NATIVE HAWAIIAN LAW SUMMARIES: RECENT CASES
by Tia Blankenfeld, Derek Kauanoe, Malina Koani-Guzman
The Center for Excellence in Native Hawaiian Law focuses on education
and legal scholarship, community outreach, and the preservation of invaluable
historical, legal, traditional, and customary materials. It also offers
new courses and supports Native Hawaiian law students as they pursue
legal careers and various leadership roles. One of the Center’s important
objectives is to engage in discourse with the Hawaiian community about
legal issues that affect their lives. As part of this objective, the
Center is providing brief summaries of selected state and federal court
decisions that impact Native Hawaiians. This issue of Ka He‘e includes
summaries of Kalima v. State, Day v. Apoliona, and Kelly v. 1250 Oceanside
Partners.
1. Kalima v. State, 111 Hawai‘i 84, 137 P.3d 990 (2006).
Plaintiffs Leona Kalima, Dianne Boner, Raynette Nalani Ah Chong, individually
and as class representatives, brought a class action on behalf of more
than 2,700 other similarly-situated individuals against the State of
Hawai‘i, Department of Hawaiian Home Lands, Hawaiian Home Lands Trust
Individual Claims Review Panel, and Governor Linda Lingle, among others,
for breach of trust under the Hawaiian Homes Commission Act (HCCA).
The HCCA had sought to provide the declining number of native Hawaiians
(defined as those of 50% or more Hawaiian blood quantum) with the opportunity
to “receive the benefits of homesteading through leased land and related
programs from the trust.” However, “[d]espite the HHCA’s admirable goals,
controversy plagued the trust from its inception in 1921 and continued
after its transfer to the State in 1959.”
Responding to continuing allegations of mismanagement, in 1984 a Federal-State
Task Force was created, which “identified several areas of concern”
in the administration of the HHCA, and “made recommendations for improvements.”
Following the Task Force’s suggestions, in 1988, the Hawai‘i State Legislature
enacted a limited waiver of sovereign immunity for beneficiaries to
bring suits, prospectively, for money damages relating to breaches of
the State's trust responsibilities occurring after July 1, 1988. The
Governor was also tasked with formulating a plan to address past trust
controversies; if the Governor did not formulate the plan and if the
plan was not approved by the 1991 Legislature, an expansive right to
sue provision - retroactive to statehood – would automatically kick-in.
The Governor’s Action Plan, among other things, resulted in Act 323,
allowing individual beneficiaries to pursue claims for breaches of trust
occurring from statehood to 1988. Hawai‘i Revised Statutes (HRS) chapter
674 established an administrative process for such claims under the
guidance of the Hawaiian Home Lands Trust Individual Claims Review Panel.
The Panel’s duty was to review claims made by individual beneficiaries
“for actual damages arising out of or resulting from a breach of trust,
which occurred between August 21, 1959, and June 30, 1988, and was caused
by an act or omission of an employee of the State in the management
and disposition of trust resources.” By the August 31, 1995 claims filing
deadline, the Panel had received 4,327 claims from some 2,752 beneficiaries.
In the Panel’s 1997 progress report, it recommended damages awards totaling
approximately $6.7 for some 162 claims. The Panel also requested an
extension of its reviewing deadline due to “the large number of claims
and the Panel's limited staff and resources.”
However, the Legislature took issue with “the formula utilized by the
[Panel] to arrive at award amounts” calculated on completed claims.
Therefore, while the Legislature agreed to extend the Panel’s existence,
it also established a “Working Group,” via Act 382, which adopted a
new formula for calculating actual damages. The Working Group’s adjusted
formula was “significantly” different from the Panel's original one,
and it “effectively eliminated nearly sixty percent of the claims from
consideration,” essentially rejecting any “waiting list claims,” or
“those claims involving claimants who had been waiting an unreasonable
amount of time.”
In Apa v. Cayetano, claimants brought suit alleging a due process violation
“[i]n response to the Working Group’s proposed formula.” The Circuit
Court ruled that certain portions of Act 382 resulted in an unconstitutional
denial of due process and delegation of legislative power and that plaintiffs’
rights to equal protection had been violated. Furthermore, the court
found that the Working Group’s “distinction between the [waiting list
claims and non-waiting list claims] [was] arbitrary and capricious,
as there was no rational basis to treat them differently.” Apa, which
was never appealed, prevented the Working Group “from taking any further
action in determining the formula for compensation.”
Despite the fact that the Panel had lost “almost a year of productive
time due to Act 382” and the Working Group's interference, the Panel
reported to the 1999 Legislature that it had made “significant progress
in reviewing claims.” Nevertheless, with more than half of the claims
incomplete, the Panel requested a further extension. Despite pressure
from the Attorney General and other State Officials, the 1999 Legislature
passed House Bill No. 1675, which “extended the notice, filing, and
Panel report deadlines by one year, to allow additional time for all
claims to be reviewed.”
Then-Governor Benjamin Cayetano, who “concluded that the administrative
process was not working,” vetoed the Bill, thereby terminating the Panel.
Cayetano felt that the time needed for the completion of the claims
process was “totally unacceptable.” Hence, despite the fact that each
of the Plaintiffs had timely participated in the administrative process,
none were provided any remedy for their individual damages, which included
claims of: “(1) mismanagement of the extensive waiting list; (2) mishandling
of the plaintiffs’ applications; (3) preference policies regarding eligibility
requirements; and (4) the awarding of raw lands lacking infrastructure.”
Following a hearing, the trial court ruled in favor of the Plaintiffs,
concluding, among other things, that the Circuit Court had jurisdiction
to hear the complaint, Plaintiffs were entitled to judgment, the State
could be sued because it had waived its sovereign immunity, administrative
remedies had been exhausted, the claims were actionable, the State was
contractually obligated to provide remedies, and that Plaintiffs were
“entitled to pursue their claims for money damages and other relief…for
breaches of the HHCA trust obligations by DHHL.”
On appeal, the Hawai‘i Supreme Court affirmed the Circuit Court’s “determination
that the plaintiffs are entitled to pursue their claims under HRS chapter
674” and reversed its determination that the plaintiffs had the right
to sue for breach of contract.
Importantly, the Court did not adopt a strict and narrow interpretation
of the waiver of sovereign immunity set forth in HRS chapter 674. Rather,
it interpreted the waiver in light of the chapter’s remedial purpose.
The court held that HRS chapter 674 establishes a “process under which
individual beneficiaries under the Hawaiian home lands trust may resolve
claims for actual damages…for past breaches of trust” and “the chapter
as a whole provides a remedy for the redress of the individual beneficiaries’
injuries and, thus, falls squarely within the definition of a remedial
statute.” The Court remanded the case to the Circuit Court for further
proceedings.
In conclusion, this means that the more than 2,700 claimants can pursue
breach of trust claims and seek monetary damages from the State for
its alleged mismanagement of the Hawaiian Home Lands program.
2. Day v. Apoliona, __F.Supp.2d __, 2006 WL 2338212 (D.Hawai‘i
2006).
The State of Hawai‘i holds public lands, as well as the proceeds and
income derived from those lands as trustee of a “public trust,” and
is therefore obligated to use trust lands and funds for one or more
of five enumerated purposes—one of those purposes being for the betterment
of the conditions of native Hawaiians, as defined in the Hawaiian Homes
Commission Act of 1920.
Plaintiffs, as “native Hawaiians” defined by the Hawaiian Homes Commission
Act as “any descendant of not less than one-half part of the blood of
the races inhabiting the Hawaiian Islands previous to 1778,” brought
suit against former and current trustees of the State’s Office of Hawaiian
Affairs (OHA). Plaintiffs asserting federal 42 U.S.C. §1983 claims under
the Equal Protection Clause and the Admission Act, and state law claims
for breach of fiduciary duty and breach of fidelity. Plaintiffs alleged
that the State delegated its public trust duties to OHA, which receives
20 percent of all income derived from the trust lands. They further
alleged that former and current trustees have violated OHA’s public
trust duties by failing to use trust funds solely for betterment of
conditions of native Hawaiians.
The issues presented in the case were: (1) Did Congress create rights
that it intended to have enforced through a §1983 action when it enacted
the Admission Act?; (2) Should a Native Hawaiian law clerk be able to
work on the case?; (3) Are defendants violating the Equal Protection
Clause of the Fourteenth Amendment by spending trust funds to lobby
in support of the Akaka Bill?; and (4) Did defendants breach their duty
of fidelity under the common law of the State of Hawai‘i and HRS §10-16(c)
owed to Plaintiffs as native Hawaiian beneficiaries?
The federal district court held that plaintiffs do not have the individual
right to bring actions under § 1983 for alleged breaches of the public
trust established in the Admission Act. According to the court, Congress
did not intend to create rights enforceable through a §1983 action when
it enacted the Admission Act, and therefore, plaintiffs may not enforce
the public trust duties in the Admission Act under §1983.
In its analysis, the court turned to the leading U.S. Supreme Court
case on the issue, Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), in which
the Court examined whether a federal statute conferred individual rights
enforceable under § 1983. In that case, the Court concluded that “only
rights and remedies created and conferred by ‘clear and unambiguous
terms’ set out by Congress itself are enforceable through § 1983.”
The district court also relied heavily on the Ninth Circuit Court of
Appeals’ conclusion in Keaukaha-Panaewa Community Association v. Hawaiian
Homes Commission, 588 F.2d 1216 (9th Cir.1978) (“Keaukaha I”) that “neither
the text nor the legislative history of the Admission Act indicates
any congressional intent to create a private right of action requires
[and therefore] the Admission Act confers no individual rights enforceable
under § 1983.”
The district court thus concluded that claims for statutory violations
may be brought under § 1983 only if the text or legislative history
of the statute shows clear and unambiguous congressional intent to create
individual rights, and the Ninth Circuit previously concluded that neither
the text nor the history of the Admissions Act indicates such congressional
intent. The court thus held that Plaintiffs may not enforce the Admission
Act under § 1983.
The court also held that a Native Hawaiian law clerk is permitted to
work on the case. “A judicial employee should avoid conflicts of interest
in the performance of official duties. A conflict of interest [exists]
. . . when a[n] . . . employee knows that he . . .might be so . . .
affected . . . that a reasonable person . . . would question the . .
. employee’s ability properly to perform official duties . . . impartial[ly]
. . . .” Codes of Conduct for Judicial Employees. Canon3(f)(1). Neither
the law clerk nor her native Hawaiian family members presently receive
or intend to seek funds or other benefits from OHA and therefore do
not have a financial interest in the outcome of the current case. Mere
eligibility does not give a Hawaiian law clerk and his or her family
a financial interest in a case’s outcome. Such an argument would “stretch
recusal principles out of all recognition and make it impossible for
judges and law clerks to perform their jobs.”
The court then dismissed plaintiffs’ Equal Protection Clause claim.
Plaintiffs had alleged that because OHA trustees were spending trust
funds to support the Akaka Bill, and “[i]f the Akaka Bill is enacted
into law without a blood quantum as set forth in the HHCA, Plaintiffs
and all other 'native Hawaiian' beneficiaries will be deprived of their
right to equal protection under the law[.]” Under the Equal Protection
Clause “no state shall deny to any person within its jurisdiction the
equal protection of the laws . . . that all person similarly situated
should be treated alike. High Tech Gays v. Defense Indus. Sec. Clearance
Office, 895 F.2d 536, (9th Cir. 1990). According to the court, because
plaintiffs made no allegation that they had been treated differently
from similarly situated persons, plaintiffs failed to properly allege
a violation of the Equal Protection Clause.
Finally, the court declined to exercise supplemental jurisdiction over
plaintiffs’ state law claims of breach of fidelity under Hawai‘i state
common law and H.R.S. § 10-16(c). “Supplemental jurisdiction over state
claims exists when a federal claim is sufficiently substantial to confer
federal jurisdiction and there is "a common nucleus of operative
fact between the state and federal claims." Even though there is
a common nucleus of operative fact between the claims, a district court
may nevertheless decline to exercise supplemental jurisdiction over
a state law claim for a number of reasons, including if the district
court has dismissed all claims over which it has original jurisdiction.
Because all of plaintiffs’ federal claims were dismissed by the court,
the court declined to exercise supplemental jurisdiction over the remaining
state law claims.
3. Kelly v. 1250 Oceanside Partners, 111 Hawai‘i 205, 140 P.3d
985 (2006).
In the early 1990s, 1250 Oceanside Partners planned a large-scale residential,
recreational, and agricultural development, which included residential
lots, a golf course, a members’ lodge, a golf clubhouse, a beach lodge,
and a shoreline park, spanning approximately 1.9 miles of coastline
between Kailua-Kona and Kealakekua on the Island of Hawai‘i. The waters
off Kealakekua are classified as “Class AA, which is the most protective
classification for marine waters, and requires that the waters remain
pristine, or in ‘wilderness’ condition.”
In 1994, 1996, and 1997, Oceanside received County zoning and subdivision
approvals. In 1998, the County and Oceanside entered into an agreement
ensuring Oceanside’s right to proceed with the development. In 1999,
the Department of Health (DOH) approved Oceanside’s permit application
to perform erosion control measures and implement construction site
best management practices, while still being allowed to “discharge storm
water associated with construction activity from the [Property] to the
receiving waters of unnamed dry gulches.”
Heavy rains one year later caused the erosion control methods set by
Oceanside to fail, causing significant sediment discharge into the waters
off of Kealakekua. DOH inspectors inspected the site, but did not issue
any reports of violations. Thus, the Kelly Plaintiffs filed a complaint
against DOH and Oceanside alleging that Oceanside violated its permit
and various state laws when its construction project, along with the
storm, caused a significant sediment discharge into Class AA waters.
Plaintiffs also later alleged that the DOH violated the public trust
doctrine by failing to take remedial action when Oceanside’s erosion
control measure failed.
On appeal, the Hawai‘i Supreme Court held that: (1) the County and
DOH both held public trust duties imposed by the Hawai‘i State Constitution;
(2) the County had an affirmative duty to ensure that effective soil
erosion control measures were being met by Oceanside to protect the
waters adjacent to the development; and (3) DOH had an affirmative duty
under H.R.S. §342D and §342E to “hold violators of water quality standards
liable for their actions, including the prosecution . . . and the imposition
of fees where necessary to enforce measures to prevent future harm.”
The Hawai‘i Supreme Court affirmed the trial court’s judgment “to the
extent that it properly applied the public trust doctrine with respect
to the County and DOH,” but reversed the portion of the judgment that
held the County and DOH in breach of their public trust duties, finding
an insufficient showing of evidence to prove any breach occurred. Specifically,
the court held that plaintiffs “failed to establish that the County
breached its public trust duties with respect to water pollution that
occurred in ‘Class AA’ waters abutting the Property,” and that plaintiffs
failed to show that DOH violated its public trust duties “in relation
to construction activities on the Property.”