State, OHA say lawsuit
will not hurt workBoth sides vow mutual support
in spite of a ceded lands dispute
The relationship between the state and the Office of Hawaiian Affairs will not suffer because of a lawsuit OHA filed this week against the state demanding back revenue from ceded lands.
State Attorney General Mark Bennett said the Lingle administration will continue to support OHA in other court cases and in Congress.
"This won't affect in any way working in cooperation with OHA to vigorously defend the Arakaki lawsuit and won't affect in any way the vigor with which we're going to pursue trying to get the Akaka bill passed into the law," he said yesterday.
"We concur," OHA Chairwoman Haunani Apoliona said yesterday. "We are appreciative that we can continue to work jointly and collectively, even on the ceded lands issue."
OHA board attorney Robert Klein, along with attorneys William Meheula and David Fasi, filed a 15-page complaint on Monday alleging the state government breached its fiduciary duties as manager of the state's 1.2 million-acre public land trust.
They claim the state failed to oppose a Federal Aviation Administration mandate that payments for ceded land, public lands ceded to the Republic of Hawaii after the 1893 overthrow of the monarchy, to OHA from airport revenues were improper. OHA claims those payments are proper and should be considered rent under the airports' operating costs.
OHA officials described the lawsuit as a legal maneuver to preserve its claim on ceded land revenue from state airports. Apoliona said the board of trustees was reluctant to file the lawsuit but did so after the state would not agree to stop a legal deadline that would have ended OHA's claims to those sources of money.
The ceded lands dispute goes back to 1993, when the state and OHA reached a partial settlement over OHA's share of revenue from public trust lands as required in the state Admission Act of 1959.
That agreement, however, did not address revenue from state housing sales and rentals, Hilo Hospital patient services, off-site Duty Free Shoppers and interest income. In recent years these alleged past-due revenues have been estimated at between $500 million and $1.2 billion.
OHA sued the state in 1994 for these back payments. In July 1996 former Circuit Court Judge Daniel Heely ruled in OHA's favor. The state appealed the decision to the Hawaii Supreme Court, which in September 2001 struck down a 1990 state law, known as Act 304, that defined these revenues, sending the entire debate back to the Legislature.
State Sen. Colleen Hanabusa (D, Waianae) said yesterday the lawsuit is likely a place-holder for OHA while it attempts again in September to negotiate a ceded lands revenue settlement with the state. Apoliona stressed that talks during the Cayetano administration were unsuccessful and, despite contrary reports, did not produce any settlement offers.
Earlier this month, the board named Apoliona and trustees Boyd Mossman, Dante Carpenter and Oswald Stender to its negotiating team.
Although the Legislature has not acted over the past two sessions to fix the flaws in Act 304, Hanabusa said legislative action may not be needed if talks between the new Lingle administration and OHA are successful.
