Ka Wai Ola - Office of Hawaiian Affairs, Volume 27, Number 6, 1 June 2010 — 2010 LEGISLATIVE REVIEW [ARTICLE+ILLUSTRATION]

2010 LEGISLATIVE REVIEW

By Sterling Wong

What follows is the status of major bills that impacted Native Hawaiians during the 2010 legislative session. The governor has until July 6 to take action on the measures that were transmitted to her.

HB 2672 would have authorized the transfer of $200 million in cash from the state to OHA for past revenue generated from Ceded Lands that are lawfully

due to OHA. The bill states that the $200 million is the Legislature's "final determination" on the amount of revenues that were unpaid and owed to OHA for the period of 1978 to 2010.

In July 2015, the state would have begun transferring $30 million in annual payments to OHA until the $200 million is fully paid, along with interest that would begin to accrue in July 2010. The measure also addressed the regular payments OHA should receive for the revenues generated on Ceded Lands eaeh year going forward. HB 2672 would have temporar-

ily fixed these annual payments at $15.1 million, whieh is what the state has been paying OHA every year since the 2005-2006 fiscal year. HB 2672 is related to the

HB 2672 - Office of Hawaiian Affairs; Public LandTrust BILL STATUS: Died after passing second reading in the House

Fisherman's Wharf in Honolulu sifs on ceded lands. Ceded lands, whieh onee belonged to the Kingdom of Hawai'i, continued to be a hot topic at the state Legislature. - Photo: Elaine Fergerstrom

2008 settlement agreement reaehed between OHA and the governor that eontained a mixture of lands and eash totaling $200 million, the amount agreed that OHA is owed for past revenues. The settlement agreement also set the future annual Ceded Land payments to OHA at $15.1 million. Attempts to reeeive legislative approval for the settlement agreement failed during the 2008 and 2009 legislative sessions.

HB 2845 HD1 SD1 CD1 - State Controlled Lands; Repurchased or Foreclosed Homes Bill Status: Transmitted to the governor In 2009, the Legislature passed - and the governor signed - Aet 176, whieh allowed state ageneies to sell any puhlie land, regardless of whether it was Ceded Land or not, as long as the proposed sale was approved by two-thirds of both chambers of the Legislature. Act 176 was part of the settlement agreement that ended OHA's 15-year-old lawsuit that sought to prohibit the state from alienating Ceded Lands from the Puhlie Land Trust until the Native Hawaiian people's claims to those lands were resolved. HB 2561 and HB 2845 both narrow the scope of Act 176 by exempting the sale of certain state lands from the act's legislative approval process. HB 2561 SD1 exempts the sale of "non-ceded lands conveyed to the University of Hawai'i after December 31, 1989." This measure is intended to facilitate the university in selling certain Kapolei parcels to fund the construction of its West O'ahu Campus. HB 2845 HD1 SD1 CD1 would allow the Hawai'i Housing Finance and Development Corporation to sell affordable homes on nonCeded Land that it reacquired either through foreclosure or buy back without requesting the Legislature's approval.

This legislative session was the first year that state agencies had to seek legislative approval to sell puhlie lands, in accordance with Act 176. More than 20 concurrent resolutions were introduced in both legislative chambers proposing the sale of state-owned properties from the size of a few hundred square feet to 26 acres. OHA opposed most of these measures because the resolutions did not provide enough information about

the title histories of the properties to determine whether they are Ceded Lands or not. OHA holds the position that the Ceded Lands corpus cannot be reduced until the Native Hawaiian people's claims to those lands are resolved. Nevertheless, most the resolutions received the two-thirds votes in eaeh house required to authorize the state agencies to sell these parcels.

HCR 328 was another attempt to prevent state andcounty agencies from"selling, gifting, exchanging or otherwise transferring any interest" in Ceded Lands in the Puhlie Trust until "the unrelinquished legal claims" of Native Hawaiians have been resolved. Several bills proposing similar moratoriums that died last session carried over to this session but did not gain any traction. These measures are all part of an effort to have the state Legislature formally adopt the position OH A took in its lawsuit that the state should not sell Ceded Lands.

This session, state lawmakers considered selling certain puhlie lands to close the $ 1 . 1 hillion budget deficit caused by the recent eeonomie crisis. HB 2737 proposed the sale of a number of Ceded Lands, including Mauna Kea, La Mariana and Pier 60, Waikīkl Yacht Club and the Ala Wai Boat Harbor, portions of whieh are ceded. OHA opposed the measure because of its proposal

to sell Ceded Lands and because it would have circumvented the legislative approval process for the sale of puhlie lands established by Act 176.

This bill would prohibit the state from selling the fee interest in puhlie lands on whieh government-owned Hawaiian fishponds are located. Fishponds are important cultural resources to

Native Hawaiians, providing both sustenance and educational opportunities to our communities. In M addition, fishpond resto- M

ration has heeome a maiorpartofthe

Hawaiian eul-

tural revival with a number

movement, of groups across

Hawai'i taking on the kuleana of bringing once-forgotten fishponds back to life. Since a number of fishponds have already been lost to development, this ban would ensure the protection and preservation of the Hawaiian fishponds remaining in the state's inventory.

The ability of beachgoers to walk along the shoreline was becoming increasingly difficult in areas where private landowners planted vegetation, such as naupaka, seaward of their properties. To protect access to what is supposed to be a puhlie area, HB 1808 HD3 SD1 CD1 creates heaeh transit corridors along the shoreline. These corridors would be treated similarly to puhlie sidewalks in that they must be kept "passable and free" fromthe plants of private landowners. The bill requires landowners to remove or trim any encroaching vegetation from heaeh transit corridors and sets penalties for violations. OHA supports the measure because it would ensure the protection of access along the shoreline, where many traditional Native Hawaiian customs, such as fishing and gathering, are practiced. If our beneficiaries cannot access the kai, their ability to conduct their practices suffers.

While shark fins are considered by some to be a delicacy, the harvesting of shark fins is viewed by many as being inhumane and detrimental to the shrinking shark population. SB 2169 SD2 HD2 CD1 expands existing shark finning prohibition laws and creates stiffer penalties for violations. Currently, state law bans the act of cutting off the fins

of sharks while in state waters, but allows for the fins to be removed from

sharks that were permitted to be killed, onee the fish is brought on shore and for the sale of imported shark fins. The bill

closes these loopholes in

the law by establishing a prohibition on the possession, sale, trade or distribution of shark fins. SB 2169 SD2 HD2 CD1 also creates penalties for second and third offenses, including up to a $50,000 fine, imprisonment for up to a year and forfeiture of licenses, vessels, fishing equipment or other property connected to the violation. Under the bill, restaurants would have until July 1, 2011, to sell their existing inventory of shark fins. OHA supported the bill because sharks hold special significance for Native Hawaiians. Beyond being apex predators, whieh help hold the entire oeean ecosystem in halanee, some sharks are also kinolau (the physical form) of Hawaiian gods, ancestral guardians or 'aumakua for various families and part of the genealogy of all Native Hawaiians through the Kumulipo.

Historic preservation was a hot topic during this legislative session with lawmakers considering nearly 20 bills and resolutions addressing such historic preservation issues as the state's burial laws and the State Historic Preservation Division (SHPD). One proposal contained in several bills called for the transfer of the state's responsibility for the protection and preservation of Native Hawaiian burials sites from

HB 2561 SD1 - Lands Controlled by the State Bill Status: Enacted as Act 56

22 House Concurrent Resolutions Status: 19 were adopted by the Legislature

HCR 328 - Moratorium on the alienation of Ceded Lands Bill Status: Died after never receiving a hearing

HB 2737 - Public Lands; Disposition Bill Status: Died after passing second reading in the House

HB 1665 HD1 SD2 CD1-Government-owned Hawaiian Fishponds; Prohibition on Sale Bill Status: Transmitted to the governor

HB 1808 HD3 SD1 CD1 - Coastal Areas; Public Access; Beach Transit Corridors Bill Status: Transmitted to the governor

SB 2169 SD2 HD2 CD1 - Possession, Sale and Distribution of Shark Fins Bill Status: Transmitted to the governor

[?]

See LEGISLATIVE REUIEW on page 19

The state would be banned from selling certain lands upon whieh government-owned Hawaiian fishponds sit. He'eia Fishpond, pictured, is privately owned. - Photo: Courtesy ofPaepae o He'eia

A hill passed by the Legislature would close loopholes in shark-finning laws and provide sharks greater pro-

tection. - Photo : Cour-

SHPD to OHA (SB 2301, SB 2302 and HB 2240). Other bills would have required a management audit of SHPD (HB 2704) and ehanged the way the state historie preservation offieer is seleeted (SB 2487). While there seemed to be agreement that the state has historic preservation issues, no consensus could be reached on the best way to fix these problems, and as a result, all of the historic preservation measures appear to have died this session.

HB 1818 HD2 SD2 CD1 would allow the Department of Puhlie

Safety to offer programs in state correctional facilities that prepare prisoners for reintegration into the community by using, among other things, behavioral therapy and cultural interventions. These programs are intended to help prisoners, many of whom are Native Hawaiian, better manage their addiction and domestic violence problems. The bill also creates an annual reporting process for these programs. OHA supports this measure because culturallybased rehabilitation programs have shown promise in improving the ability of Native Hawaiian prisoners to transition into the free world.

This bill was introduced to help kupuna who were evicted from their elderly housing projects for violating rules that prohibited

them from providing shelter to their grandchildren during times of family crisis. SB 2473 SD1 HD2 CD1 would allow grandchildren under the age of 18 to live with their kūpuna in elderly housing projects for up to three months during a verified family crisis, such as a parent's imprisonment or drug- or alcohol-related problems, and the abuse or abandonment of the child. Kūpuna already evicted for allowing their mo'opuna to live with them during a family crisis would also receive first priority to return to elderly housing. OHA advocated for this measure because it supports the traditional concept of the close-knit Hawaiian family unit and the critical relationship between kūpuna and mo'opuna.

SB 2589 originally contained

language similar to a bill proposed by OH A requiring the Department of Education to consider making the facilities of a puhlie school it is closing available for use by charter schools. This represented an effort to help resolve a major need of charter schools, many of whose campuses laek basic school facilities, such as a cafeteria, library or

gym. The bill eventually evolved to also address a number of other charter school issues, including funding, the criteria for the reauthorization of charter schools and increasing the number of new startup charter schools. Sterling Wong is a Public Policy Advocate at OHA.

LEGISLĀTIVE REVIEW Continued from page 13

HB 1818 HD2 SD2 CD1 - Cor rections; Rehabilitation; Native Hawaiians Bill Status: Transmitted to the 0nvprnnr

SB 2473 SD1 HD2 CD1- Elderly Housing; Kupuna; Grandchildren Bill Status: Transmitted to the governor

SB 2589 SD2 HD1 CD1 - Charter Schools; Omnibus Bill Status: Transmitted to the governor

Funding for charter schools and the criteria for their reauthorization is the subject of a hill pending the governor's approval. Pictured is Ka Waihona o ka Na'auao charter school. - Photo: Courtesy ofKa Waihona o ka Na'auao