OHA sues state over airport money
By Vicki Viotti
Advertiser Staff Writer
The Office of Hawaiian Affairs and its board of trustees yesterday sued the state in a legal maneuver to preserve its claim on potentially millions of dollars generated annually from airport operations on ceded lands.
The complaint was filed in state Circuit Court a day ahead of a legal deadline so that the trustees would be able to bargain for the controversial airport revenues when they start negotiating how much the state should pay OHA, said board Chairwoman Haunani Apoliona.
The OHA negotiating team — headed by Apoliona and including trustees Dante Carpenter, Boyd Mossman and Oswald Stender — expects negotiations to begin in September, Apoliona said.
Attorney General Mark Bennett would not comment in detail on the lawsuit, saying only that "the state does not believe the lawsuit has merit, and we will vigorously defend against it."
Ceded land is property once controlled by the Hawaiian Kingdom for public purposes or to support the crown. About 1.8 million acres was ceded to the United States on annexation and back to Hawai'i upon statehood. Native Hawaiians are among the beneficiaries of revenue from that land, and OHA received a share that was calculated at 20 percent until nearly two years ago, when the state law enabling those payments was struck down by the state Supreme Court.
The reason for invalidating the statute, Act 304, was conflict between that state law and the federal Forgiveness Act of 1997. The Forgiveness Act was drawn up because of a Federal Aviation Administration finding that the share of money from the airports should be used only for airport purposes and should not go to OHA.
The act "forgave" the state for paying about $28.2 million to OHA going back about 10 years, in exchange for an agreement to prohibit future payments of airport revenues to OHA. The first time the proposed agreement came to light was in a U.S. Senate report issued July 22, 1997.
"This is the first day that OHA could have reasonably known that the state of Hawai'i changed its position on these revenues and essentially capitulated to the FAA position," said OHA attorney Robert Klein.
Six years after that date — today — a statute of limitations would have expired that may have precluded OHA from making a claim on the airport money, Klein said. The lawsuit was aimed at keeping that option open, he added.
The state "breached its fiduciary duties" as trustees for Hawaiians by failing to defend the OHA payments as "rent" and therefore legal, Klein said.
"Because the state breached its fiduciary duties, the state is responsible for restoring those funds," he added.
Klein could not estimate what those payments would be worth to OHA because of lingering disagreement over what qualifies as airport-generated revenues.
Apoliona and Bennett agreed that the lawsuit shouldn't hinder other cooperative ventures between the state and OHA: lobbying for federal recognition of Hawaiians and battling lawsuits that challenge all programs benefiting only Hawaiians.
"We're confident the joint efforts will continue," Apoliona said.
