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The Honolulu Advertiser
Posted on: Saturday, July 1, 2006

Court affirms lawsuit against DHHL

By Gordon Y.K. Pang
Advertiser Staff Writer

The tears rolled down the face of Raynette Nalani Ah Chong yesterday as she recounted how her father fought and died waiting for a chance to be awarded land by the state Department of Hawaiian Home Lands.

"I watched him fight long and hard for this," said Ah Chong, 45, of her father, Joseph Ching, who died in 2001. "Dad, we prevailed."

By a 5-0 decision, the state Supreme Court yesterday affirmed the right of Ah Chong's family and 2,700 other Native Hawaiian claimants to file a class-action lawsuit against the DHHL. The lawsuit, alleging breach of trust, is based on grounds that the department failed to adequately deal with their claims.

"The purpose of the Hawaiian Home Lands Act (of 1920) was to put Native Hawaiians back on the land and to give them a homestead, and the Department of Hawaiian Home Lands has failed miserably, historically, in fulfilling that obligation," said Thomas Grande, an attorney for the claimants.

Russell Pang, a spokesman for Gov. Linda Lingle, and Dana Viola, special assistant to Attorney General Mark Bennett, said that state attorneys are reviewing the court's opinion and declined further comment.

Carl Varady, a claimant attorney, said Ching's decades-old case was emblematic of DHHL's mismanagement.

"He went down to the claims office and was told 'You cannot apply because you already own a house,'" Varady said. "And nowhere was there a rule saying a beneficiary could not apply if he owned property." That was in the 1960s.

In the 1980s, Ching attended a DHHL meeting in Waimanalo where lots were being awarded, only to see his number skipped in favor of someone behind him, Varady said.

While many of the claims, like Ching's, deal with the length of time beneficiaries have been waiting for parcels, others have to do with problems associated with construction of their homes, lack of water or other necessary infrastructure on their lots, or other issues, Grande said.

In 1988, the state granted beneficiaries the right to sue for breaches of the Hawaiian Home Lands Trust arising after July 1, 1988. In 1991, the Legislature enacted a law designed to resolve beneficiary claims from Aug. 21, 1959, to June 30, 1988. The process included a panel that reviewed claims.

But most, if not all, of the 2,700 remaining claims from that period have been taken up, the attorneys said, and the process set up by the Legislature expired in 1999. The Legislature passed a bill seeking to extend the process, but it was vetoed by then-Gov. Ben Cayetano.

The state argued that the government's failure to act gave the claimants no further remedy, a conclusion that the high court termed "absurd" given the history of the state's prior commitment to provide them some form of relief.

"The claimants were left with no other choice but to file the lawsuit that we pursued on their behalf," Grande said. "Their choice was either to give up entirely and let the state get away with failing to fulfill its promises one more time, or to pursue the right to file a claim in Circuit Court, which we did on their behalf."

Circuit Judge Victoria Marks said that the claimants had a right to seek monetary damages, but the case was appealed by the state.

The decision by the Supreme Court allows the claimants to return to Circuit Court to pursue their claims for monetary damages. Attorney Alan Murakami, also a claimant attorney, said less than two-tenths of one percent of the state budget has been dedicated to DHHL over the last two decades.

"This is an example of how the state has given very little priority to the most important and fundamental mission of the state as a result of joining the federal union," Murakami said. "The promise of the state was that it was going to take care of the Native Hawaiian population through the Hawaiian Homes Commission Act."

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.