Here is a gallery of photos by Blaine Fergerstrom from the event.
TESTIMONY IN SUPPORT
JOBIE M. K. MASAGATANI, CHAIRMAN
HAWAIIAN HOMES COMMISSION
BEFORE THE SENATE COMMITTEE ON HAWAIIAN AFFAIRS ON
for consideration and confirmation to the Hawaiian Homes Commission, Gubernatorial Nominee, DAVID KAAPU,
for a term to expire 6-30-2017.
April 15, 2014
Aloha Chair Shimabukuro, Vice-Chair Hee, and Members of the Committee:
Thank you for the opportunity to testify in support of the nomination of Mr. David Kaapu to serve on the Hawaiian Homes Commission. He brings expertise and experience in law, community leadership, anthropology and archaeology, finance, agriculture, and renewable energy development to the Hawaiian Homes Commission. We are confident that Mr. Kaapu will contribute to thoughtful consideration and sound decision-making by the commission.
Mr. Kaapu is well established in West Hawaii and is a pillar in his community. He has direct connections with our beneficiaries and insights into our communities that are invaluable to the Hawaiian Homes Commission. Mr. Kaapu’s legal experience and service on several community boards including the Hawaii Community Federal Credit Union, Hawaii Health Systems Corporation West Hawaii Regional Board, the Agricultural Leadership Foundation of Hawaii, Friends of NELHA, and the Hawaii Community Foundations West Hawaii Advisory Board, will be valuable to the commission.
Mr. Kaapu is a well-respected member of the community and is clearly qualified to serve on the Hawaiian Homes Commission. We respectfully request your favorable consideration, and urge this committee to advise and consent to this nomination.]]>
On Monday, April 21, 2014 at 9:30 a.m.
and Tuesday, April 22, 2014 at 12:00 p.m.
at Kūlana ‘Ōiwi Multi-Purpose Conference Room
600 Maunaloa Highway, Kalama‘ula, Moloka‘i
on Monday, April 21, 2014 from 5:00 – 7:00 p.m.
at Kalaniana‘ole Hale
Across the Moloka‘i District Office, Kalama‘ula, Moloka‘i
Hawaiian Homes Commission Meeting agendas are available approximately one
week in advance on the HHC Meetings page on our website, dhhl.hawaii.gov
To request accommodations for a sign language interpreter or accessible parking (must be requested five days prior to the meeting date), or for more information, please contact the DHHL Information and Community Relations Office on O‘ahu at 808-620-9590.
For more information, please see the Hawaiian Homes Commission Meetings page.]]>
Over the past year the department has been engaged in an effort to bring a number of former revocable permit (RP) holders into compliance with the terms and conditions of their RPs. So far, the department has been successful in getting 82% of previously noncompliant former RP holders back into compliance, with an additional 5% of noncompliant former RP holders choosing to vacate their properties.
The department has been working with the remaining noncompliant former RP holders to resolve a number of outstanding issues. These issues include indebtedness to the department, unauthorized use of parcels, and other violations of the terms and conditions of former RPs.
Our commission, which has been briefed regularly on the status of these remaining few accounts, has been patient in allowing the time necessary for these businesses to achieve compliance.
However, recent events have shown that in spite of our efforts, some of these remaining businesses have refused the department’s offer of help and ignored its demands for compliance. As a result, the department may be forced to ask the commission for authorization to officially terminate its relationships with these businesses and pursue legal remedies available.
While such course of action would be the department’s last resort, it will be considered in order to protect the beneficiaries the department is responsible to serve.
At the same time, the department is considering ways to strengthen its commercial leasing and permitting programs. For example, the department is considering the engagement of a consultant with an expertise in commercial land management to assist in the evaluation of the department’s portfolio and management practices and to recommend changes to incorporate best practices. Ultimately, the decision on any changes to be made to the department’s leasing and permitting practices, will be made by the Commission.
The department understands and appreciates the need for changes, it also recognizes that its programs have successfully fostered the growth of many small businesses. Time is being taken to consider all aspects of its programs, to ensure efficiency and effectiveness, while also considering ways to maintain the positive outcomes of the programs to date. To what extent changes will be made is a decision and balance that the department and Commission takes very seriously.]]>
￼￼￼￼I. DHHL Land Use Process
II. What is the current status of Lanikeha Community Center?
III. What does the Molokai Homestead Farmers Alliance propose?
IV. What are the future plans for Lanikeha Community Center?
V. Any questions or comments?
VI. What’s next?]]>
The Department of Hawaiian Home Lands developed a draft Water Policy Plan and is seeking your mana‘o and feedback. The draft document is available for review and comment at dhhl.hawaii.gov/po/water.
We are conducting a series of statewide Beneficiary Consultation Meetings on the draft plan on the following dates and locations. All meetings are from 6:30 p.m. to 8:30 p.m.
Please visit dhhl.hawaii.gov/po/water for more information or call the DHHL Planning Office at (808) 620-9517.
Oʻahu Beneficiary Consultation begins tomorrow at Blanche Pope Elementary School in Waimānalo.
Blanche Pope Elementary School
41-133 Huli St, Waimanalo, HI
(808) 259-0450 | Click for Map
KEAUKAHA, HAWAIʻI – Today students at Keaukaha Elementary School began a new tradition in their homestead community by hosting the First Annual Prince Jonah Kūhiō Kalanianaʻole Celebration at the Kawānanakoa Gym.
Students honored Prince Kūhiōʻs life and accomplishments in song and with a presentation of hoʻokupu, while sixth grade students shared their essays on how Prince Kūhiō has touched their lives.
Special guests Mayor Billy Kenoi and Keaukaha homestead leader Uncle Pat Kahawaiolaʻa shared their words of encouragement for the haumāna of Keaukaha to be haʻaheo about where they come from and to mahalo Prince Kūhiō fighting for the opportunity for them to be here.
Keaukaha Elementary School Principal Stacey Bello themed the event E Ola Nā Aliʻi – Long Live The Chiefs as a reminder to the keiki of her school that the life and legacy of Prince Kūhiō and all our aliʻi live on in us all, especially our keiki.
The Hawaiian Homes Commission and the Office of Hawaiian Affairs Board of Trustees held a joint meeting today in Hale Pono’i, in Kapolei. These are the presentations from today’s meeting.
STATE OF HAWAII
DEPARTMENT OF THE ATTORNEY GENERAL
425 QUEEN STREET
HONOLULU, HAWAII 96813
The Honorable Jobie M.K. Masagatani
Chairman, Hawaiian Homes Commission
Department of Hawaiian Home Lands
State of Hawaii
91-5420 Kapolei Parkway
Kapolei, Hawaii 96707
Dear Chairman Masagatani:
Re: Management and Disposition of Geothermal Resources on DHHL Lands
This letter responds to your request for an opinion regarding the management and disposition of geothermal resources on lands controlled by the Department of Hawaiian Home Lands (DHHL).
Your inquiry arises from proposed legislation that would allocate to DHHL a portion of any royalties received by the State of Hawaii from geothermal resource development on “available lands.”l In considering the proposed legislation, questions arose as to whether DHHL is entitled to all royalties from geothermal developments on “available lands,” and whether DHHL has the authority to manage and dispose of
geothermal resources on “available lands.” We address these issues by answering the following questions.
I. QUESTIONS PRESENTED
A. Is DHHL entitled to 100 percent of royalties from geothermal projects on all lands controlled by DHHL?
B. Is DHHL, as opposed to the Board of Land and Natural Resources (BLNR), authorized to manage and dispose of geothermal resources on DHHL lands?
II. SHORT ANSWERS
A. Yes. Section 4 of the Admission Act2 expressly directs that “all proceeds and income” from Hawaiian home lands must be used in carrying out the provisions of the HHCA. Article XII, sections 1 and 3, of the Hawaii Constitution similarly require all proceeds and income from Hawaiian home lands to be used in accordance with the terms of the HHCA. Royalties derived from geothermal resources development constitute “proceeds and income.”
B. Yes. Section 204 of the HHCA provides that all Hawaiian home lands are to be controlled by DHHL and requires such lands to be used and disposed of only “in accordance with the provisions of this Act.” And although BLNR has been designated by statute to regulate the use of natural resources on lands owned by the State, section 206 of the HHCA provides that the “powers and duties of the . . . board of land and natural resources shall not extend to lands having the status of Hawaiian home lands” (emphasis added). DHHL can and should consider, however, entering into an agreement with BLNR to have BLNR manage the technical aspects of geothermal resource development on “available lands” since BLNR has the necessary expertise in that area.
A. State Constitutional and Statutory Provisions Regarding Geothermal Resources on State Lands
Before addressing the federal and state laws specific to DHHL, it is necessary to discuss the constitutional and statutory provisions relating to natural resources on state lands generally. Article XI, sections 1 and 2, of the Hawaii Constitution direct the State to conserve and protect Hawaii’s natural resources, including “minerals and energy sources.” Section 1 provides:
For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.
All public natural resources are held in trust by the State for the benefit of the people.
Section 182-1, Hawaii Revised Statutes (HRS) , defines “minerals” to include “all geothermal resources.” Article XI, section 2, of the Hawaii Constitution provides:
The legislature shall vest in one or more executive boards or commissions powers for the management of natural resources owned or controlled by the State, and such powers of disposition thereof as may be provided by law . . . .
BLNR’s general control over the State’s geothermal resources is statutory in nature. Section 171-3, HRS, confers upon BLNR the power to manage, administer, and exercise control over the State’s interest in minerals. Section 182-2(a), HRS, authorizes BLNR to dispose of the State’s reservation of mineral resources under state lands:
All minerals in, on, or under state lands or lands which hereafter become state lands are reserved to the State; provided that the board of land and natural resources may release, cancel, or waive the reservation whenever it deems the land use, other than mining, is of greater benefit to the State as provided in section 182-4.
Section 182-1, HRS, defines “state lands” as “all public and other lands owned or in possession, use and control of the then Territory of Hawaii or the State of Hawaii, or any of its agencies and this chapter shall apply thereto.”
Section 182-4(a), HRS, further authorizes BLNR to issue mining leases by public auction for minerals discovered on state lands. Similarly, section 182-5, HRS, provides that BLNR may issue mining leases by public auction for minerals on “reserved lands,” which is defined by section 182-1, HRS, as “those lands owned or leased by any person in which the State or its predecessors in interest has reserved to itself expressly or by implication the minerals or right to mine minerals, or both.”
Sections 182-7(c) and 182-18, HRS, deal with geothermal resources specifically. Section 182-7(c), HRS, requires that thirty percent of royalties from geothermal resource development received by the State be paid to the county in which the geothermal resources are located:
Any other law to the contrary notwithstanding, thirty per cent of all royalties received by the State from geothermal resources shall be paid to the county in which mining operations covered under a state geothermal resource mining lease are situated.
Section 182-18, HRS, requires BLNR to promulgate administrative rules fixing payment of royalties to the State from geothermal resource development at a rate that”encourages initial and continued production of such resources.
For the reasons set forth below, however, these state constitutional and statutory provisions are qualified, and are not applicable to geothermal resources on “available lands.”
B. Federal and State Laws Relating to DHHL Lands
As a compact with the United States upon admission of Hawaii as a state, Hawaii accepted the responsibility to manage and dispose of the Hawaiian home lands under the terms of the HHCA, and adopted the HHCA as a provision of the Hawaii Constitution. See section 4 of the Admission Act. The HHCA was made a part of the state constitution in article XII, sections 1 and 3, of the Hawaii Constitution.
The Admission Act further provides that “all proceeds and income from the ‘available lands’, as defined by (the HHCA] , shall be used only in carrying out the provisions of [the HHCA].” Id. (bracketed material added). Section 5 of the Admission Act transferred title of all “available lands” to the State.
The Hawaii Constitution mirrors the Admission Act’s mandate that all proceeds from the “available lands” be used in furtherance of the HHCA in article XII, section 1:
The proceeds and income from Hawaiian home lands shall be used only in accordance with the terms and spirit of such Act.
Article XII, section 3, of the Hawaii Constitution mirrors the provisions of section 4 of the Admission Act and reiterates that all “proceeds and income” from “available lands” must be used only in carrying out the terms and provisions of the HHCA.
Section 204(a) of the HHCA provides that all “available lands” shall “immediately assume the status of Hawaiian home lands and be under the control of the department to be usedand disposed of in accordance with the provisions of this Act” (emphasis added).
Although the Admission Act conveyed title to Hawaiian home lands to the State, section 206 of the HHCA specifically provides that the “powers and duties of the governor and the board of land and natural resources shall not extend to lands having the status of Hawaiian home lands, except as specifically provided in this title” (emphasis added).3
C. DHHL Is Entitled to 100 Percent of Royalties from Geothermal Resource Development on its Lands
There is an apparent conflict between section 182-7(c), HRS, which allocates a percentage of geothermal royalties to the counties, and the remainder presumably to the State (even if the development is on DHHL’s lands), and section 4 of the Admission Act and article XII, sections 1 and 3, of the Hawaii Constitution, which require that all proceeds and income from Hawaiian home lands be used in accordance with the terms of the HHCA.
Under article VI, clause 2, of the United States Constitution, also known as the Supremacy Clause, a state law is preempted to the extent that it actually conflicts with any federal law. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983). Section 182-7(c), HRS, directly conflicts with section 4 of the Admission Act because it allocates royalties from geothermal developments on Hawaiian home lands to entities other than DHHL.
Similarly, when a state constitutional provision conflicts with a state statute, the constitutional provision will control. See 16 C.J.S. Constitutional Law § 107 (2014). Here, to the extent that section 182-7(c), HRS, allocates royalties to entities other than DHHL for geothermal developments on Hawaiian home lands, it conflicts with article XII, sections 1 and 3, of the Hawaii Constitution.
Accordingly, allocating royalties from geothermal developments on DHHL lands to BLNR or the counties flatly violates section 4 of the Admission Act and article XII, sections 1 and 3, of the Hawaii Constitution. It is clear from the Admission Act and the Hawaii Constitution that the State has an obligation to manage such resources on Hawaiian home lands for the benefit of native Hawaiians pursuant to the HHCA. Allocation of royalties from geothermal developments on DHHL lands to entities other than DHHL would be violations of both the Admission Act and the Hawaii Constitution because those proceeds would not be available to DHHL to carry out the terms and conditions of the HHCA.
D. Only DHHL Is Authorized to Manage and Dispose of Geothermal Resources on its Lands
Under the terms of the HHCA, DHHL has sole authority to manage and dispose of geothermal resources on or under “available lands.” Neither the equal footing doctrine nor the public trust doctrine overrides the provisions of the HHCA authorizing DHHL to manage geothermal resources on Hawaiian home lands.
1. Section 206 of the HHCA Controls Over Chapter 182, HRS
Section 206 of the HHCA (which under the Admission Act is a provision of the Hawaii Constitution) specifically provides that the powers of BLNR, as they relate to the lands of the State, shall not apply to DHHL. As a constitutional provision, section 206 of the HHCA would control over chapter 182, HRS, if the two are in conflict. See Kepoo v. Watson, 87 Haw. 91, 99, 952 P.2d 379, 387 (1998) (holding that since the HHCA is a provision of the Hawaii Constitution, it would control over a state environmental regulation statute to the extent the two conflicted.)
The Hawaii Supreme Court has opined on the scope of section 206 of the HHCA on two occasions. In State v. Jim, 80 Haw. 168, 907 P.2d 754 (1995), the court held that state and county officials have authority to enforce criminal laws on DHHL lands, despite the provisions of section 206 of the HHCA. In rendering its decision, the court distinguished laws that directly affect the management and disposition of Hawaiian home lands from laws that relate to the exercise of the State’s general police powers:
Although one of the governor’s duties is to execute the laws . . . a plain reading of HHCA § 206 demonstrates that executive power only “in respect to lands of the state, shall not extend to Hawaiian home lands(.]” In other words, the governor may not treat these lands, which have been set aside to fulfill the purposes of the HHCA, as any other lands held outright by the State: Hawaiian home lands are impressed with a trust whose cotrustees are the State of Hawai’i and the United States. As the trust corpus, these lands cannot serve purposes at odds with the trust purposes. Nevertheless, the limitation on executive power set out in HHCA § 206 was never intended to limit the police power of the State in the fashion envisioned by the Appellants, and they point to no authority to support their position.
Id. at 170-71, 907 P.2d at 756-57. Using very similar reasoning, the Hawaii Supreme Court has also held that laws requiring environmental impact statements for certain projects on state lands (including Hawaiian home lands) do not run afoul of section 206 of the HHCA because they are an exercise of the State’s police powers and do not significantly affect the land:
HRS ch. 343 involves EIS requirements and is therefore a type of environmental regulation. Clearly, environmental regulations are enacted for the purpose of protecting the public safety, health, and welfare. Consequently, the present case is similar to Jim in that HRS ch. 343, like the Hawai’i Penal Code, is a police power regulation.
. . . .
Another aspect of this case that is similar to Jim is the fact that HRS ch. 343 does not significantly affect the land. HRS ch. 343 essentially requires decision makers to consider the potential impact of their projects on the environment and to prepare informational documents disclosing these effects …. The procedure established by HRS ch. 343 focuses on preparation of certain informational documents. The agency or applicant proposing action must prepare an EA that describes the possible environmental effects of the project . . . . Thus, it is clear that HRS ch. 343 primarily establishes procedural and informational requirements.
Kepoo at 99-100, 952 P.2d at 387-88. To contrast laws exercising general police powers from those that significantly affect the land, the court cited Attorney General Opinion Nos. 75-3 (Governor may not use executive orders to set aside Hawaiian horne lands) and 72-21 (county zoning ordinances do not apply to Hawaiian horne lands used for homestead purposes) as examples of actions that would run afoul of section 206 of the HHCA because they significantly affect DHHL’s ability to manage and dispose of Hawaiian home lands.
Chapter 182, HRS, which designates BLNR as the entity to control leasing of state lands for natural resource exploitation, appears to be the type of law that would run afoul of section 206 of the HHCA because it significantly affects DHHL’s use of its own lands. In other words, if BLNR were given exclusive authority to determine whether geothermal resources on “available lands” should be leased for development, DHHL would be deprived of the ability to manage its lands.
Although there may be an argument that chapter 182′s requirements can be considered an exercise of the State’s general police powers, chapter 182 goes further than the environmental regulations at issue in the Kepoo case. In Kepoo, chapter 343, HRS, only required DHHL to follow certain procedural and informational steps before allowing developments to proceed on Hawaiian horne lands. These provisions were held by the Hawaii Supreme Court to not “significantly affect the land” and, therefore, do not violate section 206 of the HHCA.
In contrast, chapter 182, HRS, gives BLNR sole discretion to release reservations of geothermal rights and issue geothermal development leases on state lands. By chapter 182′s own terms, DHHL does not have any role in deciding whether a geothermal development lease can be issued on Hawaiian horne lands. Such a law “significantly affects the land” because it prevents DHHL from managing and disposing of geothermal resources on its own lands I and instead places such powers in the hands of another agency. This type of regulation is prohibited by section 206 of the HHCA1 as construed by the Hawaii Supreme Court in the Jim and Kepoo cases.
Accordingly, section 206 of the HHCA controls over the provisions of chapter 182, HRS, as applied to Hawaiian horne lands, and DHHL has the authority to manage and dispose of geothermal resources on its lands. 4
2. Neither the Equal Footing Doctrine nor the Public Trust Doctrine Override Section 206 of the HHCA
We have analyzed two possible arguments that could be made that BLNR, rather than DHHL, has the authority to manage and dispose of geothermal resources on DHHL lands under the equal footing and public trust doctrines. We conclude, however, that neither doctrine overrides DHHL’s authority to manage and dispose of geothermal resources on its lands.
a. The Equal Footing Doctrine
In general, the imposition of conditions by Congress on newly admitted states is allowable. In Ervien v. United States, 251 U.S. 41 (1919), the U.S. Supreme Court held that Congress’s directive that public lands granted to New Mexico be used for specific enumerated purposes was valid:
There is in the Enabling Act a specific enumeration of the purposes for which the lands were granted and the enumeration is necessarily exclusive of any other purpose; and to make assurance doubly sure it was provided that the natural products and money proceeds of such lands should be subject to the same trusts as the lands producing the same.
. . . .
[T]he United States, being the grantor of the lands, could impose conditions upon their use, and have the right to exact the performance of the conditions. We need not extend the argument or multiply considerations.
Id. at 48.
One exception to this general rule is the common law doctrine of equal footing, which provides that a newly admitted state has “the same rights, sovereignty, and jurisdiction” as those enjoyed by the thirteen original states. Knight v. United Land Ass’n, 142 U.S. 161, 183 (1891) .
An argument can be made that the equal footing doctrine requires that all lands owned by the State (including “available lands”) are under the control of the State, that the State has the sole authority to decide which agency shall administer such lands as an exercise of its sovereign power, and that this authority cannot be restricted by the federal government, as no such restrictions applied to the original thirteen states.
In Coyle v. Smith, 221 U.S. 559 (1911), the U.S. Supreme Court held that the equal footing doctrine prohibits the United States from restricting the powers of a newly admitted state in respect to matters which would otherwise be exclusively within the sphere of state power. Id. at 568. At issue in Coyle was whether the congressional act admitting Oklahoma as a state could require that Oklahoma’s state capital be in a certain location. The court held that such a requirement denied Oklahoma “equal footing” with the other states by impermissibly restricting Oklahoma’s ability to locate its capital in a place of its choosing, a power solely within the state sphere. Id. at 579. The Coyle court distinguished between impermissible restrictions of state power by Congress and conditions imposed on new states by Congress acting within its enumerated powers:
It may well happen that Congress should embrace in an enactment introducing a new state into the Union legislation intended as a regulation . . . . touching the sole care and disposition of the public lands or reservations herein, which might be upheld as legislation within the sphere of the plain power of Congress. But in every such case such legislation would derive its force not from any agreement or compact with the proposed new state, nor by reason of its acceptance of such enactment as a term of admission, but solely because the power of Congress extended to the subject, and therefore would not operate to restrict the state’s legislative power in respect of any matter which was not plainly within the regulating power of Congress.
Id. at 574 (emphasis added) .5 See also Branson School Dist. v. Romer, 958 F. Supp. 1501, 1513-14 (D. Colo. 1997) (rejecting equal footing challenge to trust conditions imposed on land granted to Colorado by the federal government upon its admission because the federal government has the power to “grant something less than a fee simple interest” in lands to the new state.)
Section 4 of the Admission Act specifically states that Hawaii’s adoption of the HHCA, and the conditions imposed by Congress arising from the adoption of the HHCA, relates to the “management and disposition of the Hawaiian home lands.” One such condition imposed by Congress is that “all proceeds and income” from Hawaiian home lands must be used in carrying out the provisions of the HHCA. Under Coyle, such a condition does not offend the equal footing doctrine because it is within the purview of Congress’s enumerated powers. 6
Under Ervien and Coyle, then, the limitations placed by Congress on Hawaii’s use of Hawaiian home lands do not violate the equal footing doctrine.
b. The Public Trust Doctrine
The public trust doctrine recognizes that states enjoy certain non-transferable rights in natural resources. This doctrine is constitutional in nature. Article XI, section 1, of the Hawaii Constitution provides that “the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources” and that all public natural resources are \\held in trust by the State for the benefit of the people.” Article XI, section 2, of the Hawaii Constitution requires the legislature to vest in one or more executive boards or commissions powers to manage natural resources owned by the State.
The Hawaii Supreme Court has held that the State has a duty to protect natural resources and regulate their use by devoting them to “public uses.” State by Kobayashi v. Zimring, 58 Haw. 106, 121, 566 P.2d 725, 735 (1977). In Zimring, the court held that newly created lands created by lava flows do not accrue solely to the benefit of private landowners, but instead must be held in trust by the State for public uses. Id. The Zimring court also held that the State may favor a particular public use if its importance outweighs competing public uses. Id.
Section 4 of the Admission Act, article XII, sections 1 and 3, of the Hawaii Constitution, and sections 204 and 206 of the HHCA recognize that certain lands held by the State (namely, Hawaiian home lands) are under the exclusive control of DHHL, and must be used only to carry out the provisions of the HHCA.
An argument can be made that the public trust doctrine imposes a constitutional obligation on the State, through BLNR, as provided in section 171-3, HRS, to oversee and regulate the development of geothermal resources on all lands in the State, including “available lands,” for the benefit of the public at large, notwithstanding the provisions of the Admission Act and the HHCA.
We do not believe that the public trust doctrine compels the State to weigh the use of Hawaiian home lands solely for the benefit of native Hawaiians against the use of such lands for the public at large. As just explained, federal and state law provide that such lands, and the proceeds and income therefrom, are to be used solely to carry out the provisions of the HHCA. The same reasoning applies to geothermal resources located on Hawaiian home lands; section 206 of the HHCA specifically provides that BLNR’s powers with respect to state lands shall not apply to Hawaiian home lands. We therefore conclude that DHHL’s authority to manage and dispose of geothermal resources on its lands, which stems from the Admission Act, the Hawaii Constitution, and the HHCA, does not run afoul of the public trust doctrine.
Finally, the supremacy of the Admission Act as federal law, which required the adoption of the HHCA as a provision of the Hawaii Constitution, counsels against an interpretation of the public trust doctrine that would deny DHHL control over geothermal resources on its lands, in contravention of the HHCA.
We are mindful that one natural resource, water, appears to enjoy heightened protections under the Hawaii constitution. The Hawaii Supreme Court has recognized that water is a special type of natural resource because it is variable, transient, scarce, and subject to pollution and depletion. Robinson v. Ariyoshi, 65 Haw. 641, 667, 658 P.2d 287, 306 (1982). In addition, article XI, section 7, of the Hawaii Constitution obligates the State to “protect, control and regulate the use of Hawaii’s water resources for the benefit of its people” and further requires the legislature to establish a “water resources agency” to protect ground and surface water resources by establishing procedures for identifying and regulating all uses of Hawaii’s water resources. 7
Our constitution does not include any provision for geothermal resources analogous to that afforded to water under article XI, section 7. 8 Nor is there case law holding that geothermal resources share the transient, scarce, and lifegiving qualities attributable to water. In short, we are not convinced that the same level of protection and interestbalancing afforded to water resources are applicable to geothermal resources.
Based on this analysis, we conclude as follows: (1) DHHL is entitled to 100 percent of royalties derived from geothermal resource development on its lands; and (2) DHHL has the sole authority to manage and dispose of geothermal resources on its lands.
We emphasize that these conclusions are applicable only to the issue of geothermal resources on DHHL lands. Whether such conclusions apply to other natural resources found on Hawaiian home lands requires additional analysis.
Very truly yours,
Matthew S. Dvonch
Deputy Attorney General
David M. Loui
1 The terms “Hawaiian home lands,” “DHHL lands,” “lands controlled by DHHL,” and “its lands” are used interchangeably throughout this opinion with the term “available lands,” which consist of all the lands described in section 203 of the Hawaiian Homes Commission Act, 1920, Act of July 9, 1921, ch. 42, 42 Stat. 108 (hereinafter referred to as the HHCA), and all other lands subsequently designated by statute to constitute “available lands.”
2 Act of March 18, 1959, Pub. L. No. 86-3, § 4, 73 Stat 4.
3 The only unrestricted role for BLNR in the HHCA is in section 204, which provides that “available lands” under lease by the Territory of Hawaii shall not assume the status of Hawaiian home lands until such lease expires or BLNR withdraws those lands from the operation of the lease.
4 We were not asked, and therefore do not address, whether DHHL must exercise a level of care relative to its neighbors when developing geothermal resources on “available lands.”
5 Article IV, section 3, of the U.S. Constitution grants Congress the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
6 The “available lands” became lands of the United States pursuant to the Newlands Resolution (Resolution No. 55 of July 7, 1898, 30 Stat. 750).
7 The Hawaii Supreme Court in In re Water Use Permit Applications, 94 Haw. 97, 9 P.3d 409 (2000), notes that the State’s Commission on Water Resource Management is the “primary guardian” of the public’s right to water under article XI, section 7, of the Hawaii Constitution. There is no similar constitutional provision appointing a “primary guardian” over geothermal resources.
8 While the State’s geothermal resources are protected under the public trust doctrine, only water resources have been accorded additional heightened protection by the Hawaii Supreme Court.]]>
The Kakaina subdivision in Waimanalo is a residential homestead project that was initially designed as a 44 home subdivision to be constructed on lands that were transferred from the Department of Land and Natural Resources (DLNR) to the Department of Hawaiian Home Lands (DHHL) in February 2007.
When DLNR was the property owner, the land was utilized by adjacent land owners primarily as passive extensions of their properties. However, at least one resident retained a revocable permit (RP), a short term land disposition, from DLNR which allowed him to utilize the DLNR land for horses. When the land was transferred from DLNR to DHHL, all existing land use agreements with nearby residents were cancelled and everyone was asked to vacate the property. Needless to say, some hard feelings were directed toward the DHHL, which is understandable.
Attached is a letter the department received from one homeowner.
As our department’s mission is to place 50% blood quantum native Hawaiians on lands we control, the DHHL initially designed the residential development to be compliant with City and County building codes and guidelines for transportation connectivity – the “complete streets initiative” – along with area drainage improvements that would help to address pre-existing flooding conditions for our neighbors.
The DHHL project was discussed before the Waimanalo Neighborhood Board on numerous occasions throughout 2012 – in July Commissioner Tassill reported that the ground breaking occurred on the Kakaina project, in November the Board discussed surveyors being on site, and on February 11, 2013, the Board and the community discussed the ingress and egress planned for the Kakaina subdivision.
At this meeting, residents adjacent to the project voiced their concerns regarding possible increased traffic and parking impacts along Mekia and Poalima Streets, as these residents had been accustomed to living along a cul-de-sac with very little traffic. In compliance with the City’s connectivity standards, DHHL designed this subdivision with a primary access from Hihimanu Street, a secondary access from Kakaina Street, and a third access point, from Poalima Street. At this point, the design was complete and DHHL was ready to begin construction of the subdivision.
However, following the February NB meeting, on-going discussions with the community and elected officials led to DHHL’s consultation with the City to consider allowing the DHHL to close the third entry point from Poalima Street to allay the fears and concerns of our neighbors. At a follow up meeting in April called by the City with DHHL and the neighboring residents, the City agreed to allow DHHL to close the access point to the subdivision from Poalima Street. At this meeting, it was also explained to our neighbors that this would lead to the elimination of off-site drainage improvements that would help address some of the pre-existing flooding conditions, as well as delay construction of the project until the City approved the redesign of the project. Based on our neighbors’ input, DHHL agreed to redesign the project to accommodate the community’s requests. The subsequent subdivision redesign and the resubmission of plans for permit approval by the City created an unanticipated delay in the resumption of construction during which high winds and torrential rains buffeted the partially completed construction site.
Had the department not agreed to be a good neighbor and redesign the project, the project would most likely be completed by now. However, in deference to our neighboring residents, DHHL’s attempt to accommodate their wishes ultimately created other unforeseen impacts.
Throughout the process the department and its contractors have made a concerted effort to engage the community through on-site monthly meetings along with six bi-weekly newsletters that are mailed to each of our surrounding neighbors. Contractors have provided their cellular phone and email contact information so that they can be reached by neighboring residents at all times.
In addition to this public outreach, the names of neighbors who had project related construction claims have been forwarded to the contractor’s insurance company for claims processing.
The department believes that it has done its due diligence and continues to try to be a good neighbor and complete the project as expeditiously as possible pending the final approvals from the City.
Please note that the Kakaina subdivision is the second undivided interest community being built recently by DHHL in Waimanalo. The first was the nearby Kumuhau subdivision completed in July 2011.
From Rob Perez:
I just returned from a meeting with some residents who live adjacent to or near the Kakaina subdivision project. They tell me that DHHL has done a poor job of addressing their problems related to the ongoing construction. For roughly the past year, they said, they have been dealing with excessive noise, dust, vibrations caused by the heavy equipment, flooding, mold, rodents and other issues. They also said DHHL has not kept them adequately informed about developments with the project.
Some of these same issues were mentioned in Sen. Laura Thielen’s Nov. 18 letter to Darrell Young. I have many of the same questions that she raised, so if you can provide me with a copy of the agency’s written response to the senator, that likely can answer some of my questions.
Given that these concerns aren’t new, gathering responses shouldn’t require researching new, unfamiliar matters. My deadline is Friday, so if you could get responses to me by noon Friday, I would appreciate it. That way I’ll be able to include DHHL’s perspective in the story.
Here are the questions:
• What is the scope of the Kakaina project, including how many homes will be built and the total cost of the project? When did the construction start and when is it expected to be completed?
• Did DHHL require the contractor to make changes based on the concerns raised by homeowners along Poalima and Mekia streets?
The construction team (DHHL, contractor, and construction manager) has been addressing issues as they are brought to our attention; and as much as possible, attempting to anticipate and mitigate potential problems. Some complaints, such as noise and dust, are to be expected with any construction project. The contractor has taken steps to minimize the effects, but cannot eliminate them entirely.
• What has DHHL done to address the Poalima/Mekia street flooding problems that residents say have been caused by the Kakaina work?
After the first reported incident on October 27, the contractor reinforced the earthen berm, added a second berm within the site, installed two silt fences and cleaned up the adjacent lots.
Another storm occurred the weekend of November 9-10. While the amount of silt runoff was minimal, the amount of rain was more than the detention pond and berms could handle and there was flooding into Poalima Street.
The contractor has since completed the concrete drainage ditch along the boundary at Poalima Street. This should prevent runoff from future storms from flowing into the Poalima/Mekia streets intersection.
• Why was it necessary to raise the elevation of the Kakaina site by several feet along the border with some of the existing homes? Will that be changed based on the homeowner concerns?
The lots within the Kakaina Subdivision are designed to drain storm water away from the neighboring lots and into the internal roadways. Therefore the rear of the lots are higher. (See attached)
• What has DHHL done to address the damages that homeowners say were caused by the Kakaina work? The damages include cracked walls, windows and other surfaces, structural settling, flooding and mold, according to the homeowners.
The contractor’s insurance agent has been contacting affected residents to file claims.
• Sections of the dust barrier surrounding the construction site collapsed during the recent President’s Day weekend. Homeowners say that was the second time sections of the barrier have collapsed. What has been done to prevent that from happening again?
First of all, as stated above, the Notice to Proceed was given December 2012, with anticipated completion by September 2013. Had we been able to follow our initial timeline, the dust screens would have been taken down some time during the summer of 2013. It was never anticipated that they would have been up this long awaiting our resumption of construction.
Nevertheless, it appears the combination of age, wet soil conditions surrounding the posts and high wind have loosened the posts and have caused the posts and/or dust screens to fall over. Paradigm has responded by removing any fallen posts and dust screens as they occur. Paradigm has inspected the current condition of the dust fence and removed any posts or dust screens which may appear a potential problem should high winds and rains be encountered again.
Paradigm will inspect the current condition of all fence posts to assess the level of repair required. Loose posts will be removed, the hole re-drilled and the posts reset with Controlled Low Strength Material (CLSM). CLSM is self-compacting cementitious fill. Repair of the dust screens will occur when more favorable weather conditions prevail and the site dries out for work to continue.
• Is the agency satisfied with the work Paradigm Construction has done on the project, including its oversight of the construction activities?
• Given the close proximity of the Kakaina site to an existing neighborhood and given DHHL’s experience in developing subdivisions, including in-fill ones, why wasn’t the agency better able to anticipate and minimize some of the problems that have cropped up with this project?
Most DHHL projects are in undeveloped areas with few existing residents as those are the type of lands that have been conveyed to the department.
With respect to the Kakaina development, in accommodating our neighboring residents’ concerns, the department encountered other challenges in redesigning the project, obtaining requisite permitting approvals from the county and constructing new drainage improvements. During that same period, inclement weather exacerbated the challenges.
As we stated above, the Kakaina subdivision is the second undivided interest community being built recently by DHHL in Waimanalo. The first was the nearby Kumuhau subdivision completed in July 2011. We experienced none of these problems there.
It should also be noted that your perception of “close proximity” could be the result of some of the existing houses being non-compliant with the City’s five-foot setback requirements as their backyards were vacant lands until 2007.
• Do you disagree with the homeowners’ contention that DHHL has not adequately addressed their concerns and has not adequately kept them informed of developments with the project?
Yes. Since complaints were aired at the Waimanalo Neighborhood Board meeting on November 4, 2013, the construction team has initiated monthly “talk-story” sessions and a twice-monthly newsletter. The “talk-story” sessions are held on the project site to meet with neighboring residents. The newsletters provide a progress summary of the project, upcoming construction activities and answer any concerns or comments posed by the surrounding neighbors.
Even if they elect not to attend these public outreach meetings or ignore our mailed information to them, we will continue to reach out and be available to our neighbors to hear and address their concerns as we go about our mission in building quality affordable homes for our 50% blood quantum native Hawaiian beneficiaries.
Please provide any other information that will help put these issues into the proper context.
For your convenience, we have provided the six newsletters, an original site plan showing the three access points and the revised site plan eliminating the access point to Poalima Street as we discussed in our response to you.
NANAKULI COMMUNITY INFORMATIONAL MEETING
March 12, 2014
Ka Waihona O Ka Na’auao Charter School Cafeteria
6:00 p.m. to 8:00 p.m.
1. Proposed Amendment to General Lease 281 Nanakuli Village Center
2. Proposed General Lease to Kamehameha Schools for Community Learning Center
This meeting was for DHHL beneficiaries — applicants and lessees — to provide an update on the Nanakuli Village Center project.]]>
BOARD OF TRUSTEES
Colette Y. Machado, Chairperson
Oswald K. Stender, Vice Chairperson
Dan Ahuna, Kaua’i-Ni’ihau Trustee
Rowena Akana, Trustee At-Large
Peter Apo, O’ahu Trustee
S. Haunani Apoliona, Trustee At-Large
Carmen Hulu Lindsey, Maui Trustee
Robert K. Lindsey, Jr., Hawai’i Trustee
John Waihe’e IV, Trustee At-Large
STATE OF HAWAI’I
DEPARTMENT OF HAWAIIAN HOME LANDS
P.O. Box 1879 – Honolulu. HI 96805
HAWAIIAN HOMES COMMISSION
Jobie M. K. Masagatani, Chairman
Leimana K. DaMate, West Hawai’i
Gene Ross Davis, Moloka’i
Doreen Napua Gomes, Maui
J. Kama Hopkins, O’ahu
Wallace A. Ishibashi, East Hawai’i
Michael P. Kahikina, O’ahu
Patricia W. Sheehan, Kaua’i
Renwick V.I. Tassill, O’ahu
JOINT MEETING OF
THE HAWAllAN HOMES COMMISSION and
THE OFFICE OF HAWAIIAN AFFAIRS BOARD OF TRUSTEES
I. Call to Order
II. Beneficiary Comments*
A. Kaka’ako Makai Planning
B. OHA’s Statement of Commitment on Governance
A. DHHL Planned Initiatives 2014
VI. New Business
A. Opportunities for Collaboration on Affordable Housing: Interim Loan — Presentation byDHHL
VII. Conclusion and Adjournment
*Notice: Persons wishing to provide testimony are requested to submit 15 copies of their testimony to the Chairman’s Office at tbe address above or contact 808-620-9590, 48 hours prior to the scheduled meeting. Persons wishing to testify orally may do so at the meeting, provided that oral testimony shall be limited to five minutes.]]>
Notice of Annual
Hawaiian Homes Commission Regular Meeting
Monday, March 17, 2014 at 9:30 a.m.
and Tuesday, March 18, 2014 at 11:30 a.m.
at Hale Pono’ī, Department of Hawaiian Home Lands
91-5420 Kapolei Parkway, Kapolei, O’ahu 96707
If the HHC Regular Meeting Agenda items are not completed on Monday, the meeting
will be recessed to Tuesday at 11:30 a.m., to be announced at the close of Monday’s meeting.
Hawaiian Homes Commission Meeting
with the Waimānalo Homestead Community
on Monday, March 17, 2014 from 6:30 – 8:30 p.m.
at Ka Ho’oilina Na Kūhiō Community Center
41-253 Ilauhole Street, Waimānalo, O’ahu 96795
6:30 – 7:00 p.m. DHHL Update
7:00 – 7:30 p.m. Homestead Community Update
7:30 – 8:30 p.m. Open House*
8:30 p.m. Adjournment
* During Open House, representatives from DHHL divisions will be available for one-on-one consultation with beneficiaries. Community organizations will also present informational booths.
To request accommodations for a sign language interpreter or accessible parking (must be requested five days prior to the meeting date), or for more information, please contact the DHHL Information and Community Relations Office on O‘ahu at 808-620-9590.]]>
Open positions at the Department of Hawaiian Home Lands will be posted here, as they become available.
If you are interested and your job skills and experience meet the job descriptions and minimum qualifications for the positions listed, please send resume and cover letter detailing which position you are applying for to firstname.lastname@example.org by the deadline posted in the individual vacancy announcements.
March 11, 2014: Continuous recruitment until filled