Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 3, 1 March 1991 — The Governor's "Action Plan" [ARTICLE]

The Governor's "Action Plan"

by Melody K. MacKenzie, Senior staff attorney, NHLC Under Act 395, the "right -to-sue" law, the state administration was given "an opportunity to submit a proposal to resolve controversies whieh arose between Aug. 21, 1959 (statehood, when it took control of Hawaiian Homes and "ceded" lands), and July 1, 1988, the effective date of Act 395.

This avenue was selected by the legislature to avoid costly litigation that might occur if the right to sue was exercised by claimants seeking damages against the state for breaches of the Hawaiian Home Lands and ceded lands trusts occuring before the effective date. Specifically, claimants could sue the state for breaches of trust that occurred prior to July 1, 1988 if: 1) The governor failed to present a proposal to the legislature to resolve controversies related to the trusts arid no other means of resolving the controversies was otherwise provided by law by July 1, 1991. Claimants could then gain access to the courts for those breaches, even if they occurred before July 1, 1988; or

2) The governor presented a proposal; one house of the legislature passed the a resolution calling for the rejection of the governor's proposal by two-thirds vote d the introducing body; and no other means of resolving such controversies was otherwise provided by law before July 1, 1991.

Does it resolve controversies? NHLC has serious doubts that the "action plan" formulated by the Office of State Planning (OSP) and introduced to the 1991 state Legislature is truly a proposal to resolve controversies as contemplated by Act 395. Act 395's provision on the right to sue for breaches prior to July 1, 1988 arose because of the state's eoneem that damages arising from beneficiary suits against the state for trust breaches from 1959 to 1988 would bankrupt the state treasury.

It was contemplated the governor's office would review all claims — individual claims as well as broader trust controversies — and eome up with an actual proposal to finally resolve eaeh elaim. It was also contemplated that there would be a final dollar amount attached to eaeh elaim. The action plan does neither of these things. The action plan does a good job of identifying areas of controversy that need to be resolved. However, many of these controversies had previously been identified in the Federal-State Task Force on the Hawaiian Homes Commission Act, in hearings before the Senate Select Committee on lndian Affairs, and in prior testimony to the legislature.

Little progress on homestead trust issues While it is clear the state has made substantial progress with regard to the public (ceded) lands

trust and OHA's entitlement, little has been done on the controversies involving the Hawaiian Home Lands trust. For example, the action plan proposes the establishment of a board of individual claims resolution to hear individual claims and submit proposed resolutions to the legislature or the Hawaiian Homes Commission.

However, during the debate on Act 395 in 1988, the House of Representatives presented to the Senate a proposal to establish a Hawaiian claims conciliation panel whieh would arbitrate disputes and submit a report to the legislature for review and analysis before payment would be made. OSP's proposal appears to mimie the old House proposal, proposing essentially the same thing. Moreover, one purpose of Act 395 was to obtain concrete cost information about the scope of claims involving breaches of trust before allowing unrestricted access to the courts. lnstead, the "action plan" is replete with proposals to establish dispute resolution meehanisms, with little specificity as to actual disputes being addressed.

It appears we're in essentially the same position that we were several years ago — with no real information as to the number and extent of claims, or the potential liability of the state. It is clear that OSP did not have time to identify eaeh and every elaim for compensation, including all potential individual claims. The action plan approach is its way out of the problem. However, in instances where there was documentation, OSP could have made concrete and specific recommendations about returning lands to DHHL.

While complex issues such as the appraisal of back rents might have been deferred, it was disappointing that OSP suggested deferring all issues to be resolved by a task force composed of the Department of Hawaiian Home Lands (DHHL), OSP, Department of Land and Natural Resources (DLNR), and the Attorney General. Most of these entities are responsible for the breaches having occurred in the first plaee. Real action due now There are specific actions that OSP and the Governor could take now with regard to the Hawaiian Home Lands Trust.

The governor could eaneel all illegal proclamations and executive orders still in effect. The governor/DHHL could establish a written lease for Kalaupapa based on fair market rental value. The governor/OSP could target specific funding for the development of management plans and appraisals for the major non-beneficiary general leases to Kekaha Sugar Company, Parker Ranch, and other major lessees. These are only a few of the actions whieh could be taken without specific legislative authorization. Real action is way overdue.