
and customary rights, appurtenant rights, or other rights safeguarded under the
Hawaii State Constitution and laws.
���� (c)
�In any case of ambiguity or potential
overlap, this chapter shall be construed, to the fullest extent permitted by
law, to harmonize with and enhance, not conflict with, public trust duties, and
to advance the purposes of both this chapter and the public trust doctrine.
���� ��� -6� Representation and stewardship duties; open guardianship.� (a) �Any person, organization, or community may act
to uphold the rights of an ecosystem person under this chapter. �Formal appointment or recognition shall not be
required as a condition of standing.
���� (b)� All persons asserting or defending rights on
behalf of an ecosystem person shall act in good faith and in a manner
consistent with the principles of malama aina, pono governance, and the public
trust doctrine.
���� (c)� Before initiating a claim or enforcement
action, any person or group acting on behalf of an ecosystem person shall make
reasonable efforts to consult with Native Hawaiian practitioners and community
stewardship organizations connected to the affected ecosystem, and to consider
their perspectives in good faith.
���� (d)� Parties acting under this chapter shall
disclose to the court the nature of their relationship to the affected
ecosystem and any material interest they hold in the outcome of the action.
���� (e)� A court, upon motion or its own initiative, may
dismiss or limit participation in an action if the court finds that a person or
entity is acting in retaliation, bad faith, for private gain, or in a manner
inconsistent with the purposes of this chapter.�
Nothing in this section shall preclude community‑based processes
for accountability or mediation consistent with Native Hawaiian customary
practices.
���� (f)� No individual or organization shall have
exclusive authority to represent an ecosystem person. �Multiple parties may act concurrently or
cooperatively, provided their actions are consistent with this chapter and the
public trust doctrine.
���� ��� -7� Enforcement; no waiver of accountability; supremacy; retroactive
application.� (a) �Notwithstanding
any law to the contrary, no officer, agency, or authority of the executive
branch of the State shall enter into or enforce any waiver, indemnity
agreement, memorandum of understanding, lease, permit, or other legal
instrument that purports to release, excuse, or shield any person, corporation,
agency (including any branch of the United States Armed Forces), or any other
entity from liability or accountability under this chapter for harm to an
ecosystem person. �Any provision or
agreement, whether now existing or executed in the future, shall be void and
unenforceable as contrary to public policy.
���� For
the avoidance of doubt, any enforcement, claims or suits under this chapter
shall be in addition to, and shall not preclude, limit, or be deemed to satisfy
any duty, remedy, or cause of action arising under the public trust doctrine or
other applicable law.
���� (b)� If
any conflict between this chapter and any other provision of the Hawaii Revised
Statutes or other state law occurs, including any law, rule, regulation, permit
condition, contract, or agreement that would limit or immunize any party's
responsibility for harm to a watershed or coral reef, the provisions of this
chapter shall govern. �This subsection
shall be construed in harmony with sections���
-5 and    -10 so that this chapter and the public trust
doctrine are mutually reinforcing. �Nothing
in this subsection may be interpreted to limit, restrict, or subordinate any
right, duty, or remedy created by this chapter. �This chapter shall supersede and preempt any
state or local law to the extent of the conflict, particularly with respect to
the accountability of any person or entity for injury to an ecosystem person
recognized under this chapter.
���� (c)� This
chapter shall apply retroactively to all acts and omissions occurring on or
after August 21, 1959, that have harmed or would have violated the rights of
any watershed or coral reef as recognized by this chapter.
���� (d)�
Any claim alleging injury, degradation, or loss to an ecosystem person
may be brought under this chapter for conduct occurring on or after August 21,
1959, regardless of whether the conduct has ceased or been previously addressed
through settlement or administrative action. �Prior judgments or agreements shall not bar
restorative relief if the ecological or cultural harm remains unremedied or
continues to impair the health, function, or rights of the affected ecosystem
person. �Remedies under this subsection
may include restoration, mitigation, monitoring, or any other equitable
measures necessary to repair and reconcile the continuing effects of the harm.
���� ��� -8� Citizen enforcement safeguards and community protections.� (a) �Citizen enforcement under this chapter shall strengthen,
and not undermine, lawful cultural practices and community stewardship that are
conducted in good faith under Native Hawaiian tradition or state and county
management.
���� (b)� Any person or organization intending to bring
an action under this chapter, no fewer than sixty days before filing, shall provide
written notice of intent to file suit to:
���� (1)� The
relevant public trustee agency or agencies; and
���� (2)� Native
Hawaiian practitioners, community organizations, or stewardship groups known to
have a connection to the affected ecosystem.
���� The
notice shall describe the alleged harm, the relief sought, and proposed
cooperative steps toward resolution.
���� (c) �Within
the notice period, any practitioner, community group, or public trustee may
respond and propose actions to address the concern through cooperative or
customary means. �A court may stay
proceedings to allow such resolution if it serves the purposes of this chapter.
���� (d) �No
enforcement action under this chapter shall be maintained against the exercise
of Native Hawaiian traditional and customary rights, lawful subsistence, or
recognized community restoration or management activities conducted in good
faith.
���� (e) �A
court shall dismiss, and may impose costs, fees, or sanctions upon any action
brought in bad faith, for harassment, retaliation, or to impede legitimate
cultural or stewardship practices.
���� (f) �Parties
are encouraged to resolve disputes through Native Hawaiian dispute-resolution
practices, hooponopono, or other forms of mediation before or during
litigation. �Courts may refer matters to the
processes authorized under this subsection upon request or agreement of the
parties.
���� ��� -9� Restorative retroactivity; continuing duty of repair.� (a) �With the acknowledgement that many
harms to Hawaii's ecosystems occurred under legal regimes that failed to
recognize nature's inherent rights and the reciprocal kuleana between people,
āina, and kai, historic injuries to ecosystems and their descendant
communities shall not be excluded from justice merely because the conduct
causing them has ceased. �Restoration of
degraded lands and waters is a continuing moral and fiduciary duty owed to present
and future generations.
���� (b)� This
chapter shall apply to ecological harms, discharges, extractions, diversions,
land-use or other practices originating before its effective date if the
resulting injury, degradation, or loss (whether active or dormant) continues to
impair ecological integrity, cultural practice, or public trust values. �Remedies under this chapter shall be
restorative and equitable in nature, prioritizing rehabilitation, remediation,
reconciliation, and cultural healing.
���� (c)� Any
person, corporation, government, or other entity that caused, contributed to,
benefitted from, or failed to remedy a condition of ecological degradation,
even if the original act has ceased, shall have a continuing duty of repair
under this chapter commensurate with its role, capacity, and present control,
management, or influence.
���� (d) �Courts
and public trustee agencies shall give priority to cases where:
���� (1)� The
harm remains ecologically or culturally significant;
���� (2)� The
ecosystem or aquifer retains potential for recovery or rehabilitation; and
���� (3)� Restoration
will materially advance justice, ecological integrity, or community well-being.
���� Courts may phase remedies or employ
cooperative plans to prevent excessive burden while ensuring long-term repair.
���� (e) �In
addressing historic harms, courts are encouraged to employ mediation,
restorative justice, and customary Native Hawaiian reconciliation processes,
and to recognize that many harms arose from systemic neglect rather than
isolated acts.
���� (f) �Nothing in this section shall preclude the
State or any community from acknowledging, documenting, or educating about
historic ecological harms as part of an official record of reconciliation, even
where full physical restoration is not feasible.
���� ��� -10� Preservation of water commission authority and existing protections.� (a) �Nothing in this chapter shall be construed to
limit, modify, or supersede the constitutional public trust duties recognized
in article XI, sections 1 and 7 of the Constitution of the State of Hawaii, nor
to alter the standards or protections established in In re Water Use Permit
Applications (Waiahole Ditch), 94 Haw. 97 (2000); Ka Paakai o ka Aina v. Land
Use Commission, 94 Haw. 31 (2000); or any other cases affirming Native Hawaiian
rights and environmental stewardship obligations. �These decisions shall remain the governing law
of the State.
���� (b)� The
commission on water resource management shall continue to exercise its powers
and duties under chapter 174C to manage, allocate, and protect the waters of
the State as a public trust resource. �Nothing
in this chapter shall be construed to diminish the authority of the commission.
���� (c)� The
rights and remedies created by this chapter are complementary to, and not
contingent upon, agency enforcement. �Persons
and communities retain independent authority to act when necessary to protect
or restore any ecosystem person. �Actions
under this chapter and agency proceedings may proceed concurrently, each
reinforcing the other's responsibility toward the same constitutional trust.
���� (d)� Courts
and agencies are encouraged to coordinate information sharing and cooperative
planning to avoid duplication and promote efficiency. �However, no agency proceeding, investigation,
or decision shall delay, preclude, or limit a citizen action brought under this
chapter. �The people's right to enforce
the public trust shall remain independent, continuous, and unimpaired.
���� ��� -11� Co-governance and coordination with the commission on water resource
management and community stewardship councils.� (a) �The enduring well-being of Hawaii's ecosystems
depends upon shared governance grounded in both Native Hawaiian ancestral
knowledge and best available science. �Co-governance
under this chapter is intended to foster partnership, transparency, and mutual
accountability among State agencies, Native Hawaiian practitioners, and
community organizations engaged in malama aina and wai.
���� (b)� Communities
may form voluntary kahu aina councils or other stewardship bodies to advise,
coordinate, and collaborate in actions under this chapter.� The councils shall operate as inclusive
forums for cultural, scientific, and community guidance and shall have the
opportunity to consult with the commission on water resource management and any
other relevant agencies regarding restoration, monitoring, and enforcement
priorities.
���� (c)� Nothing
in this section shall be construed to limit who may bring a claim, assert a
right, or participate in proceedings under this chapter. �Citizens and communities shall retain
independent authority to act; actions under this chapter may proceed
concurrently with agency proceedings, each reinforcing the other's
responsibility toward the same constitutional trust. �The rights and duties established herein
belong equally to all persons and communities who act in good faith to protect
or restore any protected ecosystem persons, regardless of ancestry, cultural
affiliation, or organizational membership.
���� (d)� Without
conditioning or delaying any person's right to file or prosecute an action, the
commission on water resource management or other relevant agency shall consult
and coordinate in good faith with any person, community, stewardship group or kahu
aina council relevant to any proceeding or project under this chapter. �Coordination shall include, but is not limited
to, data sharing, joint restoration planning, and recognition of customary
knowledge as valid evidence in decision-making. �The coordination shall not diminish or
condition any person's independent enforcement rights under this chapter.
���� (e)� No
agency, council, or organization may use coordination or co-governance under
this section to obstruct, delay, or discourage lawful action brought under this
chapter.� Co-governance shall enhance
accountability, not restrict it.
���� ��� -12� Void against public policy.� Any law, rule, lease, contract, permit,
memorandum of understanding, or other agreement that limits, waives, or
indemnifies liability for harm to any ecosystem person shall be void and
unenforceable as contrary to public policy.
���� ��� -13� Nonbinding instruments.� No memorandum of understanding, statement of
principles, or other nonbinding instrument may be used to delay, waive, or
diminish any duty, right, or remedy established under this chapter.
���� ��� -14� State land leases and contracts.� All leases, permits, or contracts
involving state lands or resources shall include or imply binding terms
requiring full compliance with this chapter. �Any term to the contrary shall be void.
���� ��� -15� Indemnification and minimum standards.� (a) �No state agency or subdivision shall
indemnify, insure, or otherwise shield any contractor, lessee, or partner from
liability arising under this chapter.
���� (b)
�Compliance with other permits,
standards, or regulations shall not constitute a defense to liability for harm
to any ecosystem person.
���� ��� -16� Federal and public oversight.� (a) �This chapter shall apply to all persons and
entities, including federal agencies and military activities, to the maximum
extent permitted by law. �Remedies
against federal entities shall permit declaratory and injunctive relief to the
maximum extent allowed under federal law.
���� (b)� Any agreement concerning natural resources
that could affect the rights recognized by this chapter shall be publicly
disclosed and made continuously available for public inspection online and in
an accessible repository upon execution.
���� ��� -17� Civil penalties.� (a) �Any
person or entity that violates the rights of an ecosystem person shall be
subject to civil penalties imposed by the court in addition to any injunctive
or restorative relief ordered under this chapter.
���� (b)
�Civil penalties shall be determined by
the court based on science-backed evidence and shall be commensurate with:
���� (1)� The
severity, extent, and duration of the harm to the ecosystem person;
���� (2)� The
measures necessary to return the ecosystem person to its ecological baseline
that existed before the harm, or, if that baseline was already degraded, to the
best scientifically achievable functional condition necessary to fully remedy
the injury without imposing liability for unrelated historic degradation; and
���� (3)� Any
additional monitoring, stewardship, or long-term obligations required to ensure
full ecological recovery.
���� (c)
�Civil penalties may be structured to
support or accelerate restoration, monitoring, cultural stewardship, scientific
assessment, or long-term ecological resilience of the affected ecosystem
person.
���� (d)
�Compliance with any permit, standard, or
regulatory requirement shall not constitute a defense to liability or a basis
for reducing civil penalties under this section.
���� (e)
�Penalties collected under this section
shall be deposited into a dedicated fund established for the restoration,
monitoring, and long-term protection of ecosystem persons and shall be used
exclusively for those purposes."
���� SECTION 3.�
This Act shall take effect upon its approval.
INTRODUCED BY:
_____________________________
Report Title:
Ecosystem
Rights; Watersheds; Coral Reefs; Legal Personhood; Enforcement; Ecosystem
Persons
Description:
Recognizes
watersheds and coral reef ecosystems as legal persons with inherent and
inalienable rights to exist, flourish, and naturally evolve. �Establishes enforceable ecosystem rights
grounded in public trust doctrine and Native Hawaiian customary stewardship. �Authorizes citizen enforcement, restorative
and injunctive remedies, civil penalties, and continuing duties of ecological
repair, including for historic harms. �Provides
for open representation, community consultation, co-governance, and supremacy
over conflicting laws.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.