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Wednesday, August 27, 2014         

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Home Lands suit revived

Court will rule whether agency can seek 'sufficient funding'

By Ken Kobayashi

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The state appeals court reinstated a lawsuit yesterday by six Native Hawaiians seeking sufficient funding for the Department of Hawaiian Home Lands from the state.

A state judge had dismissed their lawsuit, filed by the Native Hawaiian Legal Corp., ruling that the funding issue is a "political question" that cannot be decided by the courts.

But a three-judge panel of the Intermediate Court of Appeals ruled that the matter can be addressed by the courts and sent the case back to Circuit Court.

It was not clear yesterday just how much money the state would have to pay if it loses.

But David Kimo Frankel, a Native Hawaiian Legal Corp. lawyer, called the ruling "a very significant decision."

State lawyers said they were disappointed and considering whether to ask the Hawaii Supreme Court to overturn yesterday's decision.

Frankel said yesterday's ruling gives "real meaning" to a 1978 state Constitution amendment that says the Legislature "shall make sufficient sums available" for the DHHL, including for development of residential, farm and ranch lots.

Native Hawaiian Legal Corp. lawyers pointed out that the number of Native Hawaiian applicants waiting for residential, ranch and agricultural lots has swelled to more than 23,000 today from 5,300 in 1978.

But despite the growing waiting list, the DHHL "repeatedly" has not asked the state for general funds during the past 30 years, the lawyers said.

In 1992, the department received $4.2 million, but in the past and current fiscal year, the department did not seek and did not receive any money, they said.

"The court's decision vindicates what our clients and our office have been pointing out for years: The state cannot abdicate its duty to provide sufficient funding to provide Native Hawaiians homesteads that they were promised decades ago," said Alan Murakami, litigation director of the Native Hawaiian Legal Corp.

The suit asks for a court order directing the department to seek funding from the state to cover the costs of providing home, farm and ranch lots to the Native Hawaiians on the waiting lists.

Circuit Judge Bert Ayabe dismissed the lawsuit.

Appeals Judge Dan Foley wrote yesterday's 16-page ruling that the issue can be addressed by the courts. "There is no unusual need for unquestioning adherence to a legislative decision not to make sufficient sums available to DHHL as mandated by the Hawaii Constitution," he wrote.

Appeals Judge Alexa Fujise joined in his ruling. Chief Appeals Judge Craig Nakamura wrote a concurring opinion.

Deputy Attorney General Girard Lau said they believe the funding issue is a "political question" because it's based on legislative policy considerations that can't be decided in court.

Those considerations include questions such as how long is too long for beneficiaries to wait, particularly in view of other priorities for the state and the current tight economy.

Native Hawaiian Legal Corp. lawyers are not saying what the sufficient amount of funding should be, but said former department Director Micah Kane predicted it would cost $100 million a year for the department to meet its mission.

Lau said the figure is not accurate because Kane was not suggesting that's the amount of funding the department should receive, but an overall assessment on how much it would cost to provide lots for all the beneficiaries on the waiting list.

Lau also said he could not put a figure on what the amount would be, but said the state's main argument would be the department has been given "sufficient" funds.

Richard Nelson III, the lead client among the six plaintiffs, said the ruling is "great news for those of us who have been waiting for so long."

"The department needs to stop leasing our homelands to generate revenue," he said in a written statement. "Instead, it needs to obtain the funding to which it is entitled. It has stopped asking for the money."






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