The state has appealed a major Hawai'i Supreme Court decision that blocks the state from selling or transferring former Hawaiian monarchy lands.

State Attorney General Mark Bennett yesterday filed paperwork in Washington, D.C., asking the U.S. Supreme Court to reverse the unanimous state court decision, issued Jan. 31.

That decision held that the state cannot transfer ownership of 1.4 million acres of former monarchy lands, now called ceded lands, pending resolution of claims by Native Hawaiians to those lands or revenues they produce.

The Hawai'i opinion, written by Chief Justice Ronald Moon, was based in large part on language in a Congressional Apology Resolution passed in 1993 to mark the 100th anniversary of the overthrow of the Hawaiian kingdom.

Moon wrote that the Apology Resolution and related state legislation impose upon the state a "fiduciary duty to preserve the corpus of the public land trust, specifically the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved."

Bennett, however, said the Moon opinion "is based on a wholly incorrect reading of the legal effect of the Apology Resolution" and unfairly blocks the state from "prudently managing" the ceded lands.

The decision "strips the state of its basic sovereign right to control and manage the lands it owns," Bennett said in a news release.

The Hawai'i Supreme Court opinion reversed a lower court ruling from Circuit Judge Sabrina McKenna in a suit filed against the state by the Office of Hawaiian Affairs and four individual plaintiffs of Native Hawaiian ancestry.

OHA chairwoman Haunani Apoliona said yesterday, "We at OHA still believe that the Hawai'i Supreme Court ruled correctly that the state should keep the ceded land trust intact until Native Hawaiian claims to these lands are settled. We trust the U.S. Supreme Court will not second guess the justices of the Hawai'i Supreme Court."

OHA lawyer Jon Van Dyke called the Moon opinion "well-researched and thoughtfully written," adding that if the U.S. Supreme Court agrees to review the matter "it will rule in our favor."

OHA administrator Clyde Namu'o said that, while he has "great respect for Mark Bennett," he is concerned that "it may be difficult to limit the issues that the (U.S.) Supreme Court looks at."

"It would seem to me that the Supreme Court justices may choose to look closely at the Apology Resolution itself," said Namu'o.

Bennett said that a decision from the high court on whether it will hear the case should be issued by October.

He made three arguments for the court to hear the appeal.

One is that the Moon opinion "has an enormous impact on Hawai'i" by barring state control of the ceded lands, which make up 29 percent of all land in Hawai'i and almost all the land owned by state government.

Second, Bennett said the decision "raises serious constitutional concerns" because the federal government, in transferring the land to the state in the Admissions Act, allowed for the sale or other disposition of property, with proceeds to be used for public schools, betterment of Native Hawaiians and other specific public purposes.

Finally, Bennett said, the Hawai'i Supreme Court opinion was based on federal law, improperly excluding state government from ceded land policy decisions.

Such decisions, he said, "should be made by the executive and legislative branches of the government of the sate of Hawai'i, not by Congress."