House District 13

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Hawaiian Affairs Committee discusses the U.S. Supreme Court’s Ruling and prompts both sides to seek a settlement and agreement to a proposed compromise bill

In News Release, Photos, Videos on April 9, 2009 at 9:06 am


Honolulu. The House Committee on Hawaiian Affairs held an informational briefing today on the United States Supreme Court’s ruling and “What’s Next.” It was both Attorney General Mark Bennett and attorney at large Bill Meheula who gave their interpretation of the ruling and described in their own words a proposed comprised draft amendment to SB 1677 by expressing that this could be the best policy on the sale and transfer of ceded lands the Legislature could possibly support.

Click here to see video of Rep. Mele Carroll’s comments after the 4/8 hearing

Both Attorney General Mark Bennett and Attorney Bill Maheula explained that in the proposed compromise language, it will establish a new part in Chapter 171, HRS, applicable to certain state lands which include both ceded and other state lands.

The language includes that any sales of certain state lands are subject to legislative approval. If the legislature fails to approve the concurrent resolution by at least a two-thirds majority vote of both houses, the transaction shall not be consummated by the state department or agency.

The state department or agency proposing to sell any state land listed under subsection (a) shall submit for introduction to the legislature a concurrent resolution for review of any sale of state land. The concurrent resolution shall contain the following information: the location and area of the parcels of land to be sold; the appraisal value of the land to be sold; the name of all appraisers performing appraisals of the land to be sold; the date of the appraisal valuation; the purpose for which the land is being sold; and a detailed summary of any development plans for the land to be sold.

This proposed draft would exempt remnants, licenses, permits, easements, leases, and land exchanges conforming with section 171-50, HRS from legislative approval of sale. Disapproval by resolution of exchanges of public land as defined in chapter 171, HRS occurs by removing disapproval by two-thirds vote of either the Senate or the House, and retaining disapproval by majority vote of both houses of the Legislature. The department shall submit for introduction to the legislature a concurrent resolution, single house resolution, or both, for review of action on any exchange deeds, which will be executed by the parties together with the required information such as: the location and area of the parcels of land to be exchanged; the value of the lands to be conveyed by the State and the private party; the name or names of the appraiser or appraisers; and the date of the appraisal valuation.

Another consideration added to this language is that the Office of Hawaiian Affairs would be notified of any proposed transfer or exchange of “ceded lands.”

“The reason why we are recommending this proposed language to SB 1677 is because we believe it is fair,” said Bill Meheula, who represent the four native Hawaiians who originally filed the lawsuit. “The bill is doable in the sense that we are confident that both houses could support it as well as the Governor probably approving it.”

Attorney General Mark Bennett said, “If there are no current plans to sell any ‘ceded lands’ by the administration and the Legislature has a pre-approval process, then passing this bill and ending the lawsuit is beneficial.”

In testimony on other bills proposing a moratorium on the sale of “ceded lands,” the Attorney General had criticized those bills as being in conflict with the Admission Act and said that the bills’ purposes raised the likelihood of an 14th Amendment challenges.

Rep. Mele Carroll asked the Attorney General for his opinion on a bill that proposed a sunset date on a moratorium. The Attorney General said that a bill dealing only with the sale of “ceded lands” and not exchanges would less likely have Admission Act problems, and that a moratorium with a one year statute would likely not have any 14th Amendment challenges because it was not enough time for a lawsuit to make it into court.

“What we’re proposing to you is something that doesn’t have a sunset date, and you will be able to reject individual sales,” Attorney General Mark Bennett said.

Vice Chair, Rep. Maile Shimabukuro expressed concerns over the disapproval process of the bill, whereby a single committee chair has the power to pull a resolution before it is heard. If a legislator wants a transfer or exchange of ceded lands transaction to happen, all they have to do is make sure that the concurrent resolution is not heard. This kills the resolution and therefore no disapproval occurs.

Rep. Della au Bellatti made the point today that the legislature doesn’t have to take the recommendation that the Attorney General Mark Bennett and Attorney Bill Meheula is proposing. The Legislature has the power and the ability to set the policy and will have to look at all possibilities.

“I am still in favor of a full moratorium,” said Rep. Mele Carroll, Chairwoman of the House Committee on Hawaiian Affairs. “However, I could live with a sunset date on a moratorium making it one, two, three or even five years to give us some time to discuss, evaluate and come up with a policy that we can all live with, if that is the direction this body wants to move in, our goal should be that the trust is protected, especially if the Legislature cannot reach an agreement on the policy.”

It was noted that all of the clients in this case will need to be consulted on the new proposed language to SB 1677. Bill Meheula is optimistic and confident that this is the way to go because of the uncertainty of the outcome of the Hawaii Supreme Court case should this be argued again. “We may or may not lose everything,” said Bill Meheula. “Reaching a settlement may be our best solution and we are hopeful that the outcome would be just that, so we can dismiss this case without prejudice.”