Ka Wai Ola - Office of Hawaiian Affairs, Volume 1, Number 2, 1 March 1984 — OHA Asks Millions in Revenues [ARTICLE+ILLUSTRATION]

OHA Asks Millions in Revenues

Trustees of the Office of Hawaiian Affairs on Mar. 8 filed suit in State Circuit Court to eompel the payment of revenue due the Hawaiian people from trust lands under control of the State Department of Transportation (DOT) and the Department of Land and Natural Resources (DLNR). The puhlie land trust was created from ceded lands whieh were owned by the crown and the Hawaiian government prior to the illegal overthrow of the monarchy in 1893. The law requires the state to pay OHA, for the betterment of native Hawaiians, 20 percent of all funds from the "lease, sale or other disposition" of the lands included in the public land trust. However, despite repeated requests, the state has refused to do so. OHA's complaint seeks 20 percent of the trust revenues retroactive to 1978, when OHA was established by the constitutional amendment. Millions of dollars are involved. It is impossible to say just how many, because the state has yet to eompile an accurate inventory of ceded lands. OH A's suit asks for its 20 percent share of revenue from the following categories of ceded lands. 1. DOT general leases of ceded land for non-government uses. (For example, operation of bars and restaurants, retail stores, and various repair, maintenance and service operations.) 2. Ceded lands at Sand Island under the jurisdiction of the DOT and DLNR. (These include the Matson container yard and a 63 acre parcel leased out for light industrial purposes.) 3. ineome and revenues from harbors throughout the state. 4. Honolulu International Airport. (For example, the Duty Free Shops.) 5. The proposed Aloha Tower complex. After careful consideration, the OHA Board retained attorneys David Schutter and Boyce Brown, feeling that this combination of experienced and prominent attorneys will result in the most forceful and convincing presentation of OHA's claims. The Board, through its ViceChairman Rodney Burgess, issued the following statement at the time the suit was filed in court. "The suit has been filed with great reluctance and only after two and onehalf years of futile attempts to negotiate a fair and reasonable settlement with the state administration. Because the Department of Transportation refuses even to discuss our entitlelments, we are left no option other than to seek justice in the courts. "The Board of Trustees literally has no discretion in this matter. To ignore the DOT's adamant refusal to comply with the law, would be a breach of fiduciary duty whieh could subject us to a suit by any of our beneficiaries. "I think it is important to realize that the public land trust was established not just for Hawaiians. Our State Constitution lists two trust beneficiaries . . . native Hawaiians and the general public. "By state law, native Hawaiians are

entitled to 20 percent of public land trust revenues. That means that 80 percent of the money being withheld by DOT is diverted from the public purposes specified by Congress as a condition to statehood in 1959. "In practice, the Legislature has allocated the public portion of trust land ineome (generated from lands administered by the Department of Land and Natural Resources) to educate all of Hawaii's children. It goes to the Department of Education. So the DOT is diverting, to its own operations, millions of dollars whieh could be used to lower the price of school lunches and improve the overall quality of our public schools. "In doing so, DOT violates a basic precept that the administrator of trust assets must be responsible and accountable to the trust beneficiaries. Appointed officials of DOT spend this public land trust ineome pretty mueh as they please. They need not seek approval from the Legislature, from OHA, or any other elected body or individual. We believe these funds have been diverted illegally and must be restored to their intended beneficiaries . . . native Hawaiians and the general public. "Late last year it became apparent that the state had no intention of complying with the public land trust conditions imposed by the Admission Act, the Hawaii State Constitution and by state law. "In September, 1983, the Attorney General, in what has been described as a 'made as instructed' opinion, claimed that harbors and airports should not be included in the public land trust even

though many of these facilities are built on ceded lands. "This opinion comes on the heels of the Legislative Auditor's preliminary report whieh reaches just the opposite conclusion. In fact the Auditor recommends that all public land should be treated as part of the public land trust. "One final point. I want to assure the people of Hawaii that, despite unsubstantiated implications to the contrary, eomplianee with provisions of the public land trust will not adversely affect the state's economy or its bond rating.

Exhaustive research shows that the state ean meet its obligations to the public land trust without creating an unmanageable Einaneial burden. "Although the Trustees have been forced to take legal action in order to meet our fiduciary responsibilities, the door to good faith negotiations remains open through our attorneys. "We are confident that the Iife of the land WILL be preserved in righteousness . . . . Ua Mau Ke Ea O Ka 'Aina I Ka Pono.'

OHA Trustee Rodney Burgess, right, reads contents of suit at press conference at First Circuit Court. Looking on at left are Attorneys David C. Schutter and Boyce Brown who will handle the suit for OHA.