Tag Archives: Department of Hawaiian Home Lands

Intermediate court: Hawaiian funding provision can be enforced

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The Hawaii Intermediate Court of Appeals ruled this week that courts can enforce a constitutional requirement to provide “sufficient” funding for the operations of the Department of Hawaiian Home Lands.

The decision could further complicate the state’s budget picture by requiring the legislature to substantially increase its support for DHHL.

The ruling overturned an earlier decision by Circuit Court Judge Bert Ayabe, who had agreed with state attorneys that the question of DHHL funding is essentially “political” and must be left to the legislature’s discretion. The state argued that there are no clear standards for judging whether any particular level of funding is “sufficient” and, therefore, the funding decisions must rest with the legislature.

The lawsuit was brought by the Native Hawaiian Legal Corporation on behalf of six Hawaiian beneficiaries of DHHL. David Kimo Frankel argued the plaintiff’s case before the Intermediate Court in September.

The lawsuit focuses on a 1978 amendment to the State Constitution. Article XII, Section 1 of the Constitution was amended to read:

The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law. [emphasis added]

The 1978 amendment substituted the word “shall” for the previous phrase, “may, from time to time, make additional”.

Plaintiff’s relied on the records of the 1978 Con Con to show delegates intended to take away the legislature’s discretion and instead require adequate funding of DHHL.

Even after passage of the amendment, the legislature appropriated no general funds for DHHL until 1987. The funding peaked at over $4 million in 1997, and has fallen since. During the Lingle administration, DHHL pursued an ambitious program of commercial development and leases to private parties in order to raise the funds necessary to operate the department and its programs.

It was exactly the practice of relying on income provided by leases to non-Hawaiian corporations that prompted the 1978 amendment, according to Con Con minutes cited by the plaintiffs.

The lawsuit faults DHHL for failing to submit budget requests for sufficient funds, and the state for failing to provide such funds.

The appeals court agreed with plaintiffs that the record of the 1978 Constitutional Convention provides numerous standards that can be applied to determine whether a particular level of funding is “sufficient.”

The decision sends the case back to the Circuit Court for further proceedings to determine whether actual funding levels are “sufficient” to meet the suggested standards.

Pending legal case could undermine ability to enforce the state constitution

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My commentary this week on Hawaii Public Radio examined a pending lawsuit against the state and the Department of Hawaiian Home Lands over the issue of funding, which is now before the Intermediate Court of Appeals. I wrote about the case a couple of years ago, and that short article is still a good summary of the underlying issues.

But the issue on appeal is different. The appeal focuses on the 1978 constitutional amendment that, among other things, requires the legislature to provide “sufficient sums” to operate DHHL.

The state and DHHL contend the term “sufficient sums” is just too vague, and lacking in specific standards, to be enforced by the courts. Although Con Con records show delegates wanted to take away the legislature’s discretion and require it to fund the department, the state’s lawyers say the amendment should be read simply as a “moral appeal” to legislators and not as a legal requirement.

Plaintiffs respond that while there may not be immediate agreement on just what level of funding would be “sufficient”, it is certainly obvious that zero dollars, the current level of general funding, is not sufficient. They also argue that, based on the Con Con record, “sufficient sums” would be a level that obviates the need to lease land to non-Hawaiian corporations in order to raise necessary operating funds.

You can listen to a recording of the oral arguments before the Intermediate Court of Appeals, which took place on September 8. Attorney David Kimo Frankel of the Native Hawaiian Legal Corporation argued for the Hawaiian plaintiffs in the case. He is the son of retired Star-Bulletin editor Chuck Frankel.

Wednesday…House approves 99-year commercial leases on Hawaiian lands, cat killer reward in limbo

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The Lingle administration campaigned on a pledge to cut the waiting list for leases at the Department of Hawaiian Home Lands.

But the plan has turned out to be a back-door land grab by commercial and development interests. Lingle has proceeded by cutting funding for the agency and forcing DHHL to rely on income from commercial leases, most of those to non-Hawaiians.

The House yesterday gave an unfortunate boost to that land grab by passing SB 638. The bill, sponsored by Sen. Clayton Hee, started out as a two-year moratorium on evictions of residents from Kahana Valley, which is now a state park. It was prompted by state attempts to evict several families last year.

But the House Committee on Water, Land, and Ocean Resources morphed the bill by tacking on an unrelated provision to allow the Department of Hawaiian Home Lands to issue 99-year renewable commercial leases, essentially encumbering land permanently under corporate control.

According to the committee report:

Finally, your Committee has further amended this measure by adding a new part to this measure containing the substance of provisions contained in H.B. No. 949, H.D. 1, previously heard by your Committee, relating to authorizing the Department of Hawaiian Home Lands (DHHL) to negotiate and enter into project development agreements and long-term commercial leases for terms not exceeding 99 years. As amended, this bill also provides that at the termination of the lease, the prior lessee may be extended, as a provision of the initial lease, a right of first refusal to extend the lease subject to the terms of any public auction, so long as the prior lessee matches the highest lease rental bid offered during the public auction. Further, as part of this process, DHHL may enter into consultations with the beneficiaries of the home lands trust on any such commercial lease.

DHHL was able to get support from some beneficiaries, who believe that alienation of a key portion of their land base is the only way to provide residential or agricultural leases to those on the waiting list.

That impression is being furthered by an administration-backed move to cut off general fund support to DHHL and make the agency raise all of its own funds.

The Native Hawaiian Legal Corporation says this runs directly counter to key provisions of the State Constitution. A column published in the current issue of the Office of Hawaiian Affairs newspaper looks back at the deliberations of the 1978 Constitutional Convention.

Accordingly, they adopted a provision that required the state to provide “sufficient sums” to pay for all Hawaiian homestead costs, including the “administrative and operating budget” of the Department of Hawaiian Home Lands (DHHL). The delegates proposed to make it “expressly clear that the legislature is to fund DHHL” in order to rectify chronic underfunding of the program since its inception in 1921. In fact, the committee report stated that the constitutional amendment would “no longer allow the legislature discretion in this area.” Hawai’i voters ratified this constitutional amendment.

Attorney Alan Murakami met earlier with the Legislative Hawaiian Caucus to discuss these constitutional concerns over the plan to cut public funds for DHHL. It isn’t clear whether members of the Hawaiian Caucus were aware at the time of yesterday’s vote that the 99-year lease provision had been added into SB638.

NHLC is also pressing a lawsuit challenging the state’s failure to comply with the constitutional mandate, which I wrote about last year.

Did you catch Monday’s story in the Advertiser about cats being shot and killed at the Kapaa Quarry Industrial Park? It’s not a pretty story. And there’s more.

According to the story:

The Humane Society USA is offering a $2,500 reward for information that leads to the arrest and conviction of those responsible for the shootings.

You might notice that there is no information given on where to report tips that might qualify for the reward.

Cat advocates say they’ve been told that the reward has to be funneled through either HPD or the Hawaiian Humane Society before it can be offered to the public, but neither agency has agreed to accept the reward offer.

It would be good to know whether that understanding is correct or not.

Okay, it’s time to go watch the sunrise, although the heavy clouds this morning look like they’ll block any view of the sun.