IN THE SUPREME COURT OF THE STATE OF …...NO. 25570 IN THE SUPREME COURT OF THE STATE OF HAWAI'I OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA, HAUNANI APOLIONA, DANTE CARPENTER, DONALD

NO. 25570

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA, HAUNANI APOLIONA, DANTE CARPENTER, DONALD CATALUNA, LINDA DELA CRUZ,

COLETTE MACHADO, BOYD P. MOSSMAN, OSWALD STENDER, and JOHN WAIHE'E, IV, in their official capacities as members of the

Board of Trustees of the Office of Hawaiian Affairs, PIA THOMAS ALULI, JONATHAN KAMAKAWIWO'OLE OSORIO, CHARLES

KA'AI'AI, and KEOKI MAKA KAMAKA KI'ILI, Plaintiffs-Appellants,

vs.

HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAI'I (HCDCH), ROBERT J. HALL, in his capacity as Acting

Executive Director of HCDCH, CHARLES STED, Chair, STEPHANIE AVEIRO, FRANCIS L. JUNG, CHARLES KING, LILLIAN B. KOLLER, BETTY LOU LARSON, THEODORE E. LIU, TRAVIS THOMPSON,

TAIAOPO, TUIMALEIALIIFANO, Members of the Board of Directors of HCDCH, State of Hawai'i, and LINDA LINGLE, in her capacity as

Governor, State of Hawai'i, Defendants-Appellees. ~I (I)~

APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 94-4207)

~"fl> :, 1"7"j"b ...:II.

o~=v ""t7r- __

~r- .:r .b:z:. .b. ~;:;j <: ."1:.. 0 ~go ~ ""i

ORDER GRANTING, IN PART, PLAINTIFF-APPELLANT JONA~ KAMAKAWIWO'OLE OSORIO'S MOTION FOR EXTENSION OF TIME

TO FILE MEMORANDUM IN OPPOSITION TO DEFENDANTSAPPELLEES' MOTION TO DISMISS OR REMAND TO THE CIRCUIT

COURT FOR LACK OF JUSTICIABILITY OR, IN THE ALTERNATIVE, TO AFFIRM, FILED JULY 15, 2009

(By: Moon, C.J., for the court1)

-..

Plaintiff-appellant Jonathan Kamakawiwo'ole Osorio

moves for an extension of time to file a 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 (motion for extension of time).

This court observes that defendants-appellees in their above

referenced motion to dismiss assert, inter alia, that Osorio

1 Considered by: Moon, C.J., Nakayama, Acoba, and Recktenwald, JJ.i and Circuit Judge Chan, in place of Duffy, J., recused.

-1-

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

(. .

(1) lacks standing, (2) seeks an impermissible advisory opinion,

and (3) raises an unripe issue [hereinafter, the threshold

issues]. If this court were to agree with the aforementioned

contentions, the remaining issues raised by defendants-appellees

in their motion would be rendered moot. Thus, in the interest of

minimizing attorney's fees and judicial resources, it appears

appropriate to bifurcate the aforementioned threshold issues from

the remaining substantive issues raised in defendants-appellees'

motion to dismiss. Accordingly,

IT IS HEREBY ORDERED as follows:

(1) Osorio's memorandum in opposItion -'to -tne'

defendants-appellees' motion to dismiss shall address only the

threshold issues 2 ;

(2) Osorio's motion for extension of time is granted,

in part; and

(3) Osorio's memorandum in opposition shall be filed

no later than two weeks after the filing of this order, i.e., by

Wednesday, August 5, 2009.

DATED: Honolulu, Hawai'i, July 21, 2009.

FOR THE COURT:

We emphasize that, in the event Osorio prevails on the threshold issues, he will be allowed to file a supplemental memorandum in opposition, addressing the remaining substantive issues raised by defendants-appellees in their motion to dismiss. We also emphasize that our reasoning for bifurcating the issues is based solely on considerations of minimizing attorney's fees and judicial resources and is in no way indicative of (nor should be construed as indicating) our view of the merits of the threshold issues.

-2-


S.C. NO. 25570

IN THE SUPREME COURT OF THE STATE OF HAWAII

OFFICE OF HAWAIIAN AFFAIRS; ROWENA AKANA; HAUNANI APOLIONA; DONALD CATALUNA; WALTERMEHEULAHEEN;ROBERTK. LNDSEY, JR.; COLETTE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN WAIHE'E IV, in their official capacities as members of the Board of Trustees of the Office of Hawaiian Affairs; PIA THOMAS ALULI; JONATHAN KAMAKA WIWO'OLE OSORIO; CHARLES KA' AI' AI; and KEOKl MAKA KAMAKA KI'ILI,

Plaintiffs,

vs.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

HA WAIl HOUSING FINANCE AND ) DEVELOPMENT CORPORATION; ) KAREN SEDDON, in her official capacity as ) Executive Director of Hawaii Housing ) Finance and Development Corporation; ) GEORGINA KAWAMURA; CHARLES ) KING; BETTY LOU LARSON; DAVID ) LA WRENCE; THEODORE E. LIU; ) ALLAN LOS BANOS, JR.; RALPH ) MESICK; LINDA SMITH; AND RICHARD ) TOLEDO, JR., in their official capacity as ) members of the Board of Directors of Hawaii ) Housing Finance and Development ) Corporation; STATE OF HAWAII; and ) LINDA LINGLE, in her official capacity as ) Governor, State of Hawaii, )

Defendants. ) )

-------------)

CIVIL NO. 94-4207-1 I-SSM (Declaratory Judgment)

APPEAL FROM THE 1) OPINION OF THE COURT; NOTICE

OF ENTRY, FILED ON December 5, 2002

2) FINAL JUDGMENT ON COUNTS 1, 11 AND III OF PLAINTIFFS' FIRST AMENDED COMPLAINT FILED 7114/95 IN FAVOR OF ALL DEFENDANTS PURSUANT TO HRCP RULES 54(B) AND 58, filed on January 31, 2003

3) ORDER GRANTING MOTION TO EXTEND TIMETO APPEAL, filed January 31, 2003

FIRST CIRCUIT COURT

HONORABLE DANIEL HEEL Y HONORABLE VIRGINIA LEA

CRANDALL HONORABLE KEVIN CHANG HONORABLE GAIL NAKATANI HONORABLE JAMES AIONA HONORABLE COLLEEN HIRAI HONORABLE MARIE MILKS HONORABLE SABRINA MCKENNA Judges


PLAINTIFFS PIA THOMAS ALULI, CHARLES KA'AI'AI, KEOKI MAKA KAMAKA KrILl, OFFICE OF HAWAIIAN AFFAIRS; ROWENA AKANA; HAUNANI APOLIONA;

DONALD CATALUNA; WALTER MEHEULA HEEN; ROBERT K. LNDSEY, JR.; COLETTE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN W AIHE'E IV, DEFENDANTS HA WAIl HOUSING FINANCE AND DEVELOPMENT

CORPORATION; KAREN SEDDON, in her official capacity as Executive Director of Hawaii Housing Finance and Development Corporation; GEORGINA KAWAMURA; CHARLES

KING; BETTY LOU LARSON; DAVID LAWRENCE; THEODORE E. LIU; ALLAN LOS BANOS, JR.; RALPH MESICK; LINDA SMITH; AND RICHARD TOLEDO, JR., in their

official capacity as members of the Board of Directors of Hawaii Housing Finance and Development Corporation; STATE OF HA WAIl; and LINDA LINGLE, in her official capacity

as Governor, State of Hawaii's MOTION TO DISMISS WITHOUT PREJUDICE ALL CLAIMS OF AND TO DISMISS THE APPEAL OF ALL PLAINTIFF/APPELLANTS

EXCEPT JONATHAN KAMAKA WIWO'OLE OSORIO OR IN THE ALTERNATIVE FOR A LIMITED REMAND TO THE CIRCUIT COURT FOR THE PURPOSE OF EFFECTUATING

A DISMISSAL WITHOUT PREJUDICE OF ALL CLAIMS OF ALL PLAINTIFF/APPELLANTS EXCEPT JONATHAN KAMAKA WIWO'OLE OSORIO

MEMORANDUM IN SUPPORT OF MOTION

DECLARATION OF WILLIAM K. MEHEULA

CERTIFICATE OF SERVICE

2

WILLIAM K. MEHEULA (2277) Meheula & Devens LLP 707 Richards Street, PH 1 Honolulu, Hawai'i 96813 Telephone: (808) 254-5855

HAYDEN ALULI (3388) Grosvenor Center, Mauka Twr. 737 Bishop Street, Suite 1875 Honolulu, Hawai'i 96813 Telephone: (808) 533-3388

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


3

SHERRY P. BRODER, ESQ. (1880) 841 Bishop Street, Suite 800 Honolulu, HI 96813

Attorney for Plaintiffs OFFICE OF HAWAIIAN AFFAIRS; ROWENA AKANA; HAUNANI APOLIONA; DONALD CATALUNA; WALTER MEHEULA HEEN; ROBERT K. LNDSEY, JR.; COLETTE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN WAIHB'E IV

MARK J. BENNEIT, ESQ. (2672) A. SONIA FAUST, ESQ. (0627) Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813

Attorneys for Defendants HOUSING FINANCE AND DEVELOPMENT CORPORATION, et al.


PLAINTIFFS PIA THOMAS ALULI, CHARLES KA' AI' AI, KEOKI MAKA KAMAKA KrILl, OFFICE OF HAWAIIAN AFFAIRS; ROWENA AKANA; HAUNANI APOLIONA;

DONALD CATALUNA; WALTERMEHEULA HEEN; ROBERT K. LNDSEY, JR.; COLETTE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN WAIHE'E IV, DEFENDANTS HA WAIl HOUSING FINANCE AND DEVELOPMENT

CORPORATION; KAREN SEDDON, in her official capacity as Executive Director of Hawaii Housing Finance and Development Corporation; GEORGINA KAWAMURA; CHARLES

KING; BETTY LOU LARSON; DAVID LAWRENCE; THEODORE E. LIU; ALLAN LOS BANOS, JR.; RALPH MESICK; LINDA SMITH; AND RICHARD TOLEDO, JR., in their

official capacity as members of the Board of Directors of Hawaii Housing Finance and Development Corporation; STATE OF HAWAII; and LINDA LINGLE, in her official capacity

as Governor, State of Hawaii's MOTION TO DISMISS WITHOUT PREJUDICE ALL CLAIMS OF AND TO DISMISS THE APPEAL OF ALL PLAINTIFF/APPELLANTS

EXCEPT JONATHAN KAMAKA WIWO'OLE OSORIO OR IN THE ALTERNATIVE FOR A LIMITED REMAND TO THE CIRCUIT COURT FOR THE PURPOSE OF EFFECTUATING

A DISMISSAL WITHOUT PREJUDICE OF ALL CLAIMS OF ALL PLAINTIFF/APPELLANTS EXCEPT JONATHAN KAMAKA WIWO'OLE OSORIO

Plaintiffs Pia Thomas Aluli, Charles Ka'ai'ai and Keoki Maka Kamaka Ki'i1i, by

and through their counsel, William Meheula and Hayden Aluli, Plaintiffs Office of Hawaiian

Affairs, Rowena Akana, Haunani Apoliona, Donald Cataluna, Walter Meheula Heen, Robert K.

Lindsey, Jr., Colette Y. Machado, Boyd P. Mossman, Oswald Stender, and John Waihe'e IV, by

and though their counsel, Sherry Broder, Jon M. Van Dyke and Melody K. MacKenzie, and

Defendants Hawaii Housing Finance And Development Corporation; Karen Seddon, in her

official capacity as Executive Director of Hawaii Housing Finance and Development

Corporation; Georgina Kawamura; Charles King; Betty Lou Larson; David Lawrence; Theodore

E. Liu; Allan Los Banos, Jr.; Ralph Mesick; Linda Smith; And Richard Toledo, Jr., in their

official capacity as members of the Board of Directors of Hawaii Housing Finance and

Development Corporation; State of Hawaii; and Linda Lingle, in her official capacity as

Governor, State of Hawaii ("Defendants") by and through its counsel Mark Bennett C'Movants"),

hereby move this Honorable Court for an Order dismissing the claims of all Plaintiff! Appellants

except Jonathan Kamakawiwo'ole Osorio without prejudice from the above-referenced action

4


and dismissing the appeal of those same Plaintiff/Appellants, or, in the Alternative, for a limited

remand to the circuit court for the purpose of effectuating a dismissal without prejudice of all

claims of those same Plaintiff! Appellants.

This motion is brought pursuant to Rule 42 of the Hawaii Rules of Appellate

Procedure and Haw. Rev. Stat. § 602-5, and is supported by the attached memorandum and

declaration, and the records and files herein.

DATED: Honolulu, Hawaii ________ _

WILLIAM MEHEULA HA YDEN ALULI

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

SHERRY P. BRODER JON M. VAN DYKE MELODY K. MACKENZIE

Attorneys for OFFICE OF HA W AllAN AFFAIRS, ROWENA AKANA; HAUNANI APOLIONA; DONALD CATALUNA; WALTER MEHEULA HEEN; ROBERT K. LNDSEY, JR.; COLETTE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN WAIHE'E IV

MARK J. BENNETT

Defendants HOUSING FINANCE AND DEVELOPMENT CORPORATION, et al.

5


S.C. NO. 25570

IN THE SUPREME COURT OF THE STATE OF HA WAIl

OFFICE OF HAWAIIAN AFFAIRS; ROWENA AKANA; HAUNANI APOLIONA; DONALD CATALUNA; WALTER MEHEULA HEEN; ROBERT K. LNDSEY, JR.; COLETTE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN WAIHE'E IV, in their official capacities as members of the Board of Trustees of the Office of Hawaiian Affairs; PIA THOMAS ALULI; JONATHAN KAMAKA WIWO'OLE OSORIO; CHARLES KA' AI' AI; and KEOKI MAKA KAMAKA K1'ILI,

Plaintiffs,

vs.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

HA WAIl HOUSING FINANCE AND ) DEVELOPMENT CORPORATION; ) KAREN SEDDON, in her official capacity as ) Executive Director of Hawaii Housing ) Finance and Development Corporation; ) GEORGINA KAWAMURA; CHARLES ) KING; BETTY LOU LARSON; DA Vln ) LAWRENCE; THEODORE E. LIU; ) ALLAN LOS BANOS, JR.; RALPH ) MESICK; LINDA SMITH; AND RICHARD ) TOLEDO, JR., in their official capacity as ) members of the Board of Directors of Hawaii ) Housing Finance and Development ) Corporation; STATE OF HA WAIl; and ) LINDA LINGLE, in her official capacity as ) Governor, State of Hawaii, )

Defendants. ) )

-------------------------- )

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

APPEAL FROM THE 1) OPINION OF THE COURT;

NOTICE OF ENTRY, FILED ON December 5,2002

2) FINAL JUDGMENT ON COUNTS 1, 11 AND III OF PLAINTIFFS' FIRST AMENDED COMPLAINT FILED 7/14/9SlN FAVOR OF ALL DEFENDANTS PURSUANT TO HRCP RULES 54(B) AND 58, filed on January 31, 2003


FIRST CIRCUIT COURT




MEMORANDUM IN SUPPORT OF MOTION

The Court is well familiar with the facts of this case. As the Court is aware, the United

States Supreme Court reversed this Court's decision and remanded for proceedings not

inconsistent with the Court's decision. Subsequently, the Legislature adopted and the Governor

signed into law, S.B. 1677, C.D. 1, a law which changes the process for sales of State lands

(including ceded lands). The Defendants and all Plaintiffs except Jonathan Kamakawiwo'ole

Osorio have reached a settlement in this case, an executed copy of which is attached as Exhibit

" 1." The settlement provides for the dismissal without prejudice of the all claims of all

Plaintiff/Appellants except Jonathan Kamakawiwo'ole Osorio, and for the dismissal of the

appeal of those Plaintiff/Appellants.·

Rule 42 (b) of the Hawaii Rules of Appellate Procedure provide that upon motion and

notice, this Court may dismiss an appeal upon terms fixed by the Court. Haw. Rev. Stat. § 602-

5(5) allows this Court to issue any order "necessary or appropriate in aid of its jurisdiction" and §

602-5(6) allows the Court to issue any process and take such acts and steps "as may be necessary

to carry into full effect the powers which are or shall be given to it by law or for the promotion of

justice in matters pending before it." Movants believe that Rule 42 and § 602-5 provide ample

authority for the Court to order the dismissal without prejudice of all claims of all

Plaintiff/Appellants except Jonathan Kamakawiwo'ole Osorio, and to order the dismissal of the

appeals of those Plaintiff! Appellants.

I Movants respectfully ask this Court to treat this motion and the accompanying declaration and exhibit as the notice of settlement the Court, in its May 15, 2009 Order required. Movants thus inform the Court that there has been a partial settlement of this matter, and that the claims and appeal of Jonathan Kamakawiwo'ole Osorio remain. Movants also respectfully ask the Court to set a briefing schedule for any motion by the State concerning the remaining Plaintiff! Appellant and his claims, as described in their joint letter of May 4,2009 (treated by and accepted by this Court as a Motion, as set forth in this Court May 15, 2009 Order).

2


In the alternatives, Movants ask the Court to remand to the circuit court for the limited

purpose of ordering dismissal of the claims of all plaintiffs except Jonathan Kamakawiwo' ole

Osorio, if the Court believes it lacks the authority to itself order dismissal of the claims.

Movants recognize that the circuit court, after a notice of appeal divests it of jurisdiction, retains

limited jurisdiction to enforce the judgment and determine matters incidental or collateral to the

judgment. See Kamaole Two Hui v. Aziz Entemrises. Inc., 9 Haw.App. 566,571, 854 P.2d 232,

235 (Haw.App. 1993) (superseded by rule on other grounds) (flAs a general rule, the filing of a

notice of appeal removes the case to the jurisdiction of the appellate court and deprives the lower

court of jurisdiction to proceed further in the case, except for some matters. II); TSA International

Ltd. v. Shimizu Corp, 92 Hawai'i 243, 265, 990 P.2d 713, 735 (Haw. 1999) ("Notwithstanding

the general effect of the filing of a notice of appeal, the trial court retains jurisdiction to

determine matters collateral or incidental to the judgment, and may act in aid of the appeal. II).

See also HRS sec. 603-21.9(1) (liThe several circuit courts shall have power ... To make and

issue all orders and writs necessary or appropriate in aid of their original or appellate

jurisdictiontl). Here, however, the enforcenlent of the settlement agreement is not clearly a

collateral or incidental matter, and a strong argument could be advanced that it is not.2 In

addition, such a motion without a limited remand could engender confusion and uncertainty.

See TSA International Ltd. v. Shimizu Corp., 92 Hawai'i at 265,990 P.2d at 735 (liThe principle

governing the transfer of jurisdiction from the trial court to the appellate court is designed to

avoid the confusion and inefficiency that might flow from placing the same issue before two

courts at the same time. ") Thus, while Movants believe this Court has the authority to order a

dismissal of claims without prejudice and to then dismiss the appeal of the Plaintiffl Appellants

2 Movants would also be hesitant to make such an argument in the circuit court given their awareness of uncitable authority contrary to such a position.

3


whose claims are thus dismissed without prejudice, in the event this Court disagrees, Movants

believe the appropriate course to effectuate such a dismissal without prejudice would be pursuant

to an order from this Court, allowing for a limited remand.

Wherefore, Movants respectfully request that this Court grant their motion, and dismiss

all claims in this case of all Plaintiff/Appellants except Jonathan Kamakawiwo'ole Osorio

without prejudice and dismiss the appeal of those same Plaintiffs/Appellants, or, in the

Alternative, order a limited remand to the circuit court for the purpose of effectuating a dismissal

without prejudice of all claims of those Plaintiff/Appellants.

DATED: Honolulu, Hawaii ________ _


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

4


SHERRY P. BRODER JON M. V AN DYKE MELODY K. MACKENZIE

Attorneys for OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA; HAUNANI APOLIONA; DONALD CATALUNA; WALTER MEHEULA HEEN; ROBERT K. LNDSEY, JR.; COLETTE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN WAIHE'E IV

MARK J. BENNETT

Defendants HA WAIl HOUSING FINANCE AND DEVELOPMENT CORPORATION, et al.

OHA, et 81.. v. HHFDC. et al.; S.C. NO. 25570; Memorandum in Support of Motion

5


S.C. NO. 25570


OFFICE OF HAWAIIAN AFFAIRS; ROWENA AKANA; HAUNANI APOLIONA; DONALD CATALUNA; WALTER MEHEULA HEEN; ROBERT K. LNDSEY, JR.; COLETfE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN WAIHE'E IV, in their official capacities as members of the Board of Trustees of the Office of Hawaiian Affairs; PIA THOMAS ALULI; JONATHAN KAMAKA WIWO'OLE OSORIO; CHARLES KA'AI'AI; and KEOKI MAKA KAMAKA KrILl,

Plaintiffs,

vs.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

HA WAIl HOUSING FINANCE AND ) DEVELOPMENT CORPORATION; ) KAREN SEDDON, in her official capacity as ) Executive Director of Hawaii Housing ) Finance and Development Corporation; ) GEORGINA KAWAMURA; CHARLES ) KING; BETTY LOU LARSON; DAVID ) LA WRENCE; THEODORE E. LIU; . ) ALLAN LOS BANOS, JR.; RALPH ) MESICK; LINDA SMITH; AND RICHARD ) TOLEDO, JR., in their official capacity as ) members of the Board of Directors of Hawaii ) Housing Finance and Development ) Corporation; STATE OF HA WAIl; and ) LINDA LINGLE, in her official capacity as ) Governor, State of Hawaii, )

Defendants. ) )

-------------)

CIVIL NO. 94-4207-1 I-SSM (Declaratory Judgment)


NOTICE OF ENTRY, FILED ON December 5,2002

5) FINAL JUDGMENT ON COUNTS 1, 11 AND III OF PLAINTIFFS' FIRST AMENDED COMPLAINT FILED 7/14/95 IN FAVOR OF ALL DEFENDANTS PURSUANT TO HRCP RULES 54(B) AND 58, filed on January 31, 2003

6) ORDER GRANTING MOTION TO EXTEND TIMETO APPEAL, filed January 31,2003

FIRST CIRCllT COURT



DECLARATION OF WILLIAM MEHEULA

I, WILLIAM MEHEULA, hereby declare and state as follows:


1) I am an attorney with Meheula & Devens, LLP, counsel for Pia Thomas

Aluli, Charles Ka'ai'ai, and Keoki Maka Kamaka Ki'ili in this case.

2) I make this declaration on my personal knowledge and would be

competent to testify on the matters stated herein.

3) On May 5, 2009, the movants entered in a settlement agreement, a true

and correct copy of which is attached hereto as Ex. "}II.

4) The settlement agreement is contingent upon SB 1677 becoming law

which did become law on July 13,2009" as Act 176, a true and correct copy of which is attached

hereto as Ex. "2".

5) On May 15,2009, Yuklin Aluli, one of the attorneys for Plaintiff Jonathan

Osorio informed me that Mr. Osorio would not enter into a stipulation for dismissal without

prejudice of the movants. Thus, this motion is necessary to implement the settlement agreement.

I declare under penalty of perjury that the foregoing is true and correct.

DATED: Honolulu, Hawaii _______ _

WILLIAM MEHEULA

2


S.C. NO. 25570

IN THE SUPREME COURT OF THE STATE OF HA WAIl

OFFICE OF HA WAIIAN AFFAIRS; ROWENA AKANA; HAUNANI APOLIONA; DONALD CATALUNA; WALTER MEHEULA HEEN; ROBERT K. LNDSEY, JR.; COLETTE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN W AIHE'E IV, in their official capacities as members of the Board of Trustees of the Office of Hawaiian Affairs; PIA THOMAS ALULI; JONATHAN KAMAKA WIWO'OLE OSORIO; CHARLES KA' AI' AI; and KEOKI MAKA KAMAKA KI'ILI,

Plaintiffs,

vs.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

HA WAIl HOUSING FINANCE AND ) DEVELOPMENT CORPORATION; ) KAREN SEDDON, in her official capacity as ) Executive Director of Hawaii Housing ) Finance and Development Corporation; ) GEORGINA KAWAMURA; CHARLES ) KING; BETTY LOU LARSON; DAVID ) LAWRENCE; THEODOREE. LIU; ) ALLAN LOS BANOS, JR.; RALPH ) MESICK; LINDA SMITH; AND RICHARD ) TOLEDO, JR., in their official capacity as ) members of the Board of Directors of Hawaii ) Housing Finance and Development ) Corporation; STATE OF HAWAII; and ) LINDA LINGLE, in her official capacity as ) Governor, State of Hawaii, )

Defendants. ) )

-------------------------- )



NOTICE OF ENTRY, FILED ON December 5, 2002

8) FINAL JUDGMENT ON COUNTS 1, 11 AND III OF PLAINTIFFS' FIRST AMENDED COMPLAINT FILED 7114/95 IN FAVOR OF ALL DEFENDANTS PURSUANT TO HRCP RULES 54(B) AND 58, filed on January 31, 2003


FIRST CIRCUIT COURT


CRANDALL HONORABLE KEVIN CHANG HONORABLE GAIL NAKATANI HONORABLE JAMES AlONA HONORABLE COLLEEN HIRAI HONORABLE MARIE MILKS HONORABLE SABRINA MCKENNA Judges



I hereby certify that a true and correct copy of the foregoing document was duly

served upon the below-identified parties at their addressed noted below, by depositing the sanle

in the Unites States Mail, postage prepaid on the date below.

YUKLIN ALULI, ESQ. 41S-C UIWliu Street Kailua, Hawaii 96734

DEXTER KAlAMA, ESQ. 735 Bishop Street, Suite 419 Honolulu, Hawaii 96813

MILILANI B. TRASK, ESQ. Gibson Foundation Waiakea Villa, Bldg. 10 400 Hualani Street, Suite 194 Hilo, Hawaii 96720

DATED: Honolulu, Hawaii ______ _


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

SHERRY P. BRODER JON M. VAN DYKE MELODY K. MACKENZIE

Attorneys for OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA; HAUNANI APOLIONA; DONALD CATALUNA; WALTERMEHEULA HEEN; ROBERT K. LNDSEY, JR.; COLETTE Y. MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; AND JOHN W AIHE'E IV

2


, .

MARK J. BENNETT

Defendants HAWAII HOUSING FINANCE AND DEVELOPMENT CORPORATION, et al. OFFICE OF HAWAIIAN AFFAIRS, ABRAHAM AIONA, HANNAH SPRINGER, ROWENA AKANA, BILLIE BEAMER, A. FRENCHY DeSOTO, CLA YTON H. W. HEE, HAUNANI APOLIONA, MOSES K. KEALE, SR., and COLLETIE MACHADO

Defendants HOUSING FINANCE AND DEVELOPMENT CORPORATION, et al.

OHA, et al.. v. m-IFDC. et al.: S.C. NO. 25570; Certificate o/Service

3


NO. 25570



APPEAL FROM THE

OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA, RAUNAN! APOLIONA, DANTE CARPENTER, DONALD CATALUNA, LINDA DBLA CRUZ, COLETTE MACHADO, BOYD P. MOSSMAN, OSWALD STENDER and

1) OPINION OF THE COURT; NOTICE OF ENTRY, FILED ON December 5, 2002

JOHN W AllIEE, N, in their official capacities as members of the Board of Trustees of the Office of Hawaiian Affairs, PIA THOMAS ALULI, JONATHAN KAMAKA WIOW'OLE OSORIO, CHARLES KA' AI' AI, and KEOKI . MAKAKAMAKAKI'll..I, .

2) FINAL JUDGMENT ON COUNTS I, IT, AND m OF PLAINTIFFS' FIRST AMENDED COl\4PLAINT FILED 7114/95 IN FAVOR OF ALL DEFENDANTS PURSUANT TO HRCP RULES 54(B) and 58, filed on January 31, 2003

Plaiptiffs-Appellants, 3) ORDER GRANTING MOTION TO

vs. EXTEND TIME TO APPEAL, Filed . January 31, 2003

HOUSING AND COM:IvfUNITY DEVELOPMENT CORPORATION OF FIRST CIRCUIT COURT HAWAII, (HCDCH), ROBERT J. HALL, in

Ca tion Continued on next a e

DEFENDANTS-APPELLEES' OPPOSITION TO PLAINTIFF-APPELLANT OSORIO'S MOTION

FOR RETENTION OF ORAL ARGUMENT


, (")1

~ :.th~1 -f.. fTl

>)>!. ..

MARK. J. BENNETT 2672 Attorney General Wll..LIAM J. WYNHOFF 2558 KIMBERLY TSUMOTO GUIDRY 7813 Deputy Attorneys General 425 Queen Street Honolulu, Hawaii 96813 (808) 586-1360

.~-g ~ ~o

Jf"'I1~ -c,r- ~

.:t:r- l> ~!:f ."7' --,." -:~oo . ...:0 0

c:: ::0 -4 , en

~ c::) \oa

:z-c:: Ci.)

-.I

-c ::c N .. U1 t.)

..,.. -r-'1Bn EJ


STEPHANIE A VEIRO, FRANCIS L. JUNG, CHARLES KING, LIT..LIAN B. KOLLER, "BErrY LOU LARSON, THEODORE E. LID, TRAVIS THOMPSON, TAIAOPO TUIMALEIALIIFANO, Members of the Board of Directors ofHCDCH, State of Hawaii, and Linda Lingle, in her capacity as Governor, State of Hawaii,

Defendants-Appellees.

HONORABLED~LHEELY HONORABLE V1RGINIA LEA CRANDALL HONORABLE KEVIN CHANG HONORABLE GAIL NAKATANI HONORABLE KAREN BLONDIN HONORABLE JAMES AlONA HONORABLE COLLEEN HIRAI HONORABLE MARJE MILKS HONORABLE SABRINA McKENNA Judges


Defendants-Appellees' Opposition To Plaintiff-Appellant Osorio's Motion For Retention Of Oral Argument

Defendants-Appellees the State of Hawaii ("State") respectfully urges this Court to deny

Plaintiff-Appellant Osorio's motion for retention of oral argument for two reasons. First.

Plaintiffs motion, and memoran~um. in support, amount to no more than an improper and

obvious attempt to supplement his opposition without leave of court. 1 Second, the threshold

issues presently before the court (i.e., whether Plaintiff lacks standing, seeks an impennissible

advisory opinion, and raises an unripe issue) are straigbtfolWard and <?an be decided on the

pleadings. Plaintiff, in fact, tacitly admits this. See Mem. at 2 ("the threshold issues are

straightforward").

In sum, the State believes that oral argument on the present matter is unnecessary, as all

threshold issues have been fully and thoroughly briefed in the motion pleadings.

DATED: Honolulu, Hawaii, August 17, 2009.

Mark J. Bennett Attorney General

'~'d~~ Kimberly Tsumoto Guidry Deputy Solicitor General

Counsel for Defendants-Appellees

1 Plaintiffs memorandum in support of oral argument is a transparently obvious rehash of the very same points already made in his memorandum in opposition to the State's motion to dismiss. Plaintiffs justiciability arguments fail to justify the need for oral argument on the threshold issues presently before this court. To be clear, the State moved for leave to reply to Plaintiffs opposition for the limited purpose of addressing Plaintiffs misleading legal statements and arguments, and confusing and inaccurate factual statements. This court's grant of leave, and the State's filing of its reply on August 14 for that limited purpose, does not support retention of oral argument. . The State reiterates that the motion papers before this court fully and adequately apprise this court of the necessary facts and issues.


NO. 25570

IN THE SUPREME COURT OF THE STATE OF HAW AlI

OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA, HAUNANI APOLIONA, DANTE CARPENTER, DONALD CATALUNA, LINDA DELA CRUZ, COLETTE MACHADO, BOYD P. MOSSMAN, OSWALD STENDER and JOHN W AIHEE, IV, in their official capacities as members of the Board of Trustees of the Office of Hawaiian Affairs, PIA THOMAS ALULI, JONATHAN KAMAKA WIOW'OLE OSORIO, CHARLES KA' AI' AI, and KEOKI MAKA KAMAKA KI'ILI,

Plaintiffs-Appellants,

VS.

HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAW AIl, (HCDCH), ROBERT J. HALL, in his capacity as Acting Executive Director (HCDCH), CHARLES STED, Chair, STEPHANIE A VEIRO, FRANCIS L. JUNG, CHARLES KING, LILLIAN B. KOLLER, BETTY LOU LARSON, THEODORE E. LIU, TRAVIS THOMPSON, TAIAOPO 'TURv.IALEIALIIFANO, Members of the Board of Directors ofHCDCH, State of Hawaii, and Linda Lingle, in her capacity as Governor, State of Hawaii,



APPEAL FROM THE 1) OP1NION OF THE COURT; NOTICE OF

ENTRY, FILED ON December 5, 2002

2) FINAL JUDGMENT ON COUNTS I, IT, AND ill OF PLAINTIFFS' FIRST AMENDED COMPLAINT FILED 7/14/95 IN FAVOR OF ALL DEFENDANTS PURSUANT TO HRCP RULES 54(B) and 58, filed on January 31,2003

3) ORDER GRANTING MOTION TO EXTEND TIl\.1E TO APPEAL, Filed January 31, 2003

FIRST CIRCUIT COURT .

HONORABLE DANIEL HEELY HONORABLE VIRGINIA LEA CRANDALL HONORABLE KEVIN" CHANG HONORABLE GAIL NAKATANI HONORABLE KAREN BLONDIN HONORABLEJAMESAIONA HONORABLE COLLEEN HIRAI HONORABLE MAR.IE MILKS HONORABLE SABRINA McKENNA Judges



I certify that on August 14, 2009, a copy of Defendants-Appellees' Opposition to

Plaintiff-Appellant Osorio's Motion for Retention of Oral Argument was mailed, first class

postage prepaid by the last mail picktip of the day to:

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

Attorneys for Plaintiff-Appellant OFFICE OF HAW AllAN AFFAIRS, ROWENA AKANA, HAUNANI APOUONA, DANT~ CARPENTER, DONALD CATALUNA, LINDA DELACRUZ, COLLETTE MACHADO, BOYD P. MOSSMAN, OSWALD STENDER AND JOHN W AIHBE, IV

MELODY K. MACKENZIE 579 Kaneapu Place Kailua, Hawaii 96734

Attorney for Plaintiff-Appellant OFFICE OF HAW AllAN AFFAIRS

WILLIAM K. MEHEULA :MEHEULA & DEVENS 707 Richards Street, PHI Honolulu, Hawaii 96813

HAYDEN ALULI 2180 Kahookele Street Wailuku, Hawaii 96793

Attorneys for Plaintiffs-Appellants PIA THOMAS ALULI, CHARLES KA' AI' AI ANDKEOKI MAKA KAMAKA KI'ILI

YUKLIN ALULI 41S-C Uluniu Street Kailua, Hawaii 96734


MILILANI TRASK Gibson Foundation Waiakea Villa, Bldg. 10 4-00 Hualani Street, Suite 194 Hilo, Hawaii 96720

DEXTER K. KAlAMA Dillingham Transportation Building 735 Bishop Street, Suite 419 Honolulu, Hawaii 96813

RlCHARD NAIWIEHA WURDEMAN Attorney at Law, A Law Corporation 333 Queen Street, Ste. 604 Honolulu, Hawaii 96813

Attorneys for Plaintiff-Appellant JONATHAN KAMAK.A WIWO'OLE OSORIO

DATED: Honolulu, Hawaii, August 17,2009.

-~'6~~

KIMBERLY TSUMOTO GUIDRY. Deputy Solicitor General Attorneys for Defendants-Appellants

2


NO. 25570

IN THE SUPREME COURT OF THE STATE OF HAW All

OFFICE OF HAWAIIAN AFFAIRS, CNIL NO. 94-4207 -II-SSM ROWENA AKANA, HAUNANI APOLIONA, (Declaratory Judgment)

APPEAL FROM THE DANTECARPENTE~DONALD CATALUNA, LINDA DELA CRUZ, COLETTE MACHADO, BOYD P. MOSSMAN, OSWALD STENDER and JOHN W All:IEE, N, in their official capacities as members of the Board of Trustees of the Office of Hawaiian Affairs, PIA THOMAS ALULI, JONATHAN KAMAKA WIWO'OLE OSORIO, CHARLES KA' AI' AI, and KEOKI MAKA KAMAKA KrILl,

1) OPINION OF THE COURT; NOTICE OF ENTRY, FILED ON December 5,2002


2) FINAL JUDGTMENT QN COUNTS I, II, . AND III OF PLAINTIFFS' FIRST AMENDED COl\dPLAINT FILED 7/14/95 IN FAVOR OF ALL DEFENDANTS PURSUANT TO HRCP RULES 54(B) and 58, filed on January 31, 2003

3) ORDER GRANTING MOTION TO vs. EXTEND Tll\ffi TO APPEAL, Filed

January 31, 2003 -HOUSING AND COM:MUNITY DEVELOPMENT CORPORATION OF FIRST CIRCUIT COURT HAWAII, (HCDCH), ROBERT J. HALL, in

Ca tion Continued on next a e

DEFENDANTS-APPELLEES REPLY TO PLAINTIFF-APPELLANT OSORIO'S MEMORANDUM IN oPPOSmON TO THE

DEFENDANTS-APPELLEES' MOTION TO DISMISS

DECLARATION OF LAURA H. THIELEN

DECLARATION OF KIMBERLY TSUMOTO GlliDRY

MARKJ. BENNETT Attorney General

EXHIBITS 1 - 3


2672

WILLIAM J. WYNHOFF 2558 KIMBERLY TSUMOTO GUIDRY 7813 Deputy Attorneys General 425 Queen Street Honolulu, Hawaii 96813 (808) 586-1360

Attorneys for Defendants-Appellees

PI ~,

(f)~1 ~> f'J M~/~ "lJ. 0"", ::0

~1~ :;.~. l> ;; ..... :z ?:6° -=Q 0

!f6 .;;:

-"'0 -g '-Q

:t:a. c::: C')

.&:-

~ CN .. .....

"-m .1 -'r ·PJ ·0


his capacity as Acting Executive Director (HCDCH), CHARLES STED, Chair, STEPHANIE AVEIRO, FRANCIS L. JUNG, CHARLES KING, LILLIAN B. KOLLER, BETI'Y LOU LARSON, THEODORE E. LID, TRAVIS THOMPSON, TAIAOPO TUIMALEIALIIFANO, Members of the Board of Directors ofHCDCH, State of Hawaii, and Linda Lingle, in her capacity as Governor, State of Hawaii,


HONORABLE DANIEL HEELY HONORABLE VlRGlNIA LEA CRANDALL HONORABLE KEVIN CHANG HONORABLE GAIL NAKATANI . HONORABLE KAREN BLONDIN HONORABLE JAMES AlONA HONORABLE COLLEEN HIRAI HONORABLE MARIE MILKS HONORABLE SABRINA McKENNA Judges


TABLE OF CONTENTS

I. PLAIN'TlF'F'S CLAIMS ARE NOT RlPE ........................................................................... 1

ll. PLAINTIFF LACKS STANDING TO PURSUE HIS CLAIMS ON BEHALF OF NATIVE HAWAIIANS ................................................................................................ 6

m. PLAINTIFF SEEKS AN IMPERMISSmLE ADVISORY OPINION ................................ 9

IV. CONCLUSION ................................................................................................................... 1 0

i


TABLE OF AUTHOruTffiS

CASES:

Akinaka v. Disciplinary Bd., 91 Hawai'i 51, 979 P.2d 1077 (1999) ................................................................................................... 7

Bremnerv. City & County of Honolulu, 96 Hawai'i 134,28 P.3d 350 (Haw. App. 2001) ................................................................................... 5

Brown v. City of Los Angeles, 521 F.3d 1238 (9th. Cir. 2008) .............................................................................................................. 8

Haw. Med. Assn v. Haw. Med. Service Ass'n. Inc., 113 Hawai'i 77, 148 P.3d 1179 (2006) ................................................................................................. 8

Hawaii v. Office of Hawaiian Affairs. 129 S.Ct. 1436 (2009) ........................................................................................................................... 5

Kapuwai v. City & County of Honolulu, __ Hawai'i--, 211 P.3d 750 (Haw., July 16, 2009) ................................................................. 5, 6

Life of the Land v. Bums, 59 Haw. 244, 580 P.2d 405 (1978) ....................................................................................................... 9

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................................................... : ................................................... 9

Office of Hawaiian Affairs v. Housing and Community Development Com. of Hawaii, 117 Hawai'i 174, 177 P.3d 884 (2008) ................................................................................................. 5

OHA v. Yamasaki, 69 Haw. 154, 737 P.2d 446 (1987) ................................................................................................. 5, 10

Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992) ................................................................................................. 7, 9

CONSTITUTION, STATUTES and LEGISLATIVE HISTORY:

Haw. Const. art. XII, § 7 ........................................................................................................................... 8

Haw. Rev. Stat. § 1-1 ........................................... · ..................................................................................... 8

Haw. Rev. Stat. § 7-1 ................................................................................................................................ 8

Haw. Rev. Stat. § 171-14 .......................................................................................................................... 2

Haw. Rev. Stat. § 171-16 .......................................................................................................................... 2

ii


Haw. Rev. Stat. § 171-32 ......................................................................................................................... 2

1962 Haw. Sess. Laws Act 32 .................................................................................................................. 2

2007 Haw. Sess. Laws, Act 104 ........................................................................................................... 2, 3

2009 Haw. Sess. Laws Act 176 .................................................................................................... 1,2,4, 7

Admission Act of Mar. 18, 1959.§ 5(f), Pub. L. No. 86-3, 73 Stat. 4 ...................................... 1, 6, 7, 8, 9

OTHER AUTHORITIES:

Kroc Family Donates Millions to Salvation Anny Hawaii (last visited Aug. 12, 2009) <http://www.khnl.comlGlobaVstory.asp?S=4845728> ........................................................................ 3

iii


DEFENDANTS-APPELLEES REPLY MEMORANDUM

The State of Hawaii submits this Reply Memorandum in Support of its Motion to Dismiss or

Remand the Claims of Plaintiff Jonathan Osorio ("Plaintiff').

I. PLAINTIFF'S CLAIMS ARE NOT RIPE

First, Plaintiff does not contest, and thus concedes, these points made by the State:

• "The complaint alleges no discrete injury to [Plaintiff]." (State's Mem. at 2)

• '''No evidence was presented ... of any proposed sales of ceded lands other than at Leiali'L' Circuit Court Opinion at 99." (State's Mem. at 4)

• "Land exchanges were never part of the lawsuit or materially discussed in the briefs before this court, and the circuit court made no findings on any land exchanges. Pursuant to § S(t) of the Admission Act, lands exchanged for ceded lands become part oftbe § S(i) trust." (State's Mem. at 2, n.S)

• n[N]o evidence in this case was ever presented as to land exchanges, past or proposed. II (State's Mem. at 3)

• "The Legislature, fully cognizant of the rulings of this court and the Supreme Court, rejected calls for retention of the status quo or for a ban or moratorium on the sale or alienation of ceded lands." (State's Mem. at 2)

• "[T]he Legislature has neither considered nor pre approved any sales pursuant to Act 176. 11

(State's Mem. at 2)

Second, Plaintiff clearly identifies the precise reliefhe seeks-a complete injunction against

any alienation of any ceded lands for any purpose:

"Osorio ... 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 III (pl.'s Mem. at 11)

Third, Plaintiff has failed to identify any legal theory or cause of action upon which he seeks to

obtain that broad relief. 1 And fourth, Plaintiff identifies no actual pending or threatened sales or

1 While this court bifurcated the issues in th~ State's motion, and ordered that threshold issues be addressed first, it is clear that a plaintiff must precisely identify the causes of action and the legal theories which are ripe for decision and for which. he has standing in order to demonstrate standing or ripeness in the face of an argument that neither exists .. That is especially so in a case where the primary cause of action previously asserted (the Apology Resolution) no longer exists, and a primary focus of the ripeness and standing inquiries here is the nature of the cause of action or legal theory justifying relief enjoining all future ceded land alienation. How can the court even assess ripeness and standing without Plaintiff identifying his causes of action or legal theories? Even if Plaintiff had so identified his causes of action and legal theories (as opposed to merely identifying the reliefhe seeks), he could not demonstrate either ripeness or standing. But his failure to even descnoe the nature of his claimed current causes of action, and legal theories justifying the reliefhe seeks, itself requires that this court grant this motion (especially as that would simply result in a dismissal without prejudice).


exchanges of ceded lands.2 These facts clearly demonstrate that Plaintiffs claims are unripe.

Plaintiff seeks an injunction barring any alienation of ceded lands for an indetenninate period.

Plaintiff seeks this relief as to sales, though no sale is possible without legislative preapproval, which

has not occurred. Plaintiff also seeks this relief as to exchanges, though this case never concerned

exchanges, Plaintiff points to no proposed exchange he is challenging, and Plaintiff provides no reason

why he could not sue to stop an exchange after an exchange has been proposed.

Plaintiffpurports to bring to the court's attention a sale he wishes to bar--indeed it is the only

one he points to. Plaintiff states: "Furthermore, 2007 Haw. Sessa Laws, Act 104, §§ 1 and 2, allow

unfettered exchange or sale of ceded lands to certain charitable groups." (Pl.'s Mem. at 4) "And, in the

instance of2007 Haw. Session Laws, Act 104, §§ 1 and 2, no approval is needed to transfer lands to

certain eleemosynary organizations." Id. at 15. Act 104 (a copy of which is attached as Ex. 1) allows

for a one-time sale or exchange of up to 15 acres of public land upon which a particular type of

community center must be built (with repeal on December 31, 2010). Even if a sale or exchange were

still possible pursuant to Act 104, that Act is partially superseded by Act 176, which clearly provides

that "Notwithstanding any law to the contrary," every sale ofpuhlic lands (except remnants and DlllIL

land) requires legislative preapproval. Thus Plaintiff clearly and obviously misstates or misrepresents

the statutory scheme3 --only one IS-acre transfer is pennitted, and any sale would not be unfettered--it

2 Plaintiff cites three already consummated exchanges. (Mem.- at 15.) These three completed exchanges are irrelevant to this motion for many reasons. As noted, this case never involved exchanges and plaintiffs never based their case on any exchanges. Plaintiff offers no evidence that he objected to these three exchanges, either to the Land Board, or at the Legislature. Plaintiff offers no evidence of any pending exchange. And most importantly, Plaintiff offers no reason why, if there were a future objectionable exchange, he would be unable to challenge such an exchange in a future lawsuit where the actual facts concerning that exchange were before the reviewing court.

3 Unfortunately, this is not the only statutory miscitation by Plaintiff. Plaintiff states (Mem. at 9): "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 a.uction.1It The statute actually provides: "171-32 Policy. Unless otherwise specifically authorized in this chapter or by subsequent legislative acts, all dispositions shall be by lease only, disposed of by public auction in accordance with the procedure set forth in sections 171-14 and 171-16." (Emphasis added). Indeed, the key phrase Plaintiff omits in his Ifcitati~n" is not only part of the current law, it was- part of the statute as originally passed in 1962 (as were many provisions allowing the sale and exchange of ceded lands). See, e.g., 1962 Haw. Sessa Laws Act 32, §§ 32 (essentially identical to the current § 171-32), 13 (sales in fee simple permitted), 17 (appraisals for sales), 43 (sales for personal residence purposes), 47 (exchanges pennitted), 61 (sales for agricultural purposes), 75 (purchase of fee title by lessees pemritted). Plaintiffs omission of a key part of the statute is obviously material (even though Plaintiff's point is not).

2


would be "fettered" both by the requirement of legislative preapproval and the specific requirements of

Act 104, which include that the land be used for a specific type of community center.

More importantly, however, as Plaintiff fails to inform the court, the one-time sale allowed by

Act 104 has already been consummated, and thus Act 104 cannot serve as any basis for Plaintiffs

contention that his claims (whatever they may be) are ripe. See Dec!. of Laura H. Thielen and Ex. 2

(the Quitclaim Deed), demonstrating that 15 acres of non-ceded lands were sold in January 2009

pursuant to Act 104 in order to facilitate the construction of the Kroc Center in West Oahu.4

Most importantly, the true facts behind the Act 104 sale provide a practical demonstration of

why Plaintiffs claims are unripe. The Kroc Center deed, Ex. 2, specifically requires the conveyed

State (non-ceded) land to be used by an eleemosynary organization for a multi-purpose community

center to serve a community of25,OOO people, with the center to include:

A. A major aquatic center with two swimming pools; B. An athletic complex with a gymnasium that houses a national collegiate athletic association

regulation-sized basketball court; C. A performing arts center; D. An educational and vocational training center; and E. At least three hundred parking stalls.

Ex. 2 at 3. See also Ex. 3 at 1:

A whirlwind of activity has taken place s~nce that monumental day in May 2006, when the [Hawaii Salvation Anny] was awarded $80 million from the estate of Ray and Joan Kroc to build ~d operate a state-of-the-art Kroc Center in West O'ahu. s

4 The unripe issues Plaintiff apparently seeks to litigate are of potentially great significance to the State of Hawaii and all its citizens: native Hawaii3l1s, Hawaiians, and non-Hawaiians alike. The potential negative consequences flowing from adjudication, some of which were identified in the State's motion, are grave. The Office of Hawaiian Affairs, all other plaintiffs but Jonathan Osorio, the attorney who this court, in its original opinion, essentially (and correctly) identified as the prime mover behind this lawsuit (William Meheula), and all other original attorneys for plaintiffs, have settled this lawsuit and believe Plaintiffs claims should be dismissed without prejudice. Plaintiffs Memorandum is gravely deficient in its representations to this court. If the court believes there is any discretionary component to a decision on the instant motion (and the State believes there is not), the nature ofPlaintitrs advocacy should give this court great pause and real concern regarding adjudicating this case in its present posture.

s See also Kroc Family Donates Millions to Salvation Army Hawaii (last visited Aug. 12, 2009) <http://www.khnl.comlGloballstory.asp?S=4845728>: itA new community center is coming .... The Salvation Army in Hawaii was awarded an $80 million grant to build the Kroc Center Hawaii. The grant comes from the estate of Joan Kroc--the wife of Ray Kroc, the man who founded McDonald's. We talked for a long time about bringing about a new city, a second city, bringing about much needed growth and quality development to a critical part of our island in West Oahu, and today is a major step

3


While the Kroc Center (as noted) will not be built on ceded land, Plaintiff seeks an injunction that

would bar any alienation of ceded lands, even for a purpose like facilitating another Kroc Center or

similar facility. Thus, Plaintiff seeks to bar the legislative and executive branches from even

considering an alienation (even an alienation to native Hawaiians or for the bettennent of the

conditions of native Hawaiians), no matter how beneficial to Hawaii and its citizens--native Hawaiians

and non-native Hawaiians alike. How can Plaintiff possibly demonstrate the ripeness of such a claim

seeking to bar every possible alienation? And, in fact, he does not.

Of course, any particular sale or exchange could constitute a breach of duty, but the enormous

benefits to Hawaii of the Kroc Center starkly demonstrate that not every sale or exchange would. This

court should not, at the behest of one person in an unripe case, strip from Hawaii's citizens even the

possibility ofbene:fi.tting from a particular ceded land alienation, in the way they will benefit from the

alienation to facilitate the Kroc Center. At the very least, the court should wait until a full factual

record is developed regarding particular ali en ation( s).

Plaintiff does not even seriously attempt to demonstrate ripeness. As to the fitness prong of the

ripeness test, Plaintiff makes the conclusory statement that no further factual development is necessary

to allow for an injunction against all possible ceded land alienation (Mem. at 14), but does not explain

how that is so when the one sale at issue previously (Leiali'i) cannot now go forward without

legislative preapproval, there was no trial evidence presented with regard to any other challenged

alienation, and Plaintiff has presented no such evidence to this court. Plaintiff identifies no land

presently up for sale or exchange, the Legislature has not preapproved any sale, and Plaintiff offers no

reason why this court should prejudge not only every possible hypothetical alienation, but also reach

the constitutionality of every state st~tute on the subject, including Act 176.6 & for the hardship prong

of the ripeness test, Plaintiff offers no explana~ion of why dismissal without prejudice and requiring a

proposed alienation before adjudication would cause direct and immediate hardship to him. liTo meet

the hardship requirement, a party must show that withholding judicial review would result in direct and

forward in that regard,' said Honolulu Mayor Mufi Hannemann .... 'It's a really good thing,' said one parent. 'Anything to help out the kids in the community is always good and positive.' Seven schools with about 8,000 children will be within a five mile radius of the center. 29 schools, with 28,000 . children will be within a ten mile radius. 'It's very important so they have a place to go, where they're not out on the street, and they have activities they can do,' said one parent."

6 Although Plaintiff offers no cause of action or legal theory to support the relief he seeks, Plaintiff does not dispute the State's assertion that, to rule in his favor, the court would need to invalidate every State law provision allowing alienation (some of which are actually cited in Pl.'s Mem. at 10).

4


immediate hardship and would entail more than possible financial loss. ,,7 Office of Hawaiian Affairs

v. Housing and Community Development Com. of Hawaii, 117 Hawai'i 174,207, 177 P.3d 884, 917

(2008), reversed sub nom Hawaii v. Office of Hawaiian Affairs 129 S.Ct. 1436 (2009). Indeed,

Plaintiffs only argument as to hardship is his contention that alienation will diminish the trust res

(Mem. at 14). Plaintiff ignores the fact that when this case first came to this court sales were

imminent, and now they are not only not imminent, but they are impossible without preapproval by

two branches of government. Indeed, Plaintiff's statement that alienation "is still possible" (Mem. at

16), is a clear concession that his claims are unripe.

Plaintiff takes an exceptional view of that portion of the ripeness doctrine that refers to courts'

obligations to "carefully weigh the wisdom, efficacy, and timeliness of an exercise of their powers

before acting, especially where there may be an intrusion into areas committed to other branches of

government." OHA·v. Yamasaki, 69 Haw. 154, 171, 737 P.2d 446,456 (1987).8 Indeed, Plaintiffs

view is 180 degrees opposite this court's: "[Hawaii's] 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." (Mem. at 11). This position--that, even absent a proposed sale or

exchange that is being challenged, this court should lecture the other two branches on their

constitutional obligations--directly contradicts the principle of restraint clearly set out in Yamasaki.

Any questions regarding whether this court has changed its views on ripeness (and there should

not have been any), were recently put to rest. In Kapuwai v. City & County of Honolulu, _ Hawai'i

_,211 P.3d 750, 758 (Haw., July 16,2009), this court reasserted key parts of its ripeness

jurisprudence: "[T]he ICA's ,issuance of an advisory opinion on an unripe issue implicates concerns

'about the proper-and properly limited-role of courts in a democratic society' and contravenes the

'prudential rules of judicial self-governance.'" Jd. While this court indicated that ripeness rules might

7 Although alleged hardship to others is irrelevant to this Plaintiffs case, Plaintiff advances no direct and immediate harm to anyone that will flow from this court withholding judicial review until an actual sale or exchange is challenged.

8 Justiciability requires courts, "even in the absence of constitutional restrictions [to] still carefully weigh the wisdom, efficacy, and timeliness of an exercise of their own power before acting, especially where there may be an intrusion into areas committed to other branches of government." Yamasaki, 69 Hawaii at 171, 737 P.2d at 456. The concern "about infringing upon the authority of our elected brethren becomes particularly acute whenever a challenge to legislation predates efforts to implement its provisions." Bremner v. City & County of Honolulu, 96 Hawai'i 134, 144,28 P.3d 350,360 (Haw. App.2001). Therefore, "the established, general practice of the courts has been to reserve judgment upon a law pending concrete executive action to carry its policies into effect[.]" Id.

5


be relaxed if guidance was being provided to the judicial branch, it reasserted that ripeness rules

strictly apply when a party seeks "guidance" directed to other branches of government.9 This court

also made clear:

'[P]rudential rules' of judicial self-governance founded in concern about the proper-and properly limited-role of courts in a democratic society, considerations flowing from our coequal and coexistent system of government, dictate that we accord those charged with drafting and administering our laws a reasonable opportunity to craft and enforce them in a manner that produces a lawful result. Id. (emphasis in original).

There could be no plainer explanation of why this case is currently unripe.

In short, Plaintiff's claims10 fail to meet the test for ripeness for many reasons, including: (1)

Unlike the circumstance when this case first came to this court, no sales (and this case concerned only

sales) are now possible without specific legislative sanction; (2) Unlike the circumstance when this

case first came to this court, sales will not immediately go forward absent judicial relief; (3) Plaintiff

points to no specific proposed exchange he wishes to challenge, and points to no facts that show he

would be denied the ability to challenge any such exchange were it proposed; (4) Plaintiff seeks to

have this court strip from the legislative and executive branches of government any opportunity to craft

and enforce laws in a manner that produces a lawful result--a holding that would be contrary to every

relevant ripeness decision of this court (including one rendered in July 2009); and (5) Plaintiff

identifies no harm. that would flow to him (or anyone, although only harm to him is relevant), from

judicial review being withheld until there is an actual threatened. sale or exchange. The case should be

dismissed as Plaintiffhas failed to demonstrate that any claims are ripe.

II. PLAINTIFF LACKS STANDING TO PURSUE HIS CLAIMS ON BEHALF OF NATIVE HAWAIIANSll

At the outset, this case involved several plaintiffs' (including native Hawaiian beneficiaries of

the § 5(f) trust, who have since settled their claims) attempt to seek declaratory and injunctive relief

9 "This court's issuance of previous advisory opinions, as cited by the dissent, is consistent with this court's prior case law and practice of Umiting its guidance to entities within the judicial branch while refraining from doing so in cases involving a separate governmental entity." Kapuwai,211 P.3d at 759-60 (emphasis added).

10 As noted, Plaintiff fails ab initio to meet this ripeness challenge because he fails to identify the precise (and ripe) cause of action and/or legal theory on which he seeks to proceed.

11 For purposes of this section, the tenn "Hawaiian" refers to any individual who is a descendant of the aboriginal p'eople who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii, while the term "native Hawaiian" is used pursuant to the definition set forth in the Admission Act.

6


barring the State from alienating ceded lands. These ceded lands which plaintiffs' claims concern were

part of the § 5(f) trust, with § 5(f) providing that the ceded lands shall be held by the State as a public

trust for, among other purposes, "[2] the betterment of the conditions of native Hawaiians, as defined

in the Hawaiian Homes Commission Act, 1920, as amended." Haw. Admission Act, Pub. L. No. 86-3,

73 Stat. 4, 6 (1959). As the only remaining plaintiff, Plaintiff, as a non-native Hawaiian, lacks

standing to pursue any claims on behalf of native Hawaiian beneficiaries of the § S(i) trust.12 This

court should reject Plaintiffs arguments that his Hawaiian ancestry conveys standing.

First, this court's recognition of Plaintiffs "standing" would effectively create a new class of

individuals who are entitled to litigate § 5(f) on behalf of native Hawaiian trust beneficiaries in

contravention of this court's established standing doctrine. 13 See Akinaka v. Disciplinary Bd., 91

Hawai'i 51,58,979 P.2d 1077, 1084 (1999) (recognizing the general rule that the doctrine of standing

prohibits a litigant from asserting another's legal rights). Plaintiff, who cannot argue that he (or any

other Hawaiian) is a native Hawaiian beneficiary of the § 5(f) trust, is limited to arguing that, as a

Hawaiian, he has standing to pursue § 5(f) claims on behalf of native Hawaiian beneficiaries. There is

no case recognizing a Hawaiian individual's standing to litigate the interests of third party native

Hawaiians,14 and, moreover, it is blatantly untrue that "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. " (P1.'s Mem. at 5) Thousands of native Hawaiians,

including plaintiffs who were parties to this lawsuit, have access to the courts to pursue their claims. IS

12 If Plaintiff wishes to pursue the claim that Hawaiians, and not the State, own the ceded lands, then that, of course, would need to be the subject of a new lawsuit.

13 This court's creation of a new class of plaintiffs with standing to litigate claims relating to the § 5(f) lands--i.e., a class of plaintiffs not specifically recognized in § S(i) or any provision of the Hawaii Constitution dealing with the land trust--is not only improper, it creates potentially serious difficulties for the State with regard to possible future lawsuits concerning the ceded lands trust. Cf. United States Amicus Brief at 22 (nFurthennore, the 'unrelinquished claims' to 1rust lands, on which respondents base this litigation, are apparently asserted on behalf of not just native Hawaiians as the Admissions Act uses that term, ... but anyone descended from a pre-1778 aboriginal Hawaiian .... Section S(f) does not recognize such a broad-based category of native Hawaiian beneficiaries. Thus, in this important respect as well, respondents' claims ... are contrary to the Admissions Act. ")

14 See, e.g., Pele Defense Fund v. Paty. 73 Haw. 578, 616 & n. 28, 837 P.2d 1247, 1269 & n. 28 (1992) (plaintiffPele Defense Fund had standing because it adequately alleged that its members included native Hawaiians, and the trial court's finding that that was so was not challenged on appeal).

IS Prior to the enactment of Act 176 (2009), native Hawaiian plaintiffs were parties to this case. "The

7


Second, the State cannot be barred from c~allenging Plaintiff's lack of standing under the

doctrine of quasi estoppel. Dismissal of Plaintiffs claims as non-justiciable would not create a

"manifest injustice." Standing is a required part of any claim. As a legal and practical matter, Plaintiff

has no standing to assert claims on behalf of the native Hawaiian beneficiaries of the § 5(f) trust.

There can be no manifest injustice where Plaintiff is free in a new lawsuit to assert claims for which he

has standing. Indeed, it would be manifestly unjust to native Hawaiians (and could lead to extremely

deleterious outcomes for native Hawaiians) were a non-native Hawaiian allowed to litigate claims 'on

behalf of native Hawaiians in a case in which all original native Hawaiian plaintiffs settled their cases.

That is particularly so as regarding this case in its present procedural posture, where the interests of

Hawaiians are not nearly the same as the interests of native Hawaiians.

Third, Plaintiff is not arguing that he has standing to challenge the State's now hypothetical

sale of § 5(f) trust lands as apuhlic beneficiary of the trust ll:llder the four other § 5(f) purposes. To the

contrary, he expressly alleges that his rights, as a Hawaiian, are "separate and distinct from those of the

general public." (PI. 's Mem. at 7) There are two parts to his argument: (1) that the State's alienation of

the ceded lands would "abridge" the customary rights of any Hawaiian (though he does not claim to

himself exercise these rights), and (2) the public has a "vested and significant" interest in protecting the

customary rights of native Hawaiians and their descendants.

As to the first point, these claims are beyond the scope of plaintiffs' complaint and this case, as

plaintiffs have never claimed a violation of Art. XII, § 7 of the State Constitution, or HRS §§ 1~1 or 7-

1. (See 1 R 21, 1 R 40 [First Am. Compl.]). These righ ts were never any part of this case~ 16

Additionally, Plaintiff wrongly conflates the Hawaiian customary rights set forth in Article XII,

§ 7 of the Hawaii Constitution, and HRS §§ 1-1 and 7-1 (which may run to all Hawaiians), with the

rights of native Hawaiian beneficiaries of the § 5(f) trust. The Admission Act does not name

"Hawaiians" as beneficiaries of the ceded lands trust, and thus Plaintiff, who is Hawaiian but not native

Hawaiian, cannot pursue § 5(f) claims by attempting to bootstrap the separate customary rights

presence in a suit of even one party with standing suffices to make a claim justiciable." Brown v. City of Los Angeles. 521 F.3d 1238, 1246 (9th Cir. 2008). However, because the native Hawaiian plaintiffs are no longer part of this case, Plaintiffs lack of standing removes this court's jurisdiction to consider his claim. Haw. Med; Asstn v. Haw. Med. Service Ass'n, Inc .• 113 Hawai'i 77, 94, 148 P.3d 1179, 1196 (2006) ("If a party is found to lack standing, the court is without subject matter jurisdiction to determine the action.").

16 Indeed, Plaintiffs attempts to introduce this claim at this stage of the case demonstrates just how weak his standing argument actually is.

8


granted to Hawaiians in an attempt to manufacture standing for himself. And, in fact, the State's

alienation of ceded lands could not abridge the customary "Kalipi" rights that run with the land. As the

State has previously pointed out: U[T]he 'Kalipi rights' of a native tenant do not depend on who owns

the subject land. In other words, if a native Hawaiian has the right to enter the land of another, the

transfer of land alone does not extinguish those native Hawaiian rights. Concomitantly, the existence

of native Hawaiian rights to enter a particular parcel of land does not burden a landowner's rights to

transfer his or her interest in the land.' Pele Defense Fund v. Paty, 73 Haw. 578,614 n. 26, 837 P.2d

1247, 1268 n. 26 (1992).'1 State's Ans. Br. at 4-5; State's Mem. at 16 n. 25.

As to the second part of his argument, Plaintiff is not arguing that he has standing to protect the

general public's interest in the § 5(i) trust. Rather, Plaintiff frivolously claims standing based on the

interest of all citizens "in ensuring that the Constitutional rights of native Hawaiians and their

descendants are upheld and protected." (Opp. at 9) Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555,

573-74 (1992) ("We have consistently held that a plaintiff raising only a generally available grievance

about government-claiming only harm to his and every citizen's interest in proper application of the

Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does

the public at large-does not state an Article III case or controversy.,,)11 For all of the above reasons,

this court should dismiss Plaintiff's claims based on his lack of standing to raise them.

m. PLAINTIFF SEEKS AN IMPERMISSIBLE ADVISORY OPINION

Plaintiff is seeking an advisory opinion on the legality ofbypothetical future alienations of

ceded lands, as the one sale that was at issue in this case cannot now take place without future

legislative action that may never occur. Plaintiff thus seeks an opinion on an abstract proposition,

which he concedes (Mem. at 9) is impennissible (citing Life of the Land v. Bums,

59 Haw. 244,250,580 P.2d 405, 409 (1978). Plaintiff offers no defense to this "abstract proposition"

prong of the advisory opinion doctrine.

Plaintiff concedes that he also falls within a second separate prong of the advisory opinion

doctrine which hold that moot cases improperly seek advisory opinions.1s He also concedes that

11 Indeed Plaintiffs standing is also defeated by the fact that he has never alleged that he intends to (or has) exercised any customary practices on any ceded lands. And, even ifbe had so alleged, no claim would be ripe until there actually was a proposed alienation that somehow threatened that exercise.

18 The State did not advance this prong as the "abstract proposition" prong compels dismissal. The State will address Plaintiffs argument, however.

9


absent an exception to the mootness doctrine, his case is moot, and thus any opinion merely advisory.19

Neither exception he cites is applicable.2o The "public interest" exception is clearly inapplicable, as the

public interest is not served by the court judging the hypothetical merits of possible future alienation

that may never occur. Nor is the public interest served by the court wmecessarily deciding questions

regarding the constitutionality of various state provisions as well as regarding the federal bar raised by

the State. Moreover, the public interest would be ill-served by the court "enlightening" (as urged by

Plaintiff, Mem. at 11) co-equal branches of government on their obligations, in advance of any need to

do so. With regard to the "collateral consequences" exception, as a matter of law, no collateral

consequences can flow from a dismissal without prejudice.21

Thus, on the basis originally advanced by the State, and based on mootness, this case must be

dismissed, as Plaintiff seeks an impermissible advisory opinion.

IV. 'CONCLUSION

Wherefore, the State respectfhlly asks this court to dismiss Plaintiffs claims as non-justiciable,

or to remand to the circuit court with instructions to dismiss.


mett Attome eneral Counse for Defendants-Appellees

19 "The doctrine prohibiting advisory opinions is appropriately invoked where the court is being asked to render an opinion on a moot question .... A case is moot where the question to be determined is 'abstract and does not rest on existing facts or rights.' [citations omitted]. There are two exceptions to the mootness doctrine which are applicable iP.. the case at bar ...... (pl.'s Mem. at 10)

20 Even were plaintiff correct as to exceptions to mootness, such exceptions are irrelevant with regard to the abstract proposition prong of the advisory opinion doctrine. Moreover, such exceptions are also irrelevant to the ripeness doctrine, as the doctrines of ripeness and mootness are separate and distinct. "When the litigation seems premature or subject to unresolved contingencies, the courts speak of the justiciability question in terms of 'ripeness.' Vlhen the continued vitality of the law suit is questionable, 'mootness' is the label used to describe the justiciability problem." Yamasaki, 69 Haw. at 169, 737 P.2d at 455.

21 Plaintiff argues, Mem. at 13, that if this lawsuit is dismissed, ceded land will be alienated without a means to stop it. Plaintiff, however, has completely failed to demonstrate that, and in fact, the opposite is true--ifa future alienation is proposed and objected-to, a lawsuit actually presenting the facts of the alienation can seek to restrain that alienation.

10


NO. 25570

IN THE SUPREME COURT OF THE STATE OF HAWAll

OFFICE OF HAW AllAN AFFAIRS, et al.,


VS.

HOUSING AND CO:MJMUNITY DEVELOPMENT CORPORATION OF HAWAII, (HCDCH), et al.,


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

DECLARATION OF LA.URA H. THIELEN

I, LAURAH. THIELEN, declare as follows: .

1. I am the Chairperson of the State of Hawaii, Department of Land and Natural

Resources.

2. I have personal knowledge of the facts contained in this declaration and am competent

to testify to them.

3. In January 2009, the State of Hawaii sold approximately fifteen acres of non-ceded

land, pursuant to Act 104 (2007), in order to facilitate the construction of the Kroc Center in

West Oahu. A true and correct copy of the Quitclaim Deed regarding the sale is attached as

"Exhibit 2.U

4. Act 104 (2007) provided a one-time ability to sell or exchange "not more than fifteen

acres of public land ... It Since the fifteen acre transaction described in paragraph 3 of this

declaration has been completed, no further alienations of public land pursuant to Act 104 (2007)

are possible, and none are being considered by the Department of Land and Natural Resources.



DATED: Honolulu, Hawaii, August/tl, 2.009.

LAURA H. tHlELEN Chairperson, State of Hawaii DLNR


NO. 25570

IN THE SUPREME COURT OF THE STATE OF HAWAIT

OFFICE OF HA W AllAN AFFAIRS, et aI.,


vs.

HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAW AlI, (HCDCH), et at,


CIVIL NO. 94-4207 -1I-SSM (Declaratory Judgment)

DECLARATION OF KIMBERLY TSUMOTO GUIDRY

I, KIMBERLY TSUMOTO G1JIDRY, d~clare as follows:

1.. I am a deputy solicitor general with the State of Hawaii, department of the Attorney

General. I am counsel for defendants-appellees in this matter.

2. I have personallmowledge of the facts contained in this declaration and am competent

to testify to them.

3. Attached as "Exhibit 1 It is a true and correct copy of 2007 Haw. Sess. Laws Act 104.

4. Attached as "Exhibit 3 tt is a true and correct copy of Volume I, Issue I (Summer 2008)

of the Kroc Impact newsletter. The newsletter is published by The Salvation Anny, with the

stated mission of sharing news about the Ray a1ld Joan Kroc Corps Community Center.


DATED: Honolulu, Hawaii, August 14,2009.

~:i~~ KIMBERLY TSUMOTO GUIDRY


L

SESSION LAWS OF

HAWAII PASSED BY THE

TWENTY-FOURTH STATE LEGISLATURE

STATE Olil HAWAII

REGULAR SESSION 2007

Convened on Wednesday, lanuaJY 17,2007 and Adjourned sine die on 'i."'hursday, May 3, 2007

SPECIAL SESSION 2007

Convened on 1'uesUIlY, July 10, 2007 and Adjourned sine die on Tuesday, July 10,2007

Published Uil~r Authority of Section 230-13. Hawall Revised Statutes

b'l the Revis('l'-·)f Statutes

State of Hawaii Honol;,U!J, Hawaii

EXHiBIT 1


ACT 104

alternative fuel is.in fact u~ed for operating an internal combustion engine or operating a motor vehicle or motor vehicles in areas other than upon the public highways of the State, the user thereof may obtain a refund of all taxes thereon imposed by [weft] the foregoing paragraphs. The department shall adopt rules to administer the refunding of [sueD] these taxes [imposed].

(d) No tax shall be collected in respect to any liquid fuel, including diesel oil and liquefied petroleum. gas, shown to the satisfaction of the department to have been sold for use in and actually delivered to, or sold in, the county of Kalawao. "

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take eff~c;t upon its approval; provided that: (1) The amendments made to this A~t to:

(A) The defmition of "power-generating facility" in section 243-1, Hawaii Revised Statutes; aJld .

(8) Section 243-4(a), Hawaii Revised Statutes; shall be repealed on December 31,2009, and section 243-4(a), Hawaii Revised Statutes, shall be reenacted in the form in which it read on the day before the effective date of this Act; and

(2) The rate of tax for naphtha as provided for in section 243-4(a)(3), Hawaii Revised Statutes, shall be effective retroactively and apply to any imposition of the:: fuel tax. on naphtha sold for use in a powergenerating facility.

(Approved May 29, 2007.)

ACT 104

A Bill for an Act Relating to Lanc:s Controlled by the State.

Be It Enacted by the Legislature of the State of Hawaii:

S.B. NO. 1924

SECTION 1. Notwithstanding any I.>ther law to the contrary, including section 171 .. 50(c), Hawaii Revised Statutes, the board may:

(1) Exchange, in accordan~e with section 171-50(a) and (b), Hawaii Revised Statutes; or

(2) Sell, at fair market. value in !lc(ordance with section 171-17, Hawaii Revised Statutes,

but not both, by direct negotiation and without recourse to public auction, no more than fifteen acres of public land as defined under section 171-2, Hawaii Revised Statutes, to an eleemosynary organization that has' been certified to be tax-exempt under section 501(c)(1) or (3) of the Internal Revenue Code of 1986, as amended, to be used as the site of a community center on the following conditions:

(1) The lands shall be used by the eleemosynary organization for a community center that shall be mad(; available to the public without regard to race, creed, colo~, national ongm, sex, sexual orientation, or mental or physical handicap;

(2) The eleemosynary organizatim: shall demonstrate sources of funding sufficient to construct and ~intain a multi-purpose community center with sufficient size and faciHties to serve a community oftwentywfive thousand peopl~, including:

181


ACT 105

(A) A major aquatic center with two swimming pools; (B) An athletic compiex with a gymnasium that houses a national

collegiate athletic association regulation-sized basketball court; (C) A perfonning arts center; (D) An educational and vocational training center; and (B) At least three hundred parking stalls;

(3) The major donors contributing to the capital improvements or maintenance of the community center require the eleemosynary organization to own the land in fee simple instead of a lease under section 171-43.1, Hawaii Revised Statutes; and

(4) If the land is not used or ceases to be used for the purpose set forth in paragraph (1), ownership of th~ land and any improvements constructed thereon shall revert to the State; provided that any pending liabilities assigned to the property, eleemosynary organization, or other party in effect prior to the reversion shall not be transfened to the State.

SECTION 2. This Act shall take effect on approval; provided that it shall be repealed on December 31, 2010.

(Approved May 29, 2007.)

AC1' IGS S.B. NO. 98

A Bill for an Act Relating to Educution.

Be It Enacted by the Legislature oj the State of Hawaii:

SECTION 1. The legislature finds that the interagency working group established pursuant to part vm Cif Act 51, Session Laws of Hawaii 2004, the "Reinventing Education Act of 2004,' t as ar.tended by Act 225, Session Laws of Hawaii 2006 (Act 51, as amended), has recommended to the legislature that the transfer of functions from the depa.-anent of health to the department of educ~on specified in Act 51, as amended, be amende1 to repeal the transfer of the public health nurses who supervise sch(lol health aides. The school health aides are scheduled to transfer July 1, 2007, f"Iom the department of health to the department of education. .

The interagency working p-oup report states that the department of education and the department of health supported the transfer of the school health aides and the repeal of the transfer of the public health !1urses who supervise school health aides. The report also stated that the He.waii Gcv~l'ument Employees Association opposed the transfer of the school health aid€.s. The Hawaii Government Employees Association stated that its objection to allY transfcr ()f state employees to the department of education is based on its concel!} for those .~mployees whose positions and funds might be allocated to the schouls thr011gh the weighted student formula. The department of education stated th~t a poEcy ciecision has been made not to allocate the school health aides positions through tbe weighted student fonnula for the fiscal biennium 2007-2009. .

The legislature further finds that fue department of education and the department of health have agree<! that tho3e public health nurses who supervise the school health aides should IeIMiu at the cepartm.ent of health and provide clinical supervision to the school health aides t~rou~h a service level agreement or memorandum of understanding. Both departm~nt~ recognize that transfeuing the public health nurse positions to the department of education would require the department

182


0' , 0 .,

I • . , o o

20 111

L~52 . STATE OF HAWAII OFFICE OF ASSISTANT REGISTRAR

RECORDED

Z13

JAN 20. 200& 08:01 AM

Doc No(s) 3819951

en Cert(s) $08,339

Issuance of Cert(s} 933.850

lsi NICKI ANN THOMPSON ASSISTANT REGISTR.J.R CTax (30): $4500.00

LAND COURT SYSTEM

} . )

) REGULAR SYSTEM Return by Ma1~ < i) Pick\lt') ) To:

THE SALVATION ARIa PROPERTY DSPT., 10'rH PLR 180 B OCBAN BLVD LONG BEACH, CA 90802

LOD No. 28,932

TGOH: 200824255--~ TGBS: A8-101-1495

SNtBA9A PAOLO

Total N~mber of Pages: 1 -Tax ~ap Key No. (1)9-1-017:por. 071

QUITCLAIM DEED

KNOW ALL MEN BY ~HESE PRESENTS: , .

THAT, effective as vf the day of JAN 1 ~ 2OG8 20 , the STATE OF HAWAII, hereinafter referred to as the "Grantor," by its Board of Land and Natural Resources, acting pursuant.to Act 104, Session Laws of Hawaii 2007, for and in consideration of the sum of ONE MILLION FIVE HONORED THOOSAND AND NO/100 DOLLARS ($1,500,000.OC), paid to and at the Department of Land and Natural Resources b~ THE SALVATION ARMY, a California

.' nonprofit corporation, whpse-address is 18Q E. Ocean Boulevard, 9~h Floor, Long Beach, California 9Q802, hereinafter referred to as the "Grantee," the receipt whereof is hereby acknowledged, does hereby convey, transfer, remise, release and' forever quit~laim unto the Grantee, the Grantee's successors and assigns, all of its right, title, interest, claim and demand' in and to that certain parcel of land situate at Honouliuli, Ewa, Oahu,Hawaii, descl;ibed as "Lot 18061," containing an area of 15.000 acres, covered by Certificate of 'l'itle.No. 908,339, more' particularly described in Exhibit "A," which is attached hereto

/

OEPARTMENT Or LAND AND NATURAL RESOUACES LAND DIVISION

HOtoICIUZLU. HA.WAII 9811011

EXHIBIT 2

~I


o and made a part hereof. Together wi th access over Lo-t 18066 and Easement 9669 to Lot 17853, as shown on Map 1375 of Land Court Application No. 1069, and then over Easement 4470 as shown on Map 712 of Land Court Application No. 1069, affecting Lot 10067-8, as shown on Map 876 of Land Court Application No. 1069 to Farrington Highway, a public road, as set forth by Land Court Order No. 116857 filed November 10, 2008.

RESERVING TO THE STATE OF HAWAII, ITS SUCCESSORS AND ASSlGNS, THE FOLLOWING:

1. All minerals as hereinafter defined, in, on or under the land and the right, on its own behalf or through persons authorized by it, to prospect for, mine, and remove these minerals and to occupy and use so much of the surface of the ground as may be required for all purposes reasonably extending to the minin~ and removal of,these minerals by any means whatsoever, including strip mining. "Minerals", as used herein, shall mean any or all oil, gas, coal, phosphate, sodium, sulphur, iron, titanium, gold, silver, bau>;ite, bauxitic clay, diaspore, boehmite, laterite-, gibbsite, alumina, all ores of aluminum and, without l1mit'ation thereon, all other mineral substances and ore deposits, whether solid, -gaseous, or liquid, including all geothermal resources, in, on~ or under the land, fast or submerged; provided, that "minerals" shall not include sand, gravel, ~ock, o~ other material suitable for us~ and used in general construction in furtherance of the Grantee's permitted activities on the land and not for sale to others.

2. All surface and grou~d waters appurtenant to the land and the right on its own behalf or through persons' authorized by, it, to capture" divert, or impound the same and to occupy-and use so much of the land as may be required in the exercise'of this riqh~ reserved.

Provided, however, that as a condition precedent to the exercise of the rights reserved in Paragraphs 1 and 2, just compensation shall be paid to the Grantee for any of Grantee"s improvements taken.

SUBJECT TO rights of native tenants and regulatory riqhts and oWfiership rights (if any) of the State of Hawaii established' pursuant to ,state law i:1cluding Chapter 6E, ,Hawaii'Revised Statutes, over prehistoric or historic remains found in, on, or under the land. -

AND the Grantee, for the Grantee's successors and assigns, covenants with the G~antor and its successors as

'2 CEPARTMENTOPLANDANO NATURALRESOUACES

LAND DIVISION P.o.Wl< :121

HClHC)LU.U HA"'"U eal109

- ' ... ,-~--------------------------------------------------~----------------------


. " , I , o follows:

1. The use and enjoyment of the land conveyed shall not be in support of any policy which discriminates against anyone based.upon race, creed, sex, color, national o~iqin, religion, marital status, familial status, ancestry, physical handicap. disability, age O~ HIV (human imm~nodeficiency vi~us) infection •.

2. The use of the land shall be in combination, consolidation, or otherwise with other abutting lands owned by the Grantee and shall be used in accordance with the appropriate zoning and sUbaivision ordinances of the city and County of Honolulu.

3. The land shall be used by the eleemosynary . organization' for a community center that shall be made available to the public without regard to rec~, creed, color, national origin, sex, sexual orientation, or mental or physical handicap.

4. The eleemosynary organization shall demonstrate sources of funding sufficient to construct and maintain'a multipurpose community center with sufficient size and facilities to serve a community of twenty-five thousand people, including:

A. A major aquatic center with two swimming pools; B. An athletic complex with a gymnasium that houses a

national collegiate athletic association regulation-sized bgsketball court;

c. A performing arts center; D. An educational and vocational training center; and E. At least three hundred parking stall~.

5. If the land is not used or ·ceases to be used for the purpose set forth in paragraph 3 hereinabove, ownership of the Ian!=! and improv~ments (hereinafter "pr'operty") constructed thereon shall revert to·the State of Hawaii; provided that any' pending liabilities assigned to the property, eleemosynary organization, or other party in effect prior to the reversion shall not be transferred to the State of Hawaii.

6. The land shall be conveyed as is.

TO HAVE AND TO·HOLD the same in fee simple together with all of the ~ights, easements, privileges and appurtenances thereunto belonging or, in anywise appertaining or held and enjoyed therewith unto said Grantee, the Grantee's successors and assigns, . ·forever, except as noted herein.

3 oePARTMet«OF LAND ANa NATURAL RESOURCES

LAND OMGlON . AO.~ .. t21

I'CINI:ILULL!. HI\W4lI QOSO&


.' , . .

This deed may be executed in counterparts, each of which shall be deemed an original regardles~ of the date of its execution and delivery. All of such counterparts together shall constitute one and the same deed, binding all of the parties hereto, notwithstanding all of the parties are not signatory to .the original or the same counterparts. For all purposes, including, without limitation, recordation, filing and delivery of this deed, duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document.

IN WITNESS WHEREOF, the STATE OF HAWAII, the Grantor herein, has caused the seal of the Department of Land .and.Natural Resources to be hereunto affixed ~nd these presents to be duly ~xecuted this day of om 302608 , 20 __ ' and THE SALVATION ARMY, a California nonprofit corporation, the Grantee herein, has caused these presents to be executed this day of JAN Q 7 2001 , 20 __ , both effective ·as of the day, month, and year first above written.

Approved by the Board of Land and Natural Resou'rces at its .) meeting held on Nove·mber 16, 2007.

APPROVED AS TO FORM:

General

,- ....... STATE OF HAWAII.···· :

.-"'"'''' .....

B •• ~~··· ......• ;.

~--~~--.~.~=.--.-----~---.~.-----

7!0ard of Lana.-:?ncf: . _ Natural Resou'rc?s . .

'. '. '.~'.' ·:GRANTOR

THE SALVATION ARMY

By ______________________ --________ __

Its ______________________ __

And By __________________ ~ ____________ _

Its -------------------------GRANTEE

4 DEPARTMENT OF LAND AND NATURAL. RESOURCES

LAND O:VISION RC. BOX t.21

.... - ... _._-------------------


, .. ' ;" .. .... o o·

This deed may be executed in counterparts, each of which shall be deemed an original regardless of the date of its execution ano delivery. All of such counterparts together' shall constitute one and,the same deed, binding all of the ~arties h'ereto, notwithstanding all of the parties ,are not signatory to ~he original or the same counterparts. For all purposes, includinq, without limitation, recordation, filing and delivery of this deed; duplicate unexecuted and unacknowledged pages ~f the counterparts may be discarded and the remaining page~ assembled as one docum~nt.

, IN WITNESS 'WHEREOF, the STATE OF HAWAII, the Grantor . herein, has caused the seal o~ the Department of Land .and.Natural Reso~rces to be hereunto affixed a~d these presents to be duly executed this day of . , "20 , and' THE SALVATION ARMY, a California nonprofit corporation, the Grantee herein, has caused these p'resents to be executed this day of' , 20 ' .', both effective'as o"f'the day, month, and year first above written.

-.... STATE OF "HAWAII Approved by the Board of Land and Natural Resources.at its meeting held on November 16, 2007.

By~~ ________________________ ~ Chairperson

APPROVED AS TO FORM:

General , . .

Board of I.and and Natural" Resources

THE SALVATION ARMY

GRANTOR

Dated: ~~~\d!Jtik

BY~~~r--~_VlC".~

'It::; '.~~ .

J

And, BY1ts ~.

4 CEPARTMENTOFLAND AND NAnJRAl f 1 r:SOURoeS

LANO DIVISION itO. BOJ( &21

~U. ~.WNt if.aW

GRANTEE

.'


',. ' ,

CALIFORHlA ALL-PURPOSE ACKNOWLEDGMENT r T e? 7 E; 'RW ~..fflO$l~i'anif;t'_·_inRB~ ________ .. e

State of california

County of" Los PtfISeJeS On JQn . 'l&i'?Jl0Q b9fo~e me, ~...J..,I.W.L~~-u=:::-;:~~~~;;;;t--fU~&t~~_~ personaily appeared --w;{Jj~l t~\ l.:..l!o.~\\t~-----J~~~~~-==~--!.J,..;::",!,-~'--';""~~ __

who proved to roe on the basis of satisfactory evidence to be the person(s) whose name(s) ~.subscrfbed to the V/ithin i _strument and acknowraaged to' me that hAlI~'HlP.· v'lcxecuted 1he same in his.lber4Ji!Ibuthorlzed capacity le~kand tttat by ~ stgnature(s) on the Instrument, ·the person(s). or the: entity upon behalf of which Ule por~3~.)n(s) acted, executed the ~enl

I cprtiiy W\der PENALTY OF ~E~URY under the raws of the State qf California that the fpregplng paragraPh Is true and correct.

WITNESS rrl~>~. and and OfflciaJrllll, .A-r~

Si9ratl1r·:.'!J~C~GI ~~ SignaIufe NIle·

--------------------~OpnOhAL----------------------~ Though the InIormatiOll bBIIJw Is 110t required by la~ It may provl! ~~~tlJ"uG to porsons relying on th8 documfllll

"and could prevent tiaudu/ent removal and reattBchrnont of !hi!: :.,tm to anothor document.

De8~ptlon of Attached Document Trueor~P9~~~ ________________________ ~ ________________________ __

Document Date: _________________________ Number 0' Pages: ___ .......:.. ___ _

Signer(s) OtherThan t;l&msd Above: __________ ---'-'.

capaciiy(Je8) Clalmed.by Signer(,)

Signan Name:_....;.,.· ..... · ______ ~ __

o Individual o CorpOrate Officer - Titfe(s): [J Partner - 0 Umj~~ P GeI'\eraJ CJ Attorney In Fact : o nustee:: . o Guardian or Conservator a O~ ______________ _

Signer 18 Representfng:_........;.--.,._

Signer's ~hme: _____________ __

o In:hidl.J'! o Ccrpor·:'~ Officer+-Title(8): _____ -.:..---:.. __ _

o Partner :~ 0 Umlted (J General o Attc.'rney in Fact o Truh1ee .' o Guardian or Conservator o Other:-:·, ________ _

Signor Is flr')preseritlng: __ -:--__


.. . \ .... .;. ,,'... ,. ·0

0.:· \~~: ..

. . Allot that certain parcel of land situate at Honouliuli, District of Ewa, City and .county of Honolulu, Stat'e of ·Hawaii, des<i:ribed as folloWs: . .

. . (

LOT 18061, area 15.00 acres, more o~.less, as shown on Map 1'10, filed in the Office of the Assistant Registrar of the Land 'Court Qf the State of Hawai! wi·til Land Court Applica tiol1 NO.. 1069· of the TrUstees under the Will and of the Estate of J~es Campbell, ~eceased. . .

Being land(s) described in Transfer'Certificate of' Title NO. •. 908,339 issUed to the STATE OF· HAWAII. .

Together wi·th access ·over Lpt 1806.6 and Easement "9669 n I to .Lot·

11853, as shown on Map 1375 of Land Court Application No. 1069, and then over Easement "4470 ct

, as shown on t.fap 712 of Land court. Application No. 1069, affecting Lot 1~067-B, as shown on Map BfO of Land C9urt Application ·No. '1069, to Farrington Highway, 'a pub~ic road,' as set forth b.Y Lana Court Order No. 176857,' filed November 10, 2008.

Btm QP SCHEl:JULE c

... : ..

. :

'.

'.'

.:

2008242S5A © Title Guaranty 0,[ IIawaU, Ine~ 'agoS aasQUEEHGT., HOHOLUW. AAWAII ~I~ Ptf:(8OI)~t

............ _ ..................................... - _. .. ...... __ .. 0" •••• .:.:..::...... .. "

. ······-1· .. --


""'·1 .. 1 " . ,,-,.

From left, Phil Russell. Mfcah Kane. Commissioner PW Swyers, i.1a, Dave H . ';()II, Mayor MlJ.fi Hannemann, Governor Linda Lingle and Don Hornr.:' al !I!I~ May :: 5 ell I;:

preJentation.

'.

Welcome to the firs! is:i\lC of Kroc fillP{/ff.\~'hose mission is to share news abou t ( '\I T exclt mg, new Ray & Joan Kroc Corps C' lIl'l " y

Center! We invite you to read fu rthe r I , ':~' ]1

more about what's happeni;13 at the K "{ r in Hawai'i - its progress. p:ogr:"! 15 and P 'i'!l

A whirlwind of activity ha ~ en place ~i[\( 11

monumental day in May 2:}, , when .,~ I Ln- lian and Pacific Islands Division 15 awar h.1 S8 :nillion from the estate afRay and ; oOln Kroc to bu ild :I nd operate a state-of-the-art Kroc Center in Wc~t O'ahu. Let me share some highligh!:l of the p !lWrc~s' ,J date.

The final project design ho.s b een com ' I ted 1 r our architect, Group 70 Internotional. It C I - m; ~es

a 100.000-square-foot com mun ity eel r c lex that iocludes a SOO-seat "Vor ~r' i p and l' '~f. 19 Arts Center; a Comm~nit1' ;'>Iueation ;t'llll' fl u ree Genter with an NCAA regt, ion gyl' n ,l~!1i" m

: Aq~ati~··Center that will h, both a C{lIlT ion

XH:BIT 3

and recreation pool; a Health and Wellness Center; il commercial kitchen; athletic fields and landscaped rcc reation areas; and last. but certainly not least, a I 50-student Preschool/Early Education Center.

111rough some God-ordained strategizing and the overwhelming support of many elected and appointed representatives in state government, we have acquired 15 acres of fee-simple property in Kapolei upon which to build the Kroc Center - a prime location at the gateway to the Waianae coast. Read about our recent ground blessing on page 3.

You also will note in our fundraising report on page '1 that we are well on our way to achieving our goal 0: raising 10,cal funds. The gift from Joan Kroc to Ilawai'i is contingent upon our raising financial support from the local community. and we already have many generous supporters to thank.

\,\'h ile we await the completion of the new Kroc Center in 2010. we are looking for 3,000-5,000 square ft:e t of space in the Kapolei area for a temporary chapel, office and program space. Please give me a call at 44 0-1870 if you know of a possible location fo r our t' rowing activities in West Ojahu.

l' \'en though our bUilding is still on the drawing l \);l rd. we have been building program capacity in alIT ta rget neighborhoods. We welcomed two new Kroc Ambassadors to our staff. and you will learn more about their activities and adventures in the Impact.

We are blessed with a wonderful team of people who arc giving so much of their energy and influence to this project. Our committees have been a refreshing source of inspiration and a guiding light. As Don Horner, CEO of First Hawaiian Bank and chairman of our Steering Committee says, "The reason I am involved with this project is because I know that God is at the center of it."

May God continue to be at the center of all we do at the Keoc Center. God bless you!


F:Jf more t l l(lll /1 Cellll l/'Y

The Salvatio ll Arm)' has ; erved tire isfnlld

ofO'ah u, V lI/le r St'ITt' li

cC'l1 mUnil i j' l , .... ..,

( '!Iu,/ro ll l I' " $' /, '"

rll IVaiaJla l', II,I VI ' fr,

lioll ally beeH tIll! JIICH!' of oilr activities, lI'i lll ull r

I.l' ,'ward CO/ps I'nH' it/ i llg

(l preschool, r/Ifll'ci flll d other servin's Jrom its

We c1wsc to build orlr IIC W Kl'lJC CorfJ ~ r(Hlllllllll i ly

Center in Kapolei - ti'e f ll stc 'i l grow illl' n :/)/1 ' I

tire state - to move pll)'sir,· ." y close I III' '(1 I U·

,rities we serve.

Getting to Know 'i J

Even before we begin buildir!g the new cen:l'r, o'i r Kroc team is busy bUilding :-t.: lationshl \,:, .lIl d t:qab ·

Iishing a presence in Kapo: i.

We participated in the past two Kapoki Cit)' I.i r h ts Christmas parade,;, and las, ;'ear, Th t:' :lvat :'.111 rmy Angel Tree program grew \\ ''i t with ' \ lip n i )f a

Programs for Yo" ) 1

,\It hough groundbrcaki ng for the Krn( ,'enkr; "till

a fcw mo n" 1 a\\"'Y,' ,.lm

Hegonia, as: ;st;1I 1! i 'ruject d irector, h as k en b usy

h :iJding ! 'l ("' r~l 'l ("," lcity fcr more !' l"l a : ':;

"\\'hen w e "\:'n o~! 'oors ;11 Kapol ei, i;'s imp( '., nt

!h3t we h ave proer,,: :s al ready in place 10 ~'. rve

our neighborhoods flnd e:1su re the SIl~t'S!l (If

ministries:' Begonia cxrl ~:I\:;. Afler tl 15,(, '-ul launch in 2007, two Kr(lc r :~: lte r p n I:n" C, Hue

their youthful rr..iss ioll thi~ year.

Fun in the SON 200S is <! .;u m mer d 'v (amp ''''(1 .

gram for children €IHnio' I-i nderf n 11 ! .l

grade 6. Fun, saf2 and ~:~( ··c!.1ble, II 't.:- V,·L· 1'0· gram runs weekJays . 1' :11 ;une 9 to [ . . 11. ; ram hours a re 8 a.m . to 3:30 :l.t~1. with C),! ,d t' .! I . s (6:30 a.m . to 5: 30 p. m.) ,\ idable for il ~tIla:. i -tional charge. Kciki call InoK forwar 11'1 J Iy\ t!d with crafts and games, m \lsi...: .I nd dt I: ,1 , ;l,;{. le ast

'sa tell ite' Angel Tree donor location at StorSecure in the City of Kapolei. SpeCial thanks go to Sofas Realty.

which uonated storage space for our Angel Tree gifts,

and to Kapolei High School Principal Al Nagasako and v(,lu nteers from the school's National Honor

Socicl " :or helping to distribute Christmas gifts and cheer : ) more than 1,100 underprivileged families

from Leeward O'ahu and the North Shore.

The Kro c Center also joined the Kuhio Day Ho'obulea in March. celebrating the dedication

of the new Department of Hawaiian Home Lands

head quar ters in East Kapolei. Face·painting, balloon animals and an information table helped spread the news that our new community center is on the way!

We al 0 have been getting to know our Kapolei neigl:' >1rS by attending neighborhood board and

C0 I11 11 ill ity association meetings; meeting with

sch o ol p ri ncipals, UH West O'ahu Chancellor Gene Awaklln i and area businesses; and participating in the \':"st O'ahu Economic Development Association ann uil l conference. Kroc C enter Hawai' i has also

jOined . the new East Kapol ei Regional Stakeholders,

a group of businesses, n onprofils, area developers and government representatives that sh are ideas and address local issues. We have been warmly received

by all.

two field tr ips each week - all under the guidance

of a quality staff. The cost is $475 ($550 fo r extended

hours program) and space is limited. Contact Program Direc tor Arwyn Uewellyn for registration information: 440·1870 or email

[email protected]

Youth character· building is the mission behind

KAEO (Kroc Ambassador Education and Out· reach), a free, after·school program for youngsters

enterin g kindergarten through grade 6, Based at a Waipahu area park. this year.round, walk·in pro·

gram offers a place for keiki to get help with home· work; participate in educational lessons, games and activities; and enjoy a snack.

Beginning in August 2008, KAEO will b e offered in Kapolei's Honokai Hale neighborhood. An Ewa

Beach progra.m will open in 2009. More mforma· lion about our KAEO programs is available by call·

ing Program Director Elizabeth Gross, 440·1870.

Visit our Kroc Center Hawai'i website to learn more about all of our programs and services,

www.kroccenterhawaiLorg


FOCUS

The Legacy of Joan Kroc The year 2004 has been forever etched into the an na ls of history for The Saiv21io ll Army. It was then, in an unprecedented display of pl li lanthropy. that the late Joan Keoc, wife of McDonald 's Corporation founder Ray Kroc, bequeathed S1. 6 b illion to The Salvation Army. This

gift was intended to fund community centers ac ross the country. similar to the flagship center bu ilt in San Diego in 1998 with funding from Mrs. Krac.

In 2006, Kapolei was chosen as the location for one of more than 30 new Ray and Joan Kroc Corps

UPDATE

Ground Blessing Marks Dream Corne True

Commissioner Phil Swyers and Vivian Aiona (TSA Ad. isory Board member) look on as Kahil Kekoa Kardell blessc..! tlte site of the Hawaii Kroc Center.

It was a thrilling and much anticipated event that involved two years of hard work and preparatio n, The ground blessing of the Ray and Joan Keoc Corps Com~unity Center held on May 12th in Kapolei marked a dream come true [or The Salvation Army in Hawai'i as work now begins on the project's infrastructure.

The Hawaiian bleSSing and ceremony was conducted by Kahu Kardell Kekoa on the grou nds of the planned Kroc Center Hawai'i. The auspicious event was attended by State and City public officials led by Lt. Governor James "Duke" Aiona, as well as distinguished guests from the private sector.

Co m mun it y Centers . /\ gift of $80 miUion will help bu ild and ope rate t ilt' Kapolei center.

II was Mrs. Kroc's h('p ~ that these centers would OI'C:l ' he doo ~s In ("

P I not othC1Wi:-.t'

!u nities for anyone who ,lccess to such facilities.

J L 1- \'i sion was tlli'll : Li ld would feel envious of

any uther child alld·. ,dd be able to enjoy access to exceptional qual ity I r,rams and amenilies. Above ail , Joan Kroc wi ~hl" 1 'l a t these centers would be beacons of hope anu .I~e nls of change for the communities they ~("rve. .

Wit h groun cl b rerlkiL~. lanned for the winter of 2008, The Salvation .\ 1'11y in Hawai'i looks forward to l '\cn ing the doo: the new Ray and Joan Kroc C" j .:i Comlll llll,;: ' r in 2010.

In conjunction Wilh; Dt'!''1 rtmen t of I la"· g rt" ;ndbrea l ;!lg (,::'1

1,( .J in Kapl.- ~d . ..

till" Kroc Cent and schools. church e ~, !

Together, these t \\' o .

H<l',vai'j and the nl..'\ way for hope and 0; co rne for families l'.

Special thanks tn 1\' j ill' with the Klll(; ,_

"T,,\ lay m;l rk ... th ~· I

r" lrkablc l!r,';l n i' :;,: 5 to SO Il ,ani· .

h,l'.'C them," said !)

er of The Salvation. t h~lt marks the SL1: l

a~ part of the IlrlI.l

1l .e ground lln::!~~:

st'rt of the (L"lmt!

is, vpected I ) ~ll" J

.. ;:<Y-.

}

·s ce remony, the state 11 I-lome Lands also held a ny fo r the new East-West \d will be the main access to

... rve as the corridor to new

" and housing in the area.

-jects. the Kroc Center l~ t-West Road, will pave the lrtun itics for generations to , \! leeward coast of Q'ahu. 11 Kane ofDHHL for partner' r fo r this event.

,t ion of Mrs. Joan Krac's .11 offer a world of opportu

<; who otherwise would not ldson. divisional command-

Iy_ "It is also a propitious day dvation Army Week Hawai'i

··lebration."

! em ony, which will herald the :1 of the Kroc Center facility. :cr this year.

Commissioner Phil Swyers, Don Horner (Kroc Center Steering Committee Chairman), and Major Dave Hudson after the ceremony


~4\ '~4

_ Ray & Joan Kroc c.;OIU'S <':o';~nTN'T"f \· ' ; fNrt' .

The Salvation Army 2950 Manoa Road Honolulu HI 96822

In This Issue'

ifJ The Major's Message !;J Growing West - Meeting Neighbors • Upcoming Programs for youth II The Legacy of Joan Kroc I!I Kroc Center Hawai'i Ground

Blessing I;l fundraising Update

Non-Profit Org U.S. Postage PAlO Honolulu. Ht Permit No. 191

CAPITAL CAMPAIG N UPDATE Fundraising for Kroc Center on Track for 2010 Opening With great wisdom. Joan Kroc made her gif1ln The Salvation Army very carefu lly. She req 'l i l' -1

communities to contribute th , ir own r('s Cl\~: toward their center before her gifts afe J b.. - d.

Each of the Kroc Centers a c ro~s

the nation h as been challenged to raise these local fun os. Haw:!i' s committed to raise $23 mill ion to supplemen t the S80 million grant from Joan Kroc: $11.5 million to support the bu ilding project and S 11.5 million fo r ennownH' '1t I

We are looking forward to;'l .~I I('"Cl!S ... r ll l nJ l l c1'~( ion

of our campaign before ( h~ ~~ IJrs tv (hi.; c~

open in 2010. Don Horner, preSident and U l of First Hawaiian Bank and Mit..:h D'O lie r, pr '~I nt and CEO of Kaneohe Ranch, co-ch,l ir, our l:. tal Campaign, Unde r their leadership, we have r -ed to date $16.5 million toward our $23 m ill ion g

A $4 million gift from the J ~, k and Marie L('Ild Trust will support the bu ildipg of a 500-<;(' " s' :lteof-the-art worship and pc'r' lI1 i n ~ Jrts CUI'

The center will be a foc\1$ f'lI ,' r( 'H':(,'\ <' ed education opportuniti e.~, (, and celebrations, and Th:.! !' services.

I 0,1

,IL ion AI Ill)' .

ns h ip

A generous gi ft ofS750,oor !'o ll1 lh~ Fa'al Eleemosynary Trust will bt: l:~e d to hui1lIIJ~c ' Iary

D. and Walter F. Frear Preschool, which will serve 150 children ages 3 thru 5. The preschool will offer affordable high-quality early education for one of O'ahu's fastest growing communities.

Other major gifts include the following: $lmillion fTom the Harold KL. Castle Foundation; $300.000 from First Hawaiian Bank Foundation; $250,000 each from the Atherton Family Foundation, James & Abigail Campbell Family Foundation, and the

'ames Campbell Company; $150.000 from Friends of Hawaii Charities; S100,000 each from Bank of Hawaii Foundation. Samuel & Mary Castle Foundation, and the Schuler Family Foundation.

As you can see, we are well on our way to reaching our fundraising goal of $23million for Keoc Center Hawai'i. The next phase of our work will be challenging and exciting. It will be a critical time for our community's business and citizens to invest in the future of our island, our families. and our children. We look forward to welcoming many, many more donors, with gifts large and small to be a part of this wonderful project.

If you would like to learn more about how you can make an investment in the Kroc Center please contact our divisional development director, Dana Myers Barnum, at (808) 440- 1861 or [email protected].

/J---n~ Don Horner, Chair Krac Steering Committee


NO. 25570


OFFICE OF HAW AllAN AFFAIRS, et al.,


vs.

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

Defendants-A ellees.

crVILNO.94-4207-11-SSM (Declaratory Judgment)


I certify that on August 14, 2009, two copies of Defendants-Appellees Reply

Memorandum was mailed, first class postage prepaid by the last mail pickup of the day to:

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

Attorneys for Plaintiff-Appellant OFFICE OF HAWAIIAN AFFAIRS, RO'V~NA AKANA, HAUNANI APOLIONA, DANTE CARPENTER, DONALD CATAL t;NA, LINDA DELACRUZ, COLLETTE MACHADO, BOYD P. MOSSMAN, OSWALD STENDER AND JOHN W AlliEE, IV

MELODY K.. MACKENZIE 579 Kaneapu Place Kailua, Hawaii 96734

Attorney for Plaintiff-Appellant OFFICE OF HAWAIIAN AFFATRS

WILLIAM K. MEHEULA :MEHEULA & DEVENS 707 Richards Street, PHI Honolulu, Hawaii 96813


HAYDEN ALULI 2180 Kahookele Street Wailuku, Hawaii 96793

Attorneys for Plaintiffs-Appellants PIA THOMAS ALULI, CHARLES KA' AI' AI ANDKEOKI MAKA KAMAKA KI'ILI

YUKLIN' ALULI 415-C Uluniu Street Kailua, Hawaii 96734

MILILANI TRASK Gibson Foundation Waiakea Villa, Bldg. 10 4-00 Hualani Street, Sui te 194 Hilo, Hawaii 96720

DEXTER K. KAIAMA Dillingham Transportation Buildi ng 735 Bishop Street, Suite 419 Honolulu, Hawaii 96813

Attorneys. for Plaintiff-Appellant JONATHAN KAMAKA vVIWO'OLE OSORIO


KIMBERLY TSUMOTO GUIDRY Deputy Solicitor General Attorneys for Defendants-Appellants

2


Documents

IN THE SUPREME COURT OF THE STATE OF …...NO. 25570 IN THE SUPREME COURT OF THE STATE OF HAWAI'I OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA, HAUNANI APOLIONA, DANTE CARPENTER, DONALD