Supreme Court asks
state, OHA to settle

Justices urge both sides to try
to wrap up their dispute over
ceded land revenues

By Pat Omandam
Star-Bulletin

The Hawaii Supreme Court could take up to a year to rule on whether to overturn a lower court decision that means millions of dollars more in payments to the Office of Hawaiian Affairs.

But before they do, the justices at a hearing yesterday suggested the state and OHA seek an out-of-court settlement, an idea that has both sides talking.

"The key to a successful arbitration is having an arbiter that both sides feel is fair and impartial, and, of course, that would have to be an issue, too," said James E. Duffy Jr., the attorney representing OHA.

"What we'd want to make sure (of) from OHA's point of view is that it is in a binding arbitration that has the power to fund it. It would be a useless process if we were just doing this for practice, just to see what would happen," said Duffy, who added that a settlement could be worked out through a payment of cash and conveyance of public land.

"We've always been willing to sit down and talk to OHA," said state Attorney General Margery Bronster.

The five justices must decide whether to affirm or overturn former Circuit Judge Daniel Heely's 1996 judgment that said OHA must be paid 20 percent of ceded land revenues generated from four new areas, payments that could range from $200 million to $1.2 billion.

In its appeal, the state argued there was no basis for Heely's ruling because the issue was settled in Act 35 of 1993, when the state agreed to pay OHA $130 million for ceded land claims going back to 1980.

OHA, however, said many unresolved issues remain in that case, and has sought legal action to address them.

Yesterday, Chief Justice Ronald T.Y. Moon asked attorneys representing the state -- including New York attorney Andrew Frey, brought in by Bronster for the appeal -- whether the use of an independent arbiter could resolve the concerns of both parties.

Moon said the 1990 law that sets OHA's ceded land revenue at 20 percent mandates that the state and trustees negotiate a settlement outside the courtroom.

"Have you exhausted what the Legislature intended?" Moon asked.

Frey responded that the state negotiated for two years with OHA to settle the issue, and reached the 1993 agreement on some, but not all, the issues. He said a high court judgment against the state would mean three or four more years of litigation. That's because this appeal is just one part of the long-standing case between OHA and the state over ceded land revenues.

Bronster, after the hearing, said a law passed last year sets up a process to resolve the dispute, and agrees that the issue doesn't belong in court.

She said Act 329 attempts to resolve all ceded land claims through a committee, while freezing OHA's ceded land payments at $15.1 million a year until 1999, when the panel must report to the Legislature.

"It's always been our position that the court is not the appropriate place for resolving this," Bronster said.

"The Legislature set up a process, and the process was one that was supposed to be fair, both in the native Hawaiians and to all the people of the state," she said.

Kimura backers to petition
governor to pick him for OHA

Saying he's the missing piece of the puzzle, supporters of Larry Kimura today planned to deliver a petition to Gov. Ben Cayetano asking him to choose Kimura as the next Office of Hawaiian Affairs trustee.

"We feel he will make OHA complete, and more Hawaiian," said Kalaokahaku Akima of Na Kako'o No Larry Kimura.

Akima said the group gathered signatures from Waimea, Hilo and from members of the Hawaiian immersion program on the Big Island. As a Hawaiian professor at the University of Hawaii-Hilo, a cultural authority and composer, Kimura has dedicated his life to all things Hawaiian, they said.

"A visionary in the Hawaiian movement since the 1960s, he was calling for Hawaiian sovereignty long before its current prominence," Akima said.

State election rules require the governor to name an interim trustee by Friday.

The governor's spokewoman, Kathleen Racuya-Markrich, said he mostly likely will name one tomorrow.

The remaining eight OHA trustees have been deadlocked for months on a replacement for the late Billie Beamer, forcing the governor to make the decision.

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OHA wins rent-free use of courthouse in Haleiwa

The Office of Hawaiian Affairs and the state have entered into a 35-year lease for the Waialua Courthouse in Haleiwa.

Terms are that OHA will have use of the one-acre site rent-free for the length of the lease.

OHA plans to create a facility to benefit the surrounding neighborhoods while serving the best interests of the native Hawaiian community.

Waialua Courthouse was built in 1913 and served as a civic center for the district.

It originally housed a public health center, post office and the court room.

A cell block is still located in the basement with four cells.