HAWA..i~L c:::::. c::;, J:Ia -=00 §iil

Sherry P. Broder I Jon M. Van Dyke S.C. NO. 25570 841 Bishop Street, Suite 800 ("",,:

~

IN THE SUPREME COURT OF THE STATE OF HAWA..i~L c:::::. c::;, '-0

J:Ia ~~1· c:: f"I)~~~ en

It OFFICE OF HAWAIIAN AFFAIRS, ) CIVIL NO. 94-4207-11-~

, CJ1 r ROWENA AKANA, HAUNANI ) (Declaratory JUdgment)!fj!J!£ ." 1'1

APOLIONA, DANTE CARPENTER, ) -0 0 :x 0 -=00 DONALD CATALUNA, LINDA DELA ) APPEAL FROM THE §iil ~ -. CRUZ, COLETTE MACHADO, BOYD ) 1) OPINION OF THE COORT; (:)

\0 P. MOSSMAN, OSWALD STENDER, ) NOTICE OF ENTRY, filed on and JOHN WAIHE'I, IV, in'theirofficial ) December 5,2002 capacities as members of the Board of ) Trustees of the Office of Hawaiian ) 2) FINAL JUDGMENT ON COUNTS 1 J

Affairs, PIA THOMAS ALULI, ) 11 AND III OF PLAINTIFFS' FIRST , JONATHAN KAMAKAWIWO'OLE ) AMENDED COMPLAINT FILED OSORIO, CHARLES KA'AI'AI, and ) 7/14/95 IN FAVOR OF ALL KEOKI MAKA KAMAKA KI'ILI, ) DEFENDANTS PU.RSUANT TO HRCP

) RULES 54(b) and 58, filed on Plaintiffs-Appellants, ) January 31, 2003

) vs. ) 3) ORDER GRANTING MOTION TO

) EXTEND TIME TO APPEAL, filed HOUSING AND COMMUNITY ) January 31, 2003 DEVELOPMENT CORPORATION OF ) HAWAII, (HCDCH) ROBERT J. HALL, ) in his capacity as Acting Executive ) FIRST CIRCUIT COURT Director of HCDCH, CHARLES STED, ) Chair, STEPHANIE AVEIRO, ) HONORABLE DANIEL HEEL Y FRANCIS L. JUNG, CHARLES KING, ) HONORABLE VIRGINIA LEA LILLIAN B. KOLLER, BETTY LOU ) CRANDALL LARSON, THEODORE E. LIU, ) HONORABLE KEVIN CHANG TRAVIS THOMPSON, TAIAOPO, ) HONORABLE GAIL NAKATANI TUIMALEIALIIFANO, Members of the ) HONORABLE KAREN BLONDIN 'Board of Directors of HCDCH, STATE ) HONORABLE JAMES AIONA OF HAWAII, and LINDA LINGLE, in ) HONORABLE COLLEEN HIRAI her capacity as Governor, State of ) HONORABLE MARIE MILKS Hawaii, ) HONORABLE SABRINA MCKENNA

) Judges Defendants-Appellees. )

) ) ) ) )

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

PLAINTIFF-APPELLANT JONATHAN KAMAKAWIWO'OLE OSORIO'S MEMORANDUM IN OPPOSITION TO THE

DEFENDANTS-APPELLEES' MOTION TO DISMISS

AFFIDAVIT OF COUNSEL

EXHIBITS 1 THROUGH 3

and

CERTIFICATE OF SERVICE

Of Counsel:

YUKLIN ALULI (1428) 415-C Uluniu Street Kailua, HawaII 96734 Telephone: (808) 262-5900

RICHARD NAIWIEHA WURDEMAN (6015) 333 Queen Street, Suite 604 Honolulu, Hawaii 96813 Telephone: (808) 285-4853

MILILANI B. TRASK (2324) Gibson Foundation Waiakea Villa, Bldg. 10 4-00 Hualani Street, Suite 194 Hilo, Hawaii 96720 Telephone: (808) 961-2888

DEXTER K. KAlAMA (4249) Dillingham Transportation Building 735 Bishop Street, Suite 419 Honolulu, Hawaii 96813 Telephone: (808) 526-3239

Attorn~ys for Plaintiff-Appellant . JONATHAN KAMAKAWIWO'OLE OSORIO

2


TABLE OF CONTENTS

Page Nos.

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

II. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4

A. Osorio has Standing to Proceed in This Matter as a Hawaiian ............................................. 4

1. The Unrelinquished Claims of Native Hawaiians to the Ceded Lands are not Delimited by Blood Quantum Criteria ................................ 4

2. Manifest Injustice Bars the State From Challenging Osorio's Standing ...................... 6

3. Osorio Possesses Certain Rights as a Hawaiian Which are Separate and Distinct From Those of the General Public .................................. 7

4. The Public Interest in the Rights of Hawaiians Confers Standing on Osorio ............................ 8

B. The Claims and Issues Raised by Osorio are not Barred by the Doctrine Prohibiting Advisory Opinions or by the Mootness Doctrine, but Address an Actual Controversy Which the Public Interest and Interests of Justice Demand this Honorable Court Address ................ 10

C. This Court has Already Ruled That Osorio·s Claims are Ripe for Review, his Claims are Still Ripe for Review, and no Legitimate Basis Exists for the State's Contention That his Claims are no Longer Ripe for Review ................ . . . . . . . . . . . . . .. 13

III. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16


TABLE OF AUTHORITIES

CASES: PAGE NOS.

Ahuna v. Dept. of Hawaiian Homelands Comm'n, 64 Hawai'j 327, 640 P .2d 1161 (1982) .............................. 0 0 7

Akau Vo Olohana Corp., 65 Hawaj'j 383,652 P.2d 1130 (1982) .. 0 ••••••• 0 ••• 0 ••••••••••••••••• 7

Carafas v. LaVallee, 391 U.S. 324, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) .. 0 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •• 11

Doev. Doe, 116 Hawaj'j 323, 172 P.3d 1967 (2007) ......... 0 •••••••••••• 0 •••• 10, 11

Hamilton v. Lethem, 119 Hawaj'i 1, 193 Po3d 839 (2008) ........... 0 •••••••••••• 0 •• 10, 11, 12

Hawaii v. Office of Hawaiian Affairs ("Hawaii v. OHA"), _U.S._, 129 S.Ct. 1436, 173 L.Ed.2d 333 (U.S. 2009) ............................................ 1,3,15,16

Hawaii Thousand Friends v. Anderson, 70 Hawai'i 276,768 P.2d 1293 (1989) ............... 0 ••••••••••••••• 7

In re Banning, 73 Hawai'j 297,832 P.2d 724 (1992) .......... 0 ••••••••••••••••••••• 7

In re Doe, 81 Hawai'i 91,912 P.2d 588 (App. 1996) 0 •••••••••••••••••••••••• 10, 11

In re Thomas, 73 Hawai'j 223,832 P.2d 253 (1992) ......... 0 ••••••••••••••••••••• 10

Kapiolani Park Preservation Society v. C&C of Honolulu, 69 Hawai'j 569,751 P.2d 1022 (1988) .. 0.0 •••••••••••••••••••• 5,17,18

Life of the Land v. Burns, 59 Hawai'j 244,5.80 P.2d 405 (1978) ......... 0 •••• 0 0 0 •••••••••••••• 10

ii


CASES: PAGE NOS.

Life of the Land v. Land Use Comm'n, 63 Hawai'j 166,623 P.2d 431 (1981) ................................ 7

Office of Hawaiian Affairs v. Housing and Community Development Corp of Hawaii ("OHA v HCDCH"),

117 Hawai'j 174, 177 P.3d 884 (2008) .......................... passim

Pele Defense Fund v. Paty, 73 Hawai'j 578, 837 P .2d 127 4 (19~2) 7,9,13,18

Potter v. Hawaii Newspaper Agency, 89 Hawai'j 411,974 P.2d 51 (1999) ................................. 6

Public Access Shoreline Hawaii v. Hawaii County Planning Comm'n ("PASH"),

79 Hawai'i 425, 903 P .2d 1246 (1995) ............................. 7, 8

Putnam v. Kennedy, 279 Conn. 162,900 A.2d 1256 (2006) .............................. 11

Rice v. Cayetano, 941 F. Supp. 1529 (D. Haw. 1996) ................................. 14

State ex reo Kobayashi v. Zimring, 58 Hawai'i 16, 566 P.2d 725 (1977) ................................. 6

Wong v. Board of Regents, 62 Hawai'i 391,616 P.2d 201(1980) ................................ 10

CONSTITUTIONS:

Hawaii Constitution: Article XII ...................................................... 8

Article I § 1 ................................................... 18

Article XII § 7 .... : ........................................... 8, 18

iii


CASES: PAGE NOS.

STATUTES. LEGISLATION. and LEGISLATIVE HISTORY:

Act of Nov. 23, 1993, Pub. L. No. 103-150, 107 Stat. 1510 ................... 18

2009 Native Hawaiian Reorganization Act, H.R. 2314 ("Akaka BiW') § 8(b)(1)(A) .................... -................. 13

Haw. Rev. Stat. § 1-1

Haw. Rev. Stat. § 7-1

8, 18

8, 18

Haw. Rev. Stat. § 171-32 ............................................... 9

Haw. Rev. Stat. § 171-41(b) ........................................... 10

Haw. Rev. Stat. § 171-42 .............................................. 10

Haw. Rev. Stat. § 171-45 .............................................. 10

Haw. Rev. Stat. § 171-50 .............................................. 10

Haw. Rev. Stat. § 171-50, Editor's Note ................................... 4

Haw. Rev. Stat. § 171-60(b) ........................................... 10

1993 Haw. Sess. Laws. Act 359 ...................................... 7,18

2007 Haw.·~ess. Laws Act 104 §§ 1-2 ................................. 4,15

2009 Haw. Sess. Laws Act 176 3,15

OTHER AUTHORITY:

Jonathan K. Osorio, Dismembering Lahui: A Historv of the Hawaiian Nation to 1887 (UH Press 2002) ............................ 4

iv


S.C. NO. 25570

IN THE SUPREME COURT OF THE STATE OF HAWAII

OFFICE OF HAWAIIAN AFFAIRS, et aI.,

Plaintiffs-Appellants,

vs.

,HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAII, (HCDCH), et aI.,

Defendants-Appellees.

) CIVIL NO. 94-4207-11-SSM ) (Declaratory Judgment) ) ) ) ) ) ) ) ) ) ) )

PLAINTIFF-APPELLANT JONATHAN KAMAKAWIWO'OLE OSORIO'S MEMORANDUM IN OPPOSITION TO THE

DEFENDANTS-APPELLEES' MOTION TO DISMISS

I. INTRODUCTION

Plaintiff-Appellant Jonathan Kamakawiwo'ole Osorio ("Osorio") is a Hawaiian

beneficiary of the public lands trust created by Section 5(f) of the Hawaii Admissions

Act. He is also descended from the races of people inhabiting the Hawaiian islands

prior to 1778. In 1995, Osorio, the Office of Hawaiian Affairs ("OHAII), and other native

Hawaiian individuals filed a First Amended Complaint for Declaratory and Injunctive

Relief nbarring Defendants from conveying and alienating any ceded land from the

public lands trust to third parties. II

Following several years of litigation at the trial court level, the Hawaii Supreme

Court, in Office of Hawaiian Affairs v. Housing and Community Development Corp. of

Hawaii (,'OHA v. HCDCHU), 117 Hawai'i 174, 177 P .3d 884 (2008), rev'd and remanded

. . sub nom. Hawaii v. Office of Hawaiian Affairs ("Hawaii v. OHAn), __ U.S. __ , 129

S. Ct. 1436, 173 L. Ed. 2d 333 (U.S. 2009) , ruled, inter alia, that:

(1) the Apology Resolution and related state legislation, give rise to the State's fiduciary duty to preserve the corpus of the public lands trust. specifically. the ceded lands. until such time as the unrelingulshed claims of the native Hawaiians have been resolved; ... (7) the question whether an injunction is appropriate to


allow resolution of the plaintiffs' unrelinquished claims Without further diminishment of the trust res is ripe for adjudication; (8) the question whether an injunction should issue presents a type of dispute that is traditionally resolved by the courts, and therefore, does not present a non-justiciable political question: (9) the appropriate test in this jurisdiction for determining whether a permanent injunction is proper is: (a) whether the plaintiff has prevailed on the merits: (b) whether the balance of irreparable damage favors the issuance of a permanent injunction; and (c) whether the public interest supports granting such an injunction; and (10) the plaintiffs have established that injunctive relief is proper pending final resolution of native Hawaiian claims through the political process.

117 Hawai'i at 217-218,177 P.2d at 927-928 (emphasis added). Accordingly, this

Honorable Court vacated the trial court's January 31, 2003 judgment and remanded the

case to the trial court with instructions to issue an order: "granting the plaintiffs' request

for an injunction against the defendants from selling or otherwise transferring to third

parties (1) the Lelali'j parcel and (2) any other ceded lands from the public lands trust

until the claims of the native Hawaiians to the ceded lands have been resolved." Id. at

'218,177 P.2d at 928.

It is also important to note that in its decision, this Honorable Court referenced

the United States Justice and Interior Departments' report, entitled "From Mauka to

Makai: The River of Justice Must Flow Freely," (PI. Ex. 71, Record on Appeal hereafter

"ROA") which stated that "[a]s a matter of justice and equity, this report recommends

that [n]ative Hawaiian people should have self-determination over their own affairs

within the framework of [f]ederallaw" and that "[t]o safeguard and enhance [n]ative

Hawaiian self-determination over their lands, cultural resources, and internal affairs, the

departments believe Congress should enact further legislation to clarify [n]ative

Hawaiians' political status and to create a framework for recognizing a government-to

government relationship with a representative [n]ative Hawaiian governing body. n 117

Hawai'l at 212-213,177 P.3d at 922-923.

More importantly, the Hawaii State Legislature has itself announced that future

reconciliation between the State and native Hawaiians would occur and, in Acts 359

and 329, recognized that "the indigenous people of Hawai'i were denied ... their

lands," and contemplated further action to reach a "lasting reconciliation so desired by

all people of Hawai'i." Id. at 213,177 P.3d at 923.

2


This Honorable Court also cited the trial testimony of Professor David Getches

and Olive Kanahele and noted the irreparable harm to the Native Hawaiian people that

would result with the transfers of ceded lands to third parties prior to any reconciliation

with the Native Hawaiian community. 117 Hawai'i at 214-216, 177 P.3d at 924-926.

Upon appeal by Defendants-Appellees eState"), the U.S. Supreme Court

reversed the judgment of this Honorable Court and the case was remanded for further

proceedings not inconsistent with the U.S. Supreme Court's opinion. Hawaii v. OHA,_

U.S. -' 129 S.Ct. 1436, 1445, 173 L.Ed.2d 333,345 (2009). The U.S. Supreme Court

simply held that this Honorable Court incorrectly based its decision on federal law, i.e.

the Apology Resolution, In enjoining the State of Hawaii from alienating ceded lands.

129 S.Ct. at 173 L.Ed.2d at 338. The U.S. Supreme Court properly concluded it had

"no authority to decide questions of Hawaiian law or to provide redress for past wrongs

except as provided by federal law. " Id. at 1445, 173 L. Ed.2d at 345.

Following the U.S. Supreme Court's decision, the Hawaii Legislature passed S.B.

No. 1677 S.0.1, H.0.2, C.D.1. A copy of this legislation is attached to ,the Motion to

Dismiss Without Prejudice the Claims of All Plaintiffs/Appellants Except for Jonathan

Kamakawiwo'ole Osorio that was filed in this Honorable Court on July 15, 2009 by

counsel for OHA, the State, and other individual Plaintiffs-Appellants.1 The subject

legislation, which was signed into law as Act 176 of 2009 (Act 176), fails to preserve the

trust res pending resolution of the claims of the Native Hawaiians as it permits transfers

to third parties of ceded lands with a two-thirds approval of both houses or an excnange

of ceded lands preventable only with a majority disapproval In both houses or a two

thirds vote of disapproval in either house of the legislature. Indeed, this legislation

could certainly be repealed during the next legislature as well and potentially no

approval process for the sale of ceded lands would exist, nor would a disapproval

·Osorio submits that OHA (in light of the Mauka to Makai report, state legislation, the expert witness trial testimony about the harms to the Native Hawaiian people with respect to the transfer of ceded lands pending a resolution of the claims of native Hawaiians and this Honorable Court's injunction on the transfer of ceded lands pending such resolution of the claims natIve Hawaiians) has breached its fiduciary duties to Its benefi~iaries by abandoning this lawsuit.

3


process exist for any exchanges of ceded lands. Furthermore, 2007 Haw. Sess. Laws,

Act 104, §§ 1 and 2, allow unfettered exchange or sale of ceded lands to certain

charitable groups. See Haw. Rev. Stat. §171-50. Editor's Note.

In the Order Granting, in Part, Osorio's Motion for Extension of Time to File

Memorandum in Opposition to Defendants ... Appellees' Motion to Dismiss or Remand to

the Circuit Court for Lack of Justiciability or, in the Alternative, to Affirm, filed July 15,

2009, filed on July 21, 2009, this Honorable Court bifurcated the procedural or

"threshold issues" issues from the substantive issues that were raised in the the State's

Motion and ordered that Osorio address three threshold issues in his memorandum in

opposition to the Motion: (1) whether Osorio lacks standing to proceed in this matter,

(2) whether he is seeking an impermissible advisory opinion, and (3) whether he is

raising an unripe issue.

Osorio submits that no question of justiciability of this action exists and that the

State's Motion to Dismiss based on these threshold issues should be denied.

II. ARGUMENT

A. Osorio has Standing to Proceed in This Matter as a Hawaiian.

1. The Unrelinquished Claims of Native Hawaiians to the Ceded Lands are not Delimited by Blood Quantum Criteria.

Osorio is a Hawaiian historian and scholar, and professor at the Center for

Hawaiian Studies, University of Hawaii at Manoa. (PI, Ex. 42~ ROA at 81). He has

described himself in Dismembering Lahul: A Historv of the Hawaiian Nation to 1887, UH

Press 2002.

I am a Native Hawaiian, He Kanaka Maoli,oiwi maol; au .... I belong here, not just to the land but to the other Kanaka Maoli of this 'aina, and they belong to me ... our self definition as Hawaiians has little to do with trying to gain political and economic advantage ~ .. it has everything to do with kinship.

In the same way, our goals have much less to do with resources than with inheritance, even less to do with money than with dignity. If my study here has shown little else, I hope that is has demonstrated a consistent and determined struggle by Native Hawaiians to maintain for better or worse, their kinship with each other.

4


In summarizing his study on the persistence of national identity (Iahui) shared by

all individuals of Hawaiian ancestry Osorio states:

[WJe are bound together as Native people in ways that cannot be defined by the structures of our government, or by words like nationalism. The nearest word that we have for the nation is Lahui, a word that means "gathering", "people", "tribe", and even "species". We are, in the end, a distinct people whose commonalities extend far outside the ability of laws and constitutions to define us.

(PI. Ex. 43, ROA at 81). Undisputedly, the ideologies of race and eugenics are the

genesis of the 1920 Hawaiian Home Commission Act's division of the Native Haw,2iian

people into those with 50% or more Hawaiian blood, and those without ( or "non-native 1 Hawaiian", as expressed in the State's Memorandum in Support of Motion to Dismiss at

7). It would appear from the State's memorandum that those ideological constructs

necessary to reduce the number of potential beneficiaries are alive and well. Surely

there could be no possible resolution of the claims of native Hawaiians if 80% of the

descendants of the original inhabitants of these islands were not allowed access to the

highest court of Hawaii. See Exhibit 1, attached hereto, excerpt 1998 Native Hawaiian

Data Book, Office of Hawaiian Affairs.

There has heretofore been no distinction made between Hawaiian and native

Hawaiian plaintiffs in this lawsuit. Judge Daniel Heely in his July 23, 1996 Order

Denying Defendants Motion for Summary Judgment held that the present claim is

analogous to the claim presented in Kapiolani Park Preservation Society v. City and

County of Honolulu, 69 Hawai'i 569, 751 P.2d 1022 (1988), concluding that the Native

Hawaiian people should be allowed access to the courts in matters concerning the

lands that are their birthright. See Exhibit 2, attached hereto. 1996 Order Denying

Defendants' Motion for Summary Judgment. Justice Nakamura's concurring opinion in

the Kapiolani Park bears note as it elucidates three factors also present in this case, to

wit: (1) the Trustee is a government agency that does not file periodic accounts of its

stewardship and will not seek instructions of the court despite the existence of a

genuine controversy regarding its power to lease lands; (2) the Attorney General has

actively joined in supporting the alleged breach of trust; and (3) The citizens would be

5

)


left with no protection or a remedy if the suit were not allowed. 69 Hawai'i at 580, 751

P.2d at 1029.

Judge Heely's Order in 1996 is the law of this case, as is this Honorable Court's ,

own decision to use the term native Hawaiian to mean "any individual who is a

descendant of the aboriginal people who, prior to 1778, occupied and exercised

sovereignty in the area that now constitutes the State of Hawaii". OHA v. HCDCH, 117

Hawai'i 174 at 182, 177 P .3d 884 at 892.

2. Manifest Injustice Bars the State From Challenging Osorio's Standing.

Judge Heely's Order also raises another contention by Osorio that the State

should be barred from raising the standing issue with respect to Osorio on the grounds

of estoppel.

This Honorable Court has examined the theory of quasi estoppel and when

application of the doctrine would be appropriate and determined that quasi estoppel

precluded "a party from asserting, to another's disadvantage, a right inconsistent with a

position previously taken." See, OHA v. HCDCH, 117 Hawai'i 174 at 203, 177 P.3d 884

at 914, citing Potter v. Hawaii Newspaper Agency, 89 Hawai'i 411 at 420,974 P.2d 51

at 60.

While the application of the doctrine of equitable estoppel is generally not

favored against the government, this Honorable Court has ruled that the doctrine "is

fully applicable against the government if it is necessary to invoke it to prevent manifest

injustice." OHA v. HCDCH, 117 Hawai'i 174 at 203,177 P.3d 884 at 914, citing State ex

reI. Kobayashi v. Zimring. 58 Hawai'i 106 at 126, 566 P.2d 725 at 737 (1977) (internal

quotations marks and citation omitted).'

There can be no disputing the great personal sacrifices and professional

commitment Osorio has made to preserve the national lands of the once sovereign

Kingdom of Hawaii and to prevent the State from alienating said national lands, which

2While the Court has generally held that standing can be raised at any time, given the 15 year history of this case, it would be a manifest injustice to allow the State to raise it at this time.

6

J


now comprise most of the public lands trust corpus, until claims of the Hawaiian people

against the United State and the State of Hawaii can be resolved.

Furthermore, after 15 years, Osorio believes and has been led to believe that:

(1) his standing as a beneficiary of the public lands trust is firmly established and

secure from challenge; (2) he has reasonably relied on this belief to his detriment; and

(3) the failure of the State to previously raise the issue of standing has "willfully caused"

Osorio's detrimental reliance on his belief. Failing to now bar the State from asserting a

challenge to Osorio's standing will result in manifest injustice.

3. Osorio Possesses Certain Rights as a Hawaiian Which are Separate and Distinct From Those of the General Public.

Recent Hawaii Supreme Court decisions have recognized and reaffirmed that Native Hawaiians have extremely important cultural, religious, social, and economic interest in lands throughout the Hawaiian islands. See, §&, Public Access Shoreline Hawaii v. Hawaii County Planning Commission ("PASH"), 79 Hawai'i 425, 903 P.2d 1246 (1995), Pele Defense Fund v Paty, 73 Hawai'i 578, 837 P.2d 1247 (1992), Ahuna v. Department of Hawaiian Homelands, 64 Hawai'i 327, 640 P.2d 1161 (1982) Judge Heely's Order of July 23, 1996, para. 5. See Exhibit 2.

This Honorable Court has consistently lowered standing barriers in cases of

public interest. Pele Defense Fund, at 591, 837 P.2d 1257; In re Banning, 73 Hawai'i

297,312-313,832 P.2d 724, 732-733 (1992) recon, denied by 73 Hawai'i 625, 834

P.2d 1315 (1992). Akau v. Olohana Corp., 65 Hawai'i 383, 652 P.2d 1130 (1982); Life

of the Land v. Land Use Commission, 63 Hawai'i 166, 623 P.2d 431 (1981). In doing

so, this Court has stated that regardless of the standing theory,

the crucial inquiry . .. is 'whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of [the court's) jurisdiction and to justify the exercise of the court's remedial powers on his behalf.' Pele Defense Fund, 73 Hawai'i 578, 837 P.2d 1247; Hawaii Thousand Friends v. Anderson, 70 Hawai'i 276, 281,768 P. 2d 1293, 1298 (1989).

It is uncontroverted that Osorio is a Hawaiian, descended from the "races of

people inhabiting the Hawaiian islands prior to 1778." 1993 Haw. Sess. L. Act 359. As

such he possesses certain rights that are separate and distinct from the rights of other

citizens of Hawaii who are neither native Hawaiians nor Hawaiians. PASH, 79

. 7


Hawai'i 434, n.15, 903 P.2d at 1255. These rights are codified in three distinct legal

sources (Article XII of the Hawaii Constitution, Haw. Rev. Stat. § 7-1 and Haw. Rev.

Stat. § 1-1), but derive from ancient Hawaiian custom and usage. These rights may be

asserted by any Hawaiian, regardless of blood quantum. PASH at 449,903 P.2d at

1270. The existence of these rights are coterminous with this Honorable Court's

understanding that claims based on practiced custom raises different issues than tho~e

premised on mere land ownership. Id. at 439, 903 P .2d at 1255. Furthermore, the

western concept of exclusivity is not universally applicable in Hawaii. Id. at 447,903

P .2d at 1268.

To the extent that the public trust lands of Hawaii are alienated or otherwise

transferred before there is resolution of the claims of Native Hawaiians, and In such a

manner as is being proposed by the State (to wit, as a "non-native Hawaiian" Osorio is

not injured by the sale of land allegedly in breach of a duty to native Hawaiians.

Memorandum in Support of Motion to Dismiss at page 7), Osorio's rights as a Hawaiian

in those lands are abridged. Osorio continues to have "unrelinquished claims",

characterized as political claims in this litigation, claims that date back to his native

Hawaiian ancestors in 1893, which remain as yet unresolved through the political

process. In addition, Osorio suffers the same harm and injury with respect to the

alienation of land that was discussed by Getches and Kanahele in the trial on this

matter and cited by this Honorable Court in its earlier opinion. 117 Hawai'i at 214-216,

177 P .3d at 924-926. Such injury and harm is inflicted on Hawaiians and native

Hawaiians alike.

4. The Public Interest in the Rights of Hawaiians Confers Standing on Osorio.

Article XII, §7 of the HawaII Constitution states in part " ... The State reaffirms

and shall protect all rights, customarily and traditionally exercised for subsistence,

cultural and religious purposes and possessed by ahupuala tenants' who are

descendants of native Hawaiians .... '1 This language was amended into the Hawaii

Constitution in 1978 and affirmed by voters in a statewide ballot initiative. evidencing

not only that Native Hawaiians possess land rights which non-Hawaiians do not

8


possess. but that the citizens of the State support these rights and. as a matter of public

policy also mandate that the State "reaffirm" and "protect" these rights. Clearly, all

citizens of the State have a vested and significant interest in ensuring that the

Constitutional rights of native Hawaiians ~nd their descendants are upheld and

protected.

Osorio, as a Hawaiian and a member of the public, has a direct interest in the

sale or disposition of the lands of the ceded land trust because his right and ability to

practice his culture and traditions spring from the land. Whenever ceded lands are

alienated from the trust, the trust res is permanently diminished, and the collective

rights of the public. Hawaiians and native Hawaiians are negatively impacted. While

this injury is a "generalized Injury" suffered by the public, Hawaiians and native

Hawaiians (Pele Defense Fund at 594), Osorio suffers additional cultural injuries

because he is indigenous and his identity and cultural subsistence and religious rights

are intrinsically tied to the land. (Getches, 11/27/01, ROA at 72, PI. Ex. 43, ROA at 81).

In addition, the State's practice of exchanging large parcels of conservation land for 1-2

acres of industrially developed land (See Exhibit 3) severely compromises the rights of

Hawaiians and native Hawaiians.

Hawaii has a long history of restraining the alienability of its public land,

beginning with the passage of an act rendering the Crown lands inalienable in 1865

(Def. Ex. MMMM). In 1962, Haw. Rev. Stat. § 171-32 was passed, stating that, as a

policy, "all dispositions [of public lands] shall be by lease only, disposed of by public

auction."

Although this explicH policy of the State favors disposition of trust lands by lease

in order to ensure that there'will be trust lands available for the future needs of the

State and its citizens. the legislature has generally ignored this policy and has

repeatedly enacted statutes that provide for and facilitate alienation of the trust lands

for private purp~ses rather than purposes that meet the needs of the public and native

beneficiaries.

The record reflects that from 1959 to 1998 the State of Hawaii alienated

thousands of acres of the public lands trust for private uses including hotel and resort

9


use (Haw. Rev. Stat. § 171-42), personal residences (Haw. Rev. Stat. § 171-45), sales

to private developers (Haw. Rev. Stat. § 171-60(b) and for commercial, industrial and

other business uses (Haw. Rev. Stat § 171- 41(b). (Def. Exs. C & 0). Alienation has

been by sale as well as by land exchanges, but Hawaii law provides that land

exchanges may be undertaken for Dublic purposes only, except for exchanges with the

Hawaiian Homes Commission. (Haw. Rev. Stat. § 171- 50). It is important to note that

the statute governing land exchanges addresses value from a market perspective but

does not include cultural value for subsistence, religious or other traditional Hawaiian

uses which are of "crucial importance to the native Hawaiian people". 117 Haw. at 214,

177 P .3d 844 at 924).

B. The Claims and Issues Raised bv Osorio are not Barred by the Doctrine Prohibiting Advisory Opinions or by the Mootness Doctrine. but Address an Actual Controversy Which the Public Interest and Interests of Justice Demand this Honorable Court Address.

The doctrine prohibiting advisory opinions is appropriately invoked where the

court is being asked to render an opinion on a moot question or abstract proposition, or

to ~eclare principles or rules of law that cannot affect the matter in issue. Courts have

a duty to decide actual controversies by a judgment which can be carried into effect,

and have no jurisdiction to render opinions on abstract issues. life of the Land v. Bums,

59 Hawai'i 244,250,580 P.2d 405, 409 (1978), Wong v. Board of Regents, 62 Hawai'i

391,394-95,616 P.2d 201,204 (1980). A case is moot where the question to be

determined is "abstract and does not rest on eXisting facts or rightsn. In re Thomas. 73

Hawai'i 223, 225-25,832 P.2d 253, 254 (1992) citing Wong, 62 Hawai'l at 394,616

P .2d at 203-4).

There are two exceptions to the mootness doctrine which are applicable in the

case at bar; (1) the "public interest" exception; and (2) the ncollateral consequences"

exception. Hamilton v. Lethem, 119 Hawai'i 1 at 5,193 P.3d 839 at 843, (2008); Doe v.

Doe, 116 Hawai'i 323.327 n.4. 172 P.3d 1967.1071 n.4 (2007); In re Doe, 81 Hawai'i

91, 912 P .2d 588 (App.1996). liThe cases in this jurisdiction that have applied the

public interest exception have focused largely on political or legislative issues that affect

a significant number of Hawaii residents". Hamilton v Lethem, Id. at 7. As this

10


Honorable Court has re~ently stat~d: "When analyzing the public interest exception this

Honorable Court looks to (1) the public or private nature of the question presented, (2)

the desirability of an authoritative determination for future guidance of public officers,

and (3) the likelihood of future recurrence of the question". Hamilton v. Lethem, citing

Doe v. Doe, 116 Hawai'i 323 at 327, 172 P.3d 1967 at 1071 (2007) (citations and

internal quotation marks omitted).

In applying the "collateral consequences" exception, courts in Hawaii hav~

considered whether there is a direct or significant impact on the life and rights of the

party or parties involved in the controversy. In Re Doe, at 99,912 P.2d 588 (App. 1966)

cited by Carafas v. LaVallee, 391 U.S. 234,88 S.Ct.1556, 20 L.Ed.2d 554 (1968).

To invoke ... the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur .... the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment ... the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future.

Hamilton at 5, 193 P .3d at 843, citing Putman v. Kennedy, 279 Conn. 162, 900 A.2d

1256 at 1258 (2006). Osorio is not seeking an advisory opinion in the case at bar. He

is seeking an injunction restraining and enjoining the State "from directly or indirectly

selling or otherwise transferring to third parties until the unrelinquished claims of the

native Hawaiians are resolved any ceded lands from the public lands trust." See Order

Granting Plaintiffs' Request for an Injunction filed 6/4/08.

This is a remedy that does provide relief for Osorio and for all other Native

Hawaiian beneficiaries of the trust who are equitable owners of the ceded lands and

whose property rights and cultural, religious and subsistence rights are being denied

and infringed upon by the continuing actions of the State. These public officers are in

need of an "authoritative determination" from this Honorable Court enlightening them as

to their trust and fiduciary obligations to native beneficiaries of the trust.

11


The remedy prayed for by Osorio also provides equally protective measures for

the [n]ative Hawaiian beneficiaries and addresses the "likelihood of future recurrence of

the question" criteria of the public interest exceptions previously announced by this

Court. See Hamilton v. Lethem, 119 Hawai'j 1 at 7, 193 P .3d at 845 (2008).

An undeniable diminishment of the trust corpus has occurred, beginning with the

illegal overthrow of the Hawaiian Kingdom, continuing under each subsequent

governing authority and most recently demonstrated by the State's 2004 alienation of

over 550 acres of public trust lands in exchange for just slightly more than 2.5 acres of

private (industrial) lands. (See ExhibH 3).

Given its own poor record of stewardship and diminution of the public lands trust

corpus, the State's position that Act 176 provides sufficient protections against future

alienation of the ceded lands until claims of all Hawaiians can be resolved defies logic,

experience and reason. It bears mentioning here that the State has engaged in sales,

exchanges or alienation of ceded lands while otherwise proclaiming a self-imposed

moratorium on any such sale, exchange or alienation.

Furthermore, based upon a reasonable reading of the settlement agreement,

between the State, OHA and individual Plaintiffs, future litigation on the alienation of

ceded lands is contemplated. The relief prayed for by Osori~ permits this Court to

prevent not just the likeli~ood, but the certainty of future challenges to the alienation of

ceded lands by the State from the public lands trust.

Until this Court rules on this issue, Hawaiians will continue to oppose State

efforts to alienate their traditional lands and the issue will continue to surface in the

courts, in the legislature where Hawaiian opposition the 'ceded land settlement' has

stalled for years, and in the streets where Hawaiians are demonstrating and engaging

in acts of civil disobedience. Clearly, these issues will continue to surface until the

needs of justice are served.

The doctrine of mootness is inapplicable in the case at bar. A very real

controversy exists and it does not require any addHional facts for clarification nor does it

involve abstract legal principles. It is a controversy that has been ripe since the

imposition of Statehood in 1959 when the Congress mandated that the lands of the

12


Territory of Hawaii be held in trust not only for the public, but also for Hawaii's

indigenous peoples, who are native Hawaiians, and for their descendants who will

succeed them .

. This case raises issues of great significance to every citizen in the State,

regardless of their race. As this Honorable Court has stated in Pele Defense Fund v.

Patv,

It is undisputed that the rights of native Hawaiians are a matter of great public concern in Hawaii. This court has repeatedly demonstrated its fundamental policy that Hawaii's state courts should provide a forum for cases raising issues of broad public interest, and that the judicially Imposed standing barriers should be lowered when the "needs of justice" would best be served by allowing a plaintiff to bring claims before the court.

73 Hawai'i at 615, 851 P .2d at 1268 (1992). If the Court should consider that the

mootness doctrine may be applicable this case clearty falls within the public interest

exception. In addition there can be no doubt that the collateral consequences of

dismissal would be devastating to native Hawaiians and their descendants. These

consequences would not only Include loss of the land, but loss of identity and a

subsistence way of life. (Getches, 11/27/01, ROA at 72; Kanahele, 11/28/01, ~O~ at

72, PI. Ex.43, ROA).

There are other significant collateral consequences which this Honorable Court

must consider. The State now claims that the U.S. Supreme Court decision in this case

will forever bar this Honorable Court's review of Osorio's and all Hawaiian claims

relating to the ceded lands. It is also clear that the State will use these arguments to

prevent Hawaiians from ever receiving a share oftha ceded lands when the Native

Hawaiian Reorganization Act, H.R. 2314 (Akaka Bill) passes. The Akaka Bill provides

that the Native Hawaiian Governing Entity may negotiate witn the State and United

States for land, but a dismissal in this case will undermine the legal and historical bases

upon which Hawaiians will rely·ln those negotiations. See Akaka Bill, § 8(b)(1 )(A).

C. This Court has Already Ruled That Osorio's Claims are Ripe for Review. his Claims are Still Ripe for Review. and no Legitimate Basis Exists for the State's Contention That his Claims are no Longer Ripe for Review.

13


In OHA v. HCDCH, this Honorable Court has already rejected the State's

arguments that the matter was not ripe for review and held that "the plaintiffs' claims-to

the extent they seek injunctive relief-are ripe for adjudication and, accordingly, hold that

the trial court erred in determining otherwise." 117 Hawai'i at 209, 177 P.3d at 209.

In addressing the ripeness issue, this Court considered the two-prong federal

test as articulated in Rice v. Cayetano, 941 F. Supp. 1529, 1538 (D. Haw.1996) rev'd

on other grounds, 528 U.S. 495,120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000): (1) the

fitness of the issues for judicial decision, i.e. whether the issue is primarily"legal, needs

no further factual development and involves a final agency action, and (2) the hardship

to the parties of withholding court consideration, i.e. whether withholding judicial review

would result in direct and immediate hardship and would entail more than possible

financial loss. 117 Hawai'i at 207-208,177 P.3d at 917-918.

With respect to the first prong, there is no need for further factual development

nor is there any reason for the court to wait for future hypothetical actions of the

executive or legislative branches. The State has itself offered into evidence a 140 page

exhibit of 2269 transfers and exchanges of public trust lands from statehood to 1998.

See Def. Exs. C and 0, ROA. This list has been further supplemented by a list

prepared by the current DLNR Chair in February 2009 documenting those transfers

taking place from 1998 to 2008. See Exhibit 3. This Honorable Court has already

found that there was "no doubt that the issuance of an injunction involve[d] a legal

question;" "the record demonstrate[d] that there [was] no need for further factual

development inasmuch as the facts necessary to decide ripeness [were] currently

before this Honorable Court;" and, although, a final agency action (Le., the transfer of

the parcel from DLNR to HFDC) hard] been taken with regard to the Leali'i parcel," and

had not been taken with regard to the ceded lands in general,

the very nature of the plaintiffs' requested relief-that an injunction issue to protect the corpus of the public land trust until the reconciliation efforts contemplated by the Apology Resolution and related state legislation has been completed-dictates that a judicial decision regarding the issuance of such an injunction is appropriate.

14


117 Hawai'i at 208, 177 P .3d at 918. With respect to the second prong of the test, this

Court held that "[0 ]nce the ceded lands are alienated from the public lands trust, they

[would] be lost forever and [would] not be potentially available to satisfy the

unrelinquished claims of native Hawaiians to the lands, as recognized and

contemplated by the Apology resolution and the related state legislation .... 11 Id.

In addition, this ·Court stated that in granting Osorio's requested injunctive relief,

flit would not be over-stepping 'prudential rules of judicial governance, n because "such a

decision would not involve a determination whether the native Hawaiian people are

entitled to ownership of the ceded lands" and the Court would "need only address

whether an injunction is appropriate to allow resolution of these claims without further

diminishment of the trust res. II Id. And in doing so, this Honorable Court stated that it

uwould allow Congress and/or the state legislature a 'reasonable opportunity to craft

and enforce, • ..• relevant laws consistent with the congressional and legislative calls for

re~onciliation and settlement of native HawaIIan claims." .kL. Neither the enactment of Act 176, nor the U.S. Supreme Court's decision In

Hawaii v. OHA, has had any effect on the ripeness of the instant litigation. Act 176

does not prevent the State from alienating ceded lands. Under the Act, the State needs

only a two-thirds vote of approval to sell ceded lands, while it can exchange ceded

lands at its pleasure unless a majority of the two hQuses of the legislature or a two .. third

majority of one house of the legislature disapproves. And,. in the instance of 2007

Haw. Sess. Laws, Act 104, §§ 1 and 2, no approval is needed to transfer lands to

certain eleemosynary organizations. It is obvious in a review of the 1998-2008 list of

transfers that the State has made use of the exchange mechanism to circumvent the

characterization of transfers of public trust land to the Boy Scouts (323.962 acres of

conservation for 1.14 acres of Industrial). Maul Land and Pine (233 acres in

conservation for 1.45 acres in industrial). and Earl Bakken (9 acres for 3 acres on

Kiholo Bay) in 2004 and 2005 as sales. See Exhibit 3. These "exchanges" clearly

demonstrate the Executive Branch's inability to comprehend the uvaluelt Hawaiians like

Osorio place on Hawaii's public lands. This value has been comprehended by this

Honorable Court:

15


Once the ceded lands are alienated from the public lands trust, they will be lost forever and will not be potentially available to satisfy the unrelinquished claims of native Hawaiians to the lands .... Were this court to withhold consideration of plaintiffs' relief the State would be free to alienate the ceded lands from the public trust .... And in so doing, the resulting hardship to the plaintiffs would be obvious ... the loss of land Hself entails a much greater injury 'than possible financial loss.'

117 Hawai'i at 208, 177 P .3d at 918. The same harms that this Court has correctly

recognized still exist, the alienation of ceded lands prior to the reconciliation and the

settlement of native Hawaiian claims by Congress andlor the state legislature, is still

possible, indeed likely.

Furthermore, this Honorable Court has clearly understood the vagaries of the

State's "moratorium" in the instance of the "lifting" of such a moratorium. Id. at 208.

And obviously, this Honorable Court has not been confused by the State's

characterization of the 2004 and 2005 sales as "exchanges." See Exhibit 3.

Irrespective of the U.S. Supreme Court's holding in Hawaii V. OHA. reconciliation

efforts with the Native Hawaiian people and the resolution of native Hawaiian claims,

including "broader moral and political claims for compensation for the wrongs of the

past (see 129 S.Cl at 1445,173 L.Ed.2d at 345),11 certainly have not been concluded.

III. CONCLUSION

The Supreme Court of Hawaii has an affirmative duty to uphold the trust

obligation owed to Native Hawaiian beneficiaries of the public lands trust. This

Honorable Court is itself, the highest authority in the interpretation of Hawaii property

and trust law, and its published opinions extend back to 1848. The record reveals that

since the time of the imposition of Statehood, the State trustees (executive, legislative,

and administrative) have acted in the Interest of the general public to the detriment of

the native Hawaiian beneficiaries of the trust and that the State practice of alienating

trust lands has substantially diminished the land based trust res. The interests of

justice require that the Hawaii Supreme Court address and not dismiss Osorio's prayer

for an injunction.

16


Judge Heely's Order confirmed the right of Native Hawaiians to pursue claims

against the State for breach of trust, including the alienation and resulting diminishment

of public lands trust corpus. See Exhibit 3. In granting Native Hawaiians access to the

Courts, Judge Heely eloquently ruled in parts:

~9. The Court concludes that the present claim is analogous to the claim presented in Kaniolani Park Preservation SOCiety v. City and County of Honolulu, 69 Hawal'i 569,751 P.2d 1022 (1988), where the Hawaii Supreme Court in a powerful opinion written Justice Padgett reaffirmed that the courts must be open to beneficiaries who seek to protect their interests in litigation involving public trusts (emphasis added).

~10. The Court further concluded that the present claim must be evaluated in light of the entire sweep of historY in Hawaii. because development of law is an ongoing process (emphasis added); as U.S. Supreme Court Justice Oliver Wendell Holmes explained: "The life of law has not been logic, it has been experience." O.W. Holmes, The Common Law, 1 (1923).

1[11. If this Court were to grant Defendants' motion for summary judgment, it would close the courthouse door to the beneficiaries of this trust and prevent the persons for whom the trust has been established from challenging disposition of lands that are their very birthright.

~12. The Court notes that Defendants' motion for summary judgment is inconsistent with the State Motto of the State of Hawaii which is imprinted in the seal of the State of Hawaii and included in each volume of the Hawaii revised Statutes: "Ua Mau Ke Ea 0 Ka Aina I Ka Pono. R This Court concludes that the life of our land would most assuredly not be filled with righteousness if the beneficiaries of our Dublic land trust were prevented from coming to court to challenge how their lands are being handled by those responsible for overseeing the trust (emphasis added).

This Court has the unique opportunity to examine the entire sweep of history in

Hawai'i and the evolution of Hawai'i law in the context of determining the standing of

Native Hawaiian individuals, such as Osorio, who are descendants of the "races of

people inhabiting the Hawaiian islands prior to 1778, that never directly relinquished

their claims over their national lands. II See 1993 Haw. Sess. L. Act 359.

This Honorable Court has already provided an in-depth historical overview, which

forms the genesis of the issues presented in this case. See OHA v. HCDCH, 117

Hawai'i 174 at 181-186,177 P.3d at 891-896 (2008). It is important to remember that

historical overview included the State's 1993 legislative enactment which independently

imposes a fiduciary duty upon the State to preserve the corpus of the public lands until

17


claims of native Hawaiians to the ceded lands have been resolved. See 1993 Haw.

Sessa L. Act 359.

The history and ongoing development of law in Hawai'i, dictate the reasonable

inclusion of Hawaiians like Osorio as beneficiaries of the public lands trust, with the

ability to seek enforcement of trust obligations of the State to preserve th~ trust corpus

until claims of native Hawaiians to the ceded lands have been resolved.

Beginning with the passage of Haw. Rev. Stat. § 7 ... 1 in 1859, Haw. Rev. Stat.

§ 1-1 in 1892, and the amendments to the Hawai'l State Constitution in 1978, Hawai'i

has taken affirmative measures to ensure constitutional protections to· Hawaiians to

protect and preserve their access to lands and their traditional, customary, and

subsistence practices thereon. Hawaii Constitution. Article XII. § 7; Article I, § 1.

The Hawai'i Supreme Court has extended these foundational, constitutional

protections and lowered barriers to standing to enforce the State's trust duties to the

broadest class of Hawaiian beneficiaries, including Native Hawaiian similarly situated as

Osorio. See Pele Defense Fund v. Paty, 73 Hawai'i 597, 837 P.2d 1247 (1992); .

Kaoiolani Park Preservation Society V. City and County of Honolulu, 69 Hawai'i 569,

751 P.2d 1022 (1988). Such a judicial posture is both reasonable and in keeping with

the State's motto, adopted from that of the Kingdom of Hawai'i.

The evolution of Hawaiian law has led to the legislative enactment of Act 359 in

1993. Act 359 re-affirms the State's efforts toward reconciliation includes all Hawaiians

who are descendants of the "races of people who inhabited the Hawaiian islands prior

to 1778." 1993 Haw. Sessa L. Act 359.

It deserves mention that the United States has acknowledged the grievous injury

to all [n]ative Hawaiians, due t~ the illegal overthrow of the Hawaiian Kingdom in 1893,

apologized for its role in the illegal overthrow and expressed its commitment to provide

a proper foundation for reconciliation between the United States and the Hawaiian

people. See Public Law No. 103-150, 107 Stat. 1510 (1993). Significantly, the United

States' expressed admission against interest, apology and commitment to reconciliation

was directed to "any individual who is a descendent of the aboriginal people who prior

18


to 1778, occupied and exercised sovereignty in the are that now constitutes the State of

Hawaii." Id.

Accordingly, this Court must extend to Native Hawaiians such as Osorio standing

as a beneficiary of this trust so he and others similarly situated may have access to the

"courthouse door" in order to challenge the disposition of lands that are his very

birthright.

19


Based on the foregoing authorities and contentions 1 Plaintiff-Appellant Jonathan

Kamakawiwo'ole Osorio respectfully requests that this Honorable Court deny the

Defendants-Appellees' Motion to Dismiss based on the threshold procedural issues

discussed herein, and that this Honorable Court provide Plaintiff-Appellant Osorio a

reasonable period of additional time to address the remaining issues and to set a

hearing before this Honorable Court so that all matters can be carefully addressed on

this matter that is so critical to the Native Hawaiian people and important to all people of

Hawai'i.

DATED: Honolulu, Hawaii; August £, 2009.

KLiNALULi' ICHARJ);AIWIEHA WURDEMAN

J\1~~~~R~ MILILANI B. TRASK

~--MA

Ho neys for Plaintiff-Appellant ATHAN KAMAKAWIOWOLE OSORIO

20


Blood Quantum Distribution of the Native Hawaiian Population by Area and Blood Quantum: 1984.

AU Blood Quantum

Area Bawdaas

100% BawaUan 58-'9% Hawaiian Less Than 500/0

O'ahu ........... 148,136 5,094 3.4% 51,785 35.0% 91,257 61.6%

Honolulu ...... 42,510 2,987 7.0% 17,708 41.7% 21,815 51.3%

Leeward .•..... 67,583 1,371 2.0% 24,837 36.8% 41,375 61.2%

Windward ..... 38,043 736 1.9% 9,240 24.3% 28,067 73.8%

Kaua'i ........... 10,082 313 3.1% 3,205 31.8% 6,564 65.1%

M~ui .•....•.•... 19,288 1,027 5.3% 8,201 42.5% 10,060 52.2%

Mololca'ilLina'i ... 4,286 301 7.0% 2,243 52.3% -1,742 40.6%

Hawai'i ..••...... 26,684 1,509 5.7% 7,275 27.3% 17,900 67.1%'

State ofHawai'i 208,476 8,244 4.0% 72,709 34.9% 127,523 61.2%

Note: The-data is based on a sample and is subject to sampJiDg variability.

Source: Office of Hawaiian Mails. Population Survey/Needs Assessment, Final Report. (Honolulu, 1986).

Although 61.8% o/the 100% Hawaiian population in the State resided on O'ahu, they comprised only 3.4% 0/ the Native Hawaiian population 011 the island.

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Ntllitle HawtliilJn DlJltI Book


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• • SHERRY P. BRODER #1880 Attorney at Law

• ~ ~ .. - .

llr t9...cur aun ~T' IE OF MWan

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A Law Corporation Grosvenor Center, Suite 1800 IS96 JUl 23 PN I: It; 733 Bishop Street .Hon~l\~lu, Hawaii 96813 Telephone No.: (808) 531-1411

Attorney for Plaintiffs OFFICE, OF HAWAIIAN AFPAIRS, ABRAHAM AlONA, MOANIKE' ALA AKAKA, ROWENA AKANA, BILLIE BEAMER, A. FRENCHY DESOTO, CLAYTON H. W. HEE, KINA' U BOYD KAMALI I I, MOSES K. KEALE, SR., and SAMUEL L. KEALOHA, JR.

JERVIS, WINER & MEHEULA WILLIAM MEHEULA #2277 Pal! palms Plaza 970 North Kalaheo Avenue Suite A-JOO Kailua, Hawaii 96734 Telephone No.: (808) 254-5855

HAYDEN ALtJLI #3388 Grosvenor Center, Mauka Tower 737 Bishop Street', Suite 187S Honolulu, Hawaii 96813 Telephone No.: (808) 533-3388

DAVID LIU #6298 724 Xamoku Street, No. 3 HODQlulu, Hawaii 96826 Telephone No. : (808) .94'9-3,924

Attorneys for Plaintiffs PIA THOMAS ALULI, JONATHAN KAMAXAWIWO'OLE OSORIO, CHARLES KA' AI' AI and KEOKI MARA KAMAKA XI' ILl

.... -.

~ ;L~~-

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII OFFICE OF HAWAIIAN AFFAIRS, ) CIVIL NO. 94-4207-11 et al., ) (Deolaratory Judgment)

) ) ORDER DENYING DEFENDANTS' Plaintiffs, ) MOTION FOR PARTIAL SUMMARY ) JUDGMENT AND MOTION POR VB. ) RULB 54 (b) CERTIFICATION ) PILED 12/15/95 HOUSING FINANCE & DEVELOPMENT )

EXHIB1T--i<-


ORDER DENY1NG DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION FOR RULE S4eb) CERTIFICATION FILED 12/15/95

Defendants' Motion For Partial Summary Judgment and Motion For Rule 54(b) Certification filed December 15, 1995 came on for hearing before the Honorable DANIEL G. HBELY on April 2, 1996. SHERRY P. BRODER, WILLIAM MEHEULA, HAYDEN ALULI, and KAWlKA LIU appeared on behalf of the Plaintiffs; Plaintiff Trustees CLAYTON H. w. HEE, MOANIltE'ALA AKAKA, ABRAHAM AlONA, and SAMDEL KEALOHA, and Plaintiffs JONATHAN KAMAKAWIWO'OLB OSORIO, CHARLES KA' AI' AI and KEOleI MAKA KAMAKA KI' ILl appeared; and SONIA FAUST, JOHN WONG, CYNTHIA CHARLTON and CELIA JACOBY appeared on behalf of the Defendants. The Court having carefully considered said motion, the memoranda, affidavits, exhibits, records relating thereto, and the arguments of counsel, makes the following findings and conclusions of law:

1. Rule 56 ec) of the Rules of Civil Procedure limits the summary judgment remedy to situations when (a) there is no genuine issue of material fact and (b) it is clear that the movant is entitled to judgment as a matter of law.

2. When a court reviews a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Panar v. Americana Hotels. Inc., 65 Haw, 370, 652

2


.. I ... • P.2d 625 (1982).

• . ,

3 . Plaintiffs' claim in the present case is that Defendants should not be permitted to sell, alienate, or otherwise transfer lands that derive from the rleeded lands fl - -i. e., the lands that were "ceded from the Republic of Hawaii to the United States in 1898- - (a) because these lands were illegally taken without compensation or consent from the Kingdom of Hawaii pursuant to the illegal overthrow in 1893 and (b) because these lands are now part of a public land trust which lists the Native ,Hawaiian people as one of the principal beneficiaries of this trust.

4. The United States Congress has issued the following formal findings in the Public Law 103-150 (1993), entitled liTo J\cknow~edge the lOath Ai'lniversary of the Jafiuary 17·, 1893 OVerthrow of the Kingdom of Hawaii, and to Offer an Apology tp Native Hawaiians on Behalf of the United States for the Overthrow of .the Kingdom of Hawaii," which was signed by President William Clinton on November 23, 1991:

"Whereas the Republic of Hawaii also seeded 1,800,000 acres of ground government and ~ public lands of the Kingdom of Hawaii without the consent of or compensation of the native Hawaiian people of Hawaii or their sovereign govemment •.• "

"Whereas the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to United States, either through their monarchy or through a plebescite or referendum "

"Whereas the native Hawaiian people are determined to preserve, develop and transmit to future generations their ancestral territory, and their cultural identity in

3


• • accordance traditional language and

with their own spiritual and beliefs, customs, practices,

social institutions."

Resolution concludes . by acknowledging the historical dignificance of the "illegal overthrow of the Kingdom of Hawaii on January 17, 1893," recognizing the importance of the ceded lands to the Native Hawaiian people, and urging that efforts be undertaken "to support reconciliation efforts between the United States and the Native Hawaiian people."

5. Recent Hawaii Supreme court decisions have recognized and reaffirmed that Native Hawaiians have extremely important cultural, religious, social, and economic interests in lands throughout the Hawaiian islands. ~, ~, Public Access Shoreline Hawaii y. Hawaii County Planning CommiSsion, 79 Haw. 425, 903 P . 2d 1246 (1995), Pele Defense Fund y. Paty. 73 Haw. 578, 831 P.2d 1247 (1992), Abuna y. Department of Hawaiian Homelands, 64 Haw. 327, 640 P.2d 1161 (19B2).

6. A letter from the former Attorney General to the Chairperson of the Office of Hawaiian Affairs dated September 23, 1994, recognizes the claims of Native Hawaiians that are being asserted with respect to the ceded lands.

7. The Court is persuaded that cases involving American Indians are relevant in demonstrating that Defendants' motion for summary judgment should not prevail. Among the relevant cases are Fort Berthold Reservation v. United States, 390 F.2d 6B6 (Ct.cl. 1968); Lane v. Pueblo of Santa Rosa, 249 U.S . 110 (1919); Chippewa Indians v. United States, 301 U.S. 358 (1937); United States v,

4


" . . . • • .' •

Creek Nation, 295 U.S. 103 (1935): Pyramid Lake . Paiute Tribe v. Morton, 354 F.Supp. 252 (D.D.C. 1973); Shoshone Tribe v. United States, 299 U. S. 476 (1937): and Choate y. Trapp, 224 U. S.. 665 (1912) .

8. Because the State of Hawaii is the trustee of these ceded lands and has a trust relationship with the Native Hawaiian people, the State has important responsibilities that must be followed in administering this trust corpus. ~, ~, Ahuna. supra.

9. The Court concludes that the present claim is I analogous to the claim presented in Kapiolani Park Preservation· ~

Society v. City and County of Honolulu, 69 Haw. 569, 751 P.2d 1022 ! (1988). where the Hawaii Supreme Court ill a powerful opinion; ,1

.. written by Justice Padgett reaffirmed that the courts must be open~ .~j to beneficiaries who seek to pro~ect their interests in litigationl ~ involving public trusts.

10. The Court further concludes that the present claim must be evaluated in light of the entire sweep of history in Hawaii, because the development of law is an ongoing process; as U.s. Supreme court Justice Oliver Wendell Holmes explained: liThe life of the law has not been logic, it has been experience. II O.W. Holmes, The Common Law 1 (1923).

11. If this Court were to grant Defendants' motion for summary judgment, it would close the courthouse door to the beneficiaries of this trust and prevent the persons for whom the trust has been established from challenging the disposition of

5


. . .;,

.. • lands that are their very birthright.

• ., . .

12. The Court notes that Defendants' motion for summary judgment is inconsistent with the State Motto of the State of Hawaii, which is imprinted in the seal of the State of Hawaii and included in each volume of the Hawaii Revised Statutes: "Ua Mau Ke Sa 0 Ka Aina I Ka Pono." This Court concludes that the life of ou, land would most assuredly not be filled with righteousness if th~1:' beneficiaries of our public land trust were prevented from comin~'j to court to challenge how their lands are bei~g handled by thos~l

~:t responsible for overseeing this trust.

13. With respect to Defendants' request for Rule 54(b) certification, the Court finds and concludes that granting this relief at this time would not be likely to lead to a more speedy resolution of this litigation. ~ Mason v. later Resources Intern., 67 Haw. 510, 694 P.2d 388 (1985), and Jenkins y. Cades Shutte Fleming and Wright, 76 Raw. 115, 869 P.2d 1334 (1994).

NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

1. Defendants' Motion For Partial Summary Judgment is denied; and

2. Defendants' request for certification under Rule 54(b) is denied.

DATED: Honolulu, Hawaii,

Judge

6


.. . : ..• . -..... • • APPROVED AS TO FORM:

• ~ .

RE: Office of Hawaiian Affairs« et al. va, Housing Finance Deyelopment Corporation, Civil No. 94-4207-11; Order Denying Defendants' Motion For Partial Summary Judgment and Motion For Rule 54{b) Certification Filed 12/15/95

7


I ~. .

I.IHDAUKGLE GO~ERHOR01ftAWAlJ • •

I

I STATE OFHAWAll I

DEPARTMENT OF LAND AND NATURAL RESOURCES

POST OFFICE BOX 621 I HONOWW. HAWAII 96II01l 1

February 25, 2009

The HonorableMaileS.L.Shimabukuro 45th House District Hawaii State Capitol, Room 406 415 South Beretania Street Honolulu, Hawaii 96813

Dear Representative Shimabukuro:

i I

lAURA H. THIELEN CHo\I\IIiRSl~

lla.\llDora.UON-'D~n.'RIILIU'iSOl~ aJ)DIlS$lO!I,ow\\".,tD.IUl$Q.'RCE~o\c;Il).l£lif

RUSSELL V, TSUJI FIlUTDD'UIY

ICtIC Co kA \\'AlIAR.\ IlIQ1.IJ'Y fIGUJ:TQ!., U'ATr"l

Thank you fur your memorandum dated February 4. 2009 re~esting our Department produce a listing of ceded land sales after 1998. Attached for your use is a listj,ng my staff prepared covering sales transaction from 1998 to 2008. If there are abY questions, please feel free to contact Mr. Morris Atta, Administrator for Land Division at 5~7-0422. Thank you ..

I

Sincerely,

~Ien ~~~~~s!:e

Cc; Board Member

I

EXH~BIT.~ ... i


L.\JU 'U'~" \.IUUll\y UI I lalVall U.VolO ip.,O,UUU vVloemng

Ma. Kea Agribusiness Co. .10.800 Abandoned Road

LOO28300 2.159 Easement Act312.SLH

LPG 15791 County of Kauai 45.227 $0 1991 LPG 15912 KCOMCorp 0.048 ;$8,550 Remnant

Ae1312.8LH LPG 15785 County of Maui 6.610 . $0 1991

Act312.SLH LPG 15786 County of Maul 8.020 : $0 1991

Act 312. 8LH LPG 15787 County of Maul 22.937 $0 1991

Hawall Community LOD28298 Development Authority 6.225 $0 Aet86. SLH 1990

Sale of ceded :

lands in 1999 t I Old Mamalahoa

LOD 28323 County of Hawaii 0.103 I

$0 Highway Department of Hawaiian Home : Fee Simple

LPG 15923 Lands 367.000 $0 Conveyance Department of HawaIIan Home ! Fee Simple

LPG 16926 Lands 167.657 I $0 Conveyance AcI262.SLH

LPG 15927 Hawaii Health Systems Corp. 19.847 $0 1996 LPG 15919 County of Maul 0.363 $0 Kauhikoa Road LOD 28377 Frank & Eloise Santos 1.314 ! $250 Remnant

Department of Hawaiian Home Fee Simple LPG 15921 Lands 2.100 i $0 Conveyance

Department of Hawafian Home : Fee Simple LPG 15925 Lands 656.297 $0 Conveyance LOD28344 U. Yamane, Ltd. 0.041 :$5,100 Remnant LOD28343 Kazuo & Mary Yamane 0.041 $10,200 Remnant LOD 28381 Christina & Bertll We~efert 0.047 :$6,400 Reclaimed Land

Sale of ceded lands In 2000

I Act 312, SLH

LOD 28408 County of Maui 5.697 • $0 1991 Act 312. 8LH

LOD 28410 County of Maui 0.110 : $0 199'1 I AuwaioUmu & . Nehoa Street

LOD 28368 Cily & County of Honolulu 0.094 : $0 WIdening lwilei Road

LOD 28412 City & County of Honolulu 0.063 : $0 Widening LOD 28417 City & County of Honolulu 28.800 $0 Haiku Stairs

Act 262, SLH LPG 15933 Hawaii Health Systems Corp. 33.742 i $0 1996

Sale of ceded i lands In 2001

.. :

Department of Hawaiian Home ; Fee Simple LPG 15941 Lands 200.000 SO Conveyance

Lynn Oshiro & Jay LPG 15942 Cunningham 0.158 i$2,413 Remnant LPG 15943 James & 8hlzue Oshiro 0.192 ,$2,938 Remnant LPG 15944 Robert & Emma Hamilton 0.756 $12.150 Remnant

Fifth Street . -- -- ._- - .... ~ .. ,,"" : _" ' •• tj_._, __


LOD28460

LOD 28478


Kaumana Drive LPG 15955 County of Hawaii 0.225 $0 Curve

Oepartment of Hawaiian Home Fee Simple LPG 15951 Lands 348.000 $0 Conveyance LPG 15960 Georgiana Lopez 0.016 ;$4.125 Remnant

Department of Hawaiian Home Fee Simple LPG 15967 Lands 31.580 : $0 Conveyance LPG 15947 Manouchehr & Lily Azad 0.132 :$1.257 Remnant

Department of Hawaiian Home Fee Simple LPG 15963 Lands 384.754 $0 Conveyance

, Act265.SLH LOD28550 Hawaii Health Sr.;tems Corp. 0.151 $0 1969 LPG 15761 Alfred & Valerie Medford 0.024 $11.700 Reclaimed Land LPG 15950 Ryosuke Mfyahlra 0.531 $16.300 Remnant LOD28505 Malia Investment Corpora lion 0.031 ~$4,000 Reclaimed Land


. LPG 15898 David & Claire Bernabe 0.024 '$1,780 Remnant LPG 15937 Queen Lllluokalani Trust 0.193 1$2,700 Remnant

I Klkala-Keokea Traffic Signar

LPG 15964 County of Hawaii 0.118 : $0 Improvements Kailua-Keauhou

LPG 15969 County of Hawaii 0.001 I $0 Road Deparment of Hawaiian Home i Fee Simple

LPG 15972 Lands 18.200 $0 Conv~}'i!nce LPG 15973 William & Lenore Vincent 0.460 ;$1,500 Remnant LPG 15978 Eleanor Mlrikitani 0.088 $27,000 Remnant LPG 15974 Andrew & Harriett Doughty 0.034 $38,450 Remnant

Satisfied SSA LPG 15971 Rosa Heavey 0.146 !$6,100 4753 LOD28680 Wallace & Betsy Yamamoto 0.038 $35,000 Reclaimed Land

Sale of ceded lands in 2004 LPG 15959 County of Hawaii 0.633 $0 Roadway Lot E LPG 15966 Mahoney Contracting 1.088 $15.885 Remnant

Lanlkaula Street : Extension, Kawili

Street extension. Kapiolani Street

LPG 15977 County of Hawaii 10.954 ! $0 Extension LPG 15979 ADN Corporatfon 0.246 i$5.570 Remnant LPG 15980 ADN Corporation 0.171 :$3,884 Remnant LPG 15982 Ellen Garver 0.018 1$2,388 Remnant

LPG 15983 Keahou Resort Dev Co~ etal. 0.252 !$7,300 Remnant .. - -- . .... _- ._- -


Lr-~ I<.I~O I

; . LPG 15984 0.111

0.011

Sale of ceded lands in 2005

Mamalahoa Highway

LPG 15993 County of HawaII 0.076 $0 Widening LPG 15997 Geraldine Ung, etal. 0.074 $12,100 Remnant LPG 16000 Thomas Shiroma. etal. 0.057 j$1,OOO Remnant LPG 16002 Kelkl Aina I. LLC 0.152 $16,600 Remnant

Department of Hawaiian Home Fee Simple LPG 16004 Lands 50.156 $0 Conveyance LPG 15995 Hldeo & Frank Nonaka 0.112 $30.000 Remnant LPG 15994 Merton Lau 0.205 $240,000 Remnant

Housing & Community Act 330, SLH LPG 15996 Development Corporation 8.114 . $0 1993 LPG 16001 Tex Investments LLC 0.062 $30,000 Remnant LOD28768 Michael Fergus 0.118 $310,000 Reclaimed Land

LOD 28501 Leonard Jaffe & Miles Shfratori 0.090 $60.000 Reclaimed Land LOD28510 Sherryl Buecher 0.247 $95,000 Recra(med Land LOD28767 Martin Gillan IV 0.047 $35.000 Reclaimed Land

Sale of ceded lands in 2006 :

LPG 15590 Carrie Luke-Knotts 0.068 -$4.466 Remnant Department of HawaIIan Home Fee Simple

LPG 16008 Lands 185.433 $0 Conveyance The Avatarlc Ruchfrasala of

LPG 15952 Adldam 1.262 $31,550 Remnant , Act262,SLH

LPG 16003 Hawaii Health System Corp. 61.021 $0 1996 LPG 16006 Eleanor Tokunaga 0.014 $2;200 Remnant LPG 16011 Rachel Moromisato, etal. 1.072 $63,000 Remnant LOD 28791 Jill Miller 0.042 $33,300 Reclaimed Land LOD28792 Robert & Gretchen Gould 0.005 !$2,800 ReclaImed Land LOD 28808 Kaytene Kamda 0.033 $52,000 Reclaimed Land LOD 28815 Daniel & Paulette Stone, Jr. 0.155 $32,000 Reclaimed Land LOD28825 Stevan Bailey 0.015 S16,000 Reclaimed Land LOD 28826 Stevan Bailey ,- 0.012 - $13,000 Reclaimed Land LOD 28841 John Perry 0.501 $1,000 Reclaimed Land LOD 28858 Alvin & Anne Maeda 0.016 $55,000 Reclaimed Land

Sale of ceded lands in 2007

Roadway Lots ' LPG,1,6010 County of Hawaii 8.131 $0 Klksls Keokea LPG 16012 Beth Clark 0.073 $70,000 ReclaImed Land

: Villages of Hawaii Housing Finance & Lafopua Lots 7 &

LPG 16019 Development Corporation 0.220 $09 LPG 16021 Stacey Elliott 0.195 $14,000 Remnant

Department of Hawaiian Home ! Fee Simple LPG 16013 Lands 8.344 $0 Conveyance LPG 16016 ASN Asset Management Co. 0.015 $50,000 Remnant . -- . _ .. - _. .. - __ ft •• • "' .. Aft" "" ______ 6


ntlwtlll nUU::SIIIY rlllCmce 01

LOD28875 , t ,.


Department of Hawaiian Home Fee Simple LPG 16020 Lands 44.797 $0 Conveyance LPG 16009 Basilio Fuertes, etal. 0.090 $21,000 Remnant

LPG 16022 Kenneth & Kristine Lesperance 0.026 $12,200 Remnant Assoc of Apt Owners of Sea :

LPG 16025 View 0.042 $63,529 Remnant

. i


. ,. .... """ • ..,..,-rv ~GlI ""ClI\I\C:;11 U.VUU ,pU

. ..- -.. ' e.kken conveyed to State of all 3 acres valued at • LOD28469 $3.000,000

Land exch!nge :

In 2004 State of HawaII conveyed to

LPG 15985 Boy Scouts of America 56.962 $0 State of Hawaii conveyed to

. LPG 15986 Boy Scouts of America 238.000 $0 State of Hawaii conveyed to

LPG 15987 Boy Scouts of America 29.000 $0 Boy Scouts of America conveyed to State of Hawaii 3 industrfallots totaling 1.14

LOD 28708 acres valued at $1,209,000 Slate of Hawaii conveyed to

LPG 15991 Maul Land & Pineapple Co. 223.000 $0

Maul Land & Pineapple Co. conveyed to State of Hawaii 4 Induslrfallots totaling 1.455 I

LOD 27514 acres valued at $1,610,000

Land exchange In 2005

State of Hawaii conveyed to LPG 15913 Department of AgrIculture 11.500 $0

Deparbnent of Agrfculture conveyed to State of Hawaii 37.590 acres valued at

LOD 28458 $52,525 !

State of Hawaii conveyed to Department of Hawaiian Home

LPG 15949 Lands 5.153 $0 Department of Hawaiian Home Lands conveyed to State of I

Hawaff 25.686 acres valued at Lao 15949 $12.400


S.C. NO. 25570


OFFICE OF HAWAIIAN AFFAIRS, et al. ,

Plaintiffs-Appellants, .

vs.

HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAII, (HCDCH), et al.,

Defendants-Appellees.

) CIVIL NO. 94-4207-11-SSM ) (Declaratory Judgment) ) ) ) ) ) ) ) ) ) ) )

AFFIDAVIT OF YUKLIN ALULI

STATE OF HAWAII ) ) SS:

CITY AND COUNTY OF HONOLULU )

YUKLIN ALULI, being first duly sworn upon oath, deposes and says: . '.

1. Affiant is licensed to practice before all courts in the State of Hawaii;

2. I am an attorney licensed to practice law in the State of Hawai'i and I

am co-counsel for Plaintiff-Appellant Jonathan Kamakawiwo'ole Osorio in the above-

entitled matter. .

3. I am competent to testify to the matters set forth herein and I do so

based on personal knowledge.

4. Attached hereto as Exhibit "1" Is a true and correct copy of pertinent

page from the Native Hawaiian Data Book that was published by the Office of

Hawaiian Affairs In 1998.


5. Attached hereto as Exhibit "2" is a true and correct copy of the Order

Denying Defendants' Motion for Summary Judgment filed July 23, 1996.

6. Attached hereto as Exhibit "3" is a true and correct copy of a

February 25, 2009 letter addressed to Representative Mane S.L. Shimabukuro from

Laura H. Thielen, Chairperson of the State of Hawaii Department of Land and

Natural Resources, and an attachment of a list of ceded lands sales and exchanges

for the period of 1998-2008, that I obtained from the State of Hawaii House of

Representatives.

FURTHER AFFIANT SAYETH NAUGHT.

YUiNALlfLI •

This two-page "Affidavit of Yuklin Aluli", which document is dated August ~, 2009, was subscribed, sworn to, and acknowledged before me this 5 TH day of August, 2009, in the First Circuit of the State of Hawaii, by Karen S. Jones.

2


s.c. NO. 25570


OFFICE OF HAWAIIAN AFFAIRS, et al. ,

) CIVIL NO. 94-4207-11 ooSSM ) (Declaratory Judgment) )

PlaintiffsooAppellants, ) )

vs. ) )

HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAII, (HCDCH), et al.,

) ) ) )

Defendants-Appellees. ) )

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document

will be duly served, upon filing of said document, to the following parties by either

hand delivery or United States mail at their last known address:

SHERRY P. BRODER JON M. VAN DYKE Law Office of Sheny P. Broder Davies Pacific Center 841 Bishop Street, Suite 800 Honolulu, Hawaii 96813

Attorneys for Plaintiffs OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA, HAUNANI APOLIONA, DANTE CARPENTER, DONALD CATALUNA, LINDA DELA CRUZ, COLETTE MACHADO, BOYD P. MOSSMAN, OSWALD STENDER, JOHN WAIHEI, IV

MELODY K. MACKENZIE 579 Kaneapu Place Kailua, Hawaii 96734

Attorney for Plaintiff OFFICE OF HAWAIIAN AFFAIRS


WILLIAM K. MEHEULA Winer Meheula & Devens LLP Ocean View Center 707 Richards Street, Suite PH 1 Honolulu, Hawaii 96813

HAYDEN·ALULI 2180 Kahookele Street Wailuku, Hawaii 96793

Attorneys for Plaintiffs PIA THOMAS ALULI, CHARLES KA'AI'AI and KEOKI MAKA KAMAKA KI'ILI

MARK J. BENNETT WILLIAM J. WYNHOFF Department of Attorney General, State of Hawaii 465 South King Street, Room 300 Honolulu, Hawaii 96813

Attorneys for Plaintiff STATE OF HAWAII

DATED: Kailua, Hawaii, August 5, 2009.

Attorneys for Plaintiff JONATHAN KAMAKAWIWO'OLE OSORIO

2


Documents

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