Property rights to geothermal resources in Hawaii

"A sharp discontinuity in the administration of Hawaii's unique land laws has created uncertainty as to the ownership of geothermal resources in the state. Until Hawaii was annexed to the United States and governed under the Organic Act of 1900, mineral rights had with rare exception been reserved to the government, even though the statutory requirement for making the reservation had been repealed in 1859. Beginning in 1900 and through 1955, the practice was reversed and lands were patented without mineral reservations -- even some lands which had originally been granted subject to a reservation. Further, the Land Court created by the Territory issued certificates of titles to lands registered under the Torrens system, omitting mineral reservations made at the time of original conveyance by the government. It is unclear whether reservations are to be implied in some or all of the titles issued without express reservation clauses. The uncertainty is compounded by contradictory arguments which can be readily made as to whether mineral reservations in Hawaii encompassed geothermal resources in grants made prior to a 1974 statute which states that they do. The Hawaii Supreme Court has recently shown a receptivity to social policy arguments, while in parallel cases regarding ownership of natural resources, the federal District Court in Hawaii has been the more protective of private property rights under the 14th amendment.""This paper is a further development of a comment in 1 UNIV. OF HAW. LAW REVIEW 69, "Ownership of Geothermal Resources in Hawaii," (1979). Appreciation is due to three who ably assisted in this research: Carla Tinning, who made the first study of Puna land grants referred to below, Carole Nishikawa, who did the second study, and Patrick Canan, who helped research the law governing the discretionary powers of public land administrators. Thanks are also given to the Hawaii Department of Planning and Economic Development for its support of surveys of land grants cited herein.U.S. Department of Energ