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The Honolulu Advertiser
Posted on: Thursday, June 3, 2010

OHA goes to court over $200M

By Gordon Y.K. Pang
Advertiser Staff Writer

The state Office of Hawaiian Affairs wants the Hawai'i Supreme Court to force the Legislature to agree to pay OHA $200 million starting in 2015.

The payment would settle OHA's claims against the state for revenue from ceded lands, or property once owned by the Hawaiian monarchy.

But Attorney General Mark Bennett and legislative leaders said OHA's appeal to the court is without merit because the agency cannot compel 76 lawmakers to action, among other reasons.

At issue is an estimated $200 million in past-due ceded land revenues. OHA and the state have long agreed that the agency is owed a portion of money generated by lands once owned by the Hawaiian monarchy, lands where state airports, hospitals and housing projects now sit.

For the past several years, the state has been giving OHA about $15 million annually as its share of revenues generated on those properties.

What's not decided is how much OHA should receive in future years, and should have received over the past three decades.

OHA's petition to the court yesterday said the state has failed to settle its claim even though the Hawai'i Supreme Court issued decisions in 2001 and 2006 mandating that the Legislature address the claims.

"We believe that we have an obligation to our beneficiaries to continue to push this issue forward. And that's why we felt we really had no other choice but to file this action," said OHA administrator Clyde Nāmu'o.

OHA submitted proposed settlements during the 2008, 2009 and 2010 legislative sessions and the Legislature rejected all of them, he said.

In 2008, OHA and the Lingle administration jointly presented a land-and-cash package worth $200 million. In response to concerns raised by Native Hawaiian interests, lawmakers rejected the plan and asked OHA to hold public meetings on the plan, which it did.

In 2009, when the state began to feel a financial squeeze, OHA said it would take land immediately and cash later. The discussion bogged down over disagreement about which lands should be included.

This year, Nāmu'o said, lawmakers did not even give OHA's ceded lands bill a hearing. That proposal called for the Legislature acknowledging the state owes OHA $200 million, but deferring any payment on that amount until 2015 in recognition of the state's fiscal woes.

"We are agreeable to deferring the payment of these funds for at least five years," Nāmu'o said. "Our feeling is that we have been reasonable in our approach to how this matter might be satisfied."


Leaders in both the House and Senate said that some version of a ceded lands plan was heard in both houses.

House Majority Leader Blake Oshiro, D-33rd ('Aiea, Halawa Valley, 'Aiea Heights), said "the Legislature has vigilantly attempted to address the issue every year since the settlement was reached."

Oshiro said he thinks OHA's 2010 proposal, deferring payments until 2015, is something lawmakers should consider.

"It's unfortunate that a state agency like OHA feels the need to resort to litigation to get an issue resolved," Oshiro said.

Attorney General Bennett and Senate President Colleen Hanabusa, D-21st (Nānākuli, Mākaha), questioned the validity of OHA's action.

"It's meritless, on every level," Bennett said.


A writ of mandamus, which is what OHA is seeking against the Legislature in its petition, is typically used to force a government official to perform a ministerial action, Bennett said.

"I don't think that mandamus is the proper forum," Bennett said. "I don't think the courts can require a Legislature to consider or address particular issues."

Both Bennett and Hanabusa also noted that the lawsuit names each of the 76 lawmakers in the 2010 Legislature individually.

All 51 House members and at least half the 25 Senate seats will be up for grabs, meaning many of those named may not even be part of the 2011 Legislature to deal with the issue as called for in the OHA action, Hanabusa said.

Bennett and Hanabusa also questioned whether the the court decisions cited actually mandate the Legislature to settle the claims the way OHA is interpreting them.

Nāmu'o said the action came with the approval of the OHA board. But he declined to say how many of the OHA members supported the bill, saying the vote was done behind closed doors at the recommendation of attorneys.